Jersey Unreported Judgments

Prohibited Steps Order - Residence Order.

[2020]JRC137

Royal Court

(Family)

9 July 2020

Before     :

Commissioner J. A. Clyde-Smith OBE., and Jurats Pitman and Christensen

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND

AND IN THE MATTER OF LL and MM (PROHIBITED STEPS ORDER AND RESIDENCE ORDER)

Advocate B. J. Corbett for the Applicant.

Advocate C. G. Hillier for the First Respondent.

Advocate N. S. H. Benest for the Second and Third Respondents.

judgment

the commissioner:

1.        In this case, the Court has to determine whether two children should reside with their mother in Country 1 or with their father in Jersey.

2.        The Applicant ("the Father") and the First Respondent ("the Mother") are both British, the Mother having been born and raised in London, and the Father being born and raised in Jersey.  Some eleven years ago, the Mother started living in Town 1 in Country 1. 

3.        In 2006, the Mother purchased a small 3 acre farm/homestead in Town 1, funded by the sale of her flat in London, and commenced a house and farm project there.  She met the Father in Country 1 in 2009, (where he was also living) and he joined her in that project, by investing financially and working on the house and farm.  They did not marry. Both the children were born there, LL in 2011 and MM in 2014. 

4.        The Father explains that as time went on, he became increasingly unable to support the family, as working in Country 1 was prohibited, and he started travelling to the UK, the EU, Jersey and Dubai to try and build up work contacts again.  Between 2012 and 2015, he spent an average of 7½ months a year with the family in Town 1 where the Mother was the main carer for the children, who were home schooled.  It seems that their relationship broke down in or around 2015, with the Father returning to Jersey, but visiting the family in Town 1 three times a year.  In addition, the Mother brought the children to Jersey to stay with the Father in 2016 and 2017.  The Father last visited Town 1 in May, 2018.  Since the separation, the Father had been paying the Mother £200 per month by way of maintenance for the two children. 

The cauterisation

5.        At the heart of this case lies an incident which took place in Town 1 in July 2016, involving LL.  In her affidavit of 10^th November, 2018, the Mother explains that he had become unwell, presenting with jaundice, appetite loss, nausea, tiredness, diarrhoea, vomiting and stomach ache.  She took him to the Town 1 general hospital for a blood test, which confirmed that he had hepatitis A.  She was advised by the hospital that hepatitis A was a self-limiting disease, but a drug treatment for symptomatic relief was suggested as his symptoms were persisting.  It would have side effects which were not insignificant, and would only deal with symptom management.  The doctor asked whether she had heard of the traditional treatment used locally, which did seem to be effective in these cases.  Friends from the Town 1 community had spoken to her of this traditional treatment, and testified as to its success.  Being a naturopath and always advocating use of natural medicine where appropriate, she decided this would be the best option, although she was unaware of exactly what the treatment involved.  Two weeks into LL's illness, she visited the traditional Town 1 doctor, a Dr G, with two trusted friends in the community. 

6.        The Mother says she informed the Father over the telephone that LL had been diagnosed with hepatitis A and that she intended taking him to a traditional doctor for a treatment which she thought was relatively benign.

7.        The treatment involved a heated implement, which she believed to be a palm stem being placed on his right upper arm and then quickly on to his left upper arm.  It took place when LL was sitting with the friends who had accompanied them, and the Mother was across the room entertaining MM.  She said it took about 5 seconds in total.   LL's immediate reaction to the treatment was to cry out, although she said he did not actually cry as such, and there were no tears.  They hugged, and when they got home, LL showed the marks to his friends, most of whom, she said, had had the same treatment.  Later on the same day, liquid started to accumulate and drip from his arms where he had been treated, which the doctor assured was completely normal, and she was not to put anything on his skin. 

8.        The next day, LL's appetite had returned and much of his jaundice was gone.  He proceeded to get better and quickly returned to his normal energetic self.  He was symptom free within 24 hours of having the treatment.  She was not happy with what actually took place, but at the same time, was happy that he got better; however, she would never do it again. 

9.        She called the Father and described what had happened, and LL spoke to him over the telephone.  The Mother made a post on Facebook regarding this treatment, as she was relieved he was better and surprised by how effective this unusual treatment had been. 

10.      The Facebook post has a colour photograph of LL showing the three burns to each of his upper arms with this posting:-

"LL's got hepatitis A so he's on vitamin C, reishi mushroom and a local concoction of herbs.  After visiting a natural medicine man, we decided to have the traditional burn treatment on the arms which is routinely used as a natural treatment for hepatitis.  LL was amazing and incredibly brave through the ordeal.  I think partly because here, death and suffering is not hidden away from society, but a normal part of life.  It's not something to protect and shelter children from.  These experiences show us the transience of all things, the inevitability of change and the impermanence of life."

11.      The children visited the Father in August 2016 for a holiday, and they had made two visits to Jersey since the treatment, and the Mother said no one had ever commented on it prior to the August 2018 visit. 

12.      Whilst not advocating this as a formal treatment, the Mother produced research from a number of journals, which describe cautery as an ancient healing process documented in diverse ancient cultures, which has survived until today. The fact that she had posted the picture of LL having had the treatment on her Facebook was a testament, she said, as to the treatment being commonplace in Country 1, and the fact that it was done with good intentions and in innocence.  Rather than being ashamed or feeling that it was something to hide, she was happy and relieved that LL was better and eating again. 

August 2018 visit

13.      It was planned that the children would have a two week holiday with the Father in Jersey in August 2018, with the Mother joining them for the second week.  She flew with the children to London Heathrow on 6^th August, 2018, where the Father collected them and brought them to Jersey.  In Jersey, he noticed that LL had a number of injuries, including what looked like burn scars on his lower arms, an infected burn to the back of his leg and a blemish on his hand that looked like a burn.  He also had a swollen sore on his ankle.  He said LL seemed to have a fear of doctors but he took him to see Dr J on 8^th August, 2018, who, seeing the cauterisation scars, referred the matter to MASH, who advised that the Children's Service would be investigating. 

14.      On Friday 10^th August, 2018, LL's hand had become infected and was very swollen, and he was admitted to hospital, where he was treated with antibiotics and his hand surgically cleaned twice.  Both LL and MM were seen by Dr K, a paediatric consultant, on Monday 13^th August, 2018.  Apart from the cauterisation scars, he said there were three small marks that could have been compatible with old burns on LL's forearm, and on his right arm there was a circular mark that looked like an old sore or an old burn.   On the back of his right leg there was a similar lesion and some residual crusting, suggesting a more recent injury and there was a similar lesion on his left ankle.   MM had some four linear marks on her chest, that looked like old scratch marks.  The children were otherwise found to be in good health.  There were no concerns about their height and weight and the other assessments were normal.  Dr K's main concern was with the cauterisation scars, which he suspected were done under the Mother's supervision and with her consent.  He was also concerned that LL was not currently in school.  He submitted a Child Protection Report dated 15^th August, 2018. 

15.      The Children's Service commenced their investigation on 10^th August, 2018, and at a strategy meeting held on 16^th August, 2018, assessed that the threshold for intervention was not met.  The 2016 cauterisation scars were historical and in its view, there were no immediate significant concerns identified about the children's welfare.  The Father was advised by the Children's Service to seek legal advice with a view to exploring his obtaining parental responsibility, and a residence or prohibited steps order through civil proceedings. 

The proceedings

16.      On 22^nd August, 2018, the Father filed a Form C100 seeking a prohibited steps order preventing the children from being removed from Jersey, and a residence order in his favour.  At an inter partes hearing on 23^rd August, 2018, the Court granted the prohibited steps order and the Mother surrendered her passport and those of the children.  She stayed on in Jersey with the children where she had no means of support.  

17.      The Children's Service completed their assessment on 4^th September, 2018, and quoting from its conclusion:-

"It was assessed on the information to hand that threshold was not met for Children's Service legal intervention.  The scarring was historical and there were no immediate significant concerns identified about the children's welfare.

It was also noted, that [the Father] had not previously raised any concerns, despite the children previously visiting him in Jersey on two occasions following the incident.  The current minor injuries raised concerns more about levels of adult supervision not child protection concerns.

As such, the Children's Service advised that [the Father] should seek his own legal advice with a view to exploring firstly his PR status, and threshold for a Residence or Prohibited Steps Order through the Civil Proceedings route.

[The Father] continued to refuse to follow this advice again stating that Children's Services had a responsibility to protect his children.  There have been some very emotive conversations held with the professionals who have also felt the criteria for child protection may be met in respect of concerns about radicalisation, and cultural markings that may be ritualistic.  There is however no evidence to support or substantiate these concerns.

It is acknowledged by the Children's Service that the historical burning and resultant scarring to LL's upper arms is a cause for concern.  This has been discussed fully with Mother who sought appropriate medical advice at the time and was advised of two options, drug intervention with the possibility of liver damage to LL, or seeing a Traditional Healer.  [The Mother] made an informed decision based on the medical advice and visited the healer not understanding that LL would be subject to the traditional burning technique which it is understood is quite widely used in [Country 1].  [The Mother] explained that the procedure was completed so quickly she did not have time to intervene.

[The Mother] has stated she would not use this form of treatment in the future as it is potentially abusive.  Any further medical concerns for either child will be addressed through contemporary medical methods.  [The Mother] has signed a formal undertaking/agreement to this effect. 

Through the assessment process, discussion has also taken place about the potential for both the children to receive injuries without appropriate adult supervision being in place.  This is more likely especially as the children mature and become more adventurous, as LL is demonstrating at the present time.

The issues/concerns about the children's education were explored with [the Mother].  Whilst it is noted that the majority of children receive formal/state education, there is a growing number of families that prefer to home educate their children.  Indeed there has been a 65% increase in children recorded as home educated in the UK over the past six years.  

It is positive given father's concerns that he has now sought appropriate legal advice with regard to his parental responsibility and the ongoing care/residency of his children.

Having given due consideration to the information gathered from Father, Mother, LL and MM, there are insufficient concerns to meet threshold for further statutory intervention in the Jersey Continuum of Need."

The Children's Service file was closed.

18.      On 5^th September, 2018, the Court appointed a guardian for the children.  On 14^th September, 2018, they were made party to the proceedings and given legal representation. 

19.      In her interim welfare report of 1^st October, 2018, JFCAS Guardian said she was deeply worried about the Children's Service decision making.  She was absolutely certain that more assessment was needed by an expert to properly determine the psychological and emotional impact of this incident upon LL, and having raised a number of concerns, recommended that:-

(i)        a full welfare report be undertaken;

(ii)       a suitable expert psychologist be instructed to assess the potential of harm to LL, the children's emotional functioning and needs and any risks the parents may pose to the children;

(iii)      the children be assessed by an educational psychologist to determine if their current home schooling programmes are meeting their needs;

Those recommendations were accepted by the Court at a hearing on 2^nd October, 2018, and orders made to that effect.  The prohibited steps order remained in force. 

