C v D (Family)

Counsel agreed that I am therefore bound to undertake a holistic analysis of the factual matrix put before me against the welfare of the child and to weigh up how the factors enumerated in Article 2 of the Children (Jersey) Law 2002 apply to the child, against the background of the Mother's proposal.

To what extent and in what way does the Mother's proposal serve the child's welfare and what is the alternative? I have reviewed the written and oral evidence of Dr Briggs and Mr Langford, and, of course, all of the witnesses and consider this evidence against the child's needs.

I have no doubt that the Mother's wish to return to the Country A is genuine inasmuch as she considers that life with a young child in Jersey does not offer her the same opportunities as living rent free in her mother's home in Country A. Her second affidavit which set out, as I have said above, exhaustively, the benefits of life in Country A reads as though it has been extracted from the internet. I suspect that it, broadly, has because I have no doubt that the Mother will have researched her evidence about her home country extensively.

That written evidence focusses on the very many attributes of life in the country of her birth but fails to identify in any meaningful or convincing way, how life will be better there for the child, save that access to extensive health care facilities would be easier than in Jersey. Had the child complex medical needs, this would have been a factor in favour of relocation. As it is, he is, according to Mr Langford, a healthy, happy and contented child, secure in his relationships with each of his parents. I consider that, despite what the Mother suggests about the Father not prioritising the child as she does, the child's physical needs are capable of being, and are currently amply, met by each of his parents.

I have heard the Father's concerns (echoed by Dr Briggs) about the Mother's approach to smacking and using raised voices in front of the child but I am satisfied from the totality of the evidence that the Mother is an excellent caregiver. While neither practice is condoned by the Court, I have heard nothing to suggest that the child has been the subject of any physical abuse and do not find that these differences in approach to child rearing give rise to any appreciable risk of harm to the child.

I am satisfied that the Country A has much to offer in terms of lifestyle but I consider the Mother's evidence about how it might offer a benefit to the child over and above that currently enjoyed in Jersey lacking in detail. I accept that, being located close to Country A airport, travel worldwide will become easier than flying through Jersey, but I question how much worldwide travel the child will realistically enjoy over the next sixteen or so years if he is to spend some nine weeks a year with the Father - and, presumably, most of the rest of his time at school.

I have no concerns about the Country A education system and am satisfied that the child would be appropriately educated in Country A. Notwithstanding what I have been told about the Country A education system's promotion of English, I harbour a slight concern that the child is too young, and his language skills not yet sufficiently developed, to enable him to retain English as a language when he is living with his Mother and maternal grandmother (who does not speak English). I am satisfied that his Mother can teach him her mother tongue so that he benefits, as he grows, from a second language.

Were the Mother and Father able to behave civilly and courteously to one another and had they enjoyed a history of working together in the child's best interests, the Mother's plans for relocation would be compelling. The child is a child of two heritages, that of Country A and Jersey. While the Mother could not see much of a culture in Jersey, I have no doubt that the child's best interests, with age, will be best served by knowledge, appreciation and understanding of his joint heritage, as I find that both countries have rich and diverse seams of culture to mine.

At two years old, the child is, mercifully, unaware of the bitterly contested dispute that his parents are having about what is in his best interests. His tender age gives the Court pause for thought about the application. He is too young to have discernible or reliable views on his mother's proposal but I take it from Mr Langford that a child who is happy and secure with both parents could safely be assumed to prefer his life to remain broadly unchanged.

What, therefore, would be the likely effect of the proposed changes for the child and how might these meet his emotional needs?

The proposed move would enable the child to become familiar with his Country A family and the culture, which form part of his identity. The proposal that the Mother should move into her family home would ensure that the child has the opportunity to acquaint himself with this side of his family and its history. The relatively recent and longstanding estrangement between the Mother and her family is a matter of some concern; I have to weigh up the benefits to the child of getting to know his Country A family well, not only against the loss to the child of his twice weekly visits with his Jersey grandparents but also the risk, prayed in aid by the Father, that against the background of what Dr Briggs said about the Mother's single mindedness, independence and self-reliance, any further similar falling out could result in a significant further loss for the child.

The Father's speculation that the Mother's relationship with her own family must be at risk of further fracture, given the history, is a concern. I am satisfied by the maternal grandmother's evidence that she will offer the Mother and the child a good home and I am satisfied that the Mother genuinely wants to return home. I believe that the maternal grandmother would do what she can to help the child maintain a relationship with his father, but given the Mother's determination and the history of her relationship with her family, if the Mother set her mind against contact, I am not convinced that the maternal grandmother could do anything to change the outcome.

