Jersey Unreported Judgments

[2009]JCA083

COURT OF APPEAL

5^th May 2009

Before     :

M. C. Birt, Deputy Bailiff, President; The Hon Michael Beloff, Q.C., and; J. V. Martin, Esq, Q.C.

IN THE MATTER OF THE X CHILDREN

Advocate T. V. R. Hanson as Guardian ad litem.

Advocate H. Sharp for the Minister for Health and Social Services.

Advocate C. Hall for Miss X.

JUDGMENT

beloff ja:

INTRODUCTION

1.        This is an appeal against a decision of the Royal Court (Samedi Division) dated 26^th March 2009 the Bailiff presiding ("the Judgment") refusing to grant a judicial review of the decision of the Minister of 19^th December 2008 ("the Decision") to decline to provide the funding necessary for the residential placement of 3 young children aged 12, 11 and 9, A, B and C,  victims of physical and sexual abuse and neglect  ("the X children") at institutions in England which specialize in the treatment and rehabilitation of severely damaged children.  The decision was that the X children should be looked after in Jersey in residential accommodation developed specifically for them and other similarly circumstanced children on the basis that "it was in the best long term interests of the family".

2.        The material before the Court confirms that all three children have, in their brief lives, suffered much and so need much, and that how best to seek to mend their fractured personalities and give them a chance of reintegrating into society raises questions to which there are no easy answers.

3.        At the conclusion of the hearing the Court announced that it had quashed the decision in relation to A on grounds of a breach of obligations of procedural fairness. It did not quash the decision in relation to B and C since the Minister had already agreed, in the light of changed circumstances, to reconsider the decision in respect of them; the grounds of appeal, however, relate without differentiation to all 3 cases. These are our full reasons.

THE GROUNDS OF APPEAL

4.        The Grounds of Appeal made a frontal attack on the Decision - (and in consequence on the Judgment) engaging all the major grounds of judicial review, first illegality, second irrationality, and third procedural irregularity (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 370 per Lord Diplock at p. 410). 

5.        In essence Counsel for the appellants alleges:-

(i)        As to the first; that the Royal Court misinterpreted the governing law in Article 19(1)(a) of the Children (Jersey) Law 2002 which, if properly construed, imposed a duty and did not merely confer a discretion; in particular it did not allow a decision taken thereunder to have regard to the relative financial costs of the English and the Jersey placement options. 

(ii)       As to the second; that the expert and professional opinion was unanimous in favour of the English option; and that the Minister had placed too much emphasis on the cultural background of the X children and long term future as Islanders and too little on their immediate need for the best therapeutic intervention wherever it was to be found.

(iii)      As to the third that the Guardian ad litem and X children's lawyers:-

(a)       were excluded from the critical meeting of the Placement Panel of 1^st December 2008 whose recommendation in favour of the Jersey option conditioned the Minister's own decision; and

(b)       were also denied sight of the Williamson Implementation  Plan, the basis for the proposed creation of  specialist child care units in Jersey equivalent to those in the United Kingdom, which was also fundamental to the Decision; and

(c)       were denied the opportunity to make oral representations to the Minister at the time at which he took the Decision.

BACKGROUND SYNOPSIS

6.        We can gratefully adopt the outline facts from the judgment of the Royal Court.  On 26th March 2008 interim care orders were made by the Royal Court Family Division (the Family Division) and those interim orders were renewed periodically since that date until the most recent judgment of 6^th April 2009.  The X Children were placed in different children's homes in the Island.  In those proceedings Mr Tim Barette of the NSPCC has been appointed as Guardian ad litem of the children and we shall refer to him as 'the Guardian'.

7.        A number of reports commissioned in the context of these care proceedings were unanimous in their conclusions that England, not Jersey was the appropriate place for treatment.  By way of example on 6th June 2008 Dr Miriam Silver, Consultant Clinical Psychologist stated in her report:-

"With regard to placement choice and availability, as a professional working in England where a wider range of placement options is available, I find it difficult to understand that young children can be placed in children's homes, rather than family foster placements or specialist therapeutic residential provision. In England it would be very unusual for children under the age of 12 to live outside of a family setting, and this would normally only be done in extenuating circumstances and for the purpose of completing intensive short-term work with them. I would therefore see the need for finding placements that fully meet the children's needs as being of a greater priority than keeping the children on the Island of Jersey, even if this reduces the frequency at which contact with other family members is possible."

8.        In July 2008 Mr John Butterfield_: Senior Educational Psychologist (Vulnerable Children) reported that in relation to each of the X Children that there was a high level of educational need requiring a considerable amount of specialised intervention.

9.        On 2nd October 2008 a meeting took place between Ms Jemma Waugh, a social worker who had recently taken over responsibility for the family, Mr Butterfield and Dr Bryn Williams, Consultant Clinical Psychologist, to discuss placement options for the X Children. Their shared view was that each child required a highly specialised therapeutic package of residential care that was not currently available in Jersey.

