DC v RC
| Jurisdiction | Cayman Islands |
| Judge | (Carter, Ag. J.) |
| Judgment Date | 29 January 2020 |
| Court | Grand Court (Cayman Islands) |
| Date | 29 January 2020 |
(Carter, Ag. J.)
Family Law — children — removal from jurisdiction — children’s welfare paramount consideration — court to consider welfare checklist in Children Law (2012 Revision), s.3(3) — court to consider (i) whether application genuine; (ii) whether opposition based on genuine concern for child’s welfare; (iii) detriment to child’s relationship with parent 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 — no presumption in favour of application by child’s primary carer
Held, dismissing the application:
(1) The application was governed by the Children Law (2012 Revision). Section 15(1) provided that a party who sought to relocate with their child outside the jurisdiction of the Cayman Islands required either the written consent of every other party with parental responsibility or the permission of the court. The court’s paramount consideration in determining any such application was the welfare of the child. Section 3(3) of the Law encapsulated the paramountcy principle and the issue of relocation must be considered with reference to the welfare checklist. The court should also ask itself (i) whether the mother’s application was genuine; (ii) whether the father’s opposition was motivated by genuine concern for the future of the child’s welfare or driven by some ulterior motive; (iii) what the detriment would be to the father and his future relationship with the child if the application were granted; (iv) to what extent the detriment to the father, if the mother’s application were granted, would be offset by extension of the child’s relationship with the material family; (v) whether the mother’s application was realistic and founded on practical proposals that were well researched and investigated; and (vi) what would be the impact on the mother of a refusal of her proposal. There was no presumption in favour of an application to relocate by a child’s primary carer (paras. 4–10).
(2) The application would be dismissed. The court considered the welfare checklist in s.3(3) of the Children Law:
(a)The child’s wishes and feelings. The child had previously expressed that she preferred the Cayman Islands to Boston. The court had considered the applicant’s evidence of the child speaking about moving to the United States. It was not clear that these were the child’s independent wishes. The child’s age was a factor taken into account regarding the weight to be accorded to her wishes and feelings on this application.
(b)The child’s physical, education and emotional needs. These were met by both parents and the court was satisfied that they would continue to be met if the child remained in the Cayman Islands.
(c)The likely effect on the child of any change in her circumstances. These were unknown. The court had concerns as to her educational needs and adjustment to a larger public school if the child were to move to Boston. The evidence presented by the applicant did not confirm that the education the child would receive in Boston would be superior to the education she received in the Cayman Islands. Thecourt was concerned that the child would be affected if she could not maintain her close relationship with the respondent.
(d)The age, sex, religious persuasion, background and any characteristic of the child which the court considered relevant. The child was now 10 years old. Her relationship with her mother would become increasingly important as she approached puberty.
(e)Any harm the child had suffered or was at risk of suffering. No specific harm had been identified except that the child would be leaving all that she had ever known and the effect of that change on her was difficult to ascertain.
(f)How capable each of her parents were of meeting her needs. The respondent could adequately meet the child’s needs. The applicant could not do so without financial and emotional support. The court was concerned that the applicant was still undergoing psychiatric treatment and would have to do so for some time. However, this factor alone was not determinative of the application.
The court considered that the mother’s application was genuine and was not motivated by a desire to exclude the respondent from the child’s life. The respondent’s opposition was also motivated by genuine concern and there was nothing to suggest that he had an ulterior motive in opposing the application. The relationship between the respondent and the child would be greatly affected if the application were granted. Although the child would be able to strengthen her relationship with her maternal family, that would not greatly offset the detriment to the respondent. When determining how realistic and practical the applicant’s proposals were, the fact that they did not convey a level of certainty essential to the child’s adjustment and welfare if she were uprooted from her present life was of concern to the court. The applicant would be negatively affected by a refusal of the application. All of the evidence before the court was that the child’s best interests were provided for in the Cayman Islands. She was very well settled in school, she had a group of friends, she had loving and close relationships with both parents here and she had never known another home. The court had to prioritize the child’s best interests. The court did not find that the child’s best interests would be better served if she relocated to Boston. The lack of certainty surrounding the applicant’s plans as well as the court’s concerns as to the applicant’s medical/psychiatric issues weighed heavily in the balance against relocation. While relocation might be in the applicant’s best interests it was not in the child’s best interests. There was no sufficient reason for an abrupt disruption to her life at this time. The application to relocate would be dismissed (paras. 43–51).
