Jersey Unreported Judgments

[2011]JCA188

Court of Appeal

29 September 2011

Before     :

The Hon. Michael J. Beloff, Q.C., President; Dame Heather Steel, DBE, Michael Jones, Q.C.

 

IN THE MATTER OF AA

By leave of Bennett JA, the Appellant/father appeals, out of time, against the decision of Commissioner Clyde-Smith and Jurats Le Breton and Nicolle on 16^th June, 2011.

Advocate R. E. Colley for the Appellant/Plaintiff.

Advocate D. Gilbert for the Respondent/Defendant.

judgment

steel ja:

1.        The Order made by the Family Division of the Royal Court of Jersey on 16th June, 2011, was in the following terms:-

(i)        that the injunctions contained in the plaintiff's/father's Order of Justice dated 11th August, 2010, shall be lifted and that the Order of Justice shall be dismissed;

(ii)       the Court noted that the child AA is now habitually resident with the defendant/mother in Poland;

(iii)      that there should be direct and indirect contact between the child and the father; in particular there should be frequent contact by Skype, or other similar media ;

(iv)      that direct contact between the child and the father shall take place at least twice a year, the location and timing to be agreed between the mother and the father;

(v)       that unless otherwise agreed, direct contact shall be supervised;

(vi)      the above orders are to remain in place until further order either of this Court or of the Polish courts;

(vii)     that the father shall pay the mother maintenance for the child at the reduced sum of £50 per week with effect from the next payment.  Such payment shall continue until further order and is on the basis that the father shall pay the reasonable costs of contact;

(viii)    ordered that any future applications in relation to either contact or maintenance shall be brought before the Family Registrar;

(ix)      no order as to costs. 

2.        The appellant/father appeals the following parts of the decision; further particularised in ten grounds;

(i)        To give leave to the mother permanently to remove the child from Jersey to Poland without first requiring from her that she obtain a mirror order in Poland as sought by the father as a precondition of such leave being granted;

(ii)       To decline to make a detailed, clear and prescriptive order for contact between the child and the father that could be enforced in Poland (or elsewhere);

(iii)      To order that direct contact as ordered be supervised;

(iv)      To decline to order that contact should occur in Jersey (as well as Poland);

(v)       To find/note that the child was, at the date of the hearing on 16th June, habitually resident in Poland.  

BACKGROUND

3.        This case concerns a child, AA, who was born on 22^nd July, 2010.  The mother, B, is Polish, born on 1^st May, 1975.  She obtained a diploma in Interior Design at the Academy of Visual Arts.  In 1999 she travelled to Brighton and completed an English course at St. Giles International School, returning to work in Poland in 2001.  Since then she has worked intermittently in the UK and Jersey, and attended courses to obtain further training and personal development.  The father A is resident in Jersey.  He is aged 29, is employed in Finance and lives in a flat on the same property as his parents.  The mother and father met in 2006, formed a relationship, and cohabited for a short period in April-May 2009.  In August 2009 the father offered the mother accommodation at his home in St Peter and the relationship resumed in about October 2009.  In November 2009 the mother became pregnant and in April 2010 moved into the Women's Refuge in Jersey. 

4.        The child was born at the Jersey Maternity Unit.  He was born with a heart defect which required immediate major heart surgery in Southampton followed by return to Jersey General Hospital and on 5th August, 2010, he was discharged into the care of the mother, where he remains.  He has a disability certificate for a period of two years from birth, and has recently undergone further surgery in Poland where he has lived with the mother and her family since December 2010.  The child's condition will require long term medical/cardiac monitoring. 

HISTORY OF THE PROCEEDINGS

5.        On 11th August, 2010, in the Samedi Division of the Royal Court of Jersey the father was granted an Interim Injunction preventing and restraining the mother from removing or taking steps to remove AA from the jurisdiction of the Royal Court and from applying for a passport for AA until further notice. 

6.        On 18th August, 2010, the mother applied for leave to remove AA permanently from the jurisdiction. 

7.        On 19th August the Registrar ordered a case review for 8th September, ordered the attendance of the parties and the Court Welfare Officer, and noted that maintenance was being paid at £60 per week. 

8.        On 20th August, 2010, the Registrar ordered that (i) the parties comply with the terms of a consent letter dated 20th August which included a variation of the injunction to permit AA to travel to the UK for necessary medical treatment as confirmed by a consultant in Jersey and (ii) that the father be informed of the requirement for that travel; (iii) that AA be returned to the jurisdiction as soon as the medical treatment has been completed and AA is permitted to travel. 

