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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of Hollie and Joshua (Care proceedings) [2015] JRC 222 (04 November 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_222.html Cite as: [2015] JRC 222 |
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Before : |
W. J. Bailhache, Esq., Bailiff, sitting alone |
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Between |
The Minister for Health and Social Services |
Applicant |
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And |
A (the mother) |
First Respondent |
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And |
Hollie (through her guardian, Eleanor Green) |
Second Respondent |
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And |
Joshua (through his guardian, Eleanor Green) |
Third Respondent |
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And |
B (the grandmother) |
Fourth Respondent |
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IN THE MATTER OF HOLLIE AND JOSHUA (CARE PROCCEDINGS)
Advocate J. R. G. Davis for the Minister.
Advocate H. J. Heath for the First Respondent.
Advocate N. H. Benest for the Second and Third Respondents.
Advocate B. J. Corbett for the Fourth Respondent.
judgment
the bailiff:
1. The grandmother has brought a claim for costs incurred by her in relation to these public law children's proceedings reported at In the matter of Hollie and Joshua (Care proceedings) [2015] JRC 211, commenced by the Minister in exercise of his statutory powers and duties for the protection of children against the children's mother. The claim is brought generally in respect of the entirety of the proceedings and specifically in respect of an application made by the Minister for an adjournment of the dates fixed for a final hearing, which adjournment failed.
2. On 21st January, 2015, the Minister brought an application for an interim care order. In doing so, he also applied for a guardian to be appointed for the two children and for a lawyer to be appointed for the mother, who was also underage at that time. On the 2nd February, the Royal Court also ordered that an advocate be appointed to represent the children in the proceedings. The same day, the Court made an interim care order, and made a number of directions. The important parts of the judgment for the present purposes are these:-
(i) The grandmother successfully applied to be joined as a party to the care proceedings, and was furthermore granted leave to bring an application for a residence order in respect of both children.
(ii) The grandmother gave an undertaking not to permit the mother to have unsupervised contact with the children and not to permit the mother to attend the grandmother's home while the children were present. The Minister was granted leave to place the children off-island for the purposes of an assessment with the mother at the Orchard House Family Assessment Centre in the United Kingdom. We note from the Commissioner's judgment (unpublished) on 2nd February that:-
(iii) In the event, for practical reasons, the parties then agreed that the children should remain with the maternal grandmother pending the placement in Orchard House. The Commissioner made it plain that if circumstances were to change and the Minister considered removing the children from the family's care, the mother and the maternal grandmother should have the opportunity of challenging that decision. The Court concluded:-
3. The outcome of the assessment at Orchard House was not positive for the mother and it was therefore apparent that she would not be regarded as a suitable long-term carer for the children. The assessment took place between 4th February and April this year. In April, the grandmother made an application for a residence order as she was concerned that it was not in the children's best interests, in her view, for them to remain in the unit in England any longer. She thought that both the children and their mother should come home to Jersey.
4. In the event, the assessment finally came to an end on 27th May. At that time the Minister's care plan was for the children to be placed with foster carers in England. The grandmother challenged that assessment, and shortly before the residence hearing which had been listed for 8th June, 2015, the Minister agreed to return the children to their grandmother. As a result, the application was adjourned in line with the care proceedings and the children returned to their grandmother's care on 11th June at about 5pm, still subject to the interim care order.
5. It is common ground that the children were not visited by anyone from the Children's Service at the grandmother's home until the 3rd July.
6. During June, July and August, various assessments were made on the grandmother and on the mother.
7. At the time of the residence order application in June, it had been anticipated that the final hearing would be held in July but on 8th June the final hearing was adjourned to 25th September, with liberty to apply in relation to the re-fixed final hearing dates. The Minister withdrew his application for the children to be placed into foster care in the United Kingdom, and the interim care order remained in place. Directions were given the following day requiring the Minister to produce and file a final connected-persons assessment in relation to the grandmother by 31st July and the parties were also directed to instruct jointly an independent social worker to undertake a parenting assessment in relation to the grandmother. It is noted that the assessment was to be made on three different bases - the grandmother's capacity to parent the children on her own and/or with support; her capacity effectively to co-parent with a family friend; and finally her capacity to co-parent effectively with the mother.
