Jersey Unreported Judgments

[2010]JRC103A

royal court

(Samedi Division)

3^rd June 2010

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF Q

Advocate V. Myerson for the Minister of Health and Social Services.

Advocate R. Tremoceiro for the Father.

Advocate J. M. Lawrence for the Mother.

Advocate T. V. R. Hanson for the Guardian.

Advocate N. Santos-Costa for the Child.

judgment

the commissioner:

1.        I sat this morning to give directions in relation to two applications that are being dealt with together, namely the Minister's application under Article 27(4) of the Childrens (Jersey) Law 2002 for an order authorising the Minister to refuse contact between the child and the father, and secondly, the father's application for contact and in particular, supervised contact, with the child.  I will not be able in this short judgment to deal with all of the points raised in discussion. 

2.        Following the directions given on 6^th May, 2010, joint instructions had been given to Dr Ruth Emsley to prepare a risk assessment and her report, dated 30^th May, 2010, has been filed with the parties and the Court.  That report is adverse to contact taking place, concluding:-

"In summary, it is my opinion that if the father were to be allowed contact with the child, this would place the child - and possibly the child's peers at high risk of sexual victimisation.  I believe, also, that if supervised contact were permitted, ensuring there was no non-sanctioned unsupervised contact would be extremely difficult, if both parties desired such contact." 

3.        There are two other reports which are also adverse to the issue of contact, namely, the report of the Guardian dated 2^nd June and a report from Mr Brian Heath, the Chief Probation Officer.  In view of these reports and the father's record of sexual offending, the Minister, Mr Santos-Costa on behalf of the child, the Guardian and the mother will be strongly opposing contact. 

4.        Mr Tremoceira submits that Dr Emsley's report is flawed.  She had been engaged to advise in relation to the separate proceedings brought by the Minister for a care order in respect of the child; specifically she has been instructed to prepare risk assessments on the mother, the step-father and the father in relation to the issue of the child's care.  In order to maintain a separation between the two sets of proceedings the Court directed that Dr Emsley should receive a separate instruction in order to produce a separate risk assessment on the father, on the issue of contact. 

5.        In her instructions on the contact issue, Dr Emsley was provided with the bundles supplied for the first hearing on contact, on 29^th April, 2010.  She was reminded that she had access to the records on the father held by the Probation Service by virtue of the Act in the care proceedings dated 19^th April, 2010.  She was asked to look at the papers accompanying the instructions and to contact the lead lawyer if she needed any further documents.  She was not instructed to disregard any other information in her possession as a result of the instructions in the care proceedings, and it is difficult to see how she could have been so instructed, but she was reminded that the father was not a party to those proceedings and that information obtained from the documents in the care proceedings and the documents themselves must not be divulged to the father. 

6.        In the introduction to her report on contact dated 30^th May, 2010, Dr Elmsley said this:-

"The report should be read in conjunction with Forensic Psychology Assessment reports on the mother and the step-father dated 23 May, 2010, but I understand that those reports may not be disclosed to the father or his representatives."

The father has not seen those psychological reports.  They are not listed as a source of information for the purposes of Dr Emsley's report and the psychological status of the mother and step-father are not referred to in the report itself, which is perhaps not surprising.  Mr Tremoceiro, however, did not seek sight of those reports and they would appear to be irrelevant.  In paragraph 1.3, however, she does say this:-

"I have also had access to documentation provided in this case which I am instructed not to disclose to the father.  It is therefore not listed here."

Although Mr Tremoceiro did not raise the point she also said at the end of paragraph 2.1:-

"I have perused the documentation made available to me under cover of the joint letters of instruction dated 17 February, 2010, and 14 May, 2010, but not listed in this report and have had access to the father's file emanating from his sex offender treatment at HM Prison Whatton and his probation file."

7.        Mr Tremoceiro submits that Dr Emsley's report is flawed because, pursuant to paragraph 1.3 she has relied on documentation received in the care proceedings and, in his view, appears to become confused between the two sets of instructions.  Any risk assessment, he says, should be prepared on the basis of relevant information and documentation which is available to all the parties.  He seeks an order that Dr Emsley provide a list of the documents she had reference to pursuant to paragraph 1.3 of her report, to enable to Court to decide whether they should be disclosed to the parties.  He also seeks leave to instruct by way of a further joint instruction, another expert to prepare a further risk assessment on the father.  Dr Briggs, a Clinical psychologist, has been identified. 

8.        Mr Tremoceiro has spoken to Mr David Trott of the probation department who has authorised him to relay the following to the Court:-

"(i)  Risk is dynamic and can therefore change over time;

(ii)  The father has completed an offender programme at HMP Whatton and a final report is due to be completed soon, a final telephone interview is to take place next week;

(iii)  The father has, since his return to the island, been fully co-operative with probation and the police;

(iv)  Probation would re-assess the level of risk presented by the father after a period.  He considers that three months may be too short to reach a final view but that it may be appropriate to have an interim assessment at that stage."

The implication is that with time the risks posed by contact between the father and the child may diminish. 

