[2012]JRC106A
Before : |
J. A. Clyde-Smith, Esq., Commissioner, sitting alone. |
Between |
The X Children (By their Guardian ad litem, Advocate T. V. R. Hanson) |
Plaintiffs |
And |
The Minister for Health and Social Services |
Defendant |
IN THE MATTER OF
AND IN THE MATTER OF
Advocate T. V. R. Hanson for the Plaintiffs.
Advocate C. R. G. Davies for the Defendant.
judgment
the commissioner:
1. This is an application by Mr Hanson as the guardian ad litem for the plaintiffs (who are aged 16, 14 and 11 and to whom I will refer as "the children") for directions enabling the two older children to be expertly assessed and this for the purpose of their personal injuries claim brought against the defendant. It is common ground that these are seriously damaged children whether or not that damage is attributable to the alleged negligence or breaches of duty of the defendant.
2. The case has been set down on the hearing list and the process of discovery completed. The next stage in the procedure as contemplated by the directions given on 28th September 2011 is for the expert assessment of the children.
3. In June of 2011, the youngest child's therapeutic placement (she is placed separately from the two older children) gave access to a psychiatrist appointed by Mr Hanson, namely Dr Berelowitz, with consequences which the defendant says were harmful. I have seen the correspondence setting out the criticisms of the way Dr Berelowitz conducted the assessment and his robust reply, but it would be wrong in the context of this hearing for me to seek to draw any conclusions other than that the exercise flags up the sensitivity of the process.
4. The summons, which was issued by Mr Hanson on 29th January 2012, was limited to the giving of directions for the assessment of the two older children only. Recognising the need to avoid multiple assessments of the children, the summons set out a proposed time frame for the parties to agree upon a joint instruction of an expert, failing which the matter would be returned to Court.
5. On 28th February 2011, the defendant by consent agreed to an order that she should file evidence for the purposes of the directions hearing dealing with the following issues:-
(i) the current position of progress of the two older children, and what work is yet to be undertaken with them;
(ii) the anticipated dates that either of them might leave their current therapeutic placements;
(iii) whether or not any face to face assessments by an independent expert for the purpose of these proceedings risks causing them damage at this juncture and whether or not a suitable expert could work with them in performing an assessment that minimises any such risk.
This order is premised on the assumption that one jointly appointed expert would be instructed.
6. In compliance with that direction, the defendant has filed affidavits from a director of the therapeutic placement (in which the two older children are placed), from Dr Laura Posner, a consultant clinical psychologist at CAMS and from Mr Sean Pontin, the head of the Children's Social Work at the Children's Service. I will come to their evidence in a moment, but consistent with the summons it only addresses the assessment of the two older children.
7. There was a hearing in March 2012 at which Mr Hanson sought an order for the joint instruction of Dr Miriam Silver (a consultant clinical psychologist who prepared the expert reports for the care proceedings in 2008) for the purpose of giving advice for the purpose of these directions, which application was resisted by the defendant and rejected by me for the reasons set out in the Court's judgment of 26th March 2012 (JRC 068).
8. The reason for that application was that Mr Hanson was concerned that using Dr Silver for the purpose of these directions might preclude her from being jointly instructed by the parties to conduct the assessments of the two older children. He has, however, proceeded to instruct her for the purpose of these directions and filed a report from her dated 20th April 2012.
9. Noting the concern expressed by the therapeutic placement that the children's knowledge of these proceedings may undermine the therapeutic process, Dr Silver has advised a progressive review, actively involving those at the therapeutic placement in the early stages, with a three layered approach to the assessment; reading the papers, speaking to the staff and speaking with the children directly. She does not believe that there will be any harm or disruption to the therapeutic process if there was an indirect assessment involving consulting with the staff and gathering questionnaire information and that any disruption caused by a direct assessment would be minimal and might considerably enhance the insight of the care staff and those making plans for the children. In that respect she anticipates making a series of six half-day visits to the therapeutic placement of three to four hours each visit in order to directly assess the children. Any disruption to the children, she says, would be likely to be transitory and manageable within the context of a skilled placement.
