Jersey Unreported Judgments

Care Order - discharge of interim care order - prohibited steps order and contact order made - leave given to minister to withdraw care application.

[2012]JRC185

Royal Court

(Family)

12 October 2012

Before     :		J. A. Clyde-Smith, Commissioner, and Jurats Fisher and Nicolle.
Between	The Minister for Health and Social Services		Applicant
And	The Mother		Respondent

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF A (CARE ORDER)

Advocate S. L. Brace for the Minister.

Advocate NS. A. Pearmain for the Respondent.

judgment

the commissioner:

1.        This is a case in which, somewhat unusually and happily, no public law remedy was sought by the Minister, even though the threshold criteria had been met.  

2.        A ("the child") is four and she was made the subject of an interim care order on 22^nd September, 2011, primarily because of concerns about the impact upon her of repeated incidents of domestic abuse between the mother and the father and concerns about the father's drugs misuse.  The father was excluded from the home and the mother undertook to notify the police should he seek to breach the exclusion order.  On that basis, the child has remained in the mother's care. 

3.        On 16^th January, 2012, the father was removed as a party to the proceedings at his request and he has paid no part in the proceedings since then or in the life of the child other than occasional telephone contact.  Concern was expressed, however, that the mother may still have been conducting a clandestine relationship with the father.  On 19^th July, 2012, the father admitted breaching the exclusion order by getting into the mother's home.  The mother did not contact the police but did seek the support of her parents to remove the father from the home. 

4.        Before turning to the orders initially sought by the Minister and the issues they raised, we should record that the parties had agreed that the threshold criteria under Article 24 of the Children (Jersey) Law 2002 ("the Children Law") were met in this case.  The guardian also confirmed that in his opinion the threshold criteria had been met.  Given that consensus, the Court conducted a more limited inquiry following the guidance given in Devon County Council-v-S [1992] 2 FLR 244 and was satisfied that the threshold criteria were met, thus giving the Court jurisdiction.  

5.        The Court then went through the welfare stage of the process, following the principles summarised by Beloff J In the matter of F and G (No. 2) [2010] JCA 051 at paragraphs 5 - 8.  In the words of the social worker the mother had shown herself to be a competent young mother able to meet the majority of the child's needs to a high standard subject to one concern.  We agreed that no public law remedy was appropriate in this case. 

6.        The concern of the Minister and the guardian, which we shared, was that in the child's interest, the mother's ability to protect her from any resumption of the relationship with the father required external bolstering by a prohibited steps order and contact order under Article 10 of the Children Law. 

7.        Under a prohibited steps order, the Minister sought an order prohibiting the father from (a) having any form of direct contact with the child until further order of the Court; and (b) from attending or approaching within 50 metres of the child's home. 

8.        Under a contact order, the Minister sought an order requiring the mother to prevent contact to the extent that she can between the father and the child. 

9.        The two orders were intended to operate in tandem, the first being addressed to the father and the second to the mother, so that each knew what was expected of them.  In the event of the father or the mother wishing the father to have increased contact, then a private law application could be made, leave being given to disclose the documents within the public law proceedings into the private law proceedings.  A key issue in any such application would be the extent to which the father had addressed his current lifestyle, and in the meantime, the child's welfare would be protected by the prohibited steps order and the contact order. 

10.      A "prohibited steps order" is defined under Article 1(1) of the Children Law as follows:-

"prohibited steps order" means an order that no step which could have been taken by a parent in meeting his or her parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;"

11.      A contact order is defined as follows:-

"contact order" means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other."

12.      On a first reading of the definition of a contact order, one might question how an order requiring someone "to allow" contact could be used for the precise opposite, namely to prevent contact but the English Court of Appeal has interpreted the equivalent English law provision in that way in Nottinghamshire County Council-v-P [1993] 2 FLR where Sir Stephen Brown said this at page 143:-

"Submissions were made to this court to the effect that a contact order in any event necessarily implied a positive order and that an order which merely provided for 'no contact' could not be constructed as a contact order.  There are certain passages in editorial comment which seem to support the view.  We do not share it.  We agree with the judge that the sensible and appropriate construction of the term 'contact order' includes a situation where a court is required to consider whether any contact should be provided for.  An order that there shall be no contact falls within the general concept of contact, and common sense requires that it should be considered to fall within the definition of 'contact order' in s8(1)."

