Care Order - application for a full care order.
[2011]JRC245
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone. |
Between |
Minister for Health and Social Services |
Applicant |
And |
Advocate Nina Benest (on behalf of the children and the guardian) |
First Respondent |
|
The Father |
Second Respondent |
|
The Mother |
Third Respondent |
IN THE MATTER OF EE
Advocate D. C. Robinson for the Applicant.
Advocate N. S. H. Benest for the guardian and on behalf of the children.
Advocate S. A. Pearmain for the Father.
Advocate M. J. Haines for the Mother.
judgment
the deputy bailiff:
1. This application arises out of public law proceedings in which the applicant seeks a full care order in respect of the children A and B, of whom the Second Respondent is the father and the Third Respondent is the mother. The Third Respondent is currently at La Moye Prison, from which she will be released on 5th July. The children are currently in the day to day care of their paternal grandmother and another paternal relative, with whom they reside. A final hearing date has been set for five days commencing Monday 25th July.
2. On 1st June the mother made an application pursuant to Article 27(3) of the Children (Jersey) Law 2002 ("the Law") for increased supervised contact with the children from once a week to twice a week, of a reasonable and necessary duration. Time for fixing a date for the hearing of that application appears to have been abridged, whether formally or informally - at all events, the parties seem to have agreed upon a date of 22nd June when the application might be heard. This agreement was originally reached provisionally, in the anticipation that date might become available, and that agreement was subsequently confirmed when the availability of the date was settled. In the interim however, the Minister applied for directions on 2nd June, the day after the mother's contact application was filed, seeking an order that the application be dealt with at the final hearing listed for 25th - 29th July.
3. On 16th June, I sat to determine the Minister's application, and granted it. I reserved reasons for doing so and the judgment now delivered contains those reasons.
4. It was contended by Advocate Haines, for the mother, that I did not have jurisdiction to make the order which the Minister was seeking. The argument submitted was in effect this. The mother, he said, had a right to bring the application before the Court pursuant to Article 27(3) of the Law. Once that application was brought, she was entitled to have the application dealt with, and there was no jurisdiction in the Court to refuse to deal with it. An application to adjourn the hearing had no legal basis, and therefore should be dismissed. In addition to this argument, he contended that if the application were not dismissed forthwith, then a precedent would be set enabling parties to challenge applications brought by others and seek adjournments. He said this would not just apply to applications which the parents might bring, but would also apply to applications which the Minister might bring. His position was that applicants would be forced to justify the bringing of an application, whereas in fact an applicant had a right to bring it.
5. Dealing with this last point first, it seems to me that that argument confuses the right to bring an application with the right to have it heard at a particular time. If there is a right to bring an application, there is no doubt at all that the right cannot be taken away, absent an express legislative provision or rule of law to that effect. Nothing of that kind arises here, and the mother clearly has the right to bring her application. In my judgment, that does not mean that she necessarily has the right to have it heard on a particular timetable. I reject the submission that the Court does not have jurisdiction to adjourn the application and as it is a jurisdictional point, however surprising it may seem on the face of it, I have determined to deliver relatively detailed reasons for the decision.
6. The first reason for rejecting it is that in my judgment the Court has an inherent jurisdiction to deal with applications before it in a manner that is convenient for the proper administration of justice. As was said by the Court of Appeal in Finance and Economics Committee -v- Bastion Offshore Trust Company Limited [1994] JLR 370 at page 382:-
"Practitioners in these Courts and in the Courts of Guernsey are familiar with the maxims "La cour est toute puissante" and "the Court is master of its own procedure". The better known a proposition is, the harder it is to find authority for it...
Both maxims are expressions of the inherent jurisdiction of the Court. So far as English law is concerned, the inherent jurisdiction of the Court has been said to be -
"a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the Court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation of oppression to do justice between the parties and to secure a fair trial between them" (37 Halsburys Laws of England 4th Edition, para 14, at 23).
one feature of the inherent jurisdiction is that it can exist alongside an identical or similar rule of Court. The Court does not lose its power because a rule is made...".
7. Later in its judgment, the Court of Appeal reminded us that rules of procedure have to be servants, not masters. The function is to ensure that cases before the Court are conducted in an orderly and expeditious manner, so that the attainment of a just result is furthered.
8. Secondly, the inherent jurisdiction of the Court in cases under the Law is referred to at Article 76 of the Law where the legislature introduces restrictions on the Court's inherent jurisdiction. The fact that it does so indicates, if it needed indication, that the legislature accepted the Court has an inherent jurisdiction which can be exercised in relation to the matters for which the legislation has been introduced. The existence of the restrictions which are set out in Article 76 leaves standing the assumption that in all other respects the Court's inherent jurisdiction remains. Although no directions have been issued by the Bailiff, Rule 31 of the Children Rules 2005 indicates that the Bailiff may issue directions in exercise of the inherent jurisdiction of the Court to regulate its own process. The Court itself has therefore reaffirmed, again to the extent that it was necessary to do so if at all, that the inherent jurisdiction existed.
