Jersey Unreported Judgments

Child Custody - application by the mother for a residence order and application by the father for contact.

[2012]JRC013

Royal Court

(Family)

12 January 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Crill.

 

IN THE MATTER OF G

Advocate C. Hall for the Mother.

Advocate R. S. Boddie for the Father.

judgment

the deputy bailiff:

1.        The Court has found this to be a troubling case because two parents have spent the eight days of this hearing and many months before this directly or indirectly indulging their emotional responses to the other in the break-up of their marriage to the detriment of their child whom they both clearly love and would not want to hurt.  Yet that result - hurting their child - is clearly still a distinct possibility if they do not take stock in the light of this judgment. 

2.        Much of the evidence we have heard has concerned the relationship between the parents or the relationships between either parent and his or her family, family in law, or friends.  The antagonism which has clearly existed between the parents has led to family members and friends being dragged into the argument.  Those witnesses, we are sure, have tried to be objective and truthful but we are equally sure that they have all felt under pressure to be loyal to one or other parent.  The whole argument has been destructive and unhelpful in a process which is supposed to be child centred.  The rumbling discontent is capable of continuing for many years, and it will take a massive exercise of self control and goodwill by the parents and by their families and friends to minimise the damage which has potentially already been caused. 

3.        The case has also been troubling however because we do not feel that the legal system has been helpful to the parents in tackling the consequences for the child on the break-up of their marriage in a child friendly way - and in saying that, we emphasise that we do not doubt that the professionals who have been involved in this case have all tried to perform their duties in a professional way. 

4.        At a directions hearing on 5^th April, 2011, I gave the parents and their advocates a warning, though coded as clearly as it had to be, that the interests of the child would not be best served by a hearing of this kind.  The parents cannot live in a solitary vacuum.  They need the love and support of those close to them.  The criticisms which each party has made of the other and their witnesses have by and large been unfortunate and inimical to the child's best interests. 

5.        Neither parent is absolved from this criticism.  If it is so that it was the father's conduct at the outset which inspired this course of action, the mother has set to with gusto. 

The Applications

6.        The mother made an application on 29^th April, 2010, for the parties' child (aged 3 at the date of this hearing) to reside with her.  The following day, the father cross applied for a residence and contact order.  By the conclusion of the hearing, the mother was contending for sole residence with supervised contact until such time as the experts concluded that the therapy which the husband would have to undertake on his psychological traits had proved successful such that he posed no future risk to the parties' child.  By the conclusion of the hearing, the father's position was that there should be a sole residence order for the time being in favour of the mother, but that he should have unsupervised contact, to be introduced over a period.  He would undertake to attend for such therapy or counselling as might be conveniently arranged. 

A Short Chronology

7.        The petitioner and respondent were aged 35 and 36 respectively at the date of the hearing.  They met online in March 2005 and six months later the petitioner moved to England to reside with the respondent.  In March 2006 they moved to Jersey and a month later set up an online mail order company selling electronics.  They married in May 2007.  In September 2007, the petitioner's pregnancy with their child was confirmed.  It was not an easy pregnancy in the sense that the petitioner developed pelvic girdle syndrome which in her case appears to have been particularly debilitating.  There were complications in mid-March 2008 when the petitioner was admitted to hospital and detained for two nights, and their child was in fact delivered prematurely by caesarean section in 2008.  Both mother and child required blood transfusions, and the baby was sent to Southampton on the day of birth for an operation for an umbilical hernia.  The child remained in hospital in Southampton for four days before being brought back to the island.  During this time the respondent father stayed with the mother in Jersey. 

8.        By April 2008, the petitioner's carpal tunnel syndrome was also diagnosed.  The petitioner had limited use of her hands, the extent of which was the subject of some evidence before us.  In May 2008 the petitioner took the parties' child to Southampton for further tests and an operation.  The father stayed in Jersey to run the business. 

9.        On 1^st June the baby was discharged from hospital in Jersey and went home to live with the parents.  A couple of days later, the mother had an emergency carpal tunnel operation on her right hand.  The consultant described it as an extremely severe case.  She had a second carpal tunnel operation on her left hand about a month later. 

10.      On 1^st March, 2009, the paternal grandfather, moved to Jersey to live with the family.  He stayed here until 1^st August, 2009, when he returned to live in England. 

11.      On 25^th February, 2010, the petitioner's parents gifted to her and her husband a flat in St Helier.  On 17^th April, 2010, the respondent assaulted the petitioner who left the family home with the parties' child.  The nature of the assault was disputed, but on 25^th May the respondent entered a guilty plea to common assault on the basis that he pushed his wife and grabbed her t-shirt.  He was later sentenced to a 12 months' binding over order in relation to that assault. 

12.      On 24^th April, 2010, the respondent sent a text message to a number of mutual acquaintances of him and his wife alleging that his wife, the petitioner, suffered from narcissistic personality disorder.  A couple of days later he sent an unsolicited email to the petitioner's employer making unfounded allegations regarding the petitioner's alleged narcissistic personality disorder.  He telephoned the petitioner's manager on 27^th April and made other unfounded allegations against her.  As described earlier, the applications for residence orders, interim residence orders and contact orders were lodged on 29^th and 30^th April.  The result of this was that on 10^th May there was a hearing before the Deputy Registrar of the Family Division where an order was made for supervised contact by consent, such contact to be at Milli's Contact Centre, or supervised by the child's maternal aunt for a period of two hours, the dates and times to be agreed and such further supervised contact as might be agreed in writing between the parties.  A further hearing took place on 12^th May.  At this time, and not by consent, orders were made in relation to a fact finding hearing as to the petitioner's allegations of violence by the father, and in the interim, residence of the child of the parties was fixed with the mother and supervised contact available with the father at Milli's Contact Centre for two hours, the dates and times to be agreed. 

