A (The Mother) v B (The Father)
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | Carol Elizabeth Canavan |
| Judgment Date | 18 March 2015 |
| Neutral Citation | [2015] JRC 56B |
| Date | 18 March 2015 |
[2015] JRC 56B
ROYAL COURT
(Family)
Carol Elizabeth Canavan, Registrar, Family Division
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF EDWARD (RESIDENCE ORDER)
Advocate B. J. Corbett for the Petitioner.
Advocate C. R. Dutôt for the Respondent.
Payne v Payne [2001] 1 FLR 1052.
B v B [2002] JLR 528.
K v K [2012] 2 FLR 195.
Children (Jersey) Law 2002.
Re Y (Leave to remove from the jurisdiction) [2004] 2 FLR 330
Family — application by the respondent for residence order and leave to remove from the jurisdiction.
The petitioner in this case is represented by Advocate Barbara Corbett and the respondent is represented by Advocate Caroline Dutôt. For ease of reference in these reasons I shall refer to the petitioner as “the mother” and the respondent as “the father”.
The mother and the father were married in 2011.
Their son, Edward (this is not his real name) was born in 2011.
On the 4 th September, 2014, the father filed divorce proceedings in Indiana, USA (subsequently withdrawn).
In October 2014 the mother made an application seeking assistance under the Hague Convention (subsequently withdrawn).
The mother filed a petition for divorce on the 24 th September, 2014, and decree nisi was pronounced on the 19 th November, 2014.
On the 5 th December, 2014, the father filed a Form C100 in which he made applications for a Residence Order and for leave to remove Edward from the jurisdiction to go and live in Indiana.
On the 11 th December, 2014, the mother and father were ordered to file affidavits setting out their proposals with regard to Edward's residence, a JFCAS report was ordered and the date fixed for the final hearing of the father's applications.
On the 28 th January, 2015, it was ordered that Dr Bryn Williams and Dr Emma Peart be instructed to file a psychological report (“the report”) containing an assessment of Edward and his parents, in particular to have regard to:–
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(i) the level of attachment between Edward and his parents;
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(ii) the parenting ability of the mother and the father.
The final hearing took place on the 17 th and 18 th March, 2015, with evidence from Dr Williams via a telephone link and direct evidence from the father and the mother on the first of those days. The JFCAS officer, Mrs Jane Ferguson, gave evidence on the 18 th March, 2015, and the advocates of the parties made their submissions. Judgment was reserved but the order containing the decision was distributed on the 26 th March, 2015. The decision, which had been a very difficult one to make, was that the father's applications should be dismissed.
Both parties were born with the same physical disability. In addition, the father has dyslexia. Edward does not have any physical disability.
The mother was born in England but has lived in Jersey since the age of 1 year. She was privately educated at School 1 and School 2. After gaining a BTEC qualification in business and finance at School 3, she studied for an HND in Business and Finance at Southampton Solent University. Whilst working in the finance industry she gained the Offshore Certificate in Trust and Company Administration. She is now employed at A Limited as a senior trust officer.
The mother purchased a two bedroom flat thirteen years ago where she now lives with Edward.
The father was born in Angola, Indiana and attended school there until he was 18 although from the age of 16 he underwent practical training in physical skills and obtained a Certificate of Completion in building and trade. Although the father found it difficult to deal with paperwork and reading, he was very skilled at practical things and as he said, if someone showed him how to do something, he could do it. He had various jobs after leaving school until Edward was born.
The father's parents separated before his birth. He had never definitely ascertained who his real father was. It is clear from the report that the father and his younger half-sister had been exposed to an early history of parental neglect and abuse perpetrated by his mother and stepfather, who both abused alcohol. Concern had been raised about the standard of their care when the father and his half-sister were involved in an accident with their mother who was intoxicated. The father, then aged 7, and his half-sister were placed into the care of Mr and Mrs D, the grandparents of his half-sister. The father considers Mr and Mrs D to be his grandparents.
