Jersey Unreported Judgments

[2011]JCA104

COURT OF APPEAL

27^th May 2011

	Before     :		J. W. McNeill, Q.C., President; N. Pleming, Q.C., and; Sir Hugh Bennett.
Between		Minister of Health and Social Services		Applicant
And		A		First Respondent
And		B		Second Respondent
And		D (acting by his Guardian Leonora Green)		Third Respondent

IN THE MATTER OF D

Appeal against order of Royal Court of 14 February, 2001, ordering the Guardian to be appointed as a friend to advise and assist the child.

Advocate C. Davies for the Minister.

Advocate B. J. Corbett for the Guardian.

JUDGMENT

BENNETT JA:

1.        This is the judgment of the court.

2.        This is an appeal by the Minister against the decision of the Royal Court (Bailiff and Jurats de Veulle and Liddiard) of 14 February 2011 whereby having made a care order it was further ordered that the child's Guardian be appointed as a friend to advise and assist the child. The short grounds are that the court had no jurisdiction to make the order or, if it did, it was wrong to make such further order.

3.        The child, D, was born in 1997 and is therefore now 13 years old. His mother died in September 2006 and his care then passed to his father, the first respondent. In due course care proceedings were begun. By the time of the hearing in January 2011 there was no dispute between any of the parties that the threshold criteria were satisfied and that a care order should be made. What was in dispute was, broadly speaking, whether the court should make a full care order or whether it should make an interim care order. The court having heard evidence from Jayne Isaac, a social worker, Paul Griffin, and the guardian, and full argument, made a care order, and further the order now under appeal.

4.        The orders that were made were in these terms:-

"And whereas on the 4th February, 2011, the Court, inter alia, adjourned the further consideration of the matter and renewed the said interim order for a further twenty-eight days thereafter.

Now this day, the Court, for reasons set out in a judgment delivered by the Bailiff:-

1. declared· itself satisfied that the said Fourth Respondent, born on the 10th September, 1997, is in need of care, protection or control within the meaning of the said Article 24 of the said law and committed the said Fourth Respondent (whose religious persuasion appeared to the Court to be that of the Church of England) by virtue of Article 24 of the said Law, to the care of the said Applicant; and

2. appointed Ms Leonora Green under Article 75(1)(b) for the limited purpose of assisting the Fourth Respondent in relation to questions of contact with his father."

5.        It is against the order made under Article 75(1)(b) that the Minister appeals to the Court of Appeal. Article 75 provides as follows:-

"75 Representation and assistance for children

(1) Where it considers it desirable in the interests of a child to do so the court

may order-

(a) that the child be separately represented in such proceedings under this Law as the court may specify; or

(b) that the child be assisted and befriended by such person, being a person independent from the Minister, as the court may specify.

(2) Where a child is empowered to bring any proceedings under this Law-

(a) the child may not do' so without leave of the court and the court may only grant leave if it is satisfied that the child has sufficient understanding to bring those proceedings; and

(b) the child may only act through a guardian ad litem appointed by the court.

(3) Without prejudice to any other power of the court to make an order for costs against any party to proceedings. where a child has been granted legal representation under a legal aid certificate for any proceedings under this Law, the court may order that the costs of such representation be paid-

(a) out of public funds; or

(b) where he or she has been given an opportunity to be heard on the question of costs, by any person with parental responsibility for the child who is not a party to the proceedings,

(4) The amount of costs that the court has ordered to be paid under paragraph (I) shall be determined in accordance with Rules of Court made under the Royal Court (Jersey) Law 194826 and where the costs are to be paid out of public funds, such amount shall be paid from the annual income of the States."

6.        The Minister's submissions are summarised in para 1 of the skeleton argument of Advocate Darry Robinson, who, in the event, did not appear for the Minister on this appeal, as follows:-

"1. This skeleton argument is filed in support of the application by the Minister to appeal against an order of the Royal Court dated 14th February 2011 whereby the Court appointed the Guardian in the case to 'advise, assist and befriend' the child concerned, 'D', pursuant to Article 75(1)(b) of the Jersey (Children) Law 2005. This appointment was made at the same time as the care proceedings concluded, with no order being made as to contact. Thus it was made beyond the end of, and outside, any proceedings.

