Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Ramsden and Christensen. |
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Between |
Mr and Mrs C (the paternal grandparents) |
Applicants |
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And |
A (the mother) |
First Respondent |
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And |
B (the father) |
Second Respondent |
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And |
D (the maternal grandfather) |
Third Respondent |
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And |
The Minister for Health and Social Services |
Fourth Respondent |
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IN THE MATTER OF WILLIAM (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate C. R. Dutôt for the Applicants.
Advocate H. J. Heath for the First Respondent.
Advocate M. R. Godden for the Second Respondent.
Advocate C. R. G. Davies for the Third Respondent.
Advocate R. S. Tremoceiro for the Fourth Respondent.
judgment
the commissioner:
1. On 5th January, 2018, the Court discharged a supervision order made in respect of William ("the child") aged 4½ years, and gave the applicants ("the paternal grandparents"), with whom he resided under a residence order, leave to remove the child from Jersey, pursuant to Article 14 of the Children (Jersey) Law 2002 ("the Children Law") to live with them in Z. We now set out our reasons.
2. The application was supported by the fourth respondent ("the Minister"), the second respondent ("the father") and the third respondent ("the maternal grandfather").
3. The first respondent ("the mother"), who the Court was satisfied had been given reasonable notice of the date of the hearing, did not attend the hearing and had not given any instructions to her counsel, Advocate Heath, who was, as a consequence, released from the hearing. The Court was satisfied, pursuant to Rule 17(4) of the Children Rules 2005 that the circumstance of the case justified proceeding with the hearing.
4. In this case, the Court had been satisfied on 22nd June, 2017, that the child had suffered, or was likely to suffer, significant harm attributable to the care given to him by the mother and the father. It is not necessary for the purposes of this judgment to summarise the basis upon which that finding was made. Fortunately, the paternal grandparents had been able to step in, and had cared for the child from October 2016, although they had been actively involved in trying to safeguard him earlier than that.
5. On 22nd June, 2017, the Court granted the paternal grandparents their application for a residence order and also made a supervision order for a period of 12 months, the principal purpose of which was to assist the paternal grandparents in the transition from contact between the child and the mother, the father and the maternal grandfather being supervised by the Children's Service to that contact being supervised by the paternal grandparents. The Court ordered that the supervision order should be reviewed after six and nine months, with consideration to be given to an early discharge.
6. The mother had not engaged with or instructed her advocate and did not attend the final hearing on 22nd June, 2017, later advising the then social worker that she could not face attending.
7. The evidence of the social worker, was that the child had thrived in the care of the paternal grandparents. He had been attending school since September 2017 and the head teacher had not identified any concerns regarding his presentation, behaviour or ability to learn.
8. The mother had attended the monthly contact sessions supervised by the Children's Service, and was advised by the Children's Service that her contact session after 14th December, 2017, would be supervised by the paternal grandparents, which she appeared happy about, but she has not contacted the paternal grandparents since that meeting.
9. The maternal grandfather, who was unable to attend the hearing through ill health, expressed trust in the paternal grandparents and confirmed that they loved the child and cared for him well. He had been unable to attend the first contact session supervised by them on 19th October, 2017, because he was unwell, but the grandparents had worked well together in the past, in the interests of the child, and Miss Codrington had no concerns about them working well together over contact in the future.
10. The maternal grandfather and the mother expressed no surprise at being informed by the Children's Service of the proposed move to Z, as it was known to them to have been a plan of the paternal grandparents for some time. The paternal grandparents had holidayed there for fifteen years and travelled there three to four times a year, latterly with the child. The paternal grandmother has two sisters and a niece and nephew living there, and both paternal grandparents have friends there. They have purchased a two bedroomed apartment in Z in July 2017.
