Children Rules 2005
PART 1
INTRODUCTORY
1 General definitions
(1) In
these Rules, unless the context otherwise requires –
“application”
means an application made under or by virtue of the Children Law or under these
Rules, and “applicant” shall be construed accordingly;
“child”, in
relation to proceedings –
(a) means,
subject to sub-paragraph (b), a person under the age of 18 with
respect to whom the proceedings are brought; and
(b) if
the proceedings are under Schedule 1 to the Children Law, also includes a
person who has reached the age of 18;
“Children Law”
means the Children
(Jersey) Law 2002;
“Court” is to
be construed in accordance with Rule 3(3);
“directions
appointment” means a hearing for directions under Rule 13(2);
“Greffier”
means Judicial Greffier;
“Inferior Number”
means the Inferior Number of the Royal Court;
“leave”
includes permission and approval;
“legal
representative” means an advocate or solicitor acting for a party to any
proceedings, and includes a person authorized by that advocate or solicitor in
accordance with practice directions issued pursuant to Rule 31(2) for a
specific purpose in the proceedings;
“overriding
objective” means the objective referred to in Rule 4(1);
“person appointed
under Article 75” means a person specified by the Court under
sub-paragraph (a) or (b) of paragraph (1), or a person appointed by
the Court under sub-paragraph (b) of paragraph (2), of Article 75;
“private law
proceedings” means proceedings on an application to which Rule 7
applies;
“proceedings”
is to be construed in accordance with Rule 2;
“public law
proceedings” means proceedings on an application to which Rule 6
applies;
“relevant person”
means the person to whom an exclusion requirement under Article 31 or
Article 38, or to whom an application for such a requirement, relates;
“welfare officer”
means a person to whom reference is made in Article 9(1)(a) or (b) who has
been requested to assist in the proceedings.
(2) An
Article referred to in these Rules means the Article so numbered in
the Children Law.
(3) Unless
the context otherwise requires, references in these Rules to Forms are
references to the Forms in Schedule 2.[1]
2 “Proceedings”
References in these Rules
to proceedings are references, unless a contrary intention appears, to
proceedings –
(a) on
an application for an Article 10 order;
(b) on
an application for a care order or a supervision order;
(c) on
an application under –
(i) Article 5(1)(a)
(for parental responsibility by father),
(ii) Article 5(2)
(for parental responsibility by person claiming to be biological father),
(iii) Article 5(4)
(to bring to an end an order or agreement concerning parental responsibility),
(iv) Article 7(1)
(for appointment of a guardian),
(v) Article 8(8)
(to bring to an end an appointment of a guardian),
(vi) Article 14(1)
(for leave to change child’s name or remove child from jurisdiction),
(vii) Article 16(6)
(for Court to consider whether Article 10 order should be varied or
discharged),
(viii) Article 26(5)
(for leave when care order in force to change name of child or remove child
from Jersey),
(ix) Article 27(2)
(by Minister or child for order with respect to contact with child in care),
(x) Article 27(3)
(by parents etc. for order with respect to contact with child in care),
(xi) Article 27(4)
(by Minister for order to refuse contact with parents etc. of child in care),
(xii) Article 27(9)
(for variation or discharge of order with respect to contact with child in
care),
(xiii) Article 30(6)(b)
(for variation of directions with respect to medical etc. assessment of child
subject of interim order),
(xiv) Article 33(1)
(for discharge of care order),
(xv) Article 33(2)
(for variation or discharge of supervision order),
(xvi) Article 33(3)
(by person with whom child is living for variation of supervision order),
(xvii) Article 33(4) (by
person to whom exclusion requirement applies for variation or discharge of
interim care order),
(xviii) Article 33(5) (for
variation or discharge of interim care order insofar as it confers a power of
arrest),
(xix) Article 33(6)
(for substitution for care order of supervision order),
(xx) Article 36(1)
(by Minister for child assessment order),
(xxi) Article 37
(for emergency protection order or any direction relating thereto),
(xxii) Article 40 (for
extension, variation or discharge of emergency protection order),
(xxiii) Article 41(5)(a) (by
officer in an administration of the States for which the Minister is assigned
responsibility for emergency protection order in respect of child in police
protection),
(xxiv) Article 45(1) (for
recovery order in respect of abducted child), or
(xxv) Article 78(1) (for
police warrant to assist in exercise of statutory powers);
(d) under
Schedule 1 to the Children Law (financial provision for children)
except when financial relief is also sought by or on behalf of an adult;
(e) on
an application under paragraph 4(1)(a) of Schedule 2 to the Children
Law (by Minister for approval of Court to child in care living outside
Jersey);
(f) on
an application under paragraph 5(2) of Schedule 3 to the Children
Law (by supervisor for extension of duration of supervision order);
(g) on
an application under paragraph 3(3) of Schedule 5 to the Children
Law (by parent etc. for discharge of an existing order); or
(h) under
Article 22 (order for child to be kept in secure accommodation).
3 Jurisdiction
and meaning of “Court”
(1) There
is reserved to the Inferior Number the hearing and determination of those
applications to which Rule 6 applies that are not by virtue of the Children
Law or these Rules within the jurisdiction of the Bailiff.
