Family - applications to vary contact
Before : |
Samantha McFadzean, Registrar, Family Division |
Between |
J (the Father) |
Applicant |
And |
K (the Mother) |
Respondent |
Advocate A. L. Brown for the Applicant.
Advocate D. C. Robinson for the Respondent.
rEASONS
the REGISTRAR:
1. I am asked to determine cross applications to vary contact by J (the "Father") and K (the "Mother") in respect of their child. The child lives with the Mother, who has the benefit of a residence order in her favour, made by me on 25th February of this year.
2. The parties separated when the child was less than a year old and her parents have been engaged in litigation about the time which the Father spends with her since the Spring of 2017.
3. For the child's sake, this litigation, in the view of the court, must stop.
4. Over the course of the last few months, the Father's contact with the child has changed inasmuch as she used to enjoy four hours on a Sunday with her father but, currently, the Father sees the child on Tuesdays when he collects her from school, takes her to an after school activity, waits for her to finish, and then finds somewhere suitable to eat with her before returning her to the care of her maternal grandmother at 6pm. It is, on any analysis, a limited amount of time for a child to spend with her father. This contact has been interrupted by the child's holidays with the Mother and her family; the Father complains that the Mother does not offer alternative contact when the child travels off island as she did during the summer, for October half term and as she will do for the forthcoming Christmas school holidays.
5. The Father asks the court to vary contact so that the child can enjoy a more relaxed and less structured time with him on a Sunday; he lives in a property in the west of the island and cannot travel there from town during the short time currently afforded to him by such limited contact, particularly as he does not drive.
6. The Mother seeks an order limiting the child's contact with her father to four times a year, as suggested by the JFCAS officer currently[i] appointed to this case.
7. A reader of this judgment might well question why this young child's contact with her father has already been so limited and why the court would entertain an application to limit it still further?
8. The answer lies in alcohol; the Father's misuse of alcohol has led to this restriction on his time with his child. The sad and simple fact is that it is only alcohol which stands between the child and her father experiencing the quantity of time and quality of relationship which most fathers are fortunate enough to enjoy with their children.
9. The evidence before this court provided by Dr Tania Engelbrecht[ii] (whose written report to the court was dated 29th May, 2019) is that the Phosphatidylethanol ("PEth") testing of blood and Ethyl Glucuronide ("EtG") testing of hair, which she considers as the most reliable combination of tests to establish evidence of alcohol consumption, indicate that the Father engaged in "chronic and excessive alcohol abuse over the 3 months before sampling on 1 April 2019". In light of the findings, and in her role as a psychiatrist able to provide dual diagnosis reports, Dr Engelbrecht commented upon the possible effects of this level of alcohol misuse on the child of a parent who has an unhealthy relationship with alcohol: she concludes that there is a risk of the child developing heightened anxiety and hyper vigilance, learning harmful coping strategies and experiencing attachment difficulties which may have a significant impact, not only upon her childhood, but also her on adult life and relationships.
10. Dr Engelbrecht concluded that the Father engages in binge drinking and that while he is most likely not physically dependent on alcohol, he appears to engage in "chronic excessive drinking behaviour". It appears that the alcohol misuse is longstanding.
11. Dr Engelbrecht comments in her report on the relative inadequacy of Liver Function Testing ("LFT") alone as a diagnostic tool for alcohol misuse; she explains that the LFT assessment of various proteins in the blood can indicate excessive alcohol consumption but that the changes which may be revealed by such testing can also have a "multitude of other underlying contributing factors". She concludes that placing too much weight on an elevation of Gamma Glutamyl Transferase ("GGT"), the acute marker for alcohol damage, creates problems, not least because its use as a screening tool is limited due to poor sensitivity but also because many chronic drinkers no longer show an elevated GGT level.
12. Dr Engelbrecht recommended that the Father should seek help from the Drug & Alcohol Service so that he can benefit from assistance, learning behavioural self-control strategies, obtaining psychosocial intervention from a key worker, undergoing a relapse prevention programme, seeking support from Silkworth Day Centre and that he should also consider pharmalogical intervention to promote abstinence from alcohol.
13. The Father self-referred to the Drug & Alcohol Service (the "Service"), a couple of months after sight of Dr Engelbrecht's report. Having undertaken the Alcohol Use Disorders Identification Test ("AUDIT"), which poses a series of ten questions about use and after effects of alcohol on an individual, the test result suggested that the Father required only low level input from the Service. This conclusion reached by the Service was backed up by their reading of the Father's LFT test results from February 2019 which recorded 75 which, according to an email seen from the Service, is "just outside the scale of 15-73". The Father was therefore discharged from the Service after two meetings.
