Court name
Supreme Court of Turks and Caicos Islands
Case number
D 32 of 2021

F-O v O (D 32 of 2021) [2022] TCASC 38 (03 October 2022);

Media neutral citation
[2022] TCASC 38
Case summary:

This is a ruling on an application made pursuant to Ord.45 r.11 for a stay of an order made in divorce proceedings concerning the day-to-day care and control of children pending determination of an appeal of that order. 

Headnote and holding:

The application for a stay of the Order was refused. The Court did not consider that the filing of an appeal amounts to a matter that has occurred since the making of an order that would give grounds for a stay. If that were the case, then every appeal filed would be grounds for stay. The filing of the appeal does not affect the subject matter of the Order and in its  judgment Ord. 45 r.11 only becomes relevant when something has occurred post the making of an order which affects the subject matter of that order [24].

 

 

 

 

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

ACTION NO. D 32/21

 

 

 

 

BETWEEN:

 

 

 

 

 

 

 F-O

PETITIONER

 

 

 

 

AND

 

 

 

 

 

 O

RESPONDENT

 

 

 

 

 

 

 

 

WRITTEN REASONS

 

 

 

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:                           29 September 2022  

Venue:                                          Court 5, Graceway Plaza, Providenciales.

To be Handed Down:            on 3 October 2022 at 9:00 a.m.

 

The Application

  1. On 13 September I 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 (‘the Order’).
  2. Tickets were purchased by the Respondent for the children to travel from Grand Turk to Providenciales on 18 September 2022. The Petitioner unilaterally decided to breach the Order and did not return the children. She did this without any communication with the Respondent who was simply left waiting.
  3. On 16 September 2022, the Petitioner filed a Notice of Appeal with respect to the Order. On 28 September 2022 I handed my written reasons for making that order.
  4. Also on 16 September 2022, the Petitioner filed an application to stay the Order which the Registrar listed for hearing on 29 September 2022 at which I time I reserved my decision.
  5. Mr. Fulford submits that the application is made pursuant to Ord.45 r.11 on the ground that there are matters which have occurred since the date of the Order. He says that the granting of a stay must be proportionate and suggests that the relevant matter is that the Notice of Appeal has been filed. The application includes a further ground in that “the children will not be safe and properly supervised in the custody of the Respondent.
  6. The application is supported by a further affidavit of the Petitioner filed on 29 September 2022.
  7. In the affidavit the Petitioner suggests that “the Respondent has failed to provide the Court with any concrete plans on how to resolve the issue of leaving the children unsupervised whilst in his custody as due to his hectic work schedule, he often leaves the children at home unsupervised while he is at work…”. I do not accept that is the case. At the hearing on 13 September 2022, it was explained to me that the Respondent accepted that there had been a lack of supervision, but that he had been counselled in that regard, was working with the appropriate support services and further that he had obtained a work permit for his sister as a full-time child minder. A clear explanation of a care plan.
  8. The Petitioner also suggests that the Court was misled into maintaining the status quo due to the fact there was no written report from social services. I disagree. At the hearing on 13 September 2022, I heard at length from Ms. H from the Department of Social Welfare. Given that the application had come before the Court on an urgent basis there was of course no up to date written report but there had been earlier reports to which the learned Chief Magistrate had the opportunity to consider. I remark that these reports have still not been put before this Court. Given the order of the 7 August 2020 and the verbal report from Ms. H, it is apparent to me that social services have some concerns with respect to the Petitioner being the main carer for the children.
  9. The balance of the Petitioner’s affidavit goes to support her substantive application to have the order of 7 August 2020 varied and does not assist me with the application at hand.
  10. I remark that the order of 7 August 2020 as well as the Order are not final orders (insofar as any order is final in respect to the custody, care and control and access to children) and fall to be reviewed when the further investigations and report are completed.
  11.  Mr. Fulford directed me to the Court of Appeal decision in Nixon -v- F J Morris Contracting Ltd.[1] which he suggests is authority for granting a stay in circumstances where new matters have occurred since the making of the order sought to be stayed. He did not provide a copy of the case report or indeed quote from it but summarised that Court of Appeal granted a stay in circumstances where there was question as to whether a specific medical condition could be triggered by a trauma. I have taken the opportunity to read that short case which does not deal with an application for a stay at all but was an appeal from the High Court’s decision to refuse an adjournment of the trial of a personal injury claim pending an imminent decision from the House of Lords on a case considered to be of great relevance to one or more of the issues in Nixon. I do not find this authority of any assistance and reject the argument that granting a stay in this matter would be consistent with Nixon.
  12. Mr. Fulford argues that the Court failed to consider paramountcy against the need to maintain the status quo. He suggests that the status quo goes against the best interests principle. I find that a difficult argument to sustain. In considering whether it should make an order, the Court must have consideration for the welfare principle. “The welfare principle is the golden thread which runs through decision-making by courts in children cases[2].
  13. Section 15 of the Family Law (Guardianship, Custody and Access to Children) (Cap. 11.05) provides:

“(1) The Court may on the application of the father or mother of a child, or a child (who may apply without next friend), or of a stranger make such order regarding—

(a) the legal custody of the child; and

(b) the right of access to the child by the applicant or of any other person,

as the Court thinks fit having regard to the welfare and best interests of the child and to the conduct and wishes of the mother or father or of the stranger.” (Emphasis added)

  1. The Children Act 1989[3] section 1(3) provides for what has become termed ‘the welfare checklist’. This provides:

“In the circumstances mentioned in subsection (4)[4], a court shall have regard in particular to—

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)his physical, emotional and educational needs;

(c)the likely effect on him of any change in his circumstances;

(d)his age, sex, background and any characteristics of his which the court considers relevant;

(e)any harm which he has suffered or is at risk of suffering;

(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)the range of powers available to the court under this Act in the proceedings in question.

  1. The authors of Butterworths Family Law Service[5] comment on the relationship between the welfare principle and status quo.

The court is very reluctant to uproot a child from a parent, unless there are powerful reasons for doing so, even sometimes where it means the children living in different households. Although the status quo is not itself a factor in the welfare checklist, essentially the same welfare point is now found under factor (c), 'the likely effect on him of any change in his circumstances', but does not give rise to any presumption. Where the status quo factor is not relevant, a familial relationship may be so strong as to justify in his best interests a change in his circumstances. However, the length of time that a child has been living with one parent does not create a presumption in favour of the child living with that parent.

  1. The correlation between the welfare principle and status quo is apparent. Many elements of the checklist cannot be considered without expert investigation and the Chief Magistrate was in a better position to consider those matters than this Court at this stage. It will be a question for the Court of Appeal if there was a failure by the Court to adequately consider those elements of the checklist that were available at the 13 September 2022 interlocutory hearing.
  2. Mr. Fulford goes on to suggest that the Order was made in the absence of any evidence by social services on the Petitioner’s [present] circumstances. That is exactly the purpose of the Court requesting a further report, but that does not give rise to any presumption or principle that the substantive application should be granted (even if in the interim) pending that report and further consideration by the Court.
  3. Mr. Fulford makes a point that if the Order is complied with and the appeal is successful, this will result in the childrens’ main residence changing twice. What is overlooked is that it is unlikely that any appeal will be heard before the matter comes back before this Court and before a further report is completed. The force behind his argument is premised on the fact that that the children are presently with the Petitioner, but that overlooks that this is in breach of the order of 7 August 2020.
  4. The point is made that if the children are returned to the Respondent then the Petitioner will incur additional travel costs in having access to the children. Ms Maroof submits that the issue of travel expenses has little weight in this matter. I have to agree and in any event, the same consideration must be applied to the Respondent who will incur the same expenses if the stay is granted.
  5. Ms Maroof submits that there needs to be a good reason for the Court to order a stay and that the filing of an appeal (which it is accepted does not in itself operate as a stay) is not sufficient. She refers me to the note to Ord. 59 r.13 at 59/13/2 .
  6. Ms Maroof also referred to note 59/13/4 which deals specifically with applications for a stay in child cases. That note states:

To avoid the risk of a change of residence and a change back again, if the appeal is allowed, the usual practice of the Court, in the case of appeals against orders involving a change of residence [formerly custody] of a child, is to grant a stay on the order unless the appeal is weak or hopeless…”.