9.        Mr Santos-Costa helpfully offered to sidestep concerns as to the child having assess to some of this information in the documents referred to in paragraph 1.3 by agreeing that he would not see the same unless the conclusions of Dr Emsley or any new expert, who presumably would receive the same information as Dr Emsley, supported any form of contact, at which point he would seek leave to have the same disclosed.  He did not expect a second report to deviate from the conclusions of Dr Emsley and on balance was inclined to support the application for a second report in the expectation that it would avoid a contested hearing and a potential appeal.  He had some sympathy with the difficulty Mr Tremoceiro would have cross-examining Dr Emsley without the assistance of another expert. 

10.      Mr Lawrence, for the mother, was against contact and against the commissioning of a further report or any further delay.  These proceedings have been very stressful for both her and the child. 

11.      Mr Hanson welcomed Mr Santos-Costa's offer.  The documents referred to in paragraph 1.3 should be disclosed.  Any questions the parties may have for Dr Emsley can be submitted in writing via the lead lawyer, but in the light of the father's record and the reports of both Mr Heath, and the Guardian and of course Dr Emsley, a further report delaying this matter, at public expense, was unnecessary.  He drew my attention to the statutory principle that delay in determining any question with regard to the upbringing of a child is likely to prejudice the welfare of that child. 

12.      Miss Myerson drew my attention to the guidance given in the case of Re SK (Local Authority: Expert Evidence) [2008] 2 FLR 707 in which Sumner J held:-

(1) "In non-medical cases such as this, the position can be set out in this way.  The court will look at the report itself and ask the following questions: does it appear either fundamentally flawed or biased in its approach; is it otherwise wrong, unbalanced or unfair?  If the answer to any one of these points is yes, then that may be by itself, sufficient ground to justify a second report.  If the answer is no, then the next question is the role played by the report.  Is it pivotal and can it be challenged without the need for a further expert report?  The answers to those questions may be determinative.  Finally, the impact of a further report on the timetable for the hearing may have to be considered."

13.      Mr Tremoceiro does not allege that Dr Emsley's report is biased.  In my view the report does not appear to be either flawed, unbalanced, wrong or unfair.  If there is any unfairness it lies in the father not having access to certain documents which Dr Emsley has had access to, but is prohibited either by order of the Court or by instructions in the care proceedings from disclosing to him.  I sympathise with the position of the father to that extent; it does not follow that he should see all the documents concerned but they should be listed and their broad nature disclosed.  In default of objection from any party or person from whom they were obtained (the parties think in the main this will be the probation department) they should be disclosed to Mr Tremoceiro and the other parties, save for Mr Santos-Costa acting for the child, and this on condition that Mr Tremoceiro will not give copies of the same to the father, or any other person without leave. 

14.      Turning to the second question raised in SK namely the role played by the report, it seems to me that the possibility of an appeal is not a proper matter for me to take into account in deciding whether a second report should be ordered.  Yes the report is important and could be described as pivotal, albeit that it is one of three reports, but each case turns on its own facts and in the exercise of my judgment I do not consider a second report to be justified in this case.  The whole purpose of a joint report is to avoid duplication of expert advice and evidence; Dr Emsley was agreed by all the parties as the appropriate person to conduct this risk assessment.  The fact that she had undertaken a therapeutic role with the father was known to him and his advisors at the time and he expressly consented to her using the information she had gleaned from that process for the purpose of her assessment; indeed her involvement in that therapy would seem to be an advantage in assessing the risk that he may pose to the child.  The fact that Dr Emsley had already been instructed in the care proceedings and had reports in hand was also considered to be another advantage in her being appointed as opposed to the delay involved in finding and appointing a wholly new expert.  There is nothing in her report that leads me to be concerned as to its reliability or which, in my view, gives rise to any perception of unfairness, the issue at paragraph 1.3 having been addressed. 

15.      As Mr Hanson says, and I agree,I need to take into account the serious record of the father and the consistent and clear advice of all three experts, namely Dr Emsley, the Guardian and the probation officer.  There is no justification, in my view, either for a second risk assessment or for this application being delayed.  I note that the forensic psychology staff at HM Prison Whatton are producing a Post-Programme Structured Assessment Risk and Need Report and I agree with Miss Myerson that the Probation Service should be directed to release it to the parties if it is received prior to the hearing. 

16.      Thus to recap:-

(i)        the case will proceed on 25^th June.  

(ii)       Hanson Renouf, who I understand to be the lead lawyers, should request Dr Emsley as a matter of urgency, to list the documents to which she makes reference in paragraph 1.3 of her report.  That list with a broad description of the documents should be disclosed by the lead lawyers, Hanson Renouf, to Mr Tremoceiro, the other parties and the persons from whom those documents were obtained.  In default of objections within seven days they should be disclosed to Mr Tremoceiro and the other parties, save for Mr Santos-Costa acting for the child, on Mr Tremoceiro's undertaking not to give copies of the same to the father or any other person without leave. 

(iii)      The probation department shall release the HM Prison Whatton report to the parties if received before the hearing. 

(iv)      The parties shall be at liberty to submit via the lead lawyers, Hanson Renouf, written questions for Dr Emsley in relation to her report and Hanson Renouf shall circulate her written responses. 

(v)       There shall be liberty to apply to all parties and to anybody from whom disclosure has been sought and to whom the list of documents is supplied. 

(vi)      There should be a further advocates' meeting to consider any further directions that may be needed in order to enable this case to proceed on 25^th June. 

Authorities

Childrens (Jersey) Law 2002.

Re SK (Local Authority: Expert Evidence) [2008] 2 FLR 707.