KP v JB

• Jurisdiction: Cayman Islands
• Judge: (Williams, J.)
• Judgment Date: 22 November 2012
• Court: Grand Court (Cayman Islands)
• Date: 22 November 2012

Grand Court, Family Division

(Williams, J.)

KP

and

JB

D. Holland for the mother;

Ms. L. Clemens for the father.

Cases cited:

(1) A (A Minor) (Custody), Re, [1991] 2 FLR 394, referred to.

(2) A (Temporary Removal from Jurisdiction), Re, [2005] 1 FLR 639; [2004] EWCA Civ 1587, considered.

(3) A v. A (Shared Residence), [2004] 1 FLR 1195; [2004] 3 F.C.R. 201; [2004] EWHC 142 (Fam), dicta of Wall J. considered.

(4) B(M.) v. B(J.), 2010 (1) CILR 416, dicta of Quin J. considered.

(5) C (A Minor), In re, Grand Ct., Family Div., February 4th, 2010, unreported, dicta of Foster J. referred to.

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

(7) D (Leave to Remove: Shared Residence), Re, High Ct., Family Div., July 4th, 2006, unreported; noted at [2006] Fam. Law 1006, considered.

(8) D v. D (Shared Residence Orders), [2001] 1 FLR 495; [2001] 1 F.C.R. 147, dicta of Butler-Sloss, P. and Hale, L.J. considered.

(9) EJ v. VB, Grand Ct., Family Div., May 4th, 2005, unreported, considered.

(10) F (Shared Residence Order), Re, [2003] 2 FLR 397; [2003] 2 F.C.R. 164; [2003] EWCA Civ 592, considered.

(11) Gillick v. W. Norfolk & Wisbech Area Health Auth., [1986] A.C. 112; [1985] 3 All E.R. 402, dicta of Lord Fraser referred to.

(12) K (Shared Residence Order), Re, [2008] 2 FLR 380; [2009] 1 F.C.R. 116; [2008] EWCA Civ 526, dicta of Wilson, L.J. considered.

(13) K v. K (Children: Permanent Removal from Jurisdiction), [2012] Fam. 134; [2012] 2 W.L.R. 941; [2012] 2 FLR 880; [2011] 3 F.C.R. 111; [2011] EWCA Civ 793, considered.

(14) L (A Child) (Internal Relocation: Shared Residence Order), Re, [2009] 2 All E.R. 700; [2009] 1 FLR 1157; [2009] 1 F.C.R. 584; [2009] EWCA Civ 20, dicta of Wall, L.J. considered.

(15) Mercer v. Hermans, 2003 CILR 115; on appeal, 2003 CILR 510, dicta of Levers J. considered.

(16) P (Shared Residence Order), Re, [2006] 2 FLR 347; [2006] 1 F.C.R. 309; [2005] EWCA Civ 1639, dicta of Wall, L.J. considered.

(17) 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, not followed.

(18) S (A Minor) (Custody), Re, [1991] 2 FLR 388; [1991] F.C.R. 155, referred to.

(19) Stephenson v. Stephenson, 1980–83 CILR 93, not followed.

(20) Y (Leave to Remove from Jurisdiction), Re, [2004] 2 FLR 330, dicta of Hedley J. considered.

Legislation construed:

Guardianship and Custody of Children Law (1996 Revision), s.7(1): The relevant terms of this section are set out at para. 46.

s.19: The relevant terms of this section are set out at para. 15.

Family Law-children-removal from jurisdiction-under Guardianship and Custody of Children Law (1996 Revision), s.19, welfare of child first and paramount consideration-court to consider all circumstances and assess impact on child-established guidelines for permanent removal mere guidance, not legal principles-no presumption that reasonable relocation plans of carer facilitated unless compelling reasons to contrary

Family Law-children-removal from jurisdiction-shared care cases different category to which established guidelines inapplicable-no clear division between primary care and shared care-court to consider regularity of interaction between both parents and child and nature of relationships-precise amount of time spent with each parent less important-if both parents play significant role in child”s ordinary life, possible damage to relationship with remaining parent important consideration

Family Law-children-removal from jurisdiction-temporary removal-considerations relevant to permanent removal not automatically applicable to temporary removal-since damage to child”s relationship with remaining parent only temporary, focus to be on longer-term consequences of move-court to consider whether can arrange contact during period of removal to overcome any loss of relationship-preferable for child to move whilst at pre-school, rather than when older

A mother (‘M’) applied for permission to remove her young daughter (‘J’) temporarily from the jurisdiction.

