[2011]JRC016
royal court
(Samedi Division)
19th January 2011
Before : |
J. A. Clyde-Smith, Commissioner, and Jurats de Veulle and Nicolle. |
Between |
A |
Appellant |
And |
B |
Respondent |
IN THE MATTER OF NN
Advocate C. M. Fogarty for the Appellant.
Advocate R. E. Colley for the Respondent.
judgment
the commissioner:
1. This is an appeal by A ("the father") against the decision of J M O'Sullivan, Deputy Registrar, (Family Division), made on 22nd October, 2010, to order indirect contact between the father and the two children, namely Child 1 and Child 2, and to decline to order that the father have parental responsibility for the children.
2. The father and B ("the mother") were not married. They met at university in Poland and moved to Jersey in June 2004. The history of the matter is summarised in paragraphs 2 - 9 of the Deputy Registrar's judgment, which it is convenient to set out in full:-
"2. On the 18th November, 2009, the mother and the children left the family home and moved to the Women's refuge. In her affidavit sworn the 19th November, 2009, in support of an application for an injunction against the father, (the father accepts the allegations made in the affidavit), the mother sets out the father was abusive to her from the outset of their relationships and that incidences of domestic abuse both physical and emotional occurred nearly every day. He was violent to a former boyfriend. She wrote that at the end of 2000 she tried to run away but was dragged by her hair in the street, back to the student house.
3. When they moved to Jersey she hoped matters would improve but they did not. In Jersey he held a knife to her throat and pushed it so hard against her throat that she was terrified he was going to kill her. His violence got worse when she became pregnant with Child 1. About two years ago he kicked her so hard on the leg she was left with a bruise half the length of her thigh. He also attacked her with the kitchen chair. 2 to 3 years ago he threw a sharp kitchen knife at her which just missed her.
4. He punched her with such force when she was pregnant with Child 2 she was left with severe bruising. She took a photo on her mobile phone but he took her phone. She describes when she went in to labour with Child 2 - he was furious with her waking him up lashed out at her and drove so fast to the hospital taking no notice of how much pain she was in.
5. In 2005 he tore Child 1 from her mother's arms and then attacked her mother smashing her glasses. Child 1 was screaming. She wrote he has "no regard for authority or for his elders". His violence was nearly always in front of the children and Child 1 said "Daddy hit Mummy on the head". Indeed he became more aggressive when she attempted to make him aware the children were witnessing his violent behaviour and shouted louder using extreme swearwords. He punched her on the head numerous times so hard she got dizzy and she was worried about permanent damage, and that "when he is violent towards me and I am in danger, he is always in control of the situation" She wrote she is petrified of him.
6. On the 19th November, 2009, she was granted an interim injunction against him inter alia preventing him from harming or molesting her, communicating, threatening or abusing her, approaching or loitering near her work, Child 1's nursery or Viberts, her lawyers. On the 18th December, 2009, Commissioner Bailhache admonished the father for breaching the injunction and added that he was also prevented from approaching within 100 metres of the women's refuge. Sir Philip said:-
"We want you to understand two things. The first is that it is also an emotional experience and a very difficult experience for B who is having to live in the women's refuge, which is not a place where a woman and two children ought to be. You are responsible for that. It is your behaviour in the last years that has led to this situation and you need to accept that. And secondly, and most importantly, we want you to understand that when a court makes an Order, it expects people to observe that order and a breach of the court's Order is a very serious matter, which generally leads to punishment."
On the 23rd December, 2009, the interim injunction was amended by agreement so that the children and mother could return home and the father leave. The mother then made a further application due to breaches by the father and on the 24th February, 2010, the father was fined £2,000 or to serve 3 months imprisonment for breaches and the power of arrest was extended by six months. He paid £2,000. However he breached the injunction again and on the 21st July, 2010, he was sentenced to a term of imprisonment for seven days. The injunction was amended on the 9th September, 2010, to take into account inter alia of the mother's amended address.
7. At a hearing on the 6th January, 2010, the father accepted the matters set out by the mother in her affidavit of the 19th November, 2009. Mrs Emsley, forensic psychologist, was ordered to carry out a risk assessment on the father about his ability to have safe and appropriate contact with the children and a welfare report was ordered. The father started the ADAPT domestic abuse prevention training on the 21st January, 2010. Children's Service carried out a parenting assessment completed on the 10th February, 2010, which is in the bundle of documents.
The Children's service officer stated:-
"Following my meeting with A, the father, I am of the opinion that he minimised any violence that he was responsible for and also the impact of this on his children. A stated that he had started the ADAPT programme, a programme for men who are violent to their partners ...A was made aware that on completion of the course, a 32 week course, he would then be assessed as to the success of the work completed."
