Tag Archives: Divorce Lawyer in the Cayman Islands

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.

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:

The parent who has remained originally consented to the removal and subsequently did not take any timely action after becoming aware of the removal.
The parent who has remained was not exercising parental responsibility or contact prior to the move.
There is a grave risk to the child of harm, if the child is returned.
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:

The child must have been habitually resident in a treaty partner country prior to the removal.
The removal must have been wrongful (i.e. without consent or a court order).
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:

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

The HSM Group is now promoting the addition of Family Law to its suite of legal services. Led by Senior Associate Kerrie Cox, the matrimonial team will cover all aspects of divorce and finance, in addition to private/public child law.

The move is regarded as a complementary service to HSM’s established private client practice, in which the firm is a leading provider for family trusts, wills and estate administration, and property transactions.

Kerrie practiced as a Barrister and family mediator in the UK for 12 years before being first admitted as an attorney in the Cayman Islands in 2010. He was appointed in-house Counsel to a niche firm of family solicitors in Gibraltar in 2013, where he undertook a variety of family related disputes, including cross border litigation, before returning to Grand Cayman in 2015.

In his role at HSM, Kerrie also undertakes a wide spectrum of general dispute work in commercial and civil litigation, employment, and personal injury. Whether you are looking for a divorce lawyer in the Cayman Islands or need assistance in separation agreements – HSM has got you covered.

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