On 6th September, 2018, the Jersey Care Commission reported on an Ofsted inspection of children’s social services and issued recommendations. The findings by Ofsted were stated to be “consistent with the conclusions of Frances Oldham QC” of the Jersey Care Inquiry published last year. The position is neatly encapsulated in the following few paragraphs:
“The Care Commission agrees with Ofsted that whole system change is required. All those with corporate responsibility for meeting the needs of children and young people in Jersey must now address the key challenges summarised above; ‘What needs to improve’.
Unless and until these core issues are satisfactorily resolved, the service will continue to struggle to deliver safe and effective interventions and support for children and their families.
……..Some recommendations will only be realised through effective collaboration with other departments including the courts service, police, health and education. Others will require a commitment to invest in the service at an appropriate level. The overall endeavour will require support and intervention at a political level.”
The Jersey Care Inquiry had made the important point that a widespread “culture” had existed which had contributed to a failure to protect Jersey children. This latest report similarly reiterates the ambit of change that needs to take place. In this article, I highlight a few areas that might benefit from improvement but that have so far escaped scrutiny in recent reports.
The Children (Jersey) Law 2002
This 2002 Law represented a big shift in the Jersey law relating to children, emulating extensive parts of the UK Children Law 1989 that had overhauled the position there. The 2002 Law actually came into force in 2005 and had, by this stage, been underpinned by a number of bespoke procedural rules and regulations.
What is important to appreciate, however, is the particular era in which the 2002 Law was conceived in Jersey: it was one that that had failed to give children caught in care (“fit person”) proceedings a proper voice; to acknowledge them as individuals in their own right and, importantly, to appreciate that better outcomes in such proceedings resulted in such children having their own social worker or Guardian to report to the court, and, further, to be represented by their own lawyer. In the UK, for over a decade, a Guardian and lawyer had been automatically appointed to children caught in care and other public law proceedings: the so-called “tandem model.” The United Nations Convention on the Rights of the Child had also been ratified by the UK in 1991 and this further bolstered the importance of children being able to participate in the proceedings that affected them and particularly, where they might be separated from their birth parents.
Unfortunately, in the drafting of the Jersey 2002 Law, a decision was taken not to follow section 41 of the UK Act that provided for the near automatic appointment of a Guardian and lawyer for children caught in public law proceedings. The Bailiff, W.Bailhache is therefore entirely correct at para.49 of his judgment in Re B  JLR 387 as follows:
“It appears to me to be clear that P200/2001 [i.e. the 2002 Law] 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.”
It is, of course, surprising that the introduction of a major piece of legislation, that is meant to achieve a radical overhaul in child protection and children law generally, should be said to have no implications in respect of manpower or funding. Perhaps this just conveys the limited aims or simply the lack of awareness of those behind the 2002 Law.
Ironically, in a completely different arena of wealthy trust proceedings, where some issue might arise that could potentially affect even unborn children, a lawyer was routinely appointed by the Royal Court to represent the minor and unborn beneficiaries; the costs of which were ordered to be paid out of the trust on the indemnity basis. The headnote in Re Osias Settlements 1987-88 JLR 389 records the introduction of this practice:
“In an application to vary a trust all parties having an interest or a potential interest should be convened, separate representation being required for minor beneficiaries and, where there are unborn or unascertained beneficiaries and a potential for conflict between their interests and those of adult beneficiaries, then independent representation is preferable.”
Some may find the difference in approach wholly perplexing, not least when public law children proceedings can see a child and parent being separated and, sometimes, forever. In trust cases, however, even an unborn child might have a lawyer appointed for them and, dare I say, even when the issue is just about money!
Nonetheless, for a brief period from 2008, the creative efforts of Bailiff, P.Bailhache and Deputy Bailiff, Birt, pioneered the routine appointment of Guardians and lawyers to act for children in care proceedings, with the assistance of a number of Jersey lawyers willing to assist in such cases. Unfortunately, the decision in Re B soon restricted such practice to the limited horizons in which the 2002 Law was conceived; a period in which social work practice and child protection generally in Jersey has since been criticised as suffering from systemic faults, whether by the Jersey Care Inquiry, the Serious Case Review of child BA 2010, the recent Ofsted Report or the X children’s case that has seen the Minister for Health admit negligence in the late 1990s and early part of the following decade. (In this latter case, the damages of c.£160 million are soon to be adjudicated upon.)
Re B found that there was a discretion enjoyed by the Court in both the appointment of a Guardian and a lawyer for a child; that the Royal Court was not bound to appoint a Guardian, and even then, would only grant a lawyer in specific circumstances. It was clear from Re B (& from subsequent cases) that even a child potentially being removed from a parent would not,in itself, be sufficient for the appointment of a lawyer for that child.
Will the States now take a view on what they want to happen?
Re B therefore signalled a regressive change in approach that has been the subject of much debate. It is a matter for the States of Jersey to choose if they wish the current approach to the representation of children to be interpreted against the backdrop of an era that was found to be lacking, or to insist that our vulnerable children benefit from the tandem model of representation by both Guardian and lawyer in all care and other public law proceedings. The States should have no need of reminding of the recent Inquiry’s words at para.3.19 that:
“Child care legislation in Jersey has failed to keep pace with developments in social care and children’s rights in the developed world. Historically, there has been insufficient regard to the needs and rights of children at risk.”
At the very least, vulnerable Jersey children should not have more limited rights than their counterparts in England. Interestingly, even in a Ministry of Justice report published in the UK earlier this year (with a view to achieving efficiencies and savings) the following findings are noteworthy:
- “There was consensus across the focus groups and the judiciary that representation [of a child] by a solicitor at all [public law children] hearings is essential.” This is not the current view of the Royal Court of Jersey as set out in Re B.
