Jersey Unreported Judgments

Family - application by the father for the return of the child to the jurisdiction.

[2015]JRC221

Royal Court

(Family)

4 November 2015

Before     :		T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Olsen and Ramsden
Between	E		Plaintiff
And	F		Defendant

Advocate C. R. Dutöt for the Plaintiff.

Advocate L. J. Glynn for the Defendant.

judgment

the deputy bailiff:

1.        On the 2^nd September, 2015, we heard the application of E ("the plaintiff") for an injunction requiring F ("the defendant") to return their child to the jurisdiction.  At that time we declined to make the order requested, although gave certain directions, and said that we would elaborate on the very brief reasons that we gave at that time.  We now do so. 

2.        In or around 2007 or 2008 the plaintiff and the defendant formed a relationship.  After the relationship had ended the defendant informed the plaintiff that she was pregnant.  The child of the plaintiff and the defendant, David (this is not his real name) ("the child") was born in 2009 and accordingly at the time of this application was approximately 6½ years of age. 

3.        Although the plaintiff is on the child's birth certificate as the child's father, and indeed the child bears the joint surname of the plaintiff and the defendant, only the defendant has parental responsibility for the child.  The plaintiff has not until very recently sought parental responsibility although we were informed in evidence that he had raised this from time to time with the defendant. 

4.        Since the child's birth it is clear that the plaintiff and defendant have exercised some shared responsibility for the child's upbringing in that the plaintiff pays £100 per week by way of maintenance for the child to the defendant and makes a substantive contribution to the child's school fees and uniforms etc. 

5.        The plaintiff also exercises substantial contact with the child.  Although the child primarily resides with the defendant he comes to the plaintiff during the week and at weekends.  The weekend arrangements would alternate in that the child either stays for the entire weekend or for one day of the weekend with the plaintiff.  When the child stays with the plaintiff he resides in the plaintiff's home with the plaintiff, the plaintiff's partner and her two children.  The child has his own bedroom and is, so we are informed, very happy indeed to visit the plaintiff and his family. 

6.        Irrespective of the legal position with regard to parental responsibility it is clear that the plaintiff has played and plays a significant role as the child's father.  The child has never lived anywhere but Jersey and, by reason of the respondent's faith, attends School 1 where, as may be expected, he has an established group of friends.  The child accordingly has a family and a full life in Jersey. 

7.        The defendant worked as a hairstylist and indeed, in part, the arrangements for the plaintiff's access to the child suited her because it enabled her to work on Saturdays.  However in recent times the defendant's accommodation position has become difficult and she has found it increasingly difficult to cope.  Her employment became uncertain as a result of which the plaintiff made additional financial contributions for the child's wellbeing. 

8.        For some while the defendant had been indicating that she wished to leave Jersey and to take the child with her back to her family in Liverpool.  This had, understandably, caused concern to the plaintiff and this led, in July, to his making an application for parental responsibility and other orders.  Having done so, he discovered that on 21^st July, 2015, the defendant had in fact removed the child from Jersey to her family in Liverpool and the defendant has since refused to return the child to the Island. 

9.        It is clear that the child is familiar with the defendant's family in Liverpool and has visited them and knows them.  In addition it is clear that the child is familiar with the plaintiff's larger family in that he has stayed with the plaintiff's father at the latter's home in France.  The child therefore has an extended family in both Jersey and elsewhere.  It is however clear that prior to his removal from the Island the child's habitual residence was Jersey. 

The Law

10.      We were referred by the plaintiff to Article 22(1) of the Child Custody (Jurisdiction) (Jersey) Law 2005 which provides, insofar as relevant, that:-

"(1)     Where a child who

(a)       has not attained the age of 16; and

(b)       is habitually resident in Jersey,

becomes habitually resident outside Jersey in consequence of circumstances of the kind specified in paragraph (2) the child shall be treated for the purposes of this Law as continuing to be habitually resident in Jersey for a period of one year beginning with the date on which those circumstances arise. 

(2)       The circumstances referred to in paragraph (1) exist where the child is removed from or retained outside, or leaves or remains outside, Jersey -

(a)       without the agreement of the person or all the persons having the right to determine where the child is to reside; or

(b)       in contravention of an order made by the Court or a court in any part of the United Kingdom."

We are, of course, asked to make an order requiring the return of the child to the jurisdiction.  

11.      There is, so it seems to us, a question mark over the applicability of Article 22 of the Law to the current circumstances.  The fact is that the plaintiff does not have parental responsibility and other than very recently has taken no steps to secure parental responsibility.  It does not, therefore, seem to us that he is a person to whom Article 22 of the Law applies. 

