Jersey Unreported Judgments

Family - application by the father for a residence order in respect of A and a shared residence order in respect of B.

[2013]JRC157

Royal Court

(Family)

5 August 2013

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Morgan and Liston.

 

Advocate H. J. Heath for the Applicant.

Advocate A. T. H. English for the Respondent.

judgment

the commissioner:

1.        This is an application by J ("the father") for a shared residence order in respect of B, who is aged ten and a residence order in respect of A, who is nearly sixteen. 

2.        The relationship between the parties ended in November 2010, when the father moved out of the family home, which he owns and which is adjacent to his garage business.  After some nine months, the mother moved out with the two children to rented accommodation and the father returned.  Today the mother remains in rented accommodation with her partner and the father in the former family home with his partner, from where he continues to run his garage business. 

3.        The dealings between the parties over the children have been acrimonious, and there have been continuous proceedings since May, 2011, when the father first applied to the Registrar for parental responsibility in respect of B who was living with the mother and a residence order in respect of A, who was living with him.  For the most part the father, who in his words is not an academic man, represented himself and, as he acknowledged, did not conduct himself well in those proceedings.  At an early stage in those proceedings, namely on the 18^th July, 2011, the father was given parental responsibility for B by agreement with the mother.  

4.        The procedural history is complicated with many hearings before the Registrar and it is not necessary, for the purpose of this application, to track its every move save to say that during the course of those proceedings very substantial work was undertaken in that:-

(i)        There have been numerous welfare reports. 

(ii)       There has been a report dated 2^nd April, 2012, by Dr Bryn Williams, the child psychologist, in relation to the children. 

(iii)      There have been two reports dated 14^th and 15^th March, 2012, by Dr David Briggs, the adult psychologist, in respect of the mother and father. 

(iv)      There have been two reports dated 14^th March, 2012, by Dr Dale Harrison, the psychiatrist, in respect of the mother and the father, neither of whom was found to be suffering from a mental illness or mental disorder. 

(v)       On 12^th April, 2012, the Court was sufficiently concerned in relation to the welfare of the children to order a report under Article 29 of the Children (Jersey) Law 2002 ("the Children Law").  The Court concluded that the children were suffering from divided loyalties and therefore emotional, but not significant, harm.  It was essential for them that they be provided with consistency, certainty and that their parents cooperate and communicate effectively.  It was recommended that any outstanding financial, residency or contact matters that were then before the Court be finalised as quickly as possible. 

5.        From as early as the 9^th November, 2011, the Court ordered that B should continue to reside with the mother with the father having (at least) alternate weekend staying contact.  The current regime was put in place on 14^th November, 2012, following the advice of JFCAS, when it was ordered that the father would have the following contact with B:-

"1.      Every Wednesday after school, the father collecting her from school, B staying overnight and the father returning her to school on Thursday morning;

2.        on alternate week-ends, the father collecting her from school, B staying overnight on Friday, Saturday and Sunday and the father returning her to school on Monday morning;

3.        such other contact as may be agreed between the parties."

6.        It was thought that the position in respect of B was now settled with the proceedings at a close consistent with the advice contained in the Article 29 Report.  

7.        However back in September 2011, the mother had filed a separate application for child maintenance and a lump sum in respect of B, which again following numerous hearings before the Registrar had been referred up to the Royal Court by the Registrar on 14^th November, 2012, on account of the difficulties the lower Court had in obtaining disclosure from the father of his financial assets. 

8.        It would seem that this referral prompted the father to retain the services of Miss Heath.  On the 10^th January, 2013, Miss Heath filed an application on the father's behalf seeking a residence order in respect of A, a shared residence order in respect of B and a specific order in respect of the February 2013 half-term.  There was no issue that A resided with the father and that he had applied for a residence order for her simply so that he could benefit from certain tax allowances.  We will return to this later, but the focus of the hearing was on the application for a shared residence order in respect of B.  

9.        The father's application for a shared residence order in respect of B has come before the Court before the mother's application for maintenance and a lump sum. 

10.      At a directions hearing on 15^th January, 2013, the father applied for a further psychological assessment of the children by Dr Williams.  The Court sought the advice of JFCAS as to whether a further report was both necessary and in the interests of the children. 

11.      In her report of 25^th February, 2013, Eleanor Green, the JFCAS officer, advised as follows:-

"14.     This case has a long history within the Court and I am concerned about the impact litigation has had on these children.  Dr Williams highlighted this as being a cause for concern and I agree with him.  At present, A and B appear to be functioning well.  Parents agree that A seems far happier and is doing well at school.  B, who was previously so deeply unhappy, is now seeming content at school and starting to make some academic progress (though still needs support).  The children have both informed various professionals of their distress about the Court process.  To involve them further when they have given their views, and there are no reported concerns by any professional agencies would be unnecessary and cruel.  I would therefore not support the notion that Dr Williams should re-interview them.  There are no current concerns about their emotional welfare or psychological wellbeing.  They need to be left alone.  They need this process to stop and I am concerned about the possibility of further applications being made which upset them. 