10. As Mr Hanson pointed out, Dr Silver has already met the children and read the background information and in his view she is ideally placed to consider whether the children have made progress and would therefore have a clear idea about prognosis.
11. Mr Hanson was firmly of the view that it was in the interests of the children for Dr Silver to be instructed and therefore he would be instructing her in any event, although he would agree to a joint instruction of a psychiatrist in addition to Dr Silver. He pointed out that he had the conduct of the children's case and it was for him to assess what evidence would best be provided to advance that case.
12. Being well aware of his duty as guardian ad litem to act as bon père de famille (Payne v Pirunico [2001] JLR 1) he said he was committed to the children's wellbeing and the need to avoid multiple assessments, but unlike the defendant, he had to take into consideration how best to ensure that these proceedings were brought to a successful conclusion. Momentum was essential. As soon as he could get these assessments undertaken, he could commence meaningful discussions with the defendant's insurers. He was concerned at the possibility of the applicable law having the potential to change in a manner which may be prejudicial to the compensation achievable for the children.
13. He was particularly concerned about the oldest child, who would be turning eighteen in two years' time. He did not want him to become embroiled in the proceedings at that stage, to be de-motivated by the thought of a financial award and to regard himself as a victim. As he pointed out in his instructions to Dr Silver, an award or settlement of this matter before the oldest child achieves adulthood would enable any compensation to be placed in a suitable investment structure that might be deemed appropriate by the Court and indeed, to possibly postpone payment, to more appropriate stages in his adulthood.
14. His draft directions provided to me at the hearing sought an order granting Dr Silver access to all three of the children as an expert appointed by him and requiring the defendant to provide details of any expert she wished to appoint to assess the children.
15. Miss Davies, for the defendant, said that there was no dispute between the defendant and her insurers over their approach to this matter. In terms of their assessment her instructions were to do what was best for the children and in that respect to get guidance from the Children's Service and from the therapeutic placement. However, the defendant must not, she submitted, be forced to choose between doing what was right for the children and being placed at a disadvantage in these proceedings.
16. The director of the therapeutic placement of the two older children had expressed a preference in correspondence in January 2012 for the proceedings being delayed until they were closer to adulthood and to a need for financial assistance. In his affidavit, having described the current progress being made with them and the work to be undertaken in the future, he advised that the older child was likely to remain at the therapeutic placement until he was eighteen and that the middle child is likely to remain at the therapeutic placement to complete her GCSEs, returning to Jersey with the older child in the summer of 2014.
17. There was a significant risk in his view that being involved in an assessment in relation to these proceedings would be unhelpful to both children, in the case of the older child by affecting his motivation and of the middle child, by way of confirmation of victimhood; of the two, the middle child, being younger, was more likely to be compromised by the process. It might be better, he said, if we had the luxury of time, to wait until they were adults in order to look back and gauge, rather than predict, the extent of their recovery, but at the same time he said that a genuinely child-centred independent expert would be capable of conducting the requisite assessments in such a manner as to mitigate the dangers that he foresaw. He was pleased that Dr Silver had been contacted, as she had had previous involvement with the children.
18. Dr Posner had an active role in the management of the children whilst they were in care in Jersey and she was extremely concerned if the children were to become involved in any way in thinking about these personal injuries proceedings. It is so important, she said, that as they mature they are able to develop a narrative that reflects that they grew up within a community in which they had some healthy relationships and some which were unhelpful for them, but which can be understood given their context. At some point in their lives, and this will be years away as yet, they need some resolution. Perceiving themselves as being wronged either by their mother or by the community is deeply unhelpful and will leave them feeling bitter and destructive as their mother had been left feeling by her own child experiences. Within Court proceedings, she said, there is a search for certainty, to hold someone to account for the painful experiences that these children have lived through. There is no place for the children to be involved in these discussions. They must not be encouraged to see themselves as victims; that would be unhelpful to them.
