[2011]JRC066
royal court
(Samedi Division)
28th March 2011
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, with Jurats de Veulle and Liddiard. |
Between |
The Mother |
Petitioner |
And |
The Father |
Respondent |
IN THE MATTER OF G
Advocate R. E. Colley for the Petitioner.
The Respondent appeared in person.
Advocate C. R. G. Davies as Amicus Curiae.
judgment
the deputy bailiff:
1. The respondent has sought to raise two matters on appeal before us in relation to proceedings currently taking place before the Deputy Registrar of the Matrimonial Causes Division concerning the care of and contact with the child of the marriage who will be three next week. The respondent wishes to appeal against the outcome of the fact finding decision of the Deputy Registrar made on 24th June, 2010, (which therefore involves an application for leave to appeal out of time) and in addition wishes to appeal against a directions order given by the Deputy Registrar on 9th March, 2011, to limit the number of witnesses whom the respondent might call at the disposal hearing of the applications for care and contact.
2. The petitioner and the respondent were married on 17th May, 2007. The child was born in April 2008 and the petitioner left the family home with the child on 17th April, 2010. The respondent claims that at that time he was the principal carer for the child. Proceedings were issued before the Family Division seeking an interim residence and contact order. On 12th May, 2010, the Deputy Registrar made orders in these terms:-
(i) That there should be a finding of fact hearing as to the allegations of violence by the father, to take place on 14th June, 2010, commencing at 10am, together with a case review hearing to consider inter alia whether any expert reports should be ordered.
(ii) The mother should file a statement setting out her allegations in a schedule format as to the father's behaviour together with any statements of any witnesses on her behalf by close of business on 19th May. 2010.
(iii) The father should file a statement in a schedule format in reply to the mother's statement and those of her witnesses, together with statements in a schedule format of any witnesses on his behalf by close of business on 2nd June. 2010.
3. The Court also ordered the preparation of a court welfare report and made an interim residential order for the child with the mother, with supervised contact with the father at Milli's Contact Centre for a period of two hours, the dates and times to be agreed.
4. At the time of the hearing on 12th May the respondent was represented by Messrs. Appleby, who had received a legal aid certificate to act for him on 5th May, 2010. He had previously been represented by other lawyers, but that legal aid certificate had been revoked by the Acting Bâtonnier and a fresh certificate issued.
5. The petitioner was at this time also represented by other lawyers. On 20th May, 2010, those lawyers filed a five page 26 point schedule setting out a number of allegations against the respondent. These went much wider than simply allegations of violence, as contemplated in the Act of the Court of 12th May, 2010. The respondent did not file any schedule in response to the petitioner's schedule, upon the basis that he denied all the contents. However he did file on 4th June, 2010, a statement, together with a statement from his father, a statement from his mother and sundry other statements. The Deputy Registrar held a hearing on 24th June, 2010, (postponed from 14th June, 2010, because Advocate Colley was now instructed by the petitioner) at which evidence was heard from the petitioner and the respondent. Also available to the Court was a letter from a social worker in the Children's Service and an initial assessment completed by her, with copies of email correspondence from the respondent regarding his family. In addition there were documents arising from the criminal investigation carried out by the police in relation to the assault on the petitioner by the respondent on 17th April, 2010. No witnesses were called by either party. The Deputy Registrar made various findings of fact on the petitioner's schedule of allegations, in respect of which the respondent now seeks leave to appeal.
6. On 25th May, 2010, the respondent had pleaded guilty to one charge of common assault upon the mother, which the Deputy Registrar records in her judgment.
7. Subsequently, the findings of fact were provided to experts jointly instructed by the parties. The experts also had other material on which to base their opinion, but it is clear that the findings of fact were a material part of the factual matrix put before them. Dr Walsh reported on 3rd December, 2010. Dr Briggs reported on 7th December, 2010.
8. An experts meeting took place on 28th February, 2011, chaired by the leader (designate) JFCAS, attended by Dr Briggs and Dr Walsh and by the legal representatives of the parties.
