[2009]JRC067
royal court
(Family Division)
6th April 2009
Before: |
F. C. Hamon, O.B.E., Commissioner, and Jurats Bullen and King. |
IN THE MATTER OF THE X CHILDREN
Advocate T. V. R. Hanson as Guardian ad litem.
Advocate H. Sharp for the Minister for Health and Social Services.
Advocate C. Hall for Mrs X.
judgment
COMMISSIONER:
1. In this most difficult case we are dealing with the three eldest children of Miss X. We have already dealt with the four youngest children, who have a different father. The three eldest children who are A, B and C. These three children were born of the relationship between Miss X and Mr Y, whom she married in 1995, but divorced in 2003. Mr Y has been convicted of a number of sexual offences and on 2nd June 2000, he was sentenced to a total of four years' imprisonment for offences against two children. On 23rd April 2004, he pleaded guilty to an offence against another child. He had served 21 months on remand and was subsequently sentenced to 3 years' probation on conditions. There is no question of the children having any further contact with Mr Y and in any event, Mr Y, through his lawyers, has confirmed that he wishes to take no part in these proceedings.
2. We have heard from numerous experts but we have to say that these proceedings began in March 2008. A year has passed and no final decision has been made.
3. There have been several adjournments. This should have been the final judgment, but when the Master had arranged to ask for funding, we received this e-mail from the Crown (it was sent to all parties) and is dated 26th March 2008:-
"I write to update you in respect of yesterday's events in the States that may have an influence on the extant care hearing. The States were due to debate funding next Tuesday. That funding is necessary for the Minister to introduce his proposed care plan in Jersey. However, I am informed that Senator Stuart Syvret asked for the matter to be put back for three months because he apparently wishes to debate points of principle. It appears that the States were informed that there was no urgency in the matter. This application was made after the Minister had left the States Chamber.
Plainly this is a significant event in terms of the care plans for the girls and I should be grateful if this e-mail could be placed before the learned members of the Court at the earliest convenience."
4. On 6th February 2009 we gave a final judgment in respect of the four youngest children. In that agreement we cited the words of Dr Miriam Silver, an expert clinical psychologist (and we shall deal with her evidence at a later stage). She was talking of ALL the children when she wrote at page 28 of her very long and detailed report that had been requested by the States of Jersey through Tracey Wade, the senior consultant psychologist and Jemma Waugh, the social worker. Initial instructions were to complete an assessment of the parents. She said:-
"Overall Opinion
Although I felt that Miss X loves her children, and does not have any intent to do them harm, it would be my opinion that she has clearly failed to recognise their needs beyond basic physical care. The level of supervision she provides is low, her expectations of autonomy from the children are overly high, and she does not understand the meaning of their behaviour. I believe that she does not have the capacity to provide appropriate boundaries and empathy to the children, and in fact responds in a very negative way to their emotional needs.
Miss X also models very disturbed behaviour. At times she is evidently very chaotic and emotionally un-contained and this is inevitably having a negative effect on the children. Her strong need to shock and promote sympathy in others leads her to behave in ways that are highly dysfunctional, and there was a flavour of this evident in several inappropriate comments made with incongruous effect during the interview.
Overall, Miss X has maintained the position that she cannot see any faults in herself as a parent and I felt that she almost totally lacked reflective capacity. She had no ability to look back over the past and consider how she wished it would be different in order to ensure that she does not pass on the negative behaviours that she has learnt from her experience of being parented to her children through her (own) parenting. She fails to recognise the risk that others present, particularly the risk of sexual abuse but also of emotional harm.
It would be my view that these deficits have been apparent for at least ten years, and that the fact that they remain despite the massive amount of practical support and intervention that has been provided to the family gives a very negative prognosis in terms of her capacity to change."
She added, later in her report:-
"Sadly, Miss X has minimal understanding that the children have any needs beyond being fed and clothed and having somewhere to sleep, and even these basic needs have not always been met (though Miss X denies this). She has no understanding of the importance of feeling valued, understand (sic) and nurtured by a parent, as she has not experienced this herself. Similarly, she has very little empathy for her children and can be critical, rejecting and dismissive towards them. Even when the children clearly express distress or disclose abuse she is not able to respond appropriately .... I would conclude that Miss X is not able to understand or meet the needs of a child sufficiently to be the carer of any child.
