D

JurisdictionJersey
CourtCourt of Appeal
JudgeBennett JA
Judgment Date27 May 2011
Neutral Citation[2011] JCA 104
Date27 May 2011

[2011] JCA 104

COURT OF APPEAL

Before:

J. W. McNeill, Q.C., President; N. Pleming, Q.C., and; Sir Hugh Bennett.

IN THE MATTER OF D

Between
Minister of Health and Social Services
Applicant
and
A
First Respondent
B
Second Respondent

and

D (acting by his Guardian Leonora Green)
Third Respondent

Advocate C. Davies for the Minister.

Advocate B. J. Corbett for the Guardian.

Authorities

In the matter of D [2011] JRC 039 .

Children (Jersey) Law 2002.

Re B [2010] JRC 150 .

Children Rules 2005.

Re K (Care Proceedings) (Care Plan) [2008] 1 FLR 1 .

B.F. Burt and H.I. Burt v States of Jersey [1993] JLR 376 .

Bank of England v Vagliano Bros [1891] A.C. 107 .

Appeal against order of Royal Court of 14 February, 2001, ordering the Guardian to be appointed as a friend to advise and assist the child.

Bennett JA
1

This is the judgment of the court.

2

This is an appeal by the Minister against the decision of the Royal Court (Bailiff and Jurats de Veulle and Liddiard) of 14 February 2011 whereby having made a care order it was further ordered that the child's Guardian be appointed as a friend to advise and assist the child. The short grounds are that the court had no jurisdiction to make the order or, if it did, it was wrong to make such further order.

3

The child, D, was born in 1997 and is therefore now 13 years old. His mother died in September 2006 and his care then passed to his father, the first respondent. In due course care proceedings were begun. By the time of the hearing in January 2011 there was no dispute between any of the parties that the threshold criteria were satisfied and that a care order should be made. What was in dispute was, broadly speaking, whether the court should make a full care order or whether it should make an interim care order. The court having heard evidence from Jayne Isaac, a social worker, Paul Griffin, and the guardian, and full argument, made a care order, and further the order now under appeal.

4

The orders that were made were in these terms:-

“And whereas on the 4th February, 2011, the Court, inter alia, adjourned the further consideration of the matter and renewed the said interim order for a further twenty-eight days thereafter .

Now this day, the Court, for reasons set out in a judgment delivered by the Bailiff:-

  • 1. declared itself satisfied that the said Fourth Respondent, born on the 10th September, 1997, is in need of care, protection or control within the meaning of the said Article 24 of the said law and committed the said Fourth Respondent (whose religious persuasion appeared to the Court to be that of the Church of England) by virtue of Article 24 of the said Law, to the care of the said Applicant; and

  • 2. appointed Ms Leonora Green under Article 75(1)(b) for the limited purpose of assisting the Fourth Respondent in relation to questions of contact with his father.”

5

It is against the order made under Article 75(1)(b) that the Minister appeals to the Court of Appeal. Article 75 provides as follows:-

“75 Representation and assistance for children

  • (1) Where it considers it desirable in the interests of a child to do so the court

  • may order-

  • (a) that the child be separately represented in such proceedings under this Law as the court may specify; or

  • (b) that the child be assisted and befriended by such person, being a person independent from the Minister, as the court may specify .

  • (2) Where a child is empowered to bring any proceedings under this Law-

  • (a) the child may not do’ so without leave of the court and the court may only grant leave if it is satisfied that the child has sufficient understanding to bring those proceedings; and

  • (b) the child may only act through a guardian ad litem appointed by the court .

  • (3) Without prejudice to any other power of the court to make an order for costs against any party to proceedings. where a child has been granted legal representation under a legal aid certificate for any proceedings under this Law, the court may order that the costs of such representation be paid-

  • (a) out of public funds; or

  • (b) where he or she has been given an opportunity to be heard on the question of costs, by any person with parental responsibility for the child who is not a party to the proceedings ,

  • (4) The amount of costs that the court has ordered to be paid under paragraph (I) shall be determined in accordance with Rules of Court made under the Royal Court (Jersey) Law 194826 and where the costs are to be paid out of public funds, such amount shall be paid from the annual income of the States.”

