Care order – application by the Minister for an interim care order
and the granting of a supervision order by the court.
[2015]JRC163
Royal Court
(Family)
7 August 2015
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Before :
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W. J. Bailhache, Esq.,
Bailiff, and Jurats Nicolle and Liston
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Between
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The Minister for Health and Social Services
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Applicant
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And
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A (the mother)
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First Respondent
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And
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B (the father)
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Second Respondent
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IN THE MATTER OF EMMA AND BEN (CARE
ORDER)
AND IN THE MATTER OF THE CHILDREN
(JERSEY) LAW 2002
Advocate C. R. G Davies for the Minister.
Advocate C. J. Scholefield for the First
Respondent.
Mrs Elsa Fernandes, Guardian.
judgment
the bailiff:
1.
The Court
sat on 21st, 22nd and 23rd July to hear an
application by the Minister for an interim care order in respect of Emma, born
in 2009 and Ben, born in 2011 (together “the children”), children
of the first and second respondents.
The decision of the Court was handed down on 24th July with
reasons reserved. This judgment
contains those reasons.
2.
The first respondent
is the mother of the children. The second
respondent is the father of the children and has not yet been served, although
both of them have parental responsibility. An application to the Court was made by
the Minister that the Court should proceed without service of the papers on the
second respondent and the Court has been advised, albeit no Act of the Court is
in the bundle, that that application was successful. We return to this point in relation to
directions at the end of this judgment, but we record that we proceeded on the
Minister’s application in the absence of the father.
3.
The
children have been in the voluntary care of the Minister since 28th June,
2015, but on one occasion since then, the mother, apparently on legal advice,
removed the children from school without the Minister’s approval. For this reason, the Minister takes the
view that the voluntary care arrangement is not sufficiently secure, and applies
for an interim care order. During
their voluntary placement with the Minister, the children have been placed in
alternative care arrangements as follows. On 28th June, the children
were placed in the care of their maternal grandfather. The following day, they were placed in
the care of a family friend, identified by the mother. That placement broke down quite quickly
and the mother identified two further friends who were said to be willing to
have the children to stay with them. However, on 9th July, they
were removed from the care of those friends and placed with other foster
carers, one of whom is Ben’s keyworker at D. It goes without saying that moving two
small children from the care of the mother into the care of three different
carers over the course of some four weeks was not ideal.
Threshold
4.
On an
application for an interim care order, the Court’s jurisdiction to make
either an interim care order or an interim supervision order arises under
Article 30 of the Children (Jersey) Law 2002 (“the Law”). The Court must be satisfied that there
are reasonable grounds for believing that the circumstances with respect to the
child(ren) are as mentioned in Article 24(2). This Article provides:-
“(2) The court may only make
a care order or supervision order if it is satisfied –
(a) that the child concerned is
suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of
harm, is attributable to –
(i) the
care given to the child, or likely to be given to the child if the order were
not made, not being what it would be reasonable to expect a parent to give the
child, or
(ii) the child’s being beyond
parental control.”
5.
Article
24(2)(b)(ii) does not arise on the facts here. In summary, for the purposes of this
case, the Court on an application for an interim care order must ask itself if
there are reasonable grounds:-
(i)
For
thinking that the child concerned is suffering or likely to suffer significant
harm; and
(ii) If yes, that this is attributable to the care
given or likely to be given by its parent falling short of what it would be
reasonable to expect.
6.
The mother
was resident in Jersey until she was 13 when she moved to live in England. She herself was a looked after child for
part of her childhood. She has an
older daughter from a previous relationship, and that daughter is, so we are
told, subject to a special guardianship order in the United Kingdom. The mother has contact with her.
7.
Emma and Ben
moved to Jersey with their mother in July 2014, seeking refuge from domestic violence
committed by the children’s father, the second respondent, on the mother.