11. The paternal grandparents had made inquiries with regard to both schooling and health care for the child. There were two local schools that he could attend, one private and one state run, within easy distance of the apartment. Both schools were international and bi-lingual, and the child would have the benefit of growing up learning a second language from an early age. They had taken legal advice, and ascertained it was not possible for the child to obtain a place in any such school until he re-locates there with at least one adult, and is granted residency status. If the Court approved the application, they proposed to initiate the residency application from Jersey, and then attend in Z for the requisite appointment, after which they would become residents and the child entitled to schooling in Z. They would be able to keep any disruption to his education to a minimum.
12. They currently have private health care, but intend transferring to another provider, which is its Z partner. They also intend to subscribe to an emergency medical service which provides 24 hour response, wherever you are in the country by helicopter. They all have current European health cards, and are registered at a local dental practice..
13. They put forward the following proposals in terms of contact between the child and the mother and the maternal grandfather:-
(i) They would return to Jersey twice a year at their own cost during school holidays to facilitate the child having supervised contact with the mother, the father and the maternal grandfather.
(ii) They would extend an open invitation to the mother, father and maternal grandfather to have unlimited visits to Z at their own cost, for supervised contact with the child; and
(iii) They would facilitate visual electronic or telephone contact once a month between the child and each of the parties.
14. In her contact with the Children's Service, the mother has said, understandably, that she did not want the child to go to Z, and although the contact arrangements put forward by the paternal grandparents would enable her to still see him, which she described as good, she would still prefer him to stay in Jersey. She was strongly advised to seek legal advice, but said she was reluctant to contact Advocate Heath, as she was embarrassed by not contacting her or attending the final hearing. She later confirmed that she had not sought legal advice.
15. The social worker said that the mother was difficult to deal with, as she would not respond to calls. In her view, the mother finds the position of the child emotionally overwhelming.
16. Article 33(2) of the Children Law provides that:-
"(2) A supervision order may be varied or discharged by the court on the application of -
(a) any person who has parental responsibility for the child;
(b) the child; or
(c) the supervisor.
17. Article 13(2) of the Children Law provides that where the Court makes a residence order in favour of any person who is not the parent or guardian of the child concerned, that person shall have parental responsibility for the child while the residence order remains in force. Accordingly the paternal grandparents have parental responsibility for the child by virtue of the residence order made in their favour by the Royal Court on 22nd June, 2017, and had locus to apply to discharge the supervision order.
18. Article 13(2) of the Children Law provides that where the Court makes a residence order in favour of any person who is not the parent or guardian of the child concerned, that person shall have parental responsibility for the child while the residence order remains in force.
19. There is no specific Jersey case law on the approach to be applied in discharging a supervision order. However, there is case law on the discharge of a care order and as the making of a care and supervision order are subject to the same legal test under Article 24 of the Children Law, Advocate Dutôt submitted, and we agreed, that it would seem logical that the same test should be applied to the discharge of a supervision order as a care order.
20. In the matter of C [2012] JRC 112, the Royal Court determined that whilst there was no specific guidance on the grounds for discharging a care order made under the Children Law, the Court should in deciding whether to discharge such an order have regard to the welfare checklist set out in Article 2(3) of the Children Law. The burden is on the applicant to show the reasons why the revocation is warranted (paragraph 15).
21. Turning to the removal of the child from the jurisdiction, whilst the residence order gives the paternal grandparents parental responsibility for the child, it does not give them the ability to remove the child from the jurisdiction for more than one month. Under Article 14 of the Children Law they need either the written consent of every person with parental responsibility for the child or the leave of the Court to do so. They have the written consent of the father (who has parental responsibility), but the mother has not given her consent, and accordingly leave was required.
22. Jersey case law on leave to remove children from the jurisdiction is understandably focused on applications between parents, often following the breakdown of a relationship. However, Advocate Dutôt submitted, and we agree, that the general principles the Court has sought to apply in those cases can be extracted and applied to the application before it.
