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05 MAY 2009

CARE PROCEEDINGS: Re L (Abuse: Funding Residential Placement) [2009] JCA 083

(Jersey Court of Appeal; MC Birt, Deputy Bailiff, President; Michael Beloff QC; and JV Martin QC; 5 May 2009)

The three children were victims of physical and sexual abuse, and of neglect. The minister had decided, contrary to all the expert evidence received in the case, contrary to the initial advice of the relevant government department, and contrary to the view of the guardian, that the children should be looked after in Jersey in residential accommodation developed specifically for them and other children in similar circumstances, rather than sending them to an English institution specialising in the treatment and rehabilitation of severely damaged children. The guardian had not been permitted to attend the meeting of the placement panel and had been unable to make oral representations to the minister before the decision was made, merely written representations. The guardian and the children sought judicial review of the minister's decision. At the hearing the minister explained that his decision had been based in part on his personal knowledge of plans to inject funding into the Jersey system.

The decision had breached natural justice, in that, save in exceptional circumstances, a person potentially affected in his rights or interests by a decision should have a reasonable opportunity to see and comment on matters that might be deployed to his disadvantage. Although the guardian had been aware that some local care facilities were planned, he had been in no position to address the substance of the plan that proved to be so influential. Procedural flaws in the process had resulted in unfairness, and the decision would be quashed. However, there was no unqualified obligation on the minister to safeguard and promote the welfare of the child in the best way, irrespective of financial considerations. Neither was there an absolute duty to give effect to professional advice if cost considerations pointed in opposite direction, although in the absence of cost considerations it was difficult to envisage a minister being able to depart from the unanimous and informed view of experts, by analogy with the court's approach to experts. There had been a change in the attitude of the courts as to the degree to which, as a matter not merely of good practice but of law, public authorities making decisions that vitally affected children and their parents had procedural obligations towards the children and parents, notably, but not solely, when the authority proposes to sever the family link. In particular the right to respect for family life had given substantive and procedural rights to parent and child alike. There had been no good reason why the guardian and his legal adviser should not have been permitted to articulate their views to the placement panel.

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