Jersey Unreported Judgments

Family - application for an order restricting future applications for 18 months

[2022]JRC217

Royal Court

(Samedi)

17 October 2022

Before     :

Elizabeth Daultrey, Registrar, Family Division

 

Advocate C. G. Hillier for the Applicant.

Advocate A. L. Brown for the First Respondent.

Advocate H. J. Heath for the Second Respondent.

REASONS

the REGISTRAR:

The Court is asked to determine an application for an order pursuant to Article 66(8) of the Children (Jersey) Law 2002 ("The Law") restricting the applicant from making any application pursuant to Article 10 of The Law for a period of 18 months.  In these reasons I refer to the parties as "the Mother" and "the Father".

Background

1.        The proceedings relate to YY ("the Child") born in 2017.  YY is the only child of the parties, they were in a relationship which ended in the summer of 2018, thereafter YY has remained in the sole care of the respondent Mother.

2.        In 2019, YY was the subject of applications by the Minister for Children and Housing for care and supervision orders which were considered by the Royal Court during 2019, those proceedings concluded in February 2020.  The parties agreed that the threshold set out in Article 24(2) of The Law was crossed, YY remained in the care of the mother under successive interim supervision orders.

3.        On 3^rd August 2020, The Father applied for a number of orders relating to YY, of direct relevance to the present application, the Father sought residence and contact orders for YY.  The issue of contact was transferred from the Royal Court to this Court by order of the Deputy Bailiff on 12^th August 2020.  On 24^th August 2020 the Mother applied to this Court for a residence order and an order pursuant to Article 66(8) of The Law restricting the Father from making future applications without leave of the Court.

4.        During the latter months of 2020, separate proceedings were ongoing before the Royal Court relating to [redacted].  I do not take those proceedings into account in my decision, save to note that the proceedings in this Court were adjourned in  2020, for several months to await the outcome for those proceedings.

5.        The Father's application did not run smoothly, I set out below a summary of some of the difficulties which arose due to the Father's failure to comply with Court directions and orders.  On 27^th June 2022 I made what might be described as an "unless order", setting out documentation that the Father was to file by a specified date, failing which his application would stand dismissed.  The Father failed to comply, as a result of which his application stands dismissed.  It remains to the Court to consider the Mother's application for an order pursuant to Article 66(8) of The Law ("66(8) order") this being the sole matter under consideration by the Court today.

6.        Throughout the proceedings, the Father has been resident in England.  Interim contact has taken place by video, his attendances at court have been via StarLeaf video.  The hearing today has taken place in the absence of both parents, both had the benefit of legal representation.  The Mother's sworn evidence is before the court by affidavit.  YY has been legally represented and his Guardian has attended and provided sworn evidence at this hearing. 

Chronology of Present Proceedings

7.        The following orders and/ or recordings were made at the following hearings:

(i)        12^th August 2020, the Deputy Bailiff directed the parties to file a statement if they disagreed with the Guardian's opinion regarding contact.  The Father did not file such a statement;

(ii)       14^th September 2020, before this court, the Father was granted an extension of time to file his statement due to change of representative, he was also directed to set out his alternative proposals for contact;

(iii)      30^th September 2020, the Father failed to attend the hearing without leave, he had not filed a statement. The order includes the following provision:

"By close of business on 14th October 2020, the applicant shall file and serve a statement, limited to setting out why he did not attend video and direct contact in accordance with the Act of Court dated 29th January 2020, and also setting out what direct and indirect contact he can commit to in the future, including any reasons why he would not be willing to visit Jersey for future direct contact. The applicant should append to his statement any police and medical evidence in support of his position"

(iv)      13^th October 2020, the Father having not filed a statement as previously ordered, the court ordered:

"The time for the applicant to comply with paragraph 1 of the Act of Court dated 30th September 2020, is extended to no later than close of business on 4th December 2020, In the event that the  applicant fails to comply with this direction, the court may proceed without this evidence and shall consider dismissal of his application at the next hearing"

(v)       25^th January 2021, the Father having not filed a statement as previously ordered was given a further extension of time until 15^th February 2021;

(vi)      3^rd March 2021, both parties attended via Star Leaf video but had to be excluded from the hearing for disruptive behaviour.  The Act of Court notes that the Father had still not filed a statement;

(vii)     20^th May 2021, the Father was directed to file an affidavit setting out his position.  The Father did comply with this direction filing an affidavit on 23^rd June 2021;

(viii)    6^th July 2021, the Father was excluded from the hearing for disruptive behaviour;

(ix)      13^th October 2021, the Father failed to attend without leave;

(x)       16^th May 2022, the Father was directed to file a position statement setting out what orders he sought by 6^th June 2022, the applications were set down for final hearing on 4^th July 2022;

(xi)      27^th June 2022, the Father, having applied to adjourn the final hearing on the basis of his ill health, failed to file any medical evidence in support of his application, the Father had also failed to file a position statement as ordered on 16^th May.  The Act of Court orders the Father to file, but not serve, medical evidence as to his fitness to attend court, also to file and serve a position statement by 25^th July 2022.  The Court directs that in the event the Father fails to comply with either requirement his application shall stand dismissed; 

(xii)     22^nd August 2022, the Act of Court records that the Father having failed to comply with the directions of 27^th June 2022, his applications stand dismissed. 

