Jersey Unreported Judgments

Family - application by the Mother for leave to remove the child from the jurisdiction.

[2019]JRC090A

Royal Court

(Family)

17 May 2019

Before     :

Samantha McFadzean, Registrar, Family Division.

 

Advocate C. G. Hillier for the Applicant.

Advocate G. D. Emmanuel for the Respondent.

Reasons

the Registrar:

1.        The child was born in Jersey in 2017 to the applicant, now thirty nine, who was born in Country A.  His forty-three year old father is a Jersey man.  I hope that the parties will excuse me if I describe them as "Mother" and "Father" as it is in those parental capacities that I have to determine this application by the Mother for leave to remove the child from Jersey in order that she and the child can live in the country of the Mother's birth.  At time of the hearing, the child was two weeks shy of his second birthday. 

2.        The Father's application is for a shared residence order and a prohibited steps order to prevent the Mother taking the child to Country A.

Background

3.        The Mother left her parents' home in Country A when she was twenty-three and moved to Country B for some eighteen months, with one a brief spell of a few months back in Country A, before relocating to Jersey on 20 August 2006.  The Mother worked here until shortly before the child's birth.  She has therefore been away from Country A for fourteen or fifteen years. 

4.         The Father has lived in Jersey his whole life and attended schools locally.  He did not leave the island to attend university.  He has worked in various fields but was working for a retail outlet when the parties met in the summer of 2015 and during the months thereafter, when they began cohabiting in rented accommodation in March 2016. They acquired a retail business together just a few months later where the mother worked, until a few months before the child was born, when the Father resigned from his job and took over the running of the business they had bought together. 

5.        The Father described the child's birth as "the best, most exciting and wonderful and at the same time terrifying, moment of his life".  I gleaned from the Father's evidence that, not only was the child wanted but, the pregnancy was planned.

6.        The child was born by caesarean section and returned home with his besotted parents in 2017.  It was, for a few short months, a very happy time for this new family. 

7.        Sadly, and in spite of attempts at family therapy, by January 2018, the Father had left the family home for good and moved back in with his parents.  The separation was made all the more difficult by the parties' apparent inability to agree on anything, but significantly, for the purposes of this application, particularly on the Father's contact with the child.

8.        When the lease on the former family home came to an end in March 2018, the Mother and the child moved into two bedroomed rented accommodation.  The Father now has a similar home which he also rents.  The Mother is a full time carer for the child and relies on benefits to meet the cost of her rent and her day to day living needs.  She receives £100 per week by way of maintenance for the child from the Father.

9.        The Father recently acquired the Mother's share in their business, which he now runs with the assistance of a full time employee.  He says that the prospects for the business are improving after a period in which the Mother and Father could not agree on the level of income that each should take from the profits and the bank withdrew its banking facilities, forcing this retail business to close.  The Father alleges that the Mother wrongly withdrew funds, the Mother alleges that the father failed to pay her the share of the business income which she was due.  Neither parent put forward a case about these issues other than in their written evidence and these allegations were not the subject of questioning other than by me.

The proceedings

10.      The Mother's application for leave to remove was made in March 2018 and opposed by the Father.  The initial JFCAS report, prepared by Eleanor Green, recommended that a psychological report be commissioned to assess the Mother's emotional health [because of concerns that she might be suffering from post-natal depression] and the parties' relationship dynamic in general and its potential effect on their ability to parent the child.  The Court was therefore assisted by a report by Dr David Briggs, who gave evidence at the hearing by video link.

11.      I heard from the Mother and Father and their advocates over two days, but also heard evidence from the paternal grandmother.  The maternal grandmother, also gave evidence by video link from Country A, with the assistance of an interpreter.