9.        On 8th September the Court ordered that a court welfare officer's report be provided and that a case review be held on 24th September when the writer of the report should be present.  A report was provided by Tanja Tinari, the allocated social worker. 

10.      On 24th September, 2010, the Court ordered a welfare report regarding the father's application for parental responsibility and contact and the mother's application for leave to remove the child from the jurisdiction.  The Children's Service was to continue to supervise contact between the father and AA.  Case review was ordered for 19th November.  On 22^nd November a parenting capacity assessment report was prepared for the Court hearing on 24th November by Tanja Tinari. 

11.      On 18th November the mother applied for the injunction to be lifted or varied to allow her and AA to go to Poland pending a final hearing of matters currently before the Family Registrar. She made the following written proposals to the father for contact in the event of her returning to Poland to live with her parents:-

(i)        That she would return to Jersey on the basis that the father pay all travel and accommodation expenses for her and AA;

(ii)       That she would return to Jersey at least twice a year for Easter and Summer holidays with reference to Polish school/academic holidays, each time for at least two weeks;

(iii)      The father would be welcome to visit AA in Poland at any time, provided at least 24 hours notice is given and she is not on holiday and that she would notify the father if she planned to holiday with AA outside the jurisdiction of Poland.  The father would be more than welcome to stay with her parents. 

(iv)      She understood that the father's parents need to play a part in AA's life and that she would put aside her issues with them if the father permitted  her to return to Poland. 

12.      In a letter to the Court Welfare Officer she wrote that in the event of her returning to Poland she proposed contact every three months, two in Poland, two in Jersey.  She would return to Jersey with AA during Polish academic holidays for up to two weeks per visit, subject to the father agreeing to meet reasonable travel and accommodation costs.  She proposed to travel and stay with AA until he is at least five years old, thereafter she would accompany AA whilst he travels and he would stay with the father without her being present subject to the father paying reasonable travel expenses for her to accompany AA to and from the island.  She proposed weekly contact by letter, video/Skype, telephone and/or email when AA was older, the duration to be determined by AA's age.  She was happy to abide by further requests for more frequent contact.  She proposed that the father could visit at any time subject to one week's notice as long as she had no prior commitments and that she would notify the father whenever she left the jurisdiction of Poland so that he was fully aware of AA's whereabouts.  She promised to keep the father involved in all major decisions in AA's life such as school/religion, and would take on board his comments in the event that she disagree.  She was committed to making AA aware of his Jersey heritage. 

13.      On 19th November each parent signed a parental responsibility agreement, and at the hearing before the Registrar an order was made for interim unsupervised contact between the father and the child three times weekly.  There was an agreed variation of the injunction to permit the mother and AA to return to Poland for Christmas for a period of not more than two weeks.  The Registrar referred the applications to the Inferior Number of the Royal Court for a directions hearing. 

14.      On 24th November, 2010, in the Royal Court, before Commissioner Clyde-Smith and Jurats, the injunction was varied to permit the mother and AA to leave the jurisdiction between 18th December and 20th January.  Specified and unsupervised contact was ordered between the father and AA and a financial contribution ordered towards hotel accommodation for the mother and child.  It was noted for the parties that, "as we understand it, the father now accepted that the injunction should be lifted and the parties are now dealing with the practicable arrangements needed to prepare for the final hearing."  Following this hearing the Court Welfare Officer's report indicates that the parents communicated almost daily and that contact took place frequently.

15.      On 26th November the mother gave a formal undertaking that she would return to Jersey with AA for the purpose of the final hearing in proceedings relating to him.  She went to Poland with AA in December in accordance with the agreed variation.

16.      On 17th January, 2011, from Poland, the mother filed an affidavit to the effect that she had every intention of returning to Jersey for the final hearing, but was unable to travel as AA was suffering a chest infection.  She produced a medical certificate and deposed that the doctor had indicated that, due to the complications with the child's heart, any infection could be serious, he needed to rest and should not travel until the weather was warmer and would not affect his health.  She undertook to attend the next hearing and requested a date in March at the earliest.  She was hopeful that contact could be agreed before the next hearing and was more than happy for the father to visit AA in Poland before the next Court date. 

