Jersey Unreported Judgments

Matrimonial - re: shared residence order.

[2020]JRC161A

Royal Court

(Samedi)

10 August 2020

Before     :

Elizabeth Daultrey, Registrar, Family Division

 

Advocate M. R. Godden for the Petitioner.

Advocate M. J. Haines for the Respondent.

judgment

reasons

the Registrar:

Background

1.        The parties married in 2006 following a three-year cohabitation.  There are two children of the marriage Child 1 [redacted] and Child 2 [redacted].  The parties separated in 2014 and subsequently divorced.  There has been extensive litigation between the parties, predominantly dealing with financial issues.  The parties reached agreement regarding the arrangements for their children following cross applications for residence and the involvement of JFCAS.  The resulting consent order dated the 3^rd November, 2015 provides that there be a residence order in favour of the respondent mother, with contact to the applicant every Wednesday overnight and each alternate weekend from Friday through to Monday.  The effect of the order is that, in a 14 day period, the children spend five nights with the father and nine nights with the mother.  In addition, the 2015 order details arrangements for school holidays namely that the children alternate between their parents at half term holidays.  Arrangements for Christmas, New Year, Easter bank holidays, are for the children to alternate between their parents on an annual basis.  In the school summer holidays, the order provides for each parent to have a consecutive period of two weeks with the children.  School holidays are not otherwise shared equally.  The order also makes prescriptive arrangements for birthdays, high days and other bank holidays. 

The 2015 order has been adhered to by the parties.

2.        In September 2019 Child 1 made disclosures at her school, in essence, that her mother had been physically verbally and emotionally abusive towards her.  Children's Services became involved with the family as a result of these disclosures.  Child 1 repeated the allegations to the allocated social worker alleging that her mother had hit her on one occasion, and that she was scared that she would hit her again.  Child 1 was also said to be self-harming and restricting her food intake.  Both the mother and Child 1 reported a significant deterioration in their relationship over late summer into early autumn 2019, Child 1 reporting that her mother shouted at her, and the respondent mother reporting that Child 1 was behaving aggressively towards her.  Child 1 was referred to CAMHS by her GP on the 24^th September 2019.  In [redacted] 2019 Child 1 took an overdose of six paracetamol tablets whilst at school and received hospital treatment.  Fortunately she made a full recovery. 

3.        On the 10^th December 2019, the applicant father issued an application for a residence order for both children.  As part of this application father has also sought a change to the arrangements for the collection and drop-off of the children to be shared between the parents, a change in the arrangements for the handover of the children's passports and a change as to the arrangements during school holidays.

4.        For convenience I shall refer to the applicant as "the Father" and the respondent as "the Mother".

Evidence before the Court

5.        Each party has filed a sworn statement and the Father has filed emails and a draft order setting out the detail of his proposals.  The Court has the benefit of extensive documentation from Children's Services comprising a Child and Family Assessment dated 8^th November 2019; a Child's Plan dated 25^th November 2019; also 5 sets of  minutes of reviews and a meeting dated 20^th December 2019; 23^rd January 2020; 12^th February 2020; 18^th March 2020; 24^th April 2020.  The Court has the benefit of reports from JFCAS and CAMHS.  The parties have included in the bundle documents from earlier proceedings between the parties, relating to the children and finances.  A skeleton argument is filed on behalf of the Mother. 

The parties and the JFCAS officer each gave evidence at the hearing. 

Children's Services

6.        The family were referred to Children's Services in September 2019.  A child and family assessment dated the 8^th November 2019, concludes: "The family as a whole is still strongly impacted by the parent's separation which occurred five years ago.  The parents have been unable to co-parent effectively and have a lack of communication.  The parents are unlikely to be able to co-parent in the future.  This acrimony between the parents has had a large amount of impact on [Child 1 and Child 2]."  

