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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> J v K (Family) [2023] JRC 259 (14 December 2023) URL: http://www.bailii.org/je/cases/UR/2023/2023_259.html Cite as: [2023] JRC 259 |
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Family - cross applications for residence
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Before : |
Samantha McFadzean, Registrar, Family Division |
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Between |
J (the Mother) |
Applicant |
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And |
K (the Father) |
Respondent |
Advocate C. Hall for the Applicant.
The Respondent on his own behalf.
reasons
the registrar:
1. The court is asked to determine cross applications in respect of a six-year-old child (the "Child") made by her parents. J's' (the "Mother") application for a residence and a prohibited steps order, to prevent K taking the Child from the jurisdiction were issued first in time in October 2022, shortly after the marriage broke down and resulted in the parties offering cross undertakings to the court not to remove the Child without the written consent of the other parent. In March 2023, K (the "Father") issued his cross application for residence, coupled with an application for a prohibited steps order in similar terms.
2. Accordingly, today, I am determining the cross applications for residence although, because of the evolution of the case, I am also considering what contact, if any, the Child should have with her Father; it is over a year since the Child has spent any meaningful time with him.
3. The Mother has been represented by counsel throughout; although the Father was initially represented by counsel, he told the court that he could no longer afford legal advice and therefore undertook the challenge of preparing for and representing himself at a two-day hearing without the benefit of advice or representation.
4. The Father has been living in Jersey for some seventeen years, working principally in the finance industry. He is originally from Country 1.
5. The Mother was born in Country 2 but lived in Country 3 from an early age. She came to Jersey to visit her sister and was introduced to the Father, who now believes that the Mother entered into an intimate relationship with him to enable her to remain in Jersey. In any event, the Father believes that it was his refusal to provide her documentation to enable her to obtain indefinite leave to remain which precipitated the end of the marriage and which caused her to leave the family home with the Child.
6. The Child was born in 2017 and lived with both of her parents until their relationship came to an end in October 2022. The Father told the court that he was their daughter's primary carer, particularly during COVID, when he worked from home when the Mother was working nights in occupation 1.
7. The circumstances in which the relationship came to an end was a matter of dispute between the parties and, for reasons which I will touch on later in the judgment, may be tangentially relevant to the decision that the court needs to make.
8. At the outset of the proceedings, the Mother alleged that the Father had subjected his daughter to unusual chastisement by sending her to "the corner" for long periods. She also alleged that the Father had struck the child, which he vehemently denied. She alleged that he had physically, emotionally and financially abused her. She claimed that the Father held extreme racist views, insisted that the child follow a vegan diet and, furthermore, claimed that he had denied the child medication.
9. The Father, in turn, alleged that the Mother had emotionally and financially abused him and, that as a believer in female genital mutilation ("FGM"), their daughter was at risk. The FGM allegation was not pursued by the Father at the final hearing.
10. The court asked both parties' advocates at an early stage whether a fact find might be necessary in this case and, at that stage, advocates agreed that no findings were necessary; this was curious given the serious nature of the cross allegations.
11. As a result of these cross allegations and with the benefit of a recommendation from the Jersey Family Court Advisory Service ("JFCAS"), the court agreed to appoint a clinical psychologist, Dr David Briggs, to meet with each of the parents in an attempt to identify whether there was anything in their psychological make up which the court should consider when determining the cross applications. The court also ordered JFCAS to prepare a full welfare report and, latterly, to conduct a contact intervention to facilitate the reintroduction of the Child to her Father as the Father had not been able to take up (or had not taken up) the opportunity of seeing the Child through Millis; he told the court that the first invitation had gone into his junk email and that by the time that he contacted Millis, they informed him that they were due to close and that, accordingly, he had not been able to use the facility.
12. Ms Green from JFCAS subsequently brought to the attention of the court a safeguarding issue which, she said, meant that JFCAS could no longer safely conduct the contact intervention. As a result, the final hearing needed to be adjourned to enable JFCAS to consider with Dr Briggs the disclosure made by the Child. As the court was not initially made privy to the nature of the Child's disclosure, the court ordered an investigation under Article 29 of the Children (Jersey) Law 2022 (the "Law") to be carried out by Children's Social Care to explore JFCAS' concern.
13. The final report prepared by JFCAS concluded that because K had failed to engage with the programme of work prescribed by Dr Briggs, and because it was for the court to determine whether the Child's disclosures were true, JFCAS felt unable to make a recommendation for face to face contact between the Child and her Father unless it was supervised or supported; JFCAS concluded that without a finding by the court as to whether the Father had assaulted the Child, they could not recommend unsupported contact. They recommended that the court make a residence order in favour of the Mother.
14. A week before the final hearing, those representing the Mother wrote to the court with a proposal that the first morning of the three day hearing should be set aside to agree those facts upon which the court needed to adjudicate. In response, given how little time there was to hear the matter (listed for three days and which had already been adjourned twice), the court asked the parties to agree the facts about which they needed a finding in order that there should be no further delay and no hearing time would be lost in the busy court calendar.
15. At the outset of the hearing, counsel for the Mother indicated that she did not consider that any fact find would be necessary and she said that this view was shared by JFCAS. She told the court that the Mother would not allege that the Father had been physically abusive towards the Child and did not intend to advance any such allegations on her own behalf. Counsel said that the Mother relied on the conclusion of the Article 29 report by Childrens' Social Care which had concluded that there was insufficient evidence of abuse.
16. Advocate Hall confirmed that the Mother was seeking a residence order and the discharge of the undertakings given to the court at the first hearing.
17. The Father confirmed that he was seeking a residence order in his favour although it was clear from his position statement that he thought that the hearing needed to determine the various allegations made by the Mother.
18. The court asked the advocate for the Mother whether any special measures needed to be put in place given the allegations and cross allegations and the fact that the Father was acting in person. The court offered, if necessary, to put questions on the Father's behalf to the Mother but counsel for the Mother did not consider that this was necessary given that the Mother would not be advancing allegations of abuse.
19. I was concerned at the final hearing that no law or authorities had been put in the bundle and that this could put the Father at a disadvantage. Overnight, before the second day of the hearing, the Law was uploaded and a paper copy provided to the Father. Several authorities were also uploaded although the advocate for the Mother conceded that they contained nothing of particular relevance to this dispute which she wanted to bring to the court's attention. Accordingly, no reference is made to them hereinafter.
20. In closing, the Mother's advocate drew the court's attention to the provisions of Articles 2 and 10 of the Law. Although the provisions are well known, as Article 3 sets out those matters which the court must consider when determining an application for a residence order under Article 10, they bear repeating:-
21. No authorities were placed before the court about how the court should approach a dispute where a disputed allegation/s formed the bedrock upon which JFCAS had based its conclusion and no suggestion was proffered as to how the court could proceed without making findings of fact.
22. The Mother's case was based on the premise that she would not be relying on allegations of abuse either of herself or of the child whereas JFCAS said, in terms, that against the background of an undetermined allegation by a child of abuse, they could not safely recommend unsupervised or unsupported contact. Dr Briggs reached broadly the same conclusion, (quite rightly) opining that it was not for him to decide the question of whether or not there had been any physical chastisement of the Child as this was a matter for the court to determine.
23. What duty is there for the court to make findings where these are not sought? Absent any authority being brought to the court's attention as to the matters which I should consider when dealing with the allegations in this matter, I have reminded myself of the current position in England and Wales.