17.      Paragraph 10 of her affidavit refers to her application to remove AA permanently from Jersey and to email correspondence from the father's legal representatives indicating that he would not be opposing her application.  She invited the Court to consider lifting the injunction on the basis that both parents are in agreement that AA may live in Poland or alternatively to vary the injunction to permit her to return to Jersey for the final hearing. 

18.      Paragraph 12 of her affidavit sets out that she was actively considering proposals for contact between AA and his father and was hopeful that these could be agreed before the next hearing date.  She had provided instructions to her lawyers and was more than happy for the father to visit Poland before the next court date. 

19.      On 18th January the Royal Court considered the Welfare Report from Ms Eleanor Green, Court Welfare Officer, dated 20^th December, 2010, and ordered that the injunctions of 11th August, 2010, be varied to allow the mother and AA to remain in Poland, returning to Jersey on or before 22nd March.  Unsupervised contact was ordered between the father and AA such contact to include contact with the paternal grandparents.  A financial order was made and the Court noted the mother's Counsel's undertaking to keep the father informed about AA's development and to ensure that the mother needs to actively pursue information relating to her financial position in time for the hearing on 24th March. 

20.      In early March contact took place in Poland. 

21.      On 23rd March, 2011, the mother filed a further affidavit in support of an application to adjourn the final hearing.  AA was unwell, he was suffering from bronchitis and recovering from an operation and a medical certificate produced indicated that he was unfit to travel.  In paragraph 5 she set out contact proposals referred to later in this judgment, and as set out in Ms Green's report of 20^th December, 2010.  Ms Green had recommended:- "---if it were possible that a contact order be made, which is mirrored in Poland, stipulating that both direct and indirect contact take place.  Mother has proposed direct contact every three months during holiday periods.  This seems reasonable and sustainable.  AA should be brought to Jersey for two of these visits and father should be enabled to visit him in Poland for the other two.  I would recommend that at least two of the visits are for a 2 week period.  The mother will need to accompany him until he is older, however he should be allowed unsupervised contact at father's home when visiting.  On visiting AA in Poland father should be given unsupervised contact on a daily basis. Mother should keep father informed of all AA's medical appointments and health developments. Indirect contact should also be promoted as AA grows older; father should have regular telephone and letter contact, which will hopefully be arranged informally between the parties."

22.      On 24^th March the father filed an affidavit in which he referred to the recent contact period in early March in Poland and requested that he should be supplied with all the medical records for the child.  

23.      On 24th March, 2011, the Royal Court, Commissioner Clyde- Smith and Jurats, adjourned the hearing to a date to be fixed.  The injunctions were varied to permit the mother and child to remain out of the jurisdiction, to return at least 24 hours before the final hearing in June 2011.  If the child was not well enough to travel, the mother was to attend on her own with the child remaining in Poland until further order.  An order was made for maintenance and required that there should be direct contact between the father and AA every three months during holiday periods.  The mother was to accompany the child in all contact sessions, the contact was to be unsupervised whether in Jersey or Poland and include contact with the paternal grandparents.  The mother was to keep the father informed of the child's medical appointments and health developments and give written authority for the doctor or consultant treating the child to give information to the father as requested.  The parties were to participate in all reasonable forms of indirect contact. 

The Royal Court Hearing on 16^th June, 2011

24.      On 15^th June the father had filed a position statement in which he requested an order that the mother's application to remove AA permanently from the jurisdiction be made subject to the condition that she comply in all respects with contact orders which he detailed, regarding times locations and dates, and which were to be unsupervised.  He requested a mirror order in Poland. 

25.      When the final hearing took place in the Royal Court on 16th June, before Commissioner Clyde-Smith and Jurats, the mother did not attend.  She had filed an affidavit dated 7th June directly with the Court which was considered by the Court, but Advocate Gilbert, who appeared on her behalf had no instructions in relation to its content.  Although the substance of that affidavit could not be tested, nor could the mother's reaction to the father's proposals re contact be ascertained, the Court considered and took into account the matters set out by the mother and the submissions of her Counsel.  The affidavit was a hearsay statement admissible pursuant to Article 4(4) of the Civil Evidence (Jersey) Law 2003, and the Court had discretion as to the weight to be attached to it taking into account Article 6 of the above Law. 

We have a full transcript of the proceedings and the full and careful Judgment of the Court.

