Jersey Unreported Judgments

[2010]JRC060A

royal court

(Samedi Division)

23^rd March 2010

Before     :

V. J. Obbard, Registrar, sitting alone.

 

Advocate D. Gilbert for the Petitioner.

Mr C. Hillier (Ecrivain) for the Respondent.

judgment

the registrar:

1.        On 27^th April, 2009, the respondent (who I will call "the father") left the Island with the parties' daughter C and took her to stay with his family in Italy.  Later, he returned to Jersey without her, in breach of an injunction contained in an order of justice signed by the Deputy Bailiff on 29^th April.  On 9^th June, the Inferior Number of the Royal Court, Commissioner Clyde- Smith presiding, committed the father to prison for contempt of court. 

2.         In paragraph 17 of the judgement of the Inferior Number made on that occasion, the commissioner said this:-

"The father maintains that the decision to remove C from Jersey was not unilateral.  We have heard no evidence from him on this and are therefore not in a position to make a determination but we say that judging by the speed to which the mother obtained an injunction for the return of C and her demeanour when giving evidence in support of her representation, we think that most unlikely.  We also think it inherently unlikely that a mother would agree to her young daughter being shipped off to unspecified relations in this way."

3.        It was my duty at this hearing to hear evidence from the father and his witnesses and from the mother, as to the true circumstances leading to C travelling to Italy with her father, and his intent, or otherwise, to make arrangements for her to stay permanently in Italy. 

4.        The father and his witnesses (Mr S, Mr P, Mr C and, to some extent, Mrs S) maintained collectively that his trip to Italy with C was similar to previous trips he had already made, that the mother knew about it, she had delivered clothes for C, had brought C herself to the father's restaurant in the knowledge of the trip and seen for herself the tickets for travel.  He maintained that a return trip to Jersey had been booked and that the reason he had been unable to return with C was that he had been unwell.  Whilst away, he maintained that he had had frequent telephone calls to facilitate telephone contact and that C had been a happy girl with a strong bond with her father. 

The departure and arrangements made for C to go with her father

5.        The tickets for the trip to France were bought by the father, so much is agreed. 

6.        The mother's evidence is that she understood that the trip to France was to purchase cheap supplies for the father's restaurant.  She delivered C to the restaurant the day before the planned trip to France, for her to spend the night and to leave the next day early to catch the ferry.  Her evidence was that she brought spare clothes in a pink backpack for C and stayed just 20 minutes in the restaurant for C to eat some garlic bread. 

7.        The father and his witnesses maintain that at some stage prior to the trip, she brought a suitcase, or holdalls, and a bicycle for C to take, with the implication that she, therefore knew about a lengthy trip to Italy.  The versions given by the witnesses do not agree with each other as to the type of suit cases or holdalls brought.  No one could agree that they had actually seen the mother bring them to the restaurant. 

8.        The witnesses did not convince me that they knew that the mother was aware of the trip to Italy.  Mr C said that he saw the father showing the mother the tickets and that he spoke to her about the period of time they were going to be away.  His command of English is so non-existent that I do not accept his evidence. 

9.        Mr P said that the mother came to collect an envelope, with a friend, a day or so after the departure to France.  I accept the mother's evidence that she was not invited in.  She opened the letter in a stairwell on the way out. 

10.      With reference to the letter, the mother's affidavit reads:-

"At approximately 6 p.m. that evening I eventually collected the letter and cheque referred to above and now attach a copy herewith at divider 1.  It clearly shows that it was written on 26 April, 2009, but wrongly refers to leaving the island "today at 27 April" and also states that I should be informed of his actions.  This indicates to me and confirms that he knew I was not aware of his plans, which I did not and if I had done I would never have allowed C to go with him.  I believe the cheque for "NIL" that he enclosed was to intimidate me and show that he thought I was worth nothing."

The letter itself reads (verbatim):-                       "Sunday 26 April 2009

Dear Sir, Madame,

I been waiting for 2 weeks for you contact me but I had no reply from yourself. 

I would like to make you aware that my wife A handed our daughter C tonight to take her to Italy. 

I left the island today 27 April at 8.45 and C will roaming under the Italian jurisdiction.  I contacted my layer in Italy because there is a court case to annul the marriage as "marriage of convenience" (sham marriage) she advised me that C should be in Italy under the protection of the Italian government until all this matter will be sorted out.  My wife she is aware of this matter from months now. 

C is an Italian citizen and she as also the residency in Italy so by Italian laws she is in all effects Italian and she will be protected by the Italian government. 

C she will be attending nursery in Italy. 

My wife removed C from our marriage roof several times with out me knowing even last time I returned home and she was not there and she removed all her cloths from the flat still at present do not know where C living also she always changed hours to nursery to suit her with out consulting me. 

On her curriculum vitae since we married she always stated on it as single person not married this also proves that she only got married to be able to fraud the immigrations laws. 

Several times she frighten me to take C in Russian and not returning her I founded out when she went to the Russian consulate in London that she did try to obtain a Russian passport with no luck. 