(2) The
Greffier may hear and determine those applications to which Rule 7 applies
that are not by virtue of the Children Law or these Rules within the
jurisdiction of the Bailiff.
(3) References
in these Rules to “the Court” in connection with the exercise of
any power or the discharge of any function in any proceedings shall be
construed as references to –
(a) the
Inferior Number;
(b) the
Bailiff; or
(c) the
Greffier,
whichever is appropriate
in relation to the application in those proceedings.
(4) Nothing
in this Rule prevents when appropriate in any proceedings –
(a) an
order being made or directions being given that –
(i) the proceedings,
if being heard or due to be heard by the Greffier, be heard instead by the
Bailiff or the Inferior Number, or
(ii) the
proceedings, if being heard or due to be heard by the Bailiff, be heard instead
by the Inferior Number; or
(b) the
reference of any matter from the Inferior Number or the Bailiff to the Greffier
for hearing and determination.
4 The
overriding objective
(1) The
overriding objective of the Court in proceedings is to deal with cases justly.
(2) Dealing
with a case justly includes, so far as is practicable –
(a) ensuring
that –
(i) the parties are
on an equal footing,
(ii) the
case is dealt with expeditiously, fairly and with the minimum of delay,
(iii) the
welfare of the children involved is safeguarded, and
(iv) distress
to all parties is minimised; and
(b) allotting
to the case an appropriate share of the Court’s resources, while taking
into account the need to allot resources to other cases;
(c) dealing
with the case in ways that are proportionate –
(i) to the gravity
and complexity of the issues, and
(ii) to
the nature and extent of any intervention proposed in the private and family
life of the children and adults involved.
(3) The
Court must seek to give effect to the overriding objective when it –
(a) exercises
any power given to it by these Rules; or
(b) interprets
any Rules.
(4) The
parties are required to help the Court to further the overriding objective.
(5) In
private law proceedings, the Court must further the overriding objective by
actively managing cases.
(6) Active
case management includes –
(a) encouraging
the parties to co-operate with each other in the conduct of the proceedings;
(b) encouraging
the parties to settle their disputes through mediation, where appropriate;
(c) identifying
the issues at an early date;
(d) regulating
the extent of disclosure of documents and expert evidence so that they are
proportionate to the issues in question;
(e) helping
the parties to settle the whole or part of the case;
(f) fixing
timetables or otherwise controlling the progress of the case;
(g) making
use of technology; and
(h) giving
directions to ensure that the trial of a case proceeds quickly and efficiently.
PART 2
COMMENCING CHILD PROCEEDINGS
5 Application
for leave to commence proceedings
(1) If
leave of the Court is required to bring the proceedings, the person seeking
leave must file with the Court –
(a) a
written request for leave in Form C2 setting out the reasons for the
application; and
(b) a
draft of the application (being the documents referred to in Rule 6(2) or
Rule 7(3) or (4) as the case may be) for the making of which leave is
sought together with sufficient copies for one to be served on each respondent.[2]
(2) A
request for leave to commence proceedings may be heard and determined by the
Greffier except a request made –
(a) in
existing public law proceedings; or
(b) when
the child is in the care of or is being looked after by the Minister,
which may be heard and
determined by the Bailiff.
(3) On
considering the request, the Court must either –
(a) grant
the request and thereupon inform the person making the request of the decision;
or
(b) direct
that a date be fixed in accordance with Rule 14 for the hearing of the
request and thereupon inform the person making the request of that direction.
(4) If
leave is granted to bring the proceedings, the application must proceed in
accordance with Rule 6 or Rule 7, as the case may be, except that
paragraph (2) in each case shall not apply.
(5) In
the case of a request for leave to bring proceedings under Schedule 1 to
the Children Law, the draft application under paragraph (1) must be
accompanied by a statement in Form C4 together with sufficient copies for
one to be served on each respondent.
6 Commencement
of proceedings (public law)
(1) This
Rule applies to applications –
(a) for a
care order or supervision order;
(b) under
Article 26(5) (when a care order is in force for leave to change the name
of the child or remove the child from Jersey);
(c) under
Article 27 for an order with respect to contact with a child in care;
(d) under
Article 30(6)(b) for the variation of directions concerning a child who is
the subject of an interim order;
(e) under
Article 33 –
(i) for the discharge
of a care order,
(ii) for
the variation or discharge of a supervision order or of an interim care order,
or
(iii) for
the substitution for a care order of a supervision order;
(f) under
Article 36(1) for a child assessment order;
(g) under
Article 37 for an emergency protection order or a direction relating
thereto;
(h) under
Article 40 for the extension, variation or discharge of an emergency
protection order;
(i) under
Article 41(5) for an emergency protection order in respect of a child in
police protection;
(j) under
Article 45(1) for a recovery order in respect of an abducted child;
(k) under
Article 78(1) for a police warrant to assist in the exercise of statutory
powers;
(l) under
paragraph 4(1)(a) of Schedule 2 to the Children Law for the approval
of the Court to a child in care living outside Jersey;
(m) under
paragraph 5(2) of Schedule 3 to the Children Law for the extension of
a supervision order;
(n) under
paragraph 3(3) of Schedule 5 to the Children Law for the discharge of
an existing order; or
(o) under
Article 22 for an order for a child to be kept in secure accommodation,
made by the Minister or in
proceedings to which the Minister is, or is to be, party.