12.      The JFCAS officer appointed to the case, Chris Langford, reported to the Court, initially in writing, and after hearing all of the evidence gave his own evidence, for which the Court is grateful.  Mr Langford did not feel able, either in his report, or after hearing the live evidence, to recommend that the Court accede to the Mother's application.  I take the recommendations of the JFCAS officer into account but am not bound by his conclusions if I find good and cogent reason to disagree about how the child's welfare is best served, taking into account the totality of the evidence put before me.

The Mother's case

13.      The Mother's case was put on the basis that the lives of her and her son would be improved by a move to Country A.  Her first affidavit provided evidence, principally, about the breakdown of her relationship with the Father and his family and contained comparatively little about the proposed move or the suggested benefits to the child, save to explain that she would live with her mother and sister (in what appears to be appropriate accommodation) and work for a friend of hers.  The Mother's second affidavit set out, exhaustively, the benefits of life in the country of her birth, particularly as regards education and healthcare, and her proposal for the child's contact with his father. 

14.      What was clear from the Mother's oral evidence was that one of the principal reasons for her proposed move with the child was a financial imperative to improve her quality of life.  The Mother finds life here to be "difficult and expensive" and is particularly concerned about meeting the child's health needs given her financial position.  She described life in Jersey as very expensive for a single person, particularly with no support from the Father other than for maintenance for the child of £100 per week.  

15.      She was highly critical of the Father, not only because of what she perceived as his failure to support her and the child, but also, in more general terms, as a parent.  Her first affidavit deposes to disagreements, for example, as to breastfeeding, the Father's failure to provide additional respite care when she felt that he should, his failure to attend one of the child's swimming lessons following a night out with the child's godfather, how he chose to spend limited time with the child and how he manged their business affairs and monies after the relationship breakdown.  Moreover, she was critical of what she perceived as the Father's laid-back approach to matters which, she acknowledged, was at odds with her own more forthright style.

16.      For example, the Mother gave evidence, that the Father had failed to step in when she asked for him to look after the child for a few additional hours, both when her best friend came to visit her in Jersey, but also, only a few weeks ago, the night before she was due to leave to attend her father's funeral in Country A.

The Mother's proposal

17.      The Mother's evidence, supported (at least in part) by the video evidence given by her own mother, was that she would move  to live with her mother and half-sister in the five bedroom house in Country A which belonged to her mother and late father, from which she moved away some 17 years ago.  Following her father's recent death, I understood that she would inherit his share of the property.  She proposes that the child, once he reaches three, would attend a nursery school nearby from 6:30am to 5:30pm and that her mother would babysit as and when required.  The nursery is attached to the school that the child would then attend until he was 15 or 16.  No school fees would be payable and she would have only to pay for the child's lunches.

18.      The Mother hoped to use her organisational and excellent English skills to good effect in a clothing business owned by a friend, in which, as I understood it, she proposed working full time.  Living in her mother's home would mean that she had no rent to pay.

19.      The Mother considered that the opportunities available to the child in Country A would be greater than those in Jersey; she thought that Country A offered greater diversity and gave evidence that Jersey was - comparatively - devoid of culture.  She also pointed out that opportunities for travel from Country A were greater and easier than from Jersey.

20.      The Mother considered that the benefits to the child of getting to know his maternal family would alleviate the potential upset caused by the proposed change in his circumstances.

21.      As to the child's contact with his father, her proposal was for the Father to see the child for up to nine weeks per annum.  She offered the use of her mother's house for this purpose when the Father travelled to Country A.  She suggested that contact might also take place in Jersey or the UK.  The Mother explained that the school holidays are different in Country A with school age children enjoying, for example, two months' holiday in the summer but only a couple of days at Easter.  She further explained that headmasters of Country A schools are not as intransigent as those in Jersey about children being taken out of school for the purposes of foreign travel, which is considered as beneficial so long as the child is not struggling academically.  The Mother's own evidence was that she would do all that she could to accommodate the Father, to facilitate contact.

