Jersey Unreported Judgments

Family - appeal against decisions of the Family Registrar

[2022]JRC005

Royal Court

(Family)

12 January 2022

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Ronge and Cornish

 

Advocate E. L. Hollywood for the Appellant.

Advocate L. J. Glynn for the Respondent.

judgment

the COMMISSIONER:

1.        This is an appeal against a number of decisions made by Elizabeth Daultrey, Registrar, Family Division, on 24^th June 2021, the key decision being the giving of leave to the Respondent ("the Mother") to remove P ("the Child"), who is aged two, to live with the Mother in Country 1.

2.        The reasons for the decisions made by the Registrar are set out in a careful and detailed written judgment of that date ("the Registrar's Judgment").  We adopt the wording of the Registrar's Judgment in large part for the background to the case.

3.        The Mother is from Country 1, and is Christian, and the Appellant ("the Father") is from Country 2, and is Muslim; he is also a British citizen.  The Father first came to Jersey to work in 2005.  The Mother first came to Jersey to work in 2017 where she met the Father.  They married on 23^rd April 2019.  The Child (their only child) was born in 2019.  Sadly, the parties' relationship broke down before the end of 2019, but they remained living together by necessity until May 2020, when the Mother left the family home with the Child, to live firstly in the Women's Refuge and then in Accommodation 1 where she and the Child remain.  The Child has a medical condition for which she has been receiving treatment at Great Ormond Street Hospital; [REDACTED].

4.        By the time of the final hearing on the four days commencing 21^st June 2021, a number of interim applications had been dealt with by the Registrar, indicative of the acrimonious nature of the relationship between the Mother and Father, certainly initially.  The final hearing was originally scheduled to take place during August 2020, but for a number of reasons including Covid, was adjourned on some three occasions. 

5.        At the final hearing, the issues to be dealt with were:

(i)        an application by the Father on 16^th December 2019 for a prohibited steps order to prevent the removal of the Child from Jersey without the consent of the Father;

(ii)       an application made by the Mother on 14^th February 2020 for leave to remove the Child from Jersey to live in Country 1;

(iii)      an application made by the Mother on the 14^th February 2020 for a specific issues order that the Mother's surname be added to the Child's name, and to remove her middle names.

(iv)      an application made by the Father on 24^th June 2020 for a residence order in his favour;

(v)       an application made by the Mother on 4^th May 2021 for leave to take the Child to Country 1 on holiday in July 2021.

At the final hearing, the Father did not pursue his application for a sole residence order in his favour, but sought instead a shared residence order. 

6.        By her decisions, the Registrar:

(i)        gave the Mother leave to change the Child's surname to include the surname of the Mother;

(ii)       ordered that the Child should reside with the Mother;

(iii)      ordered that the Father would continue to have contact with the Child as then agreed whilst she remained living in Jersey;

(iv)      in the event of the Child living in Country 1, ordered that the Father would have contact to be set out in a separate order (for which a basic structure was provided), either by consent or upon separate adjudication by the Court;

(v)       gave the Mother leave to remove the Child to live with her in Country 1 upon the pre-condition that she obtain a mirror contact order in the Country 1 court and by necessary implication dismissed the Father's application for a prohibitive steps order preventing the Mother removing the Child from Jersey.

All of these orders are appealed by the Father save for the order permitting the change of name.

7.        No order was made in relation to the Mother's application to take the Child to Country 1 on holiday in July 2021, but that holiday took place with the Mother returning to Jersey voluntarily with the Child to live in Accommodation 1 where they remain pending the outcome of these proceedings.

8.        The Registrar's Judgment first summarised the evidence heard and documents considered over the course of the four-day hearing. The following gave evidence:

(i)        Mr B, a Country 1 attorney practising in civil and family law, initially instructed on behalf of the Father, but his evidence was not actively contested by the Mother.  He produced a report on the issues relating to recognition and enforcement of a Jersey court order in the Country 1 courts, the cost of enforcing proceedings in Country 1 and the sanctions imposed by the Country 1 courts in the event that recognised Jersey orders were breached.

(ii)       The maternal grandmother and the maternal uncle.

(iii)      The Mother, who had sworn three affidavits, the last of which was dated 7^th January 2021, some time before the final hearing.

(iv)      The Father, who had sworn four affidavits, the last being on 5^th March 2021.

(v)       R, who had been the allocated JFCAS officer throughout the proceedings ("the JFCAS Officer") who had prepared four reports, the final report being dated 19^th May 2021.

9.        The Court had, inter alia a report from Mr C, a human rights lawyer based in Country 1, who had been jointly instructed, as to whether there are any state condoned or sponsored human rights abuses against Muslims in Country 1 and a report from Mr D, a consultant at Great Ormond Street Hospital.

10.      The Registrar set out the relevant law in relation to applications to remove a child over which there was no dispute.  In summary:

(i)        As the applications relate to the upbringing of the Child, then in accordance with Article 2(1) of the Children (Jersey) Law 2002 ("the Children Law"), the Child's welfare shall be the Court's paramount consideration.

(ii)       The Court must have regard to the facts as set out in the welfare checklist in Article 2(3) of the Children Law, which she set out in full.

11.      The relevant principles to be applied are those set out by Mostyn J in GT v RJ (Leave to Remove) [2018] EWFC 26, principles that have been applied by this Court - see, for example, A v B [2019] JRC 001A, C v D [2019] JRC 090A and LL v MM [2020] JRC 137.

12.      The Registrar gave this helpful summary of those principles as taken form GT v RJ:

(i)        The principle of the paramountcy of the children's best interests, as taxonomized by the welfare checklist, which is not to be glossed, augmented or steered by any presumption in favour of the putative relocator.

(ii)       Lord Justice Thorpe's famous 'discipline' in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance, which can be drawn on, or not, as the individual case demands.

(iii)      If the applicant's case is not well thought out and is not supported by evidence it will likely fail.

(iv)      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.

(v)       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.

(vi)      The court must undertake a 'global' or 'holistic' or '360 degree' exercise.

(vii)     The court's function in a removal case is one of evaluation rather than a pure exercise of discretion -- see Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, [2010] NZFLR 884.

(viii)    The court will have to resolve disputed facts and there is a burden of proof on the party alleging the facts in issue, but once the facts are established there is no formal legal burden of proof on the applicant --see Payne v Payne at para 25 per Thorpe LJ: "I do not think that such concepts of presumption and burden of proof have any place in Children Act litigation where the judge exercises a function that is partly inquisitorial."

(ix)      Common sense dictates that where one parent seeks that a well-functioning status quo should be changed he/she has to make the running in terms of the evidence and argument to show that change would be more in the children's interests than no change. Notwithstanding the partly inquisitorial function of the court the maxim affirmati non neganti incumbit probatio (the burden of proof is on him who affirms - not on him who denies) should loosely apply to the case for change.

(x)       There is no principle in Children Act litigation that a new spouse takes subject to the claims of the old one (see, for money cases, Vaughan v Vaughan [2010] EWCA Civ 349 [2011] Fam 46).  However, if someone forms a relationship with a woman who has children from a prior relationship where the father of those children is enjoying a stable regime of contact, then the new partner must surely be taken to enter the relationship, with all its incumbrances, with his eyes wide open.  On the other hand, the father of those children must surely recognise the prospect of his former wife re-partnering and in that event a case for change being advanced.  The weight to be attributed to these two general propositions will depend on the facts of the case in hand; and

(xi)      Arguments in relation to the devastation and impact of refusal of the relocating parent should be treated very circumspectly.

13.      As to shared residence, the Registrar set out the test to be applied as per the case of B v A [2010] JLR 462 at paragraphs 40 and 42 as follows:

"40     We draw from these cases the principle that shared residence orders should be made in two categories of case (ignoring the third for a moment).  The first is where such an order reflects the practical realities of the children's lives; also referred to by some judges as the situation on the ground.  The importance of this requirement has been repeatedly stated, as is shown from the emphasized passages in the extracts cited earlier.  The requirement for shared residence to reflect the practical realities does not require there to be an equal division of time spent between the parents, but it requires the court to be able to answer Ward, L.J.'s question in In re H(7) (see para. 238 above) in the second manner which he gives, namely: 'Oh, we live with mummy for part of the time and with daddy for the other part of the time' ....

42       The second ground upon which a shared residence order may be made is that referred to by Potter, P., namely where it is psychologically beneficial to the parents in emphasizing the equality of their position and responsibilities. This second category has been subject to some criticism (e.g. Gilmore (supra) [2010] Fam Law at 289 on the ground that, read literally, it suggests that a benefit to the parents alone would be a good reason to make a shared residence order.  Given that the child's welfare must always be the paramount consideration in such cases, we do not believe the President was intending to suggest this and we have no doubt that, although he did not spell it out specifically, the President was saying that there may be benefit to the child as a result of the benefit to the parents in emphasizing the equality of their position and responsibilities."

