Jersey Unreported Judgments

2001/163

ROYAL COURT

(Samedi Division)

27th July  2001 

Jurisdiction of the Royal Court to make an order concerning minor children who do not at the present time live in Jersey and where there are no matrimonial proceedings in Jersey.

Advocate C.G.P. Lakeman for the Representor and the Respondent

judgment

the deputy bailiff:

1.        This application raises the question of whether the Royal Court has jurisdiction to make an order concerning minor children who do not at the present time live in Jersey and where there are no matrimonial proceedings in Jersey.  We now give our reasons for the decision which we announced at the end of the hearing.

The factual background

2.        The representor and the respondent were married.  They lived in England and had three children, all of whom remain minors.  They are now divorced and the mother (representor) wishes to remarry and to move permanently to Jersey to live with her new husband.  In matrimonial proceedings in the Family Division of the High Court of Justice of England and Wales the Court made an order that the children should reside with their mother.  It also gave her leave to remove the children out of England and Wales permanently to Jersey in order that they might come with her to live in this Island.

3.        The High Court is however anxious to ensure that the children maintain contact with their father, who will remain living in England.  It therefore made detailed orders for contact (access in Jersey terminology) between the father and the children once they are living in Jersey.  Some of this will take place in Jersey but access will also take place in England. 

4.        The High Court is clearly anxious to ensure that these access provisions will be capable of easy enforcement.  In the event (of which there is no suggestion) of the mother refusing access, the High Court did not wish to expose the father to the problem of having to apply de novo to this Court for an order for access with the consequent risk that the Court would look into the situation and possibly make no order for access or make a different order from that made by the English Court.  All parties wish the position to be that the access arrangements made by the High Court will be enforced in a quick and straightforward manner by this Court should the need arise. 

5.        Accordingly the order of the High Court requested this Court to provide assistance by making, if possible, an order mirroring the order of the High Court and further expressed its order to be conditional upon the mother obtaining a mirror order from this Court prior to the children being removed from the English jurisdiction.  This is apparently common practice in such cases. 

6.        The mother, with the consent of the father (they are both represented for today's purposes by the same advocate) now applies for a mirror order i.e. an order which replicates exactly the provisions for residence and access set out in the order of the High Court.  The Court has no doubt that such an order would be in the best interests of the children and of the parties.  If it concludes that it has jurisdiction to do so, it would have no hesitation in making such an order.  The question is whether we do have jurisdiction to make an order regulating the residence of or access to these children when there are no Jersey matrimonial proceedings and the children do not at present live in Jersey, nor have they previously had any connection with the Island.

Jurisdiction

7.        There is no direct Jersey precedent.  However the equivalent position in England was considered in the case of Re P (2000) 1 FCR 349.  The background to that case was that an order concerning access had been made by a court in the United States of America.  That order requested that a mirror order be made in the Family Division in England so that the order made by the American judge would be capable of easy enforcement.  There was a particular difficulty facing the English court because of the provisions of section 2 of the Family Law Act 1986 which provided that the court could not make an order under its inherent jurisdiction giving the care of a child to any person or providing for contact with that child unless the child was habitually resident in England and Wales or was present in England and Wales on the date of the application for the order.  In that particular case, the child had been habitually resident in the United States and was not resident in England and Wales at the date of the application.

8.        Despite this, Singer J held that the Family Division had jurisdiction to make a mirror order of the American order.  His findings are conveniently summarised in the head note as follows:-

"Held - For many years English judges had customarily invited undertakings to govern in Hague Convention cases the particular arrangements for children and parents returning after a wrongful removal or retention to the place of the children's habitual residence, and had invited the use of mirror orders in foreign courts both in respect of non-Convention countries and on applications for leave to remove permanently from England to live abroad.  Where a foreign court was making provision for contact to take place in another jurisdiction, in the present case England, it was important that there should be the possibility for the orders to be made in advance of and against the arrival of the child so that the parties and foreign court could have confidence that if either of them sought to take advantage of the presence of the child in the contact jurisdiction, the court there would not lend itself to any attempt.  Therefore as a matter of common sense, of comity and of public policy, the High Court should have the ability to make orders of the sort which the English judges had frequently in past years invited other courts to make.  As a mirror order was intended only to have effect while the child was present in the jurisdiction and, even without the mirror order, the inherent jurisdiction of the court to make an order that would be otherwise prohibited under s 1(1)(d) of the 1986 Act was retained if, in the words of s 2(3)(b) 'the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection', the court had the jurisdiction to make an order which expressly by its terms only had currency as far as the English courts were concerned while the child was present in this jurisdiction for the purposes of contact for which the mirror order provided. ...The essence of the order  in the present case was that it was only to take effect each time the child came to this jurisdiction for the purposes of the contact thereby regulated, and would cease to have effect each time the child left the jurisdiction as provided for by that contact order."

9.        On the assumption that the children were physically present in Jersey, would the Court have jurisdiction to make an order concerning their care and control or access to them?  Again there is no direct precedent that counsel has been able to cite to us and we do not have the exact equivalent of the English wardship proceedings.  Nevertheless, in our judgment, the Royal Court does have an inherent jurisdiction to make orders concerning the welfare of children within its jurisdiction.  We would refer briefly to a number of factors which give support to this principle. 

(i)        The Court has asserted a power to make orders concerning access to illegitimate children (see Tomas --v- O'Shea (1987) 88 JLR N-12).  Similarly it has historically assumed a power to award maintenance for the upkeep of an illegitimate child (pension alimentaire) against the father.  These are only explicable on the basis that the Court has considered that it has power to make orders necessary for the welfare of a minor.  We have little doubt that, in the event of the mother of an illegitimate child dying, the Court would consider that it had jurisdiction to determine who should have care and control of the child in the event of a dispute arising. 

