Levers J
IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO: 310 of 2005 BETWEEN: I. M. PLAINTIFF AND: T. W. DEFENDANT Before: The Honourable Madam Justice Levers Appearances: Ms. Brooks for Defendant Ms. Zena Merren for Plaintiff Heard: 3rd & 4th June 2008 JUDGMENT Levers J. This is an application by the father, I. M. for an Order granting him care and control of the minor child A. who is at present approximately eight years old. There is an order in place giving the parties joint custody with the mother T. W. (the defendant in this matter) having care and control and the plaintiff having limited access to the child every other weekend. These proceedings appear to have been initiated by the plaintiff in July 2005. At the time it was felt that it was in the best interest of the child that she developed a relationship with the plaintiff as he apparently had very limited access to the child previously. The plaintiff at the inception of the pregnancy wasn’t too enthused about the child and in fact was unsure of the paternity of the infant. The plaintiff subsequently developed a relationship with the child. The defendant is now objecting to the plaintiff’s application and has filed a cross-summons seeking sole custody of the child, which was not pursued in earnest. In the normal course of events this being a fairly minor variation of an order already in existence this court would not take time to give a written judgment. However, I find this case particularly pertinent to the sort of applications that are being made presently in these Courts. I believe it will be a fruitful exercise and relevant and important to reiterate the principles guiding the court in matters of care and control, access and maintenance. The pitfall of assuming that payment of maintenance equates to the quantity of access must be addressed. When an increase of maintenance is requested by the applicant there appears to be a request for increased access on a cross-summons. I am also in this case not following the recommendations set out by the Social Enquiry Report as strictly as recommended and that is yet another reason why the Court in my view should give a written judgment. Background The parties commenced a relationship which resulted in the birth of the minor child A. on the 8th of August 1999. It is clear from the evidence before me that the plaintiff, the defendant and the plaintiff’s present wife were in a triangular relationship. When the defendant became pregnant the question of paternity troubled the plaintiff and it appears that the relationship was terminated. The plaintiff claims that he still provided certain necessities for the child either directly to the defendant or through her relatives. In the early years of the child’s life the relationship between the plaintiff and the child was not what it should be but subsequently the plaintiff commenced playing a role in the child’s life. The evidence before me is that the plaintiff has the child for weekends and the child is equally at home with the mother as with the father and his present wife. The father and wife have now moved to a new home and it is said that the accommodation is far more comfortable than where the defendant lives with the child at present. The application for care and control apparently has been brought about by the concern in the deterioration of the accommodation in which the defendant presently resides. The plaintiff Mr. M. appears to have been quite content till after Hurricane Ivan to have left the child with the mother. It is not an easy task for the courts to decide on these matters. The guiding principle of course is (should never be deviated from), that the welfare of the child is of paramount importance. In this particular case the court therefore took the following steps:
To interview the child
To visit the premises in which the defendant resides
To speak at length in the presence of the parties with the Social Enquiry Officer and permit her to be cross-examined. I wish to commend the officer for a thorough and most informative report taken in apparently difficult circumstances and I bear in mind everything she has said to me in coming to my decision. The law This case is an ideal example of putting parental responsibility at center stage. The father’s application shows that he is aware that acknowledging a child’s birth isn’t just a legal requirement it is a lifetime commitment by both parents to safeguard their child’s development, health and welfare and provide the child with the direction and guidance throughout childhood. The father has quite properly conceded that if he was satisfied with the mother’s accommodation, this application would not have been made. It seems therefore that it is a question of the living conditions that has brought about this unfortunate circumstance which the court must examine. I previously outlined the three factors that the court undertook in addition to reading the affidavits. The first factor is that the court looked into the child’s wishes by interviewing the child. When interviewing the child the attorneys were present I have no intention in divulging the details of what the child said to me save and except that it is clear that the child loves both parents and was horrified at the thought that she would not see her siblings who live with her at the mother’s for any prolonged period of time. While the child expressed a desire to live with the father at the moment, when the question of better accommodation came up it was evident that she would like to return to her mother, if the living conditions were equal. Sir Hugh Wooding illustrated the importance for caring for children when he wrote that: "The hearts of young children are delicates organs. A cruel beginning in this world can twist them into curious shapes. The heart of a child can shrink so that forever afterwards it is hard and pitied as the seed of a peach. Or again the heart of such