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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> F v H [2001] JRC 163 (27 July 2001) URL: https://www.bailii.org/je/cases/UR/2001/2001_163.html Cite as: [2001] JRC 163 |
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2001/163
ROYAL COURT
(Samedi Division)
27th July 2001
Jurisdiction of the Royal Court
to make an
order
concerning
minor
children
who
do
not at the present time live in Jersey
and
where
there are no matrimonial proceedings in Jersey.
Advocate C.G.P.
Lakeman
for
the Representor
and the Respondent
judgment
the deputy
bailiff:
1.
This
application raises the question of whether
the Royal
Court
has jurisdiction to
make an order
concerning
minor
children
who
do
not at the present time live in
Jersey and
where
there are no matrimonial proceedings in Jersey.
We
now give our reasons
for
the
decision
which
we
announced at the end of the hearing.
The factual
background
2.
The
representor and the respondent were
married. They lived in England and had three
children,
all of
whom
remain minors.
They are now
divorced
and the mother (representor)
wishes
to remarry and
to move permanently to Jersey to live
with
her new husband. In matrimonial proceedings in the
Family
Division
of the High
Court
of Justice of England and
Wales
the
Court
made an
order that the
children
should reside
with
their mother. It also gave her leave to remove the
children
out of England and
Wales
permanently to Jersey in order that they
might
come
with
her to live in this Island.
3.
The High
Court
is however anxious to ensure that the
children
maintain
contact
with
their
father,
who
will
remain living in England. It therefore made
detailed
orders
for
contact
(access in Jersey terminology) between the
father
and the
children
once
they are living in Jersey. Some of
this
will
take place in Jersey but access
will
also take place in England.
4.
The High
Court
is
clearly
anxious to ensure that these access provisions
will
be
capable
of easy enforcement. In the event
(of
which
there is no suggestion) of the mother refusing access, the High
Court
did
not
wish
to expose the
father
to the problem of having to apply
de
novo
to this
Court
for
an order
for
access
with
the
consequent
risk that the
Court
would
look into the situation and possibly make no order
for
access or make a
different
order
from
that made by the English
Court.
All parties
wish
the position to be that
the access arrangements made by the High
Court
will
be enforced in a quick and
straightforward manner by this
Court
should the need arise.
5.
Accordingly
the order of the High Court
requested this
Court
to provide assistance by
making, if possible, an order mirroring the order of the High
Court
and
further
expressed its order to be
conditional
upon the mother obtaining a mirror order
from
this
Court
prior to the
children
being removed
from
the English
jurisdiction. This is apparently
common
practice in such
cases.
6.
The
mother, with
the
consent
of the
father
(they are both represented
for
today's purposes by the same advocate) now applies
for
a mirror order
i.e. an order
which
replicates exactly the provisions
for
residence and access
set out in the order of the High
Court.
The
Court
has no
doubt
that such an order
would
be in the best interests
of the
children
and of the parties.
If it
concludes
that it has jurisdiction to
do
so, it
would
have no
hesitation in making such an order.
The question is
whether
we
do
have jurisdiction to make an order
regulating the residence of or access to these
children
when
there are no
Jersey matrimonial proceedings and the
children
do
not at present live in
Jersey, nor have they previously had any
connection
with
the Island.
Jurisdiction
7.
There is
no direct
Jersey precedent. However
the equivalent position in England
was
considered
in the
case
of Re P
(2000) 1
FCR
349. The background to
that
case
was
that an order
concerning
access had been made by a
court
in the
United States of America. That
order requested that a mirror order be made in the
Family
Division
in England
so that the order made by the American judge
would
be
capable
of easy
enforcement. There
was
a particular
difficulty
facing
the English
court
because of the provisions of section 2 of
the
Family
Law Act 1986
which
provided that the
court
could
not make an order
under its inherent jurisdiction giving the
care
of a
child
to any person or
providing
for
contact
with
that
child
unless the
child
was
habitually resident
in England and
Wales
or
was
present in England and
Wales
on the
date
of the
application
for
the order. In that
particular
case,
the
child
had been habitually resident in the United States
and
was
not resident in England and
Wales
at the
date
of the application.
