Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton and Nicolle. |
Between |
A |
Plaintiff |
And |
B |
Defendant |
IN THE MATTER OF AA
Advocate R. E. Colley for the Plaintiff.
Advocate D. Gilbert for the Defendant
judgment
the commissioner:
1. Today has been fixed for what was intended to be a final hearing of this matter. The mother has not returned to the jurisdiction with AA but has filed an affidavit directly with the Court. Mrs Gilbert has only had limited contact with her but notwithstanding, has been able to be of considerable assistance to us.
2. There appear to be two sets of proceedings before us, firstly an order of justice in the Samedi Division by which the mother is prevented and restrained from taking AA out of this jurisdiction, subject to certain exceptions, and secondly, applications by the father under Article 10 of the Childrens (Jersey) Law 2002 for contact with AA. By agreement between the parties the father now has parental responsibility for AA, which of course he shares with the mother.
3. The father accepts that AA is now living permanently with the mother in Poland and that it is in the interests of AA that the injunctions should be lifted. He consents therefore to the injunction being lifted but on condition that a prescriptive order for contact is made which can, if necessary, be enforced in Poland under the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children 1980, to which both Poland and Jersey are effectively party, in Jersey by the provisions of the Child Abduction and Custody (Jersey) Law 2005. Enforcement however does require a prescriptive order to be made by this Court.
4. The mother has only today received a copy of that proposed contact order and has had no opportunity to consider or respond to it. It is clear from her affidavit however, that she would object to its terms in relation both to unsupervised contact and contact in Jersey. That is not to say that she is negative on the issue of contact, far from it, but she expresses the view that whilst AA is so young and suffering as he does from a heart defect, contact with the father should be in Poland until he is older and knows the father better.
5. What is also clear from her affidavit is that the circumstances in which the injunction was imposed upon her have traumatised her. She said this at paragraph 5 of her affidavit:-
"The last experience and present position of A make me feel consider what would happened if I return to Jersey.
When AA was born with heart defect and only couple of days after his operation A obtained an interim injunction on me preventing me to travel to Poland. He used the most aggressive way to try to be in contact with AA. I moved out from him, in my late pregnancy and he did not show any interest in my person and unborn baby then. When I needed help he wasn't there.
During the case I went through a nightmare. I was humiliated and intimidated. In the whole case I was accused one and A poor victim. Why? I was alone in foreign country without family and I just had a baby, when he was at home comfortable, did not try to help as, just keep in arrest like criminal. He could resolve the problem in normal less harmful way.
I was then living a nightmare, when I should enjoy and the whole time dedicate only my child; I could not because of this case. I had to stop breastfeed my son, in consequences of stress, which was traumatic for me.
The fear I have in me it will be present for long, as I never in my live was treated this way."
6. Both counsel acknowledge the very real possibility that the current involvement of this Court is presenting an obstacle to the mother returning here with AA because of an innate fear on her part that she might once again be subjected to the same treatment.
7. Mrs Ferguson was of assistance to us; she explained how carefully contact in Jersey would have to be managed and the process in which she and Mrs Green would assist. She reiterated the view previously expressed by the court welfare officers that it is in AA's interests to visit Jersey, but it would not be in AA's interests simply to be handed over to the father. Separation anxiety is a real issue for one so young and he must be introduced in a gradual way; having learnt to know and trust in the father. It would again be wrong for the father to take him straight to the paternal grandparents, who for him, would again be another set of strangers; again their introduction must be gradual. She stressed the value and importance of regular indirect contact between the father and AA via skype, which the mother has in place, and is clearly more than willing to facilitate. That could include the paternal grandparents so that AA gets to know their faces and voices and their involvement in his life. What is most encouraging to us is that despite these proceedings, the mother and father do communicate by telephone and email and that bodes well in our view for AA's future.
8. The order of justice is now spent and the injunction should, in our view, be lifted thus bringing these proceedings finally to an end and we so order.
9. Furthermore it is appropriate for this Court to formerly acknowledge, which we do, that AA is now habitually resident with the mother in Poland. That leaves the father's application before us and the Family Division for contact. It will be contrary to AA's interests and to natural justice for us to make a prescriptive contact order of the kind urged upon us and we decline to do so. It is also inappropriate in our view for this Court to seek to retain jurisdiction when the Polish courts, should they become engaged in the matter, have both mother and AA in their jurisdiction, or for this Court to give orders which, in practice, it may be unable to enforce. At the same time it is not in AA's interests for us to send the father away with no order in relation to contact at all.
10. We therefore propose to make these orders in relation to contact:-
(i) That there should be direct and indirect contact between AA and the father; in particular there should be frequent contact by skype or other similar media;
(ii) That direct contact between AA and the father should take place at least twice a year, the location and timing to be agreed between the mother and the father. It is clear from this that, in the light of the evidence before us, and although desirable, we are not prepared to stipulate that such contact should be in Jersey;
(iii) That until agreed otherwise, direct contact should be supervised;
(iv) This order is to remain in place until further order, either of this Court or of the Polish courts. If the Polish courts do become engaged in of the matter, then in our view they should have jurisdiction rather than this Court, thus giving recognition to the reality that the mother and AA are within their jurisdiction.
11. In proceeding in this way we are optimistic that the parties can now work together as they have already done to ensure that the father establishes a relationship with AA which can lead in due course to unsupervised access or contact, and to AA coming to Jersey. When that happens they should take advantage of the wise counsel and assistance which the court welfare officers will extend to them. The mother can now rest assured that, incoming to Jersey with AA, there will be no question of this Court seeking to hold them here against their will, because we acknowledge that Poland is their home.
12. Turning finally to maintenance this Court retains jurisdiction because of the father's residence here. In short we accept the father's submissions that maintenance should reflect the lower cost of living in Poland and that fact that he will be paying the reasonable costs of contact. We are therefore going to order the father to pay the mother maintenance for AA in the reduced sum of £50 per week with effect from the next payment, and this until further order, and on the basis that he will pay the reasonable costs of contact.
13. Finally any future applications in relation to either contact or maintenance should be brought before the Family Registrar.
14. There is no order in relation to costs.
Authorities
Childrens (Jersey) Law 2002.
European Convention on Recognition and Enforcement of Decisions concerning the Custody of Children 1980
Child Abduction and Custody (Jersey) Law 2005.