Jersey Unreported Judgments

[2009]JRC200

royal court

(Samedi Division)

14^th October 2009

 

In the matter of the Children (Jersey) Law 2002

And in the matter of C

Advocate Hollywood and Advocate Dutôt for the Minister of Health and Social Services.

Advocate R Colley for C.

Mrs L appeared in person.

Leonora Green of the NSPCC a person appointed under Article 75 of the Children (Jersey) Law 2002.

judgment

COMMISSIONER:

1.        The Minister applies for a care order under Article 24 of the Children (Jersey) Law 2002 ("the Children Law") placing C in his care.  The application is supported by Mrs Leonora Green ("Mrs Green") of the NSPCC, who had been appointed by the Court under Article 75(1) of the Children Law to assist and befriend C, but opposed by his mother Mrs L. The application was heard on 25^th and 26^th of June 2009 and 21^st July 2009 when our decision was reserved.

The family

2.        C was born on 5^th March 1996 and is therefore 13 years of age.  His natural father lives in Northampton but he has lost contact with C and took no part in the proceedings.  Until the incident referred to below C lived with his mother Mrs L and her husband Mr L whom she married in March 2003.  They had two young children of their own, namely E and T and Mrs L was seven and half months pregnant with R who was born in July last year.  Also living with the L family were two other children that Mrs L had through earlier relationships, namely her son A (aged 9) and her daughter Ch (aged 17).  Ch's natural father is Mr M.  He and his wife Mrs M play an important role in this matter. At the time of the incident it was thus a busy household with five children.

The incident

3.        In April 2008 Mr and Mrs L were experiencing not unusual teenage issues with C.  At or around 9.00 pm on Wednesday 2^nd April 2008, in accordance with the usual family routine, Mr L came to collect C from the Scouts, where he witnessed C behaving in a manner which by any standards was unacceptable.  C was seen to punch and spit at a girl, calling her "a fucking Muslim".  As Mr L's reaction to what he saw was the subject of a criminal prosecution under Article 35 of the Children Law, it is appropriate to set out what the Assistant Magistrate found proved quoting from her oral judgement as follows:-

"Mr L saw the incident, he then took C and a friend away in his car and after dropping off a friend they went home, arriving there about half an hour after the incident, little was said in the car.  At home, Mr L hit C a number of times to the head.  This was a deliberate assault, the blows were not issued in the heat of the moment but they were delivered as punishment some time after the offence.  I do not find it necessary in these circumstances to determine whether C fell over and was hit whilst on the ground....... Mr L did hit C several times with his hand.  He admitted that he hit him harder than he should've done.  This was correction for bad behaviour but it was pre-meditated, it was a deliberate decision, it was repeated blows to the head and a deliberate attempt to get to the head.  When C covered his arms and blows fell on C's arms and elbows, Mr L moved C's arms so that he could get at C's head............I accept C's evidence as credible that he suffered physical pain, he was upset and angry, which is emotional harm to a 12 year old."

Intervention of the Children's Service

4.        C reported the incident to the school the next day, 3rd April.  He alleged that he had been beaten up by Mr L (including apparently an allegation that he had been kicked in the head) and that this was not the first occasion.  He also claimed that his other siblings had been victims of physical chastisement by Mr L over a period of approximately three years. 

5.        There was visible bruising to C's left ear.  He was examined by a doctor, Martin Barrett, who found red bruising of the skin forming the upper part of the left ear, which would be consistent with the effects of direct blunt trauma.  He was unable to identify any other signs of injury.  However, an accident record from the school for 3^rd April showed  that C had an accident at about 8.20 am when he was running backwards and then fell, hitting the back of his head.  There was also a suggestion that his ear had been bruised the night before play fighting with other scouts. For the purposes of Mr L's subsequent prosecution, the prosecution accepted that this reddening to his ear was not attributable to the actions of Mr L.

6.        The Police Protection Unit suggested that C and A should be placed away from the home in order that video evidence could be obtained from them.  Mrs Tracy Welch ("Mrs Welch") from the Children's Service, who did not give evidence before us, declined the suggestion of Mrs L that they should stay with their grandmother, Mrs G.  Instead, C and A were placed with Mr and Mrs M, an arrangement the Children's Service believed was made with Mrs L's full consultation and agreement.  Mrs L says she consented under duress for the one night only.  The M's had played an important role in C's life.  When he was about eight months of age, Mrs L was arrested and sentenced to prison for drugs offences and he was looked after by the M's until he was about three and a half years old, when he returned to live with Mrs L.  There had been intermittent contact for prison visits.  This was a critical period during his development. 