Since C born I been looking after her days and nights as my wife was working in nights clubs and in the morning she was sleeping until late when she started working after in a pub and I looked after C than she worked in Randall's C was to young to start nursery so I had her from 8am until 6pm daily in November 2007 C started nursery 3 day at week from 11.30 until 4 I had C the other days and from 8am until 11.30am time to drop to nursery also often I was collecting her from nursery or drove with A to nursery to collect her until she moved her to town nursery. 

A she also worked several times Saturday and Sunday from 6am and I had C all day the child is very attached at me since she was born always when I was leaving home to go to work she was crying even now she is almost 4 she still crying when she get collected or drop her off to her mother she does not want to go with her mother all this years I fully maintained both. 

I would like you to inform her layer and make her aware of the facts. 

As a father with the same rights of her mother I am doing this for the best interest of C (I also believe that in end 2007 beginning 2008 she had a abortion with out me knowing in fact after that in April 2008 she had a coil implant (I collected her from hospital) at 10 pm but I did know the reason why she was in the hospital for in may June 2008 she had problem with the coil I had moved that is a evidence that Friday 17 April 2009 was still having regular sex rapports and we where not living apart). 

Tank you for your cooperation. 

(Signature)"

11.      It is difficult to arrive at any firm conclusions as to the content of the letter, because of the poor use of English.  However, it appears to justify, somewhat aggressively, the father's actions in removing C to Italy:-

(i)        Because of his intention to apply for an annulment of the marriage in Italy;

(ii)       On the grounds of C being an Italian citizen;

(iii)      On the grounds of his allegations against the mother that she had been a bad mother. 

12.      This is hardly the sort of letter one would expect if all had been agreed in advance.  However, even if the letter does not on its own provide evidence of intent to remove C without the mother's knowledge, I consider that the circumstances of the delivery of such a letter do provide such evidence.  Indeed, if the father had been open and honest about going to Italy with C, it would not have been necessary to write such an aggressive letter at all.  It is ostensibly addressed to a professional person "Sir" or "Madame", with a rebuke for not having contacted him, presumably anticipating some kind of conflict on the subject of the letter.  This would not be the case, if the father had just agreed with the mother that C would be living for a time with him, whilst he took her to Italy.  The letter was handed to the mother outside Mr P's front door in a public stair well.  This was not the kind of place to deliver a letter like this, if all had been agreed in advance.  The mother asked to come in to speak with Mrs P, but was refused access.  With the letter, a curious cheque for "nil" pounds was handed over, payable to the mother, which the mother told the Court signified the father's opinion that she is worthless.  I do not accept the father's explanation that the nil cheque was just symptomatic of the poor state of relations between the parties.  I cannot escape the conclusion, by considering all the circumstances, that the trip to Italy was contrived by the father who deliberately withheld the truth from the mother, until delivery of the letter by his friend Mr P outside his flat. 

13.      On one matter, the content of the letter appears to coincide with Mr P's evidence:-

"I had the impression that he [the father] was scared he would lose C and that was why he was taking her to Italy.  B had told me that he wanted to do everything by law in Italy and he was to try and have the marriage annulled.  He wanted to obtain custody of C in Italy..."

14.      I conclude that the purpose of the father's deceit was to take C to Italy where he thought he could obtain an annulment of his marriage and retain custody of C, without telling the mother. 

15.      There had been two previous trips to Italy with C.  All the family went in March 2006 for the christening, the mother says for 2 weeks.  (The father says for 3 weeks.)  Then, in May, 2008, nearly a year after the separation, C went again, just with her father.  On this latter occasion, the mother was not worried that the father would keep her there.  She agreed that they could go, and she was confident they would return because of the father's restaurant business and because he went with a Portuguese friend whose partner in Jersey was due to give birth.  However, after the May 2008 trip, the child was anxious and "clingy" towards her mother after their return to Jersey.  She said (and I accept) she would not have agreed to let her go to Italy again just with her father. 

16.      The mother maintains that it was a complete shock that he left with C without her permission.  She would not have invoked the Hague convention and the help of the Italian government, unless she had been deceived.  Although English is not the mother's first language either, she described a telephone conversation from the father to say that they were "in Brazil".  She said he had "cut C off from her mother and normal environment and friends" which she described as "very cruel".  She said she was "really scared for my daughter's and my own safety".  I believe her. 

17.      There remains the possibility that the father did plan another trip to Italy with C and did talk in the mother's presence about it, possibly in Italian, which the mother does not understand.  In his evidence he mentioned trips which had been planned and later cancelled.  This might have been true or partly true.  I am not able to say this with any certainty and only raise the matter as a possibility. 

