Jersey Unreported Judgments

[2010]JCA063

court of appeal

22^nd March 2010

Before     :

Dame Heather Steel, D.B.E., President; Michael S. Jones, Esq., Q.C.; and James W. McNeill, Esq., Q.C.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF C

Mrs L the Litigant appeared in person.

Advocate C. R. Dutôt for the Minister of Health and Social Services.

Advocate R. E. Colley for C

Mrs Leonora Green of the NSPCC a person appointed under Article 75 of the Children (Jersey) Law 2002.

judgment

MCNEILL JA:

This is the judgment of the Court, to which we have all contributed.

1.        On 14 October, 2009, in a reserved decision following the hearing of an application on 25 and 26 June, 2009, and 21 July, 2009, J.A. Clyde-Smith, Commissioner, sitting with Jurats, granted an application under Article 24(1) of the Children (Jersey) Law 2002 ("the Children Law"), made by the Minister of Health and Social Services ("the Minister"), placing C in the care of the Minister.  The Minister's application had been supported by Mrs Leonora Green ("Mrs Green") of the NSPCC, who had been appointed by the Court under Article 75(1) of the Children Law to assist and befriend C.  It was opposed by C's mother, Mrs L.

2.        As narrated by the Commissioner in the Judgment of the Court below dated 14 October, 2009, C was born in 1996.  It appears that C's natural father, who lives in Northampton, has lost contact with C and takes no part in the proceedings.  C's mother, Mrs L, married her husband, Mr L, in 2003.  In addition to C, Mrs L had, through earlier relationships, two other children also living with her and Mr L.  Mr and Mrs L had had two children of their own and a further baby was born in 2008.  Until an incident in 2008 C also lived with Mrs L and Mr L and the other children. 

3.        In 2008, an incident occurred which gave rise to these proceedings.  As narrated by the learned Commissioner, in accordance with family routine Mr L had collected C from Scouts when he witnessed C behaving in an unacceptable manner.  Having observed C's behaviour, Mr. L took C and a friend of C in his car, dropped off C's friend and arrived home about half an hour after the incident.  Little had been said about the incident in the car but, at home, Mr. L confronted C about C's behaviour and hit C a number of times.

4.        Mr L's reaction was the subject of a criminal prosecution under Article 35 of the Children Law and the learned Commissioner quoted the following from the oral judgment of the Assistant Magistrate: "...  At home, Mr L hit C a number of times to the head.  This was a deliberate assault, the blows were not issued in the heat of the moment but they were delivered as punishment some time after the offence.  I do not find it necessary in these circumstances to determine whether C fell over and was hit whilst on the ground....  Mr L did hit C several times with his hand.  He admitted that he hit C harder than he should've done.  This was correction for bad behaviour but it was pre-meditated, it was a deliberate decision, it was repeated blows to the head and a deliberate attempt to get to the head.  When C covered his arms (sic) and blows fell on C's arms and elbows, Mr L moved C's arms so that he could get at C's head ...........   I accept C's evidence as credible that C suffered physical pain, C was upset and angry, which is emotional harm."

5.        C reported the incident to the school the next day and was examined by a doctor.  The Police Protection Unit suggested that C and a sibling should be placed away from the L family home.  Mr L was arrested. 

6.        Thereafter, for various reasons which we need not narrate, C had only sporadic contact with Mrs L and extremely limited contact with his siblings.  After a directions hearing on 1 June, 2009, C was visiting the family home on a weekly basis and with Mr L present.   The Commissioner noted that the contact appeared to be working well.

7.        On 18 September, 2008, Mr L was convicted of recklessly or intentionally causing C harm under Article 35 of the Children Law.  The Magistrate rejected his defence that the punishment administered to C was reasonable and Mr L was subsequently sentenced to 40 hours' community service. 

8.        It appears from the learned Commissioner's judgment that the salient part of the Assistant Magistrate's findings is that which we have already quoted.  As the learned Commissioner noted in paragraph 25 of his judgment, that finding may have been made in reliance upon a transcription of what Mr L said in a police interview.  It has emerged that there was a mistake in the transcription which is significant.  In response to the question "Where abouts did you slap him?" the transcription records Mr L as saying "Well I moved his elbows because he, covered up and ...".  Mrs L informed the Commissioner and Jurats that, having considered the tape, the actual response was "Well, mainly his elbows".  Those appearing for the Minister did not seek to challenge that there had been a transcribing mistake.