(2) Subject
to Rule 8, an applicant must file with the Bailiff the application,
consisting of –
(a)
(i) Form C1 or,
where an order is sought in existing proceedings, Form C2, and
(ii) such
of the supplemental Forms C5 to C13 as may be appropriate; or
(b) if
there is no appropriate Form, a statement in writing of the order sought,
together with sufficient
copies for one to be served on each respondent.
(3) If
the application is made in respect of more than one child, all the children
must be included in one application.
(4) Subject
to paragraph (7), on receipt of the application, the Bailiff
shall –
(a) fix
the date for a hearing or a directions appointment; and
(b) endorse
the date so fixed on the copies of the application filed by the applicant and
return them forthwith to the applicant.
(5) In
fixing the date for a hearing or a directions appointment, the Bailiff must
allow sufficient time for the applicant to comply with paragraph (6).
(6) The
applicant must serve a copy of the application on each respondent such number
of days prior to the date fixed under paragraph (4)(a) as is specified for
that application in column (ii) of Schedule 1.
(7) The
Bailiff may, if the Bailiff thinks fit, refer an application to which this Rule
applies to the Greffier and, if the Bailiff does so, the application shall be
treated as an application to which Rule 7 applies.
7 Commencement
of proceedings (private law)[3]
(1) This
Rule applies to applications other than applications to which Rule 6
applies.
(2) Subject
to Rule 8, an applicant must file the application with the Greffier.
(3) The
application must consist of –
(a) whichever
is appropriate of Form C1 or Form C100 or, where an order is sought
in existing proceedings, Form C2; and
(b) in
the case of proceedings under Schedule 1 to the Children Law (financial
provision for children), the supplemental Forms C3 and C4.
(4) If
there is no appropriate Form, the application must consist of a statement in
writing of the order sought.
(5) Enough
copies of the application must be filed to be served on each respondent.
(6) If
the application is made in respect of more than one child, all the children
must be included in one application.
(7) Subject
to paragraph (10), upon the filing of the application the Greffier shall
give the applicant a date for a preliminary directions hearing (in these Rules
abbreviated to “PDH”).
(8) The
applicant must serve on each respondent a copy of the application with the date
and place of the PDH endorsed on it giving not less than 2 clear days’
notice of the PDH.
(9) The
notice required by paragraph (8) may be given by sending it to the last
known address of a respondent who does not have, or is not deemed to have, an
address for service.
(10) The
Greffier may, if the Greffier thinks fit, refer an application to which this
Rule applies to the Bailiff and, if the Greffier does so, the application shall,
unless the Bailiff orders otherwise, be treated as an application to which Rule 6
applies.
8 Commencement
of certain proceedings ex parte
(1) An
application for –
(a) an
Article 10 order;
(b) an
emergency protection order;
(c) leave
to remove a child from the jurisdiction;
(d) a
recovery order; or
(e) a
warrant under Article 78,
may be made ex parte in which case the applicant must file the
application in the appropriate Form in Schedule 2 with the Bailiff.
(2) In
the case of an application for an Article 10 order or an emergency
protection order, the applicant must serve a copy of the application on each
respondent within 48 hours after the making of the order.
(3) If
the Court refuses to make an order on an ex parte
application, it may direct that the application be made inter partes.
8A Disclosure
of addresses[4]
(1) If
in relation to an application a party does not wish to reveal the address of
his or her private residence (or that of any child) the party must give notice
of that address to the Court in Form C14.
(2) Where
notice of an address has been given under paragraph (1), the address shall
not be revealed to any person except by order of the Court.
9 Withdrawal
of application
(1) An
application may be withdrawn only with leave of the Court.
(2) Subject
to paragraph (3), a person seeking leave to withdraw an application must
file and serve on the parties a written request for leave setting out the
reasons for the request.
(3) The
request under paragraph (2) may be made orally to the Court if the parties
and the welfare officer and any person appointed under Article 75 are
present.
(4) Upon
receipt of a written request under paragraph (2) the Court must
either –
(a) grant
the request and thereupon inform the parties and any person appointed under
Article 75 of the decision; or
(b) direct
that a date be fixed in accordance with Rule 14 for the hearing of the
request and thereupon inform the person making the request of that direction.
10 Parties
(1) The
respondents to proceedings shall be those persons set out in the relevant entry
in column (iii) of Schedule 1.
(2) The
persons (apart from the respondents) to whom an applicant must give written
notice of the proceedings, and of the time and place –
(a) of
the hearing or appointment fixed under Rule 6(4)(a); or
(b) of
the hearing fixed under Rule 7(7),
are the persons set out
for the relevant class of proceedings in column (iv) of Schedule 1.[5]
(3) In
any proceedings a person may file a request in Form C2 that he or she or
another person –
(a) be
joined as a party; or
(b) cease
to be a party.