2. It is submitted that the court did not have the power to make such an appointment to take effect after the conclusion of the proceedings, and/or that the decision it made was otherwise plainly wrong. The correct approach in such circumstances is to make the care order, but continue proceedings for contact."

7.        The judgment of the court is reported at In the Matter of D [2011] JRC 039. The Bailiff, giving the judgment of the court, carefully set out the difficult background. In para 16 he set out why the threshold conditions were satisfied. In para 19 it was concluded that there was no doubt that a final care order was in D's best interests. If no order was made D would have to return to the care of his father which in the circumstances of the case was wholly inappropriate.

8.        The issue between the parties, in reality between the Minister and the Guardian, was what contact D should have with his father, who is due to be released from prison in May 2011, and whom D has not seen for some 2 or more years. It was this aspect of the care plan with which the Guardian disagreed. She wanted the proceedings adjourned, with an interim care order in place, until after the first contact session of D with his father. There was considerable oral evidence and submissions on this point.

9.        Ultimately the court rejected the Guardian's submissions and accepted the Minister's case that a full care order should be made. The reasons it gave appear in para 43 of the judgment, as follows:-

"43. We have carefully considered the Guardian's submission in this case that we should defer making a final care order until after the first occasion of contact between D and the father. However, we do not think that would be appropriate. We would summarise our reasons as follows:-

(i) We are satisfied with every other aspect of the care plan. All parties, including the Guardian, agree that the making of a final care order is in D's best interests and that the proposed placement in the new unit is the best course of action.

(ii) Article 2(2) of the 2002 Law requires the Court to have regard to the general principle that any delay in determining a question is likely to prejudice the welfare of the child concerned. These proceedings have been going on since September 2008, which is far longer than one would wish care proceedings to take. There have been valid reasons for the various delays because of the changing position on the ground but, now that the way forward is clear, it is time for there to be finality.

(iii) As the cases make clear, the Court should not use the continuation of an interim order as a means of exercising supervision over the implementation of a care plan. Furthermore, where the only outstanding or uncertain aspect relates to contact, there is no need for the Court to use this mechanism as it retains jurisdiction to deal with any problems over contact under Article 27.

(iv) Whilst we have indicated that we do not agree with the Minister's starting point of twice or four times a year, Mrs Isaac was at pains to emphasise that the Children's Service will adopt a flexible approach over contact. We are content to take the Children's Service at its word in this respect. We hope that the Service takes on board the observations of the Guardian in her evidence and the endorsement of those observations in this judgment.

(v) We are not entirely sure what an adjournment would achieve. The case would have to be deferred until after the first occasion of contact. It is by no means clear what would happen then. We would hope that the most likely outcome is that the Children's Service and the Guardian would at that stage agree on the way forward in terms of contact, in which event the adjournment would have been for no purpose. Conversely, it may be that there would be disagreement in which event the Court would have to rule upon that disagreement.  However, it has jurisdiction to do that under Article 27 and again therefore no purpose would have been' served by the adjournment. On the contrary, there would simply have been continued uncertainty in circumstances where the Court is quite satisfied that in all other respects the care plan is appropriate and that the best interests of D are served by making a final care order.

(vi) Should, contrary to our expectations, any difficulties over contact arise, the father and/or D can bring an application for contact under Article 27. The Court would then be able to intervene."

10.      It is in para 44 of the judgment that the court gives its reasons for making the appointment of the Guardian to advise, assist and befriend D, as follows:-

"44. Whilst the appointment of the Guardian will come to an end in relation to these proceedings upon the making of the final care order, we see no reason why the Court should not at this stage appoint Ms Green under Article 75(1)(b) for the limited purpose of assisting D in relation to questions of contact with the father. The 2002 Law in this respect is in very different terms from the equivalent position under the 1989 Act. The power to make such an appointment under Article 75(1)(b) is not limited to proceedings for a care order. Thus Ms Green will be able to keep herself informed as to how contact is proceeding and will be able to initiate proceedings under Article 27 on behalf of D should she think this necessary. We emphasise however that henceforth her role will be limited to issues of contact. She will have no continuing role in relation to the implementation of the care plan in other respects.

