Family- application by the father for temporary leave to remove the children from the jurisdiction.
Before : |
Judy Marie O'Sullivan, Registrar, Family Division |
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Between |
U (the father) |
Applicant |
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And |
V (the mother) |
Respondent |
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IN THE MATTER OF U-v-V (TEMPORARY LEAVE TO REMOVE THE CHILDREN FROM THE JURISDICTION)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Mr U appeared on his own behalf.
Advocate S. McFadzean for the Respondent.
reasons
the family registrar:
1. These are more detailed reasons than given in court on the 13th April, 2017. This is an application by the father to have leave to take the children with him to his brother's wedding in Country 1. This follows a hearing before the Bailiff on the 7th April, 2017, at which the mother was represented by Advocate McFadzean, the mother giving evidence and the Bailiff also heard from the Jersey Family Court Advisory Service officer, Ms Elsa Fernandes. The mother had applied for an interim residence order and asked that the father be convened before the Court so that her application that an order be made preventing him from removing the children from Jersey and for a residence order in her favour could be heard. The Bailiff made an interim residence order in her favour (unpublished) conditional upon her presenting a formal application for residence within the course of the next four weeks, and noted that the interim residence order remain in place until that application for residence was determined by this Court. The mother has filed a residence application.
2. The mother has filed her Order of Justice and affidavit in support sworn on the 7th April, 2017, in these proceedings, the father filed an affidavit sworn on the 12th April, 2017, and the mother has filed an affidavit in reply sworn on the 13th April, 2017. The father provided an unsworn affidavit and statements from his brother, his parents and sister. I heard evidence from the father, the mother and heard from the JFCAS officer, Ms Fernandes and the submissions of the father and Advocate McFadzean for the mother.
3. I heard evidence from the mother as to how distressed the children are and the father too did accept that the children are distressed. When asked, Ms Fernandes said that the children are lost in this and her concern is that they are upset. She referred to the children putting the telephone down on their father and their fear of repercussions for doing so. Ms Fernandes said that whilst she has not met them, if they go away, this may cause them more emotional harm. I accept what the father says about it being a family occasion and that he would like the children to be present and be with their relatives. In an ideal world this should be so. The father says the mother has coached them but the mother was visibly distressed that he thought she would get their children to cry and wet themselves. She was upset that the children were upset and accepted that some of the fault for this lay with her. From reading the affidavits and hearing the evidence, the fault for the sad state that the children are in rests with both parents. Both have indulged in tit for tat responses to each other in respect of the children and money which has fuelled the acrimony between the parents at the expense of their children. The mother says that it is a dreadful situation and Ms Fernandes says that things are worse than before. Whilst Ms Fernandes has no doubt that each of the parents love their children, their behaviour towards each other has led to this situation where the children are lost and upset.
4. Is there a risk that the father could take them from Country 1 and on to Country 2i, not returning the children to Jersey? The father is resident in Country 2 which is a non-Hague convention jurisdiction. The mother had agreed, in or about mid-March, for the children to travel to their uncle's wedding in Country 1. They are due to be ring bearers.
5. The father says that the suggestion that he would take them on to Country 2 is ludicrous as he intends to bring the children back to Jersey after visiting Country 1 with them. There have been trips to Country 2 before by the children previously permitted by the mother but she says this has always been when the children have been accompanied by herself or the paternal grandmother. While the mother may previously have agreed to visits to Country 2, the mother does not agree to visits there now. The father says this is all about money.
6. The mother says that the father has given notice to the children's school; he has failed to provide details of his intended travel plans, which is disputed as the father says details of the original flights were sent to the mother, having been due to depart on the 10th April, 2017, returning on the 22nd April, 2017. In his affidavit he says he rebooked for the 18th April, 2017, returning to Jersey the 25th April, 2017. The mother says he has made a number of threats designed to cause difficulty to the mother, and made it clear that his intention is:
"to get you convicted (p)ut in jail and I would get custody and that is [what] I am going to do".
