Before : |
J. A. Clyde-Smith, Esq., Commissioner, sitting alone |
Between |
The Minister for Health and Social Services |
Applicant |
And |
A (the mother) |
First Respondent |
And |
B (the father) |
Second Respondent |
IN THE MATTER OF BAILEY, ELLIS, VIOLET AND ELLIOTT (THE CHILDREN) (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW, 2002
P. F. Byrne Esq., Crown Advocate for the Minister.
Advocate D. C. Robinson for the Mother.
Advocate R. S. Tremoceiro for the Father.
judgment
the Commissioner:
1. I sat on the 13th December, 2018, to consider whether on 30th November, 2018, the Court had jurisdiction to order assessments of the children when it had found that the threshold criteria had not been met. The reasons for the Court finding that the threshold criteria had not been met are set out in the oral judgment of the Court In the matter of Bailey, Ellis, Violet and Elliott (Care proceedings) [2018] JRC 239. The Court declined to make the interim care order sought by the Minister, and his application for a care order was adjourned.
2. All four children, aged two to seven years of age, had been removed from the care of their parents on 16th November, 2018, and the focus of the Court and of the parties on the 30th November, 2018, was on whether the threshold criteria was met, and, if so, whether the care plans of the Minister for their continued removal, pending assessments, should be approved. The Court said that if it was wrong in not finding the threshold criteria met, it would not have approved the care plans as in its view, the continued removal of these children from the care of their parents was neither proportionate nor necessary.
3. There was no issue over the assessments sought by the Minister, namely a psychological assessment of the parents and the children to include an assessment of their relationship, an assessment of the parenting capacities jointly and separately of the parents with and without support and an assessment of the children's needs. Those assessments were ordered by the Court unopposed.
4. Shortly thereafter, counsel for the Minister questioned whether the Court had the jurisdiction to order assessments of the children when it had found that the threshold criteria had not been met, and I sat alone to consider that issue of law. All three counsel were agreed that the Court did not have the jurisdiction to do so for the reasons which follow.
5. Article 30 of the Children (Jersey) Law 2002 ("the Children Law") in material part provides:-
"30 Interim care and supervision orders
(1) The court may make an interim care order or an interim supervision order where, in relation to the child concerned, it -
(a) Adjourns any application for a care order or a supervision order; or
(b) Gives a direction under Article 29(1),
provided that it is satisfied that there are reasonable grounds for believing that the circumstances with respect to that child are mentioned in Article 24(2)."
6. Article 24(2) of the Children Law provides:-
"(2) The court may only make a care order or supervision order if it is satisfied-
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to -
(i) the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child, or
(ii) the child's being beyond parental control."
7. It is clear, therefore, that the threshold conditions set out in Article 30 are a necessary condition for the making of an interim care order or an interim supervision order.
8. An interim care order once made has a similar effect as a care order, subject only to the duration of the order and the Court's powers to make directions (see the definition of "Care order" in Article 1 of the Children Law).
9. Article 30(4) of the Children Law goes on to provide that:-
"Where the court makes an interim care order or interim supervision order it may give such directions (if any) as it considers appropriate with respect to the medical or psychiatric examination or other assessment of the child having regard to his or her wishes".
10. Thus, the jurisdiction to direct such examination or assessment of a child is expressly provided for within the Children Law, and is contingent on the making of an interim care or interim supervision order, and of course, the finding of the threshold under Article 30. The point is emphasised in Hershman and McFarlane: Children Law and Practice at paragraph 1454:-
"It must be stressed that the power to include a direction for medical or psychiatric examination or other assessment, on making an interim care order or supervision order, arises from CA 1989, s 38 [Article 30 of the Law]..."
11. It is helpful to be reminded of the role of the State in the care of children and the grounds upon which it can intervene in family life. Quoting from this well-known passage from the judgment of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050:-
"50 ..... Basically it is the tradition of the United Kingdom, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re: KD (a minor ward) (termination of access) [1988] 1 AC806, at page 812 said this:-
"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature."
There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done."
12. He then went on to say at paragraph 51:-
"That is not, however, to say that the State has no role, as the Children Act 19890 fully demonstrates. Nevertheless, that Act, wide ranging though the court's and social service' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the State intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in Section 31(2) is made out. Such an approach is clearly consistent with Article 8 of the European Convention on Human Rights. Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the State may lawfully infringe that right. In my judgment Article 8(2) and Section 31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the Court recognises, as Lord Nichols pointed out in H & R that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy."
13. The role of Article 8 of the European Convention on Human Rights on determining threshold was considered by the Supreme Court in the case of In the matter of B (a child) [2013] UKSC 33, where Lord Neuberger said this at paragraph 62:-
"62 Whether article 8 of the European Convention on Human rights ("the Convention") has a part to play in relation to the threshold seems to me to be rather an arid issue: the important point is that the court acknowledges that no substantive order is made without all Convention rights being taken into account. Having said that, I consider that article 8 of the Convention ("article 8") has no part to play in deciding whether the threshold is crossed, although it obviously comes very much into play when considering the issue of whether to make a care order. The threshold merely represents a hurdle which has to be crossed before the court can go on to consider whether to make a substantive order - i.e. an order which actually has an effect on a child and her parents (and sometimes on others). It is, of course, common ground that the court must consider any Convention rights before deciding whether to make a substantive order."
