1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 FAMILY DIVISION 3 4 5 CAUSE: FAMD0027/2007 6 7 BETWEEN: 8 NJ 9 10 PLAINTIFF 11 AND: 12 JB 13 14 RESPONDENT 15 16 17 18 Appearances: Parties in Person 19 20 Before: The Hon. Mr. Jnstice Patrick Brooks (Actg.) 21 Heard: 1 't, 2nd and 8th Jnly 2014 22 23 JUDGMENT 24 25 l. In her affidavit supporting her application for the grant of sole decision- 26 making/parental responsibility for her two children, NJ asserts that their 27 father, JB, a Jamaican national, will be obliged to leave the Cayman Islands 28 by 5 July 2014 and to remain abroad for at least a period of a year. She says 29 that the obligation arises from a work permit restriction that affects JB. JB 30 opposes the application on the basis that he is entitled to a further renewal of 31 his permit to work in the Cayman Islands and that the basis of NJ's 32 application is flawed. Judgment. FAM D0027/20077. NJ vJB. Coram: BrooksJ (Aetg.) Dale: 08.07.14 Page 1 0/10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
The application raises the issue of the court's jurisdiction to make the order sought by NJ.
When the application came on for hearing before the court, the parties appeared in person, without the benefit of counsel. After hearing them, the court took time to consider the application. As was promised, this is the decision in respect of the application and the reasons for that decision. BACKGROUND
The parties were previously married, and the children, both still minors, were born during the marriage. At the time of their divorce in 2007, the parties agreed, among other things, to joint custody of the children, with NJ having care and control of them, with reasonable access to JB. s. Since that time there have been on-going issues concerning the payment by JB of the sums agreed for maintenance of the children. Those issues do not affect this application. Neither is there any issue concerning the health, welfare or safety of the children. Both parties currently live and work in the Cayman Islands and both children live with NJ, who is a national of the Cayman Islands. Judgment. FAM D0027/20077. NJvJB. Coram: BrooksJ. (Actg.) Date: 08.07.14 Page 2 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
NJ provided, in support of her application, a copy of a work pennit renewal issued to JB pursuant to the Immigration Law (2012 Revision). The document stipulates that the period covered by the renewal expires on 5 July
A specific condition endorsed on the renewal is that it is a "final work permit granted" to JB. It also stipulated that "a work pennit shall not be granted or renewed for the employee until one year after departing the Jurisdiction and ceasing to hold a work pennif'.
On the first date of the hearing, JB indicated that he had all the documentation in place to apply for a renewal of his work pennit. The court granted him time to file his application for renewal, and on the following day he provided, to the court, a receipt from the Department of Immigration, which indicated that he had done so.
The likelihood of success or otherwise of his application for renewal of his work pennit is not an issue for consideration by this judgment. THE ApPLICATION
The relevant portion ofNJ's fonnal application is set out below to allow for a clear understanding of her request. It states: Judgment. FAM D0027/20077. NJvJB. Coram: BrooksJ. (Aetg.) Date: 08,07.14 Page 3 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
"Applicant is requesting sale decision making/Parental Responsibility for the children. for the following [reasons}: medical care. education, travel, passport issuance and renewal; as the Respondent is leaving the Cayman Islands on or before the date of 5 July 2014 on a mandatory Immigration Roll over." Relying on the contents of the work permit renewal document, mentioned above, NJ states that, JB will be obliged to remain outside of the Cayman Islands for at least one year before he will be again eligible to live and work here. During this time, she states, decisions will have to be made in respect of the children and it would be onerous, inconvenient and costly to have to seek JB' s formal input on each occasion that such a decision has to be made. In particular, she asserts, the younger child's passport has expired and the consent of both parents is required in order to secure a renewal. Additionally, she contends that decisions may have to be made regarding schooling for both children based on their ages (under 10 years). NJ also asserts that although the children are healthy, consent may be required for certain medical matters, if they arise. All these matters, she contends, unless her application is granted, would involve the time and expense of sending documents to and from Jamaica, where JB is most likely to be. Judgment. FAM D0027120077. NJ vJS. Coram: BrooksJ. (Aetg.) Date: 08.07.14 Page 4 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
PARENTAL RESPONSIBILITY The starting point of this analysis is that s.4 of the Children Law (2012 Revision) (hereinafter called the Children Law) stipulates that each parent of children born within wedlock has parental responsibility for such children. The relevant portion ofthe section states: "4. (1) Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child." Parental responsibility has been defined by the Children Law. Section 5 states, in part: "5. (1) In this Law ''parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. " There is nothing in the Children Law which abrogates the conferment of that responsibility, although other persons may also secure parental responsibility for such a child. The next enquiry to be made is, therefore, whether the inherent jurisdiction ofthe court or, indeed, any other law, allows the court to deprive a person of the responsibility with which he or she has been fixed by the Children Law. Judgment. FAM D0027/20077. NJ v JB. Coram: Brooks J. {Ae/g.} Date: 08.07.14 PageS 0/10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
JURiSDICTION There is, wldoubtedly, an inherent jurisdiction residing in the Grand Conrt in relation to children. This jurisdiction is recognised in several of the provisions of the Children Law. Section 10(3) is only one of such provisions. It states: "(3) For the purposes of this Law "family proceedings means any proceedings- (a) Under the inherent jurisdiction of the Grand Court in relation to children; and (b) Under ..... " No other law, statutory or otherwise, addressing the court's power to affect the entitlement to parental responsibility has been brought to the attention of the court for this analysis. By virtue of its jurisdiction, the Grand Conrt may make such orders as are required to ensure that the best interests of the relevant child are protected. In all circwnstances, the court shall consider, as paramoWlt, the welfare of the relevant child. Judgment. FAM D0027/20077. NJvJB. Coram: BrooksJ. (Acrg.) Dale: 08.07.14 Page 6 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36