She said he has threatened to remove the children in the past, has recently stated that he will make the mother's life as difficult as possible whether by jailing her, securing custody of the children or having the children "taken into care". She said he had threatened to disappear and demonstrated from his emails considerable hostility to her. He has stated that his intention is to apply for new passports for the children if she will not provide the children's passports to him. In an email dated 6th April, 2017 he wrote:-
"I'm determined to make this the most difficult, aggressive and painful year yet"
and in December 2016 said that she was:
"basically scum... and would probably have a party if you had a sudden tragic accident."
He said she had made it so difficult to be an active father but it was not meant as a threat to the mother's life. However, against this background, the mother considers that there is a real risk that the father may not return the girls, particularly as he has refused to take the steps requested to ensure that they can find a new school and failed to comply with her requests to get in contact with the Education Department at the States of Jersey to sign the paperwork to enable the girls to attend a local school.
7. The welfare of the children is paramount and a Court must take into account the "welfare checklist" listed in Article 2(3) of the Children (Jersey) Law 2002. My concern is for the welfare of the children and the distress they are showing. I particularly bear in mind what Ms Fernandes has said.
8. I was referred to In the matter of R (a child) [2013] EWCA Civ 1115 in which the English Court of Appeal identifies the matters to which the Court must pay regard in deciding an application for temporary leave to remove to a non-Hague convention country, citing Thorpe LJ and his judgment in Re K (Removal from jurisdiction: Practice) [1999] 2 FLR 1084) at paragraph 25 of the judgment. Lord Justice Patten confirms the test to be applied by the Court on an application for temporary removal of a child to a non-convention country. At 25, Patten LJ explains that:-
"applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:
a) the magnitude of the risk of breach of the order if permission is given;
b) the magnitude of the consequence of breach if it occurs; and
c) the level of security that may be achieved by building into the arrangements all of the available safeguards. "
In cases such as these, it has been held that if in doubt, the Court should err on the side of caution and refuse to make an order allowing a child or children to leave. Country 2 is a non-convention country. There are no safeguards in place and the mother has no funds to fly to Country 2 should the father take the children to Country 2 even for a brief period or to fund any litigation.
9. I have considered the skeleton arguments and the submissions of the parents. The welfare of the children is paramount including in a case for a temporary external relocation. I have already set out the emotional distress the children are experiencing and the fact that Ms Fernandes says that going away with their father may cause them more harm. In the circumstances I consider that the children should not go on holiday with their father at this time as I am concerned about the father's current attitude which has left the children distressed and fearful. There is the added factor that the father lives in Country 2 and in that regard I am erring on the side of caution. In the light of the above, I consider it is in the children's best interests that the trip does not go ahead.
10. I am so concerned about the children that I am going to appoint Mrs Eleanor Green as the children's guardian ad litem in order to represent them in light of the mother and father's applications before me regarding residence and contact. I also order that an advocate be appointed to represent the children to be paid out of public funds.
11. I am pleased that both parents have agreed to see a mediator in London and the sooner the better. I have urged them to do so as otherwise unless they resolve issues they will be back yet again before a Court causing additional stress and unhappiness to their daughters. Any mediation may well involve several sessions as there are clearly longstanding matters they need to discuss, and they need to listen to the concerns of each other. It may be a sad and difficult process for them but I hope they will persist with the mediation for the sake of their children and ultimately be able to work together in a positive way to jointly parent their children. I have posed these questions before but having heard the distress the children are experiencing repeat them again. How upsetting is it for them that the people they love cannot get on? How does this affect them now, and how will it do so in the future when they look back on their childhood? How will they look back at their parents' part in it? How will it affect their adult relationships in turn?
Authorities
Children (Jersey) Law 2002.
In the matter of R (a child) [2013] EWCA Civ 1115.
Re K (Removal from jurisdiction: Practice) [1999] 2 FLR 1084.