Rights concerns for off-island children in care

The human rights of children sent to the UK for care are not being protected due to legal gaps, a lawyer says.

Advocate Darry Robinson said care orders to send Jersey children to the UK had no legal standing in the UK, meaning there were no legal safeguards.

He also said it appeared Jersey was failing to get UK court approval when it issued orders to deprive some children of liberties; for example, the imposing of curfews.

The UK Department of Education said Jersey authorities needed to ensure there was a lawful deprivation of liberty authorised by a court in England. Jersey Children's Minister Richard Vibert said children's rights were "always considered" and they had access to support.

According to Vibert, there are 17 Jersey children in care in the UK.

Robinson has worked on cases where the children's minister has applied for children to be sent to the UK for care.

He said: "My main difficulty is that any care order made in Jersey doesn't have effect in the UK.

"That means that you have a child who is placed in the UK who is subject to an order... it doesn't provide any safety for that child."

Robinson explained provisions to safeguard the rights and wellbeing of UK children placed in care would not apply to Jersey children.

Safeguards include a child getting statutory visits, an independent reviewing officer and the local authority being notified that the child was in a care placement in their jurisdiction.

Robinson also said the human rights of children sent to the UK were not protected when there is a deprivation of liberty.

A deprivation of liberty order legally authorizes care providers in Jersey to restrict a child's freedom, but approval would be needed from the High Court in the UK for Jersey children sent there.

He explained: "So, if you have a Jersey's child who's in the UK, there should be an application to the High Court seeking authorization to deprive that child of their liberty and that's not happening.

"Now that means that you potentially are faced with breaches of that child's human rights, particularly Article 8 rights, rights to a family life, and particularly Article 5 Rights, the right not to be incarcerated or kept against one's will.

"If, for example, a child in the UK care home says: "Right, I've had enough of this, I'm leaving, I want to go home to Jersey,' if you don't have an effective order in the UK and that child's prohibited from leaving the care home, then, inevitably, that is interference with the child's Article 5 rights and there's no authorization by the court to allow the care home to act in this way."

The UK Department of Education said in a statement: "It is correct to say that the Jersey authorities should be applying to the High Court in England and Wales to exercise its inherent jurisdiction and authorize the deprivation of liberty, so that any children's home or other setting in England can be sure they are imposing restrictions which have been properly authorized and protect the child's human rights."

Richard Vibert said in a statement: "We are fully conversant with the rules about the use of the High Court in England in respect of matters relating to the use of deprivation of liberty.

"Jersey would utilise this in the event that it was needed."

On Jersey care orders lacking legal basis in the UK, Vibert said: "Whilst I acknowledge that Jersey care orders are not formally recognised as care orders in England and Wales under their legislation, I retain parental responsibility for children in our care and the duties that come with this.

"My officers continue to work with the authorities in England and Wales for the formal recognition of Jersey care orders.

"To approve a placement outside of Jersey, the Royal Court has to be satisfied that it is in the child's best interest to live outside of Jersey and that suitable arrangements are in place for the child.

"A child's human rights are always considered where decisions are being made which affect their lives. They continue to have access to all the support that a child in care in Jersey would have, including an independent reviewing officer and an independent advocate."

Jersey Cares, an advocacy group for young people in care, said most of the children in the UK for care could be cared for in Jersey if there were more care homes and foster carers.

Group CEO Simon Nash said: "There's always going be two or three that would never be able to be cared for in Jersey.

"But the remainder, which can be 15 or 16 children, they are there because... there's either insufficient foster care placements in Jersey, or insufficient appropriate children's home placements in Jersey.

"That is a concern because that is something that Jersey should be able to do and do really well."

Vibert said: "We are absolutely committed to ensuring that we expand the number of foster cares and residential provision so we are able to support children in care in Jersey to remain on island when it is safe and appropriate for them to do so.

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