Appeal against decision of the Royal Court dated 3rd June 2016.
[2016]JCA120
Court of Appeal
12 July 2016
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Before :
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William Bailhache, Bailiff., President
John Martin QC, and
Sir Michael Birt
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Between
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A (the grandmother)
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Appellant
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And
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Minister for Health and Social Services
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First Respondent
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And
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B (the mother)
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Second Respondent
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And
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Nicole (the child, acting through her
Guardian Sue Clarke)
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Third Respondent
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Advocate R. S. Tremoceiro for the Appellant.
Advocate S. M. Roberts for the First
Respondent.
Advocate J. F. Orchard for the Second
Respondent.
Advocate B. J. Corbett for the Third
Respondent.
judgment
birt ja:
This is the judgment of the Court.
1.
By notice
of appeal dated 10th June, 2016, the Appellant (“the
grandmother”) appeals against a decision of the Royal Court (Commissioner
Clyde-Smith with Jurats Liston and Ronge) dated 3rd June, 2016,
(unpublished) whereby it dismissed her application for a further parental
capacity assessment of her suitability as a long-term carer of her
granddaughter Nicole (this is not her real name), who is the subject of care
proceedings instituted by the Minister for Health and Social Services
(“the Minister”). We
announced our decision to allow the appeal at the conclusion of the hearing and
now give our reasons.
2.
The
grandmother contends that she may appeal against the Royal Court’s
decision as of right whereas the Minister has raised the question of whether
leave to appeal is required. Accordingly,
having set out the factual background, we propose to deal first with the
question of whether leave is required before turning to consider the
merits.
Factual Background
3.
Nicole was
born in July 2015 and is therefore 1 year old. The Second Respondent (“the
mother”), who is aged 18 and is the daughter of the grandmother, is her
mother. Nicole’s father has
played no part in these proceedings.
4.
The mother
has herself been a looked after child since the age of 12 and has experienced
multiple foster placements and carers since that age. Following Nicole’s birth,
arrangements were made to provide support for her. However, concerns emerged as to the care
of Nicole and on 23rd July, 2015, Nicole was placed in foster care
with the agreement of the mother.
5.
On 4th
September, 2015, the Royal Court made an interim care order. The care plan lodged by the Minister at
the time envisaged that Nicole and the mother should be placed within a parent
and child foster placement with a view to a parenting assessment being carried
out. Sadly this was not successful
and the mother left the placement on 19th November, 2015. Nicole has remained in foster care since
then. A psychological report by Dr
Mair Edwards dated 3rd December, 2015, was not positive from the
mother’s point of view and she then put forward the grandmother, who is
aged 42 and lives in the UK with her husband and their 4 year old child Robert,
as a connected person carer for Nicole.
A viability assessment of such a placement was carried out by Jackie
Boyle, a social worker employed by the Children’s Service. Her report of 18th January,
2016, was negative and did not recommend that a full connected person’s
assessment be undertaken in respect of the grandmother.
6.
The
grandmother challenged that conclusion and, because the mother had also put
forward the grandmother’s mother-in-law (“the step
great-grandmother”) as a potential carer, the Minister agreed that both
could be the subject of a connected person’s assessment to be carried out
by an independent social worker.
That assessment was ordered by the Royal Court on 1st March,
2016, which entailed adjourning the final hearing date, which had at that stage
been fixed for 14th – 18th March, 2016.
7.
The
appointed independent social worker was Ms Sue Bach. We shall revert later to the detail of
her report but it was filed on 7th April, 2016, and did not
recommend either the grandmother or the step great-grandmother as a suitable
carer for Nicole.
8.
There
being no other viable members of the family to be considered as carers, the
current care plan is for Nicole to be adopted and the Minister will be seeking
an order for her to be freed for adoption at the final hearing, which was fixed
for 11th – 15th July, 2016. The grandmother has however been made a
party to the proceedings and she has been given leave to make an application
for a residence order, which would be heard at the same time.
9.
The matter
which came before the Royal Court on 31st May was the
grandmother’s application for a further connected person’s
assessment of her, she being critical of a number of aspects of the assessment
by Ms Bach. It was this application
which was rejected by the Royal Court in its judgment of 3rd June,
against which the grandmother now appeals.
The grandmother seeks an order from this Court that a further assessment
of her as a possible carer for Nicole should be carried out.
