Jersey & Guernsey Law Review – June 2009

The voice of the Jersey child – beginning to be heard ?

1  Since the implementation of the Children (Jersey) Law 2002 (C(J)L) in 2005, child law in Jersey has largely followed the English Children Act 1989. Nevertheless, certain areas have been slower to develop in Jersey,^[1] but this is now changing^[2] with very significant developments in child law having taken place over the last year. This article focuses upon developments since the autumn of 2008.^[3]

Children as parties

2  Children are and have been historically frequently made parties in cases affecting their financial interests, most particularly in trusts cases where they act through a guardian ad litem. In cases affecting a child’s welfare, although it is possible for a child to be made a party to proceedings,^[4] it was only in October 2008 that the first child in private law proceedings was made a party,^[5] and in December 2008 that the first children were made parties in public law (care) proceedings.^[6] During 2009, in the majority of complex public law proceedings, the children have been made parties^[7] as a matter of course. This, together with the general appointment of both a children’s guardian and a lawyer for the child under art 75 C(J)L^[8] in care proceedings, means that children are now separately represented in cases which may result in their removal from their parents’ care and have full party status. Party status in effect gives children parity with the Minister and their parents, and enables them to participate fully in proceedings, through their children’s guardian and their lawyer.

Withdrawal of an application for a care order and the involvement of the child

3  In the past, under the C(J)L 1969, it had been the practice, where an interim fit person’s order was in force, and a decision was made within the Children’s Service not to continue with the care proceedings, to let the interim order lapse. This had the effect of closing the matter as far as the court was concerned. Under r 9 of the Children Rules, this is no longer possible. The Minister’s application for a care order may now only be withdrawn with leave of the court. This matter was considered by the Deputy Bailiff in April 2009,^[9] when the Minister’s request to withdraw an application for a care order in respect of a child of 16 was refused as not being in his best interests. This case is however also noteworthy for the actions of the court in asking to meet and hear from the child concerned, in person. The Deputy Bailiff and Jurats, in a confident and intuitive way, met the child in chambers, giving him the opportunity to confirm to them his wishes and feelings as ascertained by the children’s guardian. This is possibly the first time that the Royal Court has taken such a step in public law proceedings and puts Jersey judicial practice in this context in line with some of the most enlightened child law judges and practitioners in England.^[10] In March 2009, in a private law case, Re H, an intractable contact case also involving a teenage child, the Bailiff specifically requested the child to attend court to hear the judgment delivered. In such a case, where the child’s conduct may be almost as relevant as that of the parents, the effect of the involvement of the child within proceedings, and the child-focused way in which his participation was achieved, again shows that the Royal Court is prepared to consider very carefully its role in respect of children within the court process.^[11]

Decisions about placement of children—Re X

4  This care case, involving three badly abused and neglected children, initially appeared to be straightforward. It was accepted and agreed by October 2008, that the children had suffered significant harm. All the professionals involved in the care of the children, and the independent experts instructed to assess them agreed that the only option was for these very badly damaged children to be placed in specialised therapeutic units in England. The guardian and lawyers for all parties agreed that with this as the care plan the care proceedings would be uncontested and the children could be placed as soon as possible, maybe before Christmas.

5  Unfortunately, the issue of funding had not been considered, and, once it was, funding was not available. The children’s representatives applied for a judicial review of the decision not to fund the English placements. The Minister came back with the response that there had not been a decision by him and the Children’s Service apologised for not going through the correct process to obtain funding. A timetable was set for the Minister to make a decision on 19 December 2008, preceded by a meeting of the Placement Panel on 15 December and the Senior Management Team on 16 December. The guardian asked to be able to meet the Minister to make representations to him, and also to attend the meeting of the Placement Panel who made the recommendations to the Minister. This request was refused.

