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Cite as: [2014] JRC 155B

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Family - application by the father for shared residence or sole residence order and leave to remove from the jurisdiction regarding the three children.

[2014]JRC155B

Royal Court

(Family)

12 August 2014

Before :		Mrs J. M. O'Sullivan, Family Registrar, sitting alone.
Between	The Father (T) U		Applicants
And	The Mother (S)		First Respondent
And	Archie, Charlotte and Lily (the children) through their Guardian Eleanor Green)		Second Respondents

The Father appeared on his own behalf.

U appeared on her own behalf.

The Mother appeared on her own behalf.

Advocate H. J. Heath appeared on behalf of the Children.

judgment

the registrar:

1. There are applications concerning three children: Archie, Charlotte and Lily. Their mother is S and father T. The parties were married but divorced in 2013. The mother does not live with the children who reside with the father, his partner U, and her 7 year old daughter Olivia.

2. The father is applying with U for a shared residence application, and if not granted to them, for a sole residence order. He also applies for leave to remove the children from Jersey to Guernsey. The mother applies for a shared residence order with the father, having applied for a contact order with the children.

3. The final hearing took place commencing on the 5^th August, 2014, and finished at lunch time on the 12^th August. The mother had the benefit of a discretionary legal aid certificate but appeared as a litigant in person, with a McKenzie friend who attended on the first three days. There is no right of audience for a McKenzie friend in Jersey. The mother is Russian by birth but has lived in Jersey for seventeen years. She requested she be provided with a Russian interpreter who attended throughout the hearing. The father was also a litigant in person, as was U, but she was only able to attend on the first day to give evidence as she then had to go into hospital.

4. A guardian for the JFCAS service was appointed for the children, and the children's advocate was Advocate Heath.

5. A bundle was provided, and a supplemental bundle provided by the mother. The bundle includes affidavits by the father, mother and U, a position statement and skeleton argument from the mother, and a joint position and skeleton argument from the father and U. Three reports from JFCAS were in the bundle, the guardian's latest report of the 9^th July, 2014, and reports of the 19^th October, 2012, and 31^st December, 2013.

6. A report from Dr Hessel Willemsen a clinical psychologist dated the 8^th July, 2014, was provided, and his addendum report of the 30^th July, 2014. He gave evidence. He specialises in child and family psychology as well as adult psychology and acts as an expert witness in 50 or so cases a year including in Jersey. Also included was a report from Dr Bryn Williams dated the 14^th December, 2012, and there was the extract of a psychiatric report on the mother from Dr Woolley dated the 22^nd June, 2012, an addendum psychiatric report on the mother from Dr Miguel Garcia dated the 4^th March, 2014, and psychological report of Dr Bowley on the mother.

Background

7. The parents were married on the 27^th September, 1997, and separated in October 2011. There is a dispute about the breakdown of the marriage but by 2010 there were problems in the marriage. The mother says she became depressed in mid-spring 2011 and the father says that the mother's behaviour became more bizarre and irrational so that in July 2011 she was admitted to Orchard House on a voluntary basis for two weeks. The father had received notification from his employer about the loss of his job and he was put on gardening leave. In October 2011 the mother was sectioned and returned to Orchard House at about the time the marriage ended. She was diagnosed with bipolar disorder.

8. On discharge from Orchard House, it was agreed that the mother leave the family home and the children stay with the father. Children's Service assessed the family. Initially the mother attended the house and saw the children in their paternal grandparents' presence. Enclosed in the mother's bundle is a parenting assessment dated the 12^th January, 2012, in which Rachel Freeman of Children's Service outlined her concerns about the mother and she recommended contact be suspended. The two older children have not had contact with their mother since then save for when she attempted to take her own life and they visited her in hospital in March 2013 as there was a fear she would not survive. Rachel Freeman reported that Archie and Charlotte stated they were " scared of their mother" due to her unpredictable behaviour, "would not want to be on their own with her, as they don't trust her. They are fearful of her behaviours and of her becoming angry and violent. S appears to be reinforcing their fears during contact by not controlling her emotions and becoming angry/frustrated with their behaviour...." She reported that the mother said the children had been brainwashed, but Mrs Freeman could see no evidence of brainwashing and believed Charlotte and Archie were telling the truth about their mother.

9. In January 2012 the mother applied for contact, and interim contact with Lily in the presence of a family member was ordered in February 2012.