26.      The father accepted that AA was now living permanently with the mother in Poland and he consented to the terms of the injunction being lifted.  His consent was, however, given only on condition that a prescriptive order for contact be made which could, if necessary, be enforced in Poland under the European Convention on Recognition and Enforcement of Decisions concerning the custody of children 1980, to which both Poland and Jersey are party, in Jersey by the provisions of the Child Abduction and Custody Jersey Law 2005.  A prescriptive order made by the Royal Court is a necessary precondition for such enforcement. 

27.      The transcript demonstrates that the Court gave anxious consideration to the father's proposal for a precise and prescriptive order for contact, and to whether, in the absence of clear instructions from the mother it was appropriate for such an order to be made.  The Commissioner was concerned that such an order, enabling a parent to enforce it, may not be in the best interests of the child.  He emphasised that he had fully in mind that the interests of the child must be paramount.  He also queried whether these proceedings are actually "helpful at this stage."  He later stressed the need for a contact order to be flexible, "as it is by its nature."

28.      Advocate Gilbert referred the Court to the mother's affidavit and new proposals for direct contact, mainly in Poland until the father and child know each other better and the child is older and that contact in Jersey and Poland be supervised until AA is older and knows his father better.  She described the difficulties presented by the journey for the mother and child. Indirect contact was also proposed.  The affidavit set out the background of the case and the distress caused to the mother by the father's injunction proceedings.  

29.      Advocate Colley submitted that although the mother was constructive in relation to contact in Poland she was less constructive regarding contact in Jersey where the child had never yet seen his paternal grandparents.  Advocate Colley recognised that there may be some validity in the argument that the reason why the mother would not bring the child to Jersey was because of her fear that she would then be stopped from leaving again.  If permanent leave to remove were given it would be extremely difficult for that ever to be undone.  It was suggested that the mother may be comforted by an undertaking by the father not to issue any fresh injunction proceedings if contact orders were made for contact in Jersey.  Advocate Colley, while recognising the practical difficulties, proposed that the Court might consider a precise contact order for the next two year period. 

30.      Mrs Ferguson, court welfare officer and team leader (designate) was called to assist the Court.  She had managed the case throughout and had spoken with Ms Green who had the day to day running of the case.  She described a "very difficult and emotive position."  Her suggestion was as follows:-

"---clearly AA will be at the age if he does come to Jersey in July where separation anxiety will be possibly setting in and it would not be right for AA for (the mother) to come to Jersey for a fortnight and hand AA over to (his father) for an extended period of time; and there would need to be time where the mother and father are to spend together with AA with mother just beginning to withdraw after a period of time for a short period of time.  If they could spend, say, the first day together and then the second day begin to withdraw for just ten minutes and go back and just as you would if you were introducing any child to new people.  That would be the right way of doing it.  If they weren't able to spend all day together then we would suggest blocks of time during the day; so maybe an hour or two in the morning, an hour or two in the afternoon.  Ms Green would be involved in helping the couple if they found it difficult, to say actually now is the time when you, mother, need to be withdrawing, hands off and letting father get on and be with his son, bonding, having that relationship.  AA seems to be comfortable.  So Ms Green is happy and JFCAS are happy for Ms Green to be involved in that way to ,giving some independent advice so that neither one of them can say that they are not acting in AA's best interests.  Once we've got to that situation, what our advice would be would be that father doesn't immediately take AA to see the extended family who are desperate to get to know him and see him and 'get their hands on him' as it were, because that would not be in AA's best interests either.  They would be new faces; they would be speaking English which would be something he wouldn't be used to all the time.  Mother has said she will speak English to him and one would hope and anticipate that would be true, but it would be all these people and that wouldn't be fair to AA.  What we're suggesting is that Ms Green would be involved again with father and offer some advice as to when it would be right to introduce AA to the paternal family and to give some advice as to how best to do that, and for what sort of time.  Clearly none of us has seen AA for some time.  He may come and see his father and be absolutely fine and comfortable and it may take a matter of hours.  Some children take much longer.  It's individual."

31.      Mrs Ferguson anticipated that the child would be assisted initially by some independent advice and help for the parents in the management of contact in Jersey.  This was reflected in the part of the order (v) which specified that, unless otherwise agreed, direct contact should be supervised.  This would give the parents the flexibility to agree how direct contact should operate as the relationships developed between the child and his paternal family, and as to the extent of the support needed from the welfare officers.  