The Officer stated:-
"I would strongly advise that a have no contact with the children pending further assessment by the Court Welfare Officer and Ruth Emsley. I am not convinced that A has the capacity to change through attending the ADAPT programme at this time. I feel that his motivation to attend is questionable as I believe he is doing the course so as to resume his relationship with B and not because he feels his behaviour is wrong".
8. In her report of the 23rd January, 2010, which I will deal with further below, Mrs Emsley wrote:-
"Given that A has demonstrated domestic violence in the presence of his children, I recommend any decision regarding contact with them is delayed until an ADAPT post-programme risk assessment report is available."
I note that in her report Mrs Emsley says:-
"A, did however, indicate that he could be aggressive with his mother at times".
He is a man who has therefore been aggressive and violent to B, her mother and has been aggressive to his own mother.
Dr Bryn Williams is a consultant clinical psychologist provided a report on the 28th May, 2010. He writes:-
'If it would assist the Court I would be able to provide further assessment of the children with their father once the experts who are working with A with respect to this violence are able to assure the Court that he has made sufficient psychological change and recognises the impact of the violence on his children. I would respectfully recommend that A continues to send both children cards and presents at important times in the year and that he provide a letter for their mother to read to Child 1'.
9. Having started the ADAPT course on the 21st January, 2010, the father finished it on the 12th August, 2010. On the 21st July, 2010, he had been sentenced to a term of imprisonment for seven days for breaching the injunction. The conclusion of the ADAPT report is as follows:-
'A became increasingly angry and frustrated with the "system" and for a number of reasons more recently with the Police.
He appears to distrust or lack respect for authority.
He stated that during the last session that if he didn't get unsupervised access to his daughter at Millis he "will cause trouble". What kind of trouble he was referring to is unknown. However this would seem to confirm his sense of frustration.
By the end of the programme A had not really moved forward to make any real positive changes, although to date he has not been assessed in "risk" end of programme.
Overall A presented as quieter member in the group and it has therefore been difficult to assess how much he has been able to question his beliefs and attitudes around his behaviour.'"
3. Following the granting of the injunction the father was denied contact with the children. He filed a form C1 applying for contact and parental responsibility on the1st December, 2009. The hearing before the Deputy Registrar took place on 20th, 21st and 22nd October, 2010. She heard evidence from Dr Bryn Williams, the Child Psychologist, Mrs Jane Ferguson, the Court Welfare Officer, and Mrs Ruth Emsley, the Adult Psychologist. Their written reports and evidence are comprehensively summarised in the Deputy Registrar's judgment.
4. At the end of the second day of the hearing, following the evidence of the experts, the father indicated that he would not be giving evidence in support of his applications for contact and parental responsibility. This took the Deputy Registrar by surprise and she made it clear that she wished to hear from him and to ask him certain questions. Mrs Colley was also expecting to cross examine the father and had presumed that Miss Fogarty would be cross examining the mother.
5. The following day, after hearing submissions from counsel, the Deputy Registrar ruled that whereas there was authority under English law for the proposition that parents can be compelled to give evidence in public law cases, there was no authority to support the proposition that the Court can compel a parent to give evidence in private law cases. She therefore accepted that the father could not be compelled to give evidence in these proceedings. She indicated that it would be helpful for the Court to hear from him in respect of his applications but if he declined to do so then she would have to make her decision on the basis of the material before her.
6. Miss Fogarty explained to the Deputy Registrar that the father had admitted the facts in relation to his violence as set out in the mother's affidavit thus sparing her from the necessity of giving evidence and those facts had been "minutely rehearsed" by the three expert witnesses and tested in cross examination. The father had heard the evidence of the experts which he accepted. He had nothing to add to that evidence and given the recent assessments of the experts, it would be a waste of the Court's time for him to do so.
7. The Deputy Registrar referred in her judgment to the case of Re O (care proceedings: evidence) (2004) 1 FLR 161 in which the issue of the mother's failure to give evidence in public law proceedings was raised. In his judgment, Johnson J said:-
"The failure of a parent to give evidence in proceedings concerning their children is, in my experience, rare to the point of being unique. I can recall one case where I was told a parent would not be giving evidence, but I adjourned the case overnight and the parent gave evidence the following day."
