Jersey Unreported Judgments

Family - appeal against decision of the Registrar dated 18 January 2016 and summons by the respondent the appeal should be stayed.

[2016]JRC122

Royal Court

(Family)

15 July 2016

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats Crill and Blampied
Between	C (the mother)		Appellant
And	D (the father)		Respondent

The Appellant did not appear.

Advocate E. L. Wakeling for the Respondent.

judgment

the commissioner:

1.        The Court has two matters before it, namely an appeal by the appellant against a decision of the Registrar made on 18^th January, 2016, and a summons by the respondent that the appeal should be stayed.  

2.        The appellant is a Slovakian national.  The respondent has duel French/Moroccan nationality.  From what we can glean from the papers, the appellant had lived in Jersey for nearly two decades working latterly as a trust officer and had taken British Citizenship.  The respondent had been in Jersey for some three and a half years, working as a lawyer.  They had a relationship which resulted in 2009 in the appellant becoming pregnant, following which the relationship terminated. 

3.        The appellant gave birth to Michael ("the child") in 2010.  Proceedings appear to have followed shortly thereafter and led to an order of the Court of 23^rd June, 2010, under which the appellant, who had parental responsibility for the child, agreed that the respondent would also have parental responsibility.  The Court made the following orders:-

"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;

5         the Applicant father may have such contact with the child as may be agreed between the parties from time to time or in default of agreement as may be ordered by the Court."

4.        Shortly after this order the respondent left Jersey for Morocco where he resides permanently, working in his father's law firm.  He has since married and has another child.  It would seem that he would come to Jersey periodically to see the child, although there were clearly issues over contact, which led to the respondent applying for and obtaining a contact order on 14^th May, 2014. 

5.        In June 2015, the respondent gave the child's private school in Jersey notice that he would not pay the school fees, requiring the appellant to find a new school for the child starting that September.  The e-mail correspondence shows that on 11^th August, 2015, the appellant spoke to the respondent saying that she would like to move back home (Slovakia) with the child.  She said the child would go to a bi-lingual school in Slovakia (a matter of importance to the respondent, as his family communicates with the child in English) and the respondent could visit the child in Slovakia as easily as he could visit the child in Jersey.  Her e-mail of 13^th August, 2015, said this:-

"This best for [the child] and me.  It's also easier for you to travel it's a no brainer.  You told me in an email that you can't afford to pay for [the child's] camps, clothes, other activities you etc.  You haven't paid anything for two years for him since June 2015 you paid £200 p.m.  You are not supporting him to be able to live in Jersey.  On top you gave his school a notice in June 2015 that you will not pay for his school fees even though you signed up to this two years ago.  I am against [the child] starting a new school in Jersey this September as he will find it different to go to states school from private school.  You might be able to afford private school in Slovakia.  Me and my family certainly will.  Most of my family lives there and is there for emotional and financial support.  We have no family in Jersey as you know, you haven't lived in Jersey since [the child's] birth so I don't see why you are against this.  You can see him as often as you saw him in Jersey plus there are direct flights from Morocco to Slovakia there is literally no reason why you would say no.  Time is of the essence here as I don't want [the child] to have start a states school in September for a week or two me specially it would be a new school."

6.        The respondent did say no.  In his view, it was in the child's interest to remain in Jersey being educated here. 

7.        On 17^th August, 2015, the appellant filed an application for an order permitting her to take the child to Slovakia.  A directions hearing took place on 2^nd September, 2015, attended by the appellant in person and the respondent by telephone link.  The appellant was ordered to file her statement by 16^th September, 2015, and the respondent his statement by 30^th September, 2015.  Both parties were ordered to attend the Jersey Family Court Advisory Service who were ordered to prepare a full welfare report by 6^th January, 2016.  A final hearing was fixed for 18^th January, 2016. 

8.        The appellant and the respondent filed their written submissions as ordered, but on the 17^th September, 2015, the appellant left Jersey with the child for Slovakia and has not returned since.  She claims to have become unwell in Slovakia and unable, following doctor's orders, to return. Mr C Langford of the Jersey Family Court Advisory Service, was unable to meet with the appellant and the child to prepare his welfare report. 

