Jersey Unreported Judgments

[2010]JRC149A

royal court

(Samedi Division)

16^th August 2010

Before     :

J. A. Clyde-Smith, Commissioner, sitting alone.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF W

Advocate H. J. Heath for the Guardian

Advocate C. M. M. Yates for the Attorney General

Advocate S. A. Pearmain on behalf of C.

The other parties were not present and not represented.

judgment

the commissioner:

1.        W ("the child") is the subject of an interim care order.  The parties to the care proceedings are the applicant and respondents as listed above. 

2.        The Guardian applies for disclosure into these care proceedings of documents obtained in the course of the criminal prosecution of C the child's maternal grandfather, ("the grandfather") for offences against children. 

3.        For the purposes of the application, the Guardian filed a form C2 listing the persons to be served as those persons from whom the information was being sought, namely Miss Janette Urquhart, the author of the social inquiry report, Her Majesty's Solicitor General and Advocate Pearmain, representing the grandfather. 

4.        The other parties to the care proceedings, namely the Minister, the mother and the father, were told that they were not expected to attend the hearing of this application but could apply to intervene.  Correspondence from Miss Heath, acting for the Guardian, referred to there being two Courts involved, one in relation to the care proceedings and the other in relation to the criminal proceedings against the grandfather, it being to the latter Court that the application for disclosure was being made. 

5.        The application came before me on 19^th July, 2010.  Present in Court were Miss Heath, representing the Guardian, Mr Yates, representing the Attorney General and Advocate Pearmain representing the grandfather. 

6.        Miss Heath submitted that, notwithstanding the filing of the form C2 and that her skeleton argument contained the heading of the care proceedings in the Family Division, this was not an application made in the care proceedings before the Family Division.  It was an application to the Criminal Court in the Samedi Division, namely the Court that had the conduct of the prosecution of the trial and sentencing of the grandfather.  It was for the Criminal Court to decide what information generated for the purposes of the criminal proceedings should be disclosed into the family proceedings and on what terms.  A representation within the Samedi Division would need to be filed in due course. 

7.        The orders sought in the skeleton argument were as follows:-

"The Guardian humbly seeks the following orders:

disclosure of the police material relating to the prosecution of the grandfather, namely transcripts of the victim's witness statements, the grandfather's interviews, details of the grandfather's previous convictions and the forensic medical examination report on the victim;

b.        disclosure of the  psychological report dated 13 July, 2009;

c.        disclosure of the Social Enquiry Report prepared by the Probation Department in advance of the grandfather's sentencing (subject to further input from the Probation Department);

d.        disclosure of the minutes of any subsequent multi-agency risk assessment management meeting undertaken in relation to the grandfather;

e.        disclosure of any other reports prepared in the context of the criminal proceedings which deal with the issues of the risk that  the grandfather may pose to children and the prospects of the grandfather's rehabilitation;

f.         disclosure of any addendums reports listed in paragraphs a to e above;

g.        such disclosure to be made to the legal representatives of the parties involved in the care proceedings concerning the child;

h.        no hard copies of the documents disclosed shall be provided to the mother or the father.

i.         there shall be no further dissemination of these documents without further order of the Court.

j.         such further directions concerning future conduct of this case as the Court may deem fit."

8.        At the hearing, Miss Heath submitted that, as the material held by the police may contain allegations against the grandfather made by persons not involved in these proceedings, any documents disclosed by the police should be redacted.  

9.         In relation to the psychological report, its relevance was being considered by Dr Tracey Wade, the head of clinical psychology at Overdale, who will decide whether or not to consent to its disclosure.  Miss Heath therefore sought an order that was subject to that consent being forthcoming. 

10.      In relation to prayers c and d, Mr Heath of the Probation Department was prepared either to consent to disclosure to the Guardian of the documents sought or to prepare a separate report on the risk the grandfather posed to the child.  The Guardian preferred the latter and therefore in place of prayers c and d, Miss Heath sought an order that the Probation Department prepare a report detailing the risk the grandfather poses to the child and the prospects of his rehabilitation. 

