Care proceedings - reasons for setting aside the orders for psychological
assessment of the parents and children
[2019]JRC006
Royal Court
(Samedi)
21 January 2019
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Before :
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J. A. Clyde-Smith, Esq., Commissioner, sitting
alone
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Between
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The Minister for Health and Social Services
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Applicant
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And
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A (the mother)
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First Respondent
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And
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B (the father)
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Second Respondent
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IN THE MATTER OF BAILEY, ELLIS, VIOLET
AND ELLIOTT (THE CHILDREN) (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDREN
(JERSEY) LAW, 2002
P. F. Byrne Esq., Crown Advocate for the Minister.
Advocate D. C. Robinson for the Mother.
Advocate R. S. Tremoceiro for the Father.
judgment
the Commissioner:
1.
I sat on
the 13th December, 2018, to consider whether on 30th
November, 2018, the Court had jurisdiction to order assessments of the children
when it had found that the threshold criteria had not been met. The reasons for the Court finding that
the threshold criteria had not been met are set out in the oral judgment of the
Court In the matter of Bailey, Ellis, Violet and Elliott (Care proceedings)
[2018] JRC 239. The Court declined
to make the interim care order sought by the Minister, and his application for
a care order was adjourned.
2.
All four
children, aged two to seven years of age, had been removed from the care of
their parents on 16th November, 2018, and the focus of the Court and
of the parties on the 30th November, 2018, was on whether the
threshold criteria was met, and, if so, whether the care plans of the Minister
for their continued removal, pending assessments, should be approved. The Court said that if it was wrong in
not finding the threshold criteria met, it would not have approved the care
plans as in its view, the continued removal of these children from the care of
their parents was neither proportionate nor necessary.
3.
There was
no issue over the assessments sought by the Minister, namely a psychological
assessment of the parents and the children to include an assessment of their
relationship, an assessment of the parenting capacities jointly and separately
of the parents with and without support and an assessment of the
children's needs. Those
assessments were ordered by the Court unopposed.
4.
Shortly
thereafter, counsel for the Minister questioned whether the Court had the
jurisdiction to order assessments of the children when it had found that the
threshold criteria had not been met, and I sat alone to consider that issue of
law. All three counsel were agreed
that the Court did not have the jurisdiction to do so for the reasons which
follow.
5.
Article 30
of the Children (Jersey) Law 2002 ("the Children Law") in
material part provides:-
"30 Interim care and supervision orders
(1) The
court may make an interim care order or an interim supervision order where, in
relation to the child concerned, it -
(a) Adjourns
any application for a care order or a supervision order; or
(b) Gives
a direction under Article 29(1),
provided that it is satisfied that
there are reasonable grounds for believing that the circumstances with respect
to that child are mentioned in Article 24(2)."
6.
Article
24(2) of the Children Law provides:-
"(2) The court may only make a care order or supervision
order if it is satisfied-
(a) that
the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that
the harm, or likelihood of harm, is attributable to -
(i) the
care given to the child, or likely to be given to the child if the order were
not made, not being what it would be reasonable to expect a parent to give the
child, or
(ii) the child's being beyond
parental control."
7.
It is
clear, therefore, that the threshold conditions set out in Article 30 are a
necessary condition for the making of an interim care order or an interim
supervision order.
8.
An interim
care order once made has a similar effect as a care order, subject only to the
duration of the order and the Court's powers to make directions (see the
definition of "Care order" in Article 1 of
the Children Law).
9.
Article
30(4) of the Children Law goes on to provide that:-
"Where the court makes an
interim care order or interim supervision order it may give such directions (if
any) as it considers appropriate with respect to the medical or psychiatric
examination or other assessment of the child having regard to his or her
wishes".
10. Thus, the jurisdiction to direct such
examination or assessment of a child is expressly provided for within the
Children Law, and is contingent on the making of an interim care or interim
supervision order, and of course, the finding of the threshold under Article
30. The point is emphasised in Hershman
and McFarlane: Children Law and Practice at paragraph 1454:-
"It must be stressed that the
power to include a direction for medical or psychiatric examination or other
assessment, on making an interim care order or supervision order, arises from CA
1989, s 38 [Article 30 of the Law]..."