23. In S-v-A [2005] JRC 168, it was held that when considering such an application, the Court will look to English law for guidance and it should consider:-
"(a) whether the application was genuine, i.e. not motivated by a selfish desire to exclude the other parent from the child's life, and realistic, i.e. founded on practical proposals which have been well researched and investigated; (b) if so, whether the other parent's opposition to the application was motivated by a genuine concern for the child's future or an ulterior motive, and the extent to which the detriment to his future relationship with the child might be offset by an extension of the child's relationships with other family members of his homeland; (c) the impact on the carer parent, as a single parent or spouse, of a refusal of the application. Although the child's welfare was the paramount consideration, great weight should be given in this respect to the emotional and psychological well-being of his primary carer; and (d) finally, weigh up all of those factors bearing in mind the overriding importance of the child's welfare (Payne v Payne, [2001] Fam 473; [2001] 1 FLR 1052; [2001] 1 FLR 1052; [2001] 1 FCR 425, DICTA OF Thorpe, L.J. applied)."
24. A concern arose in England that the first three of these factors had become elevated from guidance into principles or presumptions, instead of being part of a welfare analysis. In the Court of Appeal decision of DF v N B-F [2015] EWCA Civ 82, Ryder LJ at paragraph 18 of his judgment described it as odd for the Court to use guidance which, out of the context which was intended, is redolent with gender based assumptions as to the role and relationships of parents with a child. The absence of any emphasis on the child's wishes and feelings or, to take the question one step back, the child's participation in the decision making process was stark. The child in that case was aged 12.
25. He summarised the position under English law in this way at paragraph 15:-
"15 The approach to be taken to cases where one parent seeks permission to remove a child permanently from the United Kingdom has been considered exhaustively in the three leading authorities (Payne, K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134 and Re F.). In Re F, Munby LJ identified that K v K is now the starting point:
'[29] The starting point now must be K v K. Its central message is conveyed, succinctly and accurately, in the headnote in the Law Report:
'... that the only principle to be applied when determining an application to remove a child permanently from the jurisdiction was that the welfare of the child was paramount and overbore all other considerations however powerful and reasonable they might be; that guidance given by the Court of Appeal as to factors to be weighed in search of the welfare paramountcy and which directed the exercise of the welfare discretion was valuable in so far as it helped judges to identify which factors were likely to be the most important and the weight which should generally be attached to them and promoted consistency in decision-making; but that (per Moore-Bick and Black LJJ), since the circumstances in which such decisions had to be made varied infinitely and the judge in each case had to be free to decide whatever was in the best interests of the child, such guidance should not be applied rigidly as if it contained principles from which no departure were permitted."
I need quote only what Thorpe LJ said (paragraph [39]:
'... the only principle to be extracted from Payne v Payne is the paramountcy principle. All the rest, whether in paragraphs 40 and 41 of my judgment or in paragraphs 85 and 86 of the President's judgment is guidance as to factors to be weighed in search of the welfare paramountcy.' "
26. He went on to say at paragraph 19:-
"The approach which is now to be applied could not have been more clearly stated than it was in Re F where Munby LJ said at [37] and [61]:
'[37] There can be no presumptions in a case governed by s 1 of the Children Act 1989. From the beginning to the end the child's welfare is paramount and the evaluation of where the child's interests truly lie is to be determined having regard to the 'welfare checklist' in section 1(3)'
'[61] The focus from beginning to end must be on the child's best interests. The child's welfare is paramount. Every case must be determined having regards to the 'welfare checklist', though of course also have regard, where relevant and helpful, to such guidance as may have been given by this Court.'"
27. We accept that this should also be the approach of this Court.
28. In terms of the supervision order, the social worker said that the Children's Service had no concerns over the ability of the paternal grandparents to supervise contact. They were clearly parenting the child well, and there was no longer any justification for the involvement of the Minister, who supported the lifting of the order. We had no difficulty, therefore, having had regard to the welfare checklist, in granting that application.