15.      ...

16.      Similarly, I would refer the Court to my previous recommendations regarding B.  Since she has begun now to make progress, it would therefore seem that the current arrangements (even if they are contrary to the wishes she expressed to her father) are working for her.  B was previously a very distressed and vulnerable child.  To make changes when she has begun to make positive progress would concern me."

12.      At a directions hearing on 6^th March, 2013, the Court, having heard evidence from Eleanor Green, declined to order a further psychological report.  In his oral unpublished judgment Clyde-Smith, Commissioner, said in respect of B:-

"At the hearing Miss Green advised caution over proceeding with a further report even without B being interviewed.  There had been, she said, a beneficial lull in the proceedings and the children were progressing.  B has a good relationship with her teacher who works well with the mother.  The school would not be considering referring B in any way.  Miss Green approached this as if it was a fresh application, which indeed it is, and the way the children are functioning now would not justify the preparation of psychological reports.  In her view, problems over contact are parental issues which can be resolved without the benefit of expert psychological advice.  It is clear to me that the children are now progressing and the Court should adopt the principle that the least it intervenes the better."

13.      In his affidavit of 2^nd May, 2013, in support of a shared residence order for B, the father maintained that she had repeatedly stated to him and to A that she wanted to come and live with the father when she goes to secondary school (in 2014).  She wanted to do this as the mother does not do anything with her and has no time for her.  He saw the shared residence order as a step to full residence of B with him. 

14.      In the light of this, the Court felt it necessary to ascertain the wishes of B independently and on 24^th May, 2013, it directed Eleanor Green to see B in order to ascertain in an age appropriate fashion her wishes and her feelings. 

15.      It is clear from Miss Green's report and from her evidence that B found having to discuss these matters with her very difficult.  In short, she said that the current arrangements were "O.K" although she was missing the father on the week when she does not see him at the weekend.  She would like an extra overnight that week so that it is not such a long gap between the times when she sees him.  She used to think about living with the father on a full-time basis, but that was some time ago and she does not think about it now.  She had not considered in any detail whether this was a change she would like to make and did not really want to consider it.  She was aware that her parents still argued about her.  In short there was no support for the father's contention that B wished to live with him or for the assertion that the mother does not do anything with her and has no time for her. 

16.      It was clear that she was making good progress at school:-

"Information from Q School.

3.        Ms R from Q School was surprised to hear of my concerns about B's presentation when I discussed her behaviours with her.  They see nothing like this at school, perhaps indicating that B's anxieties are very specifically related to issues around her family rather than more general.  At school they are very pleased with B and feel she is making good progress.  As previously noted, she had fallen behind, but Ms R feels she has really begun to regain some ground with the extra help she has been given.  [The mother] is working well with the school and has engaged particularly with the 'Read/Write Inc.' programme they have been doing with B.  She has similarly reinforced to B the importance of homework and ensured that it is completed."

17.      It is worth setting out this part of her conclusion:-

"5.       The conclusions to be drawn from such a narrow assessment are necessarily narrow in scope and care should be taken when making recommendations from them.  B's emotional presentation remains of concern.  Whatever order is made about her living situation she will remain at risk of emotional harm while this process continues.  She needs her parents to stop fighting over her and allow her to love them both.  Furthermore (and I cannot stress this enough), B needs the Court process to stop.  She needs to not have to see social workers, JFCAS officers, or other welfare professionals.  B seemed exhausted and resentful by having to talk to me again.  It was sad to see her like this.

6.        ....

7.        I do not consider that making a Shared Residence Order will help B.  Whilst I appreciate [the father's] need to feel 'equal' to [the mother], the psychological benefit for him is not something I consider will effect significant positive change for their daughter.  She is not asking to divide her time between parents, she is asking for a little more time with her father and to be left alone.  The professionals involved with her on a daily basis at school would support this approach."

The parties' respective positions

18.      The father's position was that a shared residence order would be in B's best interests because:-

(i)        The father loves B and wants to play a full role in her life.  He would like B to know that she will always have a home with him. 

(ii)       B's only sister, A already lives with the father and has done so for about two years.  It would be right for the girls to both have a home with their father. 

(iii)      Shared residence will reflect B's wishes and feelings.  B feels that her mother does not have time for her and she would prefer to live with her father.  B wants to come to live with her father full time when she goes to S School in September, 2014. 

(iv)      B is a child who needs and wants a full relationship with both parents.  

