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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Representation of B [2010] JRC 150 (17 August 2010) URL: http://www.bailii.org/je/cases/UR/2010/2010_150.html Cite as: [2010] JRC 150 |
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[2010]JRC150
royal court
(Samedi Division)
17th August 2010
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone. |
IN THE MATTER OF THE CHILDREN(JERSEY) LAW 2002
AND IN THE MATTER OF B (SEPARATE REPRESENTATION OF MINORS)
Advocate T. V. R. Hanson for the Guardian.
Advocate E. M. Hollywood for the Minister for Health and Social Services.
judgment
the deputy bailiff:
Preliminary
1. On 30th April, 2010, the Royal Court received an application by the Minister for Health and Social Services for an interim care order under Article 30 of the Children (Jersey) Law 2002 ("the 2002 Law"), placing the child under the care of the Minister for a period of eight weeks. The Court directed that the child should be made a party to the proceedings pursuant to Rule 10(6) of the Children (Jersey) Rules 2005 ("the 2005 Rules"), and appointed a representative of a UK based Children's organisation as guardian in respect of the child. The Court was asked to appoint Advocate Hanson as legal representative for the child but on that occasion declined to do so, making it plain that the question of legal representation for the child would be reconsidered if the Guardian felt that that was necessary. The Court gave a number of other directions, some of which are not relevant for the purposes of today's application, but one of them included the direction that the parties identify a suitable expert with a view to preparing an updated psychological report on the mother.
2. The background circumstances need to be stated briefly, namely that there were earlier separate proceedings concluded in 2009 in relation to two of B's sibling groups where full care orders were made and this particular mother was adjudged to be unable to provide adequate care for any of those children. It does not follow, of course, that by virtue of that finding by this Court in 2009, it is inevitable that a full care order will be made in respect of the most recent child of the mother, who was born in April 2010. That issue cannot be, and has not been, prejudged. Nonetheless the circumstances around the previous proceedings give an indication as to the likely scope of the argument in relation to the child recently born, and indeed are extensively referred to in the Minister's application for an interim care order wherein it is asserted that there were reasonable grounds under Article 30 of the Law to suspect that the circumstances with respect to the child are those referred to in Article 24(2) of the Law.
3. On 24th May, 2010, one of the managers of the Guardian wrote to the Deputy Judicial Greffier to ask the Court to reconsider its decision not to appoint a lawyer. The letter stresses that the lawyer acts for the child but also argues that the Guardian needs a lawyer to be appointed. In its material parts, the letter reads:
"Firstly, I think it important to understand that a lawyer is not appointed to the Guardian and therefore the Guardian is not the one who benefits from legal representation, although they benefit from [sic] legal advice. The lawyer is appointed to represent the child, and work alongside the Guardian in the situation where a child is, for whatever reason, unable to instruct themselves.
I understand from [the guardian] that the child was made party to the proceedings and therefore I believe has to have legal representation. I understand that there is case law that supports this.
Fundamentally, I believe this is an issue of the rights of this child to legal representation and we would therefore not wish to deny this child its legal right. The arguments of proportionality and costs, whilst needing consideration should not override the rights of this child for representation. It cannot also be right that lawyers and professionals can decide on this child's future without the child having full access to representation themselves. The guardian is an experienced and expert professional, not trained in law and needs the support and advice of a legal expert to ensure this child's welfare and interest are best served. Without legal representation the guardian is in effect "hamstrung" and unable to undertake their role.
I have also heard that this case is "straightforward", again I cannot think this is a valid reason for denying the child representation, if this was the case then why have all other interested parties legal representation.
I would therefore respectfully request the Court to appoint a legal representative for the child in this case."
4. When I became aware of this letter, I directed that a hearing should take place if the Guardian wished these matters to be ventilated in Court, and that legal representation would be made available to the Guardian out of public funds for this purpose. That application has now been made by Advocate Hanson. I think he cannot at present be described as lawyer for the child, because at the time of the application no such lawyer had been appointed, but whether he is acting for the Guardian, or bringing the matter forward as one of public interest as amicus curiae seems to me to be of little importance.
Thus the issue before me on 21st June was whether to appoint a lawyer for the child B. I did appoint Advocate Hanson on that day and I reserved my reasons, which I now give. I have appointed a lawyer (Advocate Hanson) because I was informed by him and by the Minister that the appointed Guardian was not in fact undertaking her duties in the absence of a lawyer for the child, apparently on the instructions of her line manager. I understand this approach to this extent, namely that the relevant organisation is familiar with UK law and practice and may be uncomfortable with any other system. However, as I will elaborate later in this judgment, the statutory regime in Jersey is different and it is our legislation that should drive domestic practice.
Given that a decision on the best arrangements to be made in the interests of B should not be delayed, and therefore, by way of example progress should be made with obtaining the relevant reports, including the updated psychological report on the mother, ordered on 30th April, I have exercised my discretion in this case to appoint a lawyer for B.
In doing so, I have applied the principles set out below, which will govern the Court's approach to these matters in the future. In particular it is desirable to set out some reasoning about the practice which has developed over the last two years in these public law cases. That practice has been, on the granting of an interim care order, for the Minister routinely to ask the Court to order and for the Court to order:-
i) That the child be made a party to the proceedings;
ii) That a guardian be appointed for the child;
iii) That a lawyer be appointed for the child.
I turn first to the statutory regime in Jersey.
The 2002 Law
5. Article 75 of the 2002 Law provides as follows:-
6. I will return to the question of costs and financial considerations later in this judgment but it is important to emphasise immediately that the language of Article 75 confers a discretion upon the Court.