6  The decision made was not to fund the English placements but instead to set up therapeutic units in Jersey, which the Minister considered to be “in the best long term interests of the family” and which he also thought would be much cheaper. Neither the guardian nor the mother nor their representatives were given access to the reports and plans in respect of these hastily-prepared Jersey proposals. When they were, on 30 January 2009, neither the independent expert nor the guardian accepted that the Jersey provision would be in any way adequate for these children within timescales which would meet their needs.

7  An application for judicial review of the December decision was refused on 12 March 2009 with reasons given on 26 March 2009. The Royal Court was of the view that the guardian and his legal adviser should have been permitted to attend the Placement Panel meeting, and should have received the relevant documentation which the Minister relied upon in reaching his decision (the “Williamson Implementation Plan”). However, despite that, the Royal Courtconcluded that “on balance it would not be in the interests of the X children” to quash the Minister’s decision. The Royal Court also rejected the submission that art 19 of the C(J)L^[12] imposes an absolute duty on the Minister to “safeguard and promote” the interests of looked-after children, but rather a general duty and a discretion as to how that duty should be exercised, taking account of the financial resources available. In this respect the Royal Court relied on, and followed the decision in Re T.^[13] Also rejected was the notion that it was irrational for the Minister to decide upon a course of action which was contrary to the advice of all the experts in the case.

8  On 8 April 2009 the Jersey Court of Appeal overturned the decision of the Royal Court, quashing the decision of the Minister in respect of one of the children. (The Minister having already agreed to revisit his decision in respect of the other two children.) This was on the ground of procedural impropriety, in that the Minister ought to have disclosed the substance of the Williamson Implementation Plan to the guardian (and hence the experts) on the children’s behalf, in order to give them reasonable opportunity to consider and comment on it.^[14]

Care proceedings

9  Running alongside the judicial review proceedings were the care proceedings. Representations had been made for the two matters to be heard together, or at least to be dealt with by the same judge, but these were rejected. The private law aspect and the public law proceedings for judicial review were declared to be entirely separate and to be heard as such, Re S & W (Care Proceedings),^[15] being distinguished. The care proceedings were contested on behalf of the guardian and the mother on the basis that the care plan of placing the children in untried, hastily-planned units in Jersey which were not yet in existence was inadequate. The independent expert confirmed the guardian’s view of the Jersey provision, that everyone was trying hard, but with the best will in the world the units could not be good enough for these children in a timescale to meet their needs.

10  On the third day of the proceedings, the debate in the States, which was to determine whether or not the funding would be made available for the planned Jersey provision, was delayed for three months. As a result, the Minister agreed to reconsider his decision in respect of the two children whose placement in Jersey was entirely dependent on this funding. A final care order was made in respect of one child, and interim care orders made in respect of the other two.

11  When the decision in the care proceedings was handed down, just two days before the Court of Appeal hearing in the judicial review proceedings, it was clear that the Court in the care case had relied heavily on the judgment of the Royal Court in the judicial review. The guardian has since evinced an intention to appeal the decision in the care proceedings in respect of the final care order made in the event that setting aside of the Royal Court’s decision cannot be achieved consensually.

Disclosure within children proceedings

12  Re X and other recent Jersey cases have also confirmed the importance of full and frank disclosure within care proceedings, and the importance of keeping the children’s guardian involved at every stage. In the judgment in the judicial review proceedings, Bailhache, Bailiff stated that a duty to inform the guardian of proposals in relation to children in care is to implied from the duty to give due consideration to the guardian’s views. He went on to say that “the guardian cannot properly perform his duties unless he is taken into the Minister’s confidence and informed of all material considerations”.^[16] The Court of Appeal reiterated that duty on the part of the Minister,^[17] and one which is owed to the parents as well as the guardian.^[18]

Legal issues and wider application

13  The legal wrangling in respect of the X children is not yet at an end, although the guardian remains hopeful that the Minister will yet agree to the UK placements for all the children. There are however several significant legal issues thrown up by this case not all of which have been fully resolved by judgment of the Court of Appeal—

·         When should judicial review proceedings and care proceedings be heard together, or at least by the same judge?