The Mother's Position

8.        The Mother has filed an affidavit setting out how the proceedings have affected her and YY.  Two skeleton arguments have been filed on her behalf dated 9^th August 2022 and 2^nd September 2022.  The Mother's attendance at Court at this hearing was excused.  Representations were made on her behalf by her Advocate.

9.        The Mother's sworn evidence is that Father's contact has not been consistent, when contact fails YY "is confused and tired out".  YY has recently received a diagnosis of [redacted], he is about to start school and "needs to be able to focus on that and settle down before being faced with any more significant and worrying challenges such as prolonged litigation".  The Mother describes the impact upon her of attending court hearings and meetings related to the court proceedings over the past 2 years as "overwhelming".  She concludes: "I have been in a state of uncertainty and anxiety for over 2 years and YY, myself and my family, need to be able to settle down into our lives".  

The Father's Position

10.      A skeleton argument was filed on behalf of the Father dated 10^th August 2022, representations were made on his behalf by his Advocate at this hearing.  The Father had not sought to have his attendance excused, leave had been given for him to attend by video.  In the event, the Father did not attend this hearing.

11.      Advocate Hillier on behalf of the Father asks the Court to note that the Father had filed medical evidence in compliance with the Act of Court of 27^th June 2022, and that he had filed a position statement but had done so late on 2^nd August 2022, albeit he does not challenge the dismissal of his application.  The Father resists the application for a 66(8) order.  Advocate Hillier says on his behalf that his health difficulties have overwhelmed him; that when contact occurred it had been positive; that when he became overwhelmed, the Father effectively withdrew his application by failing to file required documents; his application had not been damaging to YY.  Advocate Hillier argues that it would be unfair on YY to bar the Father's access to the courts for 18 months, a hurdle exists in any event, in that the Father would need to satisfy legal aid that he had an arguable case before he received funding.  Advocate Hillier argues that in all the circumstances of the case, the legal test to make the order sought is not met, and wishes the Court to consider in detail as the leading case, Re P [1999] 2 FLR 573.

12.      The medical evidence filed by the Father comprised text messages from the NHS in England, reminding Father of 3 dated outpatient appointments respectively in May, June and July 2022.  The appointments related to a distressing and potentially serious medical issue, however, he provides no evidence that he has received a diagnosis of any kind nor any evidence to suggest that he undergone anything more than an investigative process.  Whilst I do not doubt that this process was likely to cause the Father considerable worry and distress, the evidence filed reveals only 3 separate outpatient appointments, with no evidence that such appointments would leave him ill or debilitated.  In short, there is nothing in the evidence he has filed to indicate that he was not fit to engage in the Court process or to comply with directions to file evidence.  The detail of the appointments has not been shared with the Mother at the insistence of the Father as his precondition to share any information with the Court and with JFCAS.

13.      Advocate Hillier on behalf of the Father argued that the Court should at the least leave the Father free to make an application to the Court if he found it hard to obtain school or health reports regarding YY. 

JFCAS

14.      YY has been a party to these proceedings from the outset through his Guardian, Eleanor Green, he has also been represented at court proceedings by Advocate Heath.  Ms Green had filed 2 reports relating to the Father's applications.  The most recent report was dated 6^th April 2022.  In this latter report, Ms Green records that Father's contact with YY had been positive when it had taken place, but that Father had cancelled 4 out of 14 possible video/telephone contact sessions since October 2021.  It appears that Father suffered from Covid in January 2022, but he also cancelled 2 contacts because he said he had received personal threats.  Ms Green comments that as the contacts cancelled took place remotely they could not have posed any threat to Father, and therefore any threats would not explain nor justify why the Father had given up the opportunity to see his son, nor why he would risk distressing YY by cancelling contact.

15.      Ms Green has not filed a written report relating to the Mother's present application, she gave her advice in evidence at this hearing, she was cross examined by the Advocates for the parents.

16.      Ms Green confirmed that she has been working with the family for a long time both in the public law proceedings and the private law proceedings before this court.  Over time she noticed that the Mother had made considerable strides to prioritise YY's needs above her own, the Father too has made progress but he becomes easily overwhelmed, his anxiety sometimes manifests itself as angry and emotional behaviour.  The contact that has taken place has been by way of video calls, they went well but required a lot of management from Ms Green, she observed that Father's behaviour could be stressful for the Mother, and the negative impact upon Mother of Father "swinging in and out" made her anxious.  Ms Green advises that Mother needs a breathing space, not least so that she can manage YY's needs without the anxiety of never knowing if Father would reinstate his application.  Ms Green believes that Father too may benefit from a period of respite.

