Jersey Unreported Judgments

Family - Reasons - refusal of an application by the mother for a fact finding hearing and risk assessment report and the granting of a parental responsibility order application by the father.

[2013]JRC150A

Royal Court

(Family)

30 July 2013

Before     :

V. J. Obbard, Esq., Registrar, Family Division.

 

IN THE MATTER OF C-v-D (FAMILY)

Advocate C. Hall for the Applicant.

Advocate M. J. Haines for the Respondent.

judgment

the registrar:

1.        These are my reasons for refusing the applications by the mother as follows:- (a) that there shall be a fact finding hearing and (b) a report prepared by a psychologist on the effect on the child of any facts established by the fact finding hearing.  I shall also give my reasons for allowing the father's application for parental responsibility. 

2.        I have to say that it came as a surprise to me and to Advocate Haines (for the father) that the application for a fact finding was made.  The purpose of the hearing on 30th July had been ostensibly to review how contact arrangements were progressing.  The arrangements, which had been ordered on the two previous Sundays, were in accordance with the recommendations of a JFCAS officer.  The recommendations were that contact should progress from contact at Milli's Contact Centre ("Milli's"), to contact away from Milli's, in the community, but still using Milli's as a handover point.  There was to be an initial stage for 8 weeks during which the contact would be during the morning.  The next stage was to be for contact for a further 8 weeks to be during Sunday afternoons.  I had decided at the hearing on 16th July, that there should be a review of how contact was progressing after only 2 weeks, as I say , to review how contact was going. 

3.        In actual fact the mother was so upset about the order made on 16th July that she made an emergency application to the Court, complaining that the contact had gone so badly that it was not right for it to continue for a second Sunday.  The Acting Registrar was not convinced and, upon certain conditions, ordered contact on the second Sunday to take place as previously ordered by me. 

4.        The idea of and the application for a fact finding hearing is recent, in contrast to the length of these proceedings which date back to August 2012.  An order for contact was made in December that year.  As I have said, another order was made in July 2013.  Until now (apart from some discussion on the subject at the hearing of 5th November, 2012, when the point was not pressed by Advocate Blomfield then acting for the mother) there has been no serious application for a fact finding hearing. 

5.        The facts which the mother would like to establish concern both historical allegations and allegations which are recent.  

6.        The historical allegations are first described to the Court in a letter from the JFCAS officer of Peter McBride, dated 2nd November, 2012.  The allegations revolve around C's relationship with his former partner B and her children E (born 1994) and F (born 1998).  The relevant passage reads:-

"There is no police information to suggest that C sexually or physically assaulted either E or F or that this became a police matter.  I have seen the offence listing both Parish Hall and non-Parish Hall.  These refer to motoring offences, with the last recorded one in April 2012 and previous to that in September 1994.  There are no offences of violence or public disorder. 

The allegations which I have seen are historic: referring back to 1997 and 1998, there is a level of mutual allegation between C and B of physical injury to the children.  These were raised with the Children's Service and with the police at the time. 

It is difficult to go beyond the present records when the information is not available and the relevant professionals may no longer be in post. 

I am prepared to interview E or F if this was required by the court.  I would be willing to interview B, although she has already indicated that her memory of past events is not good and she does not recall if she reports concerns to the Children's Service at the time in question.  I am aware that I balance the value of further inquiry with the risk of stirring memories of events from 16 years ago. 

In view of the allegations made by D the court may wish to hold a finding of fact in relation to the issue of domestic violence.  If a finding of fact is held then JFCAS will become involved once the outcome of that hearing is known. 

If the court decide against a fact find hearing, I would recommend that JFCAS investigate this matter bearing in mind the outline adopted by the courts following research by Sturge and Glaiser.  In particular, I am of the opinion that I need to assess C's motivation for a contact application, his attachment to A and his commitment to maintain contact in future. 

It would not be in A's interest to begin contact only to come to the conclusion that it is not in her best interests.  I therefore recommend that I prepare an interim report and that interim contact is considered and if agreed I can then assess the quality of the relationship between father and child and be in a better position to make long term recommendations."

