Recovery order - reasons for dismissing the application
[2022]JRC105
Royal Court
(Samedi)
10 May 2022
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Before :
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J. A. Clyde-Smith O.B.E., Commissioner, and
Jurats Ronge and Austin-Vautier
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Between
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The Minister for Children and Education
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Applicant
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And
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A (The Mother)
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First Respondent
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And
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B (The Father)
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Second Respondent
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And
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CC (The Child)
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Third Respondent
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IN THE MATTER OF CC (RECOVERY ORDER)
AND IN THE MATTER OF THE CHILDREN
(JERSEY) LAW 2002.
Advocate P. F. Byrne for the Applicant.
Advocate C. G. Hillier for the First
Respondent.
Advocate D. C. Robinson for the Second Respondent.
Advocate M. Godden for the Third
Respondent.
judgment
the COMMISSIONER:
1.
On the
afternoon of the 28th April 2022, the Minister applied for a
Recovery Order under Article 45 of the Children
(Jersey) Law 2002 (“the Children Law”). Because of the circumstances that
transpired during the course of the hearing, the application was dismissed, and
we now set out our reasons.
2.
By way of
background, a final care order was made in respect of the Third Respondent
(“CC”), aged 10, on the basis that neither the First Respondent
(“the Mother”) nor the Second Respondent (“the Father”)
had the capacity to parent him. He had
been living with the Father and the care plan was for him to be placed with
long term foster parents. The full
background and reasons for the making of the care order are contained in the
Court’s judgment of 20th September In the matter of CC
(Care proceedings) [2021] JRC 232.
3.
That care
plan did not materialise, with CC’s placements with the foster carers
breaking down. He was therefore
placed by the Minister at Home 1 [redacted] where he still resides. [Redacted].
4.
[Redacted]
5.
The
catalyst for the application for a Recovery Order is that CC ran away from Home
1 on 15th April 2022 to a private residence and refused to return to
Home 1 despite every effort to persuade him to do so. His presence at the place the place he
ran away to was detrimental to the welfare of other children there, and his
behaviour generally problematic.
[Redacted].
6.
The
chronology in the statement of Q, the team manager in the Children In Care
Team, shows that CC has left Home 1 on previous occasions, [redacted]. He is aware and will vocalise that no
member of staff nor the Mother can touch him or make him leave the place where
he attends. He is apparently aware
that he cannot be moved from there unless the police have a Recovery Order and
he thinks that such an order is only valid for one time use. He is also aware that an Emergency
Protection Order cannot be used to return him to the care of the Minister at Home
1, as he is not seen to be at immediate risk of harm in the other property.
7.
The
evidence of Q is that CC appears to want to control his environment and
dominate when he can. He is
becoming more defensive, with a much higher propensity to engage in defiant
behaviours, as well as aggressive exchanges with professionals, who he
increasingly sees as without power or influence and not worthy of trust or
respect. His absconding heightens
the risk of this becoming learnt behaviour and is reinforcing his perception
that no-one can stop him from doing what he wants to do.
Recovery Order
8.
Article
45(1) of the Children Law provides as follows:
“45 Recovery of
abducted children
(1) Where it appears to
the court that there is reason to believe that an offence under Article 44 has
been committed or that a child described in paragraph (a) of that Article has
run away or is missing it may issue a recovery order.”
9.
Article
44(a) provides:
“44 Abduction of
children
A person who, knowingly and without
lawful authority or reasonable excuse –
(a) takes a child who is
in care, the subject of an emergency protection order or in police protection
away from the person who for the time being has care of the child by virtue of
such order or protection;
(b) keeps such a child
away from such person; or
(c) induces, assists or
incites such a child to run away or stay away from such person,
shall be guilty of an offence and
liable to imprisonment for a term of 6 months, and to a fine of level 3 on the
standard scale
10. CC is a child so described in that he is in
care, but we are not concerned here with abduction, but with his running away
from Home 1 to a private residence.
11. As to the effect of a Recovery Order Article
45(2) provides:
“(2) A recovery order
–
(a) operates as a
direction to any person who is in a position to do so to produce the child on
request to any authorized person;
(b) authorizes the removal
of the child by any authorized person;
(c) requires any person
who has information as to the child’s whereabouts to disclose that
information, if asked to do so, to any authorized person; and
(d) where it appears to
the court that there are reasonable grounds for believing the child is on
premises specified in the order, authorizes a police officer to enter such
premises and search for the child, using reasonable force if necessary.”
