BROWNE-SCANTLEBURY v. SCANTLEBURY
|BROWNE-SCANTLEBURY v. SCANTLEBURY|
|Citation #||TT 2011 HC 232|
|Country||Trinidad and Tobago|
|Judge||Myers, J. (Ag.)|
|Date||this 27th day of July 2011|
|Suit No.||1163 of 1998|
|Subsubject||Child – Access – Whether father’s access to child, now 16, should be supervised.|
Ms Kathy Gonzales for the petitioner
Mr. Gregory Delzin for the respondentMYESR, J.(Ag.):
1.1 Should the respondent be granted supervised or unrestricted access to his daughter, Kathy-Ann Scantlebury.
1.2 The petitioner and respondent were married on 25 September 1994. They had one child, Kathy-Ann Scantlebury (“Miss Scantlebury”). She was born on 20 March 1995. On 19 June 1996, the petitioner left the respondent’s home. She never again cohabited with him. I will explain why later. The petitioner brought maintenance proceedings for Miss Scantlebury’s benefit. By the Order [Order dated 8 October 1998] of Magistrate Ryan, the respondent pays weekly maintenance of $100.00.
1.3 Proceedings for divorce and ancillary relief were subsequently commenced by the petitioner on 24 November 1998. The respondent consented to the decree of divorce being granted as both parties lived apart continuously for the period of two years. The divorce proceedings were uncontested and the decree nisi was granted on 12 May 2000 by Archie J (as he then was).
2. STATEMENT OF ARRANGEMENTS
2.2 In the affidavit filed in support of the divorce Petition, the petitioner stated that the marriage came to an end because her daughter (from a previous relationship), Kennika Browne, alleged that the respondent had sexual relations with her.
2.3 In a subsequent affidavit dated 17 May 2000, in support of the application for custody, the petitioner stated at paragraphs ten to twelve, that her daughter, Kennika (aged twelve at that time), alleged that the respondent was having sexual relations with her since she was nine years old. Paragraph 10 of the affidavit reads:
The respondent has had no access to the said child since our separation on 19 June 1996. On that date my daughter from a previous union, Kennika Browne, who was then 12 years of age informed me and I verily believed that the respondent had been having sexual relations with her since she was about 9 years old. I was devastated by this revelation and immediately made a report to the police.
2.4 This was reported to the police and the respondent was committed to stand trial for the offence at the next sitting of the Assizes. Even though Kathy-Ann is his natural daughter, the petitioner requests supervised access in an effort to prevent any impropriety.
2.5 At the hearing of the matter in Chambers, Best, J. ordered [Order dated 20 July 2000] that interim care and control of the child be given to the petitioner with no access to the respondent and that the matter be adjourned for further consideration.
2.6 The respondent, in his affidavit dated 25 January 2001 and denied that he had sexual relations with Kennika Browne. He stated that he lived with the petitioner and her daughter for six years prior and no allegation of sexual impropriety was made against him. This only arose when maintenance proceedings were brought by the petitioner. He maintained his innocence and indicated that he was never alone with Kennika at any point. While he has no problem with the petitioner being granted custody, he requests that unsupervised access to his daughter Kathy-Ann.
2.7 It is interesting to note that Kennika Browne has not been considered a child of the family in these proceedings.
3.2 In considering the petitioner’s affidavit dated 17 May 2000, Mr. Delzin argued that the information being relied upon at paragraph 10 was hearsay and therefore, inadmissible and it was prejudicial to the respondent. The allegation raised was serious and he submitted that evidence from Kennika Browne should have been placed before the court for its consideration. It was not enough to raise an allegation and then depend on the fact that the respondent was committed to stand trial, as sufficient evidence that the alleged incident took place. He submitted that there was no report from any doctor or child psychiatrist in an effort to substantiate their claim and the only time this allegation was raised was in maintenance proceedings in the Magistrates Court.
3.3 He raised the point of supervised access and submitted that this is only available in certain circumstances. [Practice Direction (child: supervised access)  1 All ER 1040] In light of the above, he asked the court to make a normal order for unsupervised access as there was no evidence to influence the court otherwise.
3.4 Ms Gonsalves, attorney for the petitioner, submitted that the court’s duty is to child and that the presumption of innocence is the wrong test to be applied here. Although proceedings against the respondent were not yet determined, this must be taken into account by the court and if there is any potential risk to the child.
3.5 She agreed that the information contained in paragraph 10 of the affidavit dated 17 May 2000 was hearsay and inadmissible in proceedings that are final in nature. However, the information contained in paragraph 11 of the affidavit was not hearsay as it would have been within the petitioner’s own knowledge and was admitted by the respondent in his affidavit.
3.6 They also submitted that they were not asking the court to find that Kennika Browne was sexually abused; all the relevant facts were being placed before the court to declare that the arrangements for Kathy-Ann Scantlebury were satisfactory. The cases, relied upon by the attorney for the respondent, concerned allegations ofabuse made by the child to whom the proceedings related. They argue that in the instant matter, evidence would have had to be led to establish the allegation and based on a balance of probabilities, the court could have accepted it as true.
