A v B
| Jurisdiction | Jersey |
| Court | Court of Appeal |
| Judge | Anderson JA |
| Judgment Date | 26 May 2016 |
| Neutral Citation | [2016] JCA 98 |
| Date | 26 May 2016 |
[2016] JCA 098
COURT OF APPEAL
Sir David Calvert-Smith., President;
Robert Logan Martin, Q.C., and David Anderson, Q.C.
In the Matter of A v B (Family)
Advocate V. Myerson for the Appellant
Advocate J. F. Orchard for the Respondent.
A v B (Family) [2015] JRC 262.
Children (Jersey) Law 2002.
Royal Court Rules 2004.
United Kingdom Children Act 1989.
J v J (A Minor: Property Transfer) [1993] 2 FLR 56.
T v B [2010] 2 FLR 1966.
Matrimonial Causes (Jersey) Law.
Children Act 1989.
Adoption (Jersey) Law 1961.
In the matter of the representation of Gutwirth [1985–86] JLR 233.
Brunei Investment Agency and Bandone SDN BHD v Fidelis Nominees Limited and seven others [2008] JLR 337.
Re Luck [1940] Ch 864, 871–2.
Dicey, Morris and Collins, The Conflict of Laws (15th edition. 2012).
Latvian Civil Code.
1980 Hague Child Abduction Convention.
1996 Hague Child Protection Convention.
D. Adams, “Conceptualising a Child-Centric Paradigm”, Bioethical Enquiry (2013) 10: 369–381).
M v W (Declaration of Parentage) [2006] EWHC 2341 Fam; [2007] 2 FLR 270.
Marriage and Civil Status (Jersey) Law 2001.
Carl Zeiss Stiftung v Rayner & Keeler (No.2) [1967] 1 AC 853.
Pell Frischmann Engineering Ltd. v Bow Valley Iran Ltd [2007] JRC 105A.
Foreign Limitation Periods Act 1984.
Rowe v Rowe (1980) Fam 47.
Re M (Child Support Act: Parentage) [1997] 2 FLR 90.
Salvesen v Administrator of Austrian Property [1927] AC 641.
Family — Appeal against judgment of the Royal Court dated 17th December 2015
This is the judgment of the Court.
The appellant appeals against a judgment of the Royal Court (Le Cocq, DB and Jurats Marett-Crosby and Nicolle) of 17 December 2015 ( A v B (Family) [2015] JRC 262. That judgment partially upheld an order made by the Registrar on 22 July 2014, ordering the appellant to make certain payments to the respondent for the benefit of her child, pursuant to Article 15 of and Schedule 1 to the Children (Jersey) Law 2002 (“the Law”).
The sole substantive issue on this appeal is whether the appellant is to be treated as a parent for the purposes of Schedule 1 to the Law. If he is not, it is common ground that the Registrar had no power under the Law to order the disputed payments.
We take the factual background from a chronology helpfully prepared for this appeal by the appellant, on which the respondent has indicated certain limited areas of disagreement. Though there are disputed matters of fact, none of them is relevant to the resolution of this appeal.
The appellant, a Jersey resident, met the respondent, a Russian national and Latvian citizen, in Latvia in late 2000. They began a relationship and he funded the purchase and renovation of a flat for her in Riga. The relationship ended at some point between August 2002 and early 2003. The respondent, who was then a student in her early 20s, conceived a son in October 2002. The son was born on 30 June 2003 and named Matthew (this is not his real name). C, a Latvian, was originally registered as the father.
The parties now agree (as they did in the Latvian proceedings commenced in 2011, to which we refer below) that the appellant is not Matthew's biological father. But the Latvian courts declined to make a finding to this effect; and as will be seen, the appellant was asserted to be the biological father in the application that he made in June 2006 for recognition of his paternity. In view of those facts and in the absence of DNA evidence (which the appellant rejected the opportunity to provide in the Latvian proceedings), we do not consider that it is open to the courts of this jurisdiction to make any finding of biological paternity.
In November 2005 the appellant's wife died. The appellant and the respondent resumed their relationship and began to take steps for a future together. In June 2006, they made a joint application in Latvia for recognition of the appellant's paternity of Matthew. It will be necessary to describe this application in more detail below. In December 2006, the declaration of paternity was registered and the appellant was registered on the birth certificate as Matthew's father. In September 2008, the respondent and Matthew moved to Jersey to be with the appellant. Matthew attended private school in Jersey.
In 2010 the parties became engaged, but there was no marriage. In July of that year the respondent left Jersey, with Matthew, and returned to Latvia. It became apparent that she did not intend to come back. Matthew was enrolled in a Latvian School. The parties then became embroiled in litigation on two fronts:-
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(i) In December 2010 the respondent started proceedings in Jersey (“the Jersey proceedings”), seeking financial relief from the appellant under section 15 of and Schedule 1 to the Law.
