Department of Children and Family Services v DE and NE
| Jurisdiction | Cayman Islands |
| Judge | (Williams, J.) |
| Judgment Date | 27 May 2014 |
| Court | Grand Court (Cayman Islands) |
| Date | 27 May 2014 |
(Williams, J.)
Mrs. S. Bothwell for the department;
C.J.C. Fee for the first respondent;
Mrs. K. M. Thompson for the second respondent.
(1) G (A Minor) (Care Order: Threshold Conditions), In re, [1995] Fam. 16; [1994] 3 W.L.R. 1211; [1994] 2 FLR 69; [1994] Fam. Law 485, applied.
(2) G (Children) (Care Order: Threshold Criteria), In re, [2001] 1 W.L.R. 2100; [2001] 2 FLR 1111; [2001] 2 F.C.R. 757; [2001] Fam. Law 727, applied.
(3) H (Minors) (Sexual Abuse: Standard of Proof), In re, [1996] A.C. 563; [1996] 2 W.L.R. 8; [1996] 1 All E.R. 1; [1996] 1 FLR 80; [1996] 1 F.C.R. 509; [1996] Fam. Law 74, applied.
(4) Hampshire C.C. v. S., [1993] Fam. 158; [1993] 2 W.L.R. 216; [1993] 1 All E.R. 944; [1993] 1 FLR 559; [1993] Fam. Law 284, applied.
(5) Kent C.C. v. C, [2014] EWHC 604 (Fam); noted at [2014] Fam. Law 770, applied.
(6) L (A Child) (Family Proceedings: Practice and Procedure), In re, [2014] 1 W.L.R. 2795; [2014] 1 FLR 1384; [2014] 3 F.C.R. 464; [2014] Fam. Law 427; [2014] EWHC 270 (Fam), applied.
(7) Leeds C.C. v.ECASC, [1993] 1 FLR 269; [1993] 1 F.C.R. 585; [1993] Fam. Law 73, referred to.
(8) M. (A Minor) (Care Order: Threshold Conditions), [1994] 2 A.C. 424; [1994] 3 W.L.R. 558; [1994] 3 All E.R. 298; [1994] 2 FLR 577; [1994] 2 F.C.R. 871; [1994] Fam. Law 501, applied.
(9) Oxfordshire C.C. v. S., [2004] 1 FLR 426; [2004] Fam. Law 15; [2003] EWHC 2174 (Fam), applied.
(10) S (A Child) (Family Division: Without Notice Orders), In re, [2001] 1 W.L.R. 211; [2001] 1 All E.R. 362; [2001] 1 FLR 308; [2001] Fam. Law 21, referred to.
(11) Southwark London Borough Council v. B, [1998] 2 FLR 1095; [1999] 1 F.C.R. 550; [1998] Fam. Law 657, referred to.
(12) WH (A Minor: Care Proceedings), In re, Grand Ct., May 7th, 2014, unreported, Cause no. Fam 88/2013, applied.
(13) X (Emergency Protection Orders), Re, [2006] 2 FLR 701; [2007] 1
F.C.R. 551; [2006] Fam. Law 627; [2006] EWHC 510 (Fam), applied.
(14) X Local Authority v. B (Emergency Protection Orders), [2005] 1 FLR 341; [2007] 1 F.C.R. 512; [2005] Fam. Law 13; [2004] EWHC 2015 (Fam), applied.
Children Law (2012 Revision), s.33(2): The relevant provisions of this sub-section are set out at para. 18.
s.40(2): The relevant provisions of this sub-section are set out at para. 18.
Family Law-children-emergency protection orders-only granted if extraordinarily compelling reasons-heavy burden to ensure order not disproportionate to family”s rights-court to take least interventionist solution consistent with preservation of child”s immediate safety
The department made an ex parte application for interim supervision orders for the respondents” children.
The respondents had three children, H (a daughter, aged 14), T (a daughter, aged 11) and J (a son, aged 4). The father was biologically related to T and J. He was not, however, H”s biological father and it was unclear whether he had any parental responsibility over her. After the respondents divorced, they were granted joint custody of the children, who it was ordered would reside primarily with the mother.
The department received several referrals from H”s school alleging, inter alia, that H had been fighting with the mother and had been exposed to several violent fights between the mother and her boyfriend. After the last of these fights, the mother”s boyfriend called the police. The mother later claimed that they were no longer in a relationship, but that she had not applied for an injunction restraining him from coming to the property. H and T were interviewed by a social worker, who found that they were initially unwilling to talk and attempted to minimize the mother”s conduct because they did not want her to know what they had said.
