Jersey Unreported Judgments

[2010]JRC220

royal court

(Samedi Division)

9^th December 2010

Before     :

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

 

IN THE MATTER OF KK

Advocate V. Myerson for the Minister.

Advocate C. R. G. Davies for the First Respondent.

Advocate N. S. H. Benest for the Second Respondent.

Advocate D. Gilbert for the Third Respondent.

judgment

the commissioner:

1.        On 9^th July, 2010, the Court, presided over by the Bailiff, ordered that a guardian for the children be appointed under Article 75 of the Children (Jersey) Law 2002 ("the 2002 Law"), and made certain other orders in relation to the Minister's application for an interim care order.  The children were not made parties to the proceedings, nor was a lawyer appointed to represent their interests.  The Court no doubt considered that the children's interests would be sufficiently protected at this stage by the guardian. 

2.        Since that date, a number of further directions hearings have taken place at which the Court has been assisted by the observations and submissions made by the guardian, C.  On 29^th September, 2010, the guardian informed me that he would find it helpful to have access to legal advice from time to time.  I accordingly ordered that the Minister should procure that independent legal advice be made available, and the Act of the Court of that date recorded that the Court "noted that the guardian shall hereafter receive legal advice on request."  On 18^th November, 2010, I was informed by Miss Myerson for the Minister that there was confusion as to the nature of the order made on 29^th September and I was requested to deliver a short judgment in explanation of it.  This I now proceed to do. 

3.        Although the decision has attracted a certain amount of controversy, the policy of this Court in relation to the appointment of lawyers to represent the child or children in public law proceedings has been clearly laid down in Re B [2010] JRC 150.  The law itself confers a discretion upon the Court.  Article 75(1) of the 2002 Law provides:-

"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."

4.        Confusion appears to have arisen as to the functions of the person appointed under Article 75(1)(b) largely because it has been assumed that such persons (usually termed "guardians") were in the same position as guardians ad litem appointed under section 41(1) of the Children Act 1989 in England.  That assumption is understandable but misconceived.  As the Court stated in Re B at paragraph 14:-

"14.    The legislative structure in England and in Wales is more complex than our own but the key points are these:-

(i)        The Children and Family Court Advisory Service ("CAFCASS") was established by the Criminal Justice and Court Services Act 2000 as a non-departmental body to incorporate the work of the family court services, the Guardian ad litem and the children's work of the Official Solicitors.  CAFCASS have a department of in-house lawyers known as CAFCASS legal.  In Wales, where Welsh Ministers have devolved authority, CAFCASS functions have been transferred to a division of the National Assembly for Wales known as CAFCASS CYMRU. 

(ii)       CAFCASS and CAFCASS CYMRU may authorise an Officer of the Service or a Welsh family proceedings officer, in each case of a prescribed kind (a barrister or solicitor of the Supreme Court or an officer employed to conduct litigation who does so in conjunction with a barrister or solicitor), to conduct litigation in relation to proceedings in any court and to exercise a right of audience in any such proceedings, in the exercise of his functions. 

(iii)      The children's guardian, if not CAFCASS or CAFCASS CYMRU, must appoint a solicitor to represent the children unless a solicitor has already been appointed.

The effect of these provisions is that in care proceedings in England and Wales there is invariably both a guardian for the child and a lawyer or specialist litigation officer working in conjunction with a lawyer, but what is clear is that the legislative and administrative arrangements are quite different from our own."

The phraseology employed by the draftsman of Article 75(1) may not be ideal, but the assisting and befriending of the child was intended to enable the Court to hear an independent view as to what was in the best interests of the child.  That is the function of the guardian. 

5.        Article 75 of the 2002 Law makes it clear that the Court may order:-

"(i)      that a child be separately represented or

(ii)       that the child be assisted and befriended by a person independent of the Minister."

As practice has developed, it is plain that the Court has not interpreted these powers as being disjunctive.  It has on occasions appointed a guardian to assist and befriend the child as well as appointing a lawyer to represent the child.  A lawyer appointed under Article 75(1)(a) will act on the instructions of the child, and will thus generally only be appointed when the child is of sufficient maturity to give those instructions.  A guardian, by contrast, has a duty to assist and befriend the child, but also has a professional duty to the Court to give objective advice as to what is in the best interests of the child.  That may not always coincide with what a child (of sufficient maturity and understanding) considers to be in his or her own best interests.  Such a conflict would be one reason why the Court might exercise its powers under both sub paragraphs (a) and (b) of Article 75(1).  As the Court stated at paragraph 55 of its judgment in Re B, the conclusion that a child needed legal advice would ordinarily require that he or she be made a party to the proceedings. 

6.        Occasionally, the guardian appointed under Article 75(1)(b) will himself or herself require legal advice.  At paragraph 52 of the judgment in Re B, the Deputy Bailiff gave examples of situations where such a need might arise.  And, as stated at paragraph 53, the lawyer appointed to the guardian in such circumstances would act on the guardian's instructions and not those of the child. 

7.        There is a measure of flexibility here.  Sometimes, although I hope rarely, the lawyer appointed to the guardian might take the front seat and act for him or her in the same way that the Minister's Advocate articulates the views of the Minister and her officials in the Children's Service.  I state "rarely" because persons appointed as guardians will almost invariably be experienced and competent professional people, well able to perform their functions and to present their opinions and conclusions to the Court without the need for legal assistance.  Experience in this case has shown that it is desirable, when the Court appoints a lawyer to the guardian, that the Court should make it clear exactly what functions are intended to be performed by the lawyer.  My intention in this case was that the lawyer should have a limited and reactive function.  The guardian had informed me that he occasionally felt at a disadvantage in discussions with other professionals involved in these proceedings by reason of his lack of legal knowledge.  He wanted to have access to legal advice from time to time.  I considered that request to be proportionate and reasonable.  My order on 29^th September, 2010, authorised the guardian, at his discretion, to seek and obtain legal advice whenever he deemed it necessary to do so.  If the guardian felt that, in relation to a particular issue or particular issues, it would be desirable that the Advocate should appear in Court on his behalf, it would be open to him to instruct the lawyer accordingly.  It would not be appropriate, however, for the Advocate to be routinely instructed to appear in Court merely to articulate a position or the views of the guardian which could be perfectly well expressed by the guardian in person.  Nor would it be appropriate for the Advocate to receive as a matter of course documentation or communications from lawyers for the other parties, other than at the express request of the guardian.  The guardian remains firmly in the front seat.  I was, and remain, content to leave decisions as to when and to what extent to seek legal advice and assistance to the discretion and good sense of the guardian. 

Authorities

Children (Jersey) Law 2002.

Re B [2010] JRC 150.

Children Act 1989.