29. In terms of the move to Z, we were satisfied that the decision by the paternal grandparents was genuine and had been a long held ambition of theirs. There was no question of their being motivated to exclude the mother from the child's life; on the contrary, their approach to contact with the mother had been child focused and responsible and they had put forward very reasonable proposals to allow contact to continue.
30. The mother had not come to Court to oppose the application, but we could understand her wish that the child should remain in Jersey, not just to ease contact with him, but no doubt, because, like any mother, she retained the hope of regaining his care at some point in the future.
31. The impact upon the paternal grandparents of a refusal to give leave would be considerable. They had already stepped in as grandparents to care for the child at a stage in their lives where they would be entitled to think their parenting days were over. They now face the possibility of having their long term plan to move to Z put on hold for what could be twelve years or more (a residence order would end when the child attained sixteen years), and this at the request of a mother who had caused the child significant harm in the past, and whose current involvement with the child could only be described as unreliable. We could anticipate very deep frustration and resentment setting in which would not be in the interests of the child and which could be destabilising of his current placement.
32. Turning to the welfare checklist, and the ascertainable wishes and feelings of the child, considering his age and understanding, he had not been asked directly for his views on moving permanently to Z. He was too young to understand what a permanent move would mean, but he currently enjoyed his visits to Z and although he would no doubt miss the regular monthly contact sessions with his mother (assuming they took place) he would still see her regularly.
33. In terms of the child's physical, emotional and educational needs, these had been met by the paternal grandparents since the child was in their care. As stated above, they had looked into his education in Z and they accepted that, in terms of emotional needs, they would need to prepare him for the move. School had confirmed that they would be supportive and ensure that he had a planned end to his education and peer friends here, and also transfer his educational information to his new school, via the paternal grandparents.
34. This leads on to the next item on the welfare checklist, namely the likely effect on the child of any change in his circumstances. He had visited Z with the paternal grandparents. There are family and friends there to provide a support base and there would be no change in his primary carers. He will need time to understand the move to Z and to adjust to living there, as opposed to just visiting, and will need to settle into a new school, but he has the advantage of his young age and the emotional support of the paternal grandparents.
35. There are no aspects of the child's age, sex, background and characteristics that are of particular relevance, and he is not at risk of suffering harm in the care of the paternal grandparents.
36. The mother is not capable of meeting the child's needs and caring for him, as evidenced by the findings of the Court that led to the making of the residence and supervision orders. The same applies to the father, although he has given his consent to the move to Z.
37. The child's welfare is paramount and having regard to the welfare checklist, the key consideration, in our view, was his secure attachment to the paternal grandparents, an attachment confirmed by the social worker. It was in maintaining and supporting that relationship that the child's best interests lay. If the paternal grandparents had a long held and genuine desire to live in Z, then his best interests lay in going with them as a family unit and from that secure base, the challenges inherent from such a move would be easily overcome, particularly for a child as young as four.
38. The arrangements put forward by the paternal grandparents for contact were reasonable, and Z is of course a country that is easily accessible. Leaving aside physical contact, we are today blessed with an ability to communicate through media such as Skype or Facetime, and the paternal grandparents have made it clear that they are prepared to facilitate such contact.
39. The paternal grandparents had asked for but not yet received advice from their Z lawyer on whether any order of this Court could be registered in the Z courts. We did not wish to hold up their plan to move on this account, but recommended that they explore the possibility of so doing, and if the cost was reasonable, to register the order, in order to secure the position in Z in the interests of the child and all of the parties.
40. We also thought it right to encapsulate the contact proposals in an order of the Court but building in flexibility so that the parties could vary the contact arrangements from time to time should they so agree.
41. In conclusion, and for all these reasons, we discharged the supervision order and gave leave to the paternal grandparents to take the child out of Jersey to live with them in Z.
Authorities
Children (Jersey) Law 2002.
Children Rules 2005.
In the matter of C [2012] JRC 112.
DF v N B-F [2015] EWCA Civ 82.