Jersey Unreported Judgments

[2007]JRC158

royal court

(Family Division)

16^th August 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Brocq and Clapham.

 

Advocate S. E. Fitz for the Plaintiff.

Advocate L. K. A. Richardson for the Defendant.

judgment

the deputy bailiff:

1.        In this case the Court has to consider what is in the best interests of a ten year old girl in terms of parental responsibility, residence and contact.  We announced our decision at the conclusion of the hearing and now give our reasons.

The background

2.        R was born on 10th October 1996 and is now ten.  She is the daughter of the plaintiff ("the mother") and the defendant ("the father").  Her parents have never been married.  The relationship between them was short lived and there is unfortunately much continuing acrimony between them.  They find it hard to be civil to each other. 

3.        Following the separation, R lived with her mother.  There was initially regular contact with the father but this was subsequently stopped by the mother.  Following an application to the Court, contact was re-established and the father was granted weekly overnight contact.  The father has at all material times lived with his mother, to whom we shall refer as "the grandmother".

4.        Unfortunately, as we shall explain in more detail shortly, the mother suffers from paranoid schizophrenia.  This is largely controlled for so long as she takes her medication but, if she stops taking the medication, she becomes unwell.  She has become unwell on various occasions in the past and as a result the Children's Service has a long history of involvement with R.  In December 2002 and again in May 2003 the mother was detained under the relevant mental health legislation and R moved to live with her father and grandmother whilst the mother was so detained.  On each occasion R returned to live with her mother once the mother had recovered.

5.        In April 2005 the mother again became unwell by reason of failing to take her medication and on 15th April an interim care order was obtained from the Royal Court by the Health and Social Services Committee.  The mother was again detained and R moved to live with her father and grandmother.

6.        Following the mother's discharge, contact between R and the mother was gradually increased under the guidance of the Children's Service and a point was reached where the mother had care of R from Sunday morning to Wednesday morning and the father had care of her from Wednesday after school until Sunday morning.  The interim care order was allowed to lapse.  On 8th September 2005 this Court made an interim joint residence order reflecting the above arrangements.  By agreement of the parties those arrangements were continued by further order of the Court on 3rd May 2006 and directions for the production of reports etc were also given.

7.        On 24th July 2006 Dr Blackwood (the mother's psychiatrist) reported that her condition had deteriorated.  On advice from the Children's Service, contact between the mother and R was stopped and R thereafter resided full time with the father and grandmother.  On 30th October Dr Blackwood reported to the Children's Service that the mother's mental state had improved such that there was no reason why contact with R should not be resumed.  Unfortunately, although correspondence then took place between the parties' lawyers with a view to arranging the resumption of contact and the parties came very close to resuming the shared residence arrangements referred to earlier, the matter did not proceed because the father wanted an undertaking that the mother would not come within a hundred yards of his home, whereas the mother felt that this was an unreasonable request. 

8.        The upshot was that no contact between R and the mother took place until 7th February 2007 when this Court ordered that contact with the mother should be re-introduced twice weekly on a supervised basis initially, with discretion for this to move to unsupervised contact at the discretion of the welfare officer, Mr Pike.  There was a further hearing on 23rd May 2007 at which time the Court increased contact.  These remain the current arrangements.  Every week, the mother collects R from school on Thursday afternoon and returns her to school on Friday morning.  As to the weekends, there is an alternating weekly arrangement.  In week one she collects R from the end of the lane where the father lives at 5 p.m. on Saturday and returns R to school on Monday morning.  In week two she collects R from church at 12.30 p.m. on Sunday and drops her off at school on the Monday morning.  Apart from these periods R resides with her father and grandmother.

9.        At present R attends Grouville School.  This is not ideal in that the father lives in St Brelade and accordingly she has to take a bus into St Helier and a second bus out to Grouville in order to get to school.  However she is happy at the school and all are agreed that it is preferable that she should remain there until she moves to secondary school.  The present plan is that she should at that time attend Quennevais School.  R is apparently looking forward to this because a number of her friends will also be going there. 

