Jersey Unreported Judgments
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URL: http://www.bailii.org/je/cases/UR/2011/2011_016.html
Cite as: [2011] JRC 16, [2011] JRC 016
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of NN [2011] JRC 016 (19 January 2011) URL: http://www.bailii.org/je/cases/UR/2011/2011_016.html Cite as: [2011] JRC 16, [2011] JRC 016 |
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[2011]JRC016
royal court
(Samedi Division)
19th January 2011
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Before : |
J. A. Clyde-Smith, Commissioner, and Jurats de Veulle and Nicolle. |
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Between |
A |
Appellant |
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And |
B |
Respondent |
IN THE MATTER OF NN
Advocate C. M. Fogarty for the Appellant.
Advocate R. E. Colley for the Respondent.
judgment
the commissioner:
1. This is an appeal by A ("the father") against the decision of J M O'Sullivan, Deputy Registrar, (Family Division), made on 22nd October, 2010, to order indirect contact between the father and the two children, namely Child 1 and Child 2, and to decline to order that the father have parental responsibility for the children.
2. The father and B ("the mother") were not married. They met at university in Poland and moved to Jersey in June 2004. The history of the matter is summarised in paragraphs 2 - 9 of the Deputy Registrar's judgment, which it is convenient to set out in full:-
3. Following the granting of the injunction the father was denied contact with the children. He filed a form C1 applying for contact and parental responsibility on the1st December, 2009. The hearing before the Deputy Registrar took place on 20th, 21st and 22nd October, 2010. She heard evidence from Dr Bryn Williams, the Child Psychologist, Mrs Jane Ferguson, the Court Welfare Officer, and Mrs Ruth Emsley, the Adult Psychologist. Their written reports and evidence are comprehensively summarised in the Deputy Registrar's judgment.
4. At the end of the second day of the hearing, following the evidence of the experts, the father indicated that he would not be giving evidence in support of his applications for contact and parental responsibility. This took the Deputy Registrar by surprise and she made it clear that she wished to hear from him and to ask him certain questions. Mrs Colley was also expecting to cross examine the father and had presumed that Miss Fogarty would be cross examining the mother.
5. The following day, after hearing submissions from counsel, the Deputy Registrar ruled that whereas there was authority under English law for the proposition that parents can be compelled to give evidence in public law cases, there was no authority to support the proposition that the Court can compel a parent to give evidence in private law cases. She therefore accepted that the father could not be compelled to give evidence in these proceedings. She indicated that it would be helpful for the Court to hear from him in respect of his applications but if he declined to do so then she would have to make her decision on the basis of the material before her.
6. Miss Fogarty explained to the Deputy Registrar that the father had admitted the facts in relation to his violence as set out in the mother's affidavit thus sparing her from the necessity of giving evidence and those facts had been "minutely rehearsed" by the three expert witnesses and tested in cross examination. The father had heard the evidence of the experts which he accepted. He had nothing to add to that evidence and given the recent assessments of the experts, it would be a waste of the Court's time for him to do so.
7. The Deputy Registrar referred in her judgment to the case of Re O (care proceedings: evidence) (2004) 1 FLR 161 in which the issue of the mother's failure to give evidence in public law proceedings was raised. In his judgment, Johnson J said:-
8. The transcripts show that the Deputy Registrar and Mrs Colley found the decision of the father not to assist the Court by giving evidence in these private law proceedings concerning his children no less unique. No point was taken on this appeal as to whether it is correct that a parent cannot be compelled to give evidence in private law proceedings and we heard no argument on the issue. However bearing in mind the statutory requirement under Article 2 of the Children (Jersey) Law 2002 for the Court to give paramount consideration to the welfare of the children when determining any question with respect to their upbringing, we express the view that the Court must at the very least be entitled, if not obliged, to indicate to the parties the evidence it would wish to hear in order properly to discharge its statutory duty and it must be the duty of the parties to provide that evidence if reasonably possible. It cannot be for a party to decline to provide evidence in the face of an express request by the Court and even if he or she cannot be compelled by the Court to provide that evidence, then depending on the questions that fall to be determined, the Court may well have to draw inferences adverse to that party, although it is clear that in this case the Deputy Registrar did not do so. Upon inquiry from this Court, Miss Fogarty stated that the father would now be willing to give evidence although there was no application made to do so in this appeal.
