Between: T Applicant v R Respondent
| Jurisdiction | Cayman Islands |
| Judge | Justice Richard Williams |
| Judgment Date | 31 October 2023 |
| Docket Number | CAUSE NO. FAM 29 OF 2021 |
| Court | Grand Court (Cayman Islands) |
Hon. Justice Richard Williams
CAUSE NO. FAM 29 OF 2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Children Act (2012 Revision) — Application for an adjournment — Appointment of child psychologist — Directions to hearing
The Petitioner in Person
The Respondent in Person
Ms. Laura Clemens, Guardian Ad Litem
Ms. Lydia Watling, Court Welfare Officer
The matter comes before me for a pre-trial review relating to the final stage of a part-heard substantive s.10 Children Act hearing listed for 8 days and to commence from 20 November 2023. That hearing relates to two children, RI, a 9-year-old female and RA, a 5 year-old male.
For ease of reference, with no discourtesy intended to the parties, I hereafter refer to the Petitioner as “T”, to the Respondent as “R”, to the eldest child as “RI” and to the youngest child as “RA” in this Judgment. The parties are both representing themselves and this has been the position since the comprehensive final children order submitted on 4 February 2022 (the Order”). At no time during these proceedings to date have I had concerns about them being able to adequately address the issues and present their respective cases whether that be by giving evidence, making submissions or cross examining. They are both intelligent individuals who work in highly regarded professions.
At today's hearing, T has made an oral application to vacate the substantive hearing to enable her to obtain legal representation/assistance. There is also now an issue about the instructing of a child psychologist to assess RI. Initially both parties agreed that this instruction should occur not only due to these proceedings but to offer them guidance about any long-term therapeutic input that might be required for RI, T now objects to the instruction, raising financial grounds, her concern about RI having to meet another expert and with reference to the case of Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150. These proceedings have already been greatly delayed by the practicalities that have arisen when trying to instruct a child psychologist, including R disagreeing earlier in the year about the instruction of a psychologist who T had been happy to instruct.
In balance, despite her concerns about the absence of a child psychologist assessment, R feels that the hearing should proceed. A similar view is held by the Guardian.
T stated in an email sent on 25 October 2023 to the Welfare Officer, R, the Guardian and to the Judge's Personal Assistant that:
“I have been strongly advised that “given the manner in which the case is being conducted and the intervention of the Court” I need to get Counsel before proceeding.”
She added:
“I very strongly feel unable to represent my own interests or those of the children adequately at this point in proceedings. I am therefore in the process of seeking representation. I have been instructed to write to make the Honorable Judge aware and to apply for the adjournment until I can be suitably represented.”
Upon receiving the email, I instructed my Personal Assistant to inform the parties that today's case management hearing would be proceeding.
Yesterday evening, T filed a 19-page Position Statement. In that Statement T inappropriately introduced evidence, but she also ably made submissions and also reviewed some case law, legal texts and conventions. Apart from the evidence issue, which can be rectified by T putting the same detail in an affidavit, it was a well drafted and reasoned document. In the Statement T again commented:
“I received legal advice on 18 October that due to the “manner that the case is being conducted in and the intervention of the court” I must instruct counsel. Due to the stress this is creating on my family and in turn myself, I no longer feel mentally able or suitably trained to represent my children's bests interests and keep them safe. I have reached out to a variety of independent parties who I hope can assist me pro bono due to my financial situation. At this stage I do not feel able to continue to self-represent without counsel.”
At Court today, T mentioned that she had been seeing Legal Befrienders who she said had been advising and assisting her at different stages of these overly drawn-out proceedings. She also mentioned that legally qualified persons she knows are reaching out to lawyers who may be able to assist her pro bono. From what she said there is no certainty that she will obtain representation from these avenues no matter how much time is given to her. She mentioned that these proceedings have been very stressful for her, are affecting her mental health and that this has reached a stage where she feels she needs to be represented to continue to present her case. I note that R has had serious well documented mental health issues and that this has also been exasperated by these proceedings. Despite this, R has felt able to represent herself. There appears to be a position of ‘equality of arms’ when it comes to representation. I accept that these proceedings are stressful for all involved and that is but one of many compelling reasons why these proceedings must not be allowed to unnecessarily drag on.
When dealing with the present application to adjourn, it is important to consider it in the context of the chronology in this matter. A lot of this detail can be found in my ex-tempore ruling dated 31 August 2023, but I repeat some of that herein. When I have regard to the history of this matter, I have regard to the Court's duty to minimise delay pursuant to the ‘delay principle’ set out at s.3(2) Children Act. The detrimental effect of delay in determining the question of contact becomes greater in cases where the children are having no contact with a parent.
For the purpose of today, the starting point is the above-mentioned Order submitted by the parties on 4 February 2022 and reached after the parties had attended mediation. The Order included a shared residence provision and comprehensive contact provisions. The Order was intended to be a final order and was more detailed than one might ordinarily expect, likely because each party had concerns about how they could co-parent.
Regrettably, the arrangements set out in the Order soon broke down and, on 26 June 2022, T filed a Summons for a variation of the order, seeking that a no contact order for R be made and an order that R was to immediately have no future decision-making power in matters relating to the children. What was sought was in effect a discharge of the shared residence order and withdrawal of T's parental responsibility. The orders sought in that Summons are the same orders that T still seeks at the continuing part heard hearing. T has since that time had ample opportunity to seek representation/reach out to a variety of independent parties to assist her concerning her applications.
R filed a Cross-Summons seeking to enforce the contact terms in the Consent Order. This is similar to the order that she is now seeking and, of course, she has also had the opportunity to seek legal representation/assistance. Therefore, both parties have had the opportunity, ongoing since June 2022 (around 16 months ago), to obtain legal representation in relation to their drawn-out applications which are still being considered by the Court.
Because of the issues that were then being raised, when the matter came before me on 22 July 2022, I made a referral for a Court Welfare Officer's Report, which I directed to be filed no later than 30 September 2022. I reiterated that the consent contact order remained in place. I added that the Welfare Officer should be appointed promptly and that she could notify the Court if she felt that there was a need to vary that order prior to the final report being submitted.
On 2 September 2022, T filed a further no contact Summons seeking a variation of the order and reiterated her wish for there to be an order for R to immediately have no future decision-making power in matters relating to the children. In the alternative, R stated that there could be a less disruptive contact schedule set up. That Summons also remains a live Summons before this Court which still requires determination.
On 5 October 2022, Ms. Watling, who is still the allocated Welfare Officer, reported that RI clearly expressed a wish for contact with both parents to be equal and fair and stated that it was clear that RI wanted both in her life. She recommended that the contact arrangement should be on alternate weeks with each parent.
As contact remained a live issue, at a case management hearing held on 7 October 2022, the Court gave directions for a four-day hearing to be listed on the first available date after 30 January 2023. Again, since that hearing, which was held over 12 months ago, both parties have had ample opportunity to seek representation or assistance for the scheduled substantive hearing.
At a hearing held on 12 December 2022, the matter came on for further case management and, due to issues that had arisen, it was decided that the hearing would require nine rather than four days. Consequently, the January hearing was vacated, and the substantive hearing was relisted for 7 March 2023. The loss of the January hearing was regrettable as the new hearing was to be over seven months after the first mention hearing had come on before me. Again, both parties had the opportunity to...
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