10. We shall consider the arguments put forward by
Advocate Tremoceiro in support of the appeal later in this judgment but we must
first consider whether leave to appeal is required.
Is leave to appeal required?
11. This issue arises because of an apparent inconsistency
between the provisions of the Court of Appeal (Jersey) Law 1961
(“the 1961 Law”) and the Children (Jersey) Law 2002
(“the Children Law”).
12. Article 13 of the 1961 Law provides (so far as
relevant) as follows:-
“13. Limitation on Appeal
No appeal shall lie under this
Part:- ……..
(e) without
the leave of the court whose decision is sought to be appealed from, or of the
Court of Appeal, from any interlocutory order or interlocutory judgment,
except:-
(i) where
the liberty of the subject or the custody of minors is concerned, ..
(ii) ….
(iii)…”
13. Rule 3 of the Court of Appeal (Civil) Rules
1964 (“the Court of Appeal Rules”) provides that notice of
appeal or, if leave to appeal is required, an application for leave to appeal
must be made within 28 days from the date on which the judgment or order of the
court below was pronounced.
14. Article 68 of the Children Law provides (so far
as relevant) as follows:-
“68. Appeals
(1) Subject
to any express provisions to the contrary made by or under this Law, an appeal
shall lie:-
(a) where
the Judicial Greffier is exercising the functions of the court in accordance
with Rules of Court, to the court; and
(b) in
any other case, to the Court of Appeal,
against the making or refusal to
make an order under this Law other than in relation to an interim order for
periodical payments under Schedule 1.”
15. Rule 24 of the Children Rules 2005
(“the Children Rules”) provides that, where an appeal lies to the
Court of Appeal under Article 68(1)(b) of the Children Law, the notice of
appeal must be filed and served within 10 days of the giving of reasons by the
court for the decision against which the appeal is brought or, in the case of
an appeal against an interim care order or an interim supervision order, within
7 days of the making of the order.
16. Advocate Tremoceiro, supported by Advocate
Corbett and Advocate Orchard, submits that leave to appeal is not
required. He points out that the
1961 Law and the Rules made thereunder are dealing with appeals in
general. They must be taken as being
subject to any specific provision to different effect which appears in another
statute or in rules made under another statute. Article 68(1) of the Children Law
provides that…. “an appeal shall lie”. This must confer an unfettered right of
appeal. That, he submits, is
confirmed by Rule 24 of the Children Rules which refers only to a notice of
appeal, not to an application for leave to appeal.
17. He further submits that the order in this case
was an “order under this Law….” because it was made
in the course of proceedings seeking a care order under the Children Law. Furthermore, the order sought was of the
type listed in Rule 13 (2) of the Children Rules, which were made pursuant to
the power in that behalf conferred by the Children Law. Rule 13 (2) provides as follows:-
“(2) The Court in any proceedings may, of its own
motion or on the written request of any party in Form C2 give, vary or revoke
directions for the conduct of the proceedings, including:-
(a) the
timetable for the proceedings;
(b) varying
the time within which or by which an act is required, by these Rules or by
other Rules of Court, to be done;
(c) the
attendance of the child;
(d) the
appointment of a person under Article 75;
(e) the
service of documents;
(f) the
submission of evidence, including experts’ reports;
(g) the
preparation of welfare reports under Article 9;
(h) consolidation with other proceedings,
and the power of the Court under
this paragraph includes a power to make interim orders and orders as to
costs.”
18. Advocate Roberts, on behalf of the Minister,
accepts that it is unclear whether leave to appeal is required but contends
that, on balance, it is not. She
submits that Article 68 has to be read in conjunction with Article 13 of the
1961 Law, so that the reference to “any order” in Article
68 is interpreted as being subject to the terms of Article 13 (1) (e), with the
consequence that, if the order in question is interlocutory, leave to appeal is
required unless it falls within one of the exceptions listed in Article 13 (1)
(e) (i), i.e. it concerns the liberty of the subject or the custody of a minor.
19. We are unable to accept Advocate Roberts’
submission for the following reasons:-
(i)
Article 68
(1) provides that “….an appeal shall lie…..”
(emphasis added). This is language which
strongly suggests an unfettered right of appeal rather than one which is qualified.
(ii) Such an interpretation is consistent with Rule
24 of the Children Rules which refers only to a notice of appeal, not to any
application for leave to appeal.
