B v B

• Jurisdiction: Cayman Islands
• Judge: (Williams, J.)
• Judgment Date: 10 April 2013
• Court: Grand Court (Cayman Islands)
• Date: 10 April 2013

Grand Court, Family Division

(Williams, J.)

B

and

B

Ms. F. Dowse for the petitioner;

N. Cusworth, Q.C. for the respondent.

Cases cited:

(1) AR, Re, [2010] 2 FLR 1577; [2010] 3 F.C.R. 131; [2010] EWHC 1346 (Fam), followed.

(2) B (M.) v. B (J.), 2010 (1) CILR 416, followed.

(3) C, In re, 2008 CILR 400; further proceedings, Grand Ct., February 4th, 2010, unreported, considered.

(4) C v. C (International Relocation: Shared Care Arrangement), [2011] 2 FLR 701; [2011] Fam. Law 588; [2011] EWHC 335 (Fam), considered.

(5) D (Children), Re, [2010] 2 FLR 1605; [2011] 2 F.C.R. 313; [2010] EWCA Civ 50, referred to.

(6) F (Child: Permission to Relocate), Re, [2013] 1 FLR 645; [2012] 3 F.C.R. 443; [2012] EWCA Civ 1364, followed.

(7) H, Re, [2010] 2 FLR 1875; [2010] EWCA Civ 915, referred to.

(8) K v. K (Relocation: Shared Care Arrangement), [2012] Fam. 134; [2012] 2 W.L.R. 941; [2012] 2 FLR 880; [2011] 3 F.C.R. 111; [2011] EWCA Civ 793, followed.

(9) KP v. JB, 2012 (2) CILR 249, referred to.

(10) KSO v. MJO, [2009] 1 FLR 1036; [2008] EWHC 3031 (Fam), referred to.

(11) Martinez v. Arch, 2003 CILR N[20], considered.

(12) Payne v. Payne, [2001] Fam. 473; [2001] 2 W.L.R. 1826; [2001] 1 FLR 1052; [2001] 1 F.C.R. 425; [2001] EWCA Civ 166, distinguished.

Legislation construed:

Guardianship and Custody of Children Law 1996, s.19: The relevant terms of this section are set out at para. 63.

Family Law-children-removal from jurisdiction-child”s welfare takes precedence when deciding application-guidance from case law to aid determination of child”s best interests-when considering guidance, court to keep in mind (i) whether application merely made to prevent other parent seeing child; (ii) whether opposition based on genuine concern for child”s welfare; (iii) detriment to child”s relationship with parent and family left behind; (iv) whether detriment offset by relationship with family in new home; (v) whether application realistic, practical and well researched; and (vi) impact of refusal on applicant-court not to fetter itself by rigid adherence to guidance-determination of application not influenced by dissatisfaction with parties” behaviour unless affects welfare of child

Family Law-children-removal from jurisdiction-factors affecting child”s welfare include suitability and quality of education and housing; range and quality of extra-curricular activities; quality of relationship with family (including frequency and nature of contact time); difficulties of proposed move; and ability of applicant to care for child-ability to care for child affected by financial situation (e.g. cost of living compared with income from wages and/or maintenance payments), emotional effect of refusal of application and availability of support network-court to consider whether parents able to minimize negative impact on child”s welfare-welfare officer to act as ‘eyes and ears’ of court when determining impact

The applicant (‘Mrs. B’) brought an application to remove her children permanently from the jurisdiction.

Mrs. B, an American national, entered into a relationship with Mr. B, a Caymanian national. Mrs. B had left her mother”s home in Florida at 18, having had a poor relationship with her, but she renewed contact after the parties had moved to Cayman and had two children-C (aged 5) and K (aged 4). Whilst living in Cayman, Mrs. B began to study law, but was required to leave after the first year for health reasons. Mr. B”s mother, who operated an employment agency, later offered to assist Mrs. B in finding a job, but she never accepted this offer. The parties married in 2008, but the marriage was not happy and, after a family holiday to Florida, Mrs. B refused to return to Cayman with the children. Mr. B persuaded her to return but, shortly afterwards, she petitioned for divorce.

