Jersey Unreported Judgments

[2005]JRC168

royal court

(Family Division)

6^th December 2005 

 

 

 

 

 

 

 

 

Advocate T. Hanson for the Applicant.

Advocate C.M.B. Thacker for the Respondent.

judgment

DEPUTY bailiff:

1.        We shall refer to the parties in this case as 'the mother' and 'the father' respectively.  This is an application by the mother for leave to remove their child permanently from the jurisdiction.  We were originally due also to consider a cross application by the father for a residence order but he has decided not to proceed with that application.  The parties are agreed that they should both have parental responsibility and that we should therefore make a parental responsibility order in favour of the father, who was not married to the mother. 

Factual background

2.        The parties had a relationship beginning in 1998.  They had one child, F, who was born on 23^rd September 1999 and is therefore now aged 6.  The parties separated shortly after F's birth.  The mother and F remained in Jersey whereas the father moved to England.  There was subsequently a short-lived attempt at reconciliation before they finally separated in 2002.   

3.        It is clear that the relationship between the parties has been difficult.  Until November 2004, the father only had sporadic contact with F.  The father asserts that, because of her hostility towards him, the mother made it very difficult for him to see F.  Certainly there are e-mails and letters which lend some support to his case in this respect.  The mother on the other hand took the view that the father was putting his sporting and other interests before his contact with F and he could not be relied upon.  Certainly, many of the e-mails asking for contact are written only a matter of days before his arrival in Jersey and accordingly give the mother very little time to respond or to adjust any plans which she may have made.  She did not wish to permit contact in case F came to depend on the father but was then let down. 

4.        Eventually the father issued proceedings for contact which came before the Greffier Substitute on 12^th November 2004 at which time an order for contact was made.  Broadly speaking, contact was to take place monthly on dates to tie in with visits by the father to Jersey.  It was to take place in the presence of a specified member of the mother's family, failing which in the presence of the paternal grandparents.  We should add that, following the separation, F had had considerable contact with his paternal grandparents and developed an extremely good relationship with them, but such contact had been ended by the mother when she discovered that F had been speaking on the telephone to the father during such visits and understood (although this is denied by the grandparents) that the grandparents had told F not to tell the mother that this was taking place.  The Greffier Substitute also ordered that telephone contact should take place. 

5.        Contact duly took place as ordered on 5^th and 30^th December 2004 as did telephone contact.  However, during the second visit, F was introduced briefly to the father's new wife.  When she discovered this, the mother made it clear that contact could no longer take place.  There were heated conversations.  Telephone contact also ceased. 

6.        In the light of this development, the father returned to the Greffier Substitute, who, on 27^th January 2005, ordered that contact should take place on 30^th January and thereafter monthly, pending a review of contact on 15^th April 2005.  On her own admission, the mother ignored this order and contact did not take place on 30^th January.  The father therefore issued a representation for contempt of court which came before this Court on 25^th February.  In the meantime, the mother had, on 7^th February, lodged an appeal against the Greffier Substitute's decision of 27^th January. 

7.        At the hearing on 25^th February, this Court emphasised to the mother that she had to obey court orders.  By then, the parties had agreed that supervised contact should take place on certain specified dates between then and 15^th April.  However, the mother did not agree to such contact taking place at the paternal grandparents' home nor to continuing telephone contact.  After hearing from her and from the Children's Officer, this Court ordered that contact should be able to take place at the paternal grandparents' house (where the father stays when he comes to Jersey) and that there should be continuing telephone contact.

8.        The matter came back before the Greffier as envisaged on 15^th April, at which time there was a detailed report from the Children's Service.  That report stated that the mother did not want F to have contact with the father, but was willing to accept that it would take place.  The report found that the mother had unreasonably refused the father contact with F at times and that, although she had F's best interests at heart, her animosity towards the father could not be discounted as part of her decision making.  The report stated that in recent months the father had shown continued commitment to regular contact with F and that such contact worked well.  The report made a firm recommendation that there should be unsupervised staying contact from Saturday morning to Sunday afternoon on a monthly basis, together with longer periods during the school holidays.

