Before : |
Elizabeth Daultrey, Registrar, Family Division |
Between |
B (the Father) |
Applicant |
And |
C (the Mother) |
Respondent |
Advocate C. G. Hillier for the Father.
Advocate B. J. Corbett for the Mother.
REASONS
the rEGISTRAR:
1. The court is asked to deal with 3 applications. The applicant seeks a residence order for his child, in the alternative he seeks contact. The respondent's application for an order pursuant to Article 66(8) of the Children (Jersey) law 2002. This application was made by the respondent in 2017 and is renewed in the present proceedings. The respondent also seeks an order that the applicant's parental responsibility for the child be removed by the court.
2. The applicant Father and respondent Mother were not married, their child was born in 2011 and is now aged 9. The relationship between the parties was brief, but the litigation between them relating to the child has been lengthy.
3. For the purpose of these reasons I shall refer to the parties as "the Father" and "the Mother" and the child as "DD".
4. The parents entered into a parental responsibility ("PR") agreement in early 2014. A number of contact orders were made in favour of the Father by consent, and on 26th June 2015, also by consent, an order was made for shared residence. The arrangements broke down in early 2017 and the Mother applied for sole residence and termination of contact. On 20th December 2017, an order was made by consent for a sole residence order in favour of the Mother, further, that there be a 3-month period of weekly supervised contact between DD and the Father. Only one occasion of supervised contact was arranged due to difficulties finding appropriate supervisors, this took place on 12th January 2018, and was said by the JFCAS officer to have been positive. At a hearing on 30th January 2018 before the then Bailiff, 2 possible issues remained open between the parties, namely, the Mother's application for an order pursuant to Article 66(8) of the Children (Jersey) Law 2002 ("Article 66 application") restraining the Father from bringing further applications, also the issue of Father's contact. No conclusion nor way forward was achieved at this hearing, no orders were made and matters were left open that either party could bring such applications as they wished in the future.
5. The Father applied on 21st January 2020 for sole residence of DD. At the initial hearing of that application on 13th February 2020, the court deemed that the Mother's Article 66 application made in 2017 remained live. On 8th September 2020, the Mother applied for an order removing the Father's parental responsibility. All three applications fall to be determined at this final hearing.
6. It is common ground between the parties that the Father has not exercised contact with DD since 12th January 2018, and that DD has been living in the sole care of the Mother since early 2017.
7. On behalf of the Father, Advocate Hillier raised a preliminary issue relating to a report dated 18th September 2017 prepared by Clinical Psychologist Dr Mair Edwards in the previous proceedings concluded in January 2018. This report included an assessment of both parents and DD. The Father had not had sight of the report since it had been prepared for reasons that are not relevant to the present applications. The Father sought an adjournment to consider the report or in the alternative that the Court should proceed without taking the report of Dr Edwards into account.
8. The report would at best be of limited assistance to the court, both by reason of the length of time since it was prepared, but also as it did not include a full assessment of the Father. The parties agreed that the evidence contained in the report of Dr Edwards should be discounted, accordingly no part of the report has been taken into consideration by the Court and did not form part of the court bundle.
9. The Father filed a statement dated 30th September 2020 in which he describes the positive relationship he enjoyed with DD prior to the breakdown in contact. He says that DD should live with him as he can give "a more stable and loving upbringing". The statement goes on to criticise the Mother's lifestyle and the negative impact of this upon DD. He alleges that the Mother has made false allegations to the police about him and he is critical of social services for not checking on the Mother.
10. The Father gave sworn evidence at the hearing, initially he clarified that he sought contact with DD, and wanted sole residence only as a means of achieving this, he then appeared to contradict this explaining that DD should live with him because "I believe that I'm the better parent". The Father stated that if the court did not award sole residence to him, he would welcome a return to the arrangement in place up between 2015 to 2017 whereby DD was in his care Wednesdays and alternate weekends.
11. The Father conceded that in the past he "may've overreacted" to allegations made against him. He describes having moved on with his life and that his application is for DD to be part of his life rather than about fighting the Mother. The Father did not explain why he had not taken action to follow up contact after January 2018 save to say that he found supervised contact "difficult" and he described frustration when arrangements were cancelled. He was consistently critical of the Mother both in terms of her lifestyle and blaming her for the break in his relationship with DD.
12. The Father gave evidence that he had seen DD at the school gates on one occasion since 2018, when DD had said to him "you don't love me". He believes that this shows that the Mother is poisoning DD against him.