7.        Mr L was arrested at the family home and placed on remand at La Moye Prison.  He was told by DC Sarah Smith that he was being arrested for kicking a 12 year old boy in the head and his steel toe-capped work boots were taken for forensic examination.  The custody record for 3^rd April 2008 shows that the initial allegations were of this nature, i.e. a young child being kicked in the head.

8.        In fact, there was no such allegation against Mr L as became clear in the video interview of C which took place on 4^th April.  Mr L was interviewed by the police on the same day.  He had been advised by the duty advocate to make no comment in response to the questions of the police.  He declined that advice by making a full statement causing the police to comment that his account of the incident was virtually a verbatim account of what C had told them in his video interview; in essence slapping C across the head and arms (C put his hands up to defend himself) six or seven times.  In that interview, he said he was in remorse and had slapped C harder than he should have but he went on to argue before the Magistrate that the chastisement had still been reasonable.  He accepted having slapped C on the head once before but denied the general assertion that he had habitually physically chastised C and his siblings over three years.  Having spent some four days in custody, he was then granted bail on condition that he did not return to the family home. 

9.        Mrs L was understandably shocked by the events of 3^rd April 2008.  She first received a phone call from Mrs Welch, saying that C and A had been picked up from school as a result of serious allegations made by C.  Her husband was then arrested at home and taken into custody.  When asked where C and A should stay the night, she suggested her mother, Mrs G.  She was told by Mrs Welch that they were not going to stay with their grandmother as they were scared of her, something which she found difficult to believe, bearing in mind her mother's close relationship with the family.

10.      Mrs L told us that she went down to the Police Station on Friday 4^th April to find out firstly where the children (C and A) were and what was happening to her husband.  She says she was telephoned by Mrs Welch and told that she would not be seeing the children over the weekend, but maybe next week, with no explanation as to why, except that they did not feel safe at home.  She was told not to try to contact the children at all.

11.      On Monday 7^th April, Mr L was given bail and he and Mrs L attended Maison le Pape to see Mrs Welch.  They say they were left with the impression that the children were coming home soon.  She apparently promised that she would bring C and A home in the morning before 11.30, as she had a meeting at 12 o'clock.  On Tuesday 8^th April, there was no contact from Mrs Welch.  Mrs L telephoned her at 11.35 and she says was told that she could not see the children because the Children's Service was waiting to see if she would be charged with wilful neglect.  On Wednesday 9^th April, Mrs L had supervised access of one hour with A but not C. 

12.      On 10^th April 2008 A, who had been very unhappy away from home, was returned to Mrs L but C stayed on with the M's.  He wrote to his mother saying that he was staying at a friend's house because he was too scared to come home and would be staying with his friends until Mr L calmed down.  Mrs L alleges that the handwriting is not that of C and by implication that this letter therefore must have been forged.

13.      Mrs Welch completed an initial assessment on 14^th April 2008 in which she summarised the position as follows:-

"During the initial part of the assessment process it is concerning that Mrs L has failed to make her disapproval of the assault by Mr L on C clear.  She stated clearly that due to the fact that she had not seen the assault she would not take anyone's side.  The lack of parental support has the potential to seriously damage the emotional security C feels is available to him, and potentially leaves him at risk of further abuse.  While the initial assessment has primarily concentrated on C's needs, consideration should be given to assessing the needs of all the children during any further assessment and support."

Mrs Welch recommended that C remained in the care of the M's whilst further assessment work was completed and an initial Child Protection conference convened.

14.      During a home visit by Mrs Welch on 14^th April 2008, Mrs L is alleged to have said that there could be no contact with C until Mr L had returned to the family home.  This had been denied by Mrs L.  Mrs L alleges that at this same meeting she was told by Mrs Welch that she could not see C on her own - any access had to be supervised.  Such a statement would have been wholly at odds with arrangements which at that stage were entirely voluntary, the powers of the Minister under the Children Law not having as yet been engaged, but in any event this led to an incident which Mrs L and the children found very distressing in that C came to the family home of his own volition on 15^th April.  Fearful of the potential consequences to the family of her disobeying Mrs Welch's instruction, she says she told C that he could not come in as she was not allowed to see him unsupervised.

