Ar and Nr

JurisdictionCayman Islands
JudgeHon. Justice Richard Williams
Judgment Date10 October 2014
CourtGrand Court (Cayman Islands)
Docket NumberCAUSE NO. FAM 192 of 2014
Date10 October 2014
In the Matter of AR and NR
[2014] CIGC J1008-2
Before:

Hon. Justice Richard Williams

CAUSE NO. FAM 192 of 2014
IN THE GRAND COURT OF THE CAYMAN ISLANDS FAMILY DIVISION
HEADNOTE

Adoption of female siblings by step-father married to biological mother — Definition of child in adoption proceedings — Effect of the Adoption of Children Law, 2013 (Definition of ‘Child’) (Commencement) Order 2014 — Referring to Hansard in order to understand amendments in legislation — Factors to be taken into account when child is reaching the end of minority by the time of the adoption hearing, including benefits that will accrue after majority (Re D (A Minor) (Adoption Order: Validity) 1991 2 FLR 66 [1991 2 FLR 66]) —Effect of adoption order made in the Cayman Islands on prior orders made in the Family Courts in the Philippines— Dispensing with the requirement for a biological parent to attend the adoption hearing (Rule 7 Adoption of Children Rules) — The importance of serving the Respondents (as defined by Rule 5 (2) Adoption of Children Rules) with the Notice of hearing and giving them sufficient time to prepare for and attend the adoption hearing — Procedural suggestions to promote efficient case management of applications for adoption made to the Adoption Board in order to minimise delay.

EX TEMPORE JUDGMENT
Background
1

This is an ex tempore ruling and will not read like a formal written judgment. Having regard to the issues involved in this case and the urgency for orders, I felt it important to give an immediate decision and to provide the parties with the reasons why I have made that decision. Transcripts of the ruling will be anonymised and provided to the parties.

2

This matter concerns AR a 16 year old female born on 15 October 1996 and NR a 15 year old female born on 6 November 1998.1 They were both born in Manila, the Philippines and possess Filipino nationality. The children are the children of the marriage of their biological mother AB and their biological father RDR. Their parents separated in 2007 and their marriage was annulled on 3 October 2008 by the Regional Trial Court of Malabon in the Philippines. RDR was awarded sole custody of the children. AB has informed the Court that she was unaware of those proceedings until served with the final orders.

3

On 6 February 2010 AB married AJB2, a Cayman Islands national. She had been living in the Cayman Islands since 2006.3 AB is aged 40 and AJB is aged 37, so both are over 25 and under 65 years of age.4 They are both domiciled in the

Cayman Islands.5 I hope that they do not find me discourteous if, for convenience sake, I now refer to them collectively as the adopters.
4

On 11 May 2010 the Regional Trial Court in Taguig City, Philippines granted a temporary protection order to AB. On 31 May 2010 AB received a letter from RDR in which he relinquished his rights of custody over the children, transferring the same to AB. When the matter came back before the Court on 5 July 2010 the temporary protection order was made permanent. The Court refused AB's motion, in which she sought custody of the children, on the basis that it did not have the jurisdiction to interfere with the decision of a court of concurrent jurisdiction which had already ordered in 2008 that the custody order be awarded to RDR. Although this technically meant, and still means, that the custody order remains in place, the face of the order also noted that RDR did not object to AB's‘continuous care of the minor children.’ The order also reflected RDR's then objection to AB's intention to bring the children to the Cayman Islands without his consent. If an adoption order is made today, the children being habitually resident in the Cayman Islands, that will supersede the orders made in the Philippines.

5

AB took the children to the Cayman Islands in August 2010, and ever since they have resided with her and AJB who has cared for them in the role of step-father. On 15 July 2010 AB was granted a Residency and Employment Rights Certificate

through her marriage and the children were granted residency as her dependents. On 11 September 2014 the Chief Immigration Officer granted written permission for both children to enter and remain in the Islands for the purposes of adoption proceedings.6
6

On 26 February 2013 the adopters, desirous of adopting the girls, submitted their application to the Adoption Board (‘the Board’) using Form A.7 Following discussions with the Board, an Adoption Inquiry Form dated 22 January 2013 was provided by the adopters. The Application Form A was dated 30 January 2013. It highlighted the urgency to have the matter heard before October 2013 and requested that the requirement for the consent of RDR be dispensed with. The level of the importance of the request for a timely progression of the application has been vividly illustrated by the predicament that this Court and the children found themselves in on day one of this hearing on 30 September 2014.