14. That the Service should have come to a conclusion so markedly different from Dr Engelbrecht gives the court pause for thought and not a little concern. This is not a criticism of the valuable work done by the Service in Jersey but perhaps an indication that the Service does not have easy access to the resources available to an expert instructed for the purpose of children proceedings.
15. The email from the Service to the Father's advocate suggests that the Service relies heavily on the results of the AUDIT (i.e. self-reporting). That reliance carries inherent risk given that not all those who take the test are necessarily committed to addressing their habit. Furthermore, given Dr Engelbrecht's comments about the unreliability of LFT results in isolation, the court might have cause to question the wisdom of relying solely on such results. Going forward, as many resources as possible should be made available to those requiring assistance for drug and alcohol related issues and those in the Service so that the court can be sure that it has the most accurate idea of the factual matrices against which it needs to assess risk to those children with whom the court is concerned.
16. On the facts of this case, it seemed to the court from the oral evidence given by the Father that the Service's apparent lack of concern about his drinking habits fed into the Father's own view that his alcohol use was not a concern. He told the court that although he drinks heavily at times, he does not accept that he has an issue with alcohol. He believes that he can stop drinking at any time. In support of this view, he told the court that that his work had never been adversely affected by alcohol and that he had never had to have a drink in the morning. Furthermore, he did not consider that he needed to take up the "opt in" option offered by the Service, in spite of Dr Engelbrecht's recommendations. He was not prepared to consider abstinence, did not need to talk to people at Silkworth and did not feel that he needed a keyworker to become motivated to change his relationship with alcohol. In short, he simply did not consider that he needed the intervention recommended; he does not think that he has a problem that he cannot resolve unaided and moreover, did not tell the court that he was making any plans to give up alcohol.
17. Some six months after Dr Engelbrecht's report, when further hair testing was carried out, it revealed that the EtG levels, for which the lower limit of quantification is 7 picogrammes per milligram, and the cut off level suggesting excessive alcohol consumption is 30, had risen from 203 in April 2019 to 296 picogrammes per milligram in November 2019. On any analysis, the Father's drinking is problematic and from the hair strand test results appears to be getting worse or, at least, becoming more likely to cause him (and, eventually the child) more damage.
18. The Mother, who explained to the court that the Father had often chosen alcohol over their relationship, accepts that when the relationship between her and the Father first broke down in late 2015, she trusted the Father more than she now says was wise to care for the child. The Father works in the hospitality industry and had, on occasion, taken the child, while under his sole care, to his place of work which might not be thought to be an appropriate place for a young child, other than, perhaps, while a family meal was taking place.
19. Since the court became seized of this matter, the Father has been required to give undertakings to the court not to take the child to public houses or bars during contact, not to consume alcohol and to undertake such testing as was required to ensure that he had not been drinking prior to contact taking place.
20. Contact progressed so that by the summer of 2019, it had been agreed that the Father would become involved in the child's day to day activities by collecting her from school on a Tuesday as outlined in paragraph 4 supra. However, on 1st October 2019, the child's school telephoned the Mother to tell her that there was a suspicion that the Father might have consumed alcohol and they refused to let the child leave school with him. Quite properly, the Father telephoned JFCAS who arranged a breathalyser test via their colleagues at probation, which showed a reading of 0.08 mg which, the court was told, is below the cut off level for drink driving.
21. The matter was returned to court, the Mother requesting the withdrawal of unsupervised contact for fear that the child's welfare and safety would be compromised. At that brief hearing, the court ordered that contact should continue as before until oral evidence had been heard but imposed a condition that the Father should attend JFCAS for alcohol screening before collecting the child from school (and from JFCAS during the school holidays). The court gave a clear indication, in line with that given by the JFCAS officer, that his failure to address his alcohol misuse, as it might adversely affect his young daughter, would likely result in a wholesale review of how and when the Father's contact with his daughter took place.
22. At that hearing the Mother's advocate told the court that she wanted the nature and quantity of contact reviewed and accordingly the matter was listed at the earliest opportunity for a day so that the issues could be fully canvassed on an interim basis. In short, the Mother relied on the view of the social worker; she gave evidence that the Father has a longstanding and unhealthy relationship with alcohol and that she fears for the child's safety; she finds the Father's reluctance to follow Dr Engelbrecht's recommendations "baffling".