45. For the reasons given, we accordingly make a final care order in favour of the Minister. We make no order for contact at this stage as we are satisfied from the care plan and the evidence before us that the Minister will arrange for direct supervised contact following the father's release from prison and thereafter there is too much uncertainty to be able to make an order for future contact. However, we emphasise the point made earlier, namely that, assuming D remains of the view that he wishes to have contact with the father, the Minister must give full weight to this desire and the risk of the placement breaking down should D be thwarted when balancing that against the other matters relevant on the question of contact. Subject to her consent, we appoint Ms Green under Article 75(1)(b) for the limited purpose described in paragraph 44."

11.      The order made under Article 75(1)(b) was not the subject of any submissions at all before the Royal Court. The proposition that the court could exercise a power thereunder in the way it did appeared for the first time in the draft judgment of the court which was given to Counsel about one week before the judgment was handed down. Counsel for the Minister did not seek to alert the court to the possibility that it was about to make an order in respect of which it had no jurisdiction to make. Accordingly, the court was deprived of any argument on the point and it proceeded to hand down its judgment, make the care order (about which there was no dispute), and also make the order under Article 75(1)(b).  

12.      We summarise the written submissions of Advocate Robinson and the oral submissions of Advocate Davies, on behalf of the Minister, as follows. Despite the apparently wide wording of Article 75(1)(b), upon a correct reading of Article 75(1)(a) and (b) are options for the court within existing proceedings. There is no power for the court to make an order under (b) which outlives the end of the proceedings. The words in (a) "in such proceedings under this Law" must, on a proper construction of Article 75(1), be imported into (b) so as to make sense of (b). Why else would the word "or" be used at the end of (a)? Further, if the construction contended for by Advocate Corbett, for the guardian of D, is correct, then there is no time limit upon the appointment, there are no means by which the court can supervise the appointee, and there is no way that the appointment can be terminated. By contrast, so it is submitted on behalf of the Minister, care and supervision orders can be discharged under Article 33 of the Children (Jersey) Law 2002. A care order cannot be made in respect of a child who has attained the age of 17 years - see Article 24(3). A supervision order under Article 28 ceases to have effect at the end of one year from when it was made unless extended for a total of three years - see Schedule 3 paragraph 5.

13.      It was submitted that the decision of Bailhache DB in Re B [2010] JRC 150 supports such a construction of Article 75(1).  In that case the guardian asked the court to reconsider its decision not to appoint a lawyer for the child. The court looked into the juridical basis for a practice which had grown up in public law cases in Jersey for the child to be routinely made a party to the proceedings, for a guardian to be appointed, and for a lawyer to be appointed to represent the child. The court considered Article 75, and in particular Article 75(1). It looked at the law of England, New Zealand, and of course Jersey. It pointed up the distinction between the position in England and in Jersey under the relevant laws. At para 34 of his judgment the Deputy Bailiff said:-

"34. In summary, it is clear that:-

The effect of the 2002 Law and the Rules is that unlike the position in England and Wales the child is not automatically to be made a party to the proceedings but the Court has a discretion so to order.  It is to be assumed accordingly that this discretion will be exercised on a case by case basis but the starting point is that joining the child as a party needs to be justified;

As a Convention compliant body, the Court must act in such a way as respects the Convention rights of all those who may be affected by the Court's decision and if the Court considers that the procedure it adopts will provide inadequate protection and that the parties before the Court will not between them advance the interests of the child including its Convention rights, then it would be appropriate in those cases to join the child as a party and accordingly to appoint a guardian ad litem;

In many cases the interests of the child, including the child's Convention rights, will be advanced by either the Minister or the parent(s), especially so when they offer competing views as to what is best to be done in the child's interests.  However, there will be cases where, either because the Minister and the parent(s) are agreed on a common course of action or because the parent(s) have not the capacity or inclination for whatever reason to produce an adequate challenge to the Minister's proposals, it will be particularly appropriate for the Court to consider whether the child should be made a party to the proceedings to ensure the child's interests are advanced.  The child welfare officer or person appointed under Article 75(1)(b) is best placed to make the first assessment as to whether that is necessary. 