What might have allayed any residual concern for me, given the background, would have been a better understanding about how the Mother's relationship with her family has improved over the last two years. This would have assisted in reinforcing the foundation of the Mother's application. As it is, I heard little or no evidence about how much they have spoken or communicated; I know that the Country A family said they have only seen the child and his mother face to face once, on the sad occasion of the maternal grandfather's funeral a few weeks ago. That does not seem to be a solid enough bedrock on which to build the foundation of a new life for the child in Country A.

I cannot therefore discount the risk to the child that the proposed move will not be entirely positive. I have to concern myself with the child's emotional needs. He currently has a loving and close relationship with his paternal family, and I take into account the risk to the child of losing the security and comfort of his extended family, his grandparents, and the young cousins and playmates he knows well, and weigh that up against the benefit to him of having an opportunity to get to know his Country A family.

In effect, I am being asked to weigh up the known against the relatively unknown.

Of greater significance is the evidence about the potential adverse emotional effect on the child of the loss of weekly contact with the Father at this age. The first three years of a child's life are critical in securing his or her attachment with their care givers, an attachment which underlies a young person's self-esteem and their ability to create relationships with others in due course. I consider that the child's interests and his emotional wellbeing would be best served by being given daily or near daily opportunities to cement his relationship with his father; at two, the promise of Skype or telephone contact is simply inadequate without the existence of good will and a proper working relationship between the parents and the positive promulgation by the Mother of the importance of the Father in the child's daily life. That applies equally to any future life in Jersey as to the proposal to remove the child to Country A. I consider that a failure to champion the Father by the Mother will cause the child harm and be detrimental to his wellbeing, particularly at a distance.

It is this aspect of the Mother's case which is most troubling. I accept that each of the parents have different personalities and, indeed, approaches to child rearing. The Mother struck me in evidence as highly intelligent, logical and self-assured but her evidence was lacking in the emotional intelligence and warmth which I perceived in the Father. I accept that such an impression may have been created by cultural differences or language difficulties but the impression has not, in any event, carried any weight in my decision making.

I consider that the child will benefit from remaining in close contact with both parents over the next few years, each offering him benefits from their complementary and differing qualities. It is sad that the child's parents do not appear, any longer, to be suited to one another.

I remain concerned that if leave is granted, the child will not be given a real opportunity to retain and develop his relationship with his father. Had it not been for the parents' clear inability to communicate sensibly about the child and, agree, for example, generous contact, I might have been persuaded that the Mother should be given leave to remove him from the jurisdiction. However, the Mother's negativity towards the Father expressed in written and oral evidence, suggested that the generous contact offered would be undermined by the Mother's ill-concealed resentment of the Father and what she sees as his inadequacies as a parent.

It is in this respect that the Mother's recent history with her parents informs my decision rather than the Father's concern that the Mother will fall out with her family; what Dr Briggs and Mr Langford expressed surprise about was the manner in which the Mother was able to cut off her relationship with her family for such a long period. This was described as unusual. The Father's experience of family relationships appears altogether more positive. The Mother's failure to speak to her family was certainly seen as unusual by the Father whom, the Mother deposes, put her under pressure to contact and talk to them. The Mother was, until the child was born, determined not to do so and I must therefore treat seriously the fear that she will take an equally robust approach to the Father given the suggestion by Dr Briggs that there appears to be an element of unresolved resentment simmering below the surface of the dispute.

I was not satisfied that the Mother's application was intended to thwart contact and to punish him, as the Father suggests, nor do I accept that the Mother would harm the Father as he posited, were he to travel to the Country A. Her threats, however ill-considered, were likely founded on frustration with the Father given her rather more excitable temperament, as evidenced in some of the text exchanges between the parents, which I read.

I suspect that if leave were granted, the Mother would intend, at least at the outset, to facilitate contact in the manner she has proposed but I fear that any disagreement or failure by the Father to meet the Mother's expectations would result in a diminution or cessation of contact. Both parents gave evidence that this had happened previously. At a distance of some thousand miles, such an event would be catastrophic for the child, particularly at an age when it would be easy to erase memories of his Father from his young mind.

