[2011]JRC173
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone |
Between |
FF (the father) |
Applicant |
And |
A (the mother) |
Respondent |
IN THE MATTER OF FF AND IN THE MATTER OF PARENTAL RESPONSIBILITY AND CONTACT
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate A. P. Begg for the Father (FF).
Advocate M. R. Godden for the Mother (A).
Mrs Jane Ferguson on behalf of the Child.
judgment
the deputy bailiff:
1. This is an application by the mother for the adjournment of a hearing fixed for Monday 5th and Tuesday 6th September, 2011. The application which the Court should have been considering next week was the father's application for parental responsibility and contact. It is resisted by the mother. The application was first brought in July 2009. It still has not been heard and as a result of the order I am making today, will probably not be heard as of September 2011. Paragraph 2 of Article 2 of the Children (Jersey) Law 2002 says this:-
"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."
That should be seen in the context of a hearing that took place before Commissioner Clyde-Smith in April where there was an application by the mother to have the father's application for parental responsibility and contact dismissed. Commissioner Clyde-Smith said this:-
"Having heard submissions from the petitioner we have no doubt that he has failed to both instruct his advocate and comply with the Acts of Court 2nd February and 11th March, 2011. He has been out of prison since 1st March and he has no reasonable excuse for his failure. However we are concerned here with the best interests of the child. Ordinarily it is in the interests of any child to have a relationship with both of his parents. In the child's interests we are not prepared to dismiss the petitioner's application as requested."
2. So the problem that has bedevilled the Court, in relation to the present application, is that although it is required to have regard to the best interests of the child, and the best interests of the child are paramount, that is an approach which the parties, so it seems to me, have not really adopted themselves. It is clear that there is criticism to be made of both the father and the mother in that respect. And in that context I impute to them any criticism of their respective lawyers from time to time and not necessarily solely, if at all, the lawyers who are before me today, because the default of the lawyers is to be held against their clients.
3. This is wholly unsatisfactory and the conduct of this case discloses no credit whatever on the operation of the Legal Aid Scheme. In days gone by, lawyers on legal aid expected, indeed acted upon the basis that they had a duty to Court to do everything that was appropriate to ensure that the Court could deliver justice and here I am faced with an application for an adjournment which arises because the mother has, apparently through no fault of her own, lost the use of lawyers previously instructed on legal aid, who themselves had had some form of sub-contract, I am told, from another firm of lawyers who were allocated the legal aid certificate. When that sub-contract allegedly failed and apparently without regard to the fact that a full hearing was to be taking place on 5th September, the lawyers responsible under the original certificate purported to sub-contract again to Advocate Godden, the conduct of the case for the mother. The result is that he not only is unavailable to attend in Court next week, because he is apparently on holiday, but also that in any event neither he nor anyone else from his firm would be able to present the mother's case adequately because he has only recently seen a 39 page affidavit delivered by the applicant, the father, delivered I might say on 28th July, and therefore considerably later than the 10th June which was the limit of the Court's orders previously when the affidavit should have been delivered.
4. The best interests of the child are not well served by delay, so Article 2 of the Children's Law says. They are also not well served by the parents coming to court and not presenting their case adequately because of the advocates' lack preparedness for whatever reason. And they are also not well served by JFCAS not being able to complete the welfare report which the Court will need to take into account because JFCAS has not received the necessary papers either.
5. I, for my part, cannot see that it is possible to proceed to do justice on Monday 5th September and therefore the Court is obliged to acquiesce in the application for an adjournment, but in acquiescing I want to make it absolutely plain that this is completely unacceptable. If it should ultimately be the case that the Court concludes that the father ought to have parental responsibility and ought to have contact with his child, it is quite wrong and quite obviously not in the child's best interests that reaching that conclusion should be delayed for what looks like being at least two years and three months and probably considerably longer.
6. All the lawyers have a duty to ensure that children's matters are dealt with expeditiously. In some cases that may also involve a lawyer cancelling his holiday to make sure it is dealt with expeditiously. I do not get to that point, Mr Godden will be relieved to hear in this case, only because even if I were to order the case to proceed it would still be impossible for Mrs Ferguson to do her job in time, in the way that she wishes. I wish to make it quite plain that in some cases the Court would expect, if necessary, a lawyer to cancel holiday arrangements or indeed, to ensure that other adequate arrangements were made. I have not heard from the firm of lawyers which has instructed Mr Godden's firm but I have the most serious misgivings about this apparent sub-contracting of legal aid certificates if only because it seems to result in no-one taking responsibility which the lawyer has under the legal aid certificate for the timely conduct of the case.
7. I am very troubled about what happens next. If what I have said so far is critical of the mother, what I go on to say is equally going to be critical of the father. Neither father nor mother, through their advocates, seem to know what evidence they are going to require for this hearing, nor whether the experts are to be cross-examined; there seems to be no indication of what are the issues and there is a desperate need for directions to be given and for the lawyers to burn the midnight oil to make sure that they can comply with them.
8. I am therefore going to order that the substantive hearing which has been fixed for 5th and 6th September should be adjourned but that the parties should appear on Monday before Commissioner Clyde-Smith at 10am as a procedural matter, so it will be as a single judge, and Mrs Ferguson if you are able to appear that would be helpful please. And the parties should have some draft directions to put before the Commissioner for his consideration. Those directions will obviously extend to the date by which the mother's affidavit should be filed and in consequence the date by which the JFCAS report should be filed; if there is any suggestion that the reports of Dr Elmsley or Dr Bryn Williams should be updated because of the effluxion of time that is an issue which should be addressed before the Commissioner on Monday. I expect the parties to be indicating to the Commissioner what their witness list is likely to be and indeed what witness template they propose for the calling of witnesses, and what timetable should be set for the filing of skeleton arguments and for the hearing of the case. I am told that the 19th and 20th September are available. Well, whether those are sensible dates will be a matter for the Commissioner to determine having regard to the evidence which the parties wish to put before him, including the availability of the experts if it is necessary to hear from them. I expect both the mother and the father to be present on Monday, Mr Begg that is going to mean that you must make arrangements for an interpreter to be available on Monday and the Greffe will make arrangements for a screen so that the mother is screened from the father.
Authorities
Children (Jersey) Law 2002.