Re Y
| Jurisdiction | Cayman Islands |
| Judge | (Williams, J.) |
| Judgment Date | 15 January 2014 |
| Court | Grand Court (Cayman Islands) |
| Date | 15 January 2014 |
(Williams, J.)
D. McGrath and C.J.C. Fee for K;
Ms. C.J. Bridges for A;
Ms. S. Brooks-Hurst for the children.
(1) CMS v. RGS, Grand Ct., September 9th, 2013, unreported, referred to.
(2) F (A Minor) (Child Abduction), Re, [1992] 1 FLR 548; [1992] 1 F.C.R. 269; [1992] Fam. Law 195, followed.
(3) Practice Direction (Family Proceedings: Representation of Children), [2004] 1 W.L.R. 1180; [2004] 2 All E.R. 459; [2004] 1 FLR 1188; [2004] 2 F.C.R. 124, applied.
(4) Practice Direction (Minor: Psychiatric Report) (No. 2), [1985] 1 W.L.R. 1289; [1985] 3 All E.R. 576, applied.
(5) R. (Minors) (Wardship: Jurisdiction), ReFLR(1980), 2 FLR 416; 11 Fam. Law 57, applied.
(6) R. (PM) (An Infant), In re, [1968] 1 W.L.R. 385; [1968] 1 All E.R. 691, applied.
(7) S (Infants), In re, [1967] 1 W.L.R. 396; [1967] 1 All E.R. 202, applied.
(8) T (A minor) (Child: Representation), In re, [1994] Fam. 49; [1993] 3 W.L.R. 602; [1993] 4 All E.R. 518; [1993] 2 FLR 278; [1993] 2 F.C.R. 445; [1993] Fam. Law 568, referred to.
Children Law (2012 Revision), s.7:
‘(3) A parent who has parental responsibility for his child may appoint another individual to be the child”s guardian in the event of his death . . .
(7) Where-
(a) on the death of any person making an appointment under subsection (3) . . . the child concerned has no parent with immediate parental responsibility for him . . .
the appointment shall take effect on the death of that person.’
s.12(4): ‘The following persons are entitled to apply to the court for any section 10 order with respect to a child-
(a) any parent or guardian of the child . . .’
Family Law-children-care and control-court may make order incompatible with deceased parents” wishes if in child”s best interests-when wishes expressed in will and validity of will disputed, court to refuse to determine validity if not crucial to deciding child”s best interests-entitled to examine extraneous evidence to ascertain intention
Family Law-children-parental responsibility-if child born under surrogacy arrangement, birth mother retains parental responsibility over child unless commissioning parents adopt child-testamentary appointment of guardian under Children Law (2012 Revision), s.7(7) ineffective if birth mother retains responsibility, even if had no other involvement with child
Family Law-children-ward of court-appropriate for child to be made ward of court if uncertain who has parental responsibility for child-wardship entitles court to decide issues raised between parties, elect course not advocated, and make appropriate orders
The respondent (K) made an application for his 8-year-old half-siblings (X and Y, together ‘the children’) to be placed into his care and control.
F, an American and Jamaican national, was married to W, with whom he had an adult son, K. F and W became estranged from K and later entered into a surrogacy agreement with BM. The resulting children, X and Y, were genetically related to F but not to W and there was nothing to show that W had legally adopted them. The children lived in Cayman with F, where they were largely cared for by U (F”s cousin) and their nanny, N. F”s sister, A, who lived in the United States, frequently visited them in Cayman and it was initially planned that, in the case of F and W”s death, she would become the children”s guardian and administer F”s estate. F executed a number of wills (and various other estate-planning documents) which were to this effect. These were witnessed by F”s property manager, NC, who was also on the board of directors of a number of F”s companies.
After W died, and shortly before he died, F executed several documents which removed NC from the board of directors of each of his companies and replaced him with A. After F died, NC produced a will allegedly made by F shortly before his death which stated that K would be the children”s
primary guardian and A their secondary guardian. A was informed that, under the will, she had nothing further to do with the estate. She contested the authenticity of the will (and two handwriting experts concluded that the signature had been forged) and, as a result, probate was not granted. K obtained a prohibited-steps order preventing any person from removing the children from the Cayman Islands without the court”s permission, but A”s husband, H, flew the children to the United States before it was served on her.