9.        On 13 November, 2009, Mr L, having become aware of the error in the transcription, sought leave to appeal out of time.  At the hearing the Court (M. C. St. J. Birt, Bailiff, with Jurats) granted leave to appeal out of time, allowed the appeal, quashed the conviction and remitted the matter to the Magistrate's Court so that a retrial could take place if the Prosecution so elected. 

10.      In giving a reasoned judgment dated 18 November, 2009, the learned Bailiff indicated (at paragraph 21) that the Court was left with the clear impression that the error in transcription distorted the trial process and led the Assistant Magistrate to conclude that there was evidence to support the existence of the aggravating factor, namely the pushing aside of the arms or elbows in order to get at C's head.  The Court considered that, given the weight placed on the aspect in question by both the Prosecution and the Assistant Magistrate, it could not be sure that the Assistant Magistrate would still have convicted. 

11.      The quashing of the conviction, of course, post-dated the hearing below in the matter now before this Court. 

12.      It is clear from the detailed and careful consideration of this matter by the Court below, as recorded in the judgment, that the application was one which gave them considerable cause for deliberation; and this is witnessed by the elapse of time between the hearings and the determination. 

13.      The Court carefully considered the statutory threshold criteria of Article 24 of the Children Law.

14.      In paragraph 69 the Court noted, correctly, that before it could make a care order a Court required to be satisfied, under Article 24(2):-

"(i) that the child concerned is suffering, or is likely to suffer, significant harm;

(ii) that the harm, or likelihood of harm, is attributable to:-

(a) the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give a child, or

(b) the child being beyond parental control."

15.      In paragraph 70 the Court noted that Article 24(6) provided that, for the purposes of that Article:-

""Harm" means ill-treatment or the impairment of health or development;

"Development" means physical, intellectual, emotional, social or behavioural development;

"Health" means physical or mental health; and

"Ill treatment" includes sexual abuse and forms of ill-treatment which are not physical.'

16.      The Court then noted that there were two "branches" to the first part of the statutory test, namely whether the child "is suffering" or "is likely to suffer" significant harm.  By reference to the decision of the House of Lords in the case of In Re M (a minor) [1994] 2AC 424, the Court noted that the first branch required consideration of the circumstances at the time that protective measures were first put in place.

17.      Applying the first branch of the test the Court considered that, as at the relevant date on 19 August, 2008, C was suffering from significant physical harm in respect that Mr L had admitted to the police that he had hit C six or seven times over the head too hard, for which Mr L felt remorse and, over the elbows.  This, in the view of the Court, was sufficient to grant jurisdiction.

18.      As to the second branch the Court was not satisfied that C was likely to suffer significant physical harm in the future.  It noted that the Children's Services had carried out lateral checks on the family and had no concerns as to the physical safety of the other children.  The Court agreed with Mrs L that, in reality, the case before the Court centred on the one incident. 

19.      Mr and Mrs L had both given evidence before the Court below and the Court specifically indicated that they believed Mr and Mrs L when they said that they had no intention of committing or permitting any repetition.

20.      On the other hand, the Court accepted the views of Dr Williams, supported by other evidence, that C was likely to suffer significant emotional harm if C were to be returned to the L home. 

21.      Mrs L impressed us with the care and detail of her submissions.  But we must deal first with the length of time which has elapsed in the bringing of this appeal.  The conviction was set aside on 13 November, 2009, yet the notice of appeal in the care proceedings was not lodged until 11 January, 2010.  This means that 59 days passed, following the quashing of Mr L's conviction, before the notice of appeal was lodged in the care proceedings.  Mrs L's Notice of Appeal in this case is substantially out of time and, in accordance with Rule 24(3)(c) of the Children Rules 2005, Mrs L therefore applies for leave to appeal out of time.  In our view, although it is clear that applications in matters relating to children ought to be carried out with expedition, the earlier procedural history in this matter has shown that this cannot always be achieved.  Mrs L stated to us that she prepared her appeal as quickly as she could do it without legal knowledge and, consistent with the candour of her whole presentation to us, this Court should have no difficulty in accepting that.  It seems to us also consistent with the interests of justice that this Court should entertain Mrs L's appeal. 

