Jersey Unreported Judgments

Child Custody - application by the Minister for a strike out of an application by the Guardian.

[2012]JRC174

Royal Court

(Family)

3 October 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Fisher and Olsen.

 

IN THE MATTER OF W AND J (CHILD CUSTODY)

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

Advocate D. C. Robinson for the Minister.

Advocate H. J. Heath for W and J through their previously appointed guardian Anthony Williams.

judgment

the COMMISSIONER:

1.        The Court has before it an application by the Minister to strike out an application, brought by Mr Williams as guardian for W and J, for a declaration under the Human Rights (Jersey) Law 2000 (the "Human Rights Law") that their right to respect for their family lives has been violated and for damages. 

2.        Detailed arguments have been filed by Miss Heath for the guardian and Mr Robinson for the Minister but the Court took first a procedural issue as to the means by which the application by the guardian had been brought.  It is necessary to give some of the background. 

3.        The children were made the subject of a final care order on 22^nd March, 2011.  Mr Williams had acted as guardian in those proceedings and his appointment terminated with the making of that final care order; see the judgment of the Court of Appeal In the matter of D [2011] JLR 220.  Under the care plans approved by the Court the children continued to live with the mother and D, who is the father of J; I will refer to them for convenience as "the parents".  On 16^th August, 2011, the children were removed by the Children's Service from the care of the parents.  In his interim report of 1^st February, 2012, and subsequently, the guardian raised serious concerns as to whether it was right for the children to have been removed.  On 24^th October, 2011, a looked after planning meeting decided in principle that the children would not be returned to their parents but would be provided with a permanent solution by way of kinship and adoption, respectively. 

4.        In response to this in December 2011, the parents made an application to discharge the care order, which as their counsel Miss Gilbert said, was the only way of their getting the matter back before the Court.  Mr Williams was re-appointed as guardian under Article 75 of the Children's (Jersey) Law 2002 (the "Children's Law") for the purpose of those discharge proceedings. 

5.        The parents succeeded in increasing the level of contact they were allowed by the Children's Service for the reasons set out in the judgments of the Royal Court of the 28^th February, 2012,([2012] JRC 044) and 25^th May, 2012, ([2012] JRC 106C).  It is clear that the advice of the guardian was a key factor in the Court's decisions.  The discharge application was initially fixed to be heard in the week commencing 21^st May, 2012.  As the Bailiff said in paragraph 39 of the Court's judgment of 28^th February, 2012:-

"The context of this application is that the parents' application to revoke the care order is due to come before the Court in the week commencing 21st May.  The Children's Service will undoubtedly be opposing that application.  The Service is currently awaiting psychological reports on the parents and the children which are expected to be available towards the end of March.  Following receipt of those reports, the Children's Service will reach a decision as to whether to maintain the proposal for adoption of both children or whether to seek rehabilitation of the children with the parents under a continuing care order.  If the former, an application will be made to the Adoption Panel on 1st May and if that Panel gives its approval, the Minister will seek an order from this Court freeing the children for adoption.  Ideally, that application would be heard at the same time as the parents' application for revocation of the care order if that application is maintained.  Should the Children's Service decide to seek rehabilitation of the children with the parents, it seems probable that the Court hearing in May will not be required." 

6.        No decision was made by the Children's Service and on the 15^th May, 2012, it sought an adjournment of the matter to 1^st October, 2012, in order to undertake a further period of testing and assessment. 

7.        On 13^th August, 2012, the guardian filed a Form C2 seeking relief under the Human Rights Law as described above.  Miss Heath filed a lengthy skeleton argument on 20^th August, 2012, from which it was clear that the purpose of the application was to seek to prevent a repetition by the Children's Service of the steps they took in August 2011 and this by appropriate orders.  The claim for damages was secondary.  The Minister applied to have that application struck out.  In the view of Mr Robinson the application was fatally flawed because of the terms of Article 8 of the Human Rights Law which defines legal proceedings in which a Human Rights claim may be made as proceedings brought by or at the instigation of a public authority; in this case the proceedings in which the guardian sought to bring a Human Rights claim were brought by the parents and not the Children's Service. 