7.        In a subsequent welfare report dated 14th December, the JFCAS officer made further enquiries about the alleged abuse to the children.  He wrote:-

"28.     We discussed his previous relationship with B and the consequences for him of allegations that she later made of sexual abuse and physical harm to her children.  C accepted that his relationship with B had been volatile and that the police had been called on a number of occasions in the past.  He attributed this to B's drinking and her poor mental health. 

29.      Information which I have noted from the files at the Children's Service would suggest he previously had contact with B's children E (born 1994) and F (born 1998).  In February 1998 C made a referral to the Children's Service due to bruising on E, then aged three.  He reported that he had witnessed B punch and kick E while he was visiting. 

30.      This was followed up by the duty social worker with a call to the nursery who found no evidence of injury on E and the matter was closed a month later. 

31.      In June 1997 C moved out of the family home and the Children's Service appear to have closed their involvement in July 1997. 

32.      In September 1998 F, then a baby aged 7 months was presented to the emergency department at the hospital.  It was her mother's account that she had been thrown across the room by C.  The doctor examined F and could find no marks or signs of neurological damage.  There was no further investigation by the Children's Service and the matter was closed. 

33.      I have read a letter from Children's Services to CAMHS from April 2003 in relation to E and F which indicated that C had no contact with the girls in the previous two years, it is also reported by B that indirect contact was very inconsistent."

8.        It is clear that, at the time, the Children's Service did not have sufficient concerns to follow up the case and their file was closed.  I have to say that I cannot see the point of now trying to revive and prove the truth of allegations which were dropped at the time. 

9.        The mother alleges that the father was violent, aggressive and argumentative and threatening towards her, whilst they were in a relationship, in A's presence.  The police had been called and the Children's Service had been involved.  The mother spent two periods of time at the Women's Refuge.  One incident, according to the mother, gave rise to criminal proceedings in the Magistrate's Court, however proceedings were later dropped.  She claims that the father was also violent to A whilst in anger, at the time of separation.  My file does not contain any details of Children's Service involvement at this time. 

10.      The mother complains about certain intimidating behaviour of the father, relating to misuse of her mobile phone number and email after the parties had separated.  This has resulted in police involvement. 

11.      There have been recent allegations of inappropriate behaviour in that C broke Milli's Contact Centre Rules.  In the next paragraphs I will describe some examples.  

"Mrs Carroll reported that D has needed a lot of emotional support from staff.  Mrs Carroll stated that C had totally disregarded the rules of the Centre and had taken a phone into the hall where they are not permitted and secretly taken a photo of himself and A then posted it on Facebook.  C also continued to bring sweets for A when he had been asked not to even though he has been asked specifically not to give her anything other than what her mother had provided as A was on a special diet due to allergic testing.  Mrs Carroll also mentioned that they were aware that C had raised issue with the person who brings A to contact...."

12.      The mother complains that she noticed a change in A's behaviour directly after an incident of the father taking A to the toilet at Milli's Contact Centre.  There was a change in her sleep pattern, she was biting her nails and also became distressed when having her nappy changed. 

13.      There is a suggestion that C may have sexually abused A during contact in addition to giving her the wrong or no refreshment during contact on 21st July. 

"C did not feed A her lunch during contact;

For over two hours A was not given anything to drink, as the bottle with her drink was still full when returned.  The 21st was a very hot day (average temperature of 26 degrees) and it is extremely important that a child of A's age drinks regularly to avoid dehydration. 

A had diarrhoea again and my client was told by A that her father gave her an ice cream when they were in the park.  Once again this is against the clear advice given to him, relayed to A's milk intolerance.  

A came back from contact with wet trousers.  My client understands that this was because A went into the swimming pool without her father's permission.  However she did not have a wet nappy.  This does not appear consistent with the father's explanation. 

Once my client took off A's trousers to be able to seat her in the car seat, she became very uncomfortable and distressed; she started crying asking to sit on my client's knees to cuddle.  This behaviour continued for the rest of the day."

14.      I regret to say that the examples of behaviour described above and more recently by the mother's lawyer on her behalf, whilst understandably worrying from a mother's perspective do not, to my mind, amount to sufficient reason to instigate a wholesale investigation into the precise explanation for the child's behaviour on a number of different occasions.  As Ms Fernandes of JFCAS told me in Court on 6th August, there may be different explanations for her behaviour on each occasion and I'm not convinced that any one will profit from such an enquiry. 

