Mrs J. M. O'Sullivan, Registrar, Family Division, sitting alone.
IN THE MATTER OF YY
Mr C. G. Hillier, Ecrivain, for the Petitioner.
Advocate Z. G. Blomfield for the Respondent.
1. This is an application by the petitioner A ("the mother") for an order for permanent relocation to England taking YY ("the child") with her. YY was born in 2006. The application was made on the 3rd March, 2011. B ("the father") opposes this. On the 22nd July, 2011, the father filed an application for shared residence/residence.
2. Both parties agree to an order by consent for a shared residence order, to be made not because YY is living with both parents, but because such an order is psychologically beneficial to both parents (individually beneficial to YY) in emphasising the equality of their positions and responsibilities.
3. The parties had been married on the 25th March, 2006, and separated in January 2008. The Decree Nisi was pronounced on the 15th July, 2009, and a Residence Order was made on the 8th September, 2009, on the basis that YY should reside with his mother, and that the father have regular contact, to include staying contact when he obtained suitable accommodation. On the 20th October, 2009, the Decree Absolute was granted. The father now has weekly overnight contact either from school on Friday until 6pm Saturday or alternatively on Saturday from 10:30am until Sunday at 10:30am. In 2009 the mother met her current partner C. They met through online dating. C has lived and worked in England throughout the relationship which started in early 2010. On the 20th October, 2010, the mother and C became parents to D, a half-sister to YY. The mother, YY and D continue to live in Jersey in 2 bed-roomed States accommodation which has some adaptations as the mother is in a wheelchair.
4. On the 26th January, 2011, the mother's lawyers wrote to the father saying she intended to relocate to the United Kingdom but on the 23rd February, 2011, Messrs. Viberts, who act for the father, wrote to say that relocation was not agreed. On the 7th March, 2011, the mother applied to this Court and the mother was ordered to file an affidavit setting out her proposals which were sworn on the 4th April, 2011. The father filed an affidavit in reply on the 4th May and a welfare report was ordered to be filed by the 15th July. The final hearing was set down for the 1st and 2nd August.
5. The JFCAS Officer, Mrs Green, duly filed her report on the 15th July, 2011. Mrs Green saw both parents together and separately visited YY at home with his mother, and saw YY in her office. She also saw the maternal grandmother E, saw YY at the father's house and she visited C and his parents in Birmingham. She also met F, the father's fiancée, he having been in a relationship with her since early Spring of 2009. The JFCAS Officer considered the matters set out in Article 2 of the Children (Jersey) Law 2002 and the test set out in Payne-v-Payne  1 FLR, 1052, a Court of Appeal decision which is followed in Jersey Relocation cases. She recommended that the mother be granted leave to remove YY but pointed out that enforcement, even with a "Mirror Order" could be the "Achilles Heel" of any contact plan, writing:-
"that if the Court could not be satisfied that the mother would promote the father's relationship with YY, then the move would not be good for his welfare and should be refused."
She further wrote:-
"that if the application were granted a "Mirror Order" should be sought and made."
She set out a contact schedule having considered the financial implications of this.
6. The father then filed an application for residence/shared residence on the 22nd July, 2011, and as a result, the final hearing was adjourned so that a further JFCAS report could be made with regard not only to removal but also residence. The second JFCAS report was filed on the 28th September. The JFCAS Officer's opinion was that YY's residence should not be changed and his father's application for residence should be refused. She repeated her previous recommendations but rested on the wisdom of the Court as to whether relocation should take place due to her continuing concerns about a contact plan being sustained. She recommended overnight Wednesday contact if the relocation was refused, with the father picking YY up from school on a Monday till 6:30pm and the weekend alternate contact continuing as before.
7. In readiness for the hearing both parents made additional statements, the mother on the 24th October, 2011, and the father on the 10th August, 2011. E, YY's maternal grandmother, made a statement dated the 6th August, 2011, in support of the mother's application as did C on the 23rd August. F made a statement in support of the father dated 10th August, 2011.
