Jersey Unreported Judgments

[2011]JRC010

royal court

(Samedi Division)

17^th January 2011

IN THE MATTER OF B

Advocate R. E. Colley for the Father.

Advocate D. A. Corbel for the Mother.

Advocate D. Gilbert for the Guardian.

judgment

the commissioner:

1.        On 15^th December, 2010, the Court granted the father's application for overnight contact with Child 3 to be reinstated and we now set out our reasons. 

2.        The father's application for contact with the three children of the marriage was effectively compromised on 20^th October, 2009.  The central issue had been the father's use of pornography and the risk it posed to the children.  That issue was resolved with the expert advice of Dr Briggs, an adult psychologist, whose conclusions in his addendum report of 21^st September, 2009, that there was no risk were accepted by the mother. 

3.        The father had been enjoying regular contact with Child 3, but the other two children opposed any contact with him.  It was envisaged that their opposition to contact would be addressed through counselling or therapeutic work.  The Court therefore ordered that the father would have unsupported contact with Child 3 of at least six hours per week as agreed by the parties and he would have contact with Child 2 and Child 1 on such terms and at such times as recommended by the respective counsellors and/or therapists and the guardian. 

4.        Counselling work in respect of Child 1 has been completed and Child 1 maintains the opposition to any contact with the father.  Therapeutic work with Child 2 is still ongoing.  In its directions of 16^th June, 2010, the Court ordered the guardian to prepare reports on the work done in respect of both Child 1 and Child 2 and a final report on the contact between the father and Child 3 once Child 2's therapy had been completed.  When giving directions on 16^th June, 2010, the Court said this:-

"7.      The guardian's report also covers the contact between the father and Child 3.  There have been a number of issues which have concerned the mother, but which the guardian puts down to different parenting styles and values.  There is no need to go into those matters for the purposes of this short judgment."

5.        Contact between the father and Child 3 progressed by consent to overnight contact on the 6^th November, 2009, and continued until 12^th November, 2010, when Bedell Cristin, who act for the mother, wrote to Viberts, who act for the father, giving notice that overnight contact between the father and Child 3 would cease with immediate effect.  In broad terms, they said this was because Child 3 had expressed fears to the mother with regard to staying overnight from the second overnight contact and from that time the mother has noticed marked changes in Child 3's behaviour.   Matters relied on by the mother to support her concerns cover the period starting in November 2009, i.e. well before the Court hearing in June 2010. 

6.        At the hearing both the mother and father filed statements and we heard evidence from them and from Mrs Ferguson. 

7.        We do not think it necessary to go into the detail of the contentions raised by the mother and the response of the father because it was clear to us that central to the mother's position was a fear that Child 3 was being sexually abused or being groomed by the father for that purpose, although no direct accusation to that effect was made.  She referred in her statement to sexualised behaviour on the part of Child 3 going back to March of 2010, such as poking or touching personal private parts. 

8.        In his statement the father, whilst acknowledging communication problems between him and the mother, said that he had every confidence in the way contact with Child 3 had progressed during the year.  He had not himself seen any sexualised behaviour on Child 3's part.  Problems that had occurred had been due, he said, to the mother's erratic decision making.  He referred to a holiday he intended to take with Child 3 during October half term to Essex to visit his partner D who lives in England who Child 3 enjoys spending time with.  Permission, he said, was granted by the mother only for it to be withdrawn at the last minute, which had disappointed Child 3.  He had no prior notice from the mother of any concerns about overnight contact itself and said that its sudden cessation was confusing for him and for Child 3. 

9.        Mrs Ferguson, who has been involved in this case from January 2009, went to see Child 3 with Mrs Alison Brown from Crill Canavan.  Mrs Brown wrote to Bedell Cristin on 25^th November, 2010, describing that meeting and it is helpful to set out her letter:-

"Child 3 was the usual bubbly self and it was a pleasure to meet Child 3 again.  During our meeting the child volunteered information over and above merely answering questions, and on occasions laughed or giggled when things were amusing.  The child gave us both eye contact throughout and at no time seemed remotely uncomfortable with being there, the topics under discussion, or the questions put.  Jane and I are content that Child 3 responded honestly at all times.

Jane wishes to set out the following information from our meeting (this is not exhaustive or the issues covered):-

1.        The conversation with Child 3 started with Jane asking the child if the child knew why the child was there and the child immediately volunteered that it was because "I'm not sleeping at Daddy's."  The child went on to say that the child did not know why this was so, and didn't know why it had stopped and did want to sleep overnight at the father's house.  This was repeated more than once.

