Sir Michael Birt, Kt., Bailiff, and Jurats Clapham and Milner
Advocate L. J. Glynn for the Plaintiff.
Advocate C. J. Scholefield for the Defendant.
1. This is a case where, upon signing the Order of Justice presented by the plaintiff ("the father"), I made certain ex-parte orders, including an order that the defendant ("the mother") immediately return the two children of the parties to Jersey from Latvia. What is before the Court at present is a summons by the mother seeking a ruling that the Court does not have jurisdiction in respect of the children and that the interim orders (including a parental responsibility order for both children and a residence order in respect of one of them in favour the father) should be discharged.
2. Advocate Scholefield's primary submission is that, even on the evidence adduced by the father in support of the Order of Justice which resulted in the grant of the orders, it was plain and obvious that the children were not habitually resident in Jersey, with the result that the Court had no jurisdiction. If he was not successful in this primary submission, it was agreed by both counsel that the case should be adjourned for an urgent hearing at which both parties would be able to put forward their evidence and the Court would determine whether the children were habitually resident in Jersey or in Latvia. This would determine whether the Court has jurisdiction to make and maintain the orders in question.
3. At the conclusion of the hearing the Court rejected Advocate Scholefield's primary submission and gave directions for an early hearing on the issue of habitual residence. In the circumstances, we propose not to say much about that issue but we do need to comment on certain legal arguments raised by Advocate Scholefield, in particular his contention that there is no jurisdiction in the Court to grant a parental responsibility order on an ex parte basis.
4. The factual summary which follows is taken from the father's Order of Justice dated 23rd June, 2014. The mother has not yet filed her evidence and Advocate Scholefield made it clear that she disputed some aspects of the father's evidence. Accordingly, the summary is not to be taken as determining any disputed issue of fact which may arise.
5. The father comes from Jersey, the mother from Latvia. They met in Jersey in 2007 when the mother was working in the Island. They began a relationship in the middle of 2007 and the mother moved in with the father, who lived in his parents' home. In September he began a three-year university course in England and he and the mother resided there for the next three years. (It is not clear from the evidence whether they returned to Jersey in the vacations).
6. The parties returned to Jersey at the end of the university course in 2010 and lived in rented accommodation. The first child (to whom we shall refer by the pseudonym of 'Mary') was born in October 2011. In early 2012, the mother raised the possibility of moving to Latvia with a view to settling there if it suited them. Although, according to him, the father was not keen, they moved to Latvia and bought a house there in September 2012. The relationship does not appear to have gone well and, according to the father, at a time when the father's parents were staying with them in Latvia over the Christmas period 2013, the mother told the father to leave and to go back to Jersey and to take Mary with him. That occurred on 28th December, with the father and Mary returning to Jersey on that date and his parents the day after.
7. The parties maintained contact once the father and Mary were back in Jersey and the mother indicated in due course that she wanted to come to Jersey and for them all to live as a family again. According to the father, he said that he would support her in coming back to Jersey by providing her with accommodation and financial support but that the relationship was over. The mother returned to Jersey in April 2014 and moved into rented accommodation which the father provided for her. The mother had contact with Mary for two nights a week but otherwise Mary lived with the father.
8. The parties' second child (to whom we shall refer by the pseudonym of 'Jane') was born in May 2014. The father was present at the birth. According to the father, the mother has not allowed him very much contact with Jane since her birth. The father further states that since the separation at the end of 2013, he has been requesting that the mother agree to his having parental responsibility in respect of Mary (and more recently in respect of Jane also) but she has refused to agree to this.
9. The father states that the long-term plan was for the children and the mother to remain in Jersey. Thus Mary had obtained a place at a nursery where she was due to have an induction on 18th June. She was also registered with a primary school in Jersey. Furthermore a new rental property, chosen by the mother, had been agreed and she and Jane were due to move in there on 28th June.
10. The mother's parents currently live and work in Guernsey and, following Jane's birth, the mother asked if she could take Mary and Jane to visit her parents overnight. The father agreed to this visit which took place in early June. He retained Mary's passport and the mother duly returned with the children as planned.
11. The mother then requested his agreement to take the children to Guernsey for a second time, this time for two nights from 16th to 18th June. The father again agreed but retained Mary's passport. The visit duly took place and the father spoke to Mary by telephone when she was in Guernsey on the evening of 17th June and told her that he would see her the next day. He went down to the harbour terminal on Wednesday, 18th June to meet them all, but they were not on the ferry.
12. He tried telephoning the mother but there was no response. He then called the place of work of her parents in Guernsey and spoke to the mother's mother, who said that the mother and the children had flown to Latvia that morning. She said they would be best there and were not coming back. It transpires that the mother had previously ordered a new passport for Mary stating that she had lost the original one. This was, of course, untrue.
