[2005]JRC168
royal court
(Family Division)
6th December 2005
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Before:
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Mr M. C. St J. Birt, Esq., Deputy Bailiff
and Jurats Allo and Le Cornu
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Between
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The Applicant
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And
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A
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The Respondent
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Advocate T. Hanson for the Applicant.
Advocate C.M.B. Thacker for the Respondent.
judgment
DEPUTY bailiff:
1.
We shall
refer to the parties in this case as ‘the mother’ and ‘the
father’ respectively. This is
an application by the mother for leave to remove their child permanently from
the jurisdiction. We were
originally due also to consider a cross application by the father for a
residence order but he has decided not to proceed with that application. The parties are agreed that they should
both have parental responsibility and that we should therefore make a parental
responsibility order in favour of the father, who was not married to the
mother.
Factual background
2.
The
parties had a relationship beginning in 1998. They had one child, F, who was born on 23rd September 1999
and is therefore now aged 6. The
parties separated shortly after F’s birth. The mother and F remained in Jersey whereas the father moved to England. There was subsequently a short-lived
attempt at reconciliation before they finally separated in 2002.
3.
It is
clear that the relationship between the parties has been difficult. Until November 2004, the father only had
sporadic contact with F. The father
asserts that, because of her hostility towards him, the mother made it very
difficult for him to see F.
Certainly there are e-mails and letters which lend some support to his
case in this respect. The mother on
the other hand took the view that the father was putting his sporting and other
interests before his contact with F and he could not be relied upon. Certainly, many of the e-mails asking
for contact are written only a matter of days before his arrival in Jersey and accordingly give the mother very little time
to respond or to adjust any plans which she may have made. She did not wish to permit contact in
case F came to depend on the father but was then let down.
4.
Eventually
the father issued proceedings for contact which came before the Greffier
Substitute on 12th
November 2004 at which time an order for contact was made. Broadly speaking, contact was to take place
monthly on dates to tie in with visits by the father to Jersey. It was to take place in the presence of
a specified member of the mother’s family, failing which in the presence
of the paternal grandparents. We
should add that, following the separation, F had had considerable contact with
his paternal grandparents and developed an extremely good relationship with
them, but such contact had been ended by the mother when she discovered that F
had been speaking on the telephone to the father during such visits and
understood (although this is denied by the grandparents) that the grandparents
had told F not to tell the mother that this was taking place. The Greffier Substitute also ordered
that telephone contact should take place.
5.
Contact
duly took place as ordered on 5th and 30th December 2004 as did telephone
contact. However, during the second
visit, F was introduced briefly to the father’s new wife. When she discovered this, the mother
made it clear that contact could no longer take place. There were heated conversations. Telephone contact also ceased.
6.
In the
light of this development, the father returned to the Greffier Substitute, who,
on 27th January
2005, ordered that contact should take place on 30th
January and thereafter monthly, pending a review of contact on 15th April 2005. On her own admission, the mother ignored
this order and contact did not take place on 30th January. The father therefore issued a
representation for contempt of court which came before this Court on 25th
February. In the meantime, the
mother had, on 7th February, lodged an appeal against the Greffier
Substitute’s decision of 27th January.
7.
At the
hearing on 25th February, this Court emphasised to the mother that
she had to obey court orders. By
then, the parties had agreed that supervised contact should take place on
certain specified dates between then and 15th April. However, the mother did not agree to
such contact taking place at the paternal grandparents’ home nor to
continuing telephone contact. After
hearing from her and from the Children’s Officer, this Court ordered that
contact should be able to take place at the paternal grandparents’ house
(where the father stays when he comes to Jersey)
and that there should be continuing telephone contact.
8.
The matter
came back before the Greffier as envisaged on 15th April, at which
time there was a detailed report from the Children’s Service. That report stated that the mother did
not want F to have contact with the father, but was willing to accept that it
would take place. The report found
that the mother had unreasonably refused the father contact with F at times and
that, although she had F’s best interests at heart, her animosity towards
the father could not be discounted as part of her decision making. The report stated that in recent months
the father had shown continued commitment to regular contact with F and that
such contact worked well. The
report made a firm recommendation that there should be unsupervised staying
contact from Saturday morning to Sunday afternoon on a monthly basis, together
with longer periods during the school holidays.