13.      There was a hearing on 24^th June, 2010, following which some findings of fact were made by the Deputy Registrar.  These were belatedly but successfully appealed by the respondent and the findings of fact were set aside by the Royal Court on 28^th March, 2011, for the reasons set out in the Court's judgment given at or about that time. 

14.      In the interval, a number of further directions were given in this case.  Joint letters of instruction were sent to a psychiatrist and a psychologist, to provide reports on both parties in respect of the issues raised by the findings of fact, both parties agreeing that such reports should be prepared.  The Court welfare officer was requested to prepare a short report for the court as well.  Contact at Milli's became difficult and in order to assist, the Jersey Family Court Advisory Service agreed to facilitate contact between the father and his child for one hour once a month until final hearing. 

The issues at final hearing

15.      In essence, the petitioner raised a number of complaints of violence, sexual abuse (including rape) and inappropriate conduct on the part of the respondent with a view to establishing that the respondent was not fit to have a residence order made in his favour and that furthermore the findings in relation to these various allegations, coupled with the opinions expressed by the psychologist and the psychiatrist should lead the Court to a very restrictive form of supervised contact between the respondent and his child.  The respondent denied the allegations of domestic abuse, except for those for which he was convicted of common assault and contended that although in the short term it was right that there should be a residence order in favour of the mother, he was anxious to move to a position of shared residence, and furthermore that almost immediately the contact arrangements should be substantially revised so as to give him unsupervised contact on a generous basis to enable him and his child to continue to enjoy a healthy father/child relationship.  His defence of the allegations made against him involved cross-allegations against the mother of selfish and uncaring behaviour, including allegations that until the separation of the parties, it was he, the respondent, who had had the majority of the day to day care of the parties' child. 

16.      To support their various assertions in relation to the factual issues, the mother called her mother and several of the parties' friends or acquaintances.  The father called his parents and his sister and other friends and acquaintances.  Both parties gave evidence themselves, in one form or another generally critical of the other party.  The Court also heard from the medical experts whose evidence we will deal with in more detail below. 

17.      We do not think it is necessary to examine every single allegation, defence or cross-allegation.  We will look at the more serious complaints.  Generally speaking however there was very little by way of corroborative evidence in relation to the serious complaints and most of the independent evidence that was adduced was either expert evidence or was aimed at relatively narrow issues of fact which, of themselves, were of not enormous significance. 

The Major Allegations

18.      We now take the major allegations made by the petitioner which really amounted to these:-

(i)        The respondent acted abusively towards her by his controlling manner, seeking to create divisions between her and her parents and friends. 

(ii)       The respondent acted callously towards her when she was unwell with her pelvic girdle syndrome and with her carpal tunnel syndrome. 

(iii)      The respondent was particularly cruel at the time of the baby's birth.  Subsequently he put his business interests before the health of the petitioner and their child. 

(iv)      The respondent would continually undermine the petitioner's care of the baby, calling her incompetent, incapable and useless. 

(v)       The respondent sexually abused her with oral, anal and vaginal sex against her will. 

19.      The alleged abuse came to a head with the events of the assault in April 2010.  According to the petitioner, after she told the respondent that she could not carry on as they were, he jumped out of bed and grabbed her, his left hand around her throat, his right fist clenched.  He then said "I'm going to fucking do it".  He slammed the door and pushed her out of the room.  His eyes were staring and she heard him say "I'll fucking kill her".  At that point, the petitioner said she ran off with their child because her husband looked like an animal, and she was frightened and upset.  She went to see their friends, Mr and Mrs A, and both they and the petitioner's parents told her to telephone the police.  The following morning she made a statement to the police at her parents' house in which these allegations were made.  She said that the respondent had not hurt her and had not caused physical injury, but it was a display of aggression as to what he could do and she believed that he would. 

20.      All these various allegations were denied by the respondent. 

Allegations of Abusive Control

21.      A good deal of time was taken in the evidence on this head of complaint.  Much of the evidence was naturally that of the petitioner and of the respondent respectively.  There seems little doubt from the evidence that we heard from independent witnesses, as well as from the petitioner herself, that she is now much happier in herself than she was during the course of the marriage.  B, who is a registered nurse and first came into contact with the parties when the petitioner came to the day surgery unit to be treated for a problem with her right hand subsequently became friendly with them and impressed us as a caring and loyal friend.  She said that the petitioner was today a lot more confident in herself than she was during the time of the marriage.  She has been a lot happier since leaving the respondent.  The petitioner's mother said that she thought her daughter was very wary around the respondent, and was not herself.  She had become quiet and withdrawn and her personality had vanished.  This was a general theme of the evidence given by the petitioner's witnesses.  We had no difficulty in accepting it.  As the marriage ran into difficulties, the reactions which were being described to us are entirely normal; but they do not necessarily point to abusive and controlling nature by the respondent.  Our assessment of the relationship between the petitioner and respondent was that it was marred by a failure on both sides to communicate effectively what they were actually thinking and feeling.  As a result, the petitioner may well have considered that the respondent was abusive and controlling.  She may well have felt that he was seeking to cut her off from her parents.  Indeed it may well be true that the respondent was less than encouraging at the prospect of spending time with the petitioner's parents.  He would not be the first spouse to be less than encouraged at spending time with his or her in-laws. 