The department made an ex parte application to the Summary Court for interim supervision orders under the Children Law (2012 Revision), s.40, with the intention that the children remain living with their mother. Although the application did not include all of the required forms, the Summary Court (Hall, Chief Magistrate) ordered an 8-day emergency protection order. Two days before the order was due to expire, the department indicated that it wished to apply for an interim care order with the children residing with the mother. This should have been made inter partes with appropriate notice to the parents, but the application was not submitted until the day that the order expired. Further, the department did not include all of the required forms and did not serve the appropriate forms on the mother. An hour before the hearing, the father informed the department that the mother had recently been seen in public with her boyfriend. It therefore changed its recommendation and applied for an
order that the children reside with the father-although the mother was unaware of this change until the department made its opening statement.
The application for an extension was heard in the Summary Court (Foldats, Magistrate), who ordered that an extension should be made but did not give formal reasons. Counsel for the parties further agreed with the magistrate that any future extensions should be applied for in the Grand Court, and two days before the order was due to expire, the department did so. A hearing was scheduled for the day on which the order was due to expire and a guardian ad litem was appointed.
The department submitted that an interim supervision order was necessary for the safety of the children. As the mother had been seen in public with her boyfriend, it was clear that she was unable to prevent a dangerous influence from affecting her children. The court should therefore order that the children remain with their father, who had shown that he was fully capable of meeting their needs. It did not, however, apply for any directions as to contact between the children and the mother.
The respondents did not oppose the interim supervision order. The mother, however, claimed that she was fully capable of meeting the children”s needs and that they should be allowed to remain with her.
The guardian ad litem did not make any submissions because she believed that she had not had enough time to acquaint herself with the case and, therefore, was not in a position to make any recommendations.
Held, granting the application:
(1) An emergency protection order was a draconian measure which would only be granted if there were extraordinarily compelling reasons for doing so. It must not, therefore, be regarded as a routine response to allegations of child abuse or as a first step in care proceedings and, except in the most exceptional cases, parents must be given adequate notice of the date, time and place of any application, as well as any evidence on which the department would be relying. The department and the court were both under a heavy burden of responsibility to ensure that they were not acting disproportionately to the family”s rights. To facilitate this, the evidence provided in support of the application should be full, detailed, precise and compelling; any sources of hearsay must be identified and any opinions given properly supported; and, whilst oral evidence was acceptable during the hearing, appropriate records had to be be kept. Further, the court should ensure that any order made was the least interventionist solution consistent with the preservation of the children”s immediate safety; assess whether a different order could be made which would deal with the issue more proportionately; and not make any order which lasted longer than absolutely necessary-particularly when making such an order on an ex parte application. Moreover, even if an order were made, the department had to act only insofar as was necessary to safeguard or promote the children”s welfare. It therefore retained a duty to consider less drastic alternatives even after making the order. The department was also under a duty to return the children to their parents as soon as it appeared safe to do
so-and it had to be extremely diligent in monitoring whether this was the case. Even if the children could not safely be returned, the department was required to ensure that they had reasonable contract with their parents given the needs of the family, regardless of its resources (para. 40).
(2) The court emphasized certain ‘good practice guidance’ for applications for emergency protection orders. These included that the department should ensure that the court was aware of the relevant guidance for courts and that, when the application was made without notice, the department should be represented by a lawyer responsible for ensuring that the court was aware of the relevant legal criteria. During the proceedings, evidence given should come from the best available source, which would usually be the social worker assigned to the case, and where there had been a case conference concerning the children, the minutes should be produced. Further, the department should prepare a full note of the proceedings which should be provided to the parents at the earliest opportunity and, where the hearing was ex parte, the court should ensure at the first inter partes hearing that the parents received the note. Where possible, the hearing should be recorded, either on tape or in writing by someone with no other role in the hearing. The court further emphasized that (a) lack of information or a need for assessment would never be sufficient to justify an emergency protection order; (b) cases of emotional abuse would rarely, if ever, warrant an emergency protection order, especially if made ex parte; (c) cases of sexual abuse would rarely warrant an order if the allegations were inchoate and non-specific and there was no evidence of an immediate risk to the children; and (d) cases of fabricated or induced illness would rarely warrant an order unless there was...
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