Jersey Unreported Judgments

Child custody - summons for directions issued by guardian.

[2013]JRC087

Royal Court

(Family)

13 May 2013

Before     :

J. A. Clyde-Smith, Commissioner, sitting alone.

 

Advocate T. V. R. Hanson for the Plaintiffs.

Advocate C. R. Davies for the Defendant.

judgment

the commissioner:

1.        The guardian has issued a summons for directions which has to a large extent been agreed by Miss Davies.

2.        The children are now 17, 15 and 13 respectively.  A will come of age in 2014 at which point, subject to his having capacity, he will have the conduct of his part in these proceedings.  B has recently moved from her residential home P to a new residential home Q.  C is about to leave her residential placement at R into foster care. 

3.        A and B have both been the subject of psychiatric reports prepared by Dr Markantonakis dated 21^st January 2013 and notwithstanding the fact that C was the subject of a psychiatric report by Dr Berelowitz dated 19^th September 2011, it is proposed, sensibly in my view, that Dr Markantonakis should carry out a further psychiatric assessment of her so that we have the one psychiatrist opining in relation to all three children. 

4.        It is also agreed that all three children should now be the subject of a psychological assessment by Dr Mair Edwards, a child psychologist, so that again, we have one psychologist opining in relation to all three children. 

5.        An issue has arisen as to the timing of B's psychological assessment with the Minister wishing to delay the same for a period of approximately six months as a consequence of her recent change of placement, about which Mr Hanson contends he has had insufficient disclosure.  The draft directions provided by both parties set out a timetable for this issue to be heard before the Court but I take the view that Mr Hanson should first have time to assimilate the reasons that will be put forward by the Children's Service in relation to the timing of this assessment before proceeding to a hearing.  Bearing in mind that Dr Markantonakis recommended further reports when B was 18, I would be hopeful that a hearing on what is a short delay in the scheme of things can be avoided.

6.        Mr Hanson complains that he has not been kept informed of developments in relation to the children, in particular in relation to B's change of placement.  As their guardian and lawyer, he says he needs to know about major changes in their lives.  The letters from Hanson Renouf to Davies Ingram dated 8^th April 2013 and 17^th April 2013 did raise questions about the current needs and welfare of the children and the lack of notification of major decisions. Miss Davies regarded these requests as going beyond the role of a guardian ad litem.  She points out that these are not care proceedings and it is the Minister who has the care of the children.  Mr Hanson made it clear to me that he was not suggesting that he should be consulted over and/or have some influence over the care planning in respect of the children or that he should be entitled to see all the documents generated in relation to them, but he said it was important that he was informed promptly about any developments that were relevant to the case.

7.        The law in relation to the defendant's continuing obligations to make disclosure is not in dispute and there is an existing consent order dated 28^th February 2012 in the following terms:-

"That the parties continue to make disclosure of all relevant documentation.  In the case of the Defendant, to include monthly summary reports and/or six monthly review reports relating to the plaintiffs, should these documents be in existence."

8.        Miss Davies informed me that this was a reference to the monthly reports that were then being produced by P and to the LAC reviews which ordinarily take place every six months, thereby implying that she accepts that these documents at least are relevant.  In general terms, however, it is for Miss Davies, acting for the defendant, to assess relevance, applying the appropriate test (Victor Hanby Associates Limited and Hanby v Oliver [1990] JLR 337) which, upon verification by affidavit, would be treated as conclusive subject to any application Mr Hanson may bring for specific discovery.

9.        Discovery is governed by Rule 6/17 of the Royal Court Rules 1984 which provide for the same to be verified by affidavit and it seems to me important that rather than handing over documents on a piecemeal basis (if that is happening) there should be an affidavit sworn on each occasion that further disclosure is made, so that it is clear that the appropriate test has been applied by Davies Ingram on behalf of the defendant in relation to all documents that have come into the Minister's possession custody or power in relation to this matter from the date of the last affidavit verifying disclosure. 

10.      There may be arguments that a guardian ad litem in order to carry out his duties as "bon père de famille" might be entitled to more information about the children than is strictly required for the purposes of discovery in the litigation that he is conducting, but that would be an argument for another day.

11.      Miss Davies is going to conduct a review of the procedures in place between her firm and the Children's Service under the now changed circumstances of the children for the purposes of disclosure and she has agreed to meet with Mr Hanson to see if a modus operandi can be agreed which in practice will obviate the need for a specific disclosure application.  If Mr Hanson is not satisfied with the outcome of that process then he is at liberty to bring such an application.

12.      Working from the draft directions prepared by Miss Davies, and subject to any further comments of counsel, the directions will therefore be as follows:-

"WHEREAS the Minister does not believe that it would be in the best interests of the second plaintiff to undergo a psychological assessment at this time due to her recent change of placement and whereas the guardian alleges that he has been provided with no disclosure in relation to the second plaintiff's change in placement, save for a draft LAC review provided on 23^rd April 2013, and is therefore not in a position to make a decision on the timing of the second plaintiff's psychological assessment, the Court directed as follows:-

(i) Regarding the first plaintiff (A):

(a) Dr Mair Edwards (child psychologist) shall be jointly instructed as an expert to assess the First Plaintiff.

(b) The parties shall agree an appropriately worded letter of instruction to the expert within 7 days of this order.  That such letter of instruction will ask Dr Edwards to carry out a full psychological assessment of the first plaintiff on the basis of a direct assessment and consideration of all the papers provided in this matter and to deal specifically with the following issues:-

(1) The nature and effect of any learning disability which the first plaintiff may be suffering from;

(2) The extent to which any learning difficulty/ies (if any) may affect the first plaintiff in the future;

(3) The extent to which any learning difficulty/ies (if any) are likely to have been exacerbated by the first plaintiff's experiences in childhood;

(4) The extent to which any learning difficulty/ies (if any) would have been present regardless of any of the first plaintiff's experiences in childhood;

(5) Whether there is any psychological assistance that can be provided to the first plaintiff to mitigate any such learning difficulty/ies;

(6) To provide a comparison of his current developmental level with his level on admission and opine upon the effect that P's therapeutic and supportive environment has had on the first plaintiff's cognitive development since his admission to P; and

(7) To opine upon the present treatment available to the first plaintiff, the type and frequency of the therapeutic provision and the merits of any additional psychological or other treatment for him; and

(8) To opine upon his current developmental level including his cognitive development; life skills; emotional state and ability to relate to others;

(c) Dr Edwards shall be provided with all relevant documentation and shall meet the first plaintiff;

(d) Any meeting between Dr Edwards and the first plaintiff, shall take place either before the end of May 2013 or after the end of June 2013.

(ii) Regarding the second plaintiff (B)

(a) Dr Mair Edwards shall be jointly instructed as an expert to assess the second plaintiff in the same manner as outlined under (i) above, but in relation to the timing of that assessment,:-

(1) The Minister shall serve affidavit evidence from the Children's Service and any other evidence upon which she intends to rely as to why the assessment should be delayed for approximately six months and this by 17th May 2013.

(2) If the guardian is satisfied by that explanation, then the assessment shall be delayed for approximately six months for those reasons.

(3) If the guardian is not satisfied by that explanation, then he shall be at liberty to refer the matter back to the Court by way of summons for which purposes the evidence of the Minister provided under (1) above shall stand as the Minister's case on that issue.

(b) The plaintiffs shall be at liberty to provide Dr Markantonakis with a copy of the report produced by Da Capo in 2013 and which concerned allegations made by the second plaintiff in August 2012 and to ask him whether the contents of the report cause him to amend any findings or recommendations made in his report dated 21st January 2013.  The defendant shall be at liberty to provide Dr Markantonakis with such other documentation in addition as may be agreed by the parties with liberty to apply failing such agreement.

(iii) Regarding the third plaintiff (C)

(a) Dr Markantonakis shall be jointly appointed to assess the third plaintiff in the same manner as he has previously assessed the first and second plaintiffs.  Dr Markantonakis has confirmed that he is currently able to meet with the third plaintiff prior to the end of May 2013 (it being noted that C shall not be available between 12^th - 16^th May 2013) and provided he can do so this assessment should proceed at this stage;

(b) Should Dr Markantonakis for any unexpected reason not be able to meet the third plaintiff by the end of May 2013, there shall be liberty to apply;

(c) The parties shall agree a joint letter of instruction to Dr Markantonakis and this within seven days;

(d) In addition to Dr Markantonakis, Dr Edwards shall be jointly instructed as an expert to assess the third plaintiff on the same basis as at paragraph (i) above.  That assessment should proceed at the present time provided that any meeting with the third plaintiff can take place prior to the end of May 2013 (it being noted that the third plaintiff shall not be available from 12^th to 16^th May 2013).  Should Dr Edwards be unable to meet the third plaintiff prior to the end of May 2013, there shall be liberty to apply.

(e) The parties agree that Dr Markantonakis should, if possible, meet first with the third plaintiff so that he may have the opportunity to comment upon whether any additional matters arise which should be the subject of the psychological assessment.  Should this not be possible there shall be liberty to apply.

(iv) Regarding on-going disclosure.

Without prejudice to the on-going obligations of the parties to make disclosure of all relevant documents, the consent order numbered 2 of the Act of 28^th February 2012 is discharged.

In the light of the plaintiffs' changed circumstances, the defendant will undertake a review of the procedures in place between the Children's Service and Davies Ingram for the disclosure of documents in pursuance of the Minister's on-going obligations and the guardian and Miss Davies for the Minister will meet to agree, if possible, upon a modus operandi for the provision of further disclosure as and when it arises, any such further disclosure to be verified by affidavit and this without prejudice to the right of the guardian to apply for specific discovery.

(v) Costs

The costs of this application shall be in the cause.

(vi) There shall be liberty to apply."

13.      There was a general discussion about the way the case will proceed going forward.  General discovery and inspection have I believe taken place but the action has not yet been set down for hearing.  Barring settlement, it looks as if it might be proposed to deal with the residual issue of liability separately with the issue of damages being taken forward in stages for each of the plaintiffs.  This will be for another day but it would be sensible for there to be a general directions hearing to discuss the future management of the case once the current round of expert reports are in and have been digested.

Authorities

Victor Hanby Associates Limited and Hanby v Oliver [1990] JLR 337.

Royal Court Rules 1984.