8. Directions were also given in relation to the obtaining of a medical report on the grandmother, and the provision of an amended joint letter of instruction to the psychologist Dr Carritt-Baker.
9. In relation to the arrangements for the final hearing, the Minister filed his care plan on 25th August. This was in fact 11 days later than the Court had ordered in June. The care plan came as a bolt from the blue for the grandmother. It called for the immediate removal of the children to foster care in England and adoption by strangers. The allocated social worker informed the grandmother the same day that from that moment there would be daily unannounced social work visits because there were serious concerns about her care of the children.
10. On 1st September, the mother withdrew an application she had made under the Human Rights (Jersey) Law 2000, and the Minister undertook not to remove the children from the care of the grandmother other than on 48 hours' notice except in cases of emergency. Other directions in relation to the final hearing were made. The grandmother had applied also for an order that the Minister cease daily unannounced visits to her home. This application was refused, but it was refused on the basis that there were simply inadequate information available to the Court at that time to identify whether daily visits were or were not appropriate. As the presiding judge on that occasion, I record that I found the concept of daily visits curious given that the Minister had not through his social workers visited the grandmother between 9th June and 24th August, and in those circumstances it did seem hard on the face of it to justify the statement that there was serious concern about her care of the children.
11. On 9th September the Minister sought agreement from the parties for an adjournment of the final hearing, but no agreement was forthcoming. Accordingly the Minster applied to Court for an adjournment. The Court heard evidence on 14th September and refused the application. In doing so, the Court invited the Minister to amend his care plan and commented that the Court could see no prospect "of any court approving a care plan for adoption" on the evidence the Court had heard and read at that time.
12. An amended care plan was filed the following day seeking that the children reside with their grandmother but on the basis of a final care order granted to the Minister.
13. Further discussions took place between the parties and, in the event, at the date of final hearing there was an agreed order which encompassed these elements:-
(i) It was acknowledged that threshold had been passed for the purposes of final order.
(ii) The Minister supported the grandmother's application for a residence order but contended that it should be accompanied by a supervision order.
(iii) The terms of the supervision order were ultimately settled by consent and the residence order was duly made.
14. In essence, the grandmother's claim for costs takes into account the factual summary which I have referred to above, and is grounded on the submissions that:-
(i) The grandmother helped her daughter considerably in the care of the children in their early years;
(ii) It should always have been possible by agreement to reach the position which nine months later was ultimately reached, namely a residence order in her favour with various directions linked to a supervision order;
(iii) In the interim, the grandmother, who was not legally aided because she owned her own house, had incurred costs which at full not discounted rates were in the total sum of £79,905, but applying 5/6th of Factor A only, less a pro bono contribution of £6,530, left one with a total of £55,060. I was informed by Advocate Corbett that the grandmother's income was £2500 per month, and comprised largely permanent health insurance and long-term incapacity allowance. She owns a property in Trinity the value of which was unknown, but against which was secured a simple conventional hypothec of £45,000. There was therefore real hardship on her part and it was unthinkable that the result of her engaging with the Children's Service in these proceedings for the protection of the children should leave her in a position where ultimately she could not afford to stay in her house, which was now, as a result of the residence order, the home for the children;
(iv) The grandmother also contended that if there had been parallel planning from January, most of the costs which she had incurred would not in fact have been incurred. In the usual way, the Minister would have obtained a connected person's assessment and a parenting assessment on the grandmother, and would have ended up in the same place as the Court ended in September.
15. The Minister approached the matter from a different perspective. From his perspective, the children needed protection and the fact that an interim care order was made in February 2015 was sufficient to justify the Minister's action. At that time only the mother had parental responsibility. It was right for the Minister then to have an assessment made at Orchard House in respect of the mother. She needed to have the opportunity to care for her children, and the Orchard House assessment did not come cheap. The grandmother could have challenged the making of that assessment but did not.
16. The Minister went on to submit that in June, the grandmother's application for a residence order at that time was a waste of cost because she knew that there was to be a final hearing in July and that too many witnesses had been convened for the number of days fixed. She also knew that it was agreed that the children should remain with her for the time being.