10. The mother was voluntarily admitted to Orchard House and contact stopped in April 2012 but following a report by Dr Woolley, a consultant psychiatrist of the Priory Hospital in London, contact recommenced in May 2012 supervised by the Jersey Family Court Advisory Service (JFCAS). During this time, the mother suffered another episode of poor mental health and was voluntarily admitted to Orchard House. In June 2012 Dr Woolley said that at the time of his report the mother was currently well but one could not rule out future similar episodes as she continues to be subject to stress in particular the unresolved nature of the mental breakdown and access to the children. In her current state he was not of the view that her ability to parent is impaired but undoubtedly the children may have been confused and distressed by her behaviour. In July 2012 contact with Lily was ordered to take place at Milli's Contact Centre, but the referral was not accepted so contact continued to be supervised. In January 2013 the father applied for a residence order. By January 2013 the mother was having unsupervised contact with additional Skype contact each week. Sadly on the 1^st March, 2013, the mother tried to take her own life and thereafter she stayed in Orchard House for about three months and contact ceased.

11. A financial order by consent was made in May 2013 whereby the former matrimonial home was transferred to the father and in return the mother received a lump sum of £260,000 with which she has purchased her current accommodation where the children can stay.

12. In September 2013, Mrs Green was appointed the Guardian and direct contact renewed with Lily, supervised by the Guardian which moved to Milli's Contact Centre in January, 2014.

The mother's current mental health

13. The mother says she suffered four episodes of bipolar disorder, the most recent being in March 2013. However, she follows psychiatric and psychological advice, takes medication as prescribed, she has attended a parental course at the Bridge and considers she is at a low risk of relapsing. She sees a CPN on a needs basis and has been discharged from seeing Dr Bowley in January 2014. She holds down a professional job and although the contract finishes in October 2014 she is actually seeking other employment. She will consider undergoing Cognitive Behavioural Therapy, which both Dr Willemsen and the Guardian considered would be helpful for her. An addendum psychiatric report on the mother from Dr Miguel Garcia dated the 4^th March, 2014, says that the mother is currently in remission from Bipolar Affective Disorder and as long as she is in remission this will not affect her ability to parent. Dr Willemsen says in his main report that the mother "is not an emotional risk as along as she takes her medication."

14. There is a safety plan in place which has been agreed to by the mother which gives her mental health team permission to pass on concerns regarding any potential relapse so that contact can be organised safely. There are clear lines of support with the schools that the children attend and Children's Service. The Guardian recommends that if leave to relocate is granted, the safety plan be implemented as far as possible in Guernsey.

Relocation

15. In deciding whether or not to agree to the removal of children from Jersey, the paramount consideration is their welfare, taking into account the "welfare checklist" under section 2(3) of the Children (Jersey) Law 2002. The Court is also bound by the approach in Payne v Payne [2001] EWCA Civ 166, which approach has been followed by Commissioner Hamon in B (LA) v B (DM) [2002] JLR 528, Registrar Obbard in H v T and B [2003] JLR N 26, in the case of In the matter of YY [2011] JRC 200A and the Bailiff, then Deputy Bailiff in S v A [2005] JLR N 48. In the H v T and B case, it sets out what a 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:

Iii(i) the welfare of the child;

Ii(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."

16. It was held in S v A [2005] JLR N 48:-

"When considering such an application, the court would look to English law for guidance (H v T, [2003] 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, [2001] Fam 473; [2001] 1 FLR 1052; [2001] 1 FCR 425, dicta of Thorpe, L.J. applied)."

Is the proposal for relocation genuine or an attempt to restrict access?

17. The guardian points out that the father is agreeing to more contact than is presently taking place with regard to Lily, and that the practical impact of the move to Guernsey will be fairly minimal as Guernsey is only a short distance away. The father gave evidence that he rejected a move to Singapore although it would have been a good career move, because of the children. The Guardian does not accept that the father wants to move to Guernsey to exclude the mother, but wants to do so for practical reasons. The Guardian does recommend that Mirror orders be made in respect of any contact, and the father does not oppose this.

18. The father gave evidence about his employment. He lost his job as a director of a company in the autumn of 2012 and was put on six months gardening leave until April 2013. He searched for another job and did find a job with a smaller Trust Company in Jersey as a Senior Executive. He had been told it was a functional job running the business but discovered when he started that he was required to do business development which involved 10 business days travel per month. It was mutually agreed that he leave and he was paid until July, 2013. The father gave evidence that jobs in Jersey were increasingly difficult to find, particularly for someone at his level. He registered with agencies, and did attend one interview but was unsuccessful. In September 2013 there were two options; the first a job in a bank in Guernsey initially for six months but with the prospect of it being a permanent position, it was a job in his speciality. The second job was only for 5 months in Jersey but doing compliance work which was not his speciality. U and her daughter Olivia had moved in with him and he decided to take the Guernsey job as U was able to look after the children when he was in Guernsey; on the basis he would commute twice a week. The salary was more than the job in Jersey, was likely to be permanent, and was an excellent career choice within a high quality business. The downside was the commuting but U supported him. The job commenced in November, 2013, on a six month trial.