(ii)       The Court has regularly granted injunctions to restrain a parent from removing a child from the jurisdiction even where there are no existing matrimonial proceedings.  This can only be on the basis that the Court has assumed a power to do what is necessary to protect the child's best interests. 

(iii)      In Re an Infant (1995) JLR 296 concerned an agonising issue as to whether to discontinue certain medical treatment of a five year old child who had fallen into a swimming pool and who was being kept alive only by means of a life support system.  The Court held that, although such matters were primarily for the parents of the child, the Court had jurisdiction to intervene in the best interests of the child. 

(iv)      Although now partially regulated by statute, the origin of the system of tutelles (whereby persons are appointed to manage the property of minor children) lies in the customary law.  The system was therefore developed by the Royal Court acting presumably under its inherent jurisdiction to safeguard the interests of children. 

(v)       Similarly the Royal Court developed the system of appointing curators to manage the affairs of persons who were mentally incapacitated and therefore not capable of managing their own affairs.  This too must have been on the basis of the Court assuming an inherent jurisdiction to act to safeguard the well-being of persons not of full capacity. 

10.      We have of course been referred to the case of Mayo Associates S.A. --v- Cantrade Private Bank of Switzerland (C.I.) Limited (1998) JLR 173.  That case concerned the nature of the inherent jurisdiction of the Royal Court. The Court of Appeal made it clear that, in relation to procedural aspects, the touchstone was one of necessity; the Court could only assume a power if it was necessary for it to do so.  However the Court accepted that there was a second category of powers which fell under the label of the inherent jurisdiction of the Court.  Thus at 190 the Court of Appeal said:-

"We now turn to that assortment of powers exercised by courts which have been described as forming part of inherent jurisdiction but which lack a common theme.  It is unnecessary for the purpose of this judgment to list these powers, but we mention by way of example the protection of minors and persons incapable of managing their own affairs and the control of inferior courts and tribunals.  Sir Jack Jacob thought that inherent jurisdiction was part of procedural and not substantive law (op.cit., at 24).  We do not believe that this limitation is tenable: see the judgment of this court in Planning & Environment Cttee v. Lesquende Ltd (15), Professor Dockray's article (op.cit., at 212) and the remarks of Megaw, L.J. concerning the word "procedure" in Moore v. Assignment Courier (12) ([1977]) 1 W.L.R. at 645).  However, we regard debate as to whether a particular power forms part of the court's general or inherent jurisdiction as for the most part sterile and we do not intend to address it in this case."

It is clear therefore that the Court of Appeal accepted that there was an inherent jurisdiction to act in protection of minors although it did not of course have to consider the extent of that jurisdiction.  However the jurisdiction of the Royal Court cannot in our judgment be any less than that of the High Court in England, which was described by Sir Jack Jacob in an article entitled "The inherent jurisdiction of the court" in Current Legal Practice 1970 at 23 as follows:-

"The court, on behalf of the sovereign as parens patriae, exercises an inherent and peculiar jurisdiction in relation to infants, for example, in respect of their wardship and in respect of any compromise or settlement affecting their property.""

11.      Finally we were referred to the case of Lane --v- Lane (1985) 86 JLR 48 where, on the basis of the doctrine of comity, the Royal Court made an order giving effect in Jersey to an order of the Family Division of the High Court of England and Wales concerning ancillary financial relief in connection with a divorce.

Conclusion

12.      We draw support from the foregoing matters for the principle that this Court has an inherent jurisdiction to protect and make orders for the welfare of minor children.  Such orders may deal with matters such as care and control, access, education, removal from the Island and medical treatment but that is not intended to be an exhaustive list.  In general the jurisdiction is limited to children who are ordinarily resident on the Island or physically present in the Island at the time of the application because jurisdiction in personam is essentially a territorial jurisdiction.

13.      However, for the reasons set out so clearly by Singer J in Re P, we conclude that, like the English Court, this Court should, as a matter of common sense, of comity and of public policy, have the ability to make mirror orders where it is known that a child is about to come and live in the Island and where the making of such an order has been requested by the court of primary jurisdiction.  We see no reason of public policy or otherwise to deny this Court the jurisdiction to make such a beneficial order and, like Singer J, we would justify it on the basis that the order will only take effect when the child is within the jurisdiction of the Court and will only be made in support of an order made by a court having appropriate jurisdiction over the child.  It would not therefore be an exorbitant jurisdiction to assert.  On the contrary it would enable all parties to plan their future in the knowledge that the Court would not lend itself to any attempt to take advantage of the presence of the child in Jersey in order to overturn decisions as to care and control or access made by the court of primary or original jurisdiction. 

14.      It was for these reasons that we concluded that the Court does have jurisdiction to make a mirror order and, as we have already said, we considered that to do so would be in the best interests of these children.  We accordingly ordered that the children should reside with their mother (as is provided by the English order) and we made provision for access to the children  in identical terms to that (under the label of contact) ordered by the High Court.  Furthermore the parties  each gave undertakings to this Court in identical form to the undertakings which they gave to the High Court. 

Authorities,

Re P (2000) 1 FCR 349.

Tomas --v- O'Shea (1987) 88 JLR N-12..

In Re an Infant (1995) JLR 296.

Mayo Associates S.A-v-Cantrade Private Bank of Switzerland (C.I.) Limited (1998) JLR 173.

Lane --v- Lane (1985) 86 JLR 48.