A female high court judge in Grenada was called upon to settle a dispute between a U.S-born woman and a German man over the custody of their child.
The mother, Elizabeth McPherson was accused of abducting the child in Germany despite a Court Order and ending up in Grenada with the little one.
The state-controlled Child Protection Authority (CPA) in Grenada was approached by the International Social Service (ISS) of Germany requesting assistance in the matter in light of the fact that there were outstanding Civil arrest warrants against the child’s mother in Germany and the United States of America.
A battery of local lawyers were involved in the case that was heard by high court judge Justice Agnes Actie.
Among them was former Finance Minister Nazim Burke together with Omari Thompson for the Applicant which was the Child Protection body.
Attorney-at-Law Sasha Courtney who was instructed by Grenlaw Chambers appeared with veteran attorney Anslem Clouden for the First Respondent who was Elizabeth McPherson.
Also involved in the case was Brian Brandwein, Legal Attorney for father of the child Sebastian Gunther, as well as female attorney Linda Dolland and Chevaughn Spencer-Joseph, Solicitor General for the Attorney General’s Chambers.
As a public service, THE NEW TODAY reproduces in full the decision handed down by Justice Actie in the matter:-
[33] Counsel argues that the degree of connection to Germany has previously been detailed (nationality, home, school, grandparents, friends, language, and environment). In contrast, the Minor has spent a few months in Grenada (September to May), and, with the exception of her mother, had no connection or familiarity with anyone here. Notwithstanding the mother’s indication to the German Courts of travelling to Florida for work, and to this Court that she travelled for a funeral, she then left Florida after only two months and came to Grenada, after proceedings had been commenced against her in Florida.
The Minor’s links to Florida are the weakest of any jurisdiction in this case. Though born in the United States, she left it as an infant, made her home and schooling in Germany, and was present in Florida only as a brief and unlawful waypoint during her removal. So on points of nationality, language, residence, schooling and culture, Florida is the forum to which she is least connected, and the first respondent’s proposal to route her return through it cannot be justified on welfare grounds.
[34] Counsel alleges that Germany plainly applies welfare principles acceptable to this Court as the detailed order of the local Hanover Court of 22nd June 2025 illustrates the clear considerations of that Court in coming to its determination with respect to where the Minor should reside and expressly states that “in cases of conflicting interest, the child’s interest takes precedence” and “the required balancing must always be guided first and foremeost by the child’s welfare”. It is a Hague Convention case which is focused only on the question of the Minor’s return to Germany, and will apply that Convention to its deliberations. The Minor is five years of age and her expressed preference, while it may be noted, can carry little determinative weight at that age, particularly where for months she has been in the sole environment associated care and control of the abducting parent who admittedly cut contact with the left behind parent. This notwithstanding, the report of the CPA clearly states that the Minor’s “relationship with her father is characterized by warmth, physical affection and active shared engagement.”
[35] Counsel submits it is the second respondent’s evidence that he spent considerable time with the Minor prior to her unlawful removal from Germany, first living together from November 2023 to July 2024, then with frequent visitation until June 2025. Additionally, through the mechanism set out in Pierides, that is to say, a return supported by undertakings and a defined contact schedule, which preserves rather than severs the first respondent’s relationship with the Minor, the effect of a return to Germany on the mother may be limited.
The Court’s analysis
[36] In all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child and it is in its best interests to do so. Baroness Hale of Richmond cautioned against importing Hague Convention principles by analogy into cases where the Convention does not apply. At paragraph 30:
“…that there should be a ‘strong presumption’ that it is ‘highly likely’ to be in the best interests of a child subject to unauthorised removal or retention to be returned to his country of habitual residence so that any issues which remain can be decided in the courts there”.
