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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> F v G (Family) [2022] JRC 206 (03 October 2022) URL: https://www.bailii.org/je/cases/UR/2022/2022_206.html Cite as: [2022] JRC 206 |
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Family
- appeal against the
decision
of the
Family
Registrar
Before : |
Sir Timothy Le |
Advocate E. L. Hollywood for
the Appellant.
Advocate B. J. Corbett
for
the Respondent.
judgment
the bailiff:
1.
This is an
appeal by F
("the Appellant") against a
decision
of 16th
August 2022 of the Registrar of the
Family
Division
("the
Registrar") to return the
Child
to the
care
of her mother, G ("the
Respondent").
2.
We
take
the background of this matter
from
the judgment of the Registrar
which
is
contained
in a
document
entitled 'Ex Tempore Reasons' (the
Reasons). It is to be noted,
however, that those reasons
were
not handed
down
to the parties at the time
that the
decision
was
made but
were
forthcoming
some short time
thereafter.
3.
The
Appellant and the Respondent and the Child
usually live in
Country
A. The Appellant and Respondent
were
married
in 2010 before the
Child
was
born and they separated in 2011 and
were
divorced
in June 2012.
4.
At the
time of the application to the Registrar, the Child
was
living in Jersey
with
the Appellant and his
family,
some of
whom
are Jersey resident.
5.
The Respondent
obtained a resettlement visa for
herself and the
child
in June 2022
which
enabled them both to leave
Country
A and go to live in
Country
B. The
Child
was
unable to travel to
Country
B
with
the Respondent because, on 25th June 2022,
without
the Respondent's
agreement, the
Child
was
removed
from
Country
A by the Appellant's
mother. The Respondent
was,
at the
time, the legal
custodian
of the
Child.
6.
The
Respondent had sought to establish where
the
Child
was
and also travelled to
Country
B to
complete
the resettlement process
which
could
not be
finalised
because the
Child
was
not physically in
Country
B.
The Respondent established that the
Child
was
located in Jersey
with
the
Appellant and his
family.
7.
On 10th
August 2022, the Bailiff made a Prohibited Steps Order on an ex parte
basis to the effect that the Child
could
not be removed
from
Jersey except by
the Respondent and the Bailiff then transferred the matter to the Registrar
for
an urgent
determination
as to
whether
the
Child
should be returned to the
Respondent. It is
from
that
determination
that this appeal lies.
8.
The
Registrar had before her a number of documents
setting out
complaints
by the
Appellant about the alleged behaviour of the Respondent and
complaints
by the
Respondent about the alleged behaviour of the Appellant. The Registrar heard evidence
from
neither the Appellant nor the Respondent, and the matter
was
disposed
of at
speed
during
the
course
of half a
day.
We
are advised that the Registrar
indicated that she
was
leaving on holiday thereafter.
9.
The only
evidence before the Court
that the Registrar heard
was
that given by the
guardian appointed
for
the purposes of the proceedings, Mrs Elsa
Fernandes,
who
had had a short opportunity to meet
with
the
child.
10. We
do
not propose to set out the Reasons in
full
but
we
have, of
course,
considered
the entirety of them.
11. We
do,
however, note that in the Reasons the
following
is
contained:
12. The Appellant argues that this is not entirely
correct
as it ignores the evidence provided as to the ability to extend the
visa and the likelihood, on the basis of information provided by the
Immigration Service, that a solution
could
be
found.
13. We
pause to say that there
was
some issue about
whether
there
was
in
fact
any abduction.
It is the Appellant's
case,
and
was
indeed his
case
before the
Registrar, that the
Child
herself had initiated
contact
with
the
Appellant's mother and asked her to
come
and get her and take her away
because of poor quality of Respondent's
care
of her. The Respondent argues that this
was
an
abduction. As to
whether
this
was
an abduction in the strict sense, therefore, is not
clear,
but
clearly
the
Child
was
removed,
whether
at her express
wish
or not,
from
her lawful
custodian.
14. The Appellant argues that such urgency was
not
apparent given the possibility of extending the visa application process but,
that in any event, urgency
could
not prevail over the necessity of acting on
complete
information in the best interests of the
child.
15. The consequence
of this, so the Appellant
points out, is that the Registrar had before her untested evidence
which
was
hotly
disputed
by each party. That
evidence
was
relevant in ascertaining the
welfare
of the
Child.
16. The Appellant observes that the Registrar did
not appear to acknowledge the
fact
that this removal
was,
so it is alleged,
done
at the
Child's
own request.
17. Mrs Fernandes,
quite reasonably, told the
Registrar that she simply
could
not say on such a short meeting
whether
the
Child's
wishes
and
feelings
as expressed to her
were
part of her lived
experience or a rehearsal of
what
she had been told to say.
