BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> D v E (Family) 22-Jan-2021 [2021] JRC 014 (22 January 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_014.html Cite as: [2021] JRC 14, [2021] JRC 014 |
||
[New search] [Help]
Family - wrongful detention of child
|
Before : |
J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Olsen and Ronge |
|
Between |
D (the Mother) |
Plaintiff |
|
And |
E (the Father) |
Defendant |
Advocate J. F. Orchard for the Plaintiff.
The Defendant appeared personally by video link.
judgment
the COMMISSIONER:
1. The Plaintiff seeks a declaration that the retention by the Defendant of their child ("the Child") in Madeira, an autonomous region of Portugal, is wrongful within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25th October 1980 ("the Convention"), to which both Jersey and Portugal are parties. The Convention has effect in this jurisdiction through the Child Abduction and Custody (Jersey) Law 2005 ("the 2005 Law").
2. The essential facts, which are not in dispute, can be summarised as follows:
(i) The parties, who are of Portuguese nationality, formed a relationship in 2014, when they were both living in Jersey.
(ii) The Child was born in Jersey in 2014 and is therefore six years old.
(iii) The parties lived in Jersey with the Child continuously until April 2019, when the Plaintiff left Jersey to live in the United Kingdom with her current partner, with the Child remaining in Jersey under the care of the Defendant.
(iv) Proceedings were issued by the Defendant before the Family Division of the Royal Court in which by consent the Defendant was given parental responsibility for the Child (the Plaintiff already having parental responsibility). The proceedings were compromised in a consent order of 15th November 2019 under which:
(a) the Defendant was granted a Residence Order under the provisions of the Children (Jersey) Law 2002 ("the Children Law") in respect of the Child, and
(b) the Plaintiff was given regular and substantial physical contact with the Child, to take place in the United Kingdom (or in Jersey if agreed by the parties), and regular contact through WhatsApp and similar media.
(v) The Plaintiff exercised her contact through the media with the Child on an almost daily basis, but physical contact did not take place over Easter 2020 due to the Covid-19 restrictions. Physical contact for three weeks had been agreed in principle to take place in August 2020.
(vi) On 13th July 2020, and without the knowledge of the Plaintiff, the Defendant left Jersey with the Child and travelled to Madeira. He maintains that this was for the purposes of a holiday. On 29th July 2020, the Defendant texted the Plaintiff from Madeira, indicating that he had been offered a job in Madeira, and intended to stay there permanently with the Child. The Defendant stated that he and the Child were living with the Defendant's mother, but he was arranging to move into a flat of his own nearby.
(vii) The Plaintiff issued proceedings against the Defendant before this Court on 12th August 2020 and was granted an interim injunction ordering the Defendant to return the Child to Jersey by Friday, 21st August 2020. Despite this injunction, the Child has not been returned.
(viii) On 17th September 2020, the Plaintiff filed an application under the Children Law, seeking leave to remove the Child to live with her in the United Kingdom.
(ix) On 21st September 2020, the Defendant filed an application under the Children Law for retrospective leave to remove the Child to Madeira.
(x) In addition, the Plaintiff invoked the Convention by referring the matter to the Attorney General of Jersey, the Designated Authority here, who has in turn referred the matter to the Central Authority in Madeira.
(xi) At a directions hearing on 9th November 2020, the Court gave the Plaintiff leave to amend her Order of Justice to seek a declaration under Article 3 of the Convention and for that application to be heard on 13th January 2021, following the filing of skeleton arguments.
(xii) By letter dated 24th November 2020, the Attorney General reported that an initial hearing had taken place in Madeira and that the Madeiran Court had requested further information from the Jersey Court, which we interpret as being a request under Article 15 of the Convention for a declaration by the Jersey Court that the Child's removal or retention was wrongful within the meaning of Article 3 of the Convention.
3. There is much flesh to be placed on the bones of these basic facts, in particular the reasons put forward by the Plaintiff for leaving the Child in the care of the Defendant and in agreeing to his having a Residence Order and the reasons why the Defendant maintains that it is in the best interests of the Child to remain with him in Madeira, but the welfare of the Child is not the basis of the Convention. Quoting from the judgment of Butler-Sloss LJ in Re C (A Minor) (Abduction) [1989] 1 FLR at page 405:
4. The application of the Plaintiff is made under Article 10 of the 2005 Law, which provides:
5. Article 15 of the Convention is in these terms:
In this case, the Madeiran Courts are waiting a determination by this Court as to whether the removal or retention of the Child was wrongful within the meaning of Article 3 of the Convention. Article 3 is in the following terms:
6. There is and indeed can be no dispute in this case that immediately before the Defendant travelled with the Child to Madeira on 13th July 2020, the Child was habitually resident in Jersey, where he had lived all his life and where he was attending school. As Lord Wilson said in Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UK(SC) 1 at paragraph 34:
In this case, the Child was fully integrated in a social and family environment in Jersey (where his maternal grandparents and other relatives also live).
7. The next question is whether the Child's removal or retention was in breach of the Plaintiff's rights of custody. Article 5 of the Convention provides:
8. The Defendant had the care of the Child in Jersey under a Residence Order, made under Article 10 of the Children Law. A Residence Order is defined under Article 1(1) as meaning an order "settling the arrangements to be made as to the person with whom a child is to live". Article 14 of the Children Law provides as follows:
(a) Cause the child to be known by a new surname; or
(b) Remove the child from Jersey,
Without either the written consent of every person who has parental responsibility for the child or the leave of the court.)
(2) Paragraph (1)(b) does not prevent the removal of a child, for a period of less than one month, by the person in whose favour the residence order is made.
