Jersey Unreported Judgments

Care Order - appeal against decision of the Royal Court dated 19th September, 2012.

[2012]JCA223

Court of Appeal

30 November 2012

	Before     :		Sir John Nutting, Bt., Q.C., President; N. Pleming, Q.C., and; Sir Hugh Bennett.
Between		B (Father of the Third Respondent)		Appellant
And		Minister for Health and Social Services		First Respondent
		A (the Mother)		Second Respondent
		E ( by her Guardian ad-litem Monash Kessler)		Third Respondent

Appeal against decision of the Royal Court dated 19^th September, 2012.

Advocate S. M. Baker for the Appellant.

Advocate C. R. G. Davies for the Minister.

Advocate H. J. Heath for the Guardian.

JUDGMENT

bennett ja:

This is the judgment of the Court.

1.        This is an appeal by B ("the father") from the decision of the Royal Court, consisting of the Deputy Bailiff and Jurats Kerley and Liston, made on 19 September 2012 whereby it, having made care orders in relation to D and E, refused, in relation to E, to grant the father a parental responsibility order and refused the father's application for interim contact and approved the care plan under which the father's contact to E was to be in the Minister's discretion and now reduced to one hour once a month.  The making of the care orders is not challenged.

2.        The hearing took place between 19 and 21 June 2012 at which oral evidence was given, including that of A ("the mother") and the father.  Judgment was reserved and was given in writing on 19 September 2012.

3.        D is the daughter of the mother having been born on 29 December 2000.  Her father is F who took no part in the proceedings.  E was born to the mother and the father on 28 May 2010 and so is now two and a half years old.  The father is 40 years old.

4.        In about 2009 the father and the mother formed a relationship.  They lived in the Luton area in England.  Eighteen days before E's birth the mother, the father and D moved to Jersey.  By May 2011 the relationship of the mother and father was over.  From 31 October 2011 both children have been living with, and cared for by, K, the sister of the mother and thus the children's maternal aunt.  She and her partner are approved kinship carers.  They have one child of their own.  Both the Children's Service and the Guardian have been impressed with the quality of care given by K and her partner.  On 8 December 2011 care proceedings in respect of D and E were started in the Royal Court.  On 15 December 2011 the court made an interim care order in relation to both children in favour of the Minister.  It was agreed by all parties that both children were likely to suffer significant harm through emotional abuse and neglect whilst in the care of the mother on the basis of the facts set out in para 3 of the judgment of the Royal Court and because of the agreed facts that the mother had been unable or unwilling to provide an appropriate level of care for the children, given her dependence on drugs during their respective entire lifetimes.  The children had also been exposed to incidents of violence within the mother's relationships, and to emotional abuse.  Thus, at the final hearing in June 2012, the court was satisfied that the threshold criteria were made out.  The hearing was concerned with welfare matters i.e. the care plan and the father's applications.  Earlier on, in separate proceedings, the father had applied for parental responsibility in respect of E, which application was consolidated with the care proceedings and considered by the court in June 2012. As at June 2012 the father was having contact with E once a week.  He wanted an interim order increasing the amount of contact.

5.        The care plan of the Minister, which the court approved, was that both D and E should continue to live with K.  The placement is intended to last until at least early 2013 on the basis that this will be the end of a 12 month period from the end of the mother's detox from substance misuse.  The care plan is to be reviewed in February 2013. If it is then thought that it will be in the best interests of the children to consider a return to the mother's care, a gradual and progressive rehabilitation plan will be formulated.  As for contact between the children and the mother, this is to be reduced.  So far as the father is concerned, the plan is that his contact to E should be in the Minister's discretion which is envisaged to be reduced to once a month, and that at review it may be reduced still further to four times a year.  The plan makes it clear that it is not envisaged that E will be rehabilitated to the care of the father.  The purpose of contact (supervised) between the father and E is to allow for E to promote a sense of identity and build knowledge of the father.

6.        Having considered the care plan for D, to which it is not necessary to refer, the court dealt with the care plan in relation to E and the mother's contact, about which the court declined to make any order, leaving it to the Minister.

