Jersey Unreported Judgments

Appeal against decision of the Royal Court dated 3rd June 2016.

[2016]JCA120

Court of Appeal

12 July 2016

Before     :		William Bailhache, Bailiff., President John Martin QC, and Sir Michael Birt
Between	A (the grandmother)		Appellant
And	Minister for Health and Social Services		First Respondent
And	B (the mother)		Second Respondent
And	Nicole (the child, acting through her Guardian Sue Clarke)		Third Respondent

Advocate R. S. Tremoceiro for the Appellant.

Advocate S. M. Roberts for the First Respondent.

Advocate J. F. Orchard for the Second Respondent.

Advocate B. J. Corbett for the Third Respondent.

judgment

birt ja:

This is the judgment of the Court.

1.        By notice of appeal dated 10^th June, 2016, the Appellant ("the grandmother") appeals against a decision of the Royal Court (Commissioner Clyde-Smith with Jurats Liston and Ronge) dated 3^rd June, 2016, (unpublished) whereby it dismissed her application for a further parental capacity assessment of her suitability as a long-term carer of her granddaughter Nicole (this is not her real name), who is the subject of care proceedings instituted by the Minister for Health and Social Services ("the Minister").  We announced our decision to allow the appeal at the conclusion of the hearing and now give our reasons. 

2.        The grandmother contends that she may appeal against the Royal Court's decision as of right whereas the Minister has raised the question of whether leave to appeal is required.  Accordingly, having set out the factual background, we propose to deal first with the question of whether leave is required before turning to consider the merits. 

Factual Background

3.        Nicole was born in July 2015 and is therefore 1 year old.  The Second Respondent ("the mother"), who is aged 18 and is the daughter of the grandmother, is her mother.  Nicole's father has played no part in these proceedings. 

4.        The mother has herself been a looked after child since the age of 12 and has experienced multiple foster placements and carers since that age.  Following Nicole's birth, arrangements were made to provide support for her.  However, concerns emerged as to the care of Nicole and on 23^rd July, 2015, Nicole was placed in foster care with the agreement of the mother. 

5.        On 4^th September, 2015, the Royal Court made an interim care order.  The care plan lodged by the Minister at the time envisaged that Nicole and the mother should be placed within a parent and child foster placement with a view to a parenting assessment being carried out.  Sadly this was not successful and the mother left the placement on 19^th November, 2015.  Nicole has remained in foster care since then.  A psychological report by Dr Mair Edwards dated 3^rd December, 2015, was not positive from the mother's point of view and she then put forward the grandmother, who is aged 42 and lives in the UK with her husband and their 4 year old child Robert, as a connected person carer for Nicole.  A viability assessment of such a placement was carried out by Jackie Boyle, a social worker employed by the Children's Service.  Her report of 18^th January, 2016, was negative and did not recommend that a full connected person's assessment be undertaken in respect of the grandmother. 

6.        The grandmother challenged that conclusion and, because the mother had also put forward the grandmother's mother-in-law ("the step great-grandmother") as a potential carer, the Minister agreed that both could be the subject of a connected person's assessment to be carried out by an independent social worker.  That assessment was ordered by the Royal Court on 1^st March, 2016, which entailed adjourning the final hearing date, which had at that stage been fixed for 14^th - 18^th March, 2016. 

7.        The appointed independent social worker was Ms Sue Bach.  We shall revert later to the detail of her report but it was filed on 7^th April, 2016, and did not recommend either the grandmother or the step great-grandmother as a suitable carer for Nicole. 

8.        There being no other viable members of the family to be considered as carers, the current care plan is for Nicole to be adopted and the Minister will be seeking an order for her to be freed for adoption at the final hearing, which was fixed for 11^th - 15^th July, 2016.  The grandmother has however been made a party to the proceedings and she has been given leave to make an application for a residence order, which would be heard at the same time. 

9.        The matter which came before the Royal Court on 31^st May was the grandmother's application for a further connected person's assessment of her, she being critical of a number of aspects of the assessment by Ms Bach.  It was this application which was rejected by the Royal Court in its judgment of 3^rd June, against which the grandmother now appeals.  The grandmother seeks an order from this Court that a further assessment of her as a possible carer for Nicole should be carried out. 