Sadly, as detailed above, Miss X's needs are so great, and her level of insight into the children's needs so minimal that she is unable to prioritise the children's needs above her own. She does not recognise the potential risks to the children and continues to prioritise her relationships with risky adults over the safety needs of the children."
5. In regard to the three eldest children, from the reports we have read and the evidence that we have heard, the children have all shown highly sexualised behaviour. Indeed, the allegation is that A has abused a sibling. The conclusion is that the children are either the victims of sexual abuse and/or have witnessed the sexual activity of others.
6. In evidence, Dr Silver told us that these three children would be in the top five of the vulnerable six hundred and fifty children that she looks after.
7. Dr Silver is a consultant clinical psychologist and she is working full-time as a specialist in attachment. She is senior lead for looked after and adopted children in Northamptonshire and has been doing psychological assessments of adults and children for the past 13 years.
8. We heard other evidence of course, but hers was undoubtedly the most detailed. As the guardian of the children, Mr Tim Barrett says in his addendum to his report of January 2009:-
"Every day that passes without resolution is a day lost for A, B and C making their recovery from the long-term abuse they have experienced less certain and the task for those who will eventually be involved in helping them to negotiate a therapeutic process of change all the harder. I can consequently only conclude, as before, that a lack of timely provision for these children has been highly detrimental to their emotional health and by deferring action for whatever reason the (Jersey) Health and Social Services Department has, in my view, compromised its duty of care towards them."
9. Let us consider what is proposed to be done. Firstly, let us deal with Miss X, who has, apparently, been to the psychology unit but, according to Advocate Hall, she was asked "Why are you here?" and replied "I've been told by the Court to come here." She was apparently given short shrift. This, if correct, is not good enough. Crown Advocate Sharp has told us that all the necessary papers have been sent on to the psychology department and the Court specifically asked him to enquire if those administering the department had read and understood them. Advocate Hall made it very clear that Miss X, who is a very disturbed person, needs help and she must be given the help that she needs. Her advocate must make it clear that this Court has taken the view that, in order to maintain contact eventually with the children (wherever they are placed) she must undergo very detailed professional assistance. Certainly, it is clear from the evidence that we have heard that these three children have become more settled without contact with their mother. We have, of course, a particular duty, under Article 2 of the Children (Jersey) Law 2002 to bear in mind that when dealing with any aspect in regard to the upbringing of a child, then the child's welfare shall be the Court's paramount consideration. We can only enforce the orders sought by the Minister in the care plans if we feel that the orders are in each of the children's best interests.
10. Crown Advocate Sharp has outlined all the information that we need but he has placed great reliance on the judicial review proceedings before the Bailiff and Jurats Le Cornu and Morgan. As the Bailiff said in the Court's judgment:-
"The Minister's view, put succinctly, is that the X children should be kept in Jersey and looked after in residential accommodation to be developed specifically for them and for other children in need of similar specialised care."
The Court, later in its judgment (which was delivered on 27th March), said:-
"As indicated by the Guardian, the professionals were stopped in their tracks by a concern that funding might not be available. The anticipated cost of these placements was indeed high. According to a business plan prepared by the department in early December 2008, the annual cost in relation to the X children was in excess of £700,000, making a total between 2009 and 2011 of £2,136,774."
11. One aspect of the Court's judgment which adjudicated that the Minister's decision was "perfectly reasonable" is this:-
"Mr Pollard was concerned that removing the children from Jersey and transporting them to a very different environment of the United Kingdom was not paying sufficient regard to their cultural background as he was required to do by Article 19(3)(b) of the Children Law. Furthermore, he thought there might be difficulty in re-integrating them into Jersey whenever the placements came to an end. These are, in our view, legitimate considerations. He was aware of the financial constraints and determined upon a deployment of resources which would benefit not only the X children but also, ultimately, other deprived or damaged children in the community."