13. In support of his assertion that the Mother had made false allegations against him and lied to the police, the Father refers the court to the judgement of his successful appeal in December 2013, against his conviction of harassment against the Mother in May 2013. The Father describes his successful appeal saying "I maintained my innocence. Once again lies to the police were proved false." I found this surprising, as the judgement clearly sets out that the successful appeal turned not upon the truth of the Mother's allegations but upon the legal interpretation as to whether the Father's actions amounted to criminal acts. Three incidents are described, the Father did not appeal against the finding of the magistrate that the incidents caused the Mother distress. The judgement describes the Father's actions as "unattractive and unreasonable" but not amounting to criminal activity.
14. Regarding the Mother's application to remove his PR, the Father described that he had been prevented from exercising PR for DD, for example, if he contacted DD's school, they would tell him that he did not have authority to request information, he had never had a school photograph or school report. The Father resists the making of such an order.
15. The Father addressed the Article 66 application on the basis that such an order had already been made against him, saying that the Court should not have made the order and it was wrong to do so. No such order has previously been made, the Bailiff having deliberately left the door open for future applications by either party. The Father is opposed to such an order being made in the present proceedings.
16. The Mother filed a statement sworn on 19th October 2020. The Mother describes the Father making "incessant" and "unmeritorious" applications regarding DD over the years which have left her in debt to lawyers. The Mother describes the breakdown of the relationship blaming him entirely due to his conduct. In support of her applications, the Mother asserts that the Father "has not demonstrated any parental responsibility for DD since DD was born" specifically she says that he does not provide financial support for DD and has failed to maintain contact with DD indirectly through birthday and Christmas cards and gifts, the Mother confirmed her understanding was that the Father could send letters or cards to DD even if no direct contact was taking place.
17. The Mother gave sworn evidence confirming that the arrangement that the Father have contact with DD alternate weekends and each Wednesday, ended in early 2017. She described DD as having suffered nightmares for a year after the conclusion of the last court proceedings in January 2018, and that DD still talks about daddy saying DD was scared and that "daddy is angry with me". The Mother summarised, saying that DD "wants daddy ... but is scared".
18. In support of her application to remove the Father's PR, the Mother set out that the Father had bad mouthed her on social media also to friends and parents of DD's friends, that he tried to obtain information about her to cause trouble for her. She felt that this showed a lack of understanding as to how this could affect DD. Most recently, the Father had tried to access her LinkedIn account. Other than this, the Mother last made an allegation against the Father in July 2019 that he attended DD's school, and in evidence she said that the Father had made "an aggressive face at me" upon leaving court several weeks prior to this hearing.
19. In support of her Article 66 application, the Mother confirmed that the repeated court proceedings have left her in debt and had an impact upon her health, that the Father had in any event missed contacts and that he had not taken advantage of opportunities offered in the previous proceedings.
20. The agreed bundle of papers for this hearing includes all police logs and disclosure relating to the parties and DD dating back to 2012. Both parties have made complaints to the police regarding the safety of DD in the care of the other parent, and the Mother making allegations of harassment against the Father. In 2013 the Father received a conviction of harassment against the Mother, this conviction was subsequently set aside on appeal, otherwise, there have been no significant investigations or convictions against either parent. A complaint was made to the police by the Mother on 1st March 2017 following cessation by the Mother of Father's contact, DD was interviewed by the police and disclosed that DD gets upset at daddy when he is cross and shuts DD in DD's room, DD also said that the Father had called the Mother a "slut" and wanted to kill her boyfriend. The police log concludes that DD had not disclosed any criminal offences but was suffering emotional abuse from what DD had disclosed, but also that DD "speaks positively about Dad and wants to see him soon".
21. The Mother last made a complaint to the police regarding the Father in July 2019, complaining that he had attended at DD's school and that he had tried to get in touch with the Mother's former partner. Following this, an Allegation of Harassment Form was sent to the Father. Prior to 2019, the Mother made an allegation that the Father had attended at DD's school, which he admits. Other than this, there are no allegations of any substance as far as the police are concerned, since 2017.
22. Dr Briggs had assessed both parents in 2012 in the original proceedings before this court, the original report does not form part of the papers in the present proceedings. Dr Briggs was instructed to report upon any changes in the Father's psychological presentation since 2012 in the context of the Father's application. Dr Briggs met with the Father via skype on 9th April 2020, his report is dated 21st May 2020.