9. The father went further in withdrawing any reliance upon the two witnesses who had provided statements for the Court on his behalf and he did not require the mother to give oral evidence and be cross examined as to her written evidence and the evidence of what she had said to those who filed reports. As a consequence the only evidence the Deputy Registrar had before her was the mother's affidavit sworn on 19th November, 2009, in support of the application for an injunction setting out the allegations of violence made against him, which the father accepted, the evidence of his breaches of the injunctions and the evidence of the three experts.
10. As Miss Fogarty said in her closing submissions to the Deputy Registrar, all of the experts agreed that the father had not yet reached a place where the Court would contemplate unsupervised contact and she did not therefore argue that it should do so, although it was the father's earnest desire to have unsupervised contact one day. She therefore agreed with the Deputy Registrar that the Court faced a choice between indirect contact as recommended by Dr Williams and Mrs Ferguson or supervised contact, as recommended by Mrs Emsley. By her reference to supervised contact, Mrs Emsley made it clear that the supervision should be undertaken by a professional who is competent to monitor and assess the quality and appropriateness of the interactions between the father and the children on an ongoing basis.
11. Mrs Ferguson confirmed to the Deputy Registrar that there was currently no facility in the Island for supervised contact (i.e. contact supervised by persons with appropriate training), although it was anticipated that such a service would be introduced through Millis contact centre, whose staff would be trained. It could, however, be a year before it is available. Millis currently provide "supported" contact only.
The test on appeal
12. The test on appeal is that now set in Downes-v-Marshall [2010] JRC 115B, namely:-
Under this new test, the Court places greater weight on the Deputy Registrar's exercise of discretion, recognising her expertise, exposure to the primary evidence and the length of time spent processing and hearing the particular case - in this case, some three days.
Grounds of appeal
Parental responsibility
13. In respect of parental responsibility, having referred to the three-fold test namely:-
(i) the degree of commitment which the father had shown towards the child;
(ii) the degree of attachment which exists between the father and the child and
(iii) the reasons for the father applying for the Order (see L.S.-v-N.S. [2007] JRC 103A)
14. The Deputy Registrar set out her conclusions as follows:-
15. Miss Fogarty submitted that the Deputy Registrar was wrong to deny the father's application for parental responsibility. The Deputy Registrar had, she said, ignored the very relevant matter that a married parent, however inadequate, receives parental responsibility automatically. The father is the children's biological father and it is discriminatory and wrong in principle not to have granted the order sought and there were no compelling reasons not to grant the order. The Deputy Registrar's principal reason for denying parental responsibility was that the father could "use it to exert control over the mother" although she submitted that there was no real evidence that he would do so. Furthermore, it was clear from LS-v-NS at paragraph 17 that parental responsibility gives the father an entitlement to share with the mother responsibility for all important strategic decisions affecting the life of the child such as the choice of school or choice of religion but does not mean involvement in routine daily decisions affecting the life of the child. Thus even if the father were seeking responsibility in order to control the mother, it would not give him the means to do so.
16. Mrs Colley referred us to B-v-UK (2000) 1 FLR 1 in which it was held by the European Court of Human Rights that there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights which related to the range of possible relationships between unmarried fathers and their children. Quoting from the judgment at page 5:-
17. We therefore reject the father's assertion that the Deputy Registrar's order discriminates against him in breach of his Convention rights. The general principles to be applied with regard to applications for parental responsibility, as applied by the Deputy Registrar, were laid down by the English Court of Appeal in Re H (Minors)(Local Authority: Parental Rights)(No. 3)(1991) FAM 151, accepted by this Court in LS-v-NS as applying in this jurisdiction, namely, quoting from the judgment of Balcombe LJ:-
18. The father complains that his decision not to give evidence was held against him by the Deputy Registrar who focused unduly on his motivation for applying for parental responsibility. We reject this suggestion. She had evidence in the form of the mother's affidavit detailing the violence inflicted upon her on occasions in the presence of the children on an almost daily basis, violence accepted by Mrs Emsley to be at the "high end" of aggression, the evidence of his breaches of the injunctions, the evidence of Mrs Emsley as to the father's psychological makeup and the evidence of Mrs Ferguson as to how in cases of severe domestic violence parental responsibility can be used by the perpetrator.
