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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> G v Minister for Children and Education and Anor - 5-May-2021 [2021] JRC 132 (05 May 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_132.html Cite as: [2021] JRC 132 |
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Discovery - specific discovery - reasons
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court. |
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Between |
G |
Plaintiff |
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And |
The Minister for Children and Education |
First Defendant |
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And |
The Chief Officer of the States of Jersey Police Force |
Second Defendant |
Advocate D. C. Robinson for the Plaintiffs.
Advocate P. F. Byrne for the Defendants.
CONTENTS
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Paras |
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1. |
Introduction |
1 |
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2. |
Background |
2-8 |
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3. |
The application |
9-19 |
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4. |
Submissions |
20-32 |
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5. |
Decision |
33-46 |
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6. |
Other directions |
47-52 |
judgment
the master:
1. This judgment concerns my decision in respect of an application for specific discovery by the first plaintiff as well as brief reasons for issuing certain directions which were made during the course of the oral hearing before me.
2. The present proceedings were commenced by an order of justice signed on 16th October 2019 and amended by agreement on 24th October 2019. The essence of the allegations brought concern the legality of the removal of the third to sixth plaintiffs from the care of their parents, the first and second plaintiffs. It is right to record that one of the parents has now decided not to take any further part in the present proceedings who was initially named as the second plaintiff.
3. The central allegations concern whether a written consent by the first plaintiff to the removal of the first plaintiff's children was effective consent for the purpose Article 17 of the Children (Jersey) Law 2002 (the "Children's Law"). Article 17 sets out when the first defendant is obliged to provide accommodation for vulnerable children. Article 17(7) provides that:
4. If either parent had objected to an order being made under Article 17 the first defendant would then had to have sought an emergency protection order under Article 37 of Children's Law.
5. The first plaintiff, having initially appeared to have given consent then revoked the same a few days later. It is right to note however that the first plaintiff contends in these proceedings that no valid consent was ever given.
6. Once any consent given was revoked, the children were not returned to their parents but instead remained accommodated by the first defendant by the second defendant's officers taking the third to sixth plaintiffs into police protection pursuant to Article 41 of the Children's Law which permits such actions for up to 72 hours. The Royal Court then granted an emergency protection order pursuant to Article 36 of the Children's Law for 24 hours pending determination of an application by the first defendant for an interim care order pursuant to Article 30 of the Children's Law.
7. On the following day, however the Royal Court was not satisfied that the threshold for an interim care order was met, for the reasons set out in its judgment dated 17th December 2018 In the matter of Bailey, Ellis, Violet and Elliott (Care Proceedings) [2018] JRC 239 and the children were returned to parental care.
8. The first defendant subsequently decided not to proceed with any further applications in relation to accommodating the third to sixth plaintiffs following further legal argument (See In the matter of Bailey, Ellis, Violet and Elliott (Care proceedings) 2019 JRC 006).
9. The present proceedings therefore seek damages because it is alleged that the defendants breached the first plaintiff's rights to respect for family life.
10. The first plaintiff by its summons sought the following:
"1. THAT the First Defendant shall disclose the draft procedure document on obtaining Article 17 consent under the Children (Jersey) Law 2002 identified by the First Defendant in e-mail correspondence dated 114 November 2020 (the "Draft Consent Document").
2. THAT the First Defendant shall carry out a search for the following documents:
a. All documents and communication (including electronic documents such as c- mail) relating to the way in which Article 17 consent is obtained by the First Defendant under the Children (Jersey) Law 2002 from a person who has parental responsibility for a child or who has care of a child by virtue of an order;
b. All documents and communications (including electronic documents such as e-mail) relating to the reasons for producing the Draft Consent Document; and
c. All documents and communications (including electronic documents such as e-mail) relating to the reasons for delaying implementation of the Draft Consent Document.
3. THAT the First Defendant shall within 4 weeks serve a supplemental list of the documents located as a result of the search described in paragraph 2 and a disclosure affidavit, together with a copy of each of the documents contained in the list."
