Jersey & Guernsey Law Review – June 2008

THE VOICE OF THE JERSEY CHILD

Introduction

1       In this article[1] the writer considers why it is important for children to have an independent voice in proceedings affecting their lives and makes specific proposals for the reform of current Jersey law so as to give children in Jersey the access to justice and protection enjoyed by their counterparts in Guernsey and England.

Background

2       The Children (Jersey) Law 2002 (“the 2002 Law”) came into force on 1^st August 2005. This Law, which mirrors, to an extent, the provisions made in England and Wales under the Children Act 1989 (“the 1989 Act”) does however depart from the English legislation in at least one very distinct, and possibly fundamental way,[2] namely a right to separate representation in legal proceedings. It may well be that this departure serves to deprive the children of Jersey of a voice in their own lives, which they are entitled to exercise.[3]

3       In England and Wales, the 1989 Act was passed following a series of events involving the welfare of children. The deaths of Maria Colwell, Kimberly Carlisle and Jasmine Beckford, at the hands of their parents or carers, in the 1970s and the consequential enquiries led to the Children Act 1975. The concern for children in the public care system, and child protection generally took a different course in Cleveland during the early 1980s. The legislation which had been brought in to protect children was then seen, in some cases, to be contributing to harm caused not by their families, but by the state itself through the widespread removal of children following sometimes questionable diagnoses of child sexual abuse.[4]

4       The pressures on social workers are many and various. The social worker who works with vulnerable parents and encourages them in the proper care of their children will be blamed if that care falls below standard whilst on her watch. Another social worker, perhaps wary of what might happen, could instead be accused of removing children too soon from their parents’ care. Bureaucracy and limited resources may sometimes mean that the best decisions are not always made for a particular child. There is a need for a voice for the child, independent of both her family and the state.

The legislation

5       The 1989 Act[5] makes the child’s welfare, as determined by the Court, paramount. That determination is made with the assistance, as a statutory requirement, of people who can ascertain what is in the child’s best interests, and what the child’s wishes and feelings are on the matters before the Court. In recent times, judges have spoken of extending the voice of the child even further, and have canvassed the greater involvement of children within court proceedings affecting their futures.[6] In Jersey, when the 2002 Law was drafted, the children of Jersey, unlike the children of England and Wales, were deprived of such an independent voice, except in limited circumstances.

England

6       Under the English legislation, in proceedings where the state wishes to interfere in the family life of a child by the making of a care or supervision order, section 41(1) of the 1989 Act determines that:

“The court shall appoint an officer of the Service or a Welsh family proceedings  officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.”

7       This section is supported by provisions in the Family Proceedings Rules 1991 (“the FPR”)[7] which say that as soon as possible after the start of public law proceedings the court shall appoint a children’s guardian, unless it considers such an appointment unnecessary to safeguard the interests of the child. The FPR also state that the children’s guardian shall appoint a solicitor for the child, unless one has already been appointed by the court.[8]

8       In this way English law ensures that a child involved in public law proceedings has the benefit of a children’s guardian, who is an independent and experienced social worker, appointed to safeguard her interests by investigating the circumstances and preparing a report for the court, and also legal representation from a solicitor experienced in child law. This “Tandem Model” ensures that the child’s voice is heard by someone qualified to listen to her, and that she is represented in court by someone qualified to speak for her. (Whilst instructed by the children’s guardian, the lawyer in fact represents the child.) If a child of sufficient understanding and competence disagrees with the views of the guardian, the lawyer must take instructions direct from the child. In such circumstances the guardian remains involved in the proceedings, but needs to find alternative legal representation.

9       These provisions are supported by rules defining the respective roles of the children’s guardian and the child’s solicitor both in care proceedings[9] and private law contact and residence disputes.[10] In private law proceedings the court may appoint a children’s guardian to act in the same way as in public law proceedings, but this is not mandatory. In practice such appointments are made in difficult or complex cases where, for example, there are serious allegations of abuse, or intractable hostility to contact. Such rules are also bolstered from time to time by Practice Directions[11] and guidelines from the English Law Society[12] and CAFCASS.[13]

10     Although it is possible for a solicitor to be appointed to represent a child in the absence of a children’s guardian, it is not a course of action that the courts will lightly adopt. In Re K (Replacement of guardian ad litem)[14] Munby J held that it was undesirable that a solicitor should be so appointed, because it means that a solicitor must try to carry out two roles at once, the non-legal role being one for which s/he has received little or no training.[15] Further, there is a difficulty in giving evidence whilst also appearing as a lawyer.[16]

Jersey

11     The corresponding article of the 2002 Law, article 75, states that:

“Where it considers it desirable in the interests of a child to do so the Court may order –

(a)              that the child be separately represented in such proceedings under this Law as the Court may specify; or

(b)              that the child be assisted and befriended by such person, being a person independent from the Minister, as the Court may specify.”