9.        At the hearing, the mother withdrew her appeal against the Greffier's order of 27^th January but, according to the father's affidavit, did not agree to the sort of contact recommended by the Children's Service.  After hearing the parties, the Greffier Substitute made an order that there should be staying contact from 9.0 a.m. on Saturday to 5.00 p.m. on Sunday on certain specified dates (broadly monthly) when the father would be in Jersey and that this could take place at the paternal grandparents' home.  Furthermore, there was to be staying contact of one week in the Easter and Christmas holidays and two weeks in the summer holidays, part of the latter being out of Jersey. 

10.      Contact has taken place in accordance with the order since then, but in June the father heard rumours that the mother, together with her new husband L, was planning to go and work in Qatar.  Through his advocates, he made enquiries and received a reply on 14^th June that "neither [L] or [the mother] have any intention of leaving Jersey. [L] has just bought a new flat and [the mother] is just about to have a baby.  These are hardly preparations for leaving the Island.  Should circumstances change, then your client will be notified".

11.      Despite this, the father was subsequently told that there had been an announcement at the bank where L worked that he was to be posted to Qatar in early August and he then heard that L, the mother and F were flying to Qatar on 4^th August.  On his application, I granted an ex parte injunction on 2^nd August, restraining the mother from removing F from the jurisdiction and ordering her to surrender F's passport to the Viscount upon service.  This she refused to do and accordingly she was arrested and brought before the Court on 3^rd August on the basis that she had been in contempt of court.  By then, she had surrendered the passport and the Court took no further action other than to make her pay the costs of the hearing.  It transpired that she, L and F had been booked to fly to Qatar on 4^th August, but that this was merely for a holiday in order to inspect Qatar in the light of the possible posting.  It is of note however that the father was due to have staying contact with F pursuant to the Greffier Substitute's order from 5^th to 12^th August.  Accordingly, if the mother had gone to Qatar as planned, she would have been in breach of the Greffier Substitute's order. 

12.      Since then, contact has continued to take place but the mother has applied for leave to remove F permanently from the jurisdiction in order that she, F, and T (the new baby) might accompany L to Qatar where he has been posted by his bank.  The father originally submitted an application for a residence order but, following production of the Children's report for this hearing, he has withdrawn that application.  In our judgment, he was sensible to do so.  F has lived with his mother since birth.  His mother has now married L, with whom F has a good relationship.  There is a new child T, of whom F appears to be very fond.  The evidence suggests that it would not be in F's best interest to remove him from the family unit where he is happy and well established. 

This application

13.      We have heard oral evidence from the mother, L, the father and both his parents, as well as the Children's Officer.  We have also received additional witness statements, (although these were prepared for the hearing on residence) and a letter of advice from a lawyer in Qatar, produced on behalf of the mother.

14.      The mother married L on 29^th June 2005.  They have been living together since May 2004.  L is employed as head of investment by a local bank.  According to L, there had for some time been a likelihood that the bank would open an office in Qatar, although the timing of this was uncertain because Qatar had to set up the necessary regulatory body and the bank then had to apply for a licence.  However, given the identity of the shareholder of the bank, it was more a question of 'when' rather than 'if'.  In June 2005 he went to Qatar on business but, after discussion with the bank, it was agreed that he would also use the time to take a preliminary look at Qatar in order to see if he would be interested in taking up a senior position there for the bank.  Accordingly, he took the opportunity to undertake preliminary research on the viability of relocating his family to Qatar.  Naturally he and the mother discussed this both before and after his trip. 

15.      L states that in early July 2005, after his visit, he had discussions with the managing director in Jersey and that, as a result, he and the mother decided to take a holiday in early August, in order that they could decide whether to take up the suggestion of employment there.  That visit did not take place.  According to the mother, they had cancelled the trip before any injunction was served.  However, according to L, the only reason that they did not go was because of the injunction.  We do not accept the evidence of the mother in this respect.  Be that as it may, L had to make up his mind and, after discussion with the mother, he decided to accept the position.  The formal offer was put to and accepted by him in mid September. 