She applied for an order under the Protection from Domestic Violence Law 2010 for care and control of the children and for an ouster order against Mr. B in relation to the family home, which was made by the Grand Court (Henderson, J.). The Grand Court (Quin, J.) also made an order declaring the Cayman Islands as the children”s home for the purposes of the Hague Convention and that neither party would therefore be allowed to remove the children from the jurisdiction without the written consent of the other party or an order by the court. The court further ordered for Mr. B to pay maintenance and granted him access to the children.

After the separation, Mrs. B was largely reliant on the maintenance payments, although she worked in two jobs which provided her with a low income. After changes to his income, Mr. B unilaterally decreased the amount that he was paying, but his application to vary the level of maintenance was refused by the Grand Court (Henderson, J.). He initially failed to account for the arrears that had arisen, but, during the current proceedings, arranged for a loan which he could use to pay them.

After he and his mother expressed concerns that the children”s welfare requirements were not being met, the children were removed from Mrs. B”s care and placed with Mr. B by a social worker. The Grand Court (Williams, J.) found that these concerns were unfounded and returned the children to her, noting that she had been their main carer during the marriage. The court also noted the level of attachment that the children had with their father, and the fact that he was successfully fulfilling his parental responsibilities, and increased his access.

When the present application was made, the children spent the majority of their time with Mrs. B. The children were with their father for three afternoon/evenings, two overnight stays and one full weekend day each week. During these times, the children spent long periods with their paternal grandparents-with whom Mrs. B had originally had a good relationship, although this had deteriorated during the protracted divorce proceedings-and regularly slept at their houses.

Mrs. B applied for leave to remove the children temporarily from the jurisdiction to celebrate Hanukkah with her family in Florida. This was opposed by their father, as he did not believe that she would return the children to Cayman. The application was granted by the Grand Court (Williams, J.) and Mrs. B returned to Cayman on the specified date.

The mother wished to remove the children permanently to Florida and initiated the current proceedings. The court assigned a welfare officer to observe the family, who found that C, in particular, was very attached to Mr. B and wished to remain living with him in Cayman. The officer recommended that the parties resolve the issues between themselves, as they were causing distress to the children; that this should occur before the children were to be removed; and that the parties should undergo psychological assessments and attend co-parenting classes.

The care arrangement and Mrs. B”s ability to care for the children

Mrs. B submitted that the application should be granted because she

was suffering emotionally in Cayman and this was reducing her ability to care for the children. She was very isolated and unhappy in Cayman as Mr. B had dissuaded the couple”s friends from maintaining contact with her after the divorce and his parents were behaving antagonistically towards her (e.g. by unilaterally rearranging the children”s swimming lessons). These difficulties were causing her considerable stress and were likely to have an impact on her health and her ability to care for the children. Although the court”s primary concern should be the welfare of the children, it should recognize that the refusal to allow her to move to Florida would have a detrimental effect on her ability to care for the children, particularly as she should be regarded as their primary carer. In Florida, she would be able to find a support network through being in close proximity with her family and making new friends. Although her relationship with her family had previously been strained, this was no longer the case and they would provide her with emotional and practical support, which would allow her to better care for the children”s welfare.

Mr. B submitted in reply that she should not be allowed to remove the children from the jurisdiction and that the court should not presume that the refusal to relocate would have such a strong effect on Mrs. B that it would detrimentally effect the children”s welfare. Mrs. B had a support network in Cayman and maintained a social life; she frequently went out with friends and at least one of their friends had attempted to provide emotional support. Further, his parents were not antagonistic towards her and, although their relationship had suffered due to the protracted nature of the divorce, his mother was actively attempting to reconnect with Mrs. B with a view to providing a support network. Moreover, the care agreement could not be described as a primary care/access arrangement as Mr. B played a primary role in the children”s lives. Although the children spent more time with Mrs. B, the time spent with him was significant-in both quantity and quality-and led to strong attachments between them. Mrs. B should not, therefore, be assumed to be the children”s primary carer and the court should not assume that the negative impact of refusal on her would be so strong as to affect the welfare of the children.

Contact

Mrs. B submitted that the children”s relationship with their father would not suffer as they could maintain frequent indirect contact and regular direct contact. Mr. B”s parents owned a property in Florida and he would be able to visit twice a month and stay there with the children. The children would also be able to make monthly trips to spend a weekend with their father and would spend the Christmas and Easter holidays and half the summer holiday with him in Cayman. This would amount to similar levels of contact as he was...