7. As was contended by Advocate Hanson, the 2002 Law was based upon the Children Act 1989 ("the 1989 Act"). However, as he said, there are significant differences between the two statutes. Indeed Article 75 is itself not in the same terms as Section 41 of the 1989 Act, which contains related, but not identical provisions.
8. Before leaving the 2002 Law I also take note of the fact that it also requires that the views of the child should be ascertained.
9. Article 2(3) of the 2002 Law provides:-
Article 2(4) of the 2002 Law provides:-
The 1989 Act
10. Although the material parts of Article 2 are drawn from comparable provisions in section 1 of the 1989 Act, Section 41 of that Act is in different terms. In its material parts, the section provides:-
11. It is clear from the 1989 Act that the legislature in the United Kingdom adopted a tandem approach to the representation of children's interests in public law matters. As Sir Thomas Bingham MR said in Re S (A Minor) (Independent Representation) [1993] 2 FLR 437 at page 440:-
12. Having considered the rules which prohibit minors from bringing proceedings, and the procedural rules for the appointment of guardians ad litem Sir Thomas Bingham MR went on:-
13. Rule 4.11A of the Family Proceedings Rules 1991 in its material parts for these purposes provides:-
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 New Zealand Position
15. The Court was referred to Mabon-v-Mabon [2005] 2 FLR 1011 at page 1018, a private law case involving the appointment of a solicitor for three teenage children, which is quite different from what I am dealing with here, but I note in passing that the Court of Appeal refers to the position in New Zealand and in particular Sections 6 and 7 of the Care of Children Act 2004 which came into force in New Zealand on 1st July, 2005. By Section 6, provision is made for a child to have reasonable opportunities to express views on matters affecting the child which are the subject of the section. By Section 7:-
16. The Court of Appeal in Mabon described this provision as an almost automatic provision of direct representation and participation in the proceedings and commented that the case provides a timely opportunity to recognise the growing acknowledgment of the autonomy and consequential rights of children, both nationally and internationally. I note however that we do not have any statutory equivalent to section 7(2) of the New Zealand statute.
Joining the child to the proceedings
17. As I have said, it has become common place over the last two years to make the child a party to the proceedings. I am not aware of any reasoned decision of the Royal Court in this respect and it seems to me it would be helpful to address the issue in more detail as a preliminary to considering the question of legal representation.
18. As to the basis for following this course, I was referred to the case of L-v-L (Minors) (Separate Representation) [1994] 1 FLR 156, a decision of the Court of Appeal in England and Wales. This was a private law case where what was at issue was the most appropriate way in which the views of children might be presented to the court seized with the decision as to their future. The children in that case were aged 14, 12 and 9 and the court welfare officer formed the view she could not adequately present their views to the court and that they should be separately represented. Butler-Sloss LJ described this conclusion as very significant and her next comment, given her great experience of these matters was (page 160, line 9).
A review of that case shows that the decision was based in part upon the Rules of the Supreme Court Order 80 rule 2, the terms of which are not entirely replicated in Rule 4/2 of the Royal Court Rules, and also upon the invariable practice that in matrimonial proceedings prior to the 1989 Act, where children were separately represented, they were to join as parties. The case thus turns upon a detailed construction of the practice and different rules of court in England and Wales at the time and does not establish any general principle that is relevant to public law children proceedings in Jersey, other perhaps than to emphasise that the procedure to be adopted is the servant of the substance which is to be achieved, namely the delivery of justice in the most suitable manner.
19. Rule 10 of the Children Rules 2005 ("the Rules") provides at paragraph (1) that the respondents to proceedings shall be those persons set out in the relevant entry in the third column of Schedule 1. That Schedule does not provide for the child to be made a respondent to the proceedings. If the child is to be joined therefore he or she must be joined pursuant to paragraph (6) of Rule 10 which is in these terms:-
20. It is clear therefore that the Rules do not contemplate that the automatic joinder of the child as a party to the proceedings. This is markedly different from the Family Proceedings Rules 1991 in England and Wales which at Rule 4.7(1) and Appendix 3 require that the child is a party to specified proceedings which include applications for a care or supervision order.
21. Although the UK has signed and ratified the UN Convention on the Rights of the Child Jersey has not yet had the Convention ratified on its behalf. If it were to be ratified, the Court would be required to read domestic law and practice to the fullest extent as compatible with the international obligations which the Island had thereby incurred through the United Kingdom - see Benest-v-Le Maistre [1998] JLR 213. If therefore the Convention is ratified, argument may be necessary - indeed the cost implications, which the Minister will presumably have to consider carefully before urging that the Convention be ratified on account of Jersey, at all events without reservations of any kind in this respect, are such that it would be desirable to have a contested argument - on the impact of Article 9, which in its material paragraphs for these purposes provides as follows:-
22. In public law cases in England and Wales, the child participates because s/he is convened as a party. The question which would arise is whether any other form of participation is sufficient to meet the requirements of the Convention, but I do not have to consider that further today, because no such ratification has taken place.
23. It was implied in the submissions made to me that it is necessary for the child to be joined as a party to the proceedings as a result of the impact of the Human Rights (Jersey) Law 2000 ("the Human Rights Law"). This argument would seem to be based upon the proposition that the Human Rights Law gives effect to the European Convention on Human Rights in the domestic law of the Island, and in particular therefore gives effect to the Article 6 right to a fair trial insofar as the Court will determine the civil rights and obligations of the child who is thereby entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The right is qualified in the case of children by the ability to exclude the press and the public where the interests of the child so require, but it is nonetheless expected that judgment should be pronounced publicly. Although I was not addressed in any detail on this argument, it would seem that it is based upon the proposition that the child's Article 8 right to respect for private and family life is engaged as is the child's Article 10 right to freedom of expression, which includes the right not only to hold opinions but also to receive and impart information and ideas, which would of course include the child's views on the proposals which were before the Court, and which, depending upon the age of the child, the Court is required to take into account pursuant to Article 2 of the 2002 Law. The other approach might be to say that because the Court has to act in a convention compliant way pursuant to Article 7(1) of the Human Rights Law, it must give the child the protection of Article 6 in relation to a judicial decision which will have an impact upon the child.