19. The job was such a success that in January 2014, he was told the employment would be permanent but that meant he had to relocate to Guernsey. The letter from the bank director said that the firm understood this would be in the summer of 2014 subject to getting approval from the Jersey Court to relocation. He has been granted a 15 year housing licence. The upshot is that if the father does not get approval to reallocate then he will lose the job and the bank will get someone else.

20. It is the mother's contention that the father can obtain employment in Jersey. Her view is that he wants to take the children to Guernsey to prevent any further potential for repair of her relationship with the children and that he wants U as a replacement mother (which contention will be considered below). The mother produced no evidence about available jobs but asked him if he was aware the job market in Jersey is picking up.

21. The father responded that he has been keeping an eye on the job market but there were a reduced number of jobs because of consolidation that had taken place and there are less jobs at an executive level. He said he is glad the market is picking up for accountancy jobs as it will make matters better for the mother. The mother raised a concern about the father keeping his job at the bank because there could be more redundancies. He said that as a worldwide organisation it undergoes restructuring but he has no concerns about his job in the Offshore Trust business. I therefore find that the father has to relocate if he wants to keep his job in Guernsey and that no details of suitable jobs in Jersey have been provided. The mother said she always had supported the father's career and she is happy about his career achievements and that he has found a job he enjoys and where he sees scope to develop his career.

22. The father's evidence is that if he returned in Jersey he would have no job; and would have to live on the equity on the former matrimonial home and a small amount of savings. Until such time as he could find employment I accept that this will indeed be his position. The mother said she could help financially if the children stayed in Jersey until the father gets another job and she was confident she could find another job. However it transpires that the mother is on a contract due to end shortly and is herself looking for a new job and she was concerned about the cost of spending £120 per contact visit. Even if she is successful, her salary is unlikely to be able to support her and provide sufficient maintenance for the three children if the father has no job.

23. The father has been granted a 15 year housing licence in Guernsey. Unlike in Jersey, Guernsey has two housing markets. There is the open market which is largely for the really wealthy and local market for people granted licences by Guernsey. This licence is granted to a specific property, which needs to be applicable to a person's job. The father wants to purchase a 5 bedroom property in St Sampson known as The Property and provided details, and he has been given a concession by the States of Guernsey to purchase this. He has sold the property in Jersey. The mother said the house was bigger than the former matrimonial home and the children will have enough space.

24. With regard to schools, Archie was attending School 1 and Charlotte School 2 with Lily at School 3. The private schools in Guernsey are more expensive than in Jersey. Fortunately, Archie has been accepted to start at School 4 in September 2014 and Charlotte likewise. School 4, the father said, had excellent results. The mother said she believes the school is very good and she is proud that the father does his best for the children.

25. With regard to Lily, the school she attends is in the area she will live. The local school has just merged into a large school; which may not be best for Lily. The other option is a Roman Catholic School which is smaller but has excellent results and is more personal. Lily liked it and 10-15% are non-Catholics. The mother was concerned because Lily has been christened as a Russian Orthodox but as it was a smaller school, she felt it may be nicer for Lily to go there.

26. With regard to child care arrangements, the father said U would need to recuperate from her operation. The plan is for her to help the children settle down in their new home and schools but she will find work in due course. She is a clinical nurse in specialist palliative care.

27. The father has private health care with his employer for himself and the children and there are apparently good GPs in Guernsey. The mother was asked if the plan met the needs of the children but considers it does not meet their emotional needs. She therefore did not argue that the proposals were unable to meet the practical needs of the children.

28. Dr Willemsen said it was psychologically important for the father to be able to provide for the children. If he were not able to move, he would lose his job. I accept that the father does need to provide for the children and his only job opportunity is in Guernsey. I find that the father's proposals are practical, realistic and well-researched in terms of his job, schooling, medical situation and the children will not need external afterschool care.

Is the opposition by mother motivated by a genuine concern?

29. The mother submits that the move will damage her relationship with the children which will be further undermined as it is a way of the father preventing the rebuilding of her relationship with them. She considers that U views herself as the children's mother. Her proposal is therefore that the leave to remove application be refused, and a structured plan be put in place to repair her relationship with the children. She considers the children do miss her and want to see her and if the father could support this she could have a more normal relationship with them.

30. She also considers that the father will not give adequate emotional care to the children to enable their relationship to be rebuilt and referred to paragraph 98 of Dr Willemsen's report when he said:-

"he had concerns about this because the father "finds it difficult to address his emotional needs, the loss of his wife and marriage."