8. The hearing of the two applications took place on the 28th - 29th September, 2011. I heard from the JFCAS Officer, the mother, her mother and C, and from the father and F, and submissions were made by Mr Hillier for the mother and Advocate Blomfield for the father.
9. The JFCAS Officer gave evidence first. She said she had been provided with reports from G Primary School, had seen the school but had not been inside it, and had been taken to the house that the mother and C would like to have bought. She was referred to the Ofsted report of May 2009. She agreed there had been some concerns regarding Key Stage 1, the level at which YY would enter school. She was referred to the letter of 1st March, 2011, from Ofsted regarding English teaching which stated the achievement, teaching in English, quality of curriculum and effectiveness of leadership and management in English is good. She said G is not a failing school. She was unable to say if H achieves better grades as there is no Ofsted inspection in Jersey. She was aware the mother had spent time researching the schools in the area and accepted that she had picked G for rational reasons.
10. She said that C did not minimise the father's role. In her report she had said that C said he would never try to replace B as a father, and C was very realistic about the situation.
11. Mrs Green had found C's parents kind and compassionate and they had taken YY to their hearts. They came across as child focused and they did not wish YY to feel any differently to D, their natural grandchild.
12. Mrs Green was aware of the undertakings the mother was prepared to give and her agreement to a Mirror Order being made and said that this would go some way to allaying her fears about contact. The father has said that communication between him and the mother has improved and was encouraged the mother had taken the advice given her, which in turn was having a positive effect on YY, and he seemed less guarded. The mother had told her she had tried to put aside her own feelings about the father and was being more positive about him to YY. Mrs Green wanted to see this maintained. She has no concerns about the mother's parenting apart from the fact that YY was aware of her hostility to his father.
13. In both her reports, Mrs Green had set out her concerns about the mother's hostility to the father and her worry that the mother would not promote YY's relationship with him. YY had internalised some very negative messages about his father and continues to express these freely. She said it was difficult to say if YY had directly been told negative things but children were like a sponge and could pick up things. If his father had been denigrated, it had to stop, but people also sometimes say the wrong thing without thinking. Children are aware of conflict; they find it very difficult to deal with this so YY may feel he does not have permission to enjoy his dad. Advocate Blomfield asked, given the mother's hostility, how realistic was it that the mother's new more positive behaviour would continue if she were to move to England. Mrs Green said that the mother did present as child focused and she was starting to realise that the father's involvement in YY's life is important and should not be destroyed. She had taken on board the advice given, she had not made the removal application maliciously and she does not want YY to be miserable. She confirmed she thought the mother would stick to the suggested contact plan but she considered that the Court needed to hear more evidence, and if there were concerns that the contact would not be adhered to, then removal should be refused.
14. With regard to the use by YY of "Daddy C", the mother had said that C is referred to as "Daddy" around D. YY did not say his mummy had asked him to call C "Daddy C". Children do want to assimilate and do get confused about roles and what to call their step parent, but YY should have been told that he has his own daddy.
15. Mrs Green said that if everything said by the mother is done and she abides by her undertakings, the move will be a positive experience for YY. Children do cope with parents living away. If YY's attachment to his father is not nurtured, it could go by the wayside, so the Court needs to consider if the mother will stick to the contact plan. Mrs Green confirmed that the mother's application was well researched and as far as possible dealt with the details. The mother is not running away from the father but is going to a better life for both her children. The father has never had to make an application to the Court for contact. The father has no complaints about the mother's care. As for the father's residence application, he told her he was worried that if the mother was allowed to go and it did not work out YY would ask why he didn't do something to stop this, but this is not a reason for changing residence. If YY does stay in Jersey, contact should be increased as recommended in her report.