17.      YY has just started school which is an important and significant time for him, in Ms Green's opinion 18 months would give him time to settle into school without he and his main carer engaging in further proceedings, which, without there having been a "wholesale change" in Father's life would, in Ms Green's opinion, probably be unsuccessful again.

18.      Ms Green confirmed that she had spoken to a member of the team responsible for assessing YY and had received an indication that he would be diagnosed with [redacted], she therefore accepted the evidence filed by Mother reflected a genuine diagnosis.  Ms Green advises that in 18 months' time, it would be easier to assess how YY might deal with the potential stress of further Court proceedings bearing in mind his diagnosis.

The Law

19.      The power of the Court to make the order sought arises under Article 66(8) of the Children (Jersey) Law 2002 which provides as follows:-

"66 (8) 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 regard to the child concerned by any person named in the order without the leave of the court."

20.      Advocate Hillier on behalf of the applicant invites the Court to consider 2 Jersey cases in which the Court considered the principles relating to making 66(8) orders in private law proceedings.  In J v I (Family) [2014] JRC 110 Commissioner Clyde-Smith at paragraph 5 makes reference to the Jersey case of In the matter of T [2010] JRC 126 which cited with approval the guidance set out by Butler-Sloss LJ in the case of Re P [1999] 2 FLR 573, this case relates to section 91(14) of the Children Act 1989, which is in the same terms as Article 66(8) of the  Law. The guidance at paragraph 592 is as follows:

"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."

21.      In B v C (Family) [2021] JRC 024 the Court followed the guidance set out in Re P in circumstances where there had not been a history of unreasonable applications, but where there was a real concern that a future application may carry a risk of exposing the child in that case to disappointment and distress, in the event that such an application were to be made without that Father demonstrating change.

Analysis

22.      The Father's applications issued on 3^rd August 2020 have taken an unusually lengthy period of time to be concluded.  There have been 11 hearings (excluding date fixes and agreed directions) prior to the hearing today.

23.      The Father has failed without good reason, to comply with orders made by this court on multiple occasions.  He has failed to attend Court without leave on 3 occasions and has been excluded from a further 2 hearings for disruptive behaviour.  The Father failed to participate in scheduled contact without good reason on 2 occasions.

24.      The Father, having filed his application on 3^rd August 2020, then failed to set out his position and proposals until 23^rd June 2021, a delay of nearly 11 months.

25.      The Father's litigation conduct as set out in these reasons is by no means the sole cause of delay, but his conduct has contributed significantly to the delays.

26.      Advocate Hillier on behalf of the Father argues that when he became overwhelmed the Father had effectively withdrawn his application by failing to file required documents.  It may be the case that the Father became overwhelmed, but I do not accept that there was any positive intent on his part to conclude the court proceedings.  On repeated occasions he has argued that his lack of compliance was as a result of health issues, without filing evidence to support.  By making excuses for his lack of compliance he appears to have deliberately sought to prolong the proceedings.  In this regard he has not been focused upon YY's needs.

27.      I accept that the Mother's sworn evidence when she says that she has found the proceedings "overwhelming" and that "I have been in a state of uncertainty and anxiety for over 2 years".  It is likely that the anxiety felt by the Mother has impacted upon YY over the years.  The proceedings have been ongoing for 25 months, this is a period approaching half of YY's life, during which time the Mother has been his sole carer. 

28.      YY has received a recent diagnosis of [redacted], he is also starting school.  Mother says "YY, myself and my family, need to be able to settle down into our lives"  I accept that this is a real and heartfelt need for herself and YY, in my view both he his carer will benefit from a period of respite without the shadow of Court proceedings.

29.      Re P makes reference to applications which have become oppressive, in my view, the way in which the Father has conducted his application has become oppressive.  The guidance refers to "a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the Court".  I find that it would be in the best interests of YY for there to be some protection from future unmeritorious applications.  I also find that the Father has not made best use of the opportunities that the Court proceedings have given him, Advocate Brown says that "Father's own needs preclude him from focusing on YY needs", I share her view.  In this case the welfare of the child must prevail.

30.      Re P requires a court imposing a restriction against future proceedings to carefully consider the type of application to be restrained and the duration of the order.  Ms Green advises that 18 months is an appropriate length of time and I therefore make the order sought for that duration.

31.      Mother asks that all Article 10 applications be covered by the restriction.  The Father through his Advocate asks that any restriction exclude any application for a specific issues order on the basis that the Father may face difficulty obtaining information regarding YY's health and education.  There is no evidence before the Court that the Father has ever tried to obtain information regarding YY, he holds parental responsibility which should be sufficient for him to obtain information should he wish to do so.  I make the order to cover all applications arising pursuant to Article 10(1) of The Law.

Authorities

Children (Jersey) Law 2002. 

Re P [1999] 2 FLR 573. 

J v I (Family) [2014] JRC 110..

In the matter of T [2010] JRC 126. 

B v C (Family) [2021] JRC 024.