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Recently, we were faced with two individuals whose Permanent Residence applications were rejected. Both of these applications were, in our mind, applications which should be granted and therefore the fact that they were not granted surprised us. Upon reviewing the points which they had been awarded, it appeared to us that there were clear errors made in assessing the applications which if resolved in our clients’ favour would lead to the award of Permanent Residence to them.
Our clients were then faced with the decision of whether to appeal the decisions or to ask for a reconsideration of their decisions. There is no formal reconsideration process, and we believe that it should only be used in situations where there is a clear administrative error. In both of these cases reconsideration requests were made and approved prior to the time limit for any appeal to be filed expiring.
In some cases, reconsideration requests are not appropriate, however in these cases the Department exercised their discretion in a reasonable manner and accepted the submissions we made and in doing so our clients not only obtained Permanent Residence in a far quicker manner than they eventually would via an appeal but incurred less legal fees.
Latest Statistics
Currently there are 37,334 work permits held in the Cayman Islands. This is an increase of 25 work permits from the number reported to us as at 17 July 2024.
The top nationalities are: Jamaica (15,427), Philippines (6,463), India (2,081), United Kingdom (2,024), Nepal (1,246), Canada (1,197), Honduras (1,172), United States of America (919) and Nicaragua (715).
Most of the top 10 nationalities increased in work permits, however; there was a slight reduction in work permits held by Indians by 11 and Nicaragua by 5.
In June 2024 the Board determined:
- 138 Right to be Caymanian (“RTBC”) applications on the basis of naturalisation.
- 58 Right to be Caymanian applications on the basis of marriage.
- Right to be Caymanian applications – up to 12 months.
- PR point based applications – up to 12 months.
- RERC as spouse of a Caymanian – between 3-6 months.
- RERC as Spouse of a PR holder – between 3-6 months.
- Work Permit grant – 12 weeks.
- Work Permit renewal – 12 weeks.
- Variations to work permit – between 3-6 months.
HSM Wins Gold Medal for Immigration Law by Best of Cayman 2024
HSM’s immigration team has been recognised for the second consecutive year with a gold medal by the Best of Cayman Islands for their 2024 awards. Our team handles everything from work permit applications to the right to be Caymanian to permanent residency and everything in between, including relocation assistance, registration as a British Overseas Territory Citizen and passport applications. Should a matter become contentious, we can assist our clients with court proceedings.
The Best of Cayman Islands is a vote-based contest and nominations are provided by the community. This recognition is a testament to HSM’s high-quality immigration support in the Cayman Islands and personal attention to our clients.
HSM is thrilled to be featured again and thanks our clients as well as the public for their votes.
Succession laws in the Cayman Islands are based on the principle of testamentary freedom, which means that a person can, if not incapacitated, choose how their estate is dealt with after their passing, but only if they have a properly drafted and valid Will in place. If a person dies without a Will in place, then they will be considered to have died “intestate” and their assets will be passed on in accordance with the applicable rules and proportions set out in relevant provisions of the Succession Act (2021 Revision). However, the beneficiary entitled to receive the assets under this legislation may be a person that you do not wish to inherit your assets.
Benefits of a Will
As the saying goes “you can’t take it with you”, but with a properly drafted Will you can at least decide what you wish to happen to “it”, whether it be moveable or immovable property.
A properly drafted and validly executed Will allows you to document your wishes and appoint a trustworthy representative, known as an executor, who will be responsible for administering your estate and giving legal effect to your last wishes. Having a formal Will in place may help to avoid the additional costs associated with dealing with an intestate estate.
Another benefit of a properly drafted Will is the ability to incorporate a testamentary trust allowing you to decide when a beneficiary is able to take control of the estate assets. This type of trust is particularly useful in situations where a beneficiary is a minor and may not be mature enough to receive and manage a vast amount of inheritance.
Formalities of a Cayman Will
In the Cayman Islands, the validity of a Will depends on strict compliance with the relevant statutory requirements as set out in section 6 of the Wills Act (2021 Revision).