[37] The House of Lords then cautioned that approach. They stated thus:
“That approach is open to a number of objections. It would come so close to applying the Hague convention principles by analogy that it would be indistinguishable from practice. It relies upon the Hague Convention concepts of ‘habitual residence’, ‘unauthorised removal’ and ‘retention’; it then gives no indication of the sort of circumstances in which this “strong presumption” might be rebutted…different approaches have been taken in different countries to the interpretation of the vital concept of habitual residence…”
[38] In deciding what is in the best interest of the child the court is required to take all the circumstances in the round. In this case, this court is placed in a very difficult situation in this balancing exercise which is required to be undertaken to address whether the minor should be returned to Germany or the USA to pursue the ongoing proceedings. The welfare principle is the paramount consideration; all other factors are secondary. The Court should not apportion blame between the parents, regardless of any alleged misconduct.
[39] In McKee v McKee, the proposition that in circumstances such as this, where an order of a foreign court exists, it need not be blindly followed. An independent judgment on the question must be formed, even though in doing so, it will permit the Court to give proper weight to the foreign judgment, but what is the proper weight will depend on the circumstances of each case.
[40] Buckley LJ in Re L (minors) stated to the effect that the action of kidnapping is just one of the factors to be taken into account by the Court and not the determining factor; each case must be determined on its particular circumstances and the welfare of the infant must always be the paramount consideration.
[41] By all accounts, the mother has been the primary caregiver of the Minor, a five-year-old girl. The Minor speaks fluent English, has lived in Grenada since September 2025, and attends school in an English- speaking environment. The Court interviewed the minor, who clearly expressed love for both parents but was reluctant to say whether she wished to return to Germany or to the United States. The CPA assessment report confirms that both parents show love and affection for the minor and maintain a cordial relationship when conducting joint visitation.
[42] The mother states that she always wanted the minor and father to have a meaningful relationship which is the reason she returned to Germany. However, she states there were repeated incidents of intimidation, emotional abuse, aggressive conduct and conflict between father and herself. She states that she became increasingly concerned about the minor’s emotional wellbeing and welfare while in Germany as the minor would always be upset, withdrawn or emotionally distressed.
[43] The mother states that she did not leave Germany out of disregard for the Court or the law. She states that her aunt died 24th June 2025. The court notes communication between the parties in relation to the said death of the aunt. The mother states that she was not personally served with any proceedings or documents in the United States relating to the Minor and that she only became aware when the proceedings had allegedly been commenced in Florida after the CPA became involved in Grenada and these proceedings were filed. This is evidenced in the orders made in the US court where the hearings had to be adjourned due to lack of service.
[44] Further, the mother states she did not immediately cut off communication between the minor and the father after leaving Germany. She states that telephone communication between herself and the father continued for a period of time, but she became increasingly concerned about the emotional impact the calls were having on the Minor. She states that she eventually travelled to Grenada because she has family support here which would create a safe and stable environment for them both..
[45] The House of Lords in Re J (A Child) stated that the length of time that the minor has stayed in each particular country may also be relevant. Baroness Hale observed that whilst a summary return may in some cases promote welfare, such a return is justified only because it serves the welfare of the individual child and not because any international obligation requires it.
[46] This court is faced with a situation where the minor has now, to some degree, established a life in Grenada. Counsel for the mother belatedly informed the court that both the mother and minor have obtained Grenada citizenship. However, the applicant has asked that she be permitted to return together with the minor to the USA, subject to such conditions as this court considers appropriate, so that any outstanding legal issues can be addressed there in an orderly and supervised manner.
[47] Each case turns on its own circumstances, so that a court that conducts a careful analysis of the facts and balances the relevant factors cannot be faulted. It has been held that a parent who deliberately removes a child from contact with the other parent, where the child’s welfare does not make such action necessary or reasonable, will generally be regarded as having acted contrary to the child’s welfare. The concealment of the minor’s whereabouts is also a relevant consideration and weighs against the mother in the present case.
[48] As it stands, the parents have joint custody of the minor with the father having the sole right to determine the child’s residence. The father has expressed, without prompting any action, his intention to request the withdrawal of both German and the European warrants of arrest. A report from the Hanover court states that the warrants will only be withdrawn if the father returns with the minor to Germany. The Hanover Public Prosecutor’s Office in Germany is prepared to apply to the competent court to lift the national and international arrest warrants against the first respondent and to remove the related search measures once it is officially notified that the alleged child abduction has ended and that the minor has returned to Germany. Such notification will be made when the father returns to Germany with the child and reports to a police station. It is also evidence that the father has applied for sole custody for the minor.