8.
Despite
this, Singer J held that the
Family
Division
had jurisdiction to make a mirror
order of the American order. His
findings
are
conveniently
summarised in the head note as
follows:-
"Held - For
many
years English judges had
customarily
invited undertakings to govern in Hague
Convention
cases
the particular arrangements
for
children
and parents returning
after a
wrongful
removal or retention to the place of the
children's
habitual residence, and had invited the use of mirror orders in
foreign
courts
both in respect of non-
Convention
countries
and on applications
for
leave to
remove permanently
from
England to live abroad.
Where
a
foreign
court
was
making
provision
for
contact
to take place in another jurisdiction, in the present
case
England, it
was
important that there should be the possibility
for
the
orders to be made in advance of and against the arrival of the
child
so that
the parties and
foreign
court
could
have
confidence
that if either of them
sought to take advantage of the presence of the
child
in the
contact
jurisdiction, the
court
there
would
not lend itself to any attempt. Therefore as a matter of
common
sense,
of
comity
and of public policy, the High
Court
should have the ability to make
orders of the sort
which
the English judges had
frequently
in past years
invited other
courts
to make. As a
mirror order
was
intended only to have effect
while
the
child
was
present in
the jurisdiction and, even
without
the mirror order, the inherent jurisdiction
of the
court
to make an order that
would
be otherwise prohibited under s
1(1)(
d)
of the 1986 Act
was
retained if, in the
words
of s 2(3)(b) 'the
child
concerned
is present in England and
Wales
on the relevant
date
and the
court
considers
that the immediate exercise of its powers is necessary
for
his
protection', the
court
had the jurisdiction to make an order
which
expressly by its terms only had
currency
as
far
as the English
courts
were
concerned
while
the
child
was
present in this jurisdiction
for
the purposes of
contact
for
which
the mirror order provided. ...The essence of the
order in the present
case
was
that
it
was
only to take effect each time the
child
came
to this jurisdiction
for
the purposes of the
contact
thereby regulated, and
would
cease
to have effect
each time the
child
left the jurisdiction as provided
for
by that
contact
order."
9.
On the
assumption that the children
were
physically present in Jersey,
would
the
Court
have jurisdiction to make an order
concerning
their
care
and
control
or access
to them? Again there is no
direct
precedent that
counsel
has been able to
cite
to us and
we
do
not have the exact
equivalent of the English
wardship
proceedings. Nevertheless, in our judgment, the Royal
Court
does
have an inherent jurisdiction to make orders
concerning
the
welfare
of
children
within
its jurisdiction.
We
would
refer briefly to a number of
factors
which
give support to this
principle.
(i)
The Court
has asserted a power to make orders
concerning
access to illegitimate
children
(see Tomas --v- O'Shea (1987) 88 JLR N-12). Similarly it has historically assumed a
power to award maintenance
for
the upkeep of an illegitimate
child
(pension
alimentaire) against the
father.
These are only explicable on the basis that the
Court
has
considered
that it has power to make orders necessary
for
the
welfare
of a minor.
We
have little
doubt
that, in the event
of the mother of an illegitimate
child
dying,
the
Court
would
consider
that it
had jurisdiction to
determine
who
should have
care
and
control
of the
child
in
the event of a
dispute
arising.
(ii) The Court
has regularly granted injunctions to
restrain a parent
from
removing a
child
from
the jurisdiction even
where
there
are no existing matrimonial proceedings.
This
can
only be on the basis that the
Court
has assumed a power to
do
what
is necessary to protect the
child's
best interests.
(iii) In Re an Infant
(1995) JLR 296 concerned
an agonising issue as to
whether
to
discontinue
certain
medical treatment of a
five
year old
child
who
had
fallen
into a
swimming pool and
who
was
being kept alive only by means of a life support
system. The
Court
held that,
although such matters
were
primarily
for
the parents of the
child,
the
Court
had jurisdiction to intervene in the best interests of the
child.
(iv) Although now partially regulated by statute, the
origin of the system of tutelles (whereby
persons are appointed to manage the
property of minor
children)
lies in the
customary
law. The system
was
therefore
developed
by
the Royal
Court
acting presumably under its inherent jurisdiction to safeguard
the interests of
children.