15.      I say this especially since A was observed by Ms Carroll of Milli's Contact Centre greeting her father enthusiastically on 28th July:-

"I was with C when A was brought through and A was fantastic running up to dad with a big smile and throwing her arms around him for a hug."

16.      This is in accordance with an observed contact session at the JFCAS office when JFCAS officer, Peter McBride, observed contact between the father and A, which he described as "very positive contact to observe".  

17.      My conclusion is that the facts as apparent at this stage of the proceedings do not warrant a fact finding hearing, because:-

(i)        The allegations of historic physical and sexual abuse were investigated by the Children's Service, and no further action was taken.  There is no point in pursuing this aspect.  These matters are history. 

(ii)       The allegations of violence to the mother and A during her parents relationship and at the time of their separation, whilst credible, do not in my view warrant a full scale enquiry which will benefit neither the child nor either of the parties at this stage.  It is relevant to note that for approximately 2 years the parties lived together as a family. 

(iii)      The more recent allegations (since separation) regarding possible abuse to A during contact were made in the context of difficulties encountered by the mother in coming to terms with new contact arrangements.  There has been, in the intervening period of about 16 years, no complaint of this nature against the father in relation to the children of his previous relationship.  A's present behaviour can be explained in many different ways.  She appears to relate well to her father.  Contact is positive. 

(iv)      The recent allegations concerning the father's controlling behaviour towards the mother appear to be, in some measure, admitted by the father.  I take a serious view of such matters and, if, ultimately, such behaviour results in the mother's fear of the father affecting her ability to care for A, it could also affect the order which the Family Court makes in relation to contact.  I do not, however, agree with the JFCAS officer's recommendation that an order for parental responsibility should be delayed for this reason (see below).  If I hear of any more attempts by the father to control or harass the mother, I will have no hesitation in referring such matters to the Inferior Number of the Court to make a decision on how to mark the Court's displeasure. 

18.      Having decided that a fact finding hearing is not warranted, I think it follows that a risk assessment to establish any risk to the child in having contact with her father is not justified either. 

Parental Responsibility

19.      The latest JFCAS report maintains the JFCAS recommendation that PR should not be granted to the father due to the history of the relationship.  She believes he will use PR just to make her life difficult.  I am mindful that the parties continued lived together as a family for approximately 2 years after A was born.  Her recommendation is this:-

"...It is my view that there should be a period of at least 12 months before such an application should be reconsidered.  It is my opinion that this would enable C to continue to demonstrate his commitment to A.  It would also ensure that there had been no further concerns about C's behaviour towards D."

20.      In the case of D-v-M, P & B [2011] JRC 075A, I took particular note of the length of time that a father had spent living together with a child's mother as a family, which had been a total of one year.  However, both parents were, at the time of the application, both incarcerated at La Moye prison.  It is true that there had been no allegations of domestic violence, but the father was convicted and imprisoned for a serious assault on an innocent victim and could direct his threatening behaviour to anyone.  As the mother's advocate in that case put it, the JFCAS officer's recommendation to the Court was for the issue of parental responsibility to be deferred.  In my judgement I summarised the officer's recommendation thus:-

"Prove you can stay out of trouble and the Court will award you parental responsibility."

21.      In a similar way in this case, the JFCAS officer is offering better things to come as a reward for good behaviour. 

22.      In my opinion, this is not a valid way to keep a man who is demonstrably trying to be a father to his child from having parental responsibility and who has demonstrated that he satisfies the test set out in LS-v-NS [2007] JRC 103A.  There may be other serious issues to address, but I do not think they should be used as an excuse to prevent the grant of parental responsibility. 

23.      Indeed, I agree that conditions should be attached to the order for parental responsibility, as they were in LS-v-NS, namely that he will not contact the mother except with a view to arranging contact, that he will not harm, molest, harass, threaten or otherwise abuse her, and that he will not remain or loiter within 50 metres of her home.  As I have said above, I will have no hesitation in referring the case to the Court if any of these conditions are broken. 

Authorities

D-v-M, P & B [2011] JRC 075A.

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