Jersey Unreported Judgments

Child access:-Reasons for refusal by the Court of the father's application for contact.

[2011]JRC216

Royal Court

(Samedi)

7 November 2011

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Breton and Olsen.

 

IN THE MATTER OF V

AND IN THE MATTER OF B AND C

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002.

Advocate C. Davies for the Minister.

Advocate A. C. M. Pinel for the Father.

Advocate C. M. Fogarty for the Mother.

Advocate M. J. Haines for the children, C, B and A, acting through their Guardian Monash Kessler.

judgment

the commissioner:

1.        On 17^th October, 2011, the father's application for contact with C and B was refused by the Court and we indicated that we would give our reasons in a written judgment which we now do. 

2.        Both children were born prematurely with cerebral palsy, B being the more handicapped and vulnerable, being wheel-chair bound and with limited speech.  She has been placed in a respite institution for disabled children.  C has been placed with a maternal uncle and aunt.  

3.        Interim care orders were first made on 29^th July, 2010, and the final hearing is currently scheduled for 23^rd January, 2012.  Initially, there was no issue over the father's contact with the children.  However, in February 2011, C made a disclosure to her aunt which suggested that she had been the subject of sexual abuse by the father.  The Minister brought an urgent application before the Court seeking suspension of contact.  The father did not oppose the application and the matter was the subject of the Court's judgment of 21^st February, 2011, (In the matter of F [2011] JRC 044), which needs to be read in conjunction with this judgment.  Contact was suspended and we will not repeat the reasons given save that it was to be reviewed at the next hearing.  The police investigation that ensued has inevitably delayed the earlier trial dates that had been fixed and is the substantive cause for the trial dates now being fixed for January of next year.  It is right to record that the father strenuously denies having sexually abused any of his daughters. 

4.        Contact was considered by the Court on 23^rd June, 2011, when it was again suspended for reasons given in a short judgment of the Deputy Bailiff.  Suspension was not opposed by the father and it was made clear by the Deputy Bailiff that it would continue until the final hearing date, but on the basis that the position would be regularly reviewed by the Minister.  The Court expressed itself as being troubled by the position of B, who (unlike C) had expressed a wish to see her father but the Court accepted the expert advice it had received against contact and was in particular comforted by the evidence given by the Guardian. 

5.        The father's Form C2 application for supervised contact was filed on 8^th August, 2011.  The father made it clear that he did not seek to impose contact upon C against her clearly expressed wishes but he sought orders that the Children's Service be directed to work with the children and the father together with the experts in rebuilding the relationship between him and his children.  In the short term, we were therefore in practice dealing with an application for supervised contact with B, who had expressed the wish to see her father.  

6.        Mr Pinel informed us that the application was brought under Article 27(3) of the Children (Jersey) Law 2002 ("the Children Law").  However, bearing in mind the existence of a current order under Article 27(4) of the Children Law authorising the Minister to refuse contact, Mr Pinel accepted that the application had to be coupled with an application under Article 27(9) to discharge the order made in favour of the Minister, as made clear in the English Court of Appeal decision of In re T (Minors) (termination of contact: discharge of order) (1997) 1 WLR 393, in relation to the analogous English provisions.  It is also clear from In re T that there must be some material changes of circumstances between the making of the Article 27(4) order (equivalent to Section 34(4) of the Children's Act 1989) and the application to discharge.  The Court is entitled to screen out what are essentially no more than disguised appeals against the original orders.  Quoting from the judgment of Simon Brown LJ at page 403:-

"Applying these considerations to an application to discharge a section 34(4) order, I conclude that the court should initially have two main interlocking considerations in mind: first, the extent to which circumstances have changed from when the order was originally made; and second, bearing those changes in mind, the extent to which it now seems appropriate to reinvestigate the central question.  The court should ask itself: where on the "spectrum of procedure" should this particular application be placed?  Clearly the greater the apparent change in circumstances, the more intensively will the court be prepared to reconsider the desirability of leaving the section 34(4) order in place. 

