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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of YY [2010] JRC 118A (29 June 2010) URL: http://www.bailii.org/je/cases/UR/2010/2010_118A.html Cite as: [2010] JRC 118A |
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[2010]JRC118A
royal court
(Family Division)
29th June 2010
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Before : |
J. M. O'Sullivan, Deputy Registrar, Family Division. |
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Between |
A |
Applicant |
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And |
B |
Respondent |
IN THE MATTER OF YY
Reasons in respect of the application by the applicant father to adjourn the contact hearing
Advocate C. M. Fogarty for the Applicant.
Advocate R. E. Colley for the Respondent.
judgment
the deputy Registrar:
1. This is an application to adjourn made by the father in respect of a final contact hearing due to take place on 5th, 6th and 7th July, 2010. Both lawyers provided separate bundles.
2. With regard to the history of the case, the father made his application for contact in January 2009 in respect, at that time, of his son C born in 2007. Because of allegations of domestic violence made by the mother, a fact finding hearing was ordered on the 4th March, 2009. It took place over two days in June, 2009, and an interpreter was required for the father. A number of allegations were made and there were findings of domestic violence. D was born in 2009. At a case review hearing on the 22nd June, 2009, Mrs Elmsley, Forensic Psychologist, was ordered to prepare a report on the father, and subject to resources being available, Children's Service were to organise supervise-contact by the father with C. Mrs Elmsley's report was received on the 28th August, 2009.
3. A case review hearing had been organised for the 18th September, 2009, but prior to that, the father's lawyers indicated that he wanted to adjourn the case for six months. An application was made, but I was not prepared to agree an adjournment and set out my reasons, citing inter alia Article 2(2) of the Children's (Jersey) Law 2002. The Children's Service in the meantime had filed a report stating that due to lack of resources, they were unavailable to supervise contact. Having heard submissions and the advice of the court welfare officer, I ordered that the matter be set down for a final hearing on the 7th, 8th and 9th December, 2009, and refused in the meantime a Family Assistance order request by the father. The father appealed the order I made inter alia stating that he was at risk of deportation if he was effectively deprived of contact.
4. On the 6th January, 2010, the Deputy Bailiff of Jersey on receiving a draft consent order from the parties, made an order for the matter to come back to this court for a final hearing, and in the meantime ordered a report from Dr Bryn Williams in respect of the children.
5. On the 5th March, 2010, the final hearing was ordered to commence on the 5th July, 2010, for four days. Each party was to serve and file any witnesses statements by 31st March, 2010, and if either party disagreed with the recommendations of the court welfare officer he or she was to set out the reasons for disagreeing and any counter proposals by the 28th May, 2010, and to file a statement in respect of any issues there may be in respect of Dr Williams' report by the same date. I have noted that the father has not filed a statement or statements about either the recommendation of the court welfare officer, or in respect of Dr Bryn Williams' report. In his report Dr Bryn Williams inter alia said:-
"Given the father's level of denial about his violence (this was written before the criminal charges and relates to the Fact Finding) I am uncomfortable about testing out his parenting directly with the children...."
He goes on to say:-
"Based on my assessment I would therefore not currently feel it appropriate to recommend direct contact."
In his report he states that the mother is deeply affected by the abuse and is extremely vulnerable.
6. The court welfare officer filed her report on the 14th May, 2010, and recommended indirect contact, to be monitored. She set out in her report that the father had been charged with affray, grave and criminal assault and possession of an offensive weapon and was due to submit pleas on the 21st May, 2010, and wrote she had visited him in prison.
7. At the hearing today, Advocate Fogarty for the father, informed this Court that he has pleaded guilty to one charge of grave and criminal assault, one charge of possession of an offensive weapon and has reserved his plea to one charge of affray. He is in La Moye prison where he is on remand. His Advocate applied for the final hearing to be adjourned until he has been sentenced in the criminal proceedings. The Court was told by Advocate Fogarty that he will be committed to the Royal Court for trial on the 2nd July, 2010, and is likely to be sentenced on the 10th September, 2010.
8. The Court was told that the grave and criminal assault was a serious matter because he stabbed a man in the face using a kitchen knife, and it is probable that his sentence will be greater than four years in prison. If his deportation is ordered, Advocate Fogarty said that he will remain in custody unless and until his deportation is carried out. She submitted that if the family case took place before this time, considerable Court time and costs will have been wasted because the order of the Royal Court will make the decision of this Court nugatory. She argued that the adjournment of the contact hearing will not affect the status quo of the children in that they continue to remain in the care of their mother. She pointed out that he has an order for supervised contact but cannot exercise his rights under the order. Dr Williams has reported that the children are currently doing well in the care of their mother.
9. Advocate Fogarty further submitted that the Crown will move for deportation and the likelihood of opposing it is remote, removing any possibility of him having contact, save perhaps by writing or by telephone. She submitted that the criminal court will determine if he has any prospect of seeing his children and the probability is that they will decide he cannot. She said it was important that the children's welfare must come first and the psychologist, Dr Williams has said they are doing well.
10. Advocate Colley stated that the position of her client, the mother was that there should be no further delay and there should be finality for the children and the mother. She said that we do not know if and when he will be deported and whether the father is asking that the children proceedings be adjourned until after September 2010 or until the end of his sentence which could be four years or longer. She submitted that if the contact proceedings were adjourned, it could potentially strengthen the argument that he should not be deported until contact proceedings have been finalised. As for the wasting of public funds, the lawyers have to meet the costs, not the public purse. She submitted that this is a children matter and any delay is likely to be prejudicial for the children. She pointed out that in June 2009 this Court had said there should be no further delay.