18. It is however to be observed that, what
the
Child
did
tell Mrs
Fernandes
appears to be
consistent
with
the
Appellant's
case
not only about the
care
the
Child
was
receiving, but
also the
fact
that the
Child
had asked the Appellant's mother to
come
and
collect
her.
19. The Appellant understandably makes these
observations but also points out that, because Mrs Fernandes
had not been able
to reflect on the Appellant's statement, she had simply not had the
chance
to
consider
its
contents
which
included references to the
Children's
Service in
Country
A or the
concerns
raised as to the
Child's
parenting and health.
There are items of Mrs
Fernandes'
evidence missing
from
the
Reasons, so the Appellant submits, specifically that the
child
described
seeing
the Respondent smoking, taking
drugs
and
drinking
during
the
day,
and also
taking a spoon to take
drugs
following
which
her behaviour towards the
Child
would
change.
20. The Appellant submits that [redacted] the day
after the reference had been made.
21. The Appellant points out that these
observations were
made
without
having heard evidence about these matters
from
the Appellant, nor indeed
from
the Respondent.
22. The Appellant argues that the status quo was
given
far
too much
weight
by the Registrar.
23. The Appellant's grounds of appeal are
stated in summary form
in the skeleton argument and are referred to in part in
the
comments
above on the Reasons.
24. In brief, the Appellant argues that the
Registrar should have inquired further
and
did
not act in the bests interests
of the
Child
by proceeding
without
evidence and in the light of such serious
allegations. She had proceeded on
the basis of urgency and on upholding the status quo and allowed those
considerations
to overshadow a proper
consideration
of the
Child's
best
interests and
welfare.
25. In the light of the decision
of the Registrar,
the Appellant, through
counsel,
made an immediate application
for
a stay
pending appeal.
We
are advised that
this stay
was
refused by the Registrar and she
did
not provide any reasons to
counsel
for
her refusal to
do
so.
We
are informed that the Registrar stated 'I see no grounds to
order a stay'.
26. It is to be observed that the Appellant then
sought to renew his application for
a stay by an urgent application to this
Court
which
was
listed by agreement by
counsel
and the
Court
for
8.30am the
following
morning. The Appellant
worked
on an appeal
case
for
that purpose and the
following
morning the
Court
heard argument relating to this application
for
a stay.
When
the Appellant, through
counsel,
had
finished
submissions the Respondent's
counsel
informed the
Court
that the
Child
had already been removed
from
the jurisdiction of the
Court
and
was
now
with
the Respondent in
Country
B.
27. The Respondent asserts that the Registrar was
reasonable in
dealing
with
the matter by abridging time and not hearing
evidence. The Respondent argues
that the matter
was
one of great urgency and asserts that it
was
always
intended that the hearing
would
be substantive. The Respondent emphasises that there
was
sufficient evidence that the
Child
had been taken
from
the Respondent's
care
and
further
asserts that
welfare
concerns
are not relevant in such
circumstances.
It
was
always
intended that the
final
hearing and indeed the Act of
Court
makes
clear
that
the application 'shall be heard' at 9.30am on Tuesday 16th
August 2022.
28. The Respondent further
argues that the
Registrar
did
treat the
Child's
welfare
as paramount and acknowledged
that
welfare
had been raised by both parties, but that the
welfare
considerations
should be
dealt
with
at another time. This
clearly
was,
so the Respondent
contends,
an abduction
case.
Many
of the
welfare
issues raised by the
father
in his
case
had no supporting independent
evidence and there
were
further
allegations that in some
way
the
father's
mother had sought to bribe social
workers
to make adverse reports against the
Respondent. The Respondent
denied
allegations that she had ever taken
drugs
or similar.
29. The Registrar had given due
weight
to the
child's
expression of
wishes
but
was
not
convinced
that the
child's
true voice had been heard and accordingly, on the basis that the
child
may have
been primed to say the things that she
did,
was
entitled to
disregard
her
evidence. The
child
had not resisted
physically going
with
her mother.
30. The Registrar had, so it was
argued, given
appropriate
weight
to the status quo.
31. The test on appeal from
a
decision
of the
Registrar is
well
settled and set out in the
case
of
Downes
v Marshall
[2010] JLR 265 in
which,
at paragraph 12 of the judgment, the
Court
said:
32. A number of authorities and legal provisions
have been put before us in connection
with
this appeal.
33. Rule 4 of the Children's
Rules 2005,
dealing
with
the overriding objective,
was
put before us.
We
do
not need to set this out in
detail
other than the
fact
that it
clearly
requires the
Court
in proceedings to
deal
with
cases
justly and ensuring, as
far
as practicable, that the parties are on
an equal
footing,
that the
case
is
dealt
with
expeditiously,
fairly,
and
with
a
minimum of
delay,
and the
welfare
of the
children
involved is safeguarded; an
appropriate amount of the
Court's
resources should be allotted and the
case
should be
dealt
with
in
ways
that are proportionate to the gravity and
complexity
of the issues and to the nature and extent of any intervention
proposed in the private and
family
life of the
children
and adults involved.