9. Curiously there appears to be nothing in either the Law or the Children Rules 2005 which refers to a power to adjourn. Nonetheless it is implicit the Court has that power. Article 9 of the Law makes provision for the Court to require reports to the Court, in writing or orally as the Court may direct, to be prepared on matters relating to the welfare of the child. It may well be that the Court will determine that a report is necessary while the substantive application is being brought. Clearly the Court's jurisdiction to adjourn the substantive application while the report is prepared is implicit in the provisions of Article 9.
10. Thirdly, the Court has in practice adjourned matters arising out of both public and private law proceedings involving children on many occasions. I have no doubt that the Court has jurisdiction to defer consideration of this application if it is considered appropriate to do so. This too is consistent with Rule 4 of the Children Rules 2005 which refer to the overriding objective of the Court, which is to deal with cases justly. Rule 4(2)(b) expressly provides that dealing with a case justly includes, so far as is practicable, allotting to the case an appropriate share of the Court's resources, while taking into account the need to allot resources to other cases. Dealing with the case justly includes, by sub-paragraph (2)(c) dealing with the case in ways that are proportionate to the gravity and complexity of the issues and to the nature and extent of any intervention proposed in the private and family life of the children and adults involved.
11. I therefore reject the submission that the Court has no jurisdiction to deal with the Minister's application to seek a deferral of the application of the mother until the final hearing.
12. On the merits, the Minister's application was based upon essentially three submissions. First of all, the Minister would expect to call Dr Bryn Williams to give evidence on 22nd June, and his evidence might also be needed at the final hearing. It would therefore be more expensive in terms of expert's costs, for the Court and for the parties if he were to give evidence twice. Secondly, the Minister would be contending as part of the care plan of the final hearing that the mother should have contact with the children only once a week. I was shown extracts from the minutes of a meeting of experts which might support the Minister's contention in that respect. I note the Minister will be suggesting that structure for contact in the final care plan, but I do not pay significant attention to the minutes of the experts meeting. First of all they are not an agreed set of minutes. Secondly, the minutes reflect an extremely discursive and informal expression of views in which neither questions nor answers have been formulated with precision. Although it is not necessary to do so, I express the obiter comment that experts' meetings of this kind are not to be encouraged. They appear to trespass upon the function of the Court to receive the expert's views and consider those views with the assistance of forensic questioning and analysis from counsel. As at present advised, I think there is a real risk that the experts' meeting was unnecessarily expensive and an unhelpful pre-curser to the examination of the issues before the Court.
13. By contrast to the submissions of Advocate Robinson for the Minister, Advocate Haines submits that his client expects to succeed on the application. His contention was that there would be a greatly reduced final hearing if contact is dealt with first. If his client were to be successful, as he thinks likely to be the position, the probability is that the issues which exist between the mother and the Minister would be bridged in discussions between the date of the contact application and the date of the final hearing.
14. These competing submissions seem to me to show that for the purposes of the application today, I can make no assumptions as to what the outcome of the contact application is likely to be. Perhaps the Minister is right, and the evidence which Dr Bryn Williams gives to the Court in due course will persuade the Court of the Minister's position. Perhaps Advocate Haines is right and the Court will be satisfied as to the mother's position. I approach the issue today therefore on the basis that is unclear which is the more likely to be successful.
15. It is in those circumstances that the submissions of Advocate Benest, on behalf of the guardian and the children, appear to me to be well founded. She submits that maintaining the position for three weeks between 5th July and 25th July will not prejudice the position of the children, whose interests are paramount. Changing that position for three weeks only might confuse them and thereby cause them prejudice, particularly if the parties are not able to have a full enquiry into the question of contact at the interim hearing. In the circumstances, the safe course is not to deal with the matter until the final hearing, because that is when the Court will have all the evidence and therefore all the information against which the care plan, including arrangements for contact, can be considered. Although Advocate Haines submits that if he is successful in his application, the Minister will inevitably adjust the care plan at the final hearing, I do not think that that is an assumption which I can or should make today. I note that Dr Bryn Williams will be available on 22nd June, and that it is unclear whether Dr Harrison will also be available, and his evidence might be relevant. I accept that there is a danger that an important decision might be made on 22nd June on only some of the evidence, and that a review at the final hearing is likely.
16. In the circumstances I am quite satisfied that the practical approach is to adjourn the mother's application for increased contact to the final hearing, when it will be dealt with, and that that decision is in the best interests of the children. If the mother is then successful, she will have lost three contact sessions. If on the other hand the mother is unsuccessful at the final hearing but successful at the hearing on 22nd June if I had decided that that should proceed, there would be the risk of serious confusion for the children and therefore serious prejudice to them.
17. Accordingly, I order that the date of 22nd June be vacated, and that the mother's application for extended contact arrangements be brought at the date of final hearing on 25th July.
Authorities
Children (Jersey) Law 2002.
Finance and Economics Committee -v- Bastion Offshore Trust Company Limited [1994] JLR 370.
Children Rules 2005.