A Voice for Children.

Advocate Tim Hanson has issued a very welcome Press Release, and court judgement. Readers might remember Advocate Hanson for his instigation of the Serious Case Review (SCR) which was critical of just about every department over here that has the responsibility and welfare of our children, including the Law Offices.

It is a relatively short and to the point Press Release but it might have been worth mentioning that Jersey is still not signed up to the United Nations Convention of the Rights of a Child (UNCRC) Also It is worth mentioning that, predominantly Jersey follows English Law. But when it comes to a child being legally represented in a Jersey Court, just the change of one word from the English Law makes all the difference.

VFC are led to believe the English Law states that a child “shall” be legally represented in court but once that has been translated into “Jersey speak” it reads a child “may” be legally represented. The implications of that changed word could be catastrophic for a Jersey child.

Thanks must go to Advocate Hanson and Barbara Corbett, Head of Family Law at Hanson Renouf for the work they have done and continue to do to give our children a voice.

PRESS RELEASE

Human Rights concern at Children not being Represented in Court

Advocate Timothy Hanson of Hanson Renouf has expressed concern about the Royal Court declining to appoint lawyers to act for children in care proceedings. In two recent cases where the Minister for Health has applied for children to be taken into care, the Royal Court has declined to appoint a lawyer for the children and despite the Minister having asked the Court to grant the children legal representation in such proceedings.

In the most recent judgment of the Bailiff of 29th July (set out below) the Bailiff appointed a social worker to assist the children but without an advocate stating that “it is our experience that sometimes lawyers are appointed when they cannot really assist the position beyond that which the guardian can do. So for the moment we are not going to appoint counsel. ”

The Minister was legally represented; the mother was legally represented; the father was legally represented, but the three children who are the subject of the proceedings were not.

In England, all applications to take children into care are considered serious matters where children have to have a lawyer appointed to act for them from the outset. In Jersey, since July 2008 the practice has been that all children subject to care proceedings have had a guardian appointed for them and also an advocate appointed to advise the guardian on law, procedure and to represent the children concerned in Court. This practice appears now to be changing.

Advocate Hanson, who is a senior member of the Children Panel recently set up in Jersey, explained that “Care proceedings can often result in a child being removed from the child’s family forever. It must therefore be right that such potentially draconian decisions should not be made in respect of a child that does not have proper legal representation. Moreover, the guardian and child have a right to a lawyer from the outset of proceedings, just as is the case in England. Simply because children are involved in court proceedings, does not mean that they have fewer rights. As vulnerable parties to legal proceedings, the Court should be astute to respect a child’s right to a fair hearing.”

He added “The guardian’s expertise lies in her social work background and ability to safeguard the welfare of the child; not as a lawyer. Indeed, organizations from outside Jersey who have provided guardians, have refused to act in Jersey cases where a lawyer has not also been appointed, sharing also our concerns. In fact, since publication of the recent judgment in Re V, we have received a number of emails from members of the UK Association of Lawyers for Children, even querying whether Jersey is a signatory to the European Convention on Human Rights. It does not make us look good.”

Costs saving or children’s rights: why should it have to be a choice?

In reality, and whilst not mentioned expressly by the Royal Court, the approach of the Court is to save the States the costs of lawyers (which we all understand) but it leaves children to be represented in Court without a lawyer, but with a social worker (if they are prepared to act at all) who normally will have little knowledge of Jersey law or procedure.

Advocate Hanson said: “Given the detailed requirements for practice as a lawyer in Jersey isn’t it strange that non-lawyers are now being left to represent children? This is letting the costs tail wag the justice of a case. Why not dispense with a lawyer acting for the Minister who is taking the children into care? In fact, if advocates are not appointed for children then separate applications for lawyers will need to be made by guardians who feel unable to take on the legal representation of the child. This will increase costs by satellite litigation, not reduce them.”

Advocate Hanson added “Children lawyers in Jersey understand the need to cut costs but this should be done by an overhaul of our outdated and ad hoc legal aid system; not by eroding children’s rights.”

Barbara Corbett, Head of Family Law at Hanson Renouf shares Advocate Hanson’s concerns about the human rights of children: “The most vulnerable members of our society need greater human rights, not fewer. Jersey children have been given a voice in legal proceedings in the last two years. This judgment has significantly curtailed that voice”.

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.

Tel: 767764

The Court Judgement.

ROYAL COURT
(Samedi Division)
29th July 2010
Before     : M.C. St. J. Birt, Esq., Bailiff, and Jurats Clapham and Nicolle.

 
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF V
Advocate E.L. Hollywood on behalf of the Minister.
Advocate P. S. Landick on behalf of the Mother.
Advocate A. C. M. Pinel on behalf of the Father.
JUDGMENT
THE BAILIFF:
1. This is an application for care orders by the Minister in respect of the three children of E and D, namely A and C and B.  We have received detailed reports on each of the three children; it is clear that there are serious concerns about the levels of nutrition being given to C and B who are both seriously under weight.  In the case of A, who has now left home and is living with a half-sibling, there are concerns that A is suffering emotional harm. 

2. The Minister, the mother and the father all agree that interim care orders should be made. Nevertheless, we must satisfy ourselves that the provisions of Article 30 (1) are satisfied, namely that there are reasonable grounds for believing that the circumstances with respect to the children are as set out in Article 24(2).  That article sets out the threshold criteria for care orders and requires the Court to be satisfied that the children are suffering or likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the children, or likely to be given to the children, not being what it would be reasonable to expect a parent to give the children, or to their being beyond parental control. 

3. Having read the reports we are satisfied that the requirements of Article 30 (1) are met, namely that there are reasonable grounds for believing that the criteria in Article 24 (2) are present. We have seen the care plans, we are satisfied that what is proposed is in the best interests of the children and therefore we do make the interim care orders. 

4. We have been asked to make a number of ancillary orders including an appointment of a guardian and a number of consequential matters about obtaining expert reports.  We make all of the orders requested in the draft presented to us except paragraph 2 which says that local counsel should be appointed to represent the children.  We are not willing to do that at this stage; it is our experience that sometimes lawyers are appointed when they cannot really assist the position beyond that which the guardian can do. So for the moment we are not going to appoint counsel. There is liberty to apply and therefore if anyone wishes to apply and gives specific reasons as to why there should be legal counsel appointed in this case, we will consider it at that time. Our view at present on the information before us is that these children’s interests can be well represented by a guardian who will, of course, be an experienced person, well versed in dealing with children.  Therefore, subject to that we make an order in the terms of the draft. 

Authorities
Children (Jersey) Law 2002.

Submitted by VFC.