Jersey Unreported Judgments

[2007]JRC036

royal court

(Samedi Division)

1^st February 2007 

Before     :

M.C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Bullen and Clapham.

 

Application on behalf of the Plaintiff to renew the Power of Arrest attached to certain injunctions ordered against her former partner, the Defendant.

Advocate M.E. Whittaker for the Plaintiff.

Advocate C.J. Scholefield for the Defendant.

judgment

the deputy bailiff:

1.        In this case I shall, without any disrespect, refer to the parties as the 'father' and the 'mother'.  The history is that the parties formed a relationship in September, 2003, and subsequently lived together.  There is one child 'A' who was born on 25^th March, so he is nearly 2.  They separated on the 16^th May, 2006.  Shortly afterwards the mother issued an order of justice on 1^st June.  The mother accepted in that order of justice that the father had never subjected her or A to violence, but she alleged he had regularly behaved in a threatening, aggressive and intimidating manner.

2.        The order of justice contained conventional non-molestation and non-contact orders.  It also restrained the father from returning to the home that they had shared and restrained the father from removing A from the Island.  There was a power of arrest attached to the injunctions.

3.         There were minor amendments on 9^th June, but on that occasion the matter was adjourned sine die with the injunctions to remain.  The power of arrest was extended for one month to 7^th July, and on that date, was extended for a further 6 months to the 5^th January 2007.  The mother then applied for a further extension and that was opposed by the father.  A hearing was fixed for today and the power of arrest was extended temporarily until today.

4.        No proceedings for any breach of the injunctions have been brought.  However, relations between the parties are difficult and there have been problems over contact with A.  The mother is only willing to give supervised access; accordingly, pursuant to an interim order of the Family Registrar in August, contact takes place for 2 hours every Sunday at Milli's.

5.        The father has applied for joint parental responsibility and for unsupervised access.  That matter remains to be dealt with and we urge that it be brought to fruition as soon as possible so that at least one bone of contention between these parties might be removed.

6.        The father alleges that the mother is determined to cut him out of A's life and has failed to allow contact on some Sundays.  As a result he has issued a representation alleging contempt on her part in relation to such failures.  He also denies the allegations in the order of justice and has recently filed an answer.

7.        The mother has filed an affidavit in support of her application today for an extension of the power of arrest and the father has filed an affidavit in response.  The mother's affidavit sets out the history of this matter and goes into matters in some detail.  We would propose just to summarise the specific allegations, or some of the specific allegations, that she makes against the father as having occurred since the injunctions were imposed.

8.        First, she says that in July 2006 her car was vandalised and she suspects the father.  Secondly, she says that in August 2006, her car was again vandalised and again she suspects the father.  Thirdly, she says she was most distressed that some of her post has been wrongly redirected by the post office to the father, apparently under a 'mail re-direct service' that he had instituted for his mail.  She says that he has delayed in forwarding it to her and that in at least one case had opened a letter.  His response is that he has given it to his lawyer who has given it to the mother's lawyers who in turn have sent it on to her and that this has all taken some time.

9.        Fourthly, on the weekend of 1^st October the mother went to England with A.  The father on the other hand says that he was expecting contact at Milli's as normal and indeed some members of his family had come over to see A.  When he discovered that there would be no contact he sent an e-mail to many of their friends which was critical of the amount of contact which he was being allowed to A.  The mother found this very distressing and the father has accepted that it was unfortunate that he did that, although Mr Scholefield has explained that he did it out of a sense of frustration.

10.      Fifthly, when the mother takes A to Milli's she remains parked outside for the two hour period in order to ensure the father does not leave Milli's with A.  On one occasion on 8^th October, she says that the father saw her in her car and pointed and shouted at her and also took photographs of her and she found this distressing.

11.      Sixthly, she says that on 20^th October at about 8 p.m. someone tipped up a pot and a toy of A's which was in the garden.  She then saw a small gold or yellow car drive off shortly afterwards.  She believes that it was the father or someone on his behalf who did this, although it is fair to say that the father has attached to his affidavit letters from a number of persons who say that in fact it could not have been him as he was in their company at the time.

12.      Seventhly, she says that she believes that the father may have hacked into her computer system.

13.      Eighthly, she says that on 5^th November, she was followed by a blue motor cycle registration J33457, although the husband in his affidavit says that this is not the number of his motor cycle.

14.      Ninthly, on 29^th November when the mother and A were at a café in town she says she suddenly found the father standing over her.  She found this frightening and is now wary of going into town.

