Father fails in bid to stop mother taking child to home country

Tuesday 22 February 2022

A father has failed in his appeal to stop his ex-wife from taking their child to live in her home country following a case that saw the Royal Court forced to weigh up the challenges of living in Jersey.

In a judgment published this week, the Court acknowledged that the case was a “difficult and delicate” one “that will cause hardship whichever decision was reached.”

The Court agreed that the Registrar of the Family Division – an experienced judge who hears matrimonial cases – was right to allow the mother to move away from the island with her child.

This, however, was on the strict condition that there should be a “comprehensive and detailed contact order” covering contact arrangements with the father, and the mother must secure an equivalent legal order in her home country which guarantees the father’s contact rights.

The case involved a Christian woman from ‘Country 1’ and a man of another religion from ‘Country 2’, who was also a British citizen.

The father first came to Jersey to work nearly 20 years ago, while the Mother first came to Jersey to work less than a decade ago. She met the father, they married in two years after her arrival, and their only child was born later that year. However, the relationship broke down soon after.

They remained living together by necessity for around a year, when the mother left the family home with the child.  

Asked to judge on an order by the mother asking to take the child back to her home country, the Registrar had the difficult task of balancing competing arguments, although the law clearly states that the welfare of the child is paramount. 

The mother argued that she never intended to settle in Jersey. She would likely remain in low-paid employment in the island and be in receipt of income support.

Her lawyer said it was unlikely that either the mother or father would ever own their own home in Jersey. It would be over five years before the mother obtained housing qualifications and in the meantime, she would be in competition for the expensive and limited stock of available housing.

In her home country, the mother would have the support of her own mother and extended family and would live rent-free. A multilingual graduate, she was also confident of having flexible work options, despite high unemployment there. 

The father argued that the move would have a significant and detrimental impact on his relationship with his daughter. Regular contact meant the child would be able to grow up learning about her father's religion on a day-to-day basis and learn its associated language.

His lawyer said that maintaining and developing contact with the child in the mother’s home country would be challenging and costly for both parents, and the father feared that its untested legal system may mean he would never see his child again.

In granting the mother leave to remove the child from Jersey, the Registrar concluded that the mother was suffering real hardship and isolation and while in time she may settle and her circumstances improve, it would be at least a year before she had a real opportunity to improve her financial position.

In appealing this decision, the father’s lawyer argued that the Register has erred in a number of ways, including in finding that the mother’s plans for the move to Country 1 were well thought out and detailed in every respect, save for contact.

His legal representative also said that the judge had erred in reaching her decision as it had the effect of depriving the child of a constant father figure.

In dismissing the appeal, Commissioner Julian Clyde-Smith said: “Where the decision is finely balanced, it inevitably makes it more difficult for an appellant [the father] to persuade an appeal court that the decision finally reached was wrong to the point where the appeal court has to intervene in the interests of justice and fairness.  

“The law and principles to be applied were correctly set out in the Registrar’s judgment, and she has carried out the required evaluation with care, reaching the conclusion that leave should be granted, but strictly on the two conditions as to contact with the father.”

He added: “The Registrar makes the point that in the circumstances of these parents, there is not and never has been ‘a well functioning status quo’.  

“The Registrar was entitled to find that the mother’s plan was well thought out and detailed, but such a plan does not have to cover every possible detail or be beyond criticism in order for the application to succeed.  

“It was sufficient in terms of the mother’s financial stability in Country 1 underpinned by her joint ownership with the maternal grandmother of the family home there, extensive maternal family support and work opportunities for the mother.  

“This contrasts with the position in Jersey, where there is no such security of tenure, and may never be, where the mother would struggle financially... and where there is no extended family support on either the father or the mother’s side.”