31. In her report the Guardian says she does share some of the concerns of Dr Willemsen about whether this may colour his perception of risk "and inhibit him whole-heartedly encouraging the children to explore a relationship" with the mother.

32. In paragraph 14 of his addendum report Dr Willemsen wrote:-

"I am concerned that a move to Guernsey may lead to the older two children not seeing their mother."

He was asked about this and said that is a worst case scenario but the father has followed the orders of the court regarding Lily, but having read the Guardian's report he is less concerned about this. He said that Archie may make a decision to see his mother even if he receives no encouragement from this father but this would be more difficult for Charlotte. The father said the mother did not appreciate the efforts he has made with the children to promote their relationship with their mother and this is bearing fruit.

33. The mother said the small bit of water between Jersey and Guernsey creates a distance. She was asked that if it is her view that the father is unable to meet their emotional needs whether they are in Guernsey or Jersey, what difference is it if he is in Guernsey or Jersey, but she did not give a clear answer to this.

34. At present there are no photos of her with the children in the home and that to quote the Guardian:-

"...it feels that S has been erased in the family script outside of court time; she is not really mentioned."

35. The mother also raises concerns about the children's Russian heritage from her being excluded; and the issue of them being able to communicate with their Russian family. The father said he interpreted what Dr Willemsen said as that it was not up to him to exclude their Russian heritage. The mother said that the children identify her as the primary source of their Russian heritage.

36. She considers that the hostility from the father and U to her have been minimised, and the father has struggled to support the children emotionally. She says the father accepts no blame for the breakdown of the relationship, which he says are solely caused by her mental health breakdown and he refused to speak about himself to Dr Willemsen. This, she poses, showed a high level of defensiveness and this stance was supported by U. She said that she still believes U is seeking to replace her as the mother, Lily told her on one occasion that she has a new mum, but she said "mummy, I'll never forget you". The children however do not call U mum. Having heard the evidence, I do accept that U does not wish to become a replacement mother to the children, and makes it clear that she is the children's step-mother.

37. The mother claimed the children, particularly the two older ones, have been alienated from her, and she has raised the issue of alienation with professionals including the Guardian. Her fear is that if the relocation order is successful she will "lose" the children as the father will not support the children's relationship with her, and they need to be encouraged to see her and view her in a positive light. Dr Willemsen was very clear that he does not accept the mother's contention that the father had alienated the children from the mother and wants to exclude her from the children's life. He said this is not a case where the children hate their mother, and he does not consider the father is a manipulative man. The Guardian likewise does not agree with the mother's contention as to alienation. In cross-examination the mother accepted that the father's application for leave to remove was not done deliberately to alienate her, but he had given little thought to her ability to work in Guernsey. She accepted the reality was that the children lived with the father. When asked about Dr Willemsen saying this was not a situation where the father had tried to alienate the children, she said she half agreed and half disagreed, and then said she 70/80% agreed. She said that the father did not purposely try to alienate the children but his attitude may be passed on to the children.

38. The mother said she was surprised when Dr Willemsen said the emotional needs of the children could be met equally in Guernsey and Jersey. Indeed he also considered that it will be better for the older two to go to Guernsey so that there is space between them and the mother. He accepted that parents who separate do not always live next door and that people travel easily between Guernsey and Jersey. The mother did not respond when it was put to her that Dr Willemsen said it was not appropriate for the children to have therapy at this time. The mother agreed in cross-examination that the father will comply with a court order. I do not find that the father has sought to alienate the children nor that he is attempting to exclude the mother from the children's lives.

The impact of a refusal on the father

39. With regard to the emotional effects of a refusal I accept the father will lose his job if leave to remove is not given and there is no guarantee when or even if he could find alternative employment at the equivalent level to the job he currently has. He has legal bills to pay, and could no longer afford the private schooling for the children in Jersey. He said his application is genuine and is not being done from a desire to exclude the mother from the children's lives. I accept this. Although the father accepted he was resourceful he said it would be distressing for the children as well if he lost his job and remained in Jersey. The father was in tears when he said this. His evidence was that he would find it very difficult to cope in not being able to support the children financially and this would impact on the family as the level of stress he would be under would impact on the children. The father became emotional when he gave evidence about this and I note that great weight needs to be given to the emotional and psychological well-being of the father who is the primary carer. Although the mother said she would be able to help if the father and children remained in Jersey, she was concerned about the cost of a contact visit to Guernsey of £120 per time (the total may be about £240 per contact but the father has offered to pay £120 to her each time).

40. When the effects of a refusal to relocate were put to Dr Willemsen, he said it would be disastrous for the father as he needs to earn a living and support his children. He said that if the father feels good in his work it will have a positive effect on the children. The Guardian also agreed with Dr Willemsen and in her report wrote that he is likely to suffer emotionally and be less available to deal with the children. I agree with this.

