Jersey Unreported Judgments

Family - reasons regarding application by the father for contact and parental responsibility.

[2015]JRC190A

Royal Court

(Family)

16 September 2015

Before     :		Carol Elizabeth Canavan, Registrar, Family Division
Between	C (the father)		Applicant
And	D (the mother)		Respondent

Advocate M. R. Godden for the Applicant.

Advocate C. G. Hillier for the Respondent.

reasons

the registrar:

1.        In July 2015 the applicant father ("the father") filed an application for contact with, and parental responsibility for, his daughter Tilly, (this is not her real name), who was born in 2013.  A schedule of contact was agreed at a hearing on the 14^th September, 2015.  The relationship between the father and the mother began in October 2010; the father moved in with the mother after Macie's birth in January 2013 and moved out in April 2014. 

2.        A final hearing in respect of parental responsibility took place on the 16^th September, 2015.  The respondent mother ("the mother") opposed the application but she was prepared to give the following undertakings:-

(i)        "A formal and solemn undertaking to the Court that the respondent shall keep the applicant appraised as to the decisions which fall to be made in Tilly's life;

(ii)       A formal and solemn undertaking to the Court that the respondent shall consider the applicant's response and comments;

(iii)      A formal and solemn undertaking to the Court that the respondent shall keep the applicant informed as to options regarding medical treatment, schooling and all the other big "life" decisions."

3.        Both the father and the mother filed affidavits of evidence prior to the hearing and gave oral evidence at the hearing.  I do not propose to go through the evidence in great detail for reasons which will become apparent.  However, I would just say that I found it extraordinary that despite the parties referring to the same incidents and events, their evidence was diametrically opposed and there were huge discrepancies in their individual accounts of their relationship and events within it.  Apart from agreeing that these events or incidents had taken place, none of the details leading up to the incidents or the outcome were agreed.  They did agree that there were material issues in the relationship such as control issues and other negative elements.  They both agreed that the relationship was "difficult", "controlling", "exhausting", "mentally and physically draining", "unpredictable" and "unhappy".  The father said this was because of the behaviour of the mother; the mother said it was because of the behaviour of the father. 

4.        The affidavits and evidence described the conflicting views of the relationship but rather than set out that evidence in detail, the easiest way to show this extreme diversity in the views on the relationship is to set out the mother's summary from her affidavit of the behaviour of the father from her point of view:-

"a.       CONTROLLING - everything had to be his way.  He would look through my mobile phone, laptop, Facebook account, bank statements, and to go through drawers in the house, all this took place on a regular basis.  C would do this without permission.  It would be even worse if I did not respond to his texts and calls as fast as he thought that I should.  C would question who my friends were and what we would talk about. He would question my whereabouts on a daily basis, where I had been, who I had seen, why it took me a certain amount of time to go to the shop, or why it took an hour to take Isobel (not her real name) swimming.  C disliked it if I was to go out with friends for lunch or coffee and why it would take me an hour.  He also hated the fact I started at the gym doing fitness classes twice a week and would accuse me of being with other men;

b.        AGGRESSIVE - C was aggressive with me whilst drunk on several occasions.  C was also aggressive by grabbing Isobel by the arm on 2 occasions.  He also pulled me outside my front door in August 2014 whilst I was waiting for the police to arrive.

c.        HARASSMENT - C would text me repeatedly throughout the day.  If I did not respond straight away I would receive more text messages and questions.  On some occasions C could send me up to forty text messages repeating himself within two hours.  If (after he had moved out) I did not respond to text messages he would call.  If I did not answer he would come around to my house and repeatedly ringing the bell and knock on the door until I opened the door, this was very distressing for me and also Isobel and Tilly.  I eventually requested the police issue him with a harassment notice in August 2014.