7.        The court then considered the father's application for an order for contact, namely an interim, supervised contact order for a minimum of once per week, pending a review after six months.  This was refused for the reasons given by the Royal Court in its judgment between paras 44 and 51, which we set out:

"44.    In her submissions at the end of the hearing, Advocate Woods agreed the full care order, but indicated that on behalf of the father she sought an interim supervised contact order in relation to the Fourth Respondent for a minimum of once a week, pending review after six months.  She asked for the imposition of a condition that there should be an independent observer or that the contact sessions should be video recorded, preferably the latter.  In support of the jurisdiction in the Court to make a contact order coupled with the final care order, she relied on In the matter of D [2011] JLR N 5.  We agree that we have jurisdiction to make such an order if we think it is appropriate to do so. 

45.      The thrust of the submissions on behalf of the Second Respondent was that the social workers Ms Jenner and Ms Du Heaume had emphasised the negative aspects of the existing contact between the Second Respondent and his daughter, and that the contact logs contained a negative spin which was to his detriment.  Yet it was very much in the Fourth Respondent's best interests that contact with her father should continue.  It was said there had been a considerable improvement since the MIM assessment in February.  The Second Respondent had agreed to undertake the ADAPT and parenting courses and put together, Advocate Woods submitted these would show a basis for increasing contact from once a week.  The only thing which had changed more recently is what is to be found in the reports of Doctors Castleton and Harrison.  The father could not understand why, given that he has accepted taking cannabis once, subutex once and some use of alcohol, the amount of his contact is less than the mother's contact when she has shown heroin addiction and a greater degree of alcohol abuse.  In his evidence, the Second Respondent said that he would do anything for his daughter.  Contact should be increased and not reduced, and the purpose was to reunite the family. 

46.      On the contact logs, he thought the Children's Service have lied on a number of occasions.  In cross examination he said he did not really know what the cause of the problem was for the Children's Service.  He thought the video recording would show that he was right in what he said. 

47.      The Guardian in his evidence said that in his view the Second Respondent had considerable difficulty in acknowledging his own problems.  He was adept at twisting other people's arguments.  He has a bad temper and is volatile.  The incidents which have occurred are, as far as the Guardian is concerned, unsurprising.  However the incident during the week of the hearing was particularly worrying.  Here was another fight, with allegations of inappropriate drug taking, wherever the truth lay. 

48.      The Guardian said that the two contact sessions he had observed between the Fourth Respondent and her father were very good.  He was cautious about that statement because social workers often say that parents act up i.e. better because the external guardian is there.  Nonetheless he noted that there was love and affection between the Second Respondent and his daughter.  He was concerned that perhaps the Fourth Respondent was fearful of men generally, which might explain some of her reaction even to her father.  As far as he was concerned, the presence of a video recorder could not harm her, and neither could the presence of an independent person when the father was exercising a contact session.  Indeed the presence of an independent person or the existence of a video recording might be useful in improving matters if it showed the Children's Service trying to work with the father.  In cross examination he agreed that the independent observer in that case should not be part of the Children's Service.  Cross examined by Advocate Woods, the Guardian said that the Second Respondent was not happy with the Fourth Respondent's current placement.  He thought of himself as the father with more rights than anyone else has over the Fourth Respondent except the mother.  In the Guardian's view, the Second Respondent is likely to continue to be angry, and he was pessimistic about the possibilities of change.  The quality of contact he agreed was inconsistent and elements of it might be seen to be harmful.  The volatility of the Second Respondent was the most worrying part, and the one thing that the Fourth Respondent really needed was stability and security.  In her closing submissions, Advocate Heath emphasised that the real concern was the father's volatile behaviour.  He has not acknowledged the concerns which exist about him.  He does not admit any domestic violence and therefore he will not be able to attend on the ADAPT course.  While the mother has in large measure been able to accept her problems and the diagnosis which has been made, the father has not. 

49.      The Court has considered all the material before it and approves the care plan and the proposed contact arrangements between the Second Respondent and the Fourth Respondent.  Wherever the truth lies in relation to the assault which took place during the week of the hearing, the facts suggest that the Second Respondent is still active in the drug community in the sense that he is associating with those who take drugs.  We have looked carefully at his conduct over the course of the last months and we have concluded that he cannot distinguish between the Fourth Respondent's needs and his own needs.  A good example of this is his suggestion, at quite a late stage in the proceedings, that the Fourth Respondent could go to live with his mother in Italy.  That possibility would have involved removing the Fourth Respondent from K's care where she has made great progress since October last year, removing her from her sister and her mother whom she has known all her life, and placing her in a foreign country where a different language is spoken and with a person with whom she is substantially unfamiliar.  No-one who was focussing on the child's needs, as opposed to his own, could have thought that to be appropriate. 