24. It does not seem to me that these questions necessarily drive a requirement to join the child as a party to the proceedings. In my judgment, that would not be a proportionate approach to the problem. The first issue is to identify whether the disposal of the Minister's application is a disposal of a civil right of the child. That requires an analysis of what the substance of the case is about. Mr Hanson suggests it is plainly the potential removal of the child from his or her parents which engages the Article 8 Convention right. That is a possible but not a necessary implication of the application. The substance of the dispute between the Minister and those with parental responsibility is whether the Court should authorise the removal of or interference with that parental responsibility. If parental responsibility is removed from the parents, the Minister may or may not remove the child from the physical care of one or both parent(s). If parental responsibility is not so removed, the parents may or may not deliver the child to the Minister on a voluntary basis for care by a foster parent. In my judgment, this demonstrates that the question of who has the physical care of the child is not the substance of the dispute. It is true that in order to resolve the issue of parental responsibility, the Court must have regard to the best interests of the child and if a care order is made must consider the Minister's proposals for contact. However, in resolving those interests, the Court does not determine the civil rights of the child because they are not the substance of the dispute; but the Article 8 rights of the child are engaged and are to be taken into account collaterally because the Court as a convention compliant body must act in a convention compliant way. The 2002 Law is framed in such a way as to ensure this happens inter alia because of the directions it contains on the application of the welfare test which goes to the type of considerations which could make the interference with the Article 8 right proportionate in accordance with Article 8(2). Respect for the Article 8 rights carries with it the requirement that the Court is alert to procedural implications which might, if disregarded, impact on those rights - see for example W-v-United Kingdom (1988) 10 EHRR 29. This does not necessarily mean the child must be joined as a party. I respectfully agree with Hedley J in The Local Authority-v-the Mother, the Father, and M & M by their guardian [2009] EWHC 3172 (Fam), a very different sort of case, which concerned an application to remove the father as a party to the care proceedings on the grounds he might use them to ascertain the whereabouts of and be a danger to the mother, when he said at paragraph 24:-
The distinction lies in the need for the children to have their future determined in proceedings which are procedurally fair, while the parents have a right, subject to judicial control, of direct participation. Accordingly, the question as to whether a child should be joined as a party to proceedings having regard to the possibility that the convention rights of that child may be affected by the Court's decision is one which will be decided on a case by case basis, having regard to a number of factors, the most relevant of which will be the age of the child, the ability of the child welfare officer or person appointed under Article 75(1)(b) to represent the child's views and interests to the court, and the extent to which the existing parties to the proceedings will be able by the nature of their own participation to give effect to the convention rights of the child if s/he is not joined. This last point perhaps may best be illustrated by a line of Jersey authority in deportation cases, and is also supported by practice in England and Wales in Hague Convention child abduction cases and by other private law cases.
25. As to the deportation cases, in AG-v-Benyoucef [2008] JRC 157 the Royal Court was faced with the question as to whether or not it should join a guardian of the two eldest children of the accused in the context of a recommendation for the accused's deportation, in order that submissions might be made to the Court on behalf of the children. Advocate Hanson, who was making that application, argued that the children were directly involved because their Article 8 Convention Rights were in play, and the children would be directly affected by a decision to make a recommendation for deportation. Giving judgment, Birt DB said this:-
26. The Court indicated that it reached that conclusion with some reluctance. The issue was considered by the Court of Appeal in De Gouveia-v-AG [2009] JLR 169. In that case, the Appellant had been the subject of a recommendation for deportation in the Royal Court, and sought to appeal against that recommendation upon the basis, inter alia, that the Royal Court had not heard separate submissions on behalf of his family in accordance with the Court's judgment in Benyoucef. At paragraph 41 of its judgment, the Court of Appeal disagreed with the Royal Court's approach in Benyoucef on a number of grounds. A significant reason for the departure was that in criminal trials the parties are usually limited to the Crown and the defendants. If the Article 8 rights in relation to recommendations for deportation could only be vindicated adequately by representations made by members of the offender's family, the Court of Appeal found it difficult to see why other aspects of the sentencing process, for example the decision as to whether or not to pass a sentence of imprisonment, would not also fall into the same category, thereby leading to the conclusion that the children should be joined as parties to the prosecution for the purposes of addressing the Court on the impact upon them of a custodial sentence imposed on the accused. The Court of Appeal also had regard to the fact that the interests of the children or indeed any other member of the offender's family wishing to oppose the making of the recommendation for deportation would usually coincide with the interests of the offender in opposing the recommendation. At paragraph 42 the Court of Appeal concluded in this way:-
27. In this way, the Court of Appeal have established that although the convention rights of others close to the offender, including perhaps the offender's children, may be affected by the sentence which is to be imposed, or the deportation recommendation which is to be made, there is no automatic right for them to be convened as parties, although it is possible for such an application to be made.
28. Secondly, the practice in England and Wales in child abduction cases under the Hague Convention is for a starting assumption not to join the child to the proceedings. The Court has a discretion to exercise on a case by case basis as to whether or not the children should be joined as parties to the application. It could not possibly be argued that the children were not directly affected by the matter which the parties, usually the two parents, were litigating before the Court - because the child's place of residence would be determined by the order the Court was asked to make to give effect to the convention. Nonetheless, the practice in England and Wales, which may as a matter of judicial policy be resource influenced, shows clearly that there is no obligation as a matter of law to join the child to the proceedings as a party.
