An Application for an Order to Adopt A Child, Ym
| Jurisdiction | Cayman Islands |
| Judge | (Ramsay-Hale, J.) |
| Judgment Date | 03 December 2021 |
| Court | Grand Court (Cayman Islands) |
(Ramsay-Hale, J.)
Family Law — adoption — jurisdiction — Grand Court has jurisdiction to make adoption order in respect of child born in Philippines who had been habitually resident in Cayman Islands for six years with mother and stepfather — Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption applies only where child habitually resident in one contracting state is moved to another contracting state for purpose of adoption
Family Law — adoption — procedure — no decision by Adoption Board required for de facto adoption (i.e. when child already residing with applicants) and court need not consider Board’s views — Adoption of Children Act (2021 Revision), s.6 inapplicable
Held, granting the order:
(1) The court had jurisdiction in the circumstances where YM had been habitually resident in the Cayman Islands since 2015. The Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption only applied where a child habitually resident in one contracting state had been moved to another contracting state for the purpose of adoption in the receiving state. When the present application was made, YM was no longer habitually resident in the Philippines but was habitually resident within the jurisdiction of the court. YM had lived here with her only known parent and the stepfather for the last six years with the settled intention to remain here with her immediate family. YM was thoroughly integrated into the Cayman Islands. The court had jurisdiction to make orders for YM’s welfare, including an adoption order (paras. 35–40).
(2) In the case of de facto adoptions, such as the present case, where the prospective adopter already had the child in his or her care, s.6 of the Act (which concerned arrangements made by the Board) was not engaged as the Board had neither arranged the adoption nor delivered the child into the care of the adopters. The Board therefore had no decision to make and the court need not consider its views. The court rejected the suggestion that it did not have “original jurisdiction,” that is that unless an application had first been made to the Board no application could be made to the court. Section 9 of the Act gave the court the power to make adoption orders and the Rules stated that the application must be made by summons. That the Regulations provided that the application should first be made to the Board could not deprive the court of jurisdiction (paras. 76–78).
(3) The court granted the adoption order, on the day before YM’s 18th birthday. The application was in order. There were no s.10 restrictions on the making of the order as one of the applicants was the mother of the child, the child was lawfully in the Cayman Islands, and the applicants and the child were ordinarily resident in the Islands. The father’s consent was dispensed with as his identity was unknown. All requisite investigations and inquiries had been carried out and the information put before the court, including the requisite medical certificates, evidence of the adopters’ good character, evidence of their employment as well as such formal documents as copy birth certificates, passports and marriage certificates. The reports showed that YM was well settled and thriving in the care of the mother and stepfather and recommended that the adoption order be made. The courtwas satisfied that the order would be for the welfare of the child. The court gave due consideration to YM’s expressed desire to have the same surname as the rest of her family and to be legally the child of her stepfather. The court considered whether adoption would be too late to have much benefit for YM, who was approaching majority, and whether it might be intended to circumvent immigration law. There were plainly substantial benefits to an adoption, even close to the age of a child’s majority. This case bore none of the hallmarks of a cynical adoption by the Caymanian spouse of a biological parent to secure immigration benefits for a child. This application was made in respect of “a child of a family” as described in the Children Act, who had lived with the applicants and her younger sister in the Cayman Islands since 2015. There was no reason to doubt that this application was a genuine expression of the stepfather’s desire to formalize his de facto adoption of YM by making her legally his child, so that she should be as much a part of his family as her younger sister. The important post-majority benefits for the child including the attendant legal status and rights and the social and psychological benefits of truly belonging to a family were particularly acute in this case (paras. 79–92).
(1)A (An Infant), In re, [1963] 1 W.L.R. 231; [1963] 2 All E.R. 531, considered.
(2)Appeal from Adoption Bd.’s Decision, In re, 2002 CILR 325, considered.
(3)R, In re, 2014 (2) CILR 282, considered.
