B vB

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Forte, JJ.A.)
• Judgment Date: 21 October 2014
• Court: Court of Appeal (Cayman Islands)
• Date: 21 October 2014

Court of Appeal

(Chadwick, P., Mottley and Forte, JJ.A.)

B

and

B

Ms. F. Dowse for the appellant;

F. Cusworth, Q.C. and Ms. K.M. Thompson for the respondent.

Cases cited:

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

(2) Assicurazioni Gen. SpA v. Arab Ins. Group (BSC), [2003] 1 W.L.R. 577; [2003] 1 All E.R. (Comm) 140; [2003] 2 C.L.C. 242; [2003] Lloyd”s Rep. I.R. 131; [2003] EWCA Civ 1642, observations of Clarke L.J. referred to.

(3) B(M) v. B(J), 2010 (1) CILR 416, referred to.

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

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

(6) Kacem v. Bashir, [2011] 2 NZLR 1; [2010] NZSC 112; [2010] NZFLR 884, followed.

(7) Martinez v. Arch, 2003 CILR N[20], referred to.

(8) 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, applied.

(9) Piglowska v. Piglowski, WLR[1999] 1 W.L.R. 1360; [1999] 3 All E.R. 632; [1999] 2 FLR 763; [1999] 2 F.C.R. 481; [1999] UKHL 27, dicta of Lord Hoffmann applied.

(10) TC (Children: Relocation), Re, [2013] 2 FLR 484; [2013] Fam. Law 676; [2013] EWHC (Fam) 292, dicta of Mostyn J. applied.

(11) Todd v. Adams & Chope (The Maragetha Maria), [2002] 2 Lloyd”s Rep. 293; [2002] C.L.C. 1050; [2002] 2 All E.R. (Comm) 797; [2002] EWCA Civ 509, dicta of Mance L.J. applied.

Legislation construed:

Guardianship and Custody of Children Law (1996 Revision), s.19: The relevant terms of this section are set out at para. 7.

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

The appellant (Mrs. B) made an application to the Grand Court to remove her children permanently from the jurisdiction.

Mr. and Mrs. B married in the Cayman Islands and had two children, a boy and a girl, both born in the Islands. Mrs. B. was an American national and Mr. B a Caymanian; they were separated and in the process of divorce proceedings. Mrs. B had earlier visited her mother in Florida for a holiday with their children but refused to bring them back to the Islands. Mr. B had persuaded her to return but shortly afterwards she petitioned for divorce. The Grand Court made an order for the care and control of the children in her favour, joined with an ouster order against Mr. B in respect of the family home; it also made an order declaring the Islands to be the children”s home for the purposes of the Hague Convention, so that neither parent would be allowed to remove the children from the jurisdiction without the consent of the other or of the court. The Grand Court also ordered Mr. B to pay spousal and child maintenance and granted him access to the children.

Mrs. B was heavily reliant on the maintenance payments whilst she worked temporarily in poorly paid jobs and also tried unsuccessfully to gain higher educational qualifications. Mr. B decreased the amount of maintenance he was paying but his formal application for the sum to be reduced was refused by the Grand Court. He fell into arrears with his payments but in the course of the present proceedings applied for a bank loan which he could use to pay them.

Mr. B”s parents, and particularly his mother, spent a lot of time with the children and regularly had them to stay overnight. He and his mother expressed concern that the children”s welfare was being neglected and a social worker placed them with Mr. B. The Grand Court, however, while acknowledging that they were very attached to their father, returned custody to Mrs. B, noting that she had been their primary carer during the marriage. At the time of the present application, the children spent the majority of their time with their mother but had three afternoons/evenings, two overnight stays and one full weekend day each week with their father. An application for them to go for a short holiday to Florida with their mother was granted by the court, and they returned at the appointed time.

Wishing to remove the children permanently to Florida, Mrs. B commenced the present proceedings. The welfare officer assigned to observe the family found that the older child (C, a boy, aged 5) was very attached to his father and wished to remain living with him in the Islands.

The Grand Court (Williams, J.), in proceedings reported at 2013 (1) CILR 271, considered the details of the present and proposed care arrangements and Mrs. B”s ability to care for the children, the contact that each parent would have with the children, their respective finances, the housing arrangements proposed, the education that would be available to the children in Cayman and Florida respectively, Mrs. B”s immigration status in the Cayman Islands, and the findings of the court welfare officer.

It dismissed Mrs. B”s application on the overall ground that she had failed to show that relocation was in the best interests of the children because of the harm it would do to their relationship with their father. In doing so, it applied the following principles:

(a) The children”s welfare was paramount and took precedence over any other consideration;

(b) The court was guided by the case law, without showing any detailed adherence to previous classifications and attempts to characterize the situation in particular ways;

(c) When considering the guidance, the court kept in mind-(i) whether the application was genuine, in the sense that it was not motivated by a selfish desire to exclude the father from the children”s lives; (ii) whether the father”s opposition to the relocation was motivated by genuine concern for the children”s welfare; (iii) to what extent there would be a detriment to the children”s relationship with their father; (iv) to what extent the detriment would be offset by the children”s relationship with their mother”s family and the new homeland; (v) whether the application was realistic, practical and founded on well-researched and investigated proposals; and (vi) what the impact of a refusal of the request would be on the mother and what subsequent effect this would have on her care of the children;

(d) As each case varied considerably, the court did not rigidly adhere to prior guidance so that it would not be fettered in its approach to a new case; and

(e) It accepted that there was no legal principle, or legal or evidentiary presumption, in favour of an application to relocate by a primary carer.

On appeal, the mother submitted that the Grand Court had erred in fact and in law in (a) failing adequately to conduct the balancing exercise when reaching his conclusion as to what course of action would best reflect the best interests of the children; (b) placing disproportionate and overwhelming weight on the detriment to the father and the adverse impact of the permanent removal of the children on his relationship with them; (c) not giving sufficient weight to the children”s immediate, short, medium and long-term financial needs; (d) failing to give sufficient weight to the father”s historic conduct during the proceedings; (e) placing overly optimistic and unsupported weight on the future conduct of the father”s family in the light of their historic conduct; and (f) not attributing sufficient weight to the psychological impact on her of the refusal of her application, and the detrimental impact this would have on her ability to care for the children.

Held, dismissing the appeal:

(1) The authorities relied on by the Grand Court accurately laid down the principles on which requests for the permanent relocation overseas of the child of a marriage should be determined. They were, in broad terms, as follows:

(a) The only authentic principle to be applied was that the welfare of the child was paramount and overbore all other considerations, however powerful and reasonable they might be. Valuable guidance existed in the case law as to the factors to be weighed in the search for the welfare paramountcy, which directed the exercise of the courts” powers by helping them to identify the factors which were likely to be the most important and the weight which should generally be attached to them.

(b) The guidance was not confined to classic primary carer applications and could be used in other kinds of relocation cases if the court were to think it helpful and appropriate to do so. The guidance suggested that the following questions be asked and answered (assuming that the applicant was the mother):

(i) Is the mother”s application genuine in the sense that it is not motivated by a selfish desire to exclude the father from the child”s life?

(ii) Is the mother”s application realistically founded on practical proposals both well researched and investigated?

(iii) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her proposal?

(iv) Is the father”s opposition motivated by genuine concern for the future of the child”s welfare or is it driven by an ulterior motive?

(v) What detriment would the father suffer and how badly would his future relationship with the child be affected if the...