Jersey Unreported Judgments

Family - application for leave by A and B for contact with children.

[2015]JRC186A

Royal Court

(Family)

9 September 2015

Before     :		Carol Elizabeth Canavan, Registrar, Family Division
Between	A B		Applicants
And	D E		Respondents

IN THE MATTER OF JACOB AND PHOBE (CONTACT)

Advocate E. L. Wakeling for the Applicants.

Advocate C. R. Dutöt for the Respondents.

reasons

the registrar:

1.        This is an application by the applicants ("the grandparents/grandmother/grandfather") for leave to commence proceedings for contact with their grandchildren Jacob (this is not his real name), born in 2007 and Phoebe (this is not her real name), born in 2010.  The respondents are the parents of Jacob and Phoebe ("the parents/father/mother") and they do not agree that leave should be granted to the grandparents to bring an application for contact. 

2.        At a preliminary directions hearing on the 13^th July, 2015, the date was fixed for the hearing of the application for leave and the parties were ordered to file statements setting out the reasons why leave should or should not be granted by close of business on the 7^th August, 2015, with skeleton arguments being filed by the 31^st August, 2015. 

3.        No evidence was heard in respect of the application for leave.  My decision has been made by considering the statements of both parties, the submissions in the skeleton arguments and the oral submissions of their advocates. 

4.        I have made no finding of fact on issues in dispute between the parties.  These would fall to be considered at any substantive hearing should leave be granted.  I have based my decision on facts set out in the documentation which are not disputed between the parties. 

5.        By way of background, the mother is the second wife of the father.  There are two sons of his first marriage referred to as C and T. 

The Law

6.        Both Advocates agreed on the Law relating to this application for leave.  The grandparents are not entitled to apply for an Article 10 order under the Children (Jersey) Law 2002 ("the Law") without the leave of the Court.  

7.        Article 10 (6) of the Law provides that:-

"Where the person applying for leave to make an application for an Article 10 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to -

(a)       the nature of the proposed application for the Article 10 order;

(b)       the applicant's connection with the child;

(c)       any risk there might be of that proposed application disrupting the child's life to such an extent that the child would be harmed by it; and

(d)       where the child is being looked after by the Minister -

(i)        the Minister's plans for the child's future, and

(ii)       the wishes and feelings of the child's parents."

8.        It was also agreed that the three stage approach which the Court should adopt are set out in Re S (a Minor)(Adopted Child; Contact) [1999] 3 Fam 283 namely:-

"In re M.(Care: Contact: Grandmother's Application for Leave) [1995] 2 FLR 86...... matters mentioned in section 10(9) were taken into account and the Court of Appeal, through the judgment of Ward L.J., identified the approach to be adopted to a leave application which should in my judgment be applied to an application under section 10(9).  They do so by a three way approach and point out that (i) the application will be dismissed if it is frivolous; (ii) the application will be dismissed if the applicant fails to show that there is any eventual real prospect of success; and (iii) to succeed the applicant must satisfy the Court that there is a serious issue to try and must present a good arguable case."

The nature of the application for contact

9.        The skeleton argument submitted on behalf of the grandparents stated that the grandparents were seeking direct contact with Jacob and Phoebe for a few hours each week.  The grandparents stated that they would agree to supported contact if required by the Court.  Advocate Wakeling submitted that the proposed application was therefore reasonable and appropriate.  

The grandparents' connection with Jacob and Phoebe

10.      It was not disputed by the parties that the grandparents, mainly the grandmother, had looked after both Jacob and Phoebe when they were babies and had had overnight contact in the past, although they were not agreed on the exact amounts of time Jacob and Phoebe had spent with their grandparents.  

11.      Again, it was not disputed that the grandparents had not seen Jacob and Phoebe since January 2015.  I will refer to this below. 

Risk of harm to Jacob and Phoebe

12.      Advocate Wakeling submitted that there is no independent evidence of any potential disruption to Jacob and Phoebe's life, such that they would be harmed by the application.  What could be shown was that Jacob and Phoebe had had regular and frequent contact with the grandparents until the contact stopped suddenly in December 2014.  She expressed concern as to how Jacob and Phoebe were coping with their grandparents being removed from their lives.  She submitted that the application should be allowed to proceed, so that the risk of any potential harm could be properly looked at by an independent Court Welfare Officer. 

13.      Advocate Dutöt stated that the parents took the view that the granting of leave would bring with it a substantive risk of disruption to the children's lives to such an extent that the children would be harmed by it.  In essence, the parents' view was that the granting of leave would have such a negative impact on their family unit, that it would by extension pose a risk of harming their children. 

