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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of FF (Child access) [2012] JRC 150 (14 August 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_150.html Cite as: [2012] JRC 150 |
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton and Milner. |
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Between |
FF |
Applicant |
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And |
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Respondent |
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IN THE MATTER OF FF AND IN THE MATTER OF PARENTAL RESPONSIBILITY AND CONTACT
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002.
Advocate L. J. Glynn for the Respondent.
judgment
the commissioner:
1. On 10th May, 2012, the Court dismissed the long outstanding application of the applicant (to whom we shall refer as "the father") for contact with and parental responsibility for the child ("the child") who was born in August 2008 and granted the more recent application of the respondent (to whom we shall refer as "the mother") for a residence order in her favour and an order that there be no direct contact between the father and the child.
2. The father's application for contact and parental responsibility was filed as long ago as 30th July, 2009, and we must therefore set out the background.
3. The relationship between the mother and the father commenced in or around February 2007 and terminated in or around November 2008, some three months after the child was born. They were not married.
4. On 30th July, 2009, the father filed his application for contact with and parental responsibility for the child. The father also obtained an interim injunction preventing the mother from taking the child out of Jersey.
5. On 23rd September, 2009, as a result of a period of reconciliation, the parties entered into an agreement which was issued by the Court as a consent order to the effect that the father would be granted contact as agreed from time to time and the request for parental responsibility was adjourned sine die. The injunction obtained by the father was withdrawn.
6. On 28th February, 2010, the father committed a grave and criminal assault on the mother, in respect of which he received a sentence of 18 months' imprisonment.
7. A preliminary directions hearing took place on 27th July, 2010, at which it was ordered that a court welfare officer prepare a report on the matters of the father's contact with and parental responsibility for the child.
8. On 15th September, 2010, a further order was made that the court welfare officer prepare a report on parental responsibility, the previous order not having been complied with due to the father's failure to provide instructions to his legal representatives.
9. The court welfare officer reported that parental responsibility and contact were not recommended for the following reasons:-
(i) Contact was not in the child's best interests;
(ii) The application was motivated by a desire to control the mother;
(iii) The effect a contact order would have on the father and in turn the child;
(iv) The unavailability of a suitable person to facilitate contact between the father and the child at the prison; and
(v) The unsuitability of the prison for a 2 year old child.
10. On 10th November, 2010, the matter was referred by the Family Registrar to the Inferior Number of the Royal Court and reports were ordered from Mrs Ruth Emsley and Dr Bryn Williams.
11. On 2nd February, 2011, in anticipation of the father's release from prison the parties agreed further directions by consent, in particular that:-
(i) The court welfare officer obtain information about the arrangements for contact between the father and his children in Madeira;
(ii) The father file an affidavit stating his reasons and proposals for contact with the child by 10th March, 2011;
(iii) The mother file a response to the father's affidavit by 31st March, 2011; and
(iv) The court welfare officer file an updated report by 21st April, 2011.
12. On 11th March, 2011, the Court ordered that the father, having failed to file his affidavit by 10th March, 2011, as agreed between the parties, file his affidavit by 17th March, 2011.
13. The mother issued a summons on 1st April, 2011, seeking orders that the father's application for contact be dismissed, the father having failed to provide instructions to his legal representatives and having failed to comply with the orders of the Court of 2nd February and 11th March, 2011. The mother also sought orders confirming that she had residence of the child and permission to change the child's surname from B to C.
14. The Court sat to hear the mother's summons on 15th April, 2011. The father attended without his legal representative, who had withdrawn as a result of his failure to provide instructions. In its judgment, the Court said this:-
15. The Court made the following orders inter alia:-
(i) The father was granted a further 14 days to file his affidavit;
(ii) A residence order was made in favour of the mother;
(iii) The hearing of the father's application for contact was set down for 27th May, 2011; and
(iv) The father was ordered to pay the costs of and incidental to the mother's summons on the indemnity basis.
16. On 26th May, 2011, the parties agreed further directions by consent, in particular that the hearing date of 27th May, 2011, be vacated due to the instruction of new legal representation by the father.
17. The father filed his affidavit on 28th July, 2011. New hearing dates were set down for 5th and 6th September, 2011.
18. On 31st August, 2011, the Court ordered, inter alia, that the hearing dated of 5th and 6th September, 2011, be vacated due to the unavailability of the mother's new legal representatives.
19. A further directions hearing took place on 5th September, 2011, as a result of which new hearing dates of 1st and 2nd December, 2011, were set down. The Court made further orders, inter alia, and in particular that:-
(i) Dr Williams, Mrs Emsley and the court welfare officer, Mrs Ferguson, provide updated reports;
(ii) The father be the subject of tests by the Alcohol & Drugs Service;
(iii) The mother should file Court bundles for the final hearing by close of business on 24th November, 2011; and
(iv) The parties should file and serve skeleton arguments by close of business on 25th November, 2011.
