Jersey Unreported Judgments

[2010]JRC128

royal court

(Samedi Division)

12^th July 2010

Before     :

J. A. Clyde-Smith Esq., Commissioner, and Jurats Le Brocq and Le Cornu.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF CHILD 1, CHILD 2 AND CHILD 3.

The Applicant represented himself.

The Respondent represented herself.

judgment

the commissioner:

1.        This case concerns contact between A ("the father") and his three children, Child 1 and Child 2, who are twins, and Child 3.  The background is set out in the Court's judgment of 5^th February, 2010, (JRC 025) in which the Court gave its reasons for its decision on 17^th December, 2009, to authorise unsupervised contact between the father and the children, but not staying contact.  Unsupervised contact was conditional upon the father's mental health being monitored for a period of one year by his consulting Dr Harrison every three months for that purpose and providing a report of each consultation to the mother.  (See paragraph 37 of the judgment). 

2.        On 14^th January, 2010, the Court, by consent, ordered staying access with a review to take place before the summer half term.  The Court Welfare Officer was ordered to prepare a report for the purposes of that review hearing as to the way in which contact had progressed and detailing the wishes and feelings of the children in respect of visiting, staying and holiday contact with the father.  

3.        That review hearing took place on 27^th May, 2010, when the parties represented themselves.  The Court Welfare Officer, Mr Chay Pike, had been unable to provide a full report because the father had refused to return the criminal record check form and refused to give Mr Pike permission to carry out a home visit and observe the contact between him and the children in the home.  He did agree to Mr Pike observing contact between him and the children on a walk; however, arrangements made by the father made this impossible.  Subsequently, the father stated that he did not wish Mr Pike to observe the contact he has with the children or to have any further office interviews, given that he believed an agreement had been reached between himself and the mother. 

4.        Notwithstanding these regrettable omissions, it was clear that contact had gone well and the parties were agreed as to how it should proceed in the future.  These arrangements will be reflected in the order which we were invited to make by consent. 

5.        The areas of disagreement revolved around the father's concern to ensure that contact was never again summarily terminated by the mother and the mother's concern as to the monitoring of the father's mental health. 

6.        The father read us a prepared statement reciting the history of the matter from his point of view, alleging that the mother had carefully plotted the ground, obtained statements and without good reason had summarily stopped contact.  This, he said, must never be allowed to happen again.  The father's view was that the mother's own mental frailties were central to the case; frailties that he said caused comment from Dr Oyebode, Dr Williams and Ruth Hodierne. 

7.        He pointed out, correctly, that there had been no determination by the Court as to the alleged risks he posed to the children and whether the mother had been justified in stopping contact.  However, he accepted that the parties had moved on and sought orders as follows:-

".....

4.        Both parties shall provide the other with any significant information as to their psychological health by letter upon any such consultation result;

5.        Each party shall make their best efforts not to denigrate the other with either their families, friends or acquaintances and shall maintain cordial correspondence in order to organise and benefit the lives of their children raising any questions with each other as a principle rather than through any third party or agency;

6.        The mother shall at no stage summarily curtail normal contact and shall make every effort to rationally communicate any issues with the father in order to arbitrate their resolution without resorting to third parties or the Court;

..."

8.        The mother pointed to Dr Oyebode's report of 27^th August, 2009, in which he stated that "there is persuasive evidence from the information available to me that A has suffered with a bipolar affective disorder" and that in his view "there is persuasive evidence that he has manifested both manic and depressive symptoms of this disorder."  She pointed to the father's own admission in his e-mail to her of 17^th January, 2009, that he had suffered clinical depression from the end of 2007 through to the summer of 2008. 

9.        Pursuant to the Court's order of 17^th December, 2009, he had attended upon Dr Harrison on 9^th March, 2010, and was considered to be well.  However, the father had failed to provide the mother with a copy of Dr Harrison's report, as ordered by the Court.  The mother submitted, with justification, that in the interests of the children, the mother should receive a copy of the report and this without delay.  The father accepted that this was his obligation under the existing order. 

10.      The mother recited that she had been advised by her former lawyers to suspend contact and was told that if she failed to do so, a full child protection inquiry would result.  In doing so, she was acting on information and observations of the father behaving in an erratic manner "often punctuated with episodes of aggressive and frightening behaviour".  That combined with his admission as to his suffering clinical depression left her with no choice but to act protectively.  However, she recognised the importance of a healthy relationship between the children and their father which she fully supported, but in their interests, sought an extended monitoring of his mental health with orders as follows:-

"1.       Unsupervised contact is conditional upon the Applicant's mental health being monitored for a period of one year by his consulting Dr Harrison every three months for that purpose and providing a report of each consultation to the respondent within a 7 day time frame of receipt of the report or, Dr Harrison copies both parties in on the report. 

2.        The obligation of the Applicant to have quarterly reviews and reports made by Dr Harrison should be extended to 5 years with the respondent being provided with a report of each consultation. 