11. The first plaintiff's application was supported by two affidavits sworn by the first plaintiff dated 23rd February 2021 and 16th March 2021.
12. What led to the first application was a conference that took place on 7th October 2019 when the Director General for Children and People Education Skills, Mr Mark Rogers, is said to have made a statement that there had been a significant change in the way in which Article 17 consent was being obtained from parents.
13. This led Advocate Robinson on 1st October 2020 to request disclosure of the material relating to this said change of procedure.
14. There was further correspondence between Advocate Robinson and the Law Officers' Department leading to an email from Mr Joseph Matia, a legal adviser within the Law Officers' Department, dated 11th November 2020, which stated as follows:
"Dear Darry,
Currently there is no procedure document on obtaining Article 17 consent. A draft document was developed in October 2019. The document remains a draft and is yet to be implemented. As previously advised my instructions are clear that the draft procedure document is not being developed as a result of the litigation instigated by your client. As stated in previous correspondence this was part of the Children's Service working to improve its journey, then as now, and to support staff in their practice. The Workshop was held on 7 October 2019. The claim was issued on 16 October 2019.
The draft procedure document was not included in the material already disclosed as such a document remains a draft and, in any event, not within the scope of the disclosure exercise in that it did not relate to the claim. Notwithstanding this, the Minister would be happy to provide you with any procedure document relating to seeking Article 17 consent when implemented. At the present time no such procedure is in place. In the event that any application for Disclosure is made we would request that we are put on notice and both our emails of even date and 3 November disclosed to the Court. Any application for costs will be resisted. Kind regards, Joseph Matia Legal Adviser."
15. The first defendant's affidavit of discovery was sworn by Victoria Morel on 1st May 2020 and contained an endorsement by Advocate Byrne who deposed that he was satisfied that the first defendant had met its discovery obligations.
16. In opposing the specific discovery application, the first defendant relied on two affidavits sworn by Ms Kay Prescott dated 31st March 2020 (albeit an unsworn version had been provided earlier) and a sworn affidavit from Mr Rogers dated 10th March 2021.
17. Ms Prescott in her affidavit stated the following:
"5. My affidavit Is confined to the Issue of the Draft Consent Document as described in the Plaintiff's application of 15" February 2021 (hereafter, the "Draft Consent Policy Document"). I had no Involvement In the original case to which the application for disclosure pertains.
Draft Consent Policy Document
6. In October 2019. I was tasked by Mark Owers, Director of Safeguarding and Care, with developing policies, practice guidance and training events for staff within Children's Social Care. After an Initial assessment of the policies in place at that time, I noted that there were a number of subject areas for which a policy or a guidance document did not then exist. Among these was the issue of obtaining parental consent to accommodate children under Article 17 of the Children (Jersey) Law 2002.
7. Work on this, and other policies began, with some working documents and initial plans being sent to management for discussion and approval for progression. None of these documents were developed to such a stage whereby they could be described as a 'draft policy'. No consultation with peers, partner agencies or other professional stakeholders took place.
8. In June 2020, I took up a new interim post in Quality and Standards Team and became more focussed on the Policy and Guidance work. A full review of all current policies was undertaken by Quality Assurance Manager, Karen Massey. The purpose of this review was to identify which policies were still required, which needed updating and which required further development before progressing to a stage whereby they could be provided to the Head of Service for sign-off.
9. The policy on Article 17 Consent was identified as one which needed further work to develop it into a viable draft document. This work is yet to be undertaken."
18. Mr Rogers in his affidavit at paragraph 6 made it clear that his affidavit was confined to what he may have said on 7th October 2019 and did not go into any wider issues relating to the draft consent policy document (see paragraph 6).
19. On that issue he deposed as follows:
"9. I spoke that day, as I usually do, without any notes or written speech to hand. There Is therefore no written record of what I said, as far as I am aware.