The obligation under Article 2(3) of the 2002 Law to have regard to the ascertainable wishes and feelings of the child (considered in the light of the child's age and understanding) requires that there be a mechanism by which those wishes and feelings are ascertained.  Where the child is a baby, such a consideration does not arise but the Court will nonetheless be likely to appoint a person under Article 75(1)(b) as I go on to consider later in this judgment.  I cannot imagine that it would ever be appropriate for the Court to proceed without having as a minimum, an independent report from such a person or from a child welfare officer.  Such a person can stand up for the child's Convention rights, and should have access to legal advice if s/he believes that is necessary inter alia to consider whether an application should be made to be joined as a party to the proceedings. 

It will be appropriate in most if not all public law cases that the Court makes orders which allow the person appointed under Article 75(1)(b) or the child welfare officer to have access to all relevant documents and to be given notice of the progress of the case, so that the Article 2(3) obligation can be met, whether the child is made a party or not."

14.      At paras 51 and 52 the Deputy Bailiff considered the functions of a person appointed under Article 75(1)(b):-

"In public law cases, the Minister has frequently asked the Court to appoint a Guardian and the Court has frequently done so.  It seems that fits with Article 75 of the 2002 Law, to which I now return, only if the child is a party to the proceedings.  Article 75 contains provisions which are significantly different from s.41 of the 1989 Act.  Paragraph (1) enables the Court to appoint in its discretion either a lawyer for the child or a person to assist and befriend the child.  The use of the word "or" between subparagraphs (a) and (b) shows that these subparagraphs are alternatives.  The lawyer's skills do not necessarily include the skills of a person to assist and befriend the child, whose functions seem to me to be these if one is to ensure consistency with the objects and structure of the 2002 Law:-

To ascertain the wishes and feelings of the child so that these can be made known to the Court so as to comply with Article 2(3) of the 2002 Law;

To assess all the evidence, including the wishes and feelings of the child, and to report thereon to the Court so that the interests of the child are fully represented before the Court;

In so doing, in effect to audit from the perspective of the best interests of the child (which includes but not exclusively the views of the child) the proposals of the Minister and the other parties, and thus to form a view as to whether the child should be a party and if so as to how to conduct the proceedings on behalf of the child. 

The appointment of a person to assist or befriend the child is particularly relevant where the child is not a party to the proceedings.  The functions which are to be carried out are clearly many of the functions of the Guardian ad litem but that person is not such a Guardian because there is no lis to which the child is a party.  By contrast, Article 75(2) makes it plain that there are other occasions when a Guardian ad litem must be appointed and the child being a party to the proceedings is clearly one such an occasion because the child is otherwise under disability and not able to act. 

The performance of the functions of the person appointed under Article 75(1)(b) requires different skills from those of a lawyer, although it may be that some lawyers might have these skills in addition to legal skills.  Conversely, it may well be that by experience, a person drawn from the Jersey Court Advisory Service or otherwise regularly appointed under Article 75(1)(b) in public law children proceedings or as a Guardian ad litem will acquire some knowledge of the law and indeed it would be surprising if s/he did not.  In my judgment, such a person may consider a lawyer is required to be appointed in cases where s/he reaches the view that:-

Argument on points of law is necessary;

Evidence is to be adduced other than from that person on behalf of the child;

Cross examination of other witnesses or an adequate examination in chief of that person (as opposed to the production of his or her report) requires the presence of a lawyer in Court."

15.      Finally, the Deputy Bailiff summarised the position between paras 68 and 73:-

"Overall Summary

The 2002 Law and the Rules made thereunder confer a discretion on the Court as to whether:-

the child should have a friend appointed for him or her under Article 75(1)(b);

the child should be made a party to proceedings;

the child should have a lawyer appointed for him or her. 

