Jersey Unreported Judgments

Family - application for an order for child to be returned to the mother.

[2013]JRC167

Royal Court

(Family)

23 August 2013

Advocate M. J. Haines for the Applicant.

Advocate C. J. Scholefield for the Respondent.

Advocate D. Robinson appearing on behalf of Social Services.

judgment

the deputy bailiff:

1.        A's application is for an order that B deliver up to her their child C (aged nearly 9) who has been staying with her father.  At a hearing that took place in the Bristol County Court in April and in May this year the question of where the child, C, who was born in 2004, should reside was considered.  By the Court Order we have noted that, insofar as contact was concerned, the Court said:-

"The contact provisions for the 2008 order, as subsequently amended by the parties by agreement, shall remain in force and are as follows ... and in the summer 3 continuous weeks during the summer where [C] spends her birthday ... alternating between the parties.  It should be noted that [C] is to spend her birthday ... with her mother to coincide with a week long holiday with maternal grandparents in Cromer.  This then allows a full year to make the booking of the holiday in Cromer in subsequent years to accommodate [C's] alternating holiday time."

2.        The arrangements that were ordered by the Bristol County Court in May this year were plain, that C should return to her mother in time for her birthday.  The father's case is that he was contacted by the Bristol Social Services on 15^th August, 2013, by a lady called Joanne Preece, who asked him to keep C in Jersey with him while Social Services sorted things out in Bristol.  We find that surprising given the content of the Bristol County Court Order, but we record it for what it is worth.  In reliance upon C's statements to her father and in reliance upon the telephone conversation which we have just described, the father then says that he should retain C here in Jersey for the time being so that further enquiries can be made.  It transpires that C has given an Achieving Best Evidence Interview to the Police and both Miss Bennett, the Social Worker in Jersey who has been concerned, peripherally, with the matter, and the father have said that they were under the impression that perhaps C was holding something back.  Provisionally arrangements have been made for a further clarification to take place and perhaps another ABE Interview, which we understood would take place next week.  Clearly if that is to take place in Jersey then it would follow that C could not return to her mother in accordance with the Bristol County Court Order. 

3.        We have also been shown an undertaking which has been given by the mother in which she says "I give an undertaking to the Court in England that [C] should return to England and reside with [D] and [E], [A] will only have contact with [C] on the direction of Bristol Social Services."  The form of undertaking goes on to say that the Court explained to A the meaning of her undertaking and the consequences of failing to keep that promise, and the statement at the end, which it appears that she has signed, says "I understand the undertaking I have given and that if I break any of my promises to the Court I may be sent to prison for contempt of Court."  So there we have an undertaking that C will return to England but to reside with somebody else.  We have a letter from that somebody else (D and E) confirming that although they are on holiday, she and her partner will return to look after C if that is required.  But curiously we also have an email exchange between Bristol Social Services, apparently, and the English lawyers for the mother, in which Bristol Social Services say that they have completed the initial checks on this lady and her partner, which have not raised any initial concerns, but they need to do fuller checks and they would need to complete Section 47 enquiries and make a core assessment while C was cared for by alternative carers, so that would be somebody else again other than A, D or E, apparently not the mother, apparently not the father, because she has to be returned to England, and apparently not the people she knows who would look after her, and who have agreed to do so.  It is frankly the most extraordinary exchange of email traffic. 

4.        We accept that we have a jurisdiction today not to order the father to deliver up the child to the mother.  In our judgment the father would have to establish that C is in serious danger of suffering significant harm before we interfered with an existing order of the Bristol County Court which has jurisdiction over this matter.  The father is a long way from establishing that.  We have the unknown content of an ABE Interview, the possibility of unknown further views which C might express.  We have some unknown, alleged complaints passed on by a lodger called F who was, apparently, living with the mother.  And, by contrast, we have the actual content of the English Court's judgment in May.  We think the Bristol Court Order should be given effect, if it is appropriate to change that order, whether inter partes or in circumstances where there is a need for emergency protection, then ex parte, the English Court has all the powers it needs to make the orders which are required.  We have no firm basis for interfering with it and we are not going to do so.  We certainly have taken into account that this is the second year when allegations of this kind have been made and where there has been a difficulty in returning the child to her mother.

5.        We wish to add something about the form of undertaking given by A.  Clearly the undertaking on the face of it is one given to the English Courts, and it is a matter entirely for the English Court's discretion as to how it is used.  We are told that the mother signed it without having legal advice because she was desperate to have her child returned at least to England, and we note that she has made an application, apparently, in the English Courts for further orders in relation to C.  We think it is very odd that the undertaking should be obtained when it runs contrary to orders of the English Court obtained very recently and we think it is very, very odd that the undertaking should require C to reside with people away from her mother and people who have not been assessed.  We are faced with a series of uncertain facts and odd circumstances, and that simply emphasises that we are not prepared to interfere with the order of the Bristol Court.

6.        To us it is clear that C should not fly back to the UK on her own.  To us it is obvious that she is likely to be upset and that the last thing that should happen is that she be left unaccompanied.  This has been upsetting enough for her.  To us it is equally obvious that a holiday that has been booked with mother and grandparents in Cromer is very unlikely to cause any problems.  Grandparents are there as well as the mother and no allegations, as far as one can tell, have been made against them.  It is also apparent that school for her starts in the next 10 days, and it cannot be in her interests to put that timetable under any sort of jeopardy either. 

7.        We think the handover should take place tomorrow morning by 9:30am.  We say that because it is too late, in practical terms, for the mother to take the child back tonight and also that C is likely to be tired and it would be better for the father to have her tonight.  We do think, B, that it is absolutely essential that you encourage C to go back with her mother tomorrow, that you give her every positive encouragement that is going.  It is so easy for a child to enjoy the holidays with the father when he does not have the stress of the permanent carer looking after her; it is so easy to provide the treats which make it seem that it is okay, here is the best place for her to be; but real life is not like that. 

8.        Mr Robinson we think it would be useful for a Social Worker to pick C up tomorrow, from the father's address.  We think it would be useful if the Social Worker had the mother in her car, or at any rate that the mother was present because presumably the Social Worker will not know C from Eve and the other way around.

9.        For the reasons we have given we do not make any orders about which airport the mother flies back to and the consequences of the undertaking which have been given is a matter for the mother to take advice from her English lawyers about, and which Mr Haines, as we say we find a very puzzling document. 

10.      A and B, you have brought this child into the world between you.  You are both capable of doing this child enormous damage and you are capable of bringing her up as a rounded human being and it really is important that both of you take every step you can, not just in your dealings with her, but also in your dealings with each other, to ensure that damage is not done,.  That means that you must think very carefully about applications which you are making in the Court which has the jurisdiction to make the orders, that is the Bristol County Court.  We would implore you to think twice about those applications in the future.

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