9.
At the
hearing, the mother withdrew her appeal against the Greffier’s order of
27th January but, according to the father’s affidavit, did not
agree to the sort of contact recommended by the Children’s Service. After hearing the parties, the Greffier
Substitute made an order that there should be staying contact from 9.0 a.m. on Saturday to 5.00 p.m. on Sunday on certain
specified dates (broadly monthly) when the father would be in Jersey and that
this could take place at the paternal grandparents’ home. Furthermore, there was to be staying
contact of one week in the Easter and Christmas holidays and two weeks in the
summer holidays, part of the latter being out of Jersey.
10.
Contact
has taken place in accordance with the order since then, but in June the father
heard rumours that the mother, together with her new husband L, was planning to
go and work in Qatar. Through his advocates, he made enquiries
and received a reply on 14th June that “neither [L] or [the mother] have any
intention of leaving Jersey. [L] has just
bought a new flat and [the mother] is just about to have a baby. These are hardly preparations for
leaving the Island. Should circumstances change, then your
client will be notified”.
11. Despite this, the father was subsequently told
that there had been an announcement at the bank where L worked that he was to
be posted to Qatar
in early August and he then heard that L, the mother and F were flying to Qatar on 4th
August. On his application, I
granted an ex parte injunction on 2nd
August, restraining the mother from removing F from the jurisdiction and
ordering her to surrender F’s passport to the Viscount upon service. This she refused to do and accordingly she
was arrested and brought before the Court on 3rd August on the basis
that she had been in contempt of court.
By then, she had surrendered the passport and the Court took no further
action other than to make her pay the costs of the hearing. It transpired that she, L and F had been
booked to fly to Qatar
on 4th August, but that this was merely for a holiday in order to
inspect Qatar
in the light of the possible posting.
It is of note however that the father was due to have staying contact
with F pursuant to the Greffier Substitute’s order from 5th to
12th August.
Accordingly, if the mother had gone to Qatar as planned, she would have
been in breach of the Greffier Substitute’s order.
12. Since then, contact has continued to take place
but the mother has applied for leave to remove F permanently from the jurisdiction
in order that she, F, and T (the new baby) might accompany L to Qatar where he
has been posted by his bank. The
father originally submitted an application for a residence order but, following
production of the Children’s report for this hearing, he has withdrawn
that application. In our judgment,
he was sensible to do so. F has
lived with his mother since birth.
His mother has now married L, with whom F has a good relationship. There is a new child T, of whom F
appears to be very fond. The
evidence suggests that it would not be in F’s best interest to remove him
from the family unit where he is happy and well established.
This application
13. We have heard oral evidence from the mother, L,
the father and both his parents, as well as the Children’s Officer. We have also received additional witness
statements, (although these were prepared for the hearing on residence) and a
letter of advice from a lawyer in Qatar, produced on behalf of the
mother.
14. The mother married L on 29th June 2005. They have been living together since May
2004. L is employed as head of
investment by a local bank.
According to L, there had for some time been a likelihood that the bank
would open an office in Qatar, although the timing of this was uncertain
because Qatar had to set up the necessary regulatory body and the bank then had
to apply for a licence. However,
given the identity of the shareholder of the bank, it was more a question of
‘when’ rather than ‘if’. In June 2005 he went to Qatar on
business but, after discussion with the bank, it was agreed that he would also
use the time to take a preliminary look at Qatar in order to see if he would be
interested in taking up a senior position there for the bank. Accordingly, he took the opportunity to
undertake preliminary research on the viability of relocating his family to Qatar. Naturally he and the mother discussed
this both before and after his trip.
15. L states that in early July 2005, after his
visit, he had discussions with the managing director in Jersey
and that, as a result, he and the mother decided to take a holiday in early
August, in order that they could decide whether to take up the suggestion of
employment there. That visit did
not take place. According to the
mother, they had cancelled the trip before any injunction was served. However, according to L, the only reason
that they did not go was because of the injunction. We do not accept the evidence of the mother
in this respect. Be that as it may,
L had to make up his mind and, after discussion with the mother, he decided to
accept the position. The formal
offer was put to and accepted by him in mid September.
