Jersey Unreported Judgments

[2010]JRC173

royal court

(Samedi Division)

23^rd September 2010

IN THE MATTER OF BB

AND IN THE MATTER OF THE CHILDREN'S (JERSEY) LAW 2002

Advocate H. J. Heath for the Applicant.

Advocate M. P. Renouf for BB.

Tracey Goode (Guardian) present.

D (the natural father) was present but not represented.

judgment

commissioner:

1.        This is an application by the Minister for Health and Social Services for leave, pursuant to Rule 9 of the Children Rules 2005 to withdraw the application for a care order under Article 24 of the Children (Jersey) Law 2002 in respect of BB.

2.        During the course of the hearing an issue arose as to the validity of a parental responsibility order made by the Court on 25^th August, 2010, granting parental responsibility to BB's natural father, D, and it is important first to resolve that issue.  The Court made the order, unusually, without hearing the adoptive parents of BB, namely C and A, but we directed that they be given notice of the order and that they be given liberty to apply within 10 days should they see fit to do so.  C and A have made no application and did not appear before us yesterday, but we were informed, by Miss Heath who appeared for the Minister, that they had received legal advice and that they supported the granting of parental responsibility to D.  The Court received a letter from C and A setting out their position but making it clear that they would not contest the granting of parental responsibility (even if not expressed in that exactly way).  Miss Heath told us that she had interviewed A who did in fact positively support D's being granted parental responsibility over BB.

3.        The difficulty drawn to our attention, very properly by counsel for the Minister, was a legal one.  Did the Court have jurisdiction, in circumstances where a formal adoption order had been made in favour of C and A, to make a parental responsibility order granting parental responsibility to the natural father?  The Court had relied, it was said on the 25^th August, on Article 5(1) of the 2002 Law which provides:-

"Where a child's father and mother were not married to each other at the time of the child's birth -

(a)       the court may, on the application of the father, order that he shall have parental responsibility for the child;"

4.        Counsel submitted that the legal difficulty was caused by Article 3(2) of the Children Law, the relevant part of which provides:-

"Where a child's father and mother were not married to each other at the time of the child's birth -

...

(b)       the father shall not have responsibility for the child, unless he acquires it in accordance with the provisions of this Law."

5.        That provision is, however, to be interpreted in accordance with Article 1(2) of the 2002 Law which stipulates, so far as material, that:-

"References in this Law -

...

(b)       to a child whose father and mother were not married to each other at the time of the child's birth do not include,

...

a child who was the subject of an adoption order under Article 10 of the Adoption (Jersey) Law 1961."

6.        BB was a child who was the subject of an adoption order under Article 10 of the Adoption (Jersey) Law 1961.  He was adopted by C and A by order of this Court of 28^th June, 2002.  Counsel for the Minister accordingly submitted that the Court erred on 25^th August and that it had no power to make a parental responsibility order in favour of D.

7.        Mr Renouf, who has been appointed to represent BB, did not agree.  He submitted that the material part of Article 5 of the 2002 Law was to be found at paragraph (2) rather than paragraph (1).  Paragraph (2) of the Article provides:-

"Where a child is treated in law as legitimate the court may -

(a)       on the application of a person claiming to be the child's biological father; and

(b)       where the court is satisfied he is the child's biological father,

order that he shall have parental responsibility for the child notwithstanding that he is not in law the child's father."

8.        Counsel then drew our attention to Article 20(1) of the Adoption (Jersey) Law 1961 which provides that:-

"An adopted infant shall be treated in law -

(a)       where his or her adopters are a married couple, as if he or she had been born as a child of the marriage (whether or not he or she was born after that marriage);"

If one reads those provisions together, counsel submitted, it is clear that BB was, on 25^th August, 2010, to be treated in law as legitimate and that the Court accordingly had jurisdiction to make a parental rights order in favour of D.

9.        We think that the arguments of Mr Renouf are correct.  Article 5(1) deals with the situation where a child is illegitimate.  Article 5(2) deals with the situation where a child is legitimate.  At the material time BB was to be treated, in law, having been adopted, as the legitimate child of C and A.  The Court accordingly had jurisdiction under Article 5(2) to make the parental responsibility order.  For the avoidance of doubt we declare that the application was made by a person claiming to be the child's biological father, and that we were satisfied that D was indeed BB's biological father.

10.      The conclusion that the parental responsibility order was valid is important to the disposal of the Minister's application.  Following the making of the order the relationship between BB and his father has developed and both of them are keen that it should be further deepened and sustained.  It is still a fragile relationship and indeed both individuals have a need for continuing support.  We found the evidence of Dr Williams extremely helpful and persuasive.  BB has yet fully to understand and to come to terms with the reasons why he was abandoned by his natural parents.  He also has to cope with another alleged betrayal by an adult who is to stand trial for sexual offences committed against him.  D needs time to appreciate that he can, with help, cope with the responsibilities of parenthood.  None of these problems is overwhelming, but it is the case that both BB and D will need moral support and other help in the years ahead.

11.      Counsel for the Minister accepts that that is so.  The Minister has agreed to provide accommodation for BB and has therefore assumed the legal duties set out in Article 19 of the 2002 Law.  Miss Heath told us that the Care Plan put in place by the Children's Service would provide support for BB for the foreseeable future, bearing in mind that he remains vulnerable and at risk.

12.      As was accepted in Minister for Health and Social Services-v-KG and Others [2009] JRC 076, the Court has a duty, upon an application for leave to withdraw an application for a care order, to consider the circumstances as carefully as it would upon any other application for an order under the 2002 Law.  The situation that we are asked to endorse is very far from ideal.  Few responsible parents, in our view, would readily contemplate allowing a young person, the age that he is, to live on his own in a flat, especially where that young person has been exposed to exceptional stresses and alleged abuse during his early life to which BB has been subject.  We have hesitated considerably before agreeing that this was the right course of action.  Our reasons for accepting the Minister's submission are as follows.

13.      First, BB has forcefully articulated his view that he does not wish to be the subject of a care order.  The 2002 Law requires us to take into consideration the views of the young person and such views are particularly worthy of close attention when that person is the age that BB is.  Secondly, although the relationship is, as we have said, fragile, BB now does have some support from his natural father D.  That relationship is increasingly important both for BB and for D and this Court thinks it should do everything reasonably possible to support it.  We have been impressed by the fact that D has regularly attended in Court during these hearings.  Counsel for the Minister told us that the Children's Service, and the department in general, understood the need to support not only BB but also D.  That support involves, of course the setting of boundaries for BB, so that in time he will learn to make choices which are the right ones.  Allowing the Minister to withdraw her application for a care order will demonstrate to BB that the Court has confidence in D and confidence in BB himself, so that if he takes advice and listens to the Social Worker, Mrs Larbalestier, and others who want to help him, he will grow into a young man who has left his problems behind him.

14.      The third reason for acceding to the Minister's application is the legal principle set out in Article 2(5) of the 2002 Law, namely that the Court should make no order unless it considers that making an order would be better for the child in question.  The default position is that no order should be made.

15.      Finally there is of course the overriding duty to have regard to the welfare of BB as the paramount consideration.  All the parties before us agree that BB's best interests lie in endorsing the Care Plan and withdrawing the proposal for a Care Order.  We grant the Minister's application and give leave to her to withdraw the application for a Care Order in respect of BB.

Authorities

Children Rules 2005.

Children (Jersey) Law 2002.

Adoption (Jersey) Law 1961.

Minister for Health and Social Services-v-KG and Others [2009] JRC 076.