Family - re: residence and contact
Before : |
Elizabeth Daultrey, Registrar, Family Division |
Between |
D (the Mother) |
Applicant |
And |
E (the Father) |
Respondent |
Advocate B. J. Corbett for the Applicant
Advocate C. Davies for the Respondent.
reasons
the Registrar:
The Court is asked to determine issues of residence and contact of 2 children. Both children were born in 2018 and are aged 4 at the date of this hearing.
1. The parties married in 2017. In November 2019, the children ("Child 1") and ("Child 2"), then aged 20 months, were placed with the parties for adoption, an adoption order was subsequently approved by the courts of England and Wales in June 2020. The parties underwent a thorough and positive assessment in early 2019 prior to being approved as prospective adopters.
2. The applicant is from Country 1 and the respondent is English, they met and married in England. During their marriage they lived in the UK close to the respondent's mother.
3. Sadly, the parties separated in July 2021 during a family holiday to visit the applicant's sister in Jersey. The respondent returned home with the family dog, the applicant and the children remained and continue to live in Jersey.
4. Since September 2021, the respondent has been travelling to Jersey to see the children at Organisation A.
5. On 4th January 2022 the respondent issued an application in the High Court of England and Wales for a return order for the children. This application was opposed by the applicant. On 10th February 2022, an application for residence orders was issued by the applicant in Jersey. The respondent's application in the High Court concluded on 17th March 2022 by an order that the Children's habitual residence as at 4th January 2022 was Jersey and that accordingly, the Royal Court of Jersey has exclusive jurisdiction to determine issues relating to the welfare of the children. The High Court gave leave for their papers to be disclosed into these proceedings, the court bundle includes only orders, I have also had sight of the respondent's application to the High Court, I am unaware of any additional relevant papers.
6. The parties agree that there be a final residence order in favour of the applicant, the parties also agree that the respondent's contact with the children progress to overnights and holiday contact, they are not however in agreement regarding the speed of progress toward these changes. The respondent currently has contact with the children in Jersey for 6 hours on each occasion. Due to the need to travel and stay in Jersey, the respondent cannot afford to come more often than monthly visits. In addition, video contact takes place 3 times per week.
7. The children both have some level of delay which I deal with as part of the JFCAS evidence.
8. For the purpose of these reasons, I shall call the parties "Mother" and "Father".
9. Mother filed a sworn affidavit of evidence dated 5th December 2022 and gave sworn evidence at this hearing.
10. The children have resided in the sole care of the mother since separation. Mother restricted Father's contact with the children wishing this to be limited to contact at Organisation A. Following an interim hearing in August 2022 contact increased to be in the community for 6 hours on each visit.
11. Mother agrees that contact progress to overnights but wishes to defer this progress to April 2023. Mother also agrees to longer periods of holiday contact, her proposal is as follows:
· 4th Saturday contact sessions from 10:30 am to 4:30pm;
· From April 2023, 4 contact sessions from 10am Saturday to 10am Sunday, the children to have video contact with her at 5:15pm on the Saturday;
· Thereafter, at least 2 contact sessions of 48 hours, from 10am Thursday to 10am Saturday, or 4pm Thursday to 4pm Saturday, the children to have video contact with her at 5:15pm each evening they are away from her;
· Thereafter, during the remainder of 2023, contact to be for blocks of 4 days and nights with the children to return to her by 10am Sunday before school and to have video contact with her at least twice during each block of contact;
· During 2024, contact to take place for longer periods of time but not outside of Jersey, thereafter there be a review, if necessary by the Court before contact moves to Father's home in England;
· Christmas contact to exclude 24th December each year when the children should be with her;
· Video contact three times per week;
· Handovers at Organisation A or at school.
12. Mother's concerns about contact fall into 2 categories. She wishes to take things slowly so that the children can become gradually accustomed to the change in their routine, she compares the move to spending longer periods with Father to the children moving from foster carers to live with the parents. She worries about the impact on the children's routines, for example, after overnight contact on a Saturday, she wishes the children to be returned to her on Sunday morning at 10am to "minimise the impact" of contact. With relation to longer periods of holiday contact she says that if this happens gradually contact is "less likely to be a trauma". If the progression of contact is gradual, the children will learn that "they can come back to their safe home" .