·         How far does the duty to involve the guardian and the parents in decisions extend to the disclosure of documentation and attendance at meetings?

·         To what extent are decision-makers bound by unanimous expert opinion?

·         To what extent can finances be taken into account when fulfilling a statutory duty to “safeguard and promote” the welfare of looked-after children?

·         Should the findings as to the quality and suitability of a care plan be affected by financial considerations?

14  The Court of Appeal judgment was issued as this article went to print, and detailed analysis will be for another day.

Application of the Children Rules 2005 in the Family Division of the Royal Court

The problem

15  It has become apparent over recent months that there appears to be some confusion over the correct procedure to be adopted in applications under the C(J)L (and also to some extent under the Matrimonial Causes (Jersey) Law 1949). There seems to be a lack of familiarity with the Children Rules 2005, and a tendency for both lawyers and the judiciary to remain loyal to general civil litigation procedures and particularly to the Royal Court Rules (RCR), rather than use the rules which have been specifically crafted to deal with the specialised area of family law. Indeed, at a hearing in the Family Division of the Royal Court in December 2008 (3 years 4 months after the Children Rules came into force) a judge of the Royal Court stated that he had not heard of the Children Rules.

Powers under the 2002 Law and 2005 Rules

16  Under C(J)L 2002, art 10, orders can be made for a contact order,^[19] a prohibited steps order^[20] (which is injunctive in nature e.g. preventing any person having contact with a child; the child being removed from the jurisdiction or consent to an operation etc.), a residence order^[21] and a specific issue order^[22] (i.e. to determine a specific question such as where a child should be educated; whether or not the child should have a blood transfusion etc).

17  Under art 12(7) the court can include in any art 10 order how it is to be carried into effect and may make such incidental, supplemental or consequential provision as the court thinks fit. In addition to these wide powers, art 76 preserves the inherent jurisdiction of the court to make orders in relation to children (save in specified circumstances) and r 31(1) further provides that “the Bailiff may issue directions in exercise of the inherent jurisdiction of the Court to regulate its own process.” There is therefore no need, for example, for an injunction brought by Order of Justice and pursuant to the inherent jurisdiction of the Court to enforce an order for contact. The C(J)L and Children Rules, supplemented by the inherent jurisdiction and Practice Directions make adequate provision without recourse to other forms of proceedings.

Procedure to be followed

18  The procedures to be followed in applications under the C(J)L are laid down in the Children Rules 2005. RCR 6/2^[23] (forms of proceedings in the Royal Court) is expressly subject to any other enactment and therefore applications falling under the C(J)L have to be brought under the Children Rules, and not by way of Representation, Order of Justice or Summons as is otherwise set out in the RCR. If this were not to be the case, then there would be little point in having the Children’s Rules at all. There is only limited provision in the Children’s Rules for the RCR to apply in children’s proceedings, namely, r 30 dealing with periods of time (specifically applying rr 1/3 and 1/4 of the RCR.)

19  An application for an order in existing proceedings under the C(J)L must be made on Form C2 (see r 7(2) and Schedule 2).^[24] This includes an application for an order (r 7), a direction (r 13) and an ex parte application (r 8). An application to ensure compliance with an existing order for contact would, for instance, have to be on Form C2 rather than by way of Order of Justice containing injunctions.

