By Claire Davies
FAMILY law is tricky. Following the breakdown of a relationship, partners are often angry and frustrated. Where those ex-partners are also parents, they have to cope with the practical and emotional drain of co-parenting their children after a separation or divorce.
Difficult emotions, combined with a lack of trust, can make it very hard to negotiate a way forward that everyone can live with. There are a variety of agencies out there to help. Family mediation, for example, can be an invaluable resource to help parents find their own creative solutions to problems that crop up when parenting their children. Seeing a lawyer should help, but going to court is rightly seen as a last resort.
However, the problems that confront separating parents are many and some nuts are harder to crack than others are. One issue is particularly hard to resolve amicably – even for the most child-focused and reasonable parents. What happens when one parent wants to leave the Island with the children to live in a different country? Can they do it? Can they be stopped? And what principles will apply? This is a complex area of law and, whichever side of the argument you are on, it is very important to take legal advice from a family law specialist – and to do so quickly.
In simple terms, a child should not generally be removed from Jersey without the clear permission of the other parent – or a court order which permits that to happen. Where parents try to remove children without appropriate permission, they may find themselves accused of child abduction and/or face a court order requiring them to return and, once in court, they may have to deal with a very unhappy judge. Parents who are considering leaving the Island should make sure that they are acting lawfully. Parents who are afraid that a child is about to be spirited away without their permission may have to ask the court for an injunction to stop it.
Where there is no immediate worry that a child is going to be taken away without permission, what happens next? It is hard to negotiate (or mediate) where the answer is either ‘stay’ or ‘go’. Parents who face this problem should try to have an open dialogue so that they can understand each other’s points of view, worries and concerns. It may well be that, after careful discussion, they may be able to find a compromise that provides a way forward for everyone. At the very least, they will have a better understanding of the problem. Ultimately, if parents cannot agree, this may trigger the start of lengthy court proceedings to determine where a child should live and how the court can make sure that they maintain a meaningful relationship with the parent who is left behind.
What does the law say? Well, the outcome will depend on what the judge considers to be in the best interests of the child. That is a subjective question. The judge must work on the basis that the interests of the child are paramount. They have a ‘checklist’ of issues set out in the law, to help them decide what is in the best interests of a child.
The judge may also have the help of JFCAS, the court advisory service. The JFCAS officer will advise the court on the welfare of the child and will help the judge to understand the wishes of children who are old enough; particularly with older children, those wishes may be very important. The court will look carefully at how well researched the move is, and what it is about the move that makes it best for the child (as opposed to best for the parent).
To top it all, the law is evolving. Judges are becoming more cynical about applications to move minor children to a different country, and it seems that it may be harder moving forwards to win these applications. Very recently, the Family Court in London declined permission for a Ukrainian mother to remove her young children from England to live in a different country with her partner (for legal beagles, the case is reported as GT v RJ [2019] 1 FLR 46). The court was critical of the mother who had, it felt, defied court orders and generally behaved in a manipulative way.
What will the future look like for these children? Perhaps only time will tell. All professionals working on cases involving children wish they had a crystal ball, but they do not. The courts do not have perfect solutions to family problems. Judges do the very best they can. Where parents are able to work together, they are far better placed to make, and to implement, important decisions for the children that they love.
Claire Davies. Principal at Claire Davies, Advocate
Claire passed her English Bar exams in 1992 and was called to the Jersey Bar in 1997. In 2018 she commenced a new firm, Claire Davies, Advocate to utilise her unique skills in family law.
Claire represents private individuals and States of Jersey departments. She is one of a select number of advocates able to represent children in Public Law proceedings and has served as chairman on the Committee of the Jersey Family Law Association.
Claire acts as a family mediator with the Jersey Mediation Service and is an associate member of Resolution. She has served as Jersey’s acting bâtonnier (and is a bâtonnier substitute) and since 2012 has sat as deputy chairman of the Jersey Employment and Discrimination Tribunal.
She is the Institute of Law’s adjunct professor for family law and also teaches the family law modules of both the law degree for the University of London (LLB) and the Guernsey Bar Course (having written the Guernsey Bar Course Family Law Study Guide).