14.      The Registrar then set out her analysis of the evidence on the application for leave to remove which we would summarise as follows:

(i)        Whilst both parties, but primarily the Mother, had dedicated a significant proportion of their written evidence to criticisms of the other, the oral evidence focused primarily on the practicalities of the Mother's move to Country 1, from which the Registrar gained the impression that the approach of the parents had shifted, an impression confirmed in part by the JFCAS Officer in her evidence.

(ii)       There were two options before the Court, either the Child lives in Country 1 with the Mother or the Child and the Mother remain in Jersey under the present arrangements with the Mother being the primary carer and the Father having regular contact (three times a week with two overnight stays).

(iii)      The welfare benefits of the Child remaining in Jersey were as follows:

(a)       The Child would have regular contact with the Father and be able to grow up learning about Islam on a day to day basis and learning Arabic through exposure to the Father's use of the language.

(b)       By contrast, if the Child were moved to Country 1, this would have a significant impact upon the Father's relationship with her, with contact shifting from multiple times a week to a limited number of occasions per year; although when older, this could be for longer holiday periods, giving her the opportunity of maintaining a close relationship with the Father.

(c)       Maintaining and developing contact with the Child in Country 1 would be challenging and costly for both parents.  Whilst the Mother's plans for the move were well thought out and detailed in every respect, her proposals for contact did not contain the level of structure and detail required, which gave rise to a concern as to the Mother's commitment to maintaining the relationship between the Child and the Father.  On the other hand, the Mother had over recent months shown that she could work with the Father to progress contact.  She could have left Jersey for Country 1 prior to the commencement of the proceedings and had not done so.  The Registrar accepted the JFCAS Officer's assessment that any initial block as to contact was a result of anxiety and anger, rather than to thwart the relationship between the Child and the Father.

(d)       At worst, the Father's fears that he will never see the Child again may be realized in that whilst the family law system in Country 1 was based on exemplary principles, it was untested on an international basis.  It could not be guaranteed that mirror orders could be obtained and the accustomed protections afforded by the Hague Convention were not in force as between Jersey and Country 1, so the Father could find himself fighting from scratch in a country where he does not know the language, is not eligible for legal aid and where there is corruption in the court system.

(e)       The parents agreed that Great Ormond Street Hospital was one of the best hospitals in the world, and it would undoubtedly benefit the Child to continue to have access to treatment there for her condition, but the evidence from Mr D, of Great Ormond Street Hospital, was that he had confidence in the treatment that the Child would receive in Country 1, [REDACTED]. 

(f)        The JFCAS Officer suggested that the standard of education in Country 1 might not be as high as that offered in Jersey, but the available evidence did not lead the Registrar to conclude that this was the case, and she did not find that there was a welfare benefit to the Child being educated in Jersey.

(g)       It was common ground that Country 1 is a poor country and Jersey affluent, but affluence is a relative concept and it does not necessarily benefit the Child if her primary carer is struggling financially.

(h)       Crime rates are low in Jersey and there is organised crime in Country 1, but the Registrar was not satisfied from the evidence that the Child would be adversely affected by crime if she grows up in Country 1.

(i)        The evidence of Mr C was that human rights abuses against Muslims were condoned by the state in Country 1.  This related primarily to the failure of the state to sanction hate speech.  Neither Mr C nor the Father provided a clear picture that would indicate that Muslims are denied freedoms or subjected to institutionalised discrimination.  Although this was a factor that the Court should take into account, the Registrar did not agree that would result in the Child losing her heritage or suffering discrimination, nor did the Registrar agree that the Father would not be safe travelling to Country 1 for contact.

(iv)      The welfare benefits of the Child relocating to Country 1 were:

(a)       The Mother and the maternal grandmother owned a home in Country 1 (in which the Mother had been brought up), which was suitable for the Child, so she would have settled rent-free accommodation there. 

(b)       By contrast, in Jersey, her parents were likely to remain in low paid employment and be in receipt of income support indefinitely; it was unlikely that either would ever own their own home here.  It would be over five years before the Mother obtains housing qualifications and in the meantime, she will be in competition for the expensive and limited stock of available housing.

(c)       The Registrar accepted the evidence of the Mother and the maternal grandmother that they will live together in Country 1, and share child care.  The Mother's godparents lived in the flat below and she knows her neighbours.  Furthermore, there is an extended family living in and around Country1, giving a level of support that was not attainable for either parent living in Jersey.

(d)       In the event that the Mother remains in Jersey, she will experience severe hardship until April 2022, when she will qualify for income support.  She has modest income resources but was managing to make ends meet by using her savings.  She was deeply unhappy at Accommodation 1, and when required to leave from there, will be potentially homeless.

(e)       The Father had generously offered to fund the deposit for a flat and the payment of rental until the Mother qualified for income support in April 2022.  She could work, but would have to fund childcare, and it would be unfair to the Mother and the Child if the Mother was forced to work full-time in unsocial hours. 

(f)        In Jersey, the Mother's financial stability relied on both her and the Father being in work, with the Father contributing child maintenance, which he had done unfailingly throughout the proceedings.  However, the Father's hobby of playing poker, which the Mother alleges was a gambling habit and which the Father denied was true gambling, was of concern to the JFCAS Officer and to the Registrar, as it had the potential to undermine the Father's financial stability and ability to provide for the Child, particularly in Jersey, where financial margins were so tight, and any financial insecurity or uncertainty had the potential to greatly undermine the Child's welfare.

(g)       The Mother, who had a degree and was multilingual, was confident she had flexible work options in Country 1.  Unemployment in Country 1, however, is high, and both the maternal grandmother and the maternal uncle spoke of having to find work outside Country 1 in the past.

(h)       The Mother had been on sick leave since early 2021, and whilst composed in evidence, the JFCAS Officer advised that she was getting to breaking point living in Jersey, which was not working for her.  In the Registrar's view, the Mother's distress went beyond the "selfishness and uncontrolled emotions", envisaged in the case of In Re AR (a Child): Relocation [2010] 2 FLR 1577, where Mostyn J said:

"The problem with the attribution of great weight to this particular factor is that, paradoxically, it appears to penalize selflessness and virtue, while rewarding selfishness and uncontrolled emotions.  The core question of the putative relocator is always 'how would you react if leave were refused?' The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically."

In the view of the Registrar, the Mother was suffering real hardship and isolation and whilst in time she may settle and her circumstances improve, it would be at least a year before she had a real opportunity to improve her financial position, and if she "broke" in the meantime, the consequences for her and for the Child would be significant.

(i)        The Registrar was not satisfied that there was evidence of a realistic risk, as feared by the Father, of the Mother not remaining in Country 1, but moving elsewhere in Europe (she holds a Country 3 passport).  The Registrar could not see any logic to the Mother making an application to relocate to Europe's poorest country when in fact it was her intention to live elsewhere in Europe, where many of the concerns regarding Country 1 as a state would fall away.

(v)       It is worth setting out the Registrar's judgment from this point to her conclusion:

"117.   In my analysis I have considered at each point the welfare checklist; it does not add anything to go over the checklist point by point.  Out of the evidence I have read and heard, and out of the analysis I have carried out, two competing factors are of the greatest significance.  Firstly, the inevitable impact that will be caused to [the Child's] relationship with her father if she lives in Country 1.  Secondly, the impact upon the Mother and consequently upon [the Child] if the Mother must remain living in Jersey.

118.    Advocate Glynn said that whatever decision the court makes there will be hardship, and this summarises this difficult and delicate decision.  Either hardship will be caused to [the Child's] primary carer by being required to remain in Jersey throughout [the Child's] childhood, or hardship will be caused by the damage to [the Child's] relationship with the Father caused by her growing up in [Country 1].

119.    The Mother was 24 when she came to Jersey; it was never her intention to settle here.  Indeed, the evidence of both parties is that even before [the Child] was born, the Mother was exploring options to move away.  It was not a wish that the Father necessarily shared, but to accommodate the Mother, he explored employment options in Scotland.  Neither party are from Jersey.  They met here, and within an 18 month period, commenced a relationship, lived together and separated in January 2019 when the Mother returned to Country 1.  Within the following 12 month period, the parties reconciled, married, had a baby and ended their relationship acrimoniously.  The parties have been locked in litigation since December 2019.  There is not nor has there ever been 'a well functioning status quo' such as that envisaged by Mostyn J in GT v RJ in this family.