16. With regard to the contact plan proposed by her if YY does move to England, she is aware that the mother is offering daily Skype rather than weekly as proposed by her. She felt it could be onerous. The contact plan proposed by her enables the father to continue having a meaningful and loving relationship with YY. England is not the other end of the world; it is a short plane ride away. What Mrs Green does not want is for the contact schedule to be so onerous that it will leave YY feeling tired and stressed by it. She has looked at the practicalities hence it is a mixture of regular and block trips.
17. Mrs Green said the mother and C want to live together in England. He cannot just give up a scarce job in the current economic climate to move to Jersey, and it is not unreasonable for C to want to provide for the long term future. If he could move over here it would be preferable, but she could understand why he would not wish to move to uncertainty about a job and accommodation. C, she said, was very realistic and practical about best providing for the mother, YY and D. Mrs Green however was concerned about the hostility of E to the father given she is one of the main attachment figures for YY. E is planning to move to England if the relocation is allowed and will contribute to a house and fund a trip by the father.
18. E gave evidence and said that she sees YY most days. She and YY love each other very much and she agreed that the bond between YY and his father is close. She was referred to the first JFCAS report in which Mrs Green had said she was quite hostile to the father. E said that Mrs Green had said to her "I don't expect you to like him" and she had agreed with this, as B had threatened her daughter. E said she had worked in Children Service for some years; she tries to see things through YY's eyes and knows the importance of the bond between a father and his son. She said she would do everything she can to sustain this including offering to pay one visit a year to bring YY back to Jersey to see his father. She says she does talk about his daddy positively, does not discourage YY from talking about him and YY includes his father and F in his prayers. She claimed that she may have had conversations with her daughter about the father not realising that YY could overhear. She said that the proposed move would be beneficial as they would have their own home, and YY will be with his mother, his half-sister and C, and there would be back up from her and C's parents. At the weekends she has seen outside her daughter's flat in Jersey drunks and people vomiting on the steps. By contrast they will have a lovely bungalow with a garden in Cannock. With the money she will put into her daughter's and C's new home, which will be a gift to them, and with his parents paying the difference, they will not have a mortgage.
19. C gave evidence and stated that he is an electrical engineer working on large projects such as the Olympics; he does not know how to re-wire houses and he cannot get a job as a carpenter or painter as had been suggested. His work is specialised and the only job he could have done in Jersey was working for the States but he is not 5 years residentially qualified. He cannot set up on his own as he would not get sufficient indemnity insurance as he is not a chartered engineer. He had approached companies in Jersey and been to an interview, and accepted that he had not actively looked for jobs since about January 2011 although his name was on some company lists. He confirmed the property that they want to buy in Cannock is still available, and would be mortgage free. He said he would do everything he could to encourage the relationship between YY and his father.
20. F gave evidence and said YY had said that he would be going to Birmingham. She said there had been problems about additional contact, although in the last two months things had improved and there have been more communication with A, the mother. She agreed Cannock may be an excellent place to live and accepted C was not looking to replace B.
21. The mother gave evidence. She said she had spoken with YY's teacher at H about relocating to England and the teacher had said in view of YY's disposition and ability he could cope well with the move. She had researched schools, initially picking another one but due to its lack of pastoral care, then chose G in view of the comments from local friends and her own research. She had visited it, and found it warm, friendly and it seemed to be similar to H. The class size at G is smaller than H. In educational terms she considered YY would be more advantaged if he went to the United Kingdom as there is more choice.