13. The Mother's main concern is that Father poses a risk to the children. In her affidavit of evidence she expresses concern that Father will not be able to manage the children "on his own for lengthy periods of time", she says that Father has "not managed to keep the children clean when going to the toilet", she complains that Father has taken the girls into the gents toilets when he is out with them. Mother also expresses concern that Father will not be able to keep his temper when with the children. Mother offers no detail of this allegation in her affidavit, but during cross examination she raised allegations that Father had been rough with the children and hurt them physically on 2 occasions before separation, on one occasion when Father had held Child 1 between his knees whilst applying sun cream, and another occasion "grabbing" Child 2 by the arm to put her coat on. Mother said in evidence that Father shouts at the children. She said that Father punched a pillow during a row the night before the parties separated. Mother has concerns that Father has mental health problems.
14. When the children do have contact in England, Mother would be prepared to bring them over once a year, she could not do so more frequently due to her work and domestic commitments.
15. Father filed an affidavit of evidence sworn on 14th December 2022 and gave sworn evidence at the hearing.
16. Father filed a letter from his GP dated 27th April 2022 which states:
"I write to confirm that [E] above has no history of mental illness and is not mentally ill. I can confirm that he is neither receiving any treatment or is he taking any medication for mental health".
This evidence was not challenged by Mother.
17. Father says that when the family lived together in England, he played a full role in caring for the children.
18. Father says that he didn't agree that the children should remain in Jersey. He agrees that the children should live with Mother but is unhappy on the basis that, if they had remained living with Mother in England after separation, he would be able to see them on a weekly basis rather than the present limited and costly arrangement.
19. Father sets out the difficulties and expense he has experienced seeing the children only in Jersey and, for a long time, on a supervised basis only. He does not feel that Mother does enough to make video contacts fun for the children. When the family lived in England, the children saw their paternal grandmother every week, since separation she has seen them on 3 occasions by coming to Jersey, this is increasingly difficult as she is now 79 and has suffered 2 strokes. On one occasion contact was made particularly difficult as Organisation A did not allow Father to take the children out despite him having parental responsibility and contact being defined in an interim court order. The children have not seen other members of the paternal family since separation, and the children have not seen the family dog other than on the video contact.
20. Father dealt with Mother's allegations, he recalls holding Child 1 between his legs whilst he applied sunscreen, but not in such a way that would hurt her. He does not recall and denies "grabbing" Child 2 to put her coat on or ever being rough with either child. Father admits shouting between himself and Mother but says they both shouted, he denies he ever shouted at the girls.
21. Father would like Mother to bring the children to England when they come there for contact, he would then return them. So far he has met all of the cost of contact, and has not made any reduction from child maintenance to take these expenses into account.
22. Father presently lives at the home of paternal grandmother, this being a home with which the children are familiar. If the children came to stay, they would have their own bedroom. Father wishes to progress to this as soon as possible to make contact a more normal experience, it would also reduce the financial burden of contact.
23. The parties underwent an extensive assessment process in early 2019 as part of the process to be approved to adopt. Bearing in mind Mother's stated concerns regarding Father, some aspects of the report relating to Father I have found helpful as follows:
· The parties saw Paternal Grandmother twice per week, she is identified as a part of the family support network and attended training so that she could assist the family;
· The family dog is referred to in the assessment as being safe around children;
· Father has prior experience of caring for his niece and nephew including for weekends;
· Father coaches children at his squash club, the club provided a reference. The assessment states: "this experience has enabled [E] to interact with children from a range of backgrounds and he has promoted positive behaviour by engaging in warm and accepting rapport with the children and being clear about his expectations and boundaries. A reference was received from the squash club which noted that, "his involvement is exemplary and he is well liked by the children he coaches". Two of the key personal qualities that [E] is viewed to have is patience and humour which are valuable attributes for parenting".