7.        The assessment details that mother suffers from anxiety that "her moods are observed by the children and she needs to be able to manage this in order to better support the children with managing their emotions".  Regarding the Father, the assessment states "P has told [Child 1] about the court cases and put responsibility on her to seek help".  The report continues "as a result of the above, both children are feeling divided, or unsure about sharing information with their parents and their emotional needs are not being met. [Child 1] is self-harming, she is questioning her identity, as well as changing physically and being concerned about her peers. On top of this she is worried about 'adult issues' like court cases, her mother's anxiety, and [Child 2] and moving houses."

8.        These themes, as to how the parents affect the children through their own behaviours, are repeated throughout the assessment and subsequent review documentation from Children's Services. 

9.        As a result of the November 2019 assessment, the children were placed under a child in need plan.

10.      The father did not attend meetings with Children's Services in November and December 2019 and in January and February 2020.  During these months, professionals working with the family expressed concern that the father was not engaging with them.

11.      Children's Services continue to be involved with the family.  The most recent documented review took place on 24^th April 2020.  Both parents attended and confirmed that they would be willing to attend family therapy, although each subject to their own reservations regarding the management of the process.  Children's Services recommended that both parents attend the "keeping the children in mind" program, that mother undertake courses regarding parenting teenagers as well as ongoing support from Children Services and CAMHS.  The report also highlights the ongoing requirement for the parents (inter alia) not to share adult information with Child 1, to be better informed about the causes of self-harming and not to disparage the other to the children.

CAMHS

12.      Child 1 was referred to CAMHS by her GP on the 24th September 2019, due to issues of low mood, poor sleep, suicidal ideation and hearing voices.  Child 1 was subsequently referred to the eating disorder service at CAMHS. 

13.      The court was provided with a brief report dated 8th June 2020 from Dr Laura Penn, clinical psychologist and systemic and family psychotherapist, regarding the involvement of CAMHS with Child 1.  Happily it is reported that Child 1's eating pattern is no longer problematic and that she no longer requires support from the eating disorder service.  Child 1 continues to receive well-being support and is on the CAMHS general waiting list for allocation for individual therapy.  

JFCAS

14.      The JFCAS officer provided a full report dated the 22^nd April 2020, in which she makes reference to an earlier JFCAS report prepared in the previous proceedings in 2015. 

15.      The JFCAS officer spoke to Child 1 on four occasions, twice when each of her parents brought her into the JFCAS office, and on two further occasions by telephone.  This is unusual, and the JFCAS officer explained in evidence that she wanted Child 1 to approve how her wishes and feelings were worded in the court report, due to Child 1's concerns that her wishes would upset her mother. 

16.      The JFCAS officer describes Child 1 as "an anxious young person who is struggling with a lack of confidence in who she is as a person", nevertheless the JFCAS officer reports that Child 1 is articulate and "very able to express her feelings and views".  Child 1 clearly expressed her wishes, namely that she wants to spend more time living with her father because her mother was stressed which led to her constantly shouting at Child 1.  Child 1's school are reported to describe the relationship between mother and daughter as "tense", also that Child 1 had spoken to the school counsellor about having a "difficult relationship with her mum".  Child 1's school made a MASH referral on the 25^th February 2020.  Their concerns are set out in the JFCAS report as follows:-

"[  ] School are aware that there has been a significant level of acrimony between parents and that there are concerns about how this has impacted [Child 1's] [sic] emotional wellbeing. [  ] School have attended the Child In Need Meetings in relation to [Child 1] [sic] and have expressed concern that the case will be 'stepped down' to Early Help as there are concerns in relation to [Child 1's]' [sic] emotional wellbeing. [Child 1] [sic] is currently accessing the Eating Disorder clinic and is under CAMHS [Child 1] [sic] has had periods of self-harming.

-¢ Child 1 [sic] has reported that she has been 'hearing voices' at times.

-¢ Child 1 [sic] has openly discussed with the school counsellor her concerns about having a 'strained 'relationship with her mother.