16.      It is clear that the position is one of responsibility and will mark career progression for L with a commensurate salary rise.  He would initially head up the new office. Although there is an intention that in due course an Arab-speaking head of office should be appointed, he would thereafter be head of private banking, an important and responsible post in a key location for the bank.    The family will live in a three-bedroomed villa in a compound.  L's salary will be such that the mother will not need to work (although she may work part-time).  She will therefore be available to look after F and T.  It is proposed that F should attend the Doha English-speaking School.  This follows the national curriculum for England and all teachers are UK qualified and experienced.  Although the position has been referred to as a secondment, it is not strictly such.  It is an open-ended offer of employment and it is not possible to know how long it will last and whether L and the mother will ever return to Jersey, although they propose at present to keep their two properties here and have put F down for a local school in case they do return.

17.      The mother asserts on oath that she entirely accepts that F should grow up knowing his father and having a loving relationship with both of his parents.  She intends to retain strong links with Jersey (both her brother and sister live here and she states that they will return to the Island to see family and friends once or twice a year).  She originally proposed that the father should have staying contact with F four weeks a year, one in the Easter holidays, one in the Christmas holidays and two in the summer holidays.  She now proposes that, in addition, the father should have contact for the Michaelmas and summer half-terms (i.e. October and May). She states that, for the coming year, the family will be returning to Jersey shortly after Christmas and the father could have contact for a week over the New Year.  They will be coming back for two weeks in April and he could have staying contact for a week, then, she would also be coming back for a month in August, at which time staying contact of two weeks could take place.  She also states that, should the father be able to come to Qatar at any time, she would be happy for contact to take place there, provided reasonable notice is given; similarly, if the paternal grandparents were able to come to Qatar.  She would also agree to the continuation of weekly telephone contact and of course the sending of cards, letters etc. at any time.  As to costs, she proposes that she and L will meet the costs of bringing F to Jersey whenever they accompany him, but if they are not themselves coming back (as will apparently probably be the case in Easter 2007) the father should pay for flying F to and from Jersey.

18.      L was due to begin his new employment at the end of October, but it has been deferred to the beginning of December so as to enable the present application to take place.  He has made it clear that, if the mother's application to remove F from the jurisdiction is refused by this Court, he will not feel able to continue his employment there because it would be too damaging to family life.  However, a replacement for his present position in Jersey has been appointed and, whilst he believes that the bank would do its best to find him suitable employment in Jersey if possible, he cannot be certain that this would occur.  He feels that, if he were to resign his employment in Qatar, both he and the bank would feel that he had let them down and he is concerned that this might have an adverse impact on his future career path.  The mother echoes that concern and states that, if this were to happen, she would feel that she had been unable to support L in his chosen career and she would never know if there would be any slight sense of resentment on his part which might emerge at a later date and cause problems in the marriage.

19.      The father has now moved to live in Jersey.  He is still employed by a company in England but is able to travel to England for part of the week only.  He does not accept that it is or was necessary for L to accept the offer of employment in Qatar.  He feels strongly that the mother has always been against contact between him and F and this is a convenient means whereby it will become even more difficult for him to maintain a proper relationship with F.  He is concerned at the genuineness of her assertion that she wishes to encourage contact.  He believes that, once she is in Qatar, there will be no means whereby this Court can ensure that she does comply with the promises which she has made about contact.  He asserts that the welfare of F requires that there should be a natural and happy relationship between F and his father and he does not believe that this is likely to occur if the mother's application is successful.  He emphasises that the move will separate F not only from the father himself but also from the paternal grandparents and the maternal uncle, aunt and cousins, with whom he also has a close relationship. 

20.      The Court has received a report from the Children's Office.  This was prepared at a time when the father was seeking a residence order and, not unnaturally, it concentrates on that aspect.  It reaches the clear conclusion that F should remain in the care of his mother and emphasises that there is a happy family unit, comprising the mother, L, T and F.  The report does not make any recommendation as to whether, assuming she retains residence, the mother's application to remove F from the jurisdiction should be granted.  However, it does suggest that, in view of the fact that the mother has previously both refused and been reluctant to encourage contact between F and his father, it would be appropriate, if the application to remove F is granted, to consider the deposit of some form of financial bond by the mother and L, in order to buttress their stated commitment to encourage contact and to allay the father's concerns that they will not in fact do so.  The report also emphasises the close bond between F and his paternal grandparents and regrets that the relationship between the parties is such that there is often tension at the time of hand-over, which is upsetting for F.  The report also paints a picture whereby F does not feel able to speak freely and happily about his times with the other parent for fear of upsetting the one whom he is with at the time.  This would appear to be particularly so in the case of the mother and the report states that F has said that his mother does not like him talking about 'Vicky', the father's new wife. The report suggests that the parties should attend mediation in order to try and help with these aspects and we would firmly encourage the parties to do so.  Continued antagonism between them and the prospect of further court proceedings can only be contrary to F's best interests. 