Broadly speaking, for a Will to be valid:
1. the person making the Will, known as the testator, must be of sound mind, at least 18 years of age, and must not be under any undue influence or coercion whilst making the Will.
2. it must be in writing;
3. the testator (or by some other person at their direction) must sign the end of the Will;
4. the testator must sign the Will or acknowledge their signature in the presence of two witnesses present at the same time. Importantly, these witnesses should not be the beneficiaries; and
5. the witnesses must attest and subscribe the Will in the presence of the testator.
Whilst some of the requirements appear straightforward, there are plenty of pitfalls in the drafting, signing and execution process which could result in the Will being deemed invalid or challenged during the probate process.
Whilst it is always recommended to create a Will using your legal name, it can be possible to find a Will legally valid if the Testator uses a name that doesn’t match their legal name. In the recent decision of Smith v Smith et al -G 135 of 2020 the Honourable Justice Asif K.C. ruled on 12 June 2024 that:
“the crucial features for a will to be valid are the identification of the testator, however that is done, coupled with the testator’s intention that the document shall have testamentary effect.”
In this particular case the Testator created the Will using a name that was different from his legal name (he added his stepfather’s surname to his own). The Court found that even though it wasn’t his legal name, it was easy to show that the Will was valid because it was a name that he was known to use, and he was easily identifiable through other means.
Other issues which ought to be considered include the location of the estate assets and/or whether the testator is domiciled in the Cayman Islands, as legal advice may be required from other jurisdictions.
Pursuant to the Formal Validity of Wills (Persons Dying Abroad) Act, 2018, the legislation requires individuals domiciled outside of the Cayman Islands to execute a valid foreign Will dealing with movable property with a Cayman Islands connection such as shares in a Cayman Islands company as long as certain conditions are met.
Importance of Attorney’s Expertise
Whilst creating a Will might seem straightforward, the expertise and guidance of a qualified attorney are indispensable in ensuring that your final wishes are accurately documented, legally binding, and aligned with the laws of the Cayman Islands.
The Honourable Justice Doyle summed up the position well in his closing remarks in this recent Judgment In the Estate of Robert Michael Hamaty, Deceased – FSD 249 of 2021):
“If there is a lesson to be learnt from this case, apart from the importance and desirability of family unity, it is that it is well worthwhile spending money on practicing lawyers qualified in the relevant jurisdiction to get things right and to ensure that testamentary documents are duly prepared, signed and attested. It is often a false economy to try and undertake important legal matters without the benefit of assistance from duly qualified independent lawyers.”
By seeking professional legal counsel, you provide yourself and your loved ones with peace of mind, knowing that your estate will be handled according to your intentions, thus avoiding potential disputes and legal complications in the future. HSM has extensive private client experience and can assist with preparing, maintaining and executing Wills.
HSM’s immigration team has been recognised for the second consecutive year with a gold medal by the Best of Cayman Islands for their 2024 awards.
Led by HSM Managing Partner Huw Moses, the team handles everything from work permit applications to the right to be Caymanian to permanent residency and everything in between, including relocation assistance, registration as a British Overseas Territory Citizen and passport applications.
HSM’s immigration team includes: Senior Attorney Alastair David; Attorney Gavin Dixon, Immigration Services Manager Samantha Bartley; Immigration Services Supervisors: Pete Iton and Ariella Smith; Senior Immigration Services Assistant: Dwyane Wright and Immigration Services Assistants: Chandra Bodden, Ayla Ramirez-Ebanks and Tarec Francis.
Should a matter become contentious, unlike immigration providers who are not also law firms, we can assist our clients with court proceedings should this be required. Some of Alastair’s noteworthy cases include a domestic violence victim challenging Cayman’s immigration law and another case where the Court of Appeal declared that the Immigration Act is incompatible with section 9 of the Bill of Rights, which deals with family and private life. Gavin joined HSM in December 2023 and his prior advocacy experience at the Office of the Director of Public Prosecutions makes him well-versed before the Cayman Courts.