2.        Child 3 described activities done with the father including the cinema.

3.        Child 3 was prompted to recall the issues arising from the film last year and of being frightened of the shadows etc.  The child confirmed this had not happened again, and was not frightened to go to the father's house.

4.        Child 3 explained that the child often saw F, and used to play with "H" who used to live there, but Child 3 told us that "H" had now gone home to "H's" Mother's to live (although Child 3 thought that "H's" mother may be poorly again so had returned to F).  Child 3 sees Grandma and Grandpa "quite a lot" and gets on well with them and thinks Grandma is "fine" (i.e. not too poorly) and Grandma does remember Child 3.  Child 3 sees J "sometimes".

5.        Child 3 was asked if Child 3 knew why Child 1 and Child 2 do not visit Daddy and the response was "not really" but didn't really mind about this and it didn't pose a problem.  Child 3 says that Child 3 tells Mum that Child 3 enjoys contact with the father.

6.        Child 3 describes D as "nice".

7.        Child 3 clearly stated that did not know why Child 3 had not gone away with the father at half term which the child had been looking forward to.  Child 3 stated that it was upsetting that Child 3 had not gone and confirmed that Child 3 would like to go away with him.  Jane asked if the child would like to go away for a weekend, not as long as a week, like before, and Child 3 said "yes" followed by the unprompted comment "4 or 5 days".  Jane asked what the difference was between 4 or 5 days and a week and Child 3 giggled.  We all laughed and Jane did not press the child for a reply.

8.        Child 3 stated that Child 3 would miss Child 1 and Child 2 (and mummy) but that D was nice and Child 3 would like to go and see D's house.

9.        Child 3 was asked about the burn on the leg.  Child 3 explained that the iron had slipped when Child 3 was ironing pyjamas, causing the burn.  Child 3 was clear it was an accident that will not happen again!

10.      Child 3 was asked again about being frightened at the father's and said that Child 3 didn't like the teddies' faces.  Child 3 had told D, who had passed the information to the father.  He had put them behind the curtains which hid them when they were drawn, which sorted out the problem.  Child 3 confirmed that the father had accepted this and Child 3 was not concerned about his reaction.

11.      A quite involved conversation took place about "lights" and Jane reminded Child 3 about the previous disagreement the child had had with Child 2 about the fairy lights in their bedroom, Child 3 reports they no longer have them on.  Child 3 volunteered that the mother leaves the landing light on during the night and the father leaves the toilet and hall light on.

12.      Child 3 confirmed that Child 3 had not wanted the half term contacts with the father to start "so early", Child 3 was wanting to stay in bed until 10.30.  Child 3 confirmed that bedtimes had slipped to approximately 9.30 pm during half term.  Child 3 simply did not want the visits to start so early.

13.      The conversation was recapped with Child 3 who confirmed again that did not know why overnight stays had stopped, and wanted them to restart, and was not frightened to go, and enjoyed the visits and thinks D is nice, and does not know why Child 3 did not go to the UK for the proposed holiday and was upset not to go as had been looking forward to it.  Child 3 said would like to have a holiday away with the father for 4/5 days and would like to see D's house.

Jane is of the view that Child 3's responses were entirely genuine, and the child's views were freely given.  I fully concur with this.

In the light of the above Jane supports the immediate reinstatement of overnight contact and invites C to make the "necessary arrangements." (her emphasise).

10.      In her report of 4^th December, 2010, Mrs Ferguson said this in relation to Child 3's sexualised behaviour:-

"5.       Mrs Brown and I were well aware that there were two particular issues that exercised C that seem to be related, that Child 3 apparently started to remove the pyjama bottoms in bed complaining that it was too hot and the fact that Child 3 allegedly is often seen with a hand in the vicinity of the genital area and what C refers to as "poking".  This is clearly a deeply personal issue and I went into the meeting with an open mind as to whether or not I would raise it with Child 3.  However, as it became clear that Child 3 was comfortable, happy and content with contact with the father, showing no sign of anxiety or dismay I took the decision that it would be inappropriate to discuss these matters with the child.  My experience in the field of child protection is lengthy and I have the skills to assess whether I believe that there are any signs that young people are being abused.  I did not consider that Child 3 gave any indication that Child 3 was the subject of any abuse, either verbally or non-verbally.  Had I done so I would have referred the matter to the Children's Service immediately for further investigation."