15.      On 23^rd April 2008 Mr L's bail conditions were amended to allow him to return to the family home but on condition that he would have no direct contact with C.  His trial was then scheduled to take place in September but his presence at the family home precluded C returning, at least until the trial had been completed.

16.      The Child Protection conference took place on 25^th April 2008 and was attended by Mr and Mrs L who indicated that they were willing to work with the Children's Service.  The following key recommendations were made:-

"(i)       That the case be transferred to the Child Care Team which works with families over a longer period of time.

(ii)       That a Core assessment be completed with the family, with a view to rehabilitating C back with his family as soon as practically possible.

(iii)      Contact to be planned for next week between C, Mrs L and his siblings.

(Iv)      Direct work to be undertaken by Nikki Kelly (School Counsellor) with C with a possible referral to the Child and Adolescent Mental Health Service (CAMHS) if deemed necessary.

(v)       Mr and Mrs L to apply to attend a Teenage Parenting Course "Understanding Teenagers" run by Trish Tumelty at the Bridge."

17.      In the light of this the Children's Service were of the opinion that Mrs L was in agreement with C residing temporarily with the M's.  The case was transferred to the Child Care team and allocated to Mr Mark Thompson ("Mr Thompson").

18.      Some contact took place between C and his mother and siblings in May 2008.  However, C was misbehaving and had been suspended for a short period from school.  Mrs L raised concerns with the Children's Service about his living with the M's and what she perceived to be the lack of boundaries imposed by them.  On 23^rd May, she allegedly declined further contact with C until he returned home to the family, something which the bail conditions precluded.  Subsequently C himself apparently indicated to the Children's Service that he did not want to have contact with his mother. 

19.      On 17^th June there were discussions between Mrs L and Mr Thompson about the care arrangements for C.  Notwithstanding the initial problems with Mrs Welch, Mrs L told us she got on well with Mr Thompson, and thought she was being listened to.  They were able to discuss matters.  Mr Thompson expressed concern at the animosity between the two families, namely the L's and the M's, which made it difficult to move the matter forward.  Mrs L understood that he would be taking the matter to the Fostering Panel for alternative fostering arrangements to be put in place, which she welcomed.  She says she received a call from Mr Thompson saying that C was to be moved and that Miss Kate Probert ("Miss Probert") of the Children's Service, who had taken over from Mrs Welch, would be phoning with confirmation.  However C was not moved.

20.      On 19^th June 2008 Mrs L wrote a letter which was widely copied to others including the then Minister and the M's in the following terms:-

"To whom it may concern

I feel compelled once again to write a letter of complaint [we were not shown an earlier letter] about my treatment with reference to my son C.  I feel I have been harassed, intimidated and continually threatened by the Social Services and Children's Services.  Through no fault of my own they took my son away from me without justification or proof of any neglect or maltreatment of C.  Against my wishes they have placed C in a totally unsuitable family; I have objected numerous times to this and have repeatedly requested to have him returned home to our care.

Since being in the care of the Social Services, he has been in school detention at least 15 times, been suspended from school once, and has been brought to the attention of the Police twice.  He is being allowed to roam the streets late at night with no supervision as his carers spend most of their free time in the pub, with the knowledge of the Social Services.  Social Services have been made aware of this on numerous occasions but seem to be totally oblivious to our concerns.  We feel if the situation is allowed to continue we may not be able to bring him back into the family unit as his behaviour will be completely out of control.  We are also expecting our latest child on the 25^th June which he will be missing out on due to the circumstances beyond my control.  We feel this situation needs to be resolved as quickly as possible for the sake of C's and our family's future which at the moment is being slowly destroyed.

As a consequence of all the conflicting information that I have been given by various officers of both Social Services and Children's Services I now wish only to correspond in writing and I hereby in the strongest possible terms withdraw again my permission for C to remain residing with Mr and Mrs M."

