Jersey Unreported Judgments

Care order - application by the Minister for an interim care order.

[2017]JRC126

Royal Court

(Family)

10 August 2017

IN THE MATTER OF BRADLEY (INTERIM CARE ORDER)

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

Advocate N. S. H. Benest for the Minister.

Advocate A. T. H. English for the Mother.

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

judgment

the bailiff:

1.        The Court sat on 3^rd August to receive an application by the Minister for an interim care order in relation to the child, who is approximately 2½ years old.  The Court granted the application and approved the initial care plan, with reasons reserved.  This judgment contains those reasons. 

2.        It is however appropriate briefly to record that Advocate Hanson appeared on behalf of the guardian at the opening of the hearing to request that a lawyer be appointed for the child in accordance with Article 75 of the Children (Jersey) Law 2002 ("the Law") and that the child be joined as a party to the proceedings.  The Court acquiesced in that application, and we now give our reasons for it.

3.        As is well understood, the Law is not framed in identical terms to the Children Act of 1989, on which it is loosely based, and certainly we do not have the same procedural requirements in Jersey as appertain in England and Wales, nor indeed is there the same governmental structure which no doubt accounts for some of the procedural rules that exist there.  The approach which the Court takes in Jersey to the appointment of a lawyer on behalf of the child and to joining the child as a party to public law care proceedings is set out in the case of Re B (Separate Representation of Minors) [2010] JLR 387.  It was made plain in that case that, unlike in England and Wales, the appointment of a lawyer for the child is not a routine appointment.  We have become used to using the expression "guardian" to describe the person appointed to assist and befriend the child pursuant to Article 75(1)(b) of the Law, and the guardian in this case has been so appointed.  In many cases before this Court, no lawyer is ever appointed to represent the child, and the Court has experienced no difficulty, and neither has the guardian in question, in resolving fairly and justly the issues which have arisen in those proceedings.  Re B makes it plain that although it is a matter of discretion as to whether the child should have a friend appointed for him or her under Article 75(1)(b), in most cases that will be appropriate - there may be rare occasions when a welfare report under Article 9(1)(a) is sufficient, but in practice the Court has generally made an appointment under Article 75.  It is also a matter of discretion as to whether the child should be made a party to the proceedings and as to whether the child should have a lawyer appointed for him or her, and as is plain from paragraph 63 of the judgment, it is likely that if a lawyer is required, then it will be appropriate that the child is made a party to the proceedings.  Because the Court has agreed to the appointment of a lawyer in this case, the order making a child the party has also been made. 

4.        I turn therefore to the application for the appointment of a lawyer.  In form C2, the guardian contended that there were various reasons of complexity and conflict why it would be necessary for the child to be represented.  That was expanded upon by Advocate Hanson in his submissions to the Court.  He referred to paragraph 60 of Re B where the Court held that it was likely that a guardian might wish to have a lawyer appointed in cases where it was apparent that argument on points of law would be necessary, or where evidence was to be adduced other than from the guardian on behalf of the child and/or that cross-examination of other witnesses or an adequate examination in chief of the guardian would require the presence of a lawyer in court.  Advocate Hanson submitted that the complexity of this case and the evident conflict that there would be within it meant that a lawyer was necessary.  There was a need to instruct a child psychologist, and for an assessment of the mother's parenting skills and those in the wider family.  He said it was highly likely there would be argument on points of law and because there was the psychological assessment of the child, the guardian would need a lawyer.  There was a practical difficulty that if no lawyer was appointed at this stage but one was required later, there was the possibility of delay because no lawyer might be found to act for the guardian at short notice.  He, Advocate Hanson, had broken his holiday in order to return to the Island to assist on this case, and that might not be possible on another occasion.  His application was supported both by the Minister and by the mother. 