22.      The Mother's evidence about her relationship with the Father was instructive: they do not speak by telephone or face to face.  They do not use the recommended handover book to facilitate the passing of information between them about the child for the benefit of the other parent during contact.  They communicate only by text or through lawyers.  The Mother told Dr Briggs that she thought their relationship would improve if she were permitted by the Court to take the child to her home country.

23.      The Mother was clear that if leave to remove were not granted, she would remain in Jersey and apply to the Court again.

The Father's case

24.      The Father's written and sworn evidence, like that of the Mother, focused initially on the relationship and its breakdown, with his affidavit detailing how the breakdown highlighted the very different approaches which they each have, not only to life, but also to parenting.

25.      He described the Mother as controlling, needing to know "every little detail of every part of (their) lives".  He described how when things did not go as she had planned, she would shut down and not speak to him for days.  He was, he felt, systematically excluded from the child's life once their relationship had broken down.  He alluded to a disagreement with the Mother about having arguments in front of the child; he was of the view that it should be avoided whereas the Mother considered that it was "healthy and fresh".  The Mother and he disagree about whether smacking is appropriate.  He was particularly upset when the child burned his hand on a radiator and the Mother took the child to A & E but did not tell him.  The Father thinks that this is just one example of his former partner asserting herself as the only individual with the right to care for the child's well-being and to determine how the child should be parented.

26.      It is, he suggests, for this reason that the Mother tried to exclude his parents and family, who live locally, from the child's early life.  He described an upsetting text message which the Mother had sent to the paternal grandmother which he said suggested that his parents were not to see the child until his child was old enough to "show them his room".  The paternal grandmother, whose written evidence had included only a short (and I consider, self-serving) excerpt from that text, gave evidence that the text had made her feel upset because all she wanted to do was help.  When I asked for sight of the whole text, it became clear that the message, the day after the Mother returned with the child from hospital, regardless of how it was received, was a reasonable request from a new mother to have some breathing space.  

27.      However, it was clear from the Father and the paternal grandmother's evidence that theirs is a close knit and loving family, who are used to playing a large part in each other's lives and the paternal grandmother could not understand quite why the Mother wanted to have "some space" as she had asked in her text message.  The Mother gave evidence to the effect that she did not understand the paternal family's closeness, which she construed as interference. 

28.      The Father says that the Mother is quick to anger and he claims that she has made threats against his life.  He asserted that the Mother had said that if she ever saw him walking down a street in Country A, she would kill him.  The Mother denies ever making such a threat.  He also claims that the Mother had threatened to "teach the child to hate" him.  He cannot imagine exercising contact with the child by staying in the family home in Country A, given the dreadful relationship he has with the Mother. 

29.      The Father considers that the Court should grant a shared residence order; he told the Court that he had asked the Mother for more contact with the child repeatedly and had offered his own mother's assistance to care for the child at other times but had been rebuffed.  He is currently having an overnight with the child during the week and an overnight on alternate weekends.  He was proposing that the child spend a good part of his time with him in his two bedroom flat and that, in due course, the child should attend a private school, as he described himself as being in a financial position to be able to provide the child with private schooling.

30.      The Father's disapproval of the Mother's plan to relocate with the child can be distilled into two overlapping areas of concern:-

(i)        firstly, that she will seek to isolate him and his family from the child because of her strong feelings about him and her resentment of the poor way in which she feels he has treated her since the relationship broke down; and

(ii)       secondly, that the history of the Mother's  relationship with her own family negates the protective factor, which the Mother asserts that her proposed home with her mother and sister will provide the child, by offering the Father  a guarantee that contact will ensue after the proposed move.

The Mother's dispute with her own family

31.      The latter concern is based on a disagreement which the Mother had with her Country A family, which led to the Mother having no contact with them for some five years or so.  Mr Langford, in his report to the Court, alluded to this disagreement which he had discussed with the maternal grandmother.  She told him, through her interpreter, that "it was nothing major" and "it was something of a minor disagreement and I don't want to talk about it".