24. In K v K [2022] EWCA Civ 468, on appeal, dealing with the question of when and whether the court should conduct a fact-finding hearing in relation to private law proceedings, Sir Geoffrey Vos, M.R. said that:-
25. In the recent judgment of Alcott v Ashworth [2022] EWHC 3687, Arbuthnot J said as follows:-
26. Helpfully, Alcott v Ashworth also sets out a summary of Lucas direction of which I remind myself:-
27. The author of the Article 29 report was not called to give evidence by either party. The court considers it helpful to summarise the position of Children's Social Care as recorded in their written report (and in the earlier assessment). That evidence revealed that:-
(i) the Mother had attended the woman's refuge following the breakdown of the relationship in October 2022 and "provided information indicating controlling and coercive behaviour, for example that the Child cannot be vaccinated and must be brought up on a vegan diet.... Dad was also alleged to be extremely racist, for example not allowing his daughter to watch TV where there are white characters and discouraging her from being friendly with white children";
(ii) this led to an initial assessment by Children Social Care which concluded that there were no significant risks raised about the Child's safety and that as contact between the Child and the Father was being determined by the court, there was no further role for the social workers;
(iii) the social worker recorded the fact that a pause had been applied to the court ordered work of reintroducing the Child to her Father as a result of the Child telling JFCAS that the Father had put her in the corner and used a stick to hit her on her hand. It was also recorded that the Child had been smacked on her bottom by her Father.
(iv) The Child repeated this last allegation at a subsequent meeting but went on to say that she had not seen her Father for a long time and that she missed him and wanted to see him. She told the social worker and the police officer present during this meeting that she was not scared to see her Father and that she wanted to see him but that she would prefer to see him with her uncle, L, present. The Child subsequently told the social worker and Miss Green that she was not scared of her Father but she was worried about her dad hitting her and worried about her Father hurting her mother. The Child said that the Father had called the Mother "fat" and when they asked whether she had heard him say this, she said that her Mother told her that he had done so. When asked if she had seen the Father hurting her mother, she said that she had seen her Father pushing her mother;
(v) The Child said that her Mother had been there on some of the occasions when her Father had hit her with sticks or smacked her. She told the social worker that she wanted the Father to stop smacking her and she wanted the Mother to stop using her loud voice;
(vi) The social worker noted that the Child appeared pleased when she told her that she would arrange for her to see Father;
(vii) The author of the report noted that the Mother was cooperative with the investigations being conducted but that K had told her that he did not want to cooperate because he was concerned that the evidence he provided to date had not been considered. He complained he had already presented two pieces of substantial pieces of evidence to Dr Briggs and to the original JFCAS officer but was concerned these had not been presented to the court;
(viii) The social worker observed contact between The Child and the Father and said that it was positive; she appeared to enjoy the time with him and seemed as though she wanted to stay longer. The Child was heard to tell her Father that she missed him and loved him when he was leaving;
(ix) The social worker concluded that the Child has suffered from the breakdown of the parents' relationship and that she had suffered potential emotional harm due to not having contact with the Father. However, the social worker also noted that the Child had expressed distress about her Father's method of discipline and this had caused her to feel fear when she should feel safe and secure with him. The social worker also raised the concern about the Child being exposed to parental acrimony and having adult matters shared with her inappropriately.
28. Dr Briggs told the court in his evidence over a video link that he had conducted a single interview face-to-face with each of the Child's parents and then spoken to them again when asked to review his first assessment. He recorded the fact that each parent had made allegations and counter allegations and that, as no fact find had been conducted, it was difficult for him to be unequivocal about his conclusions.
29. His starting point was that the Mother found it easier to engage in answering the questions put by him whereas the Father seemed wary and, for example, did not want to answer questions about his heritage.
30. He was able to reach the conclusion that neither parent was suffering from any form of personality disorder.
31. In his first report, in respect of K, he said that:-
"K says it is important that he is not critical of the Mother in front of the Child. He was swift to explain that the Child's needs should be prioritised before his (and the mother's) own needs. He emphasised the importance of nurturing the child, protecting her, educating her, attending to her health and welfare, and encouraging her social development. He made clear that he does not see a role for physical chastisement, and not least as this could instil fear in the child."
32. As for the Mother, in his first report Dr Briggs reported that:-
"With regard to the living arrangements, J said that she did not want the Child to live with K, this because of him being unlikely to allow the Child appropriate medication, but also because of his racist and homophobic attitudes. She said she wanted the Child to see the Father but not spend a lot of time with him, for example perhaps to have contact once or twice weekly, but not overnight contact "until we see how it's going."
33. He concludes that:-
"J has particular concerns that the Child will have been upset by what she witnessed vis-à-vis the Father's attitude and behaviour towards her (J), as well as his behaviour towards the Child (i.e. exposing her to racist and homophobic comments, disciplining her harshly, controlling aspects of her play, and possibly compromising her health needs.) J said that she has told the Child that she and the Father will divorce. She said that she has also told the Child it had not been acceptable for the Father to push her (J)"
34. He recorded in his first report that :-
"these are parents who have struggled to utilise psychological and emotional flexibility to resolve their difficulties and I am left with the impression that the Child's core emotional needs have not always been prioritised."
35. He told the court that he had drafted a programme to support both parents to look at the Child's needs moving forward and had recommended to JFCAS that the proposed programme of work be undertaken with the parents to refocus their attention on the Child, rather than the breakdown of their relationship.
36. Dr Briggs said that the Father felt that it was an unnecessary intervention because the Father thought that he was being tested about the alleged abuse. The Mother seemed to welcome the intervention and his view was that her response to the intervention seemed proportionate and desirable and she showed a level of understanding of what good parenting requires.
37. Dr Briggs told the court that the Father's lack of engagement hampered progress whereas the Mother had shown some progress as part of the intervention. While Dr Briggs acknowledged that the Father could not be portrayed as somebody who did not understand how harm could be caused to the Child, his lack of positive response to the recommended programme of work highlighted a gap between what the Father said about child-rearing and the reality of how he behaved in response to Dr Briggs' recommendations.
38. Dr Briggs said that his opinion of the two parents had not materially altered as a result of the second report but that, of the two parents, the Mother seemed more spontaneous, open and warm in her style of parenting.
39. The Father, he said, presents as overly assertive and stubborn and Dr Briggs had a sense that there might be cultural issues at play which influenced the Father's decision not to engage in the work that he had prescribed. His failure to engage in the work was a missed opportunity as it would have enabled Dr Briggs to be reassured that he could meet all of the Child's emotional needs. He added that the Father's hurt and affront about the allegations made stood in the way of progress being made.
40. The Father cross-examined Dr Briggs about WhatsApp messages that the Father had presented to the court (and which he had shown to Dr Briggs when they met) and asked him whether he had had an opportunity to review those messages as those messages were evidence in the Father's view, that the Mother was deceptive. Dr Briggs told the court that he did not consider it appropriate to treat his second interview with the Mother as an opportunity to go over the various allegations raised by the Father about the mother, nor those raised by the Mother about the Father.
41. In cross-examination, Dr Briggs reiterated that his starting point was that the intervention he had proposed was not built on allegations of abuse or harm but work which both parents needed to do going forward to place the Child's needs and her lived experiences above their own complaints about the shortcomings of the other parent.
42. The court asked Dr Briggs whether he had any observations about how best to move forward with reintroducing the Child to her Father after a period of over a year with little contact (other under observation by professionals). Dr Briggs explained that both parents would need to emphasis to the Child the message that the Father had not stopped loving or caring for her and that the parents were both prepared to work together to put her needs first, celebrate her strengths and share positive information about each other.
43. The Mother told the court that the Child is a loving and caring and very sweet child who has been doing better in school recently. She has no concerns about her at home. When asked about whether she talks to the Child about not seeing her Father she told the court that she does not. She harbours no concerns except for her worry about the Child seeing her Father without supervision.
44. She told the court that if the court's decision took her daughter's feelings into consideration, any anxiety she had would be addressed. She acknowledged that the Child loves her Father and she said that she would encourage her daughter to go to contact with an open mind. She acknowledged that she must tell the Child that her Father is a good Father and speak of him to the Child in a way that depicts him as a good Father.
45. The Mother was adamant that the Child would get the message from her that her Father was not looking to take her away and that she should know her Father would always be in her life.
46. She told the court in her evidence in chief that she wanted the Child to have supervised contact with her Father initially and take it from there; she was not suggesting that contact should always be supervised but said that it should be for now and that supported or supervised contact was necessary for the Child's safety and the Mother's peace of mind.
47. She told the court that she had seen how their separation had affected the Child but that she was concerned that if the Father was granted a residence order in his favour the poor communication between them as parents would be an issue which would interfere with her relationship with the Child.
48. She gave the example of how, in response to encouragement offered by the court to the parents shortly after proceedings were issued, when the parties were asked to explore agreeing contact for themselves, she had offered the Father contact but that they could not agree on someone to supervise it. She told the court about the video contact that she had arranged but this had not gone to plan. She said that the Father had, during this video contact, described the Mother as selfish. She said that she understood that this was an emotional conversation but she harboured concerns that the Father would portray the Mother to the Child in a poor light.
49. The Mother raised the question of her immigration status because she said that this was evidence of the way in which the Father had exercised "the upper hand" during the course of their relationship. When she had asked him for documentation to support her application for indefinite leave to remain, she reported that he said that he would have nothing to do with her immigration; she felt that this was a threat which prevented her from being herself in their relationship and she moderated her behaviour accordingly. She did not mention the Father's allegation that she had entered into a relationship with him in order to be able to remain in Jersey.
50. She described herself as a very capable Mother who met her daughter's needs and who had been there for her physically and mentally. She has her own health issues inasmuch as she suffers from condition 1, which was diagnosed when she was pregnant with the Child. This was the disease from which her late Mother died.
51. She told the court that the Father had not paid a penny in child support since their relationship came to an end.
52. The Father posed questions of the Mother about the way in which she behaved as a child when she did not get her own way. The Mother refused to answer the question and the Father explained to court that he was asking this because she had told him that she was a stubborn child, who would sit in the road and refuse to move until she got what she wanted. He suggested that this determined behaviour continued into their relationship.
53. The Father asked the Mother questions about her relationship with her sister and her partner, M. The Mother accepted that she had once had a dispute with her sister but did not accept the Father's assertion that the Mother had fallen out with her sister following an allegation made by M about the Father. The Father concluded that the mother's failure to tell the truth about her own relationships, including her relationship with him, was evidence that she was "evil and manipulative".
54. The Father also questioned her about why she would "tarnish his name"? In response the Mother said that the allegations of abuse were made by the Child, not her.
55. The Mother gave evidence about the night in October 2022 when the parties separated. She told the court that they were having an argument and it woke the Child up. When the Child asked what was happening they both told her to go to bed. The Father asserted that the Mother was lying about what had happened that night which led to her leaving the family home with the Child. The Mother told the court that the Father had never struck her but that on that night, he had pushed her and that the Child saw him push her. The Mother also said that the Father had pulled the Child's leg as she was trying to leave the house with the Child. She told the court that they were both arguing. The Father denied that this was the case; he put it to her that he was not prepared to engage in any discussion about the immigration issue, that she was determined to pursue the discussion and that the "push" was accidental. The Mother accepted that it was not deliberate.
56. When cross examined about her assertion that she had kept in contact with the paternal family, the Mother told the court that she had not spoken to the paternal grandmother; she complained that her mother-in-law, with whom she had previously had a very good relationship, had sent unpleasant messages to her after she had left the former matrimonial home. The Mother told the court that she had, however, contacted the Father's two sisters and their children.
57. When asked by the Father to describe him and his relationship with their daughter, the Mother described the Father as manipulative. She said that she believed at the outset of their relationship that she could rely on him but that he used her weakness against her. She said that the Father hated her sister and M and insisted, after the allegation which M had made about him, that she should have nothing more to do with them. This, she said, became a flashpoint for arguments between them and she had to hide from him the fact that she had continued seeing her sister.
58. The Mother told the court that the Father was unhappy about her working as occupation 1 and told her she should not have nothing to do with the "slave master", by which the court understood that she was referring to white people. She asserted that the Child was not allowed to have white friends. The Mother alleged that the Father had tried to stop the Child from seeing her friend N, who was white and that he objected to the Child going to swimming and ballet lessons with N because N was white. The Father denied that this was the case.
59. The Father told the court that, early in the relationship, the Mother had failed to support him following the allegations made by M about him, later withdrawn. He felt that the Mother should have supported him instead of standing by M, particularly as the Mother had told him that she suspected that, not only had M abused his child but also, he had misused illicit substances. The Father had concerns about the Child being around M and as a result, the Father kept away from the mother's sister and asked the Mother to ensure that M was not a part of their daughter's life.
60. In 2021, he got home from work and found M in their house with 20 or 30 other people who been invited to celebrate the Child's birthday. He described a very uncomfortable situation and took the sister to one side and said he wanted to understand who had invited M. The sister had told him that she would take M whatever she wanted; the Mother had invited M to their home in spite of his strong feelings about him and he saw this as evidence of the Mother failing to keep the Child safe and to put their family first.
61. He told the court that he was disgusted when he discovered (during a telephone call with the mother's sister in Country 3in or around October 2022) that the Mother had planned her pregnancy and their relationship and was planning to divorce him as soon as her immigration status was settled. He described it as a "love transaction" and asserted that the Mother was doing the same as her sisters had done before her to get out of Country 3.
62. This discovery caused him to doubt how and why their relationship had come about and he was determined to put an end to the marriage. He told the court that after this discovery, he cried transporting the Child to school, as he knew that her parents could not stay together. He told the court that the Mother's position in relation to her sister and M was indicative of the lack of support and respect which she had for him. He said that he was at a loss to understand why the Mother did not appreciate that she should keep the Child away from M given the risk he allegedly posed.
63. He maintained that the allegations of abuse recorded by various professionals at the breakdown of their relationship were a fiction. He told the court that on the one and only occasion when they had disciplined the Child, it was a collective decision and that this had involved sending the Child to her bedroom. He denied that the Child was made to sit "in the corner" in the way that had been suggested. The Child had access to her toys and books and was invited to eat meals and sent back to her room afterwards.
