Saturday, 28 August 2010
Can’t see the wall for the trees.
This is a second Press Release from the Law Firm Hanson and Renouf that has been published by VFC, the first one being HERE. Firstly one has to congratulate Advocate Hanson and Barbara Corbett, Head of Family Law at Hanson Renouf for their continual uphill battle in attempting to be a voice for children here in Jersey........they must feel like they are hitting their heads off a brick wall!
Jersey has an appalling record on “caring” for children. One only needs to look at the Howard League for Penal Reform’s report where one of the TWENTY RECCOMMENDATIONS were "including the immediate ratification of the United Nations Convention on the Rights of the Child (UNCRC)." and the Serious Case Review (SCR) (the latter being instigated by Advocate Hanson) to learn how our government “care” for children.
Naturally this is all a very complex read which is full of legal jargon that is not easy to understand for your run of the mill Joe Public. However, what stood out like a saw thumb to me was that a “tree” or a “wall” has more legal rights than a child in the eyes of our Law Officers.
Convinced that I must have read, or interpreted, this Press Release wrong, I phoned Hanson and Renouf. I spoke with a member of staff and asked her if I was correct in believing a tree or a wall has an automatic right to a Lawyer and a child doesn’t? She assured me that I had read it correctly!!! That is not only absurd in the 21st century but truly, truly frightening. What chance does a child stand if pieces of brick-work or a plant are “legally” held in a higher regard?
It is interesting to learn that, as far as I am aware and stand to be corrected, there are only three places in the world that have not ratified the United Nations Convention on the Rights of the Child (UNCRC). America, Rwanda and, of course, Jersey. Places like China have even ratified it!
I strongly urge readers to lobby your elected “representative(s)” to ratify the UNCRC........for the sake of the children.
Here are some views of this latest judgment of our Deputy Balliff from lawyers in the UK.
“- this judgment is antediluvian.
How can any family Judge assert that care proceedings are not dispositive of the rights of the child concerned? How can any family Judge accept that such a child should not necessarily have the right to separate legal representation when, if the child was charged with theft (rather than at risk of permanent removal from birth family) such separate representation would be automatically available?
The suggestion that, between them, the LA and parents can effectively represent the child and advance the child's views had, I thought, gone out with the Ark.
Has the judge never heard of Maria Colwell or Jasmine Beckford?”
Another has said
“Has everyone forgotten why the present system was introduced?
Did Jasmine Beckford et al die for nothing?”
Another has described it as follows:
Not impressed with the judge-craft - blatant premature adjudication... The logic appears to be "We want to stop doing this because we can't afford it. Here are lots of reasons why we don't HAVE to do it. The reasons why we SHOULD do it are irrelevant because we don't want to"
I love the reference to Liberty to Apply being an adequate Art 6 safeguard in property cases involving adults, meaning that children don't require representation in care cases!
To be fair to the Deputy Bailiff, he has picked up on something that Cafcass has forgotten, namely that the need for the children to be heard is greater where the LA and the parents are agreed than when they are in dispute. That was raised as far back as Colwell, but Cafcass has lost sight of it.
OK, that's enough being fair, the rest of it is ****”
HANSON AND RENOUF PRESS RELEASE
ARE VULNERABLE CHILDREN IN JERSEY BEING DENIED A VOICE WHILST THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD IS NOT ADOPTED?
An important 33 page judgment has just been handed down on 17th August, 2010 by the Deputy Bailiff (sitting without Jurats) and is poised to alter Jersey practice in care cases. It will place Jersey at odds with recognized good practice in England and Wales and also in various other jurisdictions. It also appears to be at odds with the United Nations Convention on the Rights of the Child but which has yet to be ratified by the States of Jersey.
On 30th April, 2010, the Minister for Health requested a lawyer to be appointed for a baby that was subject to care proceedings evidently believing that it was appropriate for the child to have the benefit of a lawyer. The Deputy Bailiff declined to appoint a lawyer and despite it being a likely consequence of the proceedings that the baby would be removed permanently from its mother. The Court did however appoint a social worker as guardian from the NSPCC whose managers subsequently complained (as the judgment describes) that without a Jersey lawyer, the guardian could not perform her role. More particularly, to deny the appointment of a lawyer would be to deny the child its legal right. The NSPCC stated:
“The arguments of proportionality and costs, whilst needing consideration should not override the rights of the child for representation. It cannot also be right that lawyers and professionals can decide on this child’s future without the child having full access to representation…”
At a subsequent hearing, the Deputy Bailiff agreed to appoint a lawyer for the child, but only after there had been a number of important developments in the case (including the instruction of experts) and preparations for a contested hearing in the case where the child had been unrepresented and the Guardian unable to fulfil her role.
A further 30 odd pages of the judgment (now handed down) are devoted to explaining why children could not expect to have the benefit of a lawyer or guardian as of right in care proceedings.
In this careful and detailed judgment, the Deputy Bailiff surprisingly concludes that even in care proceedings where a child might be permanently removed from its parents, such proceedings were not “dispositive of any civil rights of the child.” (Para.47) – a conclusion that has already provoked some consternation amongst child lawyers both in Jersey and in England. Indeed, the Deputy Bailiff’s comparison of care proceedings to the Visite Royale (para.30) where owners of land that have an overgrown tree or bowed wall are not formally heard (whilst the issue is discussed by the Royal Court at the location in question) will provoke similar interest. Of course, care proceedings are very different but in any event it has been the convention that a lawyer recently sworn in would argue for the tree or wall in question.
Unfortunately, at para 21-22 of the judgment, it is clear that the United Nations Convention on the Rights of the Child did not influence the judgment of the Deputy Bailiff – not yet being part of Jersey law.
Advocate Timothy Hanson said “For those that have tried to promote the rights of children in Jersey, this is a depressing decision. We are considering how best to challenge this decision and lobbying States members to ratify the United Nations Convention on the Rights of the Child.”
Advocate Timothy Hanson is a partner at Hanson Renouf, a niche dispute resolution firm. He has considerable experience as a children’s lawyer. He represented AB the child at the centre of Jersey’s first Serious Case Review. Advocate Hanson has long promoted human rights issues in Jersey. Barbara Corbett is Head of Family Law at Hanson Renouf. She is a specialist child and family lawyer.
Submitted by VFC.