20  There are several other reasons why this is important, and why an application for an injunction under the inherent jurisdiction by way of Order of Justice is wrong in principle:

1       An Order of Justice converts private children’s proceedings into public proceedings which is clearly contrary to the ethos of the C(J)L, where all hearings are in private unless the court otherwise directs (r 17(7)(b));

2       There is an increase in costs because a new set of free-standing proceedings is created by an Order of Justice (which is both the order of the court and an originating process) and this is contrary to the overriding objective of the Children Rules, r 4(2);

3       When considering a free-standing Order of Justice in relation to children, there should still be an obligation to consider the welfare of the child (which remains paramount under art 2(1) of the C(J)L and also is included in r 4(2)(a)(iii) of the Children Rules) but such a fundamental consideration can be lost sight of because the court has already broken itself free of the constraints of the relevant Children’s enactments and is proceeding instead under conventional litigation forms of originating process;

4       Under the RCR there is no provision for the views of a Court Welfare Officer to be taken into account in proceedings brought by way of Order of Justice; this being dealt with for instance under r 12 and elsewhere in the Children’s Rules.

Current concerns in practice

21  On 26 February 2009, in the B case,^[25] an application for an order was made on Form C2 by the applicant, and a date fixed for a hearing before the Registrar on 3 March 2009. The respondent also made an application on Form C2 on 26 February 2009 for an order, requesting an earlier hearing date before the Royal Court. A hearing was fixed for 1 pm on 27 February 2009. Subsequently, in addition to the Form C2, an Order of Justice was filed.

22  Despite objection, the Order of Justice was signed in the exercise of the Court’s inherent jurisdiction and issued in preference to an order under the Children Rules. The Order of Justice was further in breach of Practice Direction RC 05/08, it is submitted, in that a penal notice was not included.^[26] Had the order not been complied with it is arguable whether or not it would have been enforceable by way of contempt proceedings. (There appears to be no Jerseyauthority on the point.)

23  Interestingly, and arguably a lacuna in the Children’s Rules, there is no specific provision made for the requirement of a penal notice in orders made in children’s proceedings for the purpose of their enforcement. In this respect, English procedure (which may here be being adopted in children’s proceedings in Jersey) is that it is generally a prerequisite for an application for proceedings for contempt of court for the alleged contemnor to have been warned as to the consequences of a breach of any injunctive order. Exceptions apply (for instance where the person was present when the order was made) but the position in Jersey is not addressed in any rules of procedure; enjoying merely a mention in the above Practice Direction and also in the prescribed form for Mareva injunctions. (See Practice Direction RC 05/24.)

24  In England, it is ordinarily inappropriate to attach a penal notice to contact and residence orders but there remains a discretion to do so to a defined order capable of being enforced by committal.^[27] Failure to add a penal notice may mean that contempt proceedings cannot subsequently be brought. This matter now appears to have been addressed by the Royal Court in March 2009^[28]when, in the case of a defined contact order, following a history of previous breaches, the consequences of further non-compliance were explained orally in court and recorded in the Act of Court.

Jersey Courts Advisory Service

25  Along with the changes detailed above, Jersey child law practice directions are being drafted to provide a framework for the appointment of children’s guardians, to give guidance in respect of the role of the guardian, and an indication as to the access the guardian should be afforded to Children’s Service records. In January 2009, the first steps were taken to establish a Jersey Courts’ Advisory Service (CAS). Initially this organisation is only assisting the court in the appointment of court welfare officers and guardians in private law cases, with children’s guardians in public cases currently being appointed from the NSPCC. The intention is that in time, a fully trained and experienced team in Jersey will enable the majority of appointments of guardians and court welfare officers to be of Jersey officers appointed through CAS. Similar arrangements for a panel of specially trained and experienced advocates and for the training of the judiciary should also be made.^[29]

Conclusion

26  The impact of the recent developments in child law, in the protection of children’s rights, their protection and the promotion of their welfare has been significant in the judicial arena in recent times.^[30] The progress being made in this significant area of law is perhaps viewed with dismay by some used to more traditional approaches, and the changes may take a little coming to terms with. But rather than being wary of the direction of this progress, judges and lawyers should be immensely proud that child law in Jersey has moved on with such velocity since the first appointment of a children’s guardian together with a child’s lawyer in July 2008.

Barbara Corbett is Head of Family Law at Hanson Renouf and is a member of the English Law Society’s Children Panel of specialist child law solicitors.