21.      The Children's Service responded at length by letter dated 7^th July 2008 pointing out that with Mr L back in the family home and the bail conditions precluding contact between him and C, it was not possible for C to return.  She had parental responsibility and had not put forward an alternative arrangement for C pending the trial.  The Children's Service had attended upon the M's following her complaints and was satisfied that the home environment provided by them was appropriate.  They emphasised the need to reinstate contact between her and C - there had been none since 23^rd May 2008 - and the need to draw up a contact plan for his eventual return home.  They invited her to a review meeting arranged for 10^th July and hoped that they could meet in order to move the situation forward in the best interests of C and his family.

22.      Miss Probert attended at the family home in July 2008 some ten days after R was born, but was turned away. 

23.      Further lengthy correspondence ensued from this point but it would appear that the position of Mrs L was becoming entrenched.  On 19^th August 2008 Advocate Hollywood wrote to Mrs L saying the concerns held by the Children's Service regarding C's wellbeing and accommodation had increased to the extent that they considered it necessary to confirm that they were providing him with accommodation with the M's under Article 17(4) of the Children Law. 

24.      On 12^th September 2008 the Court granted the Minister an interim care order.  Mrs L was represented at the hearing by Mrs Pearmain and did not contest the order.  By consent the Court also gave the following directions, inter alia:-

(i)        That a guardian be appointed and that Jersey Legal Counsel shall act for C in the proceedings.

(ii)       That a report by an independent child psychologist shall be filed.

(iii)      That Mrs L and her family fully participate in completing a thorough family assessment using the Department of Health Framework for the assessment of vulnerable children and their families.

(iv)      That Mrs L undertake a Parenting Course specifically designed for assisting parents in managing challenging teenage behaviour.

(v)       That Mrs L participate in any other work identified by the independent child psychologist that would be deemed necessary in assisting her in strengthening her relationship with C and the family as a whole (e.g. family therapy work in the future if deemed appropriate).

25.      On 18^th September Mr L was convicted of recklessly or intentionally causing C harm under Article 35 of the Children Law.  The Magistrate rejected his defence that the punishment administered to C was reasonable and we have quoted her findings above.  He was subsequently sentenced to 40 hours' community service.  One of the Assistant Magistrate's findings was that Mr L had moved C's arms so that he could get at his head.  It appears that she may have been relying upon what Mr L is transcribed as having said in his police interview, which at page 9 reads as follows:-

"SL      ...... I slapped him around the head a couple of times

186       OK

SL       I shouldn't have done that

186       Where, whereabouts did you slap him?

SL       Well I moved his elbows because he, covered up and  ..."

26.      In the course of the case before us, Mr and Mrs L attended at Police headquarters and acquired a copy of the tape of the interview.  Mrs L informed us that in response to the question "Whereabouts did you slap him?" Mr L actually responds "Well, mainly his elbows".  Miss Dutôt and Mrs Colley did not seek to challenge that there had been a mistake in the transcription.

27.      On 9^th October 2008 Mr and Mrs L attended a 'Looked After Child Review' at which contact with C was raised.  According to Miss Probert, Mrs L was unable to commit to a date and time when C could have contact with the family and left the meeting in tears.  This would appear to have been the last meeting between Mrs L and the Children's Services.

28.      Pursuant to the Court's directions Dr Bryn Williams, child psychologist, was instructed in October 2008 to prepare a report.  He contacted Mrs L and the following e-mail exchanges took place:-

To Mrs L from Dr Bryn Williams - 26^th November 2008

"I have been asked to undertake an independent psychological assessment for C.  I would be very grateful if you could be part of the assessment.  Please contact me as soon as possible to arrange an appointment for next week. Best wishes"

Mrs L to Dr Bryn Williams - 26^th November 2008

"Many thanks for your offer but I have no intentions of taking part in any form of assessment of myself for the prosecution."

Dr Bryn Williams to Mrs L - 26^th November 2008

"Dear Mrs L

Thank you for your message.  I appreciate this is very hard for you.  I want to reassure you that my role is totally independent.  C is saying to me that he wants to come home and that he misses you and his siblings.  It would be very helpful if you would agree to meet to talk to me about C's history and about what you think should happen next.

My assessment is about C, not a judgment of you."

Mrs L to Dr Bryn Williams - 26^th November 2008

"To say this is hard for me is an understatement.  If C wants to come home then let him.  If not, I will have my say in court on the 22^nd December.  Your email address means I won't be speaking to you or anyone from any States dept.