19. As against that, she had no evidence from the father, despite the clearly expressed wish of the Court to hear from him, to explain why he wanted parental responsibility and more particularly, that he would not use it in a destructive way. All of the positive aspects of the father's application that could be gleaned from the evidence actually before her were expressly taken into account, in particular his commitment to the children both in bringing the proceedings and financially, the attachment between him and Child 1 and his accepted love of both of them.
20. Applying the test in Downes, it is not suggested that there has been a procedural irregularity. The Deputy Registrar did not take into account irrelevant matters or ignore relevant matters and on the evidence before her, it cannot in our view be argued that her conclusion was wrong. In the absence of any evidence from the father as to his own motivation, she had no alternative other than to infer his motive from the evidence that was before her. There were ample grounds on that evidence for her to conclude that the father wished to have parental responsibility because he believed it "his right" and so that he could exercise some control on the mother and children.
21. Furthermore, her approach on the issue of parental responsibility was consistent with the approach of the English Court of Appeal in the analogous case of Re L (a child) (Contact:Domestic Violence) (2001) FAM 260, an extract of whose judgment she cited (see paragraph 14 above).
22. There are no grounds to interfere with the decision of the Deputy Registrar in relation to parental responsibility but the door is not closed to the father, as the Deputy Registrar made clear. She would be prepared to look at the matter afresh in the light of the father's commitment to indirect contact and indeed his response to her judgment and acceptance that he is a violent man who has put the mother in fear.
Contact
23. The final conclusions of the Deputy Registrar were as follows:-
24. The grounds of appeal in relation to the Deputy Registrar's order for indirect contact were summarised by Miss Fogarty as follows:-
We will take these grounds together.
25. In the prayer to the father's skeleton argument, he sought the following orders from this Court:-
"1. An order for direct contact between the appellant and Child 1 and Child 2 on such terms and with such ancillary orders as the Court shall deem appropriate;
2. That a Court Welfare Officer should re-introduce the appellant to both children;
3. That funding should be made available to facilitate contact, whether by a member of the Children's Service or another professional; and, if the court deems it necessary."
26. Miss Fogarty made it clear that in seeking an order for direct contact, the father was seeking an order for either supervised or supported contact as the Court deemed appropriate. He had identified a friend who could provide supported contact. Under the new test for appeals from the decisions of the Registrar, it is not now open for the father to seek from this Court on appeal an order he did not seek from the Registrar, namely an order for supported contact unless we first set aside the decision of the Deputy Registrar under the new test. Even if we could be persuaded that out of the two options before the Deputy Registrar she was wrong to order indirect contact as opposed to supervised contact, it is clear to us that the Court does not have jurisdiction to order the Minister of Health and Social Services, who is not a party to these proceedings, to fund a service for supervised contact.
27. As stated in Re E (Family Assistance Order) (1999) 2 FLR 512, the English Court had no power under broadly similar legislation to make orders against local authorities in private law proceedings requiring the authorities to supervise contact. The English Court did have, however, as indeed does this Court, jurisdiction in private law proceedings to make a family assistance order requiring a local authority to make officers available to advise, assist and befriend. However, such an order requires the consent of every person named in the order and in any event, Miss Fogarty informed the Deputy Registrar that she was not seeking a family assistance order until she learned what order would be made by the Deputy Registrar.
28. Furthermore, it was held in S and P (Contact application: Family Assistance Order) (1997) 2 FLR 277 that it was not for a judge to order a local authority to undertake escort duties under the guise of a family assistance order. Ultimately, it was a matter of management by a local authority and not a matter for the Court.
29. Miss Fogarty cited Ciliz-v-The Netherland (Application No. 29192/95) 11th July 2000 to support the proposition that Jersey has a positive obligation to ensure that family life between parents and children can continue after separation and also a negative obligation to refrain from measures which cause family ties to rupture. By failing to provide a facility to supervise contact if ordered, Jersey was not meeting either of these obligations. However, these are contentions which can only be pursued with the Minister and if appropriate, any decision ultimately challenged by way of judicial review (see Re X [2009] JCA 083).