13. Through the police, the father managed to make contact with the mother in Latvia on the telephone. She said that she was staying with her grandmother although it is not clear whether she remained there or moved to live with a friend. According to the father, when he spoke to Mary on the telephone she was very distressed.
14. In the light of these circumstances, the father filed an Order of Justice dated 23rd June with supporting affidavit. I signed the Order of Justice and convened the mother to appear before the Court on Monday, 7th July. I also made certain ex parte orders as follows:-
(i) that the mother return both children to the jurisdiction of the Royal Court by Friday, 4th July;
(ii) that thereafter there would be an interim injunction preventing her from removing the children from the jurisdiction pending further order;
(iii) that an interim residence order in respect of Mary be granted in favour of the father; and
(iv) that parental responsibility in respect of both children by granted to the father, the mother of course already holding parental responsibility by virtue simply of being their mother.
15. The Order of Justice was duly served and came before the Court on 7th July at which time Advocate Scholefield appeared for the mother. As indicated earlier, the mother filed a summons requesting that the orders made in the Order of Justice be discharged immediately on the basis that the Court had no jurisdiction to make them, failing which the matter should be adjourned for evidence to be heard. The mother had not complied with the injunction for the return of the children and they remained with her in Latvia.
16. Both counsel agreed for the purposes of the hearing that, in order for the Court to decide whether it had jurisdiction to make decisions in respect of the children and, if so, whether it should exercise that jurisdiction, the Court needed to determine whether the children were habitually resident in Jersey at the material time.
17. Advocate Scholefield sought in effect a form of strike out by arguing that, even if the father's version of events set out in his affidavit was accepted as correct for present purposes, the children were not habitually resident in Jersey at the date of the father's application on 23rd June. He relied upon the fact that the father did not have parental responsibility for either child and that the mother had not agreed in writing that Mary should return to Jersey in December 2013. In those circumstances, he argued, the fact of Mary's residence in Jersey from December 2013 to June 2014 did not lead to her being habitually resident here, nor did Jane's residence for the month or so following her birth. The fact was that the children were living in Latvia with the mother at the time of the application to the Court on 23rd June.
18. As already indicated, the Court rejected Advocate Scholefield's submission that the father's claim should effectively be struck out and directed that the issue of habitual residence should be determined after allowing the mother time to adduce evidence. In those circumstances we do not think it necessary to go into detail, as these matters will all be determined in due course. Suffice it to say that Advocate Scholefield came nowhere near convincing us that we should in effect strike out the father's claim on the ground that the contention that the children were habitually resident in Jersey was unarguable. It seems to us that there are perfectly reasonable arguments in support of both children being habitually resident in Jersey at the time of the application. On the father's evidence, the mother had agreed to Mary coming to Jersey to live with him and the fact that such consent was not in writing is immaterial. Similarly, the fact that he did not have parental responsibility is not decisive. What is clear is that Mary was living here with him and he had day to day care of her. It appears that the intention was for that residence to continue because she was put down for schools, the mother was about to take up new rented accommodation and the house in Latvia had been put up for sale. In relation to Jane, Jersey is the only place in which she has resided during her short life and she has not resided anywhere else. The children were removed by deception by the mother on 18th June. It is clearly arguable that, in the circumstances, the short period of residence in Latvia between 18th and 23rd June was not sufficient to acquire habitual residence in Latvia. We are satisfied therefore that the father has ample grounds on which to argue that the children were habitually resident in Jersey at the time of the application.
19. Advocate Scholefield said that, if the Court was not willing to effectively strike out the father's claim by determining on the present state of the evidence that the children were habitually resident in Latvia, the mother wished to have the opportunity of adducing evidence. It was for these reasons that the parties agreed that, should we not find in favour of Advocate Scholefield, the matter should be adjourned for a short period in order to allow for trial of the issue of habitual residence. The Court fixed 23rd July for this further hearing and gave directions as the filing of evidence.
20. Advocate Scholefield also raised certain technical arguments in support of his summons and we think it may be helpful to summarise our findings in respect of those points.
21. Apart from the injunction ordering the return of the children, the principal orders which I made ex parte in the Order of Justice were a residence order and a parental responsibility order. A residence order is made under Article 10(1)(c) of the Children (Jersey) Law 2002 ("the Children Law") and may, under Article 10(3)(a) be made on the application of any parent. Clearly therefore the father was entitled to apply for a residence order, subject to the point considered at para. 23.
22. As to parental responsibility, Article 3(2) of the Children Law, provides that where a child's father and mother are not married at the time of the child's birth, the father does not have parental responsibility for the child unless he acquires it in accordance with the provisions of the Children Law. Article 5 provides that he may acquire it either by order of the Court (following an application) or by agreement with the mother.