The applications before us

10.      The mother would prefer that R have no contact with her father but she accepts that R wishes to do so.  She therefore wishes for a residence order to be made in her favour subject to contact with the father.  If this is not possible she wishes the shared residence arrangements which were in existence until July 2006 to be re-instated.  If this is not possible she wishes her existing contact with R to be increased.

11.      The father applies for a sole residence order to reflect the current position and to give stability to R.  He suggests that contact with the mother should continue in accordance with the existing order.  He also asks for a parental responsibility order so as to give formal recognition to his position as the natural father of R.

The evidence

12.      The Court received a number of reports from Dr Blackwood, Dr Williams (clinical psychologist), Dr Dale Harrison (psychiatrist) and Mr Chay Pike (Court welfare officer).  Of these Dr Blackwood, Dr Williams and Mr Pike also gave oral evidence.  Dr Harrison's report was prepared in May 2006 and was a psychiatric report on the father.  Neither party thought it necessary to call Dr Harrison to give evidence.  The Court also heard oral evidence from the father and the mother and received short affidavits from three ladies in support of the mother, namely Sue de la Mare, Michelle Ollivro-Murphy and Murielle Cooney.

13.      We have carefully considered all of the written and oral material before us when reaching our decision.  However it is voluminous and we propose therefore only to give a brief summary so as to explain the basis of the decision which we have reached.

14.      The first witness was Dr Blackwood.  He is the consultant psychiatrist who has been responsible for the care of the mother for the last four years.  He produced three reports and also gave oral evidence.  He states that the mother suffers from a paranoid schizophrenic illness which was first diagnosed in 2002.  The main symptoms when she is in relapse are that she has marked systemised delusions of persecution.  At such times she weaves a fantastic plot against her out of almost nothing.  When she responds to these false beliefs she becomes angry and frightened.  This affects her relationships with others.  She develops a sense of personal injustice and compulsively campaigns against perceived injustices.  She tends to be driven to sort out her perceived wrongs, making numerous telephone calls to people, writing lengthy letters to others and getting involved in complex negotiations. 

15.      Her condition responds well to medication which must be taken daily.  However such medication is not foolproof.  Even where she continues to take it, there is a twenty per cent chance of her suffering a relapse.  If she fails to take her medication, she becomes unwell again.  When well, while she still has some persecutory tendencies, she is, in Dr Blackwood's opinion, perfectly capable of filling a parental role.  However, when she becomes unwell (whether through failing to take her medication or because of a relapse despite taking the medication) she is, in the opinion of Dr Blackwood, not capable of having the care of R and should not have unsupervised contact.  Dr Blackwood does not consider that there is any risk of physical harm to R in such periods but there is a considerable risk of emotional harm because of the mother's irrational behaviour and the fact that the daughter may well be encouraged to get involved in unsuitable behaviour in response to delusions on the part of the mother.  When the mother is well, there is no reason why R should not spend more time with her than at present.  When she is unwell, however, unsupervised contact should cease, although the mother should still see R on a supervised basis. 

16.      Dr Blackwood said that he would usually obtain some warning if the mother was heading for a relapse.  Either she would not turn up for her regular appointments (about every four weeks) or Dr Blackwood would begin to receive reports from others of irrational behaviour (e.g. bombarding people with e-mails) or she would attend for an appointment and he would be able to assess from her conduct at that meeting that her condition was deteriorating.  He would be quite happy in those circumstances - as has been the case to date - to alert the Children's Service to the deteriorating state of the mother's mental health so that the Service could take steps to stop unsupervised contact.  However, he disapproved of the fact that contact had ceased altogether during such episodes in the past and believed strongly that supervised access should continue so as to maintain contact until the mother recovered. 

