CourtRoyal Court
JudgeClyde-Smith, Commr. and Jurats Morgan and Liddiard
Judgment Date14 October 2009
Date14 October 2009
Clyde-Smith, Commr. and Jurats Morgan and Liddiard

E. Hollywood and C. Dutt for the Minister for Health and Social Services;

R. Colley for C;

C's mother appeared in person;

Mrs. L. Green, appointed under the Children (Jersey) Law 2002, art. 75(1) to assist and befriend C.

Cases cited:

(1) F (A minor) (Contact: Child in care), Re, [1995] 1 FLR 510; [1994] 2 F.C.R. 1354; [1995] Fam. Law 231, considered.

(2) Health & Social Servs. Min. v. KG, 2009 JLR N [20], referred to.

(3) LM v. Medway Council, [2007] 1 FLR 1698; [2007] 1 F.C.R. 253; [2007] Fam. Law 491; [2007] EWCA Civ 9, dicta of Smith, L.J. considered.

(4) M (A minor) (Care orders: Threshold conditions), In re, [1994] 2 A.C. 424; [1994] 3 W.L.R. 558; [1994] 3 All E.R. 298; [1994] 2 FLR 577; [1994] 2 F.C.R. 871, dicta of Lord Mackay of Clashfern, L.C. applied.

Legislation construed:

Children (Jersey) Law 2002 (Revised Edition, ch.12.200, 2006 ed.), art. 10(1): The relevant terms of this paragraph are set out at para. 93.

art. 24(2): The relevant terms of this paragraph are set out at para. 69.

art. 75(1): "Where it considers it desirable in the interests of a child to do so the court may order


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

Schedule 2, para. 2(1): "Where a child is being looked after by the Minister, the Minister shall?.?.?. endeavour to promote contact between the child and

(a) the child's parents;


(c) any relative, friend or other person connected with the child."

Texts cited:

Corbett, The voice of the Jersey childbeginning to be heard , 13 Jersey & Guernsey Law Review, at 199 (2009).

Judicial Studies Board of England & Wales, Family Bench Book, paras. 4.13-4.14, at 4-7 - 4-8 (May 2006).

Family Lawchildrencare orderstatutory threshold criteriapower to make order under Children (Jersey) Law 2002, art. 24 if child suffering or likely to suffer significant harmwhen determining if child "is suffering" significant harm, court to consider circumstances at time protective measures first put in place, not at time of hearingchild subject to physical chastisement resulting in criminal prosecution of parent is suffering significant harm

The Minister for Health and Social Services applied for a care order under art. 24 of the Children (Jersey) Law 2002.

C, who was born in March 1996, had been living with his mother, stepfather and four half-siblings when, on April 2nd, 2008, his stepfather struck him on the head and arms six or seven times as punishment for bad behaviour. C's mother did not witness the incident. Although she did not generally approve of physical chastisement, she supported her husband. When C reported the incident, the Children's Service removed him from his mother and placed him with the M family, with whom he had lived for a few years when he had been very young and had a good relationship.

C's mother had sought his return but, despite initially indicating that she would do so, she did not cooperate with the various members of the Children's Service, whom she distrusted. As a result of that and the conditions of the stepfather's bail (which precluded direct contact with C), C resided with the M family for 14 months prior to the hearing. He had little contact with his mother and half-siblings during that time but weekly contact at the family home had been resumed prior to the hearing and appeared to be working well.

C's stepfather admitted hitting him and was subsequently convicted of recklessly or intentionally causing him harm under art. 35 of the Children (Jersey) Law 2002. Although he maintained that his actions had been reasonable, he stated that he would not resort to physical chastisement in future. He was assessed as presenting a low risk of reoffending and the court was not concerned for the physical safety of the other children.

The Minister for Health and Social Services applied for an order under art. 24 of the Children Law placing C in his care. Article 24(2) provided that before making a care order the court had to be satisfied that "the child concerned is suffering, or is likely to suffer, significant harm?.?.?." The application was supported by the person appointed under art. 75(1)(b) of the Law to assist and befriend C, but opposed by his mother. C had informed all the professionals that he wished to remain with the M family and to maintain contact with his mother and half-siblings. The care plan provided a rehabilitation programme for C, while he remained with the M family. A child psychologist gave the opinion that, inter alia, C felt rejected by his family and he would be at risk of significant emotional harm if he were to be returned to live with his mother before such issues were resolved.