29. It is not just in child abduction cases that the issue fails to be considered. In every matrimonial case where there is a dispute between the parties as to where the child should live or with whom or as to the frequency of contact, the child's best interests are to be determined. It is true that there is no interference by the State in most private law cases, but the Court is a public institution which is required to act in a convention compliant way and thus the Article 8 rights of the child are collaterally engaged. Nonetheless, the Court is not required under Article 6 of the Convention to join the child to the proceedings as a party so that it can advance his or her Convention rights. It may on some occasions be right to do so as in the case of L-v-L (Minors) (Separate Representation) referred to above. However, there is no general principle that the Court should do so. The protection is introduced through the obtaining of a report from the child welfare officer.
30. Consideration of other practice and procedure before the Royal Court also suggests that there is no requirement under the Human Rights Law to join the child as a party to the proceedings. The Court makes orders at a Visite Royale on the application of the parish, which is a public body, and in the absence of land owners who are not at that stage parties to the proceedings but whose rights under Article 1 of Protocol 1 are potentially affected by the Court's orders. That is generally accepted to be a convention compliant process because part of the order is the liberty to apply which enables the land owner to apply to the Court to have the order set aside. Another illustration would be in planning appeals where the decision of the Minister in relation to a planning application might be thought to engage the Article 1 Protocol 1 property rights of such of the owner's neighbours who have made representations objecting to the planning application. Nonetheless they are not convened as parties to the owner's appeal against the Minister's decision if the owner determines to exercise a statutory right of appeal. Even where third parties exercise their rights of appeal in planning matters, the owner is not necessarily joined to the proceedings although he is certainly given notice of them and he may participate if he wishes. All these illustrations show that the Human Rights Law does not require, as a matter of law, that those whose convention rights may be affected by the decision which the Court is required to take on the issue before it, necessarily have the right to be joined as parties to the proceedings, nor do they show that the Court has any form of obligation to join such persons to the proceedings. Indeed it would not be proportionate to establish such a general rule, and would impact very adversely upon the Court's ability to deal with the matters which were before it and the cost and time of doing so.
31. Advocate Hanson placed heavy reliance on the decision of Munby J in CF-v-Secretary of State for the Home Department [2004] EWHC 111 (Fam). That was a case which involved the review of an administrative decision by the prison authorities to remove a prisoner and her baby from a mother and baby unit with the result that she and her child would be separated. The mother brought a free standing claim under the Human Rights Act 1998 claiming a breach of her Article 8 rights. The child was joined to the application and the Official Solicitor supported the mother's claim that she and her baby should be accommodated together. Munby J at para 157 et seq of his judgment emphasised the procedural rights of the child to protection under Article 8 of the Convention so as to ensure that the parents' views are made known to the decision takers during the administrative decision taking process.
32. In my judgment, that was a wholly different type of case. The prison authorities were taking, as a public authority, a decision which engaged the Convention rights of the mother and the child. They came under criticism because the decision was taken without involving the mother adequately in the decision taking process so as to provide her with the requisite protection of her interests, and because the social worker charged with representing the baby's interests was confused as to the relevant facts, had not conducted any assessment of the baby and was simply not in a position to represent her interests properly. The factual circumstances are some distance away from what is at issue in public law applications by the Minister to a court seeking a care order, especially so if the Court is provided with a report, up to date at the time of the hearing, from a court welfare officer or a person appointed to befriend the child under Article 75(1)(b).
33. There are these obvious consequences of joining a person as party to the proceedings. The first is that with such joinder comes the right to disclosure and obligation to make disclosure, subject of course to the usual rules. The second is that joinder enables a party not only to adduce evidence before the Court but also to claim the right to cross examine witnesses giving evidence on behalf of other parties. The third is the entitlement to notice from other parties as to what is taking place in the proceedings and what relief is sought and to make submissions thereon. Fourthly, the person joined has a right of appeal. A Court faced with an application to join a child as a party to the proceedings will naturally need to consider how appropriate it is to so having regards to these features. Finally, joining a child as a party means that a guardian ad litem must be appointed because the child is otherwise under a disability in the proceedings.
34. In summary, it is clear that:-
(i) The effect of the 2002 Law and the Rules is that unlike the position in England and Wales the child is not automatically to be made a party to the proceedings but the Court has a discretion so to order. It is to be assumed accordingly that this discretion will be exercised on a case by case basis but the starting point is that joining the child as a party needs to be justified;
(ii) As a Convention compliant body, the Court must act in such a way as respects the Convention rights of all those who may be affected by the Court's decision and if the Court considers that the procedure it adopts will provide inadequate protection and that the parties before the Court will not between them advance the interests of the child including its Convention rights, then it would be appropriate in those cases to join the child as a party and accordingly to appoint a guardian ad litem;
(iii) In many cases the interests of the child, including the child's Convention rights, will be advanced by either the Minister or the parent(s), especially so when they offer competing views as to what is best to be done in the child's interests. However, there will be cases where, either because the Minister and the parent(s) are agreed on a common course of action or because the parent(s) have not the capacity or inclination for whatever reason to produce an adequate challenge to the Minister's proposals, it will be particularly appropriate for the Court to consider whether the child should be made a party to the proceedings to ensure the child's interests are advanced. The child welfare officer or person appointed under Article 75(1)(b) is best placed to make the first assessment as to whether that is necessary.
(iv) The obligation under Article 2(3) of the 2002 Law to have regard to the ascertainable wishes and feelings of the child (considered in the light of the child's age and understanding) requires that there be a mechanism by which those wishes and feelings are ascertained. Where the child is a baby, such a consideration does not arise but the Court will nonetheless be likely to appoint a person under Article 75(1)(b) as I go on to consider later in this judgment. I cannot imagine that it would ever be appropriate for the Court to proceed without having as a minimum, an independent report from such a person or from a child welfare officer. Such a person can stand up for the child's Convention rights, and should have access to legal advice if s/he believes that is necessary inter alia to consider whether an application should be made to be joined as a party to the proceedings.