The 2002 Law is clear that the paramount consideration is the welfare of the child.  This brings with it a general principle specifically articulated in Article 2(2) that delay is likely not to be in the child's best interests, and this needs to be weighed in the balance when the Court comes to consider the exercise of the discretions set out above. 

The Court is required to have regard to the matters set out in Article 2(3) of the 2002 Law.  That can perhaps be achieved in some cases, especially where the child is very young, by the Court ordering the preparation of a welfare report pursuant to Article 9(1)(a) of the 2002 Law but in most cases the Court should appoint a person under Article 75(1)(b) with the concomitant obligations of such an appointment as set out in paragraph 51 above.  Whether an Article 75(1)(b) appointment is made, or whether the Court orders the preparation of a welfare report under Article 9(1)(a), it is important that the Court orders that the officer has access to all relevant documents in the possession of any of the parties, other than those documents which are legally privileged, and that the officer is given notice of the progress of the case so that the Article 2(3) obligation can be met. 

The Court should consider whether or not to join the child as a party to the proceedings taking into account the matters described in paragraphs 33 to 35 above.  This is a decision that can be kept under review.  The most telling cause for review would be if the person appointed under Article 75(1)(b) or child welfare officer considers that the child should be joined, and that is most likely to be the case where it can be demonstrated that one or more of the consequences of becoming a party, as described in paragraph 33 above, would be to the significant advantage of the child. 

If the Court appoints a child welfare officer or person under Article 75(1)(b) it is an implied term of that appointment that such officer or person should have access to legal advice if it is felt that would be necessary or appropriate, and the Judicial Greffier will arrange funding for such advice out of the court and case costs vote, applying the principles set out in paragraph 60 above. 

If the Court has joined the child as a party and either the child is sufficiently mature to express a view which is different from the view of the Guardian ad litem on the matters before the Court, or the Guardian ad litem satisfies the Court that it is in the best interests of the child for the child to have an active role in the proceedings such as to require legal representation, the Court should then appoint a lawyer for the child under Article 75(1)(a)."

16.       In his written submissions Advocate Robinson also pointed to many of the rules under the Children Rules 2005, which it is unnecessary to set out, as indicating that Article 75(1)(b) is concerned with the appointment of a person to advise, assist and befriend the child within existing proceedings, see in particular Rules 9(3) and (4), 11(3)(b), 12(1), 13(1), 14(6), 17(2)(b), 18(1), 20(2), 22(2), 23(2), 24(2) and (9), and 25(1)(c). By way of example, Advocate Davies took us to Rule 13(2)(d) which provides, so far as is relevant to the instant case:- 

"The Court in any proceedings may, ... give, vary or revoke directions for the conduct of the proceedings, including -

(d)     the appointment of a person under Article 75;"

17.      It was next submitted that the correct approach for the court in the instant case to have followed was that followed by Munby J (as he then was) in Re K (Care Proceedings) (Care Plan) [2008] 1 FLR 1.  In that case the judge held that the justices had fallen into error in refusing to make a care order, notwithstanding that they believed it to be in the best interests of the child, because they did not approve of that part of the care plan dealing with contact. At para 39 and part of para 40 Munby J said:-

"[39] What the justices could, and in my judgment should, have done in the circumstances was, as it were, to say:

"Except in relation to contact, we approve the local authority's care plan. In relation to contact we are not prepared to approve the care plan; indeed, we reject it. But that is not a reason why we should refuse to make a care order when all the other circumstances so plainIy demand that we do. On the contrary, we must make a care order, though making it explicitly clear that questions of contact will require further consideration by the court and that we are not approving the local authority's care plan so far as it relates to contact. K must remain in care. The local authority must share parental responsibility for K with her mother and must now implement its plan for permanency, a plan which, except in relation to contact, we approve."