Prior to coming to the Island, the
Minister has information that the children lived with their mother in the UK
where they were known to the local social services. There was apparently a long history of
involvement relating to drug and alcohol misuse, domestic violence with
multiple partners and a chaotic lifestyle. The older daughter, to whom we have
referred was registered on the child protection register in that local authority
in 2003 and it was noted that that child had made allegations of sexual abuse
against her maternal uncle and also against the second respondent. In 2011, the local authority recorded
that the elder child had expressed concern that the mother was permitting Emma
to have contact with the same maternal uncle about whom the elder child had
made the allegations of sexual abuse.
8.
On arrival
in Jersey, the mother initially lived with Emma and Ben at the Women’s
Refuge, which made a referral to the multi-agency safeguarding hub (MASH)
expressing concern about the mother’s care of the children and noting
that the mother had returned with the children late at night on three occasions
in the space of a week, on each occasion smelling of alcohol.
9.
The
Children’s Service received three police notifications of domestic abuse
between March and April 2015 and it was asserted that each of these incidents
was witnessed by one or both of the children. The children were placed on the Child
Protection register on 22nd May, 2015, under the category of risk of
physical harm.
10. On 28th June, 2015, the mother was
charged with two counts of intentionally or recklessly neglecting a child in a
manner likely to cause harm to the child, and one count of intentionally or
recklessly causing harm to a child. These proceedings are currently before
the Magistrate’s Court and the mother has reserved her plea. It was the incident of 28th June
which led to the children being placed in the voluntary care of the Minister.
11. In summary, the Minister asserts that:-
(i)
The children
are suffering emotional harm and likelihood of physical harm as a result of
their exposure to long term domestic abuse;
(ii) The children are suffering neglect and likely
physical harm as a result of their exposure to alcohol and drug abuse;
(iii) The mother’s minimisation of the concerns
and her inability to place the children’s needs above those of her own in
effect place the children at risk; and
(iv) The pattern of concerns of the Minister
replicates those that resulted in the mother’s eldest daughter being
placed permanently outside her care on a special guardianship order.
12. As threshold was disputed, it is appropriate to
review the evidence put before us. For
the Minister, this consisted of the evidence of the social worker Ms Rachel Stroyan coupled with police reports of the various
incidents which are referred to above.
There is no documentary evidence in respect of the concerns of E Social
Services actions and approach in the UK, where the mother lived. The mother gave evidence before us on her
own account in disputing that threshold had been passed; and it was also said
by Advocate Scholefield that her evidence, even if not conclusive in
establishing that the threshold had not been passed, was also relevant to the
issue of whether the Court should make any order, and if so, what order ought
to be made.
E Social Services
13. In her written evidence, Ms Stroyan
said that the mother had had a long involvement with agencies through her
experience as a looked-after child and her difficulties as a parent to her two
children. She had been known to the
States of Jersey Children’s Service since 21st July, 2014,
following her seeking refuge at the Jersey Women’s Refuge from the UK on
8th July. She had fled
to the Refuge from domestic violence committed by the second respondent who, it
was said, was known to Social Services in the UK due to his high levels of
domestic violence. Seventeen
incidents were known of at the point of arrival. The second respondent is known to “Palladin”
a UK database for stalkers, and is classified as a prolific stalker. The mother had informed Ms Stroyan that there was a non-molestation order in place in
respect of the second respondent which prevented him from having any contact
with the children and with her. E Social
Services had shared with the Minister that the mother had developed a drug
problem before her eldest daughter was born in April 2001 and the following
year UK police attended three incidents of domestic violence. Over the three years after that, the
mother had continued her drug use, and moved frequently. During this time there was further
domestic violence with subsequent partners and the mother had a chaotic
lifestyle. This led to the eldest
child being made subject to child protection registration in December 2003. The Children’s Service were
concerned that there was a similar pattern with the experiences of Ben and Emma.
The allegation of violence against
the mother by the second respondent involved kicks and punches to the head and
torso in September 2010, and attempts to choke the mother by the second respondent
in February 2012 which it was said both children had witnessed. In March 2014 the second respondent had
allegedly bitten the mother following an argument. It was suggested in cross-examination of
the mother that she had been hit by the second respondent with a baseball bat,
and she seemed to agree that that was so. When the mother gave her evidence, she
agreed that the police notes were right in respect of the domestic violence
committed upon her by the second respondent but incorrect in so far as it was
suggested the children had witnessed that violence. She said that the children never
witnessed violence until a couple of days before she left, and indeed it was
that violence which drove her to leave the United Kingdom and come to Jersey.