50.      We are not of the view that the Second Respondent will act violently towards the Fourth Respondent, nor that there will be much opportunity for him to act violently towards the First Respondent in the Fourth Respondent's presence.  Nonetheless, we are concerned at the Second Respondent's refusal to accept the diagnosis of Dr Harrison in relation to the delusions from which he suffers, and we think that there is some uncertainty as to how the delusions will affect his mental health over the next 12 months when "the game" is supposed to come to an end.  We are strongly of the view that the Second Respondent's lifestyle is more of a concern than that of the First Respondent in the sense that she largely acknowledges her problems and has sought help, whereas he denies them and refuses it."

51.      In our view, a reduction of contact on a supervised basis to once a month will not irreparably damage the relationship with his daughter or such bond as there might be and is in the child's best interests.  It will give her an opportunity to settle and invest in her new home with a minimum of distraction and confusion.  Furthermore, the matter of contact can be reviewed later in six months time.  We consider the Minister's proposals to be appropriate."

8.        The reference in para 50 of the judgment, set out above, to "the game" is to the father's particular delusional belief, confirmed in his oral evidence, "that he is a participant in a ten year game which will end in 2013, and that due to his participation in the game, he will be tested by events going against him, particularly by those in some authority or control over him" - see para 18 of the judgment.

9.        The court considered the father's application for parental responsibility in relation to E between paras 55 and 64 of its judgment.  At para 55 the court noted that in considering the father's application E's welfare was the court's paramount consideration.  It then set out the factors identified in LS v NS [2007] JRC 103A which the court should consider.  It rightly reminded itself that those factors were not exhaustive and all relevant matters should be taken into account.  At para 57 it set out a passage from the judgment of Balcombe LJ in Re G (A Minor)(Parental Responsibility Order) [1994] 1 FLR 504 at page 508.

10.      At para 58 the Royal Court said that if the court were to make a parental responsibility order it can be discharged under Article 5(4) which is some protection against abuse by the father if given parental responsibility.  The court then recorded the fact that the father had had weekly supervised contact since December 2011 and that the father clearly loved E which affection has been reciprocated frequently.

11.      The judgment at paras 61 and 62 records the submissions to the Royal Court by Advocate Woods, for the father, and the Minister's and the Guardian's submissions.

12.      The reasons of the Royal Court for not granting an order to the father of parental responsibility at this stage are contained in paras 63 and 64 where it said:-

"63.    The Court has given anxious consideration to this matter, not least because we entirely accept the views expressed by Balcombe LJ as cited above, that prima facie it is in the interests of the child that his or her natural father should have parental responsibility.  Nonetheless, in this case, we are troubled as to whether the father has really established a commitment towards his daughter.  Genuine commitment involves an ability to put the child's interests first, which in the context of this case, requires a change in lifestyle, a determined effort to get on well with the Children's Service as well as an ability to accept the problems which the father has in his own personal life.  Against the application of these tests, the father has not shown a commitment towards his daughter. 

64.      We think it is important that the Children's Service should continue to consult the father.  Furthermore, his circumstances may change, and although we are refusing the application for parental responsibility now, we expressly give him liberty to apply at a later stage, to the extent that might be considered necessary.  Circumstances may change.  He may decide that he can and should receive treatment for his delusional condition which Dr Harrison has diagnosed and which so far the father rejects.  We emphasise that we should not in any sense be considered to be condemning the father.  We consider, by contrast, that he is simply suffering from some medical mental health problems for which there is an antidote, and we think that properly motivated, he could get himself into the position where an application for parental responsibility could be favourably considered.  In the light of the evidence we have heard, as a whole, we do not think that he has reached that position yet."

13.      Advocate Baker, who appears for the father in his appeal in relation to parental responsibility (but not in his appeal in relation to contact), submitted in writing that the decision of the Royal Court was plainly wrong for three reasons - see para 4 of his contentions.  The first is that the court failed to give sufficient weight to the commitment shown by the father to E and gave disproportionate weight to the requirement for the father to change his lifestyle before an order for parental responsibility would be made.  The second reason is that the court failed to give sufficient weight to the fact that the father cannot apply to vary or discharge the care order under Article 33 of the Children (Jersey) Law 2002 ("the Law") unless he has parental responsibility.  The third reason is that the court failed to give any weight to the fact that the father cannot apply for contact under Article 27 of the Law unless he has parental responsibility.

