Jersey Unreported Judgments

Care proceedings - attendance at hearing.

[2012]JRC045

Royal Court

(Samedi)

29 February 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Cornu and Milner.

 

Advocate D. Robinson for the Minister.

Advocate C. Hall for A.

Advocate L. Marks for B.

Advocate R. Tremoceiro for SS.

judgment

the comissioner:

1.        In this application SS applies for leave to attend the whole of the welfare stage of the care proceedings, due to be heard on the 5^th March, 2012.  The thrust of the Minister's case, and we anticipate of the Guardian and experts, is that SS should be placed away from the Island in order, in part at least, to distance him from his parents, whom it is alleged have persistently sought to undermine his on Island placement.  The parents will be attending the hearing and we believe will oppose his placement away from Jersey.  It is likely that partly out of loyalty SS will also voice strong opposition to his placement away.

2.        SS is 14 and is described by Dr Willemson, the child psychologist, at paragraph 97 of his report, as follows:-

"[SS] has an insecure attachment which is anxious and disorganised in nature.  His behaviour is that of a much younger child compared to a child of a similar age.  He has significant emotional problems which are reflected in his sexualised, aggressive and intimidating behaviour.  He is developmentally delayed, lacks empathy and struggles with the expression of feelings and emotions."

3.        At Appendix A of his report Dr Willemson sets out the IQ results and says this at paragraphs 7-10:-

"[SS]'s IQ of 66 falls within the extremely low range, (IQ <69).  His verbal comprehension and perceptual reasoning (performance IQ) are 73 and 79 respectively and therefore fall within the borderline range.  Particularly [SS]'s Processing Speed and Working Memory scores are very low.  He struggles to concentrate for longer periods of time and works slowly.  [SS] has a poor ability to retain new information. 

Concerns need to be raised about [SS]'s cognitive functioning. He certainly functions with severe learning difficulties. Strictly speaking his IQ falls within the learning disability range, but I think that considering his psycho-social skills and his stronger verbal and performance scores he currently functions within the learning difficulties range.

[SS] is in need of specialist education and a detailed assessment (if not already available) of his educational needs to include social, emotional functioning.  He is far behind compared to his peers.  Without an adequate intervention his concentration and retention skills may remain weak.  In addition it is important to note that [SS] is a vulnerable child easily lead and groomed. 

As is discussed in the main body of the report his emotional vulnerability together with his cognitive weaknesses may, without adequate intervention, lead him to become a vulnerable adult.  [SS] could be at risk of being used or indeed of using others.  This is further discussed in the main body of the report.

4.        Thus, although SS's chronological age is 14 we are dealing with a vulnerable child whose development is far behind that of his peers and for whom there are concerns about his cognitive functioning. 

5.        SS apparently attended the hearing for the first renewal of the secure accommodation order, but at the care proceedings on the 19^th January 2011, having heard brief argument, the Court declined to allow him to attend the proceedings in full, restricting him to talking directly to the presiding Judge and Jurats in chambers (which he did) and to hearing the Court's decision.  At paragraph 9 of the Act, the Court made it clear that if he wanted to attend the whole of the welfare stage an application must be made well in advance of the hearing so that he would know where he stood. 

6.        The welfare stage was adjourned to enable the Children's Service to investigate a possible placement outside Jersey.  It became clear, during the hearing that areas of disagreement were emerging between SS and the Guardian who hitherto had been instructing Mr Tremoceiro. It was therefore determined that Mr Tremoceiro would henceforth take his instructions from SS and the Guardian would present his advice directly to the Court; he did not need legal representation for this purpose.  SS is therefore in the position where he is now instructing his own lawyer. 

7.        Turning to the position under our law, SS has no statutory right to attend the hearing. Rule 17(2) of the Children Rules 2005 is in the following terms:-

"Proceedings or any part of them shall take place in the absence of any party, including the child, if -

(a)     the Court considers it in the interests of the child, having regard to the matters to be discussed or the evidence likely to be given; and

(b)     the party is represented by an advocate or a solicitor or by a person appointed under Article 75,

and, when considering the interests of the child under sub-paragraph (a), the Court shall give the person representing the child and, if he or she is of sufficient understanding, the child an opportunity to make representations."

