Jersey Unreported Judgments

Matrimonial - application in relation to Article 66(8).

[2014]JRC110

Royal Court

(Family)

13 May 2014

Before     :

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

 

The Applicant appeared on his own behalf.

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

Advocate C. G. Hillier as amicus curiae.

judgment

the commissioner:

1.        When handing down our judgment of 5^th August, 2013, (JRC 157), the Court invited submissions from the parties on the mother's application for an order preventing the father from making any further applications in relation to their child B. 

2.        The parties filed their written submissions in August 2013 but for a variety of reasons including the Court itself vacating a date that had been fixed, oral submissions were not made until 10^th March, 2014, when the father represented himself, but the Court was assisted by Advocate Hiller as amicus curiae appointed pursuant to the Court's judgment of 23^rd January, 2014, (JRC 021). 

3.        This is to be read as an extension of the judgment of 5^th August, 2013, ("the Judgment") and we adopt the same definitions.  The parties have helpfully filed skeleton arguments and authorities. 

4.        Article 66(8) of the Children (Jersey) Law 2002 ("the Children law") provides as follows:-

"66 (8) On disposing of any application for an order under this Law, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Law of any specified kind may be made with regard to the child concerned by any person named in the order without the leave of the court."

Principles to be applied

5.        In the case of In the matter of T [2010] JRC 126, the Court had regard to the guidance given by the English Court of Appeal in the case of Re P [1999] 2 FLR 573 in relation to section 91(14) of the Children Act 1989, which is in the same terms as Article 66(8) of the Children Law.  It is worth setting out the relevant part of the judgment of Butler-Sloss LJ commencing at page 592:-

"From the cases which I have cited above, it can be seen that the most likely reason for granting a restriction requiring leave to make an application is where the applicant has already made repeated and unreasonable applications with no hope of success.  In those cases the applicant must have crossed the line between a reasonable application and one which is both unreasonable and has become or is becoming oppressive.  The operation of the section is not however limited to oppressive or semi-vexatious applications.  Orders have been made pre-emptively to apply to cases where the conduct of the applicant has not yet reached that level or there is no criticism of the applicant's conduct but none the less there are circumstances where, in the best interests of the child, it is necessary to prevent unmeritorious inter partes applications.  It is always a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the Court.

...

Guidelines

(1)       Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.

(2)       The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.

(3)       An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.

(4)       The power is therefore to be used with great care and sparingly, the exception and not the rule.

(5)       It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.

(6)       In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.

(7)       In cases under para (6) above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

(8)       A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.

(9)       A restriction may be imposed with or without limitation of time.

(10)     The degree of restriction should be proportionate to the harm it is intended to avoid.  Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.

(11)     It would be undesirable in other than the most exceptional cases to make the order ex parte."

6.        It is important to stress that we are not dealing here with the possible imposition of an absolute prohibition on the father making an application to the Court - such a prohibition would have to be made under the inherent jurisdiction of the Court and no such prohibition is sought here.  As Butler-Sloss LJ said at page 593:-

"It was suggested to us that s 91(14) may infringe the Human Rights Act Fundamental Freedoms 1950, Art 6(1), by depriving a litigant of the right to a fair trial.  I do not consider that submission to be correct.  The applicant is not denied access to the court.  It is a partial restriction in that it does not allow him the right to an immediate inter partes hearing.  It thereby protects the other parties and the child from being drawn into the proposed proceedings unless or until a court has ruled that the application should be allowed to proceed.  On an application for leave, the applicant must persuade the judge that he has an arguable case with some chance of success.  That is not a formidable hurdle to surmount.  If the application is hopeless and refused the other parties and the child will have been protected from unnecessary involvement in the proposed proceedings and unwarranted investigations into the present circumstances of the child."

7.        The father drew my attention to the case of Re A (a child)(Order: Restriction on applications) [2009] EWCA Civ 1548 where Wilson LJ, applying the guidelines in Re P, warned against the over-zealous use of such orders.  However, in that case, there had been a very short hearing, the judge had no bundle and was therefore unaware of why the parties were appearing before her, neither party had applied for such a restriction, there had been no evidence heard and the judge had not invited submissions from either party about the propriety of making such an order.  The imposition of such a restriction was the judge's instinctive reaction to the case, which was a wholly illegitimate foundation for the order in the light of the jurisprudence.  None of this applies in the case before us. 