12.      However it is clear, and accepted by both parties, that the Court has an inherent jurisdiction to make the order sought if it is appropriate to do so.  In the case of A v A and another (Children:-Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UK SC60 in which, in considering the case relating to the return of children to England, the Supreme Court held that if there was no statutory jurisdiction there was nonetheless in certain circumstances an inherent jurisdiction to order the return of the child.  The Court (Baroness Hale) said this, at paragraph 60 et seq:-

"60.    We have already established that the prohibition in section 2 of the 1986 Act does not apply to the orders made in this case.  The common law rules as to the inherent jurisdiction of the High Court continue to apply.  There is no doubt that this jurisdiction can be exercised if the child is a British national.  The original basis of the jurisdiction was that the child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was.  As Lord Cranworth LC explained in Hope -v- Hope (1854) 4 De GM & G 328, 344-345:

"The jurisdiction of this court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the state and of the Sovereign that children should be properly brought up and educated; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects.  The first question then is, whether this principle applies to children born out of the allegiance of the Crown; and I confess that I do not entertain any doubt upon the point, because the moment that it is established by statute that the children of a natural born father born out of the Queen's allegiance are to all intents and purposes to be treated as British born subjects, of course it is clear that one of the incidents of a British born subject is, that he or she is entitled to the protection of the Crown, as parens patriae. 

61.      The continued existence of this basis of jurisdiction was recognised by the Court of Appeal in In re P (GE) (An Infant) [1965] Ch 568, 582 where Lord Denning MR said:-

"The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it:  see Hope -v- Hope [1854] 4 De GM & G 328; In re Willoughby [1885] 30 Ch D 324; R -v- Sandbach Justices, Ex p Smith [1951] 1 KB 62."

The Law Commission in their report also recognised its continued existence, while pointing out that "there appears to be no reported decision in which jurisdiction to make a wardship order has been based on the allegiance of a child who was neither resident nor present in England and Wales":  see Law Com No 138, paras 2.9 and 4.41.  In fact, Hope -v- Hope was just such a case, as the boys in question had been born in France to British parents, had never lived here (although they had been brought here for a few days by their father), and were in France when the proceedings were begun. 

62.      However, in Al Habtoor -v- Fotheringham [2001] 1 FLR 951, para 42 Thorpe LJ advised that the court should be "extremely circumspect" and "must refrain from exorbitant jurisdictional claims founded on nationality" over a child who was neither habitually resident nor present here, because such claims were outdated, eccentric and liable to put at risk the development of understanding and co-operation between nations.  But in In re B (Forced Marriage: Wardship: Jurisdiction) [2008] 2 FLR 1624, Hogg J did exercise the jurisdiction in respect of a 15 year old girl born and brought up in Pakistan, who had never been here but did have dual Pakistan and British nationality.  She had gone to the High Commission in Islamabad asking to be rescued from a forced marriage and helped to come to Scotland to live with her half-brother.  The High Commission wanted to help her but felt unable to do so without the backing of a court order.  Hogg J made the girl a ward of court and ordered that she be brought to this country.  The half-brother was assessed as offering a suitable home and in fact she went to him.  Hogg J explained that she thought the circumstances "sufficiently dire and exceptional": para 10.  In In re N (Abduction:  Appeal) [2013] 1 FLR 457, para 29  McFarlane LJ commented that "if the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum".  The facts of that case were certainly not such as to require the High Court to assume jurisdiction over the child in question. 

63.      In my view, there is no doubt that the jurisdiction exists, in so far as it has not been taken away by the provisions of the 1986 Act.  The question is whether it is appropriate to exercise it in the particular circumstances of the case.  Mr Turner accepts that Parker J did not address herself to this basis of jurisdiction and to whether, if Haroon were not habitually resident here, it would be appropriate to exercise it.  He accepts that the case will have to return to her in order for her to do so."

13.      We were also referred to the case of S v S [2008] JRC 099 in which the Court, where considering an application for an injunction ordering a defendant mother to return a child of the marriage to the jurisdiction said, at paragraph 29:-

"Like Baroness Hale in Re J we start with the general proposition that it is likely to be in the best interests of a child that she is not moved unilaterally from her home surroundings and all that she is familiar with.  On the contrary given the instability that almost invariably arises following the separation of parents, it is likely to be in the child's best interest to retain as much stability in other areas as possible e.g. home surroundings, school friends etc.  Thus it is likely generally to be best for the child to remain in the country in which she has been habitually resident whilst her long-term future is decided in the courts of that country."