10. To the best of my recollection, I do not remember making the comment above in those words. However, my purpose that day was to give the opening speech at a conference intended to promote and build positive working relationships between the participants of the workshop, namely the Children Services and the Children's Law Panel members (lawyers) in the context of public law proceedings. The conference was also attended by the then Bailiff (Sir William Bailhache), who also gave a keynote speech, and members of the Jersey Family Court Advisory Service (JFCAS).
11. If such a comment was made, it would have been within the context that then, as now, the Children's Service was working hard on its improvement journey and this would have been an example of positive progress in one particular area.
12. Improving the approach to obtaining consent from parents under Article 17 of the Children (Jersey) Law 2002 was, and remains, an Improvement priority for the Children's Service, being as it is an Important aspect of the safeguarding measures available to the Minister under the Law."
20. The first plaintiff responded to the two affidavits and criticised Mr Rogers for not responding to the email from Mr Matia referred to above.
21. In response to Ms Prescott's affidavit the first plaintiff deposed at paragraphs 7 to 11 as follows:
"7. At paragraph 5 of her affidavit, Ms Prescott says "I had no involvement in the original case to which the application for disclosure pertains." However, Ms Prescott does not say that she had no knowledge of the original case to which the application for disclosure pertains, namely, the proceedings in respect of my children. Nor does Ms Prescot claim that she had no knowledge or involvement in my Human Rights Application.
8. As with the affidavit of Mr Rogers, this leads me to believe that production of the Draft Procedure Document may have been prompted by the aforementioned concerns of the Royal Court, or as result of the concerns expressed by me in my pre-action correspondence.
9. At paragraph 7 of Mr Prescott's affidavit she acknowledges the existence of documents which appear to be pertinent to my Human Rights Application, including "working documents" and "initial plans" relating to the issue of obtaining parental consent to accommodate children under article 17 of the Children (Jersey) Law 2002.
10. At no point in her affidavit does Ms Prescott assert that my case was not considered by her, Mr Rogers, Mark Owers and/or the relevant working groups in the formulation of the Draft Procedure Document. Also, at no point does Ms Prescott claim that development of the Draft Procedure Document had nothing to do with my case. I L. It is unclear to me how Ms Prescott is able to say the document referred to by her as the 'Draft Consent Policy Document' is not capable of being a viable draft document. It is also unclear to me how a draft document produced on the instruction of the Director of Safeguarding and Care (Mark Owers) relating to the issue of obtaining parental consent to accommodate children under article 17 of the Children (Jersey) Law 2002 can be said not be a relevant because there has been no consultation with third party agencies. A consultation process does not detract from the views expressed and procedure recommended in a draft document."
22. Advocate Robinson for the first plaintiff contended that any policy in relation to how consent should be obtained was relevant to the issues in this case because the Royal Court ultimately was being asked to determine how valid consent might be obtained.
23. The existence of a policy, even if not complete, might allow a plaintiff to make out its case on liability as any draft in existence might indicate what was best practice.
24. It was also not clear whether the events in 2018 had in part influenced the need for a policy as identified in 2019. If they had that was also pertinent to issues of liability.
25. Advocate Robinson had not considered whether expert evidence on what was appropriate practice for obtaining valid consent from a Social Worker might be adduced.
26. What he sought was any documents which related to the way in which consent from parents was obtained for the purposes of Article 17. He clarified this should be for the period between the conference on 7th October 2019 and when he first made his request in October 2020.
27. Advocate Byrne for the defendants argued, by reference to the affidavits filed on behalf of the defendants, that the steps taken by Ms Prescott were part of a general improvement policy of various procedures within Children's Services following a review by the Jersey Care Commission in September 2018. However, no "draft" policy was created; all that was what was produced were some working documents and initial plans sent to management for discussion and approval for progression. He also emphasised that no consultation had taken place with any partner agencies or other professional stakeholders.