11. It is helpful to be reminded of the role of the
State in the care of children and the grounds upon which it can intervene in
family life. Quoting from this
well-known passage from the judgment of Hedley J in Re L (Care: Threshold
Criteria) [2007] 1 FLR 2050:-
"50 ..... Basically it is
the tradition of the United Kingdom, recognised in law, that children are best
brought up within natural families.
Lord Templeman, in Re: KD (a minor ward) (termination of access)
[1988] 1 AC806, at page 812 said this:-
"The best person to bring up
a child is the natural parent. It
matters not whether the parent is wise or foolish, rich or poor, educated or
illiterate, provided the child's moral and physical health are not in
danger. Public authorities cannot
improve on nature."
There are those who may regard that
last sentence as controversial but undoubtedly it represents the present state
of the law in determining the starting point. It follows inexorably from that,
that society must be willing to tolerate very diverse standards of parenting,
including the eccentric, the barely adequate and the inconsistent. It follows too that children will
inevitably have both very different experiences of parenting and very unequal
consequences flowing from it. It
means that some children will experience disadvantage and harm, whilst others
flourish in atmospheres of loving security and emotional stability. These are the consequences of our
fallible humanity and it is not the provenance of the State to spare children
all the consequences of defective parenting. In any event, it simply could not be
done."
12. He then went on to say at paragraph 51:-
"That is not, however, to say
that the State has no role, as the Children Act 19890 fully demonstrates. Nevertheless, that Act, wide ranging
though the court's and social service' powers may be, is to be
operated in the context of the policy I have sought to describe. Its essence, in Part III of the Act, is
the concept of working in partnership with families who have children in
need. Only exceptionally should the
State intervene with compulsive powers and then only when a court is satisfied
that the significant harm criteria in Section 31(2) is made out. Such an approach is clearly consistent
with Article 8 of the European Convention on Human Rights. Article 8(1) declares a right of privacy
of family life but it is not an unqualified right. Article 8(2) specifies circumstances in
which the State may lawfully infringe that right. In my judgment Article 8(2) and Section
31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to
attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent
of complication and difficulty that human beings manage to introduce into
family life. Significant harm is
fact specific and must retain the breadth of meaning that human fallibility may
require of it. Moreover, the Court
recognises, as Lord Nichols pointed out in H & R that the threshold may be
comparatively low. However, it is
clear that it must be something unusual; at least something more than the
commonplace human failure or inadequacy."
13. The role of Article 8 of the European
Convention on Human Rights on determining threshold was considered by the
Supreme Court in the case of In the matter of B (a child) [2013] UKSC 33, where Lord Neuberger said
this at paragraph 62:-
"62 Whether article 8 of the European Convention
on Human rights ("the Convention") has a part to play in relation
to the threshold seems to me to be rather an arid issue: the important point is
that the court acknowledges that no substantive order is made without all
Convention rights being taken into account. Having said that, I consider that
article 8 of the Convention ("article 8") has no part to play in
deciding whether the threshold is crossed, although it obviously comes very
much into play when considering the issue of whether to make a care order. The threshold merely represents a hurdle
which has to be crossed before the court can go on to consider whether to make
a substantive order - i.e. an order which actually has an effect on a
child and her parents (and sometimes on others). It is, of course, common ground that the
court must consider any Convention rights before deciding whether to make a
substantive order."
14. Ordering a psychological assessment of these
four children and their relationship with their parents constitutes a
substantive order. The threshold
criteria in Article 30 had not been met and so it follows that the Court has no
jurisdiction to intervene in this family's life in this way.
15. The Court does have an inherent jurisdiction
which pre-dated the introduction of the Children Law, as recognised by the
Court in W v X [2014] JRC 150, where the Court said at paragraph 32:-
"The Court has long had an
inherent jurisdiction to make orders (including on an ex parte basis) for the
welfare of children. The
jurisdiction pre-dates the introduction of the Children Law .... The
Children Law does exclude that inherent jurisdiction in certain specified circumstances
but, by implication, the inherent jurisdiction continues save where excluded
expressly or by necessary implication."
16. Thus, Article 76 of the Children Law provides
as follows:-
"76 Restriction on Court's Inherent
Jurisdiction
The court shall not exercise its
inherent jurisdiction in respect of children:-
(a) so
as to require a child to be placed in care or put under the supervision of the
Minister;
(b) so
as to require a child to be accommodated by or on behalf of the Minister; or
(c) for
the purpose of conferring on the Minister power to determine any question which
has arisen, or which may arise, in connection with any aspect of parental
responsibility for a child."