14. We note that a social worker apparently visited
the family home in May 2012, and raised concerns regarding Emma hitting her in
the face several times and appearing to think it was funny.
15. Pausing there, and bearing in mind that for
threshold to be reached, the Court has only to conclude that there are
reasonable grounds for believing that the circumstances envisaged in Article
24(2) of the Law are met, it seems to us that there is sufficient evidence for
such a conclusion to be reached. It
is a parent’s duty not to permit the child to be exposed to domestic
violence, and where that domestic violence continues over a protracted period,
and is on the scale reported to us in this case, it appears to us that it is
not at all unreasonable to think that significant harm may well have been
sustained by the children. Of course,
had those been the only circumstances, and notwithstanding that threshold had
been passed, the fact that the mother had, if belatedly, removed the children
from circumstances in which the domestic violence took place, might have led
the Court to considering that intervention was not necessary. However, in the present case, there are
further relevant facts to consider.
The Refuge
16. The evidence of Ms Stroyan
was to the effect that on three occasions in July 2014 the children were
considered by the women's refuge to be at risk. On 11th July, the mother had arrived
back at the Refuge at 12:10am via a taxi with the children, and she smelt of
alcohol. The children were tearful
and distressed. On 15th July,
2014, again she had arrived back at the Refuge at 12:05am., smelling of
alcohol, and again the children were tearful and distressed. On 17th July, she arrived back
at the Refuge with the children at 10:00pm., and had apparently had an accident
which caused swelling to her ankle, and hospital attention was required. The mother informed the Women's Refuge
that on this occasion she was on the beach with the children and had hurt her
ankle, after preventing Ben from running on the rocks. She denied any use of alcohol, but it was
noted that she exhibited some hysterical behaviour in the emergency department
at the hospital.
17. For these reasons, the Children's Service
expressed the fear that the mother was staying out very late with Ben and Emma,
and she did not prioritise their needs above her own, especially evidenced by
the fact that she was consuming alcohol. The mother's explanation was that she
came to Jersey to feel safe. She
said that her childhood was alright up until the age of 13 and she just wanted
to come home. She went to a
restaurant with her father and she agrees that the children were tired when she
got back to the Refuge. On 15th
July, 2014, which was her father's birthday, there was a party at his home and
it was increasingly crowded so that the children could not settle. In relation to the last incident on 17th
July, she said she was at the beach with her father and his wife at the Dicq. They
started eating at about 8:30pm. It
was nice to be near her family. She
agreed that on each of the three occasions that she had had a couple of glasses
of wine. She denied that she was
under the influence of alcohol. In
response to this, put to her in cross-examination, Ms Stroyan
said that it was too late for the children to be out at night, and although it
was possibly a good thing that the mother was trying to re-establish a
relationship with her father, the children's grandfather, all this suggested
that she was prioritising her needs over those of her family.
18. The Court takes the view in relation to the
Refuge incidents that, if these had been serious, they would have resulted in
an application to the Court at an earlier stage. In fact, nothing was done in this
connection until a year later. We
do not regard the allegations of drunkenness as having been established, but as
will be clear from the directions which we are giving in this case, we do think
it would be desirable in the interests of the mother and of ensuring that the
Court is able to reach the right conclusion, that these allegations are further
tested.
19. The mother commenced a new relationship with a
Mr F, a friend of her bother, in or about August 2014. In her evidence she said that he was not
violent as her husband had been. She
had met him in England and he was a source of comfort to her. He knew what she had suffered at the
hands of her husband. In her view,
the two children, her and Mr F were like a family. However, it all subsequently went wrong.