Legal principles

21.      Cases where the parent having care of a child wishes to relocate to another country with a consequent reduction in contact between the child and the other parent often pose an agonisingly difficult decision for a court.  In H v T (2003) JLR 26, the Registrar correctly held that in this jurisdiction we look for guidance in this area to decisions of the English courts. 

22.      The leading modern authority is Payne v Payne (2001) 1FLR 1052 where the law in this area was comprehensively reviewed in the light of the introduction of the Human Rights Act 1998.  At paragraph 26 of his judgment Thorpe LJ summarised the principles which had historically been applied by the courts on such applications as follows -

"26.  In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:

(a)       the welfare of the child is the paramount consideration; and

(b)       refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children.  Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children".

23.      The reasoning which underlies the second of these propositions has been set out in a number of cases but we would refer only to the comments of Griffiths LJ in Chamberlain v de la Mare (1983) 4 FLR 434 at 445 -

"The welfare of young children is best served by bringing them up in a happy, secure family atmosphere.  When, after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family and it is the happiness and security of that family on which their welfare will depend.  However painful it may be for the other parent that parent has got to grasp and appreciate that fact.  If a stepfather, for the purposes of his career, is required to live elsewhere the natural thing would be that he will wish to take his family, which now includes his step-children, with him, and if the court refuses to allow him to take the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be very damaging to those step-children or alternatively he may have to throw up his career prospects and remain in this country.  If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects.  If that happens it must reflect upon the happiness and possibly even the stability of this second marriage.  It is to that effect that the court was pointing in the decisions of Poel v Poel [1970] 1 WLR 1469 and Nash v Nash [1973] 2 All ER 704 and it was stressing that it was a factor that had to be given great weight when weighing up the various factors that arise when a judge has to decide whether or not to give leave to take children out of the jurisdiction".

24.      Having considered in detail the existing case law and the impact of the Human Rights Act, the Court of Appeal in Payne upheld the existing approach although deprecating the use of the word 'presumption' to describe the weight to be given to the wishes of the primary carer.  Thorpe LJ summarised the approach as follows at paragraph 40 -

"However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent's rights not only under Art 8 but also his rights under Art 6 to a fair trial.  To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion -

(a)       Pose the question:  is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life?  Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated?  If the application fails either of these tests refusal will inevitably follow.

(b)       If however the application passes these tests then there must be a careful appraisal of the father's opposition:  is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?  What would be the extent of the detriment to him and his future relationship with the child were the application granted?  To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?

           (c)        What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

           (d)        The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.

41.      In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer.  In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor".

25.      Although the application of these principles more often than not results in courts approving an application to remove a child from the jurisdiction, it does not invariably do so and Mr Thacker has referred us to several cases where permission was refused.  What is also clear is that the courts have in recent times adopted a number of imaginative solutions to the problem of ensuring, so far as possible, that promises as to continuing contact made by the departing parent will be adhered to and capable of enforcement by the other parent.  Thus consideration may be given to the obtaining of a mirror order in the courts of the new country of residence, to notarised agreements, or to the provision of a bond to enable the court to penalise the departing parent financially should she not adhere to the order or to her promises.

Decision

26.      We must first consider whether the mother's application is genuine in the sense that it is not motivated by some selfish desire to exclude the father from F's life.  In her witness statement the mother asserts at paragraph 13 that she has always wanted F to spend time with the father and build up a relationship with him.  We do not consider this to be a true statement.  She was clearly very hurt by what she perceived as the father's neglectful attitude towards her and F immediately after he left (initially defending the paternity suit on the grounds that he was not satisfied that he was necessarily F's father) and we are in no doubt from all the evidence that she was correctly described in the Children's report of March 2005 as saying that, although she was willing for contact to take place, she did not want F to have contact with his father.  She has undoubtedly refused contact in the past.