16. It is clear that the position is one of
responsibility and will mark career progression for L with a commensurate
salary rise. He would initially
head up the new office. Although there is an intention that in due course an
Arab-speaking head of office should be appointed, he would thereafter be head
of private banking, an important and responsible post in a key location for the
bank. The family will
live in a three-bedroomed villa in a compound. L’s salary will be such that the
mother will not need to work (although she may work part-time). She will therefore be available to look
after F and T. It is proposed that
F should attend the Doha
English-speaking School. This follows the national curriculum for
England
and all teachers are UK
qualified and experienced. Although
the position has been referred to as a secondment, it is not strictly
such. It is an open-ended offer of
employment and it is not possible to know how long it will last and whether L
and the mother will ever return to Jersey,
although they propose at present to keep their two properties here and have put
F down for a local school in case they do return.
17. The mother asserts on oath that she entirely
accepts that F should grow up knowing his father and having a loving
relationship with both of his parents.
She intends to retain strong links with Jersey
(both her brother and sister live here and she states that they will return to
the Island to see family and friends once or
twice a year). She originally
proposed that the father should have staying contact with F four weeks a year,
one in the Easter holidays, one in the Christmas holidays and two in the summer
holidays. She now proposes that, in
addition, the father should have contact for the Michaelmas and summer
half-terms (i.e. October and May). She states that, for the coming year, the
family will be returning to Jersey shortly
after Christmas and the father could have contact for a week over the New
Year. They will be coming back for
two weeks in April and he could have staying contact for a week, then, she
would also be coming back for a month in August, at which time staying contact
of two weeks could take place. She
also states that, should the father be able to come to Qatar at any time, she
would be happy for contact to take place there, provided reasonable notice is
given; similarly, if the paternal grandparents were able to come to Qatar. She would also agree to the continuation
of weekly telephone contact and of course the sending of cards, letters etc. at
any time. As to costs, she proposes
that she and L will meet the costs of bringing F to Jersey whenever they
accompany him, but if they are not themselves coming back (as will apparently
probably be the case in Easter 2007) the father should pay for flying F to and
from Jersey.
18. L was due to begin his new employment at the
end of October, but it has been deferred to the beginning of December so as to
enable the present application to take place. He has made it clear that, if the mother’s
application to remove F from the jurisdiction is refused by this Court, he will
not feel able to continue his employment there because it would be too damaging
to family life. However, a
replacement for his present position in Jersey has been appointed and, whilst
he believes that the bank would do its best to find him suitable employment in
Jersey if possible, he cannot be certain that this would occur. He feels that, if he were to resign his
employment in Qatar,
both he and the bank would feel that he had let them down and he is concerned
that this might have an adverse impact on his future career path. The mother echoes that concern and
states that, if this were to happen, she would feel that she had been unable to
support L in his chosen career and she would never know if there would be any slight
sense of resentment on his part which might emerge at a later date and cause
problems in the marriage.
19. The father has now moved to live in Jersey. He is
still employed by a company in England
but is able to travel to England
for part of the week only. He does
not accept that it is or was necessary for L to accept the offer of employment
in Qatar. He feels strongly that the mother has
always been against contact between him and F and this is a convenient means
whereby it will become even more difficult for him to maintain a proper
relationship with F. He is
concerned at the genuineness of her assertion that she wishes to encourage
contact. He believes that, once she
is in Qatar,
there will be no means whereby this Court can ensure that she does comply with
the promises which she has made about contact. He asserts that the welfare of F
requires that there should be a natural and happy relationship between F and
his father and he does not believe that this is likely to occur if the
mother’s application is successful.
He emphasises that the move will separate F not only from the father
himself but also from the paternal grandparents and the maternal uncle, aunt
and cousins, with whom he also has a close relationship.
