JERSEY Law and Practice Contributed by: Lauren Glynn, Victoria Cure and Tara Lee, Carey Olsen
• the child’s physical, emotional and educational needs; • the likely effect on the child of any characteristics of the child which the court considers relevant; • any harm which the child has suffered or is at risk of suffering; • how capable each of the child’s parents, and any other person in relation to whom the court consid - ers the question to be relevant, is of meeting the child’s needs; and • the range of powers available to the court under this Law in the proceedings in question. As noted by the Royal Court in In the matter of LL and MM (Prohibited Steps Order and Residence Order) [2020] JRC 137 and applied by the Family Division sitting in A v B (Family) [2019] JRC 001A: “The legal test to be applied is now very straight- forward. It is the application of the principle of the paramountcy of the children’s best interests, as tax - onomised by the checklist in section 1 (3) of the 1989 Act. That principle is not to be glossed, augmented or steered by any presumption in favour of the putative relocator. Lord Justice Thorpe’s famous ”discipline” in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance, guidance which can be drawn on, or not, as the individual case demands. In fact, most of the features of that guidance are state - ments of the obvious”. per Mostyn, J in GT v RJ [2018] EWFC 26. In summary, the court must determine whether it is in the child’s best interests to relocate or not. 2.3.2 Wishes and Feelings of the Child As noted in 2.3.1 Factors Determining an Application for Relocation , the wishes and feelings of the child will be considered as part of the welfare checklist. 2.3.3 Age/Maturity of the Child The extent to which a child’s wishes and feelings will be taken into account depends on the age and matu - rity of the child and the specific circumstances of the case. The wishes and feelings of an older child are likely to weigh more heavily in the court’s decision than those of a younger child. However, it is acknowl - edged that children of any age are not usually able
to fully understand the implications of relocation and cases are unlikely to be determined on the basis of the child’s wishes and feelings. 2.3.4 Importance of Keeping Children Together The court considers it to be very important to keep children of the family together, where this is possible. However, the outcome will depend on the specific cir - cumstances of the particular case. 2.3.5 Loss of Contact An important factor in a successful leave to remove application will often be demonstrating how meaning - ful contact with the left-behind parent can be main - tained and supported. Courts are very critical of relo - cation proposals that do not acknowledge the other parent’s important role in a child’s life. Parents apply - ing for permission to relocate should include detailed proposals for how a child can maintain their relation - ship with the left-behind parent in their application. 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Jersey is a very expensive offshore jurisdiction to live in, and the court is sympathetic in cases in which both parents have moved to Jersey and, following their separation, are struggling to be able to afford to meet their child’s basic needs without reliance on state ben - efits. Notably, Jersey law restricts who can rent and buy property, and state benefits are not available for the first five years of residency in Jersey. Courts are also often sympathetic where parties move to Jersey and then separate in a very short timeframe, with one parent wanting to return home. It is often the case that these families have a very small, if any, sup - port network in Jersey upon which to rely. The cost of childcare provision for children under school age is often higher than a parent’s income. 2.3.7 Grounds for Opposition to Relocation As noted in 2.3.1 Factors Determining an Application for Relocation , all applications will be determined by reference to the relevant child’s welfare. The court is likely to be particularly sympathetic to an objection that a parent is seeking to remove a child from Jer - sey with the purpose of frustrating their relationship
83 CHAMBERS.COM
Powered by FlippingBook