I know C wants to come home, he has told me many times.  He is forcibly being kept away from his family with no lawful reason or excuse."

Dr Bryn Williams to Mrs L - 3^rd December 2008

"I just wanted to write and say that I have now collected a lot of information for the psychological assessment requested on C.  It would be extremely helpful to have your opinion.  I appreciate that you don't want to meet me, but I wondered whether you would be willing to tell me your thoughts about what is in C's best interest, what barriers appear to be in his way, how C gets on with his siblings and the rest of his family, what work need to take place to help C and Mr L and you move on in your lives.

Perhaps there are other things that you would like me to know.

I will have to make a report to Court and I want to do what is best for C, your input into my assessment is central.

I hope to hear from you. Best wishes,"

There was no response.

29.      On 1^st December 2008 Miss Probert wrote to Mrs L inviting her and Mr L to attend a meeting on 8^th December to discuss contact arrangements with C.  Neither Mr nor Mrs L attended.  Miss Probert wrote again offering an appointment on 17^th December 2008, which they again failed to attend. 

30.      On 22^nd December 2008 Mrs L unsuccessfully contested the renewal of the interim care order and Hamon, Commissioner, said this:-

"This is a Gordian Knot which we have to untie.  We have, and we are bound to have, the interest of C completely in mind.  We wish to have C re-united with his family particularly now that Mr L has received his punishment for the assault on C and there are no bail conditions in place.  But we are extremely concerned about Mrs L's intractability.  Clearly she doesn't like the Social Services and doesn't trust them but she wishes to have C back and to do that she must work with the system and not against it.  We are pleased to note that a kinship assessment is to be made on Mr and Mrs M (who have the care of C) and we can only hope that this will be expedited.  But we have to say this, Mrs L is making matters hard for herself, we have noted that she completely distrusts the system, that may well be but it is the system that operates in Jersey.  She has to cooperate and that is our strongest advice possible.  Mrs L must meet with the appropriate expert and with the Social Services otherwise this case will go on and on.

We are going to extend the Order for 28 days and during that time we can only hope that Mrs L, for the sake of C, will co-operate with the authorities."

31.      Miss Probert wrote again to Mrs L on 3^rd February 2009 inviting her in to the Children's Service to discuss care plans and contact for C.  She did not respond.

32.      On 2^nd March 2009 a 'Looked after Child Review' was held in respect of C which Mrs L did not attend.  It was recommended that a kinship assessment on Mr and Mrs M should be completed and an application made to the Court for a full care order and a contact order. 

33.      Mrs L has declined all invitations to meet with Mrs Green.  They had one conversation outside the Court on 22^nd December where according to Mrs Green she made it clear that she did not trust anyone involved.  According to Mrs L she asked Mrs Green to contact a teacher, whose contact details she gave to her, and who would be able to give Mrs Green an independent assessment of C.  Mrs Green had failed to take up this suggestion, indicating to Mrs L that she was not intending to be impartial in her approach.  On this slender basis Mrs L justified her decision not to cooperate with Mrs Green.  Mrs Green had no memory or note of any such request.  Regrettably on 16^th January 2009 a message was left on Mrs Green's telephone in the Coventry office of NSPCC suggesting that she should not visit Jersey again.  It would seem that the call emanated from someone known to C's grandmother, Mrs G.

34.      Mr and Mrs L have not complied with any of the directions given by the Court.  C has had sporadic contact with Mrs L but extremely limited contact with his siblings since April 2008.  He had only seen R once.  With judicial encouragement given to Mrs L at a directions hearing on 1^st June 2009, C is now visiting the family home on a weekly basis and with Mr L present.  That contact appears to be working well. 