She submits that this provision does not apply as residence of the children is with the Respondent and that this is not a change of residence case. Ms Maroof further submits that the appeal is weak or hopeless in that the appeal asserts that the Court erred in fact and law but does not identify any error of fact or any matter of law. Her position is that the Court properly considered the evidence and that the decision to continue the Chief Magistrate’s order was based on the evidence of social services that the children would not be at risk if returned to the Respondent.

  1. Ms Maroof also brought the Court’s attention to the fact that social services had indicated that the children were exhibiting sexualised behaviour between themselves and as such the risk, concerns and supervision are the same whoever the children are with.
  2. Ms Maroof submitted that the children should not have been registered in school in Grand Turk given the court order that was in place. She went to submit that the application was bound to fail in that the Respondent had failed to show any grounds for a stay.

Decision

  1. I do not consider that the filing of an appeal amounts to a matter that has occurred since the making of an order that would give grounds for a stay. If that were the case, then every appeal filed would be grounds for stay. The filing of the appeal does not affect the subject matter of the Order and in my judgment Ord. 45 r.11 only becomes relevant when something has occurred post the making of an order which affects the subject matter of that order.
  2. It is not suggested by the Respondent that any other matter has occurred and accordingly the application based on Ord. 45 r.11 must fail.
  3. The question is then, are there any other grounds or reasons for granting a stay? The application suggests that a stay should be granted because the children will not be safe and properly supervised in the custody of the Respondent. This is a matter that has already been argued in the hearing on 13 September 2022 and the Court has made a decision.
  4. An application for a stay is not an opportunity for the party who is dissatisfied with a decision of the Court to get the Court to review its decision. This stay application is in essence a request for this Court to reconsider its earlier Order.
  5. The Petitioner’s best point, albeit put forward by Ms Maroof, is the note to Order 59 r.13. This is not case where a stay is being requested to prevent execution on a judgment pending appeal. It is also not a case in which the normal consideration would be whether refusing a stay would render any appeal nugatory, the well-known test as set out in note 59/13/2.
  6. Note 59/13/4 indicates that the Court’s usual approach to a stay application pending appeal where the order being appeal concerns the residence of a child is to grant the stay unless there is a good reason not to or unless the appeal is weak or hopeless. Accordingly, I accept Ms Maroof’s submission that in considering this application I must look at the grounds of appeal.
  7. I have dealt with the last 3 grounds of appeal above when dealing with the Petitioner’s affidavit in support of the stay application. Grounds 1 & 2 very much amount to the same issue. It must be repeated that the Order was not a final order, nor was it an order directly dealing with the residence of the children. That order had already been made on 7 August 2020 and had not been appeal. The Order simply confirmed that which had already been decided (albeit on an interim basis) and gave directions to move the case forward, something that could have been done much sooner had there been compliance with the order of Simons J on 17 February 2022. It is evident and was raised by counsel at the hearing on 13 September 2022 that given the Petitioner’s change of abode to Grand Turk, the 7 August 2020 order will need to be varied or superseded, but that is to be done by proper process and not by unilateral action.
  8. As I have noted above, it is not likely that the appeal against this interim order will be heard before the matter is brought back before me on 25 October 2022 or indeed before any substantive hearing of the matter, if it is to progress to trial. The suggestion by Mr. Fulford that in the event of a stay being granted, he will then seek to have the hearing listed on 25 October 2022 adjourned until after the Court of Appeal decision is unpalatable. I do not intend to pre-judge the outcome of such an application if one were to be made, but it would be in essence, an application to allow the Petitioner to remain in breach of the order of 7 August 2020 pending a decision of the Court of Appeal as to whether or not this Court was correct in ordering compliance with it. There would need to be very good reasons to delay this matter to that extent. The decision of who the children are to reside with on a day-to-day basis and the terms of access to the absent parent are matters for this Court and not the Court of Appeal.
  9. The application for a stay of the Order is refused.

 

3rd October 2022

 

 

The Hon. Justice Anthony S. Gruchot

Judge

 

 

 

[1] [1999] Lexis Citation 4779

[2] Family Law – Principles, Policy & Practice – Hayes & Williams

[3] England and Wales

[4] Inter alia applications for or to vary orders for custody, day to day care and conduct and access.

[5] Butterworths Family Law Service > Children > 3A Narrative > Chapter 6 Private law proceedings: Children Act 1989, Part II > A Overview of the Children Act 1989, Part II