Before:                                         The Hon. Mr. Justice Anthony S. Gruchot

Appearances:                            Mr. Mark Fulford of F Chambers for the Petitioner and with him Ms Chloe McMillan

Ms Lara Maroof of Maroof Law for the Respondent.

Hearing Date:                           13 September 2022  

Venue:                                          Court 5, Graceway Plaza, Providenciales.

To be Handed Down:            Via email on 28 September 2022 at 2:00pm.

The Application

1. On 17^th February 2022 Mr. Justice Simons QC made an order granting decree nisi and further ordering that the decree nisi could not be made absolute until satisfactory arrangements were made for the children of the marriage, J d.o.b. 1 February 2014 (aged 8) and D d.o.b. 7 October 2017 (aged 4)[1], or further order of the Court[2]. He also ordered that if satisfactory arrangements for the children were not agreed within 6 weeks the parties were to restore the matter before the Court and a social enquiry report would be requested.
2. On 1 April 2022 the Petitioner filed an application for decree nisi to be made absolute, which application was not processed by the Hon. Registrar as there had been a failure to comply with the above order.
3. On 8September 2022 the Petitioner filed an application for custody and maintenance of the children of the marriage, supported by her affidavit and a certificate of urgency certified by Ms McMillan seeking an urgent hearing. The certificate of urgency cited that D had been sexually assaulted by the nephew of the Respondent’s new partner, A and that she had been sexually penetrated by him. From the affidavit A is said to be the same age as J.
4. The affidavit in support together with the Notice of Application made reference to an order of the Magistrate’s Court dated 19 June 2020[3] (‘the Order’). A copy of that order was not exhibited to the affidavit, but the affidavit stated that it provided for the parties were to have joint custody of the 2 children with them residing with the Respondent from Monday to Friday and with the Petitioner from Friday to Monday. It also stated that at the time the Order was made both parties were residing at the matrimonial home, but living apart and separate.
5. According to the affidavit on 23 August 2022, the incident with D came to light as a result of an argument which broke out between the 2 children. The children at that time were with the Petitioner in Grand Turk[4]. The children were spending the school vacation with the Petitioner by agreement with the Respondent. Focus turned to D’s tablet and this was examined and a video of the incident was discovered. The affidavit states that the video was around 1 minute in duration.
6. The affidavit goes on to state that J and A had said that he had learned this behaviour by observing the Respondent and his new partner engaging in sexual activity. It also states that the Respondent is living in a 1-bedroom house and that the children sleep on an airbed.
7. On the basis of the above, on the papers I certified the matter as being urgent on 9 September 2022 and requested that the matter be listed on notice.
8. The application came before me on 13 September 2022.
9. At the hearing it came to light that the incident giving rise to the application took place in May 2022. I was also told that there had previously been many hearings before the Chief Magistrate with respect to custody and access and also that a number of social services reports had been prepared. I requested that those be provided. The original social worker was a C, but he was replaced by B at the request of the Petitioner. Additional professionals are now involved in this matter.
10. On hearing from Ms Maroof, I was advised that there was a custody evaluation report dated 11 June 2020 which highlighted concerns with respect to the Petitioner’s relationship with drugs and alcohol and that the report recommended the Petitioner to be referred for substance abuse therapy. It was on the basis of that report that the Order came about.
11. Ms Maroof advised that a further report dated 1 July 2021, was prepared by Ms. B which again raised concerns regarding the Petitioner and recommended that the arrangement [the Order] continue. Ms Maroof then says that matters didn’t progress and divorce proceeding were issued.
12. Ms. Maroof submitted that the Respondent was equally concerned when he was told of the video and that he is fully engaged with social services. Ms. Maroof advised that the Respondent had already been interviewed and that a report was written but not yet released. She also advised that Ms. H, from social services was engaged in the matter in Grand Turk and risk assessments were being carried out. She also stated that so far, no medical report had been received following D’s examination at the hospital in Grand Turk. She confirmed that the Respondent had seen the video and accepted that it caused serious concerns. She advised that following an assessment by social services, it was recommended that the children attend counselling.
13. I also heard from Ms. H from the social welfare department. She advised that a report was made to the department on 24 August 2022 and that a statement from the Petitioner had been taken by the police and arrangements were made for D to be examined at the Grand Turk hospital.
14. Ms H advised that a strategy meeting has been held on 26 August 2022 and that there was combined involvement with social services in Providenciales as well. She confirmed that she had interviewed D herself. She had also interviewed J on 30 August 2022 and her department of course had concerns regarding the video. She reported that there were in fact 7 videos which had been discovered.
15. She advised that the department had concerns not only about this incident, but also with the sibling relationship. She said in the interviews neither child indicted that had been told to say that that they had learned this behaviour by seeing their father, but they accepted that they did say that, but it wasn’t true. Her view was that the children are being caught up in the matter and that they may be saying things to please which ever parent they are with at the time.
16. Ms. H advised that the Department of Gender Affairs is also involved (Ms. He) and a child care plan is being put in place and that they were working with a timetable, and that the approach was robust.
17. Ms. H also advised that they wanted a report from the Department of Mental Health and Substance Abuse with respect to the Petitioner. She advised that the Petitioner now has a new partner. It has been recommended that both parents attend a 12-week parenting workshop.
18. Ms. H went on to say that now the Petitioner is in Grand Turk that the custody arrangements (or more properly, the day-to-day care and control of the children) needed to be revisited. Importantly, she stated that social services had no concerns that the children would be at any real risk with the Respondent resuming day to day care and control. She did say that in her opinion the children needed counselling and an urgent referral had been made.
19. Mr. Fulford questioned Ms H about the medical report and she confirmed that no report had yet been provided by the hospital. She did say that she was present at the hospital when the examination was carried out and that the doctor did report that D’s hymen was not intact.
20. Mr. Fulford submitted that the Respondent’s working hours as a security guard meant that the children were left for long periods with either his sister or his new partner and that this was a cause for concern. He also submitted that there were no recent reports that showed that the Petitioner has a relationship with alcohol. He submitted that her circumstances had changed since the Order had been made. She has moved out of the matrimonial home and re-located to Grand Turk and has a new job. He suggested that historically the Petitioner’s problems arose when she was still residing in the matrimonial home, albeit separated from the Respondent, but due to his behaviour towards her.
21. He referred to paragraph 22 of the Petitioner’s affidavit noting the living circumstances of the Respondent. As it transpired the Respondent’s circumstances had changed as he had moved back to the former matrimonial home.
22. He further submitted that the Respondent had had a chance to be the primary carer and that the incident occurred when the children were with him. He submitted that the Petitioner should “have a turn”.
23. Ms H responded by saying that the Respondent’s work pattern has not changed since the Order was made. She also commented that the Respondent had moved back to the matrimonial home. She advised that the last report with respect to the Petitioner was dated 1 July 2021 and indicated substance abuse.
24. Ms Maroof asked Ms H if the children should be separated as a result of the sexualised sibling behaviour. Ms H stated that in her opinion separation of siblings should only occur in the most extreme circumstances and in her view, both parents could put in adequate safeguards.
25. The Court enquired as to where the children counselling would take place, whether in Providenciales or Grand Turk. Ms H advised the Court that there were facilities on both islands.
26. Ms. Maroof submitted that Mr. Fulford’s suggestion that the Petitioner should be given a turn to care for the children was not the correct approach and that the Court should act in the best interests of the children and not what one or the other of the parents thought they were entitled to.
27. Ms Maroof stated that the Respondent accepted that the incident was a cause for concern but submitted that the best evidence with respect to the children’s mimicking behaviour was not due to what they had seen but what the Petitioner had told them to say. She submitted that the Respondent wanted what was best for the children. She also submitted that the Respondent’s sister has been interviewed by social services as was deemed to be a good and proper carer for the children and stated that the Respondent had obtained a work permit for his sister and that she was to come to the Turks and Caicos Islands on 25 September 2022 as a child minder. She reported that the social worker in Providenciales Ms R, had stated that she was of the view that the Respondent’s response to the incident was appropriate.
28. Ms Maroof further submitted that the access arrangement as set out the Order needed to be changed to accommodate the Petitioner’s decision to move to Grand Turk. She submitted that the children not seeing their father would be harmful to the children.
29. Ms Maroof advised that both parents had signed an intervention agreement and that the Respondent was committed to attend sessions with Dr. M.
30. Mr Fulford then made a further submission that when the Respondent saw the video, he said that he was going to discipline J when he returned and that this was concerning for the Petitioner.
31. With respect to the comments that the children had said that they had learned this behaviour by seeing the Respondent and his girlfriend, Ms H stated that D had said that she told her mother that, but it wasn’t true.

