[2011]JRC241
Before : |
W. J. Bailhache, Esq., Deputy Bailiff, sitting alone. |
Between |
Minister for Health and Social Services |
Applicant |
And |
(1) A |
Respondents |
|
(2) B |
|
|
(3) C, (4) D and (5) E acting through their Guardian Anthony Williams |
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IN THE MATTER OF THE CCC CHILDREN
AND IN THE MATER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF D (BORN IN OCTOBER 2000)
AND IN THE MATTER OF THE PERMANENCE PANEL
Advocate C. Hall for the Guardian.
Advocate V. Myerson for the Minister.
judgment
the deputy bailiff:
1. This is an application for directions by the Guardian seeking an order that the Minister permit the Guardian to attend the Permanence Panel meeting on 6th December 2011. The application was made at short notice on 30th November, and the parents were not represented and not present.
2. The child was born in October 2000 and is currently therefore 11 years old. On 17th December 2000, she and her sister were made the subject of an interim care order on the grounds of neglectful parenting and poor home conditions. The child remained in the care of her parents notwithstanding that order. There were further allegations of seriously neglectful conditions in which the child and her siblings were living in 2005 and they were then removed from the property occupied by their parents. In March 2006, the interim care orders were replaced with supervision orders and in February 2007, the case file in the Children's Service on the care of the child and her sister was closed.
3. In April 2007 the child and her sister were then voluntarily accommodated with the paternal grandparents following concerns about their living conditions. In November 2008 the case was referred back to the Children's Service by the school which the children attended. A multi-disciplinary meeting took place in January 2009, and on 26th January of that year, the child and her sister were placed with their paternal grandparents. In September 2009 the child was voluntarily accommodated with her current foster carer.
4. On 5th March 2010, the Minister made an application for a care order for the child, her sister and her brother. In October of that year, the current foster carer indicated that she wished to be considered as a long-term foster carer. In November 2010, the Court ordered a final hearing take place to establish threshold and to deal with disposal, and this was set for 10th and 11th March 2011. On 10th December 2010, Dr Bryn Williams presented his report recommending that the sisters should be fostered separately.
5. In January 2011, the current foster carer for the child indicated to the Children's Service that she would not be able to be assessed as a long-term foster carer until Easter 2011 due to work commitments. On 4th March 2011, Ms Emmy Lindsey, the Team Manager of Fostering and Adoption Jersey, which is part of the Children's Service, made a statement confirming that the assessment of the current foster carer would not be complete until July 2011. As a consequence, the disposal element of the final hearing was adjourned until 11th October, and the case involving the three children was bifurcated so that the child was treated separately from her brother and sister.
6. On 12th April 2011, the Minister contacted the Guardian's legal representatives to inform them that the placement of the child with the current foster carer was breaking down and in June, the Minister informed the Guardian's legal representatives that the current foster carer was no longer being considered as a long term foster carer. This changed again on 29th July when the Minister informed the Guardian's legal representatives that due to a change in her working hours, the current foster carer would now be considered for long-term foster care. At a directions hearing the following week, I ordered that a final hearing in respect of the child be held on 5th March 2012, although this has subsequently been changed by agreement to the week commencing 26th March. At that time, the arrangements for the child will need to be considered by the Court as part of the application for a full care order, the threshold having been found to have been passed on 10th and 11th March. In practice, the options before the Court at that time are likely to be either the approval of long-term foster care with the current foster carer or approval of an arrangement which would see the child accommodated with foster carers in the United Kingdom, no other foster carers in Jersey having been identified.
7. I am told that the Adoption and Permanence Panel considers the case of every child referred to it by the Children's Service and makes a recommendation to the Service as to whether a child should be placed in a permanent family either through adoption or long-term fostering. It is an independent panel which includes a number of volunteers, mostly unpaid, but who have valuable personal experience. Ms Lindsey will attend the meetings of the Permanence Panel to assist the Panel in administrative matters. In any particular case, the Panel will consider the Child Permanence Report, the form F2 Report, which is an assessment of the suitability of long-term foster carers for a named child, and it may well hear from the putative foster carer directly. After hearing the reports it retires to consider its recommendations. It can either make a positive recommendation or a negative recommendation or it can defer making a recommendation and request further specific information.