· The assessment covers the prospect of adopting children with a learning need or developmental delay and is positive regarding both parents understanding of the potential demands;
· Maternal Aunt praises Father: "[E] is described by ["H"] as very patient, calm and having a good sense of humour. [H] is of the view that [E] has a very supportive attitude to family and this is demonstrated by the care and affection he has consistently offered his mother, especially after the loss of [E's] father and also when she was recently unwell."
· Paternal Aunt praises Father: "["L"] describes [E] as laidback relaxed, emotionally calm and considered" also "[L] also described how [E] has offered their mother additional care that she has needed in recent years due to some health difficulties which has meant, for example, at a time when she was immobile due to a broken foot, he visited daily to cook for her for six weeks, despite his full time job".
· Father was previously married before meeting Mother, he was with his first partner for 10 years, she offered a reference as part of the assessment: "["R"] stated that during their time together she found him to (sic) a very kind, compassionate and loving man....she is of the view that he will be patient and loving to any children that they go on to adopt".
· Mother has raised that Father's medical condition might affect his ability to care for the children, this is dealt with as part of the assessment, stating that his condition is wholly managed by medication and does not affect his ability to parent.
24. Ms Fernandes of JFCAS filed a full welfare report dated 26th July 2022 and a addendum report dated 15th December 2022. She gave evidence at the hearing.
25. Ms Fernandes observed Father's contact with the children, both video contact and direct contact on 2 separate occasions. On both occasions the children were happy and enthusiastic to see their father, Child 1 running into his arms shouting "Daddy". Ms Fernandes observed Father to be "calm and relaxed in managing the children and meeting their needs", she had no concerns as to his ability to meet the children's needs.
26. Ms Fernandes reports that during the video contact, there was a "rigidity to the call" with Mother telling the children they could not pick up toys or books as their Father didn't want them to.
27. Ms Fernandes describes Mother as "caring and loving", but also "overly anxious". Mother told Ms Fernandes that she felt it was for Father to make video contact work and not for her to be part of it which Ms Fernandes felt was not child focused. In her analysis Ms Fernandes says:
"[D] presents as somewhat over protective of the children and seems to feel that only she can meet their needs which, in my view, is impacting on them progressing their relationship with their father. [D] maintains that [D] is not able to provide care for the children and has anger/ rage/ emotional issues. I've seen no evidence of this during this assessment."
28. In her report, Ms Fernandes recommended that due to the length of time that had passed since Father had the children in his sole care that the move to overnight contact be gradual, contact building to overnight contact to take place not more than fortnightly and not less than monthly from 4pm Saturday to 4pm Sunday. Once this is established, holiday contact to take place on Jersey in 2023, in February and Easter, of at least 4 consecutive days and nights, also in Jersey during summer 2023 for 2 blocks of 7 consecutive days and nights. Contact in England or elsewhere to start only from 2024 and to be for at least 4 separate week long blocks. In addition, video contact 3 times each week.
29. Ms Fernandes gave evidence at this hearing, she was able to assist the court with more information as to the children's delays. Child 2 has developmental delay due to a medical issue. She is in mainstream school and is toilet trained but requires additional support at school and is not meeting her milestones. Child 1 is emotionally delayed, she struggles with friendships and struggles with her sister's developmental delay. She has Support Assistance A. Ms Fernandes recommends that whatever arrangement is made, that it be structured and the children supported so that they know what will happen.
30. Ms Fernandes stands by her previous recommendation and confirms that staying contact should commence now. She confirmed her impressions that the children wanted more contact.
31. Ms Fernandes explained her recommendation that contact remain in Jersey throughout 2023, saying that it was about the girls getting used to being away from Mother, and getting used to Father caring for them. Contact remaining on Jersey will reassure Mother which will make the contact a more positive experience for the children. What is different for these children is that they have experienced a lot of change in their lives. Ms Fernandes does not link her recommendation directly to the children's individual issues.
