Dear Sir,

I write in response to the letter to the editor from Sarah Christian published in your August 26th 2009 edition and entitled “Who are judges accountable to?”

As the particular court case is not identified, and to preserve the privacy of the actual parties to the case (who have not chosen to make their dispute public), I can only respond in general terms.

The public servants of the Judicial Administration strive to provide excellent service. We invite criticism when deserved so that we are able to change and improve our procedures. We ask, however, that any problems be brought to our attention first so that we are able to address matters directly with the parties involved in a case, rather than having matters aired in the press where a full discussion cannot take place.

Ms Christian’s letter raises many issues. I confine myself, however, to addressing the main issues. While I cannot discuss this case in detail, I will try, in the public’s interest, to clarify inaccuracies and misconceptions.


Conversation with Judge’s Secretary

The judge’s secretary has a very different recollection of the conversation described. The judge’s secretary was not, as has been alleged, typing up a warrant for arrest and strove, as always, to be professional and helpful.

Warrants for arrest are not typed by judge’s secretaries. More importantly, court staff do not discuss court cases with non-parties; all court staff must maintain strict confidentiality in relation to court files (access to, and therefore information about, our court files is restricted by the Grand Court Rules (“GCR”) – see GCR Order 63, rule 3 on our website www.caymanjudicial-legalinfo.com.ky).


Maintenance

The letter writer states that a judge ordered “a father of five who had lost his job in the construction industry to pay weekly CI$250 in maintenance for one child”. In fact, there was never any order that the father pay weekly maintenance of $250.

The original order for maintenance was $100 per week and had been set by consent of both the father and the mother. That figure was increased by $50 per week. In recent court appearances, the court added weekly payments towards arrears. In other words, the court allowed the father to pay the arrears over time – a much less onerous requirement than paying the total arrears in one lump sum.


Access

The letter writer claims that the father has asked the court on several occasions to assist with visitation rights, but “they do not care about the rights of the father”. In fact, on the first application for access to the child the court ordered the preparation of a Social Inquiry Report “as soon as possible on the matter of access … including a detailed recommendation to the Court on whether in the interests of the said child, there should be such access, and if so when, where and how and, if not, why not”.

The court is equally concerned about access for fathers as for mothers. It must be emphasized, however, the paramount concern is what is in the best interests of the child – parental interests while important are secondary.

The question of access will be heard as soon as the Report is filed with the court.


Legal Aid Office

The letter writer claims that the father did not receive a reply to his legal aid request for more than a month. We dispute this.

Our records indicate that this particular application for legal aid was presented to the Chief Justice on the same day it was completed, and the Chief Justice made his decision on the next day. The legal aid officer informed the father of the decision by telephone within a matter of days and the Refusal Certificate was placed in the court mail box of the father’s attorney.

The letter writer further states that “the legal aid department handles maintenance cases, also, and they were the ones pushing the case on the father, so how could they approve legal aid for him – after all he would be fighting them …”.

The legal aid “department” is one person – a legal aid officer, who provides administrative support for the legal aid system. The legal aid officer does not “push” cases against anyone; the parties to an action are responsible for making their own litigation decisions. Moreover, the legal aid officer does not make any decisions with respect to granting or denying legal aid; these decisions may only be made by the judiciary.

The legal aid officer also provides administrative support for maintenance cases in the Grand Court. All decisions regarding whether or not to order maintenance payments, the amount and frequency of those payments, and whether imprisonment for non-payment is warranted may only be made by the judiciary.

In response to further questions posed by the writer, we clarify that the judges hear maintenance cases because the laws in force require them to hear these cases; the maintenance “department” has no power to make any orders in relation to maintenance. So it is not possible to “put this father back in the maintenance department”.

We also clarify another misconception by the writer, who states: “I understand, per the law, once the maintenance goes in arrears for a certain amount then the legal aid department takes this up”. There is no such law.


Who are judges accountable to?

I hope that the information provided above will assist the general public in assessing the merits of these and other complaints, and whether the history of this case requires that “the whole judicial system needs overhauling” as the writer claims.

Where a party to a case is dissatisfied with a decision of a judge, the remedy is to appeal the decision. Judges are accountable under the law by way of appeal. In the case cited, no appeal was ever filed.

In closing, I emphasize that the public servants in the Judicial Administration take their duties seriously and attempt to discharge them with the utmost courtesy and professionalism. It is inappropriate to discuss the writer’s letter any further in the press; I do, however, invite her to meet with me to discuss the matter in a more appropriate forum – my office. My door is always open.

I advise the public that we have guidance notes for individuals who wish to apply for child or spousal maintenance on our website (http://www.caymanjudicial-legalinfo.com.ky/Guidance/Applying-for-Child-and-Spouse-Maintenance.aspx).

Finally, it must be remembered that the child is the ultimate beneficiary of maintenance payments.
Yours truly,

Valdis Foldats,
Clerk of the Court