Before : |
W. J. Bailhache, Esq., Bailiff, and Jurats Grime and Ronge |
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Between |
A (the father) |
Applicant |
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And |
B (the mother) |
Respondent |
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IN THE MATTER OF LIBBY (FAMILY - CHILD CUSTODY JURISDICTION (JERSEY) LAW 2005 "HABITUAL RESIDENCE IN JERSEY) APPLICATION FOR INTERIM RESIDENCE ORDER AND PROHIBITED STEPS ORDER/NON-REMOVAL FROM JURISDICTION
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate B. Corbett for the Father.
Advocate E. L. Wakeling for the Mother
judgment
the bailiff:
1. This is an application by the father for an interim residence order and a non-removal order in respect of his daughter Libby (this is not her real name, who is under 7 years old). The position in this respect is that there have been proceedings in the English Court between the mother and the father involving the care of this child and the present position is covered by an order of that court on 28th October, 2015, which is an order by consent which, in material parts orders the following:-
"The child shall live with the father for two weeks during Easter 2016 and every year thereafter for five weeks during the Summer 2016 being the first five weeks and every year thereafter, for two weeks during Christmas 2016 and every alternate year thereafter and additional dates as can be agreed between the parties and the father is responsible for the collection and return of the child from [the mother's) address and it is noted that if the child wanted to return to the care of the mother early, that the father would make the necessary arrangements in accordance with the child's wishes and feelings; at all other times the child is to live with the [mother]."
2. The order of the court gives a warning notice that where a child arrangements order is in force, if the parties do not comply, the parties might be held in contempt of court and be committed to prison or fined.
3. Underlying the present application are complaints made by the child to the father on the journey back to Jersey, some two weeks ago. It is said that a former partner of the mother has abused the child sexually and indeed has also abused other children in the mother's home. These are serious allegations and there is no independent evidence of these allegations at present. All that we do have is what the father has said his daughter has said to him. There has been an achieving best evidence interview with Jersey police; a very brief summary of that has been given to us by the guardian, Mrs Ferguson, who has had a chance to attend at police headquarters and view the disc and we would just like to record our thanks to the guardian for the work that she has done at very, very short notice and which we found very helpful. During the course of that interview there is no doubt that the daughter was very uncomfortable; she did not go into very much detail, she backtracked apparently from the little she did say, and Mrs Ferguson considered that there was quite a lot that the child was not saying. But all that goes to support the father in this sense that the child's statements which we accept were made to him, clearly need to be investigated with some urgency.
4. One of the difficulties that we face here is that the terms of the Child Custody Jurisdiction (Jersey) Law 2005 make it plain that the court does not have jurisdiction to make an Article 10 order (which is, for the purposes of this case, the residence order), unless there is satisfied the condition set out in Article 6 of the Law. The condition that is referred to there is that on the relevant date, that is the date on which these proceedings were issued, the child concerned is habitually resident in Jersey or, alternatively, is present in Jersey and not habitually resident there nor in any other part of the United Kingdom. In the present case it is obvious that the child will be habitually resident in the United Kingdom next week if the child were to be sent back in accordance with the agreement which has been made by the parties and which the English court has endorsed.
5. On the other hand, it is equally the case that the child is properly resident in Jersey this week in the sense that the parties have so agreed it and the English Court has ordered it. We have not had much by way of direct authority put before us although helpfully Advocate Wakeling, who was appointed at very short notice for the mother, has put before us an extract from Hirschman's Children Law and Practice in which at section g, paragraphs 150 and those following there is some guidance given as to English decisions on what habitual residence amounts to.
6. For the purposes of the hearing today, noting that we have not had full argument about the issue, we are prepared to accept the submission that the Court has jurisdiction notwithstanding article 5 of the Child Custody Jurisdiction (Jersey) Law 2005 because the child is habitually resident at Easter for two weeks in accordance with the agreement of the parties and the order of the English court. Accepting that we have jurisdiction to make an order does not, however, mean that we should necessarily exercise it and what is absolutely apparent here is that this child is the subject of an English court's jurisdiction. We think that it is appropriate that the English court should remain seized of that jurisdiction and should deal with the primary issues in relation to the child and so what we have is the difficulty that, for the child's safety in a situation where her statements in our view clearly need to be investigated urgently, there is much to be said for keeping her safe in Jersey and on the other hand it is a matter which firmly we think is for the English court to decide.
7. We are determined to resolve that issue in the following way:-
(i) The application for a residence order, which is made by the father, is going to be adjourned for three weeks;
(ii) In the interim we are going to make an interim residence order in favour of the father. The condition of making that order is that he makes an application to the English court as soon as possible for a variation of the order which currently affects him and the child in order that the English court, which is already apprised of facts which are not necessarily fully before us, can give consideration to it and clearly we have in mind that what the father will be asking the English court to do is to make its own interim residence order in his favour while further investigations are made. If the English court is not prepared to do that then the matter comes back before this Court and at that point I think the Court would want to have some detailed submissions on its jurisdiction to make a longer order because we would be in a position of potential conflict with the English court which seem to us to be completely undesirable, both as a matter of principle and in terms of comity;
(iii) There is an interim order that the child is not to be removed from this jurisdiction and in the sense that it is possible the English court may make another order in early course; and there is liberty to both parties to apply back here if necessary to give effect whatever order the English court might make.
8. I am grateful to both counsel for appearing at such short notice in the case.
Authorities
Child Custody Jurisdiction (Jersey) Law 2005.
Hirschman's Children Law and Practice.