Murphy J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. 4 OF 1996 - Civil -
RE: M
EXCERPT OF PROCEEDINGS had and taken before His Lordship Justice D. Murphy on Wednesday, September 11th, 1996, in George Town, Grand Cayman.
APPEARANCES:
For the Applicants: Mrs. G.I. Nervik
For the Defendant: Mr. M. Alberga
Mrs. L. Dacosta
For the Adoption Board: Mrs. J. Banks
Guardian ad litem Ms. S. Brooks
REPORTED BY: Karen A. Steer,
Official Court Reporter
Now, as to the main issue before me, which we refer to as the preliminary issue of the propriety of the proposed access condition to be inserted in an adoption order, the terms were as follows -- the terms which I slightly amended: "Until the child [HM] is 18 years of age, [Mr. and Mrs. W] are to allow visitation rights to [Miss M] for one week per year during summer vacation, and in the event that permission from the Cayman Island immigration authorities (the obtaining of such consent to be the obligation of [Miss M] alone) is not obtainable for [Miss M] to visit the Cayman Islands for this purpose, that [Mr. and Mrs. W] would either together, or one of them, travel to Jamaica with the child for purposes of allowing [Miss M] visitation. Such visitation not to include any overnight access with the child alone." That was the condition proposed.
Initially it appeared that the mother's consent was going to be forthcoming, whether any adoption order contained such a condition or not; that is, in the latter case she would have consented and been prepared to rely simply on the goodwill of [Mr. and Mrs. W] to allow access in similar terms. As she gave her evidence, and in response to my questioning, it became clear that this may not have been the case; it did appear that her consent would only be forthcoming if such a condition were
actually inserted in the adoption order, and I then was asked to determine a preliminary issue, as I've set out above.
My initial two concerns, at least in my own mind, were these: first, that such a term might fly in the face of the nature of adoption itself and, second, as to whether the Court should be seen to participate in what might be regarded as by some as an unseemly attempt to do a deal for a consent order, if I can put it that way; and I wondered initially whether it might be more appropriate to deal with the issue of the propriety of such a condition in the context of a full adoption hearing itself. On reflection, I reconsidered, mainly for three reasons; first, I subsequently learned of the precise terms of the proposed consent condition which I regarded as quite modest in the scheme of things. Secondly, the case law, in particular the House of Lords decision in Re C [1988] 1 All ER 705, and other authorities cited in that case. And, thirdly, what I regarded as the substantial benefit that the determination of this preliminary issue would have in terms of sparing the parties, that is, the mother and the proposed adopters, of a lengthy hearing -- at least that is what I am led to believe based on their joint consent.
A full-blown adoption hearing, based on what I know
of this case so far, would probably take a week with numerous witnesses and lengthy submissions. I did notice the difficulty with which some of the witnesses gave their evidence this morning, even on fairly straightforward matters, and my view is that in a matter of this type, if I can spare the parties trauma, and get a result that is acceptable in legal terms, then I am going to attempt to do it. (I stress that this factor affects whether I will hear this as a preliminary issue. I close my mind to it for purposes of determining the issue itself.)
So I have decided to treat as a preliminary issue of fact and law whether, assuming adoption is consented to (and that is my understanding of the present position) such a condition is appropriate. That preliminary issue was heard this morning. The evidence was limited to that narrow issue. I do not intend to review all of the evidence. I will mention parts of it. A very important feature of that preliminary issue was, of course, the fact that both the natural mother, [Miss M], and the potential adopters, consent to a condition in the terms set out.
The propriety from the child's perspective was probed, and quite properly so and expertly by Ms. Brooks, who is guardian ad litem, and also by me. I must say that I found the participation, both in examination of the witnesses, and also in argument provided by Ms. Brooks
extremely valuable in terms of giving me the full picture.
I have authority to insert a condition in any adoption order, and that authority derives from subsection 14(2) of the Adoption of Children Law. Authorities such as Re C, which I've already cited, make it clear that an access order can be such a condition.
There are, I see, numerous English authorities dealing with access orders as conditions to adoption orders. The statutory provisions are very similar. Re C in particular, a House of Lords decision, is useful for general principles even though, as was noted, it does involve an older child.
Clearly I have to have regard for the welfare of the child. I am mindful of that. There was some confusion in argument as to the requirement of "exceptional circumstances". What the House of Lords actually said in that case, and I'm referring to the bottom of page 712 is:
"...that each case must be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the
adopting parents do not agree."
That was what was actually said by the House of Lords. I take from that that it is very clear that agreement is an important factor, is a major factor. It is not simply that there must be exceptional circumstances, whether there is agreement or not. There must be exceptional circumstances, absent agreement.
As to what is proposed by way of condition, I regard it as a minimal incursion or intrusion into the lives of the potential adopters; requiring as it does a visitation of one week in the summer, no overnight stays, and one or more of the adopters to accompany the child. This is in fact a much narrower access provision than is normally seen in the English case law on which access terms are involved. For example, in Re W [1988] 1 Family Law Reports 175, also cited in Re C, the term was simply "reasonable access". There was evidence of [Miss M] and [Mr. and Mrs. W] to the effect that such contact could be beneficial insofar as the child should eventually get to know the natural mother, and I certainly take notice of the modern trend that this is desirable. Older case law has to be seen in this light.
The evidence of [Miss M] and [Mr. and Mrs. W] indicated that there was some sort of previously-established relationship, which makes this
forced by [Mr. and Mrs. W] on their child, if it subsequently transpires that the child does not wish it.
There was no actual evidence of any potential harm, only evidence of what [Miss M] and [Mr. and Mrs. W] both see as good.
Accordingly, assuming that the adoption order is made on consent, as I am led to believe that it will, I agree that such a condition, as was proposed to me, is appropriate in the circumstances of this case.
Now that is the disposition of that preliminary issue, and I assume, unless someone tells me differently, that this is now a consent adoption in which the Applicants seek an order subject to that term. Is that correct?
MR. ALBERGA: Correct, My Lord.
MRS. NERVIK: Yes, My Lord.
THE COURT: I will hear submissions if necessary, but I can say on the basis of the material filed before me that I am satisfied to make such an order. I don't see any need for additional evidence, but I will hear submissions. Would you like to take five minutes?
MR. ALBERGA: No, I'm just confirming the consent is fine.
THE COURT: There are no other loose ends to be dealt with?
MRS. NERVIK: My Lord, as long as you are prepared to accept evidence in front of you in order to make the adoption order, I don't have anything more to add.
THE COURT: Ms. Brooks?
MS. BROOKS: No, I have nothing to add.
THE COURT: I am content to make an adoption order as sought by the Applicants; subject to an access condition in the terms set out above.
MR. ALBERGA: Much obliged.
THE COURT: No order as to costs.
MRS. NERVIK: Much obliged.
(PROCEEDINGS CONCLUDED AT 3:05 P.M.)
REPORTER'S CERTIFICATE
I, KAREN A. STEER, Official Court Reporter, do hereby certify that the foregoing pages are a true and accurate transcript of the proceedings had in the said Court and reported in machine shorthand by me on the date and place aforementioned.
DATED the 12th day of September, 1996.
[Signature]