-¢ There are further concerns in relation to the lack of parental engagement in relation to this child's needs. It is reported that the Children's Service that Dad had not engaged with the assessment conducted by their Service"

17.      The JFCAS officer met with Child 2 twice, her wishes are "I want things to stay as they are. I like spending more time with mum".  Child 2's school did not report any concerns, but are said to be "aware of the acrimony between the parents which impacts on [Child 2]".

18.      The JFCAS report concludes: -

"57.     I have no doubt that both these parents love their children. However, in my opinion they are so stuck in the past and what happened in their relationship and in blaming each other. Neither are prepared to let go of their own feelings and views and place the needs of the children above their need to attack the other parent. Also in my opinion neither appear to realise how seriously this is impacting on their children especially [Child 1] who is physically showing them how bad she is feeling by her self-harming behaviours. Their behaviour needs to stop and it needs to stops now for the sake of their children. They need to agree on basic parenting such as age appropriate behaviours, routine, boundaries as both children need these to make them feel safe and secure. These parents need to accept that they are equal parents and are both responsible for the wellbeing of their daughters.

58.      From speaking with both children it is clear that they wish to have a relationship with both parents. [Child 2] wishes things to remain the same but [Child 2] is very clear in expressing her view that she wishes to spend more of her time with her father. It is also very clear that the relationship between [Child 1] and her mother is impacting on both children. Given all the information I have read and discussions with other professionals involved with the children I am minded to suggest [Child 1] may benefit from spending more time with her father and less time with her mother. This will not only allow and enable some space between [O] and [Child 1] to hopefully be able to rebuild their relationship but it will also provide some space for [Child 2] to have some time with her mother that is not dominated by her sister and mother's relationship. With this in mind I am minded to suggest that both parents have shared residence of both children but that [Child 1] spends equal amount of days, seven days with each parent and [Child 2's] arrangement remains the same."

19.      Giving evidence at the hearing, the JFCAS officer reaffirmed that she felt that Child 1 was able to articulate her views and confident enough to speak her mind.  Given that she is seeking a minor change and given her age "she should have a say".  The JFCAS officer expressed confidence, that if Child 1's views had changed over the past month, that Child 1 would've contacted her.  The JFCAS officer expressed concern that if Child 1's wishes and feelings were not reflected in the order the court makes, that she may blame her mother and it may worsen their relationship. 

20.      In cross-examination by advocate Godden on behalf of the Mother, the JFCAS officer agreed that it could be a concern if the father was not cooperating fully with the professionals involved in the family, however she confirmed that both parents had engaged fully with her.  In response to being challenged as to her recommendation, the JFCAS officer confirmed that neither the Mother nor the children had raised concerns about the Father's care of the children and the change proposed is small.

21.      The JFCAS officer recommended that the parents take up the option of family therapy, not least because they have different parenting styles, she said "I would hope that these parents could meet halfway. It's about helping the children. It's not about an extra night, it is a battle between them and it should be about what is right for their children". She feels that a shared residence order would assist Father taking responsibility for ensuring that practical arrangements for the children would not be left entirely upon the Mother's shoulders, as shared residence would "Put ownership" upon the Father, that he must be solely responsible for the children on the days that they are to be in his care. 

22.      The JFCAS officer confirmed her support for father's proposals for a change in school holiday arrangements and the arrangements for managing the children's passports.  The JFCAS officer did however share mothers concerns regarding father's proposals for collection and return of the children from outside father's home, due to basic road safety issues as there is nowhere to park a vehicle outside Father's home.

Father's position and evidence

23.      The Father gave sworn evidence at the hearing.  So far as he is concerned, Child 1's problems relate directly to her relationship with her mother and to the mother's behaviour towards Child 1.  When Child 1 is in his care, there are no difficulties when there are no signs of an eating disorder or self-harm. 