22.      In our view, there was absolutely nothing in these complaints which was relevant to the issue which we had to decide, namely whether the respondent's conduct should have any impact upon arrangements for contact with his child. 

Callous attitude when unwell

23.      The petitioner complained that the respondent was callous towards her when she was suffering from her pelvic girdle syndrome when pregnant, and subsequently from the carpel tunnel syndrome.  A particular example she gave in relation to the pelvic girdle syndrome was that although the respondent was very angry about it and blamed her for seeking attention when there was nothing wrong with her, eventually he did agree to take her to the doctor.  She could not drive and she could hardly walk so she could not go by herself.  He drove her, but did not park close by the doctor's surgery and made her walk a considerable distance to get there despite the fact that she was in such pain.  She said she literally had to crawl up the stairs into the doctor's surgery.  She was diagnosed with pelvic girdle syndrome and was referred for hydrotherapy and given crutches but no other treatment was prescribed.  Thereafter, the respondent allegedly would take the crutches away from her and leave them in the hall because he said they made a mess in the lounge. 

24.      In relation to the carpel tunnel syndrome, taking an example from her evidence, the petitioner said that a few days after their child was born, this was diagnosed, but it was assumed that it would get better shortly.  However it did not improve until much later when she had an operation, and in the interval she had to go to Southampton with the parties' child for four days.  The respondent allegedly refused to help her pack her bag, and in the end she had to pack her bag with her teeth while the respondent and his father watched television, laughing and joking. 

25.      In June 2008, she had surgery on her hand.  She said that the surgeon told her it was the worst case of carpel tunnel syndrome he had seen in years.  When she got home, the respondent allegedly screamed abuse in her face, took her by her bad arm and threw her out of the door onto the ground outside.  He then completely ignored her for the next three days, refusing to open packets or cartons for her so that she barely ate, eating crumbs she found in the cupboard out of desperation.  She said she spent most of her time laying next to her baby, sobbing. 

26.      From the independent witnesses, the Court heard that in the opinion of some of them, the petitioner exaggerated her symptoms, and from others that she did not. 

27.      We think the position is that, perhaps not unusually, this relationship was not able to stand much by way of adversity within it.  It may well be that from time to time the respondent was sometimes lacking in compassion and understanding of the petitioner's ailments.  We are not satisfied that any such lack of compassion or understanding resulted in the extreme examples which we have given above, which the respondent denied and which we do not find to be proved.  As with the matters set out above under the first generic ground of complaints, we do not think the respondent's conduct amounted to emotional abuse such as should be taken into account on an application for a residence order or for contact. 

Cruelty at Birth - Putting Business Interests First

28.      The petitioner's evidence was that on 3^rd April, 2008, she woke up at about 5am.  She had had a haemorrhage, and there was a substantial amount of bleeding.  She panicked.  She said that the respondent was upset that there was blood on the covers and he told her to stop panicking and called her an hysterical bitch.  He told her to go to the bathroom because she was bleeding on the carpet.  The petitioner was hysterical because she thought she was losing her baby.  The respondent drove her into the hospital where she had an emergency caesarean and their child was born.  She said that he was more bothered about the blood on the carpet than he was about her and that he had treated her with contempt.  Revealingly, she said that he should not have driven her into hospital and should have waited for the ambulance. 

29.      As mentioned in the short chronology above, when their child was born the child had an umbilical hernia.  The child was taken to Southampton for treatment.  The petitioner was not able to go with the child and considered that the respondent should have gone.  She found it incredible that he would think his business was more important than maybe his baby's life. 

30.      In May 2008, the baby was sent to Southampton again for four days and on this occasion the mother accompanied the child.  This was preceded by the incident described above when the mother said she had to close her case with her teeth.  She alleged that the respondent declined to come because he was "too busy".  The petitioner said that she had no emotional support from him whatsoever for these four days and when she called him to update him on what was happening, she felt he could not wait to get off the telephone. 

31.      The respondent's account is rather different.  He said that he was really happy when the petitioner became pregnant, and on the morning on which their child was born, he was petrified for her and for her child when he saw so much blood.  He tried to stay calm and telephoned to the hospital who said they would send an ambulance.  This would take at least twenty to thirty minutes.  He said he could drive his wife into town in fifteen minutes and did so with the hazard lights on.  No-one told him he should not do so and he thought this was the quickest way to get her into hospital.  Their child arrived quickly.  The term "umbilical hernia" meant nothing to him and he says the doctors told him that it was easily resolved.  On the other hand his wife, the petitioner, was really upset, was crying and had been given morphine.  She asked the respondent to stay with her and he did so.  He was not too concerned about their child because he was told that the operation in Southampton was absolutely routine. 

32.      When the petitioner and their child went back to Southampton in May, the online mail order business was struggling and he stayed in Jersey.  Looking back, he wished that he had gone to Southampton but the work he was doing prevented that. 