20. The Court has received a report from the
Children’s Office. This was
prepared at a time when the father was seeking a residence order and, not
unnaturally, it concentrates on that aspect. It reaches the clear conclusion that F
should remain in the care of his mother and emphasises that there is a happy
family unit, comprising the mother, L, T and F. The report does not make any
recommendation as to whether, assuming she retains residence, the
mother’s application to remove F from the jurisdiction should be
granted. However, it does suggest
that, in view of the fact that the mother has previously both refused and been
reluctant to encourage contact between F and his father, it would be
appropriate, if the application to remove F is granted, to consider the deposit
of some form of financial bond by the mother and L, in order to buttress their
stated commitment to encourage contact and to allay the father’s concerns
that they will not in fact do so.
The report also emphasises the close bond between F and his paternal
grandparents and regrets that the relationship between the parties is such that
there is often tension at the time of hand-over, which is upsetting for F. The report also paints a picture whereby
F does not feel able to speak freely and happily about his times with the other
parent for fear of upsetting the one whom he is with at the time. This would appear to be particularly so
in the case of the mother and the report states that F has said that his mother
does not like him talking about ‘Vicky’, the father’s new
wife. The report suggests that the parties should attend mediation in order to
try and help with these aspects and we would firmly encourage the parties to do
so. Continued antagonism between
them and the prospect of further court proceedings can only be contrary to
F’s best interests.
Legal principles
21. Cases where the parent having care of a child
wishes to relocate to another country with a consequent reduction in contact
between the child and the other parent often pose an agonisingly difficult
decision for a court. In H v T
(2003) JLR 26, the Registrar correctly held that in this jurisdiction we look
for guidance in this area to decisions of the English courts.
22. The leading modern authority is Payne v
Payne (2001) 1FLR 1052 where the law in this area was comprehensively
reviewed in the light of the introduction of the Human Rights Act 1998. At paragraph 26 of his judgment Thorpe
LJ summarised the principles which had historically been applied by the courts
on such applications as follows –
“26. In summary a review of the decisions of
this court over the course of the last 30 years demonstrates that relocation
cases have been consistently decided upon the application of the following two
propositions:
(a) the
welfare of the child is the paramount consideration; and
(b) refusing
the primary carer’s reasonable proposals for the relocation of her family
life is likely to impact detrimentally on the welfare of her dependent
children. Therefore her application
to relocate will be granted unless the court concludes that it is incompatible
with the welfare of the children”.
23. The reasoning which underlies the second of
these propositions has been set out in a number of cases but we would refer
only to the comments of Griffiths LJ in Chamberlain v de la Mare (1983)
4 FLR 434 at 445 –
“The welfare of young
children is best served by bringing them up in a happy, secure family
atmosphere. When, after divorce,
the parent who has custody of the children remarries, those children then join and
become members of a new family and it is the happiness and security of that
family on which their welfare will depend.
However painful it may be for the other parent that parent has got to
grasp and appreciate that fact. If
a stepfather, for the purposes of his career, is required to live elsewhere the
natural thing would be that he will wish to take his family, which now includes
his step-children, with him, and if the court refuses to allow him to take the
step-children with him he is faced with the alternative of going and leaving the
family behind which is a very disruptive state of affairs and likely to be very
damaging to those step-children or alternatively he may have to throw up his
career prospects and remain in this country. If he has to do that he would be less
than human if he did not feel a sense of frustration and, do what he may, that
may well spill over into a sense of resentment against the step-children who
have so interfered with his future career prospects. If that happens it must reflect upon the
happiness and possibly even the stability of this second marriage. It is to that effect that the court was
pointing in the decisions of Poel v Poel [1970] 1 WLR 1469 and Nash v
Nash [1973] 2 All ER 704 and it was stressing that it was a factor that had
to be given great weight when weighing up the various factors that arise when a
judge has to decide whether or not to give leave to take children out of the
jurisdiction”.
