When a child is reported kidnapped, there is usually some nefarious third party involved, who is seeking to recover a ransom for the child's safe return. However, in Family Law, the word has a much wider definition. 'Kidnapping' consists of the removal of the child by one parent, by stealth or fraud, from a jurisdiction in which he has a settled home, to another jurisdiction.

In this era, where dual nationality is more commonplace, the issue of kidnapping has arisen more frequently in our local court. In the usual case, the child is taken to Jamaica on vacation by one parent who, at the end of that stay, decides to retain the child in Jamaica. The parent who retains the child in Jamaica usually then seeks orders for custody and to prevent the other parent from removing the child from Jamaica.

Typically, the other parent responds to that application by objecting to the local court considering the issue of custody by stating that there is a jurisdiction which is more appropriate for hearing the matter. This parent will usually argue that the local court should order the return of the child to that other jurisdiction.

Two fairly recent decisions of the Jamaican Court of Appeal had to explore the issues of kidnapping and the appropriate jurisdiction to consider the application for custody. The cases are Panton v Panton and Forrester v Forrester.

In the Panton case, the court did not even have to determine whether the child had been kidnapped, because it was held that the central issue for consideration (the welfare of the child), favoured his return to Atlanta. This was because the child was to have had a more substantial connection to Atlanta than to Jamaica.

The Forrester case had a different result. The children had been living in California, but came to Jamaica for an extended visit with the consent of both parents. While in Jamaica, the mother formed the intention to retain them in Jamaica and made an application to the Supreme Court for custody and to prevent the father from removing them from Jamaica.

Based on the evidence, the court found that the children had not been kidnapped by their mother, although their habitual residence was in California. The fact that they had spent a considerable portion of their short lives in Jamaica during the numerous visits made to the island, were very attached to their mother (the primary caregiver) and had been enrolled in Jamaican schools during their extended stay, were some of the factors which weighed heavily in support of the court's finding that their interest would be better served by hearing the application for custody in Jamaica.

Although kidnapping was not central to the findings of the court in either the Forrester or Panton case, it is clear that a parent may be found to have 'kidnapped' his or her child.

Sherry-Ann McGregor is an attorney-at-law/mediator with the firm Nunes, Scholefield, DeLeon & Co. Send comments & questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.