Jersey Unreported Judgments

[2011]JRC092A

royal court

(Samedi Division)

4^th May 2011

IN THE MATTER OF N

AND IN THE MATTER OF AN APPLICATION TO CALL A MINOR AS A WITNESS IN PRIVATE FAMILY LAW PROCEEDINGS

Advocate E Le Guillou for the Applicant.

Advocate D. Wilson for the First Respondent.

The Second and Third Respondents were not represented.

judgment

the registrar:

1.        In this case, the paternal grandmother of the child C is applying for contact.

2.        Presently the child, who is only one year old, lives with her maternal grandmother.  Both parents are still presently serving prison sentences for a serious assault.

3.        The matter before me is an interim application made by the applicant that her minor daughter T (the Second Respondent's sister) should give evidence in her substantive application for contact.

4.        Her advocate pointed out that the facts need to be determined in relation to issue 3(f) of the First Respondent's list of issues filed on 26^th April, 2011.  Item 3(f) reads as follows:-

"In the summertime of 2009 P shouted at T, aged 14 years, that he was going to 'smash her face in' for making too much noise."

Quite simply, it is said that if allegations are to be made by the First Respondent that something happened to T, then T should have the opportunity to be heard.

5.        The question arises whether or not it is essential to make findings of fact in relation to all the issues on the First Respondent's list in order to decide whether or not the applicant should have contact or additional contact with the child.  Indeed she already has contact with the child at Milli's Contact Centre.  Notes of how that has gone will be available to all parties at the hearing.

6.        The Jersey Family Court Advisory Officer has drawn attention to what she calls 'proportionality'.  An incident in the home of M made no difference to the making of a Residence Order in favour of the Third Respondent.  The issues which the First Respondent now wishes to prove are all historic.  Involving T is bound to draw her deeper into the acrimony between the families. 

7.        I must not forget that the background to the application by the paternal grandmother for contact is that both the mother and father of the child are both in prison for having committed a very serious assault.  In the light of this, I am as yet unsure how helpful it will be to the Court to hear evidence designed to blacken the reputation of each family further. 

8.        At the moment, the extra contact applied for will, at the most, amount to only a few hours at the prison and enable the Second Respondent (the father) also to have a little additional contact.

9.        The advocate for the First Respondent ('mother') did not oppose the application, but made the point that the Court should "be careful" in allowing any additional contact.

10.      I have read the case of Re W ('children') in which the Court of Appeal allowed an appeal against the refusal of the Court below to permit a child to give evidence in care proceedings.  The Court made it clear that the same principles apply in private law proceedings.  Lady Hale said:-

"When the Court is considering whether a particular child should be called as a witness, the Court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may be to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided.  Mr. Geekie accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect.  He is right to do so, because the object of the proceedings is to promote the welfare of this and other children.  The hearing cannot be fair to them unless their interests are given great weight."

11.      In this case the Jersey Family Court Advisory Officer has called into question the interests of T in giving evidence on the grounds that it would draw her deeper into the acrimony.  If the acrimony between the family of P and family of M continues, it is also inevitable that the child C will suffer too.  Against this I must balance the potential advantages of T giving evidence.  At this point, I am not sure that it will be necessary to find the facts of issue 3 proven.  It is one of many other issues raised with the object of tarnishing the way of life led by the P family.  Even if all the facts are proven, including issue 3(f), this will still not prove that the Applicant is unfit to have contact or additional contact.  In the exercise of the care with which I must consider the case, it is not essential for me to have, at all costs, all possible evidence on issue 3(f).  I conclude that the potential advantages do not outweigh the disadvantages.  T will not give evidence. 

Authorities

In re W (Children)(Care Order: Adequacy of Care Plan) [2001] EWCA Civ 757.