22. With regard to her relationship with the father she accepted that they had both been at fault. She had hoped YY would bring them closer together but it did the opposite. She accepted YY loves his dad, enjoys his time with him, speaks often about him and she has tried to promote this although there have been times when she has found this difficult, given he is now making an effort with YY when he did not do so in the past. Mrs Green had accepted there was no malice in her application. She said YY must have heard negative comments about his father and she should not have allowed him to mirror how she feels. It was not done consciously. She accepted that whilst she did have a strong dislike of YY's father she would encourage contact; contact had always taken place. She said that in having D and being in a new relationship meant it was now time to move on. The change in her attitude had been longer than two months. She was prepared to make telephone calls and Skype as enjoyable as possible and would give an undertaking to this effect. The father had claimed that he did not know who YY's GP was but it is the same GP as always. He had said he had given H his name and address so she had left him to deal directly with the school. With regard to "C Daddy", YY does speak with C on the phone and hears her describing C as "Daddy" for D. YY she felt, was doing this to differentiate his father from C but she said she has now taken on board what Mrs Green recommended. The mother accepted that at present she does not ask YY if he would like to speak with his father on the phone but he will sometimes ask to do so and he enjoys talking to him. His father could ring him now if he wished.
23. The move to England would mean she could live with her partner, C, and raise D and YY together. Her mother would be around as would Cs' parents. C has a strong work ethic, he has job security and he is focused on the details of the move to England. This is not a rash move as the father had suggested and Mrs Green had confirmed it was well researched. The mother said she had done a cost comparison and gave evidence that everything is more expensive in Jersey. She could afford better housing and there would be job stability in England for C. The transport facilities are better for those in wheelchairs in England. Cannock is a semi-rural area, but has good links to the city and has a low crime rate. She would not have to pay doctors' bills. She said she had not been offered a three bed-roomed bungalow in Jersey and even if one were to be made available C had no job. She understood she would not be offered ground floor three bedroom accommodation in Jersey until YY was older and even then there was a lengthy waiting list. Her current property is modified for her as a wheelchair user, and she needs to be near a bus that takes wheelchairs. She had requested a round table meeting to discuss these matters with the father but this was refused by him.
24. The mother did say she "guards" the time with YY; and if the father asked for any extra contact she didn't see it as selfish to ask for time back in lieu. She was asked about the additional overnight contact recommend by Mrs Green if YY were to stay in Jersey and although was initially against it, did accept the recommendation. She said there were many things to do in Cannock that B could do with YY if he came over but they could also just enjoy being with each other.
25. She had told YY that a lady was going to talk to him about where best to live and she made him aware that daddy did not want them to leave but YY does want to go. She was asked by Advocate Blomfield, given her hostility how can she give the father the comfort he wants about contact including every day on Skype being maintained. She said it was not just about her but what is in YY's best interest. If they moved YY would loose the weekly contact he now has but would see his father daily on Skype and would not have a home where people vomit on the steps, he would be safe and have friends and relatives including his half sister around him and a nice garden. She said she learnt an awful lot from this litigation experience, and she knows that if she does not comply she will be brought back to Court and punished.
26. B gave evidence and accepted that the relationship between him and the mother had been "rocky". Although he denied he had been violent he had punched walls and broken a window. When the mother became ill he had to take time off work to look after her. He had realised he did not love A, and should have said so sooner. He was not always a good husband and he feels guilty about this. However, he did get contact with YY initially on Mondays, Wednesdays and Saturdays but when his work pattern changed he got contact at the weekend and when he moved into a new property in May 2010 YY was able to stay with him. He said if he asked for extra contact this was not granted or taken away from his normal contact.
27. He said he could see why they want to leave to go to England but he felt it was done to marginalise his role. He felt that C could have done more to get a job in Jersey. A was making a rash decision and it was not thought out. He said with proper management YY could deal with the move but he would miss weekly contact. He did agree to the JFCAS proposed contact of once a month were they to leave for England and he would have to use his leave for this. He had considered the cost of the flights, car hire and hotel costs. He earns £17,500 per annum and his net monthly pay is £1,200. F is a "postie". He is looking for another job but it takes time.
28. He agreed with Mr Hillier that what is set out in the proposed contact plan will be stuck to but whether the mother will actually promote contact is another issue. He accepted things had got better between them, the communication is now "fantastic", but the question was whether it would last. He accepted that in the week that D was born he could understand why she wanted to rely on the plans she had made even though she had refused his offer to look after YY. His application for residence was because he wanted more contact and if YY did go he could later say to him he had done everything he could.