8. The transcripts show that the Deputy Registrar and Mrs Colley found the decision of the father not to assist the Court by giving evidence in these private law proceedings concerning his children no less unique. No point was taken on this appeal as to whether it is correct that a parent cannot be compelled to give evidence in private law proceedings and we heard no argument on the issue. However bearing in mind the statutory requirement under Article 2 of the Children (Jersey) Law 2002 for the Court to give paramount consideration to the welfare of the children when determining any question with respect to their upbringing, we express the view that the Court must at the very least be entitled, if not obliged, to indicate to the parties the evidence it would wish to hear in order properly to discharge its statutory duty and it must be the duty of the parties to provide that evidence if reasonably possible. It cannot be for a party to decline to provide evidence in the face of an express request by the Court and even if he or she cannot be compelled by the Court to provide that evidence, then depending on the questions that fall to be determined, the Court may well have to draw inferences adverse to that party, although it is clear that in this case the Deputy Registrar did not do so. Upon inquiry from this Court, Miss Fogarty stated that the father would now be willing to give evidence although there was no application made to do so in this appeal.
9. The father went further in withdrawing any reliance upon the two witnesses who had provided statements for the Court on his behalf and he did not require the mother to give oral evidence and be cross examined as to her written evidence and the evidence of what she had said to those who filed reports. As a consequence the only evidence the Deputy Registrar had before her was the mother's affidavit sworn on 19th November, 2009, in support of the application for an injunction setting out the allegations of violence made against him, which the father accepted, the evidence of his breaches of the injunctions and the evidence of the three experts.
10. As Miss Fogarty said in her closing submissions to the Deputy Registrar, all of the experts agreed that the father had not yet reached a place where the Court would contemplate unsupervised contact and she did not therefore argue that it should do so, although it was the father's earnest desire to have unsupervised contact one day. She therefore agreed with the Deputy Registrar that the Court faced a choice between indirect contact as recommended by Dr Williams and Mrs Ferguson or supervised contact, as recommended by Mrs Emsley. By her reference to supervised contact, Mrs Emsley made it clear that the supervision should be undertaken by a professional who is competent to monitor and assess the quality and appropriateness of the interactions between the father and the children on an ongoing basis.
11. Mrs Ferguson confirmed to the Deputy Registrar that there was currently no facility in the Island for supervised contact (i.e. contact supervised by persons with appropriate training), although it was anticipated that such a service would be introduced through Millis contact centre, whose staff would be trained. It could, however, be a year before it is available. Millis currently provide "supported" contact only.
The test on appeal
12. The test on appeal is that now set in Downes-v-Marshall [2010] JRC 115B, namely:-
"..an appeal from the Family Registrar should only be allowed if there has been a procedural irregularity or if, in exercising his discretion, he has taken into account irrelevant matters, or ignored relevant matters, or otherwise arrived at a conclusion which the Court believes to be wrong."
Under this new test, the Court places greater weight on the Deputy Registrar's exercise of discretion, recognising her expertise, exposure to the primary evidence and the length of time spent processing and hearing the particular case - in this case, some three days.
Grounds of appeal
Parental responsibility
13. In respect of parental responsibility, having referred to the three-fold test namely:-
(i) the degree of commitment which the father had shown towards the child;
(ii) the degree of attachment which exists between the father and the child and
(iii) the reasons for the father applying for the Order (see L.S.-v-N.S. [2007] JRC 103A)
14. The Deputy Registrar set out her conclusions as follows:-
"80 This was the test referred to in In Re L (A Child) Contact: )Domestic Violence, Re v, Re M, Re H [2001] FAM 260 and the father in the Re L case was not granted parental responsibility. In that case the court said of the father seeking a parental responsibility order:-
'... seeks an order, indeed orders, to control, and because they are his right rather than because he is committed to T and wants to do his best for her and give her the best. I am sure he regards the mother's defiance of him, and refusal to bow to his wishes, humiliating and frustrating. I do not believe it would be right or in T's interests for him to have parental responsibility at this stage. I stress those last three words. I would be prepared to look at the matter afresh, in the light of his commitment to indirect contact and, indeed his response to this judgment and acceptance perhaps that he is a violent man who has put the mother in fear.
I do not believe that he has shown genuine concern. For him I believe it is a question of his rights and a right to control, rather than commitment to or concern for T.'