12     The article goes on to provide, at paragraph (2), that where a child is empowered to bring proceedings under the 2002 Law, this can only be done with the leave of the Court, and then only if the child has sufficient understanding to bring those proceedings. In such circumstances a child may only act through a “guardian ad litem” appointed by the court. There is no restriction as to who may be appointed as a guardian ad litem. The only provision dealing with such appointment is to be found in Royal Court Rule (“RCR”) 4/2. 

13     The Children Rules 2005 provide[17] that the court may in any children’s proceedings, give, vary or revoke directions for the conduct of the proceedings, including the appointment of a person under article 75.

14     It would presumably also be possible for a guardian ad litem and/or a lawyer to be appointed by the Royal Court under its inherent jurisdiction,[18] but given that there is specific reference to representation in the 2002 Law, and that there is no current authority establishing such appointment under the inherent jurisdiction, it would be preferable for there to be clarity within the law as drafted, rather than there being a reliance on the wide powers under the inherent jurisdiction.

Differences between the English Act and the Jersey Law

15     The difference in the wording of the legislation in the two jurisdictions means that -

In England:

·        in public law proceedings the court appoints a children’s guardian, who is an experienced social worker[19]employed by CAFCASS[20]to safeguard the interests of the child and to ascertain her wishes and feelings;

·        the appointment is mandatory, unless the court is satisfied that it is not necessary to appoint a children’s guardian to safeguard the child’s interests;[21]

·        the children’s guardian appoints a specialist child law solicitor to represent the child in court, if the court has not already appointed one;

·        in private law proceedings the court may appoint a children’s guardian[22] who, as in public law proceedings, then appoints a specialist solicitor to represent the child; and

In Jersey:

·        in either public or private proceedings the Court may order the separate representation of the child “as the Court may specify”. (This is in addition to the appointment of guardians ad litem under RCR 4/2);

·        in practice, in the few cases where such appointments are made under the  2002 Law[23] the Court appoints a guardian ad litem to act for the child, who is always a lawyer;

·        only one person at a time is appointed to assist a child;

·        the guardians ad litem so appointed do not have (or have to have) any social work experience, and do not have to have any specialist knowledge of child law;

·        potentially any deficiencies of article 75 might arguably be remedied by the use of the inherent jurisdiction of the Royal Court.

16     It will be seen therefore that in England separate representation in children cases is very clearly defined. In Jersey, it is not. In Jersey, anyone appointed by the Court to act for a child tends to be called a guardian ad litem, when such nomenclature is not accurate and is potentially misleading. It further clouds the jurisdiction actually being exercised by the Court. The appointment of a representative for children under the 2002 Law is not the same as an appointment of a guardian in England and is arguably not the same as an appointment under RCR 4/2.

What is a guardian ad litem?

17     A guardian ad litem translates from the Latin as guardian “to the lawsuit” or someone appointed by the court to act for someone under a disability. This is to be contrasted with other types of guardian.[24] Nowadays, apart from guardians ad litem, (appointed to act within court proceedings) guardians are usually people appointed by the court, or by will, to care for a child in the event of the death of parents.[25] The role of guardian ad litem as a concept was first introduced into Jersey in 1963 through the Royal Court Rules. The office is analogous to that of tuteur (a term well known in Jersey customary law). In civil cases the overriding obligation is to act as un bon père de famille.[26] However, even the use of a guardian ad litem in this context is problematical, there being no statutory guidance in respect of the appointment, duties or responsibilities of guardians ad litem.[27]

18     Under RCR 4/2, the term guardian ad litem refers to someone appointed by the Court (usually a lawyer) to enable a child, (or anyone else under a legal disability) to bring, defend or intervene in legal proceedings.[28] In general commercial or trust litigation, an advocate appointed to act as a guardian ad litem for minor children may well not need to meet the child or ascertain her wishes and feelings, and accordingly a lawyer may be able to fulfil this role in such cases.