32.      In evidence, the maternal grandmother explained that, in or around 2012, her other daughter, the Mother's half-sister, had an "unpleasant health complication" and that she had asked the Mother to return from her travels to Africa, presumably to support her and her sister.  The Mother refused and this meant that they did not speak for the next five years.  The Mother said in evidence "I chose Africa instead of my family".

33.      The Father's evidence was that when he and the Mother visited Country A in April 2016, he was surprised not to meet the Mother's family and was also surprised to hear at Court that the relationship between the Mother and her family had restarted when the Mother had written to her family with news of the birth of the child, some three weeks after he was born.  He told the Court that he had repeatedly suggested to the Mother that she should get back in touch with her family but that she had refused.

34.       He was unaware that they were back in touch until this application was made.  He considers that the rekindling of the relationship had taken place for the purposes of this application. 

35.      I note that the Mother did not take the child to meet his Country A family until the recent unexpected death of her father just a few weeks before the hearing.   

Dr Briggs' evidence

36.      Dr Briggs said that there was no evidence that the Mother was suffering, at the time of his meeting with her in September 2018, from any form of depression or personality disorder but considered that the symptoms she described as suffering, post the child's birth, did appear to "represent essential elements of a depressive disorder" from which he was satisfied that she was no longer suffering.

37.      He described the Mother as "forceful in character" and "blunt" but recognised, as the Court does, that there may be, not only some linguistic challenges which the Mother faces in giving evidence because the Mother's English, although excellent, is not her first language, but also "some cultural differences at play".  He perceives the Mother, he told the Court, as strong, resilient, organised, stubborn and "not needing people around her".  He also alluded to her "lack of emotional flexibility".

38.      Dr Briggs had no concerns whatsoever about the Mother's ability to care for the child.  He described seeing evidence of "excellent parenting" but discerned some level of resentment of the Father and raised concerns in his report, and in his evidence to the Court, about the risk of the Mother's personality, effectively, interfering in what he otherwise described as a good framework for contact.  He feared that, with her forceful character, there would be a gradual diminution of the Father's role in the life of the child because what, on his analysis, the Mother is missing is a lack of sensitivity to the importance of the Father's relationship with the child, still having as he finds that she does, unresolved issues about the breakdown of her relationship with the Father.  He concluded that there was a risk that, if leave to relocate were granted, the Mother would "move on" without the Father and that there was little that the Father could do in those circumstances if the Mother marginalised the Father.  He also expressed an element of concern about the Mother's estrangement from her own family which he had not fully understood and considered that her ability to shut out those who did not, for whatever reason, meet her exacting standards, did not bode well for the Father.

The position of the JFCAS officer

39.      Mr Langford's helpful report recommended that the Court make no order, that leave to remove be refused.  His concerns mirror those of Dr Briggs.  He accepts, as does the Court, that Country A is, in theory, a suitable home for the child.  The accommodation sounds suitable, as do the education and healthcare systems, though he expressed a note of concern about the child's exposure to the English language being limited, even though the Mother's evidence is that it is a compulsory subject at Country A schools, even at primary level.  Furthermore, he considers that the Mother's proposal for nine weeks' contact per annum is reasonable but he would prefer such contact to be monthly.

40.      However, he said that even were contact to be monthly, he could still not endorse the plan because he considers that there is a risk of the Mother failing to promote the Father in the child's life and, furthermore, failing to build a positive image of the Father in the child's eyes because he perceived the Mother's input at interview to be predominantly negative about the Father.

41.      Mr Langford's concerns have not been alleviated by what is, clearly, a very poor relationship between the Mother and the Father and the risk that this will deteriorate further, should the Mother be given permission to leave with the child.  He also expressed significant concern about the chequered history of the Mother's relationship with her own family and I inferred from his evidence that he had a suspicion that the re-establishment of the relationship had been for the purposes of the application but that his principal concern now was that it was not, yet, a solid enough relationship upon which to base a new life for the child. 