(4) Subject
to paragraph (5), the Court shall either –
(a) grant
the request and thereupon inform the parties and the person making the request
of the decision; or
(b) direct
that a date be fixed in accordance with Rule 14 for the hearing of the
request and thereupon inform the person making the request of that direction,
or, alternatively, the
Court shall invite the parties or any of them to make written representations,
within a specified period, as to whether the request should be granted; and
upon the expiry of the period the Court shall act in accordance with
sub-paragraph (a) or (b).
(5) When
a person with parental responsibility requests that he or she be joined under
paragraph (3)(a), the Court must grant the request.
(6) The
Court in any proceedings may of its own motion direct –
(a) that
a person who would not otherwise be a respondent under these Rules be joined as
a party to the proceedings; or
(b) that
a party to the proceedings cease to be a party.
11 Service
(1) When
service of a document is required under these Rules, it may be
effected –
(a) if
the person to be served is not known by the person serving to be represented by
an advocate or solicitor –
(i) by personal
service through the intermediary of the Viscount, or
(ii) by
ordinary service,
on that person; or
(b) if
the person to be served is known by the person serving to be so represented, by
ordinary service on that person’s advocate or solicitor.
(2) Ordinary
service is effected in accordance with Rule 5/6(1) of the Royal Court
Rules 2004.
(3) When
a child who is a party to proceedings is required by these Rules or other Rules
of Court to serve a document, service must be effected in accordance with
paragraph (1) on the child’s behalf by –
(a) the
advocate or solicitor acting for the child; or
(b) any
person appointed under Article 75,
or, if there is neither
such an advocate or a solicitor nor a person appointed under Article 75, the
Court shall give a direction under paragraph (6).
(4) Service
of any document on a child must, subject to any direction of the Court, be
effected by service on –
(a) the
advocate or solicitor acting for the child; or
(b) any
person appointed under Article 75; or
(c) if
there is neither such an advocate or solicitor nor a person appointed under
Article 75, with leave of the Court, the child.
(5) If
the Court refuses leave under paragraph (4)(c) it shall give a direction
under paragraph (6).
(6) In
any proceedings, when a document is required to be served, the Court may,
without prejudice to any power under these or other Rules of Court, direct
that –
(a) the
requirement not apply;
(b) the
time specified by any Rules for complying with the requirement be abridged to
such extent as may be specified in the direction; or
(c) service
be effected (whether in Jersey or not) in such manner as may be specified in
the direction.
PART 3
PREPARING FOR THE HEARING
12 Welfare
officer
(1) If
the Court has directed that a written report be made by a welfare officer, the
report must be filed at or by such time as the Court directs or, in the absence
of such a direction, at least 10 days before a relevant hearing; and the
Court shall, as soon as practicable, serve a copy of the report on the parties
and any person appointed under Article 75.
(2) In
paragraph (1), a hearing is relevant if the Court has given the welfare
officer notice that the welfare officer’s report is to be considered at
it.
(3) After
the filing of a report by a welfare officer, the Court may direct that the
welfare officer attend any hearing at which the report is to be considered and,
except when such a direction is given at a hearing attended by the welfare
officer, the Court shall inform the welfare officer of the direction.
(4) If
the welfare officer has been directed to attend, any party may, at the hearing
at which the report is considered, question the welfare officer about the
report.
(5) This
Rule is without prejudice to any power to give directions under Rule 13,
15 or 16.
13 Directions
(1) In
this Rule “party” includes any person appointed under Article 75
and, if a request or a direction concerns a report under Article 9, the
welfare officer.
(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 or 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.
(3) If
the Court intends to give, vary or revoke directions under paragraph (2)
of its own motion, it must give the parties notice of its intention to do so
and an opportunity to attend and be heard or to make written representations.
(4) A
request under paragraph (2) must be served on the other parties.
(5) However,
a request under paragraph (2) may, with the leave of the Court, be made
orally or without notice to the parties, or both.
(6) On
considering a request under paragraph (2) the Court must
either –
(a) grant
the request and thereupon inform the parties of the decision; or
(b) direct
that a date be fixed in accordance with Rule 14 for the hearing of the
request and thereupon inform the person making the request of that direction.
(7) The
powers of the Court under this Rule do not affect any other powers of the Court
to give such directions as it thinks fit.
14 Fixing
of hearing dates
(1) In
this Rule “applicant” means –
(a) the
person seeking leave –
(i) to commence
proceedings in accordance with Rule 5(1), or
(ii) to
withdraw an application in accordance with Rule 9(2); or
(b) the
person making a request –
(i) that he or she or
another person be joined as a party, or cease to be a party, to proceedings in
accordance with Rule 10(3), or
(ii) for
directions in accordance with Rule 13(2),
as the case may be.
(2) The
applicant must, if the application or request is to be heard by the Bailiff or
the Inferior Number, apply to the Bailiff in chambers for a date to be fixed
for the hearing of the application or request.
(3) If
the application or request is to be heard by the Greffier, the applicant must
request the Greffier for a date upon which the applicant may apply to the
Greffier for a date to be fixed for the hearing of the application or request.
