Jersey Unreported Judgments

[2011]JRC156

Royal Court

(Family)

5 August 2011

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY MRS L

AND IN THE MATTER OF C.

Mrs L appeared in person.

judgment

the bailiff:

1.        This is an ex parte application by Mrs L ("the applicant") for leave to bring proceedings for judicial review.  Her amended application and supporting affidavit are dated 20th May, 2011. 

2.        Her application relates to what she contends was the unlawful removal of her children C (then aged 12) and A (then aged 7) in April 2008 by the Children's Service on behalf of the Minister of Health and Social Services ("the Minister").  She seeks a declaration that the removal was unlawful and also seeks damages for a breach of her rights under Article 8 of the European Convention on Human Rights. 

Background

3.        The background is quite complicated but the relevant facts as they appear from the papers before me would seem to be as follows. 

4.        On 2nd April, 2008, Mrs L's husband, who was the step-father of C and A, went to collect C from Scouts.  When doing so he saw C behaving very badly towards a girl.  When he got home he hit C a number of times to the head and arms by way of disciplinary action for C's misconduct.  C reported the incident to the school the next day and the police became involved.  They suggested that C and A should be placed away from the home in order that video evidence could be obtained from them.  The Children's Service declined the suggestion of the applicant that the children should stay with their grandmother and instead placed them with foster carers. 

5.        A was returned home on 10th April but C stayed with the foster carers and indeed he has remained there ever since. 

6.        Mr L was charged with assault and in due course was convicted on 18th September, 2008, the Magistrate having rejected Mr L's defence that he was administering reasonable corporal punishment. 

7.        On 12th September, 2008, the Royal Court granted the Minister an interim care order in respect of C.  He remained with the foster carers and on 14th October, 2009, following a contested hearing, the Royal Court made a full care order in favour of the Minister in respect of C (In the matter of C) [2009] JRC 200. 

8.        On 18th November, 2009, S-v-AG [2009] JRC 226, the Royal Court allowed Mr L's appeal against his conviction on the basis that there had been a mis-transcription of the police interview which may have misled the Magistrate.  A re-trial was authorised but I was informed by Mrs L that the prosecution did not proceed with the case. 

9.        On 22nd March, 2010, the Court of Appeal dismissed Mrs L's appeal against the decision of the Royal Court to grant a full care order In the matter of C [2010] JCA 063.  Subsequently the Judicial Committee of the Privy Council refused leave to appeal although it referred to "certain criticisms which could be made of the actions of the Children's Service".  The upshot is that Mrs L has exhausted her remedies in respect of the making of the care order. 

10.      From the papers and from what Mrs L said to me at the hearing, her concern in these proceedings is the legality of the actions of the Minister (through the Children's Service) for the period between 6th April and 12th September, 2008.  She accepts that Article 41 of the Children (Jersey) Law 2002 ("the 2002 Law") entitles the police to take a child into police protection for up to 72 hours, so that the removal of the children until 6th April was lawful.  She also accepts that C's removal was lawful from 12th September, 2008, (when the interim care order was granted by the Court) onwards.  However, she says that there was no lawful authority for the Children's Service to have withheld C from her care between the expiry of the 72 hours and the making of the interim care order and there was similarly no authority for them to retain A for the period from the expiry of the 72 hours until he was returned to her on 10th April.  She goes on to assert that this unlawful detention and removal of the children has damaged her relationship with C and led to the making of the care orders and the consequential damage to her family life. 

11.      It appears that the outcome of this contention on her part will turn on the evidence.  Mrs L contends that she did not consent to the children remaining out of her care during this period whereas it appears that the Children's Service will allege that they were acting with Mrs L's consent, so that C was in voluntary care until the making of the interim care order and A was in voluntary care until he returned to his mother. 

12.      A complicating factor is that the applicant has issued proceedings by way of Order of Justice against the Minister and the States Employment Board ("the Board") on the basis that they are both liable for the alleged unlawful actions of the Children's Service.  Those proceedings came before the Court for the first time of 1st July, 2011.  As originally framed, the Order of Justice sought damages and declaratory relief for breach of the applicant's human rights, for breaches of the Children's (Jersey) Law 2002 and for misfeasance and misconduct in public office.  When the matter came before the Court, counsel for the Minister and the Board asked for the matter to be adjourned so that the applicant could amend her pleadings so as to comply with the requirements of Rule 9A of the Royal Court Rules in so far as concerned her claim under the Human Rights (Jersey) Law 2000 ("the Human Rights Law").  During the course of the hearing, Commissioner Bailhache raised the possibility of the applicant removing her claims under the Human Rights Law so as to concentrate on her remaining claims.  However, he did not say that this had to be done.  It appears that the applicant has acted upon that suggestion because I have been shown an amended Order of Justice which has removed her claim under the Human Rights Law. 