13.      The matter was not the subject of argument before us but we accept that common sense requires that the Jersey provision should be construed in a similar manner. 

14.      Article 11(1) of the Children Law prohibits the Court from making any order under Article 10, other than a residence order (which pursuant to Article 66(1) of the Children Law itself discharges any care order) with respect to a child who is in the care of the Minister.  In order to open the door to applications for a prohibited steps order and a contact order, it is necessary therefore for the Court either to substitute a supervision order for a care order or to discharge the interim care order.  

15.      The Minister had given thought to a supervision order.  Such an order would give the Minister a wide discretion as to how to deal with the child and the family, but its purpose pursuant to Article 28 of the Children Law is to enable the Minister as supervisor to advise, assist and befriend the child.  Furthermore, under Article 5 of Schedule 3 of the Children Law, it endures initially for a period of one year and can be extended for a period which cannot run beyond the end of the period of three years beginning with the day on which it was made.  By way of contrast, a prohibited steps order or a contact order made under Article 10 can extend, pursuant to the provisions of Article 11(6), to when the child reaches the age of sixteen years, or beyond if there are exceptional circumstances.  The Minister therefore concluded, we think rightly, that a supervision order would be unsuitable for controlling contact between the father and the child for the timescales that were needed here. 

16.      As Miss Brace pointed out, Article 10(1) of the Children Law empowers the Court to make an Article 10 order in "family proceedings" in which a question in respect to a child's welfare arises.  "Family proceedings" is defined by Article 1 of the Children Law and Rule3/1(2) (f) of the Royal Court Rules as including "proceedings in respect of a child pursuant to the Children (Jersey) Law 2002".  Therefore the Court has the power to make Article 10 orders within public law proceedings.  Furthermore, Article 2(3)(g) of the Children Law (the welfare test) requires the Court to have regard to the range of powers available to it under the Children Law in the proceedings in question and therefore the Court has to have regard in public law proceedings to any powers it may have under Article 10.  

17.      However, on the assumption that no care order is made and the Court discharges the interim care order, obstacles are placed in the way of the Minister seeking orders under Article 10. 

18.      Article 10(2) sets out those persons who may apply for an order as follows:-

"10(2)  The court may make an Article 10 order -

(a)       on the application of any person who -

(i)        is entitled to apply for an Article 10 order with respect to the child, or

(ii)       has obtained the leave of the court to make the application; or

(b)       if it considers that the order should be made even though no such application has been made."

19.      Pursuant to Article 10(3) the Minister is not a person entitled to apply for any Article 10 order and specifically pursuant to Article 10(4) is not a person entitled to apply for a residence or contact order.  Article 11 goes on to impose the following restrictions:-

"11(2)  The Minister shall not make any application for a residence order or contact order and the court shall not make such an order in favour of the Minister."

"11(5)  The court shall not exercise its powers to make a specific issue order or prohibited steps order -

(a)       with a view to achieving a result which could be achieved by making a residence or contact order;"

20.      Taken together, the result is that the Minister has no entitlement to apply for a prohibited steps order or a contact order under Article 10, but she could apply for leave under Article 10(2) (a) (ii) to make an application for a prohibited steps order.  As the Minister is prohibited by Article 11(2) from applying for a contact order, she cannot, in our view, seek leave to make such an application under Article 10(2)(a)(ii) but the Court could make such an order on its own motion pursuant to Article 10(2)(b). 