Background to the decision to stop contact

14.      The grandparents accepted in their statement that there had been difficulties in their relationship with the parents on more than one occasion.  They said:-

"It is fair to say that there have been difficulties in our relationship with D and E over various periods since the children were born." (paragraph 18)

"There were previous occasions when relations between us and D and E broke down.  One related to a time when Jacob was just one and E and D were in Cyprus and we were looking after Jacob in Jersey" (paragraph 31)

"There was another occasion in August 2015... Relations soured for quite some time after that" (paragraph 33).

15.      The reference to the falling out when the parents were in Cyprus arose because Jacob had been left with the grandparents for a few days but the mother had arranged for Jacob to stay with a friend for a few days as well.  The grandmother had refused to hand Jacob over to the friend.  In their statement the grandparents said that Jacob had not been well when the time came to take Jacob to the friend and they "thought it might be easier if Jacob stayed with us.  E got very upset at this and told B that she had to take Jacob to her friend's house even though we didn't think it was the best place for Jacob to stay at that time."  The parent's on the other hand said "This reduction in care was in response to an issue that occurred when B was caring for Jacob whilst we went away for a few days to attend a wedding.  As part of the arrangements we established whilst we were away, B was supposed to pass Jacob to the care of a friend of ours and refused to do so.  This was against our wishes and resulted in chaos".  It is clear from the statement of the grandparents that they thought keeping Jacob with them was better for him than the arrangements made by the parents.  However, they should not have had such disregard for the arrangements made by the parents. 

16.      There was further friction between the parents and the grandparents towards the end of July 2014 following a disagreement at the last minute over pre-arranged childcare.  The parents' statement said that thereafter there was no contact until November 2014.  The grandparents thought they might have seen the children in between but both parties agreed that the problems were resolved as a result of the father attempting to repair the relationship in the November.  It seems therefore from the documentation that no attempt at reconciliation had been made during this period by the grandparents.  Contact resumed but it was made clear to the grandparents that the parents did not want the children to see C and T until problems in the relationship between C and T and the parents had been resolved.  The grandparents agreed in their statement that the parents had told them that Jacob & Phoebe should not meet C and T and yet went on to state:-

"C and T are great boys who love their brother and sister very much and we thought it would be lovely if they could be close.  We also thought it would be lovely for Jacob and Phoebe to be close to C's son who is now two years old."

The use of the words "we thought" twice in that sentence was an indication to me that whatever the parents had said, the grandparents considered that what they thought was far more important.  Having been expressly told not to do so, in December 2014 the grandparents, with Jacob and Phoebe, met up with C and T.  The grandmother said in paragraph 22 of the statement that she thought the mother had meant they could not meet C and T at the grandmother's house but she thought it would be alright to meet up with them in a public place.  In my view the grandparents were again undermining the wishes of the parents because they thought they knew better than the parents what was best for the children.  The parents had, subsequent to this meeting with C and T, been told by Phoebe that one of the grandparents had asked her to lie to the mother about meeting with C and T.  In paragraph 10 of their statement they said:-

"These were not appropriate discussions for Phoebe and caused her distress afterwards, particularly when admitting to E she had been asked to lie about what happened.  Following these events we jointly decided to step back from our relationship with B and A a little.  We felt they were unable to respect our views and wishes as Phoebe and Jacob's parents."

17.      The grandparents do not appear to accept that the parents' wishes should take precedent over their own.  In paragraph 25 of their statement they said:-

"PERHAPS (my emphasis) B should not have taken Jacob and Phoebe to see C and T BUT (my emphasis) they had such a wonderful time and it doesn't seem fair that E should bear a grudge for so long and block contact between us and Jacob and Phoebe as a result of this".

This is yet another example of the grandparents not accepting that the parents, and only the parents, have the right to decide what is best for their children. 

18.      It is not disputed that, notwithstanding what had happened in December 2014, the parents still offered the grandparents contact with the children but only at the parents' home because they could not, they said, trust what the grandparents would say to the children.  The grandparents rejected this offer.  The grandfather went to see the parents about this and a heated argument ensued in the presence of Phoebe. 

19.      On Friday the 16^th January, 2015, the mother sent a text to the grandmother about contact:-

"Not sure why you've not been in touch to see if you can pop round to see the kids?!  Thought I'd made it quite clear u could come here when suits".

The grandmother replied:-

"I didn't reply to your text sent last Friday as we feel it is wrong to only be able to see Jacob and Phoebe at yours... We have not done anything to warrant these restrictions on having contact with our gran children."

