Jersey Unreported Judgments

Family - an application concerning (the "Child").

[2021]JRC216

Royal Court

(Family)

11 August 2021

Before:

Samantha McFadzean, Registrar, Family Division.

 

Advocate E. L. Hollywood representing the Applicants.

judgment

the Registrar:

1.        I am asked to determine an application to be appointed as guardian, made jointly by the brother and half-sister of a young girl, (the "Child"), whose mother died unexpectedly two years ago.  The Child is a teenager and lives with her brother, ("K"), spending time regularly with her half-sister, ("L") and her family.

2.        There are no respondents, or opposition, to this application.  The Child's father was not named on her birth certificate and although, as I understand it, he has been made aware of the application, he does not oppose the application made by K and L that they should be jointly appointed as guardians for the Child.  He does not live in Jersey and does not put himself forward as a carer for the Child.  He does not have parental responsibility for her and, accordingly, is not a party to the application.  

3.        The court was therefore concerned, when being seized of the application, to learn that no-one had been able to exercise parental responsibility for the Child since she was [ ] years old.  

4.        Given the importance to the Child of ensuring that the appointment of a Guardian was appropriate and that the applicants were fit and proper persons to be so appointed, the court requested that JFCAS make inquiries as to the background, which was set out, in brief, in JFCAS' safeguarding letter.  At an early hearing, the court suggested that JFCAS should consider whether the outcome sought by the applicants could be better or more easily achieved by the court making a joint residence order in the applicants' favour. 

5.        Although the Child's mother died over two years, the application under article 7 of the Children (Jersey) Law 2002 (the "Law"), was not issued until March 2021.  The application was eventually issued on the advice of the representatives of the Minister for Children and Education who must long have been aware of the importance to the Child of someone having parental responsibility for her.  The Minister took no action, in spite of five MASH inquiries relating to the Child since her mother's death.  It was left to them, say the Child's siblings, to incur the expense, which they complain that they could ill afford, to address the difficult situation in which the Child finds herself.  This seemed to the court to be a most unsatisfactory state of affairs: in order to remedy the lacuna as soon as possible, the court made an interim residence order on 19^th April 2021 in favour of the applicants until the application could be heard.  

6.        The issue for the court to decide today in the absence of opposition to the application is whether it is appropriate to make an order under article 7 or article 10 of the Law.  I am not being asked to weigh up the merits of such an order being made in favour of one or the other of the applicants as I am invited to make it in favour of them both.  The court does, however, need to have regard to the paramountcy principle enshrined in article 2 of the Law.  Is the Child's welfare best served by making an order and, if so, what order should the court make? 

The evidence of JFCAS

7.        JFCAS produced a full welfare report after meetings in person and by telephone/video with all interested parties, including the Child and her father.  He supports the application and does what he can to make a financial contribution to the Child's welfare.  It had been suggested at one point that the Child would go to live with her father overseas but following an incident when the father turned up at her home to collect the Child inebriated, after a period of prolonged sobriety,  K and L decided that the Child's best interests would be served by her remaining in Jersey.  Her father hopes that she will move to the UK after her formal education has finished although the Child has plans to stay in Jersey.  She wishes the court to make the order sought.

8.        JFCAS have given careful consideration to the family's circumstances and background which has included the involvement of the Minister and encounters with the police.  Unsurprisingly, the applicants have aired their concerns about the family being let down by authorities and insofar as they allege that they have been left unsupported to find a solution for the Child, the court empathises with their grievance. 

9.        The Child suffers from anxiety attacks, no doubt exacerbated by the dreadful situation in which she has found herself. It is clear from the JFCAS report that K and L have done their best to shield the Child from the fallout of their late mother's unexpected death.  The court shares the siblings' concern about the avoidable prolongation of the uncertainty and anxiety for this young girl. 

10.      JFCAS reports that none of the family can understand why it has taken so long to achieve security for the Child and they certainly do not understand what they perceive to be lack of support from the Minister's representatives.  Equally, it is fair to say that they have not enjoyed or welcomed the scrutiny that was required in order for the JFCAS report to be prepared, particularly as some of the family members' history and records needed to be gently probed to ensure that the order sought could be safely made. 

11.      While they have not welcomed that scrutiny, it is to the family's credit that they have rallied around the Child.  JFCAS reports that:-

"it has become evident that there are tensions between some of the members of the family and that [the Child] has always been sheltered from them. This means that she has been able to develop loving and positive relationships with them all without ever feeling that she needed to take sides or choose between them. This situation is rare and shows that [the Child's] wellbeing is prioritised by the [M] family".

12.      JFCAS conclude that the application should be granted- although the report concluded that the court could make an order for shared residence, in evidence, the JFCAS officer said that, equally, there was no reason why the court could not consider making an order under article 7.

The Law

13.      Article 13 of the Law provides that:-

"(2)     Where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned, that person shall have parental responsibility for the child while the residence order remains in force.

(3)       Where a person has parental responsibility for a child as a result of paragraph (2), the person shall not have the right -

(a)       to consent, or refuse to consent, to the making of an application with respect to the child under Article 12 of the Adoption (Jersey) Law 1961^[28]; or

(b)       to agree, or refuse to agree, to the making of an adoption order, or an order under Article 41 of the Adoption (Jersey) Law 1961 with respect to the child".

14.      Accordingly, were the court to make a shared residence order in favour of the applicants, parental responsibility would be bestowed on them by virtue of the residence order although any such order made under article 10 would, by virtue of article 11(6) not extend beyond the date when the Child reaches 16 unless the court is satisfied "that the circumstances of the case are exceptional".

15.      Counsel for the applicants cited B v A [2010] JRC 172 as authority for the proposition that the court could not make a shared residence order save in certain specified circumstances delineated in that decision.