42.      Mr Langford did not, however, accept that there was a credible risk of the Mother "disappearing" with the child, if her relationship with her own family broke down again as the Father had suggested; his concern was more nuanced i.e. that the Mother's view of the Father would likely not promote the child's relationship with him and that, at a distance, there would be little that the Father could do to prevent an erosion of that relationship, particularly at such a young age, when contact by, for example, Skype, or telephone was effectively meaningless.

43.      In recommending that leave be refused, Mr Langford did not propose a shared residence order but suggested that the child have an additional overnight contact with the Father each week.

The Law

44.      Counsel for both parties agreed in line, with Re F [2015] EWCA Civ 882  and my earlier decision in A v B [2019] JRC001A, that,

"Lord Justice Thorpe's famous "discipline" in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance".

45.      Counsel agreed that I am therefore bound to undertake a holistic analysis of the factual matrix put before me against the welfare of the child and to weigh up how the factors enumerated in Article 2 of the Children (Jersey) Law 2002 apply to the child, against the background of the Mother's proposal.

"(1)      When the court determines any question with respect to -

(a)        the upbringing of a child; or

(b)        the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.

(2)       In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. 

(3)       In the circumstances mentioned in paragraph (4), the court shall have regard in particular to -

(a)        the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding);

(b)        the child's physical, emotional and educational needs;

(c)        the likely effect on the child of any change in his or her circumstances;

(d)        the child's age, sex, background and any characteristics of the child which the court considers relevant;

(e)        any harm which the child has suffered or is at risk of suffering;

(f)         how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs; and

(g)        the range of powers available to the court under this Law in the proceedings in question.

(4)       The circumstances are that -

(a)       the court is considering whether to make, vary or discharge an Article 10 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or

(b)       the court is considering whether to make, vary or discharge an order under Part 4.

(5)       Where the court is considering whether or not to make one or more orders under this Law with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."

46.      To what extent and in what way does the Mother's proposal serve the child's welfare and what is the alternative?  I have reviewed the written and oral evidence of Dr Briggs and Mr Langford, and, of course, all of the witnesses and consider this evidence against the child's needs.

Discussion

47.      I have no doubt that the Mother's wish to return to the Country A is genuine inasmuch as she considers that life with a young child in Jersey does not offer her the same opportunities as living rent free in her mother's home in Country A.  Her second affidavit which set out, as I have said above, exhaustively, the benefits of life in Country A reads as though it has been extracted from the internet.  I suspect that it, broadly, has because I have no doubt that the Mother will have researched her evidence about her home country extensively. 

48.      That written evidence focusses on the very many attributes of life in the country of her birth but fails to identify in any meaningful or convincing way, how life will be better there for the child, save that access to extensive health care facilities would be easier than in Jersey.  Had the child complex medical needs, this would have been a factor in favour of relocation.  As it is, he is, according to Mr Langford, a healthy, happy and contented child, secure in his relationships with each of his parents.  I consider that, despite what the Mother suggests about the Father not prioritising the child as she does, the child's physical needs are capable of being, and are currently amply, met by each of his parents.

49.      I have heard the Father's concerns (echoed by Dr Briggs) about the Mother's approach to smacking and using raised voices in front of the child but I am satisfied from the totality of the evidence that the Mother is an excellent caregiver.  While neither practice is condoned by the Court, I have heard nothing to suggest that the child has been the subject of any physical abuse and do not find that these differences in approach to child rearing give rise to any appreciable risk of harm to the child.

50.      I am satisfied that the Country A has much to offer in terms of lifestyle but I consider the Mother's evidence about how it might offer a benefit to the child over and above that currently enjoyed in Jersey lacking in detail.  I accept that, being located close to Country A airport, travel worldwide will become easier than flying through Jersey, but I question how much worldwide travel the child will realistically enjoy over the next sixteen or so years if he is to spend some nine weeks a year with the Father - and, presumably, most of the rest of his time at school. 