20. The Police log for 20th March, 2015,
shows that the mother called the Police for assistance and a Police officer
attended at approximately 17:40 hours. The mother had said that there were three
unwanted visitors who would not leave her flat. On arrival, the Police found that the
three visitors were the mother's former partner Mr F, her brother, G, and his
girlfriend. The mother stated that
her brother had told Mr F that the mother had been cheating on him, an
allegation which the mother denied. This led to an argument. Mr F, who had at one stage been living in
the flat, returned and had refused to leave. When the mother called the Police, all
three left. There were no
allegations of any direct violence, and no signs of disturbance in the flat. The mother agreed that her three unwanted
visitors could return while the Police were there to collect their things.
21. On 6th April, 2015, at approximately
18:00 hours Mr F contacted the police to say that he was outside the mother's
property and that the mother was throwing his belongings out of the window onto
the street. He also suggested that
he was being threatened with a hammer, although the mother denied this. According to the mother, there was an
oral argument only, as she had discovered messages from another female on Mr F’s
Facebook. Mr F denied this,
although he refused to show the officers his telephone. The officers gave words of advice to both
of them, and Mr F was given a lawful order to leave the area. The officers expressed some concern that
the young children were being further exposed to situations of this kind, which
might have a physical or emotional adverse effect upon them.
22. The police log shows that the police officer
attended at the mother's home address on 10th April with the Force
medical examiner. It was plain that
there was bruising to the mother's arms and inner right thigh. The mother was reluctant to speak about
these bruises in any detail. She
said she did not wish to take the matter any further. The officer noted that the available
medical evidence had been secured.
23. Mr F was not interviewed in relation to this
incident. However, although the
mother was originally not prepared to take the matter further, she was by 12th
April willing to make a formal complaint, because Mr F had not left the Island
as anticipated. The following day,
she said her bruise was looking much worse than when the photographs were
taken. She explained that Mr F had
wanted sex and that she did not. He
had pushed her into the bedroom by the shoulders, banging her arm. He also had grabbed her and had bitten
her thigh before having sex with her. She had shouted out at the time. It was pointed out to her that
non-consensual sex amounted to rape. She immediately tried to lessen her
complaint by saying that “he
probably thought I was joking”. Subsequently she refused any further
examination by the Force medical examiner, saying that she did not want to go
down that route. She would like to
pursue an allegation of assault by Mr F but not an allegation of rape. She duly made a formal complaint of a
grave and criminal assault but this was not to include any allegation of rape
as part of the same incident. The police
log discloses that at the time this incident occurred, Emma and Ben were asleep
in their bedroom. When the mother gave
her evidence, she said that she had asked Mr F to leave on the 6th April,
but he came back and he pushed her into having sex. She did not know why she had not called
the police. She did not want it to
be real. That comment perhaps
should be interpreted in the context of her statement immediately before that
she and Mr F were like a family and she did not know what had gone wrong.
24. A further incident occurred on 12th April.
25. There appears to be some difference of opinion
between the two Police officers who attended. One police officer considered that the
children were unaffected by the incident. They were happy and distressed only in
the sense that their mother was bleeding from her foot. That officer considered that the incident
did not have a major effect on them, and that they were soon playing with toys
and watching television in their bedroom. The other officer was of the view that
the children could not have been unaffected because the mother admitted that
her daughter was woken up by the incident and it could not be certain what she
had seen. Given the size and layout
of the premises, and the amount of damage caused, the children in that
officer’s view would have been affected by this violent domestic
argument. As a result of this
incident, Mr F was charged with a grave and criminal assault. He was committed to the Royal Court on
this charge, and granted bail on conditions. One of those conditions was that he
should not contact prosecution witnesses, including the mother and another that
he leave the Island until trial.