33.      The independent evidence does not really corroborate the petitioner's complaints as to the allegedly cruel way she was treated at the time.  The text messages sent by the respondent to the petitioner at that time - and indeed to nurses in Southampton hospital enquiring as to his child's progress - were loving and caring.  The petitioner's complaints in this respect are not established as we do not consider the evidence to be sufficiently reliable.  In this and other parts of her evidence, we find there was some distance between what actually was happening and what the petitioner perceived (we think honestly) was happening.  At one point when giving evidence she said that the respondent was even then trying to dominate and intimidate her by staring at her.  Yet each member of the Court had noticed independently that while she gave evidence the respondent was impassive and studiously kept his face averted from her.  There was no basis for her statement, though we do not doubt she believed it. 

Undermining the Petitioner's Care of Their Daughter

34.      The petitioner complained that the respondent was always undermining her care of her child.  He would apparently say that she was holding the baby in the wrong way, that she used the wrong amount of formula in the baby's milk, that she was putting the nappy on or the baby grow on the wrong way round.  He called her incompetent, incapable and useless and would say this to her every day.  She said she felt as if she was useless and was no good for anything.  As another example, she said that he would not let her put the baby in the car seat because it took her so long as a result of the carpel tunnel syndrome in her hands.  He was always obsessed with the child having dirt or food on her face.  Whatever she did was wrong.  It seemed to her that he deliberately put on the tops to the milk bottles very tightly so that she was not able to undo them, and would have to ask him to help her.  He would then snatch it back from her, rolling his eyes and telling her she was useless.  

35.      The respondent denied these allegations.  The independent witnesses whom we heard gave evidence that supported variously the petitioner and the respondent.  Our view of all the evidence in its entirety is that on this ground of complaint, there probably were occasions when the respondent undermined the petitioner's ability to care for their child but we do not think he did so deliberately.  We accept that he may well have lacked empathy for her medical complaints.  However we do not think he acted to such an extent that this is a factor in the questions of care of and contact with their child. 

Sexual Abuse

36.      The petitioner made a number of allegations against the respondent as to their sexual relationship.  Between July 2007 and April 2008, he apparently told her when having sex with her whilst she was pregnant that it was "disgusting".  Approximately 10 days after the birth of their child by caesarean section, the petitioner alleged that the respondent demanded and had sex with her without her consent telling her "enough of this baby rubbish get back to your priorities".  The intercourse took place in the missionary position.  It did not last long and there was friction on her scar.  She felt like a zombie and she cried in silence whilst it was going on.  Over the next two years there were numbers of occasions when, usually about 3am, the respondent would demand sex when the petitioner did not want to have it.  He would restrain her during this time holding her hands over her head whilst she was suffering from the severe carpel tunnel syndrome.  When the petitioner would say the following day that she did not want to do that and tried to discuss matters, the respondent would shout at her and tell her she was just looking for attention.  He also allegedly demanded oral sex from her against her will on six to eight occasions saying "I want to choke you with it".  The petitioner also alleged that the respondent raped her anally. 

37.      The allegations of sexual abuse come relatively late in the day and were not ever expressed to the police.  There is no independent evidence which corroborates them, and the allegations are denied.  Indeed the respondent asserts that it was the petitioner who frequently took the lead in sexual matters and she would use sex to gain his attention because she was jealous of the time he spent with their child.  He asserted it was she who would initiate fellatio in the bathroom. 

38.      We have noted that the petitioner's first statement was detailed, and signed on 19^th May, 2010.  No sexual allegations were made in it.  The petitioner was asked to complete a questionnaire by Dr Briggs towards the end of 2010, and this questionnaire contained a number of questions as to sexual activity between the petitioner and the respondent.  The petitioner said that she answered those questions truthfully and it was on seeing the report of Dr Briggs and the copy of the questionnaire that she was then asked further questions by her lawyers which lead to the detailed complaints being contained in her second statement made in May 2011. 

39.      Provided it was lawful, the sexual activity in which the petitioner and respondent engaged behind closed doors was a matter for them.  If it had not been consensual, we would have had to consider the extent to which that was a material factor in the context of the applications which were before the Court.  We do not find that there was non-consensual sexual activity between the petitioner and the respondent, or, if there was, we do not find that the petitioner made it clear to the respondent that she was not consenting to what took place.  We specifically do not find that the petitioner has established to the civil standard that she was raped ten days after the birth of their child by caesarean section. 

40.      We are surprised that the questionnaire given to the petitioner by Dr Briggs sought answers from her as to the sexual activity between her and her husband but no similar questionnaire was given to him to complete. 

The Assault - April 2010

41.      The petitioner's account of the assault in April 2010 is set out above.  As a result of that account, the respondent was charged with a grave and criminal assault.  He pleaded not guilty, and some months later pleaded guilty to a common assault on a different factual basis namely that he was suffering from a migraine when she came into the bedroom to complain about their relationship.  He wanted her to go away and spun her by the waist, and pushed her out of the door.  He was told by the police that this amounted to a common assault, and he pleaded guilty on that basis. 

42.      There is no medical evidence of any injuries sustained by the petitioner as a result of the alleged assault.  There is no independent evidence of any kind which supports the petitioner's account of the assault any more than it does the respondent's account of the assault.  We do not find that the petitioner has established to the civil standard that the assault took place as she had alleged. 

