Jersey Unreported Judgments
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URL: http://www.bailii.org/je/cases/UR/2022/2022_105.html
Cite as: [2022] JRC 105
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of CC (Recovery Order) [2022] JRC 105 (10 May 2022) URL: http://www.bailii.org/je/cases/UR/2022/2022_105.html Cite as: [2022] JRC 105 |
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Recovery order - reasons for dismissing the application
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Before : |
J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Ronge and Austin-Vautier |
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Between |
The Minister for Children and Education |
Applicant |
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And |
A (The Mother) |
First Respondent |
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And |
B (The Father) |
Second Respondent |
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And |
CC (The Child) |
Third Respondent |
IN THE MATTER OF CC (RECOVERY ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002.
Advocate P. F. Byrne for the Applicant.
Advocate C. G. Hillier for the First Respondent.
Advocate D. C. Robinson for the Second Respondent.
Advocate M. Godden for the Third Respondent.
judgment
the COMMISSIONER:
1. On the afternoon of the 28th April 2022, the Minister applied for a Recovery Order under Article 45 of the Children (Jersey) Law 2002 ("the Children Law"). Because of the circumstances that transpired during the course of the hearing, the application was dismissed, and we now set out our reasons.
2. By way of background, a final care order was made in respect of the Third Respondent ("CC"), aged 10, on the basis that neither the First Respondent ("the Mother") nor the Second Respondent ("the Father") had the capacity to parent him. He had been living with the Father and the care plan was for him to be placed with long term foster parents. The full background and reasons for the making of the care order are contained in the Court's judgment of 20th September In the matter of CC (Care proceedings) [2021] JRC 232.
3. That care plan did not materialise, with CC's placements with the foster carers breaking down. He was therefore placed by the Minister at Home 1 [redacted] where he still resides. [Redacted].
4. [Redacted]
5. The catalyst for the application for a Recovery Order is that CC ran away from Home 1 on 15th April 2022 to a private residence and refused to return to Home 1 despite every effort to persuade him to do so. His presence at the place the place he ran away to was detrimental to the welfare of other children there, and his behaviour generally problematic. [Redacted].
6. The chronology in the statement of Q, the team manager in the Children In Care Team, shows that CC has left Home 1 on previous occasions, [redacted]. He is aware and will vocalise that no member of staff nor the Mother can touch him or make him leave the place where he attends. He is apparently aware that he cannot be moved from there unless the police have a Recovery Order and he thinks that such an order is only valid for one time use. He is also aware that an Emergency Protection Order cannot be used to return him to the care of the Minister at Home 1, as he is not seen to be at immediate risk of harm in the other property.
7. The evidence of Q is that CC appears to want to control his environment and dominate when he can. He is becoming more defensive, with a much higher propensity to engage in defiant behaviours, as well as aggressive exchanges with professionals, who he increasingly sees as without power or influence and not worthy of trust or respect. His absconding heightens the risk of this becoming learnt behaviour and is reinforcing his perception that no-one can stop him from doing what he wants to do.
8. Article 45(1) of the Children Law provides as follows:
9. Article 44(a) provides:
10. CC is a child so described in that he is in care, but we are not concerned here with abduction, but with his running away from Home 1 to a private residence.
11. As to the effect of a Recovery Order Article 45(2) provides:
12. It might be argued that Article 45(2)(d) only authorizes the use of reasonable force to enter premises where a child is believed to be and to search for the child, but not to remove the child. The English court construing equivalent legislation held in the case of Re R (a Minor) (Recovery Order) [1998] 3 FCR 321, that when the Recovery Order is made the use of reasonable force authorized by the order is not limited to the process of entering the premises and searching for the child, but necessarily extended to the removal of the child. As Wall J said at page 15, and we respectfully agree, if a police officer is entitled to enter premises by using force, it would negate the whole purpose of any order if the child were to refuse to accompany the police officer and the police officer could not use reasonable force to remove the child. Quoting from the judgment:
13. Article 45(3) provides that a Recovery Order can only be made on the application of any person who has parental responsibility by virtue of a care order, and the Minister therefore has standing to make the application.
14. The Minister recognised that once removed and returned to Home 1 under a Recovery Order, CC could simply run away again to the same place where he was previously. He appears to think that the Minister would then have to make another application to the Court convening the requisite parties. The Minister therefore sought to have the duration of the Recovery Order extended beyond the immediate recovery of CC, to future recoveries should CC return again to the same place. To ensure no abuse of process the order would be limited in time to seven days.