Psychological Report

35.      The report of Dr Williams was filed on 13^th December 2008.  The lack of any cooperation from Mrs L made it incomplete.  C was somewhat avoidant with Dr Williams and found it difficult to talk about his family situation.  Dr Williams therefore used the Family Relations Test as a way of getting inside the emotional attachments he had with members of his family.  The Family Relations Test is designed so that the young person is able to make choices about mildly positive and strongly positive feelings both to and from important people in their family as well as mildly and strongly negative feelings to and from family members.  The young person makes a selection from a number of post boxes in order to represent members of his own family.  They are then provided with cards and statements and are asked to post the card into the person's box with whom the statement is most closely related.  The young person is also offered "themselves" and "nobody".  C began the assessment with some ambivalence but did engage in the process choosing himself and nobody and placing alongside them Mr and Mrs L, A and Ch.  He also chose characters to represent Mr and Mrs M.  The results suggested firstly that the high number of choices made for nobody is indicative of a high level of denial.  However the choices made also suggested that C places Mr L and Mrs M as polar opposites.  There were high ratings of incoming and outgoing negative feelings towards Mr L and equally high incoming and outgoing positive feelings towards Mrs M.  The relatively low level of ratings with respect to Mrs L compared to both Mr L and Mr M was important in understanding C's situation.  The results suggested a degree of ambivalence in his relationship with his mother.

36.      Research emphasises the significance of a child developing a secure attachment relationship with a primary care giver during the first eighteen months to three years of life.  It was therefore significant that C's relationship with his mother was interrupted for a 2½ year period at a critical stage of his development when he was cared for by Mrs M and Dr Williams could not exclude the possibility that Mrs M thereby became his primary attachment figure.  He considered C to be genuinely very close to and psychologically dependent upon Mrs M.  At the same time, he was hugely protective of his mother whom he clearly loved very much and had strong and positive feelings towards his siblings.  The responses suggested that he remained deeply unhappy about his relationship with Mr L.

37.      In Dr Williams' opinion C felt rejected by his family group, that sense of rejection being reinforced by the messages received from his family that he could not return home because of the bail conditions and because of the limited contact with his family since April 2008.  Mr and Mrs L had not sought to make reparation following the assault and with the lack of any cooperation from them Dr Williams was concerned that C had suffered and was at risk of suffering further significant harm in respect of physical abuse.  He also suggested that given Mr and Mrs L had placed him in a position of making decisions about when and how he would return home and their failure to meet his needs as a child following the assault, he was at significant risk of emotional abuse.  He was also sympathetic to considering C to be neglected by Mrs L since March 2008. 

38.      It was in his view essential that Mr and Mrs L take on board the needs of C and to make urgent moves to help him understand that he was a victim in the situation and to urgently address his emotional needs by redressing the rejection that has taken place since April 2008.  He had serious reservations about the rehabilitation of C within the family until Mr and Mrs L demonstrated their capacity to meet his needs.  He believed it would be hugely detrimental if the current placements were compromised and that a gradual reintegration into the family could only be possible once Mr and Mrs L demonstrated their capacity to change.

39.      In evidence Dr Williams said he was disappointed that Mrs L did not cooperate with him in helping him make sense of C's future.  He felt that her anger towards the system was not so much about her son's needs but about her own.  He could not rule out the risk of further violence to C because he had been unable to assess that risk.  Without an assessment, there must be a risk and if it did happen it was likely to be significant.  Whilst reasonable physical chastisement is lawful in Jersey there is a significant danger to blows to a child's skull.  A bruising injury to the head was very concerning. 

40.      Furthermore there was a significant risk of harm to his emotional development if he were to be returned without these issues being addressed and resolved.  The bad feelings would be internalised and manifested by C acting out those feelings, turning to his peers with possible involvement in anti-social behaviour. 

41.      In cross-examining Dr Williams, Mrs L said that since June 2009 the relationship with C was back up again and felt normal.  Dr Williams felt that this approach was flippant.  C had been separated from his mother on two occasions.  This lack of continuity was not a normal experience and had to be dealt with appropriately.  A large part of C's security came from Mrs L and there was no evidence of serious commitment on her part.

Children's Services

42.      Miss Probert had provided two reports for the Court in which the history of the matter was set out.  She said it was the first time in her experience that a family had failed to engage with the Services for the benefit of the child concerned.  Until they engage, it is difficult for C to be reunited with his family and without him knowing exactly how the family feels.  She accepted that Mr L had been assessed by the Probation Department as at a low risk of re-offending but emphasised that the Children's Services have been unable to assess that risk through lack of cooperation.  The risks however were not just physical as in her view there was a risk of emotional harm. 

43.      In relation to the risk to the other children presented by Mr L, she confirmed that Mrs Welch had carried out lateral checks and no concerns had been reported. She confirmed that contact had now resumed from the beginning of June 2009, but felt that the parties were going through a honeymoon period, with both feeling the need to rebuild the relationships. Those relationships have yet to be tested.  It was not known at this stage how Mr and Mrs L would propose to impose discipline should the need arise.