The Physiological/Psychiatric Evidence

43.      The Court had before it a confidential psychology report prepared by Dr Briggs on both the petitioner and the respondent.  It was dated 7^th December, 2010, and was prepared on a joint letter of instruction sent in accordance with the Order of the Deputy Registrar of 21^st July, 2010.  The instructions were to enquire as to whether either petitioner or respondent had a psychological disorder or symptoms associated with a psychological disorder, or other emotional difficulty.  Dr Briggs was asked whether, if such disorder or difficulty existed, what was the detailed diagnosis, and how that disorder or difficulty would affect his or her functioning, including inter-personal relationships and an ability to parent or exercise unsupervised contact appropriately.  Dr Briggs has worked as a clinical psychologist since 1979.  For the last 16 years he has specialised in work with adults rather than children.  He has a special interest in the assessment and management of sexual offenders and non abusing parents, the assessment and treatment of families in which multiple abuse and maltreatment is perpetrated, work with violent individuals including the perpetrators of domestic abuse or violence and other family work within the context of family reunification his publications are in the field of the management of sexual offenders and victims. 

44.      Dr Briggs was sent the findings of fact made by the Deputy Registrar and indeed referred to them in his introductory remarks to his opinion.  He had a six hour session with the petitioner and approximately a six and a half hour session with the respondent.  According to Dr Briggs, the respondent looked miserable and not at peace with himself through much of the interview; his demeanour was that of wariness, and contained agitation and vigilance as to the content of questions put to him. 

45.      The Court is not surprised that this was the respondent's reaction.  He had already received a judgment from the Deputy Registrar which found against him in almost every material respect.  That judgment was then considered in detail with Dr Briggs.  Given that Dr Briggs' opinion must have been greatly influenced by the findings of the Deputy Registrar (now set aside), and that much of the period spent with the respondent was taken up with discussing those very findings, it appears to us that Dr Briggs' opinion is one which we should receive with some circumspection.  Dr Briggs prepared for the benefit of the Court an addendum report on petitioner and respondent, but he did not re-interview either of them for that purpose.  In summary, Dr Briggs' opinion was that the petitioner did not suffer from any personality disorder, and that her emotional and psychological functioning was robust.  He found her to be insightful, capable of self criticism and empathic.  He found the respondent to present a more complex psychological character.  He found the respondent was more critical of others than of himself.  He thought the respondent had personality traits which might cause him to experience difficulty in sustaining healthy adult relationships and that if he were to have care of the parties' child, there might be occasions when he might struggle to prioritise the child's needs over his own.  He said "the particular risk at these times is that of [the child's] emotional and psychological well being suffering and of the child being rendered confused and anxious due to the unpredictability or uncertainties of the father's behaviour.  These risks would apply were [the respondent] to have sole care of [the child] or unsupervised contact". 

46.      In his addendum report, he did not depart from these views.  He did express concerns about the respondent's ability to portray the child's mother in a positive light, and therefore expressed concerns about the possibility of unsupervised contact. 

47.      The Court also had the benefit of a confidential psychiatric report on both the petitioner and the respondent prepared by Dr Mary Walsh.  Dr Walsh is a consultant forensic psychiatrist, until recently employed in the UK National Health Service.  She has considerable experience in the assessment and treatment of those who suffer from personality disorder.  Reports on the petitioner and respondent are dated 3^rd December, 2010.  Once again, she had received a joint letter of instruction asking for her opinion as to whether either petitioner or respondent suffered from a narcissistic personality disorder or any other psychiatric illness or disorder.  She was sent a number of witness statements and also of course the finding of fact in the Royal Court of 24^th June, 2010.  She interviewed both the petitioner and the respondent. 

48.      In her opinion, the petitioner did not suffer from any mental illness or personality disorder.  The petitioner exhibited some psychological traits of emotional instability and dependency, but although the petitioner was distressed about her circumstances at that time she was in a relatively robust state of mind.  As to the respondent she found that he suffered from marked traits of narcissistic personality disorder but there was insufficient evidence to diagnose the full disorder.  His deficiency in empathy, a tendency to deceitfulness, use of interpersonal exploitativeness and control and an overt over valuation of the self we were in her view the main clinical features of his case.  She added that "there is no evidence to suggest that [the respondent] would harm [the child] physically but clearly it would be potentially harmful emotionally for the child to become caught up in the parents' conflict.  Although he said to me that he had thoughts about removing the child from the Island I did not get the impression that he had formed a plan to do this.  Nonetheless with his feelings running as high as they were at interview I believe he may impulsively try to remove the child from his wife.  There was no evidence ascertained at interview that [the petitioner] was at any imminent risk of further assault from [the respondent]....until he can come to an understanding of himself and accept some of the responsibility for the break-up of his marriage and learn to separate his own needs from those of [his child] whilst placing the child at the centre [the respondent] is not ready for the consideration of having residence of the child or unsupervised access to the child.  I do not however suggest that the current supervised contact should be discontinued". 

49.      Dr Walsh also prepared an addendum report once she had been advised that the original findings of fact had been set aside.  In her addendum report she accepted that the original finding of fact hearing provided important collateral information in her assessment of both the petitioner and the respondent.  That the decision had been set aside did not at the point in time of her addendum report alter her opinion or recommendations in respect of the petitioner. 