26. The final incident which was taken into account
by the Minister for the purposes of the present application occurred on Sunday
28th June. The police
received a telephone call to the effect that a baby had been crying for over
half an hour shouting “mummy,
mummy”. On the police
attending at the premises, they found the mother, in their view, to be very
intoxicated. She smelt of alcohol
and was unsteady, slurring her words and repeating herself. She could not give a coherent account of
what had happened that evening. Ben
had clearly wet his bed and a towel had been placed on the wet patch and it had
almost dried. She did not seem to
know where Ben was, although she thought he might have been asleep in her bed. The police noted that the flat was
generally tidy but a bean bag on the living room floor had broken open and
polystyrene balls were everywhere. Also
on the floor was female underwear and a bra. The Police noted a glass and a half full
bottle of rosé wine. The
mother was arrested on suspicion of child neglect and her father (the
children's grandfather), was called and requested to attend to look after the
children, as it was 2am on 29th June there was, it seems, no other
option.
27. The police noted that their concerns for the
children's safety were that:-
(i)
The mother
had become drunk and had not attended to the crying child;
(ii) He had wet the bed and she had put him back in
the same bed;
(iii) The living room was a mess with alcohol on the
floor and polystyrene balls everywhere on which the children might choke; and
(iv) The mother did not seem to be aware of where Ben
was, and indeed had made comments which suggested that he and Emma had been
left alone in the flat on occasions that day.
28. When she gave evidence on this subject, the
mother indicated that she believed the complaint had been made by a neighbour
with whom she was on bad terms. She
said she could not seem to talk to her. She asserted that that evening, when she
went to bed, she had had a glass of wine and had not realised that it might not
go well with the co-codamol which she was taking
then. She was tired. Ben was crying because he had wet his
bed. She changed his pyjamas and
put a towel over the wet patch on his sheets. He had continued to cry, maybe for 10
minutes, because he wanted to sleep in her bed and she did not agree with that.
She woke up with a start when the
police arrived at 1:30am. It would
appear that Ben had crept into her bed without her realising it. She did not think there was any basis for
all the complaints which had been made.
29. The Court heard from Ms Elsa Fernandes, the
appointed guardian, who told us that she had read the paperwork and appreciated
that although the incident on 28th June was the instigating
incident, for her it was the background and chronology which raised concerns
that the mother had not been able to protect the children from domestic abuse. In her view, the real concern was that
she, the mother, had not been in Jersey long, and yet the same thing was
happening again as had happened previously in the United Kingdom. She agreed that the children appeared to
have a good relationship with their mother, and, she was sure, would want to be
with their mother. In her view a
separation was needed to enable assessments to be undertaken. She agreed that
she had not yet had the opportunity of meeting either the children or the
mother, or indeed the present foster carers. She expressed the hope that there might
be more flexibility in contact arrangements in the longer term and she was in
particular concerned at the possibility that there might be another move if
this placement were to break down. When
asked why the Minister needed parental responsibility, she said that it was
important that the Minister should be able to prohibit contact with the second respondent.
The application of the Minister
took longer than was scheduled. As
a result, Ms Fernandes was not able to hear the evidence given by the mother,
and Mrs Ferguson sat in Court to listen to that evidence. Like her colleague, she had not had the
opportunity to meet either the mother or the children or the present carers. She told us, having heard the mother's
evidence that, JFCAS would continue to support the Minister. The reason that she had not changed her
mind was that she thought that what was needed was an honest open relationship
between the Children's Service and this family which went deeper than mere lip
service. When pressed on that, it
appears that Mrs Ferguson relied on the lack of responsibility shown by the
mother in not agreeing that there might be something wrong – indeed by
contrast the mother always alleged that officials had it wrong – the
neighbour was malicious, the police were wrong, the Refuge was wrong, and the
police were wrong in suggesting that she and Mr F were celebrating his birthday
together at the Watersplash in July; and, in relation to the breach of Mr F’s
bail conditions in July, that it was just coincidence that she happened to be
in Mulcaster Street when he was there.
Conclusions on the threshold
30. Given that this is an application for an
interim order, it is not appropriate that any findings of fact be entered at
this stage, although of course we have noted those facts which the mother
agrees. In particular we note that
she had agreed that she was subject to domestic abuse at the hands of her
husband when they had lived in the United Kingdom, and she agrees that some of
this abuse was witnessed by her children. Leaving aside the facts which are
admitted, we are required only to consider at this stage whether there are
reasonable grounds for believing that the circumstances envisaged by Article
24(2) of the Law exist.