23. In response to questions regarding changes to Father's presentation, Dr Briggs says:
"there may have been a slight softening of some of the more emotionally charged comments [the Father] made of the Mother at interview. Nevertheless his hostility towards the Mother remains".
And
"Such is the nature of [the Father's] emotion for the Mother that this tends to deflect him from a coherent focus on [DD's] emotional needs and psychological welfare".
In response to the question as to how any changes could impact on contact between the Father and DD, Dr Briggs replies:
"The key risk factor identified nearly 8 years ago remains, ie. That of concern that on occasions when [the Father] is overwhelmed by the emotions which stem from his unresolved feelings towards [the Mother] that he may be distracted from his focus on the emotional and psychological needs of [DD]".
24. In response to the question as to how any changes could impact on residence with DD living with Father, Dr Briggs replies:
"Were [DD] to live with [the Father] there would be the likelihood of DD continuing to be exposed to "emotional leakage" ie. With [the Father] either deliberately or inadvertently making comments about the mother of a critical and disrespectful sort, of him undermining [the Mother's] role as a mother, and of [DD] becoming caught up in the dysfunction that will likely, continue within the parents' relationship".
25. Dr Briggs gave sworn evidence at the hearing. Upon cross examination by Advocate Hillier on behalf of the Father regarding the risk he may pose to DD, Dr Briggs replied:
"I don't believe Father is callous, I don't believe he will cause DD harm deliberately".
He also confirmed that in his view psychotherapy would help the Father to understand the nature of fatherhood, his view of himself and relationships.
26. Dr Briggs had not been asked to address in his report the Article 66 application, he was however asked to offer a view upon this and also the application to remove PR as part of his evidence. His response was that the status quo should remain, as making the orders sought by the Mother would "fuel his (the Father's) continuing hostility towards mother".
27. JFCAS were given a limited role in the applications, namely to consider the papers, speak to the parties if deemed necessary and to file a report limited to whether they considered that they had a role to play in assisting the court. Specifically, JFCAS was asked not to speak to DD initially.
28. The father's application was initially limited to residence notwithstanding that he had had no direct or indirect contact with DD for over 2 years. The Court had therefore determined that it was preferable to avoid making DD aware of the application before the merits had been tested.
29. An officer of JFCAS prepared a limited report dated 26th August 2020. At paragraph 2.12 the officer says:
"Whilst [the Father] is preoccupied with his attempts to potentially remove the child from the care of the mother because his belief is that the child is being abused in her care (which has not been evidenced), he is not giving due regard to the needs of his [child]".
She goes on to say at paragraph 2.16:
"it is my professional opinion that [the Father] is unable or unwilling to give up on the conflict he has with [the Mother] because it serves a purpose for him in terms of managing the emotional issues within his life".
30. The JFCAS officer opined that for the Father's application to be viable, he needed to have engaged in the therapy previously recommended and she concludes that until the Father undertakes therapy as recommended by Dr Briggs, nothing will change and that another court application would result in stress and anxiety for DD.
31. The JFCAS officer attended the hearing and gave evidence confirming the content and conclusions of her report. She offered advice to the court regarding indirect contact, confirming that this could be a way of building trust, that if it was consistent it could be beneficial to DD who might see herself as bad if DD sees the Father as bad. She did however sound a note of caution, that even indirect contact could do more harm than good as, in her opinion, the Father would become overwhelmed and stop the contact. The JFCAS officer expressed caution about introducing any form of contact including indirect contact unless the Father has engaged in therapy, as this would risk DD being let down again.
32. The JFCAS officer disagreed with Dr Briggs as to the need to maintain the legal status quo to avoid fueling the Father's hostility. She recommended that the Article 66 order be made but did not offer a view as to the duration of the restriction.
33. The Mother's application to remove PR post-dated the JFCAS officer's report, however, in evidence the JFCAS officer supported the application saying, "I can't see any evidence that [the Father] has exercised PR in a positive way for [DD]". In the JFCAS officer opinion, the Father has approached DD's school in a manner that could be intimidating and cause alarm, rather than seeking a calm meeting to discuss DD's progress. In response to questions put on behalf of the Father as to the possible effect upon DD if DD were to learn that the father has lost PR, the JFCAS officer replied that DD would probably be saddened but could see it as a positive if it was to stop the conflict and encourage the Father to make positive changes, and that retaining PR just to keep the Father calm does not benefit DD.