10.      In the meantime, enquiries had been made to identify suitable placements for the X Children. The steps taken were summarised in an affidavit sworn by the Guardian on 6th November 2008 in the following terms:-

"In trying to find appropriate placements for these children the social worker, Jemma Waugh has made extensive enquiries. From these she, in conjunction with Dr Bryn Williams from CAMHS and John Butterfield, an educational psychologist, identified several possible placements in England. Ms Waugh and Dr Williams travelled to England and spent some time visiting each unit to assess if any would be suitable for the children and their specific and extensive needs. They concluded that the Di Capo unit in Shropshire would be a very good placement for A and his sister B. This is a small unit catering for 6 children at a time. The staff have specialist skills, and are experienced in working with children who have been victims of sexual abuse and who require assistance to develop emotionally and to recover from traumatic early life events. They also concluded that the Windows Unit in Kent, which caters for younger children, would be a very suitable placement for C.  With C it is hoped that she will be able to move on from a residential unit to specialist foster care by the time she is of secondary school age.

I then visited all the potential placements, independently of the Jersey professionals, to assess for myself the best places for the children to go to. I also concluded that the Di Capo and Windows were very good facilities which would be able to meet the children's needs. There are no placements in Jersey which will meet their needs. The children are currently placed in children's homes in Jersey which do not have the specialist resources the children need. If they remain where they are, their position is likely to worsen considerably. Any delay will be damaging.

It is very important that the children are moved to their new homes as soon as possible. Their mother, for whom it has been very difficult to accept that her children will need to leave the island, has now accepted, with the assistance of the Children's Service and a great deal of support and advice from her legal adviser, Sarah Brace, that the children should go. The children need to be prepared for the move. The mother needs to be able to support them, and wish them well, if the placement is going to have the best chance of success. This was being planned and arranged until Tuesday of this week when we heard that no further steps could be taken to progress this vital move for these children, because funding for their placement had not been approved.

This is a very worrying turn of events. If there is a delay in moving towards placement, the places which have been reserved for the children will very likely be lost.  Much work is required to facilitate the moves for the children, and while it is possible that the people in charge of each placement could conclude, after they have met and assessed the children, that they are not suitable for those units, nevertheless, these are the best chances the children have to regain their childhood. If funding is not to be made available for these placements the Children's Service care plan will need to change."

11.      On 5th November 2008 the Head of the Children's Service, Mr Anthony Le Sueur, was notified by e-mail from the Finance Director of the H&SS Department that:-

"the level of funding to place these children into a UK placement as is being proposed is not available".

The Finance Director warned that the Department must live within the resources allocated to it, or risk breaching the Public Finances (Jersey) Law 2005.

12.      On the same day this information was given to a regular Departmental planning meeting and was relayed to the Law Officers' Department.

13.      On 6th November 2008 the Crown Advocate passed on the information to the Family Division which was concerned to learn that the plan to which everyone had been working for the benefit of the X Children appeared to be derailed. 

14.      On 7th November 2008 a meeting took place at which the Minister, (then Senator Shenton) was informed that the money for the placements could not be found from within existing resources, but that the Department supported the move, threatened by Mr Hanson on behalf of the Guardian, to seek a Judicial Review of the decision not to provide resources for the placements.  The minute records that the Minister was concerned that the Court might have power to compel an action that would lead to a major departmental overspend.  

15.      By a letter of 7th November 2008 Ms Waugh was advised by Dr Miriam Silver that she remained:-

"of the opinion that the older three children need specialised therapeutic residential provision off the Island.  I would agree with local professionals selection of placements proposed and would be concerned that keeping them where they are amounts to little more than warehousing and would be a financially motivated decision that is not in the best interests of these children, who need input now to ameliorate the impact of experiences before they reach adulthood".  

16.      On 13th November 2008 an application for Judicial Review was filed.

17.      On 17th November 2008 Senator Shenton agreed to a meeting which was scheduled for the following day. A full note was prepared for him by Mr Hanson's office.

18.      On 18th November 2008 the Minister cancelled the meeting. 

19.      On 20th November 2008 the Solicitor General wrote to the Bailiff in relation to the pending application for Judicial Review stating that no final decision had yet been made by the Minister as to whether funding for placements in the UK was or was not available.

20.      On 20th November 2008 Mr Anthony Le Sueur filed a statement in the proceedings before the Family Division in which he explained that if the Children's Service did not have sufficient funds available in their budget for particular placements (as was the case here) he would make a submission to the Health and Social Services Placement Panel to be accompanied by a business case.  The Placement Panel, if minded to support it, would refer the submission on to the senior management team ("SMT") consisting of the Chief Executive, Deputy Chief Executive, Executive Directors and Directorate Managers. If the SMT decision was favourable, the Minister would be informed, and he would request the Treasury and Resources Minister to lodge a proposal before the States seeking additional funding.

21.      On receipt of this document, Mr Hanson decided to pursue his application for leave to apply for Judicial Review.

22.      On 25th November 2008 the application for leave to apply for Judicial Review was heard by the Bailiff and adjourned on the basis that no reviewable decision had yet been made by the Minister.

23.      The professional team (i.e. those working for and within the Children's Service) remained convinced that the best and only suitable placements for the X Children lay outside the Island.  A business case in support of that aim was developed and was to be considered by the Placement Panel on 15th December 2008.

24.      On 11th December 2008 an Assistant Legal Adviser in the Law Officers' Department wrote to Mr Hanson, on behalf of the Guardian, inviting written representations which could be taken into consideration by the Minister when he made his decision, to be provided by 17^th December 2008 at the latest.

25.      On the same day Mr Hanson's firm replied stating that written representations would take too long, given the wealth of documentation already available, and that the Guardian wished to meet the Minister personally.