24. Having considered in detail the existing case
law and the impact of the Human Rights Act, the Court of Appeal in Payne
upheld the existing approach although deprecating the use of the word
‘presumption’ to describe the weight to be given to the wishes of
the primary carer. Thorpe LJ
summarised the approach as follows at paragraph 40 –
“However there is a danger
that if the regard which the court pays to the reasonable proposals of the
primary carer were elevated into a legal presumption then there would be an
obvious risk of the breach of the respondent’s rights not only under Art
8 but also his rights under Art 6 to a fair trial. To guard against the risk of too
perfunctory an investigation resulting from too ready an assumption that the
mother’s proposals are necessarily compatible with the child’s welfare
I would suggest the following discipline as a prelude to conclusion –
(a) Pose
the question: is the mother’s
application genuine in the sense that it is not motivated by some selfish
desire to exclude the father from the child’s life? Then ask is the mother’s
application realistic, by which I mean founded on practical proposals both well
researched and investigated? If the
application fails either of these tests refusal will inevitably follow.
(b) If
however the application passes these tests then there must be a careful
appraisal of the father’s opposition: is it motivated by genuine concern for
the future of the child’s welfare or is it driven by some ulterior
motive? What would be the extent of
the detriment to him and his future relationship with the child were the
application granted? To what extent
would that be offset by extension of the child’s relationships with the
maternal family and homeland?
(c) What
would be the impact on the mother, either as the single parent or as a new
wife, of a refusal of her realistic proposal?
(d) The
outcome of the second and third appraisals must then be brought into an
overriding review of the child’s welfare as the paramount consideration,
directed by the statutory checklist insofar as appropriate.
41. In
suggesting such a discipline I would not wish to be thought to have diminished
the importance that this court has consistently attached to the emotional and
psychological well-being of the primary carer. In any evaluation of the welfare of the
child as the paramount consideration great weight must be given to this
factor”.
25. Although the application of these principles
more often than not results in courts approving an application to remove a
child from the jurisdiction, it does not invariably do so and Mr Thacker has
referred us to several cases where permission was refused. What is also clear is that the courts
have in recent times adopted a number of imaginative solutions to the problem
of ensuring, so far as possible, that promises as to continuing contact made by
the departing parent will be adhered to and capable of enforcement by the other
parent. Thus consideration may be
given to the obtaining of a mirror order in the courts of the new country of
residence, to notarised agreements, or to the provision of a bond to enable the
court to penalise the departing parent financially should she not adhere to the
order or to her promises.
Decision
26. We must first consider whether the
mother’s application is genuine in the sense that it is not motivated by
some selfish desire to exclude the father from F’s life. In her witness statement the mother
asserts at paragraph 13 that she has always wanted F to spend time with the
father and build up a relationship with him. We do not consider this to be a true
statement. She was clearly very
hurt by what she perceived as the father’s neglectful attitude towards
her and F immediately after he left (initially defending the paternity suit on
the grounds that he was not satisfied that he was necessarily F’s father)
and we are in no doubt from all the evidence that she was correctly described
in the Children’s report of March 2005 as saying that, although she was
willing for contact to take place, she did not want F to have contact with his
father. She has undoubtedly refused
contact in the past.
27. In oral evidence, she said something rather
different. She said that, although
she had initially been sceptical about the desirability of contact, now that it
had taken place on a regular basis since April and she had seen how the bond
between F and the father had developed, she accepted that F had become very
attached to his father and would benefit from having a full relationship with
him. She therefore now considered
it to be in F’s best interests for contact to continue and she would
encourage it. She accepted that the
animosity between herself and the father and herself and the grandparents was
not helpful and was contrary to F’s best interests. She was therefore willing to accept
mediation as recommended by the Children’s Service with a view to trying
to improve the position. She stated
that she would stick by any order for contact and she was willing to give
security over her Jersey property in support
thereof.
28. L agreed that continued contact was important
and he too was willing to give security over his flat in Jersey
as security for the honouring by the mother and him of any order for
contact. He was strongly supportive
of mediation, pointing out that, once the Court had made its order, the lawyers
could walk away from the matter but the parties had to continue to make things
work in F’s best interests.
