Between
X (mother)
Applicant
And
(1) Y (father)
(2) HH and (3) JJ (together "The Children") (Through their legal representative Advocate C. R. G. Davies)
Respondents
Advocate B. J. Corbett for the Applicant.
Advocate L. J. Glynn for the First Respondent.
Advocate C. R. G. Davies for the Second and Third Respondents / Guardian.
judgment
the COMMISSIONER:
HH was born in 2017, she is now 8 years old; JJ was born in 2020, she is 5½ years old; the children are full siblings and have dual nationality in both Country A and Country B. Their parents are X aged 34 years and Y aged 45 years. The children were both born in Country A where their parents lived together until 2022 when the family moved to Country C. The parents married in 2022 in Country A prior to their move to Country C.
Background
The children remained in the care of their two parents with X being the primary carer albeit Y did care for the children on occasions until the parties separated in 2023. There was a break in contact after separation when the children remained with X and they moved with her to a location unknown to Y; the children were approximately 6 and 3 years old at the time. Both parties made various applications to Country C Court in relation to the children's arrangements, cross allegations about inappropriate behaviour, and support for the children's care. Although there was a break in contact when Y did not see the children, X has accepted she envisaged a shared care arrangement between herself and Y following their separation.
On 14 May 2024 Country C Court recorded an Interim Custody arrangement for the children to live with X and for Y to see the children three times a week for 1½ hours a day on Saturdays. The Court also recorded that the parents would share joint custody of the children albeit that X had sole parental power over the children in general. Following that order X became concerned about a regression in the children's behaviour. However, on 11 July 2024 an order was made by consent in Country C Court for Y to see the children on alternate Saturdays for 6 hours and 2 hours each Wednesday to progress to overnight contact after two months. The Court expressed concern about both parents' behaviour and what they had been saying to the children. X and Y raised concerns about who should retain the children's passports and other issues pertaining to their shared custody agreement and Country C Court determined Y would hold HH's passports whilst X would hold JJ's passports.
After separation X arranged for both children to see a psychologist, albeit this was unknown to Y, because she was worried about their behaviour and how they would deal with the change in their circumstances. On 31 August 2024 the psychologist told X that HH had made an allegation that Y had sexually abused her. According to X there was no real context as to how this allegation was made although it is clear from the chronology that Y was due to have the children to start staying with him overnight in early September. The allegations made by HH were also allegedly repeated to a friend of X, who was the children's piano teacher, and to the children's nanny. X reported the matter to Country C police who arranged for a public prosecutor to speak to HH about her allegations, as well as to her younger sister.
X suspended contact between Y and the children. Y made an application to Country C Court for the resumption of contact and for the Court to conclude that X was being unreasonable in withholding contact whilst there was a criminal investigation pending. The matter was heard by Country C Court on 20-21 January 2025, with Judgment on 30 January 2025. The Court heard from X, the piano teacher, the children's nanny, and the public prosecutor as to the allegations made by HH and her sister JJ. The Country C Court concluded that it was not unreasonable for X to refuse contact in all the circumstances.
X formed a relationship with Z in Country C who has dual nationality in Jersey and Country C; they married in February 2025. X relocated with Z together with the children to Jersey in May 2025. Since that time X and the children have remained living in Jersey; Y remained living in Country C and formed a new relationship with a partner who met the children prior to contact being suspended. Y had no contact with the children from late August 2024. Y was unaware of where the children were living but was informed that the children had returned from Country D to Country C in March 2025. In April 2025 Country C Court confirmed that X could remove the children from Country C but that Y should be informed in advance and give his consent.
Proceedings in Jersey
In June 2025 Y issued an application for the summary return of the children to Country C pursuant to the Jersey Court's inherent jurisdiction on the basis they had been wrongfully removed by X and that the Country C Court should determine the children's welfare arrangements. Y had discovered through a post on Instagram that the children were living in Jersey with X and Z. X also issued applications in Jersey for Residence Orders, Prohibited Steps Orders, preventing Y from removing the children from her care, and Specific Issue Orders that Y should provide her with 48-hours' notice if he planned to travel to Jersey. It was agreed between the parties when the matter was considered by the Jersey Court that the application by Y should be heard and determined prior to the applications by X for Child Arrangements Orders in Jersey.