20.      The Father had agreed to pay maintenance of £300 a week to the Mother, who found herself in Jersey, a jurisdiction with which she had no connection, and where she had no housing qualifications or right to work.  She lived with the children at the Support Establishment 1, with the children having staying access with the Father in his three bedroomed cottage for three days a week.  

21.      The Father unilaterally reduced the maintenance to £150 per week, but that was reinstated by the Court at a hearing on 12^th February, 2019, where, having heard evidence from the Mother, Father and the Guardian, the Court of its own motion concluded that the substantive application in relation to residence should be concluded as soon as possible, and moved forward the final hearing dates to the four days commencing 11^th March, 2019.  The Court returned the Mother's passport to her.  

22.      The Children's Service completed its welfare report on 25^th January, 2019.  It concluded that the Mother was providing good enough care for the children, who were well disciplined and behaved, and with whom she had a clear bond.  It said this:-

"What needs to happen?

While the initial concerns about the physical wellbeing of the children, burn injuries and neglect rightly raised concerns, these have been explored and understood.  Any parent has the right to choose and live a lifestyle which has different risks and challenges and parents who work for NGOs and Charities frequently parent their children in places in the world which might be deemed dangerous.

It is their right to do so as a vocational lifestyle choice and they accept the consequences of things such as limited access to health care and education in such situations.  Where two parents disagree about that choice there is the potential for dispute and here that convergent view is a matter before the court.  This has been investigated by Children's Services and there is no role for this department at this time.

The impact of the Private Law Proceedings is having an emotional impact upon the children as they are experiencing a depravation of the lifestyle they have known and were secure in.  This is a matter for the court and parents to address and there is no further role for Children's Services in this."

23.      The manager, Q, added this comment:-

"I would agree with the conclusion that parents have the right to choose and live a lifestyle which has different risks and challenges and in that, they determine what the benefits may or may not be for their children.  Many would not appreciate the vulnerabilities of children in the Roma or Travelling community and others think that Boarding School is hard on children at an early age.  These are personal preferences and it is taken as given that they are decisions made in good faith and without the intention of inflicting harm on their children.   However, where two parents do not share the same ideals and aspirations and mediation has failed then the matter is bound to be difficult for all concerned.  Consequently, this is a live matter in private proceedings before the court but at this time there is no identified role for Children's Services."

24.      Reports from educational psychologists were filed on 4^th and 15^th February, 2019, and the report of the psychologist, D, was filed two working days before the final hearing was due to start on the 11^th March, 2019.  It was lengthy, detailed, and critical of the Mother's attachment to the children.  It contained recommendations for complex therapeutic work to be undertaken by both parents and the children.  D was recommending that the children continue to have a relationship with both parents, and emphasised that not seeing either of them on a regular basis would cause significant emotional harm. 

25.      The Guardian was concerned that the binary nature of the decision the Court was being asked to make would necessarily cause the separation of the children from one or other of their parents, and the Guardian was simply unable to make a recommendation to the Court between the two options, given the welfare issues in the case.  The Guardian was firmly of the view that if the Court were to try to achieve the best outcome for the children, then time was going to be required for the programme of work recommended by D to be undertaken over some twelve months, but there were practical difficulties that needed to be surmounted in order to give the children and both parents a secure base from which they would be able to access therapy over this period.  Both parents said they were committed to undertaking this therapy.  Those practical difficulties were:-

(i)        It was not acceptable for the Mother to continue living at the Support Establishment 1, and for the children to be staying with her there.  They would need separate, stable accommodation in the private sector.

(ii)       The Mother had no housing qualifications, and indeed, had never resided in Jersey.  Advocate Benest proposed that an application should be made for her to be given Entitled Status on hardship grounds, and if that was not successful, the mother and children would have to fall back on non-qualified accommodation, which was more expensive. 

(iii)      Whilst the Mother's farm in Town 1 was self-supporting, she had been unable to continue with the retreat project which she had established and from which she anticipated earning income.  She therefore had no means of support, save for the maintenance paid by the Father.  Under the current regulations, she was unable to work In Jersey, and without Entitled Status would be unable to access income support from the States of Jersey Social Services. 

(iv)      The Father was not able to fund the therapy from his own resources and so funding would have to be obtained from elsewhere. 

26.      In order to address the issue of funding, Advocate Benest recommended that the Minister for Health and Social Services ("the Minister") should undertake an investigation of the children's circumstances, pursuant to Article 29 of the Children (Jersey) Law 2002 ("the Children Law") and to report what action he proposed to take, in particular in relation to services or assistance for the children and the parties that might be provided.  It was hoped that the Minister would assist in the funding of the therapy and the provision of accommodation. 

27.      The Court accepted that there should be an adjournment to allow the recommended therapy to take place, but it had serious reservations as to the viability of the Mother and the children staying in Jersey for some twelve months, both in terms of housing and financial support.  It therefore fixed 3^rd May, 2019, so that it could review the provision of accommodation for the Mother and the children and the issue of their financial support.  It also reserved 5^th, 6^th and 7^th June, 2019, for a final hearing if the Mother staying in Jersey was found not to be viable, in which case the Court would have to make a binary decision as to which of the parents the children should reside with.  The Court also directed that:-

(i)        the Guardian make an application to the Assistant Chief Minister for Entitled Status to be granted to the Mother on hardship grounds;

(ii)       the Minister undertake an investigation of the children's circumstances, pursuant to Article 29 of the Children Law;

(iii)      the matter be adjourned to 14^th March, 2019, so that the Court could hear evidence from D by live video, in order to better understand her report and recommendations, and to receive the Guardian's more detailed proposals in relation to the proposed therapy.  That hearing took place and Advocate Benest produced a helpful and detailed schedule of the proposed therapy, who might conduct it and what it would cost.  

28.      The Guardian referred LL to Support Establishment 2 and he was seen on 9^th April, 2019, by a senior clinical social worker and a consultant Child & Adolescent Psychiatrist, who reported on 10^th April, 2019, that LL did not display any mental health concerns or any trauma related to pathology, and that after further discussion with the multi-disciplinary team and careful assessment, he did not have any mental health concerns that met their criteria for further involvement.  He was therefore discharged from Support Establishment 2.

29.      The Guardian discussed this assessment with one of the therapists at Support Establishment 2, E, who told her that LL displayed no fear, hesitation or emotional distress, had good rapport and made eye contact with all of the adults in the room.  She said they explored the cauterisation, and LL had no flashbacks or nightmares relating to this.  He remembered feeling very sick when he had hepatitis and then feeling better.  He reported feeling scared when it happened, but it was over very fast and he forgot about it.  He does not think about it now, but having hepatitis was horrible.  It was clear to see that he was not currently worried about the cauterisation - it was finished.  His worry was that he missed Country 1 and his friends and animals.  It was very clear to see, she told the Guardian, that that was his only worry - missing home.  He likes spending time with his father, but did not wish to live in Jersey. 

30.      The Article 29 report was filed on 16^th April, 2019, and was prepared by F, a social worker.  In relation to the cauterisation, the report said this at paragraph 5.13.1 and 2:-

"5.13.1             LL received burns to his upper arms in July 2016, as a traditional treatment for hepatitis A (referred to above as 'cauterisation').  [The Mother] says that upon the advice of Country 1 medical professionals this was deemed a legitimate treatment in their culture.  She has since become aware that this particular form of treatment is not conducive with Western medical practices.  [The Mother's] explanation for using this treatment is that she was concerned that Western treatments for hepatitis A could potentially damage LL's liver and so she felt she was choosing the alternative method as the lesser of two evils. 

5.13.2              [The Mother] is adamant that she consulted [the Father] when making the decision to proceed with the treatment and it was with [the Father's] agreement.  At the time that [the Father] agreed to alternative treatment, [the Mother] admits that neither parent was aware exactly what this treatment entailed.  [The Father] states that he was only made aware of this following the procedure.  The fact that [the Father] admits to having been fully aware of this event shortly after the incident, having numerous opportunities to intervene and never previously raised this as a safeguarding concern is worrying.  [The Father] explains that he did have concerns but did not raise these sooner due to his poor mental health and unsuitable living conditions at the time."

31.      The report stated that there was no evidence that the children had suffered emotional abuse prior to their arrival in Jersey. It concluded that both parents were able to meet the basic needs of the children to a good standard, and that there were no immediate safeguarding concerns.  The Minister would not therefore be applying for a care order or a supervision order, and no services would be offered to the parents.  The report recommended that the children be allowed to return to Country 1 with the Mother. 

32.      At the hearing on 3^rd May 2019, it was clear that it was not viable for the Mother and the children to remain in Jersey.  No support was forthcoming from the Minister, and Entitled Status on the grounds of hardship had not been secured.  In addition, the Mother had changed her position in relation to the therapy advised by D, which she was not now prepared to undertake, irrespective of the issue of its funding.  The possibility of a further report being obtained from another psychologist was mooted, but that would not be available until the end of August 2019, if not later, a year from when the Mother and the children first came to Jersey to visit the Father, a delay which the Court found unacceptable.  The Court therefore ordered that the final hearing take place on 5^th, 6^th and 7^th June, 2019. 

33.      On 3^rd May 2019, the Father was granted joint parental responsibility for the children in accordance with Article 3 of the Children Law.  He had been named on their birth certificates but it was unclear whether he had parental responsibility either under Country 1 law or under English law, being the law of their domicile.  In any event, the Court found that the tests for the granting of parental responsibility under Jersey law as set out in LS v NS [2007] JLR Note 37 were met.

Evidence

34.      In addition to the reports filed with the Court, evidence was heard from C, the children's half-sister, Dr G, an educational psychologist, H, head teacher at Support Establishment 3, F, the social worker, D, the psychologist, the Father, Mother and the Guardian.  We will not recite all of the evidence given by these witnesses, referring only to that part which we found relevant to the issues before us. 

C

35.      C, who was brought up by her mother in the UK, would visit the Father (her father) in Town 1 between the ages of 16 - 19.  She subsequently supplied through counsel travel records which indicated that she visited Town 1 twice in 2011, once in 2012, twice in 2014 and once in 2015; more than the two occasions which the Mother could recollect.  She described the house in Town 1 as being big, with lots of space and the normal house appliances.  We note that LL was not born until February 2011, when she first visited, and would have just turned four on her last visit in March/April 2015.  MM was not born until April 2014 and so her observations as to their upbringing were of limited assistance to the Court. 

36.      We found her to be an honest witness, but she seemed keen, perhaps understandably, to emphasise points that showed her father in a favourable light.  Her experience when visiting Town 1 was that the children were undomesticated and behaved differently to the children she knew at home.  She said they commonly had "a volume" of unexplained injuries or ailments, such as boils and burns, which she was not familiar with children having on a recurring basis.  These were treated with natural remedies, which were not that effective, or left to heal naturally.  She remembered seeing LL having "meltdowns" when he was about three, which were sufficiently severe as to be controlling of the parents. 