d.        THREATENING - C would threaten to take Tilly if I tried to leave him, he always made me feel he had power over me.  He threatened to "break my neck" over the telephone in February 2015, as I was not at home, my father heard this as I had put the loud speaker on as he was being verbally aggressive within the conversation.  This was reported to the police.  He also threatened to "rip the back out of me" if I was to pursue with legal representation regarding Tilly.  He has also made the threat that "he would love to just elbow me in the mouth to shut me up" this was December 2013.

e.        MANIPULATIVE - C was very good at playing the victim within and after our relationship, he would tell people lies that I wasn't mentally stable or suffered with post-natal depression, I saw my doctor and spoke with talking therapies who ruled out I was depressed, and my situation with the way C was treating me was the cause of my low self-esteem and upset.  C would go out of his way to talk to anybody and everybody that would listen to paint a black perception of me, even my own friends who knew I was perfectly well, and what he was trying to do in turn people against me.  His reasons for doing so were to make me feel fearful to leave and worried about what people would say about me.  This worked for a long time and I was fearful and intimidated, but I grew stronger and finally had the courage to leave.  He would also make false statements that Tilly was unhappy to be left in the care of friends, grandparents, and his own family; this was to prevent me leaving Tilly with anybody and to stop me having any free time to do anything for myself, whether it was shopping, appointments or a lunch meeting with friends.  Both my children adore their grandparents, and I would never leave them in the care of someone unsuitable, or someone they did not know and whom the children were uncomfortable with.

f.         UNPREDICTABLE - C's behaviour was very unpredictable, I always felt uneasy to how he would react to things, and it could be something as simple as allowing Tilly to eat chips for dinner or having to keep the children quiet so he could sleep."

The father denied each of these allegations or had a different explanation for them and where the mother said he was controlling, manipulative and so on, the father thought she was the controlling, manipulative party in the relationship and gave his examples.  Other allegations by the mother were that the father was nasty, selfish, demanding, superior, very controlling and he felt that everything revolved around him.  She gave examples of each, all of which were denied by the father and he himself gave examples of similar behaviour on the part of the mother.  The mother gave evidence that they never agreed on anything, the father agreed. 

5.        In the written submissions filed on behalf of the mother Advocate Hillier said:-

"It should be stressed at this point that no finding of facts are sought as to the nature of the relationship between these parties.  Rather that the Court should consider the respondent's evidence within the context of the statutory checklist and such guidance as the Court may find in the appended authorities."

6.        This statement caused me some difficulty.  The evidence of the parties, as stated above was completely contradictory and if this case had needed me to decide whose evidence I preferred, it would have been a hard task to complete without a full fact finding hearing.  What was extraordinary was that, in my view, both parties truly believed that their version of the relationship between them was the correct version and there was no common ground.  There were incidents where the police had been involved and again, the parties could not agree on what had happened to cause the involvement of the police but I do not need to go into detail about these incidents. 

7.        Both parties accused the other of being awkward regarding contact with Tilly.  I do not need to deal with this in detail as the parties, as stated above, were able to agree a schedule of contact with pick-ups and drop offs taking place at child care.  

The father's case

8.        The father's application was brought under Article 5(1) of the Children (Jersey) Law 2002 ("the Law"):-

"Where a child's father and mother were not married to each other at the time of the child's birth:

(a)       The court may, on the application of the father, order that he shall have parental responsibility for the child".

9.        Advocate Godden submitted that the test for parental responsibility was  as set out in L.S. v N.S. [2007] JLR N 37 where the then Bailiff held:-

"On an application by an unmarried father for parental responsibility, the court should consider, inter alia, the degree of commitment he has shown towards the child; the degree of attachment between him and the child; and his reasons for applying. Those factors are merely a starting point, however, and are not exhaustive. All the relevant circumstances should be taken into account and the welfare of the child is paramount. Even if the three factors are established as satisfactory in a particular case, other factors may tip the balance against an order.  As parental responsibility confers an important status on a father, it will usually be granted unless clearly contrary to the child's welfare."

