Re R and R

JurisdictionCayman Islands
Judge(Williams, J.)
Judgment Date10 October 2014
CourtGrand Court (Cayman Islands)
Date10 October 2014
Grand Court, Family Division

(Williams, J.)

IN THE MATTER OF R AND R

Ms. K.M. Thompson for the adopters;

Ms. R. Whittaker-Myles for the Adoption Board;

Ms. J. Catran, Crown Counsel and Ms. J. Bhoorasingh-Simpson, Crown Counsel for the Attorney General”s Chambers.

Cases cited:

(1) A (An Infant), [1963] 1 W.L.R. 231; [1963] 1 All E.R. 531, referred to.

(2) D (A Minor) (Adoption Order: Validity), In re, [1991] Fam. 137; [1991] 2 W.L.R. 1215; [1991] 3 All E.R. 461; [1991] 2 FLR 66; [1991] F.C.R. 521; [1992] Fam. Law 59, applied.

(3) Manahan v. R., C.A., August 14th, 2008, unreported; noted at 2008 CILR N[16], observations of Zacca, P. applied.

(4) R (Adoption), In re, [1967] 1 W.L.R. 34; [1966] 3 All E.R. 613, applied.

(5) W (A Minor) (Adoption: Non-Patrial), In re, [1986] Fam. 54; [1985] 3 W.L.R. 945; [1985] 3 All E.R. 449; [1986] 1 FLR 179; [1986] Fam. Law 57, applied.

Legislation construed:

Adoption of Children Law 2013, s.2, as brought into force by the Adoption of Children Law 2013 (Definition of ‘Child’) (Commencement) Order 2014, s.2: The relevant terms of this section are set out at para. 44.

Adoption of Children Law (2003 Revision), s.10(4):

‘. . . [A]n adoption order shall not be made-

(a) in any case, except with the consent of every person who is a parent or guardian of the child . . .’

First Schedule, Adoption of Children Regulations (2003 Revision), reg. 5: The relevant terms of this regulation are set out at para. 18.

First Schedule, Adoption of Children Regulations (2003 Revision), reg. 6: The relevant terms of this regulation are set out at para. 18.

Family Law-adoption-age of child-not to refuse adoption merely because close to 18 and effects of adoption during childhood short lived, if legal rights and closer family life provide long-term benefits

Family Law-adoption-procedure-guidelines prescribed for Adoption Board and prospective adopters when applying for adoption order

Family Law-adoption-public policy-court to be wary of granting adoption order if application merely to acquire immigration status for child-when loving biological parents in good health, court may refuse order even if less financially stable than prospective adopting family, particularly if biological parents capable of caring for child or residence order sufficient

The children”s mother and her new husband made an application to the Adoption Board to adopt her children.

The mother and R were both Filipino nationals living in the Philippines and had two children together, A and N. After they separated and the marriage was annulled, R was awarded sole custody of the children. The mother moved to Cayman and married B, a Caymanian national. Shortly afterwards, the Philippine Regional Trial Court granted a temporary protection order in favour of the mother. R subsequently wrote to the mother relinquishing his rights of custody over the children and transferring them to her, and the temporary protection order was made permanent. The mother therefore moved the children to the Cayman Islands to live with B.

When A was 16 and N was 14, the mother and B submitted an application to adopt them. As part of this application, they requested the Adoption Board to dispense with the requirement of R”s consent and highlighted the urgency that the application be processed before A”s 17th birthday as, under the Adoption of Children Law (2003 Revision), s.2, A would cease to be a child and could not be adopted under the Law. The Board, however, felt that it was unable to deliver the children into the adopters” care and possession as R had not communicated his consent to the adoption-although it reached this decision before undertaking any of the inspections or interviews that formed part of the adoption process. It

advised the adopters of their right to appeal against this decision, but they instead chose to attempt to persuade the Board to continue with their application. After the Board received R”s consent in notarized form, it decided to continue the adoption process, undertook the relevant inspections and interviews, and delivered the children into the adopters” care. The Board concluded that the adoption would be best for the children and issued a notice of application for an adoption order-although, by the time that it did so, A was 17 and N was 15. R was given notice of the hearing and informed the Board that he approved of the adoption and would not be attending.