By various interim orders X was required to surrender her passport and driving licence to her solicitor, the children's passports were to be held by the Viscount, and a Guardian was appointed to represent the children within the proceedings. On 15 September 2025 the matter was allocated to me as Commissioner and I made directions as to evidence to be filed, expert evidence, a Guardian's report as well as listing the matter for hearing in November 2025. On 21 October 2025 I issued further directions in relation to expert evidence and for an agreed witness template.
Hearing in November 2025
The hearing commenced on 17 November 2025 before me and Jurats Averty and Le Cornu. Both parties were represented and both Y and X attended Court, as did the Guardian, Elsa Fernandes, who was also represented. Having had the benefit of reading the parties' statements, the evidence in the bundle, the Guardian's report, and skeleton arguments we expressed our concern as to the following issues:
(i) In view of the circumstances and the amount of evidence supplied by the parties we suggested it might be appropriate to determine the issue as to whether Y posed a risk of harm to the children prior to determining whether Y's application should be granted. The Guardian had recommended there needed to be clarity about the allegations made by X against Y alleging that he had sexually abused children in Country C, before contact between Y and the children could be considered. We were aware that Y had not seen the children since August 2024, and that in her conversations with the children the Guardian noted that although each child had expressed they did not wish to see Y this did not appear to be consistent with their response to photographs of their father and that the children may have picked up on the antipathy expressed by X against Y.
(ii) We were also concerned that it might be appropriate to examine whether the allegations made by X against Y could be determined given there had been no final determination in Country C Court, that there appeared to be no further progress on any police investigation in Country C, and that in the event Y was not a risk to the children it might well be appropriate for him to have contact with them in the first instance prior to any consideration as to whether it was in their welfare interests to return to Country C. We were mindful that the application for summary return had to be based on the children's welfare interests, and that the Guardian was concerned that it was in the children's welfare interests for the issue to be determined, as to whether Y presented a risk of harm to the children, as soon as possible.
All parties agreed to the above suggestion that the Jersey Court should determine whether Y presented a risk of harm to the children and that it would be helpful for the Jersey Court to resolve this issue given the time allocated to the case.
We heard evidence first from X, given she had made the allegations against Y. We also heard evidence from Y, and from the Guardian. The Guardian made arrangements for indirect contact between JJ and Y during the hearing given JJ had expressed a wish to have some contact with her father. We were extremely grateful to Ms Fernandes for organising this, and we accept this contact went well. Following the hearing there was also a direct contact visit between the children and Y which also went very well.
We heard submissions on behalf of each of the parents and on behalf of the children through their Guardian. We indicated we would give a short extempore judgment, which would be followed by a written judgment setting out the legal principles we had followed. We apologise for the delay in issuing this written judgment which does not in any way alter our findings which were made clear to both parties as well as a way forward to enable the children to rebuild their relationship with their father.
Positions of the Parties
X's position was as follows:
(i) Y sexually abused both children when he had contact with them in Country C following the order made in May 2024.
(ii) Y remains a risk to the children given his abuse of them and the way in which he behaved towards both X and the children prior to separation as well as following the parties' separation in October 2023.
(iii) X felt undermined and intimidated into agreeing contact arrangements within the Country C Court which she did not consider were appropriate for the children, and for which she felt she was given no option but to agree.
(iv) The children repeated their allegations to their nanny, to X, to their piano teacher, and to the public prosecutor. Although the psychologist did not attend court in Country C, this is understandable given she was intimidated and frightened by Y.
(v) It is apparent Y is unable to behave appropriately towards the children given the video evidence presented and his very strong feelings towards X.
(vi) Since the children stopped having contact with Y their behaviour has improved and they have no longer feel intimidated and abused.
(vii) In the event the Court finds that Y is not a risk to the children X would facilitate Face Time contact on a weekly basis, updates in relation to the children's progress, and supervised contact by Children's Services ("CS"). In addition, X is prepared to facilitate Face Time contact with E, the children's paternal grandmother.
Y's position was as follows:
(i) Y denies having abused the children at any time and that he presents a risk to them.
(ii) It is important to consider the context in which X made the allegations, the evidence concerning the allegations themselves, and that X was desperate to leave Country C with the children.