Further text correspondence followed at various times of the day and night. Having read that text correspondence it is clear to me that the grandmother's responses became more aggressive, more prolonged and continued, even though the mother asked her to stop sending text messages.  On the 25^th  January, 2015, the grandmother wrote:-

"Just thought I would let you know where your Husband Stayed The Night....He Spent The Night On His X Wife's Sofa!! I Bet D Has nt Told You That!"

The grandmother then went on to allege that the father, while on holiday with the mother had, by mistake, sent her a text which was meant to be for another woman thereby implying that the father was having an affair.  The parents stated that:-

"The making of those false allegations by B regarding an extra-marital affair nearly resulted in the breakdown of our relationship and caused an extreme amount of upset and heartache".

The grandparents' statement said that:-

"As time went on B became more and more frustrated angry and upset at some of E's hurtful text messages......B didn't actually say that D was having an affair or had had an affair but the suggestion would have been that there was or had been something going on between them.........B realises that she shouldn't have sent the text but she was so angry at being pushed out of the children's lives and thought that she would tell E that her life was not as perfect as she thought it was".

In my view this was an extremely cruel and malicious thing to do.  The texts and subsequent Facebook messages posted by the grandmother were far more hurtful than anything the mother had written.  I do not believe the grandmother even considered the effect the allegations would have on the relationship between the father and the mother when she sent the text.  She did not seem to consider what effect this text might have had on the well-being of her grandchildren in the event that she had caused the breakdown of the marriage.  The parents withdrew the offer of continued contact after this. 

20.      The grandmother continued to send text messages about the mother, e.g. on the 17^th May, 2015:-

"Oh D Why couldn't you just stand up to her and do what is right for your kids all 4 of them! Oh D Me and Dad are Heart broken not only over the kids but over You too!"

On the 21st May 2015 on Facebook:-

"we have reached the end of the line with your wife our young grandchildren's mother + I will Always respect her as such! But that is what your wife is your children's Mother nothing more nothing less! No longer any part of our lives!"

21.      The parents became aware that the grandmother was posting photographs of Jacob and Phoebe on Facebook and on open websites, posting entries which were directed to Jacob and Phoebe, e.g. on the 28^th April, 2015, and also posting numerous entries commenting on the fact they were not seeing Jacob and Phoebe and references to "Narcissistic parents".  Even as late as the 23^rd August, 2015, the grandmother posted a long message directly to Jacob and Phoebe which is worth quoting in part:-

"What is All this? Cutting you Both off from Your Family!? ......It is So very wrong to deprive children a relationship with Family because of adult issues! We love you Both with All Our Hearts Nanny B + Poppa A".

It is apparent that even after the parties had filed their statements and the grandparents knew the reasons why the parents had stopped contact, the grandmother could still not accept, in my view, that the contact had not been stopped because of "adult issues" but because of her attitude to the rights of the parents to parent their children.  Her direct actions and to a certain extent, those of the grandfather, had caused the parents to cease contact.  The grandparents had no-one to blame but themselves for the situation they found themselves in.  Having reached that conclusion I turned to consider the Law and whether or not I should grant leave to make the application. 

22.      There was no dispute with regard to the nature of the proposed application or the applicants' connection with the child.  I do not need to comment any further on those points.  However I did consider carefully the possibility of any risk there might be of the proposed application disrupting the lives of Jacob and Phoebe to such an extent that they would be harmed by it.  

23.      As stated above, Advocate Wakeling submitted that there is no known risk and that independent evidence of any risk should be provided before refusing to allow the grandparents leave to make the application.  A JFCAS report should be prepared in order to determine whether or not there is any likely risk.  She also submitted that there must be some concern as to how the children are coping with their grandparents being removed from their lives and therefore the application must be allowed to proceed, so that the risk of any potential harm can be properly looked at by an independent Court Welfare Officer. 

24.      Advocate Dutöt referred me to a passage from the case of Re A (Section 8 Order) [1995] 2 FLR 153:-

"First of all, an application for leave is almost always an application on the papers. An application for contact, which is hotly contested at the hearing, is almost always heard with oral evidence and, of course, with the court welfare officer's report. I would be surprised if there was a court welfare officer's report at the time of the application for leave".

Further, she submitted that this case showed that hostility between the parties is a factor to be taken into account and that I should take into account the hostility between the parents and the grandparents in this case:-

"The welfare officer, despite not criticising the grandmother, was of the opinion that contact would not benefit him as long as the hostility between the parties continued. It is established on current legislation that there should be some contact if it is felt to be of benefit to the child, but if there is hostility between the parties it is difficult to know how it is going to affect this child".