8.        Mr Tremoceiro has referred me to the English Court of Appeal decision in Mabon v Mabon (2005) FLR 10111 which shows the evolvement of the child's involvement in care proceedings and a move away from a paternalistic judgment of welfare.  Quoting from the headnote of that judgment as set out in the case of In re Q [2011] JRC 031 at paragraph 15:-

"Mr Hanson, whilst maintaining the guardian's resistance to the application, referred us to Mabon-v-Mabon (2005) 2 FLR 1011 which he submitted demonstrates a move away from the paternalistic judgment of welfare in recognition of the rights in particular of articulate teenage children.  It was a private law case in which the mother was seeking a residence order and it involved an appeal against a decision to refuse three children separate representation in relation to a fact finding trial in which they had been joined as parties and were represented by a guardian.  The judge considered there were almost no advantages to independent representation and several disadvantages including delay, emotional damage to the children and exposure to the harshness of the litigation process.  The children's appeal was allowed, and quoting from the headnote:-

"(1)     The judge was plainly wrong.  There were a number of factors which pointed strongly towards the grant of separate representation in the present case.  There had been no doubts as to the sufficiency of their understanding: it was unthinkable to exclude young men of such ability and maturity from knowledge of, and participation in, legal proceedings that affected them so fundamentally.

(2)       This case provided a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally.  Family Proceedings Rules 1991, r 9.2A was sufficiently widely framed to meet the UK's obligations to comply with the United Nations Convention on the Rights of the Child 1989, Art 12, and the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art. 8, providing that judges correctly focused on the sufficiency of the child's understanding and, in measuring that sufficiency, reflected the extent to which in the twenty first century there was a keener appreciation of the child's autonomy and consequential right to participate in decision-making processes that fundamentally affected his or her family life.

(3)       The courts must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighed the paternalistic judgment of welfare.  Having said that, welfare had a place in testing the sufficiency of a child's understanding.  If direct participation would pose an obvious risk of harm to the child, arising out of the nature of the continuing proceedings, and if the child was incapable of comprehending that risk, then the judge was entitled to find that sufficient understanding had not been demonstrated.  However, judges had to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of, and participation in, the continuing proceedings.""

That case was concerned with the wider issue of representation and it involved able and articulate teenagers. 

9.        A helpful review of the further evolvement of this issue is contained in the judgment of Jackson J, in Re K (a child) [2011] EWHC 1082 which concerned the attendance of a 13½ year old girl at a secure accommodation hearing. He points out that the Supreme Court has recently done away with the presumption that children should not give evidence (Re W (Children abuse: oral evidence) (2010) UKSC 12) and the paradox remarked upon by some commentators that children must unwillingly attend punitive proceedings but are discouraged from attending benign proceedings such as these.  In paragraph 21 he refers to the following comment of Baroness Hale writing extra-judicially:-

"I myself always took the view that if a child was deemed mature enough to instruct her own solicitor or to make her own application in private law proceedings, she was mature enough to attend court and ought to be expected to do so unless there was a very good reason to the contrary.  It is all part of accepting that rights bring responsibilities too."

10.      Jackson J was concerned with attendance at a secure accommodation order hearing and Rule 12.14 of the Family and Procedure Rules 2010 (which in our view is very similar in substance to our Rule 17) and which is in the following terms:-

"Attendance at Hearings

12.14-(2) Unless the Court directs otherwise and subject to paragraph (3) the persons who must attend a hearing are-

(a) any party to the proceedings;

...

(3) Proceedings or any part of them will take place in the absence of a child who is the party to proceedings if-

(a) the court considers it in the interests of the child having regard to the matters to be discussed or the evidence likely to be given; and

(b) the child is represented by a children's guardian or solicitor.

(4) When considering the interests of the child under paragraph (3) the court will give-

(a) the children's guardian;

(b) the solicitor or the child; and

(c) the child, if of sufficient understanding,

an opportunity to make representations."

11.      At paragraphs 33-36 he sets out the relevant factors to be taken into consideration:-

"33. In the generation that has passed since the decision in Re W, thinking about these issues has undoubtedly evolved.  It does not greatly matter whether the evolution has been driven by the Human Rights Act 1998, or whether, as I believe, the two processes have taken place in sympathetic parallel.  In either case, in considering child welfare and children's rights we would, I think, give more weight to the potential benefits of greater involvement by children who want to be present when important decisions about their future are made.  It can no longer be presumed that attendance in court is likely to be harmful: if this is so, thought must surely first be given to adapting court procedures to meet children's needs before deciding to exclude them.  Nor should children have to prove that their attendance at proceedings about them is in their interests.  The starting point should be an open evaluation of the consequences of attendance or non-attendance in terms of the welfare of the child and the court's ability to manage its proceedings fairly. 

34. Each case will depend on its own circumstances, but the following factors will generally be relevant:

(1) The age and level of understanding of the child.  The claims of children of secondary school age will be stronger than those of primary school age, but what matters is whether the child has a sufficient level of understanding of the decision that the court has to make, and the way it will go about making it.

(2) The nature and strength of the child's wishes.  The court will need to consider whether a refusal to allow attendance will create or increase a sense of alienation in the child.  A decision made in the child's presence may be one that he or she will find easier to understand, and where necessary respect and obey. 