9. The application for leave to appeal out of time was brought shortly thereafter on 17th March, 2011. The relationship between Messrs. Appleby and the respondent appears also to have broken down, as a result of which the respondent appeared before us in person. However, at the request of the Deputy Registrar, the Acting Bâtonnier had appointed an amicus curiae Advocate Claire Davies, to assist in relation to the matters before us, and indeed we are very grateful to her for the assistance she has given.
10. The next stage in the proceedings was scheduled to be a six day hearing, commencing Monday April 4th, 2011, at which the substantive applications would be dealt with. We were told that the expert witnesses were only available for the first two days, and it was therefore anticipated they would give evidence first, with any other evidence available thereafter.
11. In the course of his submissions to us, the father sought leave to put in an additional statement. With its annexures it runs to thirty-six pages. Advocate Colley has objected to the introduction at this stage of this material because her client has not had the opportunity of reviewing it in detail and giving her instructions, not least because of its length, and because she submits there is no need for it to be filed. In the event we have not admitted the statement as in our view it is not necessary for us to look at it for the purposes of the decision which we are now taking.
12. The first issue is as to whether or not we give leave to the respondent to appeal out of time. Our review of what has taken place so far leads us to the conclusion that it is appropriate he be given leave to appeal out of time and that leave is granted.
13. The legal test which we are to apply on appeal has been set by this Court in Downes-v-Marshall [2010] JRC 115B. In that case, Sir Philip Bailhache, Commissioner said this:-
"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. This test is not precisely the test applied on appeal from this Court to the Court of Appeal. It reserves a wider discretion for this Court to intervene, but it places nonetheless greater weight on the Registrar's exercise of discretion. This test will we think establish the right balance. Sufficient weight is to be attributed to the Registrar's findings of fact and exercise of discretion to discourage litigants from seeking a fresh bite at the cherry. On the other hand, this Court will have the power to intervene if it thinks that the Registrar has gone wrong to the extent that intervention is required in the interests of justice and fairness [para 20]".
14. This Court is well aware of the expertise which the Deputy Registrar brings to cases of this nature, but we nonetheless are concerned that on this occasion the process has gone wrong in a way that is capable of causing injustice. The court papers before us are not as clear as perhaps would be desirable, but it does appear that when the relevant orders were made on 12th May, 2010, the Court may have been unclear as to the extent of the issues which would be before it at the fact finding hearing but was clear that it would cover allegations of violence. That is the only matter referred to in the act of court. A schedule that deals with a catalogue of allegations of abuse of a different kind, including controlling behaviour, unkindness and verbal aggression or abuse does not fall easily within the description of "allegations of violence". The effect was that within approximately four weeks of the filing of this wide ranging document, together with an eleven page statement of complaints raised by the petitioner, the respondent had to marshal his own evidence and defences in order to present them adequately before the Court. The Deputy Registrar herself cannot have expected argument of the kind that might be necessary to deal with all these allegations properly, if full evidence were to be called, because only one day was set aside for the hearing. In the circumstances, the Deputy Registrar heard only oral evidence from the parties. Advocate Colley told us that she had asked for witnesses on behalf of the respondent to be available for cross examination, but that although there was no direct response, she was aware that there was discussion between her assistant and Messrs Appleby which at any rate raised agreement that in all probability, not all witnesses could possibly be heard in the one day allowed.
15. The respondent's preparation of the matter cannot have been helped by the fact that he was due in the Magistrate's Court on 24th May, 2010, when the single allegation of his assault against the petitioner was the subject of a criminal disposal.
16. This Court has reached the conclusion that although the Deputy Registrar naturally tried to deal appropriately with everything put before her on 24th June, 2010, the process leading to that point made a fair disposal of the fact finding hearing impossible. The natural conclusion of that decision would be that the fact finding hearing cannot stand.