50.      As far as the respondent was concerned, Dr Walsh said that she relied on the finding of fact hearing outcome as confirmatory evidence for her clinical diagnosis of marked narcissistic traits.  She made that diagnosis on the basis of his presentation and admitted events which followed the departure of the petitioner from the family home.  Dr Walsh did not change her recommendations as a result of the setting aside of the fact finding made by the Deputy Registrar.  Interestingly however Dr Walsh added that despite the respondent holding negative views of the petitioner, there was no recorded evidence of him imparting a negative view of her to their child. 

51.      Apart from giving evidence which related directly to her report and addendum report, Dr Walsh identified particular risks to the parties' child insofar as contact with the respondent was concerned.  She saw these as two-fold.  First of all, it was possible that the respondent might use his child to raise his own self esteem.  He might become too focused upon the child and try to become over involved in the child's life not allowing the child to individuate.  He might not be able to step back to allow the child's own personality to come out.  He might be too rigid and lacking in empathy.  The other risk which the respondent carried was that he would find it difficult to portray the petitioner to her child in any positive light.  This problem would emerge under stress, particularly perhaps if there were partial residence with the respondent. 

52.      In cross examination Dr Walsh very fairly did say that she took the findings of fact as collateral information which influenced her assessment of the respondent.  She agreed that it was possible that if she interviewed the respondent again now, she might see a different man.  She thought there was less chance of the traits coming to the fore given that he was no longer in a stressful relationship with the petitioner.  When it was put to her that the respondent had shown a high degree of change in the last twelve months, she agreed that if what he now said was true, this would represent a marked change in attitude.  Her position was that he would be liable to say these things anyway because he was an intelligent man and knew that they would go down well, but it was impossible to say at present without seeing him whether what he said was true or not in the sense of being genuine. 

53.      Finally we heard from Dr Bryn Williams, a chartered clinical psychologist with a special interest in children, young people and families.  Standardised psychological measures of the child's development and emotional well being indicated that there were no clinically significant concerns.  The child demonstrated secure attachment behaviours with respect to both of the parents.  It was curious that the child demonstrated a primary attachment figure as the maternal grandmother notwithstanding the fact that the grandmother plays a very important role in the child's life. 

54.      Dr Williams described the quality of the child's life with the mother as good and the child's development as normal, progressing well. 

55.      He also noted that although the petitioner described how she became mindful of the abusive relationship she had had with the respondent, she recognised that she did not have any concerns about leaving the child in the father's care at the age of 16 months and that at no time had he directly physically harmed the child.  He also noted that despite that statement that the petitioner had no concerns about her child having a relationship with the father and seeing him, the petitioner was nonetheless adamant this had to take place within a supervised context. 

56.      In his evidence given directly before us, Dr Williams said that he had no concerns about the petitioner's ability to look after the child - neither did he have any evidence that the respondent presented any form of risk to the child.  All the indicators of this father were that his parenting was adequate.  Both parents behaved appropriately with the child.  He said that the respondent, like the petitioner, absolutely loved this child. 

57.      As to residence, Dr Williams said that boundaries can be settled but 50/50 residence arrangements only have best outcomes when they exist with parents who can work together to do what is in the best interests of the child.  If they do not, there is a risk of psychological damage to the child as a result.  In this case, the mother had the benefit of the maternal grandmother's role which was very significant with this child.  That family unit was important. 

58.      As to contact, Dr Williams did not think that supervised contact was necessary.  Indeed he considered that supervised contact would necessarily paint the father as the villain in the eyes of the child.  It was desirable to move to unsupervised contact as soon as that could sensibly be arranged. 

59.      Dr Williams did have some residual concerns that the father might not present the mother in a positive light, and indeed vice versa.  This was a risk to which both parents should be alert. 

60.      As Dr Walsh said in her addendum report, the assessment of Dr Williams that there was no evidence that the child's development or psychological wellbeing had been compromised must raise the question of how much abuse, if any bar that which is admitted, went on in the house when both parents were present.  Having reviewed all the evidence, the Court is satisfied that to the extent that any abuse of the petitioner by the respondent did take place, it did not come even close to the threshold where this might have had an impact on the issues of residence or contact which we had to determine. 

The Law

61.      It is important to remember that we are not considering the law in the context of a petition for divorce.  This is not a question where the Court has to consider whether the respondent has since the celebration of the marriage behaved in a way that the petitioner cannot be reasonably be expected to live with him.  We are considering an application for a residence order and an application for contact, both made pursuant to Article 10 of the Children (Jersey) Law 2002 (the "Law").  It follows that, with one exception to which we will come shortly, the conduct of the petitioner towards the respondent, or vice versa, is simply not relevant to the issues which we have to consider. 

62.      The exception is this.  Article 2 of the Law makes it plain that the child's welfare is the Court's paramount consideration.  Questions as to where the child shall live, or whether there should be contact between a child and his or her parent(s) are to be viewed with the child's best interests in mind.  There may be circumstances where the conduct of one or both parents towards the child is such that the Court is so concerned for the child's physical, psychological or emotional welfare that either contact will not be permitted at all, or if it is permitted, it will be subject to stringent conditions.  Very rarely indeed, it may be that the impact of the conduct of one parent towards the other, with whom the child resides, is such that the Court considers that contact between the former and the child would be damaging to the child's physical, psychological or emotional welfare, and in those circumstances either no contact, or restricted contact, would be permitted. 