12. As it is, (and we shall examine the plans which are being put in place, in due course), because of the lack of funding in any event, Crown Advocate Sharp has asked that we only make a full care order for A and continue with an interim care order for B and C. We have, of course, studied Article 84 of the Children (Jersey) Law 2002 and we are satisfied beyond doubt that the requirements for a care order are satisfied.
13. We are more than satisfied that the threshold has been crossed for each of the three children. We have the power to make care orders in respect of each child if these orders are in each child's best interests, having regard to the care plans advanced by the Minister.
14. What of those care plans? We must, of course, particularly in regard to C, scrutinise the care plan prepared by the Minister. On the construction of the Children (Jersey) Law 2002 the Court cannot direct the Children's Service to change its care plan during the currency of further interim care orders, although the Court can invite the Children's Service to reconsider its position.
15. We must carefully consider the judgment of Butler-Sloss LJ when she said in Re R (Care proceedings: Adjournment (1998) 2 FLR 390:-
"If there had been a realistic alternative to the care plan the judge was of course entitled to urge the local authority to look carefully at it....... the judge is not a rubber stamp. But if the threshold criteria have been met and there is no realistic alternative to a care order and to the specific plans proposed by the local authority, the Court is likely to find itself in the position of being obliged to hand the responsibility for the future decisions about the child to the local authority."
16. We also have, of course, the decision of the Court on the question of judicial review. In the final paragraph, the learned Bailiff said:-
"In summary, notwithstanding our reservations about the process adopted by the Minister, we did not find that it was appropriate to strike down the Minister's decision. If we had done so on the ground of procedural impropriety, what purpose would have been served? It is clear that all the relevant arguments have in fact been marshalled and taken into account by the Minister. The submissions made by the Guardian in January 2009 after receipt of the Williamson Implementation Plan, or the relevant parts of it, were essentially those made to the Minister in December 2008. Mr Pollard made it clear that, if difficulties ensued in relation to funding, he obtained an open mind as to how to fulfil the Minister's statutory duty to safeguard the welfare of the X Children. It was for all these reasons that we dismissed the application for judicial review of the Minister's decision of 19th December 2008."
17. Now that decision, we understand from Advocate Hanson, is being appealed against but we are bound by it and the Court has said that the Minister is right.
18. In Re K (Care Proceedings Care Plan) (2007) EWHC 393, Mumby J said:-
"The law
[13] The starting point is, of course, the fundamentally important judgment of Wall J in Re J (Minors) (Care: Care Plan) [1994] 1 FLR 253, approved by the Court of appeal in Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423 and in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116. At 258, Wall J spelt out the obligation of the court:
'...carefully to scrutinise the care plan prepared by the local authority and to satisfy itself that the care plan is in the child's interests.'
He continued:
'...if the court is not satisfied the care plan is in the best interests of the child, the court may refuse to make a care order.'
[14] At 262, Wall J expressed the hope that it would be:
'... a rare case in which the court's dissatisfaction with the ultimate care plan will be such as to prevent adjudication in a case where the court is satisfied both as to the threshold criteria and that a care order is in the interests of the child.'
The same point was made by Nourse LJ in Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423, at 429:
'... it is the duty of any court hearing an application for a care order carefully to scrutinise the local authority's care plan. If it does not agree with the care plan, it can refuse to make a care order ... The cases in which it is appropriate to take such a course will no doubt be rare.'
That was repeated by Butler-Sloss LJ in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116, at 126.
[15] It is important to appreciate the limit of the court's powers. As I said in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160), at para [11]:
'It is elementary that the only power of the court under Part IV is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say.'
Nor (see at para [12]) does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority's care plan, must achieve its objective by persuasion rather than by compulsion.
[16] One technique which, on occasions, can properly be used is to make an interim care order rather than a final care order, inviting the local authority in the meantime to reconsider matters. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
[17] The general principle was explained by Butler-Sloss LJ in a passage in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116, at 124, which she repeated in Re R (Care Proceedings: Adjournment) [1998] 2 FLR 390, at 399:
'The point at which the court withdraws from further control over the child and passes the responsibility to the local authority is a matter of the exercise of discretion by the court and will vary with each set of circumstances. But at some point, if a care order is made by the court, it must hand over the future arrangements for the child to the local authority. That is no abdication of responsibility by the court; it is acting in accordance with the intention of the legislation. The Children Act provides for many of the most important decisions, including whether to place a child for adoption, to be made by the local authority and therefore there is nothing untoward in the judge leaving the ultimate decision in the hands of the local authority with whom the child is placed.'