(v) It will be appropriate in most if not all public law cases that the Court makes orders which allow the person appointed under Article 75(1)(b) or the child welfare officer to have access to all relevant documents and to be given notice of the progress of the case, so that the Article 2(3) obligation can be met, whether the child is made a party or not.
35. However, the Court should not routinely join the child as a party without being clear as to the reasons for doing so. It may be that in a few cases, by reason of the child's relatively mature age and apparent understanding, it will be obvious to the Court at the outset that the child should be joined. This will be particularly so in cases where the child will give evidence - see Re W (children) (care proceedings:-evidence) [2010] UKSC 12 [2010] 2 AER 418. In most cases it may well be right for the Court not to make such an order early in the proceedings and await receipt of the views of the court welfare officer or person appointed to assist and befriend the child, which views will be informed by the progress of the case and the enquiries which have been made. It does not follow from our legislation - which confers a discretion on Article 75 appointments - that the Court should look for a situation of conflict where none reasonably arises. The Minister and those with parental responsibility will make clear their respective positions; the court welfare officer or person appointed to assist and befriend the child, will assess them in the light of the child's views and those which such officer or person forms; and generally at that stage will it become clear whether it is appropriate in the interests of the child that the child be joined as a party.
The appointment of a lawyer for the child
36. As I have indicated above, the child welfare officer or person appointed to assist and befriend the child, may need legal advice from time to time and in my judgment this should be made available either as part of the legal aid scheme, or if that cannot be secured by agreement with those administering the scheme, by making provision through the Court and Case costs budget administered by the Judicial Greffier. The provision of legal advice to them is a different matter however from the appointment of a lawyer for the child and I turn now to that issue.
37. Once again, the starting point is that Article 75 of the 2002 Law is cast in different terms from the relevant provisions of the 1989 Act. So similar are some of the remaining provisions of the 2002 Law to the 1989 Act that it is to be inferred that the States intended a different approach to be taken here than would be taken in England and Wales. Such a conclusion is supported by the fact that the report accompanying the proposition of the Health and Social Services Committee (P200/2001) contains the statement that "The Health and Social Services Committee will not be seeking either additional manpower or funding in order to administer this Law".
38. It is a matter of public record that sums paid to lawyers for the child, appointed by the Court pursuant to Article 75 since 2008, have been in excess of £1 million per annum. There may well be commercial or other considerations to be taken into account insofar as those costs are concerned, but it is beyond peradventure that the resources statement to which I have referred could not have been made if those promoting the legislation had believed the cost to the States would have been as it has, or indeed anything remotely of that order.
39. In my judgment, it follows that what is the ordinary language of the statute, which confers a discretion upon the Court as to whether a lawyer for the child should be appointed, should not as a matter of principle be contraverted by a judicial construction that requires the appointment of a lawyer in every case. I reject the submission of Advocate Hanson that it would be wholly exceptional for the Court not to follow the practice adopted in England and Wales. That practice is based upon different statutory provisions and it is obvious to me that this Court must base its approach on the 2002 Law.
40. If, apart from the language of the statute, I needed any additional fortification for the view that the Jersey statutory regime was not the same as the English regime, that is to be found in the content of P200/2001, the proposition of the Health and Social Services Committee when the draft law was presented to the States. In its report the Committee opened by saying this:-
"The purpose of this draft law is to replace the Children (Jersey) Law 1969 with new provisions governing all aspects of the care of, and responsibilities towards, children. The original intention was to revise only those aspects relating to the rights and responsibilities of parents with respect to their children, but it became apparent that it was impracticable to graft new concepts onto a law that is now over 30 years old and based on even older United Kingdom legislation which had long since been repealed. It was therefore considered preferable to produce a comprehensive new law, based on the United Kingdom Children Act 1989, that could address the deficiencies apparent in the existing law and create a legal framework capable of responding to the wide variety of childcare arrangements that exist today...The draft Children (Jersey) Law 200- incorporates many of the concepts of the United Kingdom Children Act 1989, adapted to suit the needs of our particular community" (emphasis added)
41. The explanatory note says of Article 75:-
"Article 75 empowers the Court to order that a child be separately represented in such proceedings as it may specify or that the child be assisted and befriended by a person specified by the Court who is independent from the Committee. Where a child is able to bring any proceedings under this law he may only do so with the leave of the Court and the Court may only grant leave if satisfied that the child has sufficient understanding. The child may only act through a guardian ad litem. Where a child has been granted legal aid the Court may order that the costs of his representation be paid out of public funds, or where he has been given an opportunity to be heard, by a person with parental responsibility for the child."
42. It appears to me to be clear that P200/2001 did not envisage that the UK scheme was being replicated wholesale into the Law of Jersey. Indeed the difference of language of the local legislation compared with the 1989 Act, the expressed intention of the Committee, the statement in the report that the proposed law had been the subject of wide consultation with all major parties interested in the care of children and, where appropriate had been amended to take account of concerns and comments received, and also the statement that no additional manpower or funding was being sought to administer the law all point to the conclusion that the English regime was not to be adopted wholesale.
Relevant factors in the Court's exercise of discretion
43. It is not possible to set out in this judgment all the relevant factors which might be taken into account not only because the discretion to be exercised under Article 75 must turn on the facts before the Court in each case, but also because neither counsel before me addressed the matter. It may be helpful, however, to venture these comments on my own, so that in subsequent cases where the Court comes to consider an exercise of discretion, they can be taken into account.
