Jersey Unreported Judgments

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Cite as: [2016] JRC 010A, [2016] JRC 10A

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Family - reasons regarding application for leave to remove dismissed.

[2016]JRC010A

Royal Court

(Family)

18 January 2016

Before :		Carol Elizabeth Canavan, Registrar, Family Division
Between	C		Applicant
And	D		Respondent

The Applicant did not appear.

Advocate E. L. Wakeling for the Respondent.

judgment

the registrar:

1. The father and the mother are the parents of Michael (this is not his real name) born in 2010.

2. The father has parental responsibility for Michael and the mother has residence of Michael by an order made by consent on the 23^rd June, 2010. Paragraphs 3 and 4 of the order were in the following terms:-

"3. by consent, the Respondent mother shall have residence of the child and the child shall continue to reside with her in Jersey until further agreement between the parties or order of the Court;

4 neither party shall remove the child permanently from the jurisdiction without the consent in writing of the other, or order of the Court and the Applicant father shall not remove the child from the jurisdiction at all without the express consent in writing of the respondent mother or further order of the Court;"

3. The order contained the usual warning at the end of the order that neither party was entitled to take Michael from Jersey for a period of more than one month without the written consent of the other or leave of the Court.

4. In August 2013 the father filed an application for contact with Michael. During the lengthy proceedings various orders have been made with regard to the father's contact with Michael. The application was heard on the 12^th, 13^th and 14^th May, 2014, and a final order made.

5. On the 17^th August, 2015, the mother filed an application for a specific issue order stating:-

"The current order states I can leave with a child for up to a month without the father's permission. I want to go home with my son - father opposes. This move would be best for me and my son. It would be better for the respondent too as there are direct flights Slovakia - Morocco. We have the support of my family, have a nice place to live, Michael's godfather lives there. I have found a bilingual school for Michael. The respondent does not support us in Jersey financially or in any other way."

She requested that the Court:-

"give permission to leave the Island and go back home to be with our family. He says it'd unsettle him however the father gave notice to my son's school so he'll be unsettled to start a new school in Jersey".

The application was marked "Urgent! Time for service to be abridged". The application was accompanied by email correspondence between the parties.

6. A preliminary directions hearing was held on the 2^nd September, 2015. The mother appeared in person, the father via a telephone link. A date was fixed for a final hearing on the 18^th January, 2016. The mother was ordered to file with the Court and provide to the father a statement setting out her proposals with regard to Michael's residence by close of business on the 16^th September, 2015. The father was ordered to file a reply by close of business on the 30^th September, 2015. A full welfare report from an officer of the Jersey Family Court Advisory Service ("JFCAS") was ordered to be prepared by close of business on the 6^th January, 2016.

7. The mother sent an email dated the 15^th September, 2015, to the Family Court Proceedings Officer ("FCPO") which contained her "Written submission". The father filed his written submissions as ordered.

8. The following table contains details of telephone conversations held and correspondence received during the period between the filing of the written submissions and the 18^th January, 2016. These form the backdrop to the decision made that day.