(3) The child's emotional and psychological state.  If there is clear evidence, probably in the form of expert advice, that attendance is likely to lead to harmful or unpredictable consequences for the child's emotional condition, the child's wishes may have to be overruled.

(4) The effect of influence from others.  The court will be on its guard against signs of manipulation of the child.  Special pressure from any quarter may be magnified by attendance and make it inappropriate.

(5) The matters to be discussed.  Rule 12.14 requires the court to have regard to these.  In proceedings concerning separation from family or placement in secure accommodation, the matters for discussion are of such high importance to the child that an expectation of involvement may be no more than a natural response. 

(6) The evidence to be given.  Again, the rule also requires the court to have regard to this.  In cases where the evidence is likely to be particularly difficult or distressing, or where it concerns matters that the child should be protected from hearing, attendance can be denied on the basis that it will be harmful.  In other cases, the evidence will be no more than a rehearsal of what the child already knows.

(7) The child's behaviour.  In secure accommodation cases, the risk of fight or flight may be so high as to make attendance unwise.  On the other hand, the fact that children in secure accommodation will inevitably have to be guarded cannot in itself be a reason for proceeding in their absence.  As to the chance of disruption in court, the safety of other court users must be considered.  Children who are in secure accommodation often find their way there after violence at home or at school, and in the secure unit itself.  The fact that trouble at court cannot be ruled out will be a factor, but may not be a conclusive reason for refusing attendance.  Criminal courts routinely accommodate people who pose a risk to the public, and family courts are used to dealing with situations of high emotion. 

(8) Practical and logistical considerations.  These will particularly come into play in secure accommodation cases. There are secure units throughout the country, and a child may be placed a great distance from the relevant court.  The length of the journey, the amount of time the child will be out of placement, and the cost of attendance where supervision is required may also inform the decision.  However, the court will be slow to refuse to allow a child to attend for such reasons alone, unless it has exhausted possible alternatives.  The availability of a video link in or near the placement should at least be considered, consistent with the Public Law Proceedings Guide to Case Management (paragraph 24) which encourages the court to make full use of technology.

(9) The integrity of the proceedings.  The court always retains the power to manage proceedings in a way that achieves overall fairness.  Other considerations, such as the interests of other parties, may influence decisions about a child's attendance.

35. The above evaluation may well lead to the conclusion that a child of sufficient understanding who wants to attend an important hearing about his or her future should be allowed to do so for at least part of the time, unless there are clear reasons justifying refusal.  This situation will most often be found in, but is not limited to, public law proceedings.  In cases where attendance at the hearing itself is not thought appropriate, a meeting with the judge is a possible alternative.

36. Secure accommodation applications self-evidently involve deprivation of liberty, and the reasons for refusing a child's request to attend the hearing (which may be found in a high risk of psychological harm to the child) will need to be particularly cogent."

12.      Counsel agreed that although this case was concerned with attendance at a secure accommodation order, the guidance given is of general application and is in particular helpful in a case such as this where the Court will be concerned with a very important decision in SS's life. 

13.      Two observations have to be made on the facts.  In Re K the 13½ year old girl, who the Court ordered should attend the entirety of the secure accommodation order hearing, had behavioural as opposed to psychological problems and her guardian supported her wish to attend.  In this case SS has psychological problems and his guardian does not support his attendance for the whole hearing. 

14.      The guardian's advice is set out at paragraphs 2.6-2.8 of his report dated 26^th February, 2012:-

"In my view, it is a healthy sign that [SS] does wish to attend court.  He is perfectly correct when he states that the hearing is about his welfare and his future and, as a result, he has a right to listen to the arguments being put forward, as well speak to the Judge and Jurors about his wishes.

However, this should also be balanced with the fact [SS] may well find the hearing disturbing and anxiety provoking and that his learning difficulties may well make it difficult for him to fully comprehend what is being stated.  As it is, he is finding the possibility of going to the UK very stressful to come to terms with and this may be exacerbated by having to sit through and listen to all the arguments at the final hearing.

In my view, [SS's] interests will be best met by him meeting with the Judge and Jurors separately and being present when the final judgment is made.  In this way he will have had input into the proceedings and will still have some ownership as to the outcome which may make it easier for him to accept any outcome which does not entail him returning to live with his parents."