(4) The
applicant must, not later than 2 days before applying under paragraph (2)
or, as the case may be, paragraph (3), for a date to be fixed, notify in
writing the parties of the time when and place where the applicant will so
apply.
(5) If
the applicant does not apply, within 10 days of the day on which he or she
was notified of the direction of the Court under –
(a) Rule 5(3)(b);
(b) Rule 9(4)(b);
(c) Rule 10(4)(b);
or
(d) Rule 13(6)(b),
as the case may be, for a
date to be fixed for the hearing of the application or request, the application
or request shall, unless the Court orders otherwise, be taken to have been
withdrawn.
(6) The
reference to parties in paragraph (4) includes any person appointed under
Article 75.
15 Preliminary
directions hearing (“PDH”)
(1) This
Rule and Rule 16 apply only to private law proceedings.
(2) Neither
this Rule nor Rule 16 affects the power of the Court at any time under
Rule 13 to give directions.
(3) The
legal representatives of the parties must attend the PDH or, if any party is
unrepresented, that party must attend the PDH in person.
(4) At
the PDH, the Greffier may give directions and make orders –
(a) as to
the date of any subsequent proceedings (including the fixing of further
appointments or hearings for any purpose);
(b) as to
the service of any pleading, Form, statement or document by or on any party to
or person in the proceedings;
(c) as to
anything required to be stated in any pleading, Form, statement or document in
the proceedings;
(d) about –
(i) the valuation of
assets,
(ii) obtaining
and exchanging expert evidence, and
(iii) evidence
to be adduced by each party and, if appropriate, about further chronologies or
schedules to be filed by each party;
(e) as to
statements or declarations (including, if need be, affidavits) to be filed;
(f) as
to being at liberty to make an application to the Court in the proceedings;
(g) as to
the forum for any subsequent proceedings;
(h) as to
the attendance of a welfare officer at any subsequent stage of the proceedings;
(i) that
the proceedings be adjourned for alternative dispute resolution, to include
mediation; or
(j) in
relation to costs,
and the Greffier shall
give such directions and make such orders as he or she thinks appropriate in
relation to the case review hearing under Rule 16.
16 Case
review hearing
(1) The
case review hearing shall be conducted with the objective of defining the
issues and encouraging the parties to address contentious issues in a way that
is consistent with –
(a) the
welfare; and
(b) the
long term interests,
of the child.
(2) At
the hearing the Greffier –
(a) shall
determine the extent to which any questions seeking further information must be
answered, and give directions for the production of such further documents as
may be necessary;
(b) shall
give directions, if not already given at the PDH, about –
(i) obtaining and
exchanging expert evidence, if required, and
(ii) evidence
to be adduced by each party and, if appropriate, about further chronologies or
schedules to be filed by each party; and
(c) may
direct any one or more of the following –
(i) that a further
case review hearing be fixed,
(ii) that
the case be fixed for final hearing and, if that direction is given, the
Greffier must determine whether or not the case is to be heard by the Inferior
Number, or
(iii) that
the case be adjourned for alternative dispute resolution, to include mediation,
or for private negotiation or, in exceptional circumstances, generally.
(3) The
parties must attend the case review hearing in person unless the Greffier
orders otherwise.
17 Attendance
at hearings
(1) Subject
to paragraph (2), a party must attend a directions appointment of which he
or she has been given notice, and any hearing, unless the Court otherwise
directs.
(2) Proceedings
or any part of them shall take place in the absence of any party, including the
child, if –
(a) the
Court considers it in the interests of the child, having regard to the matters
to be discussed or the evidence likely to be given; and
(b) the
party is represented by an advocate or a solicitor or by a person appointed
under Article 75,
and, when considering the
interests of the child under sub-paragraph (a), the Court shall give the
person representing the child and, if he or she is of sufficient understanding,
the child an opportunity to make representations.
(3) Subject
to paragraph (4), if at the time and place appointed for a hearing or
directions appointment the applicant appears but one or more of the respondents
do not, the Court may proceed with the hearing or appointment.
(4) The
Court shall not begin to hear an application in the absence of a respondent
unless –
(a) it is
proved to the satisfaction of the Court that the respondent received reasonable
notice of the date of the hearing; or
(b) the
Court is satisfied that the circumstances of the case justify proceeding with
the hearing.
(5) If,
at the time and place appointed for a hearing or directions appointment, one or
more of the respondents appear but the applicant does not, the Court may refuse
the application or, if sufficient evidence has previously been received,
proceed in the absence of the applicant.
(6) If,
at the time and place appointed for a hearing or directions appointment,
neither the applicant nor any respondent appears, the Court may refuse the
application.
(7) Unless
the Court otherwise directs –
(a) a
directions appointment shall be in chambers before –
(i) the Bailiff in
public law proceedings, or
(ii) the
Greffier in private law proceedings; and
(b) a
hearing of any proceedings shall be in private.