32. In response to a question from Advocate Davies as to whether contact in England during 2023 would be preferable to no contact if the cost of contact in Jersey is prohibitive for Father, Ms Fernandes answered that it was more important that contact take place.
33. This is Mother's application for a residence order, the parties agree, and Ms Fernandes recommends that a final residence order be made in favour of Mother. Pursuant to Article 10(1) of the Children (Jersey) Law 2002 ("the law"), the court has power to make any Article 10 order upon the application before the Court. The Court can therefore make a contact order in Father's favour. Pursuant to Article 12(7) of the law, the Court can make directions and impose conditions, the Court can also make "incidental, supplemental or consequential provision".
34. Article 2(1) of the law provides that:
When the court determines any question with respect to -
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it,
the child's welfare shall be the court's paramount consideration.
35. Article 2(3) of the law provides that when the court is considering whether to make, vary or discharge an Article 10 order, the court shall have particular regard to criteria known as the welfare checklist. Although on the face of things the remaining areas of dispute between the parties are relatively narrow, the parties and the JFCAS officer each take a different view as to the best order to be made. I find it helpful to go through the criteria listed in article 2(3) in turn and consider how they are applicable to the present case.
(a) Ascertainable wishes and feeling:
Ms Fernandes believes that the children wish to see more of their father, she reports both children told her that they enjoyed seeing Father and wanted to see more of him. Ms Fernandes reported contact in a wholly positive way, she observed the children greeting their father enthusiastically.
(b) Physical and emotional needs:
Child 2 has developmental delay but this is not described as severe. Child 1 has some emotional delay. Neither child's issues are presented to the Court as being such that contact should be limited. Child 2's adoption placement report makes reference to slight delay. Mother describes the children as needing routine, Ms Fernandes agrees with this but advises that contact can and should be part of that routine, she says that the children need "consistent and regular contact".
Mother says that the children have attachment issues, however I have no evidence if this is correct or how that might impact the matters to be decided. The available evidence clearly indicates that the children love and are attached to both of their parents.
(c) Effect of change:
Mother says that the children deal poorly with change. The children have experienced many changes in their lives. They were moved from foster carers to the care of the parties in late 2019. In July 2021 they moved from their home in the UK to Jersey with no planning, at the same time they experienced separation from their father, Grandmother and family pet and their routines changed entirely. They have recently started school and moved home in Jersey. There is no evidence before the Court that these changes have caused the children particular problems, indeed the available evidence is that they have adapted well to a high level of change in their lives.
The change proposed by Father is that they spend more time in his care, and that they stay with him in their grandmother's home in England which is familiar to them. Yet Mother fears that this is the one change that will cause them the greatest difficulty, she likens it to the children's transition from foster care. In my view it should be the opposite, the children are gaining additional time with their father without any loss to them. The children will spend time away from their primary carer, but they are used to being away from her to attend school and after school care.
Ms Fernandes in her addendum report dated 15th December 2022 says:
"I am aware from my discussion with [D] and from reading her affidavit that she continues to be anxious about contact progressing and feels that the children will need longer time to become accustomed to any changes. She tells me that the children find change difficult and this impacts upon their behaviours. I do not doubt this and is to be expected and some thing that happens to a lot of children when getting used to new routines of any kind, especially children who have experienced a lot of change in their lives, as these two children have. However, in my professional opinion this alone is not a reason for contact not to progress"
(d) Children's age, sex and background:
The children will be 5 years old in early March 2023. Mother described the children as "toddlers", but they are school age children.
The children have suffered loss in their lives, they were removed from their birth mother at 6 days old. It appears that there was some difficulty finding a suitable adoptive home with several false starts, I do not know if they were able to remain with the same foster carers throughout this time. At 20 months they moved from their foster home to the care of the parties. The children have been fortunate to find 2 parents and wider family who are committed to them and love them as they would their biological children. Within 2 years of placement in their forever home, they have had to deal with the breakdown of their parents' marriage.
It seems to me vital that they do not suffer further loss, and this must mean ensuring that they have the best possible relationship with both their parents and parents' extended families. This presents a challenge as Father remains in England and Mother has made her home in Jersey.
