Jersey Unreported Judgments

[2007]JRC103A

royal court

(Family Division)

24^th May 2007

Application for increased access and further for parental responsibility.

Advocate C. J. Scholefield for the Respondent.

Petitioner represented herself.

judgment

the bailiff:

1.        This is an action brought by an Order of Justice by N.S. to whom we shall refer as 'the father' against L.A.S. to whom we shall refer as 'the mother' seeking parental responsibility for and contact with the child of the parties to whom we shall refer as 'A'.

2.        The father and the mother met in September 2003 and began living together in February 2004.  A was born in March 2005.  The father and the mother are not married.  Difficulties ensued between them and their relationship broke down in May 2006 in highly acrimonious circumstances and the father moved out of the joint home.

3.        Allegations and counter-allegations have been made, but we do not find it necessary at this stage to resolve those disputes.  On 30^th May, 2006, the father filed a form C1 seeking parental responsibility and contact with A.  On 1^st June, 2006, the mother began proceedings and obtained an interim injunction from the Lieutenant Bailiff in the following terms:

"(a)      Preventing him from contacting, communicating, or following in any way the plaintiff.

(b)       Preventing him from harming, molesting, harassing or threatening and otherwise abusing in anyway the plaintiff.

(c)       Preventing him from entering on to any part of the land forming the entire development known as 'Landscape Grove, Mont Cochon, St Helier; and

(d)       Restraining the defendant until further order whether by himself, his servant or his agent on his behalf from removing A from the plaintiff's care and/or from the jurisdiction of the Royal Court without the prior written consent of the plaintiff or further order of the Court and granted a power of arrest in support of those injunctions.

4.        On 9^th June, 2006, paragraph (a) of that Order was amended and the following qualification added:

"Save and except to facilitate contact between A and [the father] and in the event of [the mother] and [the father] jointly attending mediation sessions."

5.        Mediation was subsequently attempted but did not succeed.  Interim supervised contact with A was agreed and took place on a number of occasions at Milli's Contact Centre.

6.        On 17^th August, 2006, the arrangements for supervised contact were embodied in an Order of the Deputy Registrar who also ordered that the mother should not permanently remove A from Jersey nor take him out of the Island for more than two weeks without the agreement of the father or further order.

7.        Further procedural hearings took place before the Deputy Registrar.  Difficulties ensued in relation to contact with a number of recriminations being exchanged.  On 4^th October, 2006, the father alleged, by representation, that the mother was in contempt of Court by failing to comply with the arrangements for contact sanctioned by the Court.  On 11^th October, 2006, the Deputy Registrar referred the father's application for parental responsibility to this Court.

8.        On 13^th October, the contempt proceeds were adjourned to another day.  On 26^th October the father obtained an injunction from the Deputy Bailiff preventing the mother from removing A from the jurisdiction of the Court at all until further order.

9.        On 1^st February, 2007, the Court considered an application by the mother to extend the power of arrest for a further six months.  The Court refused the application generally but by consent re-imposed it in relation to paragraph (d) which we have just cited.

10.      On 7^th February, 2007, before the Bailiff sitting in Chambers, it was ordered that a number of directions should be given in relation to the application for parental responsibility and a number of reports were commissioned.

11.      It was also ordered that the father should have unsupervised access to A for four hours, from 10.30 am to 2.30 pm, each Sunday.  A was to be delivered by the mother to Milli's Contact Centre and collected from that same place.  Further directions were given by the Bailiff on 3^rd April, 2007.

12.      At the hearing yesterday the mother appeared on her own behalf.  Difficulties having arisen in relations between her and the lawyers appointed under the Legal Aid Scheme.  We are satisfied, however, that she has presented her case with extreme competence and that she has not been disadvantaged in comparison with the father for whom experienced counsel has appeared.

13.      We turn to the substance of the matter and we wish to record that we have been greatly assisted by the reports of both the psychologist, Dr Wade, and the Court Welfare Officer, Mrs Ferguson.  Mrs Ferguson's report contained a number of recommendations, with most of which we are in full agreement. 

14.      The law in relation to applications by fathers who are not married to the mother of the child in question is conveniently set out in Stanley on Family Law at p. 253 in the following terms:

"The application by the unmarried father is governed by the principle that the child's welfare is the Court's paramount consideration.... In Re H Minor's Local Authorit: Parental Rights No. 3 [1991] Fam 151 Balcombe held that the following three factors are particularly important when the Court is considering whether to make an order.  The degree of commitment which the father has shown towards the child, the degree of attachment which exists between the father the child, and the father's reasons for applying for the order, these factors have been applied by the court in many cases (see e.g. Re CB (A Minor) (Parental Responsibility Order) [1993] 1 FLR 920; and Re G (A Minor) (Parental Responsibility Order) [1994] 1 FLR 504).  However the Court of Appeal has stressed that these factors are merely a starting point and are not exhaustive, as the court must take account of all the relevant circumstances applying the welfare principle (see Re H (Parental Responsibility) [1998] 1 FLR 855).  Thus, even though the three factors are satisfied in a particular case, other factors may tip the balance against making the order.