HSM strives to be at the forefront of immigration matters in the Cayman Islands. For the latest news, HSM sends regular newsletters that contain up-to-date statistics, application timelines and covers other interesting topics related to immigration.
Subscribe to our immigration newsletter: https://hsmoffice.us18.list-manage.com/subscribe?u=fdabad5b2687d06bedff93086&id=291c453425.
The Best of Cayman Islands is a vote-based contest and nominations are provided by the community.
HSM is thrilled to be featured again and thanks the public as well as clients for their votes.
This recognition is a testament to HSM’s high-quality immigration support in the Cayman Islands.
Good news for Caymanian brand owners! On 20 August 2024, the Cayman Islands Government announced its decision to amend the Trade Marks Act, 2016, and the Trade Mark Regulations, 2017, with the aim of making it more convenient and accessible for domestic entrepreneurs and creative individuals to protect their intellectual property.
This initiative is a positive step toward creating a more supportive regulatory environment, particularly for Micro[1] and Small Business[2] (MSB) owners. By making the process more affordable and user-friendly, the amendments are expected to encourage greater investment in and protection of invaluable intellectual property assets. The highlights being:
- Registration of IP without a registered agent: The existing act mandates all individuals and enterprises to seek assistance from an agent registered with the Cayman Islands Intellectual Property Office (CIIPO) to make any official submissions. The upcoming amendment will no longer require that they appoint a registered agent to file IP documents at the CIIPO. However, they can still choose to use an agent such as HSM IP to alleviate the administration burden and guide them through the process.
Waiver of Official Fees:
- Annual Fee: Under the current laws, all registered trade mark holders are required to pay an annual fee of CI$200 to maintain their trade mark rights and ensure they remain in good standing. It is anticipated more fees will be waived for Micro & Small Businesses.
As a prominent advocate and supporter of local enterprise, Huw Moses, Managing Partner of HSM IP, welcomes this proposal by Deputy Premier and Minister of Financial Services and Commerce, the Hon. André Ebanks MP for making intellectual property more convenient and accessible to all.
Huw is an appointed member of the Intellectual Property Working Group (IPWG), which assists the Cayman Islands Government with intellectual property guidance. HSM IP will be actively monitoring this legislative change and will be updating our clients accordingly.
[1] ‘Micro businesses’ are those that, among other conditions, employ up to four employees (excluding the owner), and have an annual gross revenue not exceeding CI$250,000 in the preceding fiscal year.
[2] Small businesses are those that, among other conditions, employ up to 12 employees (excluding the owner), and have an annual gross revenue not exceeding CI$750,000 in the preceding fiscal year.
Alexander Davies, HSM litigation attorney, applied on behalf of a defendant to proceedings, Butterfield Bank (Cayman) Limited, to strike out the plaintiff’s claim for want of prosecution. The claim for damages flows from a personal injury sustained when the plaintiff tripped on stairs on her employer’s premises in 2014. Proceedings were protectively issued in 2017. Following a protracted history, including an interlocutory appeal to the Cayman Islands Court of Appeal heard in 2019, and several changes of attorneys by the plaintiff, the case had ground to a halt. The key issue had become the plaintiff’s claimed permanent disability due to chronic pain, and whether this was caused by the index injury. The defendant’s nominated expert in chronic pain, whom had examined the Plaintiff in 2018, was by January 2024 no longer available to give evidence due to having retired.
Giving judgment on the application, Hon. Asif J. K.C. found that the plaintiff had caused or contributed to inordinate and inexcusable delay in bringing her claim, which had resulted in genuine prejudice to the defendant, and the test for striking out the claim was therefore satisfied. Rather than striking out the entire claim, however, the learned Judge instead restricted the scope of the claim, debarring the plaintiff from pursuing a claim based upon the reported chronic pain and associated disability.
The judgment on 10 July 2024 provides a useful summary and review of the law pertaining to applications to strike out proceedings for want of prosecution in the Cayman Islands.
