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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> F v B [2002] JRC 121 (27 June 2002) URL: https://www.bailii.org/je/cases/UR/2002/2002_121.html Cite as: [2002] JRC 121 |
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2002/121
ROYAL COURT
27th June 2002
Before: |
|
Application by the Plaintiff for
supervised
access to his
child,
D.
Advocate S.E. Fitz,
for
the Plaintiff.
Advocate J. Bell, for
Defendant.
judgment
the COMMISSIONER:
1.
This is an
application by F
for
supervised access to his
daughter
D
who
was
born in
1996. She is the natural
daughter
of B and
F,
who
were
married in Jersey in
2000. Their relationship broke
down,
and in January, 2001,
F
left the matrimonial home.
F
was
previously married
for
12 years in
M. He has two sons both living in Jersey and now aged 21 and 19. He has another
daughter,
J, born
from
a
relationship
with
another lady in Madeira,
who
has two other
children
born of another
father.
2.
B was
also
formerly
married and has a son
from
that marriage. She had been married twice before she
met
F.
F's
former
girlfriend
is B's second husband's sister. B and
F
met in M
when
F
was
working
as a
builder, plumber and electrician.
F
helped B and her then husband to buy land and build their house in Madeira.
When
B's second husband became violent towards B she and
F
left M and settled
in Jersey. They returned to Madeira.
in 1995 but
finally
returned to Jersey in
1997.
3.
During
the
course
of this hearing
we
heard
from
Miss Lister, the
Court
Welfare
Officer,
from
F
and
from
B.
We
also have a
Psychological Report
from
Mr Ian Berry,
who
is on holiday at this time. Advocate Bell
discussed
the matter
with
me and
conceded
that he
would
not need to question Mr Berry and that
we
could
use his report
for
the purposes of the
decision
that
we
have to make.
4.
The two
detailed
reports of Miss Lister are
dated
19th
February,
2002, and the 10th June, 2002. Much of the matter in those reports
concerns
J, over
whom
there has been much
dispute
between the parties. But as
F
does
not now seek access of any
kind to J,
we
can
concentrate
on the sole question of access to
D,
who
is now 6
years old.
5.
There is
no question that the relationship between F
and B has
completely
broken
down.
The relationship is not
helped by the
fact
that
F
works
as a masseur and sometime
faith
healer on the
floor
immediately above the premises in Bath Street
where
B
conducts
her own
business. The
close
proximity of
the businesses is a
continuing
source of
friction
between the parties.
6.
It must be
stated that, although access continued
after the breakdown of the relationship
in May, 2001, there
was
an incident that led to an altercation
where
the police
were
called
and
where
they took action,
which
consisted
of
words
of
advice. It appears
from
the report
that
F
asked J
for
a
cuddle;
she refused.
He told her that he
would
return her to Madeira. She became upset because she had been
mistreated there. Even if the
remark
was
meant to be a joke, it
was
a
crass
joke, and
was
not apparently
taken as a joke. The altercation
arose
from
this incident. Neither
party sustained injury and no
complaints
were
made to the police, but
thereafter J refused to have any access to her
father
and B refused to allow
D
to have any
contact
with
him.
7.
Later a
Court
Order
was
made on the 16th March, preventing
F
from
taking
D
out
of the jurisdiction. No
formal
access between
D
and
F
had taken place
during
this time. Because of the proximity of the two
businesses in Bath Street,
the
children
see their
father
when
they go to B's premises after school
each
day
in term time.
8.
Advocate Bell, on behalf of his
client,
has voiced the objection of B to
F's
having any
form
of access to
D.
The objections take the
form
of
fear
of physical violence, and the
fact
that
F
may try to manipulate
D
and the
psychological effect on
D
and on the
family
if access
were
granted. The most
disturbing
allegation is of
F's
physical abuse of J and
D.
We
only had B and
F
to give evidence in this regard and no
corroborative
witnesses.
F
admitted smacking both
the
children
on their legs and their bottoms, but emphatically
denied
that he
had
chased
J around the room on one occasion, beating her
with
the leather
strap of his belt and trying to strangle her
with
the belt.
9.
In
questioning by Advocate Fitz,
B said that she
did
nothing about this incident,
neither
complaining
to the police nor taking J to the
doctor
because she lived
in
fear
of
F.
There
were
other
complaints
that
F
often hit J
with
a belt until she
was
black, but again
we
had
no
corroborative
evidence. It is
alleged that
D
witnessed
these incidents.
More
disturbing
is an allegation of a specific incident
when
F
hit
D
across the
face,
during
a
family
dinner
party between
Christmas
and the New
Year, 2000, This
was
witnessed,
B
told us, by her parents
who
live in Jersey.
When
asked
when
her parents
were
available to give evidence
we
were
told that they are on holiday in Alderney.