81 With regard to A's commitment, he has brought these proceedings and he had financially supported them but he has not chosen to take up indirect contact. Mrs Emsley says that had he been committed he would have taken on board what Dr Williams addressed. It is accepted he loves his children. With regard to the level of attachment, it is accepted that there is an attachment between Child 1 and the father but it is not clear that this is the case with Child 2. He sent Child 1 a present but only sent him a card. With regard to his reasons for father applying for the order, I have not heard from him. However, I accept that one of the difficulties with parental responsibility is the level of control it can give. A is a controlling person. Mrs Emsley said he did identify he was controlling in the relationship with the mother and did not pay attention to her needs and his behaviour can be planned and calculating. Mrs Ferguson in her report said she relied on the wisdom of the court in respect of parental responsibility but on being questioned by Advocate Colley did accept that in cases of severe domestic violence, this can affect how parental responsibility is used by the perpetrator. She considered his propensity to break injunctions and Mrs Emsley's assessment that he puts his needs before those of his children as giving credence to the mother's suggestion that part of the reason for his application is to maintain a degree of control over the mother's life, given in addition he did not take up indirect contact. He can therefore use it to control the day to day life of the mother. He has not explained why he wants parental responsibility and more particularly that he would not use it in a destructive way. Advocate Fogarty submitted that because the parties are both graduates and Catholics there will be a broad level of agreement. She considers it discriminatory not to award him parental responsibility. However, in view of the father's behaviour I consider that he does wish the parental responsibility because he believes it "his right" and he can exercise some control on the mother and children. I would be prepared to look at the matter afresh, in the light of his commitment to indirect contact and, indeed his response to this judgment and acceptance that he is a violent man who has put the mother in fear."
15. Miss Fogarty submitted that the Deputy Registrar was wrong to deny the father's application for parental responsibility. The Deputy Registrar had, she said, ignored the very relevant matter that a married parent, however inadequate, receives parental responsibility automatically. The father is the children's biological father and it is discriminatory and wrong in principle not to have granted the order sought and there were no compelling reasons not to grant the order. The Deputy Registrar's principal reason for denying parental responsibility was that the father could "use it to exert control over the mother" although she submitted that there was no real evidence that he would do so. Furthermore, it was clear from LS-v-NS at paragraph 17 that parental responsibility gives the father an entitlement to share with the mother responsibility for all important strategic decisions affecting the life of the child such as the choice of school or choice of religion but does not mean involvement in routine daily decisions affecting the life of the child. Thus even if the father were seeking responsibility in order to control the mother, it would not give him the means to do so.
16. Mrs Colley referred us to B-v-UK (2000) 1 FLR 1 in which it was held by the European Court of Human Rights that there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights which related to the range of possible relationships between unmarried fathers and their children. Quoting from the judgment at page 5:-
"It is true that under the Children Act 1989 married fathers have parental responsibility automatically, while unmarried ones need to acquire it in accordance with the provisions of the Act. However, the Court has considered that the relationship between unmarried fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family-based unit (McMichael-v-UK judgment of 24 February 1995 (Series A no 307-B, p 58(98). For this reason the Court has held that there exists an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights (above).
As a result, the Court considers that the applicant's complaint of discrimination between married and unmarried fathers does not disclose an appearance of a violation of Art 14 in conjunction with Art 8 of the Convention."
17. We therefore reject the father's assertion that the Deputy Registrar's order discriminates against him in breach of his Convention rights. The general principles to be applied with regard to applications for parental responsibility, as applied by the Deputy Registrar, were laid down by the English Court of Appeal in Re H (Minors)(Local Authority: Parental Rights)(No. 3)(1991) FAM 151, accepted by this Court in LS-v-NS as applying in this jurisdiction, namely, quoting from the judgment of Balcombe LJ:-
"the court will have to take into account a number of factors of which the following will undoubtedly be material (although there may well be others, as the list is not intended to be exhaustive: (1) the degree of commitment which the father has shown towards the child; (2) the degree of attachment which exists between the father and the child, and (3) the reasons of the father for applying for the order."
18. The father complains that his decision not to give evidence was held against him by the Deputy Registrar who focused unduly on his motivation for applying for parental responsibility. We reject this suggestion. She had evidence in the form of the mother's affidavit detailing the violence inflicted upon her on occasions in the presence of the children on an almost daily basis, violence accepted by Mrs Emsley to be at the "high end" of aggression, the evidence of his breaches of the injunctions, the evidence of Mrs Emsley as to the father's psychological makeup and the evidence of Mrs Ferguson as to how in cases of severe domestic violence parental responsibility can be used by the perpetrator.
19. As against that, she had no evidence from the father, despite the clearly expressed wish of the Court to hear from him, to explain why he wanted parental responsibility and more particularly, that he would not use it in a destructive way. All of the positive aspects of the father's application that could be gleaned from the evidence actually before her were expressly taken into account, in particular his commitment to the children both in bringing the proceedings and financially, the attachment between him and Child 1 and his accepted love of both of them.
20. Applying the test in Downes, it is not suggested that there has been a procedural irregularity. The Deputy Registrar did not take into account irrelevant matters or ignore relevant matters and on the evidence before her, it cannot in our view be argued that her conclusion was wrong. In the absence of any evidence from the father as to his own motivation, she had no alternative other than to infer his motive from the evidence that was before her. There were ample grounds on that evidence for her to conclude that the father wished to have parental responsibility because he believed it "his right" and so that he could exercise some control on the mother and children.
