Court/Judicial body: Supreme Court of Bermuda (Divorce Jurisdiction)
Date: 25 September 2009 CRC
Provisions: Article 9: Separation from parents
Domestic provisions: Children Amendment Act 2002, sections 18D (the rights of a child are not to be affected by the fact that their parents are not married), 36B-F (concerning child custody and access, which are to be determined based on the child’s welfare), and 36.1B-E (concerning child support obligations)
Background: Pursuant to a court order following a divorce, parents were granted joint custody of their one child, with care and control given to the mother and “generous and liberal access” given to the father. Subsequently, the mother became ill, causing her to move overseas for treatment and leave the child in Bermuda with the father, during which time the child appeared to strive and improve educationally. Upon her return, the mother retook custody of the child and refused additional access to the father, and occasionally withheld his existing access. The father then filed an application to the court requesting care and control of the child, with reasonable access to the child for the mother. The court ordered joint care and control of the child with access and maintenance split equally between the parents. The mother filed an application for appeal, arguing that the court failed to take into account that the paramount consideration is the welfare of the child as there was no evidence before the court of the immediate impact the joint care order would have upon the child.
Issue and resolution: Child custody and access. The Court refused the mother’s application.
Court reasoning: The Court found that there was ample evidence, including substantial affidavit evidence, before the court upon which it could and did base its decision of the joint care order. The Court observed that: 1. reasonable access is a right of the child rather than of any parent and should not be denied except in reasonable or exceptional circumstances; 2. equal access benefitted the child and removed or reduced the opportunity for abuse or denial of access by either parent; and 3. each parent is under a duty to provide reasonable maintenance for the child to the extent that each parent is reasonably able to do so.
Excerpt citing CRC and other relevant human rights 8. … In all the circumstances the court, applying the principle that reasonable access is a right of the child rather than of any parent an ought not be denied except in reasonable or exceptional circumstances, felt that an order for joint care and control with a defined access order which in effect shared the child equally between the parents, was most reasonable [FN1: Children Amendment Act 2002. S 18D; 36B. 36C-36F. UN Convention on the Rights of the Child. Art. 9]. This benefitted the child and removed or reduced the opportunity for abuse or denial of access by either parent due to their acrimony as evidenced by their affidavits and by their admitted inability to communicate.
Notes: This summary is of the decision to refuse the mother’s application for appeal. It does not appear that the lower decisions have been published.
CRIN comments: CRIN believes this decision is consistent with the CRC. Under Article 3, the best interests of the child must be a primary consideration in all actions concerning children, including custody decisions. In reaching these decisions, the State must respect the child’s right under Article 9 to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. In this case, the court deemed a joint care order to be in the child’s best interests, recognising that increased access to the father was beneficial to the child, and that both parents brought unique qualities to the benefit of the child.
Citation:  SC (Bda) 44 Div (25 September 2009)
Link to full judgement: https://www.gov.bm/sites/default/files/SC0909-Dayna-K-Sampson-v-Corey-A-…