31. We do not think there is sufficient evidence to
conclude at this stage that there are reasonable grounds for thinking that the
mother's drinking is a problem which has caused significant harm. She may have been under the influence of
alcohol on 28th June, 2015, but that is not enough in our view to
suggest that her alcohol consumption has caused the children significant harm. That is not to say that the evaluation of
the extent of the risk would be inappropriate. It is simply to say that at this stage
there are no reasonable grounds for believing that threshold is passed having
regard to the allegations of alcohol consumption.
32. As to the incidents on 20th March
and 6th April, there is no direct evidence of any impact of those
events upon the children but in our view there are reasonable grounds for
thinking that the children may have suffered significant harm, particularly in
the light of their past history, on these occasions. In addition, we think that reasonable
grounds exist for believing that they suffered significant harm as a result of
the incident on 12th April. Nonetheless, the test on an interim care
order goes beyond an assessment of whether there are reasonable grounds for
thinking that the children have suffered significant harm. The Court is required to conclude that
there are significant grounds for believing that the harm caused resulted from
the care, or lack of care, of the parent. In this case, we note that the mother
called the police on 20th March and on 6th April. In relation to the incident on 12th
April, it appears there were many people in the flats at the time, and she did
not invite these particular men in. It is true that the door must have been
open, because people were coming and going, but the mother also said that she
had retained a babysitter for that evening because it was her birthday party.
33. As to the incident on 28th June, the
Court's view is that there were reasonable grounds for considering that the
children might have suffered significant harm, especially as part of a pattern
of behaviour, taking into account the previous experiences which they had had.
In concluding that the threshold was passed, the Court has noted that there is
also room for a conclusion that no significant harm has in fact been
experienced since the mother left the UK with the children. They may have done so but no firm
conclusion in this respect could be reached here on the relevant evidence we
heard.
34. In summary, we consider that the Minister has
established threshold to our satisfaction in respect of the allegations of
abuse in the United Kingdom and, to the limited extent set out above, in Jersey.
The welfare test
35. We went on to consider whether this was a case
in which no order should be made, or whether it was a case for an interim
supervision order or an interim care order. We do not take the view that no order
would be an appropriate conclusion to reach. Not only has threshold been passed, but
we must recognise that there are real concerns about the safety of these
children and about the mother's ability to protect them.
36. We also recognise that we should make the least
intrusive order, consonant with the obligation to protect the children and to
place their interests first. In
this context, it was contended on behalf of the Minister that the critical
question was whether the children could be kept safe. If the mother was inebriated to the
extent of being incapable of looking after the children, then it was said that
of course they are at risk. It was
contended that there was no doubt that the mother had tended to form
relationships with abusive men and there was a question mark over her ability
to remove herself from those relationships once she is in them. It was said that the discussion or
“chat” on 13th July in Mulcaster Street which the mother
described in evidence was with a man who had broken into her house, had raped
her, and had made threats on Facebook. Why would the first respondent behave in
such a way? It was apparent, said
Advocate Davies, that the first respondent might seek a non-molestation order
but it is well known that some ladies encourage a breach of injunction which
they have obtained themselves. It
was said that the mother knew on 8th July that she should not be
talking to Mr F, but that did not stop her from doing so.
37. The Minister emphasised that there was no
evidence that the current placement with foster carers was damaging the
children in any way. They seemed to
be doing well. The Minister had the
support of the Guardian. By
contrast, the submissions of Advocate Scholefield that it would be wrong to
remove the children from their mother were based on a false premise, because
the children were not currently with their mother. Accordingly, comments in other cases to
the effect that it was a serious thing to remove children from the care of
their mother, was inapplicable.
