A (The Father) v B (The Mother)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailiff
• Judgment Date: 17 December 2015
• Neutral Citation: [2015] JRC 262
• Date: 17 December 2015

[2015] JRC 262

ROYAL COURT

(Family)

Before:

T. J. Le Cocq, Esq., DeputyBailiff, andJurats Marett-CrosbyandNicolle

IN THE MATTER OF SCHEDULE 1 OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF MATTHEW (THE CHILD)

Between

A (the father)

Appellant

and

B (the mother)

Respondent

Advocate M. C. Goulborn for the Appellant (Substantive Appeal).

Advocate V. Myerson for the Appellant (Jurisdictional Appeal).

Advocate R. E. Colley for the Respondent (Substantive Appeal).

Advocate J. F. Orchard for the Respondent (Jurisdictional Appeal).

Authorities

Children (Jersey) Law 2002.

Royal Court Rules 2004, as amended.

Dicey Morris and Collins, (chapter 14–030–040).

Minories Finance Limited v Arya Holdings Limited [1994] JLR 149 .

T v B [2010] 2 FLR 1966 .

Children Act 1989.

Downes v Marshall [2010] JLR 265 .

Matrimonial Causes (Jersey) Law 1949.

B v A [2010] JLR 462 .

I v J [2013] JRC 156 .

B v R [2009] EWHC 2026 (Fam) .

Al Rawi and others (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 .

Jersey Financial Services Commission v AP Black Jersey Limited, Black and AP Black Limited [2007] JLR 1 .

Mubarik v A Mubarak, Craven Trust Company Limited, S Mubarak, N Mubarak and Renouf [2009] JLR Note 5 .

Family — appeal against order made by the Family Registrar dated 22nd July, 2010.

Bailiff

THE DEPUTY

1 This is an appeal by the appellant (“the father”) against an order made by the Registrar on 22 ^nd July, 2014, (“the Order”) whereby she ordered the father to make certain payments to the respondent (“the mother”) pursuant to paragraph 1, Schedule 1 of the Children (Jersey) Law 2002 (“the Law”) for the benefit of the child.

2 The Registrar in essence ordered that:–

• (i) From the 1 ^st August, 2014, the father shall make periodical payments to the mother of £5,000 per month for the benefit of the child until the child shall attain the age of 18;

• (ii) The periodical payments shall be made by standing order into a bank account designated by the mother;

• (iii) The periodical payments shall be increased annually in line with the retail price index in Latvia (or such other cost of living index as appropriate);

• (iv) No later than 27 ^th August, 2014, the father shall pay to the mother:–

  • (a) the sum of £77,500 by way of arrears of maintenance;

  • (b) a lump sum of £13,000 to provide for the purchase of a new car and for the purchase of a computer for the child;

  • (c) a contribution of £70,000 towards the mother's legal fees;

• (v) Upon production of receipts the father shall pay the mother's travel expenses and accommodation costs incurred in attending the final hearing.

3 In his original notice of appeal filed on 5 ^th September, 2014, the father in effect appealed against all of the parts of the order. On 13 ^th March, 2015, the father filed an amended notice of appeal in which he materially limited the scope of his appeal. He is now appealing to this Court against parts 1), 4(i), 4(ii) and 4(iii) of the order on the following substantive grounds:–

• (i) The purported exercise of the Registrar's discretion to order periodical payments for the benefit of the child until he shall attain the age of 18 was wrong in that paragraph 3.1(a) of Schedule 1 of the Law provides that an order for periodical payments shall not in the first instance extend beyond the child's 17 ^th birthday unless the Court thinks it right in the circumstances of the case to specify a later date, when there was no or no sufficient reasons to extend such an order (“Ground 1”);

• (ii) The Court has no jurisdiction under paragraph 11(1) of Schedule 1 of the Law to make an order for the payment of a lump sum to the mother in respect of a child resident outside Jersey and the Registrar was wrong in law in making such an order (“Ground 2”);

• (iii) The purported exercise of the Register's discretion in ordering by way of summary assessment a contribution of £70,000 towards the mother's legal fees was wrong in that no or no sufficient details of the mother's costs had been before the Registrar. Alternatively any order for costs in the mother's favour should have been taxed under the provisions of Rule 12 of the Royal Court Rules 2004, as amended (“Ground 3”).

