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Children (Jersey) Law 2002: Enable Amendment of Schedule 2 Definition of Person: Law Drafting Instructions

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A decision made on 15 December 2021

Decision reference: MD-ESC-2021-0021

Decision Summary Title :

Children (Jersey) Law 2002 – enable amendment of Schedule 2 definition of person

Date of Decision Summary:

13/12/21

Decision Summary Author:

 

Private Secretary

Decision Summary:

Public or Exempt?

Public

Type of Report:

Oral or Written?

Written

Person Giving

Oral Report:

N/A

Written Report

Title :

Children (Jersey) Law 2002 – Law Drafting Instructions

Date of Written Report:

13/12/21

Written Report Author:

Senior Policy Officer

Written Report :

Public or Exempt?

 

Public

Subject:

Decision to prepare drafting instructions to enable amendment of Schedule 2 definition of person in the Children (Jersey) Law 2002

 

Decision(s):

The Minister instructed officers to prepare law drafting instructions to enable the definition of person in Schedule 2 (4)(ii) the Children (Jersey) Law 2002 to be amended

 

Reason(s) for Decision:

There has been an urgent issue identified in placing children out of jurisdiction under the Children (Jersey) Law 2002 (The Law). Article 20 of the Law provides for provision of accommodation and maintenance by the Minister for children whom the Minister is looking after. Article 20 (3) provides for a Schedule to make further provision for arrangements for children looked after by the Minister including placement outside of Jersey if certain conditions are met. There is a lack of clarity as to whether Article 4(2)(ii) solely allows for the child to live with a natural person or whether it allows for placement in residential care. A recent Royal Court judgement found that a placement of this nature was legitimate, but the issue remains open to further challenge and interpretation, requiring an amendment to the Law as soon as possible in order to clarify the meaning of person in this instance. It is proposed this be done by drafting a new short amendment law to clarify the Schedule 2 meaning of person.

 

Resource Implications:

None except internal BAU

Action required:

Senior Policy Officer to prepare law drafting instructions for LDO

 

Signature:

 

 

Position:

Deputy Scott Wickenden, Minister for Children and Education

Date Signed:

 

 

Date of Decision (If different from Date Signed):

 

 

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Children (Jersey) Law 2002: Enable Amendment of Schedule 2 Definition of Person: Law Drafting Instructions

Placement of Children out of the jurisdiction under the Children (Jersey) Law 2002

Purpose

There has been an urgent issue identified in statutory provision relating to the Minister’s power, under paragraph 4 of the Schedule 2 to the Children (Jersey) Law 2002 (“the Law”), to make arrangements to assist children to live outside Jersey. This paper provided the background and a proposed solution, which is to draft a new short amendment law to either clarify paragraph 4(2)(c)(ii) of Schedule 2 to expand the meaning of person or remove paragraph 4(2)(c)(ii) in it’s entirety.

Background

The Law provides a legal framework for arrangements to place children who are looked after by the Minister in a suitable setting by providing for provision of accommodation and maintenance by the Minister for children whom the Minister is looking after.

 

Paragraph 4 of Schedule 2 to the Law enables the Minister to make arrangements, or assist in arrangements for any child in the Minister’s care to live outside Jersey. Schedule 2, paragraph 4 of the Law provides [bold underline emphasis added] -

“(1) The Minister may –

(a) with the approval of the court arrange for, or assist in arranging for, any child in the Minister’s care to live outside Jersey; and

(b) with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any child not in the care of the Minister but looked after by the Minister to live outside Jersey.

(2) The court shall not give its approval under sub-paragraph (1)(a) unless it is satisfied that –

(a) it would be in the child’s best interests to live outside Jersey;

(b) suitable arrangements have been, or will be, made for the child’s reception and welfare in the country in which the child will live;

(c) the child has consented to living in that country except where –

(i)  the court is satisfied that the child does not have sufficient understanding to give or withhold his or her consent, and

(ii)  the child is to live in the country concerned with a parent, guardian or other suitable person; and

(d) every person who has parental responsibility for the child has consented to the child living in that country except for a person whom the court is satisfied cannot be found, is incapable of consenting or is withholding his or her consent unreasonably.”