As the court takes the view that parental responsibility confers an important status on a father, an order will usually be granted unless clearly contrary to a child's welfare."

We think that those principles are equally applicable in Jersey. 

15.      The first two considerations, namely the degree of commitment which the father has shown towards the child and the degree of attachment which exists between the father and the child, give rise to no concern.  We are entirely satisfied and indeed the mother agrees that there is a good relationship between the father and A and that there is a degree of commitment towards the child. 

16.      The third question, namely the father's reasons for applying for the order have given us some pause for thought but on balance we are satisfied that this is a proper application for parental responsibility and that it would be wrong to deprive the father of the responsibility of playing a proper role in the upbringing of the child. 

17.      We think that there has been some misunderstanding of what parental responsibility means.  It means in essence that the father is entitled to share with the mother responsibility for all important strategic decisions affecting the life of A.  These decisions include the choice of school, the choice of the religion, if any, in which the child is to be brought up.  They also include any change of surname, and the country or place where the child is to reside.

18.      We underline the fact that parental responsibility does not mean involvement in routine daily decisions affecting the life of the child.  We, therefore, grant the application of the father for parental responsibility but subject to the following conditions which are designed to protect the mother against the harassment and intimidation to which, rightly or wrongly, she perceives herself to be subject.

19.      First, the father will not contact, communicate with, or follow the mother save and except that he may contact her with a view to facilitating contact with A.  Secondly, the father will not harm, molest, harass, threaten or otherwise abuse the mother in any way.  Thirdly, the father will not at any time remain or loiter within 100 metres of the mother's home address in Rue de Jambart, St Clement.  Fourthly, the father will not seek alternative medical advice in relation to A and will rest content with such advice as may be given by A's general practitioner.  The mother will keep the father fully informed of any changes in the identity of that general practitioner.  Fifthly, neither the mother nor the father will take A to reside outside the jurisdiction without the agreement of the other or an order of the Court.

20.      We turn now to the question of contact.  In general we accept, as we have said, the recommendations of Mrs Ferguson and we make the following orders:

(i)        The father will have contact with A on alternate weekends between 10.00 a.m. and 4 p.m. on the Saturday and the Sunday.  The handovers of A should be facilitated for so long as she is willing to do so by the father's fiancée Miss F.  The handovers should take place, in default of other agreement between the parties, in the car park of the Rouge Bouillon Police Station.

(ii)       We decline to order further contact between those alternate weekends, but we do wish to emphasise that we envisage staying or overnight contact between A and his father on the Saturday and Sunday when contact takes place in short order, provided that no difficulties arise in the following months which can fairly be laid at the door of the father.

(iii)      We decline to make any order at this stage in relation to contact over the Christmas and Easter periods, but will consider this matter when we next convene.  In that connection we direct the parties to attend upon the Bailiff's Judicial Secretary as soon as may be convenient to obtain a hearing date of one day, towards the end of September 2007.  We request Mrs Ferguson during the early part of September to interview the parties and to make such other enquiries as she thinks fit with a view to preparing a further report for the Court on progress which has been made.  The Bailiff's Judicial Secretary should be requested to obtain the same Court as presently constituted if that is possible.

21.      Before parting from these orders we wish to add two things.  First we encourage the parties to consider and to obtain advice from the consultant psychologist if they, or either of them, considers that such advice would be productive and helpful.  In that connection we authorise the release of the Report of the Court Welfare Officer to the psychologist, Dr Wade.

22.      Secondly, we want to underline the most important matter for the parties to bear in mind over the next few months in particular, but in the longer term as well.  Experience has shown that constant disagreements and enduring tensions between parents can have the most devastating consequences for a child.  If these parents truly love their child they will do everything that is reasonably possible to bury their mutual antipathy, or if they can not do that at least to disguise it from A and never to use him in anyway to further their disputes with each other.  We have seen too many children psychologically damaged and scarred by the selfish conduct of their warring parents. 

23.      If evidence of such conduct were to emerge on the part of either parent it would influence greatly whatever order the Court may ultimately make in relation to contact, and indeed, to care and control.  We expect both parents to work constructively towards the establishment of a working relationship with each other for the sake of A and his future. 

24.      Finally we record that both parents have told us unequivocally that they want A to be brought up in Jersey.  On that basis we discharge the injunctions granted by the Deputy Bailiff against the mother on 26^th October, 2006, and we further discharge the injunctions granted by the Lieutenant Bailiff against the father on 1^st June, 2006.  Those discharges do not, of course, affect the orders made today which in some respects mirror the June orders except in relation to taking A temporarily out of the jurisdiction. 

25.      We will, by consent, make an order that the father will pay £100 every fortnight for the maintenance of A and the means of delivering that £100 every two weeks will be agreed, if possible, between the parties, failing which it will have to be resolved by the Deputy Registrar on the date which has been fixed.

26.      We order the Viscount to release A's passport to his mother. 

27.      The matter of costs will be left over to September hearing.

Authorities

Stanley on Family Law p 253.