120.    The guiding principle in applications for leave to remove is the paramount welfare of the child.  All other considerations come second to this, including the Mother's wish to return home.  Every case turns upon its individual facts; nevertheless I am invited to compare this case with the facts of Re C.  In that case the trial Judge made findings as to the mother's manipulation and selfishness.  My impression of this Mother is very different. The Mother's early approach to contact was less than ideal. However, I accept the evidence of [the JFCAS Officer] that this was motivated more by fear and anxiety than a desire to thwart the Father's relationship with [the Child].  The Mother appears to have moved forward in her attitude to the Father.  I do not gain any impression that she is motivated to manipulate nor to follow her own needs above [the Child's].  It is my view that the Mother genuinely wishes to give [the Child] the best possible upbringing and believes that this is most attainable in [Country 1].

As to the Father, he too has moved forward during these lengthy proceedings, but his anger against the Mother is still evident.  [The JFCAS Officer] says that he showed compassion to the Mother following the incident on 19^th May 2021, but in giving evidence it was clear to me that he holds her responsible for the present hardship she is suffering because she left the family home.  The Father's attitude concerns me; the Mother was perfectly entitled to leave the family home in May 2020 for whatever reason.  The Father offers support to the Mother, but I have a concern that this support may not always be offered unconditionally.  Following the incident on 19^th May 2021, in correspondence between the legal representatives of the parents, the Father offered help by giving respite care, or the Mother can live in his apartment whilst he would move elsewhere.  The Mother requested that the Father have [the Child] for an extra hour until 8.0 p.m. each Monday, and the Father did not accommodate this request.

121.    If [the Child] grows up in [Country 1], her relationship with the Father will change and the challenges to preserve and develop that relationship will be significant.  Whatever the benefits of the Mother returning to [Country 1] with [the Child], it is not an acceptable price to pay that she loses her relationship with the Father.  However, if that relationship can be adapted and preserved with [the Child] moving to Country 1, that in my analysis is the best option for [the Child].

Decision

122.    I do allow the Mother's application for leave to remove, but strictly on the following two conditions."

The reference to an incident on 19^th May 2021, is to an incident when the Mother was found by the Father (who was returning the Child from contact) in a nearby park in a distressed state for which the Father had shown genuine concern.

15.      The two conditions upon which leave to remove was granted were as follows:

(i)        There being in place a comprehensive and detailed contact order covering contact arrangements in the event that the Mother and the Child relocate to Country 1.  The Registrar set out a basic structure for such contact.

(ii)       The Mother must secure a mirror order in Country 1 for the Father's contact with the Child.  If it proved impossible for the Mother to secure a mirror order to the satisfaction of the Father or the Court, she cannot remove the Child to Country 1.

16.      The Registrar then turned to the Father's application for a shared residence order, and as this part of the Registrar's judgment is relatively brief, we can set it out in full:

"Shared residence -

125.    The law sets out an either or test.  A shared residence order is appropriate where such an order reflects the practical realities of the child's life, or where it is psychologically beneficial to the parents in emphasizing the equality of their position and responsibilities.

126.    Shared residence is not the reality of [the Child's] life at this time.  She is as yet a very young child who is and has been cared for primarily by her mother.  As to the second test, the evidence of [the JFCAS Officer] is that, whilst early in the proceedings there were concerns that the Mother did not accept the value of the Father's involvement in [the Child's] life, she believes the Mother has shifted in her attitude.  In any event, the Mother has agreed to contact throughout and has facilitated by consent an appropriate increase in contact to 2 overnight stays.  The skeleton argument filed on behalf of the Father argues that the Mother is likely to use a residence order made in her favour as a way of control and in order to alienate the Father.  I do not agree that the evidence supports this claim.

127.    In her report of 29^th June 2020, [the JFCAS Officer] recommends that there is some merit in a shared residence order.  I do not follow that recommendation, partly because the evidence is that the Mother's attitudes have changed but also because of the evidence of Mr B that a shared residence order may be less likely to be recognised in [Country 1].  The Mother must obtain a mirror order in [Country 1], if a shared residence order might make this task  more difficult she would unfairly be set up to fail.

128.    I will accordingly make a sole residence order for the Mother with contact to be determined separately in the event that the parties cannot reach agreement."

17.      The Registrar finally dealt with the Mother's application to change the Child's name by permitting the Mother's surname to be included in the child's surname and dismissed a specific issues application made by the Father in December 2019 regarding the religion the Child should be brought up in.  The Registrar had offered a preliminary view that neither parent had a predominant right to choose a child's religious upbringing and that the Child could be brought up having more than one religion, so that she could make her own choices.  The Father decided not to pursue that application, although it was never formally dismissed.  As it was raised again between the parties at the final hearing, it was formally dismissed by the Registrar.

Test on appeal

18.      It is well established that the test on an appeal against a decision of the Family Registrar is that set out in Downes v Marshall [2010] JLR 265, namely that an appeal shall only be allowed if there has been a procedural irregularity or if, in exercising her discretion, the Registrar has taken into account irrelevant matters, ignored relevant matters or otherwise arrived at a conclusion which the Royal Court considers to be wrong, to the extent that intervention is required in the interests of justice and fairness.

19.      As Sir Philip Bailhache, Commissioner, said at paragraph 10:

"10. ...... There are now two Greffier Substitutes (known as the Family Registrar and Deputy Family Registrar respectively) who are experienced judges in family law exercising jurisdiction only in that field.  Most matrimonial causes are heard by the Registrars and only occasionally does this court exercise an original jurisdiction.  In most disputed cases, as in this one, evidence is heard by the Registrar and conclusions formed on the basis of that evidence.  The advantage of the judicial officer who heard and saw the parties and their witnesses, and the manner in which their evidence was given, should not be underestimated.  It is not just a question of credibility.  It is also a question of evaluating the evidence and the findings of fact which he or she has made upon the evidence.  Justice is never perfect.  It depends upon judges, who are human beings.  The evaluation of judges in the Royal Court, who have not seen the witnesses, may be different from the evaluation of the Registrar, but may also be no better.  As Lord Hoffman expressed in Piglowska v Piglowski (4) 1999]  2 FLR at 785):

'These are value judgments on which reasonable people may differ.  Since judges are also people, this means that some degree of diversity in their application of values is inevitable and, within limits, an acceptable price to pay for the flexibility of the discretion conferred by the 1973 Act.'"

Appeal contentions

20.      It is not contended by the Father that there have been any procedural irregularities or that the Registrar had taken into account irrelevant matters or ignored relevant matters.  In essence, he says the Registrar had erred in her evaluation of the evidence before her, and the decision to allow the Mother to relocate with the Child to Country 1 was wrong, and should have been rejected.  Having done so, the Registrar should then have granted the Father's application for shared residence.  The contentions were very detailed, and we summarise them in turn.

Shared residence

21.      The Registrar was wrong in law and erred in predicating her decision about a shared residence order upon the circumstances of the Child moving to Country 1.  It was inconsistent of the Registrar to accept the expert evidence of Mr B on the implications of a shared residence order being granted in Jersey whilst simultaneously disregarding his evidence, without explanation, on the difficulties faced with obtaining and enforcing a mirror order in Country 1.  The Registrar had failed to give weight to the evidence of the JFCAS Officer as to the merits of a shared residence order, regardless of the leave to remove application which was conditional and may not occur, and she failed to fully consider and apply correctly the principles set out in B v A.

Relocation

22.      The Registrar erred in granting the Mother's application to remove the Child to live in Country 1 and this for reasons we would summarise as follows:

(i)        The plan for removal put forward by the Mother was incomplete both as to finances and as to contact.

(ii)       The Registrar placed unjustifiable weight on one aspect of the JFCAS Officer's oral evidence, namely that there had been a shift in the Mother's attitude to the Father and to contact.  To place such weight on this single part of the JFCAS Officer's oral evidence was not justified on a proper consideration of the Mother's written and/or oral evidence, the facts of the case, and in particular, the relationship between the Mother and the Father, both current and historic, a holistic reading of the four reports written by the JFCAS Officer over a sustained period of time and a proper consideration of the JFCAS Officer's oral evidence.

(iii)      The Registrar erred in placing reliance on the lack of cross-examination of the historic allegations made by both parents, given the nature of the hearing, which was not a fact find, but focused on the applications before the Court.  The Mother's affidavits consistently focused on the perceived failings of the Father towards her, and not the welfare and interests of the Child.  The procedural history showed that the Father had issued numerous applications to pursue, enforce and improve contact.  It was clear that there was a long-standing hostility by the Mother towards the Father and any perceived shift had been limited and only occurred under the spotlight of the final hearing.  The reality of the Mother's stance is evidenced by the lack of proposals put forward on contact and promoting the Child's dual heritage. 