Lack of clarity in meaning of person

The issue identified relates to the requirement for the court to approve the application for placement outside of Jersey only if satisfied, inter alia, that, in the case of a child placed outside Jersey in the absence of consent, the child is to live in the country concerned with a parent, guardian or other suitable person.

 

In practice, the placement of children outside Jersey can involve placement in residential care. The issue is that there has been uncertainty as to whether the term “suitable person” in paragraph 4(2)(c)(ii) (see bold underline above) allows for a child to be placed, under that provision, in residential care. The specific point of uncertainty is as to the proper interpretation of “person” and whether this can be interpreted to cover placements with corporate entities, such as a residential care home service, or is to be interpreted only as permitting placements with specific named persons, i.e. individuals.

 

In a recent case, the Royal Court was asked to give its view on the matter and found in favour of interpreting “suitable person” to include a body corporate. However, the Royal Court expressed the following view:

 

‘However, that is not an end to the matter, as the application creates great uncertainty in that a differently constituted Court may decide that my interpretation of this provision is wrong and decline to follow it or my decision may be overturned on appeal. Either way, consideration should be given by the Minister to seeking an amendment to Paragraph 4(2)(c)(ii) of Schedule 2 of the Children Law to make it clear that the Court can give approval to a child living outside Jersey in a residential home or other suitable facility run by a company as he is expressly able to do for children in Jersey under Article 21(b) of the Children Law or by the simple expedient of deleting Paragraph 4(2)(c)(ii), bearing in mind that in giving its approval to a child living outside Jersey the Court will always be concerned with ensuring that there are proper arrangements for the welfare of the child in the country in which the child will live’.

 

By way of comparison, the English Court of Appeal[1], on hearing a similar question in relation to comparable provision in the Children Act 1989 (CA 1989), determined that ‘person’ means a natural person and, therefore, absent consent of the child, the comparable provision in the CA 1989 did not enable the placement of children in residential care outside of England. There has been a subsequent amendment to the CA 1989[2] to provide for placement outside England and Wales, in Scotland, for secure accommodation but not for other types of residential care.

Implications

  • There are a number of upcoming applications to place young people off-Island
  • A successful challenge would also cause significant and immediate difficulties for the care of a number of looked after children who are currently placed in residential care outside Jersey

Given the Court’s uncertainty on the issue, and the risk of a contrary interpretation or potential challenge to the recent Court judgment, urgent consideration needs to be given to the possibility of addressing an amendment in Jersey.

 

Proposed solution

After considering a number of options and discussions between officers of SPPP, LOD and LDO (30/11/21) it has been agreed that the solution is to draft a new short amendment law.

Therefore the intention is to issue drafting instructions to amend the Law by:

  1. Clarifying the Schedule 2 meaning of person, amending paragraph 4 to make it clear that the Court can give approval to a child living outside Jersey in a residential home or other suitable facility run by a company by expanding the meaning of suitable person to include corporate entities operating residential homes.; or
  2. Deleting paragraph 4(2)(c)(ii), which the Court suggested was the simple and expedient way in which to address the issue.

 

The Court’s view was that the ability to arrange residential placements overseas in the absence of consent could either be provided for expressly or, by removing reference to placing with a suitable person entirely, open up the Court’s ability to approve any placement so long as the other conditions in paragraph 4(2) are satisfied. It was noted that the comparable approach in the Children Act looks to be to disapply the comparable provision entirely in the case of a local authority placing a child in secure accommodation in Scotland and to a local authority placing a child for adoption with prospective adopters.

 

Proposed timeline

  • Brief Minister for Children and Education and prepare MD to commence law drafting
  • SPPP to prepare drafting instructions
  • Submit to LDO via Lucy March Smith
  • LDO to draft short amendment law
  • SPPP to submit draft to LOD for comment and provision for ECHR advice, human rights notes and Article 16 Human Rights (Jersey) Law statement.
  • SPPP to consult on draft with CYPES Director of Safeguarding and Children’s Commissioner
  • SPP to brief Minister and prepare MD and report for lodging
  • Lodge before 18/1/22 for debate on 1/3/22

 

 

Senior Policy Officer 10/12/21

 

[1] Judgment attached separately

[2] Schedule 2, paragraph 19.

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