30. Thus, it can be seen that the Deputy Registrar did not have a real option before her in that as she noted, an order for supervised contact would have been of no effect. However, it was not for that reason that the Registrar determined not to order supervised contact. She accepted the recommendations of the two experts that on the merits of the case (and not on the grounds of resources) there should be indirect contact until the father had shown capacity to change. The Deputy Registrar dealt with the differences over contact between Dr Williams and Mrs Ferguson on the one hand and Mrs Emsley on the other hand in this way:-
31. It was not contended by Miss Fogarty that the Deputy Registrar had misdirected herself in law. Indeed she quoted extensively from the leading English Court of Appeal decision in Re L, a case which stressed the need for greater awareness of the effect of domestic violence on children as victims as well as witnesses, and also the impact on the residential parent. It is worth setting out in particular two passages from the judgment of Dame Elizabeth Butler-Schloss in Re L cited by the Deputy Registrar:-
32. In this case there was a firm basis for finding that violence had occurred, namely the father's acceptance of the mother's Affidavit. The psychological evidence before the Deputy Registrar, both from Dr Williams and Mrs Emsley therefore became very important, together with the ability of the father to recognise his past conduct, be aware of the need to change and make genuine efforts to do so and to demonstrate a track record of proper behaviour.
33. Miss Fogarty referred us to G-v-A [2005] JLR 93 where contact was ordered as it would be in the best interests of the children, who were entitled to the opportunity of a natural loving relationship with their mother. The Court stated that the best interests of the children were paramount and contact with both parents would almost always be in their best interests. The mother's imperfections were irrelevant to contact, as it was not ordered as a reward for her, but rather because it was in her children's best interests. However, as Mrs Colley pointed out, the allegations of abuse by the mother, described as "moderate", had been investigated by the police and no charges were brought. The expert opinion and the Court's finding was that the resident father had alienated the children against the mother, and there were clear recommendations from both the Children's Service and the Child Psychologist that direct contact with the mother should take place. In our view this case does not assist the father.
34. In C-v-D [2000] JLR 334 a father, in what was described as a stormy relationship with the mother with frequent arguments, had assaulted her a number of times and had once been put on probation and twice sent to prison. It was held that although the father's behaviour was not the worst of cases, the mother had been so traumatised that any order for contact would upset the stability of the family and greatly harm all the family members, including the child. Indirect contact, however, was not only desirable but essential. Miss Fogarty sought to distinguish this case from the case before us on the grounds that the father has no convictions and the mother has not been traumatised by the admitted violence. Mrs Colley submits that the abuse in this case is more serious and violent than that in C-v-D.
35. The Deputy Registrar considered C-v-D and we can find no criticism in her conclusion as follows:-
36. Miss Fogarty contended that the Deputy Registrar had taken insufficient account of the wishes of Child 1 to see the father. It is clear to us that the Deputy Registrar did accept the evidence of a good relationship between Child 1 and the father and that Child 1 had positive memories of him and it was not disputed that Child 1 had expressed the wish to see him, but the Deputy Registrar took into account the law applicable to children's wishes when she cited this extract from Re L:-
37. Contrary to her closing submissions to the Deputy Registrar that the evidence of all three experts was credible, in her submissions to us Miss Fogarty argued that their evidence lacked credibility and in fact had been discredited by her in cross examination before the Deputy Registrar. The experts had expressed theoretical views in a vacuum. Theory, she said, must be related to the evidence. There was no evidence that the children had been damaged by witnessing the violence against the mother or that they would be at risk in supervised contact. The risks mentioned by the experts were, she said, hypothetical. The father's desire for contact is genuine. There is no reason to suppose that Child 1 is other than truthful in expressing a desire to see the father. In a supervised setting any perceived risks would be negligible. The experts had conceded this.
38. To support her assertion that the evidence of Dr Williams should be discredited, Miss Fogarty referred us to pages 10 and 16 of the transcript of his evidence. On page 10, he had accepted under cross examination that there was no evidence that the father had been directly physically violent to any of the children or that the conflict at that point between the parents had in fact had any psychological effect on either child, whereas on page 16 he said it was completely inaccurate to say that there was no evidence that there had been any harm. However that later comment, in our view, was made in the context of what was happening within the family generally, and we find no inconsistency.