10.      Advocate Godden submitted that the father's commitment and attachment to Tilly could not be disputed.  If granted parental responsibility the father would not use it as a means of control over the mother.  The father wanted, as stated in his affidavit:-

"...to share with D the responsibility for these decisions for example what school she may attend, the country she is to reside.  I simply want to be accorded my rights as a father.  I do not want to control D in any way and I am in agreement not to have any involvement with D if necessary as is evident from the undertaking I gave not to attend at her home (see the Court Order of 3^rd August, 2015,) I appreciate that parental responsibility does not mean involvement in the daily routine of Tilly's life.  It is my firm view that it is in Tilly's best interests to have me recognised as her father.  It will have a stabilising benefit and reflects the realities of her relationship with me".

11.      Advocate Godden referred to a passage from the full judgment of  L.S. v N.S. [2007] JRC 103A where the then Bailiff said:-

"We think there has been some misunderstanding of what parental responsibility means.  It means in essence that the father is entitled to share with the mother responsibility for all important strategic decisions affecting the life of A.  These decisions include the choice of school, the choice of religion, if any, in which the child is to be brought up.  They also include any change of surname and the country or place where the child is to reside".

12.      In Re S (A Minor)(Parental Responsibility) [1995] 3 FCR the court had stated that:-

"It would therefore be helpful if the mother could think calmly about the limited circumstances when the exercise of true parental responsibility is likely to be of practical significance. It is wrong to place undue influence and therefore false emphasis on the rights and duties and the powers comprised in parental responsibility and not to concentrate on the fact that what is at issue is conferring upon a committed father the status of parenthood for which nature has already ordained that he must bear responsibility. There seems to me to be all too frequently a failure to appreciate that the wide exercise of Section 8 orders can control the abuse, if any, or the exercise of parental responsibility which is adverse to the welfare of the child. Those interferences with day-to-day management of the child's life have nothing to do with whether or not this order should be allowed."

13.      Advocate Godden cited a passage from Re M (a child) (parental responsibility: welfare: status) [2014] 2 FCR 46:-

"(1)     While there was no presumption, a parental responsibility order would normally be made on a father's application and it would be a rare case where it was not. It was the nature and extent of the misuse, or likely misuse, of parental responsibility that was critical and each case was fact-sensitive. The value judgment of the first instant judge was critical in his or her assessment of whether the status it conferred would be misused or abused and if so whether there was sufficient to decline it given the protections that could be afforded by conditions attached to its use through another s 8 order. The status conferred by parental responsibility was an important legal recognition of the delicate balance between rights, duties, powers, responsibilities and authority that were the components of family and private life. It was integral to the concept of parental responsibility".

He submitted that even if I accepted some of the evidence given by the mother, that evidence did not justify refusing parental responsibility and in any event, her evidence was irrelevant to the application.  Most of the allegations related to a time before the separation, some of the allegations occurred after separation when the break up was still raw.  He said that the relationship was very much over and neither party wanted to get back together.  No criminal charges had been brought against the father, he had not been guilty of any offence.  The father had abided by his undertaking not to go to the respondent's flat.  Both parties are now clear in relation to the parameters of contact because of the contact routine which was not the case post-separation.  He could see no reason why parental responsibility should not be granted now.  The father believes that the granting of parental responsibility would be in Tilly's best interests, he wants to be involved in Tilly's life and the making of key decisions.  He wants to have the legal status of a father.  

14.      Advocate Godden submitted that the allegations made by the mother were all focused upon the mother and the impact of the father's alleged behaviour upon her, not Tilly.  The father had explained that he had sent numerous texts to the mother because of the mixed messages he was receiving from her.  He had used unfortunate language on occasions, in the heat of the moment, which he had not meant.  However, the mother had not properly considered Tilly's best interests and, he submitted, she was attempting to control the father's rights by preventing his involvement in decisions relating to Tilly.  He went on to submit that even if there was an element of control on the father's part or an element of any of  the other behavioural allegations made, they were not serious enough to deny parental responsibility.  The mother had accepted in her evidence that most of the allegations of behaviour in her affidavit were no longer relevant - the parties no longer lived together, they were not going to get back together, there is an undertaking in place, there is agreed contact. 