8.        A decision was then made by the Children's Service in favour of rehabilitation of the children with the parents and new care plans were in the course of formulation when a directions hearing took place on 11th September, 2012.  At that hearing Commissioner Clyde-Smith made it clear that the principle purpose of the hearing on 1^st October was to be the parents application to discharge the care order (which it was anticipated would be withdrawn) and any evidence filed was to be restricted to that issue alone.  There was a danger otherwise that the proceedings would be hijacked, so to speak, by the guardian's Human Rights application which had a different and potentially far more wide-ranging focus than whether the care order should be discharged. 

9.        On 13^th September, 2012, the guardian filed a second application in the Family Division seeking the same relief under the Human Rights Law using a Form C1, a form stipulated for use within proceedings under the Children's Law.  The intention, we believe, was for this to be a free-standing application that was not ancillary to the discharge proceedings and which would continue irrespective of whether the discharge application was withdrawn.  The Minister applied to have that second application struck out. 

10.      In the meantime the new care plans were agreed by the parties.  They contained extensive and carefully thought-out provisions making clear the circumstances in which the Children's service might in the future seek to remove the children, which fully address the concerns of the guardian to the point that he no longer sought orders against the Minister under the Human Rights Law.  Indeed, Miss Heath informed us that with these provisions the guardian had achieved what he had set out to achieve when bringing the first Human Right application.  His second application therefore remained only for the purposes of a declaration and damages.  It is clear that damages for breaches of human rights are modest; a range of £5-15,000 has been mentioned in the correspondence that we have seen. 

11.      The children were returned to their parents on 24^th September, 2012.  On 2^nd October the parents applied for, and were granted leave, to withdraw the discharge applications.  It was common ground that the first Human Rights application brought by the guardian fell away with them.  The Court then went on to deal with the Minister's application to strike out the guardian's second free-standing application. 

12.      As a consequence of the withdrawal of the discharge applications there were no longer any proceedings before the Court under the Children's Law.  And furthermore the role of Mr Williams as guardian under Article 75 and Miss Heath as legal advisor ceased.  Miss Heath candidly accepted that the second application, if it was to be free-standing, should have been brought before the Samedi Division and not in the Family Division using Form C1.  Under Rule 3/1 of the Royal Court Rules 2004 the jurisdiction of the Family Division does not extend to a free-standing claim for a declaration for a declaration and damages under the Human Rights Law. 

13.      Furthermore Rule 16/1(1) and (2) of the Royal Court Rules provide as follows:-

"(1)     Except in cases where an appeal is available against a decision of a public authority or body, and subject to paragraph (3), an application for a declaration, injunction or any other order in any public law matter must be brought by way of an application for judicial review made in accordance with this Part unless the Court otherwise orders.  

(2)       For the purposes of this Part, an application is made in a public law matter if the application relates to the validity of a judgment, decision, order or other action of a public authority or body, or seeks relief to compel a public authority or body to perform a duty owed by it in public law or seeks to restrain it from acting in a way that would be invalid."

14.      On the face of it the guardians second application relates to the validity of a decision by or other actions of the Children's Service, a public authority, to remove the children from the parents and thereafter to keep them in care.  As Miss Heath pointed out Rule 16/1(3) goes on to provide:-

"(3)     In determining whether an application falls within paragraph (1), the Bailiff or Court shall have regard to -

(a)       the nature of the matters in respect of which relief is sought;

(b)       the nature of the persons and bodies against whom relief is being sought; and

(c)       all the circumstances of the case."

15.      However there seems little doubt that in the first instance the guardian's second application should have been brought under Rule 16/1 by way of judicial review.  The wording used is mandatory "must be brought".  The point was made by the Court of Appeal in Trant-v-AG and others [2007] JLR 231 in the context of an order of justice seeking declarations, orders and injunctions in relation to decisions made by the Attorney General where Beloff JA said this at paragraph 34:-

"34. I would add that this particular challenge should strictly have been brought by way of an application for judicial review. Rule 16/1(1) of the Royal Court Rules states that any application for a declaration, injunction or other order in any public law matter must be brought in such a manner, and para. (2) of that rule provides that "an application is made in a public law matter if the application relates to the validity of a . . . decision . . . or other action of a public authority."  The Attorney General, in this context, is clearly a public authority and what is alleged is that his action in seeking assistance from the UK authorities is invalid."