34. There are 3 applications before the court made pursuant to the Children (Jersey) Law 2002 ("the Law"). Article 2 of The Law confirms that when determining any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration. The court shall also have regard to the "welfare checklist" set out in Article 2(3) of the Law. I have considered each of the 7 factors with relation to each of the applications before the court. I have also taken into account Article 2(5) of the law which states that the court shall not make an order unless it considers that doing so would be better for the child than making no order at all. The applications are linked, but each raises separate legal considerations, therefore I deal with each application separately.
35. The skeleton argument filed on behalf of the Father describes his application as being for contact, his application to the court was for residence. It is clear from the Father's evidence that he wishes the court to consider both residence and contact. Pursuant to Article 10(2) of the Law, the court can consider both residence and contact notwithstanding that the application was initially for residence alone.
36. On behalf of the Father, the court is referred to the authority of In the matter of C (A Child) [2011] EWCA Civ 521, in particular the comments of Munby LJ at paragraph 47: -
· "Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
· Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.
· There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
· The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
· The key question, which requires "stricter scrutiny", is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
· All that said, at the end of the day the welfare of the child is paramount; "the child's interest must have precedence over any other consideration."
37. Advocate Hillier on behalf of the Father asks the Court to consider Schedule 1 of the Human Rights (Jersey) Law 2000 which enshrines into the law of Jersey the terms of the Convention for the Protection of Human Rights and Fundamental Freedom Rights agreed by the Council of Europe at Rome on 4th November 1950, which include the Father's rights (as an individual) to enjoy family life. Article 8(2) states as follows:-
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Advocate Hillier does not suggest that this is in any way contradictory with the factors that the Court must consider under Article 2 of the Law as set out above. Accordingly, the child's welfare is the Court's paramount consideration.
38. Parental responsibly is defined by Article 1(1) of the Law as being
"all the rights, duties, powers, responsibilities and authority in relation to the child and the child's property".
The Father secured PR for DD by virtue of an PR agreement reached between the parents in 2014 as provided for under Article 5(1)(b) of the Law:
"the father and mother may by agreement provide for the father to have parental responsibility for the child"
The court has power to end the Father's PR under Article 5(4) of the law which states:
"Subject to Article 13(4), an order under paragraph (1)(a) or (2) or a parental responsibility agreement may only be brought to an end by an order of the court made on the application of -
(a) any person who has parental responsibility for the child; or
(b) the child."
39. On behalf of the Father, the court is referred to the Jersey authority of LS v NS [2007] JRC 103A. At paragraph 14, the court affirmed the now well-established principles to be taken into account in any application for a parental responsibility order. Three factors are held to be particularly important in considering whether to make an order for PR, these are correctly summarised by Advocate Hillier as being "attachment, commitment and motivation".
40. Advocate Hillier asks the court to consider as the leading authority on termination of PR, the case from England and Wales of Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048. At page 1052 Singer J said as follows:
"I start from the proposition that parental responsibility - both wanting to have it and its exercise - is a laudable desire which is to be encouraged rather than rebuffed. So that I think one can postulate as a first principle that parental responsibility once obtained should not be terminated in the case of a non-marital father on less than solid ground, with a presumption for continuance rather than for termination.
The ability of a mother to make such an application therefore should not be allowed to become a weapon in the hands of the dissatisfied mother of the non-marital child: it should be used by the court as an appropriate step in the regulation of the child's life where the circumstances really do warrant and not otherwise.
I have been referred in outline to four authorities as to the circumstances in which a court will make an order for parental responsibility [here the learned judge identified the well-known authorities dealing with such applications]....
Such applications for parental responsibility orders are governed by the considerations set out in section 1(1) of the Children Act, namely that the child's welfare is the court's paramount consideration. I can see no reason why that principle should be departed from in considering the termination of a parental responsibility order or agreement.
Key concepts to the consideration of the making of an order are evidence of attachment and a degree of commitment, the presumption being that other things being equal a parental responsibility order should be made rather than withheld in an appropriate case."
Singer J concluded (at page 1053):
"I have to say, notwithstanding the desirability of fostering good relations between parents and children in the interests of children, I find it difficult to imagine why a court should make a parental responsibility order if none already existed in this case. I think the continuation of a parental responsibility agreement in favour of the father in this case has considerable potential ramifications for future adversity to this child. I believe it would be a message to others that he has not forfeited responsibility, which to my mind it would be reasonable to regard him as having done. I believe that it might be deeply undermining to the mother and her confidence in the stability of the world surrounding (the child)."