(v)       The mother does not recognise the father's role.  The mother is not cooperating with the father for B's benefit. 

(vi)      Having a contact order, as opposed to a shared residence order, is not working because:-

(a)       B is prevented by her mother from having telephone contact with her father at all while she is in the care of her mother.  This upsets B and her father. 

(b)       The court orders allowing for 'such other contact as may be agreed between the parties have proved futile.  The mother has consistently declined to agree any additional contact between B and her father. 

(vii)     Something needs to change.  The inability of the parents to work together makes the current order the wrong decision for B.  The question is what order should replace the current order and what is in B's best interests?  The father's position is that the contact order should be replaced with a shared residence order. 

(viii)    A shared residence order would be psychologically beneficial to the parents and vicariously to B because it would emphasise the parents' equal rights and responsibilities towards B. 

(ix)      B has expressed to her father a desire to attend S Secondary School (in part, at least, because most of her friends will be going there).  B has also expressed a desire to live with her father when she does so.  A shared residence order would be a natural step between contact and full residence, making the adjustment more subtle and child-friendly).  

19.      The mother opposed the application for a shared residence order for B.  Her position was that there should be no change in the current regime, with B continuing to reside with the mother and with contact in favour of the father as set out in the order of 14^th November, 2012.  There should be no order in respect of indirect telephone contact and the father should have additional contact including holiday contact as can be agreed between the parties.  In essence, the current arrangements were working for B, who had improved since the proceedings had quietened down.  This was reflected in her school work and from the reports provided by JFCAS and her school teachers.  She was benefiting from having a single home and it was essential that she had continuity. 

Legal principles

20.      These proceedings concerned the upbringing of B and therefore her welfare was the paramount consideration (Article 2(1) of the Children Law).  As this was an application under Article 10 of the Law for a residence order, Article 2(3) of the Children Law required that the Court should have particular regard to:-

"(a)     the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding);

(b)       the child's physical, emotional and educational needs;

(c)       the likely effect on the child of any change in his or her circumstances;

(d)       the child's age, sex, background and any characteristics of the child which the court considers relevant;

(e)       any harm which the child has suffered or is at risk of suffering;

(f)        how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs; and

(g)       the range of powers available to the court under this Law in the proceedings in question."

21.      The leading case on shared residence orders is that of B-v-A [2010] JRC 172, where the Court found that there were two categories of case where shared residence orders should be made, quoting from the judgment of Birt, Bailiff, at paragraph 40 and 42:-

"40.    We draw from these cases the principle that shared residence orders should be made in two categories of case (ignoring the third for the moment).  The first is where such an order reflects the practical realities of the children's lives; also referred to by some judges as the situation on the ground.  The importance of this requirement has been repeatedly stated, as is shown from the emphasised passages in the extracts cited earlier.  The requirement for shared residence to reflect the practical realities does not require there to be an equal division of time spent between the parents, but it requires the court to be able to answer Ward LJ's question in Re H in the second manner which he gives, namely 'oh we live with mummy for part of the time and with daddy for the other part of the time'. 

41.      ...

42.      The second ground upon which a shared residence order may be made is that referred to by Potter P, namely where it is psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.  This second category has been subject to some criticism (e.g. Gilmore at p. 289) on the ground that, read literally, it suggests that a benefit to the parents alone would be a good reason to make a shared residence order.  Given that the child's welfare must always be the paramount consideration in such cases, we do not believe the President was intending to suggest this and we have no doubt that, although he did not spell it out specifically, the President was saying that there may be benefit to the child as a result of the benefit to the parents in emphasising the equality of their position and responsibilities". 

22.      It is worth setting out the question posed by Ward LJ in Re H (Children) [2009] EWCAQ Civ 902 at paragraph 13:-

"13.    So the court, as Thorpe LJ said there and has been repeatedly said elsewhere, for example by Wall LJ himself, then in the Family Division case of A-v-A [2004] 1 FLR 1195, where his Lordship was concerned to point out that a shared residence order must reflect the reality of the children's lives.  Where the children are spending a substantial amount of time with both parents, a shared residence order reflects the reality of their lives.  Hale LJ had made the same point in the case of Re A [2001] FLR 495, that a residence order is about where a child is to live and it is not about status.  I want to emphasise that here the father's status is recognised by the parental responsibility agreement and order which has been made.  That gives him equal say in how the children are to be brought up, so that when they are with him he will determine when they brush their teeth and when they go to bed and whether they have cornflakes or porridge for breakfast.  The day-to-day decisions of their lives rest with whomever they are living with at the time.  Any major decision about their future, if it cannot be agreed, is for the court to resolve on complaint by one about the decision taken by the other.  So in terms of status he has it, and shared residence is not going to affect status.  Shared residence is about the reality of where they live.  And the best test I can think of, though my words of wisdom on the subject do not seem, fortunately, as readily to find their way into the law reports, my practical test is to postulate the question, ask the children, where do you live?  If the answer is 'I live with my mummy but I go and stay with my daddy regularly', then you have the answer to your problem.  That answer means a residence order with mummy and contact with daddy, but if the situation truly is such that the children say, 'oh we live with mummy for part of the time and with daddy for the other part of the time', then you have the justification for making a shared residence order."