14.      Before we consider the first two reasons, we propose to consider the third reason.  Advocate Baker submitted in writing that a parent without parental responsibility does not fall within the definition of "parent" under Article 1(1) of the Children (Jersey) Law 2002 and thus of Article 27(1)(a).  Accordingly he cannot make a contact application as of right to his child under Article 27 and leave is required to make such an application under Article 27(3)(b).  He submitted that the natural father of a child should not have to make an application for leave to make a contact application to his child who was in care.

15.      We are of the opinion that this submission is misconceived, which during the course of Advocate Davies' submissions, on behalf of the Minister, Advocate Baker accepted. Art 1(1) provides:- "In this Law, except where the context otherwise requires -  "parent"  includes the father of a child whether or not he was at any time married to the child's mother and the biological father of a child where he has been granted parental responsibility under Article 5(2)".  Under Art 3 if the parents of a child are married to each other at the time of the child's birth each shall have parental responsibility for the child.  If not, the mother shall have parental responsibility for the child.  The father shall not have parental responsibility for the child unless he acquires it in accordance with the provisions of the Law.  Art 5(1) and (2) provide for the acquisition of parental responsibility by the father, who was not married to the mother at the time of E's birth (and indeed never has been).  Art 5(1)(a) provides that the court may on the application of the father order that he shall have parental responsibility for the child.  Art 5(2) gives the court power, where a child is treated in law as legitimate, to grant to a child's biological father parental responsibility, notwithstanding that he is not in law the child's father.  Art 27(1)(a) and (3) provide that:-

"27    Contact with children in care

(1)    Subject to the provisions of this Article, the Minister shall allow a child in the care reasonable contact with -

(a)     the child's parents;

...

(3)    On an application made by -

(a)     any person mentioned in paragraph (1)(a) to (c); or

(b)     any person who has obtained the leave of the court to make the application,

the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person."

16.      We are of the opinion that it would be an extraordinary construction of the above provisions in the Law that deprived a father of the right to apply for contact, as opposed to making an application for leave to bring such an application, to his child when taken into care.  Advocate Baker's submission was that the words in Art 1(1) "where he has been granted parental responsibility under Article 5(2)" governed the whole of the definition of "parent", and not just the words "and the biological father of a child".  But in our view that is not the correct construction. Art 1(1) is not happily drafted in relation to the definition of "parent".  But if the word "also" was to be inserted after the word "and", so it read "and also the biological father...", that would make clear what we believe the draftsman intended, namely that "parent" includes a father of a child whether or not he was at any time married to the child's mother and in addition it also includes the biological father of a child where he has been granted parental responsibility under Art 5(2).  Put another way, there is no dispute, and there never has been, that the father in the instant case was not married to E's mother and that he is the father of E.  The first part of Art 1(1) in relation to "parent" is therefore satisfied and the second part dealing with biological fathers is, for the instant case, otiose.  The first part of Art 1(1) which refers to "parent", namely "the father of a child whether or not he was at any time married to the child's mother", plainly applies to the father in the instant case.  The second part of Art 1 reference to "parent" is to the biological father of a child granted parental responsibility under Art 5(2) which is concerned with the child's legitimacy, and has nothing to do with the instant case.  Accordingly, the father as a parent of E does come within Art 27(1)(a), he can make an application under Art 27(3)(a), and he does not require the leave of the court to make an application for contact under Art 27(3)(b).

17.      We now turn to the second reason advanced in writing by Advocate Baker, namely that, without an order for parental responsibility of E, the father cannot under Art 33(1) of the Law apply to discharge her care order and that the Royal Court did not give sufficient weight to this when refusing the father's application.  Advocate Baker is correct in so far as he submits that, as a matter of law, the father without an order for parental responsibility cannot apply for the discharge of the care order.  Art 33(1)(a) restricts the class of person able to apply for discharge to a person "who has parental responsibility for the child".  Accordingly we agree that as a matter of law the father, without an order for parental responsibility, would have no locus standi to make such an application in relation to E.

