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 pubic service, THE NEW TODAY reproduces in full the decision handed down by Justice Actie in the matter:-
JUDGMENT
[1] ACTIE, J.: These proceedings were commenced by the Child Protection Authority (hereafter called “CPA”) seeking a Care Order pursuant to sections 25, 49 and 56 of the Child (Protection and Adoption) Act.
[2] The Minor was abducted by her mother from Germany to the United States and thereafter to Grenada in breach of a court order in Germany giving the father the sole discretion to determine the residence of the Minor. The CPA was informed that there were outstanding Civil arrest warrants against the child’s mother in Germany and the United States of America. The CPA was contacted by International Social Service (hereafter called “the ISS”) Germany requesting assistance.
[3] The child’s mother is a citizen of the United States of America, and the father is a German citizen. They are the unmarried parents of the 5-year-old Minor child, who was born in the United States of America on the 16th February 2021. Until the mother’s pregnancy, the parents lived together in Germany. Before the birth of the Minor, the mother decided to return to Florida USA where she lived with her mother. The Minor’s father also joined her and lived in the maternal grandmother’s household from May to August 2021. The mother and child remained in the USA and returned to Germany in November 2023 and lived with the child’s father until July 2024 and then moved to her own apartment with the Minor. In 2025, the mother decided to return to USA to take up employment and applied to the Hanover Court, Germany for an order to determine the right of residence for the Minor.
[4] The Hanover Court surmised that the Minor has a good loving relationship with both parents especially her mother whom she has been with from birth. The court acknowledged that the mother was the main caregiver but that the child had a very close bond and regular contact with the father. The Hanover Court on 22nd June 2025, after weighing all the circumstances, ordered that the parents share joint custody except the right to determine residence was granted solely to the father. The order prohibited the mother from changing the residence of the child even temporarily in such a way that she will take the child abroad and a border restriction prohibiting her from taking the child outside of the border of the Federal Republic of Germany. The order was upheld by the court of appeal on 21st August 2025.
[5] It is the evidence that the mother, in breach of the order, travelled out of Germany to the USA and then to Grenada. On 12th September 2025, the child’s father filed an exparte motion in the Southern District Court, Florida seeking the Minor’s return to Germany pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. The motion seeks an order that the mother remains in the Southern District of Florida pending the resolution of the action, and the relinquishment of the child’s passport to the State’s Marshall. A warrant of arrest was issued to hold the mother in custody until she purges her contempt and brings the child before the court.
[6] The evidence establishes that the Minor is a child in need of care and protection within the meaning of Section 25 of the Child Protection Act, having regard to the mother’s conduct in removing the child from her established environment, relocating her across multiple jurisdictions, disregarding lawful judicial processes, concealing her and exposing her to circumstances of instability and uncertainty likely to cause harm.
Whether the minor should be returned to Germany
[7] The court is mindful that the pending application filed in the USA Court is made pursuant to the International Child Abduction (HCCH 1980 Child Abduction Convention). The ISS requested the assistance of the CPA in order for the minor to be repatriated to Germany.
[8] Grenada is not yet a member of HCCH 1980 Child Abduction Convention, neither is there domestic legislation which seeks to protect children from wrongful removal and retention across international boundaries. However, the jurisprudence clearly confirms that this Court has jurisdiction, notwithstanding that Grenada is not a contracting State to the Hague Convention. The authorities are replete that there is no automatic rule requiring summary return. Rather, the authorities emphasize that the Court must undertake a careful welfare assessment to examine the practical realities of the proposed return and compare the capacity of the competing jurisdictions to resolve the issues affecting the child before making such an order.
[9] The leading authority in the House of Lords decision in Re J (A Child)1 where Baroness Hale gives much guidance on the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children. Both treaties were motivated by the belief that it is in the best interests of children for disputes about their future to be decided in their home countries, and that one parent should not be able to take a child from one country to another, either in the hope of obtaining a tactical advantage in the dispute, or to avoid the effects of an order made in the home country. Instead of deciding the dispute itself, therefore, the country to which the child was taken agreed that with very few exceptions it would either send the child back or enforce the order made in the home country. This necessarily meant that the receiving country might on occasion have to do something which was not in the best interests of the individual child involved. The States which became parties to these treaties accepted this disadvantage to some individual children for the sake of the greater advantage to children in general. Parents would be deterred from moving their children across borders without consent. States which sent other countries’ children back could expect that other States would send their own children back in return. The obligations were mutual and reciprocal.
[10] In relation to non-Hague Convention countries, Baroness Hale clarified the legal principles governing international child abduction and summary return to non-Hague Convention countries. She states that there is no presumption that a child should be returned merely because another country has previously exercised jurisdiction. At paragraph 22, it was stated that there is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it. The child’s welfare remains the Court’s paramount consideration when considering returning a child to another jurisdiction.