27.      In oral evidence, she said something rather different.  She said that, although she had initially been sceptical about the desirability of contact, now that it had taken place on a regular basis since April and she had seen how the bond between F and the father had developed, she accepted that F had become very attached to his father and would benefit from having a full relationship with him.  She therefore now considered it to be in F's best interests for contact to continue and she would encourage it.  She accepted that the animosity between herself and the father and herself and the grandparents was not helpful and was contrary to F's best interests.  She was therefore willing to accept mediation as recommended by the Children's Service with a view to trying to improve the position.  She stated that she would stick by any order for contact and she was willing to give security over her Jersey property in support thereof. 

28.      L agreed that continued contact was important and he too was willing to give security over his flat in Jersey as security for the honouring by the mother and him of any order for contact.  He was strongly supportive of mediation, pointing out that, once the Court had made its order, the lawyers could walk away from the matter but the parties had to continue to make things work in F's best interests. 

29.      We have had the opportunity of seeing and hearing the mother and L give evidence. We have had to consider very carefully whether the sentiments expressed by the mother in the witness box were genuine or whether she was merely saying what she knew would give her the best chance of succeeding in her application. We cannot entirely discount the possibility that the mother is not altogether unhappy that contact between F and the father would be adversely affected and would become more difficult were she to move to Qatar and that this may have coloured her attitude towards the idea of moving to Qatar.  But we are in  no doubt that there is a genuine reason underlying this application.  L has been offered employment by the bank because of their high opinion of him.  It is perfectly natural that, supported by the mother, he should wish to do what is best for his new family (including F) and this involves accepting the promotion offered and the proposed offer of employment in Qatar.  We are satisfied that the mother is perfectly genuine in wishing to support L in this career move and that is her primary motivation in this matter. 

30.      Next we must consider whether the application is realistic.  In our judgment it undoubtedly is.  L has a firm offer of employment which will produce a 20% increase in his current salary.  When coupled with a complete lack of income tax in Qatar and a housing allowance of £1,000 per month he will effectively be receiving an increase in income of not less than 40%.  L and the mother visited Qatar during the October half term.  They have definite and satisfactory housing arrangements with medical insurance etc.  The only slight doubt is over F's schooling.  L and the mother visited the Doha English-speaking school.  They liked what they saw but were informed, at that time, that there were only two remaining vacancies for F's year in January 2006 and it could not be guaranteed that these would be held for F.  Until this application is resolved, the mother has not felt able to take up a firm place for F.  If it transpires that, by the time of this decision, the two vacancies no longer exist, F would have to go to another English-speaking school which takes children from F's age up to GCSE level.  That is clearly a much larger school and would not be so ideal but overall we are satisfied that the mother and L are taking responsible action in relation to F's schooling and will do their best to ensure that adequate arrangements are made.  As to the proposed contact arrangements, we are satisfied that the modified proposals put forward by the mother during evidence are as satisfactory as circumstances permit. Accordingly, we find that the mother's application is realistic and has been properly researched.

31.      As to the father's opposition, we are in no doubt that this is genuinely motivated.  Whatever may have been the position in the period immediately following F's birth, we are satisfied that, since the latter part of 2004, the father has made determined and consistent efforts to see F and to build up a relationship with him.  This has been very successful.  We are quite satisfied from the evidence that F is very fond of his father and has built up an excellent relationship with him.  He is also perfectly happy in the presence of the father's new wife.  We accept that the father genuinely feels that it would be a mistake for the move to take place because this would have the effect of reducing the amount of contact just as it has successfully developed from inauspicious beginnings, given the mother's initial opposition.  Inevitably, the relationship between F and his father will be affected by the distance and consequent reduced regularity of contact.  F is only six and the period between the proposed contact visits will be very long for such a young child.  The father is genuinely and reasonably concerned that this would not be in F's best interests.  He is also concerned because there will be a similar reduction in contact with the grandparents.  Furthermore, this is not a case where there would be compensations by reason of the increased contact in the new country with the mother's family because her extended family also lives in Jersey.