The father lived with Mr and Mrs D in their home until 2006 when he moved into a self-contained studio flat in their home (“the flat”). The flat had been constructed by the father and his family and comprises one room which contains the living area, sleeping area and kitchen area. There is a separate bathroom.
The facts below are not disputed. Different interpretation of the facts by the father and the mother will be dealt with later in these reasons.
The mother and father met at a Convention held in Nashville, Tennessee in July 2010. After the mother's return to Jersey the parties stayed in regular contact by telephone and developed a long distance relationship. The mother visited the father in Angola in October 2010 for two weeks. The father visited Jersey for four weeks from the 27 th December, 2010. Both parties returned to Indiana on the 31 st January, 2011, the mother's employer having agreed to give her a sabbatical for three months.
The mother did not return to Jersey but stayed in Indiana, living with the father in the flat. The parties were married on the 1 st April, 2011.
The mother was unable to work in the USA due to her immigration status until she was granted permanent residency status in July 2011. She looked for employment but was unsuccessful.
Prior to the birth of Edward the father worked at a farm store as a fork truck operator. However the mother and father agreed that he should give up his employment when Edward was born so that he could help with looking after Edward.
The mother had a difficult pregnancy carrying Edward, experiencing discomfort in her legs and hips due to her disability. Edward was delivered by C-section in 2011. It was not disputed that after the birth, the mother required and received a great deal of support from the father and also from Mr and Mrs D, in particular with regard to lifting and carrying Edward.
The mother suffered post-natal depression after Edward's birth and had been prescribed medication. The father believed that this depression had had a large impact on the mother-child relationship — she had been more emotional and had been in a different state of mind. The mother had advised Dr Williams that during her pregnancy, she had felt isolated away from her family and in pain. However she did recover from her depression although she accepted that this might have caused a problem with her bond with Edward at first.
After Edward's birth, the mother started to look for employment and applied to local banks and agencies without success. She finally found seasonal employment at the local golf course and when that employment ceased, she obtained employment as a door greeter in a local supermarket.
It was accepted by both parties in their evidence that the mother found it difficult to settle in Indiana and that she was homesick for her family in Jersey. Much was made of the mother's absences away from Edward and they are therefore set out in some detail. In February 2012 the mother went to stay with a friend for about a week. She then returned to Jersey for a visit as she had not seen her family for some time. In March 2012, the mother went to visit a friend of her father's in Tennessee for two weeks. The mother had not taken Edward on any of these trips but left him with the father because, she said, she could not lift him. In September 2012 the mother returned to Jersey to attend an interview. She successfully gained employment and returned to Indiana to prepare for the family's removal to the mother's flat in Jersey on the 20 th October, 2012. The father said in his evidence that he had agreed to move to Jersey because he had wanted to make the mother happy and to try to make the marriage work. He also said that he had not been expecting to stay in Jersey — he had thought that they might return to Indiana at some stage. He said that he had given up something he loved to do in order do something that she loved. The family went back to Indiana on holiday for Christmas in 2012 with the mother returning to Jersey for work commitments on the 1 st January, 2013. The father and Edward returned on the 4 th February, 2013. On the 8 th June, 2013, the father and Edward returned to Indiana so that the father could submit his application for a visa to allow him to live permanently in Jersey. This took until October 2013 when the mother went to Indiana to assist with the return of the family to Jersey. It was said in evidence that the longest period the father had been away from Edward was one week when he had been on a sailing holiday. Advocate Dutôt questioned the mother about her absences during Edward's early life, an average she said, of ten weeks per year. The mother accepted that she had been away without Edward but she said she had been going through a very difficult time, with the difficult pregnancy, financial difficulties and missing her family.
The family resided in Jersey until August 2014 when the father and Edward went to Indiana. They returned on the 17 th October, 2014. This trip will be referred to in more detail in paragraph 31 below.
There are three incidents which were referred to during the course of the hearing. Again, the facts of these incidents...
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