3.7 In addressing what Order the court should make if it finds that there was no sexual abuse, they submit that the court must take into account the fact that the respondent had had no access for over four years (at that time) and it may not be prudent to allow the respondent unfettered access where no meaningful relationship existed before the divorce proceedings. They relied on two cases [Hernandez v. Hernandez HCA 956/1988; Ramkelawan v. Ramkelawan HCA 409/1985] to show that in such instances, the court ordered supervised access. They argued that the respondent has not stated on affidavit where he resides and the configuration of his dwelling, the nature of the community, who he resides with or who will assist him in taking care of Kathy-Ann on any visit; consequently, this dearth of information will impact on how the court rules.
3.8 They also argue that although the petitioner has not obtained the consent of any person to supervise the access, this is not fatal as in the cases quoted, the court invited parties to agree on who should supervise access after determining that supervised access was the preferred form of access.
4.2 Section 3 of the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, Chapter 46:08 provides:
3. Where in any proceedings before any court-
the legal custody or upbringing of a minor,
is in question, the court, in deciding that question, shall regard the welfare of thechild as the first and paramount consideration, and shall not take into consideration whether, from any other point of view, the claim of the father or any right at common law possessed by the father in respect of such custody, upbringing, administration or application, is superior to that of the mother, or the claim of the mother is superior to that of the father.
4.3 The court, in determining issues of custody and access must have regard firstly to the welfare of the child as the first and paramount consideration. In the seminal case of J v. C,  1 All ER 788, House of Lords Lord Mac Dermott in considering the scope of the words “…shall regard the welfare of the infant as the first and paramount consideration” stated:
…it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is in most in the interests of thechild’s welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.
4.4 The court, therefore, must consider all the relevant parameters to determine the proper course to be adopted in such proceedings. A useful guideline in respect of the factors to be considered in custody and access proceedings can be found in Section 1 (3) of the Children Act 1989 (UK). These factors are well known to the court and as such, do not be to be listed.
5.2 The allegation of sexual abuse is extremely serious especially where it involves a minor. In this case, the respondent has been charged with sexual relations with a minor, Kennika Browne. I accept that the information contained in paragraph 10 of the petitioner’s affidavit is hearsay and inadmissible.
5.3 I do not pronounce on the guilt of the respondent or truthfulness of Kennika Browne but no medical report or psychiatric evaluation of Kennika Browne has been attached.
5.4 While prima facie, a case had been made at the Magistrates Court, this is no evidence of guilt. The burden and standard of proof in cases of sexual abuse are on a balance of probabilities. In the case of Re: W (Minors) (Sexual Abuse: Standard of Proof),  2 FCR 759 it was held that when sexual abuse was alleged, the burden of proof lay upon the party who asserted that abuse had occurred and the standard of proof was the balance of probabilities. The more serious the allegation, the more convincing was the evidence needed to tip the balance in respect of it.
5.5 The cases cited by Mr. Delzin concern situations where the father has allegedly been accused of sexually abusing his child and this matter is different in that, the father was alleged to have had sexual relations with his step-daughter. Even so, the court is being asked to infer that if the allegation is true, there is a risk that he may do the same to his daughter.
5.6 Based on what is before me, no cogent evidence has been presented that the respondent had sexually abused Kennika Browne or any minor and on a balance of probabilities, I can make no finding sexual abuse.
5.7 In assessing whether there is any risk of suffering any harm under the checklist, the case of Hernandez v. Hernandez (supra) was provided. In that case, Permanand, J. ordered that the respondent have supervised access as they found that his conduct was tantamount to moral depravity and unsupervised access would do irreparable harm to the child. This case is distinguishable as there was evidence before the court of the respondent displaying pictures of nude and semi-nude women and entertaining various women at his residence. In this case, no cogent evidence has been provided of the respondent’s alleged behaviour or any pattern establishing such behaviour. The child, Kathy-Ann is unlikely to suffer any harm from her father, the respondent.
5.8 It appears that the respondent is in agreement with the Statement of Arrangements, the only exception being access. Having regard to the fact that Kathy-Ann is now sixteen years and would have lived with the petitioner since she left the matrimonial home, there is no need to change the status quo. Even though Kathy-Ann did not grow up with her father and would not have had a normal father-daughter relationship, this not a viable reason for not granting unsupervised access: Re: E  1 F.L.R. 368.
5.9 Having considered all submissions, I propose ordering that the respondent be granted unsupervised access to the child, Kathy-Ann Scantlebury and that the Order of Best J dated 20 July 2000 be discharged. But in deference to the time that has elapsed and the fact that Kathy-Ann is now sixteen years old and should know her own mind, it strikes me I should suspend the operation of that order until a social worker has interviewed Kathy-Ann to determine the state of her mind on the subject of meeting with her father. On receipt of the social worker’s report, the matter should be brought before a judge sitting in the Family Court for him or her to determine whether Mr. Scantlebury should be allowed to meet with Kathy-Ann.
6.1.1 The Order of Best, J. dated 20th July 2000 be discharged.
6.2 The court declares that the arrangements for the welfare of the said child have been made and are the best that can be devised in the circumstances pursuant to section 47 of the Matrimonial Proceedings and Property Act, Chapter 45:51.
6.3 There shall be no order as to costs.