"It is very unusual for parental responsibility to be terminated by order of the court." So said Baker J. in CW v sd. The cases in which parental responsibility has been terminated have been few and far between. Two other cases on the point are Re P (Terminating Parental Responsibilityi and A v D (Parental Responsibility)3. Both CW v SG and A v D relied heavily on the principles set out in Re P. In Re P, Singer J. stated that parental participation should be encouraged. He said, in part, at pages 757-758 (as quoted in CW v SG): "1 start from the proposition that parental responsibility - both wanting to have it and its exercise - is a laudable desire which is to be encouraged rather than rebuffed. So that I think one can postulate as a first principle that parental responsibility once obtained should not be terminated in the case of a non-marital father on less than solid ground, with a presumption for continuance rather than for termination. The ability of a mother to make such an application therefore should not be allowed to become a weapon in the hands of the dissatisfied mother of the non-marital child: it should be used by the court as an appropriate step in the regulation of the child's life where the circumstances really do warrant and not otherwise. I have been referred in outline to four authorities as to the circumstances in which a court will make an order for parental responsibility [here the learned judge identified the well-known authorities dealing with such applications] .... Such applications for parental responsibility orders are governed by the considerations set out in section 1 (1) of the Children Act, namely that the child's welfare is the court's paramount consideration. I can see no reason why that principle should be departed from in considering the termination of a parental responsibility order or agreement. 1 [2013] EWHC 854 (Fam). 2 [1995] 3 FCR 753 3 [2013] EWHC 2963(Fam) Judgment. FAM D0027120077. N,JvJB. Coram: BrooksJ. (Aetg.) Date: 08.07.14 Page 7 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 24 25 26 27 28 29 30
Key concepts to the consideration of the making of an order are evidence of attachment and a degree of commitment, the presumption being that other things being equal a parental responsibility order should be made rather than withheld in an appropriate case." (Emphasis supplied) In the two more recent of the cases cited above, orders were made which deprived the respective fathers of parental responsibility in respect of the relevant children. Those were, however, cases involving violent or improper sexual behaviour by the fathers, which affected the relevant child either physically or emotionally. It would seem that unless the relevant child would be negatively affected, either physically or emotionally, contact with both willing, capable parents should not be denied. The question of the rights which a person with parental responsibility may exercise is also addressed in s.4 of the Children Law. The relevant portions state: "(4) More than one person may have parental responsibility for the same child at the same time. (5) A person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child. (6) Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility, but nothing in this Part of this Law shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child." (Emphasis supplied) Judgment. FAM D0027120077. NJ v JB. Co;~-m~: BO:-ro-o7ks-c,Jc-. (.~Ac-Ctg-c.)-;D;--atc-e:-oOc;;8.~07;-;.1~4 Page 80fIO 1 2 3 4 5 6 7 11 12 13 14 15 16 17 18 19 20 21 22 23
It is, therefore, only in matters where the consent of both parents is required, which matters are relatively few, that one parent, acting alone, may not make decisions in respect of a relevant child. ApPLICATION TO THIS CASE In applying those principles to this case, it may be stated that there is nothing that has been presented in this application that justifies the removal of parental responsibility from JB and giving sole parental responsibility to NJ. There is a bundle of responsibilities involved in parental responsibility. The embracing of those responsibilities ought to be encouraged and not, as Singer J said, "rebufJecf'. JB, although he has not been entirely faithful to his obligations to provide maintenance for the children, has, apparently, been generally been in compliance with them. He has not sought to shirk from them and has indicated that his lapses are as a result of financial inability. NJ has not made any other complaint against JB with. regard to his parental responsibilities. This, therefore, is an entirely different case fTOm the circumstances in the cases mentioned above. JB's involvement in his children's lives should be encouraged rather than discouraged. In that regard, therefore, NJ's application for sole parental responsibility must be denied. Judgment. FAM D0027/20077. NJvJB. Coram: BrooksJ. (Aetg.) Date: 08.07.14 Page 9 oflO 1
For that reason also, JB' s participation in critical decisions involving the 2 children's lives augurs better for his attitude toward them and his 3 responsibilities to them and is likely to enhance the bond with them. They 4 can only benefit from the knowledge that they have a caring father who 5 participates in the major decisions to be made concerning their lives. 6 7
Although there may be some inconvenience which would result if JB is 8 obliged to live outside of the Cayman Islands, it is unlikely to be onerous on 9 the parties. The modem methods of communication enable documents to be 10 transmitted almost instantly. Consents, when required, may be given via 11 facsimile, e-mail and other digital methods. 12
Based on all the above, NJ's application must be refused. 13
In assessing the question of costs of the application, it is noted that there is 14 no indication that it was made other than in good faith, the parties attended 15 without the benefit of legal representation and only the basic documents 16 were filed. There will, therefore, be no order as to costs. 17 Dated this the 8th day of July 2014 18 19 20 21 . e Patrick Brooks e Graud Court Judgment. FAM D0027120077. NJvJB. Coram: BrooksJ. (Actg.) Date: 08.07.14 Page 10 of 10