16.      Article 7 of the Law provides that:-

"(1)     Where an application with respect to a child is made to the court by any individual, the court may by order appoint that individual to be the child's guardian if -

(a)       the child has no parent with parental responsibility for him or her; or

(b)       a residence order has been made with respect to the child in favour of a parent or guardian of the child's who has died while the order was in force.

(2)       The power conferred by paragraph (1) may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it...

(4)       A guardian of a child may appoint another individual to take his or her place as the child's guardian in the event of his or her death...

(6)       A person appointed as a child's guardian under this Article shall have parental responsibility for the child concerned...

(11)     A guardian of a child may only be appointed in accordance with the provisions of this Article."

17.      Whether the court is considering making an order under article 7 or 10, it must take into account the provisions of article 2, namely that:-

"(1)     When the court determines any question with respect to -

(a)       the upbringing of a child; or

(b)       the administration of a child's property or the application of any income arising from it,

the child's welfare shall be the court's paramount consideration.

(2)       In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."

18.       The question of whether the court should make an order under article 7 or 10 was dealt with by Counsel for the applicant by reference to an excerpt from White, Carr and Lowe (at 3.126), commenting on English and Welsh law, which reads as follows:-

"a guardian is in a stronger legal position than a non-parent in whose favour a residence order has been made. Unlike the latter a guardian has the right to consent or withhold consent to the child's placement for adoption and to the making of an adoption order and to appoint a guardian. Furthermore, although the process of granting residence orders to third parties bears some resemblance to the court process of appointing guardians, the resulting orders are conceptually different in that the guardian replaces the deceased parent or parents"

19.      It appears to the court that the factors set out in the above commentary may be of equal validity in Jersey and can be taken into account in its decision-making process when determining an application for the appointment of a guardian under the Law. 

20.      The application for K and L to be jointly appointed as guardians is predicated on the fear that one of them might be incapacitated and unable to exercise parental responsibility, leaving the Child in a difficult position again.  Although there is nothing in the Law which suggests that more than one person can be appointed - and equally, nothing to suggest that more than one person cannot be so appointed - Advocate Hollywood prays in aid article 2 of the Interpretation (Jersey) Law 1954 which provides, inter alia, that unless a contrary intention is shown "words in the singular shall include the plural and words in the plural shall include the singular".

Discussion

21.      It is axiomatic that the Child needs to have someone with parental responsibility for her and surprising that no action was taken before now to ensure that there was no potential risk to her physical and emotional welfare by the absence of a guardianship or residence order. The existence of a power under article 4(2) of the Law enabling the siblings to do "what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare" in the absence of parental responsibility is not sufficient to secure the Child's welfare, there being a risk that in an emergency, the existence of that power might have been unknown or disregarded.

22.      I do not share the view of Counsel that the appointment of a guardian necessarily imports a conclusive benefit to this child [...], over and above the effect of a shared residence order. I cannot imagine that circumstances will appertain, [...], in which any question as to future adoption of the Child will arise or during which a replacement guardian may need to be appointed, given the proposed joint appointment.

23.      However, I accept that an appointment as guardian is generally construed as being that of a replacement parent and that so far as the court can do so, the Child is entitled to have her welfare protected as far as is possible, by the bequest of parental responsibility and the appointment of a guardian.  Whether an order is made under article 7 or 10, the parental responsibility bestowed is of the same character and quality but I accept that there may be at least a perception, if not reflected in the Law, that the role of a guardian is imbued with more authority as a "replacement" parent. I accept that the generally held view may be that a guardian is conceptually different but I find no support for that in the Law, save as identified in article 13(3). I do, however, accept that day to day, recognition of the siblings' roles as guardians may reduce administrative obstacles that society may put in their way.  

24.      A material difference between the exercise imposed on the court considering an appointment under article 10 or article 7 is that article 10 requires the court to consider the "checklist" provisions of article 2(4); no such consideration is required under article 7.  It might, however, be thought curious if the court entirely disregarded the checklist when determining the application.  The Child's welfare demands that the court takes a holistic view of her circumstances.  In any event, as the application is unopposed, had it been made under article 10, the court would not, strictly speaking, be required to take the checklist into account.  

25.      I ask myself in weighing up the relative merits of articles 7 and 10 whether the burden of an appointment under article 7 on  the relatively young siblings of this child might not in part, and at least financially, be alleviated by the making of a shared residence order given the provisions of paragraph 12 of Schedule 1 to the Law which provide that if a child lives with a non-parent under a residence order, a request may be made to  the Minister to make a financial contribution to the cost of the accommodation and maintenance of the child.  

26.      Had I found that an order for residence was preferable, I do not consider that I would necessarily have been restricted to making a shared residence order only in the circumstances found in B v A.  Where the welfare of a child demands that a shared residence order be made, it should be made regardless of any gloss to the Law imported by authority, provided that articles 2(3) and 2(5) are satisfied and that the court considers that the making of an order would be better for the child than making no order at all.  

27.      Furthermore, I have no doubt that the Child's circumstances are exceptional and that had such an order been more appropriate, this would have been a paradigm case in which the court would have extended such an order until the Child reached 18.

28.      I am entirely satisfied that it not only desirable but imperative that an order be made which bestows parental responsibility and that if the applicants consider that it is preferable for an order to be made appointing them as guardians, I am content to do so.  I am in no doubt that the court may make such an appointment on a joint basis.  The Child has not had the easiest of times of late but she is lucky to have siblings in K and L who are actively and lovingly taking responsibility for her and they deserve praise for stepping up into a quasi parental role.

29.      I make an order jointly appointing K and L as guardians for the Child under article 7.

Authorities

Children (Jersey) Law 2002

Interpretation (Jersey) Law 1954

B v A [2010] JRC 172