12. It might be argued that Article 45(2)(d) only
authorizes the use of reasonable force to enter premises where a child is
believed to be and to search for the child, but not to remove the child. The
English court construing equivalent legislation held in the case of Re R (a
Minor) (Recovery Order) [1998] 3 FCR 321, that when the Recovery Order is
made the use of reasonable force authorized by the order is not limited to the
process of entering the premises and searching for the child, but necessarily
extended to the removal of the child.
As Wall J said at page 15, and we respectfully agree, if a police
officer is entitled to enter premises by using force, it would negate the whole
purpose of any order if the child were to refuse to accompany the police officer
and the police officer could not use reasonable force to remove the child. Quoting from the judgment:
“Equally here the local
authority made it clear to me, and I accept, that the use of reasonable force
to remove R to his school or to foster parents was a matter of last
resort. However, if reason failed,
and R simply refused to budge, reasonable force would have to be used. In my judgment, the exercise of parental
responsibility can, in certain circumstances, justify the use of reasonable
force. Thus, for example, if a
child like R refuses to go to school, a parent exercising parental
responsibility has the right, in my judgment, to pick him up and take him to
school in a car or bus. Such
actions are contrary to the child’s wishes, and clearly depend on the
parent’s judgment, as well as age, and degree of physical maturity of the
child. But that the parent has such
a right seems to be unanswerable.”
13. Article 45(3) provides that a Recovery Order
can only be made on the application of any person who has parental
responsibility by virtue of a care order, and the Minister therefore has
standing to make the application.
14. The Minister recognised that once removed and
returned to Home 1 under a Recovery Order, CC could simply run away again to
the same place where he was previously.
He appears to think that the Minister would then have to make another
application to the Court convening the requisite parties. The Minister therefore sought to have
the duration of the Recovery Order extended beyond the immediate recovery of CC,
to future recoveries should CC return again to the same place. To ensure no abuse of process the order
would be limited in time to seven days.
15. Advocate Byrne argued that the Children Law
provided no prohibition in respect of this approach and in practical terms it
would give effect to the clear and obvious intention behind the Recovery Order;
to ensure that CC is cared for in accordance with the Children Law. The absence of providing a time limited
ability to repeat the recovery under the existing order would be to enable him
to continue living outside the care of the Minister until the matter could be
returned once again to the Court and the process repeated again ad
infinitum. In effect, the
application would be easily overcome, frustrating the efforts of all concerned
and re-enforcing CC’s sense of empowerment, which in itself would cause
harm.
16. There is little authority on the duration of a
Recovery Order. In Re P ( Adoption: Breach of care plan) [2004] EWCA Civ
355, reference was made in paragraph 7 to a local authority having to apply for
successive Recovery Orders against a father withholding a child after contact.
17. Hershman and McFarlane: Children Law and
Practice states at paragraph 761:
“A recovery order is not
time-limited and, therefore, may last until such time as the child is
recovered”.
18. No authority is cited to support this. The Judicial College Family Court
Bench Book states at paragraph 40:
“A recovery order is open
ended. It remains in force until a
child is recovered or the order is discharged.”
19. There is no local authority, but Advocate Byrne
referred to the following extract from a file and parties only judgment:
“A preliminary question was
raised as to the duration of a recovery order. In our view, in the light of the
dicta of the court in Re P (Adoption: Breach of Care Plan) [2004] EWCA Civ 255
at page 1112), and in the absence of any authority to the contrary, a recovery
order lasts until it is executed and not beyond that time. That seems to us to accord with
principle and to be in accordance with human rights.”
20. Advocate Byrne very properly drew to our
attention that it is the wording of Article 45(d) itself which arguably creates
the greatest hurdle to the Court making the kind of extended order he was
seeking namely to authorise future recoveries, albeit over a relatively short
period. We are dealing here with
authorising the use of force and when making a Recovery Order the Court has to
have reasonable grounds for believing that the child “is on
the premises specified” (our emphasis) not may in the future be
on the premises specified. The
Court makes the order on the basis of the circumstances prevailing at the time
the order is applied for, not circumstances that may arise in the future which
may be different. There might be
good reason why the child has on some future occasion gone to such premises.