Application of the principles to this case

8.        Working from the documents filed with us, it would appear that litigation in relation to the two children started on 20^th May, 2011, when the father applied for a residence order in relation to the eldest child, A, and parental responsibility for the youngest child B.  On 29^th September, 2011, the father applied for a residence order and/or a contact order in relation to B.  The interim order of 9^th November, 2011, shows that by consent it was agreed that both children would reside with the mother, with the father having contact.  On 19^th December, 2011, four days were set aside for the hearing of the application for the residence/contact orders in respect of B.  Psychological reports were ordered in relation to B and psychological and psychiatric reports ordered in relation to the parents, in addition to reports from JFCAS. 

9.        On 12^th April, 2012, the Court, having read the reports of the child psychologist, the adult psychologist and the adult psychiatrist together with the report of JFCAS ordered an investigation into the welfare of the children pursuant to Article 29 of the Children Law, where such an investigation can be ordered if it appears to the Court that it may be appropriate for a care or supervision order to be made.  The child psychologist had expressed grave concerns in particular over the emotional wellbeing of B.  At that stage, A had elected to live with the father and it was therefore ordered that there no longer be a residence order for A in favour of the mother. 

10.      The Article 29 report was issued on the 7^th June, 2012, and said that whilst the separation of the parents had had a significant impact on the children, there was no evidence to suggest the risk of immediate harm requiring action in the form of public law proceedings.  However, the report recommended that any outstanding financial, residency and/or contact matters that were then before the Court be finalised as quickly as possible. 

11.      In the report of the JFCAS officer, Eleanor Green, of 27^th October, 2011, she advised at paragraph 46 as follows:-

"46      Both children have been considerably affected by the conflict between their parents and need this to stop.  They need consistency, routine and to know that the practicalities of their lives are not going to be conducted within the war zone of their parents' relationship.  Both are exhibiting signs that their emotional wellbeing is compromised and should this not improve and their parents not be able to set aside their differences (at least around them) then I have real concerns about the ongoing impact on the children."

12.      On 14^th November, 2012, following the recommendation of Eleanor Green that there should be no change in the residence of B, the current contact regime in favour of the father was put in place.  It was thought by the mother's legal advisors that this order resolved the position in relation to B, namely that she resided with the mother with the father having generous access.  On the same day the Registrar referred the mother's Schedule 1 financial application in relation to B up to the Royal Court.  The father, who hitherto (bar one hearing) had represented himself, then retained Advocate Heath to represent him and on 10^th January, 2013, he filed an application seeking a shared residence order in respect of B--he also sought a residence order in respect of A who was living with him. 

13.      At a directions hearing on 15^th January, 2013, the father sought a further report from the child psychologist in relation to B. I said this:-

"Turning to the father's application for a residence order for [A] and a shared residence order for [B] this is a case in which there have been multiple reports which I have not had time to absorb, but it would seem that issues of residence and contact were resolved on the 14th November, 2012, although I accept that the father was not legally represented then.  Miss Heath has asked for a further report from Dr Williams and potentially from JFCAS, which would involve the children being interviewed again.

I am very concerned about the harm that might be caused by having these issued raised again with the children.  The father is of course entitled to make his application, as he has done, but I am not prepared to proceed further at this stage without the advice of JFCAS.  Miss Ferguson was only available this morning for a short period of time and I therefore do not have that advice at the moment.  I am therefore going to adjourn the father's application so that JFCAS can prepare a report for the Court, without seeing the children, as to whether or not it advises that a further report from Dr Williams is both necessary and in the interests of the children."

14.      Eleanor Green of JFCAS gave the following advice in her report of 25^th February, 2013, at paragraph 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.      At a directions hearing on 6^th March, 2013, and following receipt of that report, I said this:-

"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 teachers who work 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."

16.      I went on to make this plea on behalf of B:-

"I do harbour an underlying concern that this application may be connected with or influenced to some extent by the financial issues between the parties and it is the resolution of those issues, that I feel the energy of the parties should be focused. I question if it really is necessary for there to be a hearing in June, in particular in respect of [B]. The mere existence of the proceedings, of which the children are bound to be aware, places stress and pressure upon them when as Miss Green says they need to be left alone. I urge the father and his counsel to consider very seriously whether this application really is for the benefit of [B] and whether it really is necessary for it to continue"

17.      As recited in paragraph 13 of the Judgment, the father had maintained that it was B's wish that she wanted to come and live with him.  The Court therefore felt it had no option other than to have her wishes in this respect independently ascertained by Eleanor Green.  As stated in paragraphs 15 and 66 of the Judgment, it was clear that B was greatly distressed at being involved in this way in the Court process. 

