03/04/2023 | hsmoffice

History and Culture Test for Permanent Residence in the Cayman Islands: Is it Fit for Purpose?

It is again the subject of much discourse in the press. HSM Partner Nick Joseph shares his thoughts on the matter. For many years persons seeking to obtain Permanent Residence in the Cayman Islands have taken a History and Culture Read more +

30/03/2023 | hsmoffice

Groundbreaking Decision in Court of Appeal Regarding Cayman’s PR Points System

On 30 March 2023, The Court of Appeal declared that Section 37 (3) Immigration (Transition) Act (2022 Revision) is incompatible with the constitution namely Section 9 of the Bill of Rights, which provides rights to family life and/or private life Read more +

20/02/2023 | hsmoffice

Senior Associate Promotions at HSM

The HSM Group is delighted to announce the promotion of two lawyers, Hilary Brooks and Alastair David, to the position of Senior Associate within its Cayman Islands law firm. Hilary specialises in employment and private client law. Hilary has exclusively practiced Read more +

02/02/2023 | hsmoffice

Cayman’s Demographic Growth, Shifts and Opportunities

As at 16 January 2023, 34,067 foreign nationals are recorded by the Department of WORC as having a work permit (or Government contract) in the Cayman Islands. HSM Partner, Nick Joseph, has reviewed this data and notes that this number Read more +

Things to Consider when Relocating Children after a Separation in the Cayman Islands

Quite often in family matters, when a relationship or marriage breaks down irretrievably, there is a question to be decided as to where the children will reside primarily and with which parent. Our family attorney, Shelly Perryman-Pollard, explores this dilemma. On most occasions, the parents can come to an agreement, in the best interests of the children, however, on the few occasions that this is not possible, the court may be called upon to make that determination. Sometimes, there may be an issue of one parent desiring to move the children to reside outside of the Cayman Islands. This situation may arise in circumstances where one parent has remarried and their spouse resides abroad, where one parent has acquired employment abroad or where one parent simply wants to return to their native country with the belief that it offers a better life for them and their children.

In any of those circumstances above, neither parent can simply remove the child from the jurisdiction, without the written consent of the other parent or by court order, especially in circumstances where the child is subject to the jurisdiction of the court of the Cayman Islands.

This does not apply to taking a child abroad for vacation for a period of 30 days or less, but even in those circumstances it is important to get the consent of the other parent.

The 1980 Hague Convention

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is a treaty which was created in order to protect against the negative effects on a child of his/her wrongful removal from one jurisdiction to another, by one of his/her parents. It is the right of a child to have contact with both parents and when one parent unilaterally takes the decision to remove a child such that he/she will now be prevented from having contact with the other parent, this can have extremely deleterious effects on his/her wellbeing.

The Cayman Islands became a treaty partner on 1 August 1998. Other treaty partners include the United Kingdom, the United States, Germany, Australia, France, Italy and many more.  This convention has established procedures to ensure the immediate return of a child to his/her country of habitual residence for the issues of residence and contact to be decided there. Each government has established a Central Authority tasked with the responsibility of managing wrongful removals. If a child is unlawfully removed by one parent to a treaty partner country, the other parent can seek the assistance of the Central Authority in that jurisdiction to have the child returned. The Central Authority will first write to the offending parent giving them the opportunity to willingly return the child to his/her place of habitual residence, however if that is not successful, the Authority, through its attorneys, will institute legal proceedings to have the child returned. It is only in exceptional cases that the court will not order the child returned immediately.

Defences to such removal can include:

  1. The parent who has remained originally consented to the removal and subsequently did not take any timely action after becoming aware of the removal.
  2. The parent who has remained was not exercising parental responsibility or contact prior to the move.
  3. There is a grave risk to the child of harm, if the child is returned.
  4. The child objects to the return and is of an age where the court could take his/her views into consideration.

In order to apply under the Hague Convention both countries must be treaty partners and the following requirements must be met:

  1. The child must have been habitually resident in a treaty partner country prior to the removal.
  2. The removal must have been wrongful (i.e. without consent or a court order).
  3. The application must be determined in the country where the child was brought.

It is important to note that the only issue being determined, by the country to which the child was wrongfully removed, is that of the return to his/her country of habitual residence. That court will not involve itself in issues of residence and contact as it is accepted that the most appropriate jurisdiction to hear such issues would be the child’s country of habitual residence.

Applications to remove the child with the sanction of the court

A parent who wishes to lawfully remove a child to reside in another jurisdiction must file an action in the Grand Court if the other parent does not consent. The court will try to hear this application in a timely manner given the effect of such an order on the wellbeing of the child. Each application is decided on its own facts and neither parent’s claim is considered superior to the other, especially in circumstances where both parents share parental responsibility.

Factors which the court will consider

Every parent wishing to remove a child permanently from the jurisdiction of the Cayman Islands needs to convince the court overall that such a move is conducive to the child’s welfare. This is the overarching principle in all such applications. The child’s welfare is paramount.

The leading case in the jurisdiction of the Cayman Islands is B v B delivered in April 2013. In that case, the court laid out the factors which would be relevant to any such application.

The court must consider:

  1. If the parent applying has a genuine application, not motivated by a selfish desire to exclude the other parent from the child’s life.
  2. If the opposition of the other parent is genuine and not motivated by some other ulterior motive.
  3. What detriment the move would have on the relationship between the child and the parent being left behind.
  4. Whether this detriment could be mitigated by the relationship between the child and other family members in the desired jurisdiction.
  5. If the application to move is realistic and founded on practical proposals.
  6. What the impact of the refusal would be on the applying parent.

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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