Family- application by the respondent for residence order and leave to remove from the jurisdiction.
Before : |
Carol Elizabeth Canavan, Registrar, Family Division |
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Between |
A (the mother) |
Petitioner |
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And |
B (the father) |
Respondent |
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IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF EDWARD (RESIDENCE ORDER)
Advocate B. J. Corbett for the Petitioner.
Advocate C. R. Dutôt for the Respondent.
reasons
the registrar:
1. The petitioner in this case is represented by Advocate Barbara Corbett and the respondent is represented by Advocate Caroline Dutôt. For ease of reference in these reasons I shall refer to the petitioner as "the mother" and the respondent as "the father".
2. The mother and the father were married in 2011.
3. Their son, Edward (this is not his real name) was born in 2011.
4. On the 4th September, 2014, the father filed divorce proceedings in Indiana, USA (subsequently withdrawn).
5. In October 2014 the mother made an application seeking assistance under the Hague Convention (subsequently withdrawn).
6. The mother filed a petition for divorce on the 24th September, 2014, and decree nisi was pronounced on the 19th November, 2014.
7. On the 5th December, 2014, the father filed a Form C100 in which he made applications for a Residence Order and for leave to remove Edward from the jurisdiction to go and live in Indiana.
8. On the 11th December, 2014, the mother and father were ordered to file affidavits setting out their proposals with regard to Edward's residence, a JFCAS report was ordered and the date fixed for the final hearing of the father's applications.
9. On the 28th January, 2015, it was ordered that Dr Bryn Williams and Dr Emma Peart be instructed to file a psychological report ("the report") containing an assessment of Edward and his parents, in particular to have regard to:-
(i) the level of attachment between Edward and his parents;
(ii) the parenting ability of the mother and the father.
10. The final hearing took place on the 17th and 18th March, 2015, with evidence from Dr Williams via a telephone link and direct evidence from the father and the mother on the first of those days. The JFCAS officer, Mrs Jane Ferguson, gave evidence on the 18th March, 2015, and the advocates of the parties made their submissions. Judgment was reserved but the order containing the decision was distributed on the 26th March, 2015. The decision, which had been a very difficult one to make, was that the father's applications should be dismissed.
11. Both parties were born with the same physical disability. In addition, the father has dyslexia. Edward does not have any physical disability.
12. The mother was born in England but has lived in Jersey since the age of 1 year. She was privately educated at School 1 and School 2. After gaining a BTEC qualification in business and finance at School 3, she studied for an HND in Business and Finance at Southampton Solent University. Whilst working in the finance industry she gained the Offshore Certificate in Trust and Company Administration. She is now employed at A Limited as a senior trust officer.
13. The mother purchased a two bedroom flat thirteen years ago where she now lives with Edward.
14. The father was born in Angola, Indiana and attended school there until he was 18 although from the age of 16 he underwent practical training in physical skills and obtained a Certificate of Completion in building and trade. Although the father found it difficult to deal with paperwork and reading, he was very skilled at practical things and as he said, if someone showed him how to do something, he could do it. He had various jobs after leaving school until Edward was born.
15. The father's parents separated before his birth. He had never definitely ascertained who his real father was. It is clear from the report that the father and his younger half-sister had been exposed to an early history of parental neglect and abuse perpetrated by his mother and stepfather, who both abused alcohol. Concern had been raised about the standard of their care when the father and his half-sister were involved in an accident with their mother who was intoxicated. The father, then aged 7, and his half-sister were placed into the care of Mr and Mrs D, the grandparents of his half-sister. The father considers Mr and Mrs D to be his grandparents.
16. The father lived with Mr and Mrs D in their home until 2006 when he moved into a self-contained studio flat in their home ("the flat"). The flat had been constructed by the father and his family and comprises one room which contains the living area, sleeping area and kitchen area. There is a separate bathroom.
17. The facts below are not disputed. Different interpretation of the facts by the father and the mother will be dealt with later in these reasons.
18. The mother and father met at a Convention held in Nashville, Tennessee in July 2010. After the mother's return to Jersey the parties stayed in regular contact by telephone and developed a long distance relationship. The mother visited the father in Angola in October 2010 for two weeks. The father visited Jersey for four weeks from the 27th December, 2010. Both parties returned to Indiana on the 31st January, 2011, the mother's employer having agreed to give her a sabbatical for three months.
19. The mother did not return to Jersey but stayed in Indiana, living with the father in the flat. The parties were married on the 1st April, 2011.
20. The mother was unable to work in the USA due to her immigration status until she was granted permanent residency status in July 2011. She looked for employment but was unsuccessful.
21. Prior to the birth of Edward the father worked at a farm store as a fork truck operator. However the mother and father agreed that he should give up his employment when Edward was born so that he could help with looking after Edward.
22. The mother had a difficult pregnancy carrying Edward, experiencing discomfort in her legs and hips due to her disability. Edward was delivered by C-section in 2011. It was not disputed that after the birth, the mother required and received a great deal of support from the father and also from Mr and Mrs D, in particular with regard to lifting and carrying Edward.
23. The mother suffered post-natal depression after Edward's birth and had been prescribed medication. The father believed that this depression had had a large impact on the mother-child relationship - she had been more emotional and had been in a different state of mind. The mother had advised Dr Williams that during her pregnancy, she had felt isolated away from her family and in pain. However she did recover from her depression although she accepted that this might have caused a problem with her bond with Edward at first.
24. After Edward's birth, the mother started to look for employment and applied to local banks and agencies without success. She finally found seasonal employment at the local golf course and when that employment ceased, she obtained employment as a door greeter in a local supermarket.
25. It was accepted by both parties in their evidence that the mother found it difficult to settle in Indiana and that she was homesick for her family in Jersey. Much was made of the mother's absences away from Edward and they are therefore set out in some detail. In February 2012 the mother went to stay with a friend for about a week. She then returned to Jersey for a visit as she had not seen her family for some time. In March 2012, the mother went to visit a friend of her father's in Tennessee for two weeks. The mother had not taken Edward on any of these trips but left him with the father because, she said, she could not lift him. In September 2012 the mother returned to Jersey to attend an interview. She successfully gained employment and returned to Indiana to prepare for the family's removal to the mother's flat in Jersey on the 20th October, 2012. The father said in his evidence that he had agreed to move to Jersey because he had wanted to make the mother happy and to try to make the marriage work. He also said that he had not been expecting to stay in Jersey - he had thought that they might return to Indiana at some stage. He said that he had given up something he loved to do in order do something that she loved. The family went back to Indiana on holiday for Christmas in 2012 with the mother returning to Jersey for work commitments on the 1st January, 2013. The father and Edward returned on the 4th February, 2013. On the 8th June, 2013, the father and Edward returned to Indiana so that the father could submit his application for a visa to allow him to live permanently in Jersey. This took until October 2013 when the mother went to Indiana to assist with the return of the family to Jersey. It was said in evidence that the longest period the father had been away from Edward was one week when he had been on a sailing holiday. Advocate Dutôt questioned the mother about her absences during Edward's early life, an average she said, of ten weeks per year. The mother accepted that she had been away without Edward but she said she had been going through a very difficult time, with the difficult pregnancy, financial difficulties and missing her family.
26. The family resided in Jersey until August 2014 when the father and Edward went to Indiana. They returned on the 17th October, 2014. This trip will be referred to in more detail in paragraph 31 below.
27. There are three incidents which were referred to during the course of the hearing. Again, the facts of these incidents are not disputed although different interpretations were given to them by the mother and the father.
28. The first of these incidents occurred in 2013 during the time when the mother was working in Jersey and the father was in Angola with Edward waiting for his visa to come through. The father had said that he needed a break from full time caring and therefore the mother had been sending money regularly to the father to enable Edward to attend nursery school in Angola. She subsequently found out that Edward had not attended nursery for very long. The father had been paying the funds over to his sister as payment for her babysitting Edward. The mother's view was that this was a misappropriation of her funds, not in the best interests of Edward and she found the action to be dishonest. The father said that Edward had gone to nursery for a while to give him a break. He had then decided to help his sister and had given her the money to look after Edward. The father did not consider that the money was "the mother's money". He said that as they were married it was their money and that would have been the same if he had been working. He accepted that he should have discussed this with the mother but he said he had been there and he had made the decision.
29. The second incident occurred on the 26th January, 2014. The mother was in the habit of taking her clothes for work the next day out of the bedroom on the previous evening so as not to disturb the father. On this occasion she had gone back into the bedroom to fetch a clean shirt. The mother said she had not been making a lot of noise but the father had hit her on the leg with a plastic coat hanger as she walked past causing a bruise. A couple of days later the father had grabbed the mother by the jaw and pressed his thumb on the left side. The mother visited her doctor and he had advised her to report the incidents to the police. The mother visited the police but having spoken with two officers did not take the matter further as she hoped that things would get better between them. The father said that they had not been getting on well at the time. He thought the mother had been spiteful by coming back into the bedroom and making a noise. He had lost his cool, he had not meant to hurt her. He expressed remorse for what he had done. The father could not remember grabbing the mother by the jaw - he said that he never done that as far as he could remember.
30. The third incident occurred on the 29th July, 2014. The mother had returned home at about 6:30pm to find the father sitting in his car with her brother. The father and his brother-in-law had been drinking and it is not disputed that the father was drunk. Edward had been in the care of his father that day and the mother was horrified to find that Edward had been left alone, asleep on the floor and locked in the flat. The mother asked a friend to collect her and Edward and she left the flat for the night to stay with her friend. The father and his brother-in-law had continued to drink and the father had not noticed until the early hours of the next morning that the mother and Edward were not at home. The father acknowledged that his behaviour had not been appropriate and that the incident was poor judgment on his part. He said that he had gone outside to have a cigar with his brother-in-law and he had thought that it would be better to lock the flat leaving the window open rather than leaving the door open. He had been drinking because he was unhappy in Jersey - he had wanted to chill out and blow off steam. The parties had been arguing a lot and he felt he was in a very stressful situation. Again, he expressed remorse, it had been a stupid mistake on his part and it would not happen again.
31. It is not disputed between the parties that things were difficult between them during the summer of 2014. The father was homesick and very unhappy although he had not explained this to the mother. He said that he found life in Jersey to be very difficult, he felt trapped in Jersey, he missed the outdoor country life in Indiana. This had caused frequent arguments between the mother and the father. The mother said she could not understand why he was being so nasty to her. When he finally did explain she immediately suggested that he should take Edward to Indiana for a three week holiday. She booked the flights to leave Jersey on the 23rd August, 2014, and to return on the 13th September, 2014. Completely out of the blue, on the 9th September, 2014, the mother had received divorce papers from a court in Indiana. She subsequently received an email from the father stating that he was not returning to Jersey and that he was not going to return Edward to Jersey. The father had stated in the divorce papers that he was resident in Indiana. The mother instructed lawyers both in Jersey and the US. The lawyers were able to provide the US authorities with information proving that Edward was habitually resident in Jersey. As a result, the father received a letter from the United States Department of State explaining that the mother was seeking assistance under the Hague Convention to have Edward returned to the United Kingdom. The father was advised to return to Jersey voluntarily with Edward and he did so on the 17th October, 2014. He did not return to live with the mother but moved into accommodation at E, the cost of which had been met by the mother. She had also provided him with a car and paid towards his living expenses. The father said that he had not realised that his actions might be considered as child abduction as Edward had dual-citizenship and had spent large parts of his life in the US. He had taken Edward on holiday with the mother's consent but at the end of the holiday he had not wanted to return to Jersey - the love between them had gone and he could see no reason for returning to Jersey. He said that he had not wanted Edward not to see the mother but he just did not want to come back. He said that he had given the mother the impression that it was a holiday because he had felt trapped - he did not think she would have let him take Edward if she knew that he was going to start divorce proceedings. Also, he did not think he had done anything wrong by not giving notice of the divorce proceedings.