21.      The rationale behind these restrictions placed upon the Minister under Article 10 were explored recently by Bailhache, Deputy Bailiff, in the case of In the matter of DD (Care Order) [2012] JRC 135.  In that case, the threshold criteria had been met because of the parenting of the mother, who was thought to suffer from serious mental health issues.  The father and his partner had taken over the care of the children and had proved more than capable of meeting their needs in difficult circumstances.  The Minister sought a residence order in favour of the father and a prohibited steps order preventing the mother from having any direct or indirect contact with the children coming within 50 metres of their home or school.  Having explained the structure of the Children Law, the Deputy Bailiff said this at paragraph 24:-

"24.    It seems to us to be clear that there is a public law involvement for the Minister in circumstances where the Minister is seeking a public law remedy such as a care order or a supervision order.  If the Minister is not seeking such a remedy, the underlying assumption of the Law is that the private law remedies are available to those private parties who are able to apply for them."

22.      The Court in that case found that it had no power to make a residence order and there was no mechanism for the Minister to apply for a prohibited steps order.  The problem was circumvented by the father applying for both orders. 

23.      In the Nottinghamshire case, the local authority, despite a finding that the father had sexually abused one of the children and the other was at serious risk of being abused by him, refused to invoke its powers under Part IV of the Children Act 1989 to apply for a care order or a supervision order but was given leave instead to apply for a prohibited steps order requiring the father not to reside in the same household as the two girls.  Ward J had refused the application for a prohibited steps order because of the provisions of section 9(2) and 9(5) - the equivalent of our articles 11(2) and 11(5).  Instead, and under protest at the conduct of the local authority, Ward J used a dormant application by the father for a residence order to make a residence order in favour of the mother, to which he attached conditions.  The Court of Appeal found that the use of the dormant application by the father for a residence order was in reality a device to make an order in favour of the local authority, which section 9(2) prohibited and could not therefore stand. 

24.      Ward J is reported at page 140 as having said this in his judgment:-

"Section 9(2) clearly prevents the court from permitting a local authority to seek residence orders or contact orders.  Section 9(5) must be read to prevent their achieving that result through the back door.  Parliament had, in my judgment, intended that restriction upon the local authority's right of access to the court because Parliament has expressly provided a door which can be opened only by the local authority, namely the door given by s 31.  I have railed against the inability of the court in this case to do what I would wish to do because the local authority have refused, notwithstanding the s 37 reference, to apply under s 31.  In my judgment Parliament by this Act clearly determined that the sanctity of the family should be preserved and protected.  It is an expression of the underlying purpose of this Act that organs of the State, be they the local authority or the courts, shall not interfere with the independence and integrity of the family save in limited circumstances.  Those limited circumstances which justify the intervention by the local authority are the circumstances where there is or there is a fear of significant harm being occasioned to the children.  The whole tenor of Parts IV and V of the Children Act is that the local authority may not intervene in family life unless and until that threshold has been crossed.  It is only when significant harm is established that the local authority can seek to interfere with where the child is to live and with whom the child is to have contact.  The means by which they can seek the right so to interfere is by means of the public law remedies of care and supervision orders provided by Part IV.  The private law remedies of residence and contact orders are not for them."

25.      Sir Stephen Brown, giving the judgment of the Court of Appeal, accepted at page 144 that there could be circumstances where a child is accommodated by a local authority where it would be appropriate for a local authority to seek a prohibited steps order for some particular purpose, but it could not be regarded as a substitute for a care order under Part IV of the Children Act 1989 which was specifically designed to accommodate public law applications. 

26.      In Re H (Prohibited Steps Order) [1995] 1 FLR 638, the local authority had applied for and was granted supervision orders for five of the children and a care order for the sixth child who had been sexually abused by the mother's partner, a Mr J.  The judge made it a condition of the supervision order that there be no contact with Mr J and made a prohibited steps order against the mother to prevent contact between the children and Mr J.  The judge declined to make a prohibited steps order against Mr J, who was not a party or present at the family proceedings. 

27.      The Court of Appeal held that there was no power to attach such a condition to a supervision order and that the prohibited steps order against the mother contravened Section 9(5) of the Children Act 1989 since it achieved the same result as a contact order requiring the mother not to allow contact with Mr J and could be enforced in the same way.  On the other hand, the Court of Appeal found that a prohibited steps order against Mr J did not contravene Section 9(5) as no contact order could be directed at Mr J, since he did not live with the children. 