24.      In cross-examination by advocate Godden, the Father explained his initial lack of communication with Children Services, on the basis that in his view, Child 1's problems were a matter of "cause and effect", he was taking action to deal with the "cause" namely applying for a residence order that the children live with him rather than mother, whilst Children Services were dealing with the "effect", namely Child 1's problems with eating disorders, self-harm and overdose.  Father has not undertaken nor attempted to undertake the "Keeping Children in Mind" course recommended by Children's Services.

25.      The Father was asked directly by advocate Godden whether he accepted any responsibility for Child 1's problems, his response was "I'm not a perfect parent but I do my best".  The father was also cross-examined regarding examples of the difficulties in the parent's ability to work together and communicate over the years, in particular father was asked about an unpleasant email he had sent to the mother some years earlier.  The Father was asked to accept, in retrospect, the unpleasant nature of this communication, his response was "I've received worse...you decide". 

26.      The Father gave evidence regarding the Mother's relationship with her own mother to paint the Mother in a poor light.  I did not find this helpful save to highlight the acrimony between these parents.

Mother's evidence and position

27.      The mother's evidence is that prior to the children spending two weeks with their father in late summer 2019, all was well with Child 1 and with Child 1's relationship with herself.  From September 2019 mother described a "bombshell" of Child 1's behaviour and growing difficulties. 

28.      The mother was very clear in her views as to what had caused this, she described a culmination of Child 1 reaching puberty, bereavement in terms of losing grandparents, confusion regarding her sexuality.  On top of that, the mother believes that the father had waged a deliberate and malicious campaign to damage her relationship with Child 1 by discussing openly with Child 1, adult issues, predominantly the divorce in terms that held mother responsible for the problems the family had experienced, and for father's financial problems.  The Mother believes that father has undertaken this campaign with the motivation to damage her personally in financial terms and to damage her relationship with the children. 

29.      Mother admitted having anxiety problems but did not agree that her own difficulties had caused or contributed to any of the difficulties in her relationship with either of the children, or that her anxiety would contribute either to Child 1's difficulties or her wish to spend more time with her father.  Mother described how she manages her anxiety so that it does not affect the children, she denies the allegations made against her, or that Child 1 is frightened of her, or that she shouts at the children unduly, or that she hit Child 1.  She points out that since January 2020, after the involvement of professionals to help Child 1, that Child 1 has made no further allegations.  It is her belief that the children would simply like the court proceedings to end and everything go back to how it was before.  Mother describes her family life with the children as having been "perfect" until the children came back from spending two weeks with their father in August 2019. 

30.      She believes that Child 1 has made false allegations against her to facilitate father making an application for residence.  She says the children have been "drilled" by the Father, "I believe that if [Child 1] hadn't been told that the divorce was my fault, everything would be fine".

31.      The mother accepts that Child 1 is old enough for her views to be taken into account but does not accept that the views that Child 1 has expressed to the professionals are her own views.

32.      Mother wishes the present contact and residence arrangements should be left in place unchanged, because this will enable her to rebuild her relationship with Child 1.  Mother believes that if Child 1 spends any more time with her father it will simply provide the father with an opportunity to further undermine her relationship with Child 1, she said "more days will allow him to cause more damage".

33.      Mother to her credit has worked well with the professionals and has undertaken at all the work recommended by them.  She has undertaken the "Keeping Children in Mind" course, and the "Triple P" course.  She has attempted to undertake the "Putting Children First" course but has been prevented by lockdown.  Mother described how these courses had helped her to develop skills to understand and manage Child 1's behaviours. 

34.      Mother wishes to retain sole residence so that she can make sure that the arrangements for the children are properly organised.  She believes that father is capable of deliberately undermining the boundaries and routines she puts in place.  She gave an example of the father having provided Child 1 with 4G top up for her phone during a period in which the mother had limited Internet access for Child 1 up to 10:30 pm.  Mother also gave evidence that the father not infrequently did not pick the children up at the times stipulated in the order and that when this happened she had to make arrangements for childcare at short notice. 

