Jersey Unreported Judgments

[2011]JRC075A

royal court

(Samedi Division)

12^th April 2011

Before     :		V. J. Obbard, Registrar, sitting alone.
Between	D		Applicant
And	M		First Respondent
	P		Second Respondent
	B		Third Respondent

IN THE MATTER OF N

AND IN THE MATTER OF AN ORDER FOR PARENTAL RESPONSIBILITY

Mr C. G. Hillier for the Second Respondent.

Advocate J. M. Woods for the First Respondent.

The Applicant and Third Respondent were not represented.

judgment

the registrar:

1.        P, the applicant (father), who is 23, is presently in La Moye Prison for having committed a Grave and Criminal Assault.  M, the respondent (mother) was convicted at the same time for the same assault.  She is now 18.  Their daughter, C will be 2 years old in June.

2.        It is common ground that C's parents were living together from August 2008, partly in Scotland and finally in a flat in Midvale Road.  The child lived with them there until they were both arrested for the assault which took place on 7^th August, 2009.

3.        The mother was granted bail until sentencing on 10^th December, 2009.  On 4^th September, 2009, the mother wrote to the Magistrate hearing the father's bail application as follows:-

"I am 17 years old and finding it very hard to cope with my daughter, C, on my own.

My mother and father both work during the day with my mother not getting back until 7 o'clock which is when my curfew starts, which means that I am on my own with my daughter all the time.

Before P went to prison, C had a brilliant relationship with him and at times it seemed it was only him that managed to settle her.

Although P would not be living with me at this time the emotional support would make a huge difference to my life and he could also have our daughter a couple of nights a week to help make life a little easier for me.

I find it very difficult as I have post-natal depression and feel as if I have no help.  P is a brilliant father to C and I think that if he is away from her at this stage in her life she will miss out on vital bonding with him and eventually forget who he is.

In the long run if P and I are apart, not bringing our daughter up together we will eventually drift apart and I'm sure that is not good for C as she needs both parents around.

Before P went to prison, we shared the night feeds and nappy changing and now that he is not there to help me I am struggling to get by on my own.

I know that what he has done as he has told me on many occasions.  He misses his daughter very much and I feel as if she misses him too.

I know P very well indeed and I do know that if P was to be granted bail to X's address that he would not dare break his bail conditions as he looks up to X a lot and he also knows that if he was to break his bail conditions that his very good relationship with X would be broken and I know that is not what P wants to happen.  I do hope you have time to read my letter and take in to considerations my feelings and I would be very grateful if P was to be granted bail."

4.        Upon sentencing on 10^th December, 2009 the mother received a sentence of 3 years' youth detention and the father received a sentence of 4½ years.

5.        The mother is presently eligible for release under the Temporary Licence Scheme.  Official release date is 24^th July, 2011.  The father's official release date is August 2012, although he is potentially eligible for community visits from about May 2011.

6.        The father is currently seeing his daughter weekly at the prison in a "family visit".  The maternal grandmother B (who has a residence order until the mother is released) brings C to the prison to see the mother and the father joins them.  There were to be additional visits arranged where the father would see C without the mother or the grandmother being present.  Unfortunately, the mutual friend who was to facilitate this contact is no longer willing to help.  The father alleges that B sought to disrupt the contact.

7.        The JFCAS officer who has written the report dated 9^th March, in relation to the possibility of the father having Parental Responsibility has written this by way of conclusion and recommendation:-

"Conclusion

Parental Responsibility

I am aware that case law suggests that on the issue of parental responsibility it is not necessary to consider the full 'welfare checklist' but that in applying the paramountcy principle three main tests apply.  Namely, (i) the degree of the father's commitment, to include financial commitment. In my opinion P has demonstrated a commitment by making the application for parental responsibility and contact. P's imprisonment means that he is not in a position to contribute financially however neither can C's mother.  B will say that he has not attended all of the contact sessions that have been made available to him when her mother has been present.  I have not been able to confirm the details of this.  However, I am aware that P  finds it extremely difficult to be in B's company and the fact that he is prepared to put this aside in order to see his child does, in my opinion, represent a great deal of commitment.  (ii)  the degree of attachment to his child and the current relationship between them.  I have not personally observed contact, however, there is generally weekly contact during which time P spends some time playing with C.  It can be assumed that a bond is developing between them which is not disputed by the other parties.  (iii)  the reasons for the application.  P is very clear in his discussion with me that he wants to be involved in important decisions in his daughter's life.  He wants input into education and health issues as they arise. As mentioned above, P's view is that, despite the fact that he and M are no longer in a relationship, he believes that they can lay this aside and discuss issues appropriately. Having spoken with M I am of the opinion that, left to her own devices this is correct. The concern is with B and her input. The evidence from Milli's suggests that this could be true. Mrs Carroll informs me that she has had several conversations with B which have been extremely negative about any contact C has with the [father's] family. Currently B has a Residence Order which gives her PR but this will end when M is released from prison. 