7

For the purpose of this hearing I am willing to treat that initial application to the Board as the ongoing application (‘the Application’) for adoption for the purposes of the Adoption Law (2003 Revision) (‘the Law’). A practice has developed in the jurisdiction to treat it that way, as the Form A application forms have uncommendably, as in this case on 12 September 2014, been filed only shortly before the hearing after all the formalities have been completed. Applicants and the Board should in future carefully review this practice as it is

arguable that it may be the Form A Application Form filed at Court that should be regarded as commencing the application.
8

The adopters had been married for three years prior to making the Application.8 I note that, at the initial stage of the Application, AR was 16 years of age, and NR was only 14 years old. At this hearing, I am now dealing with the final stage of what has in this case been a long and drawn out adoption process.

9

There has been an unacceptable delay in the Application coming before the Court for hearing. It really would have benefited from some “hands on” case management. In March 2013 a number of documents and forms were submitted by the adopters to the Board. I note that in April 2013 the Board required the adopters to provide additional information. The Board was concerned about the lack of consent from the father, his apparent stated opposition to the children leaving that jurisdiction with the mother and the status of court orders made in the Philippines. I am told by the parents that they provided the certified copies of the court orders from the Philippines to the Board in late May/early June 2013. However, it appears that on 2 September 2013, following their review on 27 August 2013 (one without the benefit of a home study report), the Board communicated their refusal to proceed, in other words to legally‘deliver the children into the care and possession of the adopters’ and advised the prospective adopters about their right to appeal. Although I can understand the

Board's concerns, any issues concerning the absence of consent and/or the dispensation of the requirement for it are ultimately matters for the Court and not the Board to determine. With the benefit of hindsight, the Board should have made the decision not to proceed in June 2013. If the adopters had then followed the appeals process in relation to that decision pursuant to Rules 15 to 20 of the Adoption of Children Rules (2003 Revision) (‘the Rules’), and if the Listing Office gave a prompt date for the appeal by way of rehearing, there might have been sufficient time for all the requirements to have been completed before AR reached her seventeenth birthday.
10

In the end, the prospective adopters did not file a formal appeal, but sent a letter of appeal to the Board on 9 September 2013. On 14 September 2013 the Board considered that letter and still felt unable to proceed with the application. That decision was communicated in a letter to the adopters on or around 26 September 2013. No formal appeal under the procedure designated by the Rules was made to the Court by the adopters. This may be because it would have been too late for the October deadline for AR's seventeenth birthday and it was felt appropriate to try and further negotiate to see if there was another way to resolve matters. Further negotiations continued until May 2014.

11

On 10 May 2014 the Board, after receiving the RDR's notarised consent to the adoption, approved the application for the home study to be undertaken. On 3 June 2014, following approval of the home study report, the Board directed that asupervision report be undertaken (the Adoption Court Report). On 9 September 2014 Mary Lawrence, a member of the Board, signed the Form C Statements with Respect to the Identity of the Children.9 On 12 September 2014 the prospective adopters filed their Form A Application for adoption orders.10 On the same date they also filed their Particulars Form B.

12

On 16 September 2014 the Notice of an Application for an Adoption Order in respect of the children was issued, showing today's date as the hearing.11 On the same date the Summons filed by the Board on behalf of the prospective adopters was issued. That Summons and Notice must be served on all of the Respondents. I note that on 23 September 2014 RDR was contacted by Ms. Garricks, a social worker with the Department of Children and Family Services, and notified of today's hearing and she requested his address for service of the pleadings. On 24 September he replied to her stating ‘I am in agreement with the adoption and I will not be attending the adoption hearing.’

13

Having read Ms. Garrick's affidavit of service sworn on 29 September 2014 and RDR's email in reply, I am satisfied that he has had sufficient notice of these proceedings (especially as it has been difficult to serve him as it appears from his communications...

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