El Salvador has taken a significant step in advancing its intellectual property reforms with the enactment of new legislation, as published in the Official Gazette Number 153 dated 15 August 2024. This legislation consolidates the country’s existing IP regulations and is set to come into effect six months later, on 15 February 2025.
This legislation marks a significant and welcome shift from the three-decade old intellectual property framework established by the Law on Trademarks and Other Distinctive Signs, as well as the previous Intellectual Property Law, which only addressed matters related to copyright, related rights and industrial property in relation to inventions (patents), utility models, industrial designs.
Considered to be establishing a comprehensive IP regime, the following are key highlights of the new law:
- Creation of a centralized IP institute: The law establishes the Institute Salvadoreno de la Propiedad lntelectual (ISPI) within the Centro Nacional de Registros (CNR), streamlining IP activities under a unified framework. This institute will be replacing the Intellectual Property Registry.
- Publications (Article 121): Presently, new intellectual property filings are published in the Official Gazette and in a newspaper of major national circulation. Now, this new law has created an IP Bulletin dedicated to intellectual property publications. The ISPI will electronically publish the trade mark application in this designated IP bulletin within four months following the notification of acceptance of the trade mark and upon payment of the corresponding fee by the applicant.
- Expansion of what constitutes a trade mark (Article 107): The new law has made a commendable move by expanding the definition of a trade mark. This updated definition now extends protection to non-distinctive trade marks such as taste and textures.
- Upgraded protection and new timelines:
- Trade Marks and Other Distinctive Signs
(i) Trade Names (Article 171): The new law requires renewal of Trade Names after every 10 years in contrast to the previous protection granted for indefinite validity. The registration will be valid for 10 years from the date of registration and will be renewable for equal periods. In order to renew the trade name, the applicant must prove its use. Trade Names which have been registered before this new law comes into effect will remain registered for 10 years from the date of their registration.
(ii) Commercial Advertising Signs (Article 166): Similarly, Commercial Advertising Signs are now valid for 10 years from their date of registration in contrast to the indefinite validity under the old law. Use must be proved on its renewal. Signs which have been registered before this law comes into effect will only be registered for 10 years from the date of their registration.
(iii) Franchise Contracts (Article 140): The new law now provides for the possibility of registering franchise contracts. License holders can also register a license to use a registered trade mark.
(iv) Annulment of Trade Marks (Article 144 in relation to Article 111): The new law now allows interested parties to file an action to annul the registration of trade mark. Previously, the law mandated the need to file such an action before the Court.
(v) Cancellation of Trade Marks for becoming “Generic” (Article 145): In addition to the above, interested parties may file for the cancellation of a trade mark (goods or services) on the basis it has become generic.
(vi) Domain names (Article 316): If a distinctive sign application contains a domain name (generic or country code top-level), the applicant must provide documentation justifying its use when applying for registration. However, submitting this documentation does not guarantee immediate approval, as the application will still be reviewed to ensure it does not infringe the rights belonging to any other distinctive sign or an existing company name (Article 112 (e))
- Patents and Industrial Designs
(vii) Industrial Designs (Article 249): The protection is extended to 15 years from 10 years under the previous law. The date of renewal will be calculated from the date of filing the application. The patent holder will also have to pay a maintenance fee after every five years.
(viii) Bolar Exception (Article 209): An express definition of the Bolar Exception is now introduced in this law clarifying when this defence from a patent infringement claim may be available.
(ix) Invention that cannot be protected (Article 197-(g): Under the new law, products or procedures already patented cannot be patented again merely due to the fact that the use now differs from that of the original patent.
(x) Schemes for encouraging IP protection (Article 324): This new law has introduced exemptions and flexibilities for various entities such as institutions belonging to the State and the Municipalities are exempted from payment of official fees; 50% official fee exemption to higher education institutions, individuals registered with the National Registry of Cultural Workers and Art, and Micro and Small Business Owners, seeking intellectual property protection.