18.      Nevertheless, what is unshakeable is the mother's evidence that she knew nothing of this trip to Italy on 27^th April and that she was "not aware of trips he made arrangements for and he says he cancelled".  She gave her evidence with an immovable conviction which contrasted vividly with the father's and his witnesses' evidence that she knew all about it.  For example I am not clear how many bags of washing she is said to have brought to the restaurant and when, if she brought any shoes, or whether the bicycle was always at the restaurant and how long before the trip she is supposed to have brought these things.  The mother does admit that she brought washing to be done by the father because she had recently changed accommodation and had no washing machine.  However she had asked for the washing to be returned the Friday before, but had been told "they are still wet".  

19.      What I am clear about is that on the evening before the trip she brought only day clothes in a pink back pack for C to go for the day only to St Malo and back.  She saw no tickets. 

The father's intent, or otherwise, to make arrangements for her to stay permanently in Italy

20.      It is strange to me that the father's evidence to the Inferior Number of the Royal Court stated that C was in the care of her godparents.  His evidence to me is that C was staying with her grandmother, his mother.  The Italian welfare report in the bundle confirms this.  The only reason I can think of why the father would want to hide the fact that his mother was looking after C might be to protect her from the implication of any wrong doing.  The welfare report refers also to the father returning to Jersey "in order to sell his business, a restaurant, before returning to Italy".  The restaurant has now apparently been transferred to a new owner.  What is more interesting is the suggestion that the father's visit to Jersey was only to be until the business was sold, which implies a longer term return to Italy.  No satisfactory explanation is offered by the father to explain these inconsistencies. 

21.      The father's refusal to return C to Jersey, despite his imprisonment in Jersey for contempt is remarkable, all the more so, since, in the course of this hearing, the father produced an e-mail from the ferry company which proves that a return trip was booked.  The return date was 13^th May. 

22.      The father's explanation for not driving the car back with C on the return date for the ferry appears to have been because of his ill health.  He also said he wanted another passenger with him to help with the child.  Yet no ill health prevented him from collecting his friend Mr S from Naples a few days after he was due to return to Jersey.  The trip to Italy had been planned without a passenger.  Mr S only joined them when he learnt that a space in the car would be available. 

23.      Furthermore, the Inferior Number gave him an opportunity to purge his contempt.  He did not avail himself of the opportunity.  Paragraph 24 of the commissioner's judgement reads:-

"Although a much higher sentence could be justified, we concluded that eight weeks imprisonment was a sentence at the top of the appropriate bracket, which sentence we imposed upon the father, but we directed that the matter be restored to Court on Tuesday 9^th June at 10am for a further hearing.  The significance of that date is that we were informed that there was a direct flight from the nearest airport to where C was living to Jersey on Saturday 6^th June and by 8^th June therefore the father would have had ample time to have purged his contempt.  We directed that at the hearing on 9^th June the Court may (a) affirm the sentence, and leave the father in prison or (b) order the father's immediate release or (c) indicate a future date at which he shall be released, the whole subject to the right of the father in the interim to make an application to the Court to purge his contempt."

24.      My conclusion is that the father chose not to return to Jersey with C to suit his own purposes, not his ill health or lack of help with the child. 

25.      It is a matter of conjecture for how long the father intended to stay in Italy with C. 

26.      He is at pains to show how happy C was when she was in Italy.  A DVD recording shown to me shows a little girl talking with her father in English in a garden where there is a family pet dog.  I am unable to learn very much from the film.  I think the father would like to show to me that he is a good father and that he was doing his best for his child, who, apparently, doesn't want to go back to her mother.  Some of this may well be the case, but it is not the purpose of this hearing to examine family relationships.  In any event, I take no notice of what small children might say about one parent during the time they are in the other's care. 

27.      The father maintains that he made frequent telephone calls to keep C in touch with her mother.  A log of a large number of calls made is included as part of the father's case.  However, I prefer the mother's evidence that he used the telephone and his refusal to allow C to speak with her mother as a cruel weapon to try to make the mother agree to pay maintenance and that he seldom ("maybe once or twice") allowed her to speak with her daughter.  She "just wanted to know she was alive".  

28.      The father notified the Parish of St Helier on 27^th April that his restaurant would be closed "until further notice".  This might imply, but in no way proves, that the father intended to leave the Island permanently.  The letter appears to have been written hurriedly and states the date of closure to be 28^th April, being the day after his departure.  No attempt was made to cancel C's place at nursery in Jersey, (the fees for which the mother continued to pay) until 2^nd June, when, according to the nursery manager, the father told her that C was down for a free nursery place in Italy. 

29.      It is not for me at this hearing to consider Residence or Contact.  At this stage, I have only to decide whether or not he took C without the mother's consent, intending to keep her there against her (the mother's) will.  I think he did so, believing that he could invoke the protection of the Italian court.  The plan was thwarted by the swift action of the mother who obtained an Order of Justice for the return of the child to Jersey and, through the efforts of the Law Officers Department, an order from an Italian Judge for the return of the child under the Hague Convention. 

30.      At the next stage of these proceedings I will need to consider the father's application for Residence, or what Contact, if any, the father should have with C.  Dr Bryn Williams will be advising the Court and the Court welfare officer whether there should be any interim contact in order specifically to observe the child's relationship with her father. 

No Authorities