17. There have been concerns raised in the paperwork as to the relationship between the grandmother and the mother. It was contended for the Minister that the Children's Service were right to worry about the children and to worry about the relationship between mother and grandmother and if the Minister had not brought these proceedings, that advice would not have been obtained.
18. Accordingly, it was submitted for the Minister that there was no illegality or wilfulness. The Minister acted properly in exercise of his statutory duty and obligations, and it would be wrong in principle to penalise him with a costs order.
19. The specific application made by the grandmother as opposed to the generality which has been discussed above was that the Minister was wrong to make an application for an adjournment in September. The draft judgment of the Court on that occasion was made available to me and there is no doubt that the Court was quite satisfied that the Minister had not come close to justifying the application for an adjournment. Indeed, the basis of the application was that work needed to be done on the grandmother's parenting skills and the Court's view was that was work that should have been done months ago. Indeed on the evidence which the Court heard at the adjournment application, the Court's view was that the Minister had very little chance indeed of establishing that his care plan, which then called for UK fostering and freeing for adoption, would be approved.
20. The only local authorities provided to me when this Court has had to determine an application for costs against the Minister in public law children's proceedings are In the matter of KK [2011] JRC 083, [2011 JLR Note 17 approved In the matter of W & J [2012] JCA 084. In the matter of KK, interim care orders had been made in respect of four children on the basis that the father's conduct was causing and was likely to cause them significant harm. There was subsequently psychological evidence which suggested that once the parents had separated, the risk of domestic violence between father and mother had reduced considerably and indeed could not any longer be regarded as high. In those circumstances the father's application to discharge the interim care orders was not resisted by the Minister, and indeed ultimately supported by her. The interim care orders were then discharged and the application for full care orders withdrawn. When the father applied for his costs of the successful application to set aside the interim care orders, on the basis that the Minister was bound to fail in her application for full care orders and indeed should have made the application to set aside the interim care orders herself, the Court refused the application, holding that in public law proceedings concerning children, an award of costs against the Minister would be unusual. The Court noted that in public law proceedings concerning the welfare of children, the Minister had to conduct herself expeditiously, fairly and sensitively, bearing in mind at all times that an interference by a public authority with private and family rights should be proportionate and limited as far as possible. On the other hand, the Minister should not be inhibited from fulfilling her duty to seek a care order or other appropriate order when the threshold criteria were met. The Court made it plain that if the Minister had acted illegally, in gross dereliction of duty or reprehensively in some other way, it might well be appropriate to mark the Court's disapproval by making an order for costs - indeed the Court's overriding objective was to deal with cases justly and it might well order costs against the Minister if her actions or lack of action fell outside the ambit of reasonableness and fairness required that a cost order be made.
21. I have also been referred to some English authorities. I start with Coventry City Council v X, Y and Z (Care Proceedings; costs) [2011] 1 FLR 1045. The head note describes that the judge made interim care orders but refused to authorise the removal of the children from the parents' care after the parents took the children on holiday without informing the authority. The authority sought authorisation for the children's removal and placement into foster care, but subsequently, at the conclusion of its own evidence, decided not to proceed with that application. On day five of a fact finding hearing listed for 20 days, the authority sought leave to withdraw the care proceedings in respect of the two older children then aged 12 and 9, on the basis that there was little or no evidence capable of satisfying the threshold criteria. Three days after that the authority also sought leave to withdraw the proceedings in relation to the youngest child, then aged 8, on the same basis. The costs incurred by the Legal Services Commission in the proceedings were in the region of £400,000. His Honour Judge Bellamy gave judgment granting leave to withdraw the care proceedings and he ordered the local authority to pay £100,000 to the Legal Services Commission in respect of the parents' costs. The judge said this:-
22. There seems therefore to be little doubt that the judge in that case looked at whether or not the conduct of the case by the local authority fell outside the band of what was reasonable. He decided that it did and made a costs order. He also had in mind by his concluding remark that as between publically funded bodies it might well be that the costs order would not be enforced, but that was a matter of discretion and I take from those remarks that the identity of the applicant for costs in these proceedings was not relevant to the decision as to whether costs should be awarded. In other words, he did not refuse to order costs because the recipient of the costs was publically funded, but he did make the point that as a matter of discretion it might not want to enforce the order.
