Jersey Unreported Judgments

Care order - application for leave to appeal and a stay of orders.

[2012]JCA047

Court of Appeal

7 March 2012

IN THE MATTER OF W AND J

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

Advocate D. Robinson for the Applicant.

Advocate D. Gilbert for the First Respondent.

Advocate S. E. Fitz for the Second Respondent.

Advocate H. J. Heath for the Third Respondents.

JUDGMENT

Bennett JA:

1.        The Minister for Health and Social Services ("the Minister") applies for leave to appeal the decision of the Bailiff and Jurats Clapham and Crill of 20 February 2012, sitting in the Royal Court, granting interim contact to A and D in respect of the two children, W and J, and if leave is granted for a stay pending appeal.  On 28 February the Royal Court handed down its judgment and refused leave to appeal.

2.        I do not propose in this short judgment to set out the background which is fully set out in the judgment of the Royal Court.

3.        I am grateful to the Minister and to the other parties for their helpful submissions which I have read together with the other documents submitted.

4.        The essential issues raised by the Minister are these. It is submitted that the application for leave to appeal falls under the ground enunciated in Britannia Building Society v Milborn [2007] JRC 001 that this is a case "of something having gone wrong" - para 31 of the Minister's submissions.  In para 34 it is submitted that what has gone wrong is that, whilst it was within the discretion of the court to order three supervised contact sessions, the court was wrong to order overnight and unsupervised contact. It is further submitted in para 37 that the appeal on those grounds has a reasonable prospect of success.  Para 40 submits that the court was plainly wrong to order overnight and unsupervised contact.  This is amplified by the proposed grounds of appeal at tab 7 of my bundle, in particular grounds 2, 3, and 4.

5.        The Royal Court refused leave to appeal for the reasons set out in the Bailiff's letter of 28 February.

6.        I have read the judgment of the Royal Court.  With respect, it is clear, detailed and thorough.  It sets out the position of the Minister, A and D, and the Guardian with conspicuous fairness.  It evaluates the evidence of Mrs Stark, on behalf of the Minister, and of the Guardian.  In my judgment the Royal Court was bound to undertake that exercise.  The Royal Court preferred the evidence of the Guardian to that of Mrs Stark, as it was entitled to do.

7.        The critical part of the judgment is between paras 57 and 69.  The court explains in detail why it proposes to grant overnight and unsupervised contact and why it disagrees with Mrs Stark that the level of contact suggested by the Guardian is not an automatic move to rehabilitation.  It cannot be said, and indeed it is not said by the Minister, that the court has failed to give clear reasons for arriving at its conclusions.

8.        In G v G (Interim Custody: Appeal) (1983) 4 FLR 327 Dunn LJ said at the bottom of page 329:-

"This court is most reluctant to interfere with the discretion of the judge making the interim orders because he is there, he has the feel of the case in a way in which it is impossible for this court to have. He knows the local conditions and the decision is essentially his. This court will not interfere unless it is plainly and obviously wrong. It is quite impossible to say that this decision was wrong at all"

9.        The first paragraph of the trenchant judgment of Ormrod LJ at page 330 is to similar effect.

10.      The nub of the Minister's case is in reality that the court should have accepted the evidence of Mrs Stark and rejected that of the Guardian.  In my judgment family courts are faced with some of the most difficult decisions that any court is required to take.  It is not in dispute that the Royal Court is given in family cases a very wide discretion in deciding what is in the best interests of children in cases that come before it.  The Royal Court was faced in the instant case with having to decide whose evidence to accept, Mrs Starks' or the Guardian's.  It made its decision, which, in my judgment, cannot be said to be either irrational and/or perverse and/or plainly wrong.  The reasoning of the Royal Court is clear.  In my judgment it is not arguable that the Royal Court came to a decision which was outwith its wide discretion.

11.      Accordingly, I refuse leave to appeal.  The application for a stay is dependant on leave being granted - see para 41 of the Minister's submissions.  As I have refused leave to appeal, I refuse to grant a stay.

Authorities

Britannia Building Society v Milborn [2007] JRC 001.

G v G (Interim Custody: Appeal) (1983) 4 FLR 327.