17. However, Advocate Colley submits to us that there is a third way of dealing with the matter. She has tried to find a third way not least because the consequence of setting aside the fact finding hearing would be to delay the disposal hearing due to start on 4th April, 2011. She says, no doubt rightly, that if that hearing does not proceed, the disposal of the applications for care and contact will not take place for many months. She asks us to give attention to Article 2(2) of the Children (Jersey) Law 2002 which provides that in any proceedings within which a question with respect to the upbringing of a child arises, there is a general principle that any delay in determining the question is likely to prejudice the welfare of the child.
18. Accordingly, she proposes that the witnesses whom the respondent wishes to call attend to give evidence next week in the disposal hearing. Because the experts will only be available for the first two days, it is possible, if not likely, that the additional witnesses will give evidence after the experts. It would also be necessary for the parties to give evidence again, and it may be unclear as to whether their evidence would be given before or after that of the experts, not least because there are a number of further allegations of the petitioner which might need to be investigated by the Court hearing the applications, which allegations are denied.
19. In a nutshell, her proposal is that the other evidence should be heard, and that the Deputy Registrar can then seek to accommodate her findings on that other evidence within the disposal hearing. Authority for making this proposition is said to lie within the case of Re M and M C (Care: Issues of Fact: Drawing of Orders) [2002] ECWA Civ 499.
20. That case concerned care proceedings brought by a local authority in relation to two children. The principal issue of fact which was before the District Judge related to the nature and cause of injuries sustained by each child, and the identity of any persons causing those injuries. At that hearing the Judge effectively rejected the evidence of both the mother and a Mr C, but placed more liability with Mr C than with the mother. Subsequently the mother confessed to a social worker that she had been responsible for injuries to one of the children but not the other. The local authority issued an application for a further directions hearing, at which the mother made an application for a re-trial of the preliminary issues. The Court refused the application. The Court of Appeal allowed the appeal holding that the fact finding process should not be torn up as though it had never happened simply because one of the adults subsequently made a statement shifting her position. There was a middle way which was to conduct the disposal hearing in such a way as to adopt the process of examination in chief and cross examination, enabling thereby the mother to be afforded an opportunity of explaining herself in the witness box and answering the local authority's response.
21. This seems to us to be a wholly different type of case. First of all, as Advocate Davies submitted to us, this case involved only one statement, whereas in our case there are several statements of fact to be considered. Secondly, in Re M & M C there was no criticism of the process which led to the fact finding hearing. The mother's confession to the social worker was made after the fact finding hearing had taken place. That is quite different from the situation we face here where, in effect, the respondent is contending that the hearing before the Deputy Registrar was not a full and fair hearing of the issues which he wished to raise.
22. We do not think therefore that a third way is open to us as Advocate Colley suggests.
23. In the circumstances the appeal is allowed and the findings of fact of the Deputy Registrar are set aside. As a consequence the hearing listed for 4 April, 2011, and subsequent days shall be cancelled.
24. We have given thought to further consideration of the issues raised in this case. In the circumstances we think that further proceedings, whether procedural or substantive, should now take place before the Royal Court, as in the special circumstances of this case, it is likely to lead to a more timely conclusion. Accordingly the Court will sit at 10am on Tuesday 5th April to give directions as to the further conduct of the case.
Contact
25. It does not seem to be in dispute that until April last year, the respondent was the principal carer for the child. Since then his contact has been limited to two hours, more recently one hour, per month at Milli's Child Contact Centre and then with supervision by the Jersey Family Court Advisory Service. There does not appear to be any evidence at present that the child is at any risk of physical harm from the father. There is clearly room for debate as to the extent to which, if at all, the child is at risk of any emotional harm from the father.
26. Absent risks of those kinds, it is hard to see why there should be such limited contact at present. We strongly suggest the parties address together immediately the issue of a greater degree of interim contact on an unsupervised basis and if that is not agreed then an application should come back to this Court in very early course for a reconsideration of the existing interim arrangements.
Authorities
Downes-v-Marshall [2010] JRC 115B.
Children (Jersey) Law 2002.
Re M and M C (Care: Issues of Fact: Drawing of Orders) [2002] ECWA Civ 499.