Jersey Unreported Judgments

[2010]JRC126

royal court

(Samedi Division)

7^th July 2010

IN THE MATTER OF T

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

Advocate C. R. G. Davies for the Representor.

Advocate M. C. Goulborn on behalf of the Father.

Advocate N. S. H. Benest for Mrs Jane Ferguson (the Guardian for the Children).

The Mother was not present and was not represented.

judgment

the deputy bailiff:

1.        The Court is grateful to all counsel for the way in which this has been presented today and has proceeded in the absence of the mother who, we are advised, has had full notice of these proceedings and who has decided not to appear.  The Court has also noted that although the mother indicated in the earlier part of this year that she intended to make various applications ultimately leading to an application for the return of the children to her care, she subsequently has indicated that she would not oppose the making of a residence order and that she simply wished to have telephone contact from time to time. 

2.        The Court has already expressed the conclusion that in our view the threshold criteria have been met and we reach that view having regard to the statements from Miss Jenner sworn on oath and Dr Bryn Williams in particular, that these children have suffered from emotional neglect and we have noted also the comments of the Guardian which support that view; but if support were needed in any sense at all, that support is provided by the mother's disappearance from these proceedings, by her decision to take herself off-island without explaining what the position is to her children and by dealing with these proceedings generally in the way that she has. 

3.        As the Court is satisfied that the threshold criteria have been met, it is now relevant for us to consider the welfare test under Article 2 of the Children (Jersey) Law 2002 which we have done; the application by the Minister is for a residence order to be granted in favour of E and that should be coupled with a supervision order.  The threshold criteria being met, we are satisfied that it is appropriate in the light of the expert reports that are before us to make a supervision order and we note that the nominated supervisor will be Miss Sarah Jenner.  We make the residence order in favour of E. 

4.        In accordance with Article 13 of the 2002 Law, we also make the order requested by the Minister, conferring upon E the parental responsibility to the extent that order is necessary it may follow automatically that Article 13(2) but at any rate to the extent that is necessary it is made. 

5.        We make an order for letterbox contact for the mother, D, and letterbox contact alone.  We have noted that letterbox contact would, in practice, be supervised by E having parental responsibility for each of the three children, and noted also that that will be supervised to the extent necessary pursuant to the supervision order. 

6.        We accordingly make a prohibited steps order under Article 66 of the 2002 Law against E, requiring E to prevent D from either seeing the children or to the extent he can, from making telephone contact with them. 

7.        We also make the prohibited steps order against D requiring that she obtain leave from this Court before bringing any application in relation to the children.  In the context of that order we have helpfully been referred to the case of Re P in the Court of Appeal in England reported at 1999 2 FLR 573 and in particular noted the guidance given by the English Court of Appeal in relation to orders under section 91(14) of the Children Act 1989 which we are advised is in similar if not identical terms to Article 66(8) of the 2002 Law.  The Court of Appeal indicate that where orders of this kind are to be made, the power to make them should be used with great care and sparingly and it should be the exception not the rule.  The Court of Appeal say that it is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications; this is clearly not a case where there have been repeated and unreasonable applications by D.  The Court of Appeal also say that in suitable circumstances and on clear evidence, a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.  In cases of this kind, the court needs to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family; secondly the court needs to be satisfied that there is a serious risk that without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.  The Court of Appeal makes it plain at sub-paragraph 8 that the court may impose this restriction in the absence of a request from any of the parties' and can do so in the absence of the party to whom the order is addressed upon whom the restriction is imposed. 

8.        We have taken note that this is not an absolute prohibition and of course it would be entirely wrong that we should make an absolute prohibition in this way.  It is a requirement that D does not bring any application in relation to the children without leave and so it is open to her to make that application.  We have made that order because we are satisfied on the evidence which we have seen, and the evidence which we have heard today, that is it in the children's best interest that we make it.  That evidence in particular is the evidence of Dr Bryn Williams at paragraph 10.10 of his report, page 269 of the bundle, and it is also supported by the evidence of Sarah Jenner and the Guardian, Miss Ferguson. 

9.        The Court is satisfied that the children are concerned that their mother might return and that their residence with E might be affected as a result and are satisfied that the children are concerned at the possibility of contact applications as well.  In the circumstances we dismiss currently the application by the mother (if there is an application), it is slightly unclear from the papers before the Court, but if there is an application for telephone contact, that is dismissed. 

10.      Finally, Advocate Goulborn for E, asks for orders in relation to the passports for the children which are held by Appleby and this request is supported by both the Minister and the Guardian.  It seems to us to be entirely appropriate that those passports should be delivered and we have noted from an email sent to the Court by Messrs Appleby, who used to represent the mother, that the legal aid certificate to her has been discharged and they are no longer on the record as acting for D but they rest on the wisdom of the Court as to the future of the passports.  We have noted that, according to Messrs Appleby, the mother does not agree to the release of the passports to E; we think that is unreasonable and if the children are to be resident with him, then it is appropriate that he should have their passports in case the opportunity of foreign travel should come up and be appropriate. 

Authorities

Children (Jersey) Law 2002.

Re P (1999) 2 FLR 573.

Children Act 1989.