C's mother applied for the court to see C, as she was concerned that his true views were not being communicated by the person appointed to assist and befriend him under art. 75(1)(b). She also sought to call her 17-year-old daughter, Ch, as a witness. Ch was willing to give evidence but had not witnessed the incident itself.

An application had also been made on C's behalf for an order allowing him to have contact with his younger half-siblings.

Held, making the care order sought:

(1) The Minister's application for a care order in respect of C would be granted and the care plan would be approved. The court had jurisdiction to make the order because the statutory threshold criteria under art. 24(2) of the Children (Jersey) Law 2002 had been met, i.e. the court was satisfied that C "is suffering, or is likely to suffer, significant harm." When considering whether a child "is suffering" significant harm, the court must consider the circumstances that existed when protective measures were first put in place, rather than at the time of the hearing. In the present case, when the Children's Service first applied protective measures, C was clearly suffering from significant physical harm, having been struck hard, several times by his stepfather, in respect of which a criminal prosecution had been commenced. The two branches of art. 24(2) could be applied separately and, although C was not likely to suffer significant physical harm in the future, the court accepted that he was also at risk of significant emotional harm if he were to be returned home immediately. As the threshold criteria had been met, the court had to decide whether to make an order. In doing so, it had to (a) apply the principle that the child's welfare was the paramount consideration (under art. 2(1) of the Law); (b) apply the statutory welfare checklist (art. 2(3)); (c) not make an order unless it considered that doing so would be better for the child than making no order at all (art. 2(5)); (d) consider the proposed arrangements for contact with the child and invite comment on them (art. 27(11)); and (e) scrutinize the care plan. Although it was desirable that C should return to his mother in the future, the care order would be made, as it could best provide the legal and financial framework that C and those who looked after him required to support the current arrangements ( paras. 72-81; paras. 87-89).

(2) The mother's application for the court to see C would be refused. There was nothing to indicate that the person appointed to assist and befriend him was not presenting his true wishes and feelings to the court; indeed, he had consistently expressed to all the professionals involved his desire to remain living with the M family. If the court had seen C, it would have usurped the role of the person appointed under art. 75(1)(b) to assist and befriend him who, unlike the members of the court, was qualified in this respect. C, who was only 13 years old, had not asked to see the court and the application for him to do so had been opposed by the person appointed under art. 75(1)(b) and the Minister. Furthermore, C would have had to be told that anything he said to the court would be passed on to his mother which, in the present case, could have been emotionally harmful to him. In general, however, it might be desirable to involve a child in care proceedings, particularly an older child, so that he can better understand the process and decisions made, provided that it could be achieved without usurping or undermining the work of those whom the court has appointed and without exposing the child to emotional harm ( paras. 62-64).

(3) The mother's application to call C's 17-year-old half-sister Ch as a witness would also be dismissed, as her evidence was not relevant. Even if it were relevant, it would nevertheless have been excluded because, as a matter of policy, it was highly undesirable for a child to appear as a witness in care proceedings unless there were real justification for doing so, which did not exist in the present case ( para. 68).

(4) Nor would the court make a contact order under art. 10 of the Children Law, requiring the mother to allow C to have contact with his half-siblings. Such an order was unnecessary, as she did not seek to prevent contact and C was clearly welcome to visit the family home. C was in the care of the Minister who, under para. 2(1) of Schedule 2 to the Children Law, had to endeavour to promote contact between C and his mother and half-siblings. As he had placed C with the M family, the Minister had to ensure, through that family, that as far as reasonably practicable C maintained a minimum level of weekly contact. An application for a contact order under art. 10 could be made at any time if the mother were to prevent or inhibit contact. On an application under art. 10 by a child in care for contact with a child who was not in care, the court would have had to consider the welfare of the child who was the subject of the application, i.e. the child not in care, rather than the welfare of the child applicant. The court would therefore have required evidence as...

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