10.      We shall consider the arguments put forward by Advocate Tremoceiro in support of the appeal later in this judgment but we must first consider whether leave to appeal is required. 

Is leave to appeal required?

11.      This issue arises because of an apparent inconsistency between the provisions of the Court of Appeal (Jersey) Law 1961 ("the 1961 Law") and the Children (Jersey) Law 2002 ("the Children Law").  

12.      Article 13 of the 1961 Law provides (so far as relevant) as follows:-

"13. Limitation on Appeal

No appeal shall lie under this Part:- ........

(e)       without the leave of the court whose decision is sought to be appealed from, or of the Court of Appeal, from any interlocutory order or interlocutory judgment, except:-

(i)        where the liberty of the subject or the custody of minors is concerned, ..

(ii) ....

(iii)..."

13.      Rule 3 of the Court of Appeal (Civil) Rules 1964 ("the Court of Appeal Rules") provides that notice of appeal or, if leave to appeal is required, an application for leave to appeal must be made within 28 days from the date on which the judgment or order of the court below was pronounced. 

14.      Article 68 of the Children Law provides (so far as relevant) as follows:-

"68.    Appeals

(1)       Subject to any express provisions to the contrary made by or under this Law, an appeal shall lie:-

(a)       where the Judicial Greffier is exercising the functions of the court in accordance with Rules of Court, to the court; and

(b)       in any other case, to the Court of Appeal,

against the making or refusal to make an order under this Law other than in relation to an interim order for periodical payments under Schedule 1."

15.      Rule 24 of the Children Rules 2005 ("the Children Rules") provides that, where an appeal lies to the Court of Appeal under Article 68(1)(b) of the Children Law, the notice of appeal must be filed and served within 10 days of the giving of reasons by the court for the decision against which the appeal is brought or, in the case of an appeal against an interim care order or an interim supervision order, within 7 days of the making of the order. 

16.      Advocate Tremoceiro, supported by Advocate Corbett and Advocate Orchard, submits that leave to appeal is not required.  He points out that the 1961 Law and the Rules made thereunder are dealing with appeals in general.  They must be taken as being subject to any specific provision to different effect which appears in another statute or in rules made under another statute.  Article 68(1) of the Children Law provides that.... "an appeal shall lie".  This must confer an unfettered right of appeal.  That, he submits, is confirmed by Rule 24 of the Children Rules which refers only to a notice of appeal, not to an application for leave to appeal. 

17.      He further submits that the order in this case was an "order under this Law...." because it was made in the course of proceedings seeking a care order under the Children Law.  Furthermore, the order sought was of the type listed in Rule 13 (2) of the Children Rules, which were made pursuant to the power in that behalf conferred by the Children Law.  Rule 13 (2) provides as follows:-

"(2)     The Court in any proceedings may, of its own motion or on the written request of any party in Form C2 give, vary or revoke directions for the conduct of the proceedings, including:-

(a)       the timetable for the proceedings;

(b)       varying the time within which or by which an act is required, by these Rules or by other Rules of Court, to be done;

(c)       the attendance of the child;

(d)       the appointment of a person under Article 75;

(e)       the service of documents;

(f)        the submission of evidence, including experts' reports;

(g)       the preparation of welfare reports under Article 9;

(h)       consolidation with other proceedings,

and the power of the Court under this paragraph includes a power to make interim orders and orders as to costs."

18.      Advocate Roberts, on behalf of the Minister, accepts that it is unclear whether leave to appeal is required but contends that, on balance, it is not.  She submits that Article 68 has to be read in conjunction with Article 13 of the 1961 Law, so that the reference to "any order" in Article 68 is interpreted as being subject to the terms of Article 13 (1) (e), with the consequence that, if the order in question is interlocutory, leave to appeal is required unless it falls within one of the exceptions listed in Article 13 (1) (e) (i), i.e. it concerns the liberty of the subject or the custody of a minor. 

19.      We are unable to accept Advocate Roberts' submission for the following reasons:-

(i)        Article 68 (1) provides that "....an appeal shall lie....." (emphasis added).  This is language which strongly suggests an unfettered right of appeal rather than one which is qualified. 