And (on page 1054):
"I believe that there is no element of the band of responsibilities that make up parental responsibility which this father could in present or in foreseeable circumstances exercise in a way which would be beneficial for the child. I therefore conclude that it is appropriate to make an order as sought under section 4...bringing to an end the parental responsibility agreement entered into...." .
41. Advocate Hillier refers the court to subsequent authorities from England and Wales where Re P has been followed and orders made that PR be removed, namely CW v SG [2013] EWHC 854 and A v D (Parental Responsibility) 2013 EWHC 2963 (Fam). In each of these cases the behaviour of the father was extreme, involving physical or sexual violence against the subject child, their sibling or mother. In each case the father had been convicted of a serious criminal offence and received a sentence of imprisonment of substantial duration. The Father argues that his behaviour could not be considered extreme in the context of the facts of these cases, and that therefore the test to remove his PR is not met.
42. Advocate Corbett refers the court to the more recent case from England and Wales of C v D and another [2018] EWHC 3312 (Fam). The facts of this case are different from those of the authorities cited above, in that the father in that case had not committed crimes against the child or the mother. The behaviour of the father in that case is set out by Ms F Judd QC sitting as a Deputy High Court Judge in her judgment, and is summarised at paragraphs 25 and 26, as follows:-
"25. It is clear from the history set out above that the father has repeatedly behaved in an abusive, intimidating and deeply unpleasant manner to the mother and other people who are involved in B's care and support. His responses are repeatedly belligerent, and nowhere does he appear to enter into a constructive discussion about what is best for his son. At some points he has agreed to treatment, testing or assessments and at others he has not. The mother had to resort to applying to the court to allow B to be immunised and assessed for the support he needs, and then the father declined to attend, or even to talk to the Cafcass Officer. There does not seem to be any prospect of a change in the father's attitude. Ms Greensmith of Cafcass said in 2016 that if the father was able to acknowledge some responsibility for his conduct, he could be referred to a suitable programme. She said that it would give him the opportunity to reflect on and modify his behaviour in the hope of seeing B if he completed it. It is instructive that he has not done so.
26. Professionals looking after B need to be able to get on with the job they have to do without impediment. I have set out above various examples of the father's conduct towards medical personnel as well as the school. No doubt they are accustomed to dealing with difficult or emotional parents, but the father's behaviour is particularly challenging. I note that Mr. Power said in his oral evidence that the school was concerned there would be repercussions for them because of the letter written to him by the school. This is an unacceptable position for any school to find itself in."
The child in this case had special needs and the father's conduct had impeded the mother and professionals involved in the child's care securing medical and educational support. This aspect of the case is dealt with in the judgement at paragraph 29:-
"29. The mother has cared for B very capably with the help and support of her parents, but unsurprisingly she has found the father's interventions extremely stressful. Mr. Power is right to say that B needs a happy confident mum, free from the anxiety, uncertainty and worry that she fears she will suffer if the father retains his parental responsibility. She will need energy and resources to devote to his care, which would I consider would be undermined by further verbal abuse and criticism from the father, whether it is expressed directly to her or to others. The same applies to members of the wider family, such as B's grandparents. He lives with them, and they are an important part of his life and his support network. The father has not shown that he is capable of meeting B's needs."
The judgment concludes: -
"30. Turning to the principles which fall to be considered on an application for parental responsibility, the father has not shown any significant commitment to B in the sense of being genuinely concerned for his well being in the last few years. Given B's age and circumstances the question of attachment is difficult to gauge, but I accept the mother's evidence that B came back from contact with his father distressed, and that he has seen him only rarely since about 2015. I cannot see any attachment developing either, for the father is so bound up in himself and his own anger that he has been prepared to write about his son in dreadful terms, terms that will be deeply distressing to B if he ever comes to know about it, and this is likely to happen again. The father's interventions in and responses to decision making about B have led to conflict, delay and stress, without his seeming to offer anything at all constructive to the issues. If this was an application for parental responsibility the conclusion I would come to is that his reasons for wanting the order to be made (and in this case continued) are so that he can object and by doing so control the mother and others.