23. Article 5 of the Child Custody (Jurisdiction) (Jersey) Law 2005 ("the Jurisdiction Law"), when read in conjunction with Article 6(1)(a) of that Law, provides that the Court shall not have jurisdiction to make an order under Article 10 of the Children Law unless the child concerned is habitually resident in Jersey on the relevant date. The "relevant date" is defined under Article 1 of the Jurisdiction Law as the date of the application i.e. in this case 23rd June, 2014. Thus a residence order (being made under Article 10) cannot be made unless the child is habitually resident in the Island. The Jurisdiction Law does not impose a similar restriction on the ability to make a parental responsibility order (such an order being made under Article 5 of the Children Law rather than Article 10).
24. With that introduction we turn to consider the two main issues raised by Advocate Scholefield.
25. Rule 8(1) of the Children Rules 2015 ("the Rules") provides as follows:-
"(1) An application for:-
(a) an Article 10 order;
may be made ex-parte ...."
26. There is therefore jurisdiction for the Bailiff to make an ex-parte residence order. Clearly at that stage, the Bailiff may not necessarily be satisfied that the child is habitually resident in the Island without hearing all the evidence. In accordance with normal practice on ex-parte applications, he will need to be satisfied that there is a good arguable case that the child is habitually resident in Jersey at the time of the application before making an ex-parte order under Article 10, but if so satisfied he may make such an order.
27. The Court was referred to Article 22 of the Jurisdiction Law which provides as follows:-
"(1) Where a child who:-
(a) has not attained the age of 16; and
(b) is habitually resident in Jersey,
becomes habitually resident outside Jersey in consequence of circumstances of the kind specified in paragraph (2), the child shall be treated for the purposes of this Law as continuing to be habitually resident in Jersey for the period of one year beginning with the date on which those circumstances arise.
(2) The circumstances referred to in paragraph (1) exist where the child is removed from or retained outside, or leaves or remains outside, Jersey:-
(a) without the agreement of the person or all the persons having the right to determine where the child is to reside; or
(b) in contravention of an order made by the Court or a court in any part of the United Kingdom."
It was argued that, as the father did not have parental responsibility, he was not someone who had a 'right to determine where the child is to reside' for the purposes of paragraph (2)(a) of Article 22 and accordingly the deeming provision in paragraph (1) did not apply.
28. We do not think that Article 22 assists at this stage. That is because there is no finding that, as required by paragraph (1), the children had become habitually resident in Latvia in the space of a few days between the removal on 18th June and the application on 23rd June. That is a matter which will be determined at the inter partes hearing which we have ordered. Should the Court in due course determine that the children had become habitually resident in Latvia, the question would then arise as to whether the provisions of paragraph (2) are satisfied. It is certainly arguable that they are. As a result of the Bailiff's order, the father was granted parental responsibility on 23rd June and accordingly the retention of the children outside the Island thereafter is in breach of paragraph (2) in that it is being done without the agreement of the father and in contravention of an order of the Court. Furthermore, Advocate Glynn argued that paragraph (2)(a) had to be interpreted in the light of the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, which aims to secure that long-term decisions about a child's future are taken in the country where a child was habitually resident immediately before the removal and not in the country to which the child has been taken. We say nothing further because all these matters will be for determination by the Court in due course should it find in favour of the mother on the habitual residence of the children at the date of the application. For these reasons we do not think that Article 22 assists.
29. Advocate Scholefield also sought to draw some support from the fact that the removal of the children by the mother was not an abduction contrary to Article 2 of the Criminal Law (Child Abduction) (Jersey) Law 2005 ("the Abduction Law"). Article 2(1) provides as follows:-
"(1) Subject to paragraphs (4), (5) and (8) a person connected with a child under the age of 16 years commits an offence if the person takes or sends the child out of Jersey without the appropriate consent."
Paragraph (3) goes on to define appropriate consent as including the consent of the child's father but only if he has parental responsibility for the child. Advocate Scholefield asserts (correctly) that the father did not have parental responsibility at the time of the removal and accordingly there was no offence under Article 2(1). However we do not see that this assists. The fact that the mother did not commit a criminal offence by removing the children does not assist on the issue of whether the Court has jurisdiction to make orders in respect of their welfare and, if so, whether jurisdiction should be exercised.
30. In summary, we are satisfied that there was jurisdiction to make an ex parte residence order and there is jurisdiction for this Court to maintain it pending resolution of the issue of whether the children were or were not habitually resident in Jersey at the time of the application.
31. Advocate Scholefield submits that there is no jurisdiction for the Court to make a parental responsibility order on an ex-parte basis. He points out that a parental responsibility order is made under Article 5 of the Children Law but that orders under Article 5 are not included amongst the cases where orders may be made ex-parte pursuant to Rule 8(1) of the Rules.
