Jersey Unreported Judgments

2001/64A

ROYAL COURT

(Family Division)

16^th March 2001 

Reasons

Application by father for care and control of two children of the marriage.  Order made: (a) for joint custody, (b) that the children reside with father in former matrimonial home until further order.

judgment

The registrar:

1.        In this case the father has obtained a decree nisi of divorce on the grounds of the wife's adultery with the co-respondent.  This was on 12^th July, 2000, and at that time ancillary matters, including the care of the children, was left over.

2.        Since that time it appears from the welfare report prepared by the Children's Service dated 23^rd February, 2001, that the children, aged 12 and 6, live with both their parents still in the former matrimonial home in St. Helier.  The father is the head of his department, and the mother has a job in a garden nursery.  Clearly the atmosphere in the matrimonial home is not good and it is clear from the report of the children's officer that, at least, X, who is, in the words of the children's officer, a "sensitive lad and was sufficiently perceptive to be aware that all was not well" has been affected emotionally by his parents' divorce.

3.        Nonetheless, I am impressed by the way both parents have made sacrifices in order to share the care of the children.  In order to demonstrate that this is an unusual situation I have transcribed verbatim what the children's officer said in evidence.  He was asked by me whether this was a case in which care and control of the children should be awarded to one party to the exclusion of the other, or whether there was any merit in exploring a joint care order.  He said this:-

"I think both parents have been very involved in the care of the children in the past.  It's been very much a shared care arrangement.  I think A has spent a lot more time with the children than most fathers would because he takes the children to school.  He certainly brings X back every day and very often Y as well.  He has the care of the children on Saturday and I would think much of the time during the school holiday's, although whenever B is off - and she works or can work such flexible hours - I am not sure how many hours she is off - although I presume during the school holidays she would reduce her working hours so that she would spend more time with the children.....  But A, by virtue of being on holiday virtually the whole of that time, is available to care for them.  I have to say this is an unusual situation.  But it is a shared care arrangement in that B for instance prepares most of the meals.  I think she has usually been the one who has been there when the children are ill.  Weekends are shared between them.  A has the children on a Saturday - B has them on a Sunday - so it is very much a shared care arrangement.  I think it is ideal that there's never a time when there's not a parent well able to be available to look after the children."

4.        However, by contrast to what was said here by the children's officer, both parties gave evidence themselves as to why, in their view, they were more suitable to have the children in their care to the exclusion of the other.

Furthermore, unusually, the wife's mother gave evidence on behalf of her son-in-law, stating that she would prefer him, in preference to her daughter, to look after her grand children.  On the other hand, the mother was supported by the god-mother of Y who gave evidence that the mother was the more suitable parent to have care and control.

5.        I was not impressed by the evidence of either of the above two witnesses.  Although their evidence could have not been more sincere and the beliefs expressed more deeply felt, the fact remains that, as described by the children's officer, these parents actually do manage at the moment to provide good care for two quite young children one of whom has been affected by the divorce.  I did not think that I should dwell on which of the two parents is in any way better than the other.

6.        Nevertheless, however good the individual care of each parent, it seems to me that it will not benefit either child in future for the parents to continue living under the same roof, when clearly their relationship as husband and wife has well and truly ended.  However, having said that, it must be good to provide some form of continuity so that their lives are not completely disrupted by one parent having to move out.

7.        On hearing the evidence, I am led to believe that the greatest continuity and stability will be offered to the children if they reside with their father in the former matrimonial home so that existing arrangements made by both parents can continue for them as far as possible, although I envisage their mother moving out.

8.        My decision on this point is founded on my preference for the husband's evidence on who plays the largest part at the moment in caring for the children.  The truth, in my view must be very near to his statement when asked the question whether he played the greater part:  "I would have to say: 'Yes', but it isn't solely my responsibility."  He convinced me that he plays an overriding part in making arrangements during school holidays, the arrangements for delivery and collection from school during term-time, and after school care.

9.        I have considered my powers under the Matrimonial Causes (Jersey) Law 1949, as amended, to enable me to make an order in these terms.

Article 25 reads:-

"In any proceedings for divorce or nullity of marriage or judicial separation, the court may from time to time, either before or by or after the final decree, make such provisions that appears just with respect to the custody, maintenance and education of the children, the marriage of whose parents is the subject of the proceedings, or, if it thinks fit, direct proper proceedings to be taken for placing the children under the protection of the court."

It is not disputed that the custody of the children should be joint.  What is disputed is the party who should have "care and control".

10.      It is worthy of note that Article 25 does not use the expression "care and control" at all.  However, there is a line of cases decided in the UK and in Jersey in which the term "care and control" has been used to describe the rights exercised by the principle carer of children.  That is, of course, until the introduction in the UK of the Children Act 1989, since when, in the UK, the expression has not been used.  Under the new Act the court has power to award, in stead, in appropriate cases, a residence order and a contact order.  There is a provision, also, that no order will be made at all unless it is in the interests of the children's to make an order.

11.      The advantage of a "residence order" is that it has none of the connotation of control to be exercised by one parent to the exclusion of the other, as in the case of a "care and control" order.  This is of significance, particularly, as in cases like this, where the parents largely share the care of their children.  It may, even, be appropriate to make a split residence order in the future if, should the wife or both parties obtain their own permanent suitable accommodation, the children may share their time between both parents.  I understand that in this case there may be an issue over the funding of the former matrimonial home and that provision may have to be made for the allocation of assets to enable both parties to re-house themselves. This being so, it is possible that any order made today will not be permanent.

12.      I find no difficulty in making a "residence order" within the provisions of Article 25, any more than I would have found it difficult to make a "care and control order" in an appropriate case.  In my opinion the drafting of the article is sufficiently broad.

13.      For the time being, I have provided that the mother should have access as agreed between the parties.  I have every confidence that this will be the case, and that agreement will be reached.  However, it is worth mentioning that the concept of access or contact may not be necessary to include in any future order, should the residence of the children be divided between both parents.

Authorities

Matrimonial Causes (Jersey) Law 1949, as amended.

Children Act 1989.