5.        The Court considers that most of the reasons which Advocate Hanson put forward for the appointment of a lawyer would apply in every case, and we were generally not impressed therefore with the submission that they were good reasons to appoint a lawyer.  At the end of day, we have appointed a lawyer in the present case only because this experienced guardian was contending through Advocate Hanson that she felt out of her depth in dealing with points of law and examining witnesses and therefore needed the assistance of a lawyer.  From our previous experience of the guardian in other cases, we rather doubt her lack of self confidence in that respect, especially as a guardian can ask questions of a witness either directly or through the court, and can obtain publicly funded legal advice where necessary without the appointment of a lawyer for this child, but given the view which was expressed on her behalf, and the unusual circumstances surrounding the child's maternal half-brother, to which we will come later, we think that we should grant the application on this occasion. 

6.        There are two points however that we wish to mention in passing.  Advocate Hanson dangled before the Court the possibility of an argument as to whether Re B continued to be in point.  That case of course has been the subject of detailed consideration in the Court of Appeal without adverse comment, but Advocate Hanson submitted that since that case, the United Nations Convention on the Rights of the Child ("the Convention") had now been ratified, and Re B left open the possibility (at paragraph 27) that on ratification different considerations might apply.  Although that Convention does not form part of the domestic law of the Island, it is right that the Court should read domestic law in practice to the fullest extent as compatible with the international obligations which the island has incurred and the question is whether Article 9 of the Convention requires the joining of the child as a party and granting to the child of legal representation. 

7.        We have not been addressed in full in relation to this argument and we can express only an initial view, which is that there is no breach of the Convention in the practice which the Royal Court adopts.  The Court ensures, in accordance with Article 9.1 of the Convention that a child is not separated from his parents against his will otherwise than in accordance with the applicable law and procedures and on the basis that such separation is necessary in his best interests.  The views of the child are obtained - in other words as an interested party, in a non-technical sense, the child is given the opportunity to participate in the proceedings and make his views known through the appointment of a guardian.  We do not think the Convention therefore requires the appointment of a lawyer, especially with a child as young as this.  It is clearly different when one is dealing with a child who is Gillick competent, and it may be different when dealing with a child of secondary school age. 

8.        Secondly, Advocate Hanson also relied on A McC v the London Borough of Wandsworth and Others [2017] EWCA Civ 398, where the Court of Appeal endorsed some of the dicta in the earlier appeal case of R and Others v CAFCASS [2012] EWCA Civ 853.  In particular, Advocate Hanson submitted that the Court of Appeal had made it plain in the CAFCASS case that the issues involved in public child care proceedings are of the utmost importance to parents and to the state and to the child, and everyone involved in these cases must be aware that rights under the European Convention on Human Rights (the "European Convention"), Articles 6(1) and 8 will be engaged "at every stage of the process".  Once again, we have not been fully addressed on the issue and can give only an immediate view, which is that as is plain from many European Convention cases, the overall compliance of the judicial process with Article 6 of the European Convention depends upon a holistic view of the proceedings.  The court in Jersey clearly does not have a blanket policy which sets its face against the appointment of a lawyer at the outset of a case.  There are many cases where lawyers have been appointed at the outset, and such a submission would simply not be maintainable on the facts.  Equally there are many other cases where the Court takes the view that it is unnecessary to appoint a lawyer at the outset and that it is better to wait and see how the case develops before making that appointment.  That is the nature of the discretion which is conferred on the Court.  We are therefore inclined to consider Re B as remaining the right approach for the Royal Court in connection with applications of this kind. 

Threshold

9.        The event which precipitated the present proceedings occurred on 25^th June, 2017, which is the relevant date for these purposes.  The First Respondent was admitted at the General Hospital following an overdose of prescription painkillers and a drug called Baclofen, which had not been prescribed to her.  When the ambulance service arrived at the family home, the First Respondent was said to be ".....rocking back and forth as well as salivating over herself.  She was making incomprehensible sounds.  She was covered in vomit and may be incontinent.  [She] was unable to stand unassisted".  The ambulance service described the living conditions as follows:-

"There was a dirty mattress in the hallway.  I saw a child, who I presume to be [the First Respondent's] on the floor.  He was lying face down at the [First Respondent's] feet, clinging to her leg and crawling around.  By the child, on the floor, were lots of blister packs of drugs, some were empty and some were not.  I think there was Panadol there plus others.... There was an AAA battery by the child too.  The child had a dirty soiled nappy.  You could visibly see that the faeces in the nappy had gone solid so must have been there a while."