26.      On 15th December 2008 the Assistant Legal Adviser renewed her invitation to Mr Hanson to submit written representations to the Minister. She also stated that any such representations could be placed before the Placement Panel which was meeting at 4.00pm that day.

27.      On the same day Mr Hanson's firm replied as follows:-

"This is the first opportunity that has been afforded to the Guardian or ourselves to be involved with this afternoon's meeting. The Guardian is present in Jersey today, and we would both of us (or just the Guardian if preferred) like to be able to attend the meeting. Please confirm that this will be possible. Given the lack of notice of the possibility of our contributing to the meeting, we are not able to provide written representations, which, in any event, are not appropriate as queries may need to be dealt with, and these will be much more expeditiously dealt with by attendance at the meeting".

28.      The Assistant Legal Adviser replied immediately to state that neither the Guardian nor his legal advisers were invited to attend the meeting of the Placement Panel. The opportunity given was only to make written representations. Mr Hanson's firm protested, but to no avail.

29.      On 15^th December 2008 the meeting of the Placement Panel duly took place. Those present were Mr Richard Jouault (Deputy Chief Executive), Mrs Marnie Baudains (Directorate Manager for Social Services), Mr Ian Dyer (Directorate Manager for Mental Health Services), Dr Richard Lane (Medical Director), Ms Rose Naylor (Director of Nursing Governance), Mr John Cox (Service Manager, Adult Services), and Ms Sarah Purgal (Deputy Finance Director). Mr Anthony Le Sueur Manager of the Childrens Service made his presentation. The recommendation of the business plan presented by Mr Le Sueur was that the only option able to meet the needs of the X Children within a reasonable time scale was that involving placements outside the Island.

30.      According to the minute of the meeting, the following discussion took place:-

"Tony Le Sueur presented the overview business case, placement plans, visiting schedules, RAP forms, and Statements of Purpose and Function for the two proposed UK placement units (Di Capo and Windows.) These were for the three eldest of seven siblings from Family X, for whom the Children's Service are seeking full care orders from the Family Division of the Royal Court.

Discussions centred around what provision (if money was not an issue) "best met" the needs of each and all of these three children. This took into account their individual needs and the recommendations made by the professionals involved; the risks associated with each placement option; the likely time-scales within which each option could be achieved - taking particular note of current developments within Children's Services; the sustainability of each option; how quality assurance could be verified and ensured; what each option meant for the longer term future of each child; the impact of "delay" and how this may feature as an issue, not solely at the outset but at various points over the coming years.

Members of the Panel asked for clarification on the current and proposed residential developments and on how these could be tailored to meet the specific needs of these three children. Tony Le Sueur explained that much work had already been done to identify two small care settings which could be utilised by up to three children in each and which, it was believed, could be set up and be running by the end of the first quarter of 2009. He confirmed that these arrangements could be prioritised for the needs of these three children. Discussions ensued on the manpower and financial resources and the practical arrangements, which needed to be considered to achieve either of the outlined options.

Alternative 1 - Development of this specific local provision for the 3 children: This will require a re-modelling of residential services, which is currently under way, and is outlined in more detail in Recommendation 7 of the Williamson implementation Plan. This would require essential investment of £223,000 per annum for an 'Intensive Support Team^' that will address the needs of all new placements - thus ensuring placement stability for these children; additional therapeutic services to be established, outlined in more detail under Recommendation 8 of the Williamson Implementation Plan at a recurrent cost of £485,000 per annum - with £120,000 of this sum being absolutely essential to supporting these three children.

Alternative 2 - Send the 3 children to specialist 'therapeutic' placements in the UK: Cost of this specialist care, for a minimum period of 3 years, is an annual cost of approximately £750,000, as identified in the overview business case. The arguments for this option were well documented and the key issues appeared to be: specialist opinion on placement suitability; immediate availability of therapeutic services in an appropriate environment; all services on one site; proven track record of meeting identified high level needs; the necessary process of acceptance for placement both by the 'unit' and by the individual child; likelihood of delay at any point of transitions between Jersey and UK; ensuring quality assurance at 'long distance'; feasibility of placement stability being 'guaranteed' given that these were both organisations whereby sustainable funding may be dependent upon maintaining occupancy levels; implications for the long term future of the children in terms of re-integration into the island community; practical implications of visiting and contact arrangements; issue of the real, or perceived 'delay' that may be caused by pursuing the first alternative.

After deliberation, and giving due regard to the needs of each individual child, the views expressed by professionals including the Guardian, the risks imposed by both alternatives, and the costs involved IT WAS RESOLVED that the Panel would make a recommendation to SMT that local provision be established for the 3 eldest children, it being determined that this is the most sustainable long term solution. IT WAS FURTHER RESOLVED to recommend to SMT that H&SS commits to funding the residential services and new therapeutic service through funds which should become available under the Williamson Implementation Plan in April 2009, and if the funding is not forthcoming, that the Minister for H&SS will approach the Treasury Minister for the £343,000 essential service development funding required. If this is not forthcoming, the panel recommend that the Minister for H&SS approach the Treasury Minister for the £750,000 funding required to place the 3 children in UK specialist placements."