21. Furthermore, her approach on the issue of parental responsibility was consistent with the approach of the English Court of Appeal in the analogous case of Re L (a child) (Contact:Domestic Violence) (2001) FAM 260, an extract of whose judgment she cited (see paragraph 14 above).
22. There are no grounds to interfere with the decision of the Deputy Registrar in relation to parental responsibility but the door is not closed to the father, as the Deputy Registrar made clear. She would be prepared to look at the matter afresh in the light of the father's commitment to indirect contact and indeed his response to her judgment and acceptance that he is a violent man who has put the mother in fear.
Contact
23. The final conclusions of the Deputy Registrar were as follows:-
"76 With regard to supervised contact, I note that if ordered it could not take place. I accept the comments made by Mrs Ferguson and Dr Williams about supervised contact. The purpose is for it to be part of an ongoing process, not to continue indefinitely but the father does not agree he needs to undergo the work recommended by Mrs. Emsley before considering his unsupervised contact, and therefore matters could not move on. Dr Williams indicated he felt intimidated by A. Mrs Emsley recommended work be undertaken with a psychologist "to explore the impact of his interactional style upon his children if they were to witness it". It is worrying if a professional witness such as Dr Williams feels intimidated by A and this is acknowledged by Mrs Emsley.
77 A has not demonstrated insight into his behaviour and the effect of it, has not made any real positive changes, he is reckless, refuses to accept further work is needed, and he has not taken up indirect contact and has continued to put his own needs above those of the children. He has breached Court orders and has not shown a track record of proper behaviour. He needs to show a capacity for change before further consideration of supervised contact. Having considered all the matters referred to above and in light of the welfare checklist.
78 I order that the father has indirect contact, namely presents and cards at significant times of the year and that cards and/or short letters are sent for the children regularly. These are to be sent to the mother to be passed to the children if she feels they are appropriate, and should she have concerns, she should raise these with a member of the Jersey Court Advisory service."
24. The grounds of appeal in relation to the Deputy Registrar's order for indirect contact were summarised by Miss Fogarty as follows:-
"Ground 2 That Jersey is not meeting its obligations under Article 8(1) of the European Convention on Human Rights ("ECHR"). If the appellant continues to be denied any direct contact with his children the damage will be irreparable. This will be the fault of the services and the system in failing to provide any supervised contact and denial of such contact is a flagrant breach of the appellant's Article 8 rights under the ECHR.
Ground 3 That the Registrar was wrong in principle to deny the appellant any form of contact with his children other than indirect contact and misdirected herself as to the facts of the case and the evidence.
Ground 4 In ordering indirect contact the Registrar omitted to consider that no tangible recommendations had been made for how the appellant might change his behaviour to enable him to move away from indirect contact.
Ground 5 the Registrar recognised that contact is the right of the child but did not place sufficient emphasis on the fact that Child 1 knows the father and clearly wants to see him. There was no evidence that the appellant had ever harmed the children and thus no evidence that supervised contact would not be safe. Additionally there was no evidence that contact would not be "meaningful" to Child 1, especially as the child enjoyed a relationship with the father from birth until November 2009.
The Registrar failed to sufficiently acknowledge the positive elements in the appellant and that he had co-parented Child 1 from birth until 19 November, 2009. The judgment focused on the elements in the respondent's character and behaviour which are considered negative.
Ground 6 Despite the breaches of the injunction, the appellant has not committed any act of violence towards the respondent since the original injunction was granted on 19 November, 2009."
We will take these grounds together.
25. In the prayer to the father's skeleton argument, he sought the following orders from this Court:-
"1. An order for direct contact between the appellant and Child 1 and Child 2 on such terms and with such ancillary orders as the Court shall deem appropriate;
2. That a Court Welfare Officer should re-introduce the appellant to both children;
3. That funding should be made available to facilitate contact, whether by a member of the Children's Service or another professional; and, if the court deems it necessary."
26. Miss Fogarty made it clear that in seeking an order for direct contact, the father was seeking an order for either supervised or supported contact as the Court deemed appropriate. He had identified a friend who could provide supported contact. Under the new test for appeals from the decisions of the Registrar, it is not now open for the father to seek from this Court on appeal an order he did not seek from the Registrar, namely an order for supported contact unless we first set aside the decision of the Deputy Registrar under the new test. Even if we could be persuaded that out of the two options before the Deputy Registrar she was wrong to order indirect contact as opposed to supervised contact, it is clear to us that the Court does not have jurisdiction to order the Minister of Health and Social Services, who is not a party to these proceedings, to fund a service for supervised contact.