(1)B v. B, 2013 (1) CILR 271; on appeal, 2014 (2) CILR 234, applied.
(2)C (Internal relocation), Re, [2015] EWCA Civ 1305; [2016] Fam. 253; [2016] 3 W.L.R. 1; [2017] 1 FLR 103; [2016] Fam. Law 284, referred to.
(3)F (Child), Re, [2012] EWCA Civ 1364; [2013] 1 FLR 645; [2012] 3 F.C.R. 443; [2013] Fam. Law 37, referred to.
(4)FS v. JF, Cause No. Fam. 64/2017, considered.
(5)JE v. ND, Cause No. Fam. 115/2012, followed.
(6)MK v. CK, [2011] EWCA Civ 793; [2012] Fam. 134; [2012] 2 W.L.R. 941; [2011] 3 F.C.R. 111; [2011] Fam. Law 1078, referred to.
(7)PC v. JC, Cause No. Fam. 18/2014, February 15th, 2016, considered.
(8)Payne v. Payne, [2001] EWCA Civ 166; [2001] Fam. 473; [2001] 2 W.L.R. 1826; [2001] UKHRR 484; [2001] Crim. L.R. 842; [2001] 1 FLR 1052; [2001] 1 F.C.R. 425; [2001] HRLR 28; [2001] 1 Cr. App. R. 36, referred to.
(9)Y (Leave to remove from jurisdiction), Re, [2004] 2 FLR 330; [2004] Fam. Law 650, considered.
Children Law (2012 Revision), s.3(3): The relevant terms of this sub-section are set out at para. 5.
The applicant sought leave to relocate with the parties’ child to the United States.
The applicant and the respondent had married in 2008 and their child had been born in 2010. The applicant had filed for divorce in 2014. The only outstanding ancillary issue related to arrangements for the parties’ child. The applicant, who was the child’s primary carer, sought leave to relocate to Boston with the child. The applicant was American. The respondent had been born in the United Kingdom and had a British passport and Caymanian citizenship.
The applicant wished to leave the Cayman Islands. She stated that there had been a longstanding agreement between the parties that they should relocate to Boston, where the applicant’s family lived. She would be supported by her parents in Boston. Boston would be a better location for the child, with better educational opportunities and proximity to the applicant’s large and extended family. The applicant had difficulty obtaining employment in the Islands and was confident that she would find employment in Boston. The applicant suffered a complex mix of medical and psychological issues, including depression and anxiety, which she considered to be directly related to her situation in the Cayman Islands and for which she was receiving treatment.
The respondent opposed the application. He denied there was a longstanding agreement to relocate and submitted that the applicant’s need for support should not be viewed as a reason to relocate with the child. The applicant had not provided a full account of her employment prospects in Boston. Concern was raised as to the applicant’s medical condition and towhether she was in the better position to look after the child’s needs and interest.
A welfare report was produced which concluded that relocation to Boston would not be in the child’s best interests. She was settled in the Cayman Islands and relocation would be an unnecessary disruption in her life.
The applicant appeared in person;
G. Hampson and S. Tummala for the respondent.
1 CARTER, Ag. J.:
Background
The marriage between the parties was a relatively short one. They met in the Cayman Islands and married on May 2nd, 2008. In January 2010, the parties welcomed a daughter, “A.” In February 2014, the petitioner left the matrimonial home. After the petitioner filed for divorce and the petition was proved, the parties agreed a consent order dated April 11th, 2018. This consent order dealt with ancillary matters arising out of the marriage and it was agreed that its aim was to achieve a clean break in respect of the parties’ financial affairs in relation to themselves. The only outstanding ancillary issues not determined by the consent order related to the arrangements for the child of the marriage.
2 On May 24th and 25th, 2018, this court heard the petitioner’s application seeking leave to relocate to the USA with the child of...
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