32.      Next we must consider the impact on the mother as a new wife if permission were to be refused.   We are satisfied that the there would be potentially serious adverse consequences if this application were to be refused.  L has been offered a responsible post.  It is a job which offers considerable financial and career advancement.  This will benefit not just L, but also his family as a whole, including F.  If we refuse consent, L has made it clear that he will resign from the post and seek to be re-employed in Jersey.  His present position has been filled and he will therefore have to hope that his employers will be able to find him some alternative post.  Whilst he believes they will do their best to assist, success cannot be guaranteed; nor can it be certain that any alternative post would have a commensurate level of responsibility and remuneration.  If the bank cannot find him suitable employment, he will have to seek employment elsewhere in the finance sector in Jersey.  We think it is inevitable that, if this were to occur, there would be a certain - perfectly understandable - sense of disappointment and resentment on L's part which could impact on the happiness of his new family unit.  We accept that the mother would feel that she had been unable to support L and this in turn would impact on her emotional and psychological well-being.  Mr. Hanson described the consequences of a refusal of this application as 'disastrous'. We would not put it that high but we accept that it would be extremely disappointing, would have uncertain effect on his present and future career and would carry a material risk of causing tension and possible instability in the new family unit. Furthermore, if the application were refused, we have no doubt that the mother would blame the father and the grandparents for preventing her new family from following its chosen course and this would increase yet further the level of animosity between the parties and render the task of any mediator yet more difficult.  We think that this would impact on F who would undoubtedly feel the tension between the parties and would be torn in his loyalties even more than is already the case.

33.      Given the difficulties over contact in the past, a key factor in this case is the ability to enforce the proposals for contact made by the mother.  A number of options were canvassed during the hearing -

a.        According to the advice on Qatar law obtained by the mother, a notarised agreement under the law of Qatar setting out the agreed terms of contact would assist the father in enforcing that contact before the courts of Qatar should the need arise.  It is not possible, however, to obtain a mirror order.

b.        Both the mother and L have property in the Island and are content that steps should be taken to secure that those properties would be available to secure performance of the promised contact.  The mother has a 50% interest in common in a property in St Helier.  The other owner is her former brother-in-law.  We were informed that it is valued at some £220,000 with a mortgage of £175,000.  L has a flat in Jersey which he has acquired by share transfer.  It is valued at some £250,000 with a mortgage of £209,000. 

c.        An injunction could be granted restraining disposal of either of these properties without leave of the Court.  In order to ensure the possibility of enforcing any such injunction, security could be given over the two properties by way of a judicial hypothec and security interest respectively.  Thus, in the event of a breach of the order for contact, any penalty for contempt could be enforced against the two properties.  This would therefore give the mother and L a financial incentive to honour their commitment as to contact. 

34.      Having considered these various individual matters, we must then stand back and consider all the factors in order to determine the critical question, namely what is in F's best interests?  What is the order most likely to promote his welfare?  On the one hand, we accept that granting the application would make contact with F more difficult and infrequent and this would be likely to have an adverse effect on the development of the relationship between F and his father.  It would also lead to less contact with the grandparents and other members of F's extended family in Jersey.  On the other hand, a refusal would carry a material risk of adverse consequences to the well-being of the family unit (in particular the mother) which forms F's primary care.  As Thorpe LJ made clear, the emotional and psychological well-being of the primary carer is a factor to which great weight must be given in evaluating the welfare of the child as the paramount consideration.

35.      We have not found this an easy decision.  However, on balance we have concluded that F's best interests would be served by granting the application.  We think that the need to ensure that the family unit which provides the primary care for F is not adversely affected outweighs the diminution in the contact between F and his father and extended family and the other side effects of the move.  However, our assessment of where F's best interests lie is founded upon an assumption that the proposed contact - which we shall include in an order - actually takes place.  Given the difficulties which have occurred in the past and our residual concern about whether the mother's attitude has indeed changed as she states, this is a matter of particular importance in this case. Had we concluded that we could not rely on the proposed continuing contact with the father taking place, we would have refused permission.  However we were impressed with the attitude of L towards the issue of contact.  We think that his influence, coupled with the mother's stated new attitude and the other measures we propose to put in place, mean that we can proceed on the basis that the promised level of contact will in fact occur.