23. As indicated above, the Father wishes contact to revert to a Sunday, so that he can enjoy proper time with the child, without the constraints imposed by the short time afforded to him on a Tuesday. He wants to be able to take the child to his home, which is understandable, particularly during the dark and unpleasant winter evenings.
24. He blames his use of alcohol on what he describes as the very stressful hospitality industry in which he has made a career for himself in which it is relatively common practice for employees to drink after their shifts finish late at night or in the early hours of the morning. He told the court that his employer bans drinking on the premises save for, occasionally, after a particularly busy shift. He said he had thought of moving jobs but did not know what else he could do; he has been in the industry for more than fifteen years.
25. He explained to the court that although his use of alcohol has some effect on his health, causing tiredness, lack of sleep and high blood pressure, he does not accept that his habit had adversely affected his behaviour. He told the court and Dr Engelbrecht that he drinks four days per week, about 4 or 5 double gin and tonics on each occasion. He accepted that his consumption amounted to the equivalent of drinking two bottles or so of gin each week. I note that Dr Engelbrecht considers that the Father may under report his alcohol consumption.
26. He told the court that on the night of 30th September, 2019, he had consumed 3 or 4 pints (I assume of beer) at around 1am which, he says, explains why the alcohol reading taken by the breathalyser showed traces of alcohol when he was tested after trying to pick up the child from school the next day. The court is aware that the metabolism of alcohol by any individual is dependent on a number of factors and that while the conventional wisdom is that the body metabolises alcohol at a rate of 1 unit per hour, this may not always be the case. Nonetheless, with the Father's history of chronic alcohol misuse, it is understandable that the Mother was sceptical about the Father's claim to have stopped drinking in the early hours of the morning when he was due to have his weekly visit with the child the next day. I share her scepticism about the Father's evidence in this regard.
27. The Father denies that his alcohol consumption has any effect or impact whatsoever on the child; he said that there are no risks to the child caused by alcohol and says that he would never knowingly or deliberately expose his daughter to harm. However, he considered that he had given the undertakings to the court not to drink during or for the twelve hour period before exercising contact to safeguard him and his daughter. He said that he was not an experienced father but hoped that, with time and opportunity, he would come to better understand the child's wishes and needs.
28. The JFCAS officer has been involved with this family since March 2019; she has met with the parents and with the child and facilitated a series of meetings between the child and her father at JFCAS for the purpose of enabling contact to take place, but also to assess the Father's interaction with his daughter. She concluded in her report of 26th June, 2019, that the Father's continued misuse of alcohol had led to a fracture in the child's relationship with him and that she had encouraged the Father to adapt his interaction with the child to better suit her stage of development. She had also recommended that once the Father undertook the work necessary to address his alcohol misuse, contact could develop and increase and the quality of their relationship and his understanding would improve.
29. In her position statement prepared for the cross applications with which I am now concerned, the JFCAS officer reported on recent contact sessions. In fairness to the Father, at none of these sessions was there any evidence that the Father was under the influence of alcohol.
30. The JFCAS officer's evidence was that the child has recently shown a marked reluctance to participate in contact with her Father; she is particularly concerned that in spite of her advice not to buy presents for the child at every contact, he continues to do so.
31. The JFCAS officer also expressed concern about recent toileting issues and took from the child's reluctance to tell her Father that she needed the toilet that the child was showing signs of distress and feeling insecure in her father's care. The Mother told the court that there had been a small number of recent toileting issues but did not go so far as to apportion blame for this on the Father, which does her credit. The JFCAS officer considers that the recent soiling incident is an overt expression of the child's feelings about her Father: the child did not feel secure enough to tell her father that she needed the toilet. I cannot be sure that this is a safe conclusion for the court to reach, given that it is not unusual for a child of this age to have toileting accidents.
32. The JFCAS officer describes the Father as a functioning alcoholic; she accepts that he is always on time and present for contact but adopting the description used by the Mother, she says that the Father's most significant relationship is with alcohol. The JFCAS officer describes the Father as being physically present during contact but not engaging with the child in an age appropriate way.
33. I am troubled by what the JFCAS officer told me about the Father's depth and extent of engagement with the child during the contact sessions which have been observed by JFCAS; they do, indeed, appear to demonstrate the Father's lack of attunement to the child's needs and interests. I accept the evidence of the Father that this parenting in a bubble and under supervision is not easy or natural; he tells the court that away from JFCAS, the child relaxes but I share the JFCAS officer's concern about the Father's apparent determination, in spite of the advice he has been given, to buy presents for the child at every contact. He told the court that she needs to have something to play with while they are out eating and that he cannot bring larger toys from his home but I am concerned that he does not feel able to entertain the child for any meaningful length of time without "props". The child is said to be chatty and bright and so one might think that the child and her father could share dinner once a week without needing toys to entertain her.