37.      The children spent most of their day playing on the farm with the children of local Town 1 workers.  There were children's books which were read after dinner, but she saw no counting games, colour blocks or other children's games. 

38.      C made her own decision not to continue visiting Town 1, as she did not feel safe and comfortable there, and would see her father either in England or Jersey.  She also saw the children when they were staying with the maternal grandmother in the UK.  It was clear that she was witness to the deteriorating relationship between the Mother and the Father and the tensions that arose between them with which we are not concerned. 

39.      When the children came to Jersey in August 2018, she travelled over to see them and in her view, the children were under-weight (contrary we note to the report of Dr K), with LL appearing anxious and MM withdrawn.  She has visited frequently since, and there has been a marked improvement in their physical and mental well-being, the result, she said, of regular and loving interaction with multiple family members on the paternal side.  She had witnessed some of the handovers in Jersey, which were tense and with little interaction between the parents.  She described the Mother as passive aggressive and felt somewhat intimidated. 

40.      She felt that the children's cultural experiences and friendships in Town 1 were very limited, and that they were missing the educational and other opportunities that would be available to them in Jersey, where they would be safe. 

41.      In evidence, she made an allegation, not contained in her letter to the Court that the Mother had offered her hash, which they would smoke on the farm in the daytime and which the Mother had encouraged her to experience as part of her growing up.  

Dr G

42.      Dr G assessed LL on 4^th February, 2019 at Support Establishment 3, which he was attending three afternoons a week.  He had received this statement from LL's class teacher:-

"LL has attended my class for 15 afternoon sessions and a full day session since October.

LL has proved a really popular member of our class community as he is both athletic and engaged.  LL made an impressive 4 ft tower with magnetic blocks that we have in class which was the most ambitious and creative use of this equipment that I have ever seen.  The children refer to it as LL's tower and it is now a popular activity to recreate.  LL has also shared his rock collection as part of our science study.  He showed us and talked about black obsidian, gold quartz and sellinite to name a few.  LL speaks fluent [language of Country 1] as well as the local language in [Town 1] and has taught us all how to count from 1 to 10 in [the language of Country 1].  [The Mother] shared the children's book she had written about life in [Town 1] which includes LL as the main character and has beautiful illustrations.  This is well worth reading and we are going to have a copy in class. [The Mother] also talked to the class about life in [Town 1] and the farm she runs, as part of our introduction to learning about life in [Country 1].  LL spoke about the 'small house' he has built using many local skills and he presents as an engaging and interested child."

43.      Dr G carried out a cognitive assessment, which from a purely statistical profile perspective showed that he had relative strengths in language processing and verbal skills (in English) within the average range for his age, but his non-verbal skills showed that he struggled with the two tasks presented to him. When completing the assessments LL was positive, focused and showed resilience and he used his previous knowledge and experience.  What he did find was that LL had demonstrated a willingness to learn and had good "learning skills".  In essence, he had been taught to learn, and this at an age appropriate level.  Because the vast majority of his learning had been focused on practical and functional "outdoor tasks" compared to his peers in Jersey, he did not display the type of learning skills that are taught in a Jersey culture and in Jersey schools.  He made the point that educational systems prepare children for the culture in which they live. In terms of his functional skills, LL showed a good propensity to learn with good social skills and an ability to communicate confidently.  Quoting from the report:-

"LL has been educated in a learning environment that is very different from a Jersey learning context.  The descriptions of activities he completes in [Country 1] (from mum) suggest that LL learns well and shows a natural curiosity to improve.  This assessment shows that he has developed age appropriate communication skills in English, but also knows two other languages and a set of learning strategies that will ensure he is able to continue to learn.  He is not an unintelligent boy and from the descriptions of the activities he is able to do in [Continent 1], he seems to have been empowered with a set of knowledge, skills and attitudes that are not normally measured in Jersey as 'useful intelligence'.

The challenge for LL is that many of his current range of acquired skills, attitudes, concepts and knowledge are not valued nor needed in the context of his Jersey peers.  Therefore he will find himself behind and at a loss in a lot of the learning contexts provided in his school in Jersey.  At this moment in time, LL does not read and has weak writing skills (when compared to most children in Jersey of the same age).  This assessment shows that LL is an able learner and has all the necessary skills and abilities to learn from his environment but empowered with a set of skills and abilities that do not translate very well into the Jersey education system.

If we are to maintain LL within these learning contexts in Jersey for any length of time, he will need to relearn a whole new set of educational knowledge and skills.  This will mean he will have to start with the basic instruction of reading and writing on a regularly timetabled 1 to 1 basis in a context away from his classroom to begin with.  LL has been given all the skills to learn.  From mum's description of his skills and abilities in [Town 1],  LL is an able learner but all of this will be meaningless to him in a Jersey classroom.  This will highlight to him the differences he has between his sense of self as he sees himself in [Continent 1], and his sense of capability and achievement when he compares himself to his Jersey peers.  Until he has overcome these basic skills however in a Jersey context this will likely come at a huge cost to LL's emotional presentation and self-esteem (knowledge and understanding of who he is and how successful he can be). LL will start to emotionalise his learning and become angry and despondent at the lack of skills and the poor sense of achievement he will inevitably feel when he compares himself to a Jersey pupil.  A comprehensive and robust medium to long-term support plan will be needed to help with his emotional resilience.  This plan will be vital if he is to stay in Jersey for any greater length of time and before he can start to become successful in an education system that is very different to the one he has been brought up with to date."

44.      Dr G had not been asked to assess the home schooling used by the Mother, but he was aware of the Montessori method which was more outdoor child led, with task based skills being learned and project work being carried out,  compared to Western formal education, with its "barrage of tests".  LL had not had a Western formal education, but he had learnt to learn and developed good learning dispositions from exposure to the education he had received from the Mother.

H

45.      H first met LL on 6^th November, 2018, when he came to Support Establishment 3.  He was engaging, chatty and curious, but it was a very different environment and scary for him.  After discussion with the Mother and the form teacher, it was decided that he would attend Support Establishment 3 three afternoons a week for the less formal activities, such as PE and other topic based activities, which would allow him to integrate, make friends and feel good about himself without placing academic demands upon him.  They had tried one full day of education during January 2019, but this had been too much for him.  

46.      It was a temporary arrangement, because it was not known how long LL would be in Jersey and the school was going from one court date to another.  The form teacher reported that she had no concerns about any distress on his part. 

47.      H had no knowledge of home schooling, but had had experience of children for whom English was a second language, which was not a problem for LL.  She was aware of the Norwegian model of education, where children attended kindergarten until seven before formal learning was commenced, but who in later years, would often overtake their English peers.  In her view, LL could succeed in both under the Western educational system or with home schooling. 

48.      It was suggested to her by Advocate Corbett that LL could have benefited from going into full-time education for the time that he was in Jersey, but H said that would have exhausted him, both mentally and physically.  Under the home schooling, he would only start formal teaching, reading and numeracy, about now.  She confirmed that the children could go to Support Establishment 3 full-time if they were to remain in Jersey. In her opinion, the children had suffered no harm in the way they have been educated to date, but it was necessary for LL to start working on numeracy and literacy, which she was aware the Mother was undertaking.  Any concerns about LL within the school would have been brought to her attention, and none were. 

F

49.      F had visited the Mother on a number of occasions, and there was nothing to suggest that she had a bad attachment with the children, or was in any way a danger to them.  He accepted that cauterisation would not be acceptable in Jersey, and would constitute physical abuse, but he was aware that this had been undertaken in a different country where it had been used historically, and where, according to the Mother, it was common practice.  He carried out direct work with LL; staying in Jersey was definitely not what LL wanted.  He wanted to return home. 

50.      His attention was drawn to two parts of the Article 29 report he had authored, where he had disagreed with the advice of D, namely:-

"8.1     There is no evidence that LL and MM suffered emotional abuse prior to their arrival on Jersey.  [Ms] D has taken a position that LL's current presentation is a direct result of the treatment he received in 2016.  It would be equally plausible to suggest that LL's frustrations and anger could have been triggered by the unfavourable circumstances he has found himself in since arriving in Jersey.  I do not accept that the children's presentation can somehow be separated from their current experience.  This seems to be entirely speculative and selective.  LL himself states he likes his scars because 'they make him look brave ... 'it wasn't that bad', which does not suggest that the experience is still deeply troubling to him.  He does report that he 'dreams of going back to [Country 1] which seems to contradict the view of [Ms] D.

.......

9.4      [Ms] D reports that [the Mother] had an adverse childhood, which directly impacts on her ability to parent the children effectively and also refers to [the Mother] as 'manipulative' and suggests that she has manipulated professionals.  I respectfully disagree with this view on the basis that over an 8 month period, the opposite has been observed.  I refuse to believe that even the most manipulative individual would be able to manipulate over 20 professionals, across three different agencies, who between them have seen [the Mother] with the children on an almost daily basis."

51.      The 20 professionals he referred to comprise 15 staff at the Support Establishment 1, himself, two previous social workers, two managers at the Children's Service and the head teacher, H.  He would have attended at the Support Establishment 1 up to ten times, and in his view, LL was happy and settled in the care of the Mother, and showing no distress.  LL did express anger when the subject of [Country 1] came up, and over the living arrangements.  All of his parenting observations of the Mother had been positive.  She had been placed in a demanding position, living in a place that is unfamiliar to her, and where she had no access to stable housing, was living in temporary hostel accommodation, had no reassurances when she would be returning home and no recourse to public funds.  Until February 2019, she was living on an income that was insufficient to meet the family's needs, and was relying on food vouchers from the Children's Service.  Amongst all of this, the Mother had been required to care for the children throughout most of the working week, whilst managing these proceedings, often receiving news that put an immense amount of pressure on her emotionally.  Notwithstanding this she had managed to continue to care for the children to a high standard - in his view, she was a good parent.  The children had secure attachments to both parents, but it was clear to him that they are closer to the Mother, who was very attentive and responsive to their needs. 

52.      In terms of [Town 1], and the Mother's lifestyle, he said this at paragraph 15.8:-

"15.8   Any parent has the right to choose and live a lifestyle which has different risks and challengers and parents who work for NGO's and Charities frequently parent their children in places in the world which might be deemed dangerous.  It is their right to do so as a vocational lifestyle choice and they accept the consequences of things such as limited access to health care and education in such situations."

53.      His recommendations included the following:-

"16.3   I do not believe that a shared care arrangement could be in the children's best interests, as this would deny them the opportunity to live and grow in the country of their birth, which they clearly identify as home.  I hope that LL can be spared the anger and despondency Dr G suggests he might experience through seeking to achieve in an entirely alien education experience.  It would be awful if LL loses the 'useful intelligence' he has already acquired and is confident in.