(iv)      The Registrar erred in finding that the Mother's plans for the move to Country 1 were well thought out and detailed in every respect save for contact.  This finding went against the weight of the evidence before her as the plans were, when challenged, found to be speculative and poorly researched in a meaningful manner in the following respects:

(a)       the use of an outdated letter from a friend regarding a job offer;

(b)       initially providing no financial detail about average monthly income in Country 1;

(c)       providing incomplete/inaccurate information on benefits in Country 1;

(d)       giving no detail on health care costs;

(e)       the lack of researched detail on education;

(f)        the lack of detail on respecting dual heritage; and

(g)       living accommodation/conditions in Country 1.

(v)       Insufficient weight was given by the Registrar to the JFCAS Officer's evidence that the Mother's proposals for contact were deficient/failed to consider or properly analyse the financial liability and likely implementation of the proposed contact arrangements.  Accepting the contact proposals were deficient, the Registrar still allowed the application, without considering the reason for the lack of detail.  She should have refused the application instead of attaching conditions.

(vi)      At paragraph 117 of the Registrar's Judgment (set out above), she said this:

"In my analysis, I have considered at each point the welfare checklist; it does not add anything to go over the checklist point by point ..."

In so stating, the Registrar erred in declining to analyse the provisions of the welfare checklist and failed to properly analyse the harm or risk of harm to the Child or the damage to the relationship with the Father if relocation took place.

(vii)     The Registrar failed to give appropriate weight to the unchallenged evidence when considering the JFCAS Officer's pros and cons, namely that the standard of education in Country 1 might not be as high as that offered in Jersey and that there is Islamophobia in Country 1.

(viii)    The Registrar erred by failing to give proper consideration to the financial circumstances of both parties on a removal to Country 1.  It was wrong in particular for the Registrar to find that the Father's gambling (which is not illegal) was likely to have an impact upon finances. 

(ix)      There was no consideration of the Father's ability and offer to provide childcare support for the Mother in Jersey, so that she could obtain full-time work. 

(x)       The Registrar erred in accepting an outdated letter in support of the Mother's evidence that she will be able to access more flexible work options in Country 1, and this in the absence of any figures or details on jobs in Country 1.

(xi)      The Registrar gave too much weight to the Child having a mother who is not distressed or at breaking point, the authorities making it clear that the Court should treat the impact on the applicant of refusal of leave with a degree of circumspection in order to avoid the potentially rewarding "selfishness and uncontrolled emotions" of an applicant who says that if unsuccessful, she will collapse emotionally and psychologically (see AR cited at paragraph 13(iv)(g) above).

(xii)     The Court cannot lightly disregard the impact on the Child's relationship with the left behind parent and the Registrar erred in reaching her decision as it had the effect of depriving the Child of a constant father figure, resulting in occasional contact only, which would be detrimental to her.  The Registrar did not give full weight to the Father's role in the Child's life, and placed too much weight on the impact on the Mother, with no consideration of proportionality.

(xiii)    The Registrar was wrong in law or erred in granting the Mother's removal application on the basis of it being conditional upon the obtaining of mirror contact orders in Country 1, in that she failed to allow counsel to consider this condition and make submissions to her on it.  The imposing of the condition went against the uncontested expert evidence on foreign law and she failed to set out her reasons why she went against the expert evidence. Furthermore, the condition was open-ended without any timeframe.

Decision on Shared residence

23.      We see no merit in the Father's contentions.  It was appropriate for the Registrar to deal first with the removal application and then to consider the application for shared residence.  It is true that the JFCAS Officer said there was "some merit" in the making of a shared residence order in her report of 18^th September 2020, to be put in place "to reflect the importance and value of both parents' relationship with their child and to place their responsibilities towards their child on an equal footing".  The JFCAS Officer emphasised in evidence that this recommendation was in response to the Father's application for a residence order made in June 2020 and his worry that he was being manipulated out of the Child's life, but she went on to say that shared residence was difficult because it depended where the Child was to live and how enforceable such an order would be in Country 1, let  alone Jersey.

24.      The Registrar found the first category of the test in B v A was not met in that shared residence does not reflect the practical reality of the Child's life at this time.  That finding of fact is not impeachable.  As to the second category of the test in B v A, the Registrar found that there had been a shift in the Mother's attitude and the evidence did not support the claim that the Mother would use a residence order in her favour as a way of control and to alienate the Father.  Having given the Mother leave to relocate to Country 1, it was relevant for the Registrar to take into account Mr B's evidence that a shared residence order may be less likely to be recognised in Country 1.  As the Registrar pointed out that might make the Mother's task of obtaining a mirror order on contact more difficult to obtain, unfairly setting her up to fail.

25.      Intuitively, it seems to the Court that a shared residence order would be difficult to operate when a child was living predominantly with one parent in another quite distant country.  Whilst possible, in practice the de facto position of the parents in such a situation and their responsibilities are unlikely to be equal, and it is to emphasise equality that is the purpose of a shared residence order under the second category.

26.      The recommendation of the JFCAS Officer was tentative and the Registrar has given sufficient and cogent reasons to depart from it.  In the circumstances, a residence order in favour of the Mother was the logical result.

27.      We mention in passing that there was an error in law in the Registrar's judgment, which has no bearing on the outcome of the appeal, when she stated that the residence order would not prevent either parent taking the Child out of the jurisdiction for up to four weeks.  Under Article 14(2) of the Children Law, it is the Mother who is able to remove the Child from Jersey for a period of less than one month as the person in whose favour the residence order is made.  For the Father to remove the Child from Jersey, he would need the consent of the Mother, or failing that, leave of the Court.

28.      In our view, there is no inconsistency on the part of the Registrar in accepting the evidence of Mr B on the implications of a shared residence order being granted in Jersey and at the same time allegedly disregarding his evidence on the difficulties of obtaining a mirror contact order in Country 1.  As we say below it is manifest that the Registrar did not ignore the evidence of Mr B in relation to the difficulties in obtaining a mirror contact order, hence her making the obtaining of such an order a pre-condition of leave to remove being granted.  If the Mother cannot obtain such an order, then the Child cannot be removed to Country 1

Decision on removal

Shift in Mother's position

29.      Whilst the Father's appeal contentions are very widely drawn, a key ground of complaint is the Registrar's finding that there had been a shift in the Mother's attitude to the Father and to contact.  In her evidence, the JFCAS Officer put it this way:

"I think what I would observe in general terms is that, when people separate, they are generally very raw and angry and I notice in cases that come to me where it is a recent separation, over the progression of the case people shift and they move from their initial positions of visceral anger or hurt to something more moderate.  ....[They] had very recently separated when I first met with them and they were so, if it's like a shipwreck and they're not even, and you're in the lifeboats going towards the safety of a desert island, they were still on a ship that was going down.  They are approaching it some, they're not even in the safety of the desert island yet, they're approaching it somewhere, but there is a shift and a move over a period of time.  They've learned that they have to work together.  There is not the same amount of argument over every little detail about what happens. ...

Is she in a different place now? I think, I think, my feeling is that she is, but, that said, when triggered, when feeling vulnerable, when feeling anxious, I think she may perhaps be a little hyper-vigilant to [the Child's] needs at times, but I, I, there is definitely a, there is a shift there.  The question, I suppose, Madam, is how much do we rely and trust that shift?"

30.      Whilst accepting that initially barriers to contact were put in place by the Mother, the JFCAS Officer pointed out that the Child was then a very young baby, still being breast fed, and the Mother was a "new mum" who had very high standards and was very anxious as many new parents are about their child being taken out, which she said was understandable.

31.      In Paragraph 93 of the Registrar's Judgment, she said she had gained the impression that there had been a shift in the approach of both parents, based not just on a lack of cross-examination about the Mother's allegations or the Father's denials, but, quoting from paragraph 94:

"94.    This impression was in part confirmed by [the JFCAS Officer] in her evidence.  She described that when she first met the parents, to use her metaphor, they were still aboard the sinking ship of their relationship.  She feels now that both parents are in a different place from their initial raw antagonism.  [The JFCAS Officer] referred to an incident in May 2021 to demonstrate this shift.  The court heard about this incident for the first time toward the end of the hearing, neither parent used it against the other or in support of their position.  [The JFCAS Officer's] understanding of the incident was that the Father returned [the Child] at the end of along contact period to find that the Mother was absent, she was found distressed in a nearby park.  For [the JFCAS Officer] this indicated that the Mother knew that [the Child] was safe in her father's care, and that the Father's reaction was simply to be concerned about the Mother."

