[2011]JRC098
royal court
(Samedi Division)
13th May 2011
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats de Veulle and Fisher. |
IN THE MATTER OF T
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002.
Advocate E. l. Burns for the Minister for Health and Social Services.
Advocate D. P. Le Maistre for the Mother.
judgment
the deputy bailiff:
1. The Minister has made an application for a full care order under Article 24 of the Children (Jersey) Law 2002 ("the Law") in relation to T, who is aged 10 years and five months. Pending hearing of that application, the Minister has made application for an interim care order pursuant to Article 30 of the Law. This was not contested by the mother. Nonetheless the Court is required to be satisfied that there are reasonable grounds for believing that the child is suffering or is likely to suffer significant harm, attributable to the care given to the child or likely to be given to the child if the order is not made, that care not being what it would be reasonable to expect a parent to give the child, as set out in Article 24(2) of the Law. There is no suggestion that the child is beyond parental control. On 18th March, 2011, we made an interim care order and we now give our reasons for that order.
2. In accordance with well established practice in Jersey, the Court does not invite full and detailed evidence on uncontested applications of this kind, but it is required firstly to have some formal evidence of the matters upon which the Minister relies and secondly to conduct a sufficient investigation so as to be satisfied of the matters of which the statute requires the Court to be so satisfied before any care order or interim care order can be made. In this case therefore, the Court was faced with a full statement from the social worker for the child which was sworn as being true to the best of her knowledge, information and belief, and we have had regard to the contents of that statement and to the other documents put before the Court, including in particular the Acts of Court reflecting previous proceedings.
3. On 19th September, 2008, the Court granted the Minister an interim care order in respect of the child. The interim order was renewed for consecutive periods of 28 days from 14th November, 2008, until 13th October, 2010, when the Act of the Royal Court shows that for reasons set out in a judgment delivered by Commissioner Sir Philip Bailhache, leave was given to the Minister to withdraw the application for a full care order. Unfortunately the bundle presented by the Minister did not include the judgment of the Royal Court of 13th October, 2010, which is regrettable.
4. In cases of this nature it is very desirable that the Court receiving the application should have all relevant previous judgments of the Court before it, particularly because it might be thought, on the face of it, surprising that the Minister should be back in Court seeking a full care order a matter of months after withdrawing a similar application.
5. At all events, the Minister's case before us on 18th March was that the child has suffered and is at risk of suffering serious harm in the form of emotional harm and neglect, caused as a result of the mother's bi-polar disorder and psychotic behaviour. We are satisfied that this is established. The child has witnessed her mother trying to harm herself and taking an overdose of tablets. The mother has not regularly taken her medication, with the result that the child has been exposed to numerous periods of disruption in her care. Since 2004, there have been eight occasions when the child has been accommodated with adults other than her mother due to the mother's inability to care for her. The last period when the child was admitted to foster care for a lengthy period of time was between 11th September, 2008, and 27th July, 2010, and furthermore she has been with foster carers since November 2010.
6. On 15th November, 2010, the mother was admitted to St Saviour's Hospital under Article 7 of the Mental Health (Jersey) Law 1969.
7. On the basis of the material which is set out in the social welfare officer's report dated 14th March, 2011, the Court had no doubt that an interim care order was the appropriate order to make and that the arrangements for bringing the matter forward for a full care application hearing should be expedited.
8. The Court was asked to make a number of directions including directions that the child be convened as a party to the proceedings and that a lawyer be appointed under Article 75(1)(a) of the Law in respect of the child. No consideration appeared to have been given by the Minister to the procedural analysis required by Re B (separate representation of minors) [2010] JRC 150. When pressed, counsel for the Minister submitted that a failure to convene the child as a party to the proceedings and appoint a legal representative would cause delay, but no explanation as to why such a delay would be caused was forthcoming.
9. In the circumstances the Court has not given directions that the child be convened as a party to the proceedings at this stage. There is no evidence that the guardian will not be able to assist the child and represent her views - apparently held strongly - to the Court at the time the full care application is made. Furthermore, there is no evidence at present that the guardian needs to have a legal representative to assist in connection with these proceedings, although if the guardian should form the view that legal advice is needed, he or she can of course apply to the Court when consideration will be given to such application.
10. It is clear that the application for a full care order should come on for hearing in early course. The Court has made directions which require the preparation of addenda to the reports which were prepared in relation to the previous care proceedings which were withdrawn by the Minister last October. Three months has been given for the preparation of such addenda, which seems to us to be generous. There will be a directions hearing within 15 weeks of the granting of the interim care order, and in our view the parties should be looking for a hearing of the full care order application this autumn. At that time the child will have attained the age of 11 years, or will very shortly thereafter do so and it is the Court's view that final consideration should be given to appropriate arrangements to introduce stability into this young person's life as soon as possible, whatever those arrangements might be, and whether or not as a result of a full care order.
11. There is one further matter which we wish to mention. The Minister's bundle contained exclusively references to authorities in England and Wales under the Children Act 1989. That practice was completely understandable when the Law was only recently in force, but the practice ought to be to refer to decisions of the Royal Court rather than the English Courts where it is possible to do so, and there have been many such decisions over the last three or four years. Where there is no decision of the Jersey Courts, of course it is appropriate to look at guidance which may be obtained on the point at issue from decisions elsewhere, but as a matter of principle, given the doctrine of stare decisis, which we apply, it is the Jersey Courts' decisions which ought to be supplied by way of authority. Of course that is true not only as a general principle but is particularly true in these cases where the Law is not in identical terms to the Children Act 1989 as amended.
Authorities
Children (Jersey) Law 2002.
Mental Health (Jersey) Law 1969.
Re B (separate representation of minors) [2010] JRC 150.
Children Act 1989, as amended.