23.      At paragraph 47 of B-v-A, Birt, Bailiff, made reference to the possibility that the landscape in relation to shared residence orders was changing:-

"47.    For example, we were referred to the observation of Mostyn J in Re AR (a child):relocation [2010] All ER (D) 236 where the judge went as far as to say that a shared residence order nowadays is the rule rather than the exception, even where the quantum of care undertaken by each parent is decidedly unequal.  We do not think that that observation can stand with the principles enunciated by the Court of Appeal in the cases which we have cited and we do not think that that is the position in Jersey at present.  It may well be that matters continue to develop and shared residence orders may become more common than they are at present.  However, this is not the case in which to effect a radical change in practice.  As already mentioned, there was little argument in the court below, the court welfare officer was against a shared residence order and she did not have the opportunity of elaborating or defending her views in evidence.  Should the case law develop further in England or Wales, this court can consider, in the appropriate case after full consideration of the evidence, whether to follow suit or not."

24.      In T-v-T [2010] EWCA Civ 1366 (published after B-v-A), the English Court of Appeal disagreed with the observations of Mostyn J in Re AR that shared residence orders were the rule rather than exception.  Counsel submitted and we accepted that there had been no change in the English landscape and that the position in Jersey was as set out in B-v-A.  We take each of the two categories in turn. 

Practical realities of B's life

25.      We can deal with the first category of case set out in B-v-A in short order.  The facts are very similar to those in B-v-A, where the father saw the child concerned every Wednesday night and on alternate weekends from Friday through to Sunday (one night less than the arrangements with B).  We had no doubt that B lived with the mother and stayed with the father regularly.  Although the specific question posed by Ward LJ had not been put to B in her interview with Eleanor Green (understandably) she referred to thinking in the past about "living with Dad" from which it is implicit that in her view she lives with the mother.  There was no question in the Court's mind that she would answer the question posed by Ward LJ by saying "I live with Mummy but visit Daddy".  A shared residence order would not, therefore, reflect the practical realities of B's life, or as referred to by some judges, the situation on the ground. 

Psychological benefit to the parents

26.      The parents were not married and the father was deeply aggrieved at discovering his lack of status in relation to the children after the separation.  He told us that having obtained parental responsibility for B in July 2011 by agreement, he withdrew his application orally in Court, but the Court continued notwithstanding to order welfare reports.  He felt that by continuing in this way he was being abused by the Court and that the authorities were conspiring against him.  Leave is of course required to withdraw proceedings and we can see no record of leave being given.  In any event we note that the father brought another application on the 29^th September, 2011, for a residence order in his favour for B.  

27.      Even though he now had parental responsibility for B, he still felt he was treated by the schools and authorities as a second-class citizen, with no say in her upbringing and schooling.  He talked in terms of fighting this case for his rights to be equal to the mother.  He told us he would be campaigning to get the law changed so that fathers automatically obtained parental responsibility on the birth of a child.  The application was therefore much about his status. 

28.      Clearly, he felt that a shared residence order would be of psychological benefit to him, although he acknowledged not to the mother, who would feel she was losing.  It would, he accepted, be of limited direct benefit to B, who would not understand it, but he saw it as a stepping stone towards B living with him, from which he felt that she would benefit.  He described the routine that he would have with her, how he would help with her schooling and the fun they would have.  He did not agree with the mother and Eleanor Green that B had improved - there were still concerns in his view over her bedwetting.  

29.      He was very critical of the current contact arrangements.  Over the weekend when she did not stay with him, he had no contact with her for a week, which he described as "terrible".  A week, he said, would be "like five years for her".  During that time, he asserted that the mother would not let her call him, even though she repeatedly told him that she wanted to talk to him when with her mother.  He felt she must be free to phone him whenever she wanted in order to express herself.  He was not "hands on" with B and wanted to be. 

30.      The mother described how traumatic the separation had been for both girls.  A was under great pressure with divided loyalties.  If she pushed for contact with A it caused arguments and if A was seen to be too friendly with the mother that seemed to upset the father.  She had had to back away from A and described her decision to live with the father as heartbreaking for both of them.  The reason for A's move was not before us, but it was clearly a complex situation and sad for the mother, who said it was difficult "to be a mum from a distance". 