Discussion

32. Matter of this kind are distressing to the parties. It is trite law that when dealing with children it is the best interests of the children that is the paramount consideration for the Court. This well-established principle is a statutory principle under the Children Act 1989[5] which provides at section 1(1)(a):

“(1) When a court determines any question with respect to

1. the upbringing of a child;

the child's welfare shall be the court's paramount consideration.''

33. This was derived from the Guardianship of Minors Act 1971 section 1 which had additional wording of ‘first and’ that preceded 'paramount' considered now to be superfluous.
34. This application has been brought under sections 45(1)(b) and 46 of the Matrimonial Causes Ordinance (Cap. 11.04). The reference to section 45 is erroneous as this is concerned with restrictions on granting decree absolute in the absence of satisfactory arrangements for the children. The provisions of section 46 do not provide any criteria to which the Court should have regard when considering an application under that section; however, parallel jurisdiction is conferred on the Court pursuant to the Family Law (Guardianship, Custody and Access to Children) Ordinance (Cap. 11.05). Whilst in section 2 of that Ordinance, ‘Court’ is defined as the Magistrate’s Court, section 29(2) provides:

“In any proceedings in the Supreme Court in which any question of guardianship, custody, or access to a child arises as an ancillary matter, the Supreme Court shall have jurisdiction.”