21. Advocate Hillier for the Mother supported the
making of the kind of extended order sought by the Minister. Both Advocates Robinson and Godden
submitted that the Court had no power to do so. The short hearing had taken place at a
day’s notice and it was not possible, therefore, to have the matter fully
argued.
22. Advocate Godden was appointed to represent CC,
and he had spoken to the Guardian appointed in the earlier proceedings who had
in turn spoken to CC. He was
reported to have been very abusive to her, using appalling language. He said he had his rights and no one
could tell him what to do.
23. CC had indicated earlier on the day of the
hearing and that he would return to Home 1 at around 3pm when a social worker
(unconnected to his case) would be visiting him. There was no certainty that he would do
this, but at around 3:55pm the Court was informed that he had in fact returned
to Home 1. All counsel submitted
that this removed the jurisdiction of the Court to make any Recovery Order as
the Court no longer had reasonable grounds for believing that he was at the place
he had run away to. CC was reported
as saying that he was going to play with his PlayStation and have macaroni
cheese for supper, but as Advocate Hillier pointed out somewhat ruefully, CC
could return to the place where he had run away to at any point and that is
precisely what he did the next day.
24. The Court was very sympathetic to the extended order
that had been sought by the Minister. It cannot be right that a ten-year-old
can manipulate the professionals and the Court in this way. It was important for him to learn that
whilst he has rights, there are boundaries that he will not be permitted to
cross, and ultimately, and as a last resort, the Court will authorise the use
of reasonable force to enforce those boundaries. It was not for CC to decide where he
should live and, difficult as the circumstances were, it was not possible for
him to live where he wished to.
25. We will leave open for fuller argument on
another occasion whether in the circumstances of repeated running away from the
Minister’s care to the same place, an extended order of the kind sought
by the Minister could properly be made, but because at the point when the Court
was about to make a Recovery Order, he had in fact returned and in the light of
the unanimous view of counsel that the Court therefore lacked jurisdiction to
make a Recovery Order, the application was dismissed.
26. Advocate Byrne drew our attention to Rule 8 of
the Children Rules 2005:
“8 Commencement of certain
proceedings ex parte
(1) An application for –
(a) an Article 10 order;
(b) an emergency protection order;
(c) leave to remove a child from the jurisdiction;
(d) a recovery order; or
(e) a warrant under Article 78,
may be made ex parte in which case
the applicant must file the application in the appropriate Form in Schedule 2
with the Bailiff.
(2) In the case of an application for an Article
1-10 order or an emergency protection order, the applicant must serve a copy of
the application on each respondent within 48 hours after the making of the
order.
(3) If the Court refuses to make an order on an ex
parte application, it may direct that the application be made inter
partes.”
27. In the circumstances of repeated running away,
it would therefore be open to the Minister to apply for another Recovery Order ex
parte and for that order to be made without convening another hearing. It would, of course, be a matter for the
Judge in receipt of the ex parte application to decide on the basis of
the information provided, but in our view, where there had been a recent
hearing in which the child had been represented, and his views and feelings
were known, and where the circumstances were the same, the granting of an order
ex parte could well be justified.
That may assist the Minister and the Mother, but we accept that it would
not prevent repeated running away and recoveries.
28. Advocate Robinson emphasised the importance of CC
being involved in any proceedings concerning him, a point emphasised in Re R
at page 18, but in that case R (who was aged 13), had not been represented at
the hearing. The Court found in any
event that R’s wishes and feelings had been fully taken into account. We note, in passing, what Wall J said at
page 18, namely:
“The local authority also
make the point, however, which I think is a strong one, that it is wrong to
give R the impression that he is the sole master of his fate and that the local
authority can stand by whilst he makes decisions which are plainly contrary to
his interests, however strongly he may feel about them.”
29. CC clearly has the impression that he is the
sole master of his fate. In this
case, CC was represented at the hearing and his feelings were communicated to
the Court. If on repeated running
away to the Mother’s home the circumstances remain the same, we can see
no injustice in a Recovery Order being made ex parte, but that will be a
matter for the Judge receiving the ex parte application.
Authorities
Children (Jersey) Law 2002.
In
the matter of CC (Care proceedings) [2021]
JRC 232.
Re R (a Minor) (Recovery Order)
[1998] 3 FCR 321.
Re P ( Adoption: Breach of care plan)
[2004] EWCA Civ 355.
Hershman and McFarlane: Children Law
and Practice.
The Judicial College Family Court
Bench Book.
Children Rules 2005.