31.      B had been behind in her reading and tables, but had now settled and was making real progress.  The mother was very much involved with working with her school and her priority was consistency; to keep to the settled routine as much as she could.  She did not agree with a shared residence order and feared the father would use it to persuade B to live with him, thus alienating the mother completely.  She did not want to go down the same road as A.  Basically, she felt the father regarded the shared residence order as something that would enable him to control B.  She agreed with Eleanor Green that B just needed to be left alone by the Courts. 

32.      In terms of telephone contact with the father, the mother agreed that she didn't encourage it as the father would take advantage of such contact to make arrangements directly with B, affecting her time with the mother, which placed the mother in a difficult position.  The tension between the parents was such that B would get upset whenever she spoke to one on the phone when living with the other.  There was no restriction on her calling the father at any time; in addition to the house landline, B had an iPhone and iPad (both given to her by her father).  The fact of the matter was that she never asked to contact him.  She could phone, but the mother was not sorry that she didn't, as that enabled her to settle better.  For the same reason, the mother did not attempt to telephone B when she was with the father. 

33.      If she had a choice, she would restrict contact in the term time to alternate weekends, dropping the overnight Wednesday stay.  B was an "early night girl" ready for bed by 8:00pm.  When she stayed with the father on the Wednesday , it inevitably became a late night, which made her tired the next day; and that was not good for her schooling.  From an educational point of view, it would work better if she was consistently with the mother during the week with extra contact for the father in the school holidays, but B had now got used to it and looked forward to it. 

34.      In essence, she felt this application for a shared residence order for B was all about the father's needs and not those of B and the father's need to be in control. 

Expert evidence

35.      The father arranged for Dr Williams to give evidence and the mother Dr Briggs.  Dr Williams had not seen B for over a year.  He had been very concerned about her then, as she looked unwell and very distressed.  He was pleased to hear of her improvement.  He talked of how when parents separate the "circle of security" breaks and the children cannot rely on them to keep them safe.  The child's needs can become secondary to the needs of the parents. 

36.      He was not an adult psychologist, but he was competent to advise on parenting.  He asked if the parents had moved on from their mutual hostility and if not, why not.  At the time he had prepared his report, the father had a lot of fire in him and had been hard work.  In his view, the mother was more reasoned and child-focused and it was clear that she was working hard with B's school.  He was concerned that there was evidence that the father's "ferocious behaviour" had made it difficult for the children to have a free relationship with the mother, who felt under siege from the father. 

37.      A shared residence order might help, but it was a piece of paper.  It really depended upon what the parents did with a shared residence order; his fear was that the father would see it as giving him a better hold of the rope in the tug of war with the mother.  Ultimately, it was not a legal issue.  You could throw the whole law at them, but the issue is whether they had got the message that they must come together to parent B.  He had met with them together and said that when you get them into parenting roles "they get it".  What was stopping them moving on?  He felt he needed another six sessions with them. 

38.      Whilst Dr Briggs had not seen the parents for over a year, he said that there had been little change in their psychological makeup, although they may have mellowed with time. 

39.      His written report was critical of the father.  He had addressed two of the questions put to him in his instructions in this way:-

"As far as your expertise allows you to do so, please give an opinion how such a difficulty or disorder may affect his functioning, including personal relationships and ability to parent?

I worry that [the father] is threat sensitive, brittle, aggressive, hostile, egocentric, unpredictable, lacking in empathy, charming, plausible, street-wise and uncompromising.  He presents as free of major mental health problems however.  I believe his history, i.e. his exposure to intimate partner violence, his sexual victimisation, his exposure to an alcohol misusing father, and his sense of being unprotected (as a child) have led to him experiencing difficulties in sustaining healthy intimacy in his relationships with others.  I believe also that it has compromised his parenting capacity to the point where on occasions he may have difficulty understanding his children's emotional and psychological needs and that on occasions he may prioritise his own emotional and psychological needs before those of his children.  I believe he is vulnerable to hostility within relationships and to intimate partner violence within his relationship to [the mother]. 

Please describe his ability to fulfil the children's residence and contact needs now?

I stated above I have concerns that [the father] may struggle to sustain meeting the emotional and psychological needs of any child in his care longer term.  I worry that he may resort to over controlling, somewhat psychologically clumsy parenting practices on occasions and that he will struggle to set aside the differences he has with the children's mother.  These difficulties are likely to resurface if the children were to live with him or to have contact with him."

40.      He advised that fundamentally the mother was focused on and had empathy for the children, but he balanced his criticism of the father with the following:-

"As far as your expertise allows you to do so, please give an opinion how such a difficulty or disorder may affect her functioning, including personal relationships and ability to parent?