9.        By e-mail of 1^st January, 2016, the appellant sought permission to withdraw or adjourn her application, but was told that this needed the consent of the respondent.  Ogier sought leave to excuse the respondent from attending the hearing on the basis that he would be represented by Ogier, but was told that it was not for the Registrar to excuse him from attending a final hearing.  In consequence, the respondent travelled with his family to Jersey to attend the hearing.  The appellant did not attend.  The Registrar made the following orders:-

"1.      the applicant's application for leave to remove [the child] from the jurisdiction is dismissed;

2.        the applicant shall pay the costs incurred by the respondent of and incidental to the application, including his travel expenses, to be taxed if not agreed.

AND WHEREAS on the 23rd June 2010 IT WAS ORDERED that neither party should remove [the child] from the jurisdiction without the consent in writing of the other or order of the Court, IT IS NOTED that the applicant has breached, and continues to breach, the order by removing [the child] from the jurisdiction without the consent of the respondent or order of the Court."

10.      In the Reasons which she subsequently provided (C-v-D (Family) [2016] JRC 010A), the Registrar explained at paragraph 10:-

"It is not disputed that the mother left Jersey in September 2015 with [the child] 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 [the child].  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 18th January.  She had been specifically advised that she could withdraw her application by consent or with the leave of 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."

11.      The appellant's appeal is against the decision of the Registrar and she filed a notice of appeal on 29^th February, 2016.  On 29^th April, 2016, the respondent issued a summons to show cause why the appellant's appeal should not be stayed until she complies with the terms of the Court order of 23^rd June, 2010, or that alternatively, she provides security for the costs of her appeal. 

12.      The appellant attended a date fix by telephone on 5^th May, 2016, at which 4^th July, 2016, was fixed for the hearing of the respondent's summons and 5^th July, 2016, fixed for the hearing of her appeal. 

13.      The appellant spoke to the Judicial Greffier on 15^th June, 2016, informing him that she would be unable to attend those dates by reason of illness.  There followed a letter sent by the Bailiff's Judicial Secretary to the appellant which stated inter alia:-

"You have informed the Judicial Greffier, Mr Matthews, that you are unable to attend Court on those days by reason of illness.  The Court can only consider changing those dates if it is in receipt of a medical certificate explaining the nature of your illness and why that illness prevents you from travelling to Jersey for a hearing of a matter that you have started.  That certificate will need to be in the English language and if it is a translation of a certificate that is not in English then it will need to be officially translated and that translation will need to be official.

If the Court does not receive those documents then it may be open to D to ask the Court to treat your appeal as withdrawn and in the absence of compelling reasons and evidence why it should not do so, the Court may take that course.

You should, therefore, either attend in Jersey to argue the various matters before the Court on 4th and 5th July 2016 or, alternatively, send immediately the necessary information to enable the Court to consider the position.  This letter has been sent to the address stated above which is the address that you gave the Judicial Greffier over the telephone.

Furthermore it has been sent to a variety of email addresses, also listed above, as we are informed that these have from time to time been useful in delivering communications to you.

An attempt will be made to explain the contents of this letter to you by the Judicial Greffier over the telephone."

14.      Subsequently, the Judicial Greffier made repeated efforts to communicate with the appellant without success.  On 23^rd June, 2016, the appellant wrote to Ogier enclosing a medical certificate translated into English which read as follows:-

"Medical certificate.

Follow-up examination: June 22nd, 2016:

The above mentioned is at that time medically unfit for work, she is on a sick leave, in home treatment from October 1st, 2015.  The patient completed conservative treatment and rehabilitation with the overall effect uncertain, she is not yet in a good state of health, continues with full analgesic and individual rehabilitation treatment.  The earliest examination is on July 8th, 2016.  The patient is not capable of transport in vehicles."

15.      In her letter, the appellant said that she was not able to travel to Jersey in the foreseeable future.  She did not attend on either 4^th or 5^th July, 2016. 

Decision

16.      The wrongful removal of a child from his or her country of habitual residence is a serious matter, addressed by The Hague Convention on the Civil Aspects of International Child Abduction which was given effect in this jurisdiction by the Child Abduction and Custody (Jersey) Law 2005. 