20. On 1st November, 2011, as a result of the contents of the updated reports of Ruth Emsley and Dr Williams and the threatening behaviour of the father, the mother was granted a non-molestation interim injunction against the father. By consent of the parties on 11th November, 2011, the order of justice was adjourned sine die with the power of arrest remaining on for a period of 6 months.
21. A directions hearing was set down for 23rd November, 2011. On 22nd November, 2011, the mother's legal representatives received an email from the father's advocate advising that he had resigned as the father's legal representative due to the father's failure to pay his legal fees.
22. The father did not appear at the directions hearing on 23rd November, 2011. His legal representative advised the Court of his resignation and submitted that an adjournment sine die would be a sensible manner of proceeding. The Court ordered that the hearing set down for 1st and 2nd December would continue regardless of whether or not the father appeared at the hearing. The mother's legal representatives agreed to produce a bundle for the hearing by close of business on 25th November, 2011. The matter of costs was left over.
23. The father did appear for the final hearing on 1st December, 2011. However, it became apparent, as a result of statements made to the Court by the interpreter for the father, that the father had not read the Court bundles and had no understanding of the contents of the reports of the professionals. In the interests of fairness, it was concluded by the Court, and agreed by the mother, that the hearing could not continue and should be adjourned to a new date. The father was advised to obtain legal representation and new final hearing dates were to be set. Indemnity costs were ordered in favour of the mother.
24. In its judgment of 1st December, 2011, the Court said this:-
25. On 14th December, 2011, Backhurst Dorey & Crane went on record as representing the father in respect of these proceedings. A date fix took place on 22nd December, 2011, at which time final hearing dates were fixed for 10th and 11th May, 2012.
26. On 12th January, 2012, the mother presented a representation to the Court in respect of behaviour perpetrated by the father which allegedly constituted a breach of the non-molestation injunctions referred to at paragraph 20 above, namely the issue of a letter to the Court containing threats of violence against the mother. The father was convened to a hearing on 16th January, 2011.
27. As a result of the matters set out at paragraph 26 above, the mother sought to effect service of the act of court dated 12th January, 2012, upon the father and upon his legal representatives Backhurst Dorey & Crane. The Viscount was unable to locate the father. The father's legal representatives refused service on the basis that they had not been provided with instructions and were not able to contact the father.
28. A hearing took place on 16th January, 2012, the purpose of which was to hear the allegations of the mother in respect of a breach by the father of the non-molestation injunctions. The hearing was not attended by the father. The Court issued a bench warrant for the father's arrest. It was noted that the father appeared to have left the jurisdiction.
29. A directions hearing took place on 13th March, 2012. The father did not attend the hearing. The father's legal representatives came off the record due to non-receipt of instructions. Standard directions were made for the final hearing.
30. On 10th April, 2012, the mother issued a form C2 application seeking a residence order in her favour, along with orders that the father shall not have any contact with the child (including indirect contact) without the leave of the Court and confirming that the father does not have parental responsibility (subject to the findings of the Court in respect of his own application). Due to the father's whereabouts being unknown to the parties, orders were made for service to be effected by substituted service upon an acquaintance and former employer of the father in Jersey and two of the father's sisters in Madeira.
31. A directions hearing took place on 19th April, 2012, in respect of the mother's application for, inter alia, residence. The father did not appear and the application was set down to be heard alongside his application on 10th May, 2012. A report from the Jersey Family Court Advisory Service was ordered in respect of the mother's application for residence. The Court ordered that service of the mother's application and notification of the date of the hearing should be served by way of substituted service on the father's sisters in Madeira (duly translated into Portuguese).
32. The father again failed to appear at the hearing on 10th May, 2012, but it was clear from two text messages sent by him to the mother that he was aware of the hearing. The Court heard evidence from the mother and from Mrs Ferguson, the court welfare officer. Mrs Ferguson recommended that the residence order in favour of the mother be confirmed, and that there should be an order prohibiting direct contact between the father and the child.
33. Parental responsibility is defined in Article 1 of the Children (Jersey) Law 2002 ("the Children Law") as follows:-
34. G-v-K [2005] JLR N 39 (following Re H (Illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214) sets out the factors to be considered by the Court on an application by a father for parental responsibility under article 5 of the Children Law which are, inter alia:-
It is clear that these factors are not exhaustive; all the relevant circumstances should be taken into account and the welfare of the child is paramount.
35. In Re H (a Minor) (Parental Responsibility) [1998] 1 FLR 855, Butler-Sloss LJ stated that:-
36. In LS-v-NS [2007] JLR N 37, the Court noted that as parental responsibility confers an important status on a father, it will usually be granted unless clearly contrary to the child's welfare.