6

The Minister's submissions are summarised in para 1 of the skeleton argument of Advocate Darry Robinson, who, in the event, did not appear for the Minister on this appeal, as follows:-

  • "1. This skeleton argument is filed in support of the application by the Minister to appeal against an order of the Royal Court dated 14th February 2011 whereby the Court appointed the Guardian in the case to ‘advise, assist and befriend’ the child concerned, ‘D’, pursuant to Article 75(1)(b) of the Jersey (Children) Law 2005. This appointment was made at the same time as the care proceedings concluded, with no order being made as to contact. Thus it was made beyond the end of, and outside, any proceedings.

  • 2. It is submitted that the court did not have the power to make such an appointment to take effect after the conclusion of the proceedings, and/or that the decision it made was otherwise plainly wrong. The correct approach in such circumstances is to make the care order, but continue proceedings for contact.”

7

The judgment of the court is reported at In the Matter of D [2011] JRC 039. The Bailiff, giving the judgment of the court, carefully set out the difficult background. In para 16 he set out why the threshold conditions were satisfied. In para 19 it was concluded that there was no doubt that a final care order was in D's best interests. If no order was made D would have to return to the care of his father which in the circumstances of the case was wholly inappropriate.

8

The issue between the parties, in reality between the Minister and the Guardian, was what contact D should have with his father, who is due to be released from prison in May 2011, and whom D has not seen for some 2 or more years. It was this aspect of the care plan with which the Guardian disagreed. She wanted the proceedings adjourned, with an interim care order in place, until after the first contact session of D with his father. There was considerable oral evidence and submissions on this point.

9

Ultimately the court rejected the Guardian's submissions and accepted the Minister's case that a full care order should be made. The reasons it gave appear in para 43 of the judgment, as follows:-

“43. We have carefully considered the Guardian's submission in this case that we should defer making a final care order until after the first occasion of contact between D and the father. However, we do not think that would be appropriate. We would summarise our reasons as follows:-

  • (i) We are satisfied with every other aspect of the care plan. All parties, including the Guardian, agree that the making of a final care order is in D's best interests and that the proposed placement in the new unit is the best course of action .

  • (ii) Article 2(2) of the 2002 Law requires the Court to have regard to the general principle that any delay in determining a question is likely to prejudice the welfare of the child concerned. These proceedings have been going on since September 2008, which is far longer than one would wish care proceedings to take. There have been valid reasons for the various delays because of the changing position on the ground but, now that the way forward is clear, it is time for there to be finality .

  • (iii) As the cases make clear, the Court should not use the continuation of an interim order as a means of exercising supervision over the implementation of a care plan. Furthermore, where the only outstanding or uncertain aspect relates to contact, there is no need for the Court to use this mechanism as it retains jurisdiction to deal with any problems over contact under Article 27 .

  • (iv) Whilst we have indicated that we do not agree with the Minister's starting point of twice or four times a year, Mrs Isaac was at pains to emphasise that the Children's Service will adopt a flexible approach over contact. We are content to take the Children's Service at its word in this respect. We hope that the Service takes on board the observations of the Guardian in her evidence and the endorsement of those observations in this judgment .

  • (v) We are not entirely sure what an adjournment would achieve. The case would have to be deferred until after the first occasion of contact. It is by no means clear what would happen then. We would hope that the most likely outcome is that the Children's Service and the Guardian would at that stage agree on the way forward in terms of contact, in which event the adjournment would have been for no purpose. Conversely, it may be that there would be disagreement in which event the Court would have to rule upon that disagreement. However, it has jurisdiction to do that under Article 27 and again therefore no purpose would have been’ served by the adjournment. On the contrary, there would simply have been continued uncertainty in circumstances where the Court is quite satisfied that in all other respects the care plan is appropriate and that the best interests of D are served by making a final care order .

  • (vi) Should, contrary to our expectations, any difficulties over contact arise, the father and/or D can bring an application for contact under Article 27. The Court would then be able to intervene.”

10

It is in para 44 of the judgment that the court gives its...

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