27. As stated in Re E (Family Assistance Order) (1999) 2 FLR 512, the English Court had no power under broadly similar legislation to make orders against local authorities in private law proceedings requiring the authorities to supervise contact. The English Court did have, however, as indeed does this Court, jurisdiction in private law proceedings to make a family assistance order requiring a local authority to make officers available to advise, assist and befriend. However, such an order requires the consent of every person named in the order and in any event, Miss Fogarty informed the Deputy Registrar that she was not seeking a family assistance order until she learned what order would be made by the Deputy Registrar.
28. Furthermore, it was held in S and P (Contact application: Family Assistance Order) (1997) 2 FLR 277 that it was not for a judge to order a local authority to undertake escort duties under the guise of a family assistance order. Ultimately, it was a matter of management by a local authority and not a matter for the Court.
29. Miss Fogarty cited Ciliz-v-The Netherland (Application No. 29192/95) 11th July 2000 to support the proposition that Jersey has a positive obligation to ensure that family life between parents and children can continue after separation and also a negative obligation to refrain from measures which cause family ties to rupture. By failing to provide a facility to supervise contact if ordered, Jersey was not meeting either of these obligations. However, these are contentions which can only be pursued with the Minister and if appropriate, any decision ultimately challenged by way of judicial review (see Re X [2009] JCA 083).
30. Thus, it can be seen that the Deputy Registrar did not have a real option before her in that as she noted, an order for supervised contact would have been of no effect. However, it was not for that reason that the Registrar determined not to order supervised contact. She accepted the recommendations of the two experts that on the merits of the case (and not on the grounds of resources) there should be indirect contact until the father had shown capacity to change. The Deputy Registrar dealt with the differences over contact between Dr Williams and Mrs Ferguson on the one hand and Mrs Emsley on the other hand in this way:-
"72 The two child experts, namely Dr Williams and Mrs Ferguson, both recommend indirect rather than supervised contact, whereas Mrs Emsley, the forensic psychologist, did not see supervised contact as being a problem as he posed no physical risk to the children. Both the work of Dr Williams and Mrs Ferguson is child focused and they have looked at the issues of child contact in the light of the welfare of the children and the welfare checklist. Mrs Emsley is an adult psychologist and her focus is different. I accept that all of the experts did give credible evidence, backed up by reports. In the case of domestic violence, the expert evidence is very important. Important considerations are assessing the relevance of past domestic violence, the ability of the offending party to recognise the wrong he has done and be aware of the need for change, and any steps taken to correct the deficiency in his character. Advocate Colley referred to the ADAPT report and the supplementary report of Mrs Emsley. Advocate Fogarty referred to the shortness of the ADAPT report. It is short but it is clear that he has "not moved on". She submitted that Mrs Emsley had said her view of A had moderated and although there were times when breaches of the injunction were planned there were times when he was overwhelmed by his feelings. Advocate Fogarty submitted Mrs Emsley was a clear, fair and credible witness. However, Mrs Emsley did accept that he has not really made the changes required and she recommends he undergoes further work. She said that he had "not really moved forward or made any real positive changes". He does not accept however he needs to do this, notwithstanding this was recommended by Mrs Emsley."
31. It was not contended by Miss Fogarty that the Deputy Registrar had misdirected herself in law. Indeed she quoted extensively from the leading English Court of Appeal decision in Re L, a case which stressed the need for greater awareness of the effect of domestic violence on children as victims as well as witnesses, and also the impact on the residential parent. It is worth setting out in particular two passages from the judgment of Dame Elizabeth Butler-Schloss in Re L cited by the Deputy Registrar:-
"The general principle that contact with the non-resident parent is in the interests of the child may sometimes have discouraged sufficient attention being paid to the adverse effects on children living in the household where violence has occurred. It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting - failure to protect the child's carer and failure to protect the child emotionally.
If however there is a firm basis for finding that violence has occurred, the psychiatric advice becomes very important. There is not, however, nor should there be, any presumption that, on proof of domestic violence, the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration. Wall J in Re M (Contact: Violent Parent) [1999] 2 FLR 321 suggested at 333 that often in cases where domestic violence had been found, too little weight had been given to the need for the father to change. He suggested that the father should demonstrate that he was a fit person to exercise contact and should show a track record of proper behaviour. Assertions, without evidence to back it up, may well not be sufficient."
