In the High Court of Justice Family Division ​​Case Number: LA13P00159
Lancaster District Registry ​​​​

Between:-

Jayne Elizabeth Ferreira
​
Applicant
And
Whilhelm Philippus Ferreira
First Respondent
And

Oscar Alexander Ferreira and Oliver James Ferreira
(Children through their r16.4 Guardian Peter Morey)

Second Respondents

Position statement of Children’s Guardian

1. Peter Morey, the Children’s Guardian, has had sight of all the papers and emails to date, and in particular has considered the Statement of Mrs Ferreira dated 8th April 2014 in support of her two applications before the court (see below) and the Statement in response of Mr Ferreira dated 16th April 2014.

2. There are a number of applications before the Court currently, specifically:-

a. The Mother’s application for the exercise of parental responsibility by the father and the need or not for any orders defining or restricting this pursuant to Section 8 of the Children Act 1989
b. The Mother has also applied to the court whether it is in the best interests of the children that she be permitted to use a surname other than Ferreira to protect them from the impact of the publications by the Father of private material and material from these proceedings
c. Whether the court should consider any further orders or proceedings should be prompted by the Father’s ongoing publication of private material and material from these proceedings.
d. The father has recently sent an email to the court stating he wishes to make further applications to the court which are: 1. Full residence order in favour of WP Ferreira 2. Removal of Oliver and Oscar Ferreira from the Jurisdiction to South Africa as place of permanent residence 2. Application for appeal and full contest hearing for the order made on 28 Feb 2014 3. Application to join Social Services Lancaster and West Cheshire to these proceedings 4. Application to join Lancaster and Western Cheshire police to these proceedings 5. Application to join Dalvinder Kaur Kelly to these proceedings 6. Application to join Cafcass to these proceedings.7. Application to Join Core Assets to these proceedings 8. Application to join UK Home Office and boarder Agency to these proceedings 9. Application to join independent international Social worker to these proceedings 10. Application to join independent Parental alienation expert to these proceedings 11. Application to join independent international physiologist to these proceedings from cross examination of Peter Morey and Mrs Kaur Kelly 12. Application for joining Mr Simon McClure to these proceedings 13. Application to join Miss Lauren McClure to these proceedings 14. Application to join Miss Catherine McClure to these proceedings 15. Application for joining Miss Suzanne Willy to these proceedings 16. No contact order for Miss Jayne McClure 17. Non molestation order against Mr Steve McClure 18. Non molestation order against Miss Jayne McClure to protect me and Oliver and Oscar Ferreira Estimated time for this will be 10 full courts days.19. Joining off the LAA to these proceedings.
e. It is unclear at this point whether the Father has made any formal applications to the court on any of the above and in light of that the Children’s Guardian will give due consideration to these applications once it is known whether the court intends to deal with these matters, be it at the hearing on the 28.05.2014 or any subsequent hearing.

3. The leading case in relation to change of surname remains the decision of the House of Lords in Dawson v Wearmouth [1999] 1 FLR 1167. The Applicant must demonstrate having regard to the individual facts of the case that the proposed change is in the welfare interests of the children. In the case of Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930 the relevant factors to be weighed into the balance when the Court considers the welfare of the children are summarised below:

a. Veiled abduction threats from the father which have been accompanied at the very least by him obtaining South African passports for the children. While South Africa is a signatory to the Hague Convention, the damage to the children from an abduction by their father should not be underestimated and is a factor that can be taken into account regarding change of surname (please see Re F [2008] 1 FLR 1163):

b. The information that the father places on his daily blog concerning the children. This is very arguably damaging to them if they or their peers were to access it. It contains extremely derogatory comments about the children’s mother and her family, details of the proceedings in relation to the children, the revelation that the children are not the biological children of Mrs and Mrs Ferreira and, in the case of Oliver, sensitive information about a medical condition that he has suffered from which could constitute a breach of his privacy:

c. The father has apparently been able to trace the mother’s address and he definitely identified the nursery that the children were attending. The father’s attempt to visit the nursery earlier this year and his behaviour in terms of requiring sight of the qualifications and CRB checks of the staff led, it is contended by the mother, to the children having to be withdrawn. The mother also asserts that she and the children have had to move home to a different area. The children’s surnames are unusual. If they are retained the father has the capacity to cause further disruption for the children in the future.

d. The importance of the retention of a family surname from an identity point of view and the fact that some limited supervised contact may end up being able to be arranged for the father where the new surname may be disclosed.

4. It is the opinion of the Children’s Guardian that having given careful consideration to the above there are reasons why the welfare of Oscar and Oliver requires them to be permitted to bear a new surname.

5. The Mother indicates her in most recent statement that she still seeks to discharge the father’s parental responsibility for the children. This application was dismissed at the last court hearing on 28/2/14 as there is no statutory framework for the same given that the father and mother were married at the time of the children’s birth (section 4 CA 1989).

6. It would appear from the mother’s most recent statement that she seeks the courts permission to amend the children’s birth certificates presumably in order to discharge the father’s parental responsibility by this route. To do so she would have to seek a declaration of non-parentage first (section 55A Family Law Act 1986). If the application were successful she would then have to embark upon the complicated process of applying to the Registrar for amendment of the children’s birth certificates.

7. It is the opinion of the Children’s Guardian that irrespective of whether it is legally possible to discharge the father’s parental responsibility for the children that this is to draconian a step to be ordered by the court. The Children’s Guardian is aware of previous children’s cases where this course of action has been considered and in fact has been involved in two cases of his own (although in all of those cases the parents were not married) and while he does believe the father has acted unreasonably he does not feel that his actions are serious enough to warrant the removal of his parental responsibility for his children.

8. The Father’s behaviour since the court hearing on the 5th December 2013 has breached the terms of the undertaking given to the Court. It continues to be the view of the Children’s Guardian that the Father’s behaviour since the 5th December has been, at best, provocative in his use of social media, in particular his ‘blog’ on which he posts messages which are derogatory to the Mother, her family, and professionals involved with his family. The concern is that whilst the boys are currently oblivious to information posted on line this will not remain the case indefinitely, and has the potential to undermine and destabilise the placement of the children with their Mother in the fullness of time. The impact of the Father’s behaviour upon the Mother must also be weighed in the balance, given that she is the primary carer for the boys.

9. The content of the father’s blog also includes publication of documents filed and served in the proceedings and is, therefore, a contempt of court. The Children’s Guardian has considered his position in accordance with recording 11 of the Order dated 28th February 2014. It is considered that the difficulties of bringing contempt proceedings, at this stage, weighed against the likely outcome of provoking further breaches, would make such an application contrary to the best interests of the children. However the Children’s Guardian believes the continued ongoing publication of private material pertaining to the children personal details cannot continue to be ignored and this has led him to decide that should the Children’s Solicitor become aware that the father intends to attend the next hearing in person she should have the committal application together with an application for the time for service on the father to be abridged ready to be issued in the hope that the Court may entertain the application on 28/5/14.

BSG Solicitors
18.05.2014