32. One of the issues raised in the affidavits sworn by the parties, in their evidence and also in questions asked of Dr Williams and Mrs Ferguson was the issue of ongoing contact with Edward for the non-resident parent. I do not need to go into detail with regard to this evidence as after the overnight break the parties were able to agree a schedule of contact for the father should Edward reside in Jersey and for the mother should Edward reside in Indiana. The relevant schedule was contained in the final order.
33. The report was dated the 2nd March, 2015, and ran to some 39 pages. In his evidence, Dr Williams explained that he and Dr Peart had carried out independent assessments of the family. They had then met together to discuss these individual assessments and to jointly compile the report. Both Advocates questioned Dr Williams in relation to specific points in the report and I will limit the narrative of his evidence to those particular points rather than provide a summary of the whole report.
34. Dr Williams had observed Edward with his father at E, both outside while Edward and his father went for a walk collecting stones and later inside where there were further play activities, a meal and watching TV on a tablet. He observed that the interaction between the father and Edward had been playful and the father had been vigilant to Edward's safety. Edward was able to recall and tell Dr Williams about a park area he had visited with his father the week before. This recall led Dr Williams to believe that the activities he had witnessed were genuine and regular activities and not just "a roadshow" for the benefit of the psychologist's visit. The play between the father and Edward had been "absolutely lovely" - it had been easy, full of humour and joy. Dr Williams had had no reason to be concerned about Edward.
35. Dr Williams' observation of Edward with his mother had had to be indoors at her flat as the weather had been inclement. The mother had told Dr Williams that Edward had been tired when he returned from the father the previous day. She had asked Edward what he had been doing and had been told that he had been watching TV all day. This had not been consistent with what Dr Williams had observed the previous day when he had been with Edward and the father and he had been curious as to why Edward has said this to the mother. Dr Williams explained the use of the word "curious"- as a psychologist he wondered why Edward had said this to his mother. The word curiosity had been used not to criticise but to raise awareness of an issue. It could have been that Edward, an active little boy, wanted to get on with what he was doing next. He said that children of Edward's age do not have the cognitive ability to say "we did this, we did that" because they are not interested - whatever he had been doing was "done and dusted". Watching TV might have been the last thing he did before he came back to his mother. Children do feel split between parents and give the least information necessary. It may have been a "give them as little information as possible" reaction because he did not want one parent to feel better than the other. It could also indicate the beginning of the knowledge that a child has to play one parent off against the other or keep one sweeter than the other. Dr Williams had not seen any direct evidence of that during Edward's time with either parent but had advised the parents that they need to be aware and be vigilant because in terms of attachment behaviour Edward will seek as much security as he can get. Although Dr Williams was of the view that Edward was safe and engaged with both parents, he thought that Edward was more engaged and easy with the father than with the mother. During his observation of Edward with the mother, Edward's behaviour had been more challenging towards her but he commented that the observations had been carried out at different times of the day and in different locations and this might have caused the difference in Edward's behaviour. On the one hand he had been out in the sunshine collecting stones, on the other he was about to go to nursery. The challenging behaviour with the mother was a parenting behaviour issue rather than a fundamental attachment issue. Edward had played her up when he did not want to do what she wanted him to do. He had not been worried about this but he noted there had been no such behaviour with the father. He said that both parents were working very hard to help Edward with his toileting issues although he was more compliant with the father at doing what he was told. However these were not attachment issues - Edward had used his mother as a secure base when he needed security. His view was that both parents were perfectly adequate to care for Edward.
36. Dr Williams said that Edward was lucky to have two parents who loved him and who were in psychological terms "good enough". Again he was curious as to why there might be an argument to say that Edward was closer to the father than to the mother. Factually Edward and his father had been together, but separated from the mother, at a critical time of his development for ten weeks whilst waiting for the visa to issue. Edward and the mother had struggled initially in their relationship because of the mother's difficulty in coping with life in America and her mood after his birth. The flip side is that in Jersey the mother works, Edward is involved with other people in his maternal family, he goes to nursery. When he is experiencing life with his mother he has more people and more dynamics in his life; he is in a different place. When he is at E with the father it is more like being on holiday and again this might be a reason for the relationship seeming to be easier. If the father had been doing more routine things with Edward, Dr Williams said that he might have seen the tension observed with the mother. He was aware that the parties had a shared role in Edward's life but there was a sense that life with the mother, in town in the family home, with daily routines, was more "routine based" than life with his father at E. In addition he pointed out that the mother has total financial responsibility for the family and therefore has other competing demands to deal with other than just giving complete focus to Edward.
37. In the report, Dr Williams had mentioned that Edward was walking on his tip toes when with both parents. He was asked what the significance of this was. Dr Williams said that he had been curious about Edward in that he had some very minor curiosities around development and one of the indicators that would be looked at in respect of development was tip toe walking. This is something that children should move beyond. He advised both parents that they need to be open minded about possible autistic traits in the future and they both need to keep an open mind with regard to his level of ability. Edward's struggle with toileting might also be an indication and he advised the parents to be curious as he approached the age of 7 or 8 to see if he seems to develop social difficulties.
38. The report concluded that the father had developed a "care-giving attachment" as a result of his childhood experiences. He had needed to make sure that his own mother was alright and Dr Williams confirmed that this care-giving strategy of the father's might be influential in some of the decisions he had made concerning Edward. It might be that the father's experiences had made him someone whose own needs are met by caring for his son and his family. He had father attachment behaviour, shown by his interest and his commitment to being in a family, having a family and having a son. He had attended the Convention because he was desperate to have a family, he is very family and child focused and interested in being a father.
39. When asked about the father's removal of Edward from Jersey and his failure to return on the due date, Dr Williams felt that the decision not to return may have been underpinned by his desire not to repeat his own experience of abandonment by his father which resulted in over identification with the child. The father sees himself as the person who connects with Edward. He had wanted to find a partner at the Convention so that he could have a family, he wanted to be an active parent which he said, in part, came from his own experience of his sense of abandonment as a child. Dr Williams accepted that the father would find it difficult to be separated from his son and that is maybe why the decision to remain in the US was probably made in the way that it was.
40. The father had told Dr Williams that he had not intended to keep Edward from the mother. Dr Williams was asked if this could be correct given the care-giving strategy he had developed and his concern with abandonment on his part. Dr Williams agreed and said that this was why things had worked so well for the father in the US. He had a marriage and even if the marriage was not all he thought it would be, the marriage had given him a son and having his son was more paramount to him that having the mother as his wife. He went on to say that things might have been different if the mother had needed the father's care or had been more dependent on him as the father's own mother had been.
41. Dr Williams was asked for his comments on the baby-sitting money incident and whether or not the fact that he paid the money to his sister rather than the nursery was evidence of his care-giving strategy, whether or not his focus on family had given him the opportunity to give his sister money, and at the same time, the opportunity for Edward to play with his cousins. Dr Williams said that he could not comment on that, other than to speculate. However it had reinforced the fact that the mother and the father have different expectations and very different parenting styles. He said that the one word that described the father was "family". The father's family was very important to him - he had told Dr Williams that he did not need money - they celebrated as a family every week by having lunch together. It was possible he had given the money to his sister, to make sure she was taken care of, without appreciating that it was the mother's hard earned money and that it was not the mother's job to subsidise her sister-in-law.
42. The mother's attachment strategy had been formed by her attachment with her parents. She had been encouraged to achieve by her parents and she had her own experiences which had been formed by her own internalisation as to what she had been given as a child. An example of this was her drive to determine that her disability was not going to be a barrier to her or to what she could achieve. That could be seen in her parenting - he said she is "dead keen" on being a parent but wants to do it in her own way. Dr Williams said that just because she sends Edward to nursery does not mean that she is prioritising anybody over anything else.
43. Dr Peart and Dr Williams gained from their work with the mother that her parents had had expectations, they were people who expected things from her and were driven to make sure the mother succeeded in overcoming any difficulties arising from her disability. Her internalisation of that experience had, in part, contributed to the way she lives her life as an adult. An example could be seen when she was working in the supermarket in the US - she wanted more from her life than packing supermarket bags in mid America - she knew she was better than that and that, in part, came from her family experience of achievement and expectation. The father had expressed concerns that if he lived with the mother Edward might grow up with the same pressure. Dr Williams held the view that he would not and that wherever Edward resides his long term needs would be met but his experiences in each place would be different. He said that whatever Edward gained in one place he would lose out in the other and equally the other way around. He would have different experiences in the different places but he emphasised that wherever Edward lives it would be of the utmost importance that Edward believes that people are there for him (my emphasis) unconditionally and that people did not use him to deal with their own early histories or their own relationship problems.
44. In the report it was stated that the mother's need to be in employment had "overridden" her child's needs. Dr Williams was asked to explain what he meant by this. He explained that in terms of achieving self-efficacy, people need to feel good in themselves about what he or she does as a person in order to perform a job, whatever that job may be. If a person cannot perform that job then he or she will not meet anyone else's needs. Dr Williams had picked up from the mother that being a successful valued leader in business was very important to her and it had been convenient for her to have a partner who was exactly the opposite. When the mother and father had been together they had worked perfectly as a team. Now that they were no longer a team, he had no concerns about Edward just because the mother would be working. Edward would have a good education at the nursery in Jersey, where there is a high staff/child ratio and also at school. It was more important for Edward to know that both parents are here for him and that they had understood the issues raised in the report. He did not have a problem with the mother being a successful business woman.
45. Dr Williams was asked about the incident in July 2014 involving alcohol and whether this was a relevant issue. Although he and Dr Peart had not liked the fact that the incident had happened, they were satisfied that the father does not usually drink to excess and that alcohol is not a problem in his life. He had no evidence of any repetition of this kind of event.
46. Dr Williams confirmed that the father's dyslexia would have no impact whatsoever on his parenting ability. The father had found ways of managing his dyslexia when with Edward e.g. reading programs on the tablet.
47. Dr Williams was asked if he thought that the father would promote the mother to Edward in a positive way in future. He replied that neither parent had spoken about the other in a negative way but both tended to be positive when talking about the other. The father had not given the impression to Edward that the mother had no role in his life. However, Dr Williams said that if either parent does not prioritise Edward or says anything negative about the other or undermines the other, then Edward will pick up on this and it will cause him stress.
