Re Murphy

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 08 May 1985
• Court: Grand Court (Cayman Islands)
• Date: 08 May 1985

Grand Court

(Summerfield, C.J.)

IN THE MATTER OF R. and B. MURPHY

D.E. Pitch for the applicants;

G. Giglioli for the respondent.

Cases cited:

(1) B. v. B. (B. (An Infant) Intervening)WLRUNK, [1971] 1 W.L.R. 1486; [1971] 3 All E.R. 682; sub nom. B. (G.W.) v. B. (P.W.), (1971), 115 Sol. Jo. 486.

(2) D. (Minors) (Adoption by Parent), In re, [1973] Fam. 209; [1973] 3 All E.R. 1001; (1973), 117 Sol. Jo. 696; 4 Fam. Law 125, dictum of Baker, P. applied.

(3) K. (A Minor) (Access Order: Breach), In re, [1977] 1 W.L.R. 533; [1977] 2 AH E.R. 737; (1976), 7 Fam. Law 82, dictum of Latey J. applied.

(4) M. v. M. (Child: Access), [1973] 2 All E.R. 81, applied.

(5) S. (Infants) (Adoption by Parent), In re, [1977] Fam. 173; [1977] 3 All E.R. 671; (1977), 121 Sol. Jo. 222; 7 Fam. Law 238, considered.

Family Law-adoption-consent of father-dispensation with consent-court reluctant to dispense with consent of father wishing to preserve natural tie and contribute to children”s welfare-children”s long-term interests require emotional and material contribution to development by natural parent, even if visits occasion minor upsets

The applicants, a married couple, applied for the adoption of the two children of the wife”s former marriage.

The wife”s first husband, a United States citizen, moved to Florida and started a new career when their marriage was dissolved. The wife was given custody of the children and he was to have reasonable access. Only nominal maintenance orders were made, since the wife”s financial position was better than his, and he never contributed to the maintenance, schooling or welfare of the children; he also saw very little of them.

The wife remarried and had a third child. The two older children accepted their stepfather completely and the family was well-integrated. The couple applied for the adoption of the children of the wife”s first marriage but the children”s natural father refused to give his consent. The children themselves were eager to have their name changed to that of their stepfather.

The applicants submitted that the father”s consent should be dispensed with under the terms of the Adoption of Children Law (Revised), s.11(1), since it was in the children”s best interests that the whole family should bear the same surname and that they should rank equally with the third child. The children”s natural father had made no material contribution to their welfare and had shown little interest in them, while the children themselves were emotionally closer to their stepfather than to their natural father.

The father alleged that he had suffered straitened financial circumstances while building a new career and that these, combined with his former wife”s obstructive attitude, were the reason for his failure to take advantage of his access rights. He claimed that recent improvements in his financial position would mean that he would soon be able to see his children regularly, and submitted that it would not be in the children”s interests to deprive them of all ties with their natural father.

Held, dismissing the application:

It would not be proper to make adoption orders which would wholly frustrate the access rights of the children”s natural father when he him-

self wished to preserve the natural tie and showed a willingness to make his own contribution to the welfare and well-being of the children. The fact that the children, as well as the applicants, were eager that their name should be changed to that of their stepfather could not by itself be a legitimate ground for adoption. The children were unlikely to understand that it was in their long-term interests that the link with their natural father should not be severed and it was probable that their father”s visits would cause some minor upsets, but, in the absence of exceptional circumstances, it would be wrong in.principle to deprive them of the long-term emotional and material contribution to their development which their natural father could make and the application would therefore be dismissed (page 345, line 16 – page 348, line 5; page 348, line 14 – page 349, line 14).

SUMMERFIELD, C.J.: This is an application by a husband
and wife for the adoption of the two children of the wife”s former
marriage. The wife married her former husband in August 1971.
A daughter (Katherine Marie) and a son (Edward Lawrence)
30	were born to them on March 8th, 1976 and October 29th, 1977
respectively. That marriage broke up in July 1980 and was dis-
solved in October 1982. Custody of the two children was given to
the wife with reasonable access to the former husband. Nominal
maintenance orders were made as the wife comes from a well-off
35	family and was in much the better position to care for herself and
the two children. The former husband is a United States citizen.
The wife is Caymanian by birth. During the marriage the couple
lived in the Cayman Islands, but shortly after the dissolution the
former husband, who had no entrenched rights to live and work
40	here, left these Islands and, according to him, had to start and
build a new career in Florida where he now lives.

The wife married her present husband in August 1982. They
both work in a family business and are comfortably off with a spa-
cious, well-furnished home. A young child has been born to this
marriage. The two earlier children call their stepfather ‘Dad’
5	and in every respect he is and acts as their father figure. They all
love each other dearly. It is a well-integrated family and every-
thing would appear to point in favour of making an adoption
order in favour of the mother and the stepfather and completing

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