(iii) Y is happy to have contact with the children as arranged, he is prepared to work with the Guardian and CS and is desperate to re-establish his relationship with his children.
Guardian:
(i) It is significant to consider the context in which the allegations of sexual abuse came about. X obtained a letter from the children's school in May 2024, which must have been initiated by her, relating to her concerns about the children having contact with their father;
(ii) This was in the context of the children having been seen by a psychologist for some time albeit this was unknown to Y;
(iii) It is difficult to understand how the children's nanny could have understood what was being said by the children given her lack of English; it is significant that both the psychologist and music teacher as well as the nanny were in a financial relationship with X;
(iv) The report by the public prosecutor as to what the children apparently said is inconsistent and confused, it does not accord with the known situation concerning the children, and the children's own accounts are inconsistent with each other;
(v) Y's own evidence as to how he had contact with the children during the period between May-August 2024, specifically that his partner was present on almost every occasion, if accurate, means that he would have had no opportunity to abuse the children as alleged;
(vi) In the event the Court does not make findings that Y presents a risk to the children it is concerning that:
(a) The children have been given an unhealthy and inaccurate narrative by both X and potentially Z over some time which is potentially harmful and abusive;
(b) The children have likely suffered significant harm due to the high conflict between X and Y;
(c) The children continue to be told by X and potentially others that they are not safe with Y;
(vii) All of these issues will need to be addressed as otherwise the children will remain anxious albeit they have some resilience. The children will also need to be given a child appropriate narrative as to what has happened, and have the opportunity to rebuild their relationship with Y.
Law
It is for the person who asserts that the Court should make a finding to prove it on the evidence. The standard of proof is the balance of probabilities - Re B [2008] UKHL 35 . The Court must look at all the evidence ( Re T [2004] EWCA (Civ) 558 ) in a holistic way. The evidence of parents is of the utmost importance; the Court should be cautious in attaching weight to demeanour ( Re W [2003] FCR 346 ).
We should bear in mind guidance given by MacDonald J in Re P [2019] EWFC 27 which highlighted the following in relation to cases involving findings of fact:
"i) Children, and especially young children, are suggestible.
ii) Memory is prone to error and easily influenced by the environment in which recall is invited.
iii) Memories can be confabulated from imagined experiences, it is possible to induce false memories and children can speak sincerely and emotionally about events that did not in fact occur.
iv) Allegations made by children may emerge in a piecemeal fashion, with children often not reporting events in a linear history, reporting them in a partial way and revisiting topics.
v) The wider circumstances of the child's life may influence, explain, or colour what the child is saying.
vi) Factors affecting when a child says something will include their capacity to understand their world and their role within it, requiring caution when interpreting children's references to behaviour or parts of the body through the prism of adult learning or reading.
vii) Accounts given by children are susceptible to influence by leading or otherwise suggestive questions, repetition, pressure, threats, negative stereotyping and encouragement, reward, or praise.
viii) Accounts given by children are susceptible to influence as the result of bias or preconceived ideas on the part of the interlocutor.
ix) Accounts given by children are susceptible to contamination by the statements of others, which contamination may influence a child's responses.
x) Children may embellish or overlay a general theme with apparently convincing detail which can appear highly credible and very difficult to detect, even for those who are experienced in dealing with children.
xi) Time between an event recounted and the allegation made with respect of that event may influence the accuracy of the accounts given.
xii) Within this context, the way, and the stage at which a child is asked questions or interviewed will have a profound effect on the accuracy of the child's testimony."
Evaluation and Reasons
We have considered all the evidence in this case relating to allegations made by X as to the risk presented to the children of emotional harm, physical harm, and sexual harm by Y. The burden is on X to establish the allegations she has made, the standard of proof is the balance of probabilities, and we remind ourselves we must not speculate but rely on evidence.
We are grateful to both parents for giving evidence which has assisted us in determining the issue of risk relating to Y. We take into account the context in which the allegations of sexual abuse came about - X had become heightened and extremely worried about the children having contact with Y as she very much wished to leave Country C and was concerned Y would prevent this from happening. We also take into account that X accepted she had agreed to and envisaged joint care with Y at a much earlier stage and had not withdrawn her agreement, albeit it is clear her wish to leave Country C with the children became more focused during 2024.
