Jersey Unreported Judgments

Family - reasons for granting the father's application

[2020]JRC077A

Royal Court

(Family)

30 April 2020

Advocate L. J. Glynn for the Applicant.

The Respondent did not appear and was not represented.

reasons

the registrar:

1.        I am concerned with a young man, ("the son"), currently in his mid-teens.

2.        The hearing today was arranged about four months ago when both T and S came to court with their lawyers.  At that hearing, T and S agreed that the son should come to court to meet me so that he could tell me how he feels about the application which S ("the father") has made, asking the court to make an order that he should live with him.  T ("the mother") does not want me to make that order.

3.        The mum sent an email to the court last week, in effect, asking me to put off today's hearing.  She sent me a copy of a letter from her GP which said that she was not doing well and that she was struggling because of the COVID-19 pandemic.  She cannot really work at the moment and she does not feel up to dealing with the hearing.  I feel sorry for her and understand that it is difficult to deal with a hearing like this one; although she had a lawyer helping her, she has not had any such help since February of this year.

4.        I asked the mum (by email) to join in the hearing today and to tell me why she did not think the hearing should go ahead.  I really wanted to hear from her because she had not told me or explained to me why she could, or would, not agree to let the son live with his dad.  I had ordered her to send me a statement or some sort of written explanation setting out why she could not agree but she did not do so.  I wanted to be sure that she got a chance to explain to me why delaying this hearing would be better.  A judge wants to give everyone a chance to have their say and the law tells me that I should do this so that a hearing is fair.

5.        I put off the hearing for a few minutes at the beginning to give the mum extra time to join the video hearing (which was not face to face because of current social distancing requirements) but she did not join the call.  I think that this is a pity and I told the father that if she had taken part, I would have been sympathetic to what she wanted.  However, I need to be fair to everyone and even if someone does not have a lawyer to put their case to the court, they usually need to follow court orders and to take part in court hearings unless the court tells them that they do not have to participate.

My decisions

6.        I have not ignored what his mum's doctor has said but I have to weigh up what is best for the son against what is best for his mum.  The law tells me that I have to put the son's needs first and that I must do all that I can to avoid delay.  At just after 11am, and as there was no sign of his mum, I made the decision to go ahead with the hearing about the son.

7.        At the end of the hearing, I decided that I would make an order that the son should live with his dad.  I also said that he should be able to contact his mum when he likes but I am not forcing him to do so.

Why I made these decisions

8.        I promised the son when he came to meet me earlier this year that I would explain why I have made the decisions which I have today.  I told him that, if he wanted to, he could come to see me to ask me about my decision so it is important that I explain that decision in terms which the son can follow.  For once, I am not going to pepper my writing with legal terms and complex concepts; this application is about this young man and it is important that I put him at the very heart of my decision and the explanation for my decision.  I have read what his dad has written about the application and have taken that into account; his dad is now very much focussed on what his son wants and so I do not need to set out what his dad has told the court in writing to explain why I have reached the decision which I have.

9.        The parents split up about ten years ago and since that split, they have been arguing about him and his older sister.  His mum and dad originally agreed that he would share his time between them but the son has been living with his father for the last eighteen months and has not really seen his mum during that time.  The son told me that, over the year or so before he made the decision to live with his dad, he found it increasingly difficult to live with his mum.

10.      He told me that he was scared of her at times, that she did not respect his wishes or feelings, that she had smacked him across the head and that when she has had a drink, she gets cross and reacts too quickly.  Social workers have become involved in the lives of the family and they listened to the son when he told them that he did not like his mum picking his spots.  His mum agreed to sign a contract saying that she would stop doing this but she carried on doing it; this, he told me, made him upset and made him feel like his mum had no respect for him and his feelings.  He also felt let down because his mum had promised to stop drinking when he was staying with her and she carried on.

11.      The son told me that his mum thinks his dad was behind the decision he made about 18 months ago to move from the joint care of his parents to live only with his father.  He told me that this was not true.  He also told me that his father had nagged him to get in contact with his mother.  The son was very clear when he spoke to me that he does not feel ready to contact her yet.

12.      Both parents told me that he had left some of his things at his mum's home.  Last year, when I suggested to his mum that she should give these things back, she did not want to do as I suggested.  I ordered her to give the son his things and he told me when we met that he was cross that it had taken a court order to make his mum give him his things back.  Instead of being the bridge that I hoped would reunite the son with his mum, it has made him more upset with her.

13.      The son is nearly at the age when the court cannot and should not really make orders about him.  The older a child is, the less reason there should be for court interference in his or her life because the better able he or she should be to make decisions about their future.

14.      I told him when we met that his wishes and feelings were important but that they were not the only thing I had to think about.  I explained that although I have listened to him, it is my decision, not his - he cannot and should not be blamed for (or worry about being blamed for) what I decide.  I need to think about all of the information put before me.

15.      I have thought about his age, what he needs or might need in the future and about the effect on him of making the order which his dad is asking me to make.  I have also thought about reasons why I might not make that order, leaving him under a shared residence arrangement.  I explained to him that for most children, it is better for them to have good relationships with both parents.

16.      I have heard from the son about how he feels about being with his mum, and how it makes him feel at the moment; he was able to tell me some good things about his mum, like how she is good at cooking.  He told me that his dad is not good at cooking and is not very organised.  He told me that his dad is really good at teaching him right from wrong and how to defend himself.  He said that his mum does not find it easy to give up her time to do things with him and she drinks too much alcohol.  This worried me, mostly because of what the son had told me about being scared of her and how she reacts.

17.      When I was weighing up the good things and the things about mum which made the son worried, I thought about him telling me that he was fed up of his parents not being able to agree and how he wanted to put this behind him.  I think that it is really important that the son can put this disagreement behind him and get on with his life.  This is one of reasons that I decided that it was important not to put off making a decision; I have read that the son can be sensitive and I do not think it is in his best interests for there to be any further delay.

18.      He told me that he was really worried about not being able to go on a school trip this summer because last year his mum had not been happy about him going to his sister's graduation.  He told me that his sister does not really speak to their mum.  They fell out when she was a teenager and she stays with their dad when she is on the island.  I have seen papers from his mum saying that she thinks that this is also his father's fault.  I am not sure that this is right but, in fairness to the mum, she has not sent me her evidence or appeared to explain why she feels that way.  Even if she did not feel up to taking part in today's hearing, I think that she could have put her thoughts and her version of events in writing and I could have taken these into account.

19.      I discussed his sister with him because I was worried that he might not have anyone he could talk to about how he feels; I was glad to hear that he felt he could talk to his Youth Worker.  He told me that he did not feel able to talk to his sister about how he feels. 

20.      I asked him what sort of contact with his mum he might be prepared to have.  He told me that contact might start by the exchange of WhatsApp messages.  I am not making an order that he does contact his mum, but think that it is important that his dad continues to encourage him to contact her.

21.      I hope that the son can see that I have thought very carefully about his welfare.  His wishes and feelings, because of his age and understanding, are very important.  He is an intelligent young man and he has told me about his plans for the future.

22.       A young person of this age will not and should not always be able to do just what he likes but because I consider his feelings and experience to be so important, and that they are truly a reflection of how he feels and because I believe that this is what he really wants, I am agreeing to his father's application which is in line with what the son wants, and I think, needs - for now.

23.      I hope that the son will remember what I said when we met; even if he does not feel like doing so now, he needs to give his mum a chance in his own time.

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