31.      On 16th December 2008 the SMT of twelve senior departmental officials convened under the chairmanship of Mr Pollard, Chief Executive. Mr Jouault, who had chaired the meeting of the Placement Panel on 15th December was amongst those present.  The opening part of the minutes record:-

"The background of the case was summarised and the consideration of the most appropriate placement of the 3 older children from this family along with the outcome of the Placement Panel Meeting of 15th December 2008. One option recommended by the Guardian ad litem, is the placement of each child for therapy in UK specialist centres. This option would cost approximately £750,000 per annum, which, if paid for by HSSD, would represent a significant overspend for the Department.  MP pointed that this would be an illegal action. The Royal Court has requested that HSSD agree an appropriately funded care plan for each child by Friday 19th December 2008. Failure to produce a plan which is acceptable to the court may lead to a Judicial Review."

The meeting discussed the issues for half an hour (according to the minutes) and agreed with the conclusions of the Placement Panel.

32.      Later on the same day, the newly appointed Minister of Health and Social Services, Senator Perchard received a briefing from Mr Jouault on the outcome of the meeting of the Placement Panel which had been endorsed by the SMT. In the light of his impending departure from the Island on holiday, the Minister delegated his powers to make a final decision on the matter of the X Children to Mr Pollard, the Chief Executive.

33.      On 18th December 2008 Mr Hanson's firm submitted the representations of the Guardian for consideration by the Minister on 19th December 2008. The representations were made without prejudice to Mr Hanson's contention that the Guardian and his legal advisor were entitled to make oral submissions to the Minister. Mr Hanson's firm submitted that the Minister was under a duty imposed by Article 19 of the Children (Jersey) Law 2002 to safeguard and promote the welfare of the children. The unqualified and unanimous view of all the professionals involved with the X Children, they contended, was that the only way in which their welfare could be safeguarded was through English placements. It was further submitted that the Minister was under a legal obligation to fund these placements by one means or another.

34.      The representations from the Guardian dated 18^th December 2008 reiterated his strongly held view that the best option for the X Children remained placement in the UK:-

"The development of appropriate services in Jersey is clearly to be welcomed, but establishing specialist units that can qualitively match off-island placements such as Di Capo and Windows Children's homes [the proposed UK placements] will take time and these children cannot wait [609]."

The accompanying letter from Mr Hanson's firm submitted:-

"There are no suitable facilities, and if placements were cobbled together for them, apart from not being in the children's interests, the costs of all the extra ad hoc provision is very likely to exceed that of the UK placements in any event, but still not serve the children's needs [601]."

35.      On 19th December 2008 Mr Pollard in the exercise of the powers delegated by the Minister considered the whole matter. His initial consideration involved a reading of the Minister's brief which included the relevant provisions of the Children Law, a letter from Mr Robert Tucker, an independent social work consultant dated 31st March 2008, the report of Dr Silver dated 6th June 2008, (from which we have cited an extract), the report of Mr Butterfield dated 22nd July 2008, and the report of Ms Carol Milnes, chartered educational psychologist dated 3rd July 2008, together with other documents placed before the Placement Panel on 15th December.  Mr Pollard met with a number of officials during the morning and then retired to read or to re-read the report of the Guardian.  Later that day the meeting reconvened, and Mr Pollard made his decision. The decision summary records the reasons for the decision as being:-

"After due consideration of all information and opinion outlined in the report and in particular the submission of the Guardian ad litem, the Chief Officer supports the opinion that the development and provision of local services as recommended by the Placement Panel at its meeting of the 15th December 2008, is in the best long term interests of the family".

36.      Mr Pollard's evidence was clear that he did not act as to rubber stamp the Placement Panel.  We accept that he was (in place of the Minister) the decision maker - although influenced by the Panel's views.

37.      On 6^th January 2009 the Guardian submitted a further report.

38.      On 19^th January, 2009 the hearing for judicial review before the Royal Court took place.

39.      In an addendum to the Report of 6th January 2009 dated 9^th March 2009 the Guardian adhered to his view that off-island provision was required for A and wrote:-

"Reference had been made to the Williamson Implementation Plan as providing a justification for delay in this case, given the imperative of developing better services for children in Jersey.  However, there is nothing that I have read in this document that excludes the use of off-island provision or suggests that the existing needs of children should be put on hold until well-matched services in Jersey become available.  A defensible position for the HSSD might have been to fund placements without delay, as deemed necessary by the professional group, on the understanding that as soon as equivalent placements were established in Jersey there would be an immediate review and a decision taken at this point as to whether it was in A, B or C's interests to return any one of them to their home area.  Instead a position is apparently being taken, whereby the HSSD is seeking to assemble what have been termed "bespoke" packages to meet the diverse needs of every child in it's care.  This is at odds with the approach of local authorities in England and Wales and I would have to add the States of Guernsey, where it is recognised that specialist services cannot, and in some instances should not, always be provided in-house, regardless of the resources available."

40.      On 6^th April 2009 the Family Division made a final care order in respect of A but continued the interim orders on respect of B and C.  In their judgment the Family Division expressed concern that the provisions of the care plans for the three children had not been fully finalized and added:-

"We fail to understand why all these children did not receive appropriate health care much earlier in their lives.  We cannot see that we can go any further with A.  We have heard the Minister's experts and while we can sympathise with the views of Dr Silver and Mr Barrett we cannot progress the matter.  Although we have to leave the ultimate decision with the Minister, we are very much influenced by A's needs, certainly about his future plans.  We do so and make a full care order for A.  This is really the lesser of two choices.  We do not fully approve the care plan but particularly in the light of the Court's judgment in the judicial review proceedings we feel that there is no realistic alternative to the full care order."  [Para 28].

