[2011]JRC083
royal court
(Samedi Division)
15th April 2011
Before : |
Sir Philip Bailhache, Kt. Commissioner, sitting alone. |
IN THE MATTER OF KK
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF AN APPLICATION FOR DISCHARGE OF THE INTERIM CARE ORDERS AND DISCONTINUANCE PROCEEDINGS - COSTS APPLICATION
Advocate V. Myerson for the Minister.
Advocate C. R. Davies for the mother.
Advocate N. S. H. Benest for the father.
judgment
the commissioner:
1. On 9th December 2010, the Court gave judgment, granting an application by the father to discharge interim care orders imposed on 14th July 2010 in relation to the four children of the father's marriage to the mother. The interim care orders had been imposed on the application of the Minister. The Court expressed itself satisfied in July 2010 that there were reasonable grounds for believing that the threshold criteria had been met, and considered, in the exercise of its discretion, that interim care orders should be made. The reasoning for the making of those interim care orders was encapsulated at paragraph 5 of the Court's judgment on 9th December 2010 in the following terms:-
"5. When the Court made its order on 14th July, it did so on the basis of a number of statements which gave rise to the reasonable belief that the father was a controlling individual, whose extreme conduct under stress was capable of amounting to domestic abuse, particularly emotional abuse that was causing the was likely to cause the children significant harm. We do not think it necessary or desirable in the context of the order that we are about to make to elaborate other than to state that there is evidence of such conduct going back over a considerable period. The father denies at least some of that conduct, and the fact finding hearing is designed to address some of those areas of dispute."
2. Miss Benest, for the father, now applies for the costs of her client's successful application to set aside the interim care orders. Her application is limited to the costs incurred with effect from 26th November 2010, when the Minister was notified that an application for the discharge of the orders was to be made. In essence, counsel submits that it was clear by that time that applications for full care orders were bound to fail, and indeed that the threshold criteria for the making of interim care orders no longer existed. The Minister should accordingly have applied off her own bat for the discharge of the interim care orders. Mrs Davies, for the mother, makes her own application for costs on the same basis as that of Miss Benest.
3. A little history is required. After the making of the interim care orders on 14th July 2010, a number of directions hearings took place at which (inter alia) orders for the disclosure of evidence and the preparation of reports by psychologists and others were made. Two reports were particularly significant.
4. On Sunday 14th November 2010, a report of a psychological assessment of the children by Dr James Murray, a consultant psychologist specialising in children, was delivered to the parties. Dr Murray stated:-
"I can find no evidence that any of the children is suffering from a diagnosable mental health problem. I can find no evidence of psychopathology in any child, and most importantly, I can find no indications of psychological harm consistent with having witnesses or experienced physical or emotional abuse."
5. He continued:-
"I do not believe that the children have any need for therapeutic work, other than the normal care and mentoring that parents normally provide. I would recommend that as the children grow older and reach an appropriate stage of maturity, that A and B discuss with them the reasons that they are no longer together, the problems that caused the separation, and how they have sought to resolve issues. These kinds of discussions are helpful to children as they grow into young adults, since they help them develop well-functioning internal working models of adult relationships."
6. His conclusion was:-
"I do not perceive either A or B, in their current separate living arrangements, as posing a threat to any of the children's safety, either from the point of view of physical abuse or from the point of view of long term emotional harm. In my view, both A and B have developed significantly as adults and as parents, and demonstrate a level of insight, parenting skill, and inter-adult relationship skill that would probably not have been present had they been assessed a year previously. I believe that this change is genuine and likely to be long-lasting in both parents."
7. A directions hearing took place on 18th November 2010 with a view to preparing for a fact finding hearing set down for three days between 15th and 17th December. Counsel alerted the Court to the findings in Dr Murray's report and invited the Minister to consider whether the interim care orders should be discharged and the proceedings withdrawn. The Court encouraged counsel to consider whether the fact finding hearing would serve any useful purpose.
8. The report of Dr Murray had not been expected until the end of December 2010. In the light of its conclusions, a copy was sent to Dr David Briggs, a forensic psychologist and clinical psychologist who had been instructed on 14th October to complete a parenting and psychological report on and a risk assessment of the father and the mother. On 22nd November a meeting between Dr Briggs and Miss Myerson, counsel for the Minister, took place in Jersey. A file note of that meeting recorded:-
"Dr Murray's report is very positive about the parents and the children and states that there is no risk of significant harm, and that there is no evidence of significant harm.
After the Directions Hearing last week discussions took place between the Advocates involved and it was agreed that you would be approached in order to provide an indication from you as to whether or not you have a view similar to Dr Murray.