32. In this case there was a firm basis for finding that violence had occurred, namely the father's acceptance of the mother's Affidavit. The psychological evidence before the Deputy Registrar, both from Dr Williams and Mrs Emsley therefore became very important, together with the ability of the father to recognise his past conduct, be aware of the need to change and make genuine efforts to do so and to demonstrate a track record of proper behaviour.
33. Miss Fogarty referred us to G-v-A [2005] JLR 93 where contact was ordered as it would be in the best interests of the children, who were entitled to the opportunity of a natural loving relationship with their mother. The Court stated that the best interests of the children were paramount and contact with both parents would almost always be in their best interests. The mother's imperfections were irrelevant to contact, as it was not ordered as a reward for her, but rather because it was in her children's best interests. However, as Mrs Colley pointed out, the allegations of abuse by the mother, described as "moderate", had been investigated by the police and no charges were brought. The expert opinion and the Court's finding was that the resident father had alienated the children against the mother, and there were clear recommendations from both the Children's Service and the Child Psychologist that direct contact with the mother should take place. In our view this case does not assist the father.
34. In C-v-D [2000] JLR 334 a father, in what was described as a stormy relationship with the mother with frequent arguments, had assaulted her a number of times and had once been put on probation and twice sent to prison. It was held that although the father's behaviour was not the worst of cases, the mother had been so traumatised that any order for contact would upset the stability of the family and greatly harm all the family members, including the child. Indirect contact, however, was not only desirable but essential. Miss Fogarty sought to distinguish this case from the case before us on the grounds that the father has no convictions and the mother has not been traumatised by the admitted violence. Mrs Colley submits that the abuse in this case is more serious and violent than that in C-v-D.
35. The Deputy Registrar considered C-v-D and we can find no criticism in her conclusion as follows:-
"Advocate Fogarty submitted that in the case before me the mother had not been traumatized nor the father convicted of violence, but I do accept that the mother is suffering understandable stress from the behaviour of [the father] and whether or not he has been convicted of violence he has admitted it and it is on the "upper end" of violence."
36. Miss Fogarty contended that the Deputy Registrar had taken insufficient account of the wishes of Child 1 to see the father. It is clear to us that the Deputy Registrar did accept the evidence of a good relationship between Child 1 and the father and that Child 1 had positive memories of him and it was not disputed that Child 1 had expressed the wish to see him, but the Deputy Registrar took into account the law applicable to children's wishes when she cited this extract from Re L:-
"...while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child's resistance appears to exist."
37. Contrary to her closing submissions to the Deputy Registrar that the evidence of all three experts was credible, in her submissions to us Miss Fogarty argued that their evidence lacked credibility and in fact had been discredited by her in cross examination before the Deputy Registrar. The experts had expressed theoretical views in a vacuum. Theory, she said, must be related to the evidence. There was no evidence that the children had been damaged by witnessing the violence against the mother or that they would be at risk in supervised contact. The risks mentioned by the experts were, she said, hypothetical. The father's desire for contact is genuine. There is no reason to suppose that Child 1 is other than truthful in expressing a desire to see the father. In a supervised setting any perceived risks would be negligible. The experts had conceded this.
38. To support her assertion that the evidence of Dr Williams should be discredited, Miss Fogarty referred us to pages 10 and 16 of the transcript of his evidence. On page 10, he had accepted under cross examination that there was no evidence that the father had been directly physically violent to any of the children or that the conflict at that point between the parents had in fact had any psychological effect on either child, whereas on page 16 he said it was completely inaccurate to say that there was no evidence that there had been any harm. However that later comment, in our view, was made in the context of what was happening within the family generally, and we find no inconsistency.
39. The Deputy Registrar accepted Dr Williams and Mrs Ferguson's reasons for recommending indirect contact:-
"74 It was accepted that if supervised contact were ordered there would be practical difficulties, but this was not the reason for Dr Williams and Mrs Ferguson recommending indirect contact. Dr Williams said:-
'the father has failed to address the domestic violence - for some reason he has not got this and does not accept he poses a risk.'
He acknowledged Child 1 has positive memories of him. Dr Williams did accept that fortunately there was no evidence of psychological damage or physical damage caused by the father but said that the unplanned contact by the father had been "stressful and chaotic". Advocate Fogarty submitted that because the father had never been interviewed in the presence of the children, none of the experts had had a chance to assess his parenting style. This is correct but Dr Williams wrote that given A's minimisation of the impact of domestic violence on his family it would be inappropriate to initiate an assessment for understanding his parenting capacity given his level of denial, a matter concurred with by Mrs Emsley. The father had failed to address this even now."
40. She also went on to accept the advice that supervised contact had to be part of an ongoing process and not to continue indefinitely (see paragraph 23 above).