16.4    It is tragic that a trip to explore and experience the children's Jersey identity and heritage has the potential to leave LL an angry and resentful young person with low self-esteem.  I hope that [the Father] and [the Mother] can work together to prevent this."

54.      F faced some searching cross-examination by Advocate Corbett, but was firm in his conclusions that the best interests of the children lay with them remaining with the Mother.  There was nothing to indicate to him that the children were at risk or in danger in any way in the Mother's care.  The Court found him a helpful and reliable witness, who reflected carefully on his responses, and was mindful as to the advice he was giving. 

D

55.      D's report runs to 127 pages, but she has helpfully summarised her findings as follows:-

"ii)       I have found significant psychopathology within [the Mother's] psychological profile and pattern of attachment organisation.  Of paramount importance in the way she organises her relationships with others, are traits of 'narcissistic' thought processing, which affects all areas of her functioning (this does not constitute a psychiatric diagnosis).  The interviews and assessments conducted with her showed significant unresolved trauma from emotional neglect within specifically her relationship with her mother.

iii)       This is completely unacknowledged by [the Mother]. This has affected and continues to affect her emotional and behavioural functioning, and her ability to comfort and protect the children.  [The Mother] is traumatically self-focused to the point that living in [Town 1] has replaced some of her attachment requirements, and she is entirely focused on her needs to return there.  Narcissistic parents in particular depend more on their own needs and moods rather than the needs of their children.  All [the Mother's] assessments indicated a lack of empathy and sensitivity to LL and MM and a lack of psychological connection. 

iv)       The internal representation she has of both children is significantly distorted by the lack of resolution of her past, and idealisation of herself being enmeshed with the community of [Town 1].  This means that both children are hardly present within her ability to mentalise and understand their internal world, and their needs are inextricably entwined with her own.  Her Meaning of the Child (MoTC) assessment identified her care of the children as 'high risk'.  I have recommended schema therapy for [the Mother] individually, and Video Interaction Guidance for her and the children, to build a far more stable attachment with them.

v)        All [the Father's] assessment indicated he uses a normative pattern of attachment organisation, he has unresolved trauma from his mother's catastrophic illness when he was a child, and from elements of his father's death, meaning negative emotions can trigger a 'disorganised emotional and behavioural response in relation to loss and relationship breakdown.  [The Father] can become angry and depressed, both of which he acknowledged but can be out of his control.

vi)       However, his assessments indicated extensive evidence for the process of reorganising his psychological functioning towards increased psychological stability.  His interactions with both the children showed cooperative play and enjoyment (over and above their use of maladaptive attachment strategies).  His MoTC was classified as 'Sensitive' in every domain.  I have recommended [the Father] has EMDR for post-traumatic stress, and longer term psychodynamic therapy to explore his lack of resolution of his parents' illnesses and deaths.

vii)       Both children are using maladaptive behavioural and emotional functioning which has developed exclusively within the attachment relationships with their mother, as their father has not had any consistent attachment related input with them for a number of years.  Their attachment relationships with their mother are essentially traumatic.  Both children are at current and future risk of a specific psychological disorder in association with both these factors.  LL has unresolved trauma in connection with being 'burned', which was clear in his assessments.  If the children were to return to [Country 1] with their mother they would be at significant physical and psychological risk from the decisions their mother has made and continues to make about their care.

viii)      All my assessments of the children and their parents indicated they are being affected by the nature of their parents' negative relationship.  Currently [the Father] and [the Mother] seem unable to establish fully reciprocal and co-operative co-parenting of them, despite having been able to do so in the past.  LL and MM have fully developed loving relationships with both their parents which need to be supported.  They need both of them in their lives to ensure they develop with psychological and physical stability. 

ix)       Not seeing either of them on a regular basis will cause significant emotional harm; there is a vast body of international research to support this which I am happy to provide examples of.  The Mother in particular had little insight into the emotional harm that such behaviour causes to children, because she believes the problem resides in only [the Father].  [The Father] does not trust [the Mother] and believes that she is attempting to cut him out of the children's life.  It is likely that [the Mother] will find my analyses of the family very difficult to accept but if change in how she is able to relate to the children does not begin very soon, their risk trajectory for psychological problems and childhood depressions will increase."

56.      In evidence, D explained that looking at actual behaviour was not good enough as it can be falsified and negative emotions inhibited.  She is concerned with what is going on under the surface; with the unconscious processes at work and attachment relationships within the family. She bases her findings on the data produced by the assessments carried out using the Dynamic Maturational Model of Attachment developed by Dr Patricia Crittenden, the most clinically sophisticated model that attachment theory has to offer at the present time.  She invited the parents to provide additional report/information but did not make findings or challenge the information provided by the parents, as a clinical psychologist might do.  

57.      D accepted that being unable to return to [Town 1] was traumatic for the Mother, who felt imprisoned here, but whilst the children can miss a location, she said people are more important to them than places.  The Mother's relationship with the children was emotionally deficient, in her view, and needs repairing as soon as possible, in particular through the Video Interaction Guidance, but she described the deficiency as "very solvable".

58.      In her view, these interventions could not be undertaken in [Town 1], and if the Mother were to return there with the children, it would create a loss in terms of the Father, with whom they had a more stable attachment.  She was concerned also that the Mother had a negative view of the Father, which the children would pick up on and in an isolated location such as [Town 1], that alienation from him would increase, which would be very disruptive. 

59.      LL needed a skilled therapist to address his trauma from the cauterisation and the recommended work with the Father should continue, but if the Mother continued with her refusal to carry out the proposed therapy recommended for her, then D recommendation was that the children should live with the Father under a shared care arrangement. 

60.      In terms of the criticisms voiced by F, she pointed out that he was not trained on attachment or how to assess it, and would have reached his conclusions judging by the outward behaviour of the parties only.  Looking at the surface, so to speak, gives only some 30% of the information needed and you don't see what is going on underneath.  D had not accused the Mother of being knowingly manipulative, but it was unconscious on the Mother's part.  The Mother, she said, was very powerful at pulling people into her viewpoint. 

61.      C had seen LL having meltdowns when young, which D said was his inhibited negative emotions coming out as a consequence of his anger at the uncertainty of his relationship with the Mother.  The brain becomes distressed and cannot cope.

62.      In her view, [Town 1] was not a safe place, either emotionally or physically for the children, and would mean the loss of their Father. 

K

63.      Dr K gave evidence as to his examination of the children.  He said the cauterisation scars on LL's upper arms were striking and appeared to have been carried out in a ritualistic way.  They raised child protection concerns.  The Facebook page gives an indication of the Mother's mind set.  He was worried about her comments, in particular because a parent is there to protect a child from harm.  It must have been awful for LL to endure.  She seemed to have little empathy for the pain he must have suffered.  He described the cauterisation scars as horrendous non-accidental injuries, which scarred LL for life, with the remaining accidental injuries being indicative of neglect.  He thought it was inappropriate for the Children's Service to take no action and in his view, LL remains at risk of further injury. 

The Father

64.      Both the Mother and Father had sworn a number of affidavits over the course of the proceedings, but we would summarise the position of the Father in this way:-

(i)        By way of overview, his aim was to provide a framework for the children in Jersey that keeps them safe, happy and healthy, whilst providing the emotional and educational foundation to give them choices as adults.  The Mother had the choice to join this environment and would be welcome as children benefit from extended and positive contacts with both their parents.  His intention was not to remove or restrict the children from the Mother's care, as he preferred that she had full involvement in supporting their development.  The Court felt the Father was sincere in these aims. 

(ii)       In terms of education, he was not against alternative education models, as long as they are delivered within well governed establishments.  He compared the high standard of education both children could have in Jersey to that that would be available to them in Town 1, where there was no international school.  Without an international academic education, Jersey and the UK would not be accessible to them as adults of working age, and the Mother had no educational experience and had limited academic background.  In Town 1, the children would not have the benefit of social interaction through schooling, as they would only see the other local children out of school hours.  He said there were no other expat children in Town 1 and no home schooling groups.  Clubs, developmental sports and social events for children do not exist in Town 1 life.  Despite being a qualified secondary school teacher, he was unable to tell us how, exactly, he had helped to improve the children's education whilst they were in Jersey, even though he was critical of the Mother's home schooling.

(iii)      The Mother had stated that she intends to travel with the children to Europe for four months a year, in part with her partner N, who has publicly declared that he is "unschooling" his children in alignment with the Mother's beliefs.  He did not see this educational approach as one that gives the children sufficient choices in their lives as adults. 

(iv)      The Father then compared the health care that the children would have living in Jersey with access to a high standard of health care from GPs, the hospital and dentistry.  The children are currently unvaccinated, and so at risk of numerous life-changing ailments in Town 1 and in Europe.  With vaccination, LL might not have contracted hepatitis A.  In Jersey, they would have access to therapeutic professionals to deal with the trauma and behavioural concerns identified by D.  He was in a position to access the therapeutic help advised for him when funds permitted, and would therefore be in a better position to support the children.

(v)       In contrast, there was no primary health care in Town 1 (no GPs) and the hospital was in poor condition, being largely empty of equipment and staff.  It was effectively an empty building.  Patients were typically sent across the road to the pharmacy or in an ambulance on a four hour journey to the next government hospital in Town 2.  The Mother did not support medical practice and had transferred her fears of medical professionals to the children.  Whilst natural medicine has its place for treating some minor conditions, it is of the greatest concern that the Mother does not respond to naturopathic red flags, as indicators of when to switch to medical treatment for the children.  It is this failure that led to her taking LL to be cauterised by a villager, when he needed medical care.  He produced a letter from an Country 1 lawyer, Professor R, who stated that under Country 1 law, such treatment was illegal and had been a crime since the first part of the 20^th Century. 

(vi)      In terms of contact with the parents, if the children lived in Jersey with him, they could spend all of the long school holidays with the Mother in Town 1, and in addition, the Mother could visit the Island at any time, and support the children on visiting stays of any length.  Video calls and voice calls could be made weekly or more frequently.  She could continue the application for Entitled Status under hardship grounds or alternatively, she could live in her home city of the UK.

(vii)     If the children were taken by the Mother to live in Town 1, they would lose regular contact with the Father.  Town 1 was highly inaccessible, taking around three days to travel there from Jersey and the Foreign Office did not recommend travelling to this region due to the security concerns. 

(viii)    The Mother had recommended two fortnightly holidays with him when they visited Europe each summer.  He would not be able to contact the children through video calls which had been disrupted for security concerns.  The farm did not have a phone line and strong mobile signals were rare. Networks in Country 1 were inadequate for modern device bandwidths.  The only regular contact option when the children were previously in Town 1 was for him to send voice messages; one-way indirect communication.

