Jersey Unreported Judgments

[2011]JRC045

royal court

(Samedi Division)

28^th February 2011

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

 

IN THE MATTER OF B

Advocate R. E. Colley for the Petitioner.

Advocate D. A. Corbel for the First Respondent.

judgment

the commissioner:

1.        The petitioner applies for costs on the standard basis arising out of his summons of 3^rd December, 2010, seeking reinstatement of overnight contact with Child 3 of the marriage.  The Court reinstated contact on 15^th December, 2010, for the reasons set out in its judgment of 17^th January, 2011, ([In the matter of B [2011] JRC 010) which should be read in conjunction with this judgment. 

2.        As is clear from paragraph 17 of that judgment the Court found that it was wrong of the respondent to have unilaterally and without warning interfered with Child 3's overnight contact arrangements with the father. 

3.        Mrs Colley referred me to the English Court of Appeal decision in R-v-R (Costs: Child Case) (1997) 2 FLR 95 which we accept provides valuable guidance as to the principles which should be followed in this jurisdiction in relation to costs in cases concerning children.  Quoting from the headnote:-

"(2)     Although there was a general practice not to order costs in cases concerning children, courts retained a discretion to do so and in exceptional circumstances might be justified in ordering costs.  It was unnecessary and undesirable to attempt to limit or place into rigid categories the cases in which courts might order costs, but amongst those cases would be those where a party had been guilty of unreasonable conduct.  The unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation.  Although parents should not be deterred from putting cases concerning children before the courts, it would not be wrong to discourage unreasonable parents from putting forward unreasonable views."

4.        Mrs Colley submitted that there were exceptional circumstances here arising out of the respondent's unreasonable conduct of the litigation for the following reasons:-

(i)        Bedell Cristin wrote on her behalf on 12^th November, 2010, suspending overnight contact abruptly, leaving no time for the petitioner to respond or for the concerns of the respondent to be investigated. 

(ii)       The respondent relied on matters that pre-dated the hearing in June 2010 when no such concerns were raised. 

(iii)      In the communications from the respondent leading up to 12^th November, 2010, there would not appear to be any reference to sexualised behaviour or indeed any hint that the respondent's concerns were such that she was contemplating cutting overnight contact. 

(iv)      Having received the report of the Court Welfare Officer, the respondent declined to accept her advice but continued on to the hearing where she alleged that the Court Welfare Officer had no behavioural expertise and was biased. 

5.        Whilst the parties are on legal aid, there is the former matrimonial home which is currently occupied by the petitioner to be sold which will give rise to equity and therefore Mrs Colley submitted there would be a process by which any costs awarded could be apportioned as between the petitioner and the respondent. 

6.        Miss Corbel, for the respondent, submitted that the respondent's conduct had not been unreasonable.  She had been constructive in relation to overnight access, agreeing to it voluntarily.  The concerns that she felt were genuine and although the manner in which she raised them with the Court were ill-judged, parties should not be discouraged from raising concerns over children with the Court. 

7.        Miss Corbel referred me to an earlier judgment in which the Court had refused her application for costs against the petitioner arising out of his summons for the appointment of a therapist for Child 2, which the Court found had been issued prematurely and had hindered work being carried out by the Court Welfare Officer.  However, that summons had been issued with the support of the Court Welfare Officer and the petitioner had not taken unilateral action which had a direct impact upon the daily routine of Child 2. 

8.        In my view, this case has some parallels with the case of Re T (Order for Costs) (2005) 2 FLR 681.  In that case, following a period of acrimony there was a fact finding hearing at the conclusion of which the judge at first instance came to the conclusion that the mother's anxieties about contact were unfounded, that the father and the child had an excellent relationship and that contact was in the child's best interests.  Staying contact was ordered and took place.  The mother then made allegations of sexual abuse against the father and suspended contact.  The father made it known that he wished to apply for residence of the child and a CAFCASS officer was directed to file a report.  A further fact finding hearing was held at which the child psychologist gave evidence that was wholly supportive of continued contact.  A residence order was made in the father's favour.  The father was awarded costs arising out of hearings at which he argued that the mother had produced false evidence and this despite the mother's arguments that it was most unusual to award costs in disputes over children, that the father was in a much stronger financial position than she was, that her stance had been dictated by her personality and that she had not been wilfully unreasonable.  The mother's appeal was dismissed, the Court of Appeal holding that the mother had no proper grounds for failing to implement the contact order or agreement and that it was open to the Court to find that the mother was acting unreasonably if she did so.  In the light of her unreasonable behaviour which had unnecessarily prolonged the litigation, the judge was entitled to make the orders she had made.  It was held per curiam that those who unreasonably frustrate contact need to be aware that the Court has the power to make costs orders in appropriate cases, and that the consequences of such unreasonable behaviour may well be an order for costs made against the parent who has behaved unreasonably. 

9.        Now it is true that in the case before this Court there had been no fact finding hearing but the central issue between the parties, namely the father's use of pornography and the risk he posed to the children, had been resolved with the expert advice of Dr Briggs, with the mother accepting that there was no risk.  It was also true that in the case before this Court the respondent had not made a direct allegation of sexual abuse or grooming for sexual abuse, although it was clear to the Court that this lay at the heart of her concerns.  As Mrs Ferguson had advised the Court (see paragraph 12 of the Court's judgment of 17^th January, 2011), the mother had in her view always feared either that the father had or will abuse the children and no one would be able to stop her thinking that.  Any little matter would be used as evidence to support her concerns.  Thus there were aspects of her personality that allowed these suspicions to take hold and it is not reasonable to expect the father to pay for the cost of defending implicit allegations based upon such suspicions. 

10.      In light of the background to this case and the somewhat opaque nature of the evidence upon which the respondent's suspicions had been based, it was in my view unreasonable of her to have abruptly intervened in Child 3's life by terminating overnight staying contact before raising her concerns with the petitioner, allowing him to respond and the Court Welfare Officer to investigate.  It was further unreasonable, in my view, for her to prolong the litigation after she had received the clear and balanced advice of the Court Welfare Officer that overnight staying contact should be resumed. 

11.      Accordingly, I do find that there are exceptional circumstances here and order the respondent to pay the costs of the petitioner of and incidental to the petitioner's summons of 3^rd December, 2010, on the standard basis, such costs to be paid out of the respondent's share of the proceeds of sale of the matrimonial home, if any.   

Authorities

In the matter of B [2011] JRC 010.

R-v-R (Costs: Child Case) (1997) 2 FLR 95.

Re T (Order for Costs) (2005) 2 FLR 681.