18.      However, so far as the submission that the court did not give that matter of law sufficient weight, we consider that this submission must fail.  First, the court records in its judgment (see para 61) the submission of Advocate Woods, for the father, that "it is important that the father should have the right to be able to seek to discharge the care order under Article 33 of the Law, or indeed to make any application for a variation of that care order, which he would not be able to do if not given parental responsibility."  It is plain that the court accepted the father's inability under Art 33 to seek to discharge the care order if not given parental responsibility in relation to E.  Second, we accept the submission of Advocate Davies, for the Minister, that the father has never put himself forward to be a carer of E; indeed until shortly before the hearing he proposed that E should be cared for by his mother in Italy.  Further, if in the future he becomes in a position to care for E he can make an application for a residence order and for an order granting him parental responsibility - see Articles 10(3) and 13.  The making of a residence order automatically discharges a care order - see Article 66(1).  Finally, if any party makes an application to discharge a care order, the father would be a party to such an application - see Schedule 1 of the Children Rules 2005.  We thus consider that the court did sufficiently take into account the father's inability under Art 33 to apply to discharge the care order, and that in any event there are other avenues the father can pursue in the future if so minded.

19.      We now consider Advocate Baker's first reason.  He submitted in writing that the court failed to take into account the commitment of the father to E, in particular to his being fully involved in the day to day care of E in her first year, to his having regular contact with E after his relationship with the mother ended until October 2011, to the fact that on 30 November 2011 he applied for parental responsibility, and to the fact that from the start of care proceedings until September 2012 he had weekly contact with E.  Further, the court fell into error in requiring the father to change his lifestyle and to make a determined effort to get on with the Children's Service.  Having noted at para 57 of the judgment the case of Re G (A Minor)(Parental Responsibility Order) [1994] 1 FLR 504 and the dicta of Balcombe LJ at page 508, and the apparent acceptance by the court at para 63 of his views, the Royal Court nevertheless refused to grant parental responsibility to the father as it was troubled as to whether a commitment had really been established.  The court gave insufficient weight to the dicta of Balcombe LJ and incorrectly extended the definition of commitment to include future conduct and a requirement to get on well with the Children's Service.

20.      In his very helpful oral submissions Advocate Baker prefaced his remarks in relation to both of the father's appeals by emphasizing that the father loved E and wanted to play an active role in her upbringing.  Moving to the core of his submissions, he urged us not to take, as he put it, the "easy way out" by simply saying that the decision was in the discretion of the Royal Court and thus dismissing the father's appeal against the refusal to grant him parental responsibility. He first took us to LS v NS (supra).  In that case the father applied for parental responsibility in respect of his child against the mother.  The father and mother were unmarried.  The Royal Court, presided over by the then Bailiff, said at paras 14 to 18 of its judgment:-

"14.    The law in relation to applications by fathers who are not married to the mother of the child in question is conveniently set out in Stanley on Family Law at p. 253 in the following terms:

"The application by the unmarried father is governed by the principle that the child's welfare is the Court's paramount consideration.... In Re H Minor's Local Authorit: Parental Rights No. 3 [1991] Fam 151 Balcombe held that the following three factors are particularly important when the Court is considering whether to make an order.  The degree of commitment which the father has shown towards the child, the degree of attachment which exists between the father the child, and the father's reasons for applying for the order, these factors have been applied by the court in many cases (see e.g. Re CB (A Minor) (Parental Responsibility Order) [1993] 1 FLR 920; and Re G (A Minor) (Parental Responsibility Order) [1994] 1 FLR 504).  However the Court of Appeal has stressed that these factors are merely a starting point and are not exhaustive, as the court must take account of all the relevant circumstances applying the welfare principle (see Re H (Parental Responsibility) [1998] 1 FLR 855).  Thus, even though the three factors are satisfied in a particular case, other factors may tip the balance against making the order.

As the court takes the view that parental responsibility confers an important status on a father, an order will usually be granted unless clearly contrary to a child's welfare."

We think that those principles are equally applicable in Jersey. 

15.      The first two considerations, namely the degree of commitment which the father has shown towards the child and the degree of attachment which exists between the father and the child, give rise to no concern.  We are entirely satisfied and indeed the mother agrees that there is a good relationship between the father and A and that there is a degree of commitment towards the child. 

16.      The third question, namely the father's reasons for applying for the order have given us some pause for thought but on balance we are satisfied that this is a proper application for parental responsibility and that it would be wrong to deprive the father of the responsibility of playing a proper role in the upbringing of the child. 

17.      We think that there has been some misunderstanding of what parental responsibility means.  It means in essence that the father is entitled to share with the mother responsibility for all important strategic decisions affecting the life of A.  These decisions include the choice of school, the choice of the religion, if any, in which the child is to be brought up.  They also include any change of surname, and the country or place where the child is to reside.

18.      We underline the fact that parental responsibility does not mean involvement in routine daily decisions affecting the life of the child.  We, therefore, grant the application of the father for parental responsibility but subject to the following conditions which are designed to protect the mother against the harassment and intimidation to which, rightly or wrongly, she perceives herself to be subject."