48. With regard to ongoing contact, Dr Williams said that wherever Edward resides he will suffer a loss. Both Dr Peart and he felt that the parents would get through the disappointment and make good what they can. They will be living in different jurisdictions because of immigration rules and their own preferences but Dr Williams was of the view that parents can successfully live on different continents and allow children to have a meaningful relationship with the other. He believed that the father and the mother would "get there". In his evidence the father said that he would promote contact, he would want Edward to have contact with the mother, he would honour any order made by the Court and would register any Court order in the US. He said that he would be positive about the mother to Edward.
49. Dr Williams was asked if he thought that the father would stand by any arrangements agreed or ordered with regard to ongoing contact. He replied that he did not know. He said that both he, Dr Peart and Mrs Ferguson had determined that the father does not have a good impression of Jersey. He had not made himself at home during his stay in Jersey. In the short term he thought that the father would abide by contact arrangements particularly if there were mirror orders in place. However he went on to say that American Courts are very independent and other orders could be put in place and the decision of the Jersey Court not respected. He expressed more concern with regard to the crossing backwards and forwards between the US and Europe which could be exhausting for a child of 9, 10 or 11. If either of the parents was not up to promoting trips to the other then the situation might be more problematic. Dr Williams said that he had not seen anything to suggest, other than the slight negative attitude towards Jersey, that the father would not honour the relationship between Edward and his mother. He went on to say that if the father did do this, he would be responsible for doing the very thing that he experienced as a child himself. Edward would feel abandonment by the mother whether or not it was her responsibility or not for making that happen. His opinion was that that would be a terrible thing to do as a parent. It would be contrary to the father's care-giving strategy.
50. Dr Williams confirmed that Edward had been able to manage the time away from the mother in his early years. Although Edward's reaction to longer periods of time away from the father had not been tested, he said that Edward has now internalised the fact that the father and he can sleep in different places in the Island and that he can be away from his father. Now that he is a verbal child he is able to mentalise better at this age. Dr Williams said that could not measure time away from the mother in Edward's early life against time away from the father because no-one knew what Edward's experience of being separated from the father for a period of time would have been like as a pre-verbal child. He emphasised that it is important that if the parents between them offer a secure base, even though one or the other was not present, he would be able to rely on the safety that comes with the other relationship. Dr Williams took the view that Edward is coping even though he is not living full time with the father. Dr Williams felt that Edward would cope even if he was away from the father for longer periods because of his age, the good experiences he has had with his parents and knowing full well that the world does change sometimes. It has changed ever since he was a little baby. He said that he might experience loss and sadness but if he never saw one parent again, he would survive.
51. Advocate Corbett asked if the father's early history was relevant to the father's relationship with Edward. Dr Williams said that the work undertaken by Dr Peart and the father had dealt with the impact of his early experience. He was not suggesting that the father's experiences would adversely affect his relationship with Edward or that there might be a repetition of the familial history of abuse.
52. Advocate Corbett asked Dr Williams how the difference between the parents in social activities and social interaction would impact on Edward. He replied that there was a likelihood that he would have more reliable people such as teachers and grandparents and after school care when he is with his mother, than perhaps with his father who would be a more active parent. However neither of these would cause a problem as they are just differences in style. The differences in the parents' styles, their ambitions and expectations would colour Edward's life and the risk would be that rather than celebrating the differences they would undermine them by battling over who has the better style. He said that this was where his greatest anxiety lay. He said it was important for both parents to support Edward to manage whatever life might throw at him and if he does develop autism they would need to help him deal with it wherever he lives.
53. Advocate Corbett asked if Dr Williams thought that the father's departure to America with Edward in August 2014 had been for his own benefit, for his own reasons and not for Edward's benefit. He replied that that may have been the case but he did not see, from the family perspective, they were any different to the reasons why the family was in Jersey. Both parents have their needs as people and they are not conducive to family life now that they have a son.
54. Advocate Corbett pointed out to Dr Williams that the family's relocation to Jersey had taken a great deal of discussion and planning. When the father had taken Edward to America there had been no planning and no discussion and she asked if he thought that was in Edward's best interests. Dr Williams said that he did not think that the father's decision to go back to America under one pretence and do something else was conducive to thinking about the best interests of Edward. It was an inappropriate decision because the lack of anticipation and planning had the risk of making Edward anxious. Parents have a primary responsibility to help children to manage their anxiety not to create anxiety in a way that this unpredictable move would have done. Dr Williams did not know if the father would be likely to do the same thing again.
55. Dr Williams was unwilling to answer questions put to him by Advocate Corbett concerning the effect on Edward of living in an environment where there had been domestic abuse. He said that neither parent had conveyed to him that the marriage was fundamentally abusive but rather that it was a marriage that did not meet either of their needs as adults. He could not answer the question unless the Court advised him that the father had been found to be the perpetrator of domestic abuse. He was only prepared to say that if a child was living in a family where there was domestic violence and the child was exposed to that domestic violence, the psychological evidence was unequivocal that this would be extremely damaging to children. There would have to be a proper forensic assessment of the father if it was believed that the father was responsible for perpetrating domestic violence in the family.
56. Dr Williams confirmed that there was a good enough attachment between Edward and both parents. He also confirmed that although Edward might suffer loss, being with one parent over the other would not be any more damaging.
57. Dr Williams was asked by Advocate Corbett for his view on the father's compliance with ongoing contact. The difficulty he saw was that the father was passionate about going home and he wanted his son to go with him. He had wanted the mother to live in Indiana with him when they met. Dr Williams was concerned that because the father was in such a bad place about Jersey it would not be easy to see him being positive about Edward and his family life in Jersey. Conversely, the mother had remarkably told him how lucky Edward was because he had British and American passports and he would have every opportunity to achieve things in both places. She celebrated the fact that her son was American. The father had not given Dr Williams the impression that he celebrated the fact that Edward was from Jersey.
58. The fact that the father is dyslexic was not relevant to his parenting skills but what was relevant was the fact that the father acknowledged that he struggles with reading. He talked positively about his son's education and he had found ways of helping Edward with books and by using the tablet to listen to stories. In his evidence the father said if he did have problems with completing forms he would ask someone to help him - his family would be willing to help him with Edward's educational needs - they would always be there for him.
59. Advocate Corbett asked Dr Williams if he thought it was appropriate for a young child to be involved with such a heavy gun culture as there is in America. He was unable to answer but he did say that he had no reason to believe that the father would place his son at risk any more than the mother would. Neither he nor Dr Peart had identified that the father would pose a deliberate risk to his son in terms of fire arms or any other issues other than the undermining of his Jersey heritage and the potential that he would not be as supportive of his relationship with the mother as she appeared to be with him.
60. I asked Mrs Ferguson if anything had arisen from Dr Williams' evidence upon which she would like clarification in order to assist her in making recommendations. During her interview with the father, she had asked whether or not Edward would stay with the mother on her visits to America if Edward was living with him. The father had said that he would let Edward choose whether or not he wanted to stay with her. Mrs Ferguson asked for clarification of Dr Williams' views as to whether or not a child should be given a choice about contact. Dr Williams said that he had been curious about the father's comments. He said that in providing a balanced parenting opportunity for a child it is important to achieve nurture, care and love, stimulation but also to provide limits. He wondered whether the father's comments uncovered something about the father's commitment to Edward's relationship with the mother because by giving Edward choice he might choose something else that he would prefer to do. He said that the resident parent has the responsibility to make sure that Edward will grow up with a full respectful knowledge and awareness of each of his parents because they are what made him a whole person. To give a child a choice at a young age, certainly up to the age of 12 or 13, could be dangerous as the child would always be likely to choose the best option.
61. In her report Mrs Ferguson had expressed her concern that the father viewed Edward's contact with the mother in the same way as one would treat a visiting friend or relative as he had said that the mother could see him at any time. Mrs Ferguson had been of the opinion that it should be more than that - the mother should have the opportunity to parent the child, not just to see him. Dr Williams thought it depended on the extent to which the father and mother were able to co-parent at some functional level from a distance. He had understood that they would both do everything possible to have a meaningful relationship with everyone in Angola and in Jersey who was relevant to Edward. Again, he expressed his concern that the father was not in a good place as far as Jersey was concerned. He said that caution might be needed not to overstate his negativity. He went on to say that there might need to be caution of the fact that the father had not taken on board the fact that his primary responsibility to his son and to the mother was to make sure that the mother and Edward have a good relationship. He thought it was probably a matter for the Court to decide, on balance, whether it felt that all the evidence points towards the father being genuinely committed to promoting the relationship. He felt that there was more confidence in that from the mother.
62. Mrs Ferguson had acknowledged the different cultures and although they are different neither is right or wrong. However, in America there would be reliance on benefit and on free health care and free food programmes for people who are on low incomes. She wondered if there would be a psychological impact on a child if there was no drive to achieve, but just take what is needed from the State. Dr Williams did not think he could answer that as a psychologist. He had not gained the impression from the father that he was a scrounger. Both parents have made choices and both must do everything positive to promote a positive image of the other with Edward irrespective of where they live.
63. Dr Williams was not asked for his opinion as to whether Edward should reside with the mother or the father. He said, as outlined above, that both were good enough and there were no attachment issues for either parent. However, having heard his evidence, listened to it again on tape, I formed the opinion that if he had been asked he would have said that on balance Edward should remain in Jersey with the mother.
64. Both parties accepted in their evidence that during arguments throughout the marriage they had said cruel and unkind things to each other. The father had called the mother "handicapped", the mother had called the father "illiterate" - they had both said things in anger. As the mother said in her evidence, they had both been as bad as each other.
65. The father was asked to describe his life in the US and what life would be like for Edward if he lived in the US in future. The father explained that he likes to hunt and fish, he liked working on cars, going to friends, mowing the grass - Edward would be able to do these things with him. His lifestyle involved helping friends and neighbours and he said that there were always children around. Mr and Mrs D have 7½ acres of land and Edward would be able to ride around in his electric car. He would go to church with the family, ride on tractors and so on. He did not agree that there would be more activities for Edward in Jersey. He said the people visit the US to engage in activities. There were plenty of places they could drive to; they were used to driving in the US. Other activities he mentioned were playing with his sister's children, going to football games, birthday parties at Mr and Mrs D's house, meals with friends and family. He held the view that there would be more social interaction for Edward in the US than in Jersey - he said he has a bigger network of friends and family, although in his evidence he also said that he only had one friend named F which was not married and did not have children.
66. The father said that he would commit to send Edward to nursery two days each week. If Edward went to live with him in the US the father would not go back to work until Edward started school because he wanted to make the most of this time with Edward. He would look for work if Edward remained in Jersey.