37. We agree with Mrs Glynn's submission that the father had demonstrated very little commitment to the child and that his real aim was to cause difficulties to the mother by pursuing the application for contact and parental responsibility in order that he may exert some control over her. This is supported by Mrs Ferguson in her updated report dated 11th November ,2011, where she states:-
"Whilst it could be said that [the father] has committed to bring these proceedings they have been much delayed by him not giving instructions ... and a serious delay in filing an affidavit. He is not financially maintaining [the child] and has no intention of doing so in at least the near future.
Dr Williams questions [the father's] motivation for these proceedings and I would concur with his view in light of the comments [the father] has made to me about [the mother] and his intentions towards her."
38. In her initial report dated 26th October, 2010, Mrs Ferguson states:-
"From my discussions with [the father] I do not gain the impression that his motivation for either the parental responsibility order or the contact order is due to his concern about [the child]. Whatever was discussed he only wished to talk to me about the 'lies' that [the mother] has told various people in authority and wanting me to accept this ... [the father's] statement that if he can't see [the child] now then there is no point in seeing him until he is 12 or 14 years of age does not suggest a man who is wanting appropriate input into his child's health, education or other important matters during his formative years."
39. The father's commitment to the child is also questioned by Dr Williams in the Addendum Psychological Report dated 16th October ,2011, where he states:-
"[The father] also indicated that as a result of the costs incurred by bringing the matter before the Court it was unlikely that he would pursue contact with his son for much longer. Given this statement I was concerned about his motivation which appeared to be somewhat at odds with my understanding from the first report that his commitment to his son was unconditional."
40. It was our understanding that the father had been absent from the jurisdiction since January of this year and it is clear that he has not, during that time, attempted to contact the child indirectly (as he is permitted to do) in any way. Furthermore, he has not participated in the Court process in support of his own application since early December 2011.
41. There has been no contact between the father and the child since February 2010, when the child was 17 months old and the father only had intermittent contact between that date and his date of birth.
42. Mrs Ferguson states in her updated report dated 11th November, 2011, that the father has not considered the practicalities of contact with the child.
"I was also struck by the little thought that [the father] had put into any detail of contact between him and his son. He had little idea of where, when and how often he would like to see him and needed to be drawn back to that discussion when he preferred to continue to denigrate [the mother]".
43. The mother's position is that the father continues with this application to cause her difficulty and that he seeks an order for parental responsibility in respect of the child so that he can exert control upon her.
44. It is clear from the reports of Mrs Ferguson and Dr Williams that the father's commitment to the child is questionable and they indicate that his issues with the mother are the main reason behind this application.
45. The Court noted that Mrs Ferguson recommended that the Court does not make a parental responsibility order at this time. Taking all these matters into account, the Court determined that the father should not be granted parental responsibility for the child.
46. Article 2 of the Children Law sets out the factors to be taken into consideration by the Court when considering whether or not to grant an Article 10 order:-
47. A number of cases show that the favoured position is one of direct contact where possible, with indirect contact taking place where it is decided that direct contact is not in the best interests of the child (see C-v-D [2000] JLR 334). It is clear that it is not in the best interests of a child to be permanently deprived of all contact with the father in all but exceptional cases (see W-v-H [1980] JJ 13). However the Court will order that contact should not take place if it is considered to be in the child's best interests which are paramount (see F-v-S [1997] JLR 160).
48. It was the mother's case that this is one of those exceptional cases in which the Court should make an order denying any direct contact between the father and the child.
49. The child will be four years old in August and has complex needs including delays in his speech and language. Mrs Ferguson rightly did not feel it appropriate to carry out an individual session with him but he has lived with his mother since birth and she has been his primary carer. Mrs Ferguson observed a very strong attachment between the mother and the child. The mother informed us that she has been careful not to write the father out of the child's life. She shows him pictures of the father, explaining that he is not here and she ensures that he keeps a remote control car, which is the only present the father has given him, and other mementoes. The mother has an intense fear of the father and in the light of the background any direct contact would have to be handled with considerable care but we assumed that the child would wish to have a relationship with his father if that were possible.
50. The mother has met the child's physical and emotional needs from birth. At paragraph 6.16 of the report Dr Williams prepared for these proceedings, dated 28th January, 2011, he noted that the nursery had concerns that as a result of the mother's anxiety about the child, she found it difficult to accept advice around issues such as feeding and behaviour. In his addendum report of 16th October, 2011, at paragraph 4.10, he notes that the child was making progress and that there was evidence that the mother had begun to accept that his problems were developmental in nature. The child has continued to attend Westmount Nursery who are able to access additional support for him. Mrs Ferguson was advised recently that the child was doing very well and that the mother was assessed as doing all she can to help his development; they have no concerns about her parenting.