34. In Re NL (A Child)
[2014] EWHC 270
(
Fam),
the
Court,
in
commenting
on a
case
then before it on appeal, said at
paragraph 40 this:
35. In the case
of Y v Z [2014] JRC 055A,
the
Court
observed:
36. In Re S-W
(
Children)
[2015] EWCA
Civ
27,
the
Court
at paragraph 29 said:
And, at paragraph 43, the Court
said:
And at the same case
at paragraph 45:
37. In the case
of Re
F
(A
Child)
[2009]
EWCA
Civ
313, the
Court,
at paragraph 9, said this:
38. In Re J (A Minor) [1989] 2 FLR
304 the
Court
said:
39. The conclusions
that
we
draw
from
the
cases
cited
above,
which
we
have referred to but briefly, is that the status quo,
whilst
a not insignificant
factor,
is not
determinative
and should not be given
undue
weight.
Even
were
the
case
a
"snatch" or abduction
case
the
welfare
of the
Child
had still to be
considered.
40. The overriding objective and indeed the
principles set out above, require a case
to be given sufficient time and the
issues to be explored sufficiently to reach a just
decision
putting
first
and
foremost
the
welfare
and interests of the
Child.
41. This case
was
dealt
with
at extremely short
notice and
was
disposed
of
within
a half
day.
No evidence
was
heard and there
were
material
and serious allegations made by both the Appellant and the Respondent against
the other.
42. The Registrar was
urged to adjourn the matter
for
proper enquiry and an appropriate hearing. Had that happened, there is no
doubt
in
our mind that Mrs
Fernandes
would
have been able to spend more time
with
the
Child,
gain a better understanding of the
case
as a
whole,
and advance more
clearly
held and reasoned
conclusions.
We
make absolutely no
criticism
of her
for
the position that she took in
the light of the very short opportunity that she had to
consider
the papers and
indeed to speak to the
Child.
43. In the Reasons given by the Registrar, at paragraph 44 the Registrar says this:
44. This was
urged on us by the Appellant as being
little more than speculation
with
no evidence in support.
We
repeat that no evidence
was
taken
from
the Appellant or the Respondent, or indeed
from
anyone else to test
whether
the
child
in some manner had been primed to give specific answers.
45. We
have already set out,
when
referring to the
Reasons given by the Registrar, the Appellant's
contentions
with
regard
to them.
We
agree
with
a number of
those
contentions.
46. This was
an application made under the
Children's
Jersey Law and the
welfare
of the
child
is the paramount
consideration.
It is incumbent upon
the
Court
to the extent that it is reasonably possible to
do
so to permit
evidence to be heard on
welfare
issues unless it is abundantly
clear
that that
evidence
can
make no
difference
to any
welfare
determination.
It is
difficult
to see how having
characterised
these
concerns
in the
way
that the Registrar
did,
the Registrar
could
be satisfied that she had sufficient information before her to make a
welfare
determination.
47. It appears to us that insufficient time was
given
for
a proper
consideration
of this matter, it
was
treated as a matter of
abduction (
which
it may or may not have been) and undue emphasis in the
circumstances
of the allegations made in this
case
was
placed upon the status
quo. Insufficient
weight
was
given
to
what
the express view of the
Child
was
through Mrs
Fernandes
and the
suggestion that the
Child
might have been primed to give answers
was
untested.
We
do
not make any
statement as to
whether
or not the
Child
had been primed but in our view the
statements made by the
Child,
the allegations made by the Appellant and indeed
the
counter
allegations made by the Respondent,
were
highly material things to
be taken into account
when
determining
where
the
welfare
of this
Child
lay.
48. It appears to us on balance that the desire
to
dispose
of this matter 'urgently'
without
a sufficient exploration
as to
what
the urgency
was
in this
case
has in effect prevailed over the
necessity of seeking
further
information, evidence and the testing of that
evidence so that the
decision
of the Registrar as to the
welfare
of the
Child
could
be made on a
fuller
basis.
49. The Registrar herself, quite correctly,
mentioned the
worrying
circumstances
but then nonetheless made an order
immediately
delivering
up the
Child
to the Respondent against
whom
serious
allegations had been made.
50. In our view, the Registrar should not have
treated a matter such as this as suitable for
disposal
without
an appreciation
of the evidentiary picture. In our
judgment, the Registrar should have acceded to the request
for
an adjournment
so that
further
evidence
could
be provided, interpreters secured and
further
investigations
carried
out, both of the position
with
regard to the
Children's
Service in
Country
A, the immigration position and the true
voice of the
Child.
51. Furthermore,
the Registrar
was,
in our view,
albeit briefly, under an obligation to give some reasons as to
why
she
did
not
order a stay.
52. Accordingly, we
allow the appeal.