a child may fester and swell until it is a misery to carry within the body easily chafed and hurt by the most ordinary things". It is for this reason that adults and in this case the court is fixed with the legal responsibility to make decisions to ensure that the welfare of the child and its upbringing is taken care of. It is the primary consideration in any decision I will make. Visit to the premises The premises where the mother lives are appalling. The outside is dirty not dangerous but dirty. The inside is a corridor (which is dirty) with rooms off that corridor. The kitchen was not the best that the court has seen. Inside the child's room where the mother lives with three other children and the child in question is crowded with furniture. It was tidy at the time of the visit but I am not convinced that it is always tidy. There appears to be no room for the children to do homework in; There is no dining table on the premises and it is my view that overall the premises are crowded, unclean and leave a great deal to be desired. The mother informs the court that this event sadly has occurred after Ivan and that she simply did not have the money nor is money contributed towards the renovation of the premises by the 14 other people who live there and use the one bathroom available. She also informs the court that she is endeavoring to move out. The court is concerned that the child is being brought up in those circumstances. However I must remember that the child was brought up previously in better circumstances in that same house and the father was content to leave the child there during the years from her birth to Hurricane Ivan. I must also remember that having the right to look after a child involves more than providing a home, it involves the bringing up of the child at present and in the future. The court must not deprive the poorer of the parent the child’s care and control based on materialistic views of the welfare of the child. I also bear in mind however that the father is quite rightly concerned with the present circumstances in which this child is living. The court must consider and weigh all the relevant facts, the relationships, the claims, the relationships of the parents, the risks, the choices and other circumstances which will lead to a decision which is in the best interest of the child’s welfare. The child is living with the mother and her boyfriend and the three children of that relationship in one room. She sleeps in the same bed with all of them. Incredibly however the child is thought well of at school which she attends regularly, is an A student and there is no allegation of ill treatment or neglect. The moral judgment of the mother to have a relationship where she cohabits with a man in the same bed as the child is a matter of some concern and it is borne in mind that it is to be taken into account when a final decision is taken; However the father does not complain of any of these matters save and except to say that he is concerned at the nature of the accommodation in which the child is presently living. The Social Enquiry Report The Social Enquiry Report recommends that the child is moved to the father even on a temporary basis. In cross-examination it became evident that the officer quite naturally was most concerned at the condition in which the mother lived and was further concerned that the mother could not seem to hold down a job. The mother now assures the court that she is in employment and will continue to be so and wishes to move from her present accommodation. She has also assured the court that her relationship with Mr. D. is no longer. As I stated previously the court is mindful of the excellent report that has been undertaken and the recommendations it makes. Conclusion The summer holidays are on us and in those circumstances the child will be with the mother for half the summer holidays and with the father for half the summer holidays. The court must consider very carefully before taking away care and control on a permanent basis from the mother. In view of the mother’s assurances that the court will be satisfied with the accommodation she provides for the child in a few months, it is my view that this matter should be reviewed in a further three months no later than the end of August. I give the mother a further opportunity to ensure that the child no longer lives in those premises. Had it not been for this assurance, I would have removed the child from the mother’s care and control and given it to the father as recommended by the report. This is a temporary reprieve for the mother to ensure that this does not happen if she really so desires. The court therefore orders as follows: 1. That care and control remain with mother. 2. That the father has the following access: (a) half the summer holidays to the father (the latter part of the summer holidays). (b) on father’s day and half of her birthday. (c) half of all the other holidays that is Christmas and Easter. (d) on weekends Fridays from 4pm to Monday mornings till he drops her at school or at her mothers during the holidays. 3. That on condition that the parents advise each other three weeks in advance of their travel plans and advise each other of the address and the telephone number at which the child can be reached there is no need for the consent of either parent or for leave of the court for the child to travel with the respective parent. As it depends on the arrangements made for the accommodation in August when the matter is reviewed, the maintenance is to be reviewed at that time. Therefore the maintenance is to remain as presently payable, and the lunch money payable to the school is to be given to the mother while the child is with her for the summer holidays. That money need not be paid if the child is with the father. This matter must be reviewed before the child starts school. Dated this 4th day of June 2008 Judge of the Grand Court