64. His version of the events of the night in October 2022 when the Mother left marriage differed from that of the mother; he told the court that he was extremely upset by what mother's sister in Country 3 had told him about the "love transaction" and the fact that she was waiting for her immigration status to be resolved before she left him. He explained that when the Mother told him that she had undertaken the 'life in the UK' test and asked him for his passport and bank statement, he refused to provide these because of what her sister had told him.
65. He said that a few days later she had said that she wanted to talk and he had refused to engage in any discussion; he had concluded that their marriage was over. He told the court that he went into a room and closed the door, asking her to leave him alone. She had stood against the door and he had prised the door open. As a result of that action, the Mother had been pushed out of the way. He told the court that the Child was not in the room and could not have seen this.
66. He later heard a door opening and saw the Mother trying to leave with the Child, at which point he tried to prevent the Mother from taking her from the home in the middle of the night.
67. He was most disconcerted by JFCAS's failure to take into account WhatsApp messages that had been sent by the Mother to him. A message dated 11 October from the Mother to the Father describes the Father as her "rock of strength" and someone upon whom she relies because he reminds her of her late mother. The Mother begs the Father not to separate her from her child. The Father suggests in his evidence that this message demonstrates that he is not the abusive man that she has made him out to be.
68. In response to a claim made by the Mother to Children's Social Care that the Father does not behave in a child focused manner and has failed to offer her support when the Child needs medical attention, he produced an exchange of messages between them in January 2022 when the Child had a temperature and he was at home looking after her, taking her temperature and ensuring that she was safe.
69. The Father complained that these messages had not been considered or mentioned by JFCAS or Dr Briggs in their evidence.
70. The Father explained how, when he was working in financial services, he had agreed with his employer that he could work for two twelve-hour days and one eleven-hour day per week so that he had four days free to spend at home with the Child.
71. He said that during COVID, he was at home with the Child for 18 months and complained that he did not understand why the Mother had gone to work during the pandemic as occupation 1 as she did not have any professional background in this area. He considered this choice put his daughter and him at risk and, by choosing to undertake night work, the majority of the care of the Child fell on his shoulders.
72. He denies smacking his daughter and considers that the Mother has fabricated this evidence because of her fear that he would take the Child from her and the court would find in favour of the Father, particularly against the background in which the Mother, for a period, thought that she might be removed because of her immigration status.
73. In cross-examination, the Father explained that he was not prepared to support the Mother's immigration application because of what the Mother's sister in Country 3 had told him and because of the way in which the Mother had failed to support him against a dispute with M.
74. While the Father asserted that during the marriage they were a good team and that he had no intention of removing the Child from her mother's care, he added that he was concerned about the way in which the Child was spoken to by her mother: he said that the Mother shouted at the Child. He also was mystified by her decision to work nights and sleep during the day, when they were financially comfortable and not in any way short of money. In this regard he considers that the Mother failed the Child miserably and that it was poor parenting. He did not accept that the Mother did any significant amount of parenting and asserted that he was the one who looked after the Child, picked her up and dropped her off at school at least four days per week and prepared her meals and taught her to cook.
75. When he was cross examined about nightwork affording the Mother more time during the day to care for the Child, the Father said that when she was at home, all she did was eat and sleep.
76. When asked about, going forward, how the Father would deal with the Child's assertion that he had smacked her, the Father responded that this allegation had been asserted as a fact and that even if the Child believed this allegation, they had an unbreakable bond which would enable them to get over this period with no contact. He pointed out that he has a very good relationship with his 26-year-old daughter from a previous marriage and knows how to engage and behave with children. He denies that the Child believes that he smacked her and pointed out that the Child has repeatedly said that she wants to see him.
77. In cross-examination, when asked about how he would promote contact with the Mother, were the court to accede to his application, he told the court that he would not bring adult things up with the Child. He had always undertaken the role of the family negotiator and was well versed in managing children and their behaviour.
78. When asked about why he had not engaged in the work recommended by Dr Briggs and offered by JFCAS he told the court that he felt he was being asked to prove himself and that this was unfair; his view was that the case was not about the alleged abuse of the Child but the mother's failure to be accountable for the lies which she had told to meet her own ends.
79. The Father denied that his relationship with the Child was broken and acknowledged that she was traumatised by her parents' separation. He said that the Child will always get his support. He would not consider restricting the Child from having contact with her mother.
80. The Father put forward the names of two individuals whom he thought might be able to supervise the reintroduction of contact, one of whom, L, is very close to the Child. The Mother had rejected this suggestion on the basis that L would put the Father before the Child.
81. At the outset of her evidence, Ms Green commented on what K characterised as JFCAS's reluctance to take into account the evidence he had produced about the pattern of behaviour of the Mother and her sisters, moving to the British Isles, bearing a child, marrying and then divorcing. Ms Green also mentioned the Father's complaint about the Mother's failure to protect the Child from M. Ms Green did not consider that these were issues for JFCAS; questions surrounding the mother's immigration had been resolved by her applying for indefinite leave to remain and while the Mother gave Ms Green authority to speak to her sister in Country 3, Ms Green said that when she raised having such a conversation with the Father, he told her not to explore it further. She accepted that she would have investigated the Father's concerns about M if these had been spelled out to her.
82. Ms Green explained that the work that she was undertaking needed to focus on separating issues between the parents from work around the Child's needs. She explained that the Father had not shown her the text messages which he subsequently showed the court during the hearing and she did not feel that they were relevant to her work. She accepted that he might have shown them to the JFCAS officer originally appointed at the outset of the proceedings. She alluded to the fact that the Father had told her and the court on several occasions that he had important evidence which he would show her but that she had not, in fact, been shown this evidence by the Father.
83. The court asked Ms Green about the conclusion she reached in her report about only being able to recommend supervised or supported contact because no meaningful work had been undertaken by the Father; Ms Green said that it was difficult to say when long-term supported contact might move to unsupervised contact because of her unaddressed concerns about the Child's safety. She would want to assess any persons proposed to undertake supervised contact and agreed that, at least at the outset, a third-party organisation such as Centrepoint or James' Ark would not be suitable.
84. She told the court that she felt that the Child was confident with her and trusts her and that she would be the person best placed to facilitate the reintroduction of the Child to her Father once a fortnight or once a month. She explained that it was easier for a child to add contact than to take it away and that she does not want to commit the parents or the Child to a final order containing indefinite supervised contact given that this would leave the family within an onerous task to undertake.
85. She described the Father's failure to engage with the work recommended by Dr Briggs as a wasted opportunity for him. It had not been her intention to base the work around any acknowledgement by him of what he may or may not have done to the Child but she did not feel confident that he was able to shift his feelings and be flexible, as the Child needed him to be. Ms Green explained that after her parents' separation, the Child needs a sensitive and empathetic approach and she had seen no evidence of this from the Father. She accepted that the Child enjoys her time with her Father and that, in a supported setting, there are no concerns about the Child's safety or her happiness in her Father's care.
86. The Child is a very positive and well-behaved little girl who is sensitive and has tried to understand the adults around her. Ms Green described the Child as a little girl who trusts the adults around her to make the right decision for her and that the Child did not demonstrate any element of polarisation in her views. The Child's anxiety about being smacked by the Father has not led her to say that she does not want to have contact with him; she was clear that she missed him and did want to see him - as long as someone else was there. She did not want to be smacked.