Mrs Green

44.      On each of her visits C had clearly stated his wish to remain in the care of Mr and Mrs M but he had also consistently expressed a strong wish to have contact with his half siblings. Indeed as a consequence of this, Mrs Green had initiated her own application for a contact order.  Whilst contact since June had been resumed it was left up to C whether that contact would continue in the future and she felt it would not continue if left to Mrs L.  C had hated going to Court to give evidence against his father and had found it very painful that when he did resume contact one of the younger siblings had forgotten who he was.  He was proposing to start staying one night a week at the family home in order to maintain that contact.

45.      The lack of cooperation from the parents had made it impossible to assess the risk to C undertaking such increased contact at the family home and in her view he should not be put into this position.  She advised us that in England with his conviction under Article 35 of the Children Law, Mr L would be regarded as a Schedule 1 offender and therefore not someone who would be permitted to look after children.  She said it was important that there should at least be an assessment as to the risk of violence not only to C but to his siblings.  A case conference should have been called when Mr L returned to the family home to (a) assess Mrs L's responses to allegations over over-chastisement and charges in relation to Mr L (b) to assess Mrs L's ability, if necessary, to protect the children (c) to assess Mr L's behaviour and attitude and (d) put in place a robust safeguarding plan.  Such a conference would have provided an opportunity for multi-agency information sharing and decision making.  In her opinion the current state of affairs was unsatisfactory because at present the agencies appeared not to have come to a collective decision.

46.      In Mrs Green's view the statutory threshold to which we refer below had been met.  It was clear from the assault and subsequent conviction that C had suffered harm in the past and the risk was high because it was un-assessed.  It was concerning that the position of the parents had not changed over the course of time. 

47.      Mrs Green had considered the range of orders open to the Court:-

(i)        No order would not provide sufficient protection to C, particularly as his mother would then alone have parental responsibility and could therefore determine that he live with Mr L who has now been convicted of assaulting him.

(ii)       Although not opposed to a residence order, she thought it was more appropriate for the Minister to share parental responsibility with Mrs L until such time as issues regarding contact are resolved.  At that point it might be appropriate to consider the revocation of a care order in place of a residence order.  Mr and Mrs M would also have to be briefed on applications for specific issues orders to resolve difficulties which may arise in the future.

(iii)      She asked the Court to make a care order and strongly urged the Court to make a contact order so that C could continue to see his half siblings. 

Mrs L

48.      Mrs L had dispensed with the services of Mrs Pearmain shortly after the hearing on 12^th September 2008 and represented herself.  She had prepared her case well and was clearly both intelligent and competent.  She conducted herself with courtesy and restraint. She told us that she had never neglected or abused her child.  She had no problems with alcohol or drugs.  C had always been happy, well dressed, clean and had a good attendance record at his schools.  His accommodation was suitable and had always been kept clean and tidy.  In her view, he had been cruelly abused by the Children's Service, removing him from her loving care.  She was more than willing to work with professionals performing their statutory duty of trying to re-unite families and her family in particular, but said it was unreasonable for her to work with persons whose "avowed intent" was to take her child from her. 

49.      She had only consented to C and A staying one night with the M's.  She supported Mr L's chastisement of C on the night of 2^nd April 2008 notwithstanding his subsequent conviction.  C was, in her view, always a little prone to exaggeration and there was evidence that he had exaggerated the severity of the assault in his initial complaint to the police, when he apparently alleged that he had been kicked by Mr L in the head.  All that happened in her view was "just a couple of smacks, nothing more nothing less."  On the night in question, whilst she had not witnessed the assault, she had seen C go up to his bedroom and although angry, he looked fine. 

50.      In cross-examination, she said she did not think smacking was generally a good way of punishing but there were exceptional circumstances where it may be appropriate and it was for the person concerned to decide.  It would not have been her choice, but it was Mr L's and she supported it.  She did not feel the slaps were that severe.  Mr L was not a violent person and with everything that had happened, she was quite certain that it would never happen again.  If it did, she would not support him.