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(ii) In April 2011 the appellant filed an application in Latvia, challenging the paternity recognition (“the Latvian proceedings”). In June 2011, proceedings in Jersey were adjourned pending the outcome of the Latvian proceedings. The applicant's challenge in the Latvian proceedings was rejected by the Zemgale District Court in March 2012, by the Riga Court in November 2012 and by the Latvian Supreme Court in March 2013.
The Jersey proceedings then resumed. By order of the Royal Court, a Latvian lawyer, Advocate Sanita Rubene, was jointly instructed by the parties and reported in September 2013 on the financial obligations of the appellant to provide maintenance payments under Latvian law. In March 2014 the Registrar ordered interim maintenance of £2,500 per month to be paid by way of contribution to Matthew's maintenance and his school fees. In July 2014, she ordered payments of £5,000 per month for the benefit of Matthew until his 18th birthday, together with various further sums. Numerous Acts of Court followed, culminating in the Royal Court's decision of December 2015 which is the subject of this appeal.
Meanwhile, the respondent moved to Mauritius with Matthew (now 10 years old) in around April 2014, and was employed there as an intern at an architect's practice. She married G in Mauritius in September 2014.
As the Royal Court recorded, in the judgment under appeal:-
“ We are further informed that the Father has taken steps before the courts of Latvia in reliance on his status as the child's father in that he has sought contact, residence and an order seeking the return of the child to Latvia from Mauritius even though he, the Father, did not live in Latvia.”
This Court has been shown translations of Latvian court documents that demonstrate this, dating from between October 2014 and July 2015. The appellant has thus sought to use his status under Latvian law in Latvia to assert parental rights over Matthew. He denies however that this status can or should be recognised in Jersey as a source of financial obligations in relation to the child.
This appeal turns on whether the Jersey courts had the power to order the appellant to make financial provision for Matthew. The Registrar exercised that power, and the Royal Court held that she was entitled to do so. The appellant, represented by Advocate Myerson, challenges that ruling. In essence, his case is that he is not a “parent” against whom an order for financial relief may be made under the Law; and that the reliance of the courts below on his declaration in Latvia and the judgments of the Latvian courts is in any event misplaced.
In that context, three issues (or groups of issues) present themselves for decision:-
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(i) Is the appellant barred from making his case?
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(ii) How is the Law to be interpreted?
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(iii) What is the relevance of the paternity declaration and/or the Latvian court decisions?
We consider each in turn.
The respondent submits that by virtue of Rules 6/7(4)(f) and 6/7(8) of the Royal Court Rules 2004, the appellant is deemed to have submitted to the jurisdiction of the Royal Court to make orders against him in the proceedings, and is therefore barred from challenging the jurisdiction of the Court to make the contested orders.
Rule 6/7 is headed “Dispute as to jurisdiction”. Rule 6/7(1) states that the appearance of a party to any proceedings before the Court shall not be treated as a waiver of any irregularity in the proceedings or service thereof or in any order giving leave to serve the proceedings out of the jurisdiction. Rule 6/7(3) sets out specific procedures for disputing the jurisdiction of the Court “by reason of any such irregularity as is mentioned in paragraph (1) or on any other ground”. Rule 6/7(4) sets out the types of order that may be applied for under Rule 3, including an order:-
“ (f) declaring that in the circumstances of the case the Court has no jurisdiction over that party in respect of the subject matter of the claim or the relief or remedy sought in the proceedings”.
Rule 6/7(8) provides that a person who has failed to make an application in accordance with paragraph (3) shall be deemed to have submitted to the jurisdiction of the Court in the proceedings.
The respondent submits that by failing to take issue with the jurisdiction of the court within the timeframe set out in the Rules, the appellant should be deemed to have accepted the jurisdiction of the Court to deal with the matter, following Rule 6/7(8), and is debarred from arguing otherwise.
We have no hesitation in rejecting this submission. The appellant is domiciled and resident in Jersey. Despite taking every point that has been open to him in these proceedings, he has never contested the jurisdiction of the Jersey courts to adjudicate on the subject matter of the respondent's claim, or to order relief pursuant to Schedule 1 to the Law. He contests the claim on the substance:...
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C v C
...Robert Logan Martin, Q.C. and himself, dismissed the appellant's further appeal against it (reported sub nom. In re A v. B (Family), 2016 (1) JLR 393). It is against this decision that the appellant brings this yet further appeal to the Board. Facts 5 The appellant, who is now aged close to......