The newly revamped legislation in El Salvador is aiming to encourage businesses (both domestic and international) to invest in and safeguard their IP. By modernizing the legal framework for protecting intellectual property, the law is providing a clearer and more modern framework for applicants.
Should you like to review the current IP landscape in El Salvador, you may access HSM IP’s brief country guide discussing the existing trade mark and patent framework.
Who’s Who Legal (WWL) has featured Huw Moses as a notable Intellectual Property expert in their recently released 2024 Trademarks Guide.
WWL says “Huw Moses is a reputable name in intellectual property. He is well known for having a major role in drafting most of the trademark laws in the Cayman Islands.”
Huw Moses is the Managing Partner of HSM IP. He advises on all aspects of Intellectual Property protection, enforcement and dispute resolution specialising in the Caribbean. Huw is a member of various Cayman Islands Government Committees on IP reform. In 2023, Huw was appointed and is an active member of the Intellectual Property Working Group (formally known as the Intellectual Property Steering Committee) in the Cayman Islands. Huw was also instrumental in setting up the Intellectual Property Caribbean Association (IPCA), which promotes IP rights in the Caribbean and establishes a forum for better communication amongst IP practitioners.
WWL identifies the foremost legal practitioners in multiple areas of law and recognition is based strictly on merit – you cannot buy entry into their publication. Recipients must be recommended for their expertise in the field by independent sources, either from clients or peers.
Kate Cleary, an Intellectual Property Manager at HSM IP, reached out to Peter Dutton, Managing Director at Jacques Scott to get his feedback on registering his trade mark in the Cayman Islands.
HSM IP is a specialist intellectual property law practice based in the Cayman Islands and protects creative works (trade marks, patents, copyright, designs and domain names) throughout the Caribbean and Latin America.
Jacques Scott, established in 1962, is a fine wines and spirits retailer. In April 2024 the company unveiled a new logo. The new logo still features the beloved cluster of grapes, which signifies the key ingredient of world-class vintages. The grapes design was refreshed to be more contemporary and received the addition of ‘1962’ to recognise that they have been trading for over 60 years.
What inspired Jacques Scott to register their trade mark?
Even before the logo rebrand, Jacques Scott placed priority on their previous logo by registering it in the Cayman Islands with HSM IP. Jacques Scott’s previous logo had been with the company for over 25 years. While a recognizable symbol in the Cayman Islands, it was time for a refresh. As part of their commitment to their brand Jacques Scott reached out to HSM IP to update and register their rebranded logo.
HSM IP encourages brand owners to ensure the latest versions of their trade marks are duly registered to maximise their level of protection and ensure all channels of legal recourse are available should a third party attempt to use or register a confusingly similar mark. In such cases, even small or minor differences can be of vital importance.
Why is registering your trade mark important to you?
Peter Dutton: “To protect the brand and logo, which are very important to us.”
Jacques Scott employs over 130 staff members and has opened three new stores in the past five years including a revamp of their airport duty-free location. With such growth, it is important to protect the brand to help foster brand loyalty with not only their staff but with its customers. Thanks to Cayman’s thriving tourism industry, a brand with a strong reputation locally in the Cayman Islands is likely to be exposed to an international audience. Registering a trade mark provides local brand owners with a degree of comfort that their brand is protected under the law.
How did you find the process of registering your trade mark?
Peter Dutton: “Lengthy but fairly straightforward. I appreciate HSM IP’s guidance throughout the process.”
A trade mark agent with extensive experience in registering trade marks in the Cayman Islands is an invaluable asset to businesses seeking to protect the rights in their brand. With over 100 years of combined experience, the HSM IP team is uniquely placed in Grand Cayman to offer tailored advice and assistance throughout the registration process, from providing pre-filing advice and conducting clearance searches, to preparing and filing the application, monitoring the progress of the application and generally making the registration process as seamless as possible.
What would you say to other businesses who are thinking about registering their trade mark?
Peter Dutton: “While ultimately, it is a business decision, it is worth looking into and provides peace of mind.”