39. The Deputy Registrar accepted Dr Williams and Mrs Ferguson's reasons for recommending indirect contact:-
40. She also went on to accept the advice that supervised contact had to be part of an ongoing process and not to continue indefinitely (see paragraph 23 above).
41. Miss Fogarty submitted that the Deputy Registrar focused upon the negative aspects of the character and behaviour of the father rather than the positive and the fact that he had co-parented Child 1 from birth until 19th November, 2009. We find that latter suggestion difficult and surprising, bearing in mind the admissions he has subsequently made as to the violence he inflicted upon the mother, on occasions in the presence of Child 1, during this period, and this in the light of the observations in Re L that such conduct involves a significant failure in parenting.
42. As to focusing on the negative aspects, the father did not assist the Deputy Registrar by giving evidence to potentially redress the inevitably negative impact of the affidavit evidence of the mother as to his violence, the evidence of his breaches of the injunction and the findings of the experts. He did not, for example, give evidence about the new relationship he told Mrs Emsley he was developing with a Polish woman, which Mrs Emsley advised could, if free of domestic violence, be a protective factor. In our view, however, the Deputy Registrar did not err in her approach to the evidence, in that she took as her starting point the principle that it is a child's best interest to have a relationship with his or her father and only declined to order supervised contact because it was not in the interests of the children to do so. As Mrs Colley put it, the negative elements of the father's character and behaviour unfortunately outweighed any positive factors and it was those negative elements that in the interests of the children required that contact be maintained at an indirect level.
43. Applying the test in Downes, it is not suggested that there has been a procedural irregularity. It cannot be said that the Deputy Registrar has taken into account irrelevant matters or ignored relevant matters, nor can it be said that the Deputy Registrar arrived at a decision that was wrong. The opinions of the experts in our view were not founded upon theory expressed in a vacuum, but were expressed in the context of firm evidence namely the admissions of serious violence by the father as set out in the mother's Affidavit, his breaches of the injunctions and the psychological assessment of the father. The evidence of the experts was credible (as Miss Fogarty conceded before the Deputy Registrar) and the Deputy Registrar was justified in accepting the recommendation of Dr Williams and Mrs Ferguson that there should be indirect contact while giving a rational explanation for not accepting the recommendation of Mrs Emsley that there should be supervised contact.
44. We have not addressed the sixth ground namely the bare statement that there has been an absence of violence since 19th November, 2009, as it does not constitute a ground of appeal. In any event it is not a matter to which any weight should be given bearing in mind the parties have been living apart since then and the mother is protected by the injunctions, save when they are breached.
45. There are no grounds, in our view, to interfere with the decision of the Deputy Registrar in relation to contact and we therefore dismiss the appeal.
46. We acknowledge, however, that there is considerable force in Miss Fogarty's contention that the father has been given no tangible recommendation as to how he might change to enable him to move away from indirect contact. It is not, in itself, a ground of appeal as it does not go to the Deputy Registrar's reasoning for her decision and there is no requirement for her to make such a recommendation. However, in the interests of the children, and bearing in mind Dr Williams' advice that in general terms it was important for children to have weekly contact with both parents before the age of 5, we express the view that the Court Welfare Officer should, in the light of the evidence of Mrs Emsley, investigate what work can be undertaken in this jurisdiction to assist the father, bearing in mind his means are limited. In paragraph 7.4 of her second report, Mrs Emsley recommended that the father be offered the opportunity to continue to work on his domestic violence issues, and in particular that it might be beneficial to him to undertake work with a psychologist to explore the impact of his interactional style upon others and how such a style might impact upon his children if they were to witness it. At paragraph 7.5 she also recommended that he undertake work to gain insight into the impact of domestic violence upon children, albeit that they are not direct victims of such behaviour. The father may also benefit, she advised, from developing a greater understanding of the way in which the negative experience of a mother from an ex partner may contaminate relationships within her family, thus impacting upon the children. Depending upon the outcome of those investigations, it would again be in the interests of the children for a time table to be put in place for that work to be undertaken by the father.
47. In the meantime, it must be clear to the father that he should establish indirect contact with the children as ordered by the Deputy Registrar (and it would appear that he is indeed doing so) and that in any future applications to the Court, he should assist the Court by giving evidence as he is now apparently prepared to do.