38. We have rejected the submissions of Advocate
Scholefield that threshold is not passed for the purposes of an interim order,
but the submissions which he did make are, in many respects, equally relevant
to our consideration of the welfare test and we now repeat them. In essence, the mother’s position
was that she had had an unhappy time in England and she did take positive,
indeed dramatic, steps to take care of the children by removing them from that
jurisdiction and returning to Jersey. When she came back here, she made contact
with her family – she was not on any alcoholic binge, dragging children
in her train, but by contrast seeking to re-establish links with her father and
his new family. The evidence was
that she had taken an active interest in the children’s education and was
a member of the parent-teachers association. She attended the Freedom Church with the
children. She had a growing network
of friends and, there was no dispute, a good relationship with both children. They loved their mother and she loved
them. As to the breakup with the
relationship with Mr F, it was conceded that this ended unhappily. Nonetheless, Advocate Scholefield
submitted that the mother had taken all the right steps. She caused the property of Mr F to be
removed from her flat and she terminated the relationship. The fact that he took the termination
badly and intruded on her birthday party was hardly her fault. Indeed at that party there was a baby
sitter looking after the children.
As to the incident on 28th June, it was said that the mother
had attended to Ben. She had
changed his pyjamas and she had placed a clean towel on his bed. An assessment had to be made between what
amounted to “controlled
crying” which would be his client’s submission, and “neglect” which would be the
neighbour’s conclusion. In
the former case, it was not poor parenting to allow a child to cry with a view
to teaching him to stay in his own bed rather than move into his mother’s
bed. In any event, Advocate
Scholefield submitted, his client had not realised the effect which drinking
alcohol would have when co-codamol was being taken,
and to the suggestion that she appeared confused when woken up at 1am., he
asked rhetorically whether that would not be the same for anyone?
39. We will consider these contentions shortly, but
we mention one other submission which initially appeared to us to be relevant. Advocate Scholefield submitted that the
foster carer had said she could not keep the children past the end of the
school holidays. That apparently
was in the agreement made between the Minister and the foster carer. Advocate Davies did not know instantly
the answer to that submission, which the Court considered raised an extremely
important issue. She did however
undertake to ascertain what the position was and circulate us after the
adjournment, which she duly did. Her
instructions were that the carers and the mother were told that the placement
would be reviewed approximately six weeks after placement, largely because the
outcome of the Minister’s application for a care order was and is
unknown. The placement was not
however time limited. The
Children’s Service had spoken to the carer that day, and she has
confirmed that she and her husband were happy to have the children beyond the
end of the summer and potentially until permanence for the children is decided.
The confirmation given by the
Children’s Service was important because if the present carers were not
willing to continue to look after the children, there was a serious question
mark as to where they might be accommodated and as to whether it might be
necessary to separate them. Put at
its lowest, there was a not negligible risk of separation, which could not be
ignored. We mention this issue
because the Court considers that the separation of the children from each other
would be extremely damaging, and as the Court is concerned with the issue of
risk in assessing what order ought to be made, it would be correct to identify
that there is an area of risk if the current placement should break down. Fortunately, that appears to be a low
risk in the light of the confirmation which the Children’s Service have
given the Court through Advocate Davies.
40. The central premise for the Minister’s
application for an interim care order, as a result of which the children would
be withheld from the care of their mother, was that they were at risk of
suffering significant harm and the Court should keep them safe.
41. It seems to us that the starting point is that
no situation is free of risk. The
Court could be faced with careful parents who love their children and have
looked after them competently for perhaps five years. Is their continued care free of risk? The answer is that it is not. The reality is that risks surround all of
us all the time. The Court is
therefore not faced with a choice between a situation of risk and a situation
of no risk. There is a need to
evaluate the different risks which might exist.
42. We take it as axiomatic that the removal of
children from their mother is liable to cause them significant harm. We use the expression “liable to
cause" deliberately – there may be cases where the removal of the
children from their mother will not cause harm, but the probability is that in
circumstances where there is a good relationship between them, it will. In the present case we are in no doubt
that having regard to the obvious loving relationship between mother and
children, which was not in dispute, their removal from the mother would in fact
cause them harm, and to some degree has already caused them harm. In saying that the children may have
already suffered some harm by their removal from their mother, we do not mean
to imply that the Children's Service have acted incorrectly in the actions
which they have taken so far. Indeed,
we note that the information available to the police and the Children's Service
on 28th June was such that it was not unreasonable to take
protective action.