K brought an ex parte application for the court to award him primary care and control and to order that the children should return to live in Cayman under the care of U and N until he could move from Florida with his family to live with them. K did not, however, disclose that the contents of the will were under dispute and also minimized the role which A had played in the children”s life. The court questioned whether BM still had any parental responsibility for the children and, accordingly, what orders it was entitled to make. It concluded that it would make the children wards of court and granted K”s application on the grounds that, on the evidence before the court, the children had lived in Cayman for several years; had several friends in the jurisdiction; were established at a local private school; and that it was in their best interest to remain in familiar surroundings.
A brought an application for that order to be discharged and for a stay of all proceedings under the ex parte order until a scheduled hearing, submitting that K had failed in his duty of full and frank disclosure. The immediate return of the children, and the placing of them into K”s care, was stayed, but A was still required to return them to Cayman to allow evaluation by a social worker. The court also appointed a guardian ad litem and an attorney for the children. Shortly before the date appointed for their return, however, A sent a letter to the court requesting that the children be assessed in the United States, but this letter did not make it clear that permission was being sought for the assessment to take place prior to the hearing. A did not return the children to the jurisdiction, alleging that she was being harassed by K and that she should not be required to return to the jurisdiction for the assessment. Separately, she also presented a petition to a US court for the appointment of a temporary guardian-although she failed to disclose the Cayman proceedings to that court. As part of the US proceedings-which were not scheduled to be heard until after the conclusion of the present application-A”s attorneys referred the children to a child psychologist, who found that they wished to live in the United States with A. The children also told the psychologist that K was a ‘bad’ man who wanted to ‘trap’ them so that he could gain access to F”s money.
The guardian evaluated A and H, K and his family, and the children in the United States. She found that the children were very attached to A and H, but had almost no knowledge of K and his wife. She further found that, although both homes were very child friendly, the children greatly preferred living with A and H. The guardian further spoke with, inter alia,
U and N, who informed her that the children were very close to A but did not know K. She also found that F had intended the children to remain living in Cayman, and that they be raised in the Catholic faith in a Catholic school, but that, whilst the children had enjoyed living in Cayman and would miss their school and friends, they told the guardian that, if they could choose, they would rather live in the United States with A and H. The guardian concluded that it was in the children”s best interests that they remain with A and H in the United States.
After the guardian”s visit, A applied for the order to return the children to Cayman to be placed in K”s care to be dismissed, and for a further order that the children be placed in her and H”s care.
A submitted that K had failed to inform the court about the controversy surrounding the will and had created a false impression about the parties” involvement in the children”s lives. F”s previous behaviour and estate planning showed a clear intention that A was to be responsible for both his estate and his children. The new will represented a drastic change of position, had been identified as potentially fraudulent and benefited NC, in whose office it had been found. It was therefore of questionable validity and the court should not assume that it represented F”s wishes. Although F wished the children to remain in Cayman, the only reason that A wished now to remove them to the United States was because of the harassment by K and it was in the children”s best interests that they be allowed to remain in the United States with her. There was also doubt about the immigration status of the children, U, N and K and it might not be feasible for any of them to remain in Cayman. Further, as the children did not know K-and there were concerns that K”s motivation for obtaining care and control of the children was to enable him to have access to F”s estate-it was in their best interests to be in a loving and familiar home, particularly after the death of their father.
K submitted in reply that the latest will made it clear that F”s wishes were for him to have care and control of the children. Under K”s care, the children would remain in Cayman and K would move with his family to live there with them. This would provide a strong continuity for the children, particularly as they would remain in contact with U and N, who had functioned as their primary carers whilst F was alive. A had also failed to make full and frank disclosure in the US proceedings and had deliberately disobeyed several orders of the Grand Court. She had therefore shown minimal regard for the authority and standing of the court and should not be entrusted with the children. The...
To continue reading
Request your trial