PART 4
EVIDENCE
18 Documentary
evidence
(1) Subject
to any directions which may have been given pursuant to Rule 13, 15
or 16 and to paragraphs (4) and (5), a party must in any proceedings
file and serve on the parties, any welfare officer and any person appointed
under Article 75 –
(a) written
statements of the substance of the oral evidence which the party intends to
adduce at a hearing of, or a directions appointment in, those proceedings,
which must –
(i) be dated,
(ii) be
signed by the person making the statement, and
(iii) contain
a declaration that the maker of the statement believes it to be true and
understands that it may be placed before the Court; and
(b) copies
of any documents, including experts’ reports, upon which the party
intends to rely at the hearing,
at or by such time as the
Court directs or, in the absence of a direction, before the hearing or
appointment.
(2) A
party may, subject to any direction of the Court about the timing of statements
under this Rule, file and serve on the parties a statement which is
supplementary to a statement served under paragraph (1).
(3) At
a hearing or a directions appointment a party may not, without the leave of the
Court –
(a) adduce
evidence; or
(b) seek
to rely on a document,
in respect of which that
party has failed to comply with the requirements of paragraph (1).
(4) In
proceedings for an Article 10 order a party shall –
(a) neither
file nor serve any document other than as required or authorized by these
Rules; and
(b) in
completing a Form prescribed by these Rules, neither give information, nor make
a statement, which is not required or authorized by that Form,
without the leave of the
Court.
(5) In
proceedings for an Article 10 order no statement or copy may be filed
under paragraph (1) until such time as the Court directs.
19 Amendment
of documents
(1) Subject
to Rule 18(2), a document which has been filed or served in any
proceedings may not be amended without the leave of the Court which shall,
unless the Court otherwise directs, be requested in writing.
(2) On
considering a request for leave to amend a document the Court shall
either –
(a) grant
the request, whereupon the Court shall inform the person making the request of
that decision; or
(b) invite
the parties or any of them to make representations, within a specified period,
as to whether such an order should be made.
(3) A
person amending a document must file it and serve it on those persons on whom
it was served prior to amendment; and the amendments must be identified.
20 Expert
evidence – examination of child
(1) No
person may, without the leave of the Court, cause the child to be medically or
psychiatrically examined, or otherwise assessed, for the purpose of the
preparation of expert evidence for use in the proceedings.
(2) An
application for leave under paragraph (1) must, unless the Court otherwise
directs, be served on all parties to the proceedings and on any person
appointed under Article 75.
(3) If
the leave of the Court has not been given under paragraph (1), no evidence
arising out of an examination or assessment to which that paragraph applies may
be adduced without the leave of the Court.
21 Secure
accommodation – evidence
In proceedings under
Article 22, the Court shall, if practical, arrange for copies of all
written reports before it to be made available before the hearing
to –
(a) the
applicant;
(b) the
parent or guardian of the child;
(c) any
person appointed under Article 75 or otherwise any person by whom the
child is legally represented; and
(d) the
child, unless the Court otherwise directs,
and copies of such
reports may, if the Court considers it desirable, be shown to any person who is
entitled to notice of the proceedings in accordance with these Rules.
PART 5
HEARING AND DETERMINATION
22 Hearings
and making of orders
(1) The
Court may give directions as to the order of speeches and evidence at a
hearing, or directions appointment, in the course of proceedings.
(2) Subject
to directions under paragraph (1), at a hearing of, or directions
appointment in, proceedings, the parties and any person appointed under Article 75
shall adduce their evidence in the following order –
(a) the
applicant;
(b) any
party with parental responsibility for the child;
(c) other
respondents;
(d) any
person appointed under Article 75;
(e) the
child, if he is a party to the proceedings and there is no person appointed
under Article 75.
(3) When
or as soon as practicable after making an order or refusing an application, the
Court shall state any findings of fact and the reasons for the Court’s
decision.
(4) Subject
to paragraph (5), a copy of an order made by the Court shall, as soon as practicable
after it has been made, be served by the Court on the parties to the
proceedings in which it was made and on any person with whom the child is
living.
(5) Within
48 hours after the making ex parte
of –
(a) an
Article 10 order;
(b) an
emergency protection order under Article 37;
(c) an
order under Article 43(4) authorizing a search for another child;
(d) a
recovery order under Article 45; or
(e) an
order under which a warrant is issued pursuant to Article 78(1),
the applicant shall serve
a copy of the order on –
(i) each
party,
(ii) any
person who has actual care of the child or who had such care immediately prior
to the making of the order, and
(iii) in
the case of an order referred to in any of sub-paragraphs (b) to (e), the
Minister.
PART 6
APPEALS
23 Appeals
from the Greffier
(1) An
appeal to the Inferior Number under Article 68(1)(a) from any decision of
the Greffier must be made in accordance with this Rule.
(2) The
appellant must file and serve on the parties to the proceedings before the Greffier
and any person appointed under Article 75 –
(a) notice
of the appeal in writing, setting out the grounds upon which the appellant
relies;
(b) a
copy of the summons or application and of the order appealed against, and of
any order staying its execution;
(c) a
copy of any transcript of evidence given at the hearing before the Greffier;
(d) a
copy of the reasons given for the decision.