17.      Dr Bryn Williams is a chartered clinical psychologist with a specialist interest in children, young people and families.  He is employed as a consultant clinical psychologist in the Child And Adolescent Mental Health Service ("CAMHS") in Jersey.  He produced three detailed reports for the Court and also gave oral evidence.  As well as producing reports, he has been engaged in ongoing therapeutic work with R as necessary.  He first became involved with R in about May 2006 when he prepared his first report.

18.      His reports were very detailed and we found them, together with his oral evidence, to be very helpful.  He has seen R in both her parents' homes.  He described the mother's style of parenting as 'laissez faire', largely leaving R to determine when she went to bed, what she did etc.  Conversely, he considered that the father (assisted by the grandmother) provided appropriate boundaries and had a pro-active style of parenting.  R was an active girl.  She played hockey in her local community sports centre in St Brelade and was an active member of her church group.  She attended regular dance groups, both in St Helier and St Brelade and had begun to make good friends.  She was increasingly becoming a member of the community, with a wide social network in and around the father's home.  Her school reports suggested that she was making good progress. 

19.      He considered that the placement with the father and grandmother had been beneficial.  Living with her father full time had afforded R the opportunity to develop a more familiar and settled routine.   She was far more confident and at ease with herself.  She was engaged with other people outside her family and felt more connected than she had been in the summer of 2006.  There was a concern over R's habit of removing her eyelashes and eyebrows (trichotillomania) which was indicative, in Dr William's opinion, of the level of psychological stress associated with her perceptions of her parents' hostile relationship.  He wished to continue to work with R in that respect.  He said that R loved both her parents and her relationship with the mother should be maintained at all costs.  However he believed that it was in R's best interests that her main home should be with her father in that he could provide her with a child-centred and proactive parenting style which had been beneficial and he could provide her with the stability and certainty which was important for children.  It was his opinion that it was this stability for the majority of her week which had allowed her to develop in the way she had.  He would be reluctant to see any changes which would undermine this process and recommended that no more than thirty per cent of her time should be spent out of her father's care.  He repeatedly emphasised the importance of stability and was most concerned that, if R returned to live mainly or equally with the mother, there would be change and instability whenever the mother became unwell in the future.  This would be disadvantageous for R.  If her main home was with the father, then periods when the mother became unwell would not have such a destabilising effect. 

20.      In cross examination by Miss Fitz he accepted that this was a reversal of what had been the position until 2005 in that, until then, R had spent the majority of time with her mother.  However, he said that one had to have regard to the present position and R's welfare was paramount.  In relation to the amount of contact with the mother, he did not object to some increase upon the current level of contact because he believed it to be very important that the relationship between mother and daughter was fully maintained, but he did not think it should come anywhere close to R spending half the time with the mother and half the time with the father.  In the circumstances of this case, there had to be a base and it should be with the father.

21.      Mr Chay Pike is the appointed Court Welfare Officer for this case.  He has prepared two detailed reports dated 31st July 2006 and 10th July 2007 as well as a short interim statement concerning the question of contact on 21st May 2007.  He too gave oral evidence before the Court. 

22.      He stated that R has a strong bond with both of her parents.  She is a bright girl who is doing well at school.  She is well behaved at school and gets on well with her peers.  In Mr Pike's opinion, she has benefited from the boundaries and stability provided by living with the father and grandmother.  Of course such matters are not always immediately appreciated by a ten year old child.  At the time of his first report, R had indicated a wish to return to a 50/50 residence arrangement although Mr Pike felt that she wanted to please both parents and was putting their interests ahead of hers in this respect.  In his most recent report he commented as follows:-

"35. In terms of where she would wish to reside, R remains unsure but does want to be with both parents.  She says she likes being with her father and grandmother and states that she gets on well with them.  She enjoys going to the beach, bowling and going to restaurants with her father.  She is also happy in the home and enjoys the fact that it is a large house with a garden with space for her pets.  She also adds that she has friends, the church and a nice beach.  She however does not like the boundaries imposed by her father.  She explains that she can't go out on her own with others.  She either has to go to a friend's home or they visit her.  She also says that it is annoying that her father won't allow her to buy anything she wants with her money. 

