W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone.
Y (the Father)
Z (the Mother)
IN THE MATTER OF AN APPEAL AGAINST THE RULING OF THE DEPUTY REGISTRAR WITH REGARD TO DIRECT CONTACT
Advocate A. T. H. English for the Applicant.
Advocate L. V. Marks for the Respondent.
the deputy bailiff:
1. On 15th January, 2014, before the Registrar in the Family Division, Mrs Canavan, the court ordered that the applicant should continue have indirect contact with his children on the terms which are set out in the order; secondly that no further application should be made by him in respect of contact with the children for at least a year. The Registrar noted that the respondent had agreed to use her best endeavours to ensure that her husband encouraged the children to engage in the indirect contact.
2. The background facts which lead up to this order really are as follows. There are two children of the union between the applicant and the respondent, two girls, one born in 2002 and the other born in 2004. In the early days, after the parties' relationship came to an end, there were some proceedings before the Court. The respondent applied for a residence order in September 2005 and the applicant applied for a residence order some 6 or 7 days later. Interim contact for the applicant was awarded later on in September. In October, by consent, the applicant was given parental responsibility and there was a residence order for the mother with interim contact for the applicant that took place at a case review hearing. In January 2006 the outstanding applications were dealt with as follows; with an interim residence order for the mother; an interim contact order for the applicant and the matter was adjourned sine die. In March 2006 the applicant submitted an application for a prohibited steps order and in April that application, and the applicant's application for a residence order and contact, was adjourned to a case review hearing. In May 2006 the parties reached agreement. Leave was given to withdraw the application for a residence order and contact, the order for interim contact ceased and the parental responsibility order continued.
3. So there we had the position, with the children then aged 4 and 2, which was settled as between applicant and respondent. And so it remained, apparently, for 6 years until 2012. In the interval, I am told that no contact took place between the applicant and the children. In April 2012 there was an application for indirect contact moving through various stages to overnight contact, which the applicant submitted was appropriate. In May 2012 a case review hearing date was fixed and various other orders were made. There was an initial recommendation report from JFCAS in May 2012 and the suggestion there was no contact. Orders were made for a report to be prepared, Dr Briggs was asked to prepare reports on both parties. Alcohol and drugs reports were ordered, the psychiatric social worker was to summarise her involvement in the applicant's treatment and a final hearing date was fixed for 22nd and 24th October, 2012.
4. Immediately before that final hearing date there was a consent order which was that there would be bi-monthly contact by letter; JFCAS would undertake work with the children, the applicant would take a parenting course and would engage with the alcohol and drugs service for a period of 6 months; he would request support from the psychiatric social worker or an alternative therapist and a case review hearing date was fixed for May 2013 with further reports from JFCAS. Alcohol and drugs and the psychiatric social worker ordered.
5. When that hearing took place the Registrar had the advantage of a further report from JFCAS which recommended indirect contact to continue and the orders made were that the applicant could continue writing letters through JFCAS, the respondent would write letters with input from the children and the applicant could present cards and presents on birthdays and Christmas; and a case review hearing date was fixed for 15th January, 2014 with an updated report from JFCAS at that time.
6. And so one arrived at the position at January 2014 where there was a case review hearing at which orders were made as I have described, in paragraph 1 of this judgment.
7. The information available to the Family Registrar was that the two girls did not want to have any contact with their birth father. The eldest girl was quoted as saying that she did not want, under any circumstances, to have contact with her father. She was highly anxious about the idea of it. She just wanted the application to go away. She did not regard the applicant as being her father and she was unequivocal in her view that she did not want to have contact. The younger daughter expressed similar views although perhaps in slightly different terms.
8. The applicant is concerned that either his former partner, or her husband, places some pressure upon the girls to express their views in the way they have to the JFCAS officer in the case. For her part, from what I am told, the JFCAS officer does not consider any such pressure has been imposed. There is no doubt under Article 12(3) of the Children (Jersey) Law 2002 that the Court had power at any stage to make Article 10 orders. That Article provides expressly that the Court can make an Article 10 order even though it is not in a position to dispose finally of the proceedings, and in my view it is clear that therefore that paragraph is dealing with the making of interim orders.
9. When one looks at the terms of the Acting Registrar's order of January 2014, it has all the hallmarks of being a final order. I say that because the present position is to continue and no further application is to be made for at least a year. So no further case review hearing date has been fixed and it cannot have been in the mind of the Acting Registrar that the parties would be taking any further procedural steps. She explained her reasoning in relation to this order in this way "whilst I could just have refused to fix a date for a further CRH, there would be nothing to prevent the applicant from filing a further application in 6 months' time. Having considered the content of the reports of the JFCAS officer and hearing the opinion she expressed at the hearing I considered it would not be in the best interests of the children for this matter to continue indefinitely and therefore made the order that no further application should be made for at least one year."