51.      I have no concerns about the Country A education system and am satisfied that the child would be appropriately educated in Country A.  Notwithstanding what I have been told about the Country A education system's promotion of English, I harbour a slight concern that the child is too young, and his language skills not yet sufficiently developed, to enable him to retain English as a language when he is living with his Mother and maternal grandmother (who does not speak English).  I am satisfied that his Mother can teach him her mother tongue so that he benefits, as he grows, from a second language.  

52.      Were the Mother and Father able to behave civilly and courteously to one another and had they enjoyed a history of working together in the child's best interests, the Mother's plans for relocation would be compelling.  The child is a child of two heritages, that of Country A and Jersey.  While the Mother could not see much of a culture in Jersey, I have no doubt that the child's best interests, with age, will be best served by knowledge, appreciation and understanding of his joint heritage, as I find that both countries have rich and diverse seams of culture to mine.  

53.      At two years old, the child is, mercifully, unaware of the bitterly contested dispute that his parents are having about what is in his best interests.  His tender age gives the Court pause for thought about the application.  He is too young to have discernible or reliable views on his mother's proposal but I take it from Mr Langford that a child who is happy and secure with both parents could safely be assumed to prefer his life to remain broadly unchanged.  

54.      What, therefore, would be the likely effect of the proposed changes for the child and how might these meet his emotional needs?

55.       The proposed move would enable the child to become familiar with his Country A family and the culture, which form part of his identity.  The proposal that the Mother should move into her family home would ensure that the child has the opportunity to acquaint himself with this side of his family and its history.  The relatively recent and longstanding estrangement between the Mother and her family is a matter of some concern; I have to weigh up the benefits to the child of getting to know his Country A family well, not only against the loss to the child of his twice weekly visits with his Jersey grandparents but also the risk, prayed in aid by the Father, that against the background of what Dr Briggs said about the Mother's single mindedness,  independence and self-reliance, any further similar falling out could result in a significant further loss for the child.

56.      The Father's speculation that the Mother's relationship with her own family must be at risk of further fracture, given the history, is a concern.  I am satisfied by the maternal grandmother's evidence that she will offer the Mother and the child a good home and I am satisfied that the Mother genuinely wants to return home.  I believe that the maternal grandmother would do what she can to help the child maintain a relationship with his father, but given the Mother's determination and the history of her relationship with her family, if the Mother set her mind against contact, I am not convinced that the maternal grandmother could do anything to change the outcome.

57.      What might have allayed any residual concern for me, given the background, would have been a better understanding about how the Mother's relationship with her family has improved over the last two years.  This would have assisted in reinforcing the foundation of the Mother's application.  As it is, I heard little or no evidence about how much they have spoken or communicated; I know that the Country A family said they have only seen the child and his mother face to face once, on the sad occasion of the maternal grandfather's funeral a few weeks ago.  That does not seem to be a solid enough bedrock on which to build the foundation of a new life for the child in Country A.

58.      I cannot therefore discount the risk to the child that the proposed move will not be entirely positive.  I have to concern myself with the child's emotional needs.  He currently has a loving and close relationship with his paternal family, and I take into account the risk to the child of losing the security and comfort of his extended family, his grandparents, and the young cousins and playmates he knows well, and weigh that up against the benefit to him of having an opportunity to get to know his Country A family.

59.      In effect, I am being asked to weigh up the known against the relatively unknown.

60.      Of greater significance is the evidence about the potential adverse emotional effect on the child of the loss of weekly contact with the Father at this age.  The first three years of a child's life are critical in securing his or her attachment with their care givers, an attachment which underlies a young person's self-esteem and their ability to create relationships with others in due course.  I consider that the child's interests and his emotional wellbeing would be best served by being given daily or near daily opportunities to cement his relationship with his father; at two, the promise of Skype or telephone contact is simply inadequate without the existence of good will and a proper working relationship between the parents and the positive promulgation by the Mother of the importance of the Father in the child's daily life.  That applies equally to any future life in Jersey as to the proposal to remove the child to Country A.  I consider that a failure to champion the Father by the Mother will cause the child harm and be detrimental to his wellbeing, particularly at a distance.