22.      In the whole circumstances it is not surprising that Mrs L placed considerable emphasis on the quashing of Mr L's conviction and the suitability of the loving care which she was able to offer to C.  In our opinion, however, a number of points militate against this Court being able to reach a different view from that reached in the Court below as to the conclusion that the statutory criteria had been met.  In the first place, although at the time of the hearing below the conviction still stood, the Court was aware of the uncontradicted assertion that there had been an error in transcription.  In dealing with the first branch of the test, at paragraph 75, the learned Commissioner specifically did not rely on the allegation that Mr L had moved C's arms so that he could get at C's head. 

23.      However, even if we had taken the view that, had the learned Commissioner and the Jurats known of the quashing of the conviction they might well have taken the view that the first branch of the first part of the statutory test had not been met, the Court below had, as they were entitled to do, separately considered the second branch: In Re M (a minor) [1994] 2AC 424, 437A.  Under that head, the Court's conclusion that the statutory threshold criteria had been met was based on the acceptance of the evidence of Dr Williams, as supported by others, that C was likely to suffer significant emotional harm, see paragraphs 80 and 81.  The basis for this was the reasons put forward by Dr Williams.  Those are set out in paragraphs 36 to 41.  In essence, Dr Williams had serious reservations about the rehabilitation of C within the family until Mr and Mrs L demonstrated their capacity to meet C's needs by redressing what, in Dr Williams' opinion, was a rejection felt by C because of the limited contact with the family since April 2008.  In other words, to use the statutory language, C was likely to suffer significant impairment of emotional development, attributable to the emotional care likely to be given to C by Mr and Mrs L. 

24.      Whilst the views of Dr Williams might, to some, appear somewhat firmly stated, this Court, as an appellate Court, is not in a position to appraise evidence in the same way as the Court below.  In any event, it has to be recollected that, at this stage in the determination of the Court below, the Court was identifying whether or not it had jurisdiction to consider making a care order, as opposed to the nature of the order itself. 

25.      In turning to consider the choice between making no order and making a care order the learned Commissioner indicated the views of the Court in the following words:-

"The decision causes us much anxiety because as with everyone else involved in this case we feel that C's proper place is back with C's mother and half siblings but a number of factors have conspired to frustrate that aim ..." (paragraph 81). 

26.      The Court then considered the factors and also expressed their sympathy for Mrs L with great care and compassion.

27.      In concluding that the Minister's application should be granted the learned Commissioner expressed the Court's views in these words:

"87 Mrs. L asks us to make no order.  She says she will deal with C's return in a natural way.  It may be, she says, that C will never come back from the Ms.  She would be left with sole parental care and the current funding arrangements for the Ms would cease.  In our view, that would be to cast C adrift and would not be in C's best interests.  C and those currently looking after C need a legal and financial framework to support the current arrangements and that can best be provided by a care order. 

88 The current care plan makes provision for a rehabilitation programme for C which is dependent upon the cooperation of Mr and Mrs L.  The plan was written prior to the contact that has now resumed between C and the family.  If C is ever to return home on a permanent basis, it will be as a result of Mrs L maintaining and building upon that contact and cooperating with the Children's Service and agreeing a rehabilitation programme.  We can only urge her to do so.  C's rightful place is with Mrs L.  She is the one person able to bring that about and there is no conspiracy to prevent her doing so."

28.      Under Article 24 of the Children Law, the making of a care order is a discretionary power in the hands of the Court.  In order for an appellate Court, such as this, to interfere with such a decision it would have to be shown that the process by which that discretionary decision had been reached had been seriously flawed.

29.      In our view, no such basis exists in the present case.  Indeed the views expressed by the learned Commissioner appear to take into account all relevant factors and to be expressed, as I have said, with the greatest of care and compassion for all those involved. 

30.      In our opinion the appeal should be refused.  Like the Court below, we would urge Mrs L to maintain and build upon the contact which she has with C and cooperate in agreeing a rehabilitation programme so that C can return to C's rightful place with her and the remainder of C's extended family.  We would also express no small amount of concern as to the current position of C.  It is not unusual to have conflicting reports as to the amount of contact.  But it does appear that some contact exists.  What seems to us important is for both Mrs L and the Children's Services to place as much priority as can possibly be arranged for the co-operation required to enable the immediate and longer term welfare of C to be properly addressed.  For example, the Children's Services should attempt to ensure that C is aware of Mrs L's desire to have contact with C, and appointments with Mrs L should be arranged at times which recognise the family commitments of Mrs L.  We wish Mrs L well in her own part of this process.

Authorities

Children (Jersey) Law 2002.

In Re M (a minor) [1994] 2AC 424.

Children Rules 2005.