63.      A full analysis of the policy considerations which underlie the judicial approach to questions of contact is set out in Re L (A Child) (Contact: Domestic Violence) and Other Appeals [2000] 4 AER 609, from which a substantial citation was taken in the Jersey case of C-v-D [2000] JLR 334.  On the facts of that latter case the Court considered that the mother was so traumatised by the violence in the relationship between her and the father that an order for contact would upset the stability of the family.  That case therefore fell into the very exceptional category where violence towards the mother had the result that the interests of the child were such that no contact should be permitted.  It is important to emphasise how exceptional a conclusion that is.  In Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, Bingham M R said this at page 128:-

"It may perhaps be worth stating in a reasonably compendious way some very familiar but nonetheless fundamental principles.  First of all, and overriding all else as provided in S1(1) of the 1989 Act [Article 2 of the Law) the welfare of the child is the paramount concern of any court concerned to make an order relating to the upbringing of a child.  It cannot be emphasised too strongly that the court is concerned with the interests of the mother and the father only insofar as they bear on the welfare of the child. 

Secondly, where the parents of a child are separated and the child is in the day to day care of one of them, it is almost always in the interests of the child that he or she should have contact with the other parent.  The reason for this scarcely needs spelling out.  It is, of course, that the separation of parents involves a loss to the child, and it is desirable that the loss should so far as possible be made good by contact with the non-custodial parent, that is the parent in whose day to day care the child is not.  This has been said on a very great number of occasions...".

64.      Bingham M R then cited with approval from Re J (A Minor) (Contact) [1994] 1 FLR 729 at p 736 P-C, where Balcombe L J said:-

"But before concluding this judgment I would like to make three general points.  The first is that judges should be very reluctant to allow the implacable hostility of one parent (usually the parent who has a residence order in his or her favour) to deter them from making a contact order where they believe the child's welfare requires it.  The danger of allowing the implacable hostility of the residential parent (usually the mother) to frustrate the court's decision is too obvious to require repetition on my part". 

65.      At page 129, referring to a decision of Waite L J In Re D, Bingham M R went on to say this:-

"I simply draw attention to the judge's reference to a serious risk of major emotional harm.  The courts should not at all readily accept that the child's welfare will be injured by direct contact.  Judging that question the court should take a medium term and long term view of the child's development and not accord excessive weight to what appear likely to be short term or transient problems.  Neither parent should be encouraged or permitted to think that the more intransigent, the more unreasonable, the more obdurate and the more uncooperative they are, the more likely they are to get their own way.  Courts should remember that in these cases they are dealing with parents who are adults, who must be treated as rational adults, who must be assumed to have the welfare of the child at heart, and who have once been close enough to each other to have produced the child.  It would be as well if parents also were to bear these points in mind." 

66.      In Re L (supra) Dame Elizabeth Butler Sloss P pointed out at page 615 the disadvantages of having no direct contact between the non residential parent in the context of past domestic violence.  She identified the relevant issues as:-

(i)        Deprivation of a relationship with the biological father;

(ii)       Loss of opportunity to know the parent first hand with the loss of information and knowledge that will go towards the child's formation of identity and not to know the reality of the parent which may be less worrying than the unseen, imagined villain.  If the contact is positive it may help the child to have a more positive image of himself or herself and a better attitude to future parenting. 

(iii)      Loss of opportunity to know grandparents and other relatives of that parent with the potential loss of genealogical information.  Sometimes there can be successful contact with the family even if not with the non resident parent. 

(iv)      Loss of the parent with whom there has been a good relationship or a relationship that has given the child some sense of being cared about.  Continuity can be important. 

(v)       If a parent is able to provide positive and supportive contact and new and different experiences, then loss of that opportunity. 

(vi)      Absence of opportunity for any repair to the relationships or to the harm done. 

(vii)     Lessening of the likelihood of the child being able to get in touch and/or form a relationship at a later stage. 

67.      These were all disadvantages identified by Drs Sturge and Glazer, consultant child psychiatrists in their report to the Court, and their views were described as representing extremely valuable information to assist in the difficult task faced by the family judge deciding whether to award contact in cases where domestic violence is proved. 

68.      In the same case Thorpe L J said in relation to contact and domestic violence (at page 640):-

"Domestic violence is one of a catalogue of factors that may operate to offset the assumption for contact but it has not been separately categorised in either statute or case law, nor, in my opinion should it be". 

69.      In the same case it seems to us that the summary of Waller L J is helpful where, at page 643/4 he said:-

"Without being exhaustive, the key points which it may be helpful for me to emphasise appear to be the following. 

(1)       The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by judges and advisers alike. 

(2)       It follows that alleged domestic violence is a matter that ought to be investigated, and on which findings of fact should be made, because if it is established, its effect on children exposed to it, and the risk to the residential carer, are highly relevant factors in considering orders for contact and their form. 

(3)       In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator's character. 

(4)       There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many which may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the judge applying the welfare principle and the welfare checklist." 