[11] The court referred the parties to the High Court decision of Reifer J in Pierides v Cole. In that case the parties were a Cyprus National and British National respectively. The marriage broke down in 2012, and the parties divorced in 2013. The Court of Cyprus prohibited both parties from taking the children out of the jurisdiction of the Republic of Cyprus. The mother in contravention of the Order of the Court in Cyprus, and without the knowledge and consent the father left the Republic of Cyprus on the 20th December 2016 to Barbados and enrolled them as pupils, all before 12th January 2017, less than three (3) weeks after her departure from Cyprus.
[12] The court in that case recognized that at the time Barbados was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, and that Barbados had no reciprocal agreement with Cyprus with respect to the enforcement of orders made in either jurisdiction. The court was of the view that in the United Kingdom, the case would have been treated as a Hague Convention case, and characterized as a wrongful retention of the children, kidnapping or even abduction. The mother although trying to mask her location allowed the children daily telephone access to their father, as well as access by video conferencing and Skype before he verified their location and arrived in Barbados.
[13] Reifer J. held that the circumstances formed part of an ill-conceived plan to disappear with the children in order to gain leverage or a tactical advantage in renegotiating the mother’s access arrangements with her former husband. The welfare of the children had become a pawn in furtherance of that objective. The Respondent’s conduct was designed to achieve the outcome preferred by the mother, rather than one selflessly determined to be in the children’s best interests. In that case, the father had been the primary caregiver since November 2013, pursuant to orders of the Cyprus courts. He had moved into his parents’ home, where his parents, his sister, and domestic help assisted with the children’s care. In July 2016, he remarried, and his new wife became an important part of he children’s care arrangements. The Court gave significant weight to the children’s need for a meaningful relationship with both parents. A warrant had been issued for the mother’s arrest, and she faced the possibility of incarceration. Having considered all relevant matters and the supporting authorities, the Court directed that the minor children be returned forthwith to Cyprus in the custody, care and control of their father.
[14] The parties were directed to file submissions in respect of the outcome of the Barbados case which bears a stark reality to the case before this court.
Submissions of the first respondent
[15] Mr. Sasha Courtney, counsel for the first respondent, submits that the authorities support a cautious, welfare-driven approach, rather than an immediate return based solely on the existence of foreign orders and asks that the Court carefully consider the pending Hague proceedings in Florida before making any order for the Minor’s return to Germany.
[16] Counsel states that the German proceedings have already concluded and determined the issue of residence. Appeals against those orders have been exhausted, with the second respondent now having the sole right to determine the Minor’s place of residence. Consequently, if the first respondent and the Minor are returned directly to Germany, they are not returning so that the German Court may determine where the Minor should live. What now awaits the mother in Germany are the consequences of those completed proceedings, including the enforcement of existing orders and the outstanding arrest warrants.
[17] Counsel argues that the very purpose of the Hague Convention is to provide a specialized legal framework through which allegations of international child abduction are determined. Germany and the United States are both contracting States to the Hague Convention. By becoming Contracting States, they have accepted that allegations of wrongful removal should ordinarily be determined through the specialized Hague process.
[18] Counsel alleges that the second respondent elected to invoke that process, and both respondents are now represented by attorneys in Florida. The second respondent has unequivocally stated, both in her affidavits and through Counsel, that she is willing to: return immediately to Florida with the Minor, to submit to the jurisdiction of the United States District Court, to surrender passports if required, and to comply fully with every order made by that Court. She has even expressed her willingness for arrangements to be made through the United States Embassy to facilitate their safe return to Florida.
[19] Counsel argues that a specialist court, exercising Hague Convention jurisdiction, is already seized of the precise issue presently confronting this Court. That forum was chosen by the father himself. In those circumstances, the first respondent respectfully submits that this Honourable Court should be slow to determine indirectly the very issue already before the United States Court.
[20] Counsel is of the view that the Pierides v Cole in some regard, mirrors the facts of the case at bar, ultimately culminating with the return of a minor to Cyprus after that minor was unlawfully removed in circumstances where the mother was not the primary caregiver and there was a court order preventing such removal. He states that the decision borrows from Baroness Hale in Re J (A Child) and lists the factors that this court ought to consider namely: the degree of connection of the child with each country, the length of time she has spent in each country, the questions of different legal concepts of welfare, the wishes and feelings of the child and the effect of the decision on the child’s primary caregiver as this may impact the welfare of the child. Further, the central theme running throughout Pierides is that the Court was not applying the Hague Convention by analogy nor enforcing a foreign order as a matter of course. Rather, Reifer J. repeatedly emphasised that the Court was required to undertake its own independent welfare assessment.