32.      The Commissioner in his judgment referred to the evidence of Mrs Ferguson and how the introduction to the paternal grandparents must be gradual.  The Court accepted the value and importance of regular indirect contact with the father via Skype which could include the paternal grandparents so that AA gets to know their faces and voices and their involvement in his life.  He went on to say:-

"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."

Regarding the contact orders he said:-

"These orders are to remain in place until further order either of this Court or of the Polish Courts.  If the Polish Courts do become seized 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. 

In proceeding in this way we are optimistic that the parties can now work together as they have already done in their own ways, to ensure that the father establishes a relationship with AA which can lead in due course to unsupervised 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 would extend to them.  The mother can now rest assured that in coming 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."

33.      We have considered all the submissions made to this Court on behalf of both the father and the mother in relation to this appeal, we have read the extensive documentation before us and are grateful to both counsel for their considerable assistance. 

34.      In reviewing the discretion of an inferior Jersey tribunal we adopt the approach, as set out in Laugee-v-Laugee [1990] JLR 236 applying the well known test set out by the House of Lords in G-v-G (Minors) [1985] 1 WLR 647, namely that the appellate court  should only interfere when it was satisfied that the court of first instance had not merely reached a decision with which the appellate court might disagree, but had exceeded the generous ambit within which a reasonable disagreement was possible and had reached a decision which was so plainly wrong that it must have erred in the exercise of its discretion. 

Grounds of Appeal

Ground One

35.      The Court erred in that they held/noted that AA was habitually resident in Poland when he had been to Poland only as an interim position for a holiday and thereafter had remained with the leave of the Court for a further temporary period and was at all times the subject of continuing contact and leave to remove proceedings and that the mother was not entitled to change or purport to change his habitual residence without agreement or order of the Court and no agreement or order of the Court had been given or made.  

36.      Advocate Gilbert accepts that it is the law that one parent cannot change a child's habitual residence unilaterally, and that the mother removed this child from the jurisdiction in December 2010 on the basis of a temporary permission which was extended in January and March.  On 10^th January through his solicitors, the father gave his unqualified consent to the leave to remove.  At no stage thereafter has he sought to enforce the return of AA to the jurisdiction.  His stance in June was a device to impose leverage in relation to the contact he sought.  He accepted at the hearing that AA was now living permanently in Poland.  The agreement in January amounts to a consent, and the father's continued acquiescence in AA's residence in Poland indicates agreement. 

37.      We are satisfied that the finding of the Royal Court was appropriate in relation to residence and reflected the reality of the situation  and of the many practical advantages for the child and mother which will come from living in Poland with the support of her family.  

Ground Two

38.      The Court erred in that they granted the mother leave to remove AA permanently to Poland without first requiring an undertaking to obtain or the actual obtaining of a mirror order in Poland to reflect the contact orders made in Jersey, or to be made in Jersey, in circumstances where there had been a history of disobedience to Jersey orders; or that permission to relocate should have been dependent upon the making of a clear and enforceable Jersey order.  The Court failed to require a mirror order be obtained against the specific recommendation of the court welfare officer that 'if it were possible, that a contact order be made which is enforceable in Poland' and failed to provide any cogent reason for departing from the recommendation. 

39.      Advocate Gilbert submits that there is no requirement in law that there should be a mirror order obtained or that an enforceable contact order is required as a precondition to removal.  We were referred to Payne-v-Payne [2001] FRC 425 and Re R [2010] EWCA 1137 and the judgment of Wilson LJ in R that such a ground of appeal is "misconceived" and such orders were "contrary to principle" as the court in giving permission to relocate is surrendering control over the child to the foreign court and it was in the foreign court to which the father would have to turn if there were any difficulties over future contact.  The Royal Court was clearly of the view that Poland was the appropriate jurisdiction and took into account the fact that the mother was not "negative on the issue of contact, far from it, she expresses the view that whilst AA is so young, and suffering as he does from a heart defect, contact should be in Poland until he is older and knows his father better."  The Court took into account the fact that the parents communicated by telephone and email and that the mother had agreed and facilitated contact in March.  Mrs Ferguson had told the Court of separation anxiety and the court welfare officer's report had only recommended a possibility without consideration of the feasibility of such an order.  A prescriptive order would not operate in the child's best interest.  The judgment as a whole, against the background of undisputed facts, demonstrated why the Court adopted the approach they did and provides an appropriate explanation for the departure from the recommendation. 