(iii) Article 12 (2) of the 1961 Law confers a
general jurisdiction on the Court of Appeal to hear appeals from any judgment
of the Royal Court in any civil court or matter but is expressed to be “…….
subject as otherwise provided in any other enactment…..”.
(iv) Article 13 of the 1961 Law expressly applies to
appeals under Part 2 of that Law (i.e. pursuant to Article 12). It would have been open to the States to
say nothing about appeals in the Children Law in which event an appeal would
have lain to the Court of Appeal under Article 12 of the 1961 Law which would
in turn would have been subject to Article 13. However the States did not proceed in
that manner. The States chose to
provide specifically for an appeal in the Children Law and it is accordingly
the terms of that Law which determine whether leave to appeal is
required in any case.
(v) Our view that the wording of Article 68
suggests an unfettered right of appeal even in the case of interlocutory orders
is consistent with Rule 24 (3) of the Children Rules, which refers specifically
to interim care orders and interim supervision orders (which are therefore
interlocutory orders) but provides simply for a different time limit for filing
the notice of appeal in such cases.
The Rule does not envisage the need for an application for leave to
appeal.
20. In our judgment therefore, Article 68 confers a
right of appeal (for which no leave is required) to the Court of Appeal in
respect of any decision of the Royal Court to which it (Article 68)
applies. It is stated to apply to “…..
the making or refusal to make an order under this Law”. The question therefore is what is meant
by the expression “…an order under this Law”.
21. There are two possible interpretations. The expression could, as Advocate
Tremoceiro submits, mean any order made in proceedings to which the Children
Law applies. This would appear to
include all public and private law proceedings concerning children.
22. An alternative construction is that an order is
only made “under this Law” if it is an order the power to
make which is expressly referred to or conferred by the Law. Examples of orders which the court is
empowered to make as a result of the provisions of the Law itself are parental responsibility
orders (Article 5), orders for contact, residence, prohibited steps or specific
issues (Article 10), financial orders under Schedule 1 (Article 15), secure
accommodation orders (Article 22), final care orders and supervision orders
(Article 24) and emergency protection orders (Article 37). This is not an exhaustive list but one
can well understand the States concluding that there should be an unfettered
right of appeal against such important orders.
23. Each construction carries with it undesirable
consequences. If the first
construction is adopted, it means that there is an unfettered right of appeal
in relation to a great variety of routine orders of a case management nature
merely because such order was made in the course of proceedings under the
Children Law. Decisions such as
whether to adjourn a case or to fix a timetable for the filing of reports are
examples of routine case management decisions which are made in litigation of
all descriptions. In all other
types of litigation, such decisions can only be appealed with leave. It might therefore be thought surprising
if the States intended to confer an unfettered right of appeal merely because
the order was made in the course of proceedings under the Children Law.
24. Conversely, if the alternative construction is
adopted, it would mean that there would be two completely separate routes of
appeal against orders made in cases under the Children Law, with separate
governing provisions and timetables.
If the order to be appealed was of the type referred to at paragraph 22
above, there would be an unfettered right of appeal and the timetable and
procedure for appealing would be as laid down in Rule 24 of the Children
Rules. Conversely, if the order did
not fall within that category but was a routine interlocutory order, not only
would there be a need to obtain leave (pursuant to Article 13 (1) (e)) but the
timetable and procedure for appealing would be governed by the Court of Appeal
Rules and not the Children Rules (because the latter are expressed only to
apply to appeals under Article 68 (1) (b)). This too would seem to lead to a highly
unsatisfactory position. It would
lead to great uncertainty as to the correct procedure for appeals and it is hard
to attribute to the States an intention that the procedure for appealing from
orders made in cases under the Children Law should be so complex and uncertain.
25. Ultimately, it is a matter of
interpretation. Not without some
hesitation – our preliminary view on reading the papers was that the
alternative interpretation was correct – we have concluded that the
construction contended for by Advocate Tremoceiro (supported by Advocate
Orchard and Advocate Corbett) is correct.
Although there would undoubtedly be an inherent power in the Royal Court
to make the sort of order referred to in Rule 13 of the Children Rules, the
fact that such order is made under Rules promulgated pursuant to the power in
that behalf conferred by the Children Law makes it difficult to conclude that
such orders are not made “under this Law”. Accordingly, we hold that no leave to
appeal is required against any order made in the course of proceedings to which
the Children Law applies.
