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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> W -v- X (Family) [2015] JRC 095 (08 May 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_095.html Cite as: [2015] JRC 95, [2015] JRC 095 |
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Family - constitution of tutelles on behalf of the children.
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Fisher and Kerley |
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Between |
A |
Applicant |
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X And |
Respondent |
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Between |
X |
Representor |
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A And |
Respondent |
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By |
A as Guardian ad litem for Mary and Jane And |
Representor |
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Between |
W |
Plaintiff |
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X |
Defendant |
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IN THE MATTER OF MARY AND JANE
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF THE TUTELLES OF MARY AND JANE
Advocate I. C. Jones for A.
judgment
the commissioner:
1. These four matters came before the Court on 6th and 7th May, 2015, when the Court made orders dealing with all of them for the reasons which we now set out.
2. The factual background is set out in the Bailiff's judgment of 30th July, 2014, (W-v-X (Family) [2014] JRC 150) in detail but because we need to have this judgment issued as soon as possible, we will give a very short summary of the essential facts.
3. The late W ("the father") comes from Jersey and X ("the mother") comes from Latvia. They met in Jersey in 2007 and the first child, Mary, (which is not her real name) was born in 2011. They moved to Latvia and bought a house there in September 2012. The relationship did not appear to have gone well and on 28th December, 2013, the father returned to Jersey with Mary. The mother (who was pregnant) returned to Jersey in April 2014, moving into rented accommodation which the father provided for her. She had contact with Mary for two nights a week, but otherwise Mary lived with the father. The second child, Jane, (which is not her real name) was born in 2014. The father's parents ("the paternal grandparents"), who live in Jersey, played a significant role in Mary's life in Jersey and in Latvia, where they visited frequently to stay with the father and the mother when they lived there.
4. In his Order of Justice of 23rd June, 2014, the father stated that the long-term plan was for the children and the mother to remain in Jersey, to which end Mary had been placed at a nursery and was registered with a primary school. A new rental property chosen by the mother had been agreed and she and Jane were due to move there on 28th June, 2014.
5. The mother's parents then lived and worked in Guernsey and the mother requested the father's consent for her to take the children to Guernsey in early June, 2014 to see them. The father retained Mary's passport and the mother duly returned to Jersey with the children as planned. She then requested to take the children to Guernsey for a second time on 16th June, to which the father agreed and he again retained Mary's passport. On this occasion, the mother did not return the children to Jersey, but instead flew with them from Guernsey to Latvia from where the father was told they would not be returning. It transpired that the mother (who then had sole parental responsibility for the children) had ordered a new passport for Mary, stating that she had lost the original one.
6. By his Order of Justice of the 23rd June, 2014, the father obtained the following orders ex parte:-
(i) That the mother returns both children to the jurisdiction of the Royal Court by Friday 4th July, 2014.
(ii) That thereafter there will be an interim injunction preventing her from removing the children from the jurisdiction pending further order.
(iii) That an interim residence order in respect of Mary be granted in favour of the father, and
(iv) That parental responsibility in respect of both children be granted to the father.
7. The father then applied to the Latvian courts for the return of the children to Jersey through the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. On 19th August, 2014, the Latvian courts ordered their return. The mother was in the process of appealing that judgment when, tragically, on 28th August, 2014, the father took his life.
8. The father left a Will appointing his mother as executrix, covering his world-wide personal estate which pre-dated the breakdown of his relationship with the mother and under which the mother was the sole beneficiary. On 9th January, 2015, that Will was reduced as legitimum modem on the application of Advocate Garood as the children's guardian ad litem, so that they now share the father's personal estate with the mother.
9. That estate appears to comprise a 49% share in a Latvian company which in turn owns the residential property in Latvia in which the mother and father had lived; it is apparently a very large property. The remaining shares are owned by the mother who therefore controls it. The monies required to purchase the property were lent to the company by the father and therefore the estate has the benefit of that loan. We were told that there are debts of the estate amounting to some £100,000, although we have no information as to the identity of the creditors and the extent to which they are genuinely at arm's length.
10. The father died intestate as to his real property in Jersey, which comprises a mortgage free house which the paternal grandparents propose should be let to produce an income. Under Jersey law, that devolved upon the children in equal shares.