(ii)       Such an interpretation is consistent with Rule 24 of the Children Rules which refers only to a notice of appeal, not to any application for leave to appeal. 

(iii)      Article 12 (2) of the 1961 Law confers a general jurisdiction on the Court of Appeal to hear appeals from any judgment of the Royal Court in any civil court or matter but is expressed to be "....... subject as otherwise provided in any other enactment.....".

(iv)      Article 13 of the 1961 Law expressly applies to appeals under Part 2 of that Law (i.e. pursuant to Article 12).  It would have been open to the States to say nothing about appeals in the Children Law in which event an appeal would have lain to the Court of Appeal under Article 12 of the 1961 Law which would in turn would have been subject to Article 13.  However the States did not proceed in that manner.  The States chose to provide specifically for an appeal in the Children Law and it is accordingly the terms of that Law which determine whether leave to appeal is required in any case. 

(v)       Our view that the wording of Article 68 suggests an unfettered right of appeal even in the case of interlocutory orders is consistent with Rule 24 (3) of the Children Rules, which refers specifically to interim care orders and interim supervision orders (which are therefore interlocutory orders) but provides simply for a different time limit for filing the notice of appeal in such cases.  The Rule does not envisage the need for an application for leave to appeal. 

20.      In our judgment therefore, Article 68 confers a right of appeal (for which no leave is required) to the Court of Appeal in respect of any decision of the Royal Court to which it (Article 68) applies.  It is stated to apply to "..... the making or refusal to make an order under this Law".  The question therefore is what is meant by the expression "...an order under this Law".

21.      There are two possible interpretations.  The expression could, as Advocate Tremoceiro submits, mean any order made in proceedings to which the Children Law applies.  This would appear to include all public and private law proceedings concerning children. 

22.      An alternative construction is that an order is only made "under this Law" if it is an order the power to make which is expressly referred to or conferred by the Law.  Examples of orders which the court is empowered to make as a result of the provisions of the Law itself are parental responsibility orders (Article 5), orders for contact, residence, prohibited steps or specific issues (Article 10), financial orders under Schedule 1 (Article 15), secure accommodation orders (Article 22), final care orders and supervision orders (Article 24) and emergency protection orders (Article 37).  This is not an exhaustive list but one can well understand the States concluding that there should be an unfettered right of appeal against such important orders. 

23.      Each construction carries with it undesirable consequences.  If the first construction is adopted, it means that there is an unfettered right of appeal in relation to a great variety of routine orders of a case management nature merely because such order was made in the course of proceedings under the Children Law.  Decisions such as whether to adjourn a case or to fix a timetable for the filing of reports are examples of routine case management decisions which are made in litigation of all descriptions.  In all other types of litigation, such decisions can only be appealed with leave.  It might therefore be thought surprising if the States intended to confer an unfettered right of appeal merely because the order was made in the course of proceedings under the Children Law. 

24.      Conversely, if the alternative construction is adopted, it would mean that there would be two completely separate routes of appeal against orders made in cases under the Children Law, with separate governing provisions and timetables.  If the order to be appealed was of the type referred to at paragraph 22 above, there would be an unfettered right of appeal and the timetable and procedure for appealing would be as laid down in Rule 24 of the Children Rules.  Conversely, if the order did not fall within that category but was a routine interlocutory order, not only would there be a need to obtain leave (pursuant to Article 13 (1) (e)) but the timetable and procedure for appealing would be governed by the Court of Appeal Rules and not the Children Rules (because the latter are expressed only to apply to appeals under Article 68 (1) (b)).  This too would seem to lead to a highly unsatisfactory position.  It would lead to great uncertainty as to the correct procedure for appeals and it is hard to attribute to the States an intention that the procedure for appealing from orders made in cases under the Children Law should be so complex and uncertain. 

