Jersey Unreported Judgments

Child Custody - application by the mother and father to withdraw their applications to discharge care orders made in respect of W and J.

[2012]JRC210

Royal Court

(Family)

16 November 2012

Before     :

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

 

IN THE MATTER OF W AND J (CHILD CUSTODY)

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

Advocate D. Gilbert for the First Applicant.

Advocate P. S. Landick for the Second Applicant.

Advocate D. C. Robinson for the First Respondent.

Advocate M. R. Godden for the Second Respondent.

Advocate H. J. Heath for the Third Respondents.

judgment

the commissioner:

1.        On 2^nd October, 2012, the Court granted the applicants leave pursuant to Rule 9 of the Children Rules 2005 to withdraw their applications to discharge the care orders made in respect of W and J ("the children"). 

2.        The matter was somewhat overshadowed by two applications that the guardian had brought under the Human Rights (Jersey) Law 2000, which the Court went on to deal with, but it is right that there should be a short judgment in relation to this aspect of the matter. 

3.        We will not set out the background facts as they are recited in detail in a number of judgments of the Court, specifically the two judgments dealing with contact ([2012] JRC 44 and [2012] JRC 106C) and the judgment striking out the Human Rights application ([2012] JRC 174). 

4.        By way of brief overview final care orders were made on the 22^nd March, 2011, but under the care plans approved by the Court the children were placed with the applicants.  In August 2011, the children were removed from the applicants with one being placed in foster care and the other with kinship carers.  The applicants responded by issuing applications on the 19^th December, 2011, to discharge the care orders and subsequently for increased contact (see the two judgments referred to above).  

5.        In or around September 2012, a decision was made by the Children's Service in favour of rehabilitation of the children with the applicants.  New care plans were prepared by the Children's Service and agreed by the parties.  Pursuant to those plans the children were returned to the applicants on 24^th September, 2012.  The children and the applicants have all settled into new accommodation provided for them. 

6.        The plans are very prescriptive, but this was welcomed by Miss Gilbert for the mother, on the basis that the clearer the plans the better the applicants know what is expected from them, thus reducing the possibility of a recurrence of the circumstances that led to the children being removed in August 2011. 

7.        The circumstances in which the children had been removed were a matter of concern both to the applicants and to the guardian and it is appropriate therefore to set out that part of the plans dealing with the possibility of removal in the future:- 

"Immediate removal in the case of an emergency

Should there be an immediate risk to the health or welfare of the children (this being akin to the requirement for interim removal) they will be immediately placed in foster care, a new care plan written and an early Looked After Child review convened to consider the new care plan. 

The Children's Service will give their reasons for removal to the parents at the time the children are removed, or as soon as reasonably practical thereafter in circumstances where the parents are unavailable.  The parents will be advised to obtain legal advice immediately and show any correspondence to their legal advisers.  The Children's Service will notify their legal representatives of the removal. 

Removal without immediate risk

A removal of the children due to the care plan not being adhered to when there is not an immediate risk to the safety and welfare of the children will only happen in a planned way.  Prior to any removal, a care planning meeting will be convened to discuss whether the care plan needs to be changed.  A letter will be sent to the parents inviting them to the meeting and setting out the concerns to be discussed at the meeting.  They will be advised that the children will be removed unless there are clear and swift changes.  The parents will be advised to obtain legal advice and show any correspondence to their legal advisers.  

A copy of the minutes of the meeting will be provided to the parents which they will be advised to show to their legal advisers.  Should this meeting determine that the placement needs to change or there needs to be significant changes to the looked after child plan, an early looked after child review will be convened and the parents advised to seek legal advice before any changes are made.  The Children's Service will notify their legal representatives of the situation and provide a copy of the care planning meeting minutes.  

The parents will not have less than 5 working days between the care planning meeting and the looked after child review to seek legal advice about this and make any application to prevent the planned removal of [the children].  A new care plan will be presented at the looked after child review which would include timescales for any planned removal. 

The care plans and the need for a care order will be reviewed at every looked after child review.  This will take place one month after placement, three months after that review and then every six months. 

This care plan is likely to recommend adoption for both children if in the next two years the children need to return to foster care for anything other than an agreed short break to support the main placement.  An agreed short break would not constitute a placement breakdown."

8.        Under the provisions of Rule 9(1) and (2) of the Children Rules 2005, an application may only be withdrawn with leave of the Court and the person seeking leave must file and serve on the parties a written request setting out the reasons for the request.  This the applicants had done by letter dated 17^th September, 2012, addressed to the Court.  In terms of our jurisdiction to grant leave, Miss Heath referred us to the case of In re K, G and C [2009] JRC 076 where the Minister had applied for leave to withdraw an application for a care order.  The Court held, following English authority, that withdrawal of an application for a care order is a matter that has to be considered as carefully as any other application under the relevant legislation in relation to children. 

9.        Miss Heath also referred us to the English Court of Appeal decision in Re S (Discharge of Care Order) [1995] 2 FLR 639 which was concerned with the discharge of a care order under the provisions of Section 39 of the Children Act 1989 (the equivalent of Article 33 of the Children (Jersey) Law 2002) where it was held that the jurisdiction of the Court was discretionary from the outset to be determined in accordance with Section 1 of the Children Act 1989 (the equivalent of Article 2 of the Children (Jersey) Law 2002). 

10.      In so far as concerns this application for leave to withdraw the application to discharge the care orders, we accepted that our jurisdiction under Rule 9 was discretionary, to be exercised in accordance with Article 2 of the Children (Jersey) Law 2002. 

11.      Accordingly, the children's welfare was our paramount consideration and we had regard to the welfare checklist as set out in Article 2(3), assisted by the care plans and the submissions of the parties. 

12.      Miss Gilbert made it clear that the purpose in making the applications was to achieve the rehabilitation of the children to the applicants.  That purpose had now been achieved and the applications were therefore redundant.  It was not suggested by any of the parties that now that rehabilitation had taken place, the care orders should be discharged.  Indeed, the guardian was very clear that they should remain in place. 

13.      In the circumstances we had no difficulty in granting leave for the withdrawal of the applications to discharge the care orders. 

Authorities

Children Rules 2005.

Human Rights (Jersey) Law 2000.

In the matter of W and J (Care order) [2012] JRC 044.

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

In the matter of W and J (Child custody) [2012] JRC 174.

In re K, G and C [2009] JRC 076.

Re S (Discharge of Care Order) [1995] 2 FLR 639.

Children Act 1989.

Children (Jersey) Law 2002.