The United Nations Convention on the Rights of the Child was extended to Jersey in 2014. Article 9 requires that children who may be separated from their family are able to “participate” in such proceedings and to make their views known. Article 12 also requires that they have the right to be heard. How do we reflect these important rights in care proceedings in Jersey?
Despite the emphasis given in Jersey judgments (Re B (Separate Representation of Minors) 2010 JLR 387, W.Bailhache, Deputy Bailiff) as to how the representation of children in England is so radically different to that under our own Children (Jersey) Law 2002, the argument made in this article is that the Courts in both Jersey and England enjoy some statutory latitude in the appointment of a Guardian and lawyer to act for children in care proceedings. However, the approach in each jurisdiction to that latitude is indeed quite different. My argument is that this is more to do with the view held by the Courts on the value or significance of a Guardian and lawyer acting for a child and has little to do with the actual laws and regulations themselves.
In England, the Court is not obliged to appoint a Guardian to act for a child in care proceedings if satisfied that the child’s interests will still be safeguarded. (s.41 Children Act 1989 – see exact wording in F1 below.) The fact is that it is wholly exceptional for it to find that the child’s interests can be safeguarded without a Guardian and so such an appointment is routinely made.
The Guardian then has to appoint the lawyer. So if a Guardian is not appointed, then the child will also not have a lawyer unless the Court decides to appoint a lawyer under s.41(3) of the Act, where certain conditions must first be satisfied.
In Jersey, even if a Guardian is appointed by the Royal Court (which is by no means certain) it remains the Court that has control over the appointment of a lawyer for the child and the Guardian will be required to apply to the Court for such appointment. This can mean that the Jersey Guardian & child are without a court lawyer pending an application being determined and also, as we shall see, are not necessarily guaranteed that the Court will go on to make such appointment. Fortunately, at least, there is the availability of ad hoc legal advice for the Guardian which mitigates the position to an extent.
It is correct that in Jersey, such power of appointment under article 75 of our 2002 Law, is not quite as detailed as in England, but it might well be seen as wrong for a Jersey Court to dispense with a Guardian in care proceedings unless making a clear finding that it was satisfied that the child’s interests could still be safeguarded and giving reasons as to how it came to that conclusion.
Such a view is bolstered by the opening words to our article 75 that refer to making an order where it is “desirable in the interests of a child to do so.” Although the paramountcy rule does not apply, the exercise of this power to appoint a Guardian or a lawyer, remains welfare based.
Is it not always – or almost always – both desirable and in the interests of a child to have a Guardian and a lawyer appointed? If we are being true to our Jersey statute, I suggest it is a low threshold before the Court should appoint a guardian, and indeed a lawyer, for a child in care proceedings.
In short, while the Jersey Courts enjoy a discretion, can it be right that a child in Jersey does not need a Guardian or a lawyer, but in care proceedings in England, that same child would almost always have both as being necessary to safeguard his/her interests? What added protections do we have in Jersey that makes us able to dispense with a Guardian or lawyer for children while in England it’s considered necessary? .
Appointing a Guardian or a lawyer for children caught up in care proceedings in Jersey has come rather late, emerging as a practice around 2008, and to the great credit of our judiciary in Jersey, has really been grafted onto the Children (Jersey) Law 2002. The reality is that article 75(1)(b) of the Law merely refers to a person “to assist & befriend” a child and the appointment of a Guardian has been shoehorned into this provision by the decision in Re B. It is, in fact, such an uncomfortable fit that a different judge (Birt,Bailiff) in Re Q 2011 JLR 147 (para.26) was receptive to the idea that a different statutory provision might in fact govern the position: article 75(1)(a).
By reason of this grafting process, the Guardian in Jersey actually enjoys no legal right to look at files held by the Minister and there is no statutory framework specifying the Guardian’s duties – something that is often overlooked in practice. This is in contrast to the express provisions applicable in England. If the child is also not made a party to the proceedings (which Re B suggests could be the case) then the ability of the child to participate from a technical, legal basis must also be questionable, even with a person “assisting and befriending.” It is arguable that this might be a breach of the United Nations Convention on the Rights of the Child that has since been ratified in Jersey. In the recent case of Re Bradley [2017] JRC 126, the Royal Court suggested otherwise, but the point was described by the Judge as being “dangled” and was an argument for another day. See FN2.
So what importance is placed upon the Guardian and Lawyer acting for a child in England?