23.10.15	Email from the mother to FCPO requesting stamped copies of five court orders. The mother had asked the FCPO to call her if there were any queries. The FCPO replied in an email that she had tried unsuccessfully to phone the mother. Further information was requested from the mother as to which orders were required.
23.10.15	Email to FCPO from the father stating that the mother had gone to Slovakia on the 17^th September 2015 and had not returned to Jersey. He had not given her consent to take Michael for over one month. He had given her notice of his intention to visit Michael in Jersey on the 29^th October.
28.10.15	The mother requested, by email, an original stamped copy of the order made in June 2010 and photocopies of orders made since that date.
29.10.15	The father attended at the Judicial Greffe and advised the FCPO that he had come to Jersey to see Michael but he was still in Slovakia with the mother.
29.10.15	The mother telephoned the FCPO about the copies requested and was advised that they were ready for collection by her friend Mr B. the FCPO advised her that her application to remove Michael from the jurisdiction was ongoing. With regard to the father's contact the note made by the FCPO said that the mother had emailed the father lots of times to tell him that she was having an operation. She had not received a response from him. The note of the conversation went on to say "she thought she had complied with everything in the order and that there was due to be a review in January. She said that she could be called on her telephone number, but that she has no email at the moment."
10.11.15	The mother requested, by email an original signed copy of the order dated 14^th May 2014, to be collected and paid for by Mr B.
19.11.15	Email from the JFCAS officer Chris Langford (CL) to the Registrar attaching email correspondence which he had sent to the mother requesting further information to enable him to prepare his report. The correspondence showed that he had received no response from her although he had had a very short conversation with her on the 2^nd November. She advised him that she was due to have an operation on the 9^th November and she could not tell him when she would be back in Jersey.
26.11.2015	CL sent a further email to the mother having obtained an email address for her from the father. In that email he suggested that it would be helpful for the Court to have some details of the operation and suggested that she should obtain a medical certificate certifying that she was not fit to travel back to Jersey. He advised her that "The Court will likely require this given that my JFCAS report may need to be delayed."
9.12.15	The mother sent an email marked "Strictly private and confidential" to the FCPO, not copied to anyone, requesting "written confirmation of the legality and endorceability(sic) of the court orders dated the 23 June and 14 May 2014. There should be standard forms available in all languages. Please may I have these in Slovak language. This form should also be available electronically from the European e-justice portal." The FCPO replied by email on the same day (copied in to the father and CL) advising that the court does not enter into strictly private and confidential correspondence with one party to ongoing proceedings. She also advised that as Jersey is not part of the EU it does not have standard forms as requested. The FCPO suggested that if the mother provided further details as to why the document was required, then the Court might be able to assist further.
10.12.15	The mother replied, still not copying in the father or CL requesting a simple confirmation that the court orders were valid and that the parties needed to abide by them. On the same day, the mother telephoned the FCPO to ask if her email had been received and saying that "the authorities" had asked her to provide this. The FCPO asked again to send an email setting out precisely what she was asking for and provide an address where the document should be sent. The mother advised the FCPO that she had been ill and that she did not have access easily to email as she had no computer or email. She said that her friend Mr B could collect the letter and send it by express mail to her.
11.12.15	A further email was received from the mother requesting a letter addressed "To whom it may concern" confirming that the court orders were valid and enforceable because the "confirmation has been requested from me by several authorities here in Slovakia and I have been very unwell and it has created a lot of paperwork with them." The FCPO responded by email on 14^th December 2015 requesting further information with regard to the "several authorities" and the reasons why the paperwork was required.
14.12.15	CL advised that he would not be able to prepare a report by the 6^th January 2016 as he had been ordered to do. Although he had been able to have a first interview with the father he had not been able to interview the mother. He had received no response from the mother to his request that she should advise him when she would be available for interview neither had she provided the additional information he had requested.
16.12.15	A letter was received via email from an Advocate Michal Kurocka stating that he was acting under the power of attorney given to him by the mother. He again requested the confirmation with regard to the court orders. He said that this was needed for "the Court purposes in connection with her illness she requires this confirmation in order to be presenting herself as well as the presence of her son Michael to the local health-insurance authorities...due to her long term health problems". On the same day, the FCPO emailed Advocate Kurocka (copying in the father and CL) confirming that all of the orders made in these proceedings were valid, legal and binding on the parties. Also on the same day, Joanna Gardiner of Ogier confirmed to the FCPO, CL and the mother that Ogier had been appointed to represent the father.
17.12.15	A further letter was received from Advocate Kurocka requesting a letter to "include the Court stamp, date and signature since that is what I require for the Court purposes in connection with my client."
4.1.16	The FCPO responded in the following terms to the Advocate "The Registrar would like full details of the reasons for requiring the requested document. You previously mentioned that it was required for the 'local health insurance authorities.' Your latest email refers to 'Court purposes'. Your client has an application pending before this Court. Please confirm whether or not she proposes to continue with that application". No response was received.
4.1.16	An email received from the mother dated the 1^st January 2016 to the FCPO stated "Considering I have neither provided the Court with an original submission nor given the Court stamps in connection with my application, please could you confirm if the Court hearing is scheduled for mid-January 2016? If the hearing is still scheduled, I would like to request for the Court's permission to withdraw the case, alternatively to adjourn it to a later date due to unforeseen circumstances." The FCPO's response to the mother was "Your application for leave to remove Michael from the jurisdiction of this Court is due to be heard on 18^th January 2016. This date was fixed on 2^nd September 2015 when both you and D attended Court. The application can only be withdrawn by consent or order of the Court. If D will not give his consent then you will need to make an application for leave to withdraw the application."
6.1.16	The FCPO received an email from Joanna Gardiner asking the court to excuse the father's attendance at the hearing on the 18^th January as he resides in Morocco. Ogier would represent him. The FCPO replied by telephone advising that it was not for the Registrar to give permission not to attend what was due to be a final hearing.
18.1.16	CL confirmed that he had received no response from the mother to the emails he had sent to her

9. The mother did not appear on the 18^th January, 2016. The father came from Morocco for the hearing and was represented by Advocate Wakeling. She asked for the application to be dismissed and for costs to be awarded to the father. Mr Langford confirmed that he had heard nothing further from the mother. The application was dismissed and an order made for taxed costs to be paid by the mother together with travel expenses.

10. It is not disputed that the mother left Jersey in September 2015 with Michael and has not returned. From the correspondence it would appear that she became ill during her visit. At no time has she formally notified the Court of her absence nor explained the circumstances of her absence. She has not asked for the leave of the Court to remain outside the jurisdiction with Michael. She was advised by Mr Langford to obtain a medical certificate or letter from the doctor and produce it to the Court. She has not done so. In fact the mother completely ignored correspondence from Mr Langford. Neither she nor her advocate gave any satisfactory explanation as to why the confirmation with regard to the Court orders was required. As can be seen from the correspondence, the mother was well aware that the hearing of her application was going to take place on the 18^th January. She had been specifically advised that she could withdraw her application by consent or with the leave of the Court. She did not obtain the father's consent to withdraw and she made no application to the Court. The father had travelled from Morocco for the hearing and in the light of the mother's disregard for these Court proceedings I thought it only fair that she should be responsible for his costs, including his travel expenses.

No Authorities