40.      We accept that a prescriptive order would not have been in the best interests of AA.  A mirror order was not appropriate for this situation, and the reasons for the Court's departure from the recommendation of December 2010 were self evident.  Certainly there is no basis for concluding that the Royal Court's assessment that none should be made was in any way flawed. 

Ground Three

41.      The Court erred in that it failed to give any or any sufficient evidential weight to the mother's offer in evidence on 19^th November, 2010, to agree 4 periods of direct and unsupervised contact each year, two of those weeks to take place in Jersey and that the father in his position statement agreed those proposals.  The mother by her June affidavit sought to change her position regarding those proposals. 

42.      In response, it was submitted that the Court was entitled to consider AA's current circumstances, his age and stage of development which were relevant to the mother's revised proposals.  In November 2010 AA had been 4 months old, at the time of the June hearing he was 11months old, his attachment to his primary carer was significantly enhanced and there was an increased likelihood of separation anxiety.  The Court clearly placed greater reliance on the mother's current proposals which were based on his current needs, and supported by the evidence of Mrs Ferguson.  The revised proposals acknowledged that AA had only seen his father for one week in the previous six months. 

43.      The Court was best placed to asses the substantial changes which had occurred in the child's life since November 2010 and to weigh the evidence regarding the current situation against the evidence concerning the background which existed pre December 2010.  The Court by its judgment gave every consideration to all the evidence and made orders appropriate to the situation in June 2011 which had become very different from that of November 2010. 

Ground Four

44.      The Court failed to give any or any sufficient weight to the court welfare officer's recommendation of 20^th December regarding supervision, length and location of contact, and gave no adequate or cogent reasons for departing from such expert recommendation. 

45.      Advocate Gilbert referred to the evidence of Mrs Ferguson to the Royal Court in that contact in Jersey (and by implication Poland) would have to be carefully managed, and though it was in AA's interest to visit Jersey it would not be in his interest to be simply handed over to the father.  Separation anxiety was a real issue, and AA would have to be reintroduced in a gradual way having learned to know and trust his father.  The Skype contact was going to be an important method of assisting AA's familiarity with his father.  There had been a significant change in circumstance since the original recommendation and AA had only seen his father for one week since the recommendation. 

46.      The Royal Court took full and proper account of all these factors, as is apparent from the judgment, and they provide appropriate reasons for the Court to depart from the earlier recommendation. 

Ground Five

47.      The Court erred in that having found on the evidence that it was desirable for contact to be in Jersey it failed to make a contact order to this effect with no, or no adequate regard to the welfare checklist and paramount welfare of AA. 

48.      In refusing to order contact in Jersey we have in mind that the Court sought to balance the troubled history of the mother's vulnerability and the impact on her of the trauma of the injunction proceedings against the desirability of contact in Jersey at this stage.  While recognising that such contact was a desirable long term outcome for AA, the Court took into account the age of AA and concluded that that outcome was more likely to be achieved by the course taken than by a prescriptive order.  We cannot find that the Court erred or failed to have in mind the welfare checklist or AA's paramount welfare. 

Ground Six

49.      The Court erred in failing to make a prescriptive and adequately detailed order that could be enforced in Jersey or in Poland in terms suggested by the father in his position statement of 15^th June, and were wrong to consider that it would be contrary to AA's best interests to do so, and failed to give a reason why it would not be in AA's best interests to make such a detailed order. 

50.      The Court carried out a difficult balancing exercise.  The history is relevant in that the mother had been detained against her will and a prescriptive order could have a negative impact on both mother and child.  The mother had had no opportunity to consider or respond to those detailed proposals.  For reasons already set out in ground two above, the Court did not err in failing to make a prescriptive order. 

Ground Seven

51.      The Court erred in that it found that it would be contrary to what was termed natural justice to make the prescriptive contact order sought by the father which was entirely within the bracket of reasonable contact orders, was almost the precise order sought by the mother in November and then recommended by the court welfare officer.  The Court took insufficient account of the mother's breach of undertakings and contempt of court. 

52.      The Court was mindful of the real and practical difficulties for the mother of travelling with AA and her reluctance to leave him in Poland.  The father's detailed proposals had only been received on the day of the hearing and she had little opportunity to consider them.  Advocate Gilbert submits that the proposals were not within the bracket of reasonable proposals and were manifestly unsuited to a child of AA's age with no established attachment to his father who was virtually a stranger.  The proposals were unclear as to the precise nature of the daily visiting contact which needed to be considered in the light of the gradual approach recommended by Mrs Ferguson. 