32.      The Registrar said at paragraph 96 that there was "reason to believe" that the Mother's attitude to contact had shifted.  She noted at paragraph 99 that the Mother's plan for contact lacked the level of structure and detail that the proposed move required which gave rise to a concern as to her commitment to maintaining the relationship between the Child and the Father.  However, she then went on at paragraph 100:

"100.   On the other hand, the Mother has over recent months shown that she can work with the Father to progress contact.  The Mother could have left Jersey without the Father's consent prior to the commencement of the proceedings but did not do so.  The Mother had not refused contact.  The Father's application for interim contact issued on 13^th May 2020 confirms that after the Mother left the family home on 5^th May 2020, [the Father] had seen [the Child] on 5 days in the week prior to him issuing the application.  By early June the parties reached agreement that the Father should have contact each alternate day, the arrangement was embodied in a consent order dated 11^th June 2020.  A disagreement in late July relating to handovers was also swiftly resolved with the help of the court.  Taken as a whole, the Mother has been cooperative in promoting the Father's contact, and I accept the JFCAS Officer's assessment that any initial blocks were as a result of anxiety and anger rather than a desire to thwart the Father's relationship with [the Child]."

33.      The Registrar said at paragraph 120, quoted above, that she did not gain the impression that the Mother was motivated to manipulate nor to follow her own needs above the Child's, and that the Mother genuinely wished to give the Child the best possible upbringing and believes that this is most attainable in Country 1.

34.      These constitute findings that the Registrar was entitled to make on the evidence before her, including the oral evidence of the parents.  These findings belie the assertion of the Father that the Mother had no intention of facilitating contact once she had left Jersey with the Child. 

35.      We note in this respect that following the decision of the Registrar to grant leave to remove the Child, the Mother visited Country 1 with the Child and has returned here voluntarily with the Child where they are both still living at Accommodation 1.  We were informed that, self-evidently, the application for a mirror contact order in Country 1 could not be progressed until a contact order had been made in Jersey (which we were told is close to finalisation) and there had been a final decision in these proceedings. 

36.      Reliance was placed by the Father before the Registrar and before this Court on the case of C v D [2019] JRC 090A, where leave to remove was refused.  As the Registrar said at paragraph 120 of the Registrar's Judgment, each case turns on its individual facts and in that case, the JFCAS officer had advised against removal.  There was a concern about the mother's relationship with her own family in the country to which she wished to relocate, whereas in Jersey, the child enjoyed the security and comfort of an extended paternal family.  The Court made a finding from the mother's written and oral evidence of negativity towards the father, which suggested that the generous contact offered would be undermined by the mother's ill-concealed resentment of the father, and what she saw as his inadequacies as a parent.

37.      In contrast, in the present case, there is no concern about the Mother's relationship with the maternal grandmother, with whom she will live in the property they both own in Country 1, a property in which the Mother was herself brought up, and where the Child will have contact with an extended maternal family including numerous cousins.  The father has no extended family in Jersey.  The JFCAS Officer has not made a recommendation against removal, and the Registrar has made no findings of negativity on the part of the Mother towards the Father.  On the contrary, there has been a finding that there is no desire on the part of the Mother to thwart the relationship between the Child and the Father.

Detail of the plan

38.      The Father challenges the Registrar's finding at paragraph 99 of the Registrar's Judgment that, apart from contact, the Mother's plan to move to Country 1 was well thought out and detailed in every respect.

39.      It is relevant to note that in GT v RJ  Mostyn J said that if an applicant's case was not well thought out and was not supported by evidence, "it will likely fail" (our emphasis), not that it will fail.  Advocate Hollywood referred to the case of Re K (a minor) Removal from Jurisdiction) [1992] 2 FLR 98 for the proposition that the "court needs to be satisfied that the proposals are realistic rather than idealistic" (paragraph 104).  In that case, the mother had emotionally espoused a plan described as lacking objectivity and a grasp of reality.  Indeed, it was so ill thought out that it gave rise to grave anxiety as to what might happen to the child concerned without a firmer foundation.

40.      Advocate Hollywood also referred to the case of R v R (children) (residence order:removal from jurisdiction) [2004] All E R (D) 169 (Nov) where Baron J said this at paragraph 75:

"75)    I have come to the conclusion that the plans to go to France have not been worked out as carefully as they should have been.  They are rather fluid because the expectation is that all will be well, once the move has been accomplished.  I consider that this approach is naïve and superficial.....

76)      If all this were not sufficient to cause concern, I consider that the Mother has real emotional difficulties which must be addressed as a matter of urgency...."

As Baron J said in her conclusion at paragraph 93f), the mother's plans in that case had not been sufficiently or carefully considered because she had simply assumed that life would improve once she arrived in France.

41.      In H v F (Refusal of Leave to Remove a Child from the Jurisdiction) [2006] 1 FLR 776, the applicant mother, who was unemployed, applied to remove the child from the UK to Jamaica, her country of origin, on the basis that she would establish a business there.  The mother was held to be capable of acting irrationally and there was a risk she would place obstacles to contact with the father if she relocated to Jamaica.  Moreover, her business proposals were speculative and unrealistic and the income that the proposed business venture might generate was insufficient to warrant the upheaval that the move would cause to the child's life.  The mother's proposals were ill conceived and therefore unreasonable.

42.      None of these decisions, based on their very different facts, assist the Father in his appeal.  It cannot be said that the Mother's plan to return to Country 1, her country of origin, to live in a property she owns with the maternal grandmother, is unrealistic, ill thought out, naïve or superficial or that it lacks sufficient detail, or that it is not supported by evidence.

Contact

43.      In her final affidavit of 7^th January 2021, the Mother confirmed that the Father could visit the Child in Country 1 whenever he wanted to do so and that she was willing to take the Child to any other nearby country for contact if the Father felt more comfortable.  She fully expected to come back to Jersey for contact.  As the Child was not yet of school age, contact could be arranged to suit the Father.

44.      As the JFCAS Officer pointed out in her evidence, there are a number of practicalities that needed to be addressed in arriving at a definitive contact order if the Child was to be removed to Country 1, including, for example, the parameters of finance and how often the Father could take time off work.  As the Registrar said at paragraph 123 of the Registrar's Judgment, the parties needed to have ownership of the detail of the contact arrangements and the input of JFCAS was required, but she put forward a basic structure for contact upon which a final contact order could be built.

45.      In support of her contention that a lack of a detailed plan for contact should have led the Registrar to dismiss the application to remove, Advocate Hollywood referred to the case of Re L (Relocation: Shared Residence) [2012] 1 EWHC 3069 (Fam) in which the applicant mother applied to remove her child aged three to the U.S.A., her country of origin.  By agreement with the father, the mother had visited the U.S.A. with the child for a period of four months but refused to return.  She was ordered to do so by the Federal Court, pursuant to the Hague Convention.  It suffices to set out this extract from the judgment at paragraph 59:

"[59] ...... I have no doubt that she wishes to live in the United States.  After all, she is an American, it is her homeland and she has family there and she would be able to call on them for support.  She has thought out many of the practicalities that this would involve of a home, education and employment, and these are realistic.  What I find she has not thought through accurately and honestly are her proposals for contact and their practicability.  Her proposals changed during the hearing but were characterised as I have found by a material lack of commitment to contact, an impaired insight into the importance of F's relationship with his father, a need to control it, and the obstacles she has placed in the father's path of contact in the past.  Over time I do not believe this mother would sustain the contact between F and his father and she would easily tire of it."

46.      This was a mother who had placed serious obstacles in the father's path to contact and who had put forward proposals that not only lacked accuracy, but which were dishonest.  The facts are clearly distinguishable, and the case provides no support for the proposition that the Mother's application to relocate to Country 1 should be dismissed simply because her contact proposals lacked sufficient detail.

47.      If a court finds that there is a material lack of commitment to contact between a child and the left behind parent, such that the relationship is likely to significantly deteriorate or be extinguished, the application to relocate may well fail.  The findings in Re L amounted to findings of likely future parental alienation, and no such findings have been made in this case.

48.      The Father contends that insufficient funds on the part of both the Mother and the Father would make travel to facilitate contact nearly impossible, and this was not considered by the Registrar.  He says there was no detailed evidence before the Registrar as to how much flights would cost, how frequently they departed or where from and the accommodation for the Father to stay in.  However, the Registrar made no finding that the financial position of the parties would make travel to facilitate contact nearly impossible.  This assertion can be contrasted, as Advocate Glynn says, with the Father's evidence at the final hearing that he could afford to give the Mother an additional £1,000 per month from January to May, 2022, and had cash saved at home.  He also gave evidence that he wished to take the Child to Country 2 for holidays, which he would need to fund.  Furthermore, the cost of travel was considered and expressly referred to by the Registrar in her judgment at paragraph 99.