15.      As the commitment and attachment of the father to Tilly were not in dispute and in light of the generous contact agreed, Advocate Godden asked why would the father make the application for parental responsibility for anything other than the genuine reasons he had given.  The mother could not justify her opposition to the application on the grounds of Tilly - she was just justifying her opposition on the grounds of herself. 

16.      He referred to In the matter of NN [2011] JRC 016 where parental responsibility was refused because there had been very serious domestic violence, an injunction had been granted, contact had been disputed and only indirect contact had been given.  He submitted that there were no similarities between that case and the present application. 

17.      In the matter of N [2011] JRC 075A was a case where parental responsibility was given, notwithstanding that the father was serving a prison sentence for a serious offence.  The Court had accepted his reasons for applying. 

18.      Advocate Godden emphasised the statement that it would be a rare case where parental responsibility would not be granted but, he submitted, this was not a rare case.  S 10 orders are also available and could be used to protect any concerns. 

19.      He submitted that the undertakings offered by the mother (see paragraph 2 above) only meant that she would keep the father informed of decisions and she would "consider" the father's response.  They did not give the father the right to be involved in making the big decisions and did not confer the status of fatherhood on the father. 

20.      Finally he referred to the recent case of Re H-B (children)(contact: prohibition on further applications) [2015] 2 FCR 581:-

"Parental responsibility is much, much more, than a mere lawyer's concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child."

21.       Advocate Godden submitted that there was no reason why parental responsibility should not be granted. 

The mother's case

22.      In his skeleton argument, Advocate Hillier submitted that consideration should be given to Article 2(5) of the Law:-"Where the court is considering whether or not one or more orders under this Law with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all", and further that a parental responsibility order would not place Tilly in a better position.  He also submitted that this was not a case where the Court should adjourn consideration of the application for any period of time. 

23.      It was the mother's view that there was potential for inappropriate use of parental responsibility by the father and that the needs of Tilly would not be best met by the granting of the application. 

24.      It was not disputed by the mother that the father has an attachment to Tilly and ongoing commitment to her.  She had grave concerns with regard to the reasons for the application being made.  In her affidavit she said that her fears for the future were that the father might try to use Tilly as a weapon and play on her emotions to confuse her against her. 

25.      Advocate Hillier also referred me to the case of Re M where the Court of Appeal had considered what factors would be required for a Court to deny an application for parental responsibility:-"...the nature and extent of the misuse (of PR) or the likely misuse.... Was critical ... and fact sensitive." and could be a material factor in refusing an application for parental responsibility. 

26.      In his oral submissions Advocate Hillier submitted that if the Legislation Committee had felt that every father should automatically have parental responsibility for their children, such a provision would appear in the Law.  It does not appear and therefore the Court has to deal with the competing positions of the mother and the father and the evidence adduced. 

27.      He cited a passage from Rayden & Jackson on Divorce and Family Matters Volume 1:-

"Parental wishes. The view of devoted and responsible parents should be treated with respect and should not be disregarded or lightly set aside but the role of the court is to exercise an independent and objective judgment and the extent to which it will have regard to the view of the parents will depend on the court's assessment of that view judged against the yardstick of the paramount decision, namely the welfare of the child."

28.      Advocate Hillier submitted that this was not a normal case.  There had been numerous police attendances, a harassment notice, threats "to break your neck" and a contested contact application.  He submitted that the court should look at the past conduct of the parents as a predictor of future behaviour.  There was a huge discrepancy between the father's recollection of the relationship and the mother's recollection.  The mother said that there had never been a civil conversation between them; they had never been able to agree on anything.  The contact application had been hard fought and agreement had only been reached at a hearing a few days before. 

29.      He referred to Advocate Godden's references to fatherhood and submitted that this was not an application for fatherhood.  It was known and accepted that the applicant is the father of Tilly.  Parental responsibility is a different thing. 