Reasons for Decision

70.      At the conclusion of the case, there was agreement between the parties that there should be a residence order made in favour of the mother and we so ordered.  It was suggested by the respondent that at some point there should be a move towards a shared residence order.  Circumstances change, and it may be that at some future date, that would be a sensible course of action - but equally it may not.  Any such move will require to be considered at the time it becomes an active proposal, and all the circumstances which are then relevant will be taken into account.  In our judgment, however, the real requirement is to remove uncertainty and instability in this child's life for the foreseeable future.  The cross applications for residence orders have caused uncertainty in the minds of both parents, and that uncertainty is bound to have had an impact on the child.  In our view it would be highly undesirable for there to be any disturbance of the residence order for at least five years, unless there should be some exceptional circumstances arising which we cannot presently contemplate.  We make no order at this stage preventing the respondent from bringing a further application in this respect but we wish to say in the clearest terms that any such application is not encouraged on the facts as we have them at the moment. 

71.      As to contact, we consider that the present arrangements for supervised direct contact are inadequate in terms of both time and quality.  In making these comments, we do not in this respect criticise JFCAS, which has done its best through the efforts of Mrs Ferguson to facilitate the maintenance of contact between the respondent and his child. 

72.      In reaching this conclusion we have applied the legal principles set out above and in particular have taken into account the following findings of fact:-

(i)        There is no evidence that the respondent has ever physically or emotionally abused the child. 

(ii)       We do not find proved the more extreme allegations of physical or sexual violence made by the petitioner.  To the extent that we have found that there was some element of violence - that is to say what the respondent has admitted and some brusque treatment on occasion - that regrettably does sometimes arise especially in the course of a break-up of a marriage.  That it does so, does not excuse such conduct but it appears to us that the probability of any repetition is low.  It follows that the requirements for a full recognition by the respondent of his violent conduct towards the petitioner, as the petitioner has urged upon us through her counsel, is simply not practicable not least because the respondent has been asked to acknowledge things which he does not consider to have taken place, and which the Court has not found to be proved. 

73.      We recognise the force of Dr Williams' evidence that it is important that the arrangements which are put in place by the Court are supported as far as possible by the petitioner with a view to contact with the father working well in the child's best interests.  Accordingly, although the delay may not be objectively fair to the respondent, we have ordered a structure for reintroducing full direct contact as follows:-

(i)        An introductory session was ordered to take place on 13^th November, 2011. 

(ii)       There would be five weeks supported contact at Milli's from 20^th November, 2011. 

(iii)      For eight weeks thereafter there would be two hours unsupervised contact, facilitated at Milli's.  The Court encouraged either the petitioner or her mother to be present for a handover session as soon as either felt able to do so, but this was not part of the order. 

(iv)      Thereafter there would be four hours unsupervised contact per week for four weeks. 

(v)       Thereafter there would be unsupervised contact once per week between the hours of 10am and 4pm for four weeks.  

(vi)      There would be a review of contact, including staying contact in May 2012.  At that time JFCAS would need to have observed a contact session in order to report upon it. 

(vii)     There would be liberty to apply. 

74.      Applications of the kind we have currently had to consider require a judgment of risk, which the Court must make in the best interests of the child.  The Court is required to balance the risk of physical emotional or psychological damage to the child whether contact does take place or does not take place, and it is to be emphasised that emotional and psychological damage may be just as real a risk, if not a more real risk, if contact does not take place than if it does.  We have had no doubt whatever that on the evidence which has been presented to us, the greater risk lies in restrictions on contact rather than the other way round.  

75.      In deference to the physiological and psychiatric experts who gave evidence before us, we would like to add this.  Neither the petitioner nor the respondent should think that the decision which we have arrived at carries with it any rejection of the technical analysis which the experts have made as to the psychological or psychiatric state of the parties.  The Court's view is that the petitioner and respondent respectively should urgently consider undergoing the therapy or getting the assistance which the experts have recommended.  It may well be very advantageous to them to do so.  Their better understanding of themselves and of mechanisms to deal with their different character traits may well be useful to them in any future relationship with others and indeed in their future relationship with their child.  No orders however are made in this respect and it is entirely a matter for the parties to take forward as they wish although we hope that the comments we have made may be encouraging in this respect. 

76.      The last point we would make is that as a result of the legal process, the respondent saw his child for two hours a week at Milli's Contact Centre from May 2010 until the arrangements which the Court ordered should be put in place in December 2010 when contact was reduced to one hour a month on a supervised basis.  This continued till the hearing before us in October 2011.  It seems to us that this occurred because everyone connected with the case including JFCAS was diverted by the allegations of domestic violence in a way that was inappropriate.  We recognise that interim orders are never easy because risk is being assessed without all the information being available.  Nonetheless, there never was any evidence that the child was the subject of domestic violence.  There never was any evidence that the child witnessed any domestic violence perpetrated by the respondent on the petitioner.  There always was dispute as to the level of domestic violence that had in fact been perpetrated by the respondent on the petitioner.  And there never had been any criticism of the respondent's care of the child prior to that moment of separation.  It is reassuring that the respondent has been able to maintain his relationship with his child since May 2010, notwithstanding the lack of focus by the parties on the real issues for much of that time. 

Authorities

Children (Jersey) Law 2002.

Re L (A Child) (Contact: Domestic Violence) and Other Appeals [2000] 4 AER 609.

C-v-D [2000] JLR 334.

Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124.

Re J (A Minor) (Contact) [1994] 1 FLR 729.