After nine years on the statute book, the 1st of July, 2012, heralded a landmark day for family attorneys within the Cayman Islands with the Children Law 2003 coming in force after a considerable period of time on the sidelines, writes Ian Mercer of Samson & McGrath.
For the first time in this jurisdiction, the court will recognise as enshrined in statute such principles as the welfare principle and welfare checklist. This law now makes it mandatory for any court faced with a decision regarding a child’s upbringing to have the child’s welfare as its paramount consideration and specifically consider a range of factors including the capability of the parents and, importantly, the wishes and feelings of the child themselves.
Furthermore, a court shall regard delay as likely to prejudice the welfare of the child. One must remember that what may be a matter of weeks for an adult can seem like an eternity for a child.
The law also makes sweeping changes with regards to terminology. Gone are the often acrimonious concepts of custody and access, which can often lead one parent to swing an iron fist over the head of another reminding them who is really in control. In their place we now have the concepts of joint residence and contact. Such terms implying that a child has a home with, rather than is in the custody of, one parent and, rather than being allowed access with the non-resident parent, is now entitled to contact with them.
It is hoped that the law will press home the need for a move away from presumptions that a young child is better placed with a mother and allow, with the mandatory circumstances to be considered by the court contained within the welfare checklist, a more balanced look at what is in the child’s interest.
The law will also assist social workers, often faced with the difficult task of dealing with acrimonious disputes over whom a child lives with by providing, in the checklist, the key factors for a court to consider.
The introduction of the ‘no order principle’ ensures that only in those cases were the making of an order would benefit the child is one made.
Of significant importance is the recognition that unmarried fathers and mothers can both share equal rights, duties and responsibilities by way of ‘parental responsibility’.
Not only having far reaching consequences for private law disputes, the children law also repeals the Juveniles Law 1990. The effect is principally two fold. First, gone are the six criteria for the making of a Fit Person Order.
Such an order was used to protect a venerable child by placing them with a ‘fit person’ to look after them. In its place, a robust test; is the child suffering or likely to suffer significant harm attributable to the care given to the child or likely to be given to him? If so, statutory intervention in the form of a Care Order or Supervision Order may well follow. Such a test encompasses situations of not only neglect, sexual or physical abuse, but also the consequences of emotional abuse. It is important to note that it may now be possible for the state to remove a child in situations of domestic violence between one parent and another.
The new orders allow the state to regulate a child’s upbringing or, under a supervision order, allow a child to remain with their biological family whilst being monitored to ensure that they are not at risk. All in all, although raising the bar for removal, the law provides succinct guidance for state intervention and also, from a parental perspective, sets out the duties and responsibilities of the state if they choose to remove a child.
Coupled with the change in the manner of removal is the statutory recognition that the Department of Children and Family Services has a mandatory duty to promote contact between children in their care and their parents or any carer who has had the children prior to removal. The Department can only refuse contact for a period of seven days post removal without a court order. This is a significant shift in the recognition of the importance of maintaining parental links until a final decision has been made with regards to a child’s future and well being.
The law also allows for orders providing financial relief for the child to be made against a parent. This now makes it easier for non-married parents who look after the child to claim assistance against the non-resident parent. It is not just money in basic sense that can be awarded, for the court now has the power to transfer property from parent to the other or to the child themselves.
This article represents just a cursory snapshot of some of the changes that have taken place almost overnight. Such a sweeping change will no doubt initially provide many challenges to those involved in the legal system, both those at judicial level and practitioners alike. One thing remains certain, that at all levels those involved in the family justice system within the Cayman Islands will have to rise to the significant challenge of it’s implementation.