25.      She referred me to a passage from Re M (Care:Contact) [1995] 2 FLR 86 on the disruption point:-

"any disruption - the need for stability and security is vital and the foster placement should not be put at risk. It follows that the risk must arise from the proposed application. The risk is contemplated in relation to private law applications under s 10(9)(c) of the Act - the risk 'there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it'. The very knowledge of pending litigation can be sufficiently disruptive".

And further on:-

"Secondly, the risk must arise from the proposed application. The very knowledge that litigation is pending can be sufficiently unsettling to be harmful: if leave is given, the process of investigating the merits of the application can be sufficiently disruptive if it involves the children in more interviews, psychiatric investigations and so forth. The stressfulness of litigation may impair the ability of those who have care of the child properly to discharge their responsibility to the child's detriment".

26.      Advocate Dutöt submitted that the parents are exercising parental responsibility as they think best for their children and that their parental responsibility should be protected from unwarranted interference by the grandparents.  In summary she submitted that the following factors have to be taken into account when considering the risk of disruption to Jacob and Phoebe if the application were to be granted:-

(i)        over 8 months will have passed since the children have seen the grandparents by the time the application is heard;

(ii)       the last substantive direct interaction between the grandparents and the parents, had been the text message sent by the grandmother to the mother inferring that the father was having an affair; the grandmother had also sent a text to the father around the same time asking him to divorce the mother and return to his 'real family'.  She submitted that these were deliberate efforts to try and break up Phoebe and Jacob's family unit.  This had placed an enormous strain on the parents and the impact of the paternal grandparents' actions in this regard are still very raw for the parents;

(iii)      in December 2014, the grandparents had purposefully acted against the parents' wishes for the children not to have contact with C and T.  The  grandparents had deliberately facilitated the contact despite that request and Phoebe was then asked by the grandparents to lie to her parents about having seen those family members;

(iv)      there is a lack of respect and due courtesy by the grandparents for the parents, their wishes and desires and their relationship as husband and wife.  The mother is seen by the paternal grandparents as 'nothing' and the paternal grandparents have posted social media posts effectively calling the mother a 'narcissist'.  They continue to post derogatory comments on Facebook with no regard to the impact of such posts on the parents and thus their grandchildren;

(v)       the proceedings have caused the parents enormous distress and also financial hardship; the proceedings so far have been detrimental and have caused the mother to have panic attacks. 

27.      Conclusions

(i)        Looking at the other factors to be taken into account (paragraph 8 above), I do not consider the application to be frivolous; I believe that the grandparents genuinely would like to see Phoebe and Jacob.  

(ii)       For the reasons set out below, I do not believe that an application for contact would have any eventual real prospect of success.  

(iii)      Whilst I accept that contact between grandparents and grandchildren is very important, the grandparents have not satisfied me that they have a good arguable case. 

(iv)      I have set out above my views on the texts and Facebook pages sent and posted by the grandmother and will not repeat them save to say that the grandmother has acted inappropriately and in a way detrimental to her application.  If the grandparents had accepted the offer of contact at Jacob and Phoebe's home, none of this might have happened. 

(v)       In their statement the grandparents said:-

"We genuinely believe that they have a right to have a relationship with us and that a relationship with us would be positive and in their best interests and it is not right for us to simply be removed from their lives".

I do not believe that the relationship between the parties will improve and therefore cannot see how there could be a positive relationship when there is such hostility between the grandparents and the parents, which, I have to say, has probably been exacerbated by these proceedings.  In my view, the hostility between the parties would have an effect on Jacob and Phoebe.  

(vi)      Having read all the texts and Facebook messages provided, particularly those addressed to the children, I have grave concerns about what the grandparents would say to the children about their parents if they were to have contact with the children either directly or at a contact centre.  

(vii)     I consider that if leave were to be granted, the contact proceedings which would follow would be detrimental to the family unit.  There is a risk as was said in Re M "of that proposed application disrupting the child's life to such an extent that he would be harmed by it".  Moreover there is no doubt in my mind that the parents would be seriously affected if the application were to proceed and that would inevitably have a knock-on effect on Jacob and Phoebe.  The relationship between the grandparents and the parents has been "seriously fractured" and I cannot see how it can be repaired at this time. 

(viii)    Having taken all matters into account I refuse the application for leave to apply for contact. 

Authorities

Children (Jersey) Law 2002

Re S (a Minor)(Adopted Child; Contact) [1999] 3 Fam 283

Re M (Care: Contact) [1995] 2 FLR 86

Re A (Section 8 Order) [1995] 2 FLR 153