32. It is correct that Article 5 is not referred to in Rule 8. However, in our judgment, there is an inherent jurisdiction in the Court to make an order ex-parte where the circumstances justify this exceptional step. The Court has long had an inherent jurisdiction to make orders (including on an ex parte basis) for the welfare of children. This jurisdiction pre-dates the introduction of the Children Law. It would be surprising if the Children Law excluded the inherent jurisdiction to make urgent ex parte orders where the Court concludes that such is necessary to protect the interests of a child. The Children Law does exclude that inherent jurisdiction in certain specified circumstances but, by implication, the inherent jurisdiction continues save where excluded expressly or by necessary implication. Thus, Article 76 of the Children Law provides as follows:-
"76. Restriction on Court's Inherent Jurisdiction
The Court shall not exercise its inherent jurisdiction in respect of children:-
(a) so as to require a child to be placed in care or put under the supervision of the Minister;
(b) so as to require a child to be accommodated by or on behalf of the Minister; or
(c) for the purpose of conferring on the Minister power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."
This provision clearly envisages that the inherent jurisdiction of the Court would otherwise continue alongside the jurisdiction conferred by the Children Law. Article 76 restricts that inherent jurisdiction solely in relation to the three matters itemised in the Article.
33. Any ex parte order is an extreme measure (because it is made after only hearing one side) and the Court must therefore always consider very carefully whether it is necessary. Nevertheless, in our judgment, there is an inherent jurisdiction to make an ex parte parental responsibility order where the circumstances justify this and we note in passing that the High Court of England and Wales appears to be able to make such orders ex-parte in circumstances where the legislation in the two countries is very similar (see for example B v J  EWHC 3364 (Fam) at para 11). Like any other ex parte order, it is essentially an interim or provisional order and is capable of being set aside if, on hearing all the parties, the Court is satisfied either that it did not have jurisdiction to make the order in the first place or that, for any other reason, it should be discharged.
34. Quite apart from the inherent jurisdiction of the Court, there is a statutory provision which is applicable in this case in relation to Mary. Article 13(1) of the Children Law provides as follows:-
"(1) Where the Court makes a residence order in favour of the father of a child it shall, if the father would not otherwise have parental responsibility for the child, also make an order under Article 5 giving him that responsibility."
35. This is a mandatory provision and accordingly, once the Bailiff granted a residence order in favour of the father in respect of Mary (as was the case in the Order of Justice), there was no alternative but also to make a parental responsibility order. However it is conceded by Advocate Glynn that this provision does not apply in the case of Jane.
36. For the reasons given, the Court is satisfied that there is an inherent jurisdiction to grant ex-parte orders for parental responsibility where the situation is such that this exceptional remedy is justified. In our judgment there were proper grounds on which to make the order in this case. Mary has lived with the father throughout her life and he has been her primary carer not only for the period in Jersey from December 2013 to the removal in June 2014 but also, according to him, whilst they were living in Latvia. In those circumstances there was clearly a very strong argument for conferring parental responsibility upon him even on an ex parte basis and it was right to do so in the face of the secret removal by the mother.
37. It follows that Advocate Scholefield's preliminary argument against the making and maintenance of the orders in the Order of Justice does not succeed. In our judgment the Court needs to decide as a matter of urgency whether it has jurisdiction to make orders in respect of the welfare of these children and that is why the Court ordered an urgent hearing to ascertain the habitual residence to take place on 23rd July.
38. As is well-known, there is duty on an applicant for ex parte relief to make full and frank disclosure. The terms of this duty were set out in Goldtron Limited v Most Investment Limited  JLR 424 at paras 14-16. We do not repeat those paragraphs but they emphasise that counsel presenting an ex parte application must alert the Court to any matters which militate against the making of the order in question including any arguments which could reasonably be expected to be raised by a party wishing to oppose the order.
39. In this case, it should have been apparent to counsel for the father that, by reference to Rule 8 of the Rules, it might be argued on behalf of the mother that there was no jurisdiction to make an ex-parte parental responsibility order. The fact that the Court has, after argument, decided that there is such jurisdiction does not alter the fact that there was a tenable argument to the contrary.
40. The provisions of Rule 8 were not drawn to my attention when I was asked to make the ex parte orders. They should have been. This was a clear failure of the duty to make full and frank disclosure by counsel. The Court could therefore set aside the interim orders on this ground alone. However, having now had the opportunity of fully considering the matter and bearing in mind that this is a matter concerned with the welfare of children, the Court has decided to maintain the orders pending the full inter partes hearing on habitual residence previously referred to.
Children (Jersey) Law 2002.
Child Custody (Jurisdiction) (Jersey) Law 2005.
Hague Convention on the Civil Aspects of International Child Abduction.
Criminal Law (Child Abduction) (Jersey) Law 2005.