34. The JFCAS officer accepts that none of the Father's behaviour is putting the child at physical risk but believes that the child's emotional wellbeing is being harmed by the extant and continuing conflict between the parents. The JFCAS officer explained to the court that she considers that the Mother's anxiety about the child's wellbeing in her Father's care is understandable and she added that if the Mother was not worried, JFCAS would have cause to be concerned about her own parenting. There is, she says, no evidence of parental alienation. I agree.
35. The JFCAS officer concluded that it is not a case of the Father being unable to provide quality contact with the child. The relationship between the child and her father needs "scaffolding" because of the alcohol issue, including, for example, some kind of safeguarding portal to ensure that the Father did not drink before contact. However, the social worker accepted that the Father has, for the last few years, behaved responsibly when he was with the child and that there was no particular reason to limit the length of time which each contact session took - the current limitation on a Tuesday reflects the practical problems of juggling school and JFCAS opening hours. Her clear view, however, was that the number of contact sessions need to reduce because weekly contact was damaging for the child and contact after school was not ideal for a child of this age. Her advice was that Tuesday contact was not working.
36. Neither the JFCAS officer nor, indeed, the Mother, can understand why the Father has not taken the advice offered to him and made a meaningful change to his lifestyle for the sake of his daughter over the two or more years in which this matter has been the subject of proceedings: he clearly loves his daughter and very much wants to be a part of her life.
37. The JFCAS officer reflected that unless the arrangement changes, the child will suffer because she will be exposed to this unnatural forced contact every week; this does not serve her welfare. The child does not currently feel free to go to contact, the JFCAS officer concludes, because the Mother has residual fears about her safety and wellbeing and the child senses this ill-concealed anxiety.
38. This is an application under Article 10 of the Children (Jersey) Law 2002 (the "Law") but the overarching principles to which the court must turn its mind are set out in Article 2 of the Law.
"(1) When the court determines any question with respect to -
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
(3) In the circumstances mentioned in paragraph (4), the court shall have regard in particular 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.
(4) The circumstances are that -
(a) the court is considering whether to make, vary or discharge an Article 10 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b) the court is considering whether to make, vary or discharge an order under Part 4.
(5) Where the court is considering whether or not to make 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." Emphasis added.
39. Although local authorities were put before me, they were included, if I have understood what Advocate Brown told me correctly, rather more for the purpose of comparing how the Royal Court has dealt with parents with alcohol issues in public law proceedings, than for seeking to persuade the court that I should consider them as authority for the determination which I am asked to make.
40. As important as the issue at stake is to the parents, it seems to me that the court's focus in determining this application starts and finishes with the child and her welfare in accordance with Article 2(3) and the possible effect on her of the current arrangements, any change thereto and her welfare in general, both as a child and in years to come.
41. The child's welfare is, as far as her relationship with her father is concerned, seen through the distorting prism of a bottle and the court needs to consider the likely effect on her in the short and long term of exposure to harm, not because of any deliberate act by the Father but rather more because of the apparent priority, however unconscious or unintended, which he gives to his relationship with alcohol.
42. The court was acutely aware of the intensity of feeling between the parents about the Father's contact with the child; the Mother told the court that she had no feelings for, or about, the Father but the tenor of her evidence suggested that she felt a significant amount of hostility towards, if not him then, the situation in which the child finds herself.
43. The Mother told me that she sees no reason to promote or champion the Father in the child's presence, which was a shame because, inasmuch as her frustration about the Father's continuing relationship with alcohol is understandable, a child of this age is very capable of picking up and mirroring such animosity.
44. It was telling that this child did not want to discuss how contact with her Father had gone with anyone in her maternal family or, indeed, with JFCAS. While the court draws the conclusion that this may be, at least in part, because of the Mother's hostility towards the Father, I do not doubt the Mother when she says that she wants the Father to address his issue with alcohol so that the can have a "normal" relationship with him.
45. Sadly, I am left with the ineluctable impression that contact in its current form is not working for this young girl and I reach the conclusion that she does not want to discuss contact, not only because of her Mother's deep seated feelings about it, but also because it is not an enjoyable experience for her in this currently very unnatural form.