67. The father was asked questions by both Advocate Dutôt and Advocate Corbett about the gun culture in the US, about his use of guns and an incident described in the mother's affidavit of the father taking a gun concealed in Edward's nappy bag on a visit with the mother and Edward to Fort Wayne. The father explained that Fort Wayne is a large city. In the US people have the right to bear arms, the right to carry guns, the right to pack a concealed weapon for personal protection. That was what he had been doing, although in answer to a question from Advocate Corbett he said that he had not been scared on the visit to the city. He had not thought that he would need the gun but as he was allowed to carry a gun for personal protection that was what he had done. The gun was in the nappy bag as he had been carrying the bag. He said that he did not think that a "bad guy" would think that he had a gun in the nappy bag. He talked about recent shootings and massacre of people in France and said that if one person was armed and shot those men before they massacred a lot of people, then that would have taken care of the situation. He said that he would have just saved a bunch of people by taking out the guy who was killing people for no reason. He said this was the culture difference. Jersey was not his "cup of tea" because of the big difference in the culture, the humour, and the things people talk about. In answer to a question from Advocate Corbett he said that he was only in Jersey because of Edward but he had always hoped that they would return to the US at some stage. He had never thought of Jersey as "home". He did not agree that the family had moved to Jersey so that Edward could have a better life - they had moved because the mother had not been happy in the US, she had not been happy in her work - she did not have the "posh" life she wanted. He had wanted to make her happy and therefore he had agreed to try and live in Jersey. The mother's evidence was the father and mother had made a joint decision to permanently reside in Jersey. The visa application was for a spousal visa. They were in the tax system as husband and wife, the father's social security contributions were covered because he had been looking after Edward for three days each week. They resided in Jersey and it was not, as the father said in his evidence, the case that he would move back and forth between the US and Jersey.
68. Advocate Corbett asked the father how many guns he has and at first he replied that he had several. She then asked him how many guns he had for personal protection and he replied that he had sold his handguns and he only had a black powder pistol left. He had sold them because he did not need them anymore because of Edward. He still has rifles and shotguns.
69. In answer to a question about the gun cupboard in the flat, he accepted that it could be moved, although it was locked and the key was hidden, the guns were not loaded. His guns were mainly for sport or hunting or for personal protection. He said that a gun is a tool which needs to be treated with respect. He would teach that respect to Edward, when he reached 12 or 13, and teach him not to point at things that he was not planning to shoot or kill.
70. The father was asked how he would promote Jersey to Edward. He said that he would tell him that Jersey is where the mother lives and although he himself did not like Jersey, he would not push his views onto Edward. He believed that Edward would be better living with him in the US because he would have a better life and more opportunities than he would in Jersey.
71. The father confirmed to Advocate Corbett that he had not made any arrangements for Edward to attend nursery or kindergarten - he said that he had not thought about it although he knew of nurseries in the area and he felt sure that he would not find it difficult to obtain a place for him.
72. The father gave evidence that Edward's health care would be covered in the US via a programme called G. He produced a card to show that he was covered.
73. The father accepted in his evidence that while living both together and apart in Jersey the mother and the father shared the care of Edward. The mother described her daily routine with Edward since his return to Jersey, getting him up, dressed, taking him to nursery, collecting him and evening activities. The mother said in her evidence that she hoped that Edward would go to a private school. She had already put his name down for School 4. She believed that the standard of education would be better for him in Jersey. The healthcare system in Jersey is better and is free. She said, by way of an example, that if Edward had an accident he could be treated in the Accident & Emergency Department for free. In America the hospital would require the production of a credit card before treatment could be obtained. She did not have sufficient knowledge of the health programme referred to by the father.
74. Both parties agreed that when Edward was living in the US with the father while waiting for the visa to issue, there had been Skype contact with the mother on a daily basis at first. The father had brought the contact to an end when the mother and Edward were saying goodbye because he thought that Edward was getting upset because of the way the mother was saying goodbye. The mother, on the other hand, said that Edward was upset because he could not touch her or cuddle her. There had been daily Skype contact between the mother and Edward during the holiday in August 2014 until the divorce papers had been served. Thereafter Skype contact was sporadically arranged through Mrs D.
75. In her report Mrs Ferguson set out the reasons why the mother took the view that it would be in Edward's best interests to remain with her in Jersey and which had been set out in detail in the mother's affidavit. In summary she wrote that the mother's reasons were that:-
(i) the mother had accepted that she had experienced difficulties with Edward's physical care as a baby because of the physical limitations which had been exacerbated by the fact that Edward had been delivered by C-section. This was no longer the case as the mother felt physically able to care for Edward now that he was older;
(ii) the mother felt that she had as good a relationship with Edward, if not better, than his relationship with the father;
(iii) the mother has financial security in Jersey, Edward would have access to free healthcare, including speech and language therapy as well as free education although she had already put his name down for School 4.
(iv) the mother had concerns about the gun culture in the US and the presence of guns in the flat;
(v) the effect on Edward of the three incidents (mentioned above in paragraphs 28, 29 and 30) ("the three incidents").
76. The father had told her that he thought it best for Edward to move to Indiana with him because:-
(i) he had been Edward's primary carer since birth;
(ii) the family had lived in Indiana for a period of time and had extended family there familiar to Edward;
(iii) the benefits of living in the US outweigh any benefits gained from living in Jersey;
(iv) the mother was unable to care adequately for Edward.
77. With regard to the three incidents, the father had told Mrs Ferguson that whilst he accepted that the incidents had occurred he did not accept that any of the incidents should have caused the mother not to have trust in the father.
78. Having considered the welfare check list, Mrs Ferguson's conclusions in her report were, in summary:-
(i) Edward's physical needs were being met by the parents in the current shared care arrangement;
(ii) both parents love Edward and demonstrate this to him in different ways but in circumstances where the father and the mother had not taken a joint approach there might have been a negative impact on his emotional well-being;
(iii) Edward's educational needs were being met although the mother and father have different ideas of how the needs should be met. The mother believed that Edward should be in full time nursery whilst the father believed that Edward should spend some time at nursery but more time at home with him;
(iv) wherever Edward resides it is very important that the resident parent is very positive about the non-resident parent and that face to face contact, Skype contact and telephone contact are actively encouraged and supported;
(v) there would be a significant risk of Edward suffering emotional harm if the parents' relationship remained as at present;
(vi) the father had insisted that everything he did was motivated by a desire to take care of Edward's interests and yet he appeared to have no regard for any views that the mother might have;
(vii) whilst it was clear that the father was unhappy living in Jersey because of the difference in the two cultures, he gave no consideration to the fact that the mother had had similar experiences when she was living in Indiana;
(viii) she was concerned that the father's attitude towards the mother had the capacity to impact on Edward's emotional health as any perception on his part that the mother had no interest or part to play in his life might lead Edward to feel abandoned by her.
79. In her conclusions (again in summary) Mrs Ferguson took the view that:-
(i) the father's primary motivation for the removal application was because his marriage had broken down and he wanted to return to his family in the US;
(ii) the father had little, if anything, positive to say about the mother and her role in Edward's life so that she felt there was a high risk that a continuing relationship with the mother would not be promoted by the father resulting in Edward having a negative opinion of his mother;
(iii) whichever parent did not get a residence order would be devastated;
(iv) before considering removal from this jurisdiction the Court needed to be convinced that the father accepted that Edward needs his mother to remain part of his life;
(v) contact with the non-resident parent must be actively encouraged and promoted.
80. Mrs Ferguson's recommendation with regard to removal was:-
"I recommend that Edward remains within the jurisdiction of Jersey unless the Court can be completely satisfied that B will promote the relationship between Edward and his mother and that there is a legal framework to ensure that and Order made by the Court must be adhered to."
81. In her evidence Mrs Ferguson stated that she had not found this case an easy one upon which to make recommendations. She said that all removals from the jurisdiction are difficult because there is no compromise, no middle ground. In this case the mother and the father would end up in different jurisdictions as the mother had made it clear that she would remain in Jersey and the father had made it clear that he would not remain in Jersey under any circumstances. The father had been the primary carer as he had had the most contact with Edward and the mother had been absent from him for periods of times. She said that one would generally look at a child remaining with the primary carer but in this case she had had serious concerns about the father's attitude towards the mother, about his opinion of his care giving of Edward and the disrespect he had shown to the mother's different parenting style.
82. Mrs Ferguson said she had had concerns about whether the father had been totally honest. She said that she had been concerned about, for example, the incident with the coat hanger. During her interviews with the father and the mother there had been a dispute as to whether or not there was a bruise. She had almost been less concerned about the bruise rather than the motivation for the event. She had found the father's attitude concerning as it suggested an unreasonable level of control. She went on to say that, having heard more details given in the evidence of the father and the mother, it remained a concern. She was troubled that the father thought that getting more sleep was more important than the mother getting ready to go to work - the mother deserved to be hit with a coat hanger, with or without a bruise, just because she had forgotten to take her shirt out of the bedroom the night before. In her opinion, this showed a disrespect of the mother. She did not believe that this had been a one off incident. Although Mrs Ferguson recognised the fact that the father had said he was sorry for the incident, she pointed out that he had said he was sorry about all sorts of serious mistakes he had made. She went on to say that if the father disrespects the mother it would lead her to be very concerned that he would not promote any relationship between Edward and the mother. Although the mother might have been disrespectful to the father, Mrs Ferguson had heard nothing to suggest that the mother had misappropriated money or physically abused the father or cut Skype contact off because she did not think that the father was doing it properly. Mrs Ferguson's concerns were about the father promoting contact but also that Edward would be given a negative opinion of the mother. Although she had not heard the father say anything disrespectful directly to Edward, she was concerned about Edward hearing things or being in the flat, for example, when the coat hanger incident happened.
83. Advocate Dutôt put it to Mrs Ferguson that the mother could also be negative about the father. She had been disrespectful to the father. Mrs Ferguson accepted that the mother had been disrespectful but she retained her opinion that there was much more evidence that the father's disrespect of the mother went much deeper than the other way round.
84. Mrs Ferguson was asked what other incidents showed this disrespect. She listed the coat hanger incident, the misappropriation of money, the issues about Skype contact. Advocate Dutôt put it to her that "misappropriation" was a very strong word to use in relation to the father giving his sister the money sent to him by the mother for nursery fees. Mrs Ferguson replied that the mother had made it very clear that the money was to be used for nursery fees. The father had not spent it on nursery fees but had given it to his sister and in her view, this was misappropriation of money. The father had told Mrs Ferguson that he thought that his sister needed the money more, that the mother should be concerned about family, it was her family. The father did not seem to think that the mother had sent the money to be spent in a way that would benefit Edward. She said that that did not count in the father's eyes - the sister needed the money. Advocate Dutôt put it to her that this could be because the father and the mother had different value judgments, the mother values success and the positives that nursery could bring whereas the father placed emphasis on family. Mrs Ferguson said that she had understood that the father had said he needed a break and he wanted money sent to him so that Edward could go to nursery. That is what the mother had done. The father had then changed his mind with no discussion and given the money to his sister. She was of the opinion that this was bigger than just a different emphasis. She was asked what impact this had on the father's application and why the father should not be allowed to take Edward to the US because of this incident. Mrs Ferguson replied that she thought that the father's honesty should be questioned.
85. Mrs Ferguson was asked if her concerns would be allayed if the father gave an undertaking that Edward would go to nursery two days each week if he lived in the US. She replied that she did not know whether such an undertaking would mean anything in America.