30.      In terms of the factors the Court should look at, he accepted that the test was as set out in L.S. v N.S. the three limbs being attachment, commitment and reasons.  It was accepted that there is an attachment between Tilly and her father and that there is also a commitment.  He took issue with the father's reasons for applying.  He submitted that the evidence given by the mother about the effect of the father's behaviour on her during the subsistence of their relationship was wholly negative.  

31.      Advocate Hillier referred me to the welfare check list set out in Article 2(3) of the Law and the requirement of the Court to look at the list and satisfy itself that it should make an order.  Looking at the individual elements of the check list he submitted:-

(i)        Tilly is 2½ and is too young to understand complex legal issues such as parental responsibility;

(ii)       Tilly's physical, emotional and educational needs are all being met, the father does not appear to have any issues in this regard;

(iii)      Tilly is 2½, whether her father has an Act of Court giving him parental responsibility or not will make no difference to Tilly's life;

(iv)      Tilly is a happy well-adjusted little girl, she had a healthy relationship with her sister;

(v)       Tilly has not suffered harm and is not at risk of suffering from either parent;

(vi)      With regards to Tilly's needs, she needs a calm environment in which to grow up and thrive; she now has that as the difficulties between her parents no longer factor in her life.  However, there was evidence that the relationship between the parents is problematic and he submitted, that adverse balance and over control could be a relevant factor and impact on the capability of each parent to meet Tilly's needs.  He went on to submit that I should be certain that the father has proved not only that his reasons for applying to the court are valid and appropriate but also that it is the right thing for Tilly. 

32.      Advocate Hillier re-emphasised his point that past behaviour, in particular recent behaviour, is the only predictor as to future behaviour.  

33.      Advocate Hillier referred to the proposed undertakings which clearly stated that the mother would keep the father informed before decisions were made, that she would consider his response and comments and keep him informed.  He submitted that this was, to all intents and purposes, a form of limited parental responsibility but without giving the father the sledgehammer with which to browbeat the mother.  

34.      The court has a finely balanced exercise to carry out and the court must be satisfied that the father has completely made out each and every element required by law and suggested from the cases.  He submitted that there is a palpable risk of misuse of parental responsibility on the basis of the mother's evidence about the relationship between the parents.  She said it had been controlling and abusive and he submitted that appropriate weight and consideration must be given to this when looking to the future. 

35.      Advocate Hillier went on to submit that Tilly is the centre of both parents' lives.  There are different viewpoints as to what happened between the parents but he submitted that the mother's evidence was clear and cogent. 

36.      He finally submitted that the father's application for parental responsibility should not be granted and that the undertakings proposed by the mother would provide the father with all the reasonable proportionate and appropriate reassurances that he needs.  The mother had tried to include the father in all decisions to date.  The mother's evidence had been more cogent and realistic. 

Conclusions

37.      I have no doubt that both parties were to some extent controlling and that the relationship was as unhappy as they both thought, for whatever reason.  However, as Advocate Godden has said, that is all in the past.  In answer to cross-examination by Advocate Godden the mother accepted that:-

(i)        all the allegations of controlling behaviour were all in relation to her, not Tilly, and are not relevant now;

(ii)       the father had not attended at her flat since giving the undertaking;

(iii)      aggression was not a relevant factor at present;

(iv)      there had been no conviction for harassment and that the police had never pressed charges;

(v)       there were hopefully no reasons to suspect that the father would harass her in future;

(vi)      no prosecution had ever been brought as a result of threatening behaviour;

(vii)     there was no need for the parties to contact each other;

(viii)    there were hopefully no reasons to suspect that the father would threaten her in future;

(ix)      unpredictability was no longer a relevant factor;

(x)       the grounds stated in her affidavit and which Advocate Godden had taken her through, dealt with the alleged impact of the father's behaviour on the mother, not Tilly;

(xi)      Tilly had been much better since the father moved out. 