(ix)      If the children stayed in Jersey, they would be able to enjoy extended family contact with both his family and indeed, the maternal family, the maternal grandmother living close by in the UK.  Town 1, in contrast, was far from all members of the children's wider family group, who would be unlikely to travel there.  The children had been confused by their Mother referring to her friends in Town 1 as family.  Some of these people were transient, none being relatives, and culturally different from the children in almost every respect.  This, in his view, had caused some identity confusion for the children, who had a low recognition of the concept of family. 

(x)       In terms of safety, the region of Town 1 shares a porous desert border with Country 2, which is nearby, and there is a large army presence in the town to attempt to deal with the movement of arms, drugs and people arriving from and going to Country 2.  There are numerous heavily armed security checkpoints.  The farm in Town 1 had suffered from numerous break-ins and on site security had been employed.  The increasing instability in Country 2 and "imminent politics" in Country 1 were likely, he said, to lead to a rise in security risks in the Town 1 region.  There are no such concerns with Jersey, which is generally considered to be very safe.   

(xi)      In Jersey, the children would develop a social network of peers which through interaction at school, activity clubs, with neighbours and family would be extensive.  Social interaction in Town 1 would be far more limited.  As they grow older, they would need to align to local expectations, to remain socially accepted with the strict conservative rules that would be applied.  A Town 1 teenage girl would be restricted to her home and veiled until marriage.  LL would be expected to be at school and to leave and work in a 'garden' doing manual farm labour as that is the sole industry in the region.  Farm labourer teenage boys also engage in sexual acts for the flow of men that visit the region, as the sex tourist trade was far more lucrative than farming.  If the children were removed from Town 1 teenage lifestyles then they would be alienated from their peers and would literally have minimal contact with other children. 

(xii)     Town 1 is a region of a single culture, which is exclusively conservative and Islamic, whereas in Jersey, the children would be exposed to much greater cultural diversity.  Their principal identity as British children would be present through their growing and learning. 

(xiii)    The Father was concerned at the lack of supervision of the children, both in Town 1 and when travelling in Europe, when there would be a range of unsecure adult arrangements in place.  He said the Mother would often go out for the day in Town 1, leaving the children doing activities under the supervision of unknown adults, whose suitability was not shared with him.  LL was free to leave the farm and explore on his own, meeting adults in public who he would spend time with, often fishing.  This was particularly risky, as Town 1 is unregulated and is a sex tourism destination. 

(xiv)    He said that life in Jersey was economically sustainable for the children, through his work and potentially that of the Mother, if she was to progress to residency, either here or in the UK.  In Town 1, the Mother was not permitted to work, so that the work she had been doing in the community carried a level of vulnerability for the children.  The farm was merely self-reliant and did not provide anything close to a sustainable income for the Mother and two children.  The [redacted] business had not had a booking since it was started in 2015, and was in any event in breach of her visa.  The economic model for an expat family in Town 1 was unsustainable.  He described her business in Town 1 as a fantasy.  He had run the farm for a number of years and it did not make any money.  She would need significant external income, unless she became truly local.  

(xv)     The Father said that although the Mother had explained that LL had hepatitis A, which had a cycle of two weeks, she had not given him notice of the proposed cauterisation, which he only learnt about after the event.  The impression given to him was that the healer had burned LL once, and the Mother hadn't realised what had happened.  When the mother posted photos of the injuries on her public Facebook account, he was severely distressed to learn that LL had been burned multiple times on both arms.  He spoke to family members before reporting the matter to the intermediaries helping the parents with mediation, who advised that he should not refer it to the authorities as they would use it as a sledgehammer.  They were working with the Mother, who might otherwise "run" and he would never see the children again.  It was best to continue with the work.  He regretted that decision and described it as the wrong call.  He was also struggling with depression, as a result of his own exclusion from the family. 

(xvi)    He acknowledged that there was a tension between proposing the children spend the long school holidays in Town 1, and his assertion that it was an unsafe place for them to live in.  He confirmed that he would not travel to Town 1 himself.  He would take them to City 1, but would not be responsible for their safety thereafter.  That would be for the Mother.  He accepted that their safety was more important than their desire to go there.

(xvii)   He agreed that MM's separation from the Mother, should the Court order that the children reside with him, is not ideal, and would present a big challenge for her.  It would have to be handled very carefully, with the Mother visiting regularly, and both parents putting forward a positive narrative. 

(xviii)  He also acknowledged that with the children residing with him, he would, in effect, be a single parent, and said he would be reliant on his friends, family and neighbours.  He may need to engage paid support, such as a child minder or au pair.  In the last tax year, he had earned £58,000 gross as a project manager, working in the public sector.  He did not have any work at present, but was confident that he would be able to find project work in the future, which would be compatible with his parental duties.  Currently, his cash reserves were down to zero, and he was living off his credit cards, but he was not in serious debt.  He had also started a new relationship and it was possible that his partner might be there to help at some stage in the future. 

The Mother

65.      We have already summarised the position of the Mother's evidence on the cauterisation and we would summarise the rest of her evidence as follows:-

(i)        In giving evidence the mother spoke very earnestly and fast and appeared desperate as to her position.  She said she came to Jersey in August 2018 because she wanted the children to see the Father.  She will never discourage contact with him. When LL was handed over on 6^th August, 2018, he had two small cuts on his ankle and one small burn on the back of his leg.  The Mother had been treating these with antiseptic wipes, but because of the hot weather in Country 1 and the fact that the children were often in the water, they were taking longer than normal to heal.  None of them were open sores and they had begun to scab over and were healing well.   These were usual childhood injuries, sustained whilst outside and playing and there was no injury to his hand whatsoever; that must have occurred in Jersey. The Mother was not aware of any evidence that LL was afraid of doctors.

(ii)       As a naturopath, she had a well-founded aversion to vaccinations.  She had undertaken research and elected not to have herself or the children vaccinated, choices she discussed with the Father, who had never previously raised an issue with this. 

(iii)      Her first choice was to treat illnesses via natural remedies and natural diets, but if the children required medical attention, then she would abide by that.  It was simply her preference and well-evidenced belief that natural treatment should come first.  She said she would never put her children to harm by failing to administer antibiotics to them when it was necessary.  She was confident she could treat minor ailments with natural remedies and was concerned with the over-use of antibiotics, and did not want the children to build up a resistance to them for when they were really needed.  

(iv)      It was correct that she was in Country 1 on a tourist visa and said that the government agencies were well aware of her situation.  Her Country 1 lawyer had not advised her that she needs to seek residency status.  She currently worked with a local women's community in Town 1 as a naturopath, and also with local farmers.  This was informal work and based on a gift economy.  The farm was self-sufficient, producing organic meat, milk, eggs, fruits and vegetables.  She would obtain a formal work permit should circumstances change.

(v)       It was true that it takes some time to travel to Town 1, but that is what creates much of its charm, and she said, makes it such a special place.  She and the Father had lived there before the children were born, and at no time was it agreed that they would move to Jersey or the United Kingdom with the children.  She had been living in Town 1 for eleven years.  She had never heard of any gun crime, murder, depression, homelessness, drugs or gang crime.  It was a tribal and community based area, and she would not be living there if it was a dangerous place. 

(vi)      She and the Father tended to use Facebook Messenger to communicate, and he always has access to the children via the live chat app.  She and the Father would speak every Wednesday morning at 9.00 a.m. when he seldom wished to speak to the children.  She had a smart phone on her at all times which has WhatsApp, Facebook and a signal to live video chat.  It was true that Skype didn't function in Country 1, but other applications, such as Facetime and Facebook Messenger had been used and continued to function perfectly well.

(vii)     It was not true that she left the children unsupervised or with people that they did not know.  The children spent the majority of their time with her, but she had a home help who had been working for her for four years as well as farm workers who had known the children since they were born.  She attended public events, such as weddings of friends in the community with the children, and the children were surrounded by people whom they had known since birth and who they are very close to and are used to seeing on a daily basis. They would visit other families who were trusted and take part in festivals. 

(viii)    The people of Town 1 are very resourceful, unlike the disposable culture within Western society in which the Mother had grown up, and she believes there are many positive lessons that people in the Western world can learn from indigenous communities, and their connection to each other and nature.  It does not have the difficulties faced by many societies - little crime, little drug or alcohol addiction and where air and water pollution are almost unknown.  She knew nothing about the sex tourism referred to by the Father.  She had heard rumours that it might exist, but had no contact with it.  It was a very safe culture, based upon community.  

(ix)      The farm was enclosed by a fence.  The children spent most of the time in front of the house.  She was there 24/7.  She does not allow the children to roam through Town 1, although sometimes they would run errands to nearby farms, but if they went further afield, she accompanied them.  She did not feel unsafe in Town 1.  There had been one or two incidents of intruders over the years, but if there were difficulties, there were neighbours she could call upon. 

(x)       The Father's description of Town 1, which he had only visited two weeks in the last two years, bore no relation, she said, to the truth.  It was a community that was developing rapidly, both economically and socially.  It was spurious to claim that MM, as a foreigner, would have to conform to Islamic conventions such as wearing a head-scarf. 

(xi)      She had believed that the Father shared similar views to her over education.  She had home schooled the children following the Montessori method of education. It was unfair to compare the children to their peers who had been educated under a formal English curriculum.  She firmly believed that the children would have a more rounded and better education than formally educated English children.  Both children were multi-cultural and trilingual, in that they can speak English, Local Language and Language of Country 1.

(xii)     As the children grew older, she had created several outdoor play areas equipped with Montessori wooden toys, games, arts and crafts and books, where they could develop age appropriate skills alongside their consistent group of friends, both international and local, who regularly visited the farm and appreciated the creative and educational hub that she was facilitating.  The children learn individually at their pace with a particular emphasis on the established pedagogy of self-directed learning, recognising and facilitating their own aptitude and interests.  As LL reached the age of four, he began attending a small Rudolf Steiner nursery that was run by a British teacher in her garden farm. 

(xiii)    The children, from a young age, have helped with keeping various animals on the farm.  LL keeps his own pigeons and loves to go fishing and attend to his own vegetable herb garden, as well as swimming and afternoon bike rides to the lakes and desert around Town 1.  In recent years, she had identified accredited tutors who could further add to the children's educational experiences, and help design a tailor-made bespoke curriculum as they grow and progress and identify new things to learn about and explore.  She had consulted the many schooling resources online and had begun to utilise the Christopherus home schooling curriculum popularised by hundreds of thousands of the home schooling community across the world.  The children spend the summer months in different locations, benefiting from a wide variety of cultures, climates, histories and societies, which children can greatly benefit from interacting with.  