(3) The
notice of appeal under paragraph (2)(a) must be filed and
served –
(a) within
10 days of the giving of reasons by the Greffier for the decision against
which the appeal is brought; or
(b) with
the leave of the Bailiff, within such other time as the Bailiff may direct.
(4) The
documents mentioned in paragraph (2)(b) to (d) must, subject to any
direction of the Bailiff, be filed and served as soon as practicable after the
filing and service of the notice of appeal under paragraph (2)(a).
(5) A
respondent who wishes –
(a) to
contend on the appeal that the decision of the Greffier should be varied,
either in any event or in the event of the appeal being allowed in whole or in
part; or
(b) to
contend that the decision of the Greffier should be affirmed on grounds other
than those relied upon by the Greffier; or
(c) to
contend by way of cross-appeal that the decision of the Greffier was wrong in
whole or in part,
must, within 10 days
of receipt of notice of the appeal, file and serve on all other parties to the
appeal a notice in writing, setting out the grounds upon which that respondent
relies (hereinafter referred to as a “respondent’s notice”).
(6) An
application to –
(a) withdraw
an appeal;
(b) have
the appeal dismissed with the consent of all the parties; or
(c) amend
the grounds of appeal,
may be heard by the
Bailiff in chambers.
(7) The
date for a hearing of the appeal shall be fixed by application made to the
Bailiff in chambers.
(8) Rule 14(4)
shall apply to an application under paragraph (7).
(9) If
an application is not made within 10 days of the last day on which a
respondent’s notice was able to be filed, for a date to be fixed for the
hearing of the appeal, the appeal shall be deemed to have been abandoned.
24 Appeals
to the Court of Appeal
(1) Where
an appeal lies to the Court of Appeal under Article 68(1)(b) it must be
made in accordance with this Rule.
(2) The
appellant must file and serve on the parties to the proceedings before the
Court and any person appointed under Article 75 –
(a) notice
of the appeal in writing, setting out the grounds upon which the appellant
relies;
(b) a
copy of the summons or application and of the order appealed against, and of
any order staying its execution;
(c) a
copy of any transcript of evidence given at the hearing before the Court;
(d) a
copy of any reasons given for the decision.
(3) The
notice of appeal under paragraph (2)(a) must be filed and
served –
(a) within
10 days of the giving of reasons by the Court for the decision against
which the appeal is brought; or
(b) in
the case of an appeal against an interim care order or an interim supervision
order under Article 30(1), within 7 days of the making of the order;
or
(c) with
the leave of a single judge of the Court of Appeal, within such other time as
that judge may direct.
(4) The
documents mentioned in paragraph (2)(b) to (d) must, subject to any
direction of the Court of Appeal, or of a single judge thereof, be filed and
served as soon as practicable after the filing and service of the notice of
appeal under paragraph (2)(a).
(5) Subject
to paragraph (6), a respondent who wishes –
(a) to
contend on the appeal that the decision of the Royal Court should be varied,
either in any event or in the event of the appeal being allowed in whole or in
part; or
(b) to
contend that the decision of the Royal Court should be affirmed on grounds
other than those relied upon by that court; or
(c) to
contend by way of cross-appeal that the decision of the Royal Court was wrong
in whole or in part,
must, within 10 days
of receipt of notice of the appeal, file and serve on all other parties to the
appeal a notice in writing, setting out the grounds upon which the respondent
relies (hereinafter referred to as a “respondent’s notice”).
(6) A
respondent’s notice may not be filed or served in an appeal against an
order under Article 30.
(7) When –
(a) the
period of 10 days referred to in paragraph (5) has elapsed; or
(b) a
respondent’s notice has been filed and served,
a date shall be fixed for
the hearing of the appeal.
(8) When
a day is fixed for the hearing of the appeal, the Greffier shall, with the
least possible delay, give notice thereof to the appellant or his advocate or
solicitor.
(9) The
appellant, or the appellant’s advocate or solicitor if the appellant is
not acting in person, must give not less than 10 clear days notice of the day
so fixed to the parties to the proceedings before the Court and any person
appointed under Article 75.
(10) An
application to –
(a) withdraw
the appeal;
(b) have
the appeal dismissed with the consent of all the parties; or
(c) amend
the grounds of appeal,
may be heard by a single
judge of the Court of Appeal.
PART 7
MISCELLANEOUS
25 Confidentiality
of documents[6]
(1) No
document, other than a record of an order, held by the Court and prepared for
the purposes of proceedings may be disclosed, other than to –
(a) a
party;
(b) the
legal representative of a party;
(c) a
person appointed under Article 75;
(d) a
welfare officer; or
(e) an
expert whose instruction by a party has been authorized by the Court,
without leave of the Court.
(2) A
document disclosed under paragraph (1) may not be further disclosed other
than in accordance with this Rule.
(3) Leave
under paragraph (1) may be granted subject to such conditions as the Court
thinks fit, including, without prejudice to the generality of the foregoing,
conditions to prevent the identification of any child in the proceedings.
(4) Nothing
in this Rule shall prevent the notification by the Court of a direction under
Article 29(1) to the Minister.