49.      The Mother exhibited to her affidavit of 11^th March 2020 information relating to the cost of accommodation in Country 1 (i.e. for the Father, if visiting the Child), flight availability and costs.  The Registrar heard evidence from both parties in terms of the logistics of contact between the Father and the Child in both Country 1 and Jersey.  It is clear from the transcripts that there was some reluctance on the part of the Father to answer questions in cross-examination in relation to contact if the Child was in Country 1.

Criticisms of the plan for removal

50.      That the Registrar found the Mother's plan well thought out and detailed, is not to say that it is beyond criticism, as the Registrar acknowledged in paragraphs 27, 28, 30 and 35 of the Registrar's Judgment.  These criticisms are not material for the purpose of this judgment and we see no contradiction between the Registrar making them, such as they were, and her overall conclusion that the plan was well thought out and detailed.

51.      Turning to the criticisms made by the Father we take them in turn:

(i)        The letter of 28^th February 2020 from a friend of the Mother did not purport to be a formal job offer.  We agree with Advocate Glynn that it simply constituted evidence in support of the likely job opportunities available to the Mother in Country 1.  As to its being outdated, it needs to be remembered that the Mother's application for leave to relocate was filed on 14^th February 2020, and her substantive affidavit in support, setting out her plan, was filed on 11^th March 2020.  For a variety of reasons, the application was not actually heard until June, 2021.  In our view, the Registrar did not err in her analysis of the work opportunities available to the Mother in Country 1 which she accurately summarised in paragraph 114 of her judgment as follows:

"114.   In Country 1, the Mother is confident that she will be able to access more flexible work options.  She had evidenced that her friend will give her a job in a travel agency, and in her evidence she said that she will use her savings to allow her some time to consider her work options and decide what to do.  Unemployment is high in Country 1.  [The maternal grandmother] spoke of having to work in Italy as she struggled financially.  The Mother's brother also has had to take work abroad.  This is a concern.  The Mother, however, has the benefit of a degree which neither her mother nor her brother has."

(ii)       The Mother is criticised for being unable to provide the average monthly income of people working in Country 1 when challenged under cross-examination, but as Advocate Glynn points out, the Mother is not an expert nor a statistician and this did not form part of her case.

(iii)      The Mother's plan was criticised by the Father for lacking evidence as to her likely financial position if she were to remain in Jersey, but as Advocate Glynn points out, this is a removal plan, and the Mother does not have to prove that she would be financially disadvantaged if she remained in Jersey.  It was an accepted fact that the Mother would not be entitled to any financial support from the States of Jersey until at least April 2022. 

(iv)      In our view, the Registrar was right to conclude at paragraph 112 of her judgment that the Mother will experience severe hardship until 20^th April 2022 and thereafter, it would be unfair on the Mother and the Child if the Mother was forced to work unsocial hours in order to be able to afford childcare.  The JFCAS Officer put it well in evidence, when she said:

"I have a great deal of sympathy for [the Mother's] position, in that I am, I worked as a social worker since 2005 and with families and children since 2001 and vulnerable families and, if you are in a position as a single parent without housing qualifications and you are on a very limited income, it is very, very hard in Jersey.  It can be very hard.

The jobs that are available, primarily in the hospitality sector - I had a brief look yesterday evening actually at what was available - there are many, many jobs over in housekeeping in hotels, which again might be more daytime work, but probably very early, I would expect, reception jobs, so, again, it is more going to be shift work, waitressing or there are things like working in fast food restaurants.  There was, you know, there was one job that was at KFC, which again would be shift work.  So there are not many nine to five roles.  It is all fairly low paid.

Unqualified accommodation is really hard to come by.  You have to jump on it immediately when you see it, if you find somewhere, and there will be a list of people who are all baying for the same place.  I, you know, if you go on the Jersey property pages on Facebook, for example, there are posts upon posts of people going 'Urgently needed flat for parents and children, must accept children', but lots and lots of places will not.  So, it is very hard.

Working shifts, relying on somebody else and sort of juggling things is a very stressful way of living and not, not ... I mean, when would she sleep if she saw [the Child] in the day?  Even if she could find a nine to five sort of job, still a fairly hand to mouth existence and a difficult existence. So I have sympathy with that.  It's doable.  People do it, but if, I guess a lot of the families that I see who do do that kind of thing tend to, there's quite a lot who have more extended family in Jersey potentially for reliable childcare where there are, you know, grandparents and aunts and uncles and sort of bigger families; or they do it and it's a struggle and they would prefer not to do it if they could have any other option or their children are living back in Madeira or Poland or Portugal, you know, and they send money back to them.  It's not an easy way of parenting and I have sympathy with [the Mother] for wanting something different and wanting something that it is simpler."

(v)       We reject the Father's submission that there was a clear indication from the JFCAS Officer that the Mother was seeking to make life hard in Jersey in order to support her application.  In our view, there was no such indication from the JFCAS Officer.

(vi)      It is the case that the Mother was uncertain as to her entitlement to maternity benefits in Country 1, but she made the point in evidence that she had not been able to return to Country 1 throughout the duration of the proceedings and was thus limited to the extent as to the inquiries she was able to undertake.

(vii)     As to healthcare costs in Country 1, the Court had evidence from Mr D of Great Ormond Street Hospital that the care the Child required for her medical condition could be provided in Country 1, [REDACTED].  The Mother gave evidence that she would pay for treatment privately if that was necessary, assisted by the maternal grandmother.  The Registrar was criticised for accepting that evidence as opposed to the reports the Father had accessed as to the issues relating to healthcare in Country 1, but as Advocate Glynn points out these statistics and reports from various sources are not helpful as neither the Registrar nor the parties were qualified to accurately assess the reliability and veracity of that information without expert evidence

(viii)    The Father criticises the evidence on education and the Child being taught English at school, provided by the Mother, which he said was derived entirely from her personal experience. That criticism is inaccurate, in that the Mother filed a summary of the education system in Country 1 dated December 2020, and exhibited nursery information in her leave to remove affidavit of 11^th March 2020.

(ix)      The Father complains of the lack of detail provided by the Mother on maintaining the Child's dual heritage.  The Registrar said this at paragraph 28 of the Registrar's  Judgment:

"[The Child] will grow up speaking [REDACTED] and English, but there is no plan to teach her [REDACTED], save that the Mother says this is something she would support if [the Child] wishes to learn."

Advocate Hollywood says this is an implied acknowledgement on the part of the Registrar that the Mother (who does not speak [REDACTED]) will not actively promote the Child's dual heritage, but the passage does not support such an interpretation.  It is true that the Mother did not intend that the Child adopt any outward sign of being a Muslim, but the only way that the Child could be identifiable as a Muslim and therefore at possible risk of discrimination on that basis would be if she were openly involved in that community, possibly due to her name.  But as Advocate Glynn says, these comments were in response to the submission of the Father that the Child would suffer discrimination due to her religion and/or heritage in Country 1, as she would be identified as a Muslim.  These comments have little bearing, if any, on the Mother's attitude to promoting the Child's dual heritage.

(x)       Islamophobia in Country 1 was addressed by the Registrar, and she reached these conclusions at paragraph 108:

"108.   The question is whether any abuses detailed in Mr C'S report or in the evidence provided by the Father would interfere with the religious freedoms that should be afforded to [the Child] as she grows.  Mr C's report relates primarily to the failure of the state to sanction hate speech.  Neither Mr C nor the Father provided a clear picture that would indicate that Muslims are denied freedoms or subjected to institutionalised discrimination.  I agree with the Father that it is a factor that the court should take into account, but I don't agree that this would result in [the Child] losing her heritage or suffering discrimination, nor do I agree that the Father would not be safe travelling to Country 1 for contact."

(xi)      Finally, the Father submitted that the Mother's evidence in respect of living standards in Country 1 went against the expert evidence, but as Advocate Glynn points out, there was no expert evidence adduced on the living standards in Country 1, and how they compared with Jersey.  The evidence before the Court in respect of living standards in Country 1 derived from the Mother, the maternal grandmother, the maternal uncle and the Father.  On 1^st October 2020, the Registrar had given the parties leave to file such published reports and/or statistics relating to economic conditions, educational and health provision in Country 1 as may be agreed between them, and no such agreement was reached.