61.      It is this aspect of the Mother's case which is most troubling.  I accept that each of the parents have different personalities and, indeed, approaches to child rearing.  The Mother struck me in evidence as highly intelligent, logical and self-assured but her evidence was lacking in the emotional intelligence and warmth which I perceived in the Father. I accept that such an impression may have been created by cultural differences or language difficulties but the impression has not, in any event, carried any weight in my decision making.

62.      I consider that the child will benefit from remaining in close contact with both parents over the next few years, each offering him benefits from their complementary and differing qualities.  It is sad that the child's parents do not appear, any longer, to be suited to one another.

63.      I remain concerned that if leave is granted, the child will not be given a real opportunity to retain and develop his relationship with his father.  Had it not been for the parents' clear inability to communicate sensibly about the child and, agree, for example, generous contact, I might have been persuaded that the Mother should be given leave to remove him from the jurisdiction.  However, the Mother's negativity towards the Father expressed in written and oral evidence, suggested that the generous contact offered would be undermined by the Mother's ill-concealed resentment of the Father and what she sees as his inadequacies as a parent.

64.      It is in this respect that the Mother's recent history with her parents informs my decision rather than the Father's concern that the Mother will fall out with her family; what Dr Briggs and Mr Langford expressed surprise about was the manner in which the Mother was able to cut off her relationship with her family for such a long period. This was described as unusual.  The Father's experience of family relationships appears altogether more positive.  The Mother's failure to speak to her family was certainly seen as unusual by the Father whom, the Mother deposes, put her under pressure to contact and talk to them.  The Mother was, until the child was born, determined not to do so and I must therefore treat seriously the fear that she will take an equally robust approach to the Father given the suggestion by Dr Briggs that there appears to be an element of unresolved resentment simmering below the surface of the dispute. 

65.      I was not satisfied that the Mother's application was intended to thwart contact and to punish him, as the Father suggests, nor do I accept that the Mother would harm the Father as he posited, were he to travel to the Country A.  Her threats, however ill-considered, were likely founded on frustration with the Father given her rather more excitable temperament, as evidenced in some of the text exchanges between the parents, which I read.

66.      I suspect that if leave were granted, the Mother would intend, at least at the outset, to facilitate contact in the manner she has proposed but I fear that any disagreement or failure by the Father to meet the Mother's expectations would result in a diminution or cessation of contact.  Both parents gave evidence that this had happened previously. At a distance of some thousand miles, such an event would be catastrophic for the child, particularly at an age when it would be easy to erase memories of his Father from his young mind.

67.      What the Mother has said which I find convincing is that she will find life easier and cheaper in Country A.  The absence of any obligation to pay rent and child care on tap in the form of her mother (and, possibly, her sister), together with  lower cost of living, makes Country A an appealing prospect for her, particularly as she has already received the offer of a full time job working for her friend.  She told the Court that she felt she could better support the child's material needs in Country A and given her self-reliant nature, I have little doubt that she would succeed.  However, I am also convinced that she could succeed just as well in Jersey.  

68.      When asked in cross examination about her job prospects in Jersey, the Mother gave evidence to the effect that she was earning about £2,000 p.c.m. gross before she gave up work to have the child.  She considers that in order to have the same standard of life as she would have in Country A, she would need to work two jobs, but would not be able to work more than thirty hours per week given the child's needs.  She considers that her rent alone in Jersey swallows a significant proportion of any salary.  She has not looked for work since leaving the business she ran with the Father.