If your report is going to be wholly positive there are concerns that the finding of fact would merely serve to pitch the parents against one another (together with any witnesses/third parties who may also be involved). The Children's Service are mindful of this and that to continue proceedings may cause further trauma to the children.
You state that the parents have settled into a rhythm of life - this is not characterised by intense hostility, the mother comes across as "careful" but positive to the father; the father has a positive view after separation and had mentioned the possibility of finding a new partner. Positive signs include the split in childcare arrangements. You have seen the boundaries the father sets, he is tolerant and has positive interaction with them.
Risk in "DV" cases is often at the time of separation and immediately afterwards.
Your view is that the risk is in the low to moderate ranges. Both parents are co-operative and open to receiving ongoing help and support in care of children - they are seeking assistance/guidance about parenting teenagers. You would struggle to find evidence of high risk. You cannot predict what findings the Court may make, and there are issues in DV matters as to control, and the efforts put into control as opposed to stabilising relationships.
......
It is mooted that a further joint letter of instruction may follow once the Advocates have been able to discuss your comments with their respective clients."
9. An advocates' meeting took place on 24th November 2010 at which the future conduct of the proceedings was discussed. Counsel for the Minister indicated that she was not instructed either to seek discharge of the existing orders, or to discontinue the proceedings. On 26th November, counsel for the father gave notice, as I have stated, that an application would be made to discharge the interim care orders. The hearing was fixed for 3rd December. On 26th November, the guardian of the children confirmed by e-mail that he would not oppose the discharge of the interim care orders and the withdrawal of the proceedings, although he had "serious questions" on the conclusions of the experts.
10. On 29th November, Miss Myerson wrote to Dr Briggs seeking an early written indication as to whether he shared the view of Dr Murray. She stated:-
"If your report is going to be wholly positive, there are concerns that the finding of fact would merely serve to pitch the parents against one another. The Children's Service are mindful of this and to continue proceedings may cause further trauma to the children."
11. Dr Briggs' report was dated 2nd December. He concluded:-
"I believe the parents in this case have settled into a rhythm of life that is not characterised by intense hostility. This is significant in as much as they are facing separation, often a time when hostilities and violence can increase. My (limited) observations of the parents are generally positive, i.e. of their interactions in and around the children. The risk of intimate partner violence in its broadest sense would appear to be significant were the parents to be living together though this risk is reduced considerably given their separation and their separate living arrangements. I struggle to evidence high risk to the children in this case in the current circumstance."
12. In the meantime, and prior to receipt of Dr Briggs' report, skeleton arguments were exchanged. The Minister indicated that she would neither oppose nor support the father's application, and would submit to the wisdom of the Court.
13. At the hearing, that stance was roundly criticised by counsel for the mother, who submitted that the Minister had a duty to express a view as to whether the interim care orders she had obtained should be continued. After some exchanges between the Court and counsel for the Minister, it was confirmed that the Minister did not oppose the father's application. For the reasons given in the Court's judgment of 9th December 2010, the interim care orders were discharged, whereupon the Minister successfully applied to withdraw the application for care orders.
The law in England
14. Miss Benest conceded that in England it was unusual for costs orders to be made in the context of public law children's cases. She submitted, however, that a different funding regime applied in England and she suggested that this Court should lay down its own approach, particularly as in this case both parents were private clients whose costs were not being met by the State.
15. The English approach was expressed by Wilson J in London Borough of Sutton v Davis (Costs) No. 2 [1994] 2 FLR 569 in the following terms:-
"The (liability) point is based on the proposition, enunciated by Butler-Sloss LJ in Gojkovic v Gojkovic (No 2) [1992] Fam 40 and applied every day for many years in the Division, that "it is unusual to order costs in children cases". I call it a proposition in order to obviate sterile dispute as to whether it is a principle or an exception to principle. Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the change of their cooperation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applied in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party. Thus even when a local authority's application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties. But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable: Havering London Borough Council v S [1968] 1 FLR 489 AND Gojkovic v Gojkovic (No 2) above."
16. The English court retains a discretion. Cazalet J stated in Re M (Local Authority's Costs) [1995] 1 FLR 533:-
"I have been urged .... To hold that there is a presumption of no order as to costs in child cases. I do not think that it is necessary to fetter a court's discretion as to costs in this way, by applying presumptions or indeed more specific guidelines."
Submissions
17. Counsel for the father drew attention to the overriding objective set out in Rule 4(1) of the Children Rules 2005 to deal with cases justly. To that end, the obligations of the Court and the parties are to ensure that:-
(i) The case is dealt with expeditiously, fairly and with the minimum of delay (Rule 4(2)(a)(ii));
(ii) Distress to all parties is minimised (Rule 4(2)(a)(iv));
(iii) The case is dealt with in ways that are proportionate to (i) the gravity and complexity of the issues and (ii) to the nature and extent of any intervention proposed in the private and family life of the children and adults involved (Rule 4(2)(c)).
