August 3, 2015
By Tina Trumbach
A new Children Law rule alerting the Immigration Department when attempts are made to take children in custody disputes out of the Cayman Islands goes into effect today (Monday 3 August).
The Children Law (2012 Revision) allows the court to issue what is called a Prohibited Steps Order (PSO), which bars a parent from taking specific actions concerning a child. Prohibited steps orders can be used to stop a parent from removing a child from the Cayman Islands.
These types of court orders are often used as an emergency measure to prevent parental abductions in custody disputes.
From today, new amendments to the rules concerning the prohibited steps order will make filing notice of a PSO with the Immigration Department a requirement while it was previously only regarded as “best practice” by family law attorneys.
By requiring that Immigration be notified, the new rule amendment ensures that attempts to remove a child from the jurisdiction may be flagged and intercepted.
This is important with regard to international custody battles, as once a child is removed to another jurisdiction, getting the child back can be a difficult and lengthy process.
Invited by the Cayman Reporter to comment on the issue, Clyde Allen of the Law Firm, CHAMBERS said, “An application for a PSO can be made to the court fairly quickly, if there is a breach or to prevent a breach, and that order can be filed with the Immigration Department. That is fine, but the real concern is not what takes place in Cayman, but when an act takes place outside Cayman.”
Mr. Allen outlined the difficulties encountered by the parent still in Cayman and the local court in trying to get children returned. He said parents often have to rely on Hague Convention provisions.
“That is where the real dilemmas can arise for a parent, who will have to retain legal counsel to understand and apply the laws of that jurisdiction as well as deal with possible language issues where the child might be taken to, say, a South American country,” he said.
The attorney, who has extensive experience in family law, was hopeful that the new provisions will assist in these cases, which often result in lengthy and complicated legal wrangling across several jurisdictions.
“I am aware of a case where, notwithstanding an order being made by a Judge for a mother to take her children outside of the jurisdiction for only a specific period, that mother went on to keep the children beyond that period in breach of that order and caused the judge to have to make further orders determining the residency of the children and to order that she was in contempt,” he said.
According to Mr. Allen, the mother had essentially abducted the child, which is in itself a criminal offence, but due to “jumping jurisdictions” the situation was made more complicated.
“In order to secure the return of the children to the Cayman Islands, the judge recorded in the order that the mother was in breach of Hague Convention provisions,” he said. “That order was then used by the father in a court in Florida, a signatory to the Hague Convention, which court assisted with the return of the children to the place of residence in Cayman.”
Additional new Children Law rule amendments further strengthen the protections for children against parental abduction in custody disputes.
The local court will now be able to require someone who has had a prohibited steps order made against them (called a “prohibited person” under the law) to make an oath stating whether he or she has the child’s passport in his or her possession. The court can also now require that person to surrender the child’s passport to the court. A prohibited person can also be compelled by the court to state whether they know of anyone else who has the child’s passport.
The court can also order the “prohibited person” to reveal whether they know of any pending passport applications for the child.
These new measures seek to cover all avenues that may be used in parental abduction situations, including taking advantage of a child’s dual nationality status.
Mr. Allen was hopeful that the new rule changes would improve the situation, but noted that it is important to deal with a possible flight from Cayman early on in any custody or divorce proceedings.
“I foresee that this and other rule changes will help to clarify the position,” he said. “However, I do not see that it will necessarily change the status quo. Where a parent is aware of the desire of one parent to take the children to another jurisdiction to reside, it is always prudent at an early stage in the proceedings to bring this fact to the attention of the court and ensure that the relevant orders are in place.”
It was his opinion that it will be a matter of time and practice before we know how effective the new provisions of the law will be.
“From my own experience, the Immigration Department to date has been very effective in assisting to prevent a parent from leaving the island with a child, contrary to the terms of an order,” Mr. Allen said.
He noted that the problems arise when a parent from outside of Cayman thinks that the laws in their jurisdiction are more effective or might be more in his or her favour.
“Such a view fails to appreciate one of the underlying principles of the law which is that the welfare of the children is paramount,” Mr. Allen said. “What that parent does not seem to understand is that the law has moved the child or children to the centre of the debate.”
The attorney noted that child welfare and maintenance is the primary concern of the court in all family law matters.
“The Children’s Law that we have in place supports this and is second to none,” he said. “Our courts have made changes and now have a Family Division which is led primarily by Justice Williams who addresses numerous family-related matters and which appears to be very effective indeed.”
Based on his experience in the field to date though, Mr. Allen does not foresee a slowdown in acrimonious divorce and custody cases before the court.
“My view is that there has been an increase in the volume of family-related issues on island and our legislature and judiciary are trying to address them as fairly as possible,” he said. “The fact that things are not worse than they are is a tribute to the effectiveness of the judiciary and all of the stakeholders in trying to manage the various family issues.”
In his view, parents need to be mindful of acting in the best interests of their children and not rely on legislation to sort out all of their problems.
“It is always important to refine our laws to keep up with the changing circumstances. However, it is also important to look at the actions of the parents and ensure that they understand their responsibilities to ensure that they are working towards the betterment of the children,” he said.
This approach would help limit the level of legal involvement required in family matters.
“If there was an equal focus on this aspect of the equation, there would may be less need for the use of legislation to head off applications for PSOs and to address differences between parties which lead one party to attempt to jump jurisdictions and then lead to associated problems in the court which ultimately affect and impact the party from whom the children have been taken and, sadly, the children,” he said.
The Children Law came into force in 2012, and provides comprehensive rules and forms for the protection of children in the Cayman Islands. The rules of the law were last amended in 2012, to ensure that the best interests children are taken into account during family law disputes – including divorces, as well as custody and maintenance proceedings.
The Family Division of the Grand Court was created in 2009 and is led by Justice Richard Williams. It provides a specialised forum for family members to seek legal address in all family-related disputes.
Family proceedings include all issues arising from marriage and divorce, issues arising from the need for financial support for spouses or children following divorce, separation or in cases where the parents were not married to each other and generally, issues concerning the welfare of children.
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