25.      Ultimately, it is a matter of interpretation.  Not without some hesitation - our preliminary view on reading the papers was that the alternative interpretation was correct - we have concluded that the construction contended for by Advocate Tremoceiro (supported by Advocate Orchard and Advocate Corbett) is correct.  Although there would undoubtedly be an inherent power in the Royal Court to make the sort of order referred to in Rule 13 of the Children Rules, the fact that such order is made under Rules promulgated pursuant to the power in that behalf conferred by the Children Law makes it difficult to conclude that such orders are not made "under this Law".  Accordingly, we hold that no leave to appeal is required against any order made in the course of proceedings to which the Children Law applies. 

26.      As already stated, this has the consequence that there is a right of appeal against the most minor and routine of orders e.g. an adjournment, fixing a timetable for steps to be taken, etc.  We wish to emphasise that attempts by parties to appeal against case management decisions by the Royal Court are likely to be given short shrift, and may attract adverse cost consequences.  In this respect, we wholeheartedly endorse the observation of Sir James Munby, President of the Family Division in Re H - L (a child) [2013] EWCA Civ 655 at paragraph 5 where he said as follows:-

"There are, however, some more general points that merit brief discussion.  In Re T G (care proceedings: case management: expert evidence) [2013] EWCA Civ 5, I encouraged case management judges to apply appropriately vigorous and robust case management in family cases; I emphasised the very limited grounds upon which this court - indeed, I should add, any appellate court - can properly interfere with case management decisions; and I sought to reassure judges by pointing out how this court has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case management decisions.  I take the opportunity to reiterate these important messages."

27.      We would also repeat the observation of this Court in Alhamrani v Alhamrani [2009] JLR N 50 where it was stated that case management decisions are conventionally respected by the Court of Appeal unless they are plainly wrong, which is a very high hurdle for an appellant. 

28.      Despite the likely approach of this Court as summarised in the preceding two paragraphs, it does not seem to us satisfactory that there is no requirement to seek leave to appeal in relation to interlocutory orders of this nature.  We recommend that consideration be given to introducing a requirement for leave in appropriate cases.  There would appear to be vires to do so by amending the Children Rules, as Article 68 says specifically that the right of appeal which it confers is.....'subject to any express provisions to the contrary made by or under this Law....'.

Merits

(i)         Further background

29.      We now turn to consider the merits of the appeal by the grandmother.  In order to do so, it is necessary to describe the background in a little more detail.  The grandmother previously resided in Jersey together with her then husband and her three children, namely two sons and her daughter (i.e. the mother).  There was a history of involvement on the part of the Children's Service and all three children were placed on the child protection register in July 2009.  The Children's Service were concerned about the grandmother's treatment of her children, particularly the mother. 

30.      On 18^th December, 2009, the grandmother pleaded guilty to a charge of common assault on the mother and was sentenced to 40 hours' community service.  Private law proceedings between the grandmother and her former husband resulted in a residence order in relation to the mother being made in favour of the former husband.  Ultimately, in January 2010, the Minister instituted public law proceedings and obtained an interim care order in respect of all three of the grandmother's children.  Although the grandmother filed a statement seeking the return of the children to her care, she left Jersey shortly afterwards and went to live in Manchester with her present husband.  She left without informing the children or saying goodbye to them and took no further part in the care proceedings.  Following her departure, residence orders were made in respect of all three children in favour of the former husband but in relation to the mother, the placement rapidly broke down and thereafter the mother experienced a number of foster and residential placements.  The grandmother has had no contact with her sons since she left Jersey and until recently very limited contact with the mother. 

31.      When the grandmother's son Robert was born, UK Social Services became involved because of concerns as a result of the grandmother's history in Jersey and care proceedings were instituted.  This Court has not seen any of the papers but it is clear that, after assessments of the grandmother and her present husband, it was felt that no order was necessary and Robert has since then lived with the grandmother and her husband.  There is no suggestion that the grandmother's parental care of Robert is unsatisfactory; on the contrary Ms Bach described it in her evidence before the Royal Court as "in excess of good enough". 

32.      The grandmother's case is that she has changed since her time in Jersey which culminated in the care proceedings in 2009/10.  She has undergone therapy since then and has been rigorously assessed by the UK authorities in connection with the care proceedings instituted in respect of Robert.  The conclusion was reached in those proceedings that Robert may safely be left in the care of herself and her husband. 