The Law

35.      This is an application for a residence order pursuant to Article 10(1) (c) of the Children (Jersey) Law 2002 ("the Law").  In considering such an application I must give consideration to the principles set out in Article 2 of the Law, first and foremost that the child's welfare is the court's paramount consideration.

Article 2(3) sets out the so called "welfare checklist" as follows:

"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."

Article 2(5) provides that the court:

"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."

36.      Regarding the question of shared residence, each of the parties' advocates refers to the case of J v I (Family) [2013] JRC 157, which cites and approves the judgement in the case of  B v A [2010] JRC 172:-

"40     We draw from these cases the principle that shared residence orders should be made in two categories of case (ignoring the third for the moment). The first is where such an order reflects the practical realities of the children's lives; also referred to by some judges as the situation on the ground. The importance of this requirement has been repeatedly stated, as is shown from the emphasized passages in the extracts cited earlier. The requirement for shared residence to reflect the practical realities does not require there to be an equal division of time spent between the parents, but it requires the court to be able to answer Ward, L.J.'s question in In re H (7) (see para. 38 above) in the second manner which he gives, namely: "Oh, we live with mummy for part of the time and with daddy for the other part of the time."

"42     The second ground upon which a shared residence order may be made is that referred to by Potter, P., namely where it is psychologically beneficial to the parents in emphasizing the equality of their position and responsibilities. This second category has been subject to some criticism (e.g. Gilmore (supra) [2010] Fam. Law at 289) on the ground that, read literally, it suggests that a benefit to the parents alone would be a good reason to make a shared residence order. Given that the child's welfare must always be the paramount consideration in such cases, we do not believe the President was intending to suggest this and we have no doubt that, although he did not spell it out specifically, the President was saying that there may be benefit to the child as a result of the benefit to the parents in emphasizing the equality of their position and responsibilities."

37.      Advocate Haines on behalf of the Father argues that the case for a shared residence order under the first "ground" is "overwhelming" but that the second "ground" also applies.  The parents do not work well together therefore the equality which shared residence would confer can only improve co-parenting. 

38.      Advocate Godden on behalf of the Mother argues that the case for shared residence fails under the first "ground" because: "the Mother is the primary carer and the primary home for the girls is with her", the second ground fails because a shared residence order "would not be psychologically beneficial to the Mother".

39.      Advocate Godden cites Re W (Shared Residence Order) [2009], 2 FLR 436 as authority for the proposition that the inability of the parents to work in harmony is not by itself a reason for making a shared residence order.  He argues that, as the Mother has always abided by the 2015 order it follows that, in the present case there is no need or benefit in making an order for shared residence, 

40.      As to the question of increasing the time Child 1 spends with her father, Advocate Haines asks the court to follow the recommendations of the JFCAS officer.

41.      Advocate Godden points out that under Article 2(3) of the Law, the children's wishes and feelings are only one factor to be take into account. His skeleton argument stares as follows:

"13.     It is therefore clear that the paramount consideration of the Court is [Child 1 and Child 2's] welfare.  It is accepted that the girls wishes and feelings are a factor that the Court must have regard to when considering welfare however as the Royal Court made clear in J v I (Family) JRC 157 (please see Tab 25, pages 299 to 320 of the bundle):

"We appreciate that a child's wishes are of importance, increasingly so as the child gets older, and they are one of the factors to take into account under the welfare checklist, but to simply give effect to a child's wishes without more is, we think, an abandonment of parenthood." (Tab 25, page 316)

14.      That is not to say that [Child 1's] wishes should not be taken into account by this Court, the Mother accepts that they should but when considered in light of inter alia the other factors at paragraph 10 the Mother's position is that [Child 1's] welfare is not met by a change to the status quo."