29. We have had the opportunity of seeing and
hearing the mother and L give evidence. We have had to consider very carefully
whether the sentiments expressed by the mother in the witness box were genuine
or whether she was merely saying what she knew would give her the best chance
of succeeding in her application. We cannot entirely discount the possibility
that the mother is not altogether unhappy that contact between F and the father
would be adversely affected and would become more difficult were she to move to
Qatar and that this may have coloured her attitude towards the idea of moving
to Qatar. But we are in no doubt that there is a genuine reason
underlying this application. L has
been offered employment by the bank because of their high opinion of him. It is perfectly natural that, supported
by the mother, he should wish to do what is best for his new family (including
F) and this involves accepting the promotion offered and the proposed offer of
employment in Qatar. We are
satisfied that the mother is perfectly genuine in wishing to support L in this
career move and that is her primary motivation in this matter.
30. Next we must consider whether the application
is realistic. In our judgment it
undoubtedly is. L has a firm offer
of employment which will produce a 20% increase in his current salary. When coupled with a complete lack of
income tax in Qatar
and a housing allowance of £1,000 per month he will effectively be
receiving an increase in income of not less than 40%. L and the mother visited Qatar during
the October half term. They have
definite and satisfactory housing arrangements with medical insurance etc. The only slight doubt is over F’s
schooling. L and the mother visited
the Doha English-speaking school.
They liked what they saw but were informed, at that time, that there
were only two remaining vacancies for F’s year in January 2006 and it
could not be guaranteed that these would be held for F. Until this application is resolved, the
mother has not felt able to take up a firm place for F. If it transpires that, by the time of
this decision, the two vacancies no longer exist, F would have to go to another
English-speaking school which takes children from F’s age up to GCSE
level. That is clearly a much
larger school and would not be so ideal but overall we are satisfied that the
mother and L are taking responsible action in relation to F’s schooling
and will do their best to ensure that adequate arrangements are made. As to the proposed contact arrangements,
we are satisfied that the modified proposals put forward by the mother during
evidence are as satisfactory as circumstances permit. Accordingly, we find that
the mother’s application is realistic and has been properly researched.
31. As to the father’s opposition, we are in
no doubt that this is genuinely motivated.
Whatever may have been the position in the period immediately following
F’s birth, we are satisfied that, since the latter part of 2004, the
father has made determined and consistent efforts to see F and to build up a
relationship with him. This has
been very successful. We are quite
satisfied from the evidence that F is very fond of his father and has built up
an excellent relationship with him.
He is also perfectly happy in the presence of the father’s new
wife. We accept that the father
genuinely feels that it would be a mistake for the move to take place because
this would have the effect of reducing the amount of contact just as it has
successfully developed from inauspicious beginnings, given the mother’s
initial opposition. Inevitably, the
relationship between F and his father will be affected by the distance and
consequent reduced regularity of contact.
F is only six and the period between the proposed contact visits will be
very long for such a young child.
The father is genuinely and reasonably concerned that this would not be
in F’s best interests. He is
also concerned because there will be a similar reduction in contact with the
grandparents. Furthermore, this is
not a case where there would be compensations by reason of the increased
contact in the new country with the mother’s family because her extended
family also lives in Jersey.
32. Next we must consider the impact on the mother
as a new wife if permission were to be refused. We are satisfied that the there
would be potentially serious adverse consequences if this application were to
be refused. L has been offered a
responsible post. It is a job which
offers considerable financial and career advancement. This will benefit not just L, but also
his family as a whole, including F.
If we refuse consent, L has made it clear that he will resign from the
post and seek to be re-employed in Jersey. His present position has been filled and
he will therefore have to hope that his employers will be able to find him some
alternative post. Whilst he
believes they will do their best to assist, success cannot be guaranteed; nor
can it be certain that any alternative post would have a commensurate level of
responsibility and remuneration. If
the bank cannot find him suitable employment, he will have to seek employment
elsewhere in the finance sector in Jersey. We think it is inevitable that, if this
were to occur, there would be a certain – perfectly understandable –
sense of disappointment and resentment on L’s part which could impact on
the happiness of his new family unit.