87. Ms Green observed that she was not convinced that either parent showed during their evidence how they might be able to parent the Child appropriately going forward given the issues between them. This led her to conclude that the parents are not capable of dealing with each other and that direct communication would not lead to anything healthy for either of them. Accordingly, handovers for contact should not be by the parents.
88. Ms Green records that the Father has the intellectual ability to make the shift from the fixed position which he currently demonstrates and there are no substance misuse issues or mental health issues which prevent him from being the Father which the Child needs him to be. She has, however, seen some evidence of rigidity in his thinking.
89. I asked her whether the Father's sense of pique about the various allegations made by the Mother would be an obstacle to contact moving from supervised into a unsupervised setting. She was unsure. She described the Father's refusal to engage in the work in any meaningful way as "cutting off his nose to spite his face".
90. Under cross-examination by the advocate for the mother, Ms Green explained that the supported contact offered through Millis was not taken up by the Father. She accepted that this was during the period when Millis announced they were closing, then reopening and then closing again. She added that the author of the Article 29 report recorded that the Father did not engage with them which I took as support for her evidence that the Father had firm views about what the Child needed.
91. She told the court that the Father found working with her difficult and so she had offered a different JFCAS officer to undertake the prescribed programme of work. Ms Green said that the Father did not engage in the right way with these appointments which took place during his lunch hour. He attended them, set a timer so that he could get back to work on time but refused to discuss anything in depth, focusing his attention on his grievance about the allegation of abuse. Ms Green explained that it seemed like the Father was conducting a box ticking exercise which caused her to terminate the programme early. She accepted in cross examination that the setting of a timer by him could equally be evidence of a responsible worker not wanting to be late getting back to work.
92. Ms Green explained that both parents had to undertake the same work and that there was no cherry picking; the work was focused on what the Child needed, nurture, boundaries and legacies of the outcome of the breakdown of the relationship. The programme was not about the allegations of abuse or the parents' relationship but about how they should help the Child and themselves to move on.
93. Ms Green explained that the Mother had reflected on the reality of her life and her lived experiences and sometimes found the work difficult but that she had been prepared to undertake the work for the Child's benefit and that this had reassured Ms Green that the Mother could safely parent the Child.
94. When asked about anything that might cause concern about the Mother's parenting, the Child had told Ms Green that she does not like her mother's 'cross voice' but Ms Green went on to explain that the discipline she had seen in the Child's home is very ordinary and that there is nothing surprising about a parent shouting at a child.
95. When asked about whether the Child's evidence had been exaggerated or whether the Child had been coached, Ms Green explained that there is a sliding scale of degrees along which child can be manipulated. At one end, children are usually very aware of (and might repeat) what their parents think; much further down the scale there is evidence of deliberate manipulation. In assessing whether and how a child been made aware of their parents' feelings, social workers are trained to consider the language that a child is using, exploring, for example, whether it has any rehearsed quality. They consider whether a child's story remains the same or becomes embellished, and are alert to any spurious reasons a child may for refusing contact. They also consider whether a child demonstrates a very polarised or positive view of one parent and the wholesale rejection of the other. She had not seen evidence of any of the aggravating features in the Child's story.
96. Ms Green explained the Child seemed keen to tell her what she thought and felt and that she was capable of separating her feelings from those of her mother. Ms Green concluded there was nothing in the Child's presentation which suggested that the core allegations were coming from her mother. Ms Green said that she believed that the Child believes her story about being smacked by her Father.
97. When asked about her concerns about making a residence order in favour of the Father, Ms Green explained that she had not been able to see enough of the Father with the Child to know whether he was capable of meeting her physical and emotional needs. She described very high conflict between the parents and added that the Father's failure to permit her to undertake a home visit to him hindered her ability to assess the Child's needs and safety in his care. Ms Green also expressed concern about the adverse impact of change on the Child if she was removed from living with her Mother to reside with her Father and concluded that it would not be in her overall best interests for such a move to take place.
98. When cross examined by the Father about the messages that he had asked JFCAS to take into account, Ms Green said they demonstrated only that, at some point, the parties were capable of having discussions. She added that it was a matter for the court to determine whether these messages were probative of the Mother being evil and manipulative as the Father had suggested.
99. The Father asserted that Ms Green should reconsider the conclusion of her assessment after reading the messages she had now seen. Ms Green replied that the content of the messages might be presented by the Father as support for his evidence that the court should not believe the Mother's evidence but that her work was focused on the Child, her wishes and feelings and her anxieties and not on specific allegations made by the Mother which were not for her to determine.
100. When asked by the Father about the evidence that she had that enabled her to come to the conclusion that he was a risk to the Child, Ms Green replied that it was the very fact that she did not know the levels of risk which the Father posed that led her to the conclusion that she could not safely recommend unsupervised contact. The evidence before her consisted of the allegations that the Child had made directly to her and to other persons. The Father's failure to engage in the work recommended had hampered her analysis as it had that of Dr Briggs.
101. The Father concluded that Ms Green's work had focused on unproven allegations of abuse and that JFCAS were proceeding on assumptions and not facts and evidence. Ms Green accepted that positive observations had been made about the Child's contact with the Father (to the extent that this had been observed) but that such positive contact does not, necessarily, correlate to an absence of abuse. She explained that she has done a great deal of supervision of contact in cases where there is proven child abuse and harm and that while some children display fear and reticence, some do not. There were not, in her opinion, any universal indicators from contact sessions from which you can extrapolate the veracity or otherwise of the allegations of abuse.
102. Ms Green accepted that, had the Father engaged more in the process, she would have been much more able to reach a safe conclusion as to the outcome of this case.
103. She also explained, when cross examined by the Father, that if the Father had raised in clear terms his concern about M, she would have been able to investigate this as a potential welfare issue. She accepted she had not taken into account the fact that the Child had told the author of the Article 29 report that the Mother did not want the Child to see her Father against the conclusion that the Child had not been manipulated by the Mother.
104. She explained that she had undertaken ABE training which included learning how not to lead a child in its evidence. She noted that it is very easy at the Child's age to push a child's evidence in a particular direction.
105. There is an inherent contradiction in the case as presented to the court; JFCAS conclude that no recommendation can safely be made for the Child to enjoy unsupervised contact with her Father and the Mother relies on this position, informing the court that she does not intend to plead or rely on any allegations of abuse formerly made by her. It seems to me that the Mother's case, as presented is, prima facie, untenable, not least because the thrust of her application from the very outset is peppered with allegations about the Father's behaviour which cement her position that it is unsafe for the Child to have unsupported contact with the Father. Accepting the assertion that she will not rely on abuse, when those allegations underpin the evidence of the parties and the experts, makes it impossible for the court to decide the case in a way which is fair or which informs an assessment of the outcome which best serves the Child's welfare.
106. Moreover, as the Father is a litigant in person, it is all the more important that he understands the case which he has to answer; throughout the proceedings, that case has been predicated on allegations of domestic abuse, the focus of which, over the course of the last six months, has been the disclosure made by the Child that she had been smacked by her Father and hit with a stick. The Father prepared his case on the basis that the court was concerned with the allegations of abuse and to ignore his evidence would be unjust; the court must, so far as is possible, apply the overriding objective as set out in Rule 4 of the Children Rules 2005:-
107. On the one hand, the court is anxious to avoid engaging the parties in a fact find dispute if the exercise involves raking over the simmering coals of the former relationship, particularly if the findings will not assist the court with "its purpose... which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children" (K v K). On the other hand, I need to weigh up the benefit or damage of that process, however unpalatable, against the consideration as to "whether it is 'necessary' to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved" (K v K). I am also reluctant to focus more than I need to on the cross allegations when the essence of the advice from Dr Briggs, Children's Social Care and JFCAS is that the parties need to move on.