19. Mr Pontin shared the concerns of the director of the therapeutic placement and Dr Posner. Given that personal injuries proceedings were underway, there was a balance to be struck, he felt, between the protection of the older children on the one hand and allowing these proceedings to progress on the other. If an expert were able to work in partnership with the therapeutic placement, it may be a viable suggestion and one that might help to reduce the risk of harm to an acceptable level. He put forward a helpful time-table and suggested safeguards in what he clearly presumed would be a joint instruction of one expert. His preferred route would be not to expose the children to a further assessment at this time, but if it was necessary for the purpose of the proceedings, then he would be minded to allow the children to be assessed, so long as their assessment was carried out in the manner he suggested with the therapeutic placement playing an active role and having an ability for them to intervene, should they need to.
20. As made clear at the hearing in March 2012, the defendant does not agree to the joint instruction of Dr Silver. In her view, Dr Silver does not have the experience to advise in complex personal injuries cases. What was required was a psychiatrist who can advise on cause, effect, prognosis and diagnosis, which are not within the realm of a child psychologist. Miss Davies pointed out that Mr Hanson had appointed a psychiatrist to assess the youngest child. It was clear, said Miss Davies, that there was a pool of experts from which the parties could draw (two had been put forward by her) and the process of a joint instruction had not been properly explored. She put forward a set of directions that created a framework to allow the parties to jointly instruct an expert with safeguards modelled upon those put forward by Mr Pontin.
21. If the plaintiffs succeeded with the directions they were seeking and Dr Silver was instructed as a sole expert for the children and permitted to examine them, the defendant, Miss Davies said, would have to decide whether to risk harm to the children by having a further assessment with her own expert or decide not to proceed with an assessment at all. If she took the latter course, in the interests of the children, she would not have had an equal opportunity to obtain balanced evidence to put before the Court. The defendant would be disadvantaged to the extent that she would be prevented from running her case properly and fully. The defendant would not have equality of arms in the litigation.
22. She pointed out that none of the experts had been asked to consider the impact of multiple or further assessments being undertaken by an expert appointed by the defendant either at the same time as an assessment being carried out by Dr Silver or subsequently; all of them had proceeded on the assumption that there would be one jointly appointed expert.
23. The summons raises issues of some difficulty. Mr Hanson is conducting litigation on behalf of the children against the defendant in whose care they have been placed. He therefore needs the consent of the defendant to have access to them for the purpose of preparing experts' reports. The defendant is under a general duty to safeguard and promote the plaintiffs' welfare (Article 19 of the Children (Jersey) Law 2002 - "the Children Law") and to consider therefore whether assessments at this stage might be harmful to them, but at the same time she is entitled to defend the proceedings brought against her.
24. These are proceedings brought within the Samedi Division and in terms of case management the next procedural step is for the children to be expertly assessed, but in a manner which is fair to both parties. Mr Hanson says that the welfare paramountcy principle under Article 2 of the Children Law does not apply. Whether or not the children should be assessed could be regarded as a question, it seems to me, which affects or may affect their upbringing and it might be arguable that in relation to that question the welfare paramountcy principle does apply. However it was not argued and I have therefore proceeded on the basis that their welfare is an important consideration. That welfare comprises two competing elements, namely the need to maintain the momentum of their proceedings and the need to protect them from harm. There is a balance to be struck, as Mr Pontin says, between allowing the proceedings to progress and protecting these already very damaged children. I also need to bear in mind that I am concerned with three children, who no doubt have been damaged in different ways, and who are at different stages of their recovery.
25. In deciding whether or not assessments should be facilitated, I must be guided by the expert evidence before me, the defendant very properly deferring to the advice of the Children's Service and the therapeutic placement for this purpose. That evidence, as Mr Hanson points out, is that an assessment by one expert can be undertaken with appropriate safeguards. If I permit that assessment to be undertaken by an expert appointed solely by Mr Hanson, then I accept Miss Davies' submission that the defendant may be placed at an unfair disadvantage in the proceedings, in that her ability to appoint an expert of her own could be seriously compromised. There is no expert evidence before me as to the likely impact on the children of a second assessment, but common sense dictates that it is unlikely to be favourable to such a process. No civil proceedings can proceed fairly on the basis that one side only is able to produce expert evidence. There can be no question in these proceedings that as between the children and the defendant, the children should have any advantage because they are children.