The peace of mind includes a defense to an infringement action. The registration of a trade mark can deter others from seeking to profit from the good reputation of an established brand, as well as offering legal recourse in the event of third parties acting in bad faith. More details as to why you should file a trade mark in the Cayman Islands may be found here.
It is always recommended to conduct a trade mark search before committing to a brand to ensure that a similar/identical trade mark is not already owned by a third party in respect of identical/similar goods and/or services. In this case, HSM IP were the trade mark agents for Jacques Scott’s existing trade mark registrations and were able to assure Jacques Scott that there were unlikely to be any issues with the registration of its updated logo. Searching the Registry of Trade Marks affords the brand owner the opportunity to re-consider its (re-)branding if it transpires there are earlier conflicting registrations.
HSM IP understands the importance of a logo or name as an asset in driving loyalty and maintaining a competitive advantage in an often crowded marketplace. We are committed to safeguarding intellectual property to ensure ideas and creations are secure, protected and able to flourish.
Photo supplied by Jacques Scott. Photo credit: Cayman Compass.
The HSM Group has once again opened its doors for their summer internship programme and has welcomed seven students from the Cayman Islands Further Education Centre (CIFEC).
Cliff Weeks Jr, Alanee Morgan, Janiya Jackson, Javari Pearson, Robert Chung, Korey Berry and Eva Bothwell have joined the HSM team for the summer.
The HSM Group is a full-service law firm and corporate services provider, which offers students the ability to gain experiences across a variety of practices including property, debt collection, intellectual property, corporate services, compliance and even areas outside of law, such as marketing and finance.
HSM’s 2024 summer internship programme takes place July through August and falls shortly after an 8-month long work experience stint with the CIFEC internship programme. HSM offered 13 placements for the 2023/24 academic year.
“For over a decade, HSM’s summer internship programme has been instrumental in developing young professionals,” shares HSM Managing Partner, Huw Moses OBE. “…and I am proud to say that some interns have continued into full-time positions with our firm.”
HSM will be participating at CIFEC’s 2024 Career Fair in September. HSM has supported the CIFEC programme since they opened their doors in 2012 and employs six CIFEC graduates full-time.
Front Row (L-R): Cliff Weeks Jr., Alanee Morgan and Janiya Jackson. Back Row (L-R): Javari Pearson, Robert Chung and Korey Berry. Missing from photo: Eva Bothwell.
The breakdown of a marriage is often one of the most difficult things a person may face. It is emotionally draining, and it can be difficult to make clear decisions. However, for children, it can be devastating, as they are faced with the loss of security of their home and family, and they often feel torn by having to choose between their parents. It is for this reason that parents are encouraged to make decisions that ensure the continued well-being of their children. This can become difficult when it seems like a parent is trying to use the children as tools in the divorce process. This is where the welfare principle takes precedence. The welfare of the children is always the paramount consideration in all matters where children are involved. This means that in order to make all decisions, including in divorce proceedings, the court must consider the well-being of the children first.
In the Cayman Islands, persons can apply for a divorce in person, meaning that they are not required to have an attorney to seek a divorce from the court. In circumstances where parties are able to agree the arrangements for the children’s maintenance and schooling as well as settle the division of their property, they can proceed with this process through the courts, unrepresented.
However, more often than not, parties find it difficult to agree arrangements with the other party. In those circumstances, an application to the court may be required to settle those arrangements.
HSM Associate Shelly Perryman-Pollard is a divorce lawyer in the Cayman Islands and specializes in matters pertaining to children in a divorce. Shelly covers everything you need to know in this article.
The Children Act (2012 Revision)
Applications with respect to children of the marriage are filed pursuant to the Children Act (2012 Revision). Pursuant to this law, a “child” refers to someone who is under the age of 18 years. Further, a “child of the family” refers to any child who is born to both parents in a marriage, or though not born to both, has been treated by the parties as a child of the marriage.