28. The contents of any documentation produced were not in any event relevant to liability. Any opinion of the Minister postdating the events that occurred on whether procedures to obtain consent required modification were not conclusive. It was a matter for the Royal Court to determine what had happened and whether the consent given by the first plaintiff was improperly obtained.
29. Production of draft documents had no probative effect in relation to the plaintiffs' claims. Advocate Byrne used the analogy of requiring production of draft Practice Directions. They could not actually indicate what was best practice until they had been finalised.
30. He also emphasised Ms Prescott's evidence on what had been produced was not a "viable draft document" . As the policy was not a viable draft, it could not be safely relied upon as part of a trial process because it had not been thought through as to what was appropriate practice for Jersey.
31. In relation to the question of expert evidence Advocate Byrne did not oppose the question of expert evidence from a Social worker (qualified to act as an expert) to set out what were the appropriate standards required and practices in relation to obtaining consent from a parent but cautioned against the experts usurping the function of the Jurats.
32. He also emphasised the approach taken in Mehra v Kilachand and Grindlays Bank (Jersey) Limited [1987-88] JLR 421 which at page 426 paragraphs 5 to 10 noted the Supreme Court Practice commentary that an application for specific discovery would be refused if the probative value of the documents, if they existed, was so slight that they did not justify the inconvenience of giving discovery.
33. Advocate Robinson in reply emphasised the approach taken in Hanby v Oliver [1990] JLR 337 at page 350 line 44 to 351, line 15.
34. His request was for documents that clearly might allow him to advance his case or damage that of his opponent, or at least lead to a train of enquiry that might have either of those consequences.
35. The starting point for my decision is the relevant test in Hanby v Oliver cited by Advocate Robinson. The extract he referred to states as follows:
36. This decision post-dates Mehra and so, to the extent there is any conflict between the extract to which Advocate Byrne referred that specific discovery should not be granted where the probative value of documents sought was slight, and Hanby v Oliver, I am bound to apply the latter authority. However, interlocutory applications including applications for specific discovery are now subject to Rule 1/6 and the overriding objective which requires me to deal with cases justly and at a proportionate cost. To look for a document that might be of marginal relevance may well fall foul of the overriding objective. To that extent there is force to the reference to Mehra because it might be said now to be encapsulated by the overriding objective.
37. In relation to Advocate Byrne's objections that the affidavit of discovery filed on behalf of the first defendant by Victoria Morel is conclusive and I cannot go behind the same, the flaw with this submission is that the first defendant did not look at the time of discovery exercise was carried out for the categories of documents the plaintiff now seeks. If therefore I am satisfied that the documents exist and are relevant, as long as the request is not oppressive or of minimal relevance, then I am permitted to go behind the affidavit.
38. In dealing with these questions in turn, in my judgment some form of draft policy exists. I take this from firstly paragraph 7 of the affidavit of Ms Prescott where she states:
"7. Work on this, and other policies began, with some working documents and initial plans..." (emphasis added)
39. In paragraph 9, if there was any doubt about whether a draft policy existed, that clarity is removed because the affidavit states:
"9. The policy on Article 17 Consent was identified as one which needed further work..." (emphasis again added)
40. I accept that the policy may not have been concluded and was not consulted upon so as to be a viable draft requiring ministerial approval. However the fact that the policy was not complete or ready for consultation or ministerial approval does not mean that some form of policy in its early stages does not exist. I have concluded by reference to the affidavit of Ms Prescott that such a document does exist.
41. This conclusion is confirmed by the email from Mr Matia which states:
"A draft document was developed in October 2019". The document remains a draft and is yet to be implemented."
42. In relation to the question of whether this document is relevant, it is a policy produced (in draft) about the obtaining of consent under Article 17. Given that the central issue for the Royal Court is whether such consent was obtained, it at least meets the train of enquiry test. Whether it will actually assist depends on what it says. Such a draft cannot in my judgment be said to be marginal to justify not providing the same when its focus is the main issue the Royal Court has to decide. It should also not be difficult to find and discover the documentation that Ms Prescott drafted.