41.      At the date of the hearing on 8^th April 2009 before us it appeared that progress on the Williamson Implementation plan was uncertain in consequence of a continuing political debate about the provision of services for children in the Island.

Analysis

42.      We start with the consideration of the procedures adopted, since it was on the grounds of unfairness that we quashed the decision.

Procedural Irregularity

43.      The Department was considering how best to deal with the X Children in the context of wider issues of child protection policy generated by a report dated June 2008 prepared by Mr Andrew Williamson.  The Williamson plan had been drawn up to implement a number of the report's recommendations

44.      The Minutes of the SMT meeting on 16^th December 2008 record:-

"MP [Mr Pollard] asked whether any of the professionals who had been asked to submit comment regarding the case were aware of the detail of the Williamson Implementation Plan particularly with regard to recommendations 7 and 8. It was confirmed that only the Minister, very senior members of the H&SS and independent experts such as Professor June Thoburn and Andrew Williamson himself had seen the report to date".

45.      It is therefore undisputed that neither the Guardian nor the professionals instructed on behalf of the X children had seen the Williamson Implementation Plan prior to their Decision.

46.      While aspects of Mr Pollard's evidence as to the precise reasons for the Decision were not translucent, he was clear on one matter, namely that he had been able to depart from the unanimous view of the child care experts that appropriate therapy should be provided for A (and the other X children) in England because he was privy to information denied to those experts about the proposed investment in child care facilities in Jersey through the Williamson Implementation Plan. He discounted the experts' views because of their lack of awareness of the plan (albeit he was responsible for that lack of awareness).

47.      Mr Pollard was naturally and properly cross-examined before the Royal Court as to why he had not taken greater note of the views of Dr Silver and the other professionals. One citation out of a number of his responses will suffice, namely that he was:-

"aware of a number of significant investments that were likely to be made in Children's Services ... the Andrew Williamson recommendations, which were known to me but were not known to either Dr Silver or to the professionals that you mentioned at the time. Those were pieces of important information that were kept very close to myself and a number of other very senior [officials]".

48.      In our view Mr Pollard's candid testimony constituted (unusually) an admission of a breach of the primary rule of natural justice, namely that a person potentially affected in his rights or interests by a decision should have a reasonable opportunity to see and comment on matters which might be deployed to his disadvantage.  Save in exceptional circumstances, such a breach inevitably flaws the decision.  The Court should not, other than in such circumstances, assume that the disadvantaged person would have been unable to influence the decision if he had enjoyed the opportunity denied him.  R v Chief Constable of Thames Valley Police Ex p Cotton [1990] 1 IR 344.

49.      The Royal Court was also troubled by one aspect of the procedure (paras 30 - 32) but felt able to conclude that it would nevertheless not quash the decision.  Mr Sharp for the Minister made three points.

50.      First he argued that the written representations of the Guardian showed a sufficient awareness of the Williamson Implementation plan.  Those written representations provided at paragraph 12:-

"I have already given evidence to the Court regarding the damage caused to these children by the delay that has already occurred in providing the right kind of therapeutic interventions within a safe setting. The development of appropriate services in Jersey is clearly to be welcomed, but establishing specialised units that can qualitatively match off-island placements such as the Di Capo and Windows children's homes [the institutions in question for the X Children] will take time and these children cannot wait".

51.      The Royal Court accordingly concluded:-

"although the details of the Williamson Implementation Plan and the proposed financial investment in facilities in Jersey were not known to the Guardian, he was clearly aware that what was envisaged was the development of residential accommodation and services on the lines of the premises in England that had been recommended "(para 34). 

52.      We do not, with respect, agree with the Royal Court or the submission made by Mr Sharp to the same effect.  Putting it at its highest, the representations show that the Guardian had heard something was in the wind, but he was in no position to address the substance of the Plan which was so influential in Mr Pollard's decision.

53.      Secondly, Mr Sharp argued that, when made privy to a redacted version of the Williamson Implementation Plan sometime in early 2009, the Guardian in his second report dated the 6^th January 2009, said in substance nothing different from that which he had said in his first report because (it was also argued) he was not prepared to accept that any Jersey placement, in particular one not immediately available, would be adequate to A's needs. 

54.      Again, we do not agree with this analysis.  It is necessary to focus on what the Guardian, informed by the experts consulted, would have said in December 2008, prior to the Decision date, if he had known of both the substance of the Williamson Implementation Plan and of its importance in Mr Pollard's mind.  The circumstances in which he drafted his second report were different from those which would have existed when he would have drafted his first report and made his written representation to the Minister because they were made against the different background of a decision having been made.  The Minister was by then in the position of defending a decision already made (see R v P. Borough Council (ex parte S) [1999] Fam 188 at 221G - 222A where Charles J rejected a similar argument in an analogous context).

55.      Thirdly, Mr Sharp argued that Mr Pollard would have been bound to reach the same decision whatever representations he had received about the comparative virtues of an English, as contrasted with a Jersey, placement because of the discrepancy in the costs involved.   Again we do not agree.  Finance may - as the Royal Court observed [para 43] - have been a factor in Mr Pollard's mind although something which he seemed "a little diffident" to acknowledge, but at no juncture in his evidence to the Royal Court did he say that it had an overriding effect to the exclusion of all other considerations.