86. With regard to the Skype contact, Advocate Dutôt said that the father had given evidence that he had brought the Skype to an end when the mother and Edward were saying goodbye because the mother was making Edward upset because of the way she was saying goodbye. Mrs Ferguson's point was that he had controlled the situation, the mother had chosen to say goodbye in the way that she did but the father did not think this was right and so he had stopped the contact. A further concern for her was that the father had been very clear that the mother could not care for Edward and he took the view that he knows how to care for Edward and his way is the right way. Mrs Ferguson was asked if she had asked the father why he thought the mother could not look after Edward. The father had talked about the mother's depression and her physical abilities. Mrs Ferguson said that she had not realised until she heard the mother's evidence the amount of care that the mother does for Edward when living in Jersey both during the marriage when the father and mother were still together and since their separation e.g. getting Edward up, getting him dressed and to nursery - she had wrongly assumed that the father did all those things. The mother was capable of doing these routine things. She had managed to care for Edward. Even if she has support from her family, Mrs Ferguson could see no difference between that and the father living within his grandparents' home and the support that they give him.
87. Mrs Ferguson said in her report and in her evidence that the father had had absolutely nothing positive to say about the mother. He had not called the mother names but he had said that she could not care for Edward, that he was the only parent who could care for him. He had been derogatory about Jersey; he could not see anything good about Jersey for him and for Edward because the culture and life style in America was better. That is where he had to be with his people and that is where Edward needed to be. She felt he was being derogatory when he said in evidence that the mother wants to live in Jersey because she likes the "posh" lifestyle. Mrs Ferguson was careful to say that the father and the mother have different life styles but her view was that one should not be pitched against the other. However she did not think that the father took the same view.
88. Advocate Dutôt asked Mrs Ferguson about her concerns that the father might not promote contact in the US whereas when he had been in America for long periods of time with Edward he had promoted Skype contact every day. Mrs Ferguson agreed that this had happened but pointed out that they had been married and together at that time.
89. Advocate Dutot put it to Mrs Ferguson that the father has been willing to do handovers, he was willing to have a conversation with the mother about the whereabouts of various items of clothing, he had shown that he was willing to work with her. Mrs Ferguson agreed that he was doing those things but she thought that circumstances would be very different if he was granted a sole residence order. She agreed with Advocate Dutôt that the mother and father would need to speak to each other if ongoing contact was to work out.
90. Mrs Ferguson was asked if some of her concerns about ongoing contact would be eased if the final order was registered in Indiana. She said that this would ease some of her concerns.
91. Advocate Dutôt put it to Mrs Ferguson that the mother might be saying all the right things to her face but the mother still considered the father to be illiterate, she had called him stupid, she had raised his literacy as an issue in a text the previous week. This could be seen to be the mother being equally negative about the father because of the breakdown of their relationship but she was a bit more careful about hiding it. Mrs Ferguson said that that was not the impression she had and she did not think, from reading Dr Williams' report that was the impression he gained. The mother had not told either Dr Williams or Mrs Ferguson about what had happened with the Skype contact whereas many other people would have talked about that and said how unkind it was but she had not done that. She did talk to Mrs Ferguson and to Dr Williams about the benefits for Edward being of dual nationality, his dual heritage, going to America and seeing his extended family there, about Mr and Mrs D being kind people. She had told Mrs Ferguson about the father's difficulties in reading and writing but she had said that he was very good at fixing things and that they made a good team. Advocate Dutôt put it to Mrs Ferguson that the mother had given Mrs Ferguson an image of saying all the right things but behind the scenes she was saying something different. Mrs Ferguson said that that was not her assessment of the mother.
92. In her report Mrs Ferguson had written:-
"He does not even think about the fact that A may have had similar experiences (i.e. about homesickness) when she was living in his home country".
Mrs Ferguson said she had made that statement as a result of a conversation with the father about the abduction. He had told her that he had not meant to do anything wrong, he had not meant to keep Edward from the mother but he had needed to do it. She had asked him how he thought the mother might have felt about his actions and he had told her that he had not even thought about it. She had also asked the father how he thought the mother might have felt when living in America and he did not seem to think that was an issue. She had been depressed, it was difficult. Advocate Dutôt put it to her that the father had moved to an entirely different country to try and make her happy, not the action of someone who had not thought about the mother's feelings. Mrs Ferguson said it was questionable whether or not he had moved to an entirely different country to try and make her happy inasmuch as he had said in his evidence he was never really intending to move to Jersey on a permanent basis. He had said that he would come and go. The father had wanted Mrs Ferguson to understand how unhappy he was and the incident with the coat hanger and the incident in July 2014 had occurred because he was unhappy and homesick. In Mrs Ferguson's view he had not afforded the mother the same sort of understanding. Advocate Dutôt referred Mrs Ferguson to a paragraph in the report:-
"B accepted that A had found living in America difficult. He said that she had found it hard to find work that allowed her to have the kind of lifestyle that she appeared to have enjoyed prior to that marriage."
and put it to Mrs Ferguson that that was evidence of someone who was giving thought to whether or not the mother was happy. She agreed that it was.
93. Advocate Dutôt put it to Mrs Ferguson that the father had said that he would have liked his mother around when he was a child and that was a reason why he would support contact with the mother. Mrs Ferguson replied that there had been nothing in the interaction that she had had with the father which had given her that impression.
94. Advocate Dutôt asked Mrs Ferguson about her concerns about the mother's overnight contact with Edward should he live in America and the fact that the father had told her that he would give Edward the choice as to whether or not he went to stay overnight with the mother. She said that the father had made it quite clear to her that it would be Edward's choice. She had sought clarification from Dr Williams on whether or not a young child should be given a choice but she had not had a lengthy discussion with the father as to why he would give Edward a choice in the matter.
95. Mrs Ferguson was asked if the information provided with regard to the health care system in Indiana had eased her concerns. She replied that she did not know if she had sufficient understanding of the scheme because of the use of the word "may" and the references to income bands. She had sought clarification from Dr Williams about living on benefits because the father had made it clear that he would remain on benefits as he wanted to be a full time carer for his son. He had spoken in derogatory terms about the mother's financial position inasmuch as he described it as the posh lifestyle, spending money going out for meals whereas he believed he could do things for free. She had asked for clarification from Dr Williams because she was concerned that Edward might not be encouraged to achieve. Advocate Dutôt put it to her that Mrs Ferguson had created the impression that the father was someone with no drive but in fact he was someone who had chosen to care for his child until he went to school. Mrs Ferguson answered by comparing the father's position with mothers who stay home and look after their children. Mothers who stay at home will ordinarily do other things as well, become involved in other things with or without the children. The father had talked about getting involved in cars, agriculture and mowing lawns but these were adult things - he had not been involved in toddler groups or other things for parents and young children. He said in evidence that he had not socialised in Jersey with Edward but had got to parks, shops or on nature walks.
96. Mrs Ferguson confirmed that she had observed Edward for an hour and that Dr Williams had observed for 3½ hours, a longer period of observation. She also confirmed that she and Dr Williams had seen different things. Advocate Dutôt asked her why she had felt that the relationship between the mother and Edward was warmer than with his father given the fraught contact Dr Williams had seen between the mother and Edward and the contact she had seen. Mrs Ferguson said that she had seen Edward really snuggled up to the mother, looking at the pictures in a book together and there had been more language between them. She was not saying that the relationship between Edward and the father was not warm - she had had to think long and hard about what she had observed in the two contact sessions and about what the differences were between the relationships was and the interaction between Edward and the mother and father. It had been very difficult to compare because they had been in very different situations and circumstances. When she had seen the father it was a beautiful sunny day but it was lashing down with rain when she had seen the mother. They had been very different experiences - Edward had been at nursery in the morning of her visit to the mother - he had been out for the day when she had visited the father. Mrs Ferguson confirmed that she had not seen challenging behaviour with the father.
97. Mrs Ferguson accepted that the father had been Edward's primary carer and that the general principle was that usually it would be better for the child to remain with the primary carer so long as the relationship with the non-resident person was preserved. However she said that "caring" was not just about doing the fun things - it is about doing all the caring e.g. washing, being taken to nursery on time, feeding etc. From the evidence she had heard, the mother had been doing more of these tasks whilst living in Jersey than Mrs Ferguson had been aware of. Advocate Dutôt put it to her that there was a period of 4½ months when the mother was not there so the father must have done all of those things for Edward. Mrs Ferguson said she could not answer that because she did not know how much help he had received from Mr and Mrs D.
98. Advocate Dutôt asked her whether or not she would look to the primary carer if the Court was convinced that the relationship could be preserved between Edward and the mother by whatever means necessary. She replied that she would.
99. Advocate Corbett referred Mrs Ferguson to the mother's affidavit filed on the 8th January, 2015, in which she had set out the reasons why she considered that the father was not the primary carer. It had been more of a shared arrangement during the marriage and a shared arrangement at the present time. Mrs Ferguson agreed that it had been a shared arrangement and that the mother had been doing more but she thought it fair to say that Edward had had consistent time with the father and on that basis she thought that the father had been Edward's primary carer. She did not agree with all the mother's points about why the father was not the primary carer. The father had been the primary person to whom Edward had turned but that did not mean that the relationship between Edward and his mother was not strong. Mrs Ferguson's opinion was that this relationship is strong and Dr Williams had also felt the same. Advocate Corbett put it to her that the primary carer is also the person who deals with medical matters, educational matters, housing matters and she asked Mrs Ferguson if she considered that the father was the primary carer in these ancillary activities. Mrs Ferguson said that she did not - she did not feel that the father was capable of doing those things. Both parents had told her that the mother used to do those things because she was more able. She agreed with Advocate Corbett that in terms of ability, not history, the mother could do all the things that the father had been doing but the father could not do everything that the mother did, although the father could achieve it with help.
100. Mrs Ferguson was asked if she had carried out police checks. She replied that she had sent the police checks off to America but had not received a reply. She had carried out checks with child protection services in Angola and she had been told that the family was "not known".
101. Mrs Ferguson was asked if she had concerns about the gun culture in America having heard the evidence of the father. She replied that was concerned although she was aware of the different gun culture in America. She had been concerned about comments the father had made about taking a hand gun to protect himself or his family and that it was better for him to shoot the bad man rather than let him massacre a lot of people. The father had talked about Edward learning about guns and she had concerns about that in a country where you can bear arms. She had also been troubled by the father's reluctance to answer questions about how many guns he had, then he had said he had several and then he said he had sold them all but one - she had been left with an uncomfortable feeling.
102. Advocate Corbett asked if Mrs Ferguson had been convinced in relation to the father's arrangements for Edward's education, as in the nursery and schools. Mrs Ferguson replied that there had been nothing in the father's affidavit about education but she had spoken to Mr and Mrs D on the telephone and they had confirmed that there were kindergartens nearby. It was usual for applications for removal to contain details about schools and availability but there had been nothing in this application. She was of the opinion that the father had not got that far in his thinking - there had not been a lot of forward thinking. No thought had been given as to whether or not it was appropriate for Edward to share the one room in the flat until the mother and Mrs Ferguson had raised the issue. The father had then spoken to the grandparents, who had said that they could convert a guest bedroom into Edward's bedroom if necessary.