I have offered a critical report on [the father].  For the sake of fairness and balance it must be acknowledged that [the mother] may not have been the easiest of partners to live with.  She carries the scars of her unfortunate upbringing and the parenting models she was exposed to, the abuses she experienced, and the threats to her esteem and self-worth that were generated by her being bullied at school.  The relationships she has had in adulthood have not necessarily served to enhance her sense of self-worth and well-being.  There may be times when [the mother's] anxiety surfaces and makes for difficulty in her relating calmly and reasonably with [the father].  When her mood is low and she is feeling uncertain she may not always be most sensitive to the children's needs.  She too has to be careful how she portrays her relationship with [the father] to the children and has to be guarded in comments she makes about the children's father. 

I have not determined anything from this assessment to raise fundamental concern that [the mother] cannot offer both children healthy parenting.  Were she to be less anxious, were her mood to be more buoyant and were she able to set aside her frustration and hostility towards [the father] the prognosis for the healthy parenting of the children here appears good."

41.      In addressing the question of whether a shared residence order would be psychologically beneficial to the parents, Dr Briggs was mindful of the father's psychology.  He was maltreated in his formative years and had developed coping strategies which persist.  He had a need to control his environment and relationships.  He was focused on physical security (employment, finance, accommodation).  If granted a shared residence order, he would feel he had gained control of the situation and to that extent, his hostility may reduce.  But we were still dealing with a collision of two damaged people, both of whom had been maltreated.  Neither had sustained long-term therapy to address this and they were still therefore damaged goods.  They were tied through their children so there will be times, regardless of orders made by the Court, where collisions will occur - with a shared residence order, their relationship will not be free of difficulty. 

42.      Whilst the father needed to be in control, the mother tended to withdraw into herself and become anxious and of low mood.  A shared residence order would increase her anxiety and sense of relative powerlessness.  The likelihood of tensions in their relationships would be increased. 

43.      Miss Heath asked whether the father's apparently successful parenting of A would be an indication of how well he would parent B if she came to live with him.  Dr Briggs acknowledged that the father had apparently parented A well, but he had two caveats:-

(i)        He didn't know A's psychological makeup.  There were suggestions that she had been frightened of the father and somewhat appeasing of him.  Their relationship may not therefore be all it seems. 

(ii)       There will continue to be "collisions" between the parents. 

44.      She asked whether the making of a shared residence order could be good for the mother psychologically in that it would help her to move on from the hostility that had been referred to in his report.  He thought this was unlikely, and that it was more likely that it would exacerbate the problem.  These are, he said, deep seated traits playing out and there will continue to be difficulties whatever orders were made. 

45.      Dr Briggs accepted that a potential benefit of a shared residence order could be that the father would feel more in control and feel that the Court had listened to him.  There was a possibility therefore that he would not feel the need to resort to aggression in the future but it was impossible to quantify this.  However he said the father's antennae had been finely tuned to perceive threats and injustice and even if this issue was taken away, the antennae will still be attuned to look for further threats. 

46.      We have already made reference to parts of Eleanor Green's report above.  In evidence, she advised us to be cautious about any changes.  B had begun to settle.  She had been very behind but had really begun to make progress at school, with which her mother was heavily engaged and she was catching up, progressing in leaps and bounds.  Any changes to the regime would have to be undertaken carefully and sensitively.  The teachers at her school had also stressed the need to be cautious about any changes to her routine, when she was making real progress. 

47.      Her interview with B had been disturbing for her.  She looked beaten down by having to deal with the parents' conflicts again.  She seemed angry with her and deeply resentful of a process which Eleanor Green felt was destructive for her.  She needed to be left alone. 

48.      She urged that the proceedings should stop and no further applications should be made.  In her view a shared residence order where there was a high level of conflict could be very destructive for children moving, as they would, between war zones with no respite.  She feared that a shared residence order would be a platform for the father to bring further applications and for the proceedings to be perpetuated. 

Decision

49.      We have not summarised all of the evidence adduced before us, which we can confirm we have considered, and have limited this judgement to those findings which we feel are central to the main issue before us, namely whether there should be a shared residence order for B.  Some time was taken up at the hearing dealing with past incidents and difficulties between the parties over which it is not necessary or desirable to make findings of fact.  We were shown, for example, past sms text exchanges, often in isolation or out of context, from which we could draw no conclusions save that they demonstrated the past and continuing state of relations between the parties.  

50.      For the purposes of a shared residential order under this category, it is necessary to show that it would be psychologically beneficial to the parents "in emphasising the equality of their position and responsibilities".  This is not a case, in our view, where the equality of the parents needs emphasising.  The father has equal status to the mother as a matter of law and we find that she has not attempted to marginalise the father or abused the residence order she has for B in any way.  If anything we felt it was the mother who was under siege; to us she looked jaded and withdrawn by the whole process. 