56.      For these reasons we concluded that these procedural flaws in the process resulted in unfairness and accordingly we quashed the decision.  It is unnecessary in the light of our conclusion on this point, to consider whether the Decision was otherwise flawed or therefore to deal with submissions directed to the particular process preceding the same.  We consider it to be more useful to indicate our views on the substantive issues of law debated before us in order to assist the Minister in this and future cases by way of general guidance.

The Children's Law

57.      Article 19 of the Children (Jersey) Law 2002 provides (so far as material) that:-

"General duty of Minister in relation to children the Minister looks after

(1) Where the Minister is looking after any child, the Minister shall -

(a) safeguard and promote the child's welfare: and

(b) make such use of services available for children cared for by their own parents as appears to the Minister to be reasonable in the case of that child.

(2) Before making any decision with respect to a child the Minister
is looking after or proposed to look after, the Minister shall, so far as is reasonably practicable, ascertain the wishes and feelings of-

(a) ....;

(b) the child's parents;

(c) ....

(d) any other person whose feelings and wishes the Minister considers to be relevant regarding the matter to be decided,

(3)       in making any such decision the Minister shall give due consideration-

(a)       to such wishes and feelings as the Minister has been able
to ascertain of-

...

ii.        any other person mentioned in paragraph (2); and

(b)       to the child's ..... cultural ... background".

58.      It was submitted on behalf of the Guardian that this imposed an unqualified obligation on the Minister who "is looking after any child" to safeguard and promote the welfare of the child in the best possible way irrespective of financial considerations.  We reject the submission. 

59.      First, the language of the Article compels no such conclusion.  It identifies the nature of the obligation save as elsewhere expressly provided for.  In the same Article i.e. sub-paragraphs (2) and (3) it leaves it to the Minister as to how to carry out that obligation.  The vocabulary is redolent with discretion, "as appears to the Minister to be reasonable"; "so far as is reasonably practicable"; "the Minister considers to be relevant".

60.      Secondly decisions under the Children Act 1989 of the United Kingdom ("The 1989 Act") on which the Children Law was plainly based, and in particular on section 22(3) which is in virtually identical terms to Article 19(1), do not support the submission.

61.      In Re T [2004] 1 FLR 601 Wall J held that section 22 (3) of the 1989 Act did not create an absolute right to particular services.  He stated:-

"I would be the first to accept that the local authority has, in this area, a wide margin of appreciation. Many different factors are in play and have to be balanced, including finance, the provision for children in need in the county generally, and the availability / suitability of local resources".(para 134)

62.      In R v Barnet London Borough Council and Others [2004] 2 AC 208 ("Barnet"), Lord Hope of Craighead referred to various general duties imposed by the English statute and stated:-

"The discretion which is given by these provisions to the local authority is framed in various ways, but the result is the same in each case. Where a discretion is given, the child in need does not have an absolute right to the provision of any of these services" (para 82).

In relation to funding on this same case, Lord Hope stated:-

"The cost of providing accommodation for children in need under Part III must be met out of the funds which are set aside in their accounts for the provision of social services. As I have mentioned, the provision of accommodation is only one of the many services which may be provided in the performance of the general duty which is owed by the local social services authority under section 17(1). It is an inescapable fact of life that the funds and other resources available for the performance of the functions of a local social services authority are not unlimited. It is impossible therefore for the authority to fulfil every conceivable need. A judgment has to be exercised as to how needs may be best met, given the available resources. Parliament must be taken to have been aware of this fact when the legislation was enacted."(para 75)

63.      To like effect in the same case, Lord Scott of Foscote stated:-

"It is plain, in my opinion, that in relation to each of these specific duties the local authority can take into account among other things, its overall financial resources and, in particular, the cost of taking a specific step that, if taken would benefit the child and meet some need".(para 118)

64.      Thirdly, the submission is counter-intuitive.  We see no basis for excluding (uniquely) financial considerations from the factors common sensically to be taken into account by the Minister.  As the Royal Court pungently put it "Public funds are not a bottomless pit" [para43].  The legislation cannot have been enacted without reference to that reality.  As Lord Hope observed in Barnet:-

"Parliament [i.e. the States of Jersey] must be taken to have been aware of this fact when the legislation was enacted.".

65.      R v East Sussex County Council ex parte Tandy [1998] AC 714 ("Tandy") upon which reliance was placed was statute specific. In that case the local authority, as a result of reduced government funding, made a policy decision reducing from 5 hours to 3 hours the normal allocation of home tuition to children unable to attend school on account of illness. The relevant statutory provision required the authority to provide "suitable education ". The House of Lords held that "suitable education" within the meaning of the Act connoted a standard to be determined purely by educational considerations, and that the availability of financial resources was not relevant to that question. But in Tandy, Lord Browne-Wilkinson held "if there is more than one way of providing "suitable education" the LEA could be entitled to have regard to its resources in choosing between different ways of providing suitable education" (p.742), so recognising the significance of the financial decision.