14. Ordering a psychological assessment of these four children and their relationship with their parents constitutes a substantive order. The threshold criteria in Article 30 had not been met and so it follows that the Court has no jurisdiction to intervene in this family's life in this way.
15. The Court does have an inherent jurisdiction which pre-dated the introduction of the Children Law, as recognised by the Court in W v X [2014] JRC 150, where the Court said at paragraph 32:-
"The Court has long had an inherent jurisdiction to make orders (including on an ex parte basis) for the welfare of children. The jurisdiction pre-dates the introduction of the Children Law .... The Children Law does exclude that inherent jurisdiction in certain specified circumstances but, by implication, the inherent jurisdiction continues save where excluded expressly or by necessary implication."
16. Thus, Article 76 of the Children Law provides as follows:-
"76 Restriction on Court's Inherent Jurisdiction
The court shall not exercise its inherent jurisdiction in respect of children:-
(a) so as to require a child to be placed in care or put under the supervision of the Minister;
(b) so as to require a child to be accommodated by or on behalf of the Minister; or
(c) for the purpose of conferring on the Minister power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."
17. The Court's inherent jurisdiction may be used for the welfare of children, but given that its use excludes the making of a care order, which includes an interim care order, the ordering of an assessment that would flow from the making of an interim care order must also be restricted.
18. There are a number of other provisions which require comment:-
(i) Article 29(1) of the Children Law provides:-
"(1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to the child, the court may direct the Minister to undertake an investigation of the child's circumstances"
This authorises the Minister to investigate the circumstances of children, not to have them psychologically assessed, and only arises if it appears to the Court that it may be appropriate for care order or a supervision order to be made. If such a direction is made, the Court has the power under Article 30(1)(b) to make an interim care order or an interim supervision order of its own volition, but only, of course, if the threshold criteria in Article 30(1) is met.
(ii) The Court has the power to make a child assessment order under Article 36(1) of the Children Law:-
"36 Child assessment orders
(1) The court may, on the application of the Minister, make a child assessment order authorising any person carrying out the assessment or any part of the assessment to do so in accordance with the order, provided that it is satisfied that -
(a) The Minister has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;
(b) An assessment of the state of the child's health or development, or of the way in which the child has been treated, is required to enable the Minister to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
(c) It is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this Article.
(2) The court may treat an application under this Article as an application for an emergency protection order.
(3) The court shall not make a child assessment order if it is satisfied-
(a) That there are grounds for making an emergency protection order with respect to the child; and
(b) That it ought to make such an order rather than a child assessment order."
The assessments ordered by the Court in this case were not ordered pursuant to an application by the Minister under Article 36(1), but with the Court finding that the threshold criteria is not met, there can no longer be reasonable cause to suspect that the children were suffering or likely to suffer significant harm. Furthermore, under Article 36(2), the Court is invited to treat such an application as an application for an emergency protection order, which requires the Bailiff to be satisfied that there is no reasonable cause to believe that the children are likely to suffer significant harm.
(iii) Paragraph (2) of Rule 13 of the Children Rules 2005 provides:-
(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 -
· the timetable for the proceedings;
· varying the time within which or by which an act is required, by these rules or by other Rules of Court, to be done;
· the attendance of the child;
· the appointment of a person under Article 75;
· the service of documents;
· the submission of evidence, including experts' reports;
· the preparation of welfare reports under Article 9;
· 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." (My emphasis)
19. These powers, and in particular the power to give directions over the submission of evidence, including experts' reports, relate to the conduct of the proceedings, and pre-suppose the jurisdiction of the Court to order an assessment of the child by an expert. This provision does not vest in the Court jurisdiction to make a substantive order for a child to be assessed by an expert, where the threshold criteria has not been met.
20. In conclusion, I was not satisfied that the Court did have the jurisdiction to order a psychological assessment of these four children and the order was set aside.
21. In so far as the parents are concerned, they did not oppose the order that they should also be psychologically assessed, because they assumed the jurisdiction of the Court to make such an order. There is no provision in the Children Law for the ordering of assessments of adults in recognition, presumably, that adults cannot be coerced to engage in such an exercise. In the circumstances of this case, it was right, therefore, to set aside the psychological assessment orders as against them.
Authorities
In the matter of Bailey, Ellis, Violet and Elliott (Care proceedings) [2018] JRC 239.
Children (Jersey) Law 2002.
Hershman and McFarlane: Children Law and Practice.
Re L (Care: Threshold Criteria) [2007] 1 FLR 2050.