26. As already stated, this has the consequence
that there is a right of appeal against the most minor and routine of orders
e.g. an adjournment, fixing a timetable for steps to be taken, etc. We wish to emphasise that attempts by
parties to appeal against case management decisions by the Royal Court are
likely to be given short shrift, and may attract adverse cost
consequences. In this respect, we
wholeheartedly endorse the observation of Sir James Munby, President of the
Family Division in Re H – L (a child) [2013] EWCA Civ 655 at
paragraph 5 where he said as follows:-
“There are, however, some
more general points that merit brief discussion. In Re T G (care proceedings: case
management: expert evidence) [2013] EWCA Civ 5, I encouraged case
management judges to apply appropriately vigorous and robust case management in
family cases; I emphasised the very limited grounds upon which this court –
indeed, I should add, any appellate court – can properly interfere with
case management decisions; and I sought to reassure judges by pointing out how
this court has recently re-emphasised the importance of supporting
first-instance judges who make robust but fair case management decisions. I take the opportunity to reiterate
these important messages.”
27. We would also repeat the observation of this
Court in Alhamrani v Alhamrani [2009] JLR N 50 where it was stated that
case management decisions are conventionally respected by the Court of Appeal
unless they are plainly wrong, which is a very high hurdle for an appellant.
28. Despite the likely approach of this Court as
summarised in the preceding two paragraphs, it does not seem to us satisfactory
that there is no requirement to seek leave to appeal in relation to
interlocutory orders of this nature.
We recommend that consideration be given to introducing a requirement
for leave in appropriate cases.
There would appear to be vires
to do so by amending the Children Rules, as Article 68 says specifically that
the right of appeal which it confers is…..’subject to any express
provisions to the contrary made by or under this Law….’.
Merits
(i) Further
background
29. We now turn to consider the merits of the
appeal by the grandmother. In order
to do so, it is necessary to describe the background in a little more
detail. The grandmother previously
resided in Jersey together with her then husband and her three children, namely
two sons and her daughter (i.e. the mother). There was a history of involvement on
the part of the Children’s Service and all three children were placed on
the child protection register in July 2009. The Children’s Service were
concerned about the grandmother’s treatment of her children, particularly
the mother.
30. On 18th December, 2009, the
grandmother pleaded guilty to a charge of common assault on the mother and was
sentenced to 40 hours’ community service. Private law proceedings between the
grandmother and her former husband resulted in a residence order in relation to
the mother being made in favour of the former husband. Ultimately, in January 2010, the
Minister instituted public law proceedings and obtained an interim care order
in respect of all three of the grandmother’s children. Although the grandmother filed a
statement seeking the return of the children to her care, she left Jersey
shortly afterwards and went to live in Manchester with her present
husband. She left without informing
the children or saying goodbye to them and took no further part in the care
proceedings. Following her
departure, residence orders were made in respect of all three children in
favour of the former husband but in relation to the mother, the placement
rapidly broke down and thereafter the mother experienced a number of foster and
residential placements. The
grandmother has had no contact with her sons since she left Jersey and until
recently very limited contact with the mother.
31. When the grandmother’s son Robert was
born, UK Social Services became involved because of concerns as a result of the
grandmother’s history in Jersey and care proceedings were
instituted. This Court has not seen
any of the papers but it is clear that, after assessments of the grandmother
and her present husband, it was felt that no order was necessary and Robert has
since then lived with the grandmother and her husband. There is no suggestion that the
grandmother’s parental care of Robert is unsatisfactory; on the contrary
Ms Bach described it in her evidence before the Royal Court as “in excess of good enough”.
32. The grandmother’s case is that she has
changed since her time in Jersey which culminated in the care proceedings in
2009/10. She has undergone therapy
since then and has been rigorously assessed by the UK authorities in connection
with the care proceedings instituted in respect of Robert. The conclusion was reached in those
proceedings that Robert may safely be left in the care of herself and her
husband.
33. The grandmother considered that the report from
Ms Bach concentrated almost exclusively on the history of events in Jersey and
did not give proper consideration to how the grandmother had changed since that
time and to the new life which she has established with her husband and their
son Robert. She therefore applied
to the Royal Court for a further assessment.