51.      We accepted the mother's evidence that she did not prevent B from contacting the father when she was with the mother (something that is in this modern day practically impossible in any event, bearing in mind that B has both an iPhone and an iPad) and we agree with the mother that it was better for B to settle with each parent without the emotional disturbance of contacting the other; an emotional disturbance likely to persist for so long as their relationship remains so acrimonious. 

52.      The father complains at the mother's rigid adherence to the regime laid down, but we agree with the mother that B's welfare requires a settled routine.  Where the parents are unable to cooperate, that becomes all the more important, as it ensures stability and reduces the opportunity for confrontation. 

53.      The reality is that the parent with whom a child lives will inevitably have more day to day control of that child, in particular in relation to that child's schooling than the parent who has contact, but it would appear from Dr Briggs' psychological assessment of the father that it is this lack of control that he finds so difficult.  If so, then as the mother contends, this is all about the father's needs and not about the needs of B. 

54.      In any event, the psychological evidence of Dr Briggs simply did not support the proposition that a shared residence order would be psychologically beneficial for both parents.  It might benefit the father, but would be detrimental to the mother.  Even if it benefited the father we were conscious of Dr William's fear that he would see it as giving him a better hold of the rope in the tug of war with the mother. 

55.      In our view, this application was principally about the father's status (which Re H makes clear a residence order should not be about) and his control of B.  The father was explicit in his affidavit that he saw this application as a stepping stone to B coming to live with him full-time.  It is for him the start of a process which, sadly, we fear may continue until, like A, she will be under his control. 

56.      The father's application was premised upon the alleged wishes of B that she wished to live with the father.  It seems likely that B would want to say things that would please the parent she was with as she loved them both and in particular (bearing in mind the father's psychological makeup) to say things that would please the father when with him, but when interviewed independently by Eleanor Green, she did not express such a wish.  She made no mention of needing or wanting telephone contact with her father and she did not ask for additional indirect contact of any kind.  The father's position was fatally undermined in this respect. 

57.      We conclude that it would not be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities for a shared residence order to be made and we decline to make such an order. 

58.      The father's approach to parenting B appears to be that her wishes should prevail.  This is echoed in that part of Eleanor Green's final report where she says at paragraph 4(d):-

"d.       B wants to go to S School rather than P.  She is aware her father wants her to go to S School because 'he wants what I want'.  She believes her mother wishes her to attend P 'because she thinks it's a better school'".

Thus, if B wants to go to S School, that is where the father says she should go.  

59.      We appreciate that a child's wishes are of importance, increasingly so as the child gets older, and they are one of the factors to take into account under the welfare checklist, but to simply give effect to a child's wishes without more is, we think, an abandonment of parenthood. 

60.      We have no view on whether P is a better school than S School but we have an anxiety that the father's support for S School, which is situated close to his home, may be influenced by his desire to have B live with him, following in the footsteps of her sister; in other words part of his need to be in control.  Equally it could be that the mother might be against S School because she may fear it may lead to her losing B to the father.  We note that a decision about her secondary schooling will be made next year, but can only express the hope that it will be made on the basis of what is best for her educationally and socially, not just on what she may want; albeit that her informed views will be important. 

61.      We heard compelling advice for there to be an effort to reduce the harmful effects of hostilities between the parents and for them to put the needs of the children above their own.  A would appear to have been sufficiently grounded and mature to have developed coping strategies to deal with that hostility; coping strategies that the experts did not believe B has.  Eleanor Green said in evidence "...there have been emotionally abusive facets of the parenting experience.  The high level of acrimony has spilled over onto the children.  A has escaped it; B can't.  The parents must heed all the experts and put a stop to this."  As Dr Williams said "...when the children are put in the position of having to hold cohesion in their family rather than their parents doing it, they suffer". 

62.      This brings us to an aspect of this case which, if addressed, we think will contribute most to an improvement in the relations between the parents, which in turn will be of benefit to B and that is the removal of the insecurity the mother must feel as to her position with B, having in effect already lost A and knowing of the father's desire to have B living with him.  We can think of nothing more likely to fuel that insecurity than the father's desire and open campaign in this respect, leading, if brought about, to what she will perceive as the loss of both children. 

63.      In his report Dr Briggs expressed the view that the mother's anxiety and low mood, which we felt still persists (not surprisingly bearing in mind how long these proceedings have gone on), will improve once the proceedings are concluded and final decisions made regarding the children's future.  We agree with that and can do our part by making the appropriate orders, but what is really needed to remove that insecurity and ultimately for B's benefit is for the father to cease his campaign and to positively endorse and support the current arrangements whereby she lives with the mother but has regular and generous contact with the father. 

