Jersey Unreported Judgments

Care proceedings - application by the third respondent for a parental responsibility order in respect of the child.

[2013]JRC244

Royal Court

(Samedi)

2 December 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Milner.

 

IN THE MATTER OF B (CARE PROCEEDINGS)

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

Advocate S. L. Brace for the Minster.

Advocate G. A. H. Baxter for the First Respondent.

Advocate H. J. Heath for the Second Respondent.

Advocate C. R. Dutôt for the Third Respondent.

judgment

the deputy bailiff:

1.        The father has made an application for an order for parental responsibility in respect of the second respondent, his daughter, in accordance with Article 5(1)(a) of the Children (Jersey) Law 2002 ("the Law"). 

2.        The second respondent was born in 2012.  There appears to be no dispute that her parents are the first and third respondents.  However the parents were not married to each other at the time of the child's birth and as a result the father does not have parental responsibility. 

3.        In 2012 the father was sentenced by the Royal Court to two years' imprisonment for a grave and criminal assault.  At the sentencing hearing, the Court also made a recommendation for deportation. 

4.        After the child was born, the mother took her from time to time to HM Prison in order that the father could have some contact with his daughter.  We have no information as to the quality of those visits or of the contact which took place.  Following a disagreement between the parents early in 2013, the contact became more sporadic, although the father had seven visits with his daughter between 12^th April and 1^st July, 2013.  Against the wishes of the father, there was no contact from 2^nd July until 6^th September, 2013.  There have been a number of supervised contact sessions since then which have been increasingly successful. 

5.        On 15^th July, 2013, the Minister's application for an interim care order in respect of the child was granted.  Following the adoption of the interim care plan, the child was placed in the care of her paternal aunt, in whose care she has in fact resided since 1^st July, 2013.  The care proceedings continue.  A Connected Persons Assessment is being undertaken by the fostering and adoption team to consider whether the child's aunt is suitable as a long term carer, should this be considered appropriate at the time of the application for a final care order. 

6.        Since the time when the child has been in the care of his sister, the father has been in touch with her on a very regular basis to ask after the child's welfare.  We are told that such contact may even take place on a daily basis.  In her report to us, the guardian, explaining her experience of a contact session between the father and the child, was struck by the depth of his day to day knowledge of her activities.  When the guardian arrived with the child and her aunt, the father asked his sister unprompted whether the child had slept better the previous night.  This was an illustration of the extent to which the father was showing commitment to the child. 

7.        We also have the benefit of a detailed report from Ms Sarah Jenner, the social worker responsible for this child.  It was clear that at the time of writing this report Ms Jenner was also persuaded by the father's commitment to his daughter. 

8.        In the circumstances therefore the father's application was supported by both the Minister and the guardian, who contended that he had demonstrated a commitment to his daughter over a protracted period:-

(i)        Statements made to prison officers for many months that he had been considering an application for parental responsibility, a course from which he was only dissuaded by the mother who told him it was not necessary. 

(ii)       Some very good contact sessions since early September. 

(iii)      A sensible approach both to Children's Services and the guardian. 

(iv)      The enquiries made by telephone to his sister on a regular basis since July 2013. 

(v)       His confirmation that he would cooperate in the preparation of a story book for his daughter which would help her in her self-orientation and appreciation of what had happened in the early years of her life. 

9.        The mother rested on the wisdom of the Court, neither supporting nor objecting to the application. 

10.      We were told that the father is likely to be deported from the Island during the week beginning 28^th October, 2013.  It had initially been thought that the deportation would take place on 28^th October, but for administrative reasons, that may be slightly delayed.  At all events, for today's purposes the father has accepted that, subject to successful judicial review, if an application be brought, he will be deported to the country from whence he came many years ago.  He does not wish to stay there, and through his counsel has indicated an intention to apply for leave to enter the United Kingdom, which if permitted by the Secretary of State, would enable him to have a base closer to Jersey for the purposes of any contact with the child or indeed other communication regarding her that might take place. 

11.      During the course of the hearing, an issue arose as to whether Advocate Dutôt's legal aid certificate would be revoked once the deportation had taken place.  In that event, it would be very difficult for the father to maintain his application.  Given that these proceedings, and indeed the main care proceedings, concern the care of a child, we were surprised that such a problem might have arisen.  At all events, after the lunch adjournment, Advocate Dutôt was able to confirm to us that not only had she received an oral confirmation from the legal aid office that the legal aid certificate would not be revoked, but in any event, even if it were revoked, her employers Messrs Davies and Ingram were content for her to continue representation of the father, presumably on a legal aid footing.  We note this because the reported oral confirmation from the legal aid office and the assurance of Advocate Davies are in keeping with the high standards of the profession in making legal representation available in sensitive cases involving the care of a child. 

12.      Early on in the course of argument, the Court expressed some concerns about the application.  The test was not what was in the best interests of the father, but what was in the best interests of the child.  At some future date, the Royal Court in the care proceedings will resolve whether a care order is to be made, and if so, where the child is to live - with her paternal aunt, with a parent, or with someone else.  If the latter of those three options turns out to be the case, the chances are that the Court will be faced with an application for a freeing order and an adoption, given the age of the child. 

13.      Furthermore, the father is to be deported and at present we do not know where he will end up living.  It will not be in Jersey and we do not know how easy it will be for him to maintain the commitment which he has shown so far.  Following his release from prison and deportation, the father will undoubtedly face many challenges.  It is said that he has, perhaps belatedly, turned over a new leaf and now wants to start afresh.  A relationship with his daughter might well be very important to him in that context.  We are conscious that while he has been in custody, and while he has the support of the prison authorities, it has been relatively easy for him to demonstrate the level of commitment he has.  We use the word "relatively" only by way of comparison with the difficulties which he will face on release.  We hope that he has turned the corner, and this latest episode in prison has provided the spur to avoid the causes of his problems, which include alcohol abuse.  We very much hope so - at the moment that is all rather uncertain. 

14.      It is helpful to remind ourselves what is meant by "parental responsibility".  It is defined in Article 1 of the Law as meaning "all the rights, duties, powers, responsibilities and authority which the father of a legitimate child had in relation to the child and the child's property prior to the commencement of Part 1, save that rights in respect of custody shall not be exclusive".  The Court which ultimately deals with the father's application will need to make its own assessment of the position having regard to the outcome of the care proceedings, the conduct of the father after his release and the continuing commitment in particular which he shows towards the child. 

15.      The father considers that he has already demonstrated his commitment to his child.  However, Advocate Dutôt informed us that he had listened carefully to the exchanges in Court and that he was willing to show the Court that the commitment that he had would be continued over the coming months.  He recognised the force of the comment from the Court that his position in seeking parental responsibility could indeed be strengthened, if circumstances went well, by his post release conduct.  For that reason he was prepared to ask the Court to adjourn the application for parental responsibility so that it was considered within the care proceedings at the appropriate time.  In agreeing to that adjournment, in circumstances where he will most certainly have had his hopes raised by the support given by the guardian and by the Minister, and in circumstances where the news around his deportation was not going his way, the father has shown an exemplary approach.  If he can continue to show that approach, a continued commitment to his child and a continued engagement with the Children's Service and the guardian in the period between now and final resolution of the care proceedings, we think that it is very likely that the Court will then be persuaded by his application. 

16.      In our judgment, however, it is right to adjourn the matter in the light of the present uncertainties in the hope that these will be resolved over the coming months. 

No Authorities