She went on to observe in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116, at 125, that:
'An interim care order is to be used for its intended purpose and not to be extended to providing a continuing control over the actions of the local authority.'"
19. Mr Barrett has advised against a final care order for A. He says that if that is made then he will no longer have any part to play with A and he will then only be able to consider B and C.
20. Let us examine the care plan for A; it is suggested A will go into a three-bedroomed house "The White House". It is currently being prepared so that it can be used as a residential therapeutic unit. It is, apparently, situated next door to the alternative curriculum building where A currently attends education. A has, according to the plan (paragraph 18) stated a preference to return home but if that is not possible would like to remain at Heathfield. It appears that a core group of staff has been identified with the lead member of staff (the manager) being a named person with NVQ 3 qualifications. In evidence, Dr Miriam Silver told us that a qualification of that kind in the UK could only lead to the post of assistant manager. A will share the White House with a 15 year old and perhaps another child.
21. In the case of Re X; Barnett London Borough Council v Y and DX, which all counsel dealt with at length and which was delivered on 18th April 2006, we have this postscript dated 8th May 2006. Mumby J said this:-
"In the event the matter came back before me on 26 April 2006. The local authority, having carefully considered my judgment, remained of the view, as I was told, that the correct plan for X was the one that it had put before the court. However, mindful of X's age and the unsettling effect of the proceedings, bearing in mind that it perceived as the likely stance of either the mother or the guardian, if it pushed ahead and concerned that X would remain in a period of uncertainty for a long period of time, which is not in her best interests, the local authority, in these circumstances, took the view that one of the parties needed to back down. The local authority was prepared to do so. Accordingly, the local authority was prepared to accept the view of the court and implement a plan which provides for X to stay in Devon. It hoped in this way to ensure that X sees some finality on the horizon."
22. Of course, the facts of Re X are not the same as the present case but we have to have regard not only to the Court's judgment in the judicial review proceedings but also the care plan.
23. During the course of this hearing, we heard six witnesses - Mr Tony Le Sueur, the service manager of the Children's Service, Miss Jemma Waugh, the social worker now responsible for this family, John Butterfield, the senior educational psychologist for vulnerable children, Mrs Josephine Forrest, the operations manager for special educational needs (she is an educational psychologist), Mr Tim Barrett, the guardian ad litem and Dr Miriam Silver, a consultant clinical psychologist.
24. Advocate Sharp also told us that the funding was available for A but with B and C there is uncertainty and it depends on the funding debate which has been put off for three months.
25. Advocate Hanson did mention the position of charitable funding which could relieve the situation partially. The Law Officers' Department have made the Minister's view quite plain - that he does not wish to pursue the offer of the charities. In any event, the two institutions, Windows for Children and Di Capo have written in response to a query from the Court to say that they do have vacancies. On 16th March, Di Capo wrote to say:-
"The reality is that we had two vacancies in July 2008 and have two vacancies at present."
The letter goes on:-
"The rate of referral between July 2008 and February 2009 was unusually low. We only had five or six appropriate enquiries in that time. We rejected them all as being inappropriate matches with our current residents.
The rate of referral has increased considerably recently. We currently have three active enquiries for the one available place at Hillgate Farm."
26. There are only two vacancies at present. The other is at The Stubbs and Di Capo would expect to have an additional vacancy at The Stubbs for a female from August or thereabouts. The director of Di Capo finishes his detailed letter with these words:-
"We carefully match any new referral with our existing children as well as with the staffing and other resources currently at our disposal. If the opportunities provided by a new referral (opportunities to face particular outstanding issues without support, opportunities to mentor and support a younger child, opportunities to experience being the younger child and so on) do not outweigh the risks for our existing residents we do not accept the referral."