19     The term guardian ad litem is also used in the Adoption (Jersey) Law 1961 and the Adoption Rules 1962. A probation officer is usually appointed to be the guardian ad litem, but the court may appoint “any suitably qualified body or person as guardian ad litem”.[29] The duties of a guardian ad litem in the context of adoption are set out in the Rules.[30] These are to “investigate all circumstances relevant to the proposed adoption…”[31] and to make a confidential report to the court in writing.[32] These duties clearly indicate an investigation of a social work rather than a legal nature. This is not the role of a lawyer, but rather the role of a court appointed expert. In adoption cases in Jersey, children are not usually represented by lawyers.[33]

20     In Re TS, LS, CaS. CS and ThS (No. 2),[34] Birt, Deputy Bailiff stated, in a contested application to free children for adoption, that the guardian ad litem would have “the opportunity to assess dispassionately the best interests of the child, with the benefit of meeting the parties in their normal environment …” and “it is important that a constructive and measured dialogue be maintained between the guardian ad litem and the Children’s Service, even in the event of differences of professional opinion”.  This suggests that the guardian ad litem is of the same profession as members of the Children’s Service, i.e. a social worker, not a lawyer.

Separate representation in Jersey

21     Jersey law relating to children now largely follows English law, and in many respects did so long before the 2002 Law came into force.[35] Because the separate representation of a child is such an integral part of English law without there being equivalent provision in Jersey, it is however dangerous to follow English precedent. The whole of the public law provision of the 1989 Act is predicated on the premise that the child is separately represented, and therefore so are the judgments of the family courts, at all levels.  

22     There are two main problems with the current Jersey system therefore;

(1)              separate representation is not available to children as frequently as it should be, certainly if their Article 6 convention rights are to be fully respected, and

(2)              there is a lack of clarity of the role of the representative, who is usually (and wrongly) described as a guardian ad litem.

23     If we want to provide the children of Jersey with the same protection and the same access to justice as children in other jurisdictions, and to ensure that their Article 6 convention rights are fully met, then the answer to that question whether there is a need for the separate representation of children must be a resounding yes.

How can this be achieved?

24     When the 2002 Law was drafted the opportunity was not taken to provide mandatory separate representation in public law cases, unlike in England. However, this is not a bar to separate representation being ordered by the Court under article 75 as it will frequently be “desirable in the interests of the child”. If the Court were routinely to consider separate representation in all public law cases, more children could be so represented. The fact that the law is permissive and not mandatory does not mean that separate representation cannot be ordered in many more cases.

25     As far as clarity in the role is concerned, we need to consider what the Court needs from a child’s representative, and what the child needs. In child law cases the Court needs evidence from and about the child if it is going to have any chance of making the child’s welfare paramount. This cannot be obtained from the child herself, so the representative therefore needs to be the “eyes and ears” of the Court. He needs to ascertain the child’s wishes and feelings and investigate her circumstances, in the same way as a guardian ad litem does in adoption cases. This role is best undertaken by someone with a social work background. If the first representative of the child is not a lawyer, and in the view of the writer he should not be, then the child also needs a lawyer to represent her in court proceedings. The child therefore needs two representatives.

26     In Re X[36]  the Court of Appeal stated that the Royal Court should have given directions for the filing of evidence by the guardian ad litem, but because the advocate who had been appointed guardian ad litem was also conducting the case as counsel, she could not give that evidence herself.  Southwell JA indicated that in future cases it would be appropriate for a Child Care Officer to be appointed as guardian and to be represented by counsel. This suggestion has however not been adopted in  practice in Jersey, despite Re X being decided more than two years before the 2002 Law came into force. 

Reform of the Law

27     What changes need to be made?  There is nothing in article 75 which prohibits the appointment of both a social worker guardian (as might be recognised in England) and a lawyer. The Court is permitted to order that the child be separately represented “as the Court may specify”. The writer’s view is that the Court should specify more often, and specify that both a guardian with a social work background and a lawyer experienced in child law should be appointed. The proposal in Re X was that an experienced Child Care Officer be appointed to ascertain the child’s wishes and to instruct an advocate to represent the child’s discrete position in court. This could be achieved now with the appointment of a Court Welfare Officer. (The appointment of an officer of the Children’s Service would not be possible in a public law case, because it is the Children’s Service, applying through the Minister for Health and Social Services, who bring care proceedings, and the representatives for the children need to be independent from the Minister). If appointments of this sort were made under article 75 routinely, there would need to be an increase in the number of suitably trained staff. 

28     One possibility would be for Jersey to hire in children’s guardians from England. An arrangement could be made with suitable charitable organisations in England, such as the National Youth Advocacy Service, or the NSPCC, for the provision of children’s guardians on an ad hoc fee paid basis. This would avoid the need to maintain a fully funded service in the Island, but may be difficult to police effectively, if not properly managed.

