In the matter of Lydia (Interim Care Order) [2019] JRC 031A (27 February 2019)

judgment [THE

COURT HAS DIRECTED THAT THE FOLLOWING POSTSCRIPT TO A JUDGMENT GIVEN IN PRIVATE BE PUBLISHED.] the commissioner: Postscript 42. Towards the end of the hearing, Advocate Kerley indicated that he was aware of a case that held that there was no jurisdiction to order psychological assessments if the Court found that the threshold criteria for an interim care order had not been met. When the Court queried whether this was correct, he indicated that he would supply the case after the hearing and this he has duly done. The case in point is Re Bailey and others [2019] JRC 006 . Advocate Kerley's recollection was correct in that the case appears to hold that there is no jurisdiction to order psychological or other assessments of a child or of parents unless the threshold test for an interim care order has been met.

43. We emphasise that we have heard no argument on the point and accordingly are not in a position to form a definitive view as to whether Re Bailey was correctly decided. Furthermore, the point does not arise given our finding in relation to the threshold test being satisfied. However, the decision raises an important point of principle and we are not convinced that it is necessarily correct. Accordingly, should the matter arise in a future case, we would wish to be addressed on the issue.

44. We simply list the following matters which give rise to our concern as to whether Re Bailey was correctly decided:- (i) It appears to have proceeded by agreement of counsel. There was accordingly no adversarial argument. (ii) Its conclusion is somewhat counter-intuitive. There may be cases where, following the commencement of care proceedings, the Minister has not thought it necessary to seek a finding on the interim threshold because, for example, he is satisfied that voluntary measures in place are providing sufficient protection in the meantime. If Re Bailey is correct, there is no jurisdiction to order assessments in such a case and it would seem that the Minister will be compelled to seek a finding of threshold in every case in order for there to be jurisdiction to order assessments even if it is not otherwise necessary to do so. (iii) It seems to us strongly arguable that, in cases concerning the welfare of children, there must be an inherent jurisdiction to order such reports and assessments as are necessary to enable the Court to protect children and reach decisions in their best interests. The Court in Re Bailey referred to Article 76 of the Law which imposes certain restrictions on the Court's inherent jurisdiction; but these relate solely to the making of a care order, requiring a child to be accommodated by the Minister and conferring a power on the Minister to

decide questions in connection with any aspect of parental responsibility for a child. Contrary to the Court's view in Re Bailey , it is by no means clear to us that these restrictions extend to the inherent jurisdiction to order reports and assessments of a child or of the parents. (iv) It appears that the Court in Re Bailey placed reliance upon Article 30(4) of the Law, which provides that where the Court makes an interim care order it may give directions for the medical or psychiatric examination or assessment of the child. It was suggested this showed that there had to be an interim care or supervision order before assessments could be ordered. However, the Court in Re Bailey appears to have concluded that Article 30(4) was not the only power to do so, because it held that there was power to order such assessments if the threshold test for an interim care order is met. The fact that the threshold test is met does not of course mean that the Court will necessarily make an interim care order. The Court appears therefore to have located a power to order assessments which is neither that contained in Article 30(4) (because it is exercisable once threshold is satisfied even if no interim care or supervision order is made) nor part of the Court's inherent jurisdiction (because it held that that had been removed by Article 76). We are therefore not entirely clear what the Court

found to be source of the power to order assessments. (v) The Court also placed reliance on the observation of Lord Neuberger in Re B (A Child) [2013] UKSC 33 where at para 62 he said that the threshold represented a hurdle which had to be crossed before the Court could go on to consider whether to make a 'substantive order'. The Court in Re Bailey held that ordering a psychological assessment of children constituted a substantive order. We would certainly wish to be addressed on whether that is so or whether the reference to substantive orders in Re B was not simply a reference to interim (or final) care orders or supervision orders. (vi) The possible unfortunate effect of the decision in Re Bailey might have been seen in this case. Suppose we had found that the threshold test was not met because it was all too uncertain at this stage. We would certainly still have supported the institution of the proceedings by the Minister and the need to carry out a specific risk assessment of the father for the protection of the child. Such an assessment is necessary to decide whether he in fact poses a risk of sexual harm and, if so, the level of that risk. If Re Bailey is correct, there would have been no jurisdiction to order an assessment, which would have left everyone (and in particular Lydia) in a very unsatisfactory position.

45. That is sufficient for the present purposes. All we would wish to emphasise is that, whilst acknowledging that we have not had the benefit of any argument on the point, we do not necessarily regard the decision in Re Bailey as the last word and would wish to consider the point afresh should it arise on a future occasion. Authorities Re Bailey and others [2019] JRC 006 Re B (A Child) [2013] UKSC 33 Page Last Updated: 19 Mar 2019 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII