Sir Michael Birt, Kt., Bailiff, and Jurats Fisher and Nicolle.
Minister of Health and Social Services
A (the father)
IN THE MATTER OF D (CARE ORDER)
Advocate B. J. Corbett for the Applicant.
Advocate D. C. Robinson for the First Respondent.
Advocate C. G. Hillier for the Second Respondent.
1. In this case, D (who is now 16½) has applied for discharge of the care order made in respect of him on 14th February, 2011. The first respondent ("the Minister") has applied to strike out D's application either under Rule 6/13(a) and (d) of the Royal Court Rules 2004 or under the Court's inherent jurisdiction.
2. This requires us to consider the jurisdiction to strike out an application in proceedings under the Children (Jersey) Law 2003 ("the Children Law") and, if such jurisdiction exists, the circumstances in which it might be appropriate to exercise it.
3. At the conclusion of the hearing, the Court announced its decision to refuse to strike out D's application. This judgment contains our reasons for that decision.
4. The background to the making of the care order is set out in the judgment of the Court in Minister of In the matter of D  JRC 039 and reference can be made to that judgment so far as necessary.
5. D is the youngest of the seven children of the second respondent ("the father") and his late wife who died a number of years ago. From that point onwards the father was the sole carer of the children. The family had been well known to the Children's Service for many years. In 2008, one of the daughters alleged that she had been sexually abused by the father. He was subsequently convicted of indecent assault on that daughter and on another girl and was sentenced to four year's imprisonment. In September 2008 the Minister obtained an emergency protection order in respect of the three youngest children, the other children all being over 17. On 23rd September, 2008, the Court granted interim care orders in respect of those three children and Ms Leonora Green, then of the NSPCC in the United Kingdom, was appointed as guardian of the three children.
6. In May and October 2009 respectively, final care orders were made in respect of the two other children. In respect of D there were outstanding issues and the matter was adjourned. Thereafter there were a number of further adjournments because of difficulties with the placements of D. Two placements with foster carers broke down and eventually D was placed in Heathfield. However, that did not prove satisfactory and there were continued difficulties when the matter came back before the Court in February 2011.
7. At that time the evidence was that foster care was not in D's best interests as his needs were too overwhelming for a family placement to meet. Heathfield was also considered unsatisfactory. In the end what was proposed in the care plan was the creation of a small specialist residential unit ("the Unit") for a limited number of children who would be looked after by a team of carers and that D should live there. Having considered the care plan, the Court duly made a final care order on 14th February, 2011, for the reasons set out in the judgment already referred to. D was 13½ at the time.
8. Since then, D has resided at the Unit, although the Unit moved accommodation in September 2012. There are two other children who reside there with him. One has been there for two and a half years and the other for one and a half years. They are both 16. D attends the school referred to at the time of the care order. He is due to leave school at the end of this academic year and hopes to find work either as a labourer on a farm or as a fisherman on a boat. He does not wish to attend any further educational establishment at present.
9. Following an incident with one of the other children in October 2013, it is said that D has become increasingly unsettled at the Unit. For example, on some three occasions, D has been reported as missing to the police, although on each occasion he has been found promptly.
10. According to the application for discharge of the care order, D is very unhappy in his current placement. He has communicated these feelings to the Children's Service and indeed has asked for the matter to be reviewed by the Independent Reviewing Officer (IRO) but it is said that no changes have been made. The Children's Service has indicated that he must remain at the Unit despite his wish to leave. There has also been correspondence between Advocate Corbett on his behalf and the Children's Service. The upshot has been that on 20th January, 2014, Advocate Corbett issued an application on D's behalf to discharge the care order. Following that application, the Minister has applied to strike out D's application.
11. The Minister applies primarily under (1)(a) and (d) of RCR 6/13 which provides as follows:-
"(1) The Court may at any stage of the proceedings order to be struck out or amended any claim or pleading, or anything in any claim or pleading, on the ground that:-
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may make such consequential order as the justice of the case may require.
(2) No evidence shall be admissible on an application under paragraph (1)(a)."
12. We do not consider that RCR 6/13 applies to proceedings under the Law. We so conclude for the following reasons:-
(i) Although there is no specific carve out in RCR 6 for proceedings under the Children Law (unlike matrimonial proceedings which are specifically exempted under RCR 6/1) it is clear from looking at RCR 6 as a whole (which is headed 'procedure and pleadings') that it is not readily applicable to proceedings under the Children Law.
(ii) For example, RCR 6/2 provides that, subject to certain exceptions (which do not apply) proceedings must be instituted by summons, order of justice or representation. This is quite inconsistent with proceedings under the Law which, by virtue of Rule 6 (Public Law Proceedings) and Rule 7 (Private Law Proceedings) of the Children Rules 2005 ("the Children Rules"), must be begun by filing the relevant form as set out in the schedule to the Children Rules i.e. they are specifically not to be begun by summons, order of justice or representation.
(iii) Similarly, RCR 6/6 refers to placing matters on the pending list, filing an answer within a specified time etc whereas, under the Children Rules, no such procedure is followed. Indeed, as one goes through RCR 6, there are comparatively few matters which are even capable of application to proceedings under the Children Law because of the very different procedure which is required by the Children Rules.
(iv) In the circumstances, we do not think it would be right to pick out RCR 6/13 and hold that it is applicable to proceedings under the Children Law. In any event, it would be very hard to apply RCR 6/13(1)(a) to proceedings under the Children Law because it refers to a pleading which disposes no reasonable cause of action or defence. It is clear that, when considering a strike out under sub-paragraph (a), the Court must consider solely the pleading and no evidence is admissible. Thus one simply looks at the pleading and decides whether this discloses a reasonable cause of action. This is not really applicable to proceedings under the Children Law. In such cases, there is simply an application for a care order or for the discharge of a care order made on the appropriate form specified under the Children Rules, with no further details given. It is really impossible to say that such an application discloses no reasonable cause of action simply on the information contained in the form.
13. As an alternative to the application under RCR 6/13, the Minister applies under the inherent jurisdiction of the Court. There is no doubt that such an inherent jurisdiction to strike out exists alongside that contained in RCR 6/13. See for example Mauger v Batty  JLR N8B and affirmation by the Court of Appeal in Trant v AG  JLR 231 at para 23 per Beloff JA. The nature of the inherent jurisdiction is summarised in Supreme Court Practice 1999 Volume 1 at 18/19/26 as follows:-
"Apart from all rules and orders and notwithstanding the addition of para (1)(d), the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process ..."
14. In our judgment the Court requires an inherent jurisdiction to protect itself from proceedings which are frivolous, vexatious or an abuse of its process just as much in relation to proceedings under the Children Law as in connection with other types of proceedings. Accordingly we hold that proceedings under the Children Law are capable of being struck out under the inherent jurisdiction of the Court.
15. However, one has to have regard to the nature of the matter before the Court. Proceedings under the Children Law are concerned with the welfare of children. In such cases the Court is not concerned with vindication of a legal right but with what is the best thing to be done in the interests of the child or children in question. This is very fact specific and it would, in our judgment, usually be a very dangerous course to conclude, without hearing all the evidence, that an application is so hopeless that it should not be allowed to proceed. It follows that if the Minister wishes to strike out an application to discharge a care order, she will face an extremely high hurdle, as the effect of a strike out would be to prevent the child concerned from even arguing that the care order should be discharged.
16. Nevertheless, we can foresee some circumstances where it might be appropriate. For example, if a child had made an application for the discharge of a care order which, after a full hearing, had been rejected and then applied again some six months later when there had been no real change of circumstances, we can foresee a Court exercising its summary jurisdiction to strike out under its inherent jurisdiction. Nevertheless, for the reasons given, we would expect the jurisdiction to strike out proceedings under the Children Law to be very sparingly exercised.
17. We therefore turn to consider the question of whether D's application to discharge the care order is so doomed to failure that it can be considered as frivolous or vexatious or otherwise an abuse of the Court and should therefore be struck out without any hearing on the merits.
18. The Minister argues that the real objective of the application is to secure a change in the care plan so that D no longer has to reside at the Unit but is moved somewhere which he is more content with. We entirely agree with the Minister that, if this were in reality what was being sought, it would not be a proper role for the Court to seek to interfere with the Minister's care of a looked after child. This was authoritively established in relation to the equivalent English legislation in the case of Re S; Re W  1 FLR 815 and we would quote from the following passages of the speech of Lord Nicholls of Birkenhead:-
" Two preliminary points can be made at the outset. First, a cardinal principle of the Children Act 1989 is that when the court makes a care order it becomes the duty of the local authority designated by the order to receive the child into its care while the order remains in force. So long as the care order is in force, the authority has parental responsibility for the child. ... While a care order is in force the court's powers, under its inherent jurisdiction, are expressly excluded ...
 There are limited exceptions to this principle of non-intervention by the court in the authority's discharge of its parental responsibility for a child in its care under a care order. The court retains jurisdiction to decide disputes about contact with children in care ... the court may discharge a care order, either on application made for the purpose under S39 or as a consequence of making a residence order ... These exceptions do not detract significantly from the basic principle. The Children Act 1989 delineated the boundary of responsibility with complete clarity. Where a care order is made the responsibility for the child's care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority's discharge of its responsibilities. That was the intention of Parliament.
 The Children Act 1989, embodying what I have described as a cardinal principle, represents the assessment made by Parliament of the division of responsibility which would best promote the interests of children within the overall care system. The court operates as the gateway into care, and makes the necessary care order when the threshold conditions are satisfied and the court considers a care order would be in the best interests of the child. That is the responsibility of the court. Thereafter the court has no continuing role in relation to the care order. Then it is the responsibility of the local authority to decide how the child should be cared for."
19. This is equally the position under the Children Law. Thus in In the matter of D  JLR 220 (interestingly an appeal against an aspect of the order made by the Court when it granted the care order in respect of D in the first place) Bennett JA said as follows:-
"25. ... if the court has made a care order, which, as we have said, passes parental responsibility to the Minister, it is the Minister who is responsible for the best interests of the child and the Minister is not subject to the supervision of the court in the discharge of her responsibilities. If circumstances arise which may require the discharge of the care order, the matter can be returned to court.
27. ... as Ms Davies submitted, the Minister must be left to get on with her duties and responsibilities. If it is considered that she is not acting in the best interests of the child then either the care order is capable of being discharged or issues as to contact can be ventilated before the court under Art. 27."
20. As noted by Bennett JA, the Court does retain jurisdiction to discharge a care order. Thus Article 33(1) of the Children Law provides:-
"(1) A care order may be discharged by the court on the application of
(a) any person who has parental responsibility for the child;
(b) the child; or
(c) the Minister."
21. There is no guidance in the statute as to the test to be applied on such an application but we agree with Commissioner Clyde-Smith in In the matter of C (Child custody)  JRC 112 at para 12 that, in considering whether or not to discharge a care order, the Court has to have regard to the welfare checklist set out in Article 2(3) of the Law and that ultimately the issue is what is in the best interests of the child.
22. Nevertheless, on an application to discharge, it is not open to the Court to direct the Minister as to the arrangements which should be made for the child. The Minister will no doubt, on such an application, outline the arrangements which she proposes and that can of course be tested. In the light of any such testing, the Minister may of course agree to or put forward different arrangements. Nevertheless, all the Court has to decide on such an application is whether the best interests of the child will be served by discharging the care order or by allowing it to continue (in which event the child will be dealt with in accordance with the arrangements put forward by the Minister). The Court may think that the arrangements proposed by the Minister are not the most advantageous and that some other arrangements suggested by or on behalf of the child would be preferable. However, unless the Court concludes that discharging the care order altogether would be more in the child's best interests than the arrangements proposed by the Minister, it must reject the application for discharge and the Minister is then free to proceed with such arrangements as she considers best.
23. In the light of our decision not to strike the matter out, we do not think it appropriate to go into any detail concerning the facts of this case as they will be for resolution as and when the application for a discharge comes on for hearing. In essence, Advocate Corbett argues that D is very unhappy where he is and is beginning to misbehave. There is the potential risk that if he is forced to stay in the Unit, he will present increasingly challenging behaviour and any good which has been achieved over the last few years will be undone. Conversely, the Minister argues that it is important that D should not feel that he can procure a change in arrangements simply because things may not be going exactly as he wishes. The Minister further points to the fact that the matter has been reviewed by the IRO who has supported the stance of the Children's Service.
24. The Minister emphasised that she had not departed from the care plan approved by the Court at the time the care order was. However, no care plan is set in stone. It may well require adjustment or change as a child grows up or problems occur. The Minister's duty is to do what is best for the child, not stick rigidly to a care plan which was thought appropriate some time earlier. It follows that that particular argument did not assist the Minister.
25. Suffice it to say that, in our judgment, the Minister has come nowhere near satisfying us that D's application is so obviously doomed to failure that it should be struck out at this stage and he should not even have the opportunity of being heard, presenting all his evidence and inviting the Court to say that his best interests would be served by discharging a care order. Interestingly, in the passage referred to at para 19 above, Bennett JA specifically envisages that, if the Minister is found not to be acting in the best interests of the child, the care order may be discharged. D contends that that is what is occurring here and he must be allowed to present his case.
26. Having determined that the application for discharge of the care order should not be struck out, we considered that it was appropriate to appoint a guardian. The Minister suggested that, in accordance with the practice now followed, a member of JFCAS should be appointed. Advocate Corbett, on the other hand, submitted that in this particular case, it would be appropriate to re-appoint Ms Leonora Green who had acted as guardian in the earlier proceedings. She had established a good relationship with D and he had confidence in her. We agreed that, given D's age and long-standing relationship with Ms Green (albeit that he had not had any need to have dealings with her since the care order) it would be preferable for her to be appointed and we so ordered.
27. The guardian is appointed for the purposes of an application for discharge. It follows that she is not there to represent D in his day to day dealings with the Children's Service. The Minister retains sole responsibility for D's welfare. Having said that, the guardian has to consider and in due course report to the Court as to whether D's best interests will be served by discharge of the care order or by leaving it in place. In deciding whether she thinks it would be best to leave it in place, she will clearly have to take into account the plans which the Minister has for looking after D if the order is left in place. It would be entirely consistent with her role, should she conclude that the best course would be to leave the care order in place but with some different arrangements being made for D, to raise with the Minister the possibility of adopting such alternative arrangements. Should the Minister agree to such arrangements, all well and good. Should the Minister not do so, the Guardian will then have to consider - as will the Court - whether discharge or maintaining the order (with the current arrangements) is the better course of action for D's welfare.
Royal Court Rules 2004.
Children (Jersey) Law 2003.
Children Rules 2005.
Mauger v Batty  JLR N8b.
Supreme Court Practice 1999.