26. Counsel were unable to find any precedent for the issues now facing the management of this case and that may be because ordinarily, personal injuries claims would be brought by the plaintiffs once they have achieved adulthood; time of course does not run against minors. Mr Hanson produced a recent extract from the news section of the Family Law Week indicating that a council had paid £1m damages to four siblings for child abuse failings, but it seems clear from the time lines that the proceedings were compromised at a stage when the children were all adults.
27. In conducting proceedings at this stage of the children's lives, one is inevitably going to come up against the issue of their involvement either as here because of the need to have them expertly assessed or ultimately as witnesses; ordinarily, one would expect plaintiffs in personal injuries cases to give evidence. Mr Hanson, I believe, feels that their giving evidence can be avoided, but a further question arises as to how useful assessments at this stage are going to be to the Court, especially for the younger of the children. I am mindful of the views expressed by the director of the therapeutic placement that any assessment now must be fundamentally uncertain. He did not know how well the children will recover and said it might be better to wait until they are adults, in order to gauge, rather than predict, the extent of their recovery. He did, of course, go on to say that he did not have the expertise or experience to judge how accurately an expert in these matters is able to predict recovery but none of the experts were asked to opine on this issue.
28. In a written submission filed subsequently, Mr Hanson has adduced authority on the issue of the jurisdiction of the Court to order an assessment of a child without the consent of those who have parental responsibility. It is clear from the Court of Appeal decision in the case of In the matter of X [2003] JLR 111 that the Court's infinite inherent powers under its parens patriae jurisdiction would enable it to do so. That case concerned the release by the Health and Social Services Committee of an aborted foetus against the consent of the mother, who was a minor, so that the police could investigate criminal charges against the father. The Court of Appeal was divided in its approach, and the case was ultimately decided on the basis that it was in the public interest for the foetus to be released. There are no such competing considerations in the case before me.
29. Mr Hanson argued that a refusal to allow access to the children now for the expert that he proposed to appoint, might constitute a breach of their rights under Article 6 of the ECHR, namely their right to a fair hearing within a reasonable time. He cited the decision of the European Court of Human Rights in the case of Elsholz v Germany [2000] 2 FLR 486 in which it was held that a father's Article 6 rights had been violated because of a refusal by the National Court to order an expert's report in contact proceedings he had brought in relation to his daughter. The case was not concerned with whether it was harmful to the daughter to be examined.
30. If it would be harmful for the children to be assessed at this stage of their lives and that harm outweighed the benefit of the momentum of the proceedings being maintained, then I do not see how there could be any violation of their Article 6 rights. They would not be deprived of their right to a trial. The case would simply be adjourned in their interests until they were older.
31. Mr Hanson also referred me to the case of Regina v Hampshire County Council ex parte K and another (1992) QB 71 where the local authority had refused parents, who were accused of abuse, leave to have the child examined by a paediatric consultant instructed on their behalf and it failed to disclose medical reports it had obtained. It was held that the local authority was bound to exercise judicially its discretion to authorise a further medical examination on behalf of the parents of the child and that in failing to make voluntary disclosure of the medical reports it had obtained it had disabled itself from exercising judicially its discretion to authorise a further medical examination. Again, the Court in that case was not concerned with whether such an examination might in itself be harmful to the child.
32. The defendant in the case before me is not disabling herself from acting properly in this matter. She does have a conflict which has been addressed by Miss Davies being instructed to defer to the advice of the Children's Service and the therapeutic placement as to what was best for the children. Miss Davies would not, I believe, demur from the suggestion that if such a conflict cannot be properly managed, then on this issue the defendant would have to rest on la sagesse de la Cour.