Having examined all the evidence concerning the witnesses who gave evidence before the Country C Court, as well as the accounts given to the public prosecutor by the children themselves, we cannot find these are reliable or credible. We do not know how the allegations made by the children came about, we do not know what questions were asked, there is no reliable contemporaneous record, and the children's accounts are inconsistent both with themselves and each other. We also find it is relevant that X became heightened about her wish to leave Country C and her belief that Y would prevent this. During this period her care of the children was less than optimal given they were attending a Country C school where they did not understand the language, X's trust in Y had completely broken down, and she felt, perhaps understandably, under pressure within the Country C Court proceedings where she felt she was not been given a proper opportunity to be heard. Specifically, we find that the letters from the school in May 2024 were likely to have been initiated by X; she was in regular contact with the school and needed evidence to support her contention that the children would be at risk by having regular contact including unsupervised contact with Y. It does not make sense that these letters were generated without the assistance of X and we reject her evidence on this.
We also accept Y's evidence that when he had contact with the children his partner was usually present. In that context we accept it would have been impossible for Y to have sexually abused either of the children as alleged. Whilst we have not heard from Y's partner, we accept his evidence that the children had a good relationship with her, and we accept there would have been no opportunity for Y to sexually abuse the children as alleged whilst he was having contact with them at his home. We accept that neither of the children repeated their allegations to the Guardian, they did not express a fear of Y in relation to sexual harm but did remember there were unpleasant incidents between their mother and father whilst they were in Country C which we entirely accept. There is no medical or any other corroborating evidence to support the allegations made against Y, and we take into account that Y is a man of good character.
In all the circumstances we do not find the allegations made against Y by X that he presents a risk of harm to the children in terms of physical, emotional, or sexual abuse proven. We accept there were some concerns in relation to his pressure on the children to tell him what was happening at home and particularly about their relationship with Z. Although this was inappropriate, to some extent it was understandable given Y had very little information about the children and their welfare. Given we cannot find the allegations proven, we find that Y does not present a serious risk of harm to either of the children.
In all the circumstances given the lack of a plan as to how the children and X could return to Country C appropriately, as well as the children's welfare interests, we do not find it is appropriate at this stage to order any summary return. We accept X's assurances that in the event we do not find Y to present a risk of harm, she will facilitate contact. We also accept the Guardian's strong recommendation that the children should rebuild a relationship with their father. In those circumstances it is appropriate for JJ to have contact with Y immediately, and there will be further contact between the children and Y via Facetime 3 x a week as well as contact on an activity basis if Y can come to Jersey.
In order to progress the case we are prepared to direct the following:
Article 29 report from CS to consider the following:
(i) Y's contact and how this can progress;
(ii) Support for the children in understanding the findings made by the Court and what this means in relation to both parents;
(iii) Support for X in understanding and accepting the findings made by the Court;
(iv) Support for Y in managing contact with the children;
(v) Recommendations in relation to the children's welfare interests;
(vi) Specific consideration as to whether either of the children require additional assistance;
(vii) Recommendations in relation to support generally for the family.
Continuing restriction so far as X is concerned in removing the children from Jersey or allowing the children to be cared for by any other person.
Y to surrender his passport to his solicitors in the event he comes to Jersey to see the children;
Continuing restriction applicable to both parents in applying for passports concerning the children, travel documents, and Y to surrender any children's passport in his possession.
Conclusion
For the reasons set out above we make the following finding:
(i) Y does not present a significant risk of harm in terms of emotional, physical, or sexual harm in relation to either of the children.
(ii) It is in the children's interests to rebuild their relationship with Y as best as they can. We have set out proposed contact arrangements which can be varied by agreement and in accordance with any recommendations made by the Children's Guardian.
We direct a report pursuant to Article 29 to address the issues set out above.
The application by Y for summary return of the children to Country C is adjourned pending further consideration. The applications by X for Child Arrangements Orders in Jersey are also adjourned pending further consideration.
Authorities
Re B [2008] UKHL 35 .
Re T [2004] EWCA (Civ) 558 .
Re W [2003] FCR 346.
Re P [2019] EWFC 27 .