27. Windows has visited the children and found that C is "a much damaged [child] indeed". The letter, which is extremely helpful, continues with these words (altered to protect the identity of C):-
"If therapeutic intervention is not provided urgently, C will become a very troubled and troublesome adolescent and adult, potentially perpetuating the cycle of chaos, aggression and abuse experienced so far in life and believed to be normal behaviour. Certainly, in my experience there are few resources that could cope with a deteriorating C, let alone offer the healing environment and process that is desperately needed.
Windows for Children have been unofficially holding our only vacancy for some time now, at the behest of certain professionals involved. However, we have a number of appropriate referrals awaiting a decision on admission, to which we have said we will be in a position to give a final answer after 24th February. It is our belief that Windows for Children potentially represents the best possible chance to help C to lead a healthy and happy life, but unfortunately all parties need to be aware, that time is of the essence for this child.
Sadly, we must ask for a decision soon after the hearing, as we do have a responsibility to offer our services to others."
28. We heard from Jemma Waugh and from Dr Posner to say that the provisions of the care plans are not fully finalised: particularly for B and C. We are concerned in this regard despite having the very highest regard for these two professionals.
29. In the care plan, a multi-agency presentation regarding a framework for providing a therapeutic care experience for the X Children was agreed. We understand that A's education will be in the alternative curriculum building but it will be adapted to suit the individual needs with perhaps one appropriately aged child accompanying him. On the steering group will be Dr. Posner, Miss Waugh, Mr Butterfield and Miss Egan, together with someone who did not give evidence, Mr Kennedy (the residential service manager). It is proposed that A will be moved to a therapeutic residential unit (The White House) that has been specifically set up to meet A's complex needs. There will be one other resident in the unit. It appears that the unit will be staffed on a ratio of one to one and A will have an individualised plan of intervention to meet A's physical and mental needs.
30. As Dr Silver says in her report of 6th June 2008:-
"Had the finance been available, the children could already be in such (U.K.) placements which would fully meet their needs."
31. What is proposed for B and C? They have been found places at Haut-Vallée school and we heard how the Jersey authorities would deal with such a placement. A house would be found (possibly from the Housing Trust) but as yet, nothing is definite. Haut-Vallée is, of course, situate at Mont-à-L'Abbé in St Helier. There is as yet no indication of where the house will be. A specialist unit will need to be set up and Mr Le Sueur is recruiting a number of specialised staff. That will be a difficult and we feel a lengthy task.
32. One of the witnesses, Mr Butterfield, told us that in particular C has developed. She is much calmer than she was and has a good relationship with a male teacher but her general emotional response to learning is still bad. It was of course only in January of this year that the idea of a therapeutic unit first came into being and the Minister has always intended to introduce care plans which would operate in Jersey.
33. We fail to understand why all these children did not receive appropriate health care much earlier in their lives. We cannot see that we can go any further with A. We have heard the Minister's experts and while we can sympathise with the views of Dr Silver and Mr Barrett we cannot progress the matter. Although we have to leave the ultimate decision with the Minister, we are very much influenced by A's needs, certainly about the future plans. We do so and make a full care order for A. This is really the lesser of two choices. We do not fully approve the care plan but particularly in the light of the Court's judgment in the judicial review proceedings we feel that there is no realistic alternative to the full care order.
34. As regards B and C, Advocate Sharp has only asked for the interim order to continue. We can see enormous problems arising out of the care plan, but there is an alternative which is to send one or both of them to either Windows or Di Capo, which on the evidence we have heard are much more suitable for these children. The matter is urgent. We would not expect any further delay and we will order that the question of placement must be decided within two months if the funding (from whatever source) is not available then we shall inevitably make a full care order for them but we wish to see the Minister make every effort to expedite this matter. Within two months' time, we shall return.
35. We need to say that we are of the opinion that recently the Children's Service and their advisers have worked very hard in seeking to improve the situation in this Island.
Authorities
Children (Jersey) Law 2002.
Re R (Care proceedings: Adjournment (1998) 2 FLR 390.
Re K (Care Proceedings Care Plan) (2007) EWHC 393.
Re X; Barnett London Borough Council v Y and DX.