Decision

13.      During the hearing I put to the applicant that she could not bring both sets of proceedings when they both arose out of essentially the same facts.  She would have to choose one or the other.  She replied that she wished to continue with the Order of Justice in its amended form but to proceed with her Human Rights claim in judicial review proceedings.  She referred to the fact that Article 8(3) of the Human Rights Law required proceedings under that Law to be brought within one year of the date on which the act complained of took place.  She was therefore out of time. 

14.      The applicant put her case with conspicuous moderation and courtesy.  Furthermore, although I naturally have no way of knowing the facts as this stage, if it be the case that she did not consent to the removal of C and A from her care, she would appear to have a powerful case for saying that their retention away from her care after the expiry of 72 hours was unlawful. 

15.      Nevertheless, I am quite satisfied that she cannot pursue both actions at the same time.  In essence she has one claim, namely that the Children's Service were not entitled to remove the children from her care during the periods referred to above and had no lawful authority for not allowing them to return to her care.  If she is correct, that may or may not give rise to one or more remedies; e.g. a declaration that the Minster acted unlawfully and/or that damages be awarded for breach of her Article 8 rights or otherwise.  But the fact that she may seek more than one remedy does not alter the fact that all the claims arise out of one set of facts.  The matter must, in my judgment, be dealt with in one set of proceedings. 

16.      Having so decided, I have no doubt that the correct proceedings in which the issues should be resolved are the Order of Justice proceedings currently before the Royal Court.  I say that for the following reasons:-

(i)        Judicial review is a remedy of last resort, only to be deployed when other available remedies have been exhausted (see Syvret-v-AG and the Connétable of Grouville [2011] JCA 146 per Beloff JA. at para 25(ii)).  Here, there is an alternative remedy, namely the Order of Justice proceedings. 

(ii)       In the same paragraph, Beloff JA refers to the fact that the machinery of judicial review is not designed to cope with the resolution of controversial issues of fact.  This case would appear to turn on whether or not the applicant consented to the children remaining in the care of others.  That will require oral evidence, cross-examination etc. judicial review is not a suitable process for that sort of hearing. 

(iii)      The applicant is out of time in relation to both proceedings.  Thus proceedings for judicial review must be made promptly and in any event not later than three months from the date when grounds from the application first arose - see RCR16/3.  The latest date upon which the grounds for the application could have arisen was immediately before the interim care order was made in September 2008.  In the case of the proceedings by way of the Order of Justice, there is a time limit of one year from the same date if the Human Rights claim is included.  In each case there is a discretion to extend the period but I do not consider that it would be any easier for the applicant to persuade me to extend the period for judicial review than it would be to persuade the Court to extend the time for the proceedings under the Human Rights Law; on the contrary if anything the latter would appear easier as she is less out of time and there is no overriding requirement to act promptly as there is in judicial review proceedings.  Thus she will suffer no prejudice in this respect by having to proceed by Order of Justice rather than by way of judicial review. 

(iv)      I appreciate that at present she has removed her Human Rights claim from the Order of Justice but I consider that this was done without thinking through the consequences following the discussion before Commissioner Bailhache, who would not have had this issue at the forefront of his mind.  In my judgment she should be granted leave to amend her Order of Justice in order to re-instate the Human Rights claim so that, subject to the Court extending the time to bring that claim, all her claims can be considered in the one set of proceedings with the Court having the advantage of hearing all relevant evidence. 

17.      For these reasons I therefore refuse leave to apply for the judicial review on the ground that the applicant is way out of time, that she has an alternative remedy, namely proceedings by way of Order of Justice, and that these are the more appropriate form of proceedings to deal with the particular claims which she is bringing because of the disputed facts.  I emphasise that my decision does not preclude her bringing her claims and seeking a ruling as to whether, on the evidence, the Children's Service were acting lawfully or not.  She is perfectly entitled to bring those proceedings by Order of Justice and to seek a ruling as to the lawfulness of their action.  She is also entitled in those proceedings to seek damages under the Human Rights Law for breach of her Article 8 rights assuming she can persuade the Court to extend the time limit for bringing such a claim. 

18.      As a postscript, the applicant asserted during the hearing that she has not currently been granted the contact with C which was envisaged by the Court when it made the final care order.  I do not know whether this is correct or, if it is correct, whether there has been a change of circumstances which justifies the lack of contact.  However, I drew the applicant's attention to Article 27 of the 2002 Law which allows her to bring an application for contact if she should be so advised. 

Authorities

In the matter of C [2009] JRC 200.

S-v-AG [2009] JRC 226

In the matter of C [2010] JCA 063.

Children (Jersey) Law 2002.

Human Rights (Jersey) Law 2000.

Syvret-v-AG and the Connétable of Grouville [2011] JCA 146.