14.      Of course that case dealt with the end of a marriage and the consequences on a child of the marriage.  However we think that, where a child has over a number of years established a home, a life, and a social network in Jersey, the Court should still proceed from the starting point that it is in the interests of the child to remain in Jersey and not to be moved unilaterally from home surroundings and all that the child is familiar with. 

The evidence

15.      The Court had before it the affidavit of the plaintiff dated 17^th August, 2015, and the affidavit of the defendant dated 1^st September, 2015.  In addition the plaintiff gave evidence before us and was cross-examined by counsel for the defendant.  The defendant was not present in Court although, as we have said, was represented by counsel. 

16.      We do not think we need to go in to the detail of the evidence, some of which is summarised in the introductory paragraphs above.  Suffice it to say that the plaintiff has to our mind established with certainty that the child was habitually resident in Jersey.  Furthermore he has established to our satisfaction that he has acted at all times as a responsible, committed father.  He contributes to the welfare of the child and he exercises very significant contact including staying access.  We have no reason to doubt that the child has a fully formed relationship with the plaintiff, a social network and established school in Jersey and a good relationship with the plaintiff's partner and other children.  They are, in effect, a family when the child is with the Plaintiff.  The extent of the plaintiff's involvement in the child's life is disputed by the defendant.  We do not need to resolve that dispute for our purposes. 

17.      What is significant from our perspective, however, is that the child resides and has always resided primarily with the defendant and we accept, and have heard no dispute, that the defendant has the close relationship with the child that one would expect between a child and its mother.  She is the child's primary carer.  We also accept the defendant's affidavit evidence to the effect that she suffered difficulties with her health, that she no longer had employment (having given up work) and she had no place of residence in Jersey.  She left, so she indicated in her affidavit, because she suffered migraines and panic attacks, and needed the support of her family. 

18.      Were we to make the order sought by the plaintiff we would, as a consequence, either be creating a situation in which the child would return to Jersey to live with the plaintiff without immediate access to the defendant or the defendant would need to return to Jersey with the child where, on her evidence, we have no reason to suppose that she has the prospect of a job or accommodation.  Indeed in evidence before us it is clear that the plaintiff was presuming that, if the defendant was unable to secure a job and accommodation in Jersey, the child would simply reside with the plaintiff. 

19.      This is not a typical situation and it seems to us to be very different on the facts from other cases (such as S v S) placed before us.  Firstly the plaintiff does not have parental responsibility and secondly there is no place for the defendant, the child's mother, to return to were we to require the return of the child to Jersey.  The defendant no longer has the basic means to live in Jersey and that to us is a material consideration.  There is the possibility that were we to make the order sought by the plaintiff the child would to a greater or lesser extent be deprived of immediate and consistent contact with the defendant who may be unable to return to Jersey or to return in only such circumstances that would make her life very difficult indeed. 

20.      Furthermore the defendant informs us on affidavit that the child is well and happy living with the defendant's family in Liverpool.  The defendant has the support that she needs and arrangements have been made for the child to attend a faith school.  We have no reason to suppose that the child is not surrounded by a loving and supportive family in Liverpool as he would be were he to live with the plaintiff in Jersey. 

21.      On balance, therefore, we did not think it to be appropriate to order the return of the child to Jersey at this point. 

22.      It should be clear that notwithstanding this decision we do not approve of the actions that the defendant has taken and they do not secure her any advantage in the matters that the Family Registrar will need to resolve.  It appears to us she acted in a way with scant regard to the interests of the child.  However the Court must now deal with the position as it presently is and consider primarily the interests of the child. 

23.      Our decision is in part made on the basis that the defendant, as she has through counsel, has undertaken to accept the jurisdiction of the Court over the child and take no steps to defeat that jurisdiction and will co-operate fully with the proceedings which have now been instigated before the Family Registrar including making the child available to JFCAS and others for the preparation of appropriate reports as needed. 

24.      We further direct that the child should be returned to the plaintiff for one week's staying access at the plaintiff's home during the October half-term and we further direct that the defendant should co-operate fully in facilitating visiting contact between the plaintiff and the defendant in the United Kingdom and frequent unfettered contact by electronic means.  We further direct that the plaintiff and the defendant co-operate with the Family Registrar at all times to deal with all applications in connection with this matter as quickly as possible. 

25.      We also adjourned the application before us sine die of 48 hours' notice to either side to fix a date should any matters arise or should the mother fail to co-operate fully with the Court in connection with determination of the issues relating to the child. 

Authorities

A v A and another (Children:-Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UK SC60.

S v S [2008] JRC 099.