The wishes of the children regarding relocation and contact with their mother

41. Charlotte wants to move to Guernsey and Archie is ambivalent but he feels it is necessary for the family and he will like having his father around a bit more again. Lily's view is "I want to go AND I want to see Mum." The mother did not respond when she was asked whether she had said to Lily that if she speaks to the Guardian and says she does not want to go to Guernsey and says she wants to stay in Jersey she can do so. The mother accepts that Archie does not mind going to Guernsey or staying in Jersey but because he lives with his father, he believes it is in the family interest to move to Guernsey and will follow and support his father. Archie told the Guardian that he does not want a set contact routine nor for the Court to set dates; he wants to build contact slowly and gradually, does not want to be bombarded with letters and emails and wants to settle into school in Guernsey before having his first direct contact. The Guardian said that Archie was most unconcerned about telling the father and U his views and they were supportive of him.

42. The mother is aware Charlotte wants to move to Guernsey to start afresh but she said that she is not sure Charlotte understands she cannot run from her roots. Charlotte although not wanting direct contact with her mother yet does not mind if her mother writes to her. The Guardian therefore recommends that there should not be a prescriptive court order made regarding contact for the two older children. Dr Willemsen's view is that Archie and Charlotte should be allowed to set their own pace in respect of contact with their mother. The mother accepted that Dr Willemsen is a respected psychologist, although in her summing up she sought to suggest he did not have suitable expertise to give an opinion on alienation but she did not challenge him when he was giving evidence. In his addendum report dated the 29^th July, 2014, Dr Willemsen had written:-

"It seems to me important that the feelings the father has for the mother need to be separated from his role as a father. I am concerned that a move to Guernsey may lead to the older two children not seeing their mother."

43. However at Court, Dr Willemsen felt that the move to Guernsey would be positive for Archie and Charlotte in that it would be possible for them to move forward and the small distance away from Jersey may make them feel more secure. Dr Willemsen considered that for Charlotte meeting her mother by chance may not be helpful, and if she is in Guernsey there is little opportunity for this happening. He considers that they need to take control of their relationship with their mother, given they come from a situation where they were helpless. The mother needs to take time to listen to the responses of Archie so if he is silent, she must "listen to his silence." He added that she must let the children come to her and because they are adolescents, they must be able to make their own steps towards her. Dr Willemsen said there are no guarantees it may work and the mother needs to understand this but the signs are helpful. Dr Willemsen said he had concerns as to how much the father will encourage the children to have contact with their mother, but his concerns have been alleviated because of the recent developments with Archie and Charlotte opening up to their mother writing letters to them. In cross-examination the mother agreed with the recommendations made about no formal order for contact with Charlotte and Archie. She said that she knows Dr Willemsen says to wait for Archie and Charlotte to come to her, and she agrees space is given to them to find her slowly but she does not know how long she will have to wait.

44. The Guardian is recommending an increase in contact which will enable Lily to have overnight contact with her on alternate week-ends, Skype calls twice a week and 5 weeks holiday per year (to alternate on the Christmas period yearly) and a long week-end on another half-term, to spend mother's day with her and on Lily's birthday for the mother to visit her and have her for overnight contact on alternate years. The Guardian said the contact in Guernsey should be at least from Saturday morning until Sunday but there should be flexibility so if the mother could for example get a cheap flight, the contact with Lily could commence on the Friday, as she did not want to bind the mother to only Saturday until Sunday. There needed to be understanding between the parents. There was a balance between certainty and some flexibility. The Guardian's proposals are supported by the father, save as to discussion as to when the contact commenced in Guernsey but the contact pattern is to commence on the 13^th September, 2014, after Lily has an opportunity to settle in to her new school. The mother is seeking unsupported contact with Lily twice a week and every weekend moving to alternate weekends with a night in between, half the holidays, Lily to spend mother and father's day with each respective parent, Lily's birthday to be split, Lily to spend her birthday on the 10^th December with her mother, and for a trip to take place with Lily to Russia over Christmas 2014 to the New Year to enable her to see her maternal grandparents and grandmother. Dr Willemsen agrees with the recommendations of the Guardian as to the mother's contact with Lily. Dr Willemsen said it was important for Lily to also spend time with her siblings and friends and the Guardian had set up a neat structure which is clear and is a step forward.

45. The mother was asked by the advocate for the children if the contact proposed by the Guardian was in the children's best interest but said she disagreed. She was asked if she agreed with Dr Willemsen when he said that Lily needs space in Guernsey to set up a structure of contact, and that she cannot live with both parents at the same time. She said Lily was worried she had a short time in contact at present and asked about the time, but the contact proposed means that Lily will have longer with her mother including overnight contact.