8. The recommendation is then passed to the Children's Service decision maker for endorsement or otherwise, although we were told by Advocate Myerson that there had not been a case so far when the recommendation of the Permanence Panel had not been accepted. Advocate Myerson also accepted that the Permanence Panel is a public authority for the purposes of the Human Rights (Jersey) Law 2000.
9. For the Guardian Advocate Hall submitted that he wanted to attend the meeting of the Permanence Panel. He would not speak unless questioned by the Panel on the report he had submitted. If the prospective foster carer was asked questions by the Panel, or wanted to say anything to the Panel, he would certainly wish to hear what the prospective foster carer would have to say. He would also want to hear what the assessing social worker would have to say. He did not wish to retire with the Panel while the members of the Panel considered their decision. He wanted no part in that. His application was to be viewed against a background where the prospective long-term foster carer had blown hot and cold over the last months as to whether she wanted to commit to long-term foster care. When the Guardian last met her, he had not been sure that she was making the decision to put her name forward as a long-term foster carer for the right reasons - the Guardian was fearful that she might be doing it out of guilt at how difficult it would be for the child if she did not do it. This needed to be properly assessed. Given the importance of the recommendation of the Permanence Panel, the Guardian wanted to be satisfied that a robust assessment had been made in the child's best interests, which it was of course his duty to protect.
10. Advocate Hall agreed that it was not normal practice for a Guardian to attend meetings of the Permanence Panel, but if there were exceptional circumstances, there was no reason not to permit that to take place. In this case, only a few months ago, the placement was breaking down, which made the circumstances exceptional. I was told that the CAFCASS guidelines are that if a guardian requests to be present, the Permanence Panel should agree. The Guardian, through Advocate Hall, emphasised that he did not wish to be present so as to criticise. He wanted to be able to be supportive.
11. Advocate Hall also submitted that transparency and fairness in the process were important features. The Minister would be represented at the Permanence Panel meeting by the social worker for the child, who would be present for the discussion, but not for the decision. It was said that if he could be present, why should not the Guardian be present also?
12. For the Minister, Advocate Myerson submitted that the Permanence Panel was an independent panel which was not before the Court. She submitted that the attitude of the Guardian had been made clear over the last months, namely that he did not think that the current foster carer would be a suitable long-term foster carer and she said that all the Guardian really wanted was to arm himself with arguments which he could put before the Court in March to that effect. She criticised the Guardian's alleged failure to attend the statutory looked after children's reviews on a regular basis. She said that the core issue of the current foster carer's staying power would be tackled in the assessing social worker's report which would be a very substantial document. The Guardian would not only see that document but would also see the minutes of the meeting of the Permanence Panel, which could be something very close to verbatim minutes.
13. According to Ms Lindsey, the objections to the Guardian being present at the meeting of the Permanence Panel did not turn on the issue of confidentiality, because indeed copies of all the reports and minutes would be disclosed in any event. It was a question of process, and Ms Lindsey had indicated to the Court that the Children's Service tried to follow UK guidance on process and procedures although there was little guidance on the attendance of non-panel members with the Panel. Her enquiries of relevant local authorities in the United Kingdom suggested that such attendance never took place. The Guardian's enquiries of different local authorities suggested that, while it was unusual, it could take place. She had spoken to the independent Chairman of the Panel, and also the agency decision maker in the Children's Service and neither of them considered that it was appropriate for the Guardian to attend. As far as the Children's Service is concerned, a desire to satisfy himself that the analysis of the Panel was robust and addressed the key questions was not the job of the Guardian - the robustness of the Panel's approach would be a matter for the Children's Service to address. Drawing on these points, Advocate Myerson suggested that if I were to acquiesce in the application which had been made, it would extend permanently the decision of the Court of Appeal in Re X [2009] JLR 143 which was the only previous authority of the Jersey Courts which touched on this area.