36.  In contrast R says she enjoys much more freedom at her mother's home.  She is allowed to go out on her own with friends, to go into town alone and to spend her money on whatever she wants.  She also likes spending time with her mother particularly going to the beach".

23.      Mr Pike was of the view that the continuing acrimony was clearly stressful for R.  He observed that, during his meetings with the father, he had not been acrimonious about the mother, whereas, during his meetings with the mother, she had regularly denigrated and made acrimonious comments about the father. 

24.      His reports considered the various matters in the check list contained at Article 2(3) of the Children (Jersey) Law 2002 and he concluded that he shared the conclusion of Dr Williams, namely that it would be in R's best interests for her to remain having her main residence with the father but with a good level of contact with the mother.   He saw no difficulty in a modest increase in the present level of contact although he was keen that, in the particular circumstance of this case, it should not increase so as to become in effect a 50/50 residence order.  In his opinion it was essential that R should have a main home in order to provide stability, (particularly bearing in mind the mother's vulnerable mental state) and that this should be with the father.

25.      It is accepted by the father that, in his earlier years he had a drug and alcohol habit and suffered from depression.  This is a point made repeatedly by the mother who believes that he is not over these difficulties and is a bad influence on R.  For these reasons a psychiatric report was ordered by the Court and Dr Dale Harrison prepared a report in May 2006.  The Court has the benefit of that report.  Suffice to say that the report concludes that he shows no signs of any continuing problem in this area.  That is consistent with the opinions which the other experts such as Dr Williams and Mr Pike appear to have formed of the father. 

26.      The father swore an affidavit and also gave evidence.  He is a furniture finisher and lives with his mother (who used to run her own nursery from her home until retirement) in the house at St Brelade.   He gave details of the history of the contact and residence position over the years and spoke of the current position.  He said that his life revolved around caring for R.  He told us of the many and varied activities which she undertook after school and at the weekend.  He accepted that he imposed boundaries but felt that these were appropriate; for example he did not think it right to allow R to go into town on her own at her age.

27.      He accepted that, in November 2006, when the parties were attempting to agree upon resumed contact, he had been willing to go along with a resumption of the shared residence arrangements.  However, having seen the various reports and thought about the matter further, he did not believe that it would be appropriate.  He accepted that R loved her mother and had a strong bond with her.  He was strongly supportive of there being a good level of contact.  However he remained concerned about the mother's mental condition and wanted there to be some mechanism in place so that, if her condition deteriorated, the Children's Service could advise him on whether contact should be restricted or curtailed in any way.  He was also concerned about the acrimony when they met, which he felt came mostly from the mother, and he was pleased that the present contact arrangements did not require them to meet at the handover point.  Although R had started attending Grouville School because she had been living full time with the mother who resided in that area, he felt it was important that she should remain there until she attended secondary school in 2008.  Although the travel arrangements were not ideal, R was happy at the school.  He was keen that she should go to Les Quennevais School in due course.

28.      The mother also swore an affidavit and gave lengthy oral evidence.  She said that she had been the main carer of R for the first eight years of her life and it was wrong that she should now find herself reduced simply to periods of contact.  The father was a bad influence on R.  She did not consider herself to be a 'laissez faire' parent; she set boundaries although they might not be the same as the father's.  Given what had happened to her over the last two years, which involved the loss of her position as the main carer of R, she had a strong incentive to continue to take her medication.  On that basis there was no reason why she should not resume full time care of R.  R was suffering through living with the father. 