However, as detailed above there are issues about P's alcohol and drug misuse coupled with his offences for violence which are relevant to this application. It appears that there may be some indications that whilst P's conscious motivation for parental responsibility may be honourable, there may be indicators which suggest that this may cause difficulties for B. Certainly until his current custodial sentence the evidence would suggest that P is unable to make good choices for himself.  If that is the case it is difficult to accept that he will be in a position to make good and responsible choices for his daughter in conjunction with her mother.  This may impact on C if she is caught up in acrimony caused by disagreements between her parents, especially if her father is not able to accept that there may be a view other than his own that needs discussion. 

Whilst P remains in prison it is not possible to test out whether the input he has had from staff and attendance at the Aggression Control Training Group has helped him adopt a more pro-social attitude.  He is not free of behavioural difficulties within the prison setting.  Neither is it possible to know whether P will resume his use of illegal drugs and excessive alcohol on release.  

With regard to contact, P informs me that whilst not ideal he is accepting of his current contact as he can think of no other alternative.

Recommendation

I recommend that Parental Responsibility is not ordered at this stage.  I recommend that the Court advises P to make a renewed application once he has been released for at least six months and can prove that there have been no incidents of anti-social behaviour and is leading a drug free life without the use of excessive alcohol.  

The Court notes that there will be contact between father and daughter which will continue to be facilitated by B or M on a weekly basis.

8.        In giving her evidence, the JFCAS Officer made it clear that she had considered the threefold test proposed by Balcombe LJ in the case of Re H (Minors)(Local Authority: Parental Rights)(No.3)(1991) FAM 151.  The test was adopted in the Jersey case of LS -v- NS [2007] JRC 103A.  The 3 factors are:-

(i)        the degree of commitment which the father has shown towards the child;

(ii)       the degree of attachment which exists between the father and the child; and

(iii)      the reasons of the father for applying for the order.

9.        The officer agrees under paragraph 20(i) of her report that she accepts the father's commitment.  She agrees that it can be assumed that a bond is developing which is not disputed by other parties.  She agrees that the father wants to be involved with making important decisions in his daughter's life. She said that M "almost treats him as though he has PR". She is however concerned that this in fact can give rise to problems with the mother's family, in particular the maternal grandmother and if Parental Responsibility became his "right".  "At the end of the day, if he becomes abusive, then it's not in C's best interest".

10.      Furthermore, she has concerns about the father's alcohol and drug use, which, coupled with his offences for violence "may cause difficulties for B".  She includes that it is impossible to test whether or not the father will adopt a more "pro-social" attitude.  Indeed, he has had problems even within the prison setting.  Reference was made to the fact that he has more than once been consigned to "the block" within the prison for disruptive behaviour.

11.      So, as the mother's advocate put it, the officer's recommendation to the father is: "Prove you can stay out of trouble" and the Court will award you Parental Responsibility.

12.      The advocate went on to draw attention to the ease with which the father can lose his temper and the lack of responsibility for his own decision.

13.      The father did not wish to give evidence on his own behalf and did not offer himself for cross-examination.

14.      In the recent case of In the Matter of NN [2011] JRC 016 Commissioner, Clyde-Smith said this:-

"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."

15.      When I was informed that the father did not wish to give evidence in this case, I was not aware of the passage quoted above and it was not drawn to my attention by counsel.  It just struck me as odd that he did not want to give evidence.  It did not strike me as practical or realistic to attempt to order him to do so.  I am unable to give a rational explanation as to why he did not wish to give evidence in support of his own application.  His counsel said he was suffering from a stomach complaint and I was told that he will shortly have an appointment with a hospital consultant.  However, he was capable of quite noisy exchanges with his lawyer and was seen to bang his head on the table in front of him in apparent frustration at what was being said about him, which made it all the more surprising that he did not wish to give evidence. However, I believe I have enough evidence of the sincerity of his application from the JFCASS report, the officer's oral evidence and the evidence of the mother.

16.      I did not take it for granted that the parties would wish to give evidence, given the agreed chronology filed in the agreed bundle and the written statement of evidence filed by each party and included in the agreed bundle.  Each party has also filed a skeleton argument.

17.      The father's argument sets out the background in some detail, then the current situation of contact and attempts to deal with the JFCASS officer's concerns, concluding that it would be wrong in principle to refuse the application.  It is argued that the Court should recognise the status of fatherhood which P deserves.