Recent Court of Appeal cases in England have emphasized the importance of children that are subject to care proceedings having both a guardian & a lawyer appointed to protect and further their interests. AMcC v The London Borough of Wandsworth [2017] EWCA Civ 398 reiterated the view held earlier by both the Court of Appeal & High Court in R & Others v Cafcass [2012] EWCA Civ 853 as follows:
“No detailed analysis of this statutory regime is necessary. The provisions speak for themselves. All we need say is that the children’s guardian is on any view pivotal to the whole scheme. The guardian is both the voice of the child and the eyes and ears of the court. As any judge who has ever sat in care cases will be all too aware, the court is at every stage of the process critically dependent upon the guardian. In a jurisdiction where the State is seeking to intervene – often very drastically – in family life, the legislature has appropriately recognised that determination of the child’s best interests cannot be guaranteed if the proceedings involve no more than an adversarial dispute between the local authority and the parents. Parliament has recognised that in this very delicate and difficult area the proper protection and furthering of the child’s best interests require the child to be represented both by his own solicitor and by a guardian, each bringing to bear their necessary and distinctive professional expertise.“
What I find puzzling is if the experience in England is that a Guardian is “pivotal” and that both a Guardian and a lawyer are almost always necessary in care proceedings to protect and further that child’s interests, how do we manage in Jersey to justify not appointing a Guardian in care proceedings, or appointing a Guardian but then declining to appoint a lawyer? The two positions are surely at odds with each other.
There are also actual instances in Jersey where Guardians have applied for a lawyer to be appointed & for the child to be made a party to the proceedings, but the Royal Court has refused the application. Unfortunately, those instances have not been subject to an appeal or to a detailed judgment. Most probably they have been dealt with in a summary fashion but one such judgment may suffice. In Re T [2011] JRC 098 at para.8-9, W.Bailhache, Deputy Bailiff appears to have appointed a Guardian at the hearing of an interim care order, but despite the request of the Minister, then refused to join the 10 year old child as a party, or grant the child legal representation. The Judge held that, at that stage, there was no evidence as to whether or not the Guardian could deal with the matter without a lawyer. The Minister had submitted that delay in the progress of proceedings might be caused were an application required at a later date but the Judge was not persuaded and cited Re B.
At a time when there is a drive in other jurisdictions to fortify the rights of children even before proceedings actually commence, the approach in Re B is a regressive policy which, in effect, creates a blanket prohibition on lawyers acting for children in the early stages of care proceedings.
My worry is that there may also be Guardians that are reluctant even to make an application out of concern of the reaction of the Court.
The Guardian in the Re B case (2010 JLR 387 at para.5) for example, received a rather hostile account in the judgment for not “undertaking her duties in the absence of a lawyer for the child” and being “familiar with UK law and practice and..uncomfortable with any other system….[but] it is our legislation that should drive domestic practice.” This judgment was handed down & published without prior circulation in draft. This criticism was rather unfair. For two years until this point, the previous practice of the Royal Court (in particular Bailiffs Philip Bailhache, and Michael Birt) had been to follow the UK and appoint a Guardian and lawyer for the child. It was the judgment in Re B that suddenly declared a wholly different approach. The Guardian (and her line-manager) – the former appointed by the Royal Court for her experience from the NSPCC- could be forgiven for not anticipating a new direction. However, their concerns were justified and did not deserve the apparent criticism that they received in this judgment. I respectfully suggest that we need to be a bit careful in not influencing Guardians in their duties, and particularly the majority of Guardians that live and work in Jersey, where the impact of perceived criticism might be felt more acutely. At the end of the day, we all want what is best for all Jersey children and particularly those that are at risk of harm and subject to care proceedings. A healthy debate on such issues is necessary so that we keep on our toes, looking for improvements.
I suggest that the value that English practitioners and Judges place upon a Guardian and lawyer both acting for children caught in care proceedings, speaks volumes. Given the recent Abuse Inquiry Report, perhaps an outside consultant should audit our current approach to children caught in care proceedings and at least give us the reassurance that it is working as well we would hope? In the meantime, an appeal in a suitable case may give cause for the Jersey Court of Appeal to hear argument on the issues raised in this article; the Court of Appeal not yet having been seized with an appeal that has been directly on point. FN3.
F1 – “the court shall appoint [a Guardian] for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.”
F2– Note that Jersey has ratified the UNCRC which requires the child to be able to participate in care proceedings. This should at least influence the exercise of discretion by the Court.
F3– The appeal in Re D 2011 JLR 220 was on whether or not a Guardian could be appointed outside care proceedings. The general approach articulated in Re B was not therefore at issue and regrettably was not challenged.