33.      The grandmother considered that the report from Ms Bach concentrated almost exclusively on the history of events in Jersey and did not give proper consideration to how the grandmother had changed since that time and to the new life which she has established with her husband and their son Robert.  She therefore applied to the Royal Court for a further assessment. 

34.      Unusually, when her application came before the Royal Court on 31^st May, evidence was heard from the grandmother and from Ms Bach.  Normally, such applications would be considered upon the papers supplemented by oral submissions from counsel.  Unfortunately, a practical problem arose because it transpired at the beginning of the hearing that Ms Bach had to leave at lunch time in order to catch her plane back to England.  Although the Commissioner did his best to achieve fairness as between counsel, this had the consequence (following the time taken by the grandmother giving evidence) that Advocate Tremoceiro, Advocate Orchard and Advocate Corbett all had their cross-examination of Ms Bach cut short, so that they were unable to put to Ms Bach all the points which they wished to put. 

35.      As already stated, the Royal Court rejected the grandmother's application.  At paragraph 12 of its judgment (unpublished) the Court stated:-

"We make no observation on the merits of the conclusions the independent social worker reached, as that is a matter for the Court at the final hearing, but on the evidence before us we do not regard the way she carried out her work, the time she spent in interviews, the way she conducted herself in those interviews and her analysis were such as to justify this exercise being undertaken again by yet another social worker......"

The difficulty with this finding is that it was made upon very limited evidence because time had not permitted counsel to explore the matter fully. 

36.      More significantly, the Royal Court accepted there appeared to have been little consideration of the grandmother's current position and ability to parent Nicole because of the findings in relation to Jersey.  The Court encapsulated its findings as follows:-

"14.    Whilst it is correct to say that the independent social worker did not go into detail about the arrangements that would be put in place if the child went to live with the maternal grandmother or about her ability and that of her husband to care for the child as well as Robert (and what transpired at the UK care proceedings) and whilst it is also correct to say that in terms of the process, there was no separate in-depth interview with the maternal grandmother's husband, that is because the independent social worker had concluded, for the reasons set out in her analysis of paragraph 9.28 - 9.39 that such a placement was not viable, in her view overwhelmingly so.  It is not necessary for us to set out that analysis again, but it is fair to say that there is a significant history in this case. 

15.      Because the independent social worker had concluded that the placement was not viable, there was no need, in her view, to go any further into the maternal grandmother's current circumstances or into her capacity to parent Robert (and the UK care proceedings).  She said that to investigate further into the maternal grandmother's capacity to parent Robert would have been disproportionate."

(ii)        Contentions

37.      Advocate Tremoceiro, Advocate Orchard and Advocate Corbett all made submissions which, whilst put somewhat differently with different emphasis in each case, nevertheless were generally to the same effect.  Accordingly, we propose to summarise very briefly the overall effect of those submissions:-

(i)        The Minister is proposing that Nicole be freed for adoption.  There is clear authority that this is a course of last resort and that all other options must be fully explored before a child is placed for non-consensual adoption. 

(ii)       Given the current inability of the mother to provide a home, the only real alternative to adoption is a placement with the grandmother.  That option must therefore be fully explored.  

(iii)      The assessment of the grandmother by Ms Bach is flawed.  It relies exclusively on the grandmother's history and difficulties as evidenced in the Jersey care proceedings.  The assessment does not consider or address whether the grandmother has (as she submits) changed and is now in a position to provide adequate parenting not only of Robert but also of Nicole.  In particular, the report does not address the fact that the grandmother and her husband have been exhaustively assessed as part of the UK proceedings and that the authorities in that case must, by necessary implication, have considered that the grandmother had changed in order to permit her to retain the care of Robert.  There was accordingly a significant lacuna in the report. 

(iv)      That lacuna could not be cured by obtaining a supplemental report from Ms Bach or allowing her to give oral evidence about the matter at trial.  That is because there was no evidence that she had in fact asked the necessary questions about the grandmother's current position and whether she had changed; for example, she had not ascertained that the grandmother had undergone therapeutic treatment following her departure from Jersey, nor had she spent any significant time with the grandmother's husband.  If she had failed to ask the necessary questions, then there might be enquiry on an application for a freeing order under the Adoption (Jersey) Law 1961 as to whether any refusal by the mother to give her consent to that course of action was unreasonable.  Furthermore, there would be a perception that, whatever was said in any supplemental report, Ms Bach had in reality made up her mind on the basis of the information from the Jersey proceedings and she would therefore simply be plugging the gap in her report. 

