Re C

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Forte and Mottley, JJ.A.)
• Judgment Date: 14 August 2008
• Court: Court of Appeal (Cayman Islands)
• Date: 14 August 2008

Court of Appeal

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

IN THE MATTER OF C (A MINOR)

A

and

R

W.J. Helfrecht and Z.M. Merren-Chin for the applicant;

D. McGrath for the respondent.

Cases cited:

(1) Bellenden (formerly Satterthwaite) v. Satterthwaite, [1948] 1 All E.R. 343, dicta of Asquith, L.J. considered.

(2) Payne v. Payne, [2001] Fam. 473; [2001] 1 FLR 1052; [2001] EWCA Civ 166, applied.

(3) Piglowski v. Piglowski, [1999] 1 W.L.R. 1360; [1999] 3 All E.R. 632; [1999] 2 FLR 763; [1999] 2 F.C.R. 481, considered.

Legislation construed:

Guardianship and Custody of Children Law (1996 Revision), s.7(1): The relevant terms of this sub-section are set out at para. 11.

s.19: The relevant terms of this section are set out at para. 11.

Civil Procedure-appeals-appeals against exercise of discretion-Court of Appeal only to interfere with exercise of Grand Court”s discretion if decision exceeds generous scope of court”s discretion, or plainly wrong

Family Law-children-removal from jurisdiction-Court of Appeal only to interfere with exercise of Grand Court”s discretion regarding relocation of child if decision exceeds generous scope of court”s discretion, or plainly wrong-discretion to be exercised in best interests of child

Family Law-children-removal from jurisdiction-no legal presumption that mother”s reasonable application to move child out of jurisdiction (to live with her in Canada) is valid-nonetheless important for court to consider when assessing best interests of child-rejecting application likely to have detrimental effect on child, and court therefore to allow unless clearly incompatible with child”s welfare-welfare to be determined after considering stated factors, e.g. practicalities, motives and detrimental effects

The respondent (‘the father’) applied to the Grand Court for orders relating to the custody of his six-year-old son (‘C’) and restraining the appellant (‘the mother’) from removing him from the jurisdiction of the Cayman Islands.

The mother, a Canadian citizen who had lived and worked in the Cayman Islands since 2001, wished to return to Canada with C, contrary to the wishes of the father. She had met the father when she worked for his business, and they began a relationship which resulted in the birth of C in July 2002. They had never married, but had at one stage lived together, along with C, during a, albeit turbulent, relationship. Upon the deterioration of that relationship, the mother returned to Canada, with C, without the knowledge of the father, who followed her there and persuaded her to return to the Cayman Islands. Shortly after that, in August 2005, the mother moved out of the father”s home, taking C with her.

As a result, the father commenced the present proceedings. In September 2005, the Grand Court awarded the parties joint custody of C, with

care and control to the mother. The father was awarded access and ordered to pay maintenance. The parties also agreed that neither would remove C from the jurisdiction of the Cayman Islands, without the written consent of the other or the approval of the court. In August 2007, the mother, having to leave the Cayman Islands due to the expiration of her work permit, then applied to the court, seeking that approval.

At the hearing, the Grand Court (Foster, Ag. J.) identified the primary consideration as being what would be in the best interests of C. In evidence, it became apparent that the mother had a strong hostility towards the father, and contradicted all of the other witnesses” evidence in respect of him. Foster, Ag. J. believed that it was her intention to take C back to Canada so as to permanently sever their relationship with the father, which would have been detrimental to C, especially at this stage of his life. As a result, he refused the mother”s application and directed that C reside with the father here. The mother was, however, awarded regular access to C whilst in the Cayman Islands and the father was directed to do all that he reasonably could to encourage and assist C to maintain as close a relationship with his mother as was practicable.

On appeal, the mother submitted that (a) the court”s decision was wrong, or outside the ambit of its discretion, and the appeal court could therefore interfere with it; and (b) the rejection of her application in respect of her reasonable proposal to relocate to Canada with C would have a detrimental impact on C”s welfare and was not therefore in his best interests.

The father submitted in reply that (a) the court had exercised its discretion in the best interests of C (his primary consideration) and its decision had not been either wrong or outside the ambit of that discretion, and the court should not interfere; (b) the reasonable proposal of a primary care giver (in this case, the mother) to relocate her family was just one factor to be considered in the assessment of her child”s best interests-it was not a legal presumption and it had to be considered in the light of the motivations behind the proposal; its practicality; his (the father”s) own reasons for objecting to it; the extent of the detriment caused to him if an application in respect of such a proposal were granted; and the impact on the mother of a refusal; all of which had to be assessed in view of the paramount consideration of what was in the child”s best interests; and (c) the mother”s motivations for the application were selfish and based on hostility towards him and a desire to permanently sever his relationship with C, which would be detrimental to his (C”s) welfare and not, therefore, in his best interests.

Held, dismissing the appeal:

(1) The court would not interfere with the decision of the Grand Court. In refusing the mother”s application to take C out of the jurisdiction of the Cayman Islands, the court had exercised its discretion in the best interests of C, and the appeal court would only interfere with the decision if it exceeded the generous ambit of that discretion, or if it was plainly

wrong-neither of which was the case, as the court had made a thorough assessment of the evidence and correctly applied the relevant principles of law (paras. 8–9; para. 23).

(2) The mother would not, therefore, be allowed to move to Canada with C. The court had to consider that the rejection of any primary care giver”s reasonable proposal for the relocation of their family would have a detrimental impact on the welfare of their child, and an application in respect of such a proposal should therefore be granted unless the court believed the proposal to be incompatible with that welfare. However, the reasonable proposal itself was no more than an important factor in the assessment of the welfare of the child and there was no legal presumption that it was valid. The application therefore had to be assessed after considering the following: (i) whether the proposal was genuine or motivated by a selfish desire to exclude the father from the child”s life; and (ii) whether it was realistic, i.e. practical, well researched and investigated. The application would be refused if it failed either of these tests. If it passed, however, then a careful appraisal of the father”s objections was necessary, i.e. (iii) his motivations for objecting; and (iv) the extent of the detriment both to him and the child if the application were granted. The court then also had to consider (v) the impact a refusal would have on the mother. The court had to weigh the answers to these questions against the overriding principle that the child”s welfare was the paramount consideration. In light of this, the Grand Court had come to the conclusion that the mother”s application was motivated by a strong hostility towards the father and a desire permanently to sever the relationship he had with C (thereby failing the first test), which would have been detrimental to C and certainly not in his best interests. The court therefore agreed, upholding the orders of the Grand Court (paras. 18–21; para. 24).

1 FORTE, J.A., delivering the judgment of the court: On April 10th, 2008, having heard the arguments of counsel for both parties, we dismissed the

appeal, and affirmed the order of the court below. We promised then to put our reasons in writing. This we now do.

2 The appeal is from the decision of Foster, Ag. J., who, inter alia, refused an application by the appellant (‘the mother’), to take her child (‘C’) permanently out of this jurisdiction. Foster, Ag. J.”s orders and directions, in more detail, are as follows:

‘I refuse the mother”s applications in her summons dated August 3rd, 2007, for sole...