Kd v Pd (Dm and Wm as Interested Parties)
| Jurisdiction | Cayman Islands |
| Judge | (Williams, J.) |
| Judgment Date | 30 October 2017 |
| Date | 30 October 2017 |
| Court | Grand Court (Cayman Islands) |
(Williams, J.)
S. Dobbyn for the applicant;
D. Holland for the respondent;
L. Clemens for the interested parties.
(1) A (Section 8 Order: Grandparent Application), Re, [1995] 2 FLR 153; [1996] 1 F.C.R. 467; [1995] Fam. Law 540, considered.
(2) B (Paternal Grandmother: Joinder as Party), Re, [2012] EWCA Civ 737; [2012] 2 FLR 1358; [2012] 2 F.C.R. 554; [2012] Fam. Law 1073, referred to.
(3) B v. B, 2013 (1) CILR 271, referred to.
(4) C (Direct Contact: Suspension), Re, [2011] EWCA Civ 521; [2011] 2 FLR 912; [2011] 3 F.C.R. 208; [2011] Fam. Law 791, considered.
(5) C v. Finland (2006), 46 E.H.R.R. 485; [2006] 2 FLR 597; [2006] 2 F.C.R. 195; [2006] Fam. Law 633; [2006] ECHR 543, considered.
(6) F (Shared Residence Order), Re, [2003] EWCA Civ 592; [2003] 2 FLR 397; [2003] 2 F.C.R. 164; [2003] Fam. Law 568, followed.
(7) Gnahoré v. France (2002), 34 E.H.R.R. 967; [2000] ECHR 420, considered.
(8) Görgülü v. Germany, [2004] 1 FLR 894; [2004] 1 F.C.R. 410; [2004] Fam. Law 411, considered.
(9) K (Contact), Re, [2016] EWCA Civ 99; [2017] 1 FLR 530; [2016] 2 F.C.R. 389; [2016] Fam. Law 440, referred to.
(10) KP v. JB, 2012 (2) CILR 249, referred to.
(11) Kosmopoulou v. Greece, [2004] 1 FLR 800; [2004] 1 F.C.R. 427; [2004] Fam. Law 330, considered.
(12) L (A Child) (Contact: Domestic Violence), Re, [2000] EWCA Civ 194; [2001] Fam. 260; [2001] 2 W.L.R. 339; [2000] 4 All E.R. 609; [2000] 2 F.C.R. 404; [2000] Fam. Law 603; [2000] 2 FLR 334, considered.
(13) National Justice Cia. Naviera SA v. Prudential Assur. Co. Ltd., “The Ikarian Reefer,” [1993] 2 Lloyd’s Rep. 68; [1993] 37 EG 158; [1993] FSR 563, referred to.
(14) O (A Child) (Contact: Withdrawal of Application), Re, [2003] EWHC 3031 (Fam); [2004] 1 FLR 1258; [2004] 1 F.C.R. 687; [2004] Fam. Law 492, followed.
(15) Q (Implacable Contact Dispute), Re, [2015] EWCA Civ 991; [2016] 2 FLR 287; [2015] Fam. Law 1454, referred to.
(16) S v. Italy, [2000] 2 FLR 771; sub nom. Scozzari v. Italy [2000] 3 F.C.R. 430, considered.
(17) Sahin v. Germany (1996), ECHR, App. No. 30943/96; (2004), 43 ILM 90, considered.
(18) W (Contact: Application by Grandparent), Re, [1997] 1 FLR 793; [1997] 3 F.C.R. 643; [1997] Fam. Law 390, considered.
(19) W (Direct Contact), Re, [2012] EWCA Civ 999; [2013] 1 FLR 493; [2012] 3 F.C.R. 277; [2013] Fam. Law 1322, referred to.
Children Law (2012 Revision), s.3(3):
“. . . a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, educational and emotional needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, religious persuasion, background and any characteristic of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and
(g) the range of powers available to the court under this Law in the proceedings in question.”
s.10(1): “In this Law—
‘a contact order’ means an order requiring the person with whom a child lives . . . to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other . . .”
s.13(7): “A section 10 order may—
(a) contain directions about how it is to be carried into effect;
(b) impose conditions which must be compiled with by any person—
(i) in whose favour the order is made;
(ii) who is a parent of the child concerned;
(iii) who is not a parent of his but who has parental responsibility for him . . .
(c) be made to have effect for a specific period, or contain provisions which are to have effect for a specified period;
(d) make such incidental, supplemental or consequential provisions as the court thinks fit.”
Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, Part 1, s.7(1):
“Everyone has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time.”
Schedule 2, Part 1, s.9(1): “Government shall respect every person’s private and family life . . .”
Family Law — children — contact order — alcoholic mother — regular supervised contact in 5-year-old child’s best interests when mother sober
Family Law — children — contact order — grandparents — if granted leave to apply for contact, no presumption order will be made — child’s welfare paramount — grandparents with significant involvement in child’s life and upbringing (including supervising contact with alcoholic mother) granted regular contact (exclusive overnight contact monthly, and supervision of mother’s contact)
A father sought the variation of a contact order.
The applicant (“the father”) and the respondent (“the mother”) married in 2011 and were now divorced. They had a five-year-old son, “B.” The mother was an alcoholic.
An ancillary relief consent order approved in May 2015 had provided, inter alia, that B would reside with the father but that he would have reasonable and flexible contact with the mother and the maternal grandparents (the interested parties) including overnight contact midweek and on alternate weekends. All contact between the mother and B was to be supervised by the maternal grandparents. The supervised contact order was made with the expectation that the mother would take the opportunity to maintain her relationship with B whilst addressing her alcohol issues. Both parents had parental responsibility.
The mother did not address her alcohol dependency and was not in a position to have unsupervised contact with B.
The father sought to vary the existing order. He proposed contact between B and the mother during school term time to be limited to one weekend in four, supervised by the maternal grandparents, and proposed contact arrangements for holidays and special occasions. He sought an order that the mother be refused contact if she had consumed alcohol. He sought a declaration that the maternal grandparents acquire a breathalyser or alcohol detection strips to enable them to determine whether the mother had consumed alcohol.
The mother largely agreed with the father’s proposal but sought increased contact with B including alternate weekends (supervised by the maternal grandparents). The maternal grandparents were granted leave to intervene in the proceedings and to make an application for contact with B.
The issues between the parties were (i) the frequency of supervised contact between the mother and B; (ii) whether there should be any standalone contact between the maternal grandparents and B; and (iii) the frequency of any separate contact for B with the maternal grandparents.
Held, ordering as follows:
(1) B would primarily reside with the father. During term time, B would spend every other weekend with the maternal grandparents, where he would have supervised contact with the mother. At Christmas, B would spend time with both his father and his mother (at all times supervised by the maternal grandparents), and he would spend New Year alternately with the father and the mother. Contact over the Easter holiday was to be reasonably agreed between the father and the mother and maternal grandparents. During the summer holiday, B would have contact with the mother and maternal grandparents for a two-week period on dates agreed by the parties, and contact with the father for a three-week period. Contact was also provided for special occasions such as birthdays. There could be such further contact as agreed between the parties. Pursuant to s.13(7) of the Children Law (2012 Revision), all contact between B and his mother was to be supervised by a maternal grandparent. For such contact to take place, the mother must be sober. The maternal grandparents must not allow contact between B and the mother if she had consumed alcohol. With the consent of the parties, the maternal grandparents would be directed to acquire a breathalyser or alcohol detection strips to enable them to determine whether the mother had consumed alcohol on each contact visit (paras. 80–85).
(2) As a consequence of the approach to s.10 contact orders as set out in the Law, the court had a largely unfettered discretion. When considering what orders to make in relation to B’s contact with the mother and the maternal grandparents, B’s welfare was the court’s paramount consideration. The court considered the “welfare checklist” as set out in s.3(3) of the Law. The court had power under s.13(7) of the Law to impose conditions on any s.10 order. Child contact cases engaged ss. 7 and 9 of the Cayman Islands Bill of Rights. Human rights case law highlighted the importance of meaningful contact. The starting point was that contact between a child and his parents was a fundamental element of family life. Contact would almost always be in a child’s interests and should be terminated only in exceptional circumstances and only if it was detrimental to the child’s welfare, which was paramount (paras. 35–47).
(3) B’s maternal grandparents had played a commendable role in B’s life and ensured that he maintained a relationship with his mother. It was recognized in case law from England and Wales that grandparents had an important role to play in the upbringing of children. Their importance and role in family life were arguably even greater in the Caribbean due to culture and family dynamics. The degree of interaction a child had with his grandparents or the degree of care given to a child by his grandparents might be relevant to the type and frequency of contact to be ordered, bearing in mind that a grandparent’s contact should not usurp or overly compete with the rights and obligations of an able and willing parent. The...
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