15. Advocate Byrne argued that the Children Law provided no prohibition in respect of this approach and in practical terms it would give effect to the clear and obvious intention behind the Recovery Order; to ensure that CC is cared for in accordance with the Children Law. The absence of providing a time limited ability to repeat the recovery under the existing order would be to enable him to continue living outside the care of the Minister until the matter could be returned once again to the Court and the process repeated again ad infinitum. In effect, the application would be easily overcome, frustrating the efforts of all concerned and re-enforcing CC's sense of empowerment, which in itself would cause harm.
16. There is little authority on the duration of a Recovery Order. In Re P ( Adoption: Breach of care plan) [2004] EWCA Civ 355, reference was made in paragraph 7 to a local authority having to apply for successive Recovery Orders against a father withholding a child after contact.
17. Hershman and McFarlane: Children Law and Practice states at paragraph 761:
18. No authority is cited to support this. The Judicial College Family Court Bench Book states at paragraph 40:
19. There is no local authority, but Advocate Byrne referred to the following extract from a file and parties only judgment:
20. Advocate Byrne very properly drew to our attention that it is the wording of Article 45(d) itself which arguably creates the greatest hurdle to the Court making the kind of extended order he was seeking namely to authorise future recoveries, albeit over a relatively short period. We are dealing here with authorising the use of force and when making a Recovery Order the Court has to have reasonable grounds for believing that the child "is on the premises specified" (our emphasis) not may in the future be on the premises specified. The Court makes the order on the basis of the circumstances prevailing at the time the order is applied for, not circumstances that may arise in the future which may be different. There might be good reason why the child has on some future occasion gone to such premises.
21. Advocate Hillier for the Mother supported the making of the kind of extended order sought by the Minister. Both Advocates Robinson and Godden submitted that the Court had no power to do so. The short hearing had taken place at a day's notice and it was not possible, therefore, to have the matter fully argued.
22. Advocate Godden was appointed to represent CC, and he had spoken to the Guardian appointed in the earlier proceedings who had in turn spoken to CC. He was reported to have been very abusive to her, using appalling language. He said he had his rights and no one could tell him what to do.
23. CC had indicated earlier on the day of the hearing and that he would return to Home 1 at around 3pm when a social worker (unconnected to his case) would be visiting him. There was no certainty that he would do this, but at around 3:55pm the Court was informed that he had in fact returned to Home 1. All counsel submitted that this removed the jurisdiction of the Court to make any Recovery Order as the Court no longer had reasonable grounds for believing that he was at the place he had run away to. CC was reported as saying that he was going to play with his PlayStation and have macaroni cheese for supper, but as Advocate Hillier pointed out somewhat ruefully, CC could return to the place where he had run away to at any point and that is precisely what he did the next day.
24. The Court was very sympathetic to the extended order that had been sought by the Minister. It cannot be right that a ten-year-old can manipulate the professionals and the Court in this way. It was important for him to learn that whilst he has rights, there are boundaries that he will not be permitted to cross, and ultimately, and as a last resort, the Court will authorise the use of reasonable force to enforce those boundaries. It was not for CC to decide where he should live and, difficult as the circumstances were, it was not possible for him to live where he wished to.
25. We will leave open for fuller argument on another occasion whether in the circumstances of repeated running away from the Minister's care to the same place, an extended order of the kind sought by the Minister could properly be made, but because at the point when the Court was about to make a Recovery Order, he had in fact returned and in the light of the unanimous view of counsel that the Court therefore lacked jurisdiction to make a Recovery Order, the application was dismissed.
26. Advocate Byrne drew our attention to Rule 8 of the Children Rules 2005:
27. In the circumstances of repeated running away, it would therefore be open to the Minister to apply for another Recovery Order ex parte and for that order to be made without convening another hearing. It would, of course, be a matter for the Judge in receipt of the ex parte application to decide on the basis of the information provided, but in our view, where there had been a recent hearing in which the child had been represented, and his views and feelings were known, and where the circumstances were the same, the granting of an order ex parte could well be justified. That may assist the Minister and the Mother, but we accept that it would not prevent repeated running away and recoveries.
28. Advocate Robinson emphasised the importance of CC being involved in any proceedings concerning him, a point emphasised in Re R at page 18, but in that case R (who was aged 13), had not been represented at the hearing. The Court found in any event that R's wishes and feelings had been fully taken into account. We note, in passing, what Wall J said at page 18, namely:
29. CC clearly has the impression that he is the sole master of his fate. In this case, CC was represented at the hearing and his feelings were communicated to the Court. If on repeated running away to the Mother's home the circumstances remain the same, we can see no injustice in a Recovery Order being made ex parte, but that will be a matter for the Judge receiving the ex parte application.