10. So it is clear that the Acting Registrar thought that she was disposing of the matter as between the parties at this time. Indeed if one asks the question what would happen at the end of 12 months, was there anything still going forward, the answer is no. It was clearly anticipated that it would then be a matter for the applicant to make a further application.
11. The applicant appealed against the order of the Acting Registrar and I sat on 26th February to give directions in relation to that appeal. What was immediately troubling was that what appeared to be, for the reasons I have given, a final disposal of the application was dealt with without any formal evidence being taken, although the JFCAS officer did submit a report to the Court and was asked some questions by counsel; but there is no transcript of evidence and there was no other evidence than that which was available from the JFCAS officer.
12. Rule 16 of the Children's Rules 2005 makes provision for case review hearings. The provision is as follows:-
"Case review hearing
(1) The case review hearing shall be conducted with the objective of defining the issues and encouraging the parties to address contentious issues in a way that is consistent with -
(a) the welfare; and
(b) the long term interests,
of the child.
(2) At the hearing the Greffier -
(a) shall determine the extent to which any questions seeking further information must be answered, and give directions for the production of such further documents as may be necessary;
(b) shall give directions, if not already given at the PDH, about -
(i) obtaining and exchanging expert evidence, if required, and
(ii) evidence to be adduced by each party and, if appropriate, about further chronologies or schedules to be filed by each party; and
(c) may direct any one or more of the following -
(i) that a further case review hearing be fixed,
(ii) that the case be fixed for final hearing and, if that direction is given, the Greffier must determine whether or not the case is to be heard by the Inferior Number, or
(iii) that the case be adjourned for alternative dispute resolution, to include mediation, or for private negotiation or, in exceptional circumstances, generally.
(3) The parties must attend the case review hearing in person unless the Greffier orders otherwise.
13. I am told by counsel that from time to time at case review hearings the Registrar or Acting Registrar will make final orders but these are orders made by consent and to the extent that they are consent orders that appears to me to be unobjectionable. It is simply using the opportunity of the case review hearing to make a final order which the parties agree ought to be made. However in this case certainly no one was expecting the order made under Article 66 of the Children's Law and the order was not made by consent. It seemed to me to be clear at the directions hearing that there would be a problem in dealing with the appeal because there was nothing in evidence in a transcript where one could assess the reasons for the Acting Registrar's decision. We have reasons but we do not have anything against which those reasons can be tested.
14. In the circumstances I suggested to Advocate Marks that she might wish to consider with her client whether the appeal should be conceded on this technical ground. Today I am told that she has instructions from her client to make that concession and accordingly I am asked to endorse a consent order to the effect that the Acting Registrar's decision of 15th January should be set aside by consent and I agree. For the formal reason is that no evidence was formally taken before the Registrar gave what amounted to be a final decision. Nothing has been transcribed there is nothing solid in which we can exercise a judgment as an appellate court on those proceedings. Secondly a case review hearing is essentially a procedural hearing and although final orders can emerge from the hearing that must be by consent.
15. The procedural issue which arises because no transcript of evidence have been made available is just why final orders do not emerge from a case review hearing except by consent. The parties have not geared up for a contested hearing and evidence has not been produced.
16. So for those reasons the appeal is allowed by consent and I direct that the matter be returned to the Acting Registrar. I expect she will want to convene a directions hearing shortly so that the father can bring his application, bring all his evidence, put forward authorities and the mother can answer and the directions can establish the proper framework in which that can take place. The guardian's report will then be available, JFCAS will be available and she can be cross examined.
17. This is one of those cases where the Acting Registrar may wish to consider whether it might be desirable to appoint an advocate the children. I say that because it may be that the presence of an independent advocate acting for the children might assist the father in his approach to the questions which arise on his application. I said on the last occasion that I was troubled by this application. I feel deeply for the father's anguish but at the same time he has to recognise that he has been out of these children's lives for 7 years or so. They are now at an age, with puberty around the corner, as it were, when they are at their most sensitive. There may well come a time when they will want to make enquiry of their birth father and they may well want to have some contact by the time they are 15 or 16, if not earlier. No court order for contact is going to work in practice in any event against their wishes. This of course is not binding guidance given to the father, but he must recognise that the mere fact of proceedings which puts the children's future in question can be upsetting to children who most of all want to have security and stability in their lives.
18. I can well understand why the Acting Registrar thought that it would be appropriate to make the orders which she did but that does not, in a legal sense, justify them because they were not made in a procedurally correct way for the reasons I have given. But the father should not be under any illusions that success on this appeal, on this technical ground, is going to help his case in the long run. I give this obiter guidance to him because he may well wish to consider whether his best chances of an ongoing relationship with his daughters in the future will lie in just accepting the position until such time as they are older and able to cope with the challenges which the present facts present, and I say that against a background of recognising entirely the anguish which this father may feel at the moment.
Children (Jersey) Law 2002.
Children's Rules 2005.