(e) Any harm the children have suffered or are at risk of suffering:
Mother alleges that the children have suffered harm in the care of Father, in that he has been rough with them and shouted at them. Detail of those allegations was absent from Mother's affidavit of evidence but were raised by her at the final hearing. Mother also made those allegations to JFCAS, they are referred to in the initial safeguarding letter and formed the basis of the need for a full welfare report.
Ms Fernandes reports that she has seen no evidence during the assessment process that supports Mother's fears.
The preadoption assessment describes Father to be a calm, patient good humoured man.
I have heard sworn evidence from both parents. Mother describes behaviours which could be wholly explained in the context of a parent simply dealing with a wriggling child. Mother says Father was unnecessarily rough, Father denies that he has ever been rough with the children.
Mother clearly loves the children and does want some contact with Father to take place, but she appeared to assert that for the contact to work it would need to be limited and tightly controlled, for example she wishes the children to be back in her care for almost 24 hours before school on Monday. Mother referred to contact arrangements as potentially traumatic for the children, saying the children needing to know there are "no monsters", and that they knew they can come back to their "safe home" with her, also that it is "important for them to know where is safe".
Hearing Mother's evidence, I shared the perception of Ms Fernandes that Mother is overprotective and feels that only she can meet the children's needs. I found Father to be a straightforward and honest witness, and whilst I did not gain the impression that Mother was making things up, I felt that she perceives risk in situations where in reality there is none. I am satisfied that Father does not present a risk to his children and can provide for their needs when they are in his care.
It is my view that the risk of harm to these children will arise from the difficulties the parents have in working together, Father describes Child 1 already being confused by this. Mother says that she fears Father, she could not sit adjacent to him in court. I do not doubt that the row between the parents in July 2021 which led to their separation was deeply unpleasant for both of them, but there is no evidence and few allegations which could amount to a pattern of domestic abuse. The parents ideally need to move beyond the circumstances of the breakdown of their marriage and find a way to co parent in the future.
(f) Capacity of parents and others to meet the children's needs:
The available evidence is that Father can meet the children's needs. His parenting capacity was assessed positively prior to the adoption, he cared for the children as part of the family unit from November 2019 until separation in July 2021. Father has had limited opportunity to care for his children since July 2021, but this restriction has been artificial. Ms Fernandes says of her observation of Father with the children: "I observed a father who was able to meet his daughter's needs".
In her addendum report of 15th December 2022, Ms Fernandes says:
"I have seen no evidence since the last hearing in July that [D] has not been able to manage both children".
(g) The range of powers available to the court:
I have dealt with this in paragraph 33 of these reasons.
36. It is to the credit of the parties that prior to the hearing, they had made considerable effort to reach agreement, they however remain in dispute upon a number of issues.
37. Regarding progression to overnight contact, I can find no reason why contact should not progress to overnight stays immediately. There are good reasons for progression, namely that the children wish to see more of their father, also that as contact is limited because of the travel involved, it can be for longer on each visit. This immediate progression is supported by Ms Fernandes. Overnight contact shall take place in Jersey at least once during each of January and February 2023. The times are to fit around Father's flight times but to commence no earlier than 10am on Saturday and not to extend beyond 4:30 pm on Sunday. Contact is not limited to 24 hours on each occasion. I am not satisfied that there is sufficient evidence that the children's welfare requires that they return to their mother's care by 10am on Sunday, it is more important that they spend time with their Father. There is no fixed requirement for there to be video or telephone contact with Mother whilst they are with Father, based upon Ms Fernandes evidence, I am satisfied that Father will contact Mother if, and as often as the children may require. Hand overs should be at Mother's home or an agreed neutral public place. Hand overs need not be at Organisation A unless the parties agree as this is unduly restrictive.
38. From March 2023 and thereafter, contact shall be from Friday afternoon to Sunday afternoon once each month. Contact can be extended to 3 nights to include a bank holiday or school inset day. The parties shall share bank holidays and inset days. This contact shall take place on Jersey unless otherwise agreed.