[40] The justices could then have gone on to deal with the question of contact, either by making an order then and there, or by giving directions for the future determination of the issue, or by leaving it to the mother (or the children's guardian) to make an appropriate application. In the circumstances, they might have been well advised to adopt the course suggested to me by Miss Lugg, that is to adjourn the placement application (and with it the consideration of contact in accordance with ss 26 and 27 of the Adoption and Children Act 2002) to a hearing after the position of the foster carers had been resolved. The one thing they should not have done is the very thing which, unfortunately, they did, that is, to refuse to make a care order· because, and only because, of their concerns about contact."

18.      Accordingly it was submitted that what the court in the instant case should have done was to make the care order, which it did, but then to make directions for a further contact hearing or leave it to the parties to bring the matter of contact back to court. If it had given directions for a further contact hearing then the guardian would continue to have acted on behalf of D and advised, assisted and befriended him. That was the correct route to go down. The court should not have made an order under Article 75(1)(b).

19.      Neither the First nor Second Respondents appeared before us. They have indicated to the Greffe that they supported the submissions to be made on behalf of D and thus were excused attending.

20.      Advocate Corbett, on behalf of D acting through his guardian, opposed the appeal and contended that the court did have jurisdiction and was right to make the order it did. In her submissions she argued that the words of Art 75(1)(b) should be given their natural meaning. The wording is clear and it is not necessary to interpret them by reference to the Children Rules 2005 or any other secondary legislation. She referred to passages in the decision of B.F. Burt and H.I. Burt v States of Jersey [1993] JLR 376 where at p.379 Commissioner Hamon cites a passage from the speech of Lord Herschell in Bank of England v Vagliano Bros [1891] AC 107, at page 144-145:

"I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law..."

21.      As to jurisdiction, she submitted that the appointment was made during the course of the proceedings and extends beyond the end of the proceedings in the same way as the care order was made within the proceedings and continues beyond their end. There is nothing in Article 75 which limits the appointment of a befriender to act only in the course of the proceedings. Further the word "proceedings" does not appear in Article 75(1)(b). She did not accept that the decision of the Deputy Bailiff in Re B, supra, supported the appellant's case. In Re B the Deputy Bailiff referred to guardians and persons appointed under Article 75(1)(b) interchangeably, whereas they are not.

22.      She further submitted that there was a need to make such an order in the particular circumstances of the case - see paras 9 and 10 of her written submissions, which indeed are echoed in para 43(vi) and the penultimate sentence of para 44 of the Royal Court's judgment. Finally, she submitted that the appointment would not affect the way that the Minister (and those acting on her behalf) carried out her duties and responsibilities under the care order.

23.      We consider that the submissions on behalf of the Minister as to the construction of Article 75 are to be preferred. D was the subject of care proceedings initiated by the Minister pursuant to Part 4 of the Children Law 2002. On 23 September 2008 a guardian was appointed for D (and other siblings) to represent him in the care proceedings. We assume that that appointment carried with it legal representation. D had no right to be made a party or to be represented. The court exercised its discretion under Article 75(1)(a). It need not have done so. It could have exercised its powers under (b). If it had done so it is, in our view, absolutely plain that the person appointed under (b) would have been appointed in the care proceedings.

24.      Article 75 is headed "Representation and assistance for children". It is pertinent to pose the question - for what purpose? The answer lies in Article 75(1).  (a) gives the court the power to order that the child be separately represented "in such proceedings", which in this case are care proceedings. If the court was not minded to exercise that power it was given an alternative, because of the word "or", namely to appoint a person under (b). The person so appointed would then assist and befriend the child in the proceedings in which the child was involved. Further the incorporation of the words in (b) "being a person independent of the Minister" must be a reference, at least in care proceedings initiated by the Minister, to an appointment made "in such proceedings". So, the purpose of Article 75(1) is to give the court power to order, at least in care proceedings, either that the child be separately represented or, if not, he be assisted and befriended by a person independent of the Minister as the court may specify.