33. Miss Davies has questioned whether a child psychologist is best suited to undertake these assessments. The distinction between the work carried out by a psychologist and psychiatrist was explored in the case of In the matter of C [2012] JRC 31 in which reference was made to an article by Sam Westmacott, published in the January, 2011 edition of Family Law. The critical difference is that a psychiatrist's primary training is in medicine. The psychiatrist's focus is medical diagnosis and the prescription of relevant alleviating medication or treatment. I will not set out again the full text of the extract from that article, which is helpful in clarifying the distinction between the two professions and their respective approaches.
34. Following the hearing Mr Hanson filed a letter from Dr Silver in which she said that whilst a psychiatrist might consider diagnosis and treatment of such diagnosis, she as a psychologist would be able to formulate a descriptive map of the underlying causes of difficulties and to give a detailed insight into treatment, prognosis and likely impact in daily life. In some ways this would be more comprehensive than a medical assessment. She did go on to set out the limitations of her competence, saying that she would invite the involvement of a psychiatrist in reaching any diagnosis where there is any likelihood of psychosis, mania, bipolar affective disorder or other "organic" conditions and it would be the psychiatrist who would advise on the role of any medication in treatment. If the Court wished she could arrange for a psychiatrist, who is a colleague, to accompany her for part of the assessment.
35. Miss Davies has responded saying that this letter makes it clear that Dr Silver is not qualified to undertake all of the tasks relevant to this case and that she concedes as much. She is not a civil proceedings expert. The starting point Miss Davies says should be a joint instruction of a psychiatrist and only then will the parties or the Court be able to assess the need for a psychologist. She points out that one of the expert psychiatrists she has put forward for consideration by Mr Hanson, Professor Zeitlin, informed her that of the 1500 cases he had dealt with only approximately 5% of those have required the instruction of a psychologist.
36. I am not in a position on the papers before me to determine whether Miss Davies is right that in a case of this kind, psychiatric advice should be the starting point and I have not been asked to determine that question. It does seems to me that the Court will need consistency of expertise at the hearing and that there would appear to be a real possibility of both psychiatric and psychological expert evidence being required, which has further implications in terms of access to the children.
37. Mr Hanson accepted that caution is necessary when assessing children for the purpose of legal proceedings and particularly where, as here, they have complex needs and difficulties and in his words have sustained a catalogue of abuse, but he submitted that the defendant's position had been over-stated. Both Dr Silver and Dr Berelowitz had expressed the view that assessments could be conducted so as to minimise any distress to the children which would, in any event, be of short duration. As against that, I must bear in mind that none of the experts have advised on the impact of multiple assessments.
38. At this stage, and on the basis of the evidence before me and the stated position of the parties, fairness dictates that access to the two older children cannot be granted for the purpose of an expert appointed solely by their guardian ad litem, as that brings with it the real possibility that in their interests, no further access to them can be exercised by the defendant, leaving her at an unfair disadvantage both in terms of the trial and of any settlement discussions. I therefore agree with the approach of Miss Davies, which is consistent with that set out in Mr Hanson's summons, that the parties should explore further the possibility of a joint instruction of an expert or experts working in a multi-disciplinary approach, upon whom they can both agree. If that process fails, then the parties will have to return to the Court for consideration as to how expert evidence can be obtained on a basis that is fair to the parties and which protects the children from harm. Depending on the advice then given, it may be that the way forward will be to limit the experts to the first two layers of the assessment process recommended by Dr Silver, namely the reading of the papers and consultations with the staff at the therapeutic placement.
39. I therefore approve the draft directions provided by Miss Davies in principle, subject to any detailed points that either party may wish to make. Those directions can only relate to the two older children (unless the parties agree otherwise) as the summons and expert evidence adduced by the defendant was limited to them. I invite counsel to meet before this judgment is handed down with a view to their agreeing the final form of the directions to be given.
Authorities
X Children v Minister for Health and Social Services [2012] JRC 068.
Payne v Pirunico [2001] JLR 1.
Children (Jersey) Law 2002.
Family Law Week.
In the matter of X [2003] JLR 111.
European Convention on Human Rights.
Elsholz v Germany [2000] 2 FLR 486.
Regina v Hampshire County Council ex parte K and another (1992) QB 71.