Analysis

42.      It is clear from the assessment carried out by the Children's Service in November 2019, and from the successive reviews, that the professionals working with this family are concerned about the continuing acrimony between the parents which has, and is continuing to cause damage to the children.  The JFCAS officer report highlights the acrimony in this family and resulting damage.  Against such graphic evidence, it is therefore striking, that neither parent appears prepared to recognise and take responsibility for the impact that their conduct may have upon their children. 

43.      Child 1 is undergoing a difficult and troubled adolescence, to the extent that she has engaged in potentially life threatening behaviours.  Father's view of this appears to be that her behaviour is the "effect", the "cause" of which is entirely to her relationship with her mother.  In his view, it was a greater priority to commence court proceedings, than to work with the professionals helping his daughter. "I've brought it to court, I've done something" is his attitude.  As far as the Mother is concerned, the allegations made against her by Child 1 and her daughter's wish to spend more time with her father is entirely due to a malicious campaign by the Father to damage her personally.  

44.      In short, each parent entirely blames the other, whilst at the same time failing to recognise or address that the acrimony between them is identified by the professionals as one of the root causes of their daughter's difficulties, I would go as far as to say, that they have each in their own way, weaponised their child's distress to use against the other.  

45.      On the face of it, this is a straight forward decision.  The Father's application is for a change of residence for both children, both in legal terms and that the children should live with him as primary carer.  The JFCAS officer has carried out a thorough and sensitive investigation resulting in a strong recommendation that Child 1 spend equal time between both parents, and that there be a shared residence order in respect of both children.  The Father accepts the JFCAS recommendation, therefore the change now sought by the Father is limited.  

46.      I address first the change in the day to day living arrangements for Child 1.  Despite the Mother's concerns, there is no evidence that spending additional time with her father will be contrary to Child 1's welfare.  The JFCAS officer expresses concern that if Child 1 is not afforded the minor change she requests, that she could blame her mother which might worsen their relationship.  Such an outcome would be contrary to Child 1's welfare.  There is no reason why this young person should not have her modest request granted. 

47.      Regarding arrangements for school holidays, there is no reason why the children should not spend equal time with each parent.  The Mother has not put forward a proposal as to how this might work, save that she resists any change.  I therefore adopt the Father's proposals which are approved by the JFCAS officer. 

48.      In my view there is no reason why the children's passports should not pass freely between the parents so that each parent may take the children on holidays off island.  I shall include in my order the arrangements recommended by the JFCAS officer.

49.      As to collection and return arrangements, these shall remain the same as at present.  Mostly this will be to and from school, otherwise the Father will collect and return to the Mother's home, quite simply because this is the most workable and practical arrangement. 

50.      Turning to the question of joint residence, following B v A, it is my view that the circumstances of this matter, fit with both of the two categories described where a shared residence order is justified.  Firstly, the practical reality of the children's lives is that they have enjoyed a home with each of their parents since the previous order was made in 2015.  Child 1 will spend equal time with each parent moving forward and Child 2 will continue to spend 5 days and nights in each 2 week period with her father.  This is in reality shared care. 

51.      The second category of case where there may be psychological benefit to the parents in emphasizing the equality of their position and responsibilities is, in my view applicable.  There is evidence that in the past the Father has left practical arrangements for childcare upon the Mother's shoulders and that this has made life difficult for her.  Shared residence will emphasise that this is an equal burden upon the parents. 

52.      There is a further reason in this matter as to how a shared residence order may be beneficial to the children.  The Father was not initially invited to meetings with CAMHS, an omission that CAMHS could not explain to the JFCAS officer.  A shared residence order will, in the circumstances of this matter, emphasise the right and the responsibility of each parent to engage with and be engaged by the professionals who will continue to work with Child 1. 

Authorities

Children (Jersey) Law 2002

J v I (Family) [2013] JRC 157

B v A [2010] JRC 172

Re W (Shared Residence Order [2009] 2 FLR 436