44. I take first those cases where the child is made a party to the proceedings. Advocate Hanson submitted that it was axiomatic in terms of the Article 6 Convention right that the child should have a lawyer. In my judgment, the Convention does not in terms require any such thing, although for reasons I will go on to, the position is more complex than it seems.
45. Article 6 of the Convention provides as follows:-
46. It is immediately to be noticed that there is a distinction between civil and criminal proceedings, in the sense that Article 6 does require the provision of legal representation to accused persons. The present proceedings are not criminal proceedings. Accordingly, the issue of providing legal representation comes to be determined having regard to ordinary access to justice principles of what amounts to a fair trial or hearing.
47. As is well known, Article 6 of the Convention is to be given a broad and purposive interpretation - see for example Moreira De Asevedo-v-Portugal (1990) 13 EHRR 721 at paragraph 66. There is a fundamental requirement of procedural fairness where what is in dispute are the civil rights and obligations of the individuals who are party to proceedings which are dispositive of any legal rights or obligations. Even if I were to be wrong in the view that care proceedings are not dispositive of any civil rights of the child, this is a civil case which does not require that a party be legally represented. What is essential is that there should effective access to a court. That may require the provision of civil legal aid to a person who otherwise cannot afford it, notwithstanding that there is no specific provision for such assistance in the Convention - see for example Airey-v-Ireland (1979) 2 EHRR 305, where the European Court of Human Rights held that Ireland had infringed Article 6 by not providing legal aid to an Irish woman of few means who was seeking an order for judicial separation from her husband. The assessment was that it was unrealistic to suppose that the woman could effectively conduct her own case, given that it involved potentially complicated points of law and also the tendering of factual and expert evidence which might be disputed. Similarly in Steel and Morris-v-United Kingdom (2005) 41 EHRR 403, it was found that there was an inequality of arms in a defamation trial brought by McDonalds which had been criticised by the applicants in leaflets distributed by them. Legal aid was not available for defamation proceedings and the European Court found that neither the amount of legal assistance which they had obtained free, nor their considerable skills in terms of articulation, nor the extensive judicial assistance provided by the court remedied the inequality of arms which had arisen.
48. What is clear is that these cases will be determined upon a case by case basis having regard to the facts which arise in the case in question. Where the Court has appointed an experienced Guardian in these public law cases in which the child is a party, it seems to me that there is little likely difficulty with the Article 6 right provided that the Guardian does have access to legal advice if he or she considers that it is needed, a matter to which I return below.
49. I conclude therefore that the passage of the Human Rights Law does not carry with it the conclusion that a child, if a party to any public law proceedings, must in every case have a lawyer appointed for him or her. The Court needs to give consideration to that question having regard to the jurisprudence summarised above and will decide the matter on the relevant circumstances of each case. If the child is not a party to the proceedings, there is even less reason for the appointment of a lawyer for the child - this does not detract from the principle that the person appointed under Article 75(1)(b) should have access to legal advice [see paragraph 34 above and paragraphs 51-56 below.]
50. I have considered whether it makes any difference for the purposes of the Human Rights Law that the party to the proceedings is a child and not an adult. At one level, it would appear not to do so, because the child will be represented by a Guardian who is, of course, an adult; and indeed is likely to be an adult with considerable experience of court proceedings.
The Functions of the Person Appointed under Article 75(1)(b)
51. In public law cases, the Minister has frequently asked the Court to appoint a Guardian and the Court has frequently done so. It seems that fits with Article 75 of the 2002 Law, to which I now return, only if the child is a party to the proceedings. Article 75 contains provisions which are significantly different from s.41 of the 1989 Act. Paragraph (1) enables the Court to appoint in its discretion either a lawyer for the child or a person to assist and befriend the child. The use of the word "or" between subparagraphs (a) and (b) shows that these subparagraphs are alternatives. The lawyer's skills do not necessarily include the skills of a person to assist and befriend the child, whose functions seem to me to be these if one is to ensure consistency with the objects and structure of the 2002 Law:-
(i) To ascertain the wishes and feelings of the child so that these can be made known to the Court so as to comply with Article 2(3) of the 2002 Law;
(ii) To assess all the evidence, including the wishes and feelings of the child, and to report thereon to the Court so that the interests of the child are fully represented before the Court;
(iii) In so doing, in effect to audit from the perspective of the best interests of the child (which includes but not exclusively the views of the child) the proposals of the Minister and the other parties, and thus to form a view as to whether the child should be a party and if so as to how to conduct the proceedings on behalf of the child.
The appointment of a person to assist or befriend the child is particularly relevant where the child is not a party to the proceedings. The functions which are to be carried out are clearly many of the functions of the Guardian ad litem but that person is not such a Guardian because there is no lis to which the child is a party. By contrast, Article 75(2) makes it plain that there are other occasions when a Guardian ad litem must be appointed and the child being a party to the proceedings is clearly one such an occasion because the child is otherwise under disability and not able to act.
52. The performance of the functions of the person appointed under Article 75(1)(b) requires different skills from those of a lawyer, although it may be that some lawyers might have these skills in addition to legal skills. Conversely, it may well be that by experience, a person drawn from the Jersey Court Advisory Service or otherwise regularly appointed under Article 75(1)(b) in public law children proceedings or as a Guardian ad litem will acquire some knowledge of the law and indeed it would be surprising if s/he did not. In my judgment, such a person may consider a lawyer is required to be appointed in cases where s/he reaches the view that:-
(i) Argument on points of law is necessary;
(ii) Evidence is to be adduced other than from that person on behalf of the child;
(iii) Cross examination of other witnesses or an adequate examination in chief of that person (as opposed to the production of his or her report) requires the presence of a lawyer in Court.