29. With regard to trips to England, he accepted that as he does one trip a year to England to see his parents he could see YY there on one occasion. He accepted that E would finance one trip; that C did not want to replace him as YY's father; that C had a good job, could not get a job as a painter and decorator but he felt C could get a job in Jersey. He agreed the mother's proposals were well founded; that he had a full picture of her finances; that he had not spoken to the headmistress at G (he had left a message but she had not rung him back and he had not chased this up) and that he had no experience of Ofsted reports. He was upset he had not got more contact in Jersey but he accepted he had never applied to Court for this; that contact does take place regularly with some flexibility such as some additional contact and swapping; that daily contact on Skype would be more contact than he is currently getting and if the Skype is positive it can be quality time and he will in due course be able to pick up negative signals from the Skype calls. He accepted there should be a reduction in maintenance as proposed by the mother and he would pay seven or eight of the total trips if he can. If he can get better deals he could finance more but he said that the mother and C would be in a better financial position than him to do so. The fact that the Jersey Court would retain jurisdiction would give him reassurance.
30. I have been asked to make a shared residence order by consent. The father said he was no longer pursuing his application for sole residence. I refer to the case B-v-A  JLR 462. I would not have made a shared residence order if I were merely looking at the practical realities, given that YY lives with his mother and has contact with his father. Shared residence was not recommended by the JFCAS officer but I will order this by consent as it is psychologically beneficial to the parents (indirectly beneficial to YY) in emphasising the equality of their positions and responsibilities.
31. The paramount consideration is the child's welfare in looking at the removal of a child from Jersey. I am required to look at the "welfare checklist" under section 2(3) of the Children (Jersey) Law 2002. I am also bound by the approach in Payne-v-Payne which approach has been followed by Registrar Obbard in H-v-T and B  JLR N 26 and the Bailiff, then Deputy Bailiff in S-v-A  JLR N 48. In the H-v-T and B case, the Court will have to consider:-
(a) whether there is a real dispute as to which parent should be granted care and control of the child, in which case the future plans of both parents will be relevant; or
(b) where this is not an issue or the balance is clearly in favour of one parent:
(i) the welfare of the child;
(ii) whether the move is genuinely motivated or an attempt to restrict access;
(iii) whether the arrangements e.g. for housing, schooling and employment are reasonable;
(iv the potential effect of refusing the application of the parent and new family of the child;
(v) the potential effect of depriving the child of contact with the other parent and his family;
(vi) the opportunities available for contact to continue with the parent left behind; and
(vii) the wishes and feelings of the child."
It was held in S-v-A:-
"When considering such an application, the court would look to English law for guidance (H-v-T  JLR N 26, applied). It should consider (a) whether the application was genuine, i.e. not motivated by a selfish desire to exclude the other parent from the child's life, and realistic, i.e. founded on practical proposals which have been well researched and investigated; (b) if so, whether the other parent's opposition to the application was motivated by a genuine concern for the child's future or an ulterior motive, and the extent to which the detriment to his future relationship with the child might be offset by any extension of the child's relationships with other family members or his homeland; (c) the impact on the carer parent, as a single parent or spouse, of a refusal of the application. Although the child's welfare was the paramount consideration, great weight would be given in this respect to the emotional and psychological well-being of his primary carer; and (d) finally, weigh up all of those factors bearing in mind the overriding importance of the child's welfare (Payne-v-Payne  Fam 473;  1 FLR 1052;  1 FCR 425, dicta of Thorpe, L.J. applied)."
32. I was also referred to Re K (A Minor) (Removal from Jurisdiction)  2 FCR 16. In that case it was held by Thorpe J that a court would sanction the realistic proposals of the custodial parent. In that case reducing the contact to an annual visit and the mother's proposals for living in America were "so ill-presented and so half-baked" they gave cause for real anxiety for what might happen to the child so leave to remove was refused.