46. The mother said that Dr Willemsen had said it is essential the father gives the children permission to have a relationship with her as otherwise it will not only impact on their relationship with their mother, but also with their father. She considers the Guardian has ignored the reality of the father and U's relationship to her. Although the Guardian has said the children have not healed, she has minimised the hostility of the father and U to her and the father does not take responsibility to support contact. She is happy to co-operate with the father but wants an outside agency to assist with a structured plan. When asked for her views about Dr Willemsen saying communication should be in small steps, at first at handovers, she said that it sounds like sound advice. The father agrees that they should take the advice of Dr Willemsen. He also agreed to provide the mother with regular updates about Archie and Charlotte and photos of all three children on a quarterly basis. The Guardian said that important information needs to be communicated on a regular basis, such as hospital visits or if a child is on antibiotics but the father does not need to communicate about day to day matters, he needs to get on with his life and the mother has to accept that this is the painful side of divorce.

47. With regard to the welfare of the children, the Guardian has in her very detailed report of 28 pages considered the welfare checklist and the principles outlined above in S v A. She states that the relocation is in the best interests of the children. She makes detailed proposals with regard to contact by the mother with Lily, and points out that whilst this is a relocation case Guernsey is only an hour away from Jersey.

48. I was referred to "Re K" - MK v CK [2011] EWCA Civ 793, a shared care case, and the guidance offered by Hedley J in Re Y [2004] 2 FLR 330. 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. It was held that that judge had to be free to decide what is in the best interests of a child but that the judge's decision in the court below was flawed by her failure to properly consider the advice of the CAFCASS officer. I was referred to the case of In the matter of F and G (No 2), [2010] JCA 051 a Court of Appeal decision. At paragraph 65 the Court states that experts do not decide cases. Judges do. However if the judge decides to reject an expert's advice she must have a sound basis upon which to do so. Both the Guardian and Dr Willemsen support the move to Guernsey as being in the best interests of the children and that the move will not have a negative impact on the children and indeed that there are some positive aspects to the move. Having heard the evidence and read the papers, I support the father's application that the children should relocate to Guernsey with him.

Shared residence

49. The welfare checklist is applicable in cases regarding shared residence.

The mother's application for shared residence

50. The mother says she has an equal wish to support the children and is ready to play a full parenting role. The mother seeks a shared residence order as a basis for restoring her relationship with the children and to establish a shared parenting routine. In her open position she describes Dr Willemsen as a very skilled practitioner and that he is a respected psychologist, whose opinions should be utilised and built upon. She proposes that a shared residence order be made between her and the father to signal that she should not be excluded from the children's lives. She says that the father does not promote her as their mother in the lives of the children and refers to Dr Willemsen's report point 23:-

"He (the father) considers it was mother and Charlotte's responsibility whether they would have contact with their mother."

51. She said it is important that they know their mother and father's homes are their homes and she has a home for them to live in. Lily she said was desperate to stay with her. She said she knows Archie and Charlotte need space and to be in control of their lives but they also need to know they have got her home where they are welcome. She does not accept her application for shared residence is aspirational. She accepted that Archie had a traumatic experience when he saw her in hospital when it was anticipated she would die. She said that from reading the report of the Guardian, hearing Dr Willemsen and reading Archie's first letter to her which she had recently received, she realises Archie loves her, needs his mum back in his life and needs to make sense of what happened with her breakdown and the marriage breaking up. In his letter he asks if she needs help in setting up her PC and she said she would love help and she is prepared to wait for him until he writes back.

52. With regard to Charlotte, she considers that Charlotte needs her desperately, and she asks for a psychologist to look at Charlotte to the trauma Charlotte went through due to her bipolar relapse and the divorce.

53. Dr Willemsen said that granting a shared residence order may raise all sorts of hopes for the mother which may not help her. Shared residence orders he said works well for parents who work well together but this is not the case at present with this father and mother.

54. I was referred to the case B v A [2010] JRC 172. Here the Bailiff stated that a shared residence order should be made where it reflect the practical realities of the children's lives. Whilst there does not need to be an equal division of time, can the children say "oh we live with mummy for part of the time and with daddy for the other part of the time." This is not the situation in this case given that the two older children do not at present even see their mother, and the mother did accept that this is the reality of the situation. The second ground upon which a shared residence order may be made is where it may be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities. However, as a child's welfare is a paramount consideration, a benefit to the parents alone is not a good reason to make a shared residence order. The Guardian does not recommend a shared residence order even were the children to remain in Jersey and says that the Court should not make an order which is aspirational and does not reflect the reality of the children's lives. Dr Willemsen also does not support such an order being made. I was also referred to J v I [2013] JRC 157 where a father was applying for a shared residence order. Reference was made to the point made by Baroness Hale, then Hale LJ in the case of Re A [2001] FLR 495 in which she said that a residence order is about where a child is to live and is not about status. In the J v I case the father acknowledged that a shared residence order would be of psychological benefit to him but acknowledged it would be of limited benefit to the child. The Court refused to make the order, saying it was about the needs of the father not about the needs of the child. Here the mother has parental responsibility, and I consider that the application is more about the need of the mother than the needs of the children. I therefore will not make a shared residence order.