69.      The Mother explained to the Court that she had remained in Jersey for some eleven years before the child was born because "Jersey allowed me to save and travel".  This was at odds with her evidence about the cost of living in Jersey, but I do, of course, accept that she now has the child to consider.  Much of the evidence which the Mother gave in her first affidavit focussed on the Mother's financial position and I gleaned the impression that if the Father had made efforts to improve the Mother's financial position, this application might not have been made.  She said, in terms, that while she was no longer angry with the Father, she would not forget that he had left the child and her in a parlous state.  I find that while the Mother may be struggling to meet the child's needs, his material, physical, and needs are being met and that there are work opportunities for the Mother here in Jersey, particularly if she accepts the offer of practical help for child care made by the paternal grandmother.  I reach this conclusion because the Mother gave evidence, in any event, that she would work full time in Country A and rely on nursery or her mother's help for child care and I cannot disregard the fact that she has such options here in Jersey.

70.      The Father has offered to pay for nursery to enable her to work.  In other respects, the Father's evidence about the practical and financial help that he might offer the Mother was unhelpful.  He maintained that the business was now doing well, such that he could afford to take extra time out to look after the child, and put forward a proposal that he could afford to meet the child's school fees for a private school (and nursery until the child started school) but when asked what he could do to make the Mother's life better, he told the Court that he did not know what he could currently do, and suggested  that he might better be able to assist when he had repaid the loan he had taken out to pay the Mother for her share of the business.

71.      This response did the Father no credit.  I am not asked to determine (nor am I in a position to determine) an appropriate level of maintenance for the child; the Father's failure to make a proposal to alleviate some of the financial pressure on the Mother suggested that he was letting his feelings about the Mother (and, possibly, her application) interfere with the child's welfare.  I was also dissatisfied with the Father's responses as to why he had not helped out the Mother with the care of the child on the two occasions she mentioned.  I found his response that it did not fit in with his (then) extant plans for his social life unsatisfactory.  I took the Father's responses as evidence that he, too, was capable of putting his feelings about perceived poor treatment by the Mother above the child's needs but, on balance, and after reviewing the unnecessarily unpleasant messages from the Mother exhibited to the Father's evidence, I determined that the Father, who otherwise seemed affable and easy going, was acting out of slight rather than malice.

Conclusion

72.      After weighing up the evidence and considering as I have above how the proposed move meets the child's welfare, I have determined that the application for leave to remove must be refused.  This was neither an easy decision nor an obvious outcome despite the evidence of Dr Briggs and the JFCAS officer.  On balance, I find that the compelling factor is the risk of emotional harm to the child which would inevitably result from being at a great distance from his father at this age and without any certainty that the Mother would promote and foster in the child a sense of the importance of the other parent. 

73.      The child will remain, for now, in Jersey and I make a residence order in the Mother's favour which will enable her to travel to see her Country A family with the child, without the Father's permission, (which I understand he has on occasion failed to give) so that the child can benefit from a nascent relationship with his maternal family.  The Father's evidence that, if he had the benefit of a shared residence order, his mother would have the child when he was at work did not satisfy me that the Father had made a cogent plan in the event that a shared residence order was made.  

74.      Accordingly, I am granting the Mother (alone) residence and am ordering contact in favour of the Father for two overnights and one evening per week, in line with the recommendation of the JFCAS officer.  With the threat of the removal application now removed for, I hope, the foreseeable future, I expect that the parents will now take steps whether through mediation or family therapy to re-establish a working relationship for the child and I trust that they can agree the nights for contact between themselves.  

75.      If he can afford to pay for nursery or private school, I suspect that the Father can make additional financial contributions of some sort now to the Mother, if not because he realises that the child would benefit from having a happy and settled primary carer, then to diminish the risk of a future application by the Mother for leave to remove when the child is somewhat older, being successful. 

Authorities

A v B [2019] JRC001A

Children (Jersey) Law 2002

Re F [2015] EWCA Civ 882