I accept Advocate Godden's submissions that with the undertaking remaining in force and the contact schedule agreed there should be no reason for any repetition of the behaviour which the parties have experienced in the past.  I have decided to put conditions in place to try and ensure that it does not reoccur.

38.      L.S. v N.S. and In re M are, are as seen above, authorities in support of parental responsibility being granted in all but rare cases.  I do not agree with Advocate Hillier that this is a rare case. 

39.      I do not agree with Advocate Hillier's submission that the undertakings offered by his client amounted to "a form of limited parental responsibility".  Parental responsibility means being involved in making decisions not being advised what the decision is after it has been made (with or without input). 

40.      I have considered the welfare check list and agree with Advocate Hillier's comments in paragraph 31 above in particular his comment that "with regards to Tilly's needs, she needs a calm environment in which to grow up and thrive; she now has that as the difficulties between her parents no longer factor in her life."  I have no reason to believe that the difficulties between the parents will be resurrected if the father is granted parental responsibility.  The difficulties arose because they were living together and had nothing to do with the issue of parental responsibility.  I believe that it is in Tilly's best interests for the father to be granted parental responsibility.  It is interesting to note that, although JFCAS was not involved with this hearing, Mrs Ferguson, who had interviewed both parties prior to the Case Review Hearing, said at that hearing "I have not seen anything which would lead the Court to decide against PR". 

41.      I have carefully considered the father's reasons for applying for parental responsibility and have taken into account the mother's fear that he has only made the application so that he can keep control over her.  However, on balance I am satisfied that the father's motive is genuine; there is no evidence to suggest that in light of the change in the nature of the relationship between the parties and in the change of circumstances, that there will be a risk of misuse of parental responsibility or that he will use Tilly as a weapon by playing on her emotions to confuse her against the mother.  I believe it would be wrong to deprive him of the responsibility of playing a role in Tilly's upbringing.  However the father should take note of the Bailiff's comments in L.S. v N.S:-

"We underline the fact that parental responsibility does not mean involvement in routine daily decisions affecting the life of the child. We, therefore, grant the application of the father for parental responsibility but subject to the following conditions which are designed to protect the mother against the harassment and intimidation to which, rightly or wrongly, she perceives herself to the subject."

42.      The following conditions will apply to the order:-

(i)        the father's undertaking given to the Court on the 3^rd August, 2015, that he would not attend at the mother's flat remains in force and as far as I am concerned, will continue to remain in force, unless the parties agree otherwise in the future;

(ii)       the father will not contact or communicate with the mother save when necessary to contact her with regard to any change in the agreed contact schedule, which I would expect not to be a regular occurrence;

(iii)      communication with regard to "parental responsibility decisions" will be in writing save in an emergency. 

I hope that the mother will take comfort from the fact that direct contact will be limited.  I also hope that the relationship between them will improve so that handovers do not need to take place at child care for the foreseeable future. 

43.      Finally I would like to draw both parties' attention to a further passage from L.S. v N.S:-

"Secondly, we want to underline the most important matter for the parties to bear in mind over the next few months in particular, but in the longer term as well. Experience has shown that constant disagreements and enduring tensions between parents can have the most devastating consequences for a child.  If these parents truly love their child they will do everything that is reasonably possible to bury their mutual apathy, or if they cannot do that at least to disguise it from A and never to use him in any way to further their disputes with each other.... We expect both parents to work constructively towards the establishment of a working relationship with each other for the sake of A and his future."

Authorities

Children (Jersey) Law 2002.

L.S. v N.S. [2007] JLR N 37.

L.S. v N.S. [2007] JRC 103A.

Re S (A Minor) (Parental Responsibility) [1995] 3 FCR.

Re M (a child) (parental responsibility: welfare: status) [2014] 2 FCR 46.

In the matter of NN [2011] JRC 016.

In the matter of N [2011] JRC 075A.

Re H-B (children)(contact: prohibition on further applications) [2015] 2 FCR 581.

Rayden & Jackson on Divorce and Family Matters Volume 1.