53. In all these cases, the lawyer in effect acts on the instructions of the person so appointed to assist and befriend the child.
54. In addition, the Court is likely to reach the view that a lawyer ought to be appointed for the child where the child is sufficiently mature to express a view, which is different from the view of the person appointed under Article 75(1)(b), on the matters before the Court. Of course, in those cases, the lawyer will act on the instructions of the child.
55. It is likely that if a lawyer is required, then it will be appropriate that the child is made a party to the proceedings. It does not follow that because the child is a party to the proceedings, a lawyer for the child is necessary. If made a party, then it would usually seem appropriate that the person originally appointed under Article 75(1)(b) be appointed Guardian ad litem.
56. It was contended by Advocate Hanson that it was important not to confuse the role of the Guardian with that of the child welfare officer appointed pursuant to Article 9 of the 2002 Law. I agree the distinction is important although the two perform many of the same functions. The structure of Rules 12 and 13 of the Children Rules 2005, (which unlike Rules 15 and 16 are not restricted to private law proceedings), envisages that there may be cases where the Court will rely on the child welfare officer for the representation of the views of the child; in others the Court may determine that an appointment under Article 75(1)(b) should be made. In my judgment, the better course is that an appointment should routinely be made under Article 75(1)(b) at the earliest opportunity unless the child is to be made a party in which case the appointment of a Guardian ad litem under Article 75(2) is necessary.
The person appointed under Article 75(1)(b) should keep under review whether an application should be made that the child be joined. If the child is a party, the role includes taking a decision as to how active a part the child should play in the proceedings and whether the Guardian ad litem or the child should apply to the Court to have separate legal representation. Where, for example, the person appointed under Article 75(1)(b) or indeed the Guardian ad litem reaches the view that the case of either the Minister or the mother, for example, best meets the interests of the child, it may well be sufficient simply to report those views to the Court and take no other active role. Where it is thought the child's best interests would not be adequately advanced without the child having separate legal representation, an application to the Court for a lawyer to be appointed, should be made.
Expenses
57. There was canvassed before me the question of the expense of proceedings of this nature and I will add a few words on this subject. It is right that two fundamental points are made at the outset. The first is that the Court must be enabled to do justice in the cases which are before it, and if it is impossible to achieve that function without the spending of public money, then it is the responsibility of the States to ensure that sufficient public funds are provided. The second fundamental consideration is that few, if any, communities can proceed upon the basis that there are no constraints on public spending. It is no answer to this concern to say that one cannot put a price on justice. One might just as well say one cannot put a price on health care, the education of young people or the care of the elderly or the disadvantaged. The Royal Court owes a duty of consideration towards the States, reflecting that the cost of the administration of justice must be manageable within the overall costs of providing other services in this small community. Article 75 requires the Court in effect to conduct a balancing exercise in relation to the question as to whether or not the child should have representation. The first question would be whether the child needs representation. The statute contemplates that there is a spectrum at one end of which one can say that the child definitely does need representation and at the other end that the child definitely does not need representation. Between those two extremes, the Court may consider that representation would be useful, might be useful, or was unlikely but could be useful. It is clear that the question as to whether it is desirable to appoint separate representation is one which is to be answered objectively where the decision taker takes all relevant circumstances into account.
58. Those circumstances can include, in my judgment, financial considerations. The interests of the child include growing up in a community which is financially balanced and which structures its public services in a proportionate way. The legislature has determined the framework within which this Court has to work by conferring on the Court the discretion to make appointments as necessary under Article 75.
59. When I say that the Court can in principle take into account financial considerations in determining the desirability of appointing a lawyer for the child it is by way of emphasis that it is not the case, nor indeed has it ever been the case, that the Court will approach such matters by blithely asserting that the interests of justice were such that money has to be found. Judicial decisions on matters of this nature must of course be directed at securing justice, which is the overriding objective. The English system has been described as a Rolls Royce system. In my judgment, as long as we remain able to deliver justice in Jersey, it may be appropriate to do so by driving a less expensive motor vehicle. That is a concomitant of the statutory discretion conferred on the Court. This requires therefore the question to be asked and answered as to whether a lawyer is appropriate for the purposes of the case.
60. In other cases, even where a legal representative has been appointed, it may be appropriate to look more closely at the financial arrangements themselves. These were considered by the Royal Court in B-v-J [2008] JRC 102. Sir Philip Bailhache, Bailiff, determined that in that complex private law case, where, unusually, the Royal Court had decided to appoint a lawyer to represent the child, it was appropriate that the States should meet the cost of representation as opposed to the parents, and do so on an indemnity basis.
61. As that was a private law case, I will leave over legal argument to another occasion when the point is one actively in issue, but one can see there is room for the view that Article 75(3) was designed to ensure that although the court's discretion to make other costs orders was preserved, there should not be an additional burden on the legal aid scheme and that accordingly the existence of a legal aid certificate would not disentitle the lawyer from payment out of public funds. Be that as it may, the principles of B-v-J do not in my judgment apply in public law cases where it would appear from experience to be very rare indeed that the Court will ever be contemplating a costs order against either parent from whom the Minister seeks to remove parental responsibility.
62. The Legal Aid Scheme has always been there to assist persons who were indéfendues and the community owes a debt of gratitude to the lawyers who give their time and skill to it. In most of these public law cases where the Minister seeks care or supervision orders, the parents are in fact represented by lawyers on legal aid. In those cases in future - which I expect will henceforth be less frequent - where the Court appoints a lawyer to represent the child, the Acting Batônnier may well consider it appropriate to issue a legal aid certificate to such lawyer. If such certificate were issued, there seems to me to be little obvious reason why the legal aid lawyers for the child should be remunerated when the legal aid lawyers for the parents are not; but the statutory power is there and there may be particularly onerous or complex cases which lie far outside the parameters of the usual care application where the Court may need to consider exercising it.