(4)R (Adoption), In re, [1967] 1 W.L.R. 34; [1966] 3 All E.R. 613, considered.
Adoption of Children Act (2021 Revision), s.9: The relevant terms of this section are set out at para. 7.
s.14: The relevant terms of this section are set out at para. 8.
Adoption of Children Regulations (2021 Revision), reg. 5: The relevant terms of this regulation are set out at para. 12.
An application was made for an adoption order.
The mother was a Filipino national. Her child (“YM”) had been born in 2003. YM was registered with her mother’s maiden name. The father’s identity was unknown. In 2006, the mother moved to the Cayman Islands to work, leaving YM in the care of family members in the Philippines. In 2009, the mother met a Caymanian (“the stepfather”) and they married in 2013. YM moved to the Cayman Islands in 2015 to live with her mother and stepfather, and her baby sister. YM was now settled in the Cayman Islands and would turn 18 in November 2021.
The mother and stepfather applied for an adoption order. YM, who had not had a father until her de facto adoption by the stepfather in 2015, expressed the wish to become his child in law and to have the same family surname.
The power of the court to make adoption orders was set out in s.9 of the Adoption of Children Act (2021 Revision). Section 5 of the Act provided that it was the Adoption Board’s duty to arrange adoptions and the Board must receive applications from parents, guardians and adopters. It also provided for the Board to carry out all necessary inquiries and prepare reports for the consideration of the court. The procedure of the Board was regulated by the Adoption of Children Regulations (2021 Revision).
The mother had attended at the Department of Children and Family Services to submit the adoption application in June 2021. The applicationwas returned to her and she was advised that the Board required 18 months to deal with applications for adoption, by which time YM would have turned 18 and could no longer be made the subject of an adoption order. The applicants followed advice to apply directly to the court.
The chairman of the Board considered that, because YM and her biological parents were Filipino nationals, the application was governed by the laws of the Philippines and that neither the Board nor the court had jurisdiction over YM.
R. Whittaker-Myles for the applicants;
The Adoption Board was not represented by counsel.
1 RAMSAY-HALE, J.:
Introduction
SB, who I shall hereinafter refer to as “mother,” is a Filipino national who, at age 20, had a child, YM (“the child”), who was born on November 17th, 2003. Mother registered the child in her maiden name. The father’s name then, as now, is unknown. Like so many mothers, she was anxious to improve her personal and financial circumstances so that she could bettermeet the child’s needs. She sought and found employment in the Cayman Islands and, in 2006, she left the child behind in the Philippines in the care of her sisters.
2 In 2009, she met MB, a Caymanian, who I shall refer to as “the stepfather.” In March 2013, the two got married. Together they continued to meet all of the child’s financial needs in the Philippines. They remained in daily contact with her through telephone calls, Facebook and video-chats. In 2015, they travelled together to the Philippines and the child was finally able to meet her stepfather, who she already called “Dad,” in person.
3 It was always their intention that the child would join them in the Cayman Islands and when, later in that year, mother discovered she was expecting, they made immediate plans for the child to come to the Islands in time for the arrival of her baby sister. In November 2015, mother travelled to the Philippines and returned with the child in December 2015 who has remained here ever since as a part of what is a close and loving family. The child is currently in the sixth form at a private high school in the Islands where she is performing well academically and socially and is fully integrated into the Caymanian community.
4 Mother and stepfather (together, “the applicants”) made several earlier efforts to complete an application to adopt the child to make her legally the child of her stepfather. Those early efforts were derailed for divers reasons but in August of this year, the applicants made an application to this court for an adoption order.
5 The child, who had never had a father until her de facto adoption by her stepfather in 2015, expressed her wish to become his child in law and have the same last name as everyone else in their small family. On November 16th, 2021, the day before the child turned 18, the court made an adoption order for reasons which I now put in writing, as well as my reasons for an interlocutory ruling on the issue of the jurisdiction of this court to make an adoption order for a Filipino national.
The law
6 The statutory framework for adoption of children is...
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