28.      It seems clear from the judgment that the local authority had not applied for the prohibited steps order and that it had been imposed at the discretion of the judge.  Butler-Sloss LJ said this at 642:-

"The variety of circumstances in which a judge, in his discretion, might require to make an injunctive order for the protection of children is so great that it would be wrong for this court to say anything which might reduce the necessary flexibility of this important tool." 

29.      It was the view of the Court that on the facts of the case before it, the prohibited steps order and the contact order sought by the Minister should be imposed in the interests of the child.  The mother had agreed to those orders being made, although she was not prepared to apply for them herself.  The Court was concerned as to whether it was appropriate either to grant the Minister leave under Article 10(2) (a) (ii) to apply for a prohibited steps order and to impose a contact order at its own instance.  In the words of Ward J, quoted in the Nottinghamshire case at page 138 was it right notwithstanding 'the delights of the flexible range of remedies' under Article 10 for the Court 'to accept the invitation to dine at the private law table'.

30.      The Court was also conscious of the words of Butler-Sloss J that it would be wrong to do anything which might reduce the flexibility of the power of the Court to make injunctive orders for the protection of children.  Whilst it might have been argued that if the child required further protection from harm then in the light of the fact that the threshold criteria were met, the Minister should have sought a care order, the Court took into account the non-intervention principle enshrined in Article 2(5) of the Children Law.  This was a mother who, subject to this one issue, was a competent parent and the use of the care order would have been draconian.  A discharge of the care order and the imposition of these prohibited steps and contact orders was the least interventionist method satisfactorily safeguarding and promoting the child's welfare. 

31.      In the end, the Court did not have to make a decision, as the guardian agreed to make the application for both orders.  It is clear under Article 10(2) (a)(ii) that an application for leave can be made by any person and as the child's guardian appointed under Article 75(1) of the Children Law he was an appropriate person to make the application.  The Court had regard to the matters set out in Article 10(6) of the Children Law and having granted the guardian leave for that purpose, made the prohibited steps and contact orders originally sought by the Minister. 

32.      We can comment on what the Court would have done if the guardian had not made that helpful intervention.  The two orders were intended to act in tandem and in addition to having reservations over the Minister applying for orders under Article 10, it would we think have been incongruous to have granted the Minister leave to apply for one of the orders when she was prohibited from applying for the other.  The Court would not have granted the Minister leave in those circumstances but because it regarded the two orders as being necessary for the welfare and protection of the child it would ultimately have imposed the two orders at its own instance pursuant to Article 10(2) (b). 

33.      An issue raised by the Court was the duration of these orders.  The child is four, and therefore some twelve years would elapse before she attains the age of sixteen.  These orders comprise injunctive relief and the Court was concerned with them lying perhaps forgotten only to bring potentially both the mother and father into contempt at some indeterminate date in the future when circumstances had completely changed and the orders had ceased to be relevant or necessary.  Miss Laura Starck, the social worker, advised us that the orders should remain in place until the child attained the age of sixteen.  The guardian advised that five years was sufficient.  The Court resolved after discussion to make the orders until the child was sixteen but to order a review by the Court after five years, that review to be instigated by the Minister. 

34.      The Court therefore made orders in this sequence:-

(i)        Firstly, it discharged the interim care order. 

(ii)       Secondly, it made the prohibited steps order and the contact order. 

(iii)      Thirdly, it gave the Minister leave to withdraw the care application pursuant to Article 33 of the Children Law and Rule 9 of the Children Rules 2005.  It did so applying the legal test set out in The Minister of Health and Social Services-v-KG [2009] JRC 076. 

Authorities

Children (Jersey) Law 2002.

Devon County Council-v-S [1992] 2 FLR 244.

In the matter of F and G (No. 2) [2010] JCA 051.

Nottinghamshire County Council-v-P [1993] 2 FLR.

In the matter of DD (Care Order) [2012] JRC 135.

Children Act 1989.

Re H (Prohibited Steps Order) [1995] 1 FLR 638.

Children Rules 2005.

The Minister of Health and Social Services-v-KG [2009] JRC 076.