11. Differences have arisen between the paternal grandparents and the mother over the disposition of these assets, with the paternal grandparents suggesting that the Latvian property, which they say is too big for the mother and the children, and too much for her to maintain, should be sold to meet the liabilities of the estate, with the balance being used to fund an alternative property for the mother and the children in Latvia. The mother has suggested that the Jersey property be sold for this purpose, which the paternal grandparents say will benefit her at the expense of the children.
12. The paternal grandparents feel strongly that someone needs to be appointed to protect the interests of the children in these assets, bearing in mind the inherent conflict the mother has between her own interests and those of the children, but they do not seek to otherwise interfere with the mother's care of the children, with whom they have regular contact by Skype. The mother has very properly made it clear that she will facilitate contact between the paternal grandparents and the children going forward.
13. The paternal grandfather, A on advice filed a C2 application form on 18th September, 2014, seeking firstly for leave to be joined as a party to the proceedings brought by the father and secondly to be appointed as guardian for Mary under Article 7(1)(b) of the Children (Jersey) Law 2002 ("the Children Law").
14. The mother filed a representation on the 5th December, 2014, seeking the dismissal of the Order of Justice brought by the father and the paternal grandfather's applications.
15. These matters were due to be heard before the Court on 6th May, 2015, but on the eve of the hearing the mother, on advice from her Latvian lawyer, withdrew her instructions to Advocate Orchard to represent her. He attended out of courtesy to the Court in order to assist on any points of law that arose.
16. Although we are not privy to the advice the mother has been given, we feel we can understand why she has acted in this way and that is because of the implications of the paternal grandfather being appointed guardian and through that appointment, this Court (a foreign court to her) seeking to interfere with the lives of the children who are now Latvian nationals permanently based with her in Latvia.
17. The reason for this is that under Article 7(6) of the Children Law the appointment of a guardian would give the paternal grandfather parental responsibility for the children and thus all the responsibilities (other than financial) of a parent including, for example, the responsibility to ensure that the children are provided with adequate food, clothing, medical aid and lodging and are being educated properly, responsibilities which the paternal grandfather does not actually seek.
18. Article 7(1) of the Children Law provides:-
19. It is only Article 7(1)(b) that could apply on these facts and that is in respect of Mary, as it was only for her that the Court made an interim residence order in favour of the father, although Advocate Orchard argued that this provision was only intended to apply when no surviving parent was able to have residence, the primary purpose being to take over the role of the deceased parents.
20. Even if Article 7(1)(b) could be applied to Mary, it could not be applied to Jane, leaving the very unsatisfactory result of the paternal grandfather having guardianship of one child only. That hurdle could be overcome, Advocate Jones argued, by the Court appointing the paternal grandfather guardian of Jane, using its inherent jurisdiction.
21. Advocate Orchard submitted that the Court had no jurisdiction to appoint the paternal grandfather as guardian on these facts. Advocate Jones submitted that the jurisdiction of the Court was beyond question, because he said the children are "habitually resident in Jersey" and this on the grounds that they were so resident when surreptitiously removed from Jersey by the mother who unlawfully refused to return them. These were arguments that the father made and with which the Latvian court agreed, but the whole purpose of an order returning the children to Jersey was because the father lived here. The father has tragically taken his life and so the whole substratum of the proceedings he brought and the orders made by the Latvian court have been removed. We are told that the Latvian court orders have been cancelled. There is no parent in Jersey with whom the children could now be returned to reside and the paternal grandparents made it absolutely clear that they do not seek to have the children taken from the mother. In the circumstances, the orders made by the Royal Court on 23rd June, 2014, must now be spent.
22. We had very serious reservations over the propriety of this Court seeking to exercise jurisdiction over the children in the light of the now very changed landscape. The reality is that they now reside permanently in Latvia with the mother and will remain there. Advocate Jones conceded that even if the Court were to make such an order, it would be open to serious question whether the Latvian courts would give effect to it.
23. Leaving that aside, the appointment of the paternal grandfather as guardian would not actually address his concerns, which relate to the assets of the children. That is because the guardian would have no jurisdiction over the administration of the property of the children; that responsibility would fall upon a tuteur appointed by the Court (Article 7(12) of the Children Law).
24. It rapidly became clear in discussion, that the way forward was not to continue considering whether the Court could and if so whether it should appoint the paternal grandfather as guardian, but for tutelles to be formed for the children. This has been in discussion between the parties but without going into detail, it had not proved possible to proceed with that on a consensual basis. That may in part be due to the concern of the mother over the potential appointment of the paternal grandfather as guardian in addition to the formation of tutelles.