25.      The making of a care order passes the child's parental responsibility to the Minister, see Article 26(1)(b), which is to be shared with D's father. The proceedings are then at an end. The court has determined that the threshold criteria are satisfied and approved the care plan. The court, correctly in our view, rejected making an interim order and made a full care order. In our view it was not then open to the court to make an order under Article 75(1)(b). The proper course would have been to have given directions re contact and thus the guardian would have remained in the case to act in D's best interests. The concerns of the court expressed in its judgment at paras 43(iv), (v), and (vi) would be met. It is our view that a person appointed under Article 75(1)(b) is appointed for the benefit of the child within proceedings, and not after proceedings are concluded. If the court has made a care order, which, as we have said, passes parental responsibility to the Minister, it is the Minister who is responsible for the best interests of the child and the Minister is not subject to the supervision of the court in the discharge of her responsibilities. If circumstances arise which may require the discharge of the care order, the matter can be returned to court. Similarly if disputes arise as to contact, an application can be made under Article 27. The guardian can then be reappointed. But a permissible halfway house can be constructed, as per Munby J in Re K, namely that, although a care order is made, the matter of contact can be ordered to be brought back to court within a defined period of time, with the guardian remaining as the child's guardian.

26.      We do not accept that because a care order or a supervision order, made in the proceedings, endures beyond the end of the proceedings lends any weight to the submissions of Advocate Corbett. The logic of her submissions drove her to accept that even if a court were to make a supervision order, involving as it does an obligation on the supervisor to assist and befriend the child, the court could still in theory make an appointment under Article 75(1)(b). In our judgment that would be a bizarre result.

27.      Furthermore, a care order must cast a duty upon the Minister, when exercising parental responsibility with a child's parent/s to advise, assist and befriend the child. An appointment under Article 75(1)(b) might lead to conflict between the Minister and the appointee. As Ms Davies submitted, the Minister must be left to get on with her duties and responsibilities. If it is considered that she is not acting in the best interests of the child then either the care order is capable of being discharged or issues as to contact can be ventilated before the court under Article 27.

28.      The Minister is, we believe, correct when submitting that the way to protect D's interests is for an application in respect of contact to be deemed to have been made. The role of the guardian, qua guardian, would continue. D's interests would be well protected. Indeed Ms Corbett accepted in her submissions that D's interests would be better protected by the guardian, qua guardian, than by an appointee under Article 75(1)(b), even if that person happened to have acted as the guardian hitherto. There would be no need for the guardian to be reappointed thus eliminating delay in that respect. A deemed application for contact would be in place thereby obviating the need to reactivate contact proceedings. Finally, the role of a guardian, as Ms Corbett was at pains to point out, has a much greater role than an appointee under Article 75(1)(b).

29.      Accordingly we allow the appeal. We will hear counsel on the wording of the order to be substituted in place of the appointment under Article 75(1)(b).

30.      During the course of submissions, in answer to questions from the court, we were told that it is the practice of counsel to draw to the court's attention, after receipt of the draft judgment and before handing down, to errors such as typographical mistakes, factual errors, wrong references and other similar minor corrections - see para 4 of the Royal Court's Practice Direction RC 10/01. The Practice Direction makes it clear that the primary purpose of supplying the judgment in draft is to enable consideration to be given to what consequential orders should be made. But, said Ms Davies, it was not the practice of counsel to seek to make further submissions arising out of matters in the draft judgment, even if an issue of jurisdiction might arise.

31.      We wish to say nothing that would, or could be seen to, undermine the Practice Direction. However, in the instant case, the Royal Court had had no submissions made to it about Article 75(1)(b) and thus no submissions whether the court had jurisdiction thereunder to make the order it did. In those circumstances we feel that it was incumbent on counsel to have raised the matter with the court prior to handing down the judgment. Had that been done we feel confident that the court would not have made the order it did and the expense to the public purse of this appeal would not have been incurred.

Authorities

In the matter of D [2011] JRC 039.

Children (Jersey) Law 2002.

Re B [2010] JRC 150.

Children Rules 2005.  

Re K (Care Proceedings) (Care Plan) [2008] 1 FLR 1.

B.F. Burt and H.I. Burt v States of Jersey [1993] JLR 376.

Bank of England v Vagliano Bros [1891] AC 107.