(v) Similarly the Royal Court
developed
the system
of appointing
curators
to manage the affairs of persons
who
were
mentally
incapacitated and therefore not
capable
of managing their own affairs. This too must have been on the basis of
the
Court
assuming an inherent jurisdiction to act to safeguard the
well-being
of persons not of
full
capacity.
10. We
have of
course
been referred to the
case
of Mayo
Associates S.A. --v-
Cantrade
Private Bank of Switzerland (
C.I.)
Limited
(1998) JLR 173. That
case
concerned
the nature of the inherent jurisdiction of the Royal
Court.
The
Court
of Appeal
made it
clear
that, in relation to procedural aspects, the touchstone
was
one
of necessity; the
Court
could
only assume a power if it
was
necessary
for
it to
do
so. However the
Court
accepted
that there
was
a second
category
of powers
which
fell
under the label of the
inherent jurisdiction of the
Court.
Thus at 190 the
Court
of Appeal said:-
It is clear
therefore that the
Court
of
Appeal accepted that there
was
an inherent jurisdiction to act in protection of
minors although it
did
not of
course
have to
consider
the extent of that
jurisdiction. However the
jurisdiction of the Royal
Court
cannot
in our judgment be any less than that of
the High
Court
in England,
which
was
described
by Sir Jack Jacob in an article
entitled "The inherent jurisdiction of the
court"
in
Current
Legal
Practice 1970 at 23 as
follows:-
"The court,
on behalf of
the sovereign as parens patriae, exercises an inherent and peculiar
jurisdiction in relation to infants,
for
example, in respect of their
wardship
and in respect of any
compromise
or settlement affecting their
property.""
11. Finally
we
were
referred to the
case
of Lane
--v- Lane (1985) 86 JLR 48
where,
on the basis of the
doctrine
of
comity,
the Royal
Court
made an order giving effect in Jersey to an order of the
Family
Division
of the High
Court
of England and
Wales
concerning
ancillary
financial
relief in
connection
with
a
divorce.
12. We
draw
support
from
the
foregoing
matters
for
the principle that this
Court
has an inherent jurisdiction to protect and make
orders
for
the
welfare
of minor
children.
Such orders may
deal
with
matters such as
care
and
control,
access,
education, removal
from
the Island and medical treatment but that is not
intended to be an exhaustive list.
In general the jurisdiction is limited to
children
who
are ordinarily
resident on the Island or physically present in the Island at the time of the
application because jurisdiction in personam is essentially a
territorial jurisdiction.
13. However, for
the reasons set out so
clearly
by
Singer J in Re P,
we
conclude
that, like the English
Court,
this
Court
should, as a matter of
common
sense, of
comity
and of public policy, have the
ability to make mirror orders
where
it is known that a
child
is about to
come
and live in the Island and
where
the making of such an order has been requested
by the
court
of primary jurisdiction.
We
see no reason of public policy or otherwise to
deny
this
Court
the
jurisdiction to make such a beneficial order and, like Singer J,
we
would
justify it on the basis that the order
will
only take effect
when
the
child
is
within
the jurisdiction of the
Court
and
will
only be made in support of an
order made by a
court
having appropriate jurisdiction over the
child.
It
would
not therefore be an exorbitant
jurisdiction to assert. On the
contrary
it
would
enable all parties to plan their
future
in the knowledge that
the
Court
would
not lend itself to any attempt to take advantage of the presence
of the
child
in Jersey in order to overturn
decisions
as to
care
and
control
or
access made by the
court
of primary or original jurisdiction.
14. It was
for
these reasons that
we
concluded
that
the
Court
does
have jurisdiction to make a mirror order and, as
we
have already
said,
we
considered
that to
do
so
would
be in the best interests of these
children.
We
accordingly ordered
that the
children
should reside
with
their mother (as is provided by the
English order) and
we
made provision
for
access to the
children
in identical terms to that (under the
label of
contact)
ordered by the High
Court.
Furthermore
the parties each gave undertakings to this
Court
in
identical
form
to the undertakings
which
they gave to the High
Court.