103. Advocate Corbett asked Mrs Ferguson if she was satisfied that the father had made enough enquiries as to whether or not Edward's treatment for his speech difficulties and his ears could continue within a proper healthcare system. Mrs Ferguson repeated that she did not understand the health care system and whether or not Edward would fit into it. She would have hoped that there would have been more information about what the situation had been when they had been living in America.
104. Mrs Ferguson agreed with Advocate Corbett that almost all of the information received about life in Indiana had been provided either by the mother or produced in a reactive way - it had not been provided in the first place. The father had not thought forwardly about Edward's future whereas the mother had done so by putting his name down for School 4.
105. Advocate Corbett asked her about the recommendation that Edward should remain in the jurisdiction of Jersey unless the Court was completely satisfied that the father would promote the relationship between Edward and his mother with a legal framework in place. Mrs Ferguson was asked if she herself was satisfied that the father would promote the relationship. She said that she was not satisfied but she was very aware that she did not have to make the decision. If the Court shared her view then she recommended that Edward should stay in Jersey.
106. She agreed that both parents love Edward, both can adequately care for him. Advocate Corbett then put to her that the fact that both parents can provide care leads to the question as to whether Edward's life in Indiana would be better than his life in Jersey, an issue of balance. Advocate Corbett asked her where she felt that balance fell. Mrs Ferguson said that she was clear that the two lifestyles are very different and it would be judgmental and prejudicial of her to comment on which lifestyle is better. Edward would have very different experiences and a very different life depending on which jurisdiction he lived in. However, she was of the opinion that it would be better for Edward to remain in Jersey because she believed that the mother would promote an ongoing relationship with the father whereas she did not believe that the father would promote an ongoing relationship with the mother if Edward went to live in the US.
107. Mrs Ferguson confirmed to Advocate Dutôt that she had not asked the father about the health care situation when they lived in America.
108. Advocate Dutôt asked me to take into account three factors when making a decision. The first was that Edward had not been out of the father's care for more than one week in the last three years. It was a factual reality, that for whatever circumstances or reasons, there had been thirty-one weeks in the last three years where the mother had not been able to be with Edward i.e. an average of ten weeks a year. The father had said in his evidence "I have always been there for him and I have always taken care of him". Dr Williams had commented that the father was "present".
109. The second factor to be taken into account was the observation sessions of contact and, in particular, Dr Williams' observation of contact, as he had spent a longer periods with Edward. He had found the relationship to be absolutely lovely, very easy and with lots of attunement. Mrs Ferguson had said that her observation of contact between the father and son had been similar to that described by Dr Williams.
110. The third factor to be considered was the behaviour demonstrated and recorded when Edward was in the mother's care. The behaviour had not been seen by either Dr Williams or Mrs Ferguson when Edward was in the care of the father. Dr Williams said that he had played her up significantly. Edward had been more compliant regarding toileting with the father. Dr Williams had felt the need to bring this to the court's attention in an effort to assist the court. Advocate Dutôt submitted that when looking at the welfare of a child in a situation where both parents are good enough and perfectly adequate, distinctions are critical.
111. Advocate Dutôt said that the father had been presented to the court by the mother as a good for nothing, benefit grabbing, illiterate, domestic abuser who totes guns and abducts his son. She asked me to reflect on whether that at all resembled the person who had given evidence. The father has worked, he will work again in the future. He knows what his strengths are - he is good at trade and practical matters. The decision that he should stay at home and care for Edward had been a joint decision made by the mother and the father. He is in receipt of disability allowance but Advocate Dutôt submitted that he was not someone who had no drive to achieve. The psychological assessment had been clear that the father's dyslexia was not a barrier to his parenting. He had managed his dyslexia and had developed strategies to assist him. He had adapted his strategies to enable him to care for his son. The father had been criticised about things he had said about the mother but the mother had been insensitive about his dyslexia as she had called him illiterate and referred to it as "his issue".
112. Advocate Dutôt submitted that the court must be careful not to make value judgements. The father and mother had reversed traditional roles, they played to their strengths, by agreement. She urged me not to pit a career in finance as being more or less important than being a carer of a child or a person with a more practical trade. She endorsed a comment made by Mrs Ferguson in her report:-
"I do not believe that a judgment can be made about which lifestyle is best as they are informed by family experience, culture, geography and personal choice."
The parents have very different backgrounds and very different experiences. As well as being cautious about social and cultural norms, individual personal views on guns aside, Advocate Dutôt submitted that the father had not been in breach of any laws when he chose to carry a gun in America, it was his constitutional right. Dr Williams had confirmed that there was nothing in his assessment that raised concerns about the father and fire arms. His gun cabinet was kept locked - the weapons were not loaded, the cupboard could be moved.
113. Dr Williams had no concerns about the father having a problem with alcohol. He was confident that the event in July 2014 was a "one off" and there had been no repetition of such an event.
114. Dr Williams had been uncomfortable with the use of the words "domestic violence or abuse" in this case. He felt that the incidents between the parties had arisen because of the way the couple had dealt with the breakdown of their relationship and the conflict that emerged. Advocate Dutôt suggested that this situation was about two parents whose relationship was breaking down, they were both as bad as each other; they were unkind to each other. Both had said things that they wished they had not said and both wished they had handled things differently. The father admitted the incident with the coat hanger - he said he was at a very low point and he should not have done it but it had not been his intention to hurt the mother. The father said in his evidence that he did not grab the mother by the jaw. He had not been challenged on this in cross-examination.
115. Turning to the abduction, Advocate Dutôt said that this had been a planned trip but the father had not come back when he should have done. It had been said that the father should not have gone to America under the pretence of a holiday if that was not his intention. Advocate Dutôt put it to the mother that the father felt that he had had to lie because he did not have control of the finances and he had felt trapped. From her response of "no comment" the inference could be drawn that the mother agreed with the statement. Dr Williams had said that he did not think that these actions had been intended to keep Edward from the mother. The father had returned to Jersey voluntarily within four days of Jersey lawyers becoming involved. He had not left since. The father had not been given enough credit for staying in a place where he felt isolated, with no support from family for six months whilst waiting for his applications to be dealt with.
116. Mrs Ferguson had said that the father had a lack of empathy for the mother and that he had not thought about her feelings at all. It was his evidence that he had - he had wanted her to be happy so he moved to Jersey. He was criticised for not being positive about the mother but he had said when giving evidence that she was "a good lady".
117. Both parties gave different narratives about the breakdown of their marriage and their lives together but the fact that the father did not agree with the mother did not mean that he was being disrespectful. Advocate Dutôt submitted that it was the mother's case which did not present a balanced picture of the father. She had posted things about him on Facebook or written emails to Mrs D complaining about him.
118. Dr Williams said he had heard both parents speak positively in front of Edward about each other - they had given Edward the right message.
119. Dr Williams was concerned that the father would not respect Edward's heritage in Jersey because he had not found Jersey an easy place to live in. However the father had said in evidence that just because that was his view he would not push it onto someone else. Jersey was important because it was where the mother lived.
120. The father had given evidence that he would most definitely promote contact with the mother. He had said he wished his own mother had called him every day or could have seen him every day. He would have no reasons to stop contact with the mother. The father had said that he would be prepared to register any contact order in favour of the mother in Indiana and he would undertake to register the order as soon as possible. Advocate Dutôt had already contacted American lawyers to enquire about the process. The father had every intention of promoting contact - he had done it in the past and would continue with it in the future.
121. Dr Williams had said that there would be a loss for Edward regardless of what happens but Advocate Dutôt submitted that the loss of his father would be a greater loss to Edward because the father has always been there.
122. Advocate Dutôt referred to the principles set out in Payne v Payne [2001] 1 FLR 1052 to which the Court should have regard:-
"(a) Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life"
She submitted that no-one had suggested that the applicant in this case, the father, was not motivated by good reasons. His motivation was to return to his home and his family. In B v B [2002] JLR 528 the Royal Court had held that:-
"It would be contrary to M's best interests to deny the petitioner the financial, emotional or social support available from her family and friends in Ireland."
She submitted that the father has a legitimate reason for his return. Referring back to Payne she submitted that the next question to be asked was whether or not the father's application was realistic and founded on practical proposals. Advocate Dutôt submitted that it was - it was known where Edward would live, the name of the nursery he would go to and there would be time to decide on a kindergarten. It had been difficult for the father to make enquiries whilst he was here in Jersey. The next Payne principle:-
"(b) if the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive."
No-one has suggested that the mother had an ulterior motive. Both parents believed that they had the best option.
"What would be the extent of the detriment to him and his future relationship with the child were the application granted?"
The detriment in this case would be that on a day to day basis the non-resident parent would see Edward less than they do now.
"To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?"
In this case there would be an extension of the relationship with his family in America where Edward had been born.
"What would be the impact on the mother.... of a refusal of her realistic proposal"?
The father had said in his evidence that he would slowly die inside.
"The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration directed by the statutory checklist insofar as appropriate."
Advocate Dutôt said that there had been one case decided since Payne which gave clarity as to whether or not the points raised in Payne should be taken as being Law or points for guidance and how they should be weighed up. In the case of K v K [2012] 2 FLR 195 it was said:-
"As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance......However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child. As Hedley J said in Re Y (Leave to remove from the Jurisdiction) the welfare of the child overbears all other considerations, however powerful and reasonable they may be."
123. Advocate Dutôt referred to the welfare check list as set out in Article 2(3) of the Children (Jersey) Law 2002:-
(a)"the ascertainable wishes and feelings of the child concerned;"
She said that Edward was too young to give his view but it was important that he should maintain a relationship with both parents.
"(b) the child's physical, emotional and educational needs;"
Advocate Dutôt submitted that both parents can meet Edward's needs. They might choose to do so in different ways but they can both do it. It should not be forgotten that the father cared for Edward for four and a half months. Edward would have healthcare in both jurisdictions.
"(c) the likely effect on the child of any change in his or her circumstance;"
Advocate Dutôt suggested that this was the most important factor in this case. The father had been a constant present force in Edward's life. Mrs Ferguson had accepted that the father had been the primary carer. She had concerns about whether the relationship with the mother would be maintained by the father. Advocate Dutôt said that from what had gone on before, from the father's evidence, from the fact that he had been in a situation himself of not having a mother, she was confident that the father would not want that situation repeated for Edward. Dr Williams had said that it would be contrary to the father's care giving strategy to alienate the mother.
He had agreed to register any contact order in America and he would give an indemnification in respect of enforcing the order if needs be. Advocate Dutôt submitted that it would be a large shift for Edward not to have his father around. Edward had lived in both jurisdictions. He had been born in America, he had lived in America and even when he lived in Jersey he had spent long periods of time in America. There were benefits to his life in America - the great outdoors, extended family. She submitted that a move from Jersey would not be a change of circumstances in the same way that the loss of his father would be.
