J (The Father) v I (The Mother)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith,Jurats Morgan,Liston
• Judgment Date: 13 May 2014
• Neutral Citation: [2014] JRC 110
• Date: 13 May 2014

[2014] JRC 110

ROYAL COURT

(Family)

Before:

J. A. Clyde-Smith, Esq., Commissioner andJurats MorganandListon.

Between

J (the father)

Applicant

and

I (the mother)

Respondent

The Applicant appeared on his own behalf.

Advocate A. T. H. English for the Respondent.

Advocate C. G. Hillier as amicus curiae.

Authorities

I v J (Family) [2013] JRC 157 .

I v J (Family) [2014] JRC 021 .

Children (Jersey) Law 2002.

In the matter of T [2010] JRC 126 .

Re P [1999] 2 FLR 573 .

Children Act 1989.

Re A (a child)(Order: Restriction on applications) [2009] EWCA Civ 1548 .

I v J (Family) [2013] JRC 156 .

Matrimonial — application in relation to Article 66(8).

THE COMMISSIONER:

1 When handing down our judgment of 5 ^th August, 2013, (JRC 157), the Court invited submissions from the parties on the mother's application for an order preventing the father from making any further applications in relation to their child B.

2 The parties filed their written submissions in August 2013 but for a variety of reasons including the Court itself vacating a date that had been fixed, oral submissions were not made until 10 ^th March, 2014, when the father represented himself, but the Court was assisted by Advocate Hiller as amicus curiae appointed pursuant to the Court's judgment of 23 ^rd January, 2014, (JRC 021).

3 This is to be read as an extension of the judgment of 5 ^th August, 2013, (“the Judgment”) and we adopt the same definitions. The parties have helpfully filed skeleton arguments and authorities.

4 Article 66(8) of the Children (Jersey) Law 2002 (“the Children law”) provides as follows:–

“66 (8) On disposing of any application for an order under this Law, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Law of any specified kind may be made with regard to the child concerned by any person named in the order without the leave of the court.”

Principles to be applied

5 In the case of In the matter of T [2010] JRC 126, the Court had regard to the guidance given by the English Court of Appeal in the case of Re P [1999] 2 FLR 573 in relation to section 91(14) of the Children Act 1989, which is in the same terms as Article 66(8) of the Children Law. It is worth setting out the relevant part of the judgment of Butler-Sloss LJ commencing at page 592:–

“From the cases which I have cited above, it can be seen that the most likely reason for granting a restriction requiring leave to make an application is where the applicant has already made repeated and unreasonable applications with no hope of success. In those cases the applicant must have crossed the line between a reasonable application and one which is both unreasonable and has become or is becoming oppressive. The operation of the section is not however limited to oppressive or semi-vexatious applications. Orders have been made pre-emptively to apply to cases where the conduct of the applicant has not yet reached that level or there is no criticism of the applicant's conduct but none the less there are circumstances where, in the best interests of the child, it is necessary to prevent unmeritorious inter partes applications. It is always a balancing exercise between the welfare of the child and the right of unrestricted access of the litigant to the Court.

…

Guidelines

(1) Section 91(14) should be read in conjunction with s 1(1) which makes the welfare of the child the paramount consideration.

(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.

(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.

(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.

(5) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.

(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.

(7) In cases under para (6) above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.

(9) A restriction may be imposed with or without limitation of time.

(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.

(11) It would be undesirable in other than the most exceptional cases to make the order ex parte.”

6 It is important to stress that we are not dealing here with the possible imposition of an absolute prohibition on the father making an application to the Court — such a prohibition would have to be made under the inherent jurisdiction of the Court and no such prohibition is sought here. As Butler-Sloss LJ said at page 593:–

“It was suggested to us that s 91(14) may infringe the Human Rights Act Fundamental Freedoms 1950, Art 6(1), by depriving a litigant of the right to a fair trial. I do not consider that submission to be correct. The applicant is not denied access to the court. It is a partial restriction in that it does not allow him the right to an immediate inter partes hearing. It thereby protects the other parties and the child from being drawn into the proposed proceedings unless or until a court has ruled that the application should be allowed to proceed. On an application for leave, the applicant must persuade the judge that he has an arguable case with some chance of success. That is not a formidable hurdle to surmount. If the application is hopeless and refused the other parties and the child will have been protected from unnecessary involvement in the proposed proceedings and unwarranted investigations into the present circumstances of the child.”

7 The father drew my attention to the case of Re A (a child)(Order: Restriction on applications) [2009] EWCA Civ 1548 where Wilson LJ, applying the guidelines in Re P, warned against the over-zealous use of such orders. However, in that case, there had been a very short hearing, the judge had no bundle and was therefore unaware of why the parties were appearing before her, neither party had applied for such a restriction, there had been no evidence heard and the judge had not invited submissions from either party about the propriety of making such an order. The imposition of such a restriction was the judge's instinctive reaction to the case, which was a wholly illegitimate foundation for the order in the light of the jurisprudence. None of this applies in the case before us.

Application of the principles to this case

8 Working from the documents filed with us, it would appear that litigation in relation to the two children started on 20 ^th May, 2011, when the father applied for a residence order in relation to the eldest child, A, and parental responsibility for the youngest child B. On 29 ^th September, 2011, the father applied for a residence order and/or a contact order in relation to B. The interim order of 9 ^th November, 2011, shows that by consent it was agreed that both children would reside with the mother, with the father having contact. On 19 ^th December, 2011, four days were set aside for the hearing of the application for the residence/contact orders in respect of B. Psychological reports were ordered in relation to B and psychological and psychiatric reports ordered in relation to the parents, in addition to reports from JFCAS.

9 On 12 ^th April, 2012, the Court, having read the reports of the child psychologist,...