17.      The primary intention of the Convention is to preserve whatever status quo a child's custody arrangements existed immediately before an alleged wrongful removal or retention, thereby deterring a parent from crossing international boundaries in search of a more sympathetic court.  The Convention does not alter any substantive rights.  It requires that a court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard.  The return of the child is to the member country rather than specifically to the left behind parent. 

18.      If the respondent was still residing in Jersey, then no doubt an application would have been made by him, as the left behind parent, under that Convention, for the return of the child to Jersey.  There is no such application, because the respondent does not reside here. 

19.      Advocate Wakeling, for the respondent, was not suggesting that the order of 23^rd June, 2010, should now be complied with by the child being returned to Jersey, where neither parent resides, despite the wording of the respondent's summons. 

20.      Whilst the order of 23^rd June, 2010, prevented the respondent from removing the child from Jersey at all, the appellant was ordered not to remove the child from Jersey permanently.  She was entitled, therefore, to travel with him to Slovakia, but not to retain him there on a permanent basis.  Advocate Wakeling submitted that the appellant had not complied with the Court order of the 23^rd June, 2015, by failing to return the child to Jersey and was in contempt of Court, although no formal allegation of contempt had been raised in the summons and the respondent was not seeking the return of the child to Jersey. 

21.      Applying the civil standard, we think that on the balance of probabilities, the appellant has decided to remain in Slovakia with the child permanently, but a finding of contempt (punishable by reprimand, fine or imprisonment) requires the Court to apply the higher criminal standard, namely beyond all reasonable doubt.  Whilst the medical certificate she provided is unsatisfactory, the Court has a reasonable doubt as to the medical condition of the appellant and if asked, would be unable, on the evidence currently before it, to make a finding that the appellant is in contempt of this Court. 

22.      As for the appeal, the medical certificate gives no indication of the nature of the appellant's illness and why that illness prevents her from travelling to Jersey, as required by the letter from the Bailiff's Judicial secretary.  It is singularly opaque.  In our view and applying the civil standard, the appellant has not given a satisfactory explanation for her failure to appear at her appeal or to be legally represented at it.  She is in default. 

23.      We are therefore going to dismiss both the appeal and the summons, bringing to a close the litigation in Jersey over a child who no longer has any connection with this jurisdiction.  We have no information as to the means of either party, in particular the means of the appellant, and in the circumstances, we will make no order as to costs. 

24.      No question has ever been raised, as far as we can see, over the ability of the appellant to care for the child and indeed the respondent is on record as saying that he has no concerns for the child's welfare, knowing that he is well looked after by the appellant (see Mr Langford's letter to the Registrar of the 1^st May, 2014).  On that basis, we venture to suggest that if the appellant had cooperated with Mr Langford and attended the hearing before the Registrar on 18^th January, 2016, then it is most unlikely that the Court would have forced her to remain living in Jersey with the child against her will when:-

(i)        The respondent was no longer living in Jersey;

(ii)       Financial, emotional and social support was available to her in her home country of Slovakia that was not available in Jersey (see B v B [2002] JLR 5283); and

(iii)      There can be no material difference in the respondent travelling to Slovakia as opposed to Jersey in order to have contact with the child. 

25.      We detected from the papers an element of fear on the part of the appellant as to the respondent's intentions in respect of the child. Indeed, she had expressed to Mr Langford fears of the child being abducted by the respondent and taken to Morocco (see Mr Langford's letter of the 1^st May, 2014).  We are not aware of any evidence to support those fears; on the contrary the respondent appears to have consistently worked through and respected the legal system.  We note, however, that in his statement filed before the Registrar, he was contending that unless the appellant stayed in Jersey with the child, it was in the child's interest to live with him and his wife in Morocco.  Be that as it may, it must now be a matter for the courts of Slovakia, which are apparently already seized of proceedings commenced by the respondent (the precise nature of which had not been disclosed by him to Ogier), to make whatever orders are in the best interests of the child.  

Authorities

C-v-D (Family) [2016] JRC 010A.

Child Abduction and Custody (Jersey) Law 2005.

B v B [2002] JLR 528.