31. I have considered whether or not any lesser order than removal of parental responsibility would be sufficient. It is true that orders could be made permitting the mother to arrange all treatment and support for B (for his autism, or indeed any other condition), and to make decisions about his schooling, at the same time as prohibiting the father from contacting her or other professionals, but it is not possible to cover every eventuality. If the menu of orders does not cover a particular issue, I think it likely that the father will make use of the situation and behave as he has done to date.
32. I have therefore come to the conclusion that it is in B's best interests for his father's parental responsibility to be removed. In the words of Singer J, I believe that there is no element of the band of responsibilities that make up parental responsibility which this father could in present or in foreseeable circumstances exercise in a way which would be beneficial for the child.
33. It is undoubtedly a sad situation for B, who will have to grow up for the foreseeable future without the benefit of having a father with that status and involvement. It is sad too for the father, who may have deep rooted and unresolved difficulties of his own which lead him to behave in this way. Unless he is willing to address these, there is little that anyone can do for him. "
Advocate Corbett on behalf of the Mother draws parallels with the present case in terms of the nature of the Father's conduct and the effect upon the Mother and the child.
43. Article 66(8) of The Law provides:-
"On disposing of any application for an order under this Law, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Law of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court" .
In the cases of In the matter of T [2010] JRC 126 and J v I [2014] JRC 110, the Jersey courts followed and adopted the guidance set out in the English Court of Appeal in the case of Re P [1999] 2 FLR 573. J v I related to a private law matter. Paragraph 5 of the judgment sets out the guidance :-
"In the case of In the matter of T [2010] JRC 126, the Court had regard to the guidance given by the English Court of Appeal in the case of Re P [1999] 2 FLR 573 in relation to section 91(14) of the Children Act 1989, which is in the same terms as Article 66(8) of the Children Law. It is worth setting out the relevant part of the judgment of Butler-Sloss LJ commencing at page 592:-
"From the cases which I have cited above, it can be seen that the most likely reason for granting a restriction requiring leave to make an application is where the applicant has already made repeated and unreasonable applications with no hope of success. In those cases the applicant must have crossed the line between a reasonable application and one which is both unreasonable and has become or is becoming oppressive. The operation of the section is not however limited to oppressive or semi-vexatious applications. Orders have been made pre-emptively to apply to cases where the conduct of the applicant has not yet reached that level or there is no criticism of the applicant's conduct but none the less there are circumstances where, in the best interests of the child, it is necessary to prevent unmeritorious inter partes applications. It is always a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the Court.
...
Guidelines
(1) Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.
(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.
(5) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.
(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
(7) In cases under para (6) above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
(9) A restriction may be imposed with or without limitation of time.
(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.
(11) It would be undesirable in other than the most exceptional cases to make the order ex parte.""
44. Applications to remove PR are rare, and the circumstances in which such orders have been granted are exceptional. Singer J said in Re P that there is "a presumption for continuance rather than for termination", and this should be the point from which the court starts. Advocate Hillier argues that the reported cases where such applications have been successful have all involved extreme behaviours on the part of the father in those cases. In the present case, he says, there have been no such behaviours on the part of the Father.
45. There have been no convictions against the Father. In 2019 and 2018, the Father attended at DD's school which may have caused the school some concern, but there is no suggestion that his behaviour was aggressive or confrontational. The Mother has complained that in July 2019 the Father shouted at her when she passed him in her car, and that during the course of these proceedings that the Father looked at her aggressively. The mother alleges that the Father has tried to obtain information about her through third parties or LinkedIn.
46. In 2017, allegations were made against the Father by DD and the Mother, these were denied by the Father, no findings were made by the court either way. The allegations were not deemed by the police to merit further action.
47. Since the parties separated, there have been potentially serious allegations made against each parent by the other, these have not resulted in findings nor criminal proceedings, save that in 2013 findings were made in criminal proceedings against the Father that his actions dating from late 2012 had caused the Mother distress. The resulting conviction of harassment was set aside on appeal in December 2013 on the basis that whilst his actions were said to be "unattractive and unreasonable" they did not "cross the line that sustains criminal activity".
48. The Mother relies upon the case of C v D in support of her application. In C v D the behaviour of the father, in contrast to behaviour of the fathers in the earlier cases where PR has been removed, had not amounted to criminal activity and did not involve violence. The Judge in C v D found that the father "has repeatedly behaved in an abusive, intimidating and deeply unpleasant manner to the mother and other people who are involved in B's care and support". The Mother draws parallels between the facts of C v D and the present case, in her skeleton Advocate Corbett says:-
"The facts in the case in C v D & Anor are similar to those of [the Mother] and [the Father], with the parents being in a brief relationship which ended not long before the child was born and the mother and child living independently from the father (paragraph 4).