41. Miss Fogarty submitted that the Deputy Registrar focused upon the negative aspects of the character and behaviour of the father rather than the positive and the fact that he had co-parented Child 1 from birth until 19th November, 2009. We find that latter suggestion difficult and surprising, bearing in mind the admissions he has subsequently made as to the violence he inflicted upon the mother, on occasions in the presence of Child 1, during this period, and this in the light of the observations in Re L that such conduct involves a significant failure in parenting.
42. As to focusing on the negative aspects, the father did not assist the Deputy Registrar by giving evidence to potentially redress the inevitably negative impact of the affidavit evidence of the mother as to his violence, the evidence of his breaches of the injunction and the findings of the experts. He did not, for example, give evidence about the new relationship he told Mrs Emsley he was developing with a Polish woman, which Mrs Emsley advised could, if free of domestic violence, be a protective factor. In our view, however, the Deputy Registrar did not err in her approach to the evidence, in that she took as her starting point the principle that it is a child's best interest to have a relationship with his or her father and only declined to order supervised contact because it was not in the interests of the children to do so. As Mrs Colley put it, the negative elements of the father's character and behaviour unfortunately outweighed any positive factors and it was those negative elements that in the interests of the children required that contact be maintained at an indirect level.
43. Applying the test in Downes, it is not suggested that there has been a procedural irregularity. It cannot be said that the Deputy Registrar has taken into account irrelevant matters or ignored relevant matters, nor can it be said that the Deputy Registrar arrived at a decision that was wrong. The opinions of the experts in our view were not founded upon theory expressed in a vacuum, but were expressed in the context of firm evidence namely the admissions of serious violence by the father as set out in the mother's Affidavit, his breaches of the injunctions and the psychological assessment of the father. The evidence of the experts was credible (as Miss Fogarty conceded before the Deputy Registrar) and the Deputy Registrar was justified in accepting the recommendation of Dr Williams and Mrs Ferguson that there should be indirect contact while giving a rational explanation for not accepting the recommendation of Mrs Emsley that there should be supervised contact.
44. We have not addressed the sixth ground namely the bare statement that there has been an absence of violence since 19th November, 2009, as it does not constitute a ground of appeal. In any event it is not a matter to which any weight should be given bearing in mind the parties have been living apart since then and the mother is protected by the injunctions, save when they are breached.
45. There are no grounds, in our view, to interfere with the decision of the Deputy Registrar in relation to contact and we therefore dismiss the appeal.
46. We acknowledge, however, that there is considerable force in Miss Fogarty's contention that the father has been given no tangible recommendation as to how he might change to enable him to move away from indirect contact. It is not, in itself, a ground of appeal as it does not go to the Deputy Registrar's reasoning for her decision and there is no requirement for her to make such a recommendation. However, in the interests of the children, and bearing in mind Dr Williams' advice that in general terms it was important for children to have weekly contact with both parents before the age of 5, we express the view that the Court Welfare Officer should, in the light of the evidence of Mrs Emsley, investigate what work can be undertaken in this jurisdiction to assist the father, bearing in mind his means are limited. In paragraph 7.4 of her second report, Mrs Emsley recommended that the father be offered the opportunity to continue to work on his domestic violence issues, and in particular that it might be beneficial to him to undertake work with a psychologist to explore the impact of his interactional style upon others and how such a style might impact upon his children if they were to witness it. At paragraph 7.5 she also recommended that he undertake work to gain insight into the impact of domestic violence upon children, albeit that they are not direct victims of such behaviour. The father may also benefit, she advised, from developing a greater understanding of the way in which the negative experience of a mother from an ex partner may contaminate relationships within her family, thus impacting upon the children. Depending upon the outcome of those investigations, it would again be in the interests of the children for a time table to be put in place for that work to be undertaken by the father.
47. In the meantime, it must be clear to the father that he should establish indirect contact with the children as ordered by the Deputy Registrar (and it would appear that he is indeed doing so) and that in any future applications to the Court, he should assist the Court by giving evidence as he is now apparently prepared to do.
Authorities
Children (Jersey) Law 2002.
Re O (care proceedings:evidence) (2004) 1 FLR 161.
Downes-v-Marshall [2010] JRC 115B.
B-v-UK (2000) 1 FLR 1.
Re H (Minors)(Local Authority: Parental Rights)(No. 3)(1991) FAM 151.
Re L (a child) (Contact:Domestic Violence) (2001) FAM 260.
Re E (Family Assistance Order) (1999) 2 FLR 512.
S and P (Contact application: Family Assistance Order) (1997) 2 FLR 277.
Ciliz-v-The Netherland (Application No. 29192/95) 11th July 2000.