108. In assessing whether a fact find is necessary (in the absence of the Jersey equivalent of Practice Direction 12J to which reference is made in the authorities cited above) the court must have regard to Rule 4, certainly insofar as it must deal with allegations justly and with an eye to proportionality not only as to financial costs but also as to the emotional costs of the proceedings on the family. PD FD19-01 provides, with regard to public law proceedings, that "it will not be appropriate for a separate fact find hearing to take place where this will cause delay for the child(ren) unless such a hearing is necessary and in the best interests of the child(ren)".
109. I have reached the conclusion that I need to decide, regardless of how the case was opened to me:-
(i) whether the Father disciplined the Child by smacking her and/or hitting her with a stick; if not, whether the Mother persuaded the Child that she had been so chastised;
(ii) whether the Father's behaviour more generally constitutes harsh parenting which might present a risk to the Child's well-being.
110. I take into account that many (but not all) of the authorities, including PD FD 19-01, relate to whether a fact find needs to take place as a separate hearing and when this issue needs to be resolved, I need to consider the question of inevitable delay for the child, inherently prejudicial to the child's welfare and the prolongation of a difficult dispute for the parents, against the need for the court to find facts to inform and make a welfare based decision.
111. I am satisfied that notwithstanding the way in which the case was opened to me, I cannot, applying the welfare test, ignore the assertion that the Child has been smacked and, furthermore, that there is a background of allegations of abuse from which the Mother now appears to resile or upon which she does not seek to rely. This leaves the court in a difficult position as certain facts warrant determination so far as I am able to do so, not least because the JFCAS officer was unable to offer an unequivocal recommendation. A less pressing issue is that the Father has the weight of the unaddressed allegations hanging over him.
112. A procedural difficulty might be thought to arise if the court determines that facts need to be found to decide the cross applications; the burden of proof, on the balance of probabilities, lies with the party who seeks to persuade the court of a fact. I am satisfied that these issues have been put before the court and relied on by the Mother, notwithstanding her assertion that she is not seeking a fact find. The evidence I heard from her about the matters set out at 109 above was chiefly in cross examination but I have also carefully read what she told Dr Briggs and the social worker. By making assertions of abuse variously to social workers and experts (and then not pleading them in her case), she has left the Father in the invidious position of feeling as though he has to defend himself and this much was clear from his presentation of his case. In this respect, it is not only fair but also necessary that I make findings notwithstanding that I have not been asked to do so but I stress that I make these only insofar as I need to do so to assess the Child's welfare needs.
113. There are cross allegations made by the Father about the Mother's bona fides in relation to the marriage and to how she has treated him. He was insistent that she was a liar and a manipulator. While I recognise that these issues are of great concern to the Father and that he is patently indignant about the manner in which he considers that he has been used by the Mother as a passport to life in Jersey, I do not consider that any finding in that regard would assist the court with the determination of residence. Each party has presented their own version of what happened to the court but I have considered the testimony only which goes to the issues outlined in paragraph 109 above.
114. I take into account the various accounts of smacking given to the social workers and JFCAS, the (relative) consistency of the Child's allegation about smacking and the fact that this allegation is in line with the contemporaneous evidence given by the Mother to the social worker who conducted the initial assessment following the Mother's sudden departure from the family home.
115. In weighing up the evidence against a clear denial from the Father, I take into account that the Child told the social worker that her Father smacks her sometimes, that she cannot remember how often and that it "hurt a bit". The Child confirmed that she had not been marked or bruised.
116. I note that while Ms Green told the court that consistency (and use of age appropriate language) can be a key feature to identify veracity of a child's allegation, she also told the court that it is easy to lead a child into telling a story and there was some evidence in the written reports that the Mother had assisted the Child with the telling of her truth, as she perceived it to be. I consider it unfortunate that the Mother shared her feelings with the Child; the Child knew that her Mother did not want her to see her Father, in spite of what the Mother says, and the Mother admits to discussing the incident when she alleged (at one point) that she was pushed, with her young daughter.
117. Notwithstanding these concerns, I have, I believe, heard the child's voice and her wishes and feelings and those are that she wants to see her Father but does not want to be smacked by him. I am not persuaded that the Child is frightened of her Father, but she appears to be worried about making him cross; equally, she worried about her Mother using her cross voice. I am satisfied that both parents were correct when they told the court that this young child is generally an obedient and well behaved girl who respects her parents and wants to avoid upsetting them.
118. The Father evidently loves and cares deeply for his daughter and from what Dr Briggs wrote in his first report, understands the impact of harsh discipline; on the other hand, the Father is, as portrayed by Dr Briggs, disciplined to the point of inflexibility and determined to ensure that the Child is well behaved. He clearly believes that such behaviour is the recipe for a good future. I took not only from his evidence but also from his presentation and behaviour in court that he can be stubborn and unyielding and has certain standards which he has set for himself and his family from which he is not prepared to deviate. He is intelligent but also proud, and from the response to any contradiction to his evidence, appears to be at risk of finding dissent a challenge as he found the allegations made against him an affront to his dignity. I am satisfied that he is a man who exercises self-control rigorously and that when the Child was disciplined it would be in a controlled manner. I make this observation based on the careful, polite and assertive way in which he behaved throughout the various hearings before me, no mean feat for a litigant in person faced with allegations of the nature raised by the Mother.
119. Regardless of how difficult it is to grapple with the allegation made by a five/six year old, particularly without the benefit of an ABE interview, and notwithstanding the Father's assertion that JFCAS' conclusion was based on an assumption rather than evidence or a fact, there is sufficient evidence to find that it is more likely than not that the Father used his hand to smack the Child on two occasions. I find that marking would likely have resulted if a stick had been used by the Father. I question whether the stick is an embellishment naturally added by the Child as adults expressed interest in her story and the story was told and told again. She was not questioned using an ABE framework. Furthermore, I suspect that the Mother would have raised the addition of a stick to the allegation of a smack when she first mentioned this to the social worker when she left the family home.
120. I am not persuaded by the Mother's assertion that disciplinary measures, including sending the Child to her room, were instigated purely at the behest of the Father; I heard evidence from the Father which I accepted, that when the Child was sent to her room, this was an action agreed by her parents and this behaviour is in line with the impression I have generally formed of the Father. This view is strengthened by the fact that the Child told the social worker that when she was naughty, her Mother told her Father to put her in the naughty corner. The Child also told the social worker that her Mother was there when she was smacked by her Father. I accept that these were, at one time, parents who generally worked together to put agreed boundaries in place in their child's best interests. I am satisfied that the Mother was at all times aware of this discipline and chose to raise this as a concern only when the relationship came to an end.
121. I suspect that the Father did not tell the truth about smacking the Child because he understands that this is incriminating. His lie about this behaviour does not cause me to necessarily cast into doubt the veracity of rest of his evidence, which was consistent with evidence and accounts given to professionals.
