What Happens When You Want To Remove A Child From The Jurisdiction

The breakdown of marriages can sometimes have devastating effects on children as they are often caught in the middle of contentious custody battles. The situation can be even more emotional when one parent wishes to move to another jurisdiction with the child. In such cases, the parent who wishes to remove the child from the jurisdiction must either have the other parent's written consent or permission of the Court.1

In all contentious relocation cases, the court's primary consideration is the welfare of the child.2 In evaluating the child's welfare, the court must have particular regard to the factors in section 3(3) of the Children's Law (2012 Revision) (commonly known as the welfare checklist):

The ascertainable wishes and feelings of the child (having regard to the child's age and understanding); The child's physical, emotional and educational needs; The likely effect on the child of any change in circumstances; The child's age, sex, religious persuasion, background and any relevant characteristics the court considers relevant; Any harm which the child has suffered or is at risk of suffering; The capability of each parents in meeting the child's needs; and The range of powers available to the Court under the Children Law. The leading case for relocation in the Cayman Islands is B v B,3which set out the principles that should be applied by the courts in considering these matters.4

Firstly, the welfare of the child takes precedent over any other consideration, however powerful and reasonable they may be.

Secondly, the court should consider guidance from previous cases and review the evidence presented by both parents.

Thirdly, in considering the guidance, the following questions should be addressed:

i. Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the remaining party from the child's life?

ii. Is the remaining party's opposition motivated by genuine concern for the future of the child's welfare or is driven by some ulterior motive?

iii. What would be the extent of the detriment to the remaining party and his/her future relationship with the child were the application granted?

iv. To what extent would the detriment to the remaining party if the application were granted by offset by extension of the child's relationship with the applicant's family and, if applicable, homeland?

v. Is the application realistic and founded on practical proposals both well researched and investigated?

vi.What...