Decision

29.      Miss Fitz submitted that the reports all spoke of R in glowing terms.  This did not happen overnight.  It was the mother who had been R's principal carer until 2005 i.e. for the first eight years of her life.  It followed, submitted Miss Fitz, that the mother must have done a lot that was right in bringing up R during that period.  The mother had then become ill and this had undoubtedly been a traumatic event both for her and for R.  However, provided she took her medication, she should now remain well and be capable of caring for R.  It was therefore not appropriate to change things so radically so that, whereas the mother had been the principal carer for the first eight years of R's life, she should now be restricted to such contact as the Court would order.  A girl approaching her teenage years should be with her mother.  Provided she took her medication, the mother would be capable of providing the appropriate parenting for R.  In the event of the mother becoming unwell again in the future, R could at that stage return to reside with the father.  It would not be particularly disruptive because she would be familiar with living with her father (having done so in the recent past) and she would no doubt continue to stay in contact with him in the future.  If the Court was not willing to go as far as the mother wished, it should at least return to the shared residence position which had been in existence until July 2006.  Failing this, the amount of contact should be increased.

30.      In proceedings concerning the upbringing of a child, that child's welfare is the paramount consideration.  Furthermore Article 2(3) of the 2002 Law directs the Court to have regard to the following matters in particular:-

"(a)     the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding); 

(b)       the child's physical, emotional and educational needs;

(c)       the likely effect on the child of any change in his or her circumstances; 

(d)       the child's age, sex, background and any characteristics of the child which the court considers relevant;

(e)       any harm which the child has suffered or is at risk of suffering;

(f)        how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs; and

(g)       the range of powers available to the court under this Law in the proceedings in question."

We have borne all these matters in mind in reaching our decision. 

31.      The Court has considered very carefully the points put forward by the mother, both in her evidence and in her advocate's submissions, as to why R should reside with her.  We have absolutely no doubt that she loves R and is devoted to her wellbeing and that R in turn loves her mother and wishes to spend time with her.  However, whilst we have every sympathy with the mother's quite natural desire to return to the position as it was before 2005, our task is to consider what is in R's best interests so far as her welfare is concerned. 

32.      Taking account of all the evidence before us, including the content of the reports, the Court has no doubt that the recommendations of Dr Williams and Mr Pike are correct and that R's welfare would be best served by making a residence order in favour of the father.

33.      Our reasons are essentially those put forward in the various reports, which we found to be convincing.  We would summarise them briefly as follows:-

(i)        We find that the father, with the help of the grandmother, is providing a stable home with appropriate boundaries where R is able to thrive.  The evidence is that she is doing extremely well.  The only real worry is the trichotillomania which is attributed by Dr Williams to stress resulting from the acrimony between her parents.  We accept that evidence. 

(ii)       We do not consider R's wishes to be decisive in this case.  She is only ten and, as can be seen from the extracts quoted at para 22 earlier, her reasons for any preference betray her age.  We accept the opinion of Dr Williams that she loves both her parents, she does not want to upset either of them by seeming to choose one above the other and indeed we think it would be unreasonable to place any such burden upon her.  It is clear to us that she wants to see and spend time with both her parents.

(iii)      We find that, while she is well, the mother is able to provide for R's physical needs, as can the father.  As to educational needs, R appears to be doing well at school.  We note however that the evidence suggests that the mother is more willing than the father to allow R to miss a day at school if she complains of feeling unwell.  The father adopts a somewhat stricter approach and R's attendance at school is better when she is with the father.  We think this is indicative of the mother's 'laissez faire' approach.

(iv)      Of more significance is consideration of R's emotional needs, the likely effect on her of any change in her circumstances and any harm which she is at risk of suffering.  Even when well, the mother has, as Dr Blackwood said, certain persecutory tendencies and these manifested themselves in her evidence before us.  However the real concern is as to the situation if she becomes unwell.  We accept that she is determined to continue to take her medication but we consider that there is nevertheless a real risk that she will at some stage in the future fail to do so or that she will suffer a relapse unrelated to a failure to take her medication.  There have after all been several incidents of her becoming unwell in the recent past.  We accept the evidence that, when she is unwell, she is not in a fit state to have the care of R and there is a real risk of R suffering emotional harm by reason of her mother's bizarre behaviour during such spells.

(v)       It follows that, if the mother were to become unwell again, R would have to move back to live with her father at that time.  Given the past history, there must be a risk that the mother could become well and then unwell on more than one occasion.  This could result in repeated changes in residence for R.  We agree with Dr Williams and Mr Pike that this would not be in her best interests.