23. In Re T (Costs: Care Proceedings: Serious Allegation not proved) [2012] UKSC 36, [2013] 1FLR 133, the local authority had brought care proceedings in relation to two children aged 13 and 9, who had accused a number of adults, including the father and the paternal grandparents of serious sexual abuse. The grandparents were both joined as interveners before the fact finding hearing took place; they obtained expert legal representation in order to defend themselves against allegations that they had been involved in causing physical, sexual and emotional harm to the children, and that they had failed to protect the children from abuse. Ultimately, the judge not only found the very serious allegations against the grandparents to be unproved, he exonerated them completely, discharging them as parties to the proceedings. The cost of their participation at that stage amounted to £52,000. They had a joint net annual income of about £25,000 and little capital. They had borrowed £55,000 to fund their legal representation and were required to pay back about £6,000 per annum for the next 15 years, which would be possible only if the grandmother, then 63 went on working far into the future. The grandparents accepted that the local authority had been acting properly in bringing the care proceedings but they argued that the local authority should nonetheless pay their costs of the proceedings. The judge refused their application for an order for costs, applying the general proposition that costs would not be awarded against an authority which acted reasonably, as this authority had in pursing the allegations against the grandparents. The Court of Appeal allowed the appeal, and permission to appeal to the Supreme Court was granted. The Supreme Court restored the original costs order. In discussing the various issues involved, Lord Phillips said that it was important to distinguish whether it is just to make an award of costs against a public authority from the question of whether a litigant's costs should be publically funded. The former question was for the court and the latter question for the legislature. The latter question involved issues in relation to access to justice and the requirements of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. At paragraph 40 Lord Phillips noted the funding code prepared by the Legal Services Commission pursuant to Section 8 of the Access to Justice Act 1999 which make provision for public funding in proceedings under, inter alia, Section 31 of the Children Act 1989. The effect of the code is that children, parents, and those with parental responsibility are granted funding without reference to means, prospects of success or reasonableness, but such funding is not available to interveners who are joined in such proceedings. The grandparents in Re T were therefore not in the position of being able to apply for public funding.
24. Lord Phillips noted at paragraph 41 of his judgment that if in principle a local authority should be liable for the costs of intervenors against whom allegations have been reasonably made but which are subsequently unfounded, then the liability should arise whether or not the intervenors were publically funded. He noted that the burden of costs awarded against local authorities in such circumstances would be likely to be considerable and that it was legitimate for the Court to have regard, in formulating its policy, to the competing demands on the limited funds of local authorities.
25. Importantly, at paragraph 42, Lord Phillips said this:-
26. Finally in Re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20; [2015] 2 FLR 208, the Court of Appeal faced care proceedings in relation to four children where the father of the two middle children successfully appealed a placement order in relation to his younger child. The Court of Appeal found that the judge had been wrong to make the order without further assessment of the situation, or of the father and the child, and, in any event, did not adequately articulate the reasons to proceed to make a placement order in the circumstances of the case. The child was placed with the father under a child arrangement order. The local authority was ordered to pay the father's costs of the appeal totalling £13,787.70. The father had paid his own fees as non-means tested legal aid was not available for appeals in care proceedings. It was not suggested that the local authority had behaved reprehensibly in relation to the child or unreasonably in the stance taken at first instance, but they had resisted the appeal while recognising the deficiencies in the judgment in the lower court. The local authority appealed on the basis that if they were successful they would not seek repayment of the costs already paid by them. The Access to Justice Foundation intervened.
27. The appeal was allowed and the costs order set aside. The fact that this case concerned parties to the proceedings and not interveners was not material. All the reasons why costs orders were inappropriate in children's cases in the Supreme Court's view applied much more strongly to parents and local authorities than they did to such interveners. As a general proposition, parents were always entitled to resist the claim of the State to remove their children from them. They would usually be reasonable in doing so. They should not have to pay the local authority's costs if they lost. But it did not follow from that that if the local authority lost they were unreasonable in seeking to protect the child: that would all depend upon the particular circumstances of the case.