10. The allegations of brutality may be true, but
they have not been proved to our satisfaction. On reading the very careful
and
detailed
reports of Miss Lister and Mr Berry
we
formed
the impression of
F
as a man
who
believed in
disciplining
his
children
with
firm,
physical
control
and that
control
was
over every member of
his
family
and
was
viewed by him as paramount.
We
have no
doubt
that he is right not to
have pursued his
claim
for
access to J.
11. There is also an allegation that F
practised
witchcraft
or black magic. In Miss
Lister's report
F
admits he has a gift of healing and that his
grandmother in Madeira also had that gift. There is a belief by B that
F
will
attempt to train
D
in these arts.
But apparently, the Portuguese
Consul
in Jersey
has had no informal or
formal
complaints
made to him by any member of the
Portuguese
community
about these alleged practices. This aspect
was
not pressed by Advocate
Bell in
cross-examination.
12. We
formed
the impression that B has an intense
dislike
of
F,
and that these
feelings
are probably mutual. J,
from
the solicitor's report,
wishes
to have nothing more to
do
with
her
father.
From
the reports that
we
have read
we
consider
it
was
right
for
F
not to press
for
access to J. But
what
of
D?
The law is of great assistance to
us. Advocate
Fitz
referred us to
C-v-D
(19th September,
2000) Jersey Unreported; [2000/185],
where
the head note reads:
13. That case
is
clearly
distinguishable;
not only
was
there post-traumatic stress
disorder
the husband had twice been sent to
prison, and had had three
convictions
for
violence against the
wife
but the
child
was
also
disabled.
In that Judgment
the
Court
referred to Rayden & Jackson:
Divorce
and
Family
Matters
(17th Ed'n) s.4:40.42 (pp.1425-30), and the principles set out
there must, of
course,
guide us in this
case.
They are as
follows:-
14. Then in Re K (Contact:
Mother's Anxiety)
[1999] 2FLR 703 and 707,
Wall,
J, said this:
15. In F-v-S
(30th June, 1997), Jersey Unreported,
the
Court
cited
this passage
from
W-v-H
(23rd June, 1987) Jersey
Unreported:
16. Advocate Bell
has said everything that he could
on behalf of B.
Clearly
B takes the view that
F
is not
fit
to have access to
D.
He argues
on B's behalf that
D
has
witnessed
violence against J, that
D
is now
settled at school and the status quo
is best left as it is. J
would
be
unhappy if
D
saw her
father,
and this
could
affect the
whole
family
unit. He too referred us to
C-v-D
(above)
but to the passage
which
referred to the
case
of Re L (
Contact:
Domestic
Violence) (2000) 2
FLR
334, and the head note to that
case
which
reads:
17. At one stage, at page 336 Dame
Elizabeth
Butler-Sloss said this of the professional reports that she had received in
that
case:
18. As we
have said there has been no proof of
physical violence towards
D.
There
may have been an opportunity to test the allegation but it
was
not taken. Nor is there proof in the allegation
that
F
has practised black magic and may attempt to pass his skills on to
D
so
that she may
continue
what
was
called
"the
family
tradition". The reports that
we
have before us
could
not be
clearer.
B has
cared
for
these two girls and
cared
for
them
well.
They attend
different
schools but they are progressing relatively
well
at those schools. She is
fearful
that
F
will
shower
D
with
gifts to gain her
confidence
and then manipulate her
so that
D
turns against her mother.
We
have no
doubt,
and
we
share Miss Lister's opinion, that
B's
fears
are genuinely
felt.
19. Mr Berry
in his report has assessed the feeling
of both parents in the
context
of the inimical
hostility of one to the other. He
says, however, and I quote: "There is nothing in
F's
psychological profile
which
is
dangerous
or sinister". Both Mr Berry and Miss Lister
would
not
be adverse to strictly
controlled
access.
20. We
have a number of
concessions
from
F.
He
does
not
wish
access to J. He has said that he
will
only send
birthday,
Christmas
cards
and presents as a minimum to
D.
We
feel
that he may send letters to
D,
and because B
will
have to read them, if they are inappropriately
worded,
then
they
can
be brought to the
Court's
attention.
We
are going to allow limited access
for
three months, through the good offices of Mrs Barbara
Frost,
who
has been
for
thirteen years a residential
child
care
officer.
F
has undertaken to pay
for
Mrs
Frost's
services in this regard and payment has to be made in advance of
the session. Mrs.
Frost
has
suggested that access should be one afternoon per
fortnight
for
two hours. She
will
be present throughout the
sessions, as an observer, and
will
report back regularly to the
Court
through
the Probation Service.
We
will
allow such access initially but
for
three months only. At this time the parties should
come
back to
Court,
where
the situation
can
be reviewed and, of
course,
either
party has liberty to apply to
Court
at any time should any matter of real
concern
arise.