I would not myself speak in terms of the onus being on the applicant.  But it should certainly be borne in mind that there are clear implications in all this not merely for the best use of court time but more importantly for the welfare of the children themselves.  Children are often aware of the court's processes and troubled by the uncertainty and disruption engendered.  Nor should the courts be expected to welcome applications which essentially seek to reopen already decided questions."

Father's submissions

7.        The father did not call any of the experts engaged in this case in order to cross examine them on their advice, which was unanimously against the resumption of contact, or apply to cross examine the social worker, Sabrina Charpentier, or the Guardian both of whom advised against the resumption of contact and both of whom were in Court.  Nor did the father elect to give evidence himself. 

8.        The father submitted that two changes in circumstances had occurred since the last order.  Firstly, the Minister had failed adequately to review the issue of contact, as required by the Court and secondly, the police investigation had now been completed and they had indicated that there was going to be no prosecution brought "at this stage". 

9.        Taking the issue of review first, Mr Pinel submitted that the father had only been spoken to twice by Children's Services and even then contact had not been discussed.  His request for indirect contact by way of a birthday card for B had been refused on the day of her birthday and he had only recently received a photo signed by B "for Dad for Easter".  The report of Sabrina Charpentier, which as we say the father did not seek to challenge, made it clear however that the issue of contact had indeed been regularly reviewed.  The delay in responding to the request to send a birthday card was due to the need to obtain the advice of the experts and the email exchanges we were shown supported that.  Children's Services could not help on the Easter card - it had been produced to them by the respite institution only this month. 

10.      Turning to the police investigation, we agree with Mrs Davies and Mr Haines that the fact it has been completed is irrelevant.  The first two days of the final hearing are set down as a fact finding hearing and it will be for the Court to determine on the civil test whether there has been sexual abuse or not. 

11.      Since the hearing on 23^rd June, 2011, a psychological assessment had been obtained on the authenticity of the allegations of sexual abuse made by C (and by her elder sister A) by Professor Helen Dent.  A had conducted an ABE interview which in her view contained indications of authenticity.  She advised it would be helpful to conduct a sexual risk assessment on the father, for a second ABE interview to be undertaken by A and for an ABE interview to be undertaken by C. 

12.      The Guardian, in his report of 7^th October, 2011, expressed the view that there were very serious indicators of the father's sexually abusing his daughters which required fuller consideration by the Court before a recommendation could be made concerning his contact with them.  Quoting from paragraphs 5.3 and 5.4 of his report:- 

"5.3     However, it is the allegations of sexual abuse, which gives rise to particular concern in regard to E having contact with his daughters.  At present it is shrouded in secrecy and contested allegations.  In his most recent statement, E strenuously denies any wrongdoing, despite the growing evidence against him. 

5.4      Thus, this evidence needs to be tested by the court in a Fact Finding Hearing, in order for the court to more fully assess the risks he poses to his daughters.  In my view, until this has been done, it would be premature and possibly dangerous to promote contact."

13.      All the advice we have had was against contact being resumed and none of that advice has been challenged.  Mr Pinel invited us to reject that advice but we saw no grounds upon which we could properly do so.  C has made the choice of not resuming contact with her father, but it is the case that B has consistently expressed the wish to see her father.  However, it is clear from Sabrina Charpentier's report of 23^rd September, 2011, that she does not appear to be distressed by the suspension of contact with him. 

14.      Mrs Davies made a further point of some significance in our view.  If we were to order supervised contact, which in practice would mean supervised contact with B, we would face the possibility that in only three months' time at the final hearing, the Court may find the allegations of sexual abuse made proved and that it was necessary to curtail that supervised contact.  Such potential inconsistency in the orders of the Court would be difficult to explain to someone as vulnerable as B in the light of her cognitive abilities and would therefore be highly undesirable. 

15.      We concluded therefore that the father's application for contact should be dismissed and that the Court's order under Article 27(4) suspending contact should not be discharged.  We further directed that pursuant to Article 66(11) of the Children Law no further applications for contact could be made by the father before the final hearing. 

Authorities

Children (Jersey) Law 2002.

Children's Act 1989.

In the matter of F [2011] JRC 044.

In re T (Minors) (termination of contact: discharge of order) (1997) 1 WLR 393.