Guernsey

29     As a small jurisdiction, it is constructive for us in Jersey to look across the water to see how Guernsey manages these matters. Guernsey has recently enacted a new Children Law[37] which is expected to come into force on 1^st April 2009. They have adopted the English tandem model of representation for their children, and currently do so under a Practice Direction.[38] This step was taken to ensure that Guernsey child law was compliant with human rights legislation, while the new law was being created. In Guernsey, in every public law case, the children involved have a children’s guardian appointed to act for them. This has been arranged through the establishment of a “safeguarder service”. This service has brought together the roles of reporting officers in adoptions, court welfare officers in private law cases and children’s guardians in public law cases. As from April 2009, when Child and Youth Community Tribunals are introduced, these people will be known as “safeguarders”.  In Guernsey there is currently one full-time member of staff and four sessional workers (social work trained children’s guardians), two within the Island and two outside, are to be recruited. These safeguarders will, from April 2009, instruct local advocates to represent the children in court, in very much the same way as in England[39]. This service is administered as part of the Courts Service, rather than connected to the Children’s Service, which ensures independence.  

A better system for Jersey

30     The voice of the child in Jersey needs to be heard. While it may be entirely practical and reasonable for an advocate alone to be appointed to act for minors and unborn beneficiaries in trust cases, it is not appropriate in children proceedings which determine fundamental issues affecting the personal lives of children.  There is only so much that a lawyer can do to assist the court in proceedings under the 2002 Law, and investigation into a child’s circumstances and consideration of what is in her best interests is far better and more cost effectively conducted by someone with a social work background rather than a legal one. But when it comes to court, the child needs proper legal representation, and judges with relevant knowledge, if she is going to have a fair hearing.

Funding

31     Any increase in the provision of non-lawyer guardians will need to be funded by the States, and provided as a service to the children of Jersey. Equally, the current system of lawyer guardians ad litem being appointed under the legal aid scheme à tour de rôle will need some amendment, not least because this system can only appoint those on the list (and who are all lawyers). Further, it cannot be right for the most vulnerable court users to be at risk of having the most inexperienced lawyers appointed from the next name on the list. These issues, however, appear to be acknowledged in article 75(3), and provision currently exists for legal costs to be paid from public funds, thus permitting greater flexibility than that offered by Jersey’s current legal aid system. A funded system for these appointments should be a matter of course in practice however, and hopefully such a change in approach would encourage more specialisation in this area of law. Provision of the best service to the children would assist in achieving the overriding objective articulated in the Children Rules 2005, viz. to deal with cases justly.[40]

Expertise

32     If the lawyers appointed to act for children are to be specialists, in order to provide the best service to their minor clients, then so should the judges. In England, children cases, and more specifically public law cases, can only be determined by judges or magistrates specifically trained to do so. It is perhaps ironic therefore, that when judges of the Court of Appeal in Jersey are appointed, even those who sit as Deputy High Court Judges in England, frequently sit on Jersey cases that they would not be qualified to sit on in England.

Proposals for Law Reform

(1)              An amendment should be made to article 75 specifically to enable the appointment of both a social work trained person to safeguard the interests of children involved in court proceedings affecting their lives, and a specialist lawyer to represent children in such  proceedings, funded directly, to ensure specialisation and expertise.

(2)              Guidance to be given as to the role of  those appointed to represent minors.

(3)              A safeguarding service should be established to provide a pool of suitably trained “children’s guardians” to combine the roles of the guardian ad litem in adoption cases, Court Welfare Officers, and those persons appointed under article 75(1). If necessary the pool of children’s guardians could be supplemented by suitably qualified and approved children’s guardians from England, Guernsey or elsewhere. This service could be administered under the auspices of the Royal Court, separate from the Probation Service and the Children’s Service, and could possibly be administered in conjunction with Guernsey.

(4)              Specialist judges should be appointed to sit in cases involving children. Specialist legal training should  be available to judges and lawyers and for jurats involved in children cases.

(5)              An amendment should be made to the legal aid system to ensure that suitable lawyers are appointed and are paid adequately to provide proper representation for children.

33     At a time of heightened awareness within Jersey of the importance of protecting our children, these proposals will provide a cohesive system of representation, full and consistent adherence to human rights legislation and a voice for the Jersey child.

Barbara Corbett is an English solicitor and collaborative lawyer and a member of the International Academy of Collaborative Professionals. She is Head of Family Law at Hanson Renouf.