43. What we are therefore faced with is a
comparison between an order which continues known harm and an order which
perhaps leaves them exposed to a risk of significant harm. Accepting, as we do, that there are
reasonable grounds for believing that the children's experiences in England,
perhaps exacerbated by the events in April this year, have caused them
significant harm, and that such harm results from a lack of care on the part of
the mother, we need to assess the extent of the risk that there will in the
future be a continued lack of care with a similar consequence. It is well established that the Court
makes the least intrusive order when exercising its powers under Article 24. If we think that it is possible to make a
lesser order than a care order, such as a supervision order, with conditions
imposed or undertakings given which will effectively prevent the children
suffering from such harm again, it seems to us that that is the course which we
should follow.
44. When she gave her evidence, the mother said she
would do absolutely anything to get her children back. There were no conditions she would not
accept. Advocate Scholefield
repeated those views in his closing submissions. Before delivering judgement, we asked the
mother if she were prepared to give the following undertakings to the Court. These were:-
(i)
She is to
comply with Paragraphs 1 and 2 of Schedule 3 of the Law.
(ii) She is not knowingly to have contact with any
persons reasonably considered to be inappropriate by the Children's Service,
and in the event that such contact takes place unwittingly, she is to remove
herself and the children forthwith from any situation in which such contact
might continue.
(iii) She is to keep the Children's Service informed
of the identities of any person(s) with whom she expects to have social contact
more than three times a week.
(iv) She is to accept any visits from the Children's
Service at her place of residence in order that the Children's Service may satisfy
themselves that all is well between the mother and the children.
(v) She is to attend such parenting courses in
Jersey as are notified to her by the Children's Service.
(vi) She is not to cause or permit the children to
leave the island without the written permission of the Minister pending the
outcome of these proceedings.
45. Advocate Scholefield took instructions from his
client and gave these undertakings on her behalf. It was then suggested by the Minister
that it would be desirable that if the mother gave a further undertaking that
she would, if necessary, seek a non-molestation order against the father if he
were to arrive in Jersey or attempt to contact her. Having taken instructions, the mother
agreed to give this undertaking as well through Advocate Scholefield.
46. In the light of the fact that these
undertakings were given by the mother, the Court considered that it was
appropriate to make a supervision order and not a care order on an interim
basis, this order to continue until 11th September 2015.
47. In reaching this conclusion it should not be
thought that the Court has disregarded the views of the Guardian, which have
been carefully considered. However,
it remains true that the Guardian could only reach such conclusions as she did
on the strength of the written material which was before her, as her
appointment had taken place very shortly before the hearing of the Minister's
application for an interim care order. In particular we do not think that the
fact that the children are in the care of the mother will make any difference
or provide any impediment to the conduct of the psychological report on the
children which will be a necessary part of the ongoing examination of the
circumstances surrounding these children in this Court.
48. In the circumstances we make a supervision
order in the light of the undertakings given by the mother and confirm that
both the mother and the Minister have liberty to apply in relation to the
interim supervision order and in relation to the undertakings given.
49. We are conscious that the second respondent
remains unaware of the present proceedings. In principle, we think it is appropriate
that he should become aware of them, and it seems to us to be possible that he
could be so served without becoming aware of the residential address of the first
respondent or the children. However,
we agree that that needs further consideration and we mention it in this
judgement solely to ensure that the issue is raised at the next directions
hearing which is to take place on Thursday 13th August at 9:30am. Our current thinking is that the second respondent
is probably aware that the first respondent is in Jersey with the children, and
yet he has made no attempt to contact her, or come to the Island, for some 12
months. Although he may have spent
some other time in custody, it appears to be the case that he has been at
liberty also for part of that time, and in those circumstances the fact that he
has not made attempts to contact the mother seems to us to be relevant to the assessment
of the risk of his attending in the Island and being a danger to the mother and
these children.
Authorities
Children (Jersey) Law 2002.