Jersey Unreported Judgments

Family - stay pending appeal - contact arrangements.

[2021]JRC281

Royal Court

(Family)

10 November 2021

IN THE MATTER OF DD (THE CHILD)

AND

IN THE MATTER OF CHILDREN (JERSEY) LAW 2002

Advocate L. J. Glynn for the Appellant.

Advocate N. S. H. Benest for the First Respondent.

Advocate C. Hall for the Second Respondent

Extempore judgment

the deputy bailiff:

1.        This is an application for a stay pending appeal of the order made by the Registrar which had the effect of transferring the residence of the Child ("DD"), from the Mother to the Father.  The appeal is due to be heard on the 10^th and 11^th January next year.  

2.        The application for a stay is made by the Mother and resisted by the Father and the Guardian ad litem.  It has been agreed by Counsel that the appropriate test for the Court to consider when addressing a stay pending appeal in a case under the Children (Jersey) Law 2002 is that set out by Mr Justice Mostyn in NB v Haringey LBC [2012] 2 FLR 125, in which the Judge having reviewed the relevant authorities said:

"From these authorities I derive the following five principles in relation to the application before me. First, the court must take into account all the circumstances of the case.  Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered."

Addressing each of those matters briefly:

(i)        First, all the circumstances of the case.  We have had regard to the contents of the evidence placed before us in the position statements of the Mother, the Father and the Guardian, and the affidavits sworn by the Mother and the Father.  We have regard to the decision made by the Registrar after a three day hearing earlier this year.  The key change in circumstance since the Registrar considered this case is of course that DD is now living with his Father, although on any view DD is exhibiting distress, although the causes of that distress are not the subject of agreement between the parties. 

(ii)       As to the second consideration that a stay is the exception rather than the general rule, that plainly speaks for itself. 

(iii)      Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted.  It is accepted on behalf of the Mother that it cannot be properly argued that refusal of a stay will render the appeal nugatory in these circumstances.  The appeal is to be heard in less than two months' time and DD is enjoying contact with his Mother twice a week, including one over-night stay. 

(iv)      Fourth, in exercising its discretion the Court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered.  The reference to the successful party is perhaps curious in the context of the balance of harm because that would mean the Court considering only potential harm to the Father which we do not think appropriate, bearing in mind this is a child case and accordingly we have considered the harm to DD as well as to some extent his Father. 

This is a difficult matter for us to address.  DD, at the moment, as we have said is distressed.  Whether or not he will become less or more distressed if he was now transferred to his Mother, pending the appeal, to live is a matter upon which there is no clear evidence in our view.  We do accept that DD will suffer emotional harm if he is removed from one parent's care to another, only to be moved again in January: if the appeal were to be unsuccessful.  He has already been removed from one parent's care to another on several occasions in the last two years and a move of his main residence for a period of only six to eight weeks would be, if the appeal were to fail, not in our view be in his best interests and might likely in the long term cause him significant harm. 

(v)       Fifth, the Court should take into account the prospects of the appeal succeeding.  Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.  On behalf of the Mother, Advocate Glynn has submitted that there is a strong likelihood of success.  By contrast, Advocate Benest, on behalf of the Father has said that the prospects of success are slim.  On the evidence we have seen, we cannot prejudge the outcome of the appeal and it would be wrong for us to attempt to do so.  We are unable to draw any conclusions as to the prospects of success and certainly cannot find that the prospects of the appeal succeeding are strong.  

3.        Accordingly, applying the test which we have adopted, we must decline the application for a stay pending appeal. 

4.        A second application, although not supported by a summons, was for the Court to consider varying the contact arrangements between DD and his Mother.  It was submitted to us and we accept that under Article 10(2)(b) of the Children (Jersey) Law 2002 that we are entitled to make an order varying the current contact arrangements even though no such application has been made to us.  We also accept that we are entitled to do so in the absence of any oral evidence, and indeed all the parties who would wish to make a contribution on that issue are in front of us today and have filed evidence, in the case of the Mother and Father, and filed a position statement in the case of the Guardian.  

5.        We are going to decline to order an alteration of the contact arrangements.  The Registrar has been seized of this case for some time and it would be more appropriate in our judgment for any application to vary the contact arrangements to be made to her in the first instance.

6.        We would like finally to address the parents, that is the Father and the Mother, directly.  Obviously, you have a very difficult relationship, but Christmas is only a few weeks away now which will be a very important time of year for DD and we do ask you to, if you can put aside your differences for him at this time of year.  Ask him what he wants to do at Christmas, and we hope that you do not as so many other parents do fight over Christmas Day and Boxing Day and we hope that with the help of your Advocates you can come to a sensible agreement as to how DD should spend his Christmas which is a very important time for a young boy, perhaps much more important than for the rest of us. 

Authorities

Children (Jersey) Law 2002.

NB v Haringey LBC [2012] 2 FLR 125.