(xiv)    She denied that continued home schooling would reduce the children's life chances.  Her (UK based) partner, N, had himself been home schooled until the age of 16, when he began formal institutional learning, going on to gain excellent academic results at A level, a degree and a Master's degree.  Home education, she said, had become an increasingly popular choice for families around the world in recent times, particularly in the UK, where estimates, she said, suggested that the numbers are increasing by a quarter each year from the current estimate of around 60,000. Gerald Durrell, for example, was home schooled.  She exhibited an article from the Guardian about the educational system in Finland, where children received no formal instruction until they are seven and in primary school, but engage instead in creative play.  They believe that children under seven are not ready to start school, and need time to play and be physically active.  It is a type of creativity giving children vital skills in how to learn.  Notwithstanding this, Finland's comprehensive school system has emerged as a global leader in education, with Finnish pupils producing some of the world's highest scores in maths, science and reading.  It remains the highest ranked in Europe.  

(xv)     It was absurd to suggest that the children were not educated as they were incredibly confident.  The model she followed placed emphasis on the first seven years on social skills, physical ability and enthusiasm to learn.  LL had been introduced to reading but, heeding the warning given by Dr G, she did not want his confidence knocked.  She had no objection per se to formal school education, but home schooling was a valid option.  

(xvi)    She would continue home schooling the children for the time being, as it met their needs, but fully expected that at least at the age of fifteen or sixteen, they would want to engage in more formal education, and she would be sensitive to those needs.  At the moment, they were thriving.  She would not wish to send them to boarding school, but would travel with them for educational projects.  By the age of nine or ten, they will be writing and reading, and she was confident that in time they would be able to access higher education.  In terms of future employment, she could not say what would happen when they were older, but there was a huge variety of options available to them.  They would access GCSEs and the baccalaureate but their future would not be restricted to the Town 1 way of life - they would have a multicultural international upbringing.  

(xvii)   The Mother was confident that when the time was right for them, the children would develop their academic knowledge in conventional schools and quickly catch up with their cohorts, and would have a similar trajectory to children growing up in Scandinavian countries.  She was confident when the time was right, the children would seek education at higher levels, at school or university either in Country 1 (e.g. City 2), or further afield.

(xviii)  In terms of LL's education whilst here in Jersey, Support Establishment 3 had tried LL attending one full day during January, and this had been too much for him, and it was unfair on the class teacher, who would not be able to give him the necessary attention.  It had therefore been agreed with the school that he would attend three afternoons a week.  She would take him to school by bus, taking MM with her, and would stay until school finished when they would return.  No one anticipated that they would be in Jersey for some ten months. 

(xix)   She describes the behaviour of the Father towards her and the children as abominable, trapping them in Jersey with minimal financial support.  The Mother arrived in Jersey with one cabin bag for what was supposed to be a week's stay.  Her computer is at her home in Town 1, and she has been forced to deal with the correspondence and documentation arising out of this case using an old iPhone 4.  She has no friends or family in Jersey, and at times has been forced to take the children with her to various unavoidable meetings, simultaneously maintaining the children's home schooling, and remotely running the farm in Town 1.  

(xx)    The Father was exerting coercive control over her through these proceedings and financially, and she was terrified at the possibility of the children being taken away from her.  He had never raised issues with her over the care of the children prior to the visit in August 2018.

(xxi)   Town 1 in Country 1 is the children's home and always had been.  Until the proceedings, the children had only spent four weeks in Jersey in their entire lives.  For much of the last eight years she had singlehandedly been raising the children, looking after the house as well as providing for them by running the farm and her health-care business.  Now that the children were growing, she had the opportunity of moving her business forward.  She was confident that she could achieve the revenue necessary for the European summer travel she proposed for the children.  Her entire life had been dedicated to their well-being, and would continue to be so. 

(xxii)  The Mother did not recall smoking hash with C.  She had breast-fed the children for two and a half years each, carrying them on her back, which would have precluded smoking.  It would not have been possible, in any event, before the farm workers, who were very religious. 

(xxiii) She regarded her life at Town 1 as a success, and that she had two lovely curious children.  There was a growing number of expats living in Town 1, and the travel advice the Father referred to had been the same for eight years following a revolution.  The children were enjoying a multi-cultural experience but that may change.  It would depend on the needs of the children and she could not say what the future holds.

(xxiv)  In terms of health care, there had been investment in the hospital in Town 1, which caters for a population of some 45,000.  There were three paediatricians and fifteen chemists.  Town 1 has a children's clinic and MM went there to be treated for tonsillitis.  When two years old, LL had an eye infection, and was taken to Town 2, some three hours away, where he was treated with antibiotics.  The children were born at home, but she and the Father had assessed the hospitals in case things went wrong. 

(xxv)   In terms of contact, she suggested that the children should visit the Father for two weeks on two occasions every summer, although she would want some reassurance that there would be no repetition of what had happened on this occasion.  She agreed that the Father should have them on alternate Christmases.  Between January and May of each year, it was better for the Father to come out to Country 1 (he had a property in Country 1), and she was happy to be responsible for transport. 

(xxvi)  The Mother could not countenance the possibility of residence being granted to the Father, because such an order would separate the children from her.  If that were to happen the children would need extensive professional help.  She had nowhere and no means to live in Jersey and it would be impossible to maintain regular direct contact with them.  She would have to go back to Town 1 to see whether capital could be freed up for her to return to the UK but it would take time.

(xxvii) In terms of enforcement of any Jersey court orders in Country 1, she pointed to the commitment she had shown to the proceedings in Jersey and said that actions speak louder than words.  Following the Court's order of 3^rd May, 2019, allowing her to take the children to stay with her mother, she had flown back from London in order to attend these proceedings, in which she felt that her qualities as a Mother had effectively been on trial.  She could only give her word but she pointed out that Jersey orders could be enforced in the UK, where her mother lived, and where she would visit annually.  Country 1, she accepted, was not a party to the Hague Convention.

(xxviii)    She had only had three days prior to the final hearing due to take place on 11th March 2019 to read and come to terms with the report from D, and had agreed, under pressure, to follow the therapy recommended.  She was terrified at the prospect of losing her children.  However, after due reflection on the report and its recommendations, and leaving aside the viability of her staying in Jersey for another twelve months and the lack of funding for the therapy, she could not either recognise the person described by D or accept the conclusions. 

The Guardian

66.      The Guardian was unable to make a clear recommendation in this case.  She did not have enough knowledge about Town 1 to investigate the Father's claims in relation to safety and health care, and despite the report from Support Establishment 2 and the three reports from the Children's Service, she could not dismiss the concerns of D.  If the children were to remain in Jersey, there was no practical way of them settling here with the Mother, given the accommodation and financial issues.  There was no access in Jersey to the therapy recommended by D, and no method of funding it.  In any event, the Mother did not agree that therapeutic help was needed.  There would be issues over contact whichever decision the Court made. 

67.      In terms of the cauterisation, this would be harmful wherever it took place, and constituted physical abuse.  She was satisfied, however, that the Mother would not allow that to happen again.  She accepted the Mother would not have done this maliciously, as she does love the children.  It would have been easy for the Mother to have given a more socially acceptable account of the treatment. 

68.      In terms of home schooling, the Mother was following a broad plan that was not in line with Western education, but their education had not been neglected; it was simply that they had been educated differently, in a manner which was not currently possible to measure. 

69.      The transition to the care of the Father, should he be granted residence, could be planned over four months of the summer, but she said it would need careful support, as in effect, the children would be removed from the care of the Mother, and it was not clear how that support would be funded.  The parents would have to agree a positive narrative, which is unlikely in the current circumstances.  

70.      In evidence, the Guardian helpfully prepared a list of pros and cons of the children residing with the Father and with the Mother, which we will refer to below.  She reiterated that she could not make a recommendation, and that the children would suffer harm whichever decision the Court made.  The preference was that the parents should stay in one place, working through the therapies suggested by D, but that was not possible. 

71.      The Guardian described the children as delightful, sparkly, energetic youngsters that got along well with both the Mother and Father.  On every occasion she had seen LL, he had been absolutely adamant that he viewed Town 1 as home, and wished to return there.  In all, his narrative of wanting to return home to Town 1 had been consistent.  The Mother was clearly MM's primary attachment figure. 

The law

72.      It was common ground that considering the issue of with whom and where the children should live, and pursuant to Article 2 of the Children Law, their welfare is the paramount consideration.  The Court shall have regard in particular to the welfare checklist, set out in Article 2(3) to which we will come shortly. 

73.      Advocate Corbett characterised the Mother's application as an application to relocate the children to Town 1 from Jersey, where they have been living for some ten months.  She referred to the recent Court of Appeal decision in Re F (A Child) (International Relocation Case) [2018] EWCA Civ 882, which concerned a German mother and English father, who had a child aged twelve who had been born and brought up in England.  When the relationship broke down, the child remained with the mother, who applied to relocate permanently with the child to Germany.  It was held that:-

(i)        The only principle of law to be extracted from earlier decisions including Payne v Payne [2001] EWCA Civ 166 was that the child's welfare was to be afforded paramount consideration. 

(ii)       It was well established that where there was more than one proposal before the Court, a welfare analysis of each proposal would be necessary.  The sophistication of that analysis would depend on the facts of the case.  Each realistic option for the welfare of a child should be validly considered on its own internal merits.  That prevented one option from being side-lined in a linear analysis.  Not only was it necessary to consider both parents' proposals on their own merits and by reference to what the child had to say, but it was also necessary to consider the options side by side in a comparative evaluation. 

(iii)      International relocation cases engaged Article 6 and 8 of the European Convention on Human Rights.  A step as significant as the relocation of a child to a foreign jurisdiction where the possibility of a fundamental interference with the relationship between one parent and the child was envisaged required that the parents' plans be scrutinised and evaluated by reference to the proportionality of the same. 

(iv)      Reference to "a global, holistic evaluation" was no more than shorthand for the overall, comprehensive analysis of a child's welfare seen as a whole, having regard, in particular, to the circumstances set out in the relevant welfare checklist. 

74.      In GT v RJ [2018] EWFC 26, Mostyn J said at paragraph 2:-

"[2]     The legal test to be applied is now very straightforward.  It is the application of the principle of the paramountcy of the children's best interests, as taxonomised by the checklist in s 1(3) of the Children Act 1989 (the 1989 Act).  That principle is not to be glossed, augmented or steered by any presumption in favour of the putative relocator.  Thorpe LJ's famous 'discipline' in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473, [2001] 2 WLR 1826, ]2001] 1 FLR 1052 is now relegated to no more than guidance, guidance which can be drawn on, or not, as the individual case demands.  In fact, most of the features of that guidance are statements of the obvious.  Obviously, if the applicant's case is not well thought out and is not supported by evidence it will likely fail.  Obviously, if the applicant's case, or the respondent's defence, is not advanced in good faith but rather is driven by an unworthy ulterior motive, then that case, or defence, will fail.  Obviously, the court must consider the impact on the mother if the application is refused as well as the impact on the father if it is granted."