51. The only change anticipated in this matter was the possibility of direct contact between the father and the child. In her report of 29th January, 2011, Dr Emsley, a chartered forensic psychologist, reported inter alia that the father continued to minimise his offence and remains an untreated perpetrator of domestic violence. She did not consider it safe for him to have unsupervised contact with the child. He was assessed by her as being at high risk of committing a future violent act. In her update of 18th October, 2011, she said there had been no attempt by the father to gain access to the intervention she had recommended and there was no reason for her to change her opinion.
52. In his updated report of 16th October, 2011, Dr Bryn Williams, a consultant clinical psychologist, advised that in the event of the child and the father being rehabilitated, he would recommend that contact be undertaken for an interim period in a highly supervised and facilitated environment. It is noteworthy that in his interview with Dr Williams the father threatened to carry out violence towards the mother.
53. Any change by the introduction of the father into the life of the child would therefore have to be handled with great care. That process was not possible to explore further in the absence of the father from the jurisdiction and from the proceedings and his demonstrated lack of commitment towards the child.
54. As previously mentioned, the child is nearly four years old, is male and has complex developmental needs.
55. Whilst there is no evidence of the father physically harming the child, it is clear from the advice we received that in view of his propensity for violence, there was a risk of the child suffering harm from exposure to such violence between the father and the mother if direct contact were to be resumed and of emotional harm to the child should the father use contact as a means of denigrating the mother.
56. The mother has cared for the child since birth and the evidence is that she is capable of meeting his needs. Mrs Ferguson observed good inter-action between the mother and the child and the child's language has developed since Dr Williams wrote his report, although it is slightly more delayed than his peers. Mrs Ferguson observed that he was able to communicate verbally with those around in both English and Portuguese.
57. In the light of the evidence the Court had serious doubts about the capacity of the father to meet the child's needs.
58. The Court had the power to make a contact or no contact order and the power to confirm or terminate the residence order made on 15th April, 2011. The Court also had to take into account the "no order" principle set out in Article 2(5) of the Children Law.
59. This is a case in which even with the father showing commitment to the child and to the proceedings, any decision to allow direct contact would have to be considered with the greatest of care and indeed, the obstacles may be insurmountable. The father has a record of violence and it is disturbing that as recently as January this year, he saw fit to issue a letter addressed to the Court which appeared to contain threats of violence against the mother.
60. It is clear from the authorities cited to us by Mrs Glynn that in cases of domestic violence an important factor is whether the offending parent recognises that what he has done is wrong, is aware of the need for change and has taken steps to correct the deficiency in his character (see In re L A (A Child) (Contact: Domestic Violence), In re V (A Child), In re M (A Child) In re H (Children) [2001] Fam 260. There is no presumption against contact simply because domestic violence is alleged or proved, but it is one factor which might affect the presumption in favour of contact when the Court carries out the balancing exercise applying the welfare principle.
61. In this case, we have no such recognition on the part of the father and we agree with Mrs Glynn that it is clear from the reports that he is consumed by his anger towards the mother. He has told the experts that he intends to tell the child about all of the allegations he has made about the mother.
62. Furthermore, the father has not thought fit to appear in the proceedings and it would therefore have been impossible to make a direct contact order in his favour, even if we had been minded to do so. Mrs Ferguson did not recommend a direct contact order, but accepted that appropriate indirect contact through the Jersey Family Court Advisory Service would be in the child's interest. Sadly, the father shows no interest in even indirect contact in this way. He appears to want direct contact on his terms, or not at all.
63. In terms of the residence order, we agreed that it should be confirmed. In so far as this jurisdiction is concerned it was not strictly necessary, as it is clear that the child has always lived with the mother, but the mother may wish to travel with the child outside the Island on holiday and in particular to Madeira, and it is important for the benefit of any foreign court that this Court, which has jurisdiction over the child, has formally confirmed that the child lives with the mother, who has sole parental responsibility. Accordingly, the Court -
(i) dismissed the father's application for contact and confirmed that the mother has sole parental responsibility for the child;
(ii) confirmed the residence order in favour of the mother in respect of the child made on 15th April, 2011;
(iii) ordered that there shall be no direct contact between the father and the child but age appropriate indirect contact via the Jersey Family Court Advisory Service is permitted;
(iv) ordered pursuant to Article 66(8) of the Children Law that no further application shall be made by the father for contact or parental responsibility without the leave of the Court. That order shall remain in force until such time as the father has answered the mother's representation dated 10th January, 2012, alleging contempt of Court, the matter has been finally determined by the Court and any orders made by the Court have been fully complied with; and
(v) ordered that the father shall pay the mother's costs incurred in relation to the father's application and the mother's application on the indemnity basis, such costs to exclude those already dealt with by previous orders of the Court.