21.      Next he took us to Re G (supra) and to the passage in the judgment of Balcombe LJ at pages 507 and 508 as follows:-

"That being the statutory framework, I refer to the law as decided by the cases.  I start with the case of D v Hereford and Worcester County Council [1991] Fam 14, [1991] 1 FLR 205, where Ward J dealt with the question of a parental responsibility order, and then to a case in this court, Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151, sub nom Re H (Illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR  214, in which I gave the leading judgment.  I set out at the bottom of p 217 [of the FLR report] the basis upon which the provisions for parental responsibility orders came about.  Having set out what was the position of the father of the child born out of wedlock before the recent changes in the law, I said this (at p 218C), which I think, in the context of this case, is worth repeating:

'That position has now been changed by ... the Children Act 1989 ...  The method-adopted was not to equate the father of a child born out of wedlock with the father of a legitimate child: it was to give the putative (or natural) father the right to apply for an order giving him all the parental rights and duties with respect to the child ... The reason why this method was adopted was because the position of the natural father can be infinitely variable; at one end of the spectrum his connection with the child may be only the single act of intercourse (possibly even rape) which led to the conception; at the other end of the spectrum he may have played a full part in the child's life from birth onwards, only the formality of marriage to the mother being absent.  Considerable social evils might have resulted if the father at the bottom end of the spectrum had been automatically granted full parental rights and duties, and so Parliament adopted the scheme to which we have referred above.  In considering whether to make an order under s 4 [my reference then was to the 1987 Act but it is now s 4 of the Children Act 1989] the court will have to take into account a number of factors, of which the following will undoubtedly be material (although there may well be others, as the list is not intended to be exhaustive):

(1)       the degree of commitment which the father has shown towards the child;

(2)       the degree of attachment which exists between the father and the child;

(3)       the reasons of the father for applying for the order.'

In the course of argument before us it was suggested that that had become used almost as if it were a statutory definition.  It certainly was not so intended, and I sincerely hope no one will take it for more than it was intended to be, namely, some indication of the factors, not intended to be exclusive, which are relevant in this type of case.

There is one other matter to which I should refer before turning to the facts of this case.  It was not sought to be argued before us that the making of a parental responsibility order was not a question with respect to the upbringing of a child, or, to put it the other way round, for the purposes of this case it was accepted before us that the overriding or paramount question of the child's welfare applies to the making of a parental responsibility order.  I certainly do not seek to suggest that the contrary is correct.  For the purposes of this case (and it would appear to be consistent with some observations of Butler-Sloss LJ in Re T (A Minor) (Parental Responsibility: Contact) [1993] 2 FLR 450), I am quite prepared to accept that the making of a parental responsibility order requires the judge to adopt the welfare principle as the paramount consideration.  But having said that, I should add that, of course, it is well established by authority that, other things being equal, it is always to a child's welfare to know and, wherever possible, to have contact with both its parents, including the parent with whom it is not normally resident, if the parents have separated.

Therefore, prima facie, it must necessarily also be for the child's benefit or welfare that it has an absent parent sufficiently concerned and interested to want to have a parental responsibility order.  In other words, I approach this question on the basis that where you have a concerned although absent father, who fulfils the other test about which I spoke in Re H, namely having shown a degree of commitment towards the child, it being established that there is a degree of attachment between the father and the child, and that his reasons for applying for the order are not demonstrably improper or wrong, then prima facie it would be for the welfare of the child that such an order should be made.

With those preliminaries, I approach the part of the judgment where the judge deals with this question.

His Lordship reviewed the evidence and the judge's judgment, and continued:-

At the end of day, I come back to what is-the purpose of a parental responsibility order.  It is to give the unmarried father the rights which would have been automatically his by right if he had been married at the time of the child's birth.

We do not have the opportunity that the judge had of seeing all the parties in the witness-box and forming an impression of their characters, but let me assume against Mr G that he is awkward, difficult, and thoroughly unresponsive to the approaches of the social workers who have the interests of his child at heart: even so I cannot see why that should unfit him to have the order which gives him a locus standi in the life of his child, when he has displayed commitment; when there is clearly a degree of attachment, not merely between him and L but between L and him (that is clear from the judgment and indeed from such parts of the evidence as we have been shown); where his reasons for seeking a parental responsibility order appear to be perfectly proper, namely that he wants to have the ability to have a say in the life of his child which has been - chaotic is not perhaps too high a word to put to it - up to now.  All those seem to be wholly appropriate factors for making a parental responsibility order."