75.      That case involved children aged twelve and two and a Ukrainian mother and Russian father who had lived in the United Kingdom from 2012 to 2015, when the marriage came to an end.  The mother moved to a valuable property with the children and then decided to go back to the Ukraine with the children.  Mostyn J found that the argument put forward by the mother that she would be devastated and profoundly affected if her application was refused should be treated very circumspectly.  The attribution of great weight to that factor appeared to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions (paragraph 4).

76.      These principles were applied by the Registrar in A v B (Family) [2019] JRC001A. In that case, the parents had been living in Jersey from 2002, and had three children, aged seventeen, fifteen and eleven, two of whom had been born here.   The marriage ended in or around 2014, and in 2017, the mother planned to emigrate to another country with her new partner.

77.      In all of these cases, the parents and the children were firmly established in one jurisdiction, with the mother applying to relocate with the children to another.  The case before us is materially different, in that the children were born and have been raised in Town 1, the father leaving in or around 2015.  They were brought here by the mother in August 2018 to have a two week contact with their father, and had been held here by court order ever since.  The mother wants them to return with her to their home in Town 1.  In reality, this is an application by the father for the children to be permanently relocated here in Jersey under his care.  Even so, we do not think this should make any difference to our approach and we apply the principles as set out above. 

Decision

78.      Ideally, the parents should live in the same jurisdiction, with the children under the primary care of the Mother (who has been their primary carer to date), but with generous staying access to the Father, but that cannot be.  The Father left Town 1 in 2015, and is now firmly based in Jersey.  He will not be returning to live in Country 1.  The Mother has lived in Town 1 for some eleven years.  The children were born and have been raised there, and that is where she has her home and her business, which constitute her only assets.  We accept that she cannot realistically be expected to abandon her home in Town 1 and move to Jersey, with which she has no previous connection, and where she has no Entitled Status, with the implications of that in relation to work and accommodation.  

79.      We are forced, therefore, to make a binary decision as to whether the children should return with the Mother to their home in Town 1, or whether Jersey should now become their home.  In either case, they will suffer harm in that they will lose regular contact with one or other parent.  

80.      We take first LL's cauterisation in 2016.  There is no question that if this had happened in Jersey, it would be regarded as serious physical abuse, and would no doubt result in criminal proceedings against the Mother.  Such treatments do not form part of our culture and the reaction to the scarring of Dr J and Dr K is understandable.  As against that, we accept:-

(i)        that cauterisation is an ancient form of treatment prevalent in Town 1, and that its use by the Mother had the support of the community in which she lived;

(ii)       that the mother was motivated by a desire to cure LL's hepatitis A, and no malice on her part was involved;

(iii)      that the cauterisation was undertaken openly, in that the Father was informed very shortly thereafter, and a photograph of both LL and his scars was openly posted on Facebook for all to see; 

(iv)      the Mother's evidence that this will never happen again. 

81.      The Mother was very critical of the work and report of D, who she accused of not complying with the code of the British Psychological Society (of which D is not a member), spending inadequate time on the assessments, not taking into account the stress that she was under trapped in Jersey and living at the Support Establishment 1 and the effect this would have on the assessment and making a number of factual errors in the report.  The Mother was critical of the Dynamic Maturational Model of Attachment development developed by Dr Patricia Crittenden and used by D, referring the Court to a number of academic journals which debated the merits of the same. 

82.      We are not going to set out those criticisms, because, in our view, D was able to respond to them appropriately, and they did not seem to us to undermine the opinions that she expressed.  The Guardian told us that the industry predominantly viewed Dr Crittenden's work as being a sound model and there was not a huge amount of criticism of it. However, we have a number of observations on D's evidence:-

(i)        It is very narrowly focused on the data she had obtained from the assessments she undertook. A clinical psychologist would have investigated the facts and, we feel, given us a much broader perspective. 

(ii)       There is no diagnosis of any psychiatric or psychological disorder on the part of the Mother.  The Mother was found to have "traits" of narcissism in her thought processes, and we comment on this below.

(iii)      Her finding that LL had unresolved trauma in connection with the cauterisation, drawn from observations of him at play, was flatly contradicted by Support Establishment 2.  Although the psychiatrist at Support Establishment 2, Dr P, was not available to give evidence, he found that LL "did not display any mental health concerns or any trauma relating to pathology". H, F and Dr G saw no evidence of distress on LL's part. 

(iv)      Intuitively we felt that the criticism that the Mother was focused on her need to return to Town 1 was unfair.  This was her long term home and livelihood and we think anyone in her position would have been preoccupied with returning. 

(v)       Rather than developing her psychological profiles from the data gleaned from the assessments and what was going on beneath the surface, D did appear to accept the statements of C and the father that the children were unsupervised in Town 1, something the Mother denies, suggesting that D might perhaps be prepared to accept accounts that supported her hypothesis rather than accounts that did not. 

(vi)      We found it difficult to accept that the evidence C gave of LL having meltdowns aged three (during the brief times she was there) was indicative of his inhibited negative emotions coming out as a consequence of his anger at the uncertainty of his relationship with the Mother.  In the experience of the Court meltdowns by young children are commonplace and we have all experienced it with our own children. 

(vii)     The lack of empathy which D said the Mother's assessments indicated would seem to be at odds with the experience of the other agencies with which she has dealt and the way she has conducted herself with the children throughout her time in Jersey. 

83.      At Page 100 of her report, D gave some illustrations of people with narcissistic traits in their character:-

"it is hard for such individuals to believe that there is another side to the issue that troubles them because they believe that their view is the only view, that they are always 'right', and that listening to the 'other's' feelings either makes them seem at fault or may block their ability to get what they want.  This is usually unconscious.  In addition entitlement grandiosity, superiority, and an exaggerated sense of uniqueness are a feature of this pattern, of all of which have been demonstrated by [the Mother] within her interviews with me."

84.      It seems to the Court that people with such characteristics are not uncommon, and that there must be a great many families where children have attachment difficulties.  This was put to her in evidence on 14^th March, 2019, and she agreed that this was the case, and that on the whole children would adapt.  She said it may put them on a risk trajectory, but nevertheless "it was working".

85.      As D said, she was concerned with what was going on beneath the surface, but we cannot ignore what we have seen above the surface, namely the way the Mother has conducted herself throughout this process.  The Mother has stayed in Jersey, caring for the children and dealing with the demands of these proceedings, demonstrating, in our view, a profound commitment to them. 

86.      As far as we are aware, there had been no intimation from the Father prior to the August 2018 visit that he intended to apply to have the children reside with him in Jersey.  In his C100 application form, dated 22^nd August, 2018, he cites by way of justification for the orders he was seeking the cauterisation, the lack of formal schooling and the children's isolation from extended family, all of which were known to him well before the visit.  The accidental injuries were minor, and in our view, consistent with the outdoor life LL was living with the Mother.  It is not clear whether the injury to his right hand, which Dr K said had developed over the previous few days prior to his hospitalisation, occurred when under the Mother's care or that of the Father. 

87.      Whilst we accept that the Father was motivated by the interests of the children in bringing the application, we can understand that the Mother felt ambushed and effectively imprisoned in the Island.  Indeed, at the inter partes hearing on 23^rd August, 2018, she gave an undertaking, presumably at the instance of the Father, to hand over her own passport.  She had very limited luggage and no means of supporting herself.  The maintenance of £300 per week initially paid by the Father was then unilaterally reduced to £150 a week, a sum which we agree would be quite inadequate to support the Mother and the two children. 

88.      The Mother was able to obtain accommodation at the Support Establishment 1, fitting their criteria (based on her disclosure) of someone subject to coercive and controlling behaviour.  She and the children were accommodated in one room, and inevitably had to share the facilities of the Support Establishment 1, with other often distressed families.

89.      Advocate Corbett said this was self inflicted, as the Father had offered to allow the Mother and the children to live in his house when she was caring for the children, when he would absent himself, with her leaving when he was caring for the children.  The Mother rejected this as inappropriate.  She said the proceedings were by their nature antagonistic and conflict driven.  She was being accused of being a bad mother and was being threatened with the loss of her children.  She could not, in those circumstances, be reasonably expected to live in the Father's house.  We accept that it would be unreasonable to have expected her to do so.  

90.      In addition, we take into account the three reports from the Children's Service, and the evidence of F, following his observations, of the Mother being a good parent, attentive and responsive to the children's needs.  Support Establishment 1, in their report of 8^th March, 2019, say this:-

"As explained in our previous communication with Children Services, [Support Establishment 1] has not observed anything that would warrant concerns over [the Mother's] parenting capacity.  She appears to have a very practical parenting style, she encourages the children to experiment and use art and crafts to play.  [Support Establishment 1] staff have never observed the children being neglected but on the contrary have observed strong attachments between [the Mother] and the children, with presence of quality interactions and shows of affection.  During these very challenging last months, [the Mother] has approached [Support Establishment 1] staff on numerous occasions to seek emotional support when needed so she could in turn support the children's emotional needs appropriately."

91.      In terms of education, there might be an instinctive feeling on the part of the members of the Court, all of whom have had a formal Western education, that such an education for these British children would be in their best interests, but we make the following observations:-

(i)        They have been home schooled by the Mother from the outset, and home schooling is a viable option for parents.

(ii)       Dr G and H were supportive of the work that the Mother has done with LL to date.  He has been taught to learn, has a positive attitude and good learning dispositions.

(iii)      For LL to be placed permanently in Support Establishment 3, where he would have to overcome the basic skills that his peers have learnt, would, according to Dr G, likely come "at a huge cost to LL's emotional presentation and self-esteem".  It is clear that lack of emotional wellbeing provides a barrier to learning.  We accept that MM would not face such difficulties. 

(iv)      The Mother clearly has high aspirations in terms of their future education, and intends that they will, when ready, move to a more formal education. 

92.      The Father has raised valid concerns about the children's safety in Town 1, located, as it is, near Country 1 border, albeit that there appears to be a substantial population there.  It is difficult for the Court to assess this aspect of the case, independently of the conflicting evidence of the parents, although the Mother came across to us as both intelligent and articulate, and it would be surprising if she would stay if her safety and that of the children was seriously threatened.  Many children are being brought up there, and we cannot say that it is unsafe per se.  However, we think it is fair to say that, objectively, Jersey must be a safer environment for the children. 

93.      It is true to say that the children living in Town 1 are more isolated from both their maternal and paternal relations in the British Isles, but two points arise from this:-

(i)        Town 1 is where they were born, and where they have been brought up in a community in which they are known. 

(ii)       The Mother has regularly brought them to Europe and the British Isles and plans to do so in the future, so their connection with the wider family will be maintained. 