15.      Mr Robinson for the Minister referred to the advice of Dr Wiillemson as set out above, reiterating that we are dealing with a child with an extremely low  IQ who falls within the learning difficulties, if not learning disability range, and who is emotionally vulnerable.  Concerns have been expressed not only by the guardian but by Dr Posner, as shown in the minutes of the secure accommodation review, and by Mr Davies who is the allocated social worker.  He was concerned about SS's emotional well-being and the possibility of him attempting to physically harm himself, which he has done before.  He also feared that his presence for the whole hearing could undermine his efforts to ensure an appropriate transfer of care provision.  At paragraphs 2.8-2.11 of his fifth statement he sets out his views as follows:-

"Further, it is highly likely that should [SS] be afforded complete exposure to the information to be prospectively shared, it will significantly harm his working relationship with me and undermine my ability to work with him.  Constructively, it is important to retain sight of the journey of intervention that will continue with [SS] following the conclusion of intervention by the Court.  Of all the involved professionals, it will be me who needs to retain an effective working relationship with [SS].  It is my view that [SS]'s presence in Court will undermine the foundation of our working relationship.

The Minister does not wish to facilitate the harm of [SS]'s emotional wellbeing and detrimentally affect the working relationships he has with involved professionals, as they will all result in a deterioration of efforts to support him.

If [SS]'s behaviour deteriorates as a result of being afforded the opportunity to sit throughout the Hearing in its entirety, I am concerned that this may detrimentally affect the prospective transfer of care provision.  I am concerned that should [SS]'s behaviour deteriorate as a result of attending the Hearing, then Woodlands Children's Development Centre may review [SS]'s prospective transfer to their service provision.  This may result in Woodlands Children's Development Centre assessing [SS] as too 'high risk' for their service provision, and subsequently retract the offer of a placement.  Consequently, the Minister will have no placement to afford [SS].

Ultimately, the main concern is that [SS] will find the information emotionally overwhelming and he may attempt to harm himself as a result."

16.      Working from the factors as set out in Re K we would respond to each as follows:-

(i)        The age and level of understanding of the child.  Although SS has a chronological age of 14 his cognitive functioning is far behind that of his peers and we conclude that he has a level of understanding of a much younger child.

(ii)       The nature and strength of the child's wishes. We accept that SS has expressed a strong desire to be present at the hearing and indeed has instructed Mr Tremoceiro to make this application.

(iii)      The child's emotional and psychological state. SS has significant emotional problems, as advised by Dr Willemson, and as set out above.

(iv)      The effect and influence of others. There is evidence that SS is strongly influenced by his parents and we are concerned that attendance for the full hearing may magnify that influence inappropriately.

(v)       The matters to be discussed. The Court will be concerned with the possible placement of SS out of Jersey, away from his family and familiar environment. This is a matter of great importance to him and it is natural that he should wish to attend.

(vi)      The evidence to be given. Whilst some of the evidence as to his parent's care for him may have been ventilated at the secure accommodation order hearing which he attended, consideration of the emotional abuse suffered by SS at the hands of his parents will no doubt arise, an abuse which we note Dr Willemson advised at paragraph 4 had continued by the parents through the contact sessions, as will evidence of the effect this abuse has had upon SS.  In part the case involves an attack upon the character and capabilities of his parents to whom he is very loyal. 

(vii)     The child's behaviour. As previously mentioned unlike the child in Re K SS's problems are not behavioural as such and we do not anticipate behavioural problems in Court, none have been experienced so far.

(viii)    Practical and logistical considerations. There are no practical and logistical obstacles to SS attending the hearing.

(ix)      The integrity of the proceedings. There are no other considerations which in our view should influence our decision.

17.      In addition to these factors we must also take into account the submissions of the parties and the advice of the guardian.  The Minister and the guardian advise that SS should be able to attend part only of the hearing as he did for the threshold hearing, as does the father.  The mother rests on the wisdom of the Court.

18.      Drawing all this together we find ourselves in agreement with the Minister, the guardian and the father that we should refuse SS's application to attend the whole hearing but that he should allow him to attend for part of the time.  It is true that he is 14 and now instructing a lawyer, but we have to take into account the psychological evidence before us as set out above.  He does not have the maturity and understanding of his peers and has significant emotional problems.  Exposure to all of the evidence and discussion over several days could, in our view, be very damaging to him and potentially undermine the very placement which the Court might decide is in his best interests.

19.      The precise arrangements need to be agreed with the presiding Judge (Commissioner Clyde-Smith will not be presiding but the two learned Jurats will be sitting to hear the welfare stage) but subject to that our decision is as follows:-

(i)        SS should attend the start of the case and hear the opening submissions of Counsel who will need to bear in mind his presence;

(ii)       At the end of the opening submissions SS should then meet with the presiding Judge and Jurats in Chambers in the presence of the Greffier and Mr Tremoceiro, to express his views directly to them. He should then return to Greenfields.

(iii)      SS should then attend at the end of the proceedings to hear the decision of the Court.  We anticipate that any judgment will be short and directed primarily for his benefit.

Authorities

Children Rules 2005.

Mabon v Mabon (2005) FLR 10111.

Re K (a child) (2011) EWHC 1082.

Re W (Children abuse: oral evidence) (2010) UKSC 12.