22.      Advocate Baker submitted that parental responsibility was an order relating to status and submitted that the Royal Court in the instant case did not apply properly the tests set out in LS v NS and in Re G.  The court got caught up with day to day matters in relation to E whereas what the court should have been concentrating on was E's wider welfare such as schooling and the fundamental matters in her life.  He further submitted that if the father had been married to the mother at the time of E's birth he would have automatically acquired parental responsibility together with the mother - see Art 3(1).  There may be many married men, who are fathers of children, who suffer from mental health problems such as suffered by the father in the instant case.  But nevertheless they automatically acquire parental responsibility.  Thus the court should be very careful before refusing an order for parental responsibility to an unmarried father with mental health problems.

23.      Advocate Baker then submitted that, where there was no danger to the child from a father with mental health problems, mental health problems of a father were irrelevant and the Royal Court should have disregarded them in the instant case in deciding whether it was in E's best interests for the father to be granted parental responsibility.  Now that a care order had been made in respect of E the Minister assumed parental responsibility (in addition to the mother) and the father's exercise of his parental responsibilities (if the order were granted) could be controlled by the Minister refusing to comply with the father's wishes in respect of E's upbringing.  Properly managed (i.e. by the Minister) the grant of parental responsibility to the father should not be a problem.  The Minister would have the final say on matters of parental responsibility.  Thus, Advocate Baker submitted that the decision of the Royal Court was plainly wrong.  Furthermore, the father had shown commitment to E from her birth throughout her life right up to the present and there was a strong attachment between E and the father.  Thus the court had failed to place sufficient weight on those matters and the court had gone plainly wrong.  Overall the court had gone plainly wrong in paras 63 and 64 of its judgment.  There was no evidence in the instant case that the father's mental health problems had any effect on E's best interests, and, further, problems with the Children's Service was given undue weight by the Royal Court.

24.      In her written submissions, Advocate Davies, for the Minister, submitted that the critical findings of the Royal Court were that the father had given E good care during her early months when in a relationship with the mother, that the father was suffering from delusional beliefs, that he was active in the drug community in that he associated with drug takers, that he was unable to distinguish between E's needs and his own, and that his lifestyle was more of a concern than the mother's as she largely acknowledged her problems and had sought help whereas the father denied his and refused help.  It also found as a fact that more recently he had not shown commitment in that he had not put E's interests first.

25.      Her oral submissions were focused on countering the oral submissions of Advocate Baker.  For an order to be made granting parental responsibility to the father the court had to be satisfied that such an order was in E's best interests.  The plea that, if the father had been married, he, notwithstanding his mental health problems, would have automatically acquired parental responsibility, was not a relevant consideration.  Art 5 of the Law gives the court a discretion whether or not to grant a parental responsibility order and that, in coming to its decision, the child's welfare must be the court's paramount consideration - see Art 2(1)(a) of the Law.  In this respect the Law makes a fundamental distinction between a married and an unmarried father at the time of the child's birth.

26.      She submitted that the Royal Court applied correctly the relevant case law and there was no perversity in the court's reasoning and conclusion.  It cannot be right for the court to exclude from its consideration the father's mental health problems.  All cases are fact specific and a court must not be hamstrung in looking at all the circumstances of the case in deciding what is in the best interests of a child.  E was placed in a kinship placement i.e. with the mother's sister and there was evidence that the father did not support that placement and might undermine it - see para 62 of the judgment which was based on the Guardian's oral evidence and the social worker's evidence - see the Care Plan at paras 39 to 43.  Advocate Davies also relied on the findings of the Royal Court at para 49 of its judgment.  The court was well within the bounds of its discretion to come to its conclusions in paras 63 and 64.

27.      Advocate Heath, for the Guardian, supported and adopted the Minister's submissions.

28.      We have carefully considered Advocate Baker's written and oral submissions but do not find them persuasive, attractively presented as they were.  The Royal Court saw and heard the witnesses particularly the father.  E's welfare is paramount.  It was within that context that the court had to consider the grant or refusal of parental responsibility to the father.  Each case of this type that comes before the court is fact specific, and none more so than the instant case.  It was the court's task to find whether it was in the best interests of E that the father should be granted parental responsibility.  In our view the Royal Court did not "extend the definition of commitment to include future conduct...".  What the court was doing was taking into account all the circumstances of the case to determine E's best interests.  If a change of his lifestyle and/or his undergoing treatment for delusional beliefs is in the best interests of E and which he can reasonably accomplish, and his refusal or failure to change his lifestyle or undergo treatment is not in her best interests, then those are relevant circumstances of the case which the court is entitled to take into account in determining the father's application.  Plainly in the view of the Royal Court they were factors which outweighed the factors supporting the father's case.  The court also made it clear that it was not shutting the door in the father's face, that it expressly gave him liberty to apply at a later stage, and that indeed it encouraged the father to "get himself into the position where an application for parental responsibility could be favourably considered."