14. Re X was a case where the Guardian applied for judicial review of the Minister's decision to refuse to provide the necessary funding or placements of the children with English public authorities. The Children's Service had presented a business plan to the Health and Social Services Placement Panel setting out the proposed English placements and the unanimous professional opinion that the urgent needs of the children could only be met by those placements. The Panel considered a recent confidential plan ("the Williamson Implementation Plan") for the remodelling of Jersey residential services and the likelihood of significant investment in Children's Services, but that plan had not been disclosed to the guardian ad litem or to the childcare professionals. The guardian ad litem was not permitted to attend the meeting of the Placement Panel and was given merely a few hours notice to make written submissions. In the event, the Panel recommended the development of local specialised therapeutic provision for the children and the Senior Management Team in the Children's Service subsequently agreed with the Panel's conclusions, hence the application for judicial review.
15. The Court of Appeal's decision to quash the Minister's decision for procedural impropriety really turned upon the fact that the Williamson Implementation Plan, which had greatly influenced the decision, should have been but was not disclosed to the guardian ad litem and his legal advisers before the decision had been made. This had breached a primary rule of natural justice, namely that a person whose rights or interests might be affected by a decision should have a reasonable opportunity to see and comment on matters which might be used to his disadvantage.
16. The Court of Appeal however then also turned to the issue of making representations in the context of the decision taking process and at paragraph 60 to 69 set out some reasoning before reaching conclusions at paragraphs 70 and 71 which were that:-
(i) The Minister must disclose all information likely to influence his decision to the guardian and lawyers acting for the interested parties (including the parents);
(ii) He must do so in sufficient time to enable them to make written representations;
(iii) If a request is made for an opportunity to make oral representations, he should consider carefully whether there is any good reason to refuse it, bearing in mind that the process is not classically adversarial but is designed to safeguard and promote the welfare of the relevant children, and also the fact that a refusal to allow oral representation might mean that the Minister lacked complete and perhaps important even vital information. The Court of Appeal concluded at paragraph 71 by saying this:-
"For avoidance of doubt, we observe that we see nothing objectionable in either the Placement Panel or the Minister, after any dialogue or colloquy with the Guardian and other interested parties, reaching a decision in private, or in the Minister making use of the expertise of his own department in reaching his decision (see Bussehell -v- Environment Sccy [1981] AC at 95-96 per Lord Diplock)".
17. Both parties relied on Re X as authority for the views which they advanced. Advocate Hall said that the spirit of the Court of Appeal's decision was that there should be a good reason to refuse a request of this kind put by the Guardian. Advocate Myerson, while accepting that the Court of Appeal decision envisages some dialogue with the Guardian was at pains to emphasise that the Guardian was not entitled to be involved in the decision making process, and indeed that there was a clear statement at paragraph 68 of the Court of Appeal's decision that the Minister had no obligation to permit the Guardian to make oral representations to him.
18. I do not need to decide for today's purposes whether there is any right to have an opportunity to make oral representations. That is not what the Guardian is seeking. The Guardian is seeking merely that he should have the opportunity of seeing the Permanence Panel at work in its review of the assessing social worker's report, the child social worker's report and the prospective long-term foster carer, if any questioning took place, so that he could form a judgment on the extent to which a robust analysis had been made of the commitment of the current foster carer to long-term foster caring. He will, of course, be able to see the written reports that go before the Permanence Panel, and he will be able to have the opportunity of meeting the prospective long-term foster carer personally to form his own views - but if he is not present to hear any questioning which takes place, he will be at a disadvantage in considering those matters which in the best interests of the child he needs to consider.