35. Further section 3 provides:

“(1) The welfare and best interests of a child must be the first and paramount consideration—

(a) in the administration and application of this Ordinance, including proceedings under this Ordinance; and

(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.”

36. The paramountcy principle therefore has statutory force in applications brought under the Matrimonial Causes Ordinance.
37. I was concerned that it did not appear to me that the Petitioner had been entirely frank with disclosure of all of the circumstances with respect to this application. Whilst the Order had been mentioned in the Petitioner’s affidavit it was only in passing. A copy of the Order was not exhibited to the affidavit and was only provided to the Court at the hearing of the matter, by Ms Maroof.
38. Further, no mention was made of what appears to be a number of social welfare reports from various agencies, which formed part of the consideration giving rise to the Order. In an application of this sort those reports should have been before the Court.
39. In her affidavit, the Petitioner stated that when the Order was made both parties were living in the former matrimonial home, the inference being towards the pressure and/or stress such an arrangement would provide. The Order was made on 7 August 2020; however, by 21 May 2021, the Petitioner was residing in Blue Hills, Providenciales and the Respondent in Thompson Cove, Providenciales[6] and not in the former matrimonial home. I note that at that time the Petitioner was seeking to vary the Order[7] so that both parents had equal time with the children, which proposed change is not agreed. There was no suggestion that the Respondent’s access to the children should be curtailed or subject to supervision as the Petitioner is now seeking.
40. The matter was listed for further review before the Chief Magistrate on 2 October 2020. I am unaware of the outcome of that hearing, but the Order was continued. By the time the statement of arrangements document was filed, in my view, the status quo had been established; a fortiori, by the time the children went to stay with the Petitioner for the summer vacation over 1 year later.
41. There is no doubt that the events that took place in May 2022 are of the utmost concern; however, when deciding matters concerning the welfare of children it is not the correct approach to base a decision on one event and a holistic approach should be adopted.

“In Re G (a child) (care proceedings: welfare balancing exercise: proportionality)^[8] the Court of Appeal^[9] set out how the court should assess a child's best interests when presented with competing options. The judicial exercise should be to make a holistic evaluation of the realistic options for the child's future upbringing, before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare. The judicial task should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.”[10]

42. Whilst not in any way detracting from the seriousness of what has occurred, I am mindful that this incident took place in May 2022. The children continued to reside with the Respondent, without as far as I am aware, any further incident, until the start of the long summer vacation when they went to be with the Petitioner. That change was against the terms of the Order but was with agreement of the Respondent and I do not suggest that flexibility in the arrangements should be anything other than encouraged as long as it not to the detriment of the children.
43. No attempt was made to vary the Order (save for what is set out in the statement of arrangements) within these proceedings, until the incident came to light on 23/24 August 2022. Until then it can only have been the Petitioner’s intention for the children to return to Providenciales for the start of the new school year. I am fortified in that conclusion given that the order of Mr. Justice Simons had not been complied with. The corollary of that is that the Petitioner’s motivation to move this application arose solely from the discovery of the video and then it was a further 2 weeks before the matter was filed with the Court.
44. The school year had started around a week before the application came before the Court. The Petitioner had taken it upon herself to enroll the children in a new school in Grand Turk, as far as I am aware without any consultation with the Respondent. They [the children and in particular J] were, no doubt, expecting to meet up with their school friends in Providenciales and a change of school will deprive them that and no doubt create additional stress for them.
45. In matters of this kind the Court is assisted greatly by the views of independent experts who are better able to interact with the parties, particularly young children. Ms H gave very a clear and cogent explanation of the steps being taken by the various agencies to assist this family which steps had been effected urgently. The opinion that she and her Providenciales colleague had formed in that they did not consider that the children would be at any real risk if the children were to return to reside with the Respondent gave weight to the presumption that the Court should not interfere with the status quo unless there is good reason to do so. Again, I am fortified in that decision as I am assured that the Respondent is very much aware of the seriousness of the situation, and further, that the parties have agreed to attend at recommended parenting courses.
46. In all of the circumstances, taking all matters into consideration I was not persuaded that there was any good reason to vary the Order pending further social welfare reports. The Chief Magistrate had a number of hearings and had the benefit of a number of social services reports which he no doubt considered and which drove him to make the Order he did, an order that was not appealed. Ms H requested a period of 6 weeks to have further reports in order and was pushed to 5 weeks in order to accommodate counsel.
47. I therefore ordered that the Order of 7 August 2020 continue until further order of the Court. A further social welfare report be prepared and filed no later than 18 October 2022 and the matter be set for a review hearing on 25 October 2022. The children were to be returned to the day-to-day care and control of the Respondent by 18 September 2022.

28^th September 2022

The Hon. Justice Anthony S. Gruchot

Judge