34. Unusually, when her application came before the
Royal Court on 31st May, evidence was heard from the grandmother and
from Ms Bach. Normally, such
applications would be considered upon the papers supplemented by oral
submissions from counsel. Unfortunately,
a practical problem arose because it transpired at the beginning of the hearing
that Ms Bach had to leave at lunch time in order to catch her plane back to
England. Although the Commissioner
did his best to achieve fairness as between counsel, this had the consequence
(following the time taken by the grandmother giving evidence) that Advocate
Tremoceiro, Advocate Orchard and Advocate Corbett all had their
cross-examination of Ms Bach cut short, so that they were unable to put to Ms
Bach all the points which they wished to put.
35. As already stated, the Royal Court rejected the
grandmother’s application. At
paragraph 12 of its judgment (unpublished) the Court stated:-
“We make no observation on
the merits of the conclusions the independent social worker reached, as that is
a matter for the Court at the final hearing, but on the evidence before us we
do not regard the way she carried out her work, the time she spent in
interviews, the way she conducted herself in those interviews and her analysis
were such as to justify this exercise being undertaken again by yet another
social worker……”
The difficulty with this finding is that it
was made upon very limited evidence because time had not permitted counsel to
explore the matter fully.
36. More significantly, the Royal Court accepted
there appeared to have been little consideration of the grandmother’s
current position and ability to parent Nicole because of the findings in
relation to Jersey. The Court
encapsulated its findings as follows:-
“14. Whilst it is correct to say that the independent
social worker did not go into detail about the arrangements that would be put
in place if the child went to live with the maternal grandmother or about her
ability and that of her husband to care for the child as well as Robert (and
what transpired at the UK care proceedings) and whilst it is also correct to
say that in terms of the process, there was no separate in-depth interview with
the maternal grandmother’s husband, that is because the independent
social worker had concluded, for the reasons set out in her analysis of
paragraph 9.28 – 9.39 that such a placement was not viable, in her view
overwhelmingly so. It is not
necessary for us to set out that analysis again, but it is fair to say that
there is a significant history in this case.
15. Because
the independent social worker had concluded that the placement was not viable,
there was no need, in her view, to go any further into the maternal
grandmother’s current circumstances or into her capacity to parent Robert
(and the UK care proceedings). She
said that to investigate further into the maternal grandmother’s capacity
to parent Robert would have been disproportionate.”
(ii) Contentions
37. Advocate Tremoceiro, Advocate Orchard and
Advocate Corbett all made submissions which, whilst put somewhat differently
with different emphasis in each case, nevertheless were generally to the same
effect. Accordingly, we propose to
summarise very briefly the overall effect of those submissions:-
(i)
The
Minister is proposing that Nicole be freed for adoption. There is clear authority that this is a
course of last resort and that all other options must be fully explored before
a child is placed for non-consensual adoption.
(ii) Given the current inability of the mother to
provide a home, the only real alternative to adoption is a placement with the
grandmother. That option must
therefore be fully explored.
(iii) The assessment of the grandmother by Ms Bach is
flawed. It relies exclusively on
the grandmother’s history and difficulties as evidenced in the Jersey
care proceedings. The assessment
does not consider or address whether the grandmother has (as she submits)
changed and is now in a position to provide adequate parenting not only of Robert
but also of Nicole. In particular,
the report does not address the fact that the grandmother and her husband have
been exhaustively assessed as part of the UK proceedings and that the
authorities in that case must, by necessary implication, have considered that
the grandmother had changed in order to permit her to retain the care of Robert. There was accordingly a significant lacuna in the report.
(iv) That lacuna
could not be cured by obtaining a supplemental report from Ms Bach or allowing
her to give oral evidence about the matter at trial. That is because there was no evidence
that she had in fact asked the necessary questions about the
grandmother’s current position and whether she had changed; for example,
she had not ascertained that the grandmother had undergone therapeutic
treatment following her departure from Jersey, nor had she spent any
significant time with the grandmother’s husband. If she had failed to ask the necessary questions,
then there might be enquiry on an application for a freeing order under the Adoption
(Jersey) Law 1961 as to whether any refusal by the mother to give her
consent to that course of action was unreasonable. Furthermore, there would be a perception
that, whatever was said in any supplemental report, Ms Bach had in reality made
up her mind on the basis of the information from the Jersey proceedings and she
would therefore simply be plugging the gap in her report.
(v) There was a very substantial risk that, if the
final hearing went ahead on the basis of the present report, the Royal Court
would find itself in the situation, after hearing all the evidence, that it
simply did not have enough evidence about the current position of the
grandmother to be able to rule her out as a potential carer before taking the
drastic step of adoption. The case
would therefore have to be put off at that stage after the court had heard all
the evidence. Although delay was
always to be avoided if possible, it was preferable to incur a reasonably short
delay at this stage in order to obtain the further assessment so that all the
required evidence could be before the Royal Court at the final hearing.
38. On behalf of the Minister, Advocate Roberts did
not dispute the need for the Royal Court to investigate all possible options
before freeing a child for adoption but submitted that that requirement would
be satisfied in the present case.
We would summarise briefly her submissions as follows:-
(i)
The order
of the Royal Court was a discretionary case management decision. This Court should not intervene merely
because it might have reached a different decision. It could only do so if satisfied that
the Royal Court had reached a decision which was plainly wrong.
(ii) That was not the case here. The Royal Court had had the advantage of
hearing evidence from the grandmother and Ms Bach and was entitled to find, as
it had, that it had sufficient evidence concerning the possibility of placing Nicole
with the grandmother.
(iii) Ms Bach had explained why she had not dealt
with the current position of the grandmother. This was because she had reached the
opinion that the family dynamics resulting from the events in Jersey would be
relevant to Nicole’s care (because of the link with the mother) in a way
that they were not relevant in relation to Robert. Ms Bach had come to the conclusion that
there were too many unresolved issues from that difficult period to allow for a
satisfactory placement and this was a matter for her and for the Royal Court to
weigh up in due course.
(iv) If the Court felt that there was a deficiency
in the reasoning in the report, this could be cured either by Ms Bach providing
a supplementary report explaining her views in relation to the
grandmother’s current position and the evidence from the UK proceedings
or by Ms Bach giving evidence of these matters at trial. Either way there would then be no gap in
the evidence, and the Royal Court would be able to proceed safely to reach a
decision.
(v) However, her primary submission remained that
this was not necessary and the Royal Court was entitled to conclude that delay
should be avoided and that it would be in a position to reach a decision at the
final hearing on the basis of the current evidence.
(iii) Discussion
39. We have reminded ourselves of the high threshold
for interfering in discretionary decisions of the Royal Court. However, this decision, although in form
a case management decision, carries with it enormous implications for Nicole’s
welfare. Although the mother hopes
to be in a position at some time in the future to provide a home for Nicole,
she does not at present feel able to do so. It follows that, at present, the only
alternative to adoption is a placement with the grandmother. On the basis that the current
assessments of the grandmother are negative, it seems likely that the Royal
Court may be driven to the conclusion that there is no alternative to
adoption. That in itself of course
is no reason for ordering a further assessment. However, if this Court concludes that
there are gaps in the assessments so that not all the necessary information
will be before the Royal Court, Nicole’s welfare demands that the gaps
are filled.
40. In all the circumstances we have concluded that
there should be further assessment of the grandmother and that the appeal
should be allowed for the reasons which follow.
41. In Re B – S (Children) [2013] EWCA
Civ 1146, the English Court of Appeal emphasised two points; first, that
non-consensual adoption is a measure of last resort; and secondly, that the
evidence before the court must therefore address all options which are
realistically possible.
42. In support of the first point, we would quote
paragraph 22 of the judgment as follows:-
“22. The language used in Re B is striking. Different words and phrases are used,
but the message is clear. Orders
contemplating non-consensual adoption – care orders with a plan for
adoption, placement orders and adoption orders – are ‘a very
extreme thing, a last resort’, only to be made where ‘nothing else
will do’, where ‘no other course [is] possible in [the
child’s] interests’, they are ‘the most extreme
option’, a ‘last resort – when all else fails’, to be
made ‘only in exceptional circumstances and where motivated by overriding
requirements pertaining to the child’s welfare, in short, where nothing
else will do’; see Re B paragraph 74, 76, 77, 82, 104, 130, 135, 145,
198, 215.”
43. The second point is dealt with at paragraphs 33
and 34 of the judgment which read as follows:-
“33. Two things are essential – we use that word
deliberately and advisedly – both when the court is being asked to
approve a care plan for adoption and when it is being asked to make a
non-consensual placement or adoption order.
