29 October, 2020
Removal applications are made to the Court by a parent who wishes to take a child or children to live with him or her in another country and where the other parent objects to the children leaving the Cayman Islands.
The burden of proof is on the parent wishing to show that the move is in the children’s best interest. The applicant must illustrate to the Court by way of extensive affidavit and oral evidence that permanent removal to the proposed country would provide the child or children with a better overall welfare package as well as specifically addressing the question of contact with the parent who will remain. Depending on the age of the child or children, the Court may also seek to ascertain their views as to the proposed permanent removal. In almost every case the Court will also require a welfare report from an independent professional, either a social worker from the Department of Children and Family Services or from an appropriately qualified child psychologist.
The leading Cayman Islands case on relocation is B v B. The Grand Court judgment was handed down in in April 2013 and the Cayman Islands Court of Appeal subsequently approved that decision. A summary of the main principles are as follows.
A. The first and overarching principle must be that the child or children’s welfare is paramount. It takes precedence over any other consideration.
B. The Court’s exercise is to:
C. The six questions which the Court should consider and address when determining what is in the children’s best interests and by reference to the paramountcy principle are as follows:
The Court will ask question 1 and question 5. If the application fails either of those tests, refusal will inevitably follow. If the application passes both tests, then there must be a careful appraisal of the remaining party’s opposition by asking the other four questions. The outcome of those last four questions must be considered in line with the overarching principle that the children’s welfare is paramount and by reference to the Welfare Checklist which is set out at Section 3(3) of the Children Law (2012 Revision) and cited below:
In conclusion, applications seeking the Court’s permission for one parent permanently to remove a child or children in order to live with him or her in another jurisdiction are among the most difficult, emotional and complicated in the area of family practice. If an application is to be made, it will require significant thought, research and work so as to increase the prospects of success.
Broadhurst LLC is a boutique offshore litigation firm with over 30 years’ experience in the Cayman Islands. We have a strong history of successfully obtaining relief to protect the interests of our clients and are regularly instructed on behalf of applicants and respondents.
For further assistance in respect of a child which may be permanently removed from the Cayman Islands please reach out to one of the authors of this publication.