[2009]JRC207
royal court
(Samedi Division)
3rd November 2009
Before : |
J. A. Clyde-Smith, Esq., Commissioner and Jurats Clapham and King. |
IN THE MATTER OF AB ("REPRESENTOR")
AND IN THE MATTER OF C AND D ("THE CHILDREN").
Advocate M. J. Haines for the Representor.
judgment
the commissioner:
1. On the late afternoon of the 13th October, 2009, the Court heard an urgent application by AB ("the mother") for the return of her children.
2. We received her representation and heard her evidence on oath. We summarise the evidence before us below.
3. The mother was married to EB ("the father") on 7th October, 2006. There are two children of the marriage, who were the subject of the application, namely C (aged 4) and D (aged 2½); we will refer to them as "the children". The mother has another child, F (aged 7) who lived with the family. The family resided at the family home in St Helier, which is a 3 bedroomed flat rented from the States of Jersey Housing Department.
4. The mother and father separated on 5th September, 2009, at the instigation of the mother, when the father left the former matrimonial home. He now lives with his parents in a 3 bedroomed property shared with his two adult brothers. He has been unemployed since February of this year.
5. Since the date of separation, the father has enjoyed generous contact with the children and F by agreement and on one occasion the children enjoyed a one night staying contact with him.
6. On 7th October, 2009, the mother had agreed to work between 5.00 p.m. and midnight and had arranged for her usual babysitter to attend to look after the children that evening. The father had contact with the children and F from 4.00 p.m. until 6.00 p.m. that day by agreement. There was no hint of any issues.
7. At 7.30 p.m. the babysitter attended at the mother's place of work and advised her that the father had come to her home accompanied by three police officers in order to return F and to collect belongings for the two younger children. The police gave no explanation to the babysitter as to why the children were not being returned. The mother telephoned the police and was told that they had been informed by the father that he was acting on the advice of the Children's Service to remove the children from her care. They had been unable to communicate with the Children's Service to verify this prior to attending at her home and were therefore acting solely on what the father had conveyed to them.
8. The mother subsequently contacted the Children's Service who made it very clear that they had not advised the father to remove the children and they were not aware of any reason why the children should not remain with the mother. They had simply given the father general advice around the issue of parental responsibility. They wrote confirming this on 9th October and we set out the letter below:-
"I am writing to both you and your husband in relation to events of 07/10/2009 in which the police were involved. I understand from discussions with yourself and school that EB declined to return the children to your care after arranged contact. I further understand that EB advised police officers that he had been in touch with children services who had 'advised him to remove the children.' I want to be very clear that this was not the advice EB was given and that Children's Services have no legal grounds on which to advise anyone on the removal of children.
EB contacted me after he attended the office and asked for advice regarding parental responsibility informing me he felt the children were at risk if they returned to your care and that the children were with him. I advised him if shared parental responsibility then he had equal rights in respect of the children. I did inform him that if the children were at immediate risk of significant harm then he was in his rights to act upon that and keep the children in his care. I followed this by making it very clear that this course of action was not to be taken lightly and the children's welfare should be considered in terms of the effects upon them of such action. I also advised that it would potentially lead to police involvement which it did.
School contacted me the same day stating EB had been given permission by Children's Services to remove his children. Again for clarification no such 'permission' was given as again we have no legal right to give that and this is EB's interpretation on the general advice around Parental responsibility he was given.
I understand that you have both sought legal aid and intend to put the matter of custody before the court. Children's services would not become involved in any contest for custody as this is a private law matter. However it is important that the children are protected from the difficult relationship you share as parents and that their welfare is the priority of both of you."
9. It would appear from the letter that the father had also told the school attended by C that he had been given permission to remove the children and it is clear that no such permission was given.
10. The mother saw the children briefly at school when C was being collected by the father but they had been told by the father not to "cuddle" her. She applied for contact on the following Sunday to which the father initially agreed, but then indicated that the police had advised that under no circumstances could the children come to her home. The police had given no such advice. The mother tried to arrange for contact elsewhere in the Island but the father refused to talk to her.
11. The mother was concerned that the children may be at risk by virtue of the father's mental health issues. On 28th August, 2009, he had an emergency referral to the Adult Psychiatric Services at the General Hospital following an incident on 26th August when he advised both the mother and the mother-in-law that he had contemplated suicide. The mother attended his first appointment and was aware that he had three subsequent appointments. The father was on medication which he had stopped. On 7th October, 2009, the father apparently told F that he was not F's real father and that the voices in his head had told him that he should take the children and keep them. There was a significant incidence of depression within the father's family and his brothers had apparently suffered from alcoholism.
12. Mr Haines submitted that the children had been removed wrongfully and by trickery of both the police and the Children's Service without consideration of the welfare of the children. He sought an order for their immediate return. The Children's Service had declined his request for them to attend the application.
13. The children's welfare was our paramount consideration. We were concerned that we had not heard from the father and the possibility that the father had good reason to seek the childrens' removal in this dramatic fashion. As against that:-
(i) The father had not indicated to the Children's Service or to the police why he thought the children were at risk with the mother. If he had communicated such a risk to the Children's Service or the police then they would have said so.
(ii) The Children's Service saw this as a private law matter to be resolved by the parties without their involvement. They would not have written in such terms if they thought the children were at risk of harm with the mother.
(iii) The Children's Service had not intervened with the family in the past save on one occasion some 4 years ago when the mother sought their assistance, and this in relation to an act of violence perpetrated by the father's brother against her when they were all living in the father's parents' home.
(iv) The father had not raised any concerns as to the mother's care of the children either verbally or in writing at any stage including the discussions over his contact with them that day.
(v) There was clear evidence of the father misrepresenting the general advice given to him by the Children's Service and lying as to the police prohibiting any contact with the children at the mother's home.
(vi) There was evidence that the father was already turning the children against their mother.
14. Our options were to either make an immediate order as requested by Mr Haines or convene the father to an early hearing.
15. A central consideration was the father's mental health. The concerns of the mother in that respect were in our view corroborated by his apparent conduct in this matter. We were concerned as to how the father might react to being given notice of the mother's application and the risk of significant harm to the children in the intervening period.
16. If there was an immediate risk of significant harm to the children in the mother's care, then it seemed to us improbable that the nature of that risk would not have been communicated by the father both to the Children's Service and to the police. We concluded, after very careful consideration, that the best interests of the children lay in the status quo being reinstated immediately and without prior notice and this without prejudging any subsequent proceedings brought by the father in relation to the children, following due procedure.
17. We were not prepared to send out the Viscount, together with the police, to the father's home that night as such dramatic intervention was likely to be upsetting to the children and might give rise to an incident and therefore put the children at risk of harm. Instead we ordered that C should be handed over by the school to the mother the next day and authorised the Viscount, with the assistance of the police (accompanied by the maternal grandmother who was in Court), to secure the return of D the same morning. Those orders were carried out successfully the next day and the children have now been restored to the mother.
No Authorities