66.      In short Article 19 of the Children (Jersey) Law 2002 imposes no absolute duty upon the Minister. It imposes a general duty to promote and safeguard the child's welfare, and confers a discretion (to be exercised rationally) as to how that duty should be fulfilled; it is certainly rational to take financial considerations into account.  Other specific factors also to be taken into account are identified in sub paragraphs (2) and (3) of the Article itself.

67.      It was also submitted that the Minister's decision was tainted by illegality on the ground that article 19, properly construed, imposed a duty to follow the unanimous expert and professional opinion that the X Children should be sent to England. For the reasons given above, we reject that submission. There is no absolute duty to give effect to professional advice if cost considerations point correspondingly in an opposite direction.

68.      We would, however, add that, in the absence of cost considerations, it is difficult to envisage a Minister being able to depart from the view of experts as to the best way to treat a child in care where such views including those within his own department, are both unanimous and based on full knowledge of the material facts.  We found the analogy with the Court's own approach to experts useful, if not exact. 

69.      In Jackson and Powell, "Professional Negligence" [6th] ed under the rubric "The Functions of the Expert Witness", the author states:-

"Where there is a dispute on questions of technical fact, the court may prefer the theory advanced by one expert witness over that advanced by another, but it will not assume technical expertise: it will not substitute a theory of its own where that theory is not supported by the evidence of any of the expert witnesses..."

He cites in support a clinical negligence case McLean v Weir (1977) 3 C.C.L.T. 87 in the British Colombia Supreme Court.

Contingency Expenditure

70.      Article 16 of the Public Finances (Jersey) Law 2005 (contingency expenditure) was also prayed in aid.  It provides as follows:-

"This Article applies where -

(a) a state of emergency has been declared under the Emergency Powers and Planning (Jersey) Law 1990; or

(b) the Minister is satisfied that there otherwise exists an immediate threat to the safety of all or any of the inhabitants of Jersey,

and where, in either case, the Minister is satisfied that the immediate expenditure of money by a States funded body is required, that no money or insufficient money may be withdrawn from the consolidated fund for the purpose by virtue of any other provision of this Chapter and that there is insufficient time to secure any additional expenditure approval."

71.      In our view context excludes application of this Article to a case such as the present.  As to (a) a state of emergency "connotes a state of matters calling for drastic action" Bhagat Singh v The King Emperor [1931] LR 58 IA 169 per Viscount Dilhorne at pp.171-2.  The link between the two limbs (a) and (b) is exemplified by the use of the word "otherwise" in (b).  It is concerned, for example, with a hostage situation, or any product of a sudden safety threatening event, not the consequences of long term damage.  There is, on a purposive construction of Article 16(b) no "immediate threat to the safety" of the children, grievous though their situation is.

Matters of Weight

72.      We would add that the weight to be given to financial as opposed to other considerations is peculiarly within the province of the Minister:-

"It is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit and the courts will not interfere unless he has acted irrationally in the Wednesbury sense." (Tesco Stores v Secretary of State [1995] 1 WLR 759, per Lord Keith at p 764 and see Lord Hoffman at p 780).

Moreover it is well established that:-

"Courts are particularly reluctant to review the exercise of resource-allocation decisions."  (Yarl's Wood Immigration Ltd v Bedfordshire Police Authority [2009] 1 All ER 886 per Beatson J para 75 citing R v Cambridge Health Authority ex p B [1995] 1 WLR 898)

Procedural Fairness

73.      We turn to the manner in which the Minister should reach his decision in relation to A (and of the decision not already retaken in relation to B and C).  Axiomatically the Minister must:-

"ask himself the right question and take sensible steps to acquaint himself with the relevant information to enable him to answer it correctly.  (Education Secretary v Thameside BC [1971] AC 1014 per Lord Diplock at p 1065).

74.      Additionally there is no doubt that there has been a change in the attitude of the courts to the degree to which, as a matter not merely of good practice but of law, public authorities making decisions which vitally affect children and their parents have procedural obligations towards them.  This phenomenon is particularly notable when the authority proposes to sever temporarily or permanently the family link, but it is not, in our judgment, applicable only to that special class of decision. 

75.      The reasons for this alteration of approach are many.  One is the enhancement of the established public law value of fairness.  Another is the development of a new public law value of transparency.  The European Convention on Human Rights has had a significant impact, in particular Articles 6 (right to a fair trial) and 8 (right to respect for private and family life).

76.      The right to a fair trial when  civil rights are being determined has been held to embrace not merely legal proceedings themselves (here Family Division proceedings) but steps taken before court in connection with them: see Re R L (Care: Assessment; Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR page 730 Munby J.

77.      The right to respect for family life gives substantive and procedural rights to parent and child alike.

78.      In Re G (Care: Challenge to Local Authority's decision) [2003] 2 FLR 2 Munby J said that in relation to a decision to remove children from their parents "The local authority must involve the parents properly in the decision making process.  In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made" [45].  While this was stated in the context of a removal case, Munby J had earlier said "Article 8 affords parents who are involved in care proceedings not merely substantive protection against any inappropriate interference with their private and family life by public authorities but also significant procedural safeguards." [30].  These were identified as positive obligations of disclosure of all key documents in its possession or available to it: [paras 32-33]: and fairness in the decision-making process at all stages of child protection [paras 35-36].