No Further Applications

64.      In the closing part of his skeleton argument filed on 31^st May, 2013, Mr English sought an order preventing the father from returning to Court in relation to B. 

65.      Proceedings have been on foot in relation to B since May 2011.  She has always lived with the mother and a residence order confirming this was made on 9^th November, 2011, when the basic regime for contact with the father was put in place and which appeared to have been settled on 14^th November, 2012.  Within two months, a new application was filed by the father for a shared residence order and an application made by him for B to be psychologically assessed for the second time. 

66.      We are acutely aware of the very detrimental effect the meeting with Eleanor Green to ascertain her wishes has had upon B and we deeply regret that such a meeting had to take place; unfortunately the father's application gave the Court no choice but to have her wishes independently ascertained.  We hear the strong advice of Eleanor Green that B should be left alone by the Courts and we accept it.  We are concerned to protect B from further proceedings and would be minded to impose a restriction upon the father requiring him to first seek leave before making any further applications in respect of B in relation to residence or contact. 

67.      However, Miss Heath had very short notice of this application and pointed out that we had not been given the benefit of authority on the making of such an order.  We will therefore hear submissions from the parties on whether or not an order should be made when this judgment is handed down.  The skeleton arguments with authorities should be filed with the Court in advance of that hearing. 

Contact

68.      When B met with Eleanor Green, she did express the wish that she would like one extra overnight with her father in the week when she does not see him at the weekend, so that there is not such a long gap between the two Wednesdays when she does see him.  Notwithstanding the importance of B's wishes, Eleanor Green did not recommend any change to the current contact arrangements, but if the Court felt that B should have more contact, then she recommended that this should be undertaken by adding an additional night to her weekend with the father, as an additional night in the week would result in too much moving around and increase the chance of conflict between the parents during handovers. 

69.      Miss Heath was instructed by the father during her closing submissions to ask for an extra night as this was B's wish, but she had some difficulty in saying when that extra night should take place.  Initially, she asked that it be added to the weekend contact, so that B would stay with the father from Friday night through to Tuesday morning, but that would give her one night with the mother before going back to the father on the Wednesday; disruptive to her schooling.  In the end, Miss Heath was instructed to seek an additional Thursday night added every second week to the Wednesday weekly contact.  That, we observe, would mean her staying with the father for two nights every other week; again, disruptive to her schooling. 

70.      In our view, it is important that B has a clear base with the minimum of disruption over school weekdays.  We agree with the mother that from the point of view of her educational progress the Wednesday overnight contact in the school term is undesirable, but it is now well established and it would be wrong to remove it.  Increasing it, however, presents difficulties.  We take those difficulties into account and bearing in mind the advice we have received both from Eleanor Green and the school for caution and sensitivity, we conclude that there should be no increase in the overnight contact with the father, notwithstanding B's wishes. 

A

71.      A is nearly sixteen and is living with the father.  As Eleanor Green pointed out in her report of 25^th February, 2013, there is simply no need for a residence order in her case, as it would have no practical impact whatsoever apart from possibly increasing her sense of fragmentation from her mother.  However, Miss Heath was clear that this order was sought not because A needed it but because the father needed it in order to claim certain tax allowances.  The Court record is clear that A has been living with the father from March/April 2011 and that should be sufficient for the purposes of claiming any relevant tax allowance, but in any event whether or not the father obtains a tax allowance has no bearing on the facts of this case upon A's welfare and therefore cannot be a ground for the making of a residence order and we decline to do so. 

Holiday contact

72.      The order of 14^th November, 2012, left the issue of holiday contact to be agreed between the parties and that has caused difficulty.  In her report of 25^th February, 2013, Eleanor Green made recommendations in relation to the holidays which thankfully are acceptable to the parties, namely that holiday contact between B and her father should be on the following terms:-

"a.       Two weeks off-island in the summer;

b.        One half term (off island);

c.        One week at Easter (off island or increasing contact for that week if remaining in Jersey);

d.        One week at Christmas (off island or increasing contact for that week if remaining in Jersey);

e.        increased contact for another half term;

f.         Christmas day to alternate between parents, unless either is off island.  If either wishes to take the children away for Christmas they should do it on a year when it is their 'turn' to have them on Christmas day, to avoid argument if possible."

73.      It would clearly be helpful to the parties to have the holiday arrangements clarified and we will therefore make an order to that effect.  

74.      In summary we decline to make a residence order for A and a shared residence order for B but will make an order dealing with holiday contact as above.  We will hear submissions as to whether the father should be restricted from making further applications in respect of B. 

Authorities

Children (Jersey) Law 2002.

B-v-A [2010] JRC 172.

Re H (Children) [2009] EWCAQ Civ 902.

T-v-T [2010] EWCA Civ 1366.