46. The Mother's overt hostility is not, on the facts of this case, evidence of any implacable hostility to contact. The Mother told the court (and I believed her) that she thinks that the child wants a "normal" relationship with her father, such as the one which the child sees between her older half-sister and her father. This evidence accords with what the JFCAS officer told the court; the child wants to see her father and was delighted, for example, that he was able to come to the school but this little girl has had enough of being shipped around and of arrangements being changed and routine being disrupted. The child prefers to be, as most of us do, in an environment where she feels secure. Like most young people, the child needs routine.
47. That these changes to contact have been imposed upon the child is due to the Father's misuse of alcohol and his apparent inability, reluctance or refusal to accept that, unless this changes and changes permanently, the child will never have the relationship with him which she deserves and which he says that he wants.
48. The court finds that the Father has been given ample time to address this issue - nearly three years under the watch of the court; any more delay in resolving this issue for good is not in the child's best interests and it is for this reason that I indicated at the beginning and end of the hearing and the beginning of this judgment that, in accordance with Article 2(2) of the Law, this litigation must cease.
49. Without meaningful change, the child will not get the relationship with her Father that she wants and deserves. While I do not consider that the child is at risk of acute harm in her Father's care, I find it troubling that he is unable to see that the drinking, which he said was "a private matter for him", and the welfare of his daughter are not, in fact, separate. A child's welfare is inextricably linked to the emotional and physical health and mental wellbeing of each of his or her parents and the compartmentalisation which the Father describes is a construct without foundation.
50. I am satisfied that the child should be given an opportunity to know her Father (and, indeed, his family) properly and that it is in her best interests to continue to see him, albeit in a different way. Unless the Father addresses his misuse of alcohol once and for all, this contact will be permanently limited.
51. As concerned as I am, I am mindful of the Article 8 (of the ECHR) rights of each of the individuals involved in this litigation. Weighing those up against my concerns about the child's welfare, the risk to her wellbeing and happiness, I do not accept that contact should be as limited as the JFCAS officer suggests i.e. four times per year; this seems to me to be unnecessarily punitive of the Father but more importantly, such a restriction risks making it very difficult for the child to develop any sort of relationship with him and his family as she grows up. While I agree with the JFCAS officer that contact needs to change, I fear that without the Mother if not promoting, then at least referencing the Father in positive terms, contact every three months will not be meaningful or memorable enough for the child, as she grows, to enable her to see her Father as having a part to play in who she is and what she will become. Three months is a very long time for a child of her age.
52. I balance against that concern the fear that if the Father does not seek treatment for, and positively change, his relationship with alcohol, the child might learn from him an acceptance of alcohol as the answer to problems i.e. as she grows and becomes aware of (and potentially exposed to) his use of alcohol she may, herself, develop maladaptive coping strategies when she faces adversity. This is a risk which the court cannot quantify but I am satisfied that some "scaffolding" remains necessary unless and until the Father makes positive and meaningful change.
53. I do not think that it is in the child's best interests for contact, when it happens, to be rushed and slotted in after what might seem like a long school day to a child of this age. It needs to take place at a weekend.
54. Accordingly, I order a reduction and a change in contact: the child will, going forward, spend 10am to 3pm with her father on a Sunday once every calendar month, starting on 15th December 2019. Subject to the contact centre being able to accommodate such contact, the Father will collect and drop off the child from there. The safeguarding "portal" remains essential.
55. This level of contact will mean that the child will see the Father twelve times a year, but for a longer period on each occasion. I expect the Mother to ensure that family holidays/parties etc. do not interfere with this contact.
56. Any credible evidence that the Father is consuming alcohol during contact will likely result in the court ordering the immediate cessation of contact.
57. The Father will have to work hard to re-establish his relationship with the child. The court expects him to participate in her school life, to receive copies of her school reports and to be able to attend e.g. nativity plays, school concerts etc. but these occasions should not be treated or used as a further opportunity for contact. The child needs to know when she will see her father and needs to be able to rely upon him to meet her every need at every contact.
58. If the Father is given an opportunity to participate albeit in this limited way in the child's education and extra-curricular interests, it will provide him with a chance to demonstrate when he does see the child that he has an idea of what is going on in her life and to give him an insight into what matters to a child of her age so that he can use these events as small building blocks to establish a firm relationship with his daughter. He cannot and should not need to buy her love and attention through gifts.
59. In the periods between contact, the Father can send cards/letters to the child and the Mother will encourage the child to reply/send/make a card for special occasions e.g. Father's Day/birthdays.
60. No further applications by the Father to increase contact will be entertained unless and until he can demonstrate by hair strand testing a significant reduction in alcohol use over at least a six month period.
Authorities
Children (Jersey) Law 2002.