63. Even then, there seems to me to be every reason to avoid the order of costs on an indemnity basis, not least because one has to recognise the absence of any commerciality in the arrangements. Where an individual client pays indemnity costs to his lawyer, the lawyer knows that the client will be following the progress of the case with attention, and that particular steps along the way will from time to time be discussed with the client, including the cost implications. Those constraints do not apply in these cases. The Court has been advised that a representation is pending by which the Attorney General seeks resolution of the different options for funding public law cases and it has been deferred pending a working group considering the various options. It is to be hoped that the working group will come up with some proposals shortly. In my judgment, it is not appropriate to follow that part of the decision in B-v-J which directs indemnity costs in every case, whether legal representation is provided on the legal aid scheme or not, to the extent that that judgment so provides.
64. In my judgment, the right approach is this. If the Court orders representation for the child and the Acting Batônnier gives a legal aid certificate, the lawyer acts on that certificate. If the Acting Batônnier does not give a legal aid certificate, then the Greffier will have to provide funds out of the Court and Case Costs vote for payment of the nominated lawyer. My understanding is that currently the Acting Batônnier makes a nomination from a list of lawyers who have agreed to do this work. There is no reason why such a system should not continue.
65. The fees which should be payable are a matter for the Treasury taking into account the deliberations of the working group. It should not be left to the Court to authorise payment of whatever the lawyers submit as fee notes, and/or negotiate such rates. The Minister may well fix upon a standard fee with a proviso that any payment in excess of the standard fee should only be made if the work has been specifically authorised by the Judicial Greffier, exercising his discretion as a taxing master and applying a specific agreed fee for the additional work. At all events, the monies which should be made available are a matter for the political decision of the Minister for Treasury and Resources who will take into account that the rates must be set at a level which ensures that where lawyers are necessary, they will be prepared to act for that remuneration so that justice can be done.
66. I can well see that the conclusion of these discussions between the Minister and the lawyers may take some time to reach fruition. In the interval, cases may arise when lawyers fall to be appointed and the basis of their remuneration should be settled if they are not acting on legal aid or if the Court has made an order on the basis of Article 75(3)(a).
In this interim period, for all new appointments under Article 75(1)(a) as from now, I would expect the Greffier to pay 5/6 of the Factor A rate and otherwise to allow claims for fees on a standard basis. For work which is currently on hand where the appointment has already been made, the present monetary arrangements will continue to apply, but the Greffier will, of course, continue to have a discretion to disallow claims for costs if the fees have been unreasonably incurred.
67. It is also to be earnestly hoped that to the extent that there is currently any lack of resources available to the Jersey Court Advisory Service whether its personnel act as court welfare officers, persons appointed under Article 75(1)(b) or as guardians ad litem, then that will be immediately addressed by the relevant authorities. In my judgment, the use of that Service is likely to make the reliance on external children's organisations, who are familiar with a different statutory regime, less heavy with a consequent distinct saving on the public purse in Jersey in terms of legal costs alone. There will still be cases where on the particular facts it may be necessary or desirable to appoint an external befriender or guardian ad litem, but these will be relatively infrequent. I emphasise that these remarks reflect no criticism of the external organisations, whose assistance has been invaluable while there was insufficient capacity locally to meet the demand. It is incumbent on us, however, to find a system with which all participants are comfortable and which allows justice to be delivered in these very important cases.
Overall Summary
68. The 2002 Law and the Rules made thereunder confer a discretion on the Court as to whether:-
(i) the child should have a friend appointed for him or her under Article 75(1)(b);
(ii) the child should be made a party to proceedings;
(iii) the child should have a lawyer appointed for him or her.
69. The 2002 Law is clear that the paramount consideration is the welfare of the child. This brings with it a general principle specifically articulated in Article 2(2) that delay is likely not to be in the child's best interests, and this needs to be weighed in the balance when the Court comes to consider the exercise of the discretions set out above.
70. The Court is required to have regard to the matters set out in Article 2(3) of the 2002 Law. That can perhaps be achieved in some cases, especially where the child is very young, by the Court ordering the preparation of a welfare report pursuant to Article 9(1)(a) of the 2002 Law but in most cases the Court should appoint a person under Article 75(1)(b) with the concomitant obligations of such an appointment as set out in paragraph 51 above. Whether an Article 75(1)(b) appointment is made, or whether the Court orders the preparation of a welfare report under Article 9(1)(a), it is important that the Court orders that the officer has access to all relevant documents in the possession of any of the parties, other than those documents which are legally privileged, and that the officer is given notice of the progress of the case so that the Article 2(3) obligation can be met.
71. The Court should consider whether or not to join the child as a party to the proceedings taking into account the matters described in paragraphs 33 to 35 above. This is a decision that can be kept under review. The most telling cause for review would be if the person appointed under Article 75(1)(b) or child welfare officer considers that the child should be joined, and that is most likely to be the case where it can be demonstrated that one or more of the consequences of becoming a party, as described in paragraph 33 above, would be to the significant advantage of the child.
72. If the Court appoints a child welfare officer or person under Article 75(1)(b) it is an implied term of that appointment that such officer or person should have access to legal advice if it is felt that would be necessary or appropriate, and the Judicial Greffier will arrange funding for such advice out of the court and case costs vote, applying the principles set out in paragraph 60 above.
73. If the Court has joined the child as a party and either the child is sufficiently mature to express a view which is different from the view of the Guardian ad litem on the matters before the Court, or the Guardian ad litem satisfies the Court that it is in the best interests of the child for the child to have an active role in the proceedings such as to require legal representation, the Court should then appoint a lawyer for the child under Article 75(1)(a).