(v)       There was a very substantial risk that, if the final hearing went ahead on the basis of the present report, the Royal Court would find itself in the situation, after hearing all the evidence, that it simply did not have enough evidence about the current position of the grandmother to be able to rule her out as a potential carer before taking the drastic step of adoption.  The case would therefore have to be put off at that stage after the court had heard all the evidence.  Although delay was always to be avoided if possible, it was preferable to incur a reasonably short delay at this stage in order to obtain the further assessment so that all the required evidence could be before the Royal Court at the final hearing. 

38.      On behalf of the Minister, Advocate Roberts did not dispute the need for the Royal Court to investigate all possible options before freeing a child for adoption but submitted that that requirement would be satisfied in the present case.  We would summarise briefly her submissions as follows:-

(i)        The order of the Royal Court was a discretionary case management decision.  This Court should not intervene merely because it might have reached a different decision.  It could only do so if satisfied that the Royal Court had reached a decision which was plainly wrong. 

(ii)       That was not the case here.  The Royal Court had had the advantage of hearing evidence from the grandmother and Ms Bach and was entitled to find, as it had, that it had sufficient evidence concerning the possibility of placing Nicole with the grandmother.  

(iii)      Ms Bach had explained why she had not dealt with the current position of the grandmother.  This was because she had reached the opinion that the family dynamics resulting from the events in Jersey would be relevant to Nicole's care (because of the link with the mother) in a way that they were not relevant in relation to Robert.  Ms Bach had come to the conclusion that there were too many unresolved issues from that difficult period to allow for a satisfactory placement and this was a matter for her and for the Royal Court to weigh up in due course. 

(iv)      If the Court felt that there was a deficiency in the reasoning in the report, this could be cured either by Ms Bach providing a supplementary report explaining her views in relation to the grandmother's current position and the evidence from the UK proceedings or by Ms Bach giving evidence of these matters at trial.  Either way there would then be no gap in the evidence, and the Royal Court would be able to proceed safely to reach a decision. 

(v)       However, her primary submission remained that this was not necessary and the Royal Court was entitled to conclude that delay should be avoided and that it would be in a position to reach a decision at the final hearing on the basis of the current evidence. 

(iii)       Discussion

39.      We have reminded ourselves of the high threshold for interfering in discretionary decisions of the Royal Court.  However, this decision, although in form a case management decision, carries with it enormous implications for Nicole's welfare.  Although the mother hopes to be in a position at some time in the future to provide a home for Nicole, she does not at present feel able to do so.  It follows that, at present, the only alternative to adoption is a placement with the grandmother.  On the basis that the current assessments of the grandmother are negative, it seems likely that the Royal Court may be driven to the conclusion that there is no alternative to adoption.  That in itself of course is no reason for ordering a further assessment.  However, if this Court concludes that there are gaps in the assessments so that not all the necessary information will be before the Royal Court, Nicole's welfare demands that the gaps are filled. 

40.      In all the circumstances we have concluded that there should be further assessment of the grandmother and that the appeal should be allowed for the reasons which follow. 

41.      In Re B - S (Children) [2013] EWCA Civ 1146, the English Court of Appeal emphasised two points; first, that non-consensual adoption is a measure of last resort; and secondly, that the evidence before the court must therefore address all options which are realistically possible. 

42.      In support of the first point, we would quote paragraph 22 of the judgment as follows:-

"22.    The language used in Re B is striking.  Different words and phrases are used, but the message is clear.  Orders contemplating non-consensual adoption - care orders with a plan for adoption, placement orders and adoption orders - are 'a very extreme thing, a last resort', only to be made where 'nothing else will do', where 'no other course [is] possible in [the child's] interests', they are 'the most extreme option', a 'last resort - when all else fails', to be made 'only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do'; see Re B paragraph 74, 76, 77, 82, 104, 130, 135, 145, 198, 215."