43. I accept, as the draft is not a complete document and has not been consulted upon or put to various agencies, any weight the trial court might be able to attach to it might be limited. However, that is not a reason to refuse specific discovery.
44. The question of what weight might be attached to whatever documents Ms Prescott put together is also relevant to the question of expert evidence from on a Social Worker on the appropriate standards and practices that should be in place to obtain consent. I return to the question of expert evidence later in this judgment.
45. The other area of documentation sought by the first plaintiff which I consider has force is whether anything was said to Ms Prescott as one of the reasons for drafting a policy which relates to the proceedings that the first plaintiff had commenced also in early October 2019 or as a result of events leading to the Royal Court judgment dated 17th December 2018.
46. However, the first plaintiff's application is much wider. The first plaintiff seeks not only the documents referred to in Ms Prescott's affidavit but all documents and communication relating to the way in which Article 17 consent is obtained by the first defendant and all documents and communications relating to the reasons for producing the draft consent document (paragraphs 2 b. and c. of the summons).
47. In my judgment, the first plaintiff's requests go too far. What other reasons were instrumental or lead to the draft being produced are not relevant to the first plaintiff's claim. The breadth of the request also runs the danger of being oppressive because of the number of different searches that might have to be carried out to produce all such documentation.
48. The decision I have reached therefore is that the first defendant should produce only the documents referred to at paragraphs 7 and 9 of Ms Prescott's affidavit. The defendant should further search any files maintained by Ms Prescott, including her email account, for any communications referring to a need for a policy in respect of Article 17 either because of the events that took place in November 2018 concerning the plaintiffs or because of the proceedings issued by the plaintiffs in October 2019. However, this is as far as I am prepared to go in respect of searches for such communications because any other searches would be oppressive and would not be proportionate. They would require a significant trawl of numerous email accounts when the key question is whether anything was said to Ms Prescott as the author of the draft policy.
49. During the course of argument, I indicated that I was willing to grant permission to both parties to adduce expert evidence from a Social Worker on the best practices to be adopted when obtaining consent from parents for the purposes of Article 17. I also consider it appropriate for any such expert to comment on whether or not best practice has been followed in the present case. While I am conscious that ultimately it is a matter for the Jurats to determine whether or not consent was obtained, I consider in an area as difficult as this, as was recognised in paragraph 28 of the Royal Court's judgment of 17th December 2018, expert evidence may well assist the Jurats. The Royal Court at paragraph 28 stated:
50. It is because of these difficulties that expert evidence is justified not only to explain what is best practice for obtaining consent but also whether, in the opinion of a suitably qualified expert, such best practice was adhered to.
51. I also asked both defendants to review the affidavits of discovery they had filed. This was because Advocate Robinson had requested clarification about whether or not searches for electronic communications had been carried out. In reviewing the first defendant's affidavit of discovery, there did not appear on the face of the list to be any emails or any other form of electronic communication disclosed. Paragraph 22 of Practice Direction RC17/08 states:
52. Although Advocate Byrne believed that relevant searches for electronic communication as part of the discovery process had been carried out, the affidavit provided on behalf of the first defendant did not identify the processes used. I therefore required him and Advocate Meiklejohn to provide clarity if necessary, by providing a further affidavit in compliance with paragraph 22 of the Practice Direction RC17/8.
53. In terms of the timing of the provision for discovery that I have ordered, Advocate Robinson in his affidavit sought the documents to be provided within 4 weeks which I approved. This also applied to the review of the affidavits of discovery.
54. Finally, I consider that any expert evidence to be provided should be provided by the end of May or early June at the latest to enable a trial to proceed. This action however should not be delayed any further than has already occurred so the parties must use their best endeavours to find an expert and obtain evidence they wish to rely on within the sort of timeframe I have indicated. Any difficulties in agreeing a timetable should be referred back to me.