The father and U's application for shared residence

55. The father's position is that he is seeking a shared residence order with U but if this is refused he seeks a sole residence order which is maintenance of the status quo. Whilst there have never been any worries about the father's ability to look after the children, nor are there worries about how U looks after the children on a daily basis, neither the Guardian nor Dr Willemsen supports the application for shared residence.. In England a step-parent can acquire parental responsibility under the Children Act 1989 as amended but this is not the case in Jersey. A step-parent however can acquire parental responsibility if a residence order is made in his or her favour, parental responsibility being defined as:-

"all the rights, duties, powers, responsibilities and authority which the father of a legitimate child had in relation to the child and the child's property prior to the commencement of Part 1, save that rights in respect of custody shall not be exclusive."

56. I was also referred to Article 4(8) of the Children (Jersey) Law 2002 which says as follows:-

"A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his or her behalf."

57. The father accepts that this means that U may therefore act on his behalf in taking the children to the doctor. However he and U are concerned as to what may happen in an unplanned scenario which may involve the mother and U when he is not present. The father said that it was not an application to alienate the mother and make U the replacement mother but so that U can safeguard the children appropriately. The father referred to the case of T v T [2010] EWCA Civ 1366, a case involving a mother, a father and the mother's civil partner. The central strand of the argument related to the mother's partner who the mother argued would be marginalized in the context of a shared residence order between her and the father. The Recorder had granted parental responsibility to the mother's partner "who was an integral part of the children's lives." The Court of Appeal acknowledged that prior to step parents being able to acquire parental responsibility, shared residence was sometimes granted in order to give parental responsibility to a partner who was not a biological parent but was fulfilling a parental role.

58. The Court of Appeal stated:-

"Whether or not a joint or shared residence order is granted depends upon what is in the best interests of a child in the light of all the factors of a case."

59. The father says the Guardian has admitted she understands the continuing concerns he has about the mother. In her report the Guardian had said that her remaining concern is about the mother's lack of reflection about decision making. She writes:-

"Sometimes she can be quite demanding and pressurising in her behaviour when she wants something to happen and it is not moving. This leads her to make questionable decisions at times which can appear thoughtless and have been interpreted as manipulation or hostility" by the father.

60. The father says that his concerns are as to the mother's sense of desperation, her lack of compliance with orders and her attempt to subvert matters and her unpredictability. As an example, reference was made by him to the mother going to Archie's school on the occasion when her father was with her - she was at Orchard House - and they dropped in during the school day and asked to see Archie. Archie came out of his lesson and they gave him a hug. Children's Service and her mental health team had asked her to stay away from the children unless there was going to be specified contact. The mother said she could not recall what had been said at the time. She got one of her friends to pass on a letter to Charlotte, even though there was no contact, although the mother said she was not aware of this. She applied to become the Honorary Treasurer of a child facility and the father said she did so knowing the children were attending there and would then see them but the mother said she applied for this not knowing the children were attending. The mother said she is confused about this but accepted that if she had been aware the children were attending a child facility it would have been a breach of the court order. I do consider that she applied for the job knowing the children were attending.

61. Reference was made both by the father and the Guardian as to Lily's recent Sports Day. On the Sunday following Lily's Sports Day, it had been agreed the mother and her father would attend Milli's to see Lily. However, at 11:30pm on the night before the Sports Day she sent an email that her father would also attend Lily's Sports Day. She said that if Lily had been unhappy with the unexpected attendance, then she would be unhappy. The mother, during the course of the Sport's Day, approached the father and U to serve Court papers on them. The mother accepted that she had been advised to serve Court documents by registered post but brought them with her and handed them to U. She did not accept she said to U "here are the documents, you must take them" and stormed off. The Guardian considered her behaviour inappropriate and she should have reflected how this action may have been perceived before it happened. Indeed the mother did say she apologised for the distress caused to the father, U and to Lily if she was upset (the father said Lily was upset at seeing her behaviour). She accepted that when she attended Court with a friend as a McKenzie Friend she denied she was in a relationship but in reality she was in a relationship with him.