28. Having dispensed with the submission that appeals were different from first instance trials, Baroness Hale went on as follows:-
29. That most recent decision of the Supreme Court therefore opens the door to an order for costs being made in a case where there has not been reprehensible conduct on the part of the local authority if the result of not making an order for costs would be that the welfare of the child would be put at risk. However, it was necessary that the Court should have some evidence to proceed before reaching such a conclusion.
30. This Court was obviously not referred In the matter of KK [supra] to the decisions of the English Courts above because they were given or reported later. In my judgment, the approaches to making orders for costs in care proceedings set out in Re T and Re S [supra] make very good sense even though the costs regime is slightly different in the United Kingdom in the sense that we do not have a Legal Services Commission which provides funding for the most part in these cases; and indeed they affirm what this Court has already adopted as a principle In the matter of KK - namely the principle that costs will not be awarded against the Minister in care proceedings unless he has acted reprehensively or unreasonably in some respect. I add to that approach the principle that a costs order may be made if it is in the interests of the child that an order for costs is made because the child's welfare will be at risk if it is not.
31. How do I apply those principles in this case? I deal first with the application for an adjournment of the final hearing. I am reasonably confident that I gave some obiter guidance to the parties at the directions hearing on 1st September that they had to ensure that they were ready for trial at the end of that month, although I have not had put before me any transcript of the discussion in Court on that day. I have, however, had the opportunity of reading the draft judgment of the Court over which Commissioner Clyde-Smith presided on the adjournment application itself. The Court noted that on 9th June the Court had ordered at a directions hearing an addendum psychological report from Dr Joshua Carritt-Baker, a medical report on the maternal grandmother's medical condition and its impact on her parenting abilities from Dr Mark Sanders and a parenting assessment by an independent social worker Ms Alison Paddle. The Court noted that Dr Sanders had reported that the grandmother's treatment for fibromyalgia had been conservative and incomplete and inadequately managed to date. In his view she had significant motivation to engage fully and he saw no barrier to her having full care of the children. In his addendum psychological report on 3rd August, Dr Carritt-Baker had said that the grandmother had been under quite severe long term stress, and with a reduction in the amount of stress she might well function at a higher level. In the report of 4th August Ms Paddle said that there was significant therapeutic work that needed to be done with the mother and the grandmother before their relationship could develop more positive. However she added that the grandmother was providing good enough care for the children. The Court noted that the guardian had the same view.
32. The experts seemed to agree Ms Paddle's recommendations for support, and the social worker had indicated on 7th August that she would be asking of an adjournment of twelve weeks under a care plan for the placement of the children with the grandmother with the indicated support.
33. In its draft judgment on the Minister's application for an adjournment, the Court noted that the Minister had produced evidence of a newly employed official in the Children's Service who had been in post for 10 days with 120 cases to supervise. She expressed the view in her statement that the Children's Service had tested the familial placement as much as was possible and that the grandmother could not meet the children's needs on a long term basis. That apparently was the foundation for the care plan at the end of August that the children should be removed from the care of the grandmother at the earliest opportunity and placed in an adoptive placement.
34. In my judgment it was unreasonable for the Minister to reach that conclusion; and unreasonable for the Minister then to visit the grandmother daily without notice. The Commissioner put it this way:-
35. The Court also added this:-
36. In dismissing the application the Court had in mind the general principle set out in Article 2(2) of the Children (Jersey) Law 2002 that any delay was likely to prejudice the welfare of the children and the support which was offered to this "clearly competent maternal grandmother", as then not fully particularised, would no doubt be of assistance but did not justify a delay.
37. The timetable for getting this case on to final hearing was always extremely tight. It was the Minister who was anxious to bring the case on for a final hearing in July, and when that had to be adjourned, in September. The Minister must have recognised, or certainly should have recognised, that the proceedings were a source of real stress for the grandmother, and yet seems to have responded to the expert reports received as an inconvenience which had to be overcome rather than a roadmap which ought to be followed. I do not have any doubt that the application for an adjournment in September was unreasonable, and coupled with the revised approach of the Children's Service in its care plan in August, unamended at the time of the adjournment application, and the daily unannounced visits to the grandmother which the Court has already found were unlikely to have been for her support, amounted in total to unreasonable conduct on the part of the Minister which ought to be reflected in an adverse costs order. Accordingly, I award the grandmother her costs of and incidental to the Minister's application for an adjournment, on the standard basis.