43.      The second point is dealt with at paragraphs 33 and 34 of the judgment which read as follows:-

"33.    Two things are essential - we use that word deliberately and advisedly - both when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement or adoption order.

Adoption - Essentials; (i) Proper Evidence

34.      First, there must be proper evidence both from the local authority and from    the guardian.  The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.  As Ryder LJ said in Re R (Children)... what is required is:-

"evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children."

The same judge indicated in Re S, K v The London Borough of Brent..... that what is needed is:-

"an assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options."

McFarlane LJ made the same point in Re G (a Child).... when he identified:-

"the need to take into account the negatives as well as the positives of any plan to place a child away from her natural family."

We agree with all of this." [Original emphasis]

44.      We also agree. 

45.      As already stated, it is this Court's understanding that, at present, the only possible alternative to adoption is a placement with the grandmother.  It follows that, before concluding that there is no alternative to adoption, the Royal Court must be provided with satisfactory evidence concerning the possibility of a placement with the grandmother. 

46.      Ms Bach's report in effect concludes that it does not matter that the grandmother and her husband are providing more than "good enough" care to Robert.  That is because it is her opinion that the events giving rise to the Jersey proceedings and the unresolved issues therefrom mean that a placement with the grandmother is simply not viable.  It is of course possible that, after hearing all the evidence, the Royal Court will agree with that view.  However we do not see that the Royal Court can properly fulfil its role of considering all other options unless it is provided with appropriate evidence about the grandmother's current position as well as her past position.  She has undergone therapeutic treatment since the events in Jersey, she has undergone rigorous assessment by the UK authorities, Robert as a result has been left in her care, and she and her husband are apparently providing more than good enough care for Robert.  In our judgment, these are clearly matters which need to be thoroughly investigated so that the Royal Court is given all the necessary information about the grandmother's current position before considering whether the historical events in Jersey do indeed outweigh any positive developments since then.  Without such evidence, it seems to us that the Royal Court will simply not be in a position to consider adequately whether or not it is convinced by Ms Bach's view. 

47.      We have been assisted in reaching this conclusion by the views of the guardian.  The guardian is there to represent solely the interests of Nicole and it is clear that the guardian is very troubled by the lack of consideration of the grandmother's current position and of the UK proceedings in Ms Bach's assessment and that this has caused real difficulties for the guardian in coming to a conclusion as to what is best for Nicole.  It is noteworthy that the guardian strongly supports the application for further assessment. 

48.      We are of course conscious of the need to avoid delay and this is given statutory force by Article 2 (2) of the Children Law.  It is important that Nicole should be placed in her permanent home (wherever that may be) as soon as possible so the necessary bonds of attachment can develop.  Nevertheless, we think there is a high probability of there being delay in any event because of the Royal Court being unable to consider adequately the viability of a placement with the grandmother as an alternative to adoption and therefore having to adjourn the case for further evidence.  We think the delay is likely to be shorter and less disruptive if further assessment is ordered at this stage. 

49.      We also wish to emphasise that our decision says nothing about what may be the eventual outcome.  We are not ordering a further assessment simply because the current assessment is negative towards the grandmother.  We are doing so because of our agreement with the guardian (and the mother and grandmother) that the current assessment has not adequately considered the grandmother's current position.  Such future assessment may end up endorsing the views of Ms Bach or may not.  That is not the issue.  The necessity is simply to obtain the necessary evidence upon which the Royal Court can safely act. 

50.      It is for these reasons that we allowed the appeal.  Having heard from the parties when we delivered our decision and having regard to some of the observations in Ms Bach's report, we concluded that we should order both a psychological assessment and a parenting assessment by an independent social worker.  We also vacated the trial date and ordered the parties to attend within seven days to fix a new trial date for the earliest practicable date. 

Authorities

Court of Appeal (Jersey) Law 1961.

Children (Jersey) Law 2002.

Court of Appeal (Civil) Rules 1964.

Children Rules 2005.

Re H - L (a child) [2013] EWCA Civ 655.

Alhamrani v Alhamrani [2009] JLR Note 50.

Adoption (Jersey) Law 1961.

Re B - S (Children) [2013] EWCA Civ 1146.