We accept that the mother would feel that she had been unable to support
L and this in turn would impact on her emotional and psychological well-being. Mr. Hanson described the consequences of
a refusal of this application as ‘disastrous’. We would not put it
that high but we accept that it would be extremely disappointing, would have
uncertain effect on his present and future career and would carry a material
risk of causing tension and possible instability in the new family unit.
Furthermore, if the application were refused, we have no doubt that the mother
would blame the father and the grandparents for preventing her new family from
following its chosen course and this would increase yet further the level of
animosity between the parties and render the task of any mediator yet more
difficult. We think that this would
impact on F who would undoubtedly feel the tension between the parties and would
be torn in his loyalties even more than is already the case.
33. Given the difficulties over contact in the
past, a key factor in this case is the ability to enforce the proposals for
contact made by the mother. A
number of options were canvassed during the hearing –
a.
According
to the advice on Qatar law obtained by the mother, a notarised agreement under
the law of Qatar setting out the agreed terms of contact would assist the
father in enforcing that contact before the courts of Qatar should the need arise. It is not possible, however, to obtain a
mirror order.
b.
Both the
mother and L have property in the Island and
are content that steps should be taken to secure that those properties would be
available to secure performance of the promised contact. The mother has a 50% interest in common
in a property in St Helier. The other owner is her former
brother-in-law. We were informed
that it is valued at some £220,000 with a mortgage of £175,000. L has a flat in Jersey
which he has acquired by share transfer.
It is valued at some £250,000 with a mortgage of
£209,000.
c.
An
injunction could be granted restraining disposal of either of these properties
without leave of the Court. In
order to ensure the possibility of enforcing any such injunction, security could
be given over the two properties by way of a judicial hypothec and security
interest respectively. Thus, in the
event of a breach of the order for contact, any penalty for contempt could be
enforced against the two properties.
This would therefore give the mother and L a financial incentive to
honour their commitment as to contact.
34. Having considered these various individual
matters, we must then stand back and consider all the factors in order to
determine the critical question, namely what is in F’s best
interests? What is the order most
likely to promote his welfare? On
the one hand, we accept that granting the application would make contact with F
more difficult and infrequent and this would be likely to have an adverse
effect on the development of the relationship between F and his father. It would also lead to less contact with
the grandparents and other members of F’s extended family in Jersey. On
the other hand, a refusal would carry a material risk of adverse consequences
to the well-being of the family unit (in particular the mother) which forms
F’s primary care. As Thorpe
LJ made clear, the emotional and psychological well-being of the primary carer
is a factor to which great weight must be given in evaluating the welfare of
the child as the paramount consideration.
35. We have not found this an easy decision. However, on balance we have concluded
that F’s best interests would be served by granting the application. We think that the need to ensure that
the family unit which provides the primary care for F is not adversely affected
outweighs the diminution in the contact between F and his father and extended
family and the other side effects of the move. However, our assessment of where
F’s best interests lie is founded upon an assumption that the proposed
contact - which we shall include in an order – actually takes place. Given the difficulties which have
occurred in the past and our residual concern about whether the mother’s
attitude has indeed changed as she states, this is a matter of particular
importance in this case. Had we concluded that we could not rely on the
proposed continuing contact with the father taking place, we would have refused
permission. However we were
impressed with the attitude of L towards the issue of contact. We think that his influence, coupled with
the mother’s stated new attitude and the other measures we propose to put
in place, mean that we can proceed on the basis that the promised level of
contact will in fact occur.
36. We believe that the Court must adopt an
imaginative and creative approach to the problem of ensuring that the risk of
such contact not taking place is reduced to a minimum. To that end we propose to put in place a
number of protections as discussed during the course of the hearing. Our decision to grant permission for F
to leave the jurisdiction is therefore conditional and will not come into
effect until a further hearing at which time we will be able to consider
whether all the proposals set out below have been satisfactorily addressed
–
d.