38. As to the costs of the proceedings more generally, I am quite clear that the Minister's conduct has been neither unreasonable nor reprehensible. The Court has found that threshold was passed for the purposes of making both an interim care order, and a final care order or supervision order. These children have been found to be in need of protection and the Minister, in taking steps for their protection has clearly acted in accordance with his statutory obligations. The Minister is correct in my view to say that action was needed in February 2015 because the only person with parental responsibility at that time was the mother, and there was the risk that the mother would have remained with the sole care of the children in circumstances where they were at risk of significant harm. Applying the test in Re T, no order for costs would be appropriate.
39. I have gone on to consider whether or not the test in Re S is met. It seems to me to be very likely indeed that the grandmother would have been in a position to establish that the welfare of the children would be put at significant risk if no order for costs were made. If the result of having to bear her own costs was that the grandmother was forced to sell her property, the children would lose their home. The limited income available to her, coupled with her mortgage arrangements might suggest that this was a real risk; but there is no affidavit of means before me and when I raised with Advocate Corbett the possibility of adjourning the application for the purposes of receiving such evidence, the response was that the whole set of proceedings had been so stressful that it was not in the grandmother's interests to wait any longer. For my part I think this was quite unfortunate because it leaves me in an impossible position. I do not see how I can make an order today that there is a real risk of damage to the children's welfare without the evidence upon which to found such a conclusion. I may suspect that it is so, but on the other hand it is possible that the grandmother has reserves of capital by way of savings which would enable her to meet the legal fees she has incurred, and in that event the criteria in Re S would not have been met. In the circumstances I do not feel able to make a costs order in favour of the grandmother in respect of the rest of the care proceedings and that part of her application is therefore rejected.
40. There is however one further matter which I draw to Advocate Corbett's attention. In Q v Q [2015] 3 All ER 759, Sir James Munby, President of the Family Court, gave judgment involving some unrelated cases in the family Court which raised similar issues for the Court to deal with in a single judgment. Those were private law cases rather than public law cases as is now in point and the President was considering a completely different statutory regime than the one which applies here. Nonetheless, many of his remarks are directly relevant to us too. He accepted, as he was entirely right to do, that the Court had to have regard to Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, and he noted the Family Procedure Rules 2010, which (like ours), set out the "overriding objective" that the Court was to deal with cases justly, having regard to any welfare issues involved. At paragraph 58, his analysis proceeded in this way:-
41. In Q v Q [2014] EWFC 7, [2015] 1 LFR 318, at paragraph 18, Munby P said this:-
42. Munby P was in Q v Q identifying possible arguments, and he was very clear in that in his judgment. He invited the Secretary of State for Justice to intervene, but subsequently received a letter from the Parliamentary Under-Secretary of State for Justice indicating that the Ministry of Justice did not propose to do so in that case. Munby P concluded in Q v Q at paragraph 88 on page 781 in this way:-
43. The statutory regime is quite different in England and Wales, but the underlying sentiments expressed by Munby P are as relevant in Jersey as they are in England and Wales. The Court must have the ability to deliver a just and fair hearing. The legal aid scheme produces what it does. It is a matter of last resort, but the Court already does maintain, through the Judicial Greffier, a reserve fund for ex gratia payments in extraordinary cases. There is already provision for payment to the lawyers acting for the primary carer of the child (usually the mother) as well as for the lawyer acting for the guardian. It seems to me that in this instant case, the Judicial Greffier in the exercise of his discretion may well feel that on the application of the principles ordinarily applied in such cases, he is able to make some payment towards the costs incurred by the grandmother outside those costs which have been awarded above. He may well require some evidence of means from the grandmother to be put before him. It would certainly, in my judgment, be of major significance if the result of the inability to recover costs were to put the welfare of the children at risk, even though Advocate Corbett declined to put such material before me. At all events, that possible route is there for exploration with the Judicial Greffier in the usual way. What makes the instant case very much out of the ordinary is the fact that the grandmother does not qualify for legal aid by virtue of the real property which she owns, and yet her intervention has had the result that she is the primary carer of the children in the future.