What the Mother has said which I find convincing is that she will find life easier and cheaper in Country A. The absence of any obligation to pay rent and child care on tap in the form of her mother (and, possibly, her sister), together with lower cost of living, makes Country A an appealing prospect for her, particularly as she has already received the offer of a full time job working for her friend. She told the Court that she felt she could better support the child's material needs in Country A and given her self-reliant nature, I have little doubt that she would succeed. However, I am also convinced that she could succeed just as well in Jersey.

When asked in cross examination about her job prospects in Jersey, the Mother gave evidence to the effect that she was earning about £2,000 p.c.m. gross before she gave up work to have the child. She considers that in order to have the same standard of life as she would have in Country A, she would need to work two jobs, but would not be able to work more than thirty hours per week given the child's needs. She considers that her rent alone in Jersey swallows a significant proportion of any salary. She has not looked for work since leaving the business she ran with the Father.

The Mother explained to the Court that she had remained in Jersey for some eleven years before the child was born because " Jersey allowed me to save and travel". This was at odds with her evidence about the cost of living in Jersey, but I do, of course, accept that she now has the child to consider. Much of the evidence which the Mother gave in her first affidavit focussed on the Mother's financial position and I gleaned the impression that if the Father had made efforts to improve the Mother's financial position, this application might not have been made. She said, in terms, that while she was no longer angry with the Father, she would not forget that he had left the child and her in a parlous state. I find that while the Mother may be struggling to meet the child's needs, his material, physical, and needs are being met and that there are work opportunities for the Mother here in Jersey, particularly if she accepts the offer of practical help for child care made by the paternal grandmother. I reach this conclusion because the Mother gave evidence, in any event, that she would work full time in Country A and rely on nursery or her mother's help for child care and I cannot disregard the fact that she has such options here in Jersey.

The Father has offered to pay for nursery to enable her to work. In other respects, the Father's evidence about the practical and financial help that he might offer the Mother was unhelpful. He maintained that the business was now doing well, such that he could afford to take extra time out to look after the child, and put forward a proposal that he could afford to meet the child's school fees for a private school (and nursery until the child started school) but when asked what he could do to make the Mother's life better, he told the Court that he did not know what he could currently do, and suggested that he might better be able to assist when he had repaid the loan he had taken out to pay the Mother for her share of the business.

This response did the Father no credit. I am not asked to determine (nor am I in a position to determine) an appropriate level of maintenance for the child; the Father's failure to make a proposal to alleviate some of the financial pressure on the Mother suggested that he was letting his feelings about the Mother (and, possibly, her application) interfere with the child's welfare. I was also dissatisfied with the Father's responses as to why he had not helped out the Mother with the care of the child on the two occasions she mentioned. I found his response that it did not fit in with his (then) extant plans for his social life unsatisfactory. I took the Father's responses as evidence that he, too, was capable of putting his feelings about perceived poor treatment by the Mother above the child's needs but, on balance, and after reviewing the unnecessarily unpleasant messages from the Mother exhibited to the Father's evidence, I determined that the Father, who otherwise seemed affable and easy going, was acting out of slight rather than malice.

After weighing up the evidence and considering as I have above how the proposed move meets the child's welfare, I have determined that the application for leave to remove must be refused. This was neither an easy decision nor an obvious outcome despite the evidence of Dr Briggs and the JFCAS officer. On balance, I find that the compelling factor is the risk of emotional harm to the child which would inevitably result from being at a great distance from his father at this age and without any certainty that the Mother would promote and foster in the child a sense of the importance of the other parent.

The child will remain, for now, in Jersey and I make a residence order in the Mother's favour which will enable her to travel to see her Country A family with the child, without the Father's permission, (which I understand he has on occasion failed to give) so that the child can benefit from a nascent relationship with his maternal family. The Father's evidence that, if he had the benefit of a shared residence order, his mother would have the child when he was at work did not satisfy me that the Father had made a cogent plan in the event that a shared residence order was made.

Accordingly, I am granting the Mother (alone) residence and am ordering contact in favour of the Father for two overnights and one evening per week, in line with the recommendation of the JFCAS officer. With the threat of the removal application now removed for, I hope, the foreseeable future, I expect that the parents will now take steps whether through mediation or family therapy to re-establish a working relationship for the child and I trust that they can agree the nights for contact between themselves.

If he can afford to pay for nursery or private school, I suspect that the Father can make additional financial contributions of some sort now to the Mother, if not because he realises that the child would benefit from having a happy and settled primary carer, then to diminish the risk of a future application by the Mother for leave to remove when the child is somewhat older, being successful.