53.      The orders made took into account the changed relationship between the father and AA and the existing relationship with the mother, and the orders made reflected the natural justice, or reality, of that situation as in June. 

Ground Eight

54.      The Court erred in that direct contact should be supervised where there was no evidence to suggest that the earlier orders for unsupervised contact should be altered. 

55.      We conclude that the background to the case and the changed contact situation from December coupled with the recommendations of Mrs Ferguson resulted in a flexible order which was in the best interests of the child and of a continuing, developing relationship with the father and the paternal family. 

Ground Nine

56.      The Court erred in that it was not made clear that any contact could include the paternal grandparents.  The order sought by the father would make this lack of restriction explicit, whereas the order made is unclear. 

57.      The judgment of the Court gave good reasons for not formally including the paternal grandparents in any contact currently arranged, so that once the relationship with the father was established then contact could be established with the grandparents who were hitherto strangers to the child. 

58.      This course was reasonable and purposely flexible to adapt to the developing family relationships. 

Ground Ten

59.      The Court gave inappropriate weight to the affidavit filed by the mother without leave, as against properly filed evidence from the father. 

60.      It was for the Court, in the exercise of its discretion to decide the weight to be given to any of the material placed before it, and we cannot find that the court exercised that discretion inappropriately. 

61.      The appellant now seeks an order in the terms placed before the court on 16^th June which will be reflected in a mirror order in Poland. 

Conclusion

62.      We are not persuaded by any ground of appeal that the court erred in the exercise of its discretion.  

63.      Since November 2010 the Court was well familiar with the case, the content of the reports, the affidavits filed and the submissions which were made at the earlier hearings of this matter, and was best placed to reconsider the situation current on 16^th June.  This situation was substantially different from that which had existed in December when Ms Green wrote her report and when contact was frequent.  In our view the Court correctly gave weight to the evidence of Mrs Ferguson and made an order which was deliberately flexible and would operate by the agreement of the parties regarding contact.  The ability of the parents to communicate and reach agreement had already been demonstrated.  The Court was mindful of the background and the mother's fears regarding prescriptive orders resulting from her experience of the injunction. 

64.      In each of the orders made by the Court, the Commissioner and the Jurats were acting within the exercise of a wide discretion.  We are satisfied that all the information before the Court and the submissions made on behalf of each party were fully and carefully considered, and that the orders made were patently in the best interests of this very young child.  We do not conclude that the orders made were wrong in principle, that irrelevant considerations were taken into account or that the Court failed to take into account relevant considerations.  The decision cannot be said to be plainly wrong. 

65.      The appeal is dismissed.  No order as to costs. 

FOOTNOTE

66.      Finally, we have noted that in his judgment the Commissioner wrote that the existing communication between the parents was encouraging and "bodes well for the future."  We were informed by each counsel of the progress being made in relation to contact since 16^th June.  The father had recently travelled to Poland with his uncle for contact from 26^th August until 6^th September.  Despite some difficulties, we were told that this visit went well and included AA's extended family.  Skype communication has been established and, although described as "often not great technically and emotionally," AA is able to wave to the father and also to the paternal grandparents.  AA's health has much improved and he is becoming comfortable with different people.  The father is rightly concerned in relation to contact in Jersey, but we have no doubt that this will take place when appropriate and that the father's visits to Poland will take into account his permitted holiday allowance.  We hope that AA will learn English from both his parents.  The father and the mother in this case, who each care deeply for AA, are already demonstrating real commitment to putting aside their differences and establishing by agreement the unresolved issues and contact pattern which is best for AA.  We were greatly impressed by the good sense and approach of both father and mother.  We share the optimism expressed by the Royal Court that the parties can now work together, as they have already done, and without further Court Orders, to ensure that the father establishes a relationship with AA which can lead in due course to unsupervised contact and to AA coming to Jersey.  That optimism has so far been well justified. 

67.      The President: I agree. 

68.      Jones JA: I also agree. 

Authorities

Civil Evidence (Jersey) Law 2003.

Child Abduction and Custody Jersey Law 2005.

Laugee-v-Laugee [1990] JLR 236.

G-v-G (Minors) [1985] 1 WLR 647.

Payne-v-Payne [2001] FRC 425.

Re R [2010] EWCA 1137.