79.      In Children Law and Practices, co-edited by Mr Justice McFarlane (a distinguished family judge of the High Court (Family Division)), the following passage seems to us relevant illustrating the recent developments:-

"4 LOCAL AUTHORITY RESPONSIBILITY TO THE CHILDREN'S GUARDIAN

Consultation

The local authority must inform the children's guardian of any proposed major change in the child's circumstances, and listen to his views before carrying them out.  To go ahead without consultation will render the decision capable of challenge by way of judicial review.  In R v North Yorkshire County Council ex parte M [1989] 1 FLR 203].  Ewbank J held that the decision of the local authority to place the child for adoption, whilst an application by her parents to discharge the care order was pending, was wrong.  The local authority had not informed the children's guardian or sought her views.  Ewbank J said:-

'I am not in any way suggesting that the guardian ad litem [now children's guardian] makes the decision or in any way is a party to the decisions, but the guardian ad litem is appointed, in accordance with statute, to safeguard the interests of the child.  While a case is in train, the local authority ought not to take any major decisions without informing the guardian ad litem before the decision is made of the proposal and listening to her views.'

Following this decision, the children's guardian complained again when the local authority proposed to refuse to allow her to attend a meeting of the adoption panel, and indicated that, instead, her written views would be considered.  Ewbank J considered that her views could be expressed adequately in a written report and she was not entitled to insist on attending meetings [R v North Yorkshire County Council ex parte M (No2) [1989] 2 FLR 79].  This decision was made prior to the Human Rights Act 1998 coming into force.  Whether the decision would be different now is unclear." [para 2760]

This carefully phrased concluding comment suggests to us that the Minister and all those involved in a decision identical or analogous to the present should sensibly err on the side of caution in their own interests in reaching a decision, as well as in the interests of fairness to those affected by their decision. 

80.      The Royal Court noted (para 26) and Mr Pollard in his evidence agreed that "there seems to us no good reason why the Guardian and his legal advisor should not have been permitted to articulate their views to the Panel as they considered their various options."  We also agree and endorse those observations.

81.      It is less obvious that the Minister should be prepared to permit oral representation to be made to him at the time he makes his decision. Oral hearings are not a universal ingredient of fair procedures:  (Wade and Forsyth: Administrative Law: 9^th ed 518).  Representations can be made in writing to an administrative authority "provided that it does in substance 'hear' them".  Mr Pollard gave evidence that he did not wish to be lobbied by the Guardian and referred to the impracticality of having an oral quasi judicial hearing on every occasion such a decision had to be taken.

82.      We note that in R (B) v Crown Court of Stafford [2007] 1WLR 1524 the Administration Court confirm Munby J's discernment of procedural guarantees in Article 8 (para 23) although it added, on the basis of Strasbourg case law " in care procedures  public authorities may not be required to follow inflexible procedures"  (para 24).

83.      It is clear to us that:-

(i)        The Minister must disclose all information likely to influence his decision to the guardian and lawyers acting for interested parties (including the parents)

(ii)       He must do so in sufficient time to enable them to make written representations

(iii)      If a request is made for an opportunity to make oral representations he should consider carefully whether there is any good reason to refuse it (e.g. the live possibility of unnecessary confrontation R v V Cornwall C C ex p LH [2000] 1 FLR 236) bearing in mind that (a) the process although it often engages competing views is not classically adversarial but designed to safeguard and promote the involved children's welfare, (b) a refusal to allow oral representation may mean that he lacks complete (and vital) information, (c) the granting of such an opportunity will lessen, if not eliminate the risk of subsequent legal challenge.

(iv)      He must conscientiously consider such representations made and come to his rational conclusion on the material before him.

84.      For avoidance of doubt we observe that we see nothing objectionable in either the Placement Panel, or the Minister, after any dialogue or colloquy with the guardian and other involved parties, reaching a decision in private or in the Minister making use of the expertise of his own department in reaching his decision; see Bushell v Environment Secretary [1981] AC 75 per Lord Diplock at p. 95-96.

Authorities

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 370.

Children (Jersey) Law 2002.

Public Finances (Jersey) Law 2005.

R v Chief Constable of Thames Valley Police Ex p Cotton [1990] 1 IR 344.

R v P. Borough Council (ex parte S) [1999] Fam 188.

Children Act 1989.

Re T [2004] 1 FLR 601.

R v Barnet London Borough Council and Others [2004] 2 AC 208.

R v East Sussex County Council ex parte Tandy [1998] AC 714.

Professional Negligence [6th] ed, Jackson and Powell.

McLean v Weir (1977) 3 C.C.L.T. 87.

Public Finances (Jersey) Law 2005.

Bhagat Singh v The King Emperor [1931] LR 58 IA 169.

Tesco Stores v Secretary of State [1995] 1 WLR 759.

Yarl's Wood Immigration Ltd v Bedfordshire Police Authority [2009] 1 All ER 886.

R v Cambridge Health Authority ex p B [1995] 1 WLR 898.

Education Secretary v Thameside BC [1971] AC 1014.

European Convention on Human Rights.

Re R L (Care: Assessment; Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR.

Re G (Care: Challenge to Local Authority's; decision) [2003] 2 FLR 2.

Children Law and Practices, co-edited by Mr Justice McFarlane.

Wade and Forsyth: Administrative Law: 9th ed.

R (B) v Crown Court of Stafford [2007] 1WLR 1524.

R v V Cornwall C C ex p LH [2000] 1 FLR 236.