17. The Court's inherent jurisdiction may be
used for the welfare of children, but given that its use excludes the making of
a care order, which includes an interim care order, the ordering of an
assessment that would flow from the making of an interim care order must also
be restricted.
18. There are a number of other provisions which
require comment:-
(i)
Article
29(1) of the Children Law provides:-
"(1) Where, in any family proceedings in which a
question arises with respect to the welfare of any child, it appears to the
court that it may be appropriate for a care or supervision order to be made with
respect to the child, the court may direct the Minister to undertake an
investigation of the child's circumstances"
This authorises the Minister to investigate
the circumstances of children, not to have them psychologically assessed, and
only arises if it appears to the Court that it may be appropriate for care
order or a supervision order to be made.
If such a direction is made, the Court has the power under Article
30(1)(b) to make an interim care order or an interim supervision order of its
own volition, but only, of course, if the threshold criteria in Article 30(1)
is met.
(ii) The Court has the power to make a child
assessment order under Article 36(1) of the Children Law:-
"36 Child assessment orders
(1) The
court may, on the application of the Minister, make a child assessment order
authorising any person carrying out the assessment or any part of the
assessment to do so in accordance with the order, provided that it is satisfied
that -
(a) The
Minister has reasonable cause to suspect that the child is suffering, or is
likely to suffer, significant harm;
(b) An
assessment of the state of the child's health or development, or of the
way in which the child has been treated, is required to enable the Minister to
determine whether or not the child is suffering, or is likely to suffer,
significant harm; and
(c) It
is unlikely that such an assessment will be made, or be satisfactory, in the
absence of an order under this Article.
(2) The
court may treat an application under this Article as an application for an
emergency protection order.
(3) The
court shall not make a child assessment order if it is satisfied-
(a) That
there are grounds for making an emergency protection order with respect to the
child; and
(b) That
it ought to make such an order rather than a child assessment order."
The assessments ordered by the Court in
this case were not ordered pursuant to an application by the Minister under
Article 36(1), but with the Court finding that the threshold criteria is not
met, there can no longer be reasonable cause to suspect that the children were
suffering or likely to suffer significant harm. Furthermore, under Article 36(2), the
Court is invited to treat such an application as an application for an emergency
protection order, which requires the Bailiff to be satisfied that there is no
reasonable cause to believe that the children are likely to suffer significant
harm.
(iii) Paragraph (2) of Rule 13 of the Children Rules
2005 provides:-
(2) The
Court in any proceedings may, of its own motion or on the written request of
any party in Form C2, give, vary or revoke directions for the conduct of the
proceedings, including -
·
the
timetable for the proceedings;
·
varying
the time within which or by which an act is required, by these rules or by
other Rules of Court, to be done;
·
the
attendance of the child;
·
the
appointment of a person under Article 75;
·
the
service of documents;
·
the
submission of evidence, including experts' reports;
·
the
preparation of welfare reports under Article 9;
·
consolidation
with other proceedings,
and the power of the Court under
this paragraph includes a power to make interim orders and orders as to
costs." (My emphasis)
19. These powers, and in particular the power to
give directions over the submission of evidence, including experts'
reports, relate to the conduct of the proceedings, and pre-suppose the
jurisdiction of the Court to order an assessment of the child by an
expert. This provision does not
vest in the Court jurisdiction to make a substantive order for a child to be
assessed by an expert, where the threshold criteria has not been met.
Conclusion
20. In conclusion, I was not satisfied that the
Court did have the jurisdiction to order a psychological assessment of these
four children and the order was set aside.
21. In so far as the parents are concerned, they
did not oppose the order that they should also be psychologically assessed,
because they assumed the jurisdiction of the Court to make such an order. There is no provision in the Children
Law for the ordering of assessments of adults in recognition, presumably, that
adults cannot be coerced to engage in such an exercise. In the circumstances of this case, it
was right, therefore, to set aside the psychological assessment orders as
against them.
Authorities
In
the matter of Bailey, Ellis, Violet and Elliott (Care proceedings) [2018] JRC 239.
Children (Jersey) Law 2002.
Hershman and McFarlane: Children Law
and Practice.
Re L (Care:
Threshold Criteria) [2007] 1 FLR 2050.
In the matter of B (a
child) [2013] UKSC 33.
W
v X [2014] JRC 150