33. In Re M (Minors) (Removal from Jurisdiction)  1 FLR 422 a pre Payne-v-Payne case there were problems with access and the mother alleged the father mistreated the children, which he had denied. On appeal it was held that the principle to be applied was that if the proposal of the custodial parent to move was reasonable it should only be refused if it was clearly shown to be against the interests of the child. The judge had found that if the mother remained in England this would have an adverse effect on her. However the welfare officer said that if access did not continue there was going to damage the children's loyalty to the father and this would intensify. As it was not clearly shown that removal was against the children's interest a re-hearing was ordered.
34. In the matter of R (A child)  EWCA Civ 1137, the father appealed to the Court of Appeal against an order granting the mother's application for leave to remove the child of the family permanently to Australia. The appeal was dismissed. Both parents had substantial international connections and the father had a "nomadic" lifestyle. The judge found the mother wanted the father to play a substantial part in the child's life on a conventional regular basis. The mother had spent many years in Australia and was an Australian citizen, and her detailed proposals for the life there were not said by the father to be unsatisfactory. She put forward a detailed programme for the father's contact and also proposed that there should be frequent contact by telephone and through Skype. The father objected interalia that he would not be able to bear the costs of fares encompassed within the mother's proposals. The thrust of the mother's case was that she could not reasonably continue to live in England at all. By way of comparison, the likely financial stability of the proposed home in Perth was not challenged. Wilson LJ said:-
"nor does a court automatically require a foreign, mirror order to be in place before the child leaves England and Wales. In the circumstances in which the court has some doubt about the applicant's bona fides in relation to the other parent's contact, that precaution is often taken; but, in circumstances, like the present, in which the judge made the firmest conclusion about the mother's commitment to contact, it would not be usual to put her to the expense and delay of obtaining a mirror order."
35. I have considered Re W (Relocation: Removal Outside Jurisdiction)  2 FLR 409 in which it was held that a relocation application had to be decided on the basis of what the Court perceived to be the child's best interest. A proper approach is to consider the principles in Payne-v-Payne.
36. In the case Re B (Leave to Remove: Impact of Refusal)  1 FCR 480, the mother's application for removal to Australia was refused. The mother appealed the decision to the Court of Appeal, and it was held that the judge had erred in principle in not properly considering the full extent that the refusal would have upon the mother as the primary carer.
"It was manifestly important to consider 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 should be given to that factor."
37. I was also referred to Re D (children) (relocation: permission)  2 FCR 313 where the mother applied for permission to relocate permanently to Slovakia with her two children. The county court judge had found the plans for removal were reasonable and genuine as was her reason for wanting to do so and the proposed contact was in the children's best interests and would not affect the father's quality of contact. Permission was granted and the father appealed the decision. It was held that the decision reached was plainly open to the judge, the judge had made no error of law in applying Payne and an appeal would stand no reasonable prospect of success.
38. I was referred to Re K - MK-v-CK  EWCA Civ 793, a shared care case, and the guidance offered by Hedley J in Re Y  2 FLR 330. Although the parties in this case agree to a shared residence order, the practicalities are that the mother is the primary carer. The three Court of Appeal judges agreed that the only legal principle to come from Payne is that the welfare of the child is paramount; all the rest is guidance. Thorpe LJ said that the approach of Hedley J in Re Y should have been applied in that case and that where each parent is providing a more or less equal proportion of care, the guidance in Payne should not be used, and the judge should excercise his discretion by appying the welfare checklist. Although Black LJ reached the same conclusion as Thorpe LJ and Moore-Bick LJJ she said that Re Y and Payne were not different lines of authority but were simply two decisions within a framework of case law on leave to remove applications. Black LJ also emphasised the importance of not getting sidetracked with arguments about whether each situation was a Re Y or a Payne case as all of the facts need to be considered. The weight attached to the relevant factors alters depending on the facts of the case.