4 This appeal has taken a rather unusual procedural course. After the Court sat to consider these matters but before it formally handed down judgment (the draft having been circulated in accordance with standard practice) the father changed legal representative (his first legal representative having left private practice). The father's new legal adviser wrote to the Court raising arguments that, if correct, went to the heart of the jurisdiction to make the order. As a consequence the Court gave directions and sat to consider the new jurisdictional arguments.

5 Although those arguments came later in time than the arguments against the terms of the order, as they go to jurisdiction we will deal with them first.

6 During the arguments on jurisdiction (“the Jurisdictional Appeal”) the father was represented by Advocate Myerson and the mother by Advocate Orchard. During the earlier argument against the substance of the order (“the Substantive Appeal”) the father was represented by Advocate Goulborn and the mother by Advocate Colley.

The factual background

7 It is not necessary to deal with the facts of this matter at great length. In brief, the father resides in Jersey and the mother and child, at the time of the order resided in Latvia. Since that time the mother, who is a Russian national and citizen of Latvia, together with the child have taken up residence in Mauritius and it is partly as a result of that move that the ambit of the appeal was curtailed. The father is applying to the Registrar for a reconsideration of the orders for periodical payments.

8 The father and mother are not married. Their relationship started either in 2000 or in 2005 (the dates are disputed but are irrelevant for the present purposes). In 2006 the father submitted a formal acknowledgement of paternity of the child in Latvia. It is accepted that he was not in fact the biological father of the child who was the child of the mother and another man. The father paid significant sums to the mother and to her mother to build a house in Latvia of some substance. Between September 2008 and July 2009 the mother and the child lived together with the father in Jersey. The mother and child then relocated to Latvia and in 2010 the relationship ended.

9 In January 2011 the mother commenced the proceedings which are the subject of the current appeal. Those proceedings were adjourned in June 2011 when the father made an application to the courts in Latvia challenging his voluntary acknowledgement of paternity of the child. That challenge was unsuccessful both at first instance and in subsequent appeals. We will deal with the proceedings before the Latvian Courts in somewhat greater length below.

10 Subsequently the application to the Registrar was revived and resulted in a hearing on 21 ^st/22 ^nd July, 2014, and the order.

The Jurisdictional Appeal

11 The question that the Court needs to resolve in the Jurisdictional Appeal is whether or not, for the purposes of the Law, the father is the parent of the child. If he is the parent then the Court has jurisdiction, if he is not then the Court does not have jurisdiction.

12 Other arguments have been raised in connection with this part of the appeal, in particular res judicata and issue estoppel, but the starting point and, indeed, the finishing point on this aspect is whether the Court has jurisdiction. It does not seem to us that the other issues, whilst we may touch on them below, can answer the jurisdictional argument if as a matter of Jersey domestic law the Court has no jurisdiction to make the order. This view may be simply illustrated by posing the following rhetorical question: can the parties to proceedings give the Court a jurisdiction by agreement that it does not as a matter of law enjoy? It seems to us that the answer is inevitably that they cannot.

13 The departure point for considering this matter is how, under the Law, the issue of jurisdiction is stated. Under paragraph 1 of Schedule 1 of the Law it states as follows:–

“1. Orders for financial relief against parents

(1) On an application made by a parent or guardian of a child, or by any person whose favour a residence order is in force with respect to the child, the Court may at any time make an order requiring one or more of the following:

(a) Either or both parents of a child –

• (i) to make such periodical payments and for such term ,

• (ii) to secure such periodical payments and for such term ,

• (iii) to pay such lump sum, and

• (iv) to transfer such property to which the parent is or the parents are entitled ,

as may be specified in the order to the applicant for the benefit of the child or to the child personally…”

14 It is clear from this that the jurisdiction of the Court in the sense of its power is limited to the making of an order against “either or both parents”. The Court's power is discretionary.

15 The term “parent” is defined twice within the Law. Firstly, paragraph 13 of Schedule 1 of the Law defines it in the following terms:–

“In this schedule:

…

(b) except in paragraphs 2 and 12, “parent” includes any party to a marriage or civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family, and any reference to either parent or both parents should be construed as references to any parent of the child and to all of the child's parents.”

16 Secondly, in Article 1 of the Law, the interpretation provisions, “parent” is defined as to:–

“Include the father of a child whether or not he was at any time married to the child's mother and the biological father...