- “The vast majority of participants, including the judiciary, struggled to identify a type of case [in public law proceedings] where neither a guardian nor a legal representative were required to represent or act in the child’s interests.”
- “The difficulty identified with proposing a ‘type’ of case or scenario where the tandem model may not be appropriate was the dynamic nature of care proceedings. Research participants agreed that it was common for a seemingly straightforward, simple case to turn into a complex case. Examples were consistently cited where the issues of the case are agreed at the advocates meeting only for positions to change and new issues to emerge in court.“
- “Professionals believed that taking either the legal representative or the guardian out of the process would ultimately extend the case. This was because they would not be able to gather the knowledge required to narrow the issues from the case outset. ‘So without lawyers being involved, it’s likely that matters perhaps couldn’t be advanced as far as that and the court would need to hear more than it otherwise might have to.’ Solicitor, FG4”
- “Conversely, participants also argued that the absence of a lawyer to advise guardians on the complexity of the law could disadvantage the children subject to proceedings. ‘I think it would be a real disaster to say that guardians must do the job, of the independent role, on their own without the advice.’ Barrister, FG3.” As a result of the Jersey case of Re B, however, Guardians can be appointed without a lawyer, and while they might be able to get ad hoc legal advice before Court, they just have to do the best they can while in court. Occasionally, they might be able to persuade the Royal Court that there are special features so that a lawyer can, belatedly, then be appointed. But as the case of Re B, and more recently, Re Bradley  JRC 126 demonstrate, the Guardian has to be plucky and risk the disapproval of the Judge in making that application in Jersey. “We were generally not impressed therefore with the submission that they [complexity, instructing experts, potential arguments on the law] were good reasons to appoint a lawyer.” The judge observed that otherwise “they would apply in every case.” (Re Bradley at para.5.) In my respectful view, they do apply in virtually every case and that is why the current approach in Jersey is wrong. A system of law that is happy to appoint lawyers in trust cases to act for children (even if they are not yet born) but is reluctant to appoint a lawyer when they might face permanent separation from their family, is not coherent but topsy-turvy.
Jersey Family Court Advisory Service
Following the newly discovered power to appoint a Guardian, recourse had generally to be made of professionals outside of Jersey to fulfil such role until local professionals could be appropriately trained. JFCAS, which was only created in the last decade, provides local Guardians in cases where they might be appointed. JFCAS are so very important for scrutinising the plans put forward for children and ensuring that the best options for vulnerable children are pursued. The Guardian, in particular, provides an important part of the “checks and balances” in public law proceedings. Frequently this brings the Guardian into opposition with the Children’s Service and even rarely into conflict; the Guardian also being said to enjoy an investigatory power to look at the documents of the Children’s Service so as to ensure all relevant matters are considered. From my own experience with working with the local Jersey Guardians, they work extremely hard, long hours and are dedicated to their work.
The trouble is, however, different people and different agencies have different views on what their role actually is. Even the Jersey Courts have since 2008 referred to the Guardian’s role in different terms given the lack of clarity in our own statute. The problem is exacerbated because there is still no JFCAS document setting out in detail the precise role that they say a Guardian performs. Are they just to “assist and befriend” the child under article 75(1b); do they “represent” the child under article 75(1a)); do they do both?; the Guardian must safeguard the child’s human rights according to Re B but what does this mean in practice?; as a person not trained as a lawyer, when should a Guardian seek the appointment of a lawyer, and what happens if this conflicts with the view expressed in Re B?; does a Guardian have the right to inspect the documents of other parties such as the Minister – which is conferred on a UK Guardian under s.42 of the Children Act 1989 because this Act specifically refers to Guardians, but we took this bit out for our 2002 Law!; is hearsay in a Guardian’s report admissible perhaps as a form of “welfare report” under article 9? Unfortunately, the concept of Guardian was wholly omitted from the 2002 Law & there is no specific provision dealing with a Guardian’s report, or indeed an exemption for hearsay evidence in children proceedings generally. (Note rules have not been made in this respect under article 71 of the 2002 Law; In the matter of EE  JLR Note 39 at para.50 “there are no special rules of evidence which apply in care proceedings” and therefore the Civil Evidence (Jersey) Law 2003 applies. Contrast however with Minister v A & B  2 JLR 119 at para.34 “… frequently in these cases, particularly at the time of an application for an interim care order, the evidence put before the court is hearsay evidence…”)
Discussions as to what might be included in a document setting out the Guardian’s role have taken place but over the years nothing has surfaced. One would hope that any document that is created emanates from JFCAS; reflects the independent role that JFCAS is intended to perform and benefits from advice from both inside and outside the Island. It is hoped that it might be a progressive document with the Guardian envisaged as proactive and “muscular” in terms of role and powers; poised to challenge should the welfare of a child demand. Indeed, given the reluctance by others to put their head above the parapet, and to challenge the status quo – as is vividly described by the Jersey Care Inquiry- it is to be hoped that JFCAS will not be slow in coming forwards to the extent that it might disagree with, for example, the current approach of the Royal Court to the representation of vulnerable children.
It is for this reason that the website page of JFCAS – which is merely “housed” within the Probation Department’s website- needs urgent overhaul and resources deployed. The current page is rather lost; the hyperlinks to leaflets have not worked for at least the last year and it is also not child friendly. A comparison with the UK equivalent “CAFCASS” website – which to my ageing eyes seemed a little complicated – does at least demonstrate the lack of initiative and resources deployed in this particular area in Jersey, but it is capable of straightforward rectification. The image & message of JFCAS should reflect the good work that they do in practice and their true significance to child protection which cannot be overestimated. It would be useful if the States could therefore bolster the role of JFCAS & support it in its ongoing evolution.