39. Mrs Green the JFCAS officer recommends that removal of YY may be in his best interests provided the Court is satisfied the mother will abide by the contact proposals. Advocate Blomfield in her submissions referred me to the eighteen concerns Mrs Green had set out in her report and her statement that "if the Court feels any doubt about the families' commitment to maintaining this contact then I would recommend the application is refused". Mrs Green is resting on the wisdom of the Court. She did say she was a little reassured by the undertakings the mother proposed to give but the real issue is whether she would do what she said she would do.
40. There is a difference in the emphasis in the Payne-v-Payne placed by Thorpe LJ and Butler-Sloss P on the emotional effect on the parent seeking removal, but there is no presumption in favour of the mother's request being granted. The reasonable proposals of a parent with care does carry weight but the proposals need to be scrutinised and the Court needs to satisfy itself that there is genuine motivation for the move and it is not done to restrict access. The JFCAS Officer considers that proposals are realistic and well researched; I am satisfied that this is so. The mother proposes that she moves with YY and D to Cannock, a semi-rural low crime area, to live with D's father in a mortgage free bungalow with a garden. YY's maternal grandmother with whom he has a close relationship will be moving nearby. The mother has researched the local schools and has picked G, which is "not failing" but which she considers has good pastoral care, and has a class size smaller than H. She has checked the availability of GP's not only for YY but also for herself. The mother will not have to work because of Cs' secure job and she has checked what benefits are available to her in England. The cost of living is cheaper in England. She gave evidence that the transport links are better for people in wheelchairs in England than in Jersey and Cannock has got good transport links to Birmingham. There are activities to do ranging from visiting Cannock Chase to going to Birmingham and visiting Theme Parks. The father in cross-examination did concede that the proposals were not rash and he was satisfied that he had a full picture of the financial circumstances. He did say she could have done more to investigate living in Jersey but he could understand why she wanted to move. In Jersey there is doubt as to whether C would get a good job or indeed a job at all and I accept that C wants to provide for them in the best way he can. Whilst Advocate Blomfield submitted that she was not suggesting they would have to rely on Jersey benefits, in reality this may well happen. C has no housing qualifications and they would not be able to afford their own accommodation. There is an issue about whether the mother would or had been offered a 3 bed-roomed flat or bungalow because of pressure on States housing. The mother would lose her benefits if C were working.
41. I agree with Mrs Green, having heard the evidence, that the proposed move is genuinely motivated as the mother feels that she can give the children a better life in England living with C and it is not being proposed to restrict access by the father. I do accept that the mother would be devastated if her application is refused, a statement Mrs Green makes in her report. I do also accept that the father will be devastated if YY leaves, and his opposition is based on genuine concerns for YY as he is worried he will be cut out of YY's life bearing in mind the hostility of the mother, and to some extent her mother. He also had concerns that the mother had not lived with C and their relationship would break down, with the consequential detrimental effect on YY.
42. Will contact therefore continue? The father himself confirmed that the mother will abide by the contact terms as ordered. His concern was about her general negativity, given her expressed hostility to him in Court, and because of the comments made by the mother and her mother to Mrs Green, these are real concerns. I am reassured however about the following. The mother consents to a shared residence order, although this was not recommended by the JFCAS Officer who recommended sole residence continuing as the mother is the primary carer of YY. I asked both lawyers why a shared residence order was being sought and they confirmed it was on the basis that it was to emphasise the equality of the parents' positions and their responsibilities. I think it is important that the mother has been prepared to make this concession to the father. In addition, she agrees to the order being registered in the English Courts for enforcement purposes, although the jurisdiction is to remain with the Royal Court of Jersey, and for the issue of contact to be considered in May 2012 during the half term should there be problems. She has also agreed to give undertakings:-
(i) that she will provide a positive view of the father to YY, will not seek to denigrate him, and will not marginalise his role as YY's father;
(ii) that she will make every effort for the telephone and Skype calls between the father and YY to be as enjoyable as possible.