36.      We believe that the Court must adopt an imaginative and creative approach to the problem of ensuring that the risk of such contact not taking place is reduced to a minimum.  To that end we propose to put in place a number of protections as discussed during the course of the hearing.  Our decision to grant permission for F to leave the jurisdiction is therefore conditional and will not come into effect until a further hearing at which time we will be able to consider whether all the proposals set out below have been satisfactorily addressed -

d.        The father will be entitled to contact with F in Jersey for one week in the Christmas holidays, one week in the Easter holidays and two weeks in the summer holidays.  In addition, he will be entitled to contact in Jersey for the half-term holidays in the summer and Michaelmass terms.  We agree with the mother that, given F's young age, the two weeks in the summer holidays should, for the moment, be two separate periods of one week rather than a single period of two weeks, although we would expect this to be able to change to a single period of two weeks within the reasonably near future.  The father and the grandparents should be entitled to contact in Qatar by arrangement upon giving reasonable notice of any visit to Qatar.  Furthermore, the father should be entitled to reasonable contact by arrangement if the mother and L are back in Jersey for longer periods during the various holidays.  To take a simple example, it was mentioned in evidence that the mother may well return with F to Jersey for nearly two months in the next summer holidays.  It would be quite wrong to confine the father to only two weeks of contact if F is back here for such a period.  The father ought to be able to see F at additional weekends during the period that he is in the Island.  We will hear the parties further on the exact nature of any order which should be made in this respect.

e.        We convene L to these proceedings and we propose to make an injunction restraining the mother from disposing of her interest in 26 Windsor Road, St Helier without leave of the Court and restraining L from disposing of his interest in 3 Maison Ambassadeur, 11 Midvale Road, St Helier without leave of the Court. 

f.         The parties are to enter into a notarised agreement governed by the law of Qatar granting the father contact in accordance with the orders which we are making.  The agreement is to be in such form as, according to advice on Qatar law, would best enable the father to enforce the agreement for contact contained therein in the courts of Qatar should the need arise. 

g.        The mother and L are each to enter into a bond in favour of the Viscount to secure the performance of the orders for contact.  We will hear further argument on the sum to be stated in such bonds. 

h.        The bond given by the mother is to be registered as a judicial hypothec on her property and the bond given by L is to be the subject of a security interest against the shares representing his interest in the flat at 3 Maison Ambassadeur.  The original share certificate is to be lodged with the Viscount and formal notice of both the security interest and the existence of the injunction is to be given to the secretary of the company in which the shares are held. 

37.      There remains the question of the costs of contact arising out of the fact that F will have to travel from Qatar to Jersey.  These costs may be not inconsiderable and the father made it clear that this was a concern to him.  Although we do not think it necessary to set out the parties' respective financial positions in this judgment, we have heard evidence on the topic.  It is clear that the financial position of L and the mother will be very much better than that of the father.  Furthermore, the application is made entirely for their benefit.  If they had been content to remain in Jersey, the father would have been able to see F without expense in Jersey.  In the circumstances, we think it only fair and reasonable that the costs incurred in connection with transporting F from Qatar to Jersey for contact visits should be borne entirely by the mother and L.  In most cases, this will not be a problem because the mother and/or L will be accompanying F because they will wish to visit Jersey at the same time as F comes here for contact visits.  However, at other times, it may be that neither L nor the mother will come with F.  On those occasions (including the half-term visits) it will be up to the mother to decide whether she is content to use the unaccompanied minor schemes put forward by the airlines or whether she and L would be willing to pay for the father to come to Qatar to pick up F, bring him back to Jersey and then travel back with him to Qatar in order to deliver him before returning once again to Jersey.  If the mother chooses to use the unaccompanied minor scheme, we think it only fair and reasonable that the father should meet F at London (at the father's expense) and travel back with him to Jersey rather than rely upon the airline system to look after F whilst transferring him from the Qatar flight to the Jersey flight. 

38.      We propose to distribute this judgment in draft and will be willing to hear the parties on the exact details of any order and of any other matter which arises.  We would emphasise that the decision we have made is one which is conditional upon the production of the security and the notarised agreement.  The injunction restraining the mother from removing F from the jurisdiction is accordingly not yet lifted.  There will be a further hearing once the notarised agreement is completed and the security has been put in place.  Only at that stage will permission be given unconditionally and the injunction lifted.  However the mother should in the meantime make firm arrangements for F's schooling in Qatar. 

Authorities

In H v T (2003) JLR 26. 

Payne v Payne (2001) 1FLR 1052

Human Rights Act 1998. 

Chamberlain v de la Mare (1983) 4 FLR 434 at 445.