19. Article 2(5) of the Children (Jersey) Law 2002 requires the Court to consider on any application to make one or more orders in the Law with respect to a child, whether it would be better to make the order than to make no order. A consideration of the no order principle clearly requires the Court to have regard to what the arrangements of the child will be if the order is to be made - in other words the Court cannot properly consider making no order unless it knows precisely what is being proposed as an alternative and, indeed, vice versa. To consider making no order requires the Court to evaluate the alternative as well as to evaluate the consequences of making no order. Given the chronology which I have set out above, it is obvious that one of the matters which will trouble the Court is whether there is a genuine commitment by the current foster carer to long-term foster care. When the Court comes to make its decision on the application for a full care order, it will not have the advantage of having the current foster carer before it in order that the Court can make its own evaluation. It will only have the evidence put forward by the social worker and other members of the Children's Service. It will have the outcome of the recommendation of the Permanence Panel, and it may have the reports that went to that Panel. It appears to me, however, that the performance of the Court's functions on adjudicating upon the Minister's application for a full care order will be very much enhanced by having a cool independent appraisal of the proposals made by the Guardian, who should in my view therefore have access to such information as is reasonably necessary to enable him to perform that task.
20. As I have said, this is not a case of the Minister being directed to permit the Guardian to make oral representations to the Panel. As far as I can tell, the Guardian has not expressed a wish to make oral representations to the Panel although he will be available if the Panel wishes to question him on the report which he proposes to put in. In another case we can see that the Guardian may wish to make oral representations to the Permanence Panel and I certainly will not exclude that possibility as being an appropriate one in particular circumstances. Similarly, there may come a case where the Guardian wishes to make oral representations to the agency decision maker who is considering the recommendation of the Permanence Panel in the context of the decision which needs to be put to the Court for approval as part of the process which I have described above. I note from Re X that the then Chief Executive of Health and Social Services did not wish "to be lobbied by the Guardian, and referred to the impracticality of having an oral quasi judicial hearing on every occasion such a decision had to be taken". For my part, I would have thought that the last paragraph of the Court of Appeal's judgment which I have cited in full above anticipates that in an appropriate case there would be colloquy or dialogue between the agency decision taker and/or the Permanence Panel and the Guardian and other involved parties. It is in the interests of the child that that takes place where it is necessary.
21. I am also influenced by the fact that the Permanence Panel is conceded to be a human rights authority for the purposes of the Human Rights (Jersey) Law 2000 and although I do not as at present advised, and on the very limited argument in this respect put to me, consider that there is an Article 6 Convention Right which is engaged at this stage, nonetheless fairness and transparency would suggest that if the Minister is entitled to be present at the meeting of the Permanence Panel, represented by the social worker for the child, then there is every reason why the child, represented by the Guardian or person assisting the child pursuant to Article 75 should also be present at the same time if he so wishes.
22. At the heart of this issue seems to be the different approach taken by the Minister and by the Guardian. The Minister considers it is her business to ensure appropriate process in the Permanence Panel. The Guardian considers that it is his business to ensure that the decision taken by the Permanence Panel is robustly arrived at in the best interests of the child. In my judgment, there is merit in both of those submissions, but they are not mutually exclusive. As a systemic matter, the Minister does need to be satisfied that the processes before the Permanence Panel are appropriate and robust. It is not for individual guardians to be concerned in such systemic matters; but it is for individual guardians to be concerned with process in connection with particular children and where the circumstances so justify it, there seems to me to be every reason why the Guardian should have the ability to attend the meetings of the Permanence Panel.
23. Nonetheless, I also have to accept that the Permanence Panel is not directly before me, and is not represented other than through the submissions of the Minister. For that reason, I have not made an order directly against the Permanence Panel, but I do order as follows:-
(i) The Minister is directed to support before the Permanence Panel the view that the Guardian should be permitted to attend the Panel meeting at which the reports are presented and any questions are asked of those before the Panel; and
(ii) The Panel can thereafter retire for the purposes of reaching a decision on the recommendation which it is to make to the Minister; and
(iii) The Minister is directed to bring the Court's view of this process to the attention of the Permanence Panel; and
(iv) There will be liberty to apply.
Authorities
Human Rights (Jersey) Law 2000.
Children (Jersey) Law 2002.
Human Rights (Jersey) Law 2000.