The Welfare Checklist

94.      We turn now to the welfare checklist to the extent not already covered:-

(i)        The ascertainable wishes and feelings of the children

The evidence is clear, not just from the Guardian, but also from F and from the Support Establishment 1, that LL wishes to return home to Town 1.  It is also clear that MM regards her mother as her primary carer, and would therefore wish to return to Town 1 with her and LL.  F carried out some direct work with LL at his request in Howard Davis Park on 8^th April, 2019, where his wish to go home to Town 1 was made clear.  The Guardian had seen the children recently, and their position had not changed.  Quoting from her report of 28^th May, 2019:-

"2        ... MM struggles to separate from her mother, and on 7 May, when her mother was going to leave Jersey for London, and the children were due to spend a few days with their father before joining her, she was very distressed and it was not possible to persuade her to leave her mother.  After a time in [the UK] and feeling more settled, MM came to Jersey again with her mother this week, and left her fairly happily to go and spend a few days with her father, with minimal upset and distress.

I spent some time with LL on his own on 7^th May, before I took him to his father's home.  He spoke about [Town 1] without upset, chatting about all the things he planned to do if they were allowed to go back there.  He stated he likes Jersey for holidays, and seeing his father, but he does not want to live here.  I noted he seemed less upset in this discussion than he used to.  I asked him if he might find it difficult coming back to Jersey if he returned to [Town 1], if he would find it worrying.  He said no.  He could identify fun things he had done in Jersey (fishing for crabs with his father) but remains certain that home is in [Town 1], and that is where he would like to return.  This is a significant difference to LL's upset and polarised narrative when I first gathered his views."

(ii)      The children's physical, emotional and educational needs

Both children are fit and active, and generally physically healthy.  The Guardian described the children like sponges, picking up on the emotions of their parents, and in particular, the Mother's emotions over the current situation.  They were in a state of limbo, and the issue of where they were to live permanently needs to be resolved without delay.  D's opinion that LL was still suffering ongoing trauma in relation to the cauterisation was flatly contradicted by Support Establishment 2, and none of the other agencies had seen any sign of distress in this respect. 

We have already covered the issue of their educational needs.

(iii)     The likely effect on the children of any change in their circumstances

The children need to have their future determined and to know where their home is to be.  The Guardian advises that MM in particular finds change hard, and there will be a period of re-adjustment for her whatever happens, but if she lives in Jersey and her mother cannot remain with her, this will a be very significant loss for her, as her mother is her primary attachment figure.  At the same time, she needs her father, who she loves and enjoys spending time with, and will feel his loss keenly if they return to Town 1, and the ongoing relationship is limited by parental conflict, poor communication and physical distance.

(a)      The children's age, sex and background and any characteristics of the children which the Court considers relevant

LL is aged eight, and described by the Guardian as very sociable, confident with his peers and adults, and a lovely mixture of enthusiasm and energy.  He loves time with both parents on his own, particularly the Father, referring to it as "boys' time".  If he returns to Town 1, the Guardian encourages the parents to think about whether he might benefit from some contact with his father separate from MM, as he manages being away from his mother more successfully.  If he remains in Jersey, he will need considerable support at school, and in dealing with his feelings and emotions about not returning to the place he regards as home. 

MM is five years old, and her mother has always been her primary carer, and she prefers to be with her.  That is not to say the father is not loved, or important to her.

(iv)     Any harm which the children have suffered or are at risk of suffering

We have dealt with the cauterisation in 2016 above, and in our view, there is no risk of such an event happening again.  We attribute the accidental injuries LL had when handed over in August 2018 as minor, and attributable to his outside lifestyle in Town 1.

To the extent that Town 1 is a less safe environment than Jersey, then the children will, to that extent, be at greater risk of physical harm in Town 1 than in Jersey, but they have lived in Town 1 all of their lives without incident, save in respect of the cauterisation. 

There clearly is health care provision in Town 1, but not to the extent of the health care provision in Jersey.  Again, apart from the hepatitis A, the children appear to have been adequately treated in respect of the other ailments they have encountered. 

The children have not been vaccinated, which arguably increases the risk to them, but that was a decision made, the Mother says, with the consent of the Father, some time ago, after careful research, and we accept that vaccination is a matter of parental choice. 

D has advised that if the children returned to Town 1, they would be at significant physical and psychological risk from the decisions the Mother has made and continues to make about their care, and she refers to the risk trajectory for psychological problems increasing if the way the Mother relates to the children does not change soon. 

(v)       How capable are each of the parents of meeting the children's needs?

The Guardian advises that at a basic level, both parents are capable of meeting the children's needs.  The concerns expressed by D, in particular, about the capabilities of the Mother need to be considered and weighed in the light of the other very positive evidence we have about her parental capacity as summarised above.  The Guardian has observed the Mother at times to be highly unregulated around the children, the Father managing to contain his own emotions around them rather more, although she was conscious that the Mother may have had more day to day stress to navigate, in the light of her current position.  It is important, she said, for the children that they do not feel responsible for their parents' moods and emotional wellbeing, and that their experience of time with them is as secure as possible. 

Leaving aside the cauterisation issue, it is the case that the Mother has parented these children and met their needs from birth, in the latter years, on her own.

(vi)     The range of powers available to the Court

The Court cannot avoid a binary decision as to the making of a residence order in favour of one parent or the other with appropriate contact orders in favour of the absent parent.  A shared residence order is not appropriate with the parents living in Jersey and Town 1 respectively, and making no order is out of the question.  The state of limbo cannot continue any longer. 

95.      We have adapted the pros and cons helpfully put forward by the Guardian in respect of the two options before us.

(i)        Residence order in favour of the Mother living in Town 1

Pros

1.     This accords with the children's wishes, clearly expressed in the case of LL, and maintains the status quo prior to the August 2018 trip. 

2.     The children will be once again in the care of the Mother, who has been their primary carer all of their lives. 

3.     The children can continue the educational path of home schooling chosen by the Mother. 

4.     There should be a dissipation in the stress felt by the Mother in her current situation, which is being absorbed by the children. 

5.     The Mother is available to care for them full time.

Cons

1.     There will be no regular direct contact with the Father, which will affect LL in particular, as he is close to the Father and loves time with him.

2.     They would be living in Town 1, where there are concerns about safety and access to health care. 

3.     They will not have a formal English education. 

4.     As they grow older, cultural differences between them and local Town 1 might become more evident. 

5.     They may suffer psychological damage as a result of the Mother's perceived lack of attunement with them. 

(i)        Residence order in favour of the Father with the children living in Jersey

Pros

1.         The children will maintain their relationship with the Father, with whom they have a more stable attachment.

2.         They will have access to the Western standard of health care.

3.         They will have a formal English education.

4.         Jersey is a safer environment.

5.         They will be safe from any abusive medical practices.

Cons

1.     They will lose the Mother as their primary carer and have no regular direct contact with her.  MM in particular will struggle without her. 

2,   No funding is available to pay for the professional support the children will need in their transition to the primary care of the Father. 

3.    They will lose the place they regard as home.

4.    LL will struggle to adapt to mainstream schooling in Jersey with the repercussions advised by Dr G. 

5.    The Father will have to work and will therefore not be available as their full-time carer.  He would have to engage others to assist. 

96.      But for the cauterisation and the advice of D, there is no question in our minds that the children should return with the Mother to Town 1, where they were born and raised.  As commented in paragraph 15.8 of the Article 29 report, parents choose where to live and ordinarily, their children will follow that choice. Adapting the words of Hedley J in the case of A County Council v AL and ML [2007] FLR 2050, admittedly in the context of public law proceedings, children have to accept the diverse character and choices of their parents, and as a result will have different childhood experiences.  There are risks as to their safety and health care that go with their mother's long-term choice of home, a choice shared by the Father until he left.  

97.      In this case, we are not dealing with a Jersey based family, in which the Mother, as the primary carer of the children, wishes to relocate to another country with the children, depriving the Father of contact.  The parents were living in Country 1 and met there.  The children were born and raised there.  In reality, it is the Father who wishes to relocate the children from their home in Town 1 and move them permanently to his home in Jersey, with the inevitable loss of their mother as their primary carer.  

98.      The children have had a very different upbringing so far in Town 1, compared to a typical Jersey child, living in a town (albeit a large one) with exposure to an ancient [Continent 1] culture, where they have been home schooled by the Mother, in LL's case successfully, in that he has learnt to learn.  The Mother's aspirations for the children are clearly not limited to local Town 1 life, as they will be exposed every year to the European culture and, when they are ready, will undertake formal education.  It is her ambition that they will turn into adults having enjoyed a most diverse and interesting life experience and education in comparison to their peers in Jersey. 

99.      Do these two factors, namely the cauterisation and the advice of D, tip the balance in favour of the children being removed from the primary care of the Mother to live here in Jersey under the primary care of the Father? 

100.   We have accepted the Mother's evidence as to how the cauterisation came about and her motives in allowing it to happen; context is important here.  We are satisfied that the Mother would not permit such an incident to happen again.  As to D, we have considered her advice very carefully.  As we have said above, her advice is narrowly based and we feel we would have benefited from the broader analysis of the surrounding facts that a clinical psychologist would have brought to bear.  In addition, we have the reservations about her advice set out above.  However, we have to take into account all of the evidence before us, including our own assessment of the Mother as a witness, who has given evidence before this court on two occasions.  The weight of evidence, we conclude, is decisively tilted towards the view that the Mother is a good mother, who loves her children, wishes to protect them and is unlikely to put them at risk of harm, and although it would be of benefit for her to undertake the Video Interactive Guidance Therapy recommended by D, it is not a prerequisite for her having the children in her care.  

101.   As we have said earlier, the Mother has been the primary carer for the children all of their lives and the way she has conducted herself over the last ten months in this jurisdiction in what we regard as intolerable conditions, demonstrates a deep commitment to and empathy with the children, as witnessed by both the Children's Service and the Support Establishment 1.  Ultimately, and having weighed up all the factors, we have been left in no doubt and have been unanimous in agreeing that it is in the interests of the children that the Mother remains their primary carer, notwithstanding the disadvantages of their living with her in Town 1.

102.   We are therefore going to make a residence order in the Mother's favour on the basis that the children will live with her in Town 1.  The prohibited steps order will be lifted. 

103.   We agree that in circumstances where any orders we make cannot easily be enforced in Country 1, it is important that we make a contact order in favour of the Father at the same time as we hand down this judgment, and we accept Advocate Benest's helpful suggestion that the Guardian should meet with the parents or their counsel and hopefully draw up detailed proposals for us to approve. 

104.   The Father has also shown commitment to the children, hence the Court granting him parental responsibility, and we agree with the Guardian that the Mother should involve him much more in decisions regarding the children than perhaps has happened in the past.  His concerns about safety, health care and education are genuine, and there is much in the Guardian's suggestion that there should be an annual education and health check/assessment that could take place every year in the United Kingdom during the summer period. 

Authorities

Children (Jersey) Law 2002. 

LS v NS [2007] JLR Note 37

Re F (A Child) (International Relocation Case) [2018] EWCA Civ 882

Payne v Payne [2001] EWCA Civ 166

A v B (Family) [2019] JRC001A

A County Council v AL and ML [2007] FLR 2050