During their relationship, M and F (the father) resided in their respective parents” homes. Both had secure employment but, in the first six months after J”s birth, M took a leave of absence to continue her education. Throughout this period, at least during the day, J would stay at F”s home and be looked after by F”s parents, with F taking time out from work to assist with J”s care and M returning to his home after her classes. In the evenings, F assisted M with J”s evening routine and, on some nights, M and J would also sleep at F”s home. After M went back to work in 2010, M and J spent less time at F”s home; F, however, continued to play a full

role in J”s care and would come to visit M”s house during the day for one to two hours.

In 2010, the parties split up and thereafter M and J rarely slept at F”s house. They were unable to agree where J should be during the day and M applied for and obtained an ex parte restraining and exclusion order; M was additionally granted custody, care and control of J. However, the parties reconciled to some extent and in fact F took care of J during the day, at least several times a week, at both his house and M”s.

In 2011, M moved from her mother”s home to her own property which became J”s primary base, and the parties agreed that there was no longer any possibility of re-establishing their relationship. M wished to pursue a degree in the United States, with a view to enhancing her career prospects on her return, and had obtained a full scholarship. F, who wanted J to stay with him, obtained an ex parte order forbidding M from removing J from the jurisdiction without his written consent or court order. M applied to discharge the ex parte order, which was retained by the court, save that it was varied to give her leave to remove J temporarily from the jurisdiction to accompany M on a research trip for her proposed move, during which time arrangements for J”s pre-schooling and accommodation were made. An interim order was subsequently made granting F overnight access with J for six nights every fortnight.

In 2012, M applied for leave to remove J from the jurisdiction for 18 months and sought an order for care and control. In the event that leave to remove might be refused, M sought a reduction in the level of J”s access to F. F opposed all these applications and applied for joint care and control or, alternatively, sole care and control in relation to J. M opposed all F”s applications. Both parties agreed that the court should make a joint custody order in relation to J in their favour. Due to the delay in the hearing of the matter, the interim order providing for the shared care arrangement had already been in place for approximately 10 months.

Held, authorizing the temporary removal of J from the jurisdiction and giving joint custody to M and F:

Temporary removal from the jurisdiction

(1) The court set out the considerations to be applied to applications for removal of a child from the jurisdiction. Under the Guardianship and Custody of Children Law (1996 Revision), s.19, the child”s welfare was the first and paramount consideration and the court had therefore to consider all the circumstances of the case with a view to measuring their impact on the child. The established guidelines governing permanent removal were mere guidance and not binding legal principles capable of subverting the paramountcy principle-in particular, there was no presumption that the reasonable relocation plans of a carer would be approved in the absence of compelling reasons to the contrary. Shared care cases formed a different category to which the guidelines did not apply-since both parents played a significant role in the child”s everyday life, it was the possible damage to the child”s relationship with the non-carer

parent which was the important consideration. The considerations relevant to applications for permanent removal were not, however, automatically applicable to applications for temporary removal-but since any damage to the child”s relationship with that parent would only be temporary, the focus should also be on the longer-term consequences of the proposed move (paras. 12–25).

(2) The parties” agreed care arrangement for J amounted to a shared care arrangement. There was no clear dividing line between a primary and a shared care arrangement. The court would consider whether there had been regular interaction between both parents and the child and the nature of their relationship, and this was more important than the precise amount of time spent with each. In the present case, at least during the preceding 10 months, F had played a significant role in J”s care, which was not limited to periods of overnight access at his home, and this amounted to shared care (para. 1; para. 14).

(3) There was no presumption that very young children should reside with their mothers. The equality of the parents” positions was confirmed in the Guardianship and Custody of Children Law, s.19, and the court would therefore treat both parents as carers and not adopt a preconceived preference in favour of mothers. Whilst the traditional advantage of a very young child being with its mother was clearly relevant to the child”s welfare, its importance would vary according to the child”s age and the particular circumstances of the case, e.g. whether the child had been living with its mother and whether she was capable of providing proper care (paras. 30–32).

(4) The court would grant permission for the temporary removal of J from the jurisdiction. The longer-term consequences of the proposed move, especially M”s enhanced career options on her return, would be beneficial to J. Further, the court considered M”s reasons for the move, which were reasonable and genuine; J”s physical needs, which would be adequately met by M”s...