Child maintenance: Defining a ‘parent’
This is important not just for this case, but for the integrity of Jersey as an international finance centre.
The recent ruling in a complex child maintenance case is exemplary for two reasons. Firstly, the definition of ‘parent’ can, in certain instances, extend beyond that of biological, step or adoptive parent. Secondly, it sends a clear message that Jersey will show solidarity with court orders made by other competent jurisdictions, as opposed to overruling them.
Parties: Mother (represented by Viberts) and Father (represented by Carey Olsen and Appleby)
The application involved a mother who was a Latvian national (“M”) and a local Jersey businessman (“F”) who was not the biological father of M’s child (“C”) who was the child from another relationship.
M and F enjoyed a relationship over a number of years. M and F lived in both Latvia and Jersey during their relationship. During that time, F treated C as his own, including paying for his education, day to day living, holidays, etc. as well as providing for him emotionally.
F decided that he wanted to be recognised in law as C’s father. In order to do this, F entered into a “paternity declaration” pursuant to Latvian law which essentially placed F in the same position as the biological father of C. F’s name was placed on C’s birth certificate and F acknowledged that he was to take full responsibility of all the rights and responsibilities of C (such as financial obligations as well as having a say in his day to day care).
M and F’s relationship ended in 2010 and M returned to Latvia to live with C. Shortly thereafter, M brought an application in the Jersey courts for child maintenance to be paid to her for C’s benefit.
F adjourned the proceedings in Jersey so that he could dispute the legitimacy of the paternity declaration in Latvia. Under Latvian law, the paternity declaration cannot be disputed if more than two years have passed since the applicant discovered that he was not the biological father. F lost his appeals on this point all the way to Supreme Court level in Latvia.
Following this, the proceedings in Jersey were resurrected and the Family Registrar ordered that F should pay maintenance (together with other sums) for the benefit of C.
F appealed this judgment; firstly against the level and nature of the orders, but secondly, and more importantly, on the basis that F said that the Jersey court did not have jurisdiction to make the orders imposed because he was not the biological father of C. He also claimed, that a parent could only be financially liable for a child under Jersey law if they were either the biological parent; the step parent; or the adoptive parent of the child.
In order for the court to be able to order a person to make financial payments for a child, they must be the “parent” of that child. The definition of “parent” is defined under the Children (Jersey) Law 2002 as follows:
“[to] Include the father of a child whether or not he was at any time married to the child’s mother and the biological father of a child where he has been granted parental responsibility under Article 5(2).”
It was M’s successful argument that the above definition allowed itself to include more than simply biological, step and adoptive parents and could apply to the non-biological father who was not married to the biological mother.
This “wider” interpretation was accepted by the court and therefore, given that F was not the biological father, he could potentially be liable to make financial provision for C.
Once that had been established, the court then had to decide whether F’s circumstances were such that he did fall within that definition and, by extension, would fall within the jurisdiction of the court.
The argument raised by M was that F had already litigated the issue of whether he was legally responsible for C in Latvia (i.e. his legal status as C’s father). He had pursued this to the Supreme Court level and had been unsuccessful in rebutting that position.
Pursuant to the foundations of private international law, a matter that has been litigated in another jurisdiction should not be capable of being re-litigated in Jersey (by way of the principle of “res judicata”) if it satisfies a number of criteria. Those criteria are as follows:
- An issue has been decided by a judgment in proceedings in Jersey or elsewhere;
- The judgment of a court of competent jurisdiction, on the merits and final and conclusive; and
- Identical issue arises for determination in the Jersey courts between the same parties.
The basis of the jurisdictional appeal being brought before the Jersey courts had, therefore, been dealt with in Latvia and it had held that F was responsible for C, in law, and that included being financially responsible for him.
The Jersey courts subsequently found that the matter of F’s status had already been decided by the Latvian courts and therefore it was proper that that status should be recognised under Jersey law and could not be contested in Jersey.
Given that the definition of “parent” under the Children Law, relates to a person’s status as being legally responsible for a child, this therefore placed F squarely within that definition, and because the definition of “parent” could extend beyond its (previously thought) strict interpretation of parent, F was capable of being held financially liable for C, despite not being his biological, step or adoptive father.
What does this mean for unmarried, non-biological “fathers” in Jersey?
Unmarried, non-biological “fathers” (often referred to as “psychological” or “common law” fathers) should not be overly concerned by this judgment. Simply being in a relationship with a woman who has a child from another relationship will not mean that he becomes liable for child maintenance in the event of a breakup of the relationship. The key distinction in this case was that, very unusually, the father had voluntarily entered into a legally binding declaration in a foreign jurisdiction, which defined his status as the child’s father. There is no such similar process in Jersey. The closest that exists in Jersey is an adoption. It does, however, confirm that where a man enters into such a declaration, in Latvia or elsewhere, those declarations are likely to be recognised in Jersey should either party (and/or the child) move to Jersey.
Although this case has clarified the common misconception that Jersey Law mirrors the law of England and Wales (the definition of “parent” is different under the two jurisdictions), the case also reinforces the position that Jersey will recognise and uphold matters which have already been litigated in courts in a separate, foreign jurisdiction. Given Jersey’s position as a well-recognised finance centre, the court was right to recognise the status of those orders. Had they not done this, it could have had grave ramifications for Jersey on the international stage.
This case has been appealed and therefore the ruling is subject to change.