11. Advocate Colley further submitted that although there are some cases where the Family Court may wait until the end of the criminal proceedings these are few in number. She further submitted the criminal proceedings the respondent is facing are not in relation to domestic violence and in any case there has already been a fact finding case. She referred to Re S (Minors) (Care Order: Implementation of Care Plan) 1 FLR 815 H of L in which the House of Lords had held that there should be no delay in children proceedings unless it was planned and purposeful and there is no risk to the children. She said that the Court also needs to take into account the effect any delay has on the mother. She referred to Dr Williams' report in which he stated she was deeply affected by the abuse and the Court should consider that any further delay will affect the mother and may well affect her ability to care for the children. She said it is the view of the mother, the court welfare officer and Dr Williams that any further contact should be indirect, and if this were to be the decision of the Family Court, it would not matter where the father is living.
12. Mr David Trott, the co-author of the welfare report, informed the Court that the criminal case may not be heard until October or November, but whatever the outcome, this will not make any difference to the recommendation in the welfare report. He also said that he had come across cases where a decision as to deportation may not be made until the final year of sentence. He said he was aware of the anxiety placed on the mother and he considered her anxiety will permeate down to C who is a sensitive child.
13. Advocate Fogarty said there would be no delay in the father's criminal case, the Lieutenant-Governor usually accepts the recommendations of the Court and as for the mother's anxiety, she can be certain he will remain in custody for four years and it is virtually inevitable that he will be deported; therefore she has no grounds for anxiety. She can get psychological assistance.
14. Advocate Fogarty said the delay is purposeful as the criminal proceedings will determine the Family Court opinions in relation to contact. Public money should be saved where the sentence of the Royal Court will determine the outcome of the Family Court. She submitted that the mother can be certain that the father will play no part in the life of the family for a very considerable time to come.
15. With regard to the case of Re TB (Minors) (Care Proceedings: Criminal Trial) [1996] 1 FCR 101, where it was held by the Court of Appeal that:-
Advocate Fogarty said that even if this case was directly relevant there is no prejudice to the children.
16. Advocate Colley submitted that in respect of the Re TB cases, the test is that the Court must identify some detriment to the children in not bringing on the family proceedings. The case says that the children cases should be settled and further that the delay may affect C. She said that if the father could now agree indirect contact there would be no need for a family hearing. Advocate Fogarty informed the Court that the father had more pressing matters than giving instructions in the family case and his instructions in the family proceedings will be determined by the Royal Court.
Decision
17. I have to consider Article 2(ii) of the Children (Jersey) Law 2002 which states:-
The court welfare officer has advised against delay, his view being that the mother's anxieties will permeate down to C. The mother's advocate also referred to this and although Advocate Fogarty said she had no need to be anxious if there is a delay, the children's welfare is the paramount consideration as set out in Article 2(1) of the Children (Jersey) Law 2002.
18. There are family cases, in particular care cases, which are adjourned until the end of criminal proceedings but the criminal proceedings in which the father is involved are not concurrent proceedings. There has already been a fact finding case in the family proceedings where he was found to have been violent. Even in cases where there are concurrent proceedings the no delay principle usually operates as seen in the case already referred to of Re TB (Minors) (Care Proceedings: Criminal Trial). Here the Court of Appeal decided that there was no bar to the hearing of care proceedings when related criminal proceedings were pending. The Court must identify some detriment to the child for not bringing the family proceedings. Having heard the parties I have not been able to find any detriment to the children in hearing the family proceedings now, particularly given the comments made by Mr Trott. Furthermore, the delay proposed here is not planned for the benefit of the children. A number of cases were provided by each party in their respective bundles which I have considered. Advocate Fogarty said that the cases cited are not directly relevant. Both parties include in their bundles the RE TB case and I have noted the Re S (Minors) (Care Order: Implementation of Care Plan) 1 FLR 815 H of L in which it was had held that there should be no delay in children proceedings unless it was planned and purposeful and there is no risk to the children. It is important in cases concerning children that there should be as little delay as possible in reaching decisions on their future.
19. Advocate Fogarty says that delaying the case would mean that the criminal court will determine whether the father has any prospect of seeing his children and the probability is that it will decide he cannot until the children decide for themselves when they are of age. I would hope that, as Advocate Colley suggested, the father is not seeking to delay these proceedings in order to strengthen his hand against deportation on the basis that contact proceedings have not been finalised. The criminal court will be determining the matter before it; it is for the Family Court to determine the father's contact application. The court welfare officer has indicated that the outcome of the criminal proceedings will make no difference to the recommendation for indirect contact, and were the Court to accept the recommendations as to indirect contact, in practical terms it would not affect where he is living.
20. As for the costs issue, Advocate Colley is right in saying that the lawyers costs are met by their respective firms. This Court has the children case time tabled for some months and it is not a waste of public funds to hear the case. I do have to say that I was surprised, given that the order to hear the case and consequential directions were made on the 5th March, 2010, and the father was charged on the 6th May, 2010, to be told by Advocate Fogarty that:-
"As to instructions I may take on the matters of contact, they have not been taken, and whilst under discussions are a matter of privilege."
She added:-
"The father has had more urgent matters on which to concentrate than instructions to me in the family matters."
21. Clearly what she discusses with her client is a matter of privilege, but the father has been facing his contact hearing for four months. The father has not filed a statement saying he disagrees with the recommendation of the court welfare officer, nor in respect of any issues he may have in respect of Dr Bryn Williams' report. Whilst these proceedings may not be of great importance to the father, they affect the future welfare of his children.
22. I am not therefore prepared to adjourn the hearing.