29.      The Royal Court correctly set out the case law and directed itself accordingly.  We agree with Advocate Davies that the fact that married fathers with mental health problems automatically acquire parental responsibility was not a relevant consideration for the reasons she gave.  We also agree with her submission that the court would have been wrong to have excluded from its consideration the fact of the father's mental health problems and their impact on the best interests of E.  Furthermore, once the court had found that the father did not put E's interest first, for the reasons it gave, it was in our view entitled to conclude that the father did not have a "genuine" commitment towards E.  Advocate Baker said that the father believed that he did have a genuine commitment.  But, as Advocate Davies pointed out, the court must determine objectively whether or not the father did have a genuine commitment.  The court concluded in para 50 that the father cannot distinguish between E's needs and his own.  In all the circumstances of the case we cannot possibly say that the Royal Court's decision was plainly wrong.

30.      We now turn to the appeal of the father against the refusal of the Royal Court to grant him an interim contact order in relation to E of a minimum of one hour each week to be reviewed in six month's time.  The appeal was formally presented by the father in person but in fact by Advocate Baker, who was appointed as an amicus curiae in October 2012, reading out the father's written submissions set out in his document of 22 October 2012.

31.      We have set out the background and reasoning of the Royal Court in relation to contact in para 7 above.

32.      We summarise the father's written submissions.  The court failed to give sufficient weight to the improvements in his life, namely he is no longer taking drugs and is not alcoholic, he agreed to undertake the ADAPT programme and parenting courses (but cannot attend the former due to work commitments), and he is in full time employment and lives in his own accommodation since August 2012.  The court gave disproportionate weight to the evidence of Dr Harrison's diagnosis of persistent delusional disorder, which in any event is not sufficient to refuse him an interim contact order.  He distrusts the Children Service which is not working with him to unite the family and it has in reality decided that he should not have contact with E.  Although he does not really want the contact to be supervised he understands that this is presently a requirement of the Children Service until it is satisfied that it is in the best interests of E to have unsupervised contact.  E is paying the price by being prevented from developing a relationship with him.  He loves his daughter and wants to remain an integral part of her life particularly in the important years ahead when she is growing up and developing.

33.      Advocate Davies, for the Minister, referred in her written submissions in particular to the court's findings at para 48 and 51 of its judgment and submitted that in the light of its findings of fact it really had no alternative but to dismiss the father's application and approve the care plan, in particular the proposal to reduce the father's contact.

34.      Advocate Heath adopted and supported the Minister's submissions.

35.      We are very aware of the father's deep love for E, as was the Royal Court.  We understand how aggrieved he must feel that the mother has considerably more contact to E than he does.  He feels deeply that the Minister and/or the Children's Service are hostile to him having any contact with E.  He suggested that his contact could be supervised by Pathway.  He cannot comprehend how, as a loving father, he can be reduced to having the level of contact with E which he currently has.  But we have to say that we consider that the court, having seen and heard the witnesses, which of course included the father, fairly summarised the evidence and submissions it heard.  We can detect no error of law.  Whilst we have considerable sympathy for the father, who plainly loves E, and understand his deep feelings to be an integral part of E's life, we cannot say that the decision of the Royal Court was perverse.  It is not for us to substitute a different decision unless the court's decision was perverse or obviously wrong.  It was a closely reasoned decision which took into account all the circumstances of the case.  As to failing to put sufficient or disproportionate weight on the factors identified by the father in his submissions, we are of the opinion that the Royal Court was entitled to take the views it did and we reject this submission.

36.      Accordingly, the father's appeals will be dismissed.

Authorities

In the matter of D and E (Care Order) [2012] JRC 165.

LS-v-NS [2007] JRC 103A.

Re G (A Minor) (Parental Responsibility Order) [1994] 1FLR 504.

Children (Jersey) Law 2002.

Children Rules 2005.