18.      In her report of 3^rd June, 2013, having met with B, Eleanor Green advised as follows at paragraph 5:-

"[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."

19.      She finally made this recommendation at paragraph 9:-

"This process needs to come to an end for these children.  I would therefore further recommend that it is ordered that no further applications can be made for contact or residence/shared residence for a period of time.  This would allow [B] in particular some much-needed respite."

20.      This deeply detrimental effect of the proceedings upon B has to be set against the approach of the father which, as set out in paragraph 55 of the Judgment, was to see his application for shared residence for B as the start of a process which the Court feared would continue until, like A, B will be under his control.  At paragraph 62 of the Judgment, the Court referred to the father's desire and open campaign to have B living with him. 

21.      A further factor is the way the father has involved the children in the proceedings despite numerous requests and warnings not to do so-see paragraphs 68 to70 of the judgment of the Court on the Schedule 1 application ([2013] JRC 156). 

22.      Whilst it may not be accurate to refer to the father having made repeated and unreasonable applications in respect of B in that there have only been two actual applications, it is necessary to bear in mind the length of time that these proceedings have been on foot in relation to the children, namely from May 2011, and the numerous interlocutory hearings which we have not detailed in this judgment.  This is a long time in the life of a young child. In context we find that the second application was unreasonable. 

23.      The father does not object to an order under Article 66(8) for twelve months provided it is reciprocal and provided the Court is satisfied that the no order principle does not apply.  He submits:-

(i)        That his applications were not unarguable. 

(ii)       That he was a litigant in person for the majority of the proceedings. 

(iii)      That his attempts to settle the matter were rebutted by the mother. 

(iv)      That the mother is herself pursuing further applications in relation to security for the periodical payments for B and costs. 

24.      The mother, he said, had attempted to adduce evidence as to the history of the relationship between the parties, which the Commissioner had excluded on 28^th May, 2013, (and which remained excluded), which shows that she had not moved on following the breakdown of the relationship and that it is her that is not willing to put the past behind her.  The mother's focus, he said, appeared to be not on the children but on the hostilities between her and the father.  In relation to the Court's description of the father's campaign, he said it did not follow that further Court applications would be needed by the father if B elected on her own account to go and live with him.  Furthermore, in any application that he might bring in the future, he would have to show a change in the circumstances in order to justify that application and he would be subject to the discipline of possible adverse costs orders. 

25.      We note the advice of the psychologist in relation to the character of the father as set out in paragraph 39 of the Judgment and for his need to be in control as set out in paragraph 41 of the Judgment.  As we said at paragraph 50 of the Judgment, we felt that it was the mother who was under siege.  B has been living with the mother consistently throughout and we see no justification for the mother being subject to any prohibition.  The father regrettably seemed to take no heed of the strong advice of Eleanor Green and the deep concerns expressed by the Court about how damaging this process was for B.  Her welfare in our view requires protection from further applications by the father, if she is to have the respite we are advised she clearly needs and the point of an order is that it prevents her from being drawn into proceedings unless the father first persuades the Court that he has an arguable case with some chance of success.  Such an order would be consistent with the advice of Eleanor Green. 

26.      In terms of the duration of the order, twelve months is too short.  The mother seeks an order until B is 16, but we think that three years would be proportionate; that would take B to the age of 14, when she should be well settled into her secondary school and that much more mature. 

27.      We therefore make an order under Article 66(8) of the Children Law that no application for an order under the Children Law for residence, shared residence or contact shall be made by the father in respect of B without leave of the Court and this for a duration of three years from the date of this order. 

Authorities

I v J (Family) [2013] JRC 157.

I v J (Family) [2014] JRC 021.

Children (Jersey) Law 2002.

In the matter of T [2010] JRC 126.

Re P [1999] 2 FLR 573.

Children Act 1989.

Re A (a child)(Order: Restriction on applications) [2009] EWCA Civ 1548.

I v J (Family) [2013] JRC 156.