11.      Following the hearing, at which I reserved my decision, Miss Heath wrote to the Court saying that Dr Wade had reviewed the psychological report which she considered to be out of date and therefore unreliable for the Guardian's purposes.  Dr Wade suggested that Dr Ruth Emsley might prepare an up-to-date psychological report dealing with the issue of the risk that the grandfather posed to the child and the prospects for his rehabilitation.  Dr Emsley had confirmed that she was willing to undertake such a report and accordingly Miss Heath withdrew her application for disclosure of the psychological report and instead asked for the following orders:-

"1.       That Dr Ruth Emsley prepare a psychological report on the grandfather dealing with the risk that he poses to the child and the prospects for his rehabilitation, such report to be completed by 15^th October, 2010. 

2.        Dr Ruth Emsley would then be permitted to use the information in the social enquiry report in advance of the sentencing in the preparation of her report. 

12.      Thus the final position is that the Guardian seeks from the Criminal Court disclosure into the care proceedings of the police material and the separate commissioning of two reports, one by the Probation Department and the other by Dr Emsley for the purpose of the care proceedings. 

13.      Mr Yates, for the Crown, consented to the disclosure of the police material, subject to the safeguards proposed in paragraphs g and h of the proposed order.  However, he proposed that the documents and any copies should be returned by the parties at the close of the care proceedings.  He had assumed that this was an application in the care proceedings. 

14.      Mrs Pearmain, for the grandfather, opposed disclosure of the police material for emotional and personal reasons that the grandfather had not instructed her to reveal.  The proceedings, she submitted, had in any event been brought in the wrong court - the application should be made in the care proceedings. 

15.      In her view, that the grandfather posed a risk to children was obvious from his conviction.  The real issue was how the mother was able to protect the child from that risk.  The disclosure of the police material was therefore unnecessary, particularly if reports were being prepared for the purpose of the care proceedings addressing the risk. 

16.      The victim is now adult.  She had made her statements and undergone intimate examinations for the purpose of the criminal proceedings against C and would have had no idea that those statements and reports were now being used for the purpose of care proceedings involving W.  Her Article 8 Convention rights were engaged and she should certainly be heard.  Whatever safeguards were imposed, there was a serious risk of this highly confidential and intimate information being disseminated by the mother and father.  Indeed, one of the child's relatives had used social networking sites to publish material from reports in the care proceedings and had indicated that she would not desist from so doing. 

17.      In my view there is some force in the submissions made by Mrs Pearmain.  The Guardian would surely be better served in assessing the risk to the child by up-to-date reports from the Probation Department and from Dr Ruth Emsley, rather than having access to historical material in the criminal proceedings.  However, I conclude that I should not entertain the application. 

18.      In my view, this application should be made within the care proceedings before the judge who has the management of those proceedings.  The Royal Court, sitting within the Family Division, retains all of its inherent powers, subject only to the restrictions imposed under Article 76 of the Children (Jersey) Law 2002.  It thus has the power within the care proceedings to subpoena witnesses and documents in the usual way, although in the nature of the material with which it is dealing, it would no doubt wish to allow those persons from whom the information is being sought to be heard before making any order.  As parties to the care proceedings, the Minister, the mother and the father would have the right to be heard should they so wish on the Guardian's application.  As it stands, we have the unusual situation of a Court sitting outside the care proceedings and in the absence of three of the parties to those proceedings making orders, in particular for reports, for the purposes of those proceedings. 

19.      This matter must be re-listed without delay before the judge who has the management of the care proceedings in the Family Division and the Minister, the mother and the father convened in the usual way.  For administrative convenience and notwithstanding the Guardian's submissions, this short judgement is being issued in the care proceedings under the heading of the Family Division. 

20.      It may not be necessary for the Attorney General and the grandfather to be heard at that further hearing if the Guardian takes the view that the Guardian can properly assess the risk posed to the child posed by the grandfather on the basis of the reports that it is now suggested should be ordered in the care proceedings.  A further psychological report may require the cooperation of the grandfather but there was nothing in Mrs Pearmain's submissions to indicate to me that he would not cooperate in that respect; his objection was to the disclosure of the police material.  

Authorities

Children (Jersey) Law 2002.