[21] Counsel avers that at paragraph 48, the learned Judge accepted that the removal of the children in breach of a foreign court order was an important consideration, but not the determining consideration. That principle is reinforced at paragraph 50, where the Court adopted the following statement: “This Court should not condone the flouting of orders of courts of other jurisdictions… in the last resort it is the best interests of the children that fall to be determined and the breach of a court order is only one consideration.” At paragraph 99, adopting the reasoning of Baroness Hale in Re J (A Child), the Court stated: “…Summary return should not be the automatic reaction…”
[22] However, counsel avers that Pierides v Cole is readily distinguishable on both its facts and procedural posture as the children’s welfare was driven by a number of factual considerations which are absent in the present case.
[23] First, the children in Pierides had lived virtually their entire lives in Cyprus before their removal. They were born in Cyprus in 2010, remained there until December 2016, spoke the local language, attended school there and had established their social, educational and cultural lives within that jurisdiction. It was therefore unsurprising that Reifer J. regarded Cyprus as the country with which they had the closest and most enduring connection.
[24] Counsel contends that the circumstances in this case at bar are materially different. The Minor was born in the United States, lived there until November 2023, resided in Germany for approximately one and a half years, and has now lived in Grenada for almost a year. Most of the Minor’s life has therefore been spent outside Germany. Her primary language is English and, applying the common-sense approach advocated by Baroness Hale in Re J (A Child), it cannot properly be said that the Minor has spent her formative years in Germany.
[25] Secondly, in Pierides, the Cypriot Court had removed the mother as the children’s primary caregiver as early as 2013. By the time the Barbadian proceedings commenced, the father had already assumed that role. The present case is entirely different as the mother has remained the Minor’s primary caregiver throughout her life. Even during the period spent in Germany, the evidence establishes that the father never assumed day-to-day responsibility for the Minor’s care.
[26] Thirdly, Reifer J. attached importance to the fact that the mother retained the ability to continue litigating in Cyprus and appeal if dissatisfied with the outcome. That consideration mirrors the observation of Baroness Hale in Re J (A Child), that it is relevant to ask whether the parent alleged to have wrongfully removed the child will have a meaningful opportunity to be heard in the receiving jurisdiction.
[27] The appeal process in Germany has been exhausted. The issue of Minor’s residence has already been finally determined. Consequently, the Minor will not be returning to Germany to litigate where she should reside; she will be returning to the enforcement of orders already made, together with the outstanding arrest warrants referred to in the evidence.
[28] Fourthly, the speed with which the proceedings were commenced in Pierides was itself an important consideration. The children were removed on 20th December 2016 and the father’s application was filed in Barbados on 11th January 2017, less than three weeks later. In the present case, however, a considerable period has elapsed since the Minor left Germany. During that period, father commenced Hague Convention proceedings before the United States District Court, those proceedings remain active and the mother has retained counsel in Florida. The Minor has continued to establish her life in Grenada which has significantly altered the factual landscape.
Submissions of the second respondent
[29] Ms. Linda Dolland, counsel for the second respondent, submits that Pierides which is almost identical, or at the very least highly analogous to the present matter, was decided upon the correct welfare- paramountcy principles which govern this Court’s inherent jurisdiction as parens patriae. Upon materially the fact matrix that is now before this Court, the Barbadian Court ordered the summary return of the children to the jurisdiction of their habitual residence. Pierides is therefore of direct assistance to the Court, and supports the return of the Minor, Zoe, to Germany, her place of habitual residence.
[30] Counsel contends that the father invoked the wardship and inherent jurisdiction of the Barbadian Court and sought the children’s summary return to Cyprus. Prior to the children’s removal from Cyprus, the Cypriot Court had been extensively involved in the children’s affairs; there had been several hearings, welfare involvement, reporting, and a Consent Order. The mother resisted return on the basis that she feared she would not be treated fairly in Cyprus, that she had safety concerns, and that an arrest warrant had been issued against her there such that she faced possible incarceration if she returned.
[31] Reifer J. applied the welfare principle as the first and paramount consideration and adopted the framework of Baroness Hale in Re J (A Child)3. Notwithstanding the mother’s fears and the outstanding warrant, the Court ordered the summary return of the children to Cyprus.
[32] In Pierides, the mother allowed the children daily telephone access to their father, as well as access by video conferencing by Skype. In the instant case, the first respondent cut off communication with between the Minor and the second respondent. Reifer J. applied the factors enumerated by Baroness Hale in Re J (A Child) namely the degree of the child’s connection with each country; the length of time spent in each; whether the foreign court applies acceptable concepts of welfare; the child’s wishes and feelings, needs and the capacity of the adults to meet them, together with the effect of change; and the effect of the decision upon the primary caregiver.
TO BE CONTINUED