Pursuant to s10 of the Children Act, the court is empowered to make a myriad of orders with respect to children of the marriage, including residence orders, contact orders, specific issue orders, prohibited steps orders and others. Residence orders were previously termed custody orders and refer to orders that clarify the parent with whom the child will primarily live. The ideal situation is where parents can agree to share the residence of the child so that the child is able to have equal time with each parent. Contact orders, previously called access orders, are orders which outline the staying or visiting arrangements which a child will have with the parent he/she does not live with, requiring the parent with whom the child lives to allow the child to spend adequate time with the other parent. It is the right of the child to have adequate contact with each parent. Specific Issue orders are sought in circumstances where parties are unable to agree specific arrangements for the children, such as schooling or travel. Prohibited steps orders are sought in circumstances where one party is seeking to prevent the other from taking an action with respect to the child which they are not in agreement with, such as removing the child from the jurisdiction to reside in another country.
It is important to note that, in the Cayman Islands, the court will not make any of the above orders with respect to a child of the marriage unless it considers that doing so would be better for the child than making no order at all. Additionally, the court will not make any order which will end after the child reaches the age of 16, unless it is satisfied that the circumstances of the case are exceptional.
When parties are unable to agree arrangements for their children and make an application to the court for assistance in settling those arrangements, the parties are first referred to the mediation department to attempt to settle the outstanding issues with the assistance of an experienced mediator. The mediator is an independent third party who is generally able to help parties put aside their personal feelings and make decisions that are conducive to the welfare of their children. The mediator has knowledge of the laws in the Cayman Islands and is able to advise the parties on what the likely outcome of court proceedings would be, without the cost of having to pursue a court matter. At the end of the day, the parents are generally the best persons to decide what arrangements will work for their children given their unique schedules and feelings.
The Welfare Checklist
On the occasions however, where the parties are unable to agree the arrangements for their children, even with the benefit of mediation, the court will be called upon to make those arrangements and the child’s welfare will be paramount. When considering any decision with respect to the child, the court will have regard to the Welfare Checklist laid out in the Children Act. The Welfare Checklist refers to the factors which the court will consider in making any arrangements for children. These include:
- The ascertainable wishes and feelings of the child– the court will decide what weight it will place on this factor based on the age and understanding of the child. Consequently, the court is more likely to place significant weight on the wishes of a 14-year-old as opposed to a 5-year-old.
- The physical, education and emotional needs of the child– under this factor, the court will consider any physical or learning challenges which a child may face and make a decision that best suits those challenges.
- The likely effect of any change in circumstances on the child– the court will consider how a change in living arrangements or even a change in country of residence will affect the child emotionally and physically.
- The child’s age, sex, religious persuasion, background and any other characteristic which the court considers relevant– the court will consider what effect a change in residence may have on a toddler or perhaps how a change in the religious background of a home may have on a child. Previously, there had been a presumption that children of tender years needed to be placed in the custody of their mother, but this has been debunked given the reality that more and more fathers have become versed in caring for their young children and share the responsibilities with the mother.
- Any harm which the child has suffered or is at risk of suffering– this refers to any physical, emotional or psychological harm which has been caused by one parent or the other, such as the effects of alcoholism, or any harm which presents itself as a risk which the child may face in the care of a parent.
- How capable the parents are of meeting the needs of the child– this factor does not refer to whether the parent is financially able to meet the needs of the child, but rather their emotional and physical capabilities.
- Any other relevant circumstances– this is a catch all factor which allows the court to use its discretion to consider any other factors, not mentioned above, which it considers relevant in making any decisions for the welfare of the child.
In applications of this nature, the court operates as the “parens patriae”, which is the stand-in parent of the child, and this empowers the court to make orders which one parent or the other may not agree with, but which is conducive to the welfare of the child.
HSM has the knowledge and expertise necessary to guide any parent through the intricacies of filing such applications in the court of the Cayman Islands. We can also effectively guide parents through mediation to sort these arrangements for their children without recourse to the courts as this is what works best for the welfare of the children involved.
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