(3) In making a residence order with respect to a child the court may grant the leave required by paragraph (1)(b), either generally or for specified purposes."
9. Whilst there may be an issue between the parties as to the Defendant's true intentions when he left Jersey with the Child on 13th July 2020, Article 14 entitles him to take the Child out of Jersey for a period of less than a month and accordingly the removal of the Child from Jersey on that date was not unlawful. However, the Defendant has retained the Child in Madeira beyond the period of one month and has refused to return him to Jersey. In doing so, he did not have the written consent of the Plaintiff, who, together with the Defendant has parental responsibility for the Child, or the leave of the Court.
10. In his answer, the Defendant candidly accepts that he was mistaken in thinking that his rights under the Residence Order entitled him to have the Child live with him in Madeira permanently and he acknowledges that he should have obtained the prior written consent of the Plaintiff or applied to the Court for leave. He apologised to the Plaintiff and to the Court for not doing so.
11. Under the Residence Order, the Child is to reside with the Defendant in Jersey and the Plaintiff's written consent was required under that order to his being removed from Jersey. That consent was not obtained and there can be no question, therefore, that by the Defendant retaining the Child in Madeira, the Plaintiff's rights of custody have been breached. Furthermore, the Plaintiff's rights of custody were being exercised by the Plaintiff at the time of the Child's retention.
12. Accordingly, all of the requirements of Article 3 of the Convention have been met, namely that the Plaintiff's rights of custody under Jersey Law, the jurisdiction in which the Child was habitually resident immediately before his retention in Madeira, have been breached, rights which were actually being exercised. The retention is, therefore, wrongful for the purposes of Article 3 of the Convention and we so declare.
13. Under Article 12 of the Hague Convention the Madeiran Courts are now obliged to order the return of the Child to Jersey unless the provisions of Article 13 apply, and in particular, whether the Defendant establishes that there is a grave risk that the Child's return will expose him to physical or psychological harm or otherwise place him in an intolerable situation.
14. This case is unusual in that, unless the Defendant agrees to return to Jersey with the Child and look after him here, the Child will be returned to a jurisdiction in which neither parent resides. It is the Plaintiff's proposal that the Child should reside in Jersey with his maternal grandparents until such time as the Jersey Court has decided whether his welfare is best served by him residing with the Plaintiff in the United Kingdom or the Defendant in Madeira. This Court cannot be expected to deploy its resources by embarking upon that exercise, which will involve the appropriate agencies here and in particular the Jersey Family Court Advisory Service ("JFCAS"), until the Child is physically within its jurisdiction. It is for the Madeiran Courts first to return him here pursuant to the Convention.
15. The interim injunction requiring the Defendant to return the Child before 21st August 2020 is now spent in that the Child was not returned by that date. The Plaintiff therefore seeks a final injunction, simply ordering the Defendant to return the Child to Jersey. When the Court has declared that the removal or retention of a child is unlawful or wrongful, the Court would have no difficulty in making such an order, because ordinarily the child would be returned to the care of a parent that is in the jurisdiction. In this case, we would be making an order that, assuming compliance, the Child be returned to Jersey where he could be separated potentially from both parents for at least the length of time that it would take the Court to determine with which parent he should reside. That could take some time. At the directions hearing, the JFCAS officer, indicated that ordinarily a full welfare report would take some 22 weeks to prepare involving as it would enquiries as to the arrangements proposed for the Child in both Madeira and the United Kingdom, leaving aside the delays that would be caused by Covid-19. A hearing before the Court to determine with which parent the Child should live could not take place until after the production of that JFCAS report, and accordingly the temporary arrangements for the care of the Child in Jersey may be in place for the best part of a year.
16. In the circumstances we decline to grant the injunction sought, but we do agree to confirm the second interim injunction imposed by the Court, namely that upon the Child's return to this jurisdiction, the Defendant will not remove the Child from this jurisdiction pending a final decision on the applications for his removal to the United Kingdom or Madeira respectively.
17. We assume that the Plaintiff is or will be a party to the proceedings before the Madeiran Court and she will no doubt provide evidence to that Court as to the arrangements she proposes for the care of the Child, if the Defendant is not prepared to return with the Child and look after him here, and this in response to any claim by the Defendant before the Madeiran Court that there is a grave risk to the Child of the kind referred to in Article 13.
18. Finally, the Plaintiff sought an order for costs on the standard basis. The general practice of proceedings relating to children is to make no order as to costs because the overriding concern is to protect and promote the interests of the child. As held in C v D [2018] (1) JLR Note 3, three considerations are likely to be present in most proceedings relating to children, namely firstly, orders for costs would tend to diminish the funds available to meet the needs of the family; secondly, the parties should not be discouraged from putting forward arguments that they conscientiously believe to be in the child's interest for fear of being penalised in costs if the Court disagreed, and thirdly, a costs order was almost inevitably made (if at all) in favour of the winning party, and making such an order in this context would add insult to injury, thereby aggravating the sense of grievance felt by the losing party in circumstances that were already likely to be fraught. Any exacerbation of tensions would not be in the child's interests. This was a practice, not a rule.
19. We know little about the means of the Defendant but from what we can glean from the information before us, he is a man of limited means. Whilst the retention of the Child in Madeira is wrongful, in the particular circumstances of this case we decline to make an order for costs.
20. In conclusion:
(i) We declare that the retention by the Defendant of the Child in Madeira is wrongful within the meaning of Article 3 of the Convention.
(ii) We order that upon the Child's return to this jurisdiction, the Defendant will not remove the Child from this jurisdiction pending a final decision by this Court on the applications for his removal to the United Kingdom or Madeira respectively.
21. We make no order as to costs.
