Jersey Unreported Judgments

Care proceedings - reasons for granting the application by the Minister to withdraw the care order and for granting the residence order in favour of the Third Respondents

[2018]JRC149

Royal Court

(Samedi)

21 August 2018

Before     :

Sir William Bailhache, Bailiff, and Jurats Ramsden and Thomas

 

IN THE MATTER OF HUGO (CARE PROCEEDINGS)

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

Advocate P. F. Byrne for the Minister.

Advocate B. J. Corbett for the First Respondent.

Advocate C. R. Dutôt for the Second Respondent.

Advocate C. G. Hillier for the Third Respondents.

judgment

the bailiff:

1.        These proceedings concern Hugo (this is not his real name).  The child was the subject of an interim care order granted on 29^th June 2017 (unpublished) following which Hugo was in the care of his maternal great uncle and aunt until 30^th June this year when he was moved into the care of his maternal grandmother and her partner, the Third Respondents.

2.        The final care plan filed by the Minister suggests that a residence order should be made in favour of the Third Respondents, coupled with a supervision order.  However, subsequently, following further discussions between the parties and a report from the Guardian, the Minister now proposes that there should simply be a residence order in favour of the Third Respondents and no other order should be made.  Accordingly the Minister seeks leave pursuant to Rule 9 of the Children Rules 2005 to withdraw the application issued on 21^st June 2017 for a care order.

3.        As is clear from Minister for Health and Social Services v KG [2009] JRC 076, the Court is required, on an application for leave to withdraw an application for a care order, to determine that question by considering whether the withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned.  The welfare test is therefore to be applied to the application. 

4.        In his skeleton argument, Advocate Byrne contends that the Court should note the no order principle and accordingly accept that neither a care order nor a supervision order is appropriate in this case.  We mention this only because it appears to us that where the Minister is seeking leave to withdraw his application for a care order, it is no longer appropriate for the Court to be asked to make any detailed enquiry into whether threshold has been passed.  Clearly if threshold is not established, there will be no order, not because of the no order principle referred to in Article 2(5) of the Law, but because the Court has no jurisdiction to make an order, no finding of threshold having been made.  Advocate Byrne in his submissions clarified that that was the Minister's case.

5.        It follows that in these applications, the Court makes an enquiry into welfare without considering questions of threshold - and in circumstances such as these, where all parties are agreed on the ultimate disposal of the case (other than the father who has not participated in it), it seems to us that it would be inconvenient and in some cases positively damaging to indulge in a detailed enquiry as to whether the threshold circumstances existed simply so that the Court could then apply the no order principle.  In the present case, therefore, we have not considered questions of threshold and have gone immediately to consider the question of welfare.

6.        In doing so however, our path has been eased by the acceptance of the mother that she cannot care for Hugo. In the circumstances that the father does not have parental responsibility, it would follow that on the assumption that threshold was passed the choice then is very much between a residence order and a care order in favour of the Minister.  No one contends for the latter, and indeed the Minister seeks to withdraw his application.  These facts take us a long way towards the conclusion that the right course is to give the Minister leave to withdraw his application.

7.        There are however other circumstances which militate in favour of agreeing this course.  We have, as indicated, a position where the mother accepts she cannot care for the child.  The second consideration is that there is no doubt that the Third Respondents can care for him.  They have been the subject of an independent social worker assessment, which reaches this conclusion.  The independent social worker did so in the knowledge that the child already knows his grandparents and would be able to cope with moving into their care without transition.  Furthermore, the Third Respondents have already been caring for the child's half-brother, who has lived with them for the last six years or so.  We are faced with a position therefore that there are some carers who are committed to looking after the child despite some other challenging issues in their lives, who recognise the importance of the child growing up within his birth family, which will help him with knowledge of his heritage and family history, and will provide him with a close relationship with his sibling.  They are experienced parents who have two adult children and who work well together as a couple.  Their families are supportive of their plans to care for the child, and they themselves have worked well with different professionals over the assessment period.  Furthermore, the placement with them is supported by the child's mother.

8.        These are all convincing reasons why, given the choice between a care order in favour of the Minister, for which no one contends, a finding of threshold were that to be investigated coupled with no order, or a residence order in favour of the maternal grandparents, the welfare test directs a conclusion that a residence order is the right order to make.  That conclusion is reinforced by the Minister's confirmation of financial support to the grandparents for at least two years and hopefully for the period of his minority.

9.        The Minister's proposal is supported by the guardian.

10.      Accordingly we give the Minister leave to withdraw his application for a care order in respect of Hugo, that being in the best interests of the child, and make a residence order in favour of the Third Respondents.  As a consequence, Article 13(2) of the Law applies, and the Third Respondents shall have parental responsibility for the child for as long as the residence order remains in force.

11.      The mother has shown herself concerned about the extent of the contact which she might have with the child.  The consequence of making a residence order in favour of the maternal grandparents is that questions of contact will be a matter for them.  It is of course always open to the mother to make her own application for contact pursuant to Article 10 of the Law if she and her parents are unable to reach agreement, but we have no basis for thinking on the information presently available to us that that is likely to be a problem in the future.

Authorities

Children Rules 2005. 

Minister for Health and Social Services v KG [2009] JRC 076.