"(d) the child's age, sex, background and any characteristics of the child which the court considers relevant;"
Advocate Dutôt said that everyone has a mindful eye on Edward's development, conscious of the need to keep an eye on his speech and language development and the potential issues raised by Dr Williams around autism. She submitted that these characteristics could be met by both parents.
"(e) any harm which the child has suffered or is at risk of suffering;"
Dr Williams' assessment had been that Edward had not had to make any significant adjustments in his psychological well-being. He had not suffered harm. Advocate Dutôt submitted that the greatest potential risk of harm might be the change in the relationship with the father. It would be a significant change for Edward if he was to stay in Jersey.
"(f) how capable each of the child's parents and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's need;"
Both parents are good enough. The contact observations had seemed to suggest that because he had spent more time with Edward perhaps the father had better control of his behaviour but both parents are capable.
"(g) the range of powers available to the court;"
Advocate Dutôt submitted that the court has the power to make residence orders and contact orders in favour of either parent.
124. Advocate Corbett submitted that in recent times, since returning to Jersey, Edward had been in the care of both of his parents. His most recent memories of his life would be of living in Jersey with his care shared between his parents, four nights each week with his mother and three nights with his father. The fact that Edward had spent more time with his father over his life time was not strictly relevant.
125. With regard to the observations of contact, both contact observers had accepted that Edward has a relationship with both parents and there was a secure attachment to both parents.
126. With regard to Edward's behaviour when in his mother's care, Mrs Ferguson had said that while certain things were dealt with better by the father, other things were dealt with better by the mother. She had felt that the relationship with the mother was warmer and that his language was significantly better when with his mother than when with his father.
127. Advocate Dutôt had submitted that the parties had made a joint decision that the father should remain home in Jersey to care for Edward. However Advocate Corbett submitted that this had been forced upon him because of his immigration status and the fact that he was not able to get a job. It had therefore been logical and sensible for him to care for Edward. The circumstances had changed now and whatever decision had been made the in the past the fact was that Edward's care was now shared between his parents.
128. Advocate Corbett accepted that the father's dyslexia was not a barrier to parenting but she submitted that it does go to the balance of welfare. She accepted that there were matters of value judgements and culture in the case but the question to be asked was what was in Edward's best interest because his welfare was paramount.
129. With reference to the incident in July 2014, Dr Williams's had formed the opinion that the father did not have a problem with alcohol. The mother had not been concerned about a problem with alcohol per se but she had been concerned about his behaviour and the risk of harm that Edward had been subjected to on that occasion. It was fortunate that he had not suffered harm but the potential for harm had been huge.
130. With reference to domestic abuse, Dr Williams had objected to the assault on the mother being referred to as domestic abuse whereas Mrs Ferguson had been concerned about that.
131. With regard to the abduction of Edward it had been suggested by Advocate Dutôt that because the father had gone to America with the mother's consent, the mother having booked and arranged the flights for a holiday, this was not abduction. Advocate Corbett submitted that retaining a child without permission is child abduction. The father had been guilty of abducting Edward from the moment he had not got on a plane to return to Jersey.
132. It had been suggested that the reason the father had not told the mother that he was intending to issue divorce proceedings in America and had not told her that he was intending to retain Edward in America was that the father had felt trapped and therefore had felt obliged to lie to the mother. He gave evidence that he had never booked flights but she submitted if he had wanted to arrange flights, he could have done so through his grandmother - he had the funds available from the sale of his truck. There had been no reason for him to feel trapped.
133. The father had instituted divorce proceedings by, she submitted, telling lies about his residence in Indiana, because residence for six months prior to the presentation of the petition is a pre-requisite for instituting divorce proceedings in Indiana. The father had lied in legal documents. He had also indicated in the proceedings that he would make financial applications suggesting that he would make a claim on her home and that he would be asking for Edward to remain in his care. None of these matters had been discussed with the mother before he went to America. As soon as the mother had realised that Edward was not going to be returned to Jersey she made an application under the Hague Convention. The American authorities had been convinced that Edward was habitually resident in Jersey and as a consequence the father was advised not to dispute the Hague Convention proceedings because he would lose. The financial and emotional costs of these actions had a huge effect on the mother. The father had never considered the effect on the mother of his actions. The father had returned to America, issued divorce proceedings and abducted his son for his own purposes because he felt isolated and lonely in Jersey. He wanted to go home - he was homesick. All his actions had been selfishly motivated, entirely for his own purposes and benefit.
134. Advocate Corbett advised that there was no difference between Advocate Dutôt and herself in relation to the Law. The welfare of the child is paramount as can be seen from the case law. The Payne factors are for guidance only. K v K and in Re Y confirm that the welfare of the child is the most important factor in relocation cases.
135. She pointed out that there is no residence order in force and there is no primary carer as such because residence has been shared.
136. Moving on to the welfare check list Advocate Corbett accepted that Edward's needs can be met by both parents. Both could provide good enough parenting. The question of balance is where will Edward be better off. A balance has to be struck.
137. Dr Williams had said that Edward was too young to express his wishes and feelings but he had confirmed that Edward has a secure base with both parents. There is no psychological reason for Edward to be placed with either parent and he confirmed that Edward has a secure attachment to both parents.
138. Both parents can meet Edward's needs but Advocate Corbett submitted that his circumstances living in Jersey with the mother would be significantly better than in America. The mother's accommodation is better; he has a good relationship with the mother and his wider maternal family. His emotional needs are therefore being met through the family relationships. She suggested that as the mother had wider social circles than the father and more opportunities to form relationships outside the family, including children of his own age. She submitted that if Edward lived in Jersey with the mother he would have much more contact with his father than he would be able to have with his mother if he moved to America.
139. Dr Williams also had concerns that Edward would not be given a positive image of his mother if he lived with the father whereas he did not have the same concerns if he lived in Jersey with the mother. Neither did Mrs Ferguson. Both experts had identified that Edward will have a much more positive image of the absent parent if he lives with his mother in Jersey than if he lives with his father in America. His father is very negative about Jersey and he may not promote contact. These were concerns of Dr Williams and Mrs Ferguson.
140. Edward's health needs are met in Jersey and she accepted that they would be covered in America. However she submitted that Edward is within the systems in Jersey, he is known to the speech and language therapeutic unit, he is registered with doctors and dentists. She submitted that Edward is more settled here. There was no evidence that there would be equivalent treatment in America for Edward's speech and language needs.
141. Edward's educational needs would be much better met in Jersey than in America. She submitted that it had not been made clear how his educational needs would be met in America. Names of nurseries in different towns had been supplied at the very last minute but no detail had been provided whereas definite details had been provided about his education in Jersey.
142. Advocate Corbett said that whilst material and financial conditions do not necessarily impact on welfare if a child is loved and cared for by his parents, nevertheless the mother had a responsible job, she could provide an example for Edward growing up, provide for him materially rather than being reliant on welfare benefits and she could assist him with stimulation, support with his homework. The mother was in a far better position to assist than the father. She submitted that the father could care for Edward as a young boy but as he gets older the father would not be in the same position to assist as the mother.
143. The effect on Edward of a change of circumstances i.e. of moving to America after such a large part of his more recent life has been spent in Jersey, would be a huge upheaval and would be detrimental for him. He would not only lose his mother and her family but also the community and social life Edward has built up in Jersey. She submitted that Edward is now of an age when he has memory whereas he would not have had memory in the past. She submitted that there would be nothing in Indiana that is so special that it cannot be provided in Jersey.
144. With regard to age, sex, background and relevant characteristics, Advocate Corbett said that Edward is still very young and needs to spend time with the mother and the father. He is a very sociable child as noted by Dr Williams and Mrs Ferguson. He would suffer if he was deprived of his social life and the social interaction he currently has in Jersey.
145. Advocate Corbett submitted that Edward may not have suffered great harm but she said the risk of harm is significant. There had been a serious risk of harm on the 29th July, 2014. The father had had the care of Edward and he had neglected to put Edward's interests first. He would be at risk of emotional harm if the father continued to disregard the effect of his actions on the mother and on Edward e.g. retaining Edward in America, the domestic abuse in the home while Edward was present, making derogatory comments about the mother in Edward's presence. She submitted that the risk to Edward of living with the father, who had admitted in his evidence that he had lost his cool with the mother, should not be underestimated. Advocate Corbett said that there had been no evidence to suggest that Edward had ever suffered harm whilst in the mother's care and there had been no suggestion that he would be at risk of harm in her care.
146. Advocate Corbett submitted that the final element of risk of harm related to the gun culture. The father had stated that it was his right to bear arms and because it was his right, he would do so regardless of any risk to Edward. He did not consider that there was anything wrong in taking a handgun out with his baby and the mother. If Fort Wayne was such a dangerous place that the father felt he had to take a handgun with him to protect himself, she submitted that it could not be a safe place for Edward to live. The father had felt it necessary to have a gun so that he could shoot first to prevent a massacre. The fact that the father had not considered the presence of the gun cabinet in the flat until it was pointed out to him indicated that the father did not understand the dangers he put his son at risk of suffering on a daily basis in America.
147. Advocate Corbett agreed that both parents are capable of meeting Edward's needs. Mrs Ferguson had said that there are many aspects that relate to the capability of a parent and the father could not undertake all of those aspects to the same extent as the mother could. The mother can undertake the matters that the father is good at successfully. Mrs Ferguson confirmed that the father could not carry out the administrative side of Edward's life - he could not manage the paperwork.
148. The Law to be applied in making the decision was not disputed between the parties. The only legal principle for the Court to consider is the welfare of the child. I was referred to a passage from Re Y (Leave to remove from the jurisdiction) [2004] 2 FLR 330 where Hedley J said:-
"What it seems to me I must do is to remind myself of the opening provisions of the Children Act 1989. Section 1(1) says that when a court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration, and in considering these issues I have to take a number of matters into account as required by s 1(3). It seems to me that of those matters, the ones that are important in this case are the educational and emotional needs of Y, the likely effect on him of any change in his circumstances, and his age and background so far as his life is presently concerned. It seems to me that I need to remind myself that the welfare of this child is the lodestar by which the court at the end of the day is guided."
149. I carefully considered the evidence given, the experts' reports and the submissions made on behalf of the father and the mother before following the guidelines set out in Payne and the welfare check list in arriving at the decision that Edward should remain in Jersey.
150. Dealing firstly with the Payne guidelines:-
(i) I believe that the father's application was genuinely made. It could be said that it was selfish in that it was based first and foremost on his own desire to return to Indiana rather than based on what would be best for Edward. However I accept that father was desperately unhappy and that he could not settle in Jersey, and I can therefore understand his great desire to return home. Whilst I do not believe that the father made the application to exclude the mother from Edward's life, I was concerned that the exclusion would happen if Edward were to live in Indiana.
(ii) The father's application was not founded on well researched and investigated practical proposals. As expressed by Mrs Ferguson in her evidence, applications for removal usually contain a great deal of documentation and proposals with regard to education, availability of places and so on. The information provided with regard to the nurseries and schooling in America was vague in comparison to the proposals put forward by the wife. The information with regard to the Healthcare scheme in Indiana came late in the day. No proposals for contact had been made, although the father subsequently agreed with proposals put forward by the mother.
