F v Director of Child and Family Services and F

• Jurisdiction: Jamaica
• Judgment Date: 15 July 2011
• Date: 15 July 2011
• Docket Number: Appellate Jurisdiction 2010 No. 9
• Court: Supreme Court (Jamaica)

In The Supreme Court of Bermuda

Appellate Jurisdiction 2010 No. 9

BETWEEN:

F

Appellant

and

Director of Child & Family Services

Respondent

and

F

Party Affected

Mr P Harshaw for the Appellant

Mr L Rochester for the Respondent

The following cases were referred to in the judgment:

Re H and othersUNK [1996] 1 ALL ER 1

AW v Director of Child and Family ServicesBDLR [2008] Bda LR 42

Re M (a minor) (care order: threshold conditions)UNK [1994] 3 All ER 298

Abstract:

Appeal against care order - Errors of law - No reasons given in Magistrates court - Mother's capacity to care for children

JUDGMENT of Wade-Miller, J

1. This is an appeal against a decision dated the 23rd of February 2010 and 8th March 2010 of the Magistrates' Court (sitting as a Special Court - the Family Court).

2. The subjects of this appeal are J who was born on 6th September 1995 and R who was born on 3rd October 2002. The parents are divorced and the mother has custody, care and control of the children pursuant an Order of the Supreme Court. The father has remarried and lives overseas.

3. The Director of Child and Family Services applied for a care order under Section 25 of the Children Act 1998 in respect of the two children J and R.

4. On 23rd February 2010 the Magistrates' Court (sitting as a Special Court, called the "Family Court"), made a further care order for 12 months pursuant to section 25 of the Children Act 1998 in respect of the two children, J and R. This order did not specify the date of any previous order. However, the evidence shows that previous care orders were made in respect of each of the two children.

5. On the 8th March 2010 by an ex parte order; the Family Court varied the order which was made on 23rd February 2010 by requiring the mother to deliver up R's medical vest, which is used for treatment of R's cystic fibrosis, to the Department of Child and Family Services. This order states that failure by the mother to comply with the terms of this order will be deemed contempt of court punishable by 7 days imprisonment.

6. On the 8th April 2010 unopposed this Court granted the Appellant an enlargement of time to file and serve her notice of appeal in respect of the orders dated the 23rd day of February and the 8th March 2010.

7. In her affidavit dated the 23rd March 2010 the mother stated that both of the children have been the subject of Family Court orders for a number of years. In her absence a member of Child and Family Services met with the children's pediatrician and a decision was taken that R be hospitalized. She complains that at no time was she given an opportunity to voice her concerns. During the hearing she was asked if she had anything to say, having just seen the order she could not "digest it", to have anything meaningful to say.

8. By Notice of Appeal dated 23rd March 2010, the Appellant, mother appealed against the decision of the Family Court dated 23rd February 2010, and 8th March 2010. The notice of appeal lists nine grounds of error. It alleges that the Family Court erred in law/or in principle in making the care order:

i. As there was no or no proper or sufficient evidence of significant harm within the meaning of the Children Act 1998 properly before the Family Court at the time of making the order; which is a necessary pre-condition for the making of a Care Order.

ii. As it failed and/ or refused to give any or any proper statement of the plan for the children's care contrary to section 31(2) of the Children Act 1998;

iii. In that it failed and/or refused to give the reasons for its decision;

iv. As the order was based on the Care Order of 3 March 2009, which Care Order was spent and could not be revived;

v. In purporting to require the Appellant to comply with the report of Dr. Brownell dated 20 January 2008 in circumstances where there was no or no proper or sufficient evidence as to how such compliance would be beneficial to the children or either of them or that such compliance was reasonably necessary more than 2 years later for the benefit of the children or either of them;

vi. In purporting to find as a fact (if it did so) that the children or one or more of them required medical treatment to cure, prevent or alleviate physical harm or suffering and that the Appellant does not provide, or refuses or is unavailable or unable to consent to services or treatment to remedy or alleviate the harm contrary to Section 3(e) of the Children Act 1998 in that there was no or no proper or sufficient evidence before the Family Court to support any such finding;

vii. In that the court failed to give any or any sufficient or appropriate weight to the law, including but not limited to the right of respect for life, of Bermuda;

viii. In circumstances where there was no genuine urgency necessitating or justifying an ex parte application by the Respondent;

ix. In circumstances where there was not genuine reason necessitating or justifying an ex parte application by the Respondent without notice to the Appellant, thus denying the Appellant an opportunity to be heard prior to an order being made that she be (summarily) committed to prison.

Background

9. There are two children of the family. The brief facts of the case were that J and R have been the subject of Family Court Care Orders for a number of years.

10. R is eight years old and has been diagnosed with cystic fibrosis since birth. She had been living with her mother for 5 � months preceding the application before the court.

11. R recently attended Boston Children's Hospital for a follow up appointment the report shows concerns with her weight gain and questioned if she was receiving the medical regime as prescribed. A meeting has held with mother who when questioned reportedly said that she is doing the best that she can but she is only one person.

12. J is 15 years old and resides with his foster parents with whom he has been for over 3 years and with whom he has developed a strong connection. He experienced the sudden death of his foster father in the latter quarter of 2009. His foster mother is not enjoying good health. Family Services is contemplating a temporary placement in order to give the foster mother some...