The Attorney General”s Chambers accepted that the Adoption of Children Law (2003 Revision)”s definition of ‘child’ as being a person under the age of 17 was not in line with other legislation, which treated a person as a child until the age of 18. They therefore procured the enactment of the Adoption of Children Law 2013 (Definition of ‘Child’) (Commencement) Order 2014, which came into force on the day of the hearing and which brought into force the definition of ‘child’ in the Adoption of Children Law 2013 as ‘a person under the age of eighteen years.’

Held, authorizing the adoption:

(1) The court would approve N”s adoption. The adopters fulfilled all of the requirements under the Adoption of Children Law (2003 Revision) for adoptive parents. Additionally, R had consented to the adoption and as it was impractical for him to attend the hearing, the court would waive the requirement of his attendance under r.7(2) of the Adoption of Children Rules (2003 Revision). Further, the assessments of the adopters and the children had shown that they had already formed a loving and supportive family; that the adopters were able to look after the children”s physical and emotional needs, and attend to their welfare; and that the adoption would help to build the family bonds between them. Although N was almost 16 and the effects of the adoption during her childhood would therefore be short lived, the court was entitled to grant the adoption if the benefits would enure for the rest of her life. As the legal rights and the closer family life which she derived from the adoption would provide long-term benefits to her regardless of her age, it was in N”s best interests to approve the adoption order (paras. 3–8; paras. 20–30).

(2) The court would approve A”s adoption. The amendment to the definition of ‘child’ in s.2 of the Adoption of Children Law 2013 as being a person under the age of 18 came into force on the day of the hearing. This definition brought the Law in line with other areas of family law and it was preferable that it be universally applied. The court was therefore able to approve A”s adoption, notwithstanding that she was 17 years old. The court would be wary, however, of granting adoption orders where it appeared that the application was merely being made to acquire immigration status for the child-even if the Chief Immigration Officer had granted the child permission to reside in Cayman for the purpose of the proceedings. This was particularly common when the application was

made for older children or was being made by wealthy relatives with Caymanian citizenship. Where the child had loving biological parents in good health, even if in less financially stable situations, the court might refuse an order-particularly if the biological parents were still capable of caring for the child or a residence order would suffice (para. 31; paras. 38–46).

(3) The court issued certain guidance for future applications. When making an application, notice and summonses must be issued and served on all respondents and should be done promptly, even if the prospective respondent had consented to the adoption. The hearing date should therefore be scheduled so as to be sufficiently far into the future that any respondents would be able to attend the hearing if they desired to do so. This was particularly important where there were issues relating to dispensing with consent or the court”s jurisdiction, or where a respondent lived outside the Cayman Islands and would need to make significant travel arrangements. The Board should also set time frames for the completion of each stage of the application process, ensure that all parties complied with these deadlines and should remind parties of them. In order to aid this, it should consider producing a written step-by-step guide to be distributed to all prospective applicants and respondents. The court further highlighted that although under the current practice the initial application to the Board was treated as the ‘ongoing application’ for the purposes of the Law, it was arguable that the court should actually treat the Form A application to the court as the starting point of the ongoing application. Applicants and the Board should therefore ensure that all of the formalities were completed and that all of the forms had been filed promptly and should avoid waiting until shortly before the hearing before doing so (para. 7; paras. 14–17).

(4) The court further issued the following advice for ensuring that the Board was able to keep delay to a minimum during each stage of the application. After an application was commenced by the prospective adopter making a Form A application to the Board, the Board should provide within seven days an explanatory memorandum in Form C to the parent or guardian proposing to place the children. The pre-adoptive parents or guardians have then to sign and deliver the Form D certificate (confirming their understanding of the content of Form C) within 21 days. If they fail to do so, the Board should contact them about the delay. Although reg. 4 stated that the Board could not continue until Form D was received, this could not be the case where a parent who could not be found, or who refused to play a part in the proceedings, failed to return the form. Further, regs. 5–6 stated that the children could not be delivered to the adopters until the adopters had been interviewed and any premises in which they intended the children to reside had been inspected (‘the home...

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