(5) This
Rule is subject to Rule 25A.
25A Disclosure of
documents: Inspections[7]
(1) This
Rule applies where –
(a) the
Health and Social Care Commission (“the Care Commission”);
(b) the
Office for Standards in Education, Children’s Services and Skills
(“Ofsted”); or
(c) a
person or body duly appointed to inspect the Children’s Service or the
Jersey Family Court Advisory Service (“the Inspector”),
requires access to a
document referred to in Rule 25(1) for the purposes of an inspection of any
aspect of the Children’s Service or of the Jersey Family Court Advisory
Service.
(2) Where
this Rule applies, a document referred to in Rule 25(1) may be disclosed to the
Care Commission, Ofsted or the Inspector –
(a) for
the purpose of the inspection, and for no other purpose; and
(b) on
condition that the content or any part of the content of the document is not
further disclosed without leave of the Court.
(3) Leave
under paragraph (2)(b) may be granted subject to such conditions as the
Court thinks fit, including, without prejudice to the generality of the
foregoing, conditions to prevent the identification of any child in the proceedings.
26 Notification
of consent
(1) Consent
for the purposes of –
(a) Article 16(3);
or
(b) Article 31(2)(b)(ii)
or 38(2)(b)(ii); or
(c) paragraph
4(2)(c) or (d) of Schedule 2 to the Children Law,
must be given
either –
(i) orally
in court, or
(ii) in
writing to the Court signed by the person giving the consent.
(2) Any
written consent given for the purposes of Article 31(2) or Article 38(2),
must include a statement that the person giving consent –
(a) is
able and willing to give to the child the care which it would be reasonable to
expect a parent to give; and
(b) understands
that the giving of consent could lead to the exclusion of the relevant person
from the dwelling-house in which the child lives.
27 Exclusion
requirements: interim care orders and emergency protection orders
(1) This
Rule applies when the Court includes an exclusion requirement in an interim
care order pursuant to Article 31(1) or in an emergency protection order
pursuant to Article 38(1).
(2) The
applicant for an interim care order or emergency protection order must prepare
a separate statement of the evidence in support of the application for an
exclusion requirement.
(3) The
statement must be served personally by the Viscount or a police officer on the
relevant person with a copy of the order containing the exclusion requirement
(and of any power of arrest which is attached to it) and the relevant person
must be informed of his or her right to apply to vary or discharge the
exclusion requirement.
(4) When
a power of arrest is attached to an exclusion requirement in an interim care
order or an emergency protection order, a copy of the order must be delivered
to a police officer together with a statement showing that the relevant person
has been served with the order or informed of its terms.
(5) The
relevant person must serve the parties to the proceedings with any application
which he or she makes for the variation or discharge of the exclusion
requirement.
(6) When
an exclusion requirement ceases to have effect whether –
(a) as a result
of the removal of a child under Article 31(8) or 38(8);
(b) because
of the discharge of the interim care order or emergency protection order; or
(c) otherwise,
the applicant must
inform –
(i) the
relevant person,
(ii) the
parties to the proceedings,
(iii) the
Viscount, and
(iv) (where
necessary) the Court.
(7) If
the Court includes an exclusion requirement in an interim care order or an
emergency protection order of the Court’s own motion, paragraphs (2)
and (3) shall not apply except that the relevant person must still be informed
of his or her right to apply to vary or discharge the exclusion requirement.
28 Investigation
under Article 29
(1) This
Rule applies when a direction is given to the Minister by the Court under
Article 29(1).
(2) On
giving a direction the Court must adjourn the proceedings.
(3) A
copy of the direction shall, as soon as practicable after it is given, be
served by the Greffier on the parties to the proceedings in which the direction
is given and, if the Minister is not a party, on the Minister.
(4) When
serving the copy of the direction on the Minister the Greffier shall also serve
copies of such of the documentary evidence which has been, or is to be, adduced
in the proceedings as the Court may direct.
(5) When
the Minister informs the Court of any of the matters set out in Article 29(3)(a)
to (c) the Minister must do so in writing.
29 Cost
of transcripts on appeal
(1) The
preparation of any transcript for the purpose of Rule 23(2)(c) or
Rule 24(2)(c) shall be at the cost of the appellant unless the Court or
the Court of Appeal (as the case may be) otherwise orders.
(2) An
order of the Court of Appeal for the purposes of paragraph (1) may be by a
single judge of the Court of Appeal.
30 Periods
of time
For the avoidance of
doubt, Rules 1/3 and 1/4 of the Royal Court
Rules 2004 apply to any period of time fixed, or time prescribed, by
these Rules.
31 Directions
(1) The
Bailiff may issue directions in exercise of the inherent jurisdiction of the
Court to regulate its own process.
(2) The
Greffier may, with the concurrence of the Bailiff, issue directions for the
purpose of securing due observance of statutory requirements and uniformity of
practice in private law proceedings.
32 Transitional
provision
Nothing in these Rules
affects any proceedings pending (within the meaning of paragraph 1 of Schedule 5
to the Children Law) immediately before these Rules come into force.
33 Citation
These Rules may be cited
as the Children Rules 2005.