Welfare checklist

52.      The Registrar is criticised for not dealing with the welfare checklist (which she set out in full at paragraph 83 of the Registrar's Judgment) point by point, but as Baroness Hale of Richmond said in Re G (Children) (Residence: Same-sex Partner (6) [2006] 2 FLR 629:

"My Lords, it is of course the case that any experienced family judge is well aware of the contents of the statutory checklist and can be assumed to have had regard to it whether or not this is spelled out in a judgment.  However, in any difficult or finely balanced case, as this undoubtedly was, it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear.  This is perhaps particularly important in any case where the real concern is that the children's primary carer is reluctant or unwilling to acknowledge the importance of another parent in the children's lives."

53.      This passage from the judgment from Baroness Hale was approved by the Court in the case of  B v A at paragraph 33:

"33     We can deal with the second ground very briefly.  We respectfully agree with Baroness Hale in the passage quoted at paragraph 19 above that an experienced family judge - as the Deputy Registrar is - can be assumed to have had regard to the welfare checklist whether or not it is spelled out in the judgment.  We find it difficult to conceive of circumstances where a failure to do so would of itself amount to a reason for allowing an appeal.  This court is ultimately concerned with whether the decision of the court below is liable to be overturned on one or more of the grounds set out in Downes (5)."

54.      We see no merit in this criticism of the Registrar's Judgment.  Whilst the Registrar did not address the welfare check list point by point, this was a case in which the Child was too young to express her wishes and there was no question as to the ability of either parent to meet her needs.  The Child's dual heritage background was firmly in the Registrar's mind as were the Child's medical needs.  The key factors in the list were the effect on the Child of the change in her circumstances where she to live with the Mother in Country 1 and any harm she might be at risk of suffering from that move. These factors were fully addressed by the Registrar.

Failure to give appropriate weight

55.      The Father contends that the Registrar failed to give appropriate weight to unchallenged evidence when considering the JFCAS Officer's summary of the welfare benefits for the Child which we have to some extent already addressed, but suffice to say that we reject that submission:

(i)        The Registrar was entitled to conclude that the standard of education in Jersey and Country 1 were the same, and to disagree with the 'suggestion' of the JFCAS Officer that this might not be the case. The JFCAS Officer is not an expert in this area.

(ii)       The Registrar was entitled to find insufficient evidence that the Child would be adversely affected by crime if brought up  in Country 1.  The evidence of Mr C was limited to state condoned/sponsored discrimination against Muslims and corruption, but as Advocate Glynn submitted, the test for leave to remove a child is not a competition as to which jurisdiction is 'superior' or 'the best', but where it is in the child's best interest to live.  As the JFCAS Officer pointed out in evidence, a child does not live in a vacuum, and this is a child whose mother is from Country 1.

(iii)      We have already addressed the issue of Islamophobia in Country 1.

(iv)      We reject the suggestion that the Registrar failed to give proper consideration to the financial circumstances of both parties as it is manifestly the case that she did.  In particular, criticism is made of the Registrar's finding in respect of the Father's gambling.  Advocate Hollywood submitted that there was no independent evidence before the Registrar that the Father had an addiction to gambling, or that he had lost employment because of gambling, or that his work record was in any way affected by gambling. 

(v)       What the Registrar found was that the Father's gambling had "the potential" to undermine his financial stability, especially if the Child was living in Jersey where financial margins would be so tight.  Both the JFCAS Officer and the Registrar expressed a concern regarding the Father's gambling, and were entitled to do so on the basis of the evidence.

(vi)      It is asserted that no consideration had been given by the Registrar to the Father's ability to provide childcare support in Jersey, and the Registrar erred in failing to factor this in to a great extent.  We reject this suggestion, as the Father's ability and willingness to provide childcare support was expressly taken into account by the Registrar, at paragraphs 112 and 113 of the Registrar's Judgment.

(vii)     We have already addressed the complaint that the Registrar erred in accepting the outdated letter of employment.

(viii)    The Father contends that the Registrar gave the Mother's distress too much weight.  It is the case as per GT v RJ (at paragraphs 2 and 4) that there is no presumption in favour of the putative relocator and Lord Justice Thorpe's famous 'discipline' in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance, which can be drawn on or not as the individual case demands.  The Father complains that there was little to no consideration of the impact on him in contrast to the focus on the Mother.  The Registrar dealt with the Mother's distress in paragraph 115:

"115.   (iv)       [The Child] will have a mother who is not distressed and at breaking point:

The Mother has described living on a prolonged basis in accommodation which does not feel like home and is not suitable for [the Child's] needs.  The Mother can only use the kitchen at certain times and [the Child] cannot come into the kitchen with her.  She has talked of having to force herself to return to this accommodation.  In May 2021, she could not force herself to return to the accommodation and was found distressed in a nearby park.  The Mother has not produced medical evidence, but she has been on sick leave since early this year.  She was composed giving evidence; however [the JFCAS Officer] advises that the Mother is 'getting to breaking point'; living in Jersey is not working for her.  [The JFCAS Officer] advises that if the parent is not functioning, the child will suffer.  The Mother's distress and wish to return home, in my view goes beyond the 'selfishness and uncontrolled emotions' envisaged in Re AR; she is suffering real hardship and isolation.  If she remains in Jersey, in the fullness of time she may settle and her circumstances improve, but it will be at least a year before she has a real opportunity to improve her financial position.  If she breaks in the meantime, the consequences for her and for [the Child] would be significant."

(ix)      The Registrar was entitled to find that the Mother was suffering real hardship and isolation beyond the selfish and uncontrolled emotions envisaged in Re AR, which was a factor she could properly take into account.  There was no evidence before the Registrar that the Child would suffer emotional harm from a reduction in the regular contact with the Father the Child currently has, provided that the relationship with the Father is maintained through contact, and the Registrar found that there was no intention or desire on the part of the Mother to thwart that relationship.  As to the Father, consideration was given by the Registrar to the impact upon the Father's relationship with the Child if she was removed expressly at paragraph 117 and 118 of the Registrar's Judgment.  She described it as one of the two issues of great significance.

(x)       We accept that the Child and the Father enjoy an ECHR Article 8 Right to Family Life.  In Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, Ryder LJ said at paragraph 31 that a step as significant as the removal of a child to a foreign jurisdiction where the possibility of fundamental interference with the relationship between one parent and the child is envisaged, requires the parents' plans be scrutinised and evaluated by reference to the proportionality of the same.  Glaser v United Kingdom (Case No. 32346/96) [2000] ECHR 419 refers to the key consideration being the taking of all necessary steps to facilitate contact as can reasonably be demanded in the special circumstances of each case. 

(xi)      Advocate Hollywood argued that the Registrar erred in reaching her decision as it has the effect of depriving the Child of a constant father figure, in this case a father who had sought to be a full-time father.  The Registrar had thus erred in not giving full weight to the Father's role in the Child's life, and placed too much weight on the impact on the Mother, with no consideration of proportionality. 

(xii)     We do not agree that the Registrar has erred in this way.  She was undertaking a balancing exercise and concluded that it is in the Child's best interests to live in Country 1, subject to the obtaining of a contact mirror order.  Every removal case involves a reduction in contact with the child by the left behind parent, and if that is accepted as sufficient to overturn a removal decision, then almost all removal applications would be likely to fail.  The decision in this case, with the order in relation to contact, was proportionate.

(xiii)    Advocate Hollywood referred to the case of A v B [2018] EWHC 218 (Fam) in support of the proposition that where a court concludes that a refusal will have an impact on an applicant, the Court should set out its analysis as to how the findings underlying that conclusion fitted into the court's welfare balancing exercise.  In that case, a decision to refuse the mother's application to relocate with her child to Poland, from where both parents originated, was overturned on appeal and sent back for re-hearing.  The judge at first instance had failed to properly evaluate the evidence on the impact upon the mother, and thus on the child, by the refusal, fatally undermining the decision.  We do not find that decision of assistance, in that in this case, the Registrar considered carefully the evidence before her as to impact, and how that was taken into account in the welfare evaluation exercise.

(xiv)    Finally, the Father argues that the plan put forward by the Mother was not only incomplete, but was in her best interests, and not those of the Child when objectively considered.  It is, of course, the case that the Mother not unreasonably wishes to return to Country 1.  As the JFCAS Officer said in evidence, ".... I guess the real thing is she wants to go home.  She is lonely.  She wants to go home.  She wants her Mum.  She wants her family.  She wants her home and that's not an unreasonable point to feel in itself."