Adoption – Essentials; (i)
Proper Evidence
34. First,
there must be proper evidence both from the local authority and from the guardian. The evidence must address all the
options which are realistically possible and must contain an analysis of the
arguments for and against each option. As Ryder LJ said in Re R
(Children)… what is required is:-
“evidence of the lack of
alternative options for the children and an analysis of the evidence that is
accepted by the court sufficient to drive it to the conclusion that nothing
short of adoption is appropriate for the children.”
The same judge indicated in Re
S, K v The London Borough of Brent….. that what is needed is:-
“an assessment of the
benefits and detriments of each option for placement and in particular the
nature and extent of the risk of harm involved in each of the options.”
McFarlane LJ made the same point in
Re G (a Child)…. when he identified:-
“the need to take into
account the negatives as well as the positives of any plan to place a child
away from her natural family.”
We agree with all of this.” [Original emphasis]
44. We also agree.
45. As already stated, it is this Court’s
understanding that, at present, the only possible alternative to adoption is a
placement with the grandmother. It
follows that, before concluding that there is no alternative to adoption, the
Royal Court must be provided with satisfactory evidence concerning the
possibility of a placement with the grandmother.
46. Ms Bach’s report in effect concludes that
it does not matter that the grandmother and her husband are providing more than
“good enough” care to Robert. That is because it is her opinion that
the events giving rise to the Jersey proceedings and the unresolved issues
therefrom mean that a placement with the grandmother is simply not viable. It is of course possible that, after
hearing all the evidence, the Royal Court will agree with that view. However we do not see that the Royal
Court can properly fulfil its role of considering all other options unless it
is provided with appropriate evidence about the grandmother’s current
position as well as her past position.
She has undergone therapeutic treatment since the events in Jersey, she
has undergone rigorous assessment by the UK authorities, Robert as a result has
been left in her care, and she and her husband are apparently providing more
than good enough care for Robert.
In our judgment, these are clearly matters which need to be thoroughly
investigated so that the Royal Court is given all the necessary information
about the grandmother’s current position before considering whether the
historical events in Jersey do indeed outweigh any positive developments since
then. Without such evidence, it
seems to us that the Royal Court will simply not be in a position to consider
adequately whether or not it is convinced by Ms Bach’s view.
47. We have been assisted in reaching this
conclusion by the views of the guardian.
The guardian is there to represent solely the interests of Nicole and it
is clear that the guardian is very troubled by the lack of consideration of the
grandmother’s current position and of the UK proceedings in Ms
Bach’s assessment and that this has caused real difficulties for the
guardian in coming to a conclusion as to what is best for Nicole. It is noteworthy that the guardian
strongly supports the application for further assessment.
48. We are of course conscious of the need to avoid
delay and this is given statutory force by Article 2 (2) of the Children
Law. It is important that Nicole
should be placed in her permanent home (wherever that may be) as soon as
possible so the necessary bonds of attachment can develop. Nevertheless, we think there is a high
probability of there being delay in any event because of the Royal Court being
unable to consider adequately the viability of a placement with the grandmother
as an alternative to adoption and therefore having to adjourn the case for
further evidence. We think the
delay is likely to be shorter and less disruptive if further assessment is
ordered at this stage.
49. We also wish to emphasise that our decision
says nothing about what may be the eventual outcome. We are not ordering a further assessment
simply because the current assessment is negative towards the grandmother. We are doing so because of our agreement
with the guardian (and the mother and grandmother) that the current assessment
has not adequately considered the grandmother’s current position. Such future assessment may end up
endorsing the views of Ms Bach or may not.
That is not the issue. The
necessity is simply to obtain the necessary evidence upon which the Royal Court
can safely act.
50. It is for these reasons that we allowed the
appeal. Having heard from the
parties when we delivered our decision and having regard to some of the
observations in Ms Bach’s report, we concluded that we should order both
a psychological assessment and a parenting assessment by an independent social
worker. We also vacated the trial
date and ordered the parties to attend within seven days to fix a new trial
date for the earliest practicable date.
Authorities
Court of Appeal (Jersey) Law 1961.
Children (Jersey) Law 2002.
Court of Appeal (Civil) Rules 1964.
Children Rules 2005.
Re H – L (a
child) [2013] EWCA Civ 655.
Alhamrani
v Alhamrani [2009] JLR Note 50.
Adoption (Jersey) Law 1961.
Re B – S
(Children) [2013] EWCA Civ 1146.