122. I make no finding, as none are necessary, about whether the Mother has manipulated the Father or lied to him.
123. The Mother has alleged that the Father displays behaviour which, she asserts, is damaging to the Child including restricting her access to certain television programmes, friends and making racist comments. She alleges that he imposes a vegan diet on her and prevents the Mother from having the Child vaccinated or medicated.
124. I am not in a position to assess whether these allegations are true, (any more than I am able, for example, to ascertain whether the Mother has put the Child at risk by allowing her to be in M's company or whether the Father was right to want to put protective measures in place to ensure that the Child was not exposed to danger from him) but I have been shown by, and heard, evidence from the Father which suggests that he cares deeply for the Child and looks out for her emotional, educational and physical needs - as does the Mother. It is the parents' wholesale lack respect for each other that has led to this dispute, not a lack of care for their child.
125. The exchange of messages between the parents about checking the Child's temperature is as much evidence of the Father caring appropriately for his child as it shows the Mother's concern; if a discrete dispute were to arise as to whether the Child required a particular vaccination about which the parents could not agree, a specific issue application would need to be made to the court.
126. As to the other complaints made by the Mother, the court's responsibility is not to hold up a mirror to parents to show them the error of their chosen beliefs or their way of life; it is imperative that no court seeks to impose on a party or parent a particular moral compass. The assertions may be true but the court acknowledges that every child may be exposed to different influences and beliefs, however extreme. Citing Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 in In the matter of B (A Child) [2013] UKSC 33, albeit in the context of assessing significant harm, Wilson LJ reminded himself that:-
127. It is, sadly, all too common for parties appearing before this court to rely on the perceived faults or inadequacies of their former partner/ other parent in an attempt to bolster their claim or application, but the family court's judgment must be restricted to the matters which we are required to take into account by the Law and a parent's particular characteristics are not relevant save to the extent that they might demonstrate "how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs".
128. Children's Social Care did not consider it necessary to instigate proceedings either as a result of the referral from the Refuge or in response to the Article 29 request made by the court. No significant risk to the Child's safety was identified at the outset or following the more detailed assessment conducted more recently although Children's Social Care, like the court and Dr Briggs, are concerned by the risk of emotional harm to the Child if her parents cannot move on from the breakdown to the marriage. It seems to me that there should be no higher threshold or expectations placed on a parent in a private law dispute than in those in the public law arena. I am not satisfied from the evidence the Mother put before the court that her concerns about the Father's beliefs are evidence that the Father cannot meet the Child's emotional and educational needs appropriately.
129. Finally, and for the sake of completeness, as the tenor of the evidence suggested abuse by the Father of the Mother, albeit that her case was not presented in this way, I was not satisfied that the Mother's evidence, such as it was, was entirely truthful about the events of October 2022 when the Father decided that the marriage was over and refused to provide to the Mother with the documents which she thought that she needed to apply for indefinite leave to remain.
130. I preferred the Father's evidence about what happened on the night that the Mother left with the Child and in particular his explanation that he tried to avoid engaging with the Mother. By this time, I am satisfied that he had resolved to end the marriage and did not want to engage with the Mother who said that she was arguing with him. I do not doubt that the Father would have presented as implacable.
131. The Mother denies any physical assault by the Father and I accepted his evidence that by pushing the door, he pushed the mother; this incident may have been seen by the Child but it appears to have been discussed by the Mother with her, however unwise that was. I am concerned that the way in which the Child will have remembered the events of that night and fear that her recollection may have been influenced by her mother's discussion about it with her. I am not satisfied that the Father deliberately assaulted the Mother and I took from her evidence that she accepted that this was the case. It is a real shame that the Child's most recent recollection of her Father is the night when her world must have been turned upside down and I am sure that the Mother and the Child were adversely impacted by the Mother's decision to leave.
132. I suspect that the Father's refusal to engage with her and to provide her with the requested documents may have been a frustration for the Mother who went to the Women's Refuge seeking emergency accommodation for her and the Child, pleading that she had been a victim of physical abuse, an allegation from which she later resiled. There is no evidence that the Father has physically abused the Mother but he may, indeed, have sought to exert control over her as he does himself.
133. I do not think that the Mother retracted the allegation of physical abuse through fear. I saw no evidence that the Father's course of behaviour extends to emotional abuse leading me to fear for the Child's welfare. The Mother showed from her presentation in court, the content of and tenor of her evidence that she has a relatively forceful personality and I suspect these two parents each became entrenched in their opposing positions once the marriage was over, relying on allegations rather than finding a solution for the Child.
134. Notwithstanding the matters about which the court felt that it was imperative to make a finding, I remind myself that it is the Child's welfare which is my paramount consideration and that any delay in reaching a determination is likely to prejudice that welfare. For that reason, although the court considered adjourning the matter in order that the Mother could have an opportunity to plead her case on the alleged abuse, I remind myself that she had an opportunity to bring the case in the way that she chose and that any delay in determining the applications before me would not benefit the Child.
135. The Child is a six-year-old girl who, until last year, shared her everyday life with both of her parents. It is clear from the evidence before the court (including the Article 29 report and the child and family assessment) that the Child has repeatedly said that she loves both her father and her mother.
136. There is evidence that she is hesitant about seeing her Father without a third party being present but this is understandable given the potentially traumatic dispute between her parents which the Mother says that the Child witnessed or which the Mother discussed with her in October 2022.
137. There is no cogent evidence of this child being fearful of her Father although she has certainly indicated that she does not want to be smacked and that she worries about upsetting the Father (and, indeed, the mother). While I suspect that the Mother has discussed the circumstances in which the parents' relationship came to an end in October 2022 with the child, the Mother has, unlike the Father, engaged in the work prescribed by Dr Briggs intended to assist the parents in promoting the Child's welfare against the background of the acrimonious breakdown of the marriage.
138. The Child clearly loves her Mother and feels safe with her and given her age and the trust which she places in her parents to make the right decisions for her, it is a matter of regret to this court that the Father chose not to engage in the work which was intended to help the parents meet the Child's needs instead of doggedly pursuing his case that he had been maligned and manipulated by the Mother.
139. I am satisfied that both parents can meet the Child's day to day physical, emotional and educational needs; she was, unfortunately, removed from school by the Mother when the marriage came to an end and her school attendance record is not as good as it should be, but I am reassured by the evidence that she is happy at school and that she is usually encouraged and supported by both of her parents and the school to perform to the best of her abilities.
140. I believe that both parents are capable of meeting the Child's medical and health needs.
141. As to the Child's emotional needs, it is clear from the evidence and their presentation in court that she has two strong minded parents who are likely to be able to advocate for her and encourage her to achieve her best and to express her feelings openly. There is evidence that both of the parents choose to spend their time with the Child and that she is a confident child who feels safe expressing her emotions (with the caveat about chastisement which causes her a level of anxiety).
142. She is a child of dual heritage, growing up in a third country and it is important that her day-to-day experiences enable her to benefit from the heritage of both of her parents. She has regular exposure to the Mother's sisters who live relatively close by and should be encouraged by the Mother to re-establish a relationship with her paternal grandmother, regardless of the strong feelings that might have resulted from the way in which the marriage came to an end. The Mother should put the Child's needs above her own and ensure that this relationship is repaired so that the Child can benefit from the special bond that a good relationship with a grandparent offers.