18.      The mother's argument sets out the history and accepts that the father has shown commitment, that a bond is developing between father and child and that she supports this relationship.  She goes on to argue that because he is still on amicable terms with her and she involves him in important issues in C's life, (despite no longer being in a relationship with M), it is not necessary for a Parental Responsibility Order to be made at this stage.

19.      So, there seems no dispute that the father passes the 3 fold test of Balcombe LJ in Re H.  It is more to do with other factors, which might be relevant, namely in this case, his antisocial, possibly threatening behaviour.  As Balcombe LJ said:-

"Thus, even though the three factors are satisfied in a particular case, other factors may tip the balance against making the order."

20.      The mother's advocate went on to cite the cases of In the matter of NN [2011] JRC 016 (mentioned above), Re P. (a Minor)(Parental Responsibility Order) [1994] 1 FLR 578 and Re P (Parental Responsibility) [1997] 2 FLR 722.

21.      In In the matter of NN, Parental Responsibility was refused on the grounds of domestic violence and the desire of the father to control the mother.  That is not the case here.  However, I listened with interest to the advocates' submissions that he would try to override the mother's view on the upbringing of the child because of the "traits in his character".  From what I read about and have seen of the father, he is impetuous and grossly immature in his behaviour at times and may be terribly violent, but there is no evidence of controlling behaviour in the same way as there was such evidence in In the matter of NN.

22.      In Re P (A Minor) (Parental Responsibility Order) [1994] 1 FLR 578, the Magistrates had refused a father Parental Responsibility because of the risk of the father using the order "to question aspects of the child's upbringing unnecessarily, and so such order would not be of benefit to her".

23.      The appeal against their decision was granted.  The mother's advocate in the present case sought to distinguish this case on the basis that the father had a lot of contact as much as 4 or 5 days per week for a number of months, and that the mother was given a Residence Order.  However, I am struck more by the similarity with this case.  The concern of the JFCAS Officer and the mother are that the father needs to prove his good conduct and cooperation before granting him Parental Responsibility.  I am uncertain what test the Court will wish to impose in deciding the issue six months after the father's release, if that is what I am to order today.  His prison record is already not good.  His record for disruptive and anti-social behaviour is already bad and arguably getting worse (although the JFCASS officer gives him credit for some improvement). On this basis alone, there would be a case for refusing Parental Responsibility in future if the application were to be renewed. And yet, there is one good thing which can say about him, which is that he wants to be involved in his child's upbringing and is already so involved, in the difficult circumstances of his life in prison. Despite his anti-social behaviour to others, no complaint has been made about his behaviour towards his ex-partner and their baby child.  It does remain the concern of the JFCAS officer that if he doesn't get his way, he could turn his aggression to any one, including them.  However, I have heard no specific evidence in support of that possibility, other than the officer's concern.   Wilson J is quoted as saying in Re P:-

"I particularly refer to the last observation to the effect that, where there is acrimony, it may very well be lessened rather than increased by an order giving the father rights of this nature".

I fear that if PR is not granted, the father's sense of injustice could make his antisocial behaviour worse, not better.

24.      In Re P (Parental Responsibility) [1997] 2 FLR 722, Lord Woolf MR  states:-

"If a parent behaves in a manner which he should appreciate can, and is likely to, result in his being sentenced to a long period of imprisonment, he should be taken to realise that this has a damaging effect on his children.  It is an act of irresponsibility on his part towards his children.  When, as here, you have a pattern of criminal conduct, the court is entitled to take into account as a relevant factor, not a conclusive factor, that conduct in deciding whether or not it is appropriate to grant that parent responsibility."

The father in the present case has not been sentenced to the sort of lengthy terms of imprisonment contemplated by Lord Woolf (a term of 8 years followed by 2 terms of 15 years in that case), so I do not believe it is directly in point. 

25.      However, a lengthy prison sentence is perhaps a factor to be taken into account if his exercise of parental responsibility occupies the attention of the Court in future. An order for Parental Responsibility is not irrevocable and can be brought to an end on the application of any other person who has Parental Responsibility.  In LS -v- NS (cited above) the Court restricted the operation by making a number of prohibited steps orders. Indeed, I think it reasonable to address the JFCASS officer's concerns not by refusing Parental Responsibility but, if problems occur with the order, by addressing such problems in the future.

26.      My decision is that Parental Responsibility be granted and that contact should continue as agreed.

Authorities

Re H (Minors) (Local Authority: Parental Rights) (No.3) (1991) FAM 151.

LS -v- NS [2007] JRC 103A.

In the Matter of NN [2011] JRC 016.

Re P (a Minor) (Parental Responsibility Order) [1994] 1 FLR 578.

Re P (Parental Responsibility) [1997] 2 FLR 722.

Children (Jersey) Law 2002.