25. However the parties had gone as far as nominating electors, with the paternal side of the family nominating four and the maternal side three, and this in accordance with customary law. The mother had nominated herself, her lawyer in Latvia and her father in Guernsey.
26. It is well established under Jersey law that a tutelle should be constituted for the children in order to protect their interests during their incapacity (see Le Gros, Traité du Loi Coutumier de l'IIe de Jersey page 175) and the Court must, out of necessity, have an inherent jurisdiction to ensure that tutelles are duly constituted if, for whatever reason, the family are unable to do so voluntarily. Whilst the children's interest in their father's personal estate is currently safeguarded by the executrix, there is currently no one to safeguard their interests in the Jersey realty they now own.
27. The procedure to be adopted by the Court where a tutelle is not formed by consent was not clear, despite the best efforts of Advocate Jones to research the matter in the short time given to him. On the basis that the Court is the master of its own procedures, on the 6th May, 2015, we:-
(i) appointed the paternal grandfather as guardian ad litem for the children for the purpose of:-
(ii) bringing an application the following day, 7th May, 2015, ex parte by way of representation for orders to be given for the tutelles to be constituted.
28. That representation was brought on 7th May and orders were given for the tutelles to be constituted on 20th May, 2015, at 9am. Customary law requires that seven electors be summonsed (see Le Gros at page 176) and, having sworn to appoint the person they each consider to be most appropriate to discharge the duties of tuteur to the children, they then elect the tuteur to whom the customary oath is administered. That oath requires him to administer the children's property and attend to their rights and interests with equal or even greater concern than he would manifest for his own, that he will be guided by the advice and counsel of the electors and will at all times deliver good and proper accounts.
29. One of the issues discussed was whether the mother and her two nominated persons would attend the hearing on 20th May as it was felt by the paternal grandfather that she had not to date co-operated in the process. It is very much the Court's wish that she and her nominated electors do attend so that they have a direct involvement in the tutelles, but their failure to respond to the summonses should not be allowed to delay the tutelles being formed. We therefore directed the paternal grandfather to procure three additional potential electors to attend on 20th May so that they can step in to the extent that the mother or her nominees do not attend. The customary law is clear that there must be seven electors present.
30. The customary law is equally clear that the person elected as tuteur must be resident in the Island and therefore amenable to the Court's supervisory jurisdiction over tutelles. The mother cannot therefore be the tutrice and she does seem to accept in her unsworn affidavit that the paternal grandfather should undertake this role. There are potential conflicts in a mother being a tutrice of her own children's property in part of which she has an interest and irrespective of the issue of her living outside the jurisdiction, we think it would be suitable in any event for someone other than the mother to be appointed as tuteur or tutrice. We therefore gave orders that:-
(i) The seven electors proposed by the paternal and maternal sides of the family, together with a further three electors nominated by the paternal grandfather to undertake that role if and to the extent that the mother's nominees do not attend, be summonsed before the Court on 20th May, 2015, at 9am for the purpose of constituting the tutelles.
(ii) A copy of the representation, the affidavit of the paternal grandfather seeking leave to serve the process out of the jurisdiction and the summonses to appear be served on the mother, her lawyer and father out of the jurisdiction.
(iii) That the paternal grandfather's form C2 application and the father's Order of Justice of 23rd June, 2014, should be deemed to have been withdrawn upon the constitution of the tutelles and that the mother's representation of 5th December, 2014, shall be deemed to be dismissed upon the constitution of the tutelles.
(iv) That the reasonable costs of and incidental to the representation brought by the paternal grandfather as guardian ad litem be paid out of the tutelles.
31. Whilst it was proper that the paternal grandfather should have his costs for bringing the representation for the formation of the tutelles, we do not think that this is a case where it would be appropriate for any other costs orders to be made, as they would not serve any useful purpose.
32. We have made reference to the concerns expressed by the paternal grandfather as to whether the mother is acting in the interests of the children and we wish to make it clear that we have made no determination in this respect-nor do we express any view. The orders we have made are entirely procedural for the purpose of constituting the tutelles, as required by Jersey law.
33. There will be some difficult issues for the tutelles to grapple with but we express the hope that with the tutelles duly constituted, and the other litigation dispensed with, some of the doubt and suspicion that has arisen between the mother and the paternal grandparents can be set at rest and that they might be able to work together in the interests of the children.