143. I have already indicated that I consider both of the Child's parents to be capable of meeting her needs but that I am concerned that the Child is at risk of suffering harm; I find that she is at risk of emotional harm if she is subjected to inappropriate adult comment about the breakdown of the parents' relationship and the strong feelings which each of her parents has about the other. I have already indicated that I am concerned that the Child should not be smacked or put in fear of being smacked, not least because this is against the law of this island and moreover because of the evidence that harsh physical punishment can have a long-lasting adverse impact on a child's emotional development.
144. The evidence is that the Child is happy living with her Mother albeit that she would like to see her Father. Neither parent, before this court, was able to hide their exasperation or irritation with the other parent. The Father exhibited a steely determination to have matters addressed by the court which he thought were the focus of the cross applications. Notwithstanding the way in which the case was opened on behalf of the Mother, she came across during the proceedings as irritated, petulant and, at times, bored by the proceedings. She did not present as fearful or reticent about giving evidence. I agree with Ms Green that neither party gave the best of themselves during their evidence and notwithstanding the programme of work which the Mother had undertaken, her demeanour was at odds with her words.
145. In circumstances where parents are before the court seeking to present themselves as the appropriate parent to have day to day care for their young child, neither seemed able in fact to get over the disappointments of a failed marriage and the strength of feeling they have about the other's perceived faults and failings. This is a matter of concern to this court as I am satisfied that the Child needs to have both of her parents in her life; there is a risk that by making a residence order in favour of either, the parents will continue to allow their feelings to surface, potentially interfering with the Child's relationship with the other, whether by restricting contact and/or talking about the other parent in the derogatory way that is neither child focussed nor age-appropriate. This was the main thrust of the Mother's argument about why the court should not make a residence order in favour of the Father but the argument applies equally to both parents.
146. I therefore questioned whether it would be better for the Child for me to make any residence order or to make no order at all. I am satisfied that I need to make a contact order to ensure that steps are taken for the Child to be reintroduced to her Father in a safe manner and at a pace that enables the Child to rediscover the other parent who loves her. I am not satisfied that it would be appropriate for me to make a residence order in favour of the Father; to move the Child from her Mother to her Father would not meet the Child's needs at this stage and at this age. She would, I find, be unnecessarily upset and harmed by another change in her home circumstances.
147. I request that JFCAS facilitate the reintroduction of the Child to her Father over the course of the next two months, and in line with Ms Green's suggestion, order that contact should take place once every two weeks in a setting supported initially by JFCAS then, after four sessions by a third party provider (e.g. Centrepoint or James' Ark) given that, regrettably, the parties cannot agree on the identity of a friend or family member.
148. Given the uncertainties about the Child's response to her Father and, more importantly, the Father's failure to engage in the work prescribed by Dr Briggs, it is difficult for the court to ascertain at what point it would be reasonably safe for contact to move from supported into an unsupervised, more natural contact setting. I do not consider that the potential risk of harm posed to the Child is such that contact needs to be supported indefinitely. It seems to me that the risk of emotional harm to the Child of not seeing her Father and being afforded an opportunity to share a natural and relationship with him is greater than the risk of physical harm to the Child of being smacked, given the limited finding I have made in this regard.
149. The Child has been living with the Mother for over a year since the marriage came to an end and has barely seen her Father. I am satisfied that the continued absence of the Child from her Father's day-to-day life is detrimental to her at the moment but I am not satisfied that a move of this six year old from the Mother's care to the Father's care would meet her needs at the moment.
150. The court emphasised to the Father during the course of the proceedings that it was important that he should engage with the programme of work recommended by Dr Briggs as conducted by JFCAS and that it is his failure to demonstrate that he was able to promote the Child's needs above his own strong feelings about the allegations made which prevents the court from giving serious consideration to his application for residence order, not least because neither the social worker nor JFCAS have been able to visit him at home or spend much time with him and the Child to properly assess his application.
151. His inflexibility, portrayed by him as a strong sense of right and wrong, has not served him well in proceedings relating to his young daughter; while the court has found that he has smacked his daughter twice, this illegal chastisement would not, of itself, have prevented the court from giving consideration to a properly constituted application for residence (any more than it would have been likely to lead to the removal of the child from a parent in public law proceedings).
152. On balance, I am persuaded that the Child's welfare demands that I make a residence order and I make this in favour of her Mother so that any uncertainty for the Child is put behind her and so that the Child understands that she lives with her mum but she sees her Father regularly. I have written to the Child to explain the court's decision and ask JFCAS to take her through this letter as part of the process of reintroducing the Child to her Father.
153. This residence order is not, and should not be construed as, the court's implicit preference of one parent over the other or an indication that the court approves one parent's life choices rather than those of the other parent. It is an assessment of how the Child's needs can be demonstrably best served.
154. If without good and cogent reason, it becomes clear that unjustified impediments or obstacles are being placed in the way of the Child's contact with her Father, this will be to her detriment.
155. I am concerned that if I make a final order in this matter, the framework which will enable JFCAS to report on the Child's contact with her Father and her welfare will fall away; I am therefore making a residence order in favour of the Mother and a contact order in favour of the Father which I will review in four months. This will, I trust, give the Father an opportunity to demonstrate that he is able to put his love for his daughter about the residual hard feelings about her Mother and to engage in the reintroduction of contact in a child focused and structured way. It will equally offer the Mother a chance to demonstrate that she will encourage and facilitate contact in the Child's best interests, as she has claimed that she will do.
156. If the parties are able to agree the Child's contact with her Father after a period of re-introduction, no further scrutiny or interference by the court will be required.
157. The Mother's advocate asked the court to discharge the undertakings given by the parties not to remove the Child from the jurisdiction without the other parent's written permission.
158. As the court explained in Birch v Birch [2017] UKSC 53:-
159. The imposition by the court of a residence order has the effect set out in Article 14(2) of the Law, meaning that the Mother will be able to remove the Child from the jurisdiction for up to one month.
160. As the court has made a residence order in favour of the Mother, I am prepared to treat the undertakings previously offered to the court by both parties as discharged but on the understanding that the court still expects parents to cooperate with each other, to inform the other -in advance- if the child will be off island as this may well impact contact and thereafter to give the other parent, details of the child's location when he or she is removed from Jersey.
161. Finally, I attach as an appendix to this judgment the court's letter for the Child, which Ms Green has agreed to read to her.
"Dear [redacted],
Eleanor has told you that I am a judge and that I decide things for children (if and only if) their mum and dad cannot not agree what is best for them.
Your mum and dad have asked me to decide whether you should live with your mum or whether you should live with your dad.
You have not seen your dad for a long time. Eleanor told me that you were looking forward to seeing your dad but that you did not want him to smack you and that you would feel a bit safer seeing your dad after such a long time if Eleanor or someone else who you know was there with you.
I have decided that you will live with your mum but that you will see your dad very soon and that Eleanor will be there for the first few times to make sure that you are happy and safe. After a while, you will be able to spend time alone with your dad and to see him more often. He has told me how much you have enjoyed cooking with him and I hope that you will get a chance to do this again soon.
I know that you want your mum and dad to be happy because Eleanor told me that you love them both very much; they have both told me how much they love you. They have also told me that you are a very good girl. I have told them that if you are naughty every now and again, you should not get a smack. You might get a telling off as it is your parents' job to help you learn what is right and wrong and to help you learn, like we all have to, how to become a kind, helpful and happy grown up.
I wish you a future full of love and happiness.
Judge Sam"