39. Perhaps the greatest issue between the parties relates to when contact shall take place outside of Jersey. Mother says not until 2024. This accords with Ms Fernandes recommendation, as she says that the children have experienced a lot of change. I disagree with Ms Fernandes on this point and order that contact during school holidays can take place in England from and including summer 2023. I have also disagreed with Ms Fernandes regarding the length of contact in January and February 2023, as she recommends contact be limited to 24 hours. My reasons for this are as follows:
· A parent of any gender who does not present a risk to their child or to the other parent, and who is capable of caring for their child, should expect that contact will not be unnecessarily restricted, both for their sake and that of the child;
· Ms Fernandes refers in her report to "holiday contact". Father asks for contact to take place in his own home during school holidays. This is not the same as taking a holiday. There are clear advantages of the children spending time with Father in his home rather than in a hotel or apartment. It is a more natural environment, it allows for greater flexibility for example if the weather is poor, it saves expense, it allows the children to share their father's home life. Whilst contact can include holidays but is not a holiday in itself but should be an opportunity for co-parenting;
· Having heard Mother's evidence, I accept that she wishes some contact to take place but is fixed of the view that Father represents a risk to her and the children. I am satisfied that Father does not pose a risk to his children. If he cannot take the children home until 2024 at the earliest, there may be a risk that the children will absorb their mother's fears;
· Having heard the evidence I am concerned that Mother does not accept the need for co-parenting through contact. This hearing finished early which opened an opportunity for Father to enjoy an additional contact with the children, however Mother insisted this be time limited because of her need to also spend "quality time" with the children after they had seen Father, notwithstanding that the children live with her but see their father only once per month. On Mother's behalf, Advocate Corbett put to Ms Fernandes whether Father's video contact with the children was necessary. If progression of contact continues to be curtailed or delayed, my concern is that this will support Mother's apparent view that the children's contact with their father is of limited value.
· Father's home in shared with the children's grandmother and family pet. The pet was a constant in their lives until separation, and they saw their grandmother on a weekly basis. Grandmother is 79 and has significant health issues which may limit her ability to travel to Jersey. This relationship is potentially important for the children, Father's contact should allow the continuation of this relationship to be facilitated as soon as possible.
· I accept that these children have experienced a lot of change, most recently those changes have involved them leaving their home in England and the care of their father, there being no evidence to suggest that they were distressed by this move. In these circumstances, I cannot agree with Ms Fernandes that travelling to Father's home in England is a potentially negative change or one to be approached with caution.
40. Ms Fernandes emphasises the importance of contact developing, referring to change she says "in my professional opinion this alone is not a reason for contact not to progress". For the reasons set out, my view is that progress of contact should include Father taking his children to his home. The flight is a short one, and any potential anxieties on the part of the children can be minimised by their mother bringing them to England at the start of any contact to take place there. Contact is a benefit for the children and should be supported and facilitated by both parents.
41. In summary, these are young children but they are not toddlers, they will be 5 years of age before contact progresses to more than 1 night away from their mother. When Ms Fernandes observed contact, the children had experienced only very limited contact with their father for more than a year, nevertheless, the enthusiasm and warmth of their reaction upon seeing him is striking. The children will need to adjust to being away from their mother for increasing periods of time, but they will be in the care of their father with whom they clearly enjoy a strong bond, and I can find no reason to be concerned that they would not cope with increasing time with their father. Ms Fernandes gave evidence that she was confident that Father would make contact enjoyable for the children wherever he was, she was also confident that Father could be relied upon to facilitate contact between the children and Mother as was needed when the children are in his care.
42. Ms Fernandes recommends that contact remain in Jersey for another year, as far as I can understand, this is at least in part so that Father can cut the contact short if needed. I understand the advantage of such flexibility, however, in my view the benefits of contact progressing to Father's home and the disadvantages of it remaining artificially away from his home, vastly outweigh any benefit such flexibility might afford.
Authorities
Children (Jersey) Law 2002.