[49] The House of Lords at paragraph 40 of Re J (A Child) stated:
“The effect of the decision upon the child’s primary carer must also be relevant, although again not decisive. A child who is cared for by nannies or sent away to boarding school may move between households, and indeed countries, much more readily than a child who has always looked to one parent for his everyday needs, for warmth, for food, clean clothing, getting to school, help with homework and the like. The courts are understandably reluctant to allow a primary carer to profit from her own wrong by refusing to return with her child if the child is ordered to return. It will often be entirely reasonable to expect that a mother who took the risk of uprooting the child will return with him once it is ordered that he should go home. But it will sometimes be necessary to consider whether it is indeed reasonable to expect her to return, the sincerity of her declared refusal to do so, and what is to happen to the children if she does not.”
[50] The Court notes the ongoing proceedings in the United States. In those proceedings, the father filed an ex parte motion under the Hague Convention seeking injunctive relief, a warrant for physical custody of the Minor, a temporary restraining order, and an order requiring the mother and child to remain in the Southern District of Florida pending determination of the matter. The evidence also indicates that the father has since filed an application for sole custody in Germany.
[51] The Court accepts that, by commencing Hague Convention proceedings in the United States District Court for the Southern District of Florida, the second respondent submitted to that Court’s jurisdiction. Those proceedings remain pending. The German Court has confirmed the father’s right to determine the minor’s place of residence, although custody remains joint. The Court also notes that the present predicament arose from the first respondent’s flagrant breach of court orders, which has placed the Minor in a precarious position and led to her being concealed from her father. The Court accepts that these circumstances have had, and may continue to have, a psychological effect on the Minor.
[52] The Court accepts the evidence that the first respondent was outside the jurisdiction when the action was filed. The Court notes the order dated 21st November 2025, which directed service by email and at her last known address, as well as efforts to contact her by telephone to advise her of the scheduled hearing in December 2025. The matter was adjourned to facilitate service on the first respondent.
[53] After proof of service was established, a warrant was issued for civil contempt. The evidence indicates that an application has since been filed to lift the warrant, so that the first respondent may return to the United States to purge her contempt and defend the pending proceedings.
[54] The evidence also shows that the mother has provided the Minor’s continuous day-to-day care. The authorities make clear that, while the welfare of the child is the paramount consideration, the Court must assess that welfare in light of all the circumstances. Having regard to the Minor’s age, her gender, her lifelong care by her mother, and the substantial bond between them, the Court is not satisfied that it is presently in the Minor’s best interests to be returned to Germany. The Court also takes into account the father’s pending application for sole custody in Germany and the outstanding warrants of arrest. If those warrants were executed upon the mother’s arrival in Europe, the mother could be removed from the minor’s life, causing further emotional distress to the child. Accordingly, the court is of the view that taking everything into consideration, it is in the best interest of the Minor for the mother to take the Minor back to the USA for the continuation of the pending hearing in South Florida and so orders.
[55] For all the above reasons it is ordered and directed as follows:
1. Application by the CPA for the care order is granted as prayed.
2.The first respondent shall surrender all travel documents for herself and the Minor to the CPA, which will assist the first respondent to make immediate arrangements to travel to the USA with the Minor for the continuation of the proceedings in South Florida.
3.The CPA with the assistance of the Hon. Solicitor General’s Chambers shall assist in making all the necessary arrangements through the US consulate, if necessary.
4.Leave is granted for the US legal counsel for the parties to accompany their respective client or to make any necessary arrangement to facilitate the first respondent’s and Minor’s security clearance and safe entry on arrival in the USA.
5.The Minor shall remain in foster care until all the travel arrangements have been concluded.
6.The CPA shall make immediate arrangements for the minor, and the Solicitor General shall contact the respective consulates to obtain advice on the proper procedure for addressing the issues arising from the application filed by the CPA and the travel arrangements.
[56] The court wishes to thank the office of the Solicitor General and counsel for their submissions and assistance in this matter.
Agnes Actie
High Court Judge
By the Court
Registrar