The behaviour of [the Father] is similar to the behaviour of the father in the case, as seen in paragraph 7. The father is "extremely difficult to deal with, not only for her but for the professionals involved in B's care. The father is angry and intimidating. He makes decisions and then changes his mind"."
49. The Judgment in C v D draws upon and follows the guidance set out by Singer J in Re P at page 1052 which I have set out in full above, however PR was removed without the father having engaged in criminal or violent behaviour.
50. It follows that the correct test to apply, is not the extent to which the father's behaviour has been egregious, but by the court taking a wider view as to the welfare of the child, starting from a presumption that parental responsibility once granted should only be removed "where the circumstances really do warrant it and not otherwise".
51. In C v D, the child had special needs which required the ongoing input of professional services. The father by his conduct had impeded the mother and professionals in their support of the child. He had repeatedly shown a blatant disregard for the welfare of his child and had written about him in the most unpleasant and rejecting terms. The Court considered whether a lesser order than removal of PR would be sufficient, deciding that it would not, as it would not be possible to cover every eventuality, and the father would be likely to use any participation in his child's life as an excuse to cause further trouble. As such, the decision to remove PR was not because of the father's behaviour, but because of the direct harm that flowed from his actions and from which, the child could only be comprehensively protected in the future by the removal of PR. It is my view that C v D is a case that turned on its own unusual facts.
52. In the present case, I am not satisfied that there is a risk of future harm to DD that flows from the Father retaining PR.
53. There is evidence of poor behaviour on the part of the Father toward the Mother following the breakdown of their relationship, but there is little evidence that the Father has continued to conduct himself in this way in recent years.
54. The evidence of the experts, Doctor Briggs and the JFCAS officer is to the effect that the Father's ability to enjoy a positive and safe relationship with DD is undermined by his inability to move beyond his hostility towards the Mother sufficiently to put DD's needs first and create an environment in which DD can enjoy a relationship with the father without risk of suffering emotional harm. However, Dr Briggs tells us that "I don't believe Father is callous, I don't believe he will cause her harm deliberately".
55. The potential harm to DD lies not in the Father's exercise of PR or his failure to exercise PR, but in his continuing attitudes and hostility towards the Mother. Removing the Father's PR will not protect DD nor give DD what DD needs. The JFCAS officer says that she cannot see that the Father has exercised his PR positively, however removal of PR should not be a punishment for past failings.
56. Applying the principles to be considered on an application to remove PR as set out in Re P and followed in each subsequent case cited, and applying the welfare principle, it is my view that there is little if any risk to DD that may result from the Father continuing to hold PR. The JFCAS officer tells us that it may sadden DD to discover that the father had lost PR for her, but that this would be more than offset if the Father were to become motivated to seek the therapy which has been recommended. I have no confidence that the Father will seek therapy, he made his views clear in his evidence that "it's a load of rubbish". There would therefore be loss to DD with no gain. I must therefore disagree with the JFCAS officer regarding removal of PR. The order should not be made either in the hope of encouraging the Father to seek therapy, nor as suggested by Dr Briggs to maintain the status quo, but only where there is a solid and compelling reason based upon DD's welfare to do so. I do not find that there is such a solid and compelling reason on the facts of this case.
57. DD is 9 years old. DDd's main residence has been with the Mother DD's entire life. DD has had no contact with the Father since January 2018, and he has sent no cards or gifts at Christmas or DD's birthday at least since that date. DD has not stayed overnight at the father's home since early 2017. The Father accepts no responsibility for this state of affairs, despite it being clear that the Bailiff and the JFCAS officer were open to progressing his direct contact at the hearing in January 2018. The Bailiff's note from the hearing states:-
"Unfortunately [the Father] was not interested. He could only look backwards and not forwards and he wanted vindication for 6 years of ill treatment by [the Mother]".
58. Against this background, the Father chose to make an application for a change of residence to himself. The Father did not also ask for contact until his statement dated 30th September 2020. The Father offers no independent evidence to the Court in support of his concerns regarding the Mother's care of DD, his concerns are not shared by any professional who has had involvement with the family. The Father's approach in my view shows a lack of understanding of DD's needs.