18. Counsel submitted that, having received the report of Dr Murray, and an indication from Dr Briggs on 22nd November 2010 that in essence he agreed with Dr Murray, it was incumbent upon the Minister to review her position. It should have been clear that the threshold criteria were no longer met, and the Minister should not have sat on the fence by adopting a neutral position and submitting to the wisdom of the Court. As the guardian had indicated, this was a "seriously inadequate" position to adopt. The Minister, through the Children's Service, had exhibited a lack of appropriate case management once the views of the experts were known, and had effectively forced the father into bringing his application to discharge the interim care orders in order to avoid the potentially damaging fact finding hearing which was due to commence on 15th December. The Minister had a duty to keep matters under review, to respond expeditiously to changing circumstances, and to ensure that the case was dealt with proportionately.
Conclusion
19. I agree with many of the submissions of counsel for the father in relation to the duties of the Minister in public law proceedings affecting the welfare of children. The Minister should conduct herself expeditiously, fairly, and sensitively, bearing in mind at all times that an interference by a public authority with private and family rights is to be proportionate and limited as far as is reasonably possible. The other side of the coin is, of course, that the Minister should not shrink from fulfilling her duty to seek a care order or other appropriate order in circumstances where the threshold criteria have been met.
20. The Children (Jersey) Law 2002 contains no provisions in respect of costs. The Court does nonetheless have a general power to award costs pursuant to the jurisdiction conferred by Article 2 of the Civil Proceedings (Jersey) Law 1956 which provides:- " ....the costs of and incidental to all proceedings in the Royal Court shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid". In the Family Division, the usual rules as to payment of costs are subject, however, even in private law proceedings, to a more flexible approach: see J v M 2002/127 and R v G [2006] JLR N 20. The Court's policy in relation to public law proceedings relating to children does not appear to have been considered before, but I have no hesitation in laying it down that a costs order against the Minister is likely to be a rare occurrence. The Minister, or the Children's Service on her behalf, should not be deterred by fear of an adverse costs order from fulfilling a statutory duty to seek an interim care order, or from arguing in favour of the maintenance of such an order, in the ordinary course of events. An award of costs against the Minister will therefore be unusual. It would not be helpful to fetter the Court's discretion by trying to define too closely the unusual circumstances in which an order might be made. Clearly, if the Minister has acted illegally, or in gross dereliction of duty, or reprehensibly in some other way, it might well be appropriate to mark the Court's disapproval by making an order for costs. But the Court's overriding objective is to deal with cases justly, and the pursuit of that objective might lead the Court to order costs against the Minister where her actions or inaction had fallen outside the ambit of reasonableness, and the Court considered that fairness to some other party required such an order.
21. Applying those principles to the facts of this case, it does not seem to me appropriate to make an order for costs against the Minister. It is true that by 22nd November, following the meeting between Miss Myerson, acting for the Minister and Dr Briggs, the Children's Service was on notice that the psychologists had formed the view that the threshold criteria were no longer met. But that was not the end of the matter. It was clear that the guardian himself still retained reservations as to whether it was appropriate to withdraw the proceedings. He thought that some voluntary agreement between the Children's Service and the parents would be desirable. Officers in the Children's Service were equally of two minds as to whether the children still required protection. Even the psychologists considered that protective mechanisms would be required if the parents resumed cohabitation. In all these circumstances, it seems to me that it was not at all unreasonable to await the written report of Dr Briggs before arriving at a final conclusion. It was perhaps unfortunate that the Minister's skeleton argument referred to resting upon the wisdom of the Court. That was never going to be an appropriate position for the Minister to adopt. When the Minister has invoked the process of the Court and obtained interim care orders, she must always be prepared to defend or to abandon her position. If the Minister required more time to form a conclusion, there was no reason why that could not be stated. Be all that as it may, the Minister did eventually come off the fence and support the application. Her actions did not, in my judgement, fall outside the ambit of reasonableness. Both applications are accordingly dismissed.
Authorities
In the matter of KK [2010] JRC 220.
London Borough of Sutton v Davis (Costs) No. 2 [1994] 2 FLR 569.
Re M (Local Authority's Costs) [1995] 1 FLR 533.
Children Rules 2005.
Children (Jersey) Law 2002.
Civil Proceedings (Jersey) Law 1956.
J v M 2002/127.
R v G [2006] JLR N 20.