10.      The police on attendance later the same day noted the home conditions in this way:-

"The flat was dirty, cluttered, untidy and unhygienic.  There were blister packs on the floor, discard items, rubbish, old stale food, empty food containers, medication etc, all within the child's reach and covering the floor which he would be on..... [The child] also had dirt / marks on his face and clothing.  It was unknown what this had come from.  [The duty social worker] could not find clean clothes, or any shoes / footwear for [the child]...."

11.      The Minister's case on threshold also included the likelihood of the child suffering significant physical harm and neglect as a result of his mother's long-standing dependence on and or addiction to prescription and over the counter medication, and her propensity to self-medicate.  It was said that her older child (the child's half-brother) was known to foreign child protection services due to concerns about home conditions and her drug misuse, and that the elder child had been removed from her care in 2011 and placed with his father due to those concerns.  The Minister asserted that the mother had been receiving support from the Drug and Alcohol Service, having an addiction to Nurofen Plus, with withdrawal symptoms experienced if she did not take it.  The Minister also asserted that the mother had received support in the form of psychological intervention to help her manage her anxieties and equip her with coping skills but the mother had consistently failed or refused to engage with or attend appointments made.  Finally it was said that Early Help had been assisting the mother for some fourteen months, and their chronology described chronically poor home living conditions which appear not to have been improved. 

12.      Advocate English, on behalf of the mother, rightly accepted threshold had been passed for the purposes of Article 30 of the Law which enables the Court to make an interim care order provided that "it is satisfied that there are reasonable grounds for believing that the circumstances with respect to [the] child are as mentioned in Article 24(2)".  He indicated that the mother was not to be taken to agree any of the specific facts alleged by the Minister and her position was reserved insofar as that was concerned.  Advocate English also did not contest either the granting of an interim care order or the initial care plan, to which we will come in a moment. 

13.      The guardian also did not contest the view advanced on behalf of the Minister. 

14.      In the circumstances, it was not appropriate for the Court to make a full enquiry at this stage.  We were only required to be satisfied that there are reasonable grounds for believing that the child was suffering or was likely to suffer significant harm attributable to the care given to him, or likely to be given to him if the order were not made, falling short of what it would be reasonable to expect a parent to give the child.  We were quite satisfied that threshold had been passed, and indeed it would be surprising if the precipitating event of 25^th June, 2017, had led to any other conclusion. 

15.      Given the views expressed already, it is clear that the no order principle did not apply, any more than does the least interventionist principle.  Accordingly a supervision order would not have been appropriate, because it was important that the Minister be in a position to exercise parental control in respect of the child. 

16.      For these reasons we were satisfied that an interim care order ought to be made. 

Care Plan

17.      Following the incident on 25^th June, 2017, the Minister considered that the level of risk posed to the child was such that he could not continue to reside with his mother until an assessment of her ability to parent him safely was undertaken, and she seems to have agreed that.  The following day therefore he was sent to stay with his maternal aunt and uncle, with the mother's agreement.  The care plan proposed by the Minister was to leave the child in the care of his maternal aunt and uncle while assessments were carried out on the mother, and on the aunt and uncle, and indeed any other family members who might be put forward by the mother in the next fourteen days as potential carers.  The initial care plan was not resisted by the mother although Advocate English in cross-examination of the social worker suggested, and she denied, that her mind was closed to the possibility of reunification of the child with the mother. 

18.      In the light of recent concerns which have arisen over what is arguably sexualised behaviour on the part of the child, the court has ordered a psychological assessment of the child to be conducted.  In addition, there will be a psychological assessment of the First Respondent, and there are the connected persons/kinship care assessments to be undertaken by the Minister.  We were told by Advocate Benest that the connected persons assessment would go before the relevant panel in November and could not go before that panel at an earlier date. 