11.      Mrs Ferguson concluded her report as follows:-

"The Court will see from the correspondence in the bundles that throughout the year there have been ongoing difficulties which had been referred to me.  In general my response has been that they need to communicate effectively and accept that they have a differing parenting style which is not unusual when parents are separated.  The wider issue of whether or not A frequently changes contact and accepts emergency cover for days when he has staying contact is something which I cannot comment on as both parties have their own views.  If it is true, then that is not in Child 3's best interests.  However I do not think that it should affect the principle of whether Child 3 should continue to have overnight contact with the father. Based on my knowledge of the case and the interview with Child 3, I cannot see any evidence as to why this should not continue."

12.      In her evidence Mrs Ferguson explained that it was not necessarily concerning to see sexualised behaviour in children of this age as there could be all sorts of reasons for it, but she reiterated that if she had any fear or concern that things were not as they should be, she would have delved deeper and referred the matter immediately to the Services.  In her view, the mother had always feared either that the father had, or will abuse the children and no one would be able to stop her thinking that.  If she does think that, then any little matter will be used as evidence to support her concerns. She saw no merit in engaging the assistance of expert advice, such as that of Dr Young, the child psychologist who had previously advised in the case, as she could not see what he could add.  The school had expressed no concern about Child 3.  Why subject the child to the intrusion of another expert when all the child wants to do is to see the father. 

13.      In her statement, the mother said she had no confidence that Mrs Ferguson was acting in her children's interests and in evidence she alleged that Mrs Ferguson was biased.  She complained that Mrs Ferguson had completely ignored her concerns about Child 3's sexualised behaviour and that she had recommended reinstatement of overnight access when she had no behavioural expertise. 

14.      The correspondence between the mother and Mrs Ferguson appended to the mother's statement deals with contact arrangements, the father's use of Calpol and Paracetemol and the aborted trip away.  The last communication was on 6^th October, 2010, and nowhere could we see any reference to sexualised behaviour and indeed any hint that the mother's concerns were such that she was contemplating cutting overnight access. 

15.      There was one incident reported in November 2009 when, after being frightened by watching the film "Christmas Carol", Child 3 had slept in the father's bed.  Mrs Ferguson interviewed both the father and Child 3 and consulted Dr Briggs.  Dr Briggs' view was that there had been no evidence from Child 3 that anything else occurred, other than sleeping in the father's bed, and that if the father was grooming Child 3 he had many other more discreet opportunities to do so, so that this was unlikely to be grooming behaviour.  The father accepted that he should have given the situation more thought, a process lost probably through sleep deprivation as a result of his shift work, but he asserted that he would not allow it to happen again.  The matter is fully covered in Mrs Ferguson's report of 18^th January, 2010. 

16.      The correspondence shows Mrs Ferguson dealing in an even-handed manner with parents who were unable or unwilling to communicate with each other in the interests of their children.  When the letter of 12^th November, 2010, was received, Mrs Ferguson acted without delay to investigate.  In our view, there is no evidence that Mrs Ferguson has ignored complaints or acted in a biased manner.   Furthermore, we do not accept that she is a person with no behavioural expertise.  She informed us that she had been trained in child protection and abuse and had practised in that area for some 25 years. 

Decision

17.      Child 3 has a right to a relationship with both parents which each parent must respect.  Despite the ongoing differences between the parties over the contact arrangements, from Child 3's point of view there was an established routine in which Child 3 would stay with the father and it was wrong of the mother to unilaterally and without warning interfere with that routine.  The letter of 12^th November, 2010, should have been sent before any action was taken by her, to enable the father to respond and Mrs Ferguson to investigate.  The mother would then have had the comfort of Mrs Ferguson's independent assessment that all was well and there would have been no justification for cutting overnight contact after receipt of that report. 

18.      In the light of Mrs Ferguson's report and of the evidence that we had heard, we had no hesitation in immediately reinstating overnight contact.  Although there was no application before us in relation to the father taking Child 3 away from the Island on holiday, we see no reason why he should not do so. 

Reports

19.      In her statement the mother asked for a report to be prepared by Dr Briggs on the father's behaviour.  At the hearing Mrs Corbel sought a report from Dr Young, the child psychologist, on Child 3.  We saw no justification on the evidence for any further reports.  

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