15.      Finally on 7^th January 2007 she said that a friend of hers was driving A in her car when the father stopped the friend's car to say that one of the brake lights was out.  She says that later the same day she was again followed by a motor cycle.  She cannot identify the driver of the motor cycle, but Mrs Whittaker submits that all these matters cumulatively are suspicious and have given rise to considerable concern and worry on the mother's part.

16.      The father has filed an affidavit in which most of these allegations are either denied or explained.  We have mentioned some of his explanations already.  For example in relation to the incident on 7^th January, he says he did indeed stop the car because he wanted to point out the faulty brake light and it was only when he did so that he realised that the car was driven by a friend of the mother's, whom they both knew, and that A was in the car.

17.      We accept from the psychological and psychiatric reports that the mother is in a very distressed psychological state and that the cause of this are her perceived problems with the father's behaviour.  On the other hand, when one analyses the allegations objectively, there can be no conclusion other than that they are not particularly serious.

18.      Article 3 (1) of the Powers of Arrest (Injunctions)(Jersey) Law 1998 provides that the Court may attach a power of arrest if it considers it necessary to do so for the protection of any person referred to in the injunction.  Powers of arrest are not automatically to be added to injunctions; it is only if the Court considers it necessary for the protection of a person. 

19.      Mrs Whittaker referred us to the case of T-v- M [2003] JRC 208.  There, there were very serious allegations including marital rape.  The Court held that it would maintain the power of arrest because of the wife's vulnerable state in that case.  The Court held that there was a real risk of deterioration in her mental health if the power of arrest were removed.  But we have to say that the factual situation of that case appears to be completely different to this.  There were, in that case, very serious allegations and the court concluded on the facts that it was indeed necessary for the protection of the wife. 

20.      We have not found this an easy decision.  We accept that the mother is in a distressed state and that she is genuinely concerned.  However, we have concluded that she does not need protection from the father such as to justify a power of arrest.  Mrs Whittaker argues that there is no prejudice to the father if a power of arrest is granted.  If he obeys the injunctions the power of arrest will never be put into force.  So on his side, she says, there is minimal prejudice, whereas on the mother's side the power of arrest is a strong additional psychological comfort.

21.      However the Law clearly envisages that the power of arrest should not be attached automatically and we accept that there can be prejudice to a person against whom a power of arrest is ordered, either by reason of a perception that he is the sort of person against whom a power of arrest is necessary, or by reason of vulnerability against false allegations. 

22.      The mother will still be strongly protected in this case.  She will still have the benefit of the injunctions which restrain the father from doing what is prohibited by the injunctions.  If he were to breach them and to commit a criminal offence in so doing - for example by an assault or criminal damage - then of course there is the ordinary power of arrest on the part of the police under the criminal law.  For lesser breaches of the injunction there is the ability to seek a warrant for arrest from the Bailiff and this can clearly be achieved speedily. 

23.      Finally there is always the conventional remedy of bringing a representation for a breach of injunction, and we wish to make it clear that, should the Court find in future that the father had breached any of the injunctions, it is likely to re-impose the power of arrest because it will have been shown that the mother does need the protection of the power of arrest in order to prevent the father from breaching the injunctions.

24.      For these reasons we have concluded that the case for a power of arrest is not made out, given the nature of the allegations and given the fact that the injunctions have now been in place for a number of months and that there are no proceedings for breach.

25.      We do, however, urge both parties to try and put A's interests ahead of their own.  He is the most important person in this situation and as long as the mother and father are at daggers drawn in the way they are, life is likely to be difficult for A as he grows older and can appreciate what is happening.

26.      We also urge that the contact matter be resolved at the earlier opportunity so that a degree of uncertainty can be removed from the position in the hope that both parties can then get on with their lives in the direction in which they wish to go.

27.      I have not mentioned it so far, but, of course, it has been accepted that the power of arrest should remain on the removal from the jurisdiction injunction.  That is a very different type of injunction where the Court does usually take the view that it is necessary that the power of arrest should exist because, if the injunction is breached and there is no power of arrest, the damage is very often not remediable in the sense that the child is out of the jurisdiction.   The power of arrest enables harbour or airport officials and police to effect an arrest before the aeroplane or the boat is boarded.  There are, therefore, completely different considerations and Mr Scholefield has not in fact sought to argue that we should not maintain the power of arrest on that injunction.

Authorities

Powers of Arrest (Injunctions)(Jersey) Law 1998.

T-v- M [2003] JRC 208.