19.      The Law provides at Article 2(2) that in proceedings of this nature, the Court should have regard to the general principle that any delay in determining the question relating to the upbringing of a child is likely to prejudice the welfare of the child.  That of course is not an absolute rule, as is apparent from the expression "likely to prejudice".  The provision in the Law is there as general guidance to the Court to recognise that delay does not work generally to the benefit of the child, although in some cases it may do so.  The child's welfare is of course the Court's paramount consideration. 

20.      Our understanding is that in England and Wales there is now an approach which seeks routinely to require the Court to deal with some cases within a particular timetable.  Such a provision in our judgment is unnecessary in this small jurisdiction, and indeed would be unhelpful.  It is unnecessary because, as there is only one court exercising first instance jurisdiction in matters of this kind, there are not the same problems of inconsistency which perhaps apply in other jurisdictions.  It is unhelpful because the variety of facts which affect families is such that an inflexible rule will work against the interests of the child. 

21.      Having said that, it seems to us that the instant case is one where Article 2(2) of the Law does carry a direct resonance.  This boy is 2½ years old.  It seems likely that the possible carers for him on a long-term basis will either be the mother, the maternal aunt or some other connected family member, or another person unconnected with the family, who would be likely to be identified as a potential adopter.  As we have indicated to the mother at the close of the hearing, our starting point is that as long as it is safe to do so, the Court leaves the mother to be responsible for the upbringing of her child.  If however on the assessments being carried out it becomes apparent that neither the mother or any connected family member are able to care for the child on a long-term basis, then it is all the more important that adoptive parents are found in the shortest possible delay.  This is not prejudging any issue at all. It is simply that, having regard to the age of the child, it is important to recognise at this very early stage, that this is a case where we will need to make informed but timely decisions.  The directions have been made as requested and if the time limits which have been inserted into them are not improved upon in practice, then unquestionably the Court will not be faced with any final hearing until at least February of next year, and it may be later.  While the court diary is full, it is not infrequently the case that other cases settle and dates become available sooner than those which had been contemplated.  It is possible that if the various reports can be obtained earlier than the maximum time allowed for by the directions, this case could come on for final hearing sooner than currently anticipated.  It would be desirable if this could be achieved. 

22.      The last thing we wish to add relates to the child's maternal half-brother who is living abroad, who is now aged about eleven.  It is said that his home conditions were very poor before he was removed from the mother, and/or that there may have been the same developmental problems in his case as are to be found with the child.  Those concerns in relation to the child are that he could not string together a sentence properly and that his language was very restricted, albeit the organic cause for this had not been identified.  The child also presents aggressive behaviours, especially towards female children, and can get very distressed when adults enter the room.  At the same time, he shows no proper respect for his own safety, witnessed for example by his sitting on the laps of unknown parents on the beach only recently.  The Minister therefore thinks that it would be desirable to obtain information as to the maternal half-brother. 

23.      We can see that that could potentially be relevant, to the extent that there are striking similarities between the two half-brothers, albeit it would be foolish not to recognise that the proceedings involving the half-brother concluded many years ago, and that the mother apparently has not seen her eldest son for at least five years.  It is important in our judgment to emphasise that the child's timetable may be difficult to match with the timetable for obtaining information from the foreign authorities.  It is essential in our view that the Children's Service identify what information may be held abroad as soon as possible with a view to bringing back an application for directions and as appropriate an application for a letter for request to be sent from this court to the relevant court abroad enabling the evidence to be gathered there and transmitted to Jersey.  These things take time, and it is essential in our view that the first step of identifying what documents exist abroad in connection with the child's older brother, ought to be taken in very early course indeed. 

24.      The court has made other directions in relation to this matter but they are self-explanatory, and in any event as between the Minister and the mother have been agreed. 

Authorities

European Convention on Human Rights 2000.

Children (Jersey) Law 2002.

Re B (Separate Representation of Minors) [2010] JLR 387.

A McC v the London Borough of Wandsworth and Others [2017] EWCA Civ 398.

R and Others v CAFCASS [2012] EWCA Civ 853.