62. The mother opposes the application for a shared residence order and points out that Dr Willemsen says at paragraph 106 of his report:-

"That she (the mother) will be from a psychological perspective even more alienated from the children should parental responsibility be granted to U."

63. The Guardian refers to the "no order" principle under section 2(5) of the Children (Jersey) Law 2002, the basis being that a Court shall not make an order unless it considers that doing so would be better for the child than making no order at all. She indicated that whilst she could see the reasoning behind the shared residence application when the father was in Guernsey, she cannot see that it is necessary if the Court grants the father leave to remove the children to Guernsey. U accepted that if they went to Guernsey it would be more difficult for the mother to subvert the court process.

64. Dr Willemsen's concern was that the mother is included in the life of the children and he is aware how quickly the mother can feel excluded and become agitated. His focus is on the children, mother and father and his concern is that by making such an order, it gives the children the message that their mother is further away from them. He is concerned about the psychological impact if such an order is made and it will:-

"counteract exactly what is needed in the case: for the parents to communicate more and better, and for such communication to take place between T and S. The children need to witness this re-establishment of the parental relationship."

65. Dr Willemsen said he felt that it was important the father takes responsibility as the father. It may be that U may feel excluded if no order is made, but she is not the mother. If for example handovers become difficult, it is for the father to take responsibility.

66. I was referred by the advocate for the children to the F and G (No 2) case, and given the recommendations and considering the best interests of the children in light of all the factors, I do not consider that there are sound reasons to depart from the recommendations of the experts.

The order

67. I find that the proposals of the Guardian are appropriate and balanced. Dr Willemsen supports the recommendations of the Guardian and I do not consider there is a sound basis to depart from their recommendations. I therefore refuse the application by the mother for a shared residence order with the father and the application by the father and U for a shared residence order. I am ordering that the children shall reside with their father and give him leave for him to remove the children from Jersey to live in Guernsey as soon as is practicable.

68. Having considered the issue of the mother's contact with Lily I will make an order in line with the recommendations of the Guardian but with specific provision for contact by the mother with Lily in Guernsey on Saturday the 23^rd August, 2014, from 10:00 am until 6:30 pm and on Sunday the 24^th August, 2014, from 10:00 am until 6:30 pm and for indirect contact by Skype/telephone twice during the week of the 1^st September, 2014, with no time limit on the indirect contact. The pattern of contact is then to commence as to month 1, week 1 in Guernsey on the 13^th September, 2014, from Saturday morning at 10:00 am until 6:00 pm on Sunday afternoon, and thereafter from Saturday morning at 10:00 am until 6:00 pm on Sunday afternoon or such times on the Saturday and Sunday as may be agreed between the parents, which may include contact commencing on Friday afternoon. This is to allow some flexibility if the mother wishes contact to commence on Friday afternoon. Likewise contact may start on Friday afternoon of week 3 of month 1.

69. The mother can have holiday contact with Lily to be taken in Jersey, Guernsey or away from the Channel Islands as follows to include two weeks (taken together) in the summer holidays, commencing in 2015 and one week at Christmas (to alternate on the Christmas period itself between her mother and father on a yearly basis), Christmas to be with the mother in 2014 and other contact as recommended by the Guardian in paragraph 92 of her report.

70. In the light of the recommendations made by the Guardian and Dr Willemsen, I am not making an order as to contact by the mother with Archie and Charlotte, but I accept and declare that contact, direct and indirect between Archie and Charlotte and their mother is in their best interests and I consider that the father will not stand in their way nor discourage such contact. Indirect contact has now commenced, and I have been informed that contact between the mother and Archie is to be arranged between them and that any contact between the mother and Charlotte will be arranged between them. I will order the father to provide the mother with regular updates about Archie and Charlotte's activities, progress, social and academic achievements on a bi-monthly basis and photos of all three children on a quarterly basis. The father is to apply forthwith to the Royal Court of Guernsey for a mirror order. I have taken into account that there is a "safety plan" in existence regarding the mother's mental health as it may impact on the children and the Guardian has informed the Court she will be seeking to ensure that this will be implemented as far as is possible in Guernsey. I have noted the father has agreed to reimburse the mother £120 for each Guernsey contact trip as specified in the court order.

Authorities

Jersey Authorities

A v B [2010] JRC 041.

B v A [2010] JRC 172.

In the Matter of Shared Residence of C [2010] JLR N 16.

B (LA) v B(DM) [2002] JLR 528.

H v T and B [2003] JLR N 26.

J v I [2013] JRC 157.

In the Matter of YY [2011] JRC 200A.

M v S [2003] JLR N 39.

R v V [1998] JLR 333.

S v A [2005] JLR N 48.