16.      We were conscious of the criticisms that the Royal Court had made of the actions of the Children's Service in removing the children, albeit without, as we understand it, having the benefit of evidence from the Children's Service itself.  Quoting from paragraph 63 and 65 of the judgment of the Court:-

"63.    Putting these matters together, the Court accepts that there are serious questions as to whether the Children's Service was correct to take the drastic step of removing these children immediately from the care of the parents. 

65.      We further agree with the Guardian that it must have been distressing for and damaging to the children to have contact reduced in this way.  J had never before been separated from the mother and was only 18 months old.  Yet in the space of three short months he had been placed with three different carers and was now to be allowed to see his parents for only two hours every fortnight.  We think it highly likely that he suffered damage in the way described by the Guardian.  In relation to W, he suffered a similar reduction in contact and this was in circumstances where his attachment with the mother was almost certainly less strong than that of J because of the previous history and the fact that he had only been living with the mother since November 2010."

17.      In the light of this we considered whether we should exercise our powers to cure the deficiencies in the way the proceedings have been brought using Royal Court Rule 10/6 and 10/7 by, for example, deeming the application to have been made in the Samedi Division under Rule 16/1 and granting leave to the guardian to bring judicial review proceedings. 

18.      We have decided not to do so for the following reasons:-

(i)        In an application for judicial review, whilst the Bailiff is able to grant leave on the papers, it was likely that in a case such as this he would have required a hearing at which the Minister would have been entitled to resist the application, bearing in mind in particular that under Royal Court Rules 16/3(1) any application has to be brought promptly and in any event within three months unless there is good reason for it not being brought within that time.  It would be unjust in our view to deprive the Minister of the opportunity to make those submissions. 

(ii)       We were concerned as to whether the guardian and Miss Heath in their genuine desire to act in the interests of the children had fully considered the appropriateness of their on-going role or locus now that there were no longer any proceedings under the Children's Law before the Court.  When bringing the first application on behalf of the children the guardian had not applied to have himself appointed guardian ad litem, a step which is necessary for any proceedings to be brought in the name of minors.  The Commissioner sought to cure this at the directions hearing on 11^th September by appointing Mr Williams guardian ad litem for the purpose of the first Human Rights application which was brought in the context of the discharge application in which the guardian had a role.  We are not aware of any application to appoint Mr Williams guardian ad litem in respect of the second free-standing application.  In our view therefore Mr Williams has no locus in this matter now that the children's proceedings have been withdrawn.

19.      We appreciated that requiring proceedings to be started afresh in the Samedi Division would create further delay but we took into account the principle of our customary law that time does not run against a minor without a tutelle and the fact that in considering whether to grant leave for judicial review proceedings the Court would be able to take into account the fact that free-standing proceedings had attempted to be started albeit incorrectly on 13^th September, 2011. 

20.      For these reasons we conclude that the Form C1 filed by the guardian on 13^th September, 2012, in the Family Division, the second Human Rights application, must be struck out.  If proceedings are to be commenced before the Samedi Division then there must first be an application under Rule 4/2 of the Royal Court Rules for the appointment of a guardian ad litem for the purpose of those proceedings.  Miss Heath seemed to have considered herself to be under some duty to commence and take on the burden of such an application.  Although we have not heard argument on the issue we doubt that either she or Mr Williams can be under any such duty, their role in the Children's Law of proceedings having now come to an end, roles incidentally which it is clear that they have performed with great skill and most effectively.  We use the word "burden" intentionally because it is clear that these will be very time-consuming and expensive proceedings, some nine days had been set aside for the hearing in January, for a potential reward that might be considered disproportionate to the costs that will be incurred.  Ordinarily we would have thought that it would be for the parents, or a duly appointed tuteur, to make the running in any such matter in the future. 

21.      Finally we vacate the dates fixed before the Court for the 14^th January, 2013, and onwards and applications for costs are to be adjourned for a date to be fixed and skeleton arguments to be filed by both sides. 

Authorities

In the matter of D [2011] JLR 220.

Children (Jersey) Law 2002.

In the matter of W and J [2012] JRC 044.

In the matter of W and J [2012] JRC 106C.

Human Rights (Jersey) Law 2000.

Royal Court Rules 2004.

Trant-v-AG and Others [2007] JLR 231.