(xv)     These applications are usually made because the relocating parent wishes to relocate, but that does not detract from the principles applied by the Court to such an application as set out above, namely the paramountcy of the child's best interests.  In our view the Mother's plan was properly focused on the Child's best interests and we have no reason to doubt the Registrar's finding that the Mother genuinely wishes to give the Child the best possible upbringing and believes that this is most attainable in Country 1.

Conditional leave

56.      That brings us to the pre-condition attached to the granting of leave to remove, namely that the Mother must secure a mirror order in Country 1 for the Father's contact with the Child and if it is impossible for her to secure a mirror order to the satisfaction of the Father or the Court, she cannot leave with the Child.

57.      The Father questions the jurisdiction of the Registrar to impose such a condition and argues that the Registrar did not allow counsel to consider and make representations on the proposed condition which went against the expert evidence of Mr B.

58.      We can deal with the first issue briefly, in that the power to impose a condition on the making of an order is derived expressly from Article 12(7) of the Children Law, which provides that an Article 10 order may impose conditions which must be complied with by any person, and impliedly from the Court's inherent jurisdiction.

59.      Dealing with the evidence of Mr B, it is the case, as the Registrar stated, that Country 1 has a family law system based on exemplary principles, with both parents having equal parental authority and with the Father having the same equal access to the Country 1 court system and to the authorities of Country 1 as do locals.  The Father would not be entitled to legal aid, but there is a Child Protection Authority to whom disputes must first be referred and who will make a decision.  This appears to be binding and not akin to any kind of mediation.  The decision of the Child Protection Authority can be contested in court.

60.      The difficulty arises in cross jurisdictional issues, and whether the Country 1 courts would recognise a judgment or order of this Court, for which there was a lack of precedent. In our view, the Registrar properly analysed the evidence of Mr B at paragraph 101 as follows:

"101.   At worst, the Father's fears that he will never see [the Child] again may be realised.  Mr B details a family law system in Country 1 which is based upon exemplary principles but appears to be entirely untested on an international basis.  It cannot be guaranteed that mirror orders can be obtained, and the accustomed protection afforded by the Hague Convention are not in force between Country 1 and Jersey. In the absence of a mirror order, the Father may find himself fighting from scratch in a country where he does not know the language, is not eligible for legal aid, and where there is corruption in the court system."

61.      This is not a case, therefore, of the Registrar going against the expert evidence of Mr B.  On the contrary, she was accepting his evidence that the obtaining of a mirror contact order could not be guaranteed.  The Registrar recognised the predicament that the Father might be in without a mirror contact order in Country 1, hence her imposition of this pre-condition.  It is a condition that seeks to protect the Child's right to contact with her father by having that right recognised in the jurisdiction where the Child will be living. The Mother has not sought to appeal the imposition of that condition and it is perhaps surprising that the Father should object to it.

62.      The Father further complains that the pre-condition is open ended, and contrary therefore to the no delay principle.  Advocate Hollywood referred to the case of S v T [2012] EWHC 4023 (Fam), which she said laid down a time framework for such a condition.  That case is of interest in that it concerned a mother wishing to relocate to Russia with her child, her country of origin.  Expert evidence was given as to difficulties in enforcement in Russia so the court, in granting leave for removal, made it a condition of the permission to relocate that a contact order in Russia should be obtained.  The decision was issued on 7^th December 2012 and was expressed as taking effect on 31^st January 2013 (we surmise to allow for arrangements over Christmas) or on the obtaining of the Russian order, whichever was the later.  In practice, the condition was, therefore, open-ended in the same way as the condition in this case.

63.      S v T illustrates that the imposing of such a condition is not unusual and is reflective of the importance of contact and ensuring as far as reasonably possible the ongoing relationship between the child and the left behind parent.  The imposition of the pre-condition in this case was entirely proper and was within the bounds of the kind of order that the Registrar might be expected to make.  It did not require the delay of a further hearing to allow counsel to make representations.  As Advocate Glynn says, the condition has real teeth in that if the Mother is unable to obtain a mirror contact order in Country 1, then she cannot relocate with the Child to Country 1.  Advocate Glynn accepted that if the Mother was unable to obtain a mirror order in the first instance, that she could not continue seeking such an order for an indefinite period, but was prepared to agree a time period by consent, once an indication had been obtained as to the likely time period for such an application. 

Conclusion

64.      Both counsel in their closing addresses to the Registrar recognised that the application by the Mother to take the Child to Country 1 was not an easy decision for the Registrar to make, Advocate Colley for the Father describing it as "an incredibly difficult case".  The Registrar at paragraph 118 of the Registrar's Judgment (set out above) described this as a difficult and delicate decision that will cause hardship whichever decision was reached by her.  In Re G (Leave to Remove) [2008] 1 FLR 1587 at para 19, Lord Justice Thorpe stated:

"These cases are particularly traumatic for the parties, since each of them conceives so much as being at stake.  They are very, very difficult cases for the trial judges.  Often the balance is very fine between grant and refusal.  The judge is only too aware of how heavily invested each of the parents is in the outcome for which they contend.  The judges are very well aware of how profoundly the decision will affect the future lives of the children and how difficult it will be for the disappointed parent to adjust to the outcome."

65.      Where the decision is finely balanced, it inevitably makes it more difficult for an appellant to persuade an appeal court that the decision finally reached was wrong to the point where the appeal court has to intervene in the interests of justice and fairness. 

66.      The law and principles to be applied were correctly set out in the Registrar's Judgment, and she has carried out the required evaluation with care, reaching the conclusion that leave should be granted, but strictly on the two conditions as to contact with the Father.

67.      The Registrar makes the point that in the circumstances of these parents, there is not and never has been "a well functioning status quo" as envisaged by Mostyn J in GT v RJ (paragraph 119 of the Registrar's Judgment set out above).  The Registrar was entitled to find that the Mother's plan was well thought out and detailed, but such a plan does not have to cover every possible detail or be beyond criticism in order for the application to succeed.  It was sufficient in terms of the Mother's financial stability in Country 1 underpinned by her joint ownership with the maternal grandmother of the family home there, extensive maternal family support and work opportunities for the Mother.  This contrasts with the position in Jersey, where there is no such security of tenure (and may never be), where the Mother would struggle financially in the manner described by the JFCAS Officer and where there is no extended family support on either the Father or the Mother's side.

68.      The Mother's proposals for contact were inadequate, but there is no finding that it was her intention to thwart the Father's relationship with the Child.  Even if the contact proposals had been more detailed, the issue of contact would have to have been left over, as it was by the Registrar, until she had made her decision on the removal application and, if granted, any contact order would require the input of the Father as well as JFCAS. 

69.      Having decided to grant the application to remove strictly on these two conditions, the Registrar correctly applied the test in B v A and rightly decided to make a residence order in favour of the Mother.  That reflects the practicalities of the Child's current life and is consistent with leave being given to remove the Child to Country 1.

70.      In the interests of proportionality, we have only set what we consider to be the key arguments put forward on behalf of the Father, but applying the test in Downes, none of the arguments put forward on his behalf lead us to conclude that the decisions of the Registrar were wrong to the extent that intervention is required.  On the contrary, it is the view of this Court that the decisions of the Registrar were right.

71.      The Father's appeal is therefore dismissed.

Authorities

Children (Jersey) Law 2002. 

GT v RJ (Leave to Remove) [2018] EWFC 26. 

A v B [2019] JRC 001A. 

C v D [2019] JRC 090A. 

LL v MM [2020] JRC 137. 

Payne v Payne [2001] 1 FLR 1052. 

Kacem v Bashir [2010] NZSC 112. 

Kacem v Bashir [2011] 2 NZLR 1. 

Kacem v Bashir [2010] NZFLR 884. 

Vaughan v Vaughan [2010] EWCA Civ 349 [2011] Fam 46. 

B v A [2010] JLR 462. 

In Re AR (a Child): Relocation [2010] 2 FLR 1577. 

Downes v Marshall [2010] JLR 265. 

C v D [2019] JRC 090A. 

Re K (a minor) Removal from Jurisdiction) [1992] 2 FLR 98. 

R v R (children) (residence order:removal from jurisdiction) [2004] All E R (D) 169 (Nov). 

H v F (Refusal of Leave to Remove a Child from the Jurisdiction) [2006] 1 FLR 776. 

Re L (Relocation: Shared Residence) [2012] 1 EWHC 3069 (Fam). 

Re G (Children) (Residence: Same-sex Partner (6) [2006] 2 FLR 629. 

Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882. 

Glaser v United Kingdom (Case No. 32346/96) [2000] ECHR 419. 

A v B [2018] EWHC 218 (Fam). 

S v T [2012] EWHC 4023 (Fam). 

Re G (Leave to Remove) [2008] 1 FLR 1587.