She has offered Skype daily - she and the children are used to speaking on Skype daily with C - despite the JFCAS Officer only recommending this weekly. The father accepted that YY has difficulty in sitting still for any length of time but he felt it would be good to have daily quality time with YY which he is not having at present, and although he could not pick up issues of negativity straight away after a period of time he thought he would be able to do so. The father accepted that contact had taken place in the past and he had not had to put in any application about this and although he does have issues about additional contact, this did happen on occasions.
43. Both parents acknowledged in Court that they had been at fault in the breakdown of the marriage and I think this is important to hear acknowledgment of this from each other. The father said that in the last two months communication has been "fantastic" and the mother acknowledged that she had been at fault in the past but because of her relationship with C and her new baby she considered she should move on for the sake of YY. She was questioned at some length about this and I accept her evidence given in light of the above. C, her partner, came across as thoughtful and realistic and said he would not minimise the father's role. The father accepted what C had said about this so this will also help the situation and F accepted C was not looking to replace B. The JFCAS Officer said C's parents were both child focused and this is also another important factor. The grandmother had issues with the father regarding the breakdown of the marriage but as she is close to YY, will be near him in England and she said she will put his needs first; this includes helping him maintain a loving relationship with his father, which she acknowledged YY has with his father.
44. As for the "contact" arrangements recommended by Mrs Green (with the addition of more Skype) both parents have agreed these. Cannock is only a 3/4 hour trip away, not the other end of the world, the problem being the cost of travel rather than travel time. B's parents live in England, near London, and as he goes over annually to see them, he can use that visit to England to combine seeing them and YY. He said he can fund seven of the trips and the mother agreed to reduce maintenance so he can use this £1,400 towards trips. The review hearing can consider if there are difficulties in this regard. YY knows his mummy wants him to go and he has said he wants to go although he knows his dad will be sad and that a judge is going to decide what to do.
45. Having considered all these matters and weighing all these factors and YY's welfare I am giving leave to the mother to permanently remove YY from Jersey but the mother shall apply to register a copy of this order with the relevant division of the Courts of England and Wales within 1 month, this provision being a condition of the permission to remove to give the father additional comfort. I note the undertakings she proposes to make and I require her to sign her agreement to the undertakings. The Royal Court is to retain jurisdiction. I am ordering "contact" as recommended by the JFCAS Officer to take place save that there will be daily Skype/telephone calls, and that there be indirect contact by letters sent by the father to YY, his mother to read these to him until he can do so himself. There will be a Case Review hearing in May to consider any issues that may have arisen.
46. Since the making of the order there has been a further hearing on the 4th October, 2011, with the parties and their lawyers and Mrs Green present. The mother signed her consent to the undertakings; a date was set for the Case Review hearing on the 31st May, 2012; the mother agreed that in addition to letters that father could also send e-mails; a schedule of "contact" dates for 2012 was agreed to be annexed to the order; the mother agreed to maintenance being reduced to nil on the basis that she would pay for five visits with the father paying the balance. I have noted that the mother wishes to remain in contact with the JFCAS officer to discuss any difficulties that may arise.
Children (Jersey) Law 2002.
Payne-v-Payne  1 FLR 1052.
H-v-T and B  JLR N 26.
S-v-A  JLR N 48.
Re K (A Minor) (Removal from Jurisdiction)  2 FCR 16.
Re M (Minors) (Removal from Jurisdiction)  1 FLR 422.
In the matter of R (A child)  EWCA Civ 1137.
Re W (Relocation: Removal Outside Jurisdiction)  2 FLR 409.
Re B (Leave to Remove: Impact of Refusal)  1 FCR 480.
Re D (children) (relocation: permission)  2 FCR 313.
Re K - MK-v-CK  EWCA Civ 793.
Re Y  2 FLR 330.