59. The JFCAS officer in her report struggles to understand how a change of residence could be viable. It is clear to me that such a change is not viable, and that the Father's application is entirely without merit.
60. As to the question of contact, Dr Briggs warns that, due to the Father's unresolved feelings towards the Mother, that he may be distracted from DD's needs and that arrangements could break down. This scenario was demonstrated in the events of early 2017 when DD made allegation about her daddy saying mean things and shouting, resulting in DD's distress and the breakdown of contact.
61. The JFCAS officer advises against a resumption of contact, even indirect contact until the Father has undertaken therapy, without which he would be overwhelmed by his feelings resulting in broken contact.
62. My order will follow the recommendations of the experts regarding direct contact, I have concerns however at placing a blanket restriction upon all indirect contact.
63. I am concerned to hear from both parents that DD has a negative view of the father. The Mother says that DD wants the Father but is scared. The Father tells me that when he spoke to DD at school several years ago, DD said that he did not love DD. If DD does not see the father, he will not cease to exist for DD. The JFCAS officer speaks of the potential negative effect upon DD's development of DD's self-identity if DD sees the Father as bad, DD may see themself as also being bad.
64. During this hearing, the Mother had complained that the Father did not over the past few years send to DD cards and/or gifts at Christmas and birthdays, this therefore appears to be something that she and DD might welcome. My view therefore is that, whilst a structured programme of indirect contact might be at risk of failure, I would encourage the Father to send cards and small gifts to DD at key events such as Christmas and birthdays. This would send a message to the child that the father does love DD and has DD in his thoughts. The order shall contact a recording to this effect, otherwise the Father's application is dismissed.
65. The Mother in her statement says that the Father has "continued to make unmeritorious applications in respect of the child", which she describes as "incessant". Whilst I agree that the present application for a residence order is without merit, I can see no evidence that this has been a pattern of behaviour on the part of the Father.
66. In the past, there have been successive court applications, but it is notable that on each occasion these have been resolved by consent between the parties. Prior to 2017, the Father had been successful in securing contact, PR and shared residence by consent, having first applied to court for these orders. In 2017 the Mother returned the matter to Court for a sole residence order, and this in itself was resolved by consent, the Father conceding residence. In the past his applications appear to have had positive and agreed outcomes. The Father is quite open in his negativity towards the family court process and those involved in it, he might be considered to be as likely to reject the court process as he appears to have done in 2018, rather than to abuse it.
67. The present application calling for a change of residence is without merit, to such an extent that must call into question the motives of the Father in making and pursuing such an application. DD has not been involved in the present proceedings in that DD has not been interviewed by JFCAS, however the application, as with any court proceedings has had a negative impact upon DD's primary carer.
68. The previous proceedings concluded in 2018 were left open ended, nevertheless, the Father must or should have been aware that returning to court, he would need to demonstrate some measure of change from his focus upon what he perceives to be the Mother's shortcomings, to focus upon DD's best interests. Despite what Dr Briggs describes as "a slight softening", the Father has not in these proceedings, attempted to disguise his hostility towards the Mother, nor his lack of awareness/acceptance of the part that his actions have played in depriving DD of a relationship with him.
69. The power of the court in restricting future applications is to be exercised "with great care and sparingly, the exception and not the rule" and I limit the Father's future access to the court with reluctance. In the event of a future application to the court by the Father regarding DD, unless he can demonstrate change in that he is able to sustain focus on DD's needs rather than his own grievances, such application is likely to fail. This in itself is not sufficient to merit making an Article 66(8) order, however the court process may carry a risk for DD. As DD grows older it is more likely that DD would be directly involved in the court process through JFCAS assessment, and this could open DD to disappointment and distress.
70. I do make the order the Mother seeks, the Father must seek the leave of the court to pursue any future application, however, the bar for the Father to cross is low, he should demonstrate some evidence of change, this might be engagement with therapy as recommended by Dr Briggs, it might simply be that he is able to explain that his focus has shifted. I do not place a time bar upon future applications, the Father might gain understanding of DD's needs soon or possibly never, that is within his control alone and not that of the court.
Authorities
Children (Jersey) law 2002.
In the matter of C (A Child) [2011] EWCA Civ 521.
Human Rights (Jersey) Law 2000.
Convention for the Protection of Human Rights and Fundamental Freedom Rights.
Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048.
A v D (Parental Responsibility) 2013 EWHC 2963 (Fam).
C v D and another [2018] EWHC 3312 (Fam).