(vi)      We agree that R's best interests are served by having stability and continuity and that this is most likely to be achieved by her living with the father.  We have of course considered the mother's criticisms of the father but our assessment from the reports and from having seen and heard him in the witness box is that he no longer takes drugs and that, together with his mother, he is providing a stable, suitable and happy home for R.  We also have to address the situation as it is.  R has been spending a minimum of four nights a week with her father since the mother became unwell in April 2005 and, since July 2006 has been residing with him for all (or, more recently, most) of the time.  The arrangements for travelling to school are well settled and R is looking forward to attending Les Quennevais, which is the secondary school near the father's home.  We do not think it would be in R's interests to upset these stable arrangements by returning her to live predominately with the mother, as the mother requests. 

(vii)     We have considered whether the mother's second alternative of shared residence would be appropriate.  However we agree with Dr Williams and Mr Pike that, in the particular circumstance of this case, R needs to have a main home and that, for the reasons given already, that home should be the father's.

34.      Accordingly, we find that R's welfare would be best served by making a residence order in favour of the father.  We also agree to make a parental responsibility order in his favour in order to ensure his legal status in relation to R.

35.      We turn next to consider the level of contact with the mother.  After the gap in contact between July 2006 and February 2007, contact was initially re-established on a supervised basis.  The evidence is that this went very satisfactorily and accordingly it soon moved to an unsupervised basis and was increased.  We think that it would be in R's best interests to increase it further while still ensuring that R's main home is with her father.  To that end we ordered at the conclusion of the hearing that contact should be as follows.  In relation to week 1, as it is described in the reports, we make no change.  In other words the mother should have contact from Thursday after school until Friday morning and then from after church at 12.30 p.m. on Sunday until Monday morning.  However, in week 2, contact on Thursday afternoon until Friday morning should remain as at present but, in relation to the weekend, contact should now start at 10 a.m. on Saturday with R being returned to school by the mother on Monday morning.  The arrangements for the pickup on the Saturday morning should be as at present, namely at the end of the road where the father lives. 

36.      We also dealt with the holidays.  On Mondays, R should remain with her mother until 5 p.m. or 6 p.m. (we will hear the parties if that cannot be agreed) at which time she is to be returned to the father.  Similarly the mother will have contact with R from 10 a.m. on Thursdays until Friday morning.  During every school holidays, the mother will be entitled to one week staying access and the father may also have a week in which R stays entirely with him.

37.      The contact is to continue for so long as the mother remains well.  Dr Blackwood - and we ask that a copy of this judgment be given to him - has indicated that he will inform the Children's Service if she starts to become unwell.  At one stage during the hearing it was suggested  that we might make a supervision order in favour of the Children's Service.  However no formal application to that effect has been made on behalf of the Minister and accordingly we cannot make such an order.  Mr Pike informed us that he had spoken to the Children's Service and that they proposed in any event to keep an eye on the situation and would be willing to take action if informed by Dr Blackwood that the mother was becoming unwell such that unsupervised contact should not continue.  It would be for consideration at that stage as to whether further application should be made to the Court but we would emphasise that the situation should not be allowed to re-occur where contact stops altogether.  Even when the mother is unwell, it is important for R that she should continue to see her mother, even if for brief periods and under supervised conditions.  The relationship must be maintained.  We rely upon the Children's Service in conjunction with the father to ensure that this occurs. 

38.      Finally, we would repeat what we said when announcing our decision.  We do urge both parties not to display their feelings about each other in front of R.  It is quite clear from all the reports that she finds this distressing when it happens.  That is not at all surprising.  Children usually find it upsetting when one parent runs down and says unpleasant things about the other.  Accordingly we urge both parents to contain their feelings in R's presence and not to say anything derogatory about the other; that is the best for R's wellbeing. 

Authorities

Children (Jersey) Law 2002.