(iii) The mother's opposition to the application was motivated by genuine concern for Edward's welfare. The mother was very generous in her comments in relation to the father's family and as Dr Williams put it, she "celebrated' the fact that Edward has dual nationality. She acknowledged that this will provide him with tremendous opportunities in the future but she was very strongly of the view that it would be in Edward's best interests for him to remain in Jersey. I accept that she genuinely believed that Edward's education, his accommodation and most importantly his social interaction would be better in Jersey than in Indiana.
(iv) What would be the extent of the detriment to the mother and her future relationship with Edward if the application was granted? Much was said during the hearing, as can be seen from the narrative above, about ongoing contact for the non-resident parent and whether or not the resident parent would honour and promote contact. I had no doubt in my mind that the mother would actively promote contact with the father - she had made generous proposals for contact in her affidavit, including financial provision, to enable the father and his family to visit Jersey and also for Edward to visit his family in Indiana. However it was clear that both Dr Williams and Mrs Ferguson had doubts about the father's commitment to future contact. In fact Mrs Ferguson, having heard the mother and father give their evidence, was emphatic at the end of her evidence that Edward should remain in Jersey because of this concern. Dr Williams had expressed the importance to Edward of knowing that both parents were there for him and the ongoing contact. Whilst I accepted that the father had agreed to register any order made and indemnify the mother in respect of any enforcement costs, I was not convinced that he would promote and encourage contact in the same way as the mother would. Moreover, from listening to his evidence and given his dislike of Jersey and its culture, I felt, as did Dr Williams (paragraph 61) that he would not promote the mother and Jersey to Edward. Another reason for concern about the father's promotion of the mother was his attitude towards her. The reasons for the breakdown of the marriage are not really relevant, in my view, to the decision as to where and with whom Edward will live. The fact of the matter is that the mother could not settle in Indiana, the father could not settle in Jersey - this led to stress and arguments. However the difference between the mother's attitude towards the father and vice versa was very apparent and was very relevant to me when considering ongoing contact and promotion of that contact. Throughout the marriage the father made decisions without discussion with the mother, e.g. the payment of the nursery money to his sister, not returning Edward from his three week holiday in September last year, the issuing of divorce proceedings. The incident in July 2014 and the incident with the coat hanger are indicative of the father's attitude towards the mother and the fact that he was homesick was certainly no excuse for such behaviour towards the mother. He said that he had not realised that the fact that he did not return Edward to Jersey could be deemed to be child abduction but he had not considered how this would make the mother feel. He said that he could see no reason to return to Jersey but also said that he had not wanted to keep Edward away from the mother, somewhat of a contradiction. He gave the impression at first that he had gone to America to enable him to make up his mind what to do. However he very tellingly said later in his evidence that he had given the impression to the mother that he was just going on a holiday because he did not think she would let him take Edward if she had known that he was going to start divorce proceedings. This confirms to me that he knew before he left that he would not be returning to Jersey with Edward. I had to agree with Mrs Ferguson's opinion that he would do what he felt was right regardless of the mother's views or feelings. Therefore my answer to the question was that Edward's removal to Indiana would have a huge detrimental effect on the mother's relationship with him.
(v) To what extent would removal from the mother be offset by the extension of Edward's relationships with the father's family and Indiana? I believe that with the contact that has been agreed Edward will still have generous contact with the father and his family and will have regular visits to Indiana. I do not believe that removal of Edward from the mother could be offset by extended contact with the father's family.
(vi) What would be the impact on the father of a refusal of his realistic proposal? As explained above, I do not consider that the application or proposal was realistic. However, I have no doubt that the father will have been devastated by my decision. Dr Williams and Dr Peart were of the opinion (paragraph 48) that the mother and the father would get through disappointment arising out of the decision and that "they would get there". I hope that with the generous contact that has been agreed that Edward's relationship with his father will continue to be as strong as it is at present.
151. I referred to the welfare check list in considering the overriding review of Edward's welfare. Edward is, as has been said, too young to express his wishes and feelings. However, as Advocate Corbett submitted, Dr Williams had stated within the report and in his evidence that Edward has a secure base with both parents and has a secure attachment to both parents. He said that he would cope with the removal of either parent from his daily life because of his age, the good experiences he has had with his parents.
152. Dr Williams and Dr Peart were clear that both parents are capable of meeting Edward's physical and emotional needs. There were no attachment issues with either of the parents. Whilst I accept, as did the mother herself, that the mother struggled physically during Edward's early years, I accepted her evidence that this is no longer the situation. She described her daily routine with Edward and the mechanisms she has arranged or had put in place e.g. with the nursery to overcome any difficulties she might encounter. I understand that the father still has concerns about the mother's ability to cope but I do not consider that she is incapable of caring for Edward because of her disability. I do not need to repeat the proposals put forward by each party in respect of Edward's education. I am sure that both parents would do their best to ensure that Edward receives the best education possible but on balance I took the view that he has been settled in nursery since his return to Jersey and in light of the plans the mother has made, his educational needs would be best met in Jersey. Whilst the accommodation available to both parties did not play a major part in the decision making process, I did accept that the mother's living accommodation was far more suitable than the father's flat. From listening to the evidence of the mother and the father I was firmly of the opinion that Edward will have far more interaction with children of his own age, he will have a wider social life and will engage in activities more suitable to his age living with the mother than with the father. Whilst the father gave evidence that he had a large family and large circle of friends he went on to say that he said that he only had one friend, F, who was not married and did not have children. He openly said that he had not socialised with Edward in Jersey, only going to parks and on nature walks. The activities which he suggested Edward might enjoy were adult activities apart from riding in his electric car. There was much said about health care - I accept the submissions made by Advocate Corbett on this point (paragraph 140) and will not repeat them. I do not accept the submission that the father has been portrayed as a scrounger because he lives on his disability benefit but there is no doubt that the mother is more able to provide financially than the father. Part of the father's dislike of Jersey was because activities cost a lot of money which he did not have. However he had told Dr Williams that he did not need money in Indiana because activities revolved around the family and the outdoor activities. Although the financial situations of the parties was not crucial in making my decision, there is no doubt that the mother will be able to provide for Edward's material needs more easily than the father.
153. I agree with Advocate Dutôt that the effect on Edward of a change in his circumstances is a very important factor in this case. I was careful to consider the submissions made on behalf of both parties and the expert views of Dr Williams, Dr Peart and Mrs Ferguson. I understand the submissions put forward on behalf of the father with regard to the large amounts of time Edward had spent on his own with him. However I considered it to be important to determine what the "circumstances" of Edward's life have been and now are, without taking into account who he was actually living with. I understood from Dr Williams that to all intents and purposes, what had happened when he was a small child had happened, life moves on and changes occur. Dr Williams said the absences from the mother could not be compared with his circumstances now that Edward can verbalise. Edward's home was in Indiana until the mother and father agreed to move to Jersey in October 2012. I am of the opinion that the flat became his home at that time - he was nearly 1 years old. During 2012, for reasons beyond the control of either the mother or the father, Edward returned to America with his father for various periods of time so that the father could obtain a visa to allow him to come home. Edward did not move from Jersey. The parties agreed that this was a practical solution whilst waiting for the visa because the mother was working and providing financially for the family. They were still married - there was no question of the father not returning to Jersey once his visa issued. The father might not have regarded Jersey as his home but as far as I am concerned, it was still Edward's home. His mother was still here - it was the mother and father's intention to reside here otherwise why would the father have made an application for a spousal visa. Edward therefore returned to his home in October 2013 when he was nearly 2. He lived here until the father took him away in August 2014, ostensibly on a holiday. He has lived here since the father brought him back in October last year. There is no doubt in my mind that Jersey is Edward's home. He has settled here. He is, as has been said, "in the system". I came to the conclusion that it would be an enormous upheaval for him to suddenly be uprooted and taken to live in a place which it is highly unlikely that he would remember much about. It was submitted that the loss of his father would be detrimental to Edward. In my view the loss of the mother would have the same impact. If the parties work together in the future I can see no reason why Edward should suffer the loss of either of his parents.
154. Edward's age, sex, background and relevant characteristics:-The need to keep an eye on Edward's development has been dealt with above and does not need further comment.
155. Any harm which Edward has suffered or might suffer:-Edward was at risk of harm in July 2014 - fortunately nothing happened to him. I believe that the father is remorseful for his actions and mindful of the need not to put Edward at risk. Dr Williams said that he had paid attention to Edward's safety and he did not consider that there was any risk of harm to Edward arising from the father's ownership of guns. I do not consider there to be an emotional risk to Edward as the parties are no longer living together. If there had been a risk it would have been caused by Edward overhearing the arguments between the mother and father and picking up on their derogatory remarks to each other or being present at the time of incidents such as the coat hanger incident.
156. I have not based my decision in any way on the difference in cultures between Jersey and the US. Both the mother and father have very different backgrounds - neither is right or wrong. As stated above in paragraph 153 the main reason for refusing the application was because I considered that a change in Edward's home would be detrimental for him. I have therefore not had to make any comments on the gun culture in America or the father's evidence in relation to his guns and the carrying of a weapon in Fort Wayne. However, had I made a decision in the father's favour I would have commented that it would not be appropriate, in my view, for the gun cabinet to remain in the flat or for Edward not to have a separate room.
157. Advocate Dutôt urged me to take into consideration:- (i) the father's presence and the mother's absences during Edward's early years; (ii) the observation contact sessions; and (iii) the behaviour demonstrated by Edward when in the mother's care as opposed to his behaviour when in his father's care. It appeared to me that Dr Williams was not concerned about:-(i) - he said that Edward had coped with his mother's absences and he had also coped with the present situation where the father was not with him all the time (paragraph 50). Edward would survive even if he never saw one parent again. Dr Williams gave his opinion on points (ii) and (iii) in paragraphs 35 and 36 above. I accepted the reasons he put forward as explanations for the difference between Edward's behaviour with the mother and father. His opinion towards the end of paragraph 36 that Edward's life with the mother was routine based compared to the holiday atmosphere with the father, was, I believe, another very important matter for me to consider when looking at the effect on Edward of a change in his circumstances. His routine based life would have been totally upset if I had granted the father's applications. I took the view that this would have an enormous and very detrimental impact on Edward's life.
158. Finally, as mentioned above, this was a very difficult decision to make and I understand that the father will have been devastated by it. I hope however, that the father will understand that I considered it to be in Edward's best interests to stay in Jersey. It was not a decision based on pitching the mother's and father's lifestyles, culture or financial situations against each other. I hope that the mother and father will be able to take heed of the advice given by Dr Williams about working together for Edward and maintaining his long distance relationship with his father.
Authorities
Payne v Payne [2001] 1 FLR 1052.
K v K [2012] 2 FLR 195.
Children (Jersey) Law 2002.
Re Y (Leave to remove from the jurisdiction) [2004] 2 FLR 330