The father
will be entitled to contact with F in Jersey
for one week in the Christmas holidays, one week in the Easter holidays and two
weeks in the summer holidays. In
addition, he will be entitled to contact in Jersey
for the half-term holidays in the summer and Michaelmass terms. We agree with the mother that, given
F’s young age, the two weeks in the summer holidays should, for the
moment, be two separate periods of one week rather than a single period of two
weeks, although we would expect this to be able to change to a single period of
two weeks within the reasonably near future. The father and the grandparents should
be entitled to contact in Qatar
by arrangement upon giving reasonable notice of any visit to Qatar. Furthermore, the father should be
entitled to reasonable contact by arrangement if the mother and L are back in Jersey for longer periods during the various
holidays. To take a simple example,
it was mentioned in evidence that the mother may well return with F to Jersey for nearly two months in the next summer
holidays. It would be quite wrong
to confine the father to only two weeks of contact if F is back here for such a
period. The father ought to be able
to see F at additional weekends during the period that he is in the Island. We
will hear the parties further on the exact nature of any order which should be
made in this respect.
e.
We convene
L to these proceedings and we propose to make an injunction restraining the
mother from disposing of her interest in 26 Windsor Road, St
Helier without leave of the Court and restraining L from disposing
of his interest in 3 Maison Ambassadeur, 11 Midvale Road, St
Helier without leave of the Court.
f.
The
parties are to enter into a notarised agreement governed by the law of Qatar granting
the father contact in accordance with the orders which we are making. The agreement is to be in such form as,
according to advice on Qatar law, would best enable the father to enforce the
agreement for contact contained therein in the courts of Qatar should the need
arise.
g.
The mother
and L are each to enter into a bond in favour of the Viscount to secure the
performance of the orders for contact.
We will hear further argument on the sum to be stated in such bonds.
h.
The bond
given by the mother is to be registered as a judicial hypothec on her property
and the bond given by L is to be the subject of a security interest against the
shares representing his interest in the flat at 3 Maison Ambassadeur. The original share certificate is to be
lodged with the Viscount and formal notice of both the security interest and
the existence of the injunction is to be given to the secretary of the company
in which the shares are held.
37. There remains the question of the costs of
contact arising out of the fact that F will have to travel from Qatar to Jersey. These
costs may be not inconsiderable and the father made it clear that this was a
concern to him. Although we do not
think it necessary to set out the parties’ respective financial positions
in this judgment, we have heard evidence on the topic. It is clear that the financial position
of L and the mother will be very much better than that of the father. Furthermore, the application is made
entirely for their benefit. If they
had been content to remain in Jersey, the
father would have been able to see F without expense in Jersey. In the circumstances, we think it only
fair and reasonable that the costs incurred in connection with transporting F
from Qatar
to Jersey for contact visits should be borne
entirely by the mother and L. In
most cases, this will not be a problem because the mother and/or L will be
accompanying F because they will wish to visit Jersey
at the same time as F comes here for contact visits. However, at other times, it may be that
neither L nor the mother will come with F.
On those occasions (including the half-term visits) it will be up to the
mother to decide whether she is content to use the unaccompanied minor schemes
put forward by the airlines or whether she and L would be willing to pay for
the father to come to Qatar to pick up F, bring him back to Jersey and then
travel back with him to Qatar in order to deliver him before returning once
again to Jersey. If the mother
chooses to use the unaccompanied minor scheme, we think it only fair and
reasonable that the father should meet F at London (at the father’s
expense) and travel back with him to Jersey rather than rely upon the airline
system to look after F whilst transferring him from the Qatar flight to the
Jersey flight.
38. We propose to distribute this judgment in draft
and will be willing to hear the parties on the exact details of any order and
of any other matter which arises.
We would emphasise that the decision we have made is one which is
conditional upon the production of the security and the notarised
agreement. The injunction
restraining the mother from removing F from the jurisdiction is accordingly not
yet lifted. There will be a further
hearing once the notarised agreement is completed and the security has been put
in place. Only at that stage will
permission be given unconditionally and the injunction lifted. However the mother should in the
meantime make firm arrangements for F’s schooling in Qatar.
Authorities
In H v T (2003) JLR 26.
Payne v Payne (2001) 1FLR 1052
Human Rights Act 1998.
Chamberlain
v de la Mare (1983) 4 FLR 434 at 445.