3.        a)         The applicant shall contact Dr Harrison immediately to arrange all of the review appointments required until Dec 2010.  The applicant must make a similar arrangements (sic) at the start of the subsequent years, 2011, 2012, 2013, 2014, 2015.  Dr Harrison shall notify the mother if the appointments are not kept.  If, during this time, Dr Harrison is no longer available another psychiatrist, approved by the Court, must be sought. 

           b)         The quarterly reports prepared by Dr Harrison shall detail whether or not the Applicant presents a risk to the children, should unsupervised contact take place and if such a risk is identified, the mother may unilaterally suspend contact until she receives approval as to the resumption of contact from Dr Harrison and the Court Welfare Officer or Children's Services. 

           c)         If Dr Harrison receives reports from third parties or the mother that there are concerns about the Applicant's Mental Health, Dr Harrison shall contact the applicant and arrange to assess him as to his fitness to exercise unsupervised contact.  Dr Harrison shall notify the mother if a risk to the children is determined. 

           d)         If the mother has concerns about contact taking place she shall be at liberty to contact Dr Harrison and Dr Harrison shall have permission to discuss the Applicant's mental health with the mother and also the Court Welfare officers and or the Children's Services. 

4.        Contact must be child focused and will consist of activities that the children tell the applicant they enjoy and he will not undertake activities that frighten the children or make them feel anxious."

11.      We can appreciate that in cases of this kind an early fact finding hearing might better assist the parties and those advising in understanding what has happened and accepting their role in it.  In this case the issue of contact was effectively resolved by the parties, with the assistance of Dr Williams, before the Court had made any such findings.  

12.      On the information before us, we see no reason to doubt that the mother's concern for the safety of her children was genuine, and it is difficult to criticise her for acting on the professional advice that she says she was given.  What we have criticised, with the benefit of hindsight, is the Court's own role in maintaining the "draconian" order of no contact without first probing more thoroughly the advice from the agencies and exploring all other avenues, such as supervised interim contact or the imposition of suitable conditions for interim contact pending a full hearing (see paragraph 38 of the Court's judgment). 

13.      We understand the mother's concern to monitor the father's ongoing mental health.  The Court considered this issue carefully in December 2009 and decided that his mental health should be monitored for a period of one year.  Since that time, contact has been fully and successfully re-established and at the March consultation with Dr Harrison, the father was found to be in good mental health.  In our view, nothing has happened since December 2009 which would justify the extension of the period of monitoring beyond that originally ordered by the Court. 

14.      Furthermore and in the absence of such a justification, we regard the extension of compulsory consultations with a psychiatrist for five years to be a disproportionate intrusion into the father's private life. 

15.      The father made the point in his statement to us that when he was last unwell he sought medical advice on his own volition and was treated for it.  If, following the period of monitoring currently ordered by the Court, the mother were to become concerned as to the father's mental health, then those concerns must first be raised with the father and discussed.  If the mother's concerns are not properly addressed by the father, then she will have liberty to refer the matter back to the Court. 

16.      Drawing from the draft orders put forward by the parties, we therefore make the following orders (to replace the existing orders):-

(i)        There shall be such contact between the father and the children as the parties may agree from time to time, but subject thereto:-

(a)       The mother shall make the children available for unsupervised overnight contact with their father each alternate weekend as agreed from after school on Friday returning them to school on Monday, or from their mother's home at 3pm on Friday returning them to their mother's home at 10am on Monday during school holidays;

(b)       The mother shall make the children available for contact with their father during school holidays on such dates and times and for such periods as shall be agreed between the parties but with an equal share in mind; it being understood that the father may choose to take the children off island during this time. 

(ii)       Contact between the father and the children must be child focused and will consist of activities that the children tell the father they enjoy and the father will not undertake activities that frighten the children or make them feel anxious. 

(iii)      Each party shall make their best efforts not to denigrate the other with their families, friends or acquaintances and shall maintain cordial correspondence in order to organise and benefit the lives of their children. 

(iv)      Each party undertakes not to discuss these proceedings with the children and each party shall use their best endeavours not to involve the children in the negotiations in respect of contact and ensure that the children do not feel that they are responsible for the contact arrangements. 

(v)       The mother shall hold the passports for all three children and in circumstances where the passports are given to the father for the purpose of a holiday with the children, the father shall return the passports to the mother when he returns the children to her care. 

(vi)      In circumstances where the mother consents to the father removing the children from the jurisdiction for the purpose of a holiday, the father shall provide the mother with full details of his holiday address, contact telephone number, and travel arrangements for him and the children at least fourteen days in advance.

(vii)     The father undertakes to return the children to the jurisdiction of the Royal Court of Jersey on each and every occasion that he removes the children for the purpose of a holiday. 

(viii)    Unsupervised contact between the father and the children is conditional upon the father's mental health being monitored for a period of one year from 17^th December, 2009, by his consulting Dr Harrison every three months for that purpose and providing to the mother without delay a report from Dr Harrison of each consultation. 

(ix)      Both parties will provide the other with any significant information as to their psychological health which might impact upon the welfare of the children. 

(x)       Either party may disclose the contents of this order to the schools attended by the children from time to time. 

(xi)      There shall be liberty to apply. 

(xii)     The Court's orders of 17^th December, 2009, and 14^th January, 2010, are revoked. 

Authorities

In the matter of B [2010] JRC 025.