51.      C had not been seriously harmed by Mr L and was not at risk of further harm in the future.  On the contrary, if the care order was granted, he would suffer emotional harm by being alienated from his family. She did not adduce any expert evidence to support these contentions and indeed the expert evidence we did receive was to the contrary 

52.      She was unable to explain to the Court why she turned Miss Probert away from the door when she attended to visit on 10^th June 2008.  The Court was anxious to know why she had decided against all cooperation with the Children's Service, and indeed Dr Williams and Mrs Green.  She said she felt constantly let down by the Children's Service, who would tell her one thing and then another would happen.  In the end, she said, you had to draw a line.  She said it had become an attack upon her personally, and that her whole family was therefore at risk.  In essence, she felt the only way to protect her remaining children was to withdraw all cooperation.  She denied that she had told the Children's Service that she did not want any contact with C.  When it was offered, she had taken it, but the Children's Service kept telling her that C was scared and didn't want to see her.  How long, she asked, do you press for contact with a child who repeatedly says he doesn't wish to see you?

53.      As for the directions given by the Court on 12^th September, she did not in reality agree with any of them but was told by Mrs Pearmain that she had no option but to agree.  She did not have any need of help from a psychologist and had already completed a parenting course when serving her prison sentence some years ago; indeed she was instrumental in introducing such courses to women prisoners.  As for the warning given to her by the Royal Court on 22^nd December 2008, she told us that she was waiting for the final hearing for an opportunity to put her case.  

54.      The Court inquired as to whether Mrs L's actions following the birth of R in July 2008 could have been caused or influenced by post-natal depression but she assured us that this was not the case. 

Mr L

55.      Mr L described a busy family life clearly centred on the children.  A had Cubs to go to on Monday, C the Scouts on Wednesday and on Friday they both attending a Youth Club.  On Sunday, they would often attend the Salvation Army.  C was clearly an active sportsman, playing football and rugby and sailing at weekends.  At home, he would often relax by playing on the Playstation in his bedroom.  He said he had a good relationship with C, notwithstanding the occasional ups and downs which any parent would experience with a teenage child.  He was not a violent man and he did not ordinarily punish children physically.  He would certainly never harm or injure a child.  He was disgusted and disappointed by C's behaviour on the night of 2^nd April 2008 and he wanted to show that disapproval through physical chastisement.  Notwithstanding his conviction, he felt that his actions were perfectly reasonable and did not constitute an assault.  He may have hit him harder because C's hands were up protecting himself but if his hands had been down, that he would have been cuffed or topped.  He accepted that C was angry but he was not crying.  He did not consider it to be a serious incident. 

56.      He would not however go down that road again.  He needed to move on and couldn't be bitter against C for what had subsequently happened.  With C now coming back to the home on a regular basis, he had no intention of discussing the incident.  He could only remember one previous incident at which he had used physical chastisement.  This was following an incident in which C had stolen a pen from his teacher and he gave him a cuff round the head when he got home.  In his statement to the police, C had recounted an incident on one summer holiday in France when he was playing with matches and singed his eyelashes, following which he alleged he was hit on the bottom over his clothing by Mr L.  Mr L could remember the incident but he denied that he hit him. He was apparently grounded to his room.

Relations and friends

57.      The Court heard evidence from C's grandmother, Mrs G, from his honorary "Grandpa", Mr T and from a neighbour of the M's, Mrs W.  Mrs G was very supportive of her daughter and deeply concerned at C's removal from the family.  She regarded C's behaviour as totally unacceptable and that a short sharp shock was appropriate by way of punishment.  She regarded the conduct of the Children's Service as nothing short of scandalous.  Having herself had the misfortune of being brought up in Haut de la Garenne, she was sensitive as to the possibility of abuse and was quite clear that nothing abusive was going on in her daughter's household.  She visited the family almost daily and could not understand the allegations that A and C were frightened of her.  She would regularly give the children pocket money and presents and they loved going to her house and playing in her garden and the adjacent woods. 

58.      Mr T similarly confirmed that there was nothing abusive within the household.  In his view the family worked really well, and even if there had been a momentary loss of temper by Mr L, there was no reason for the family to be ripped apart as a consequence. 

59.      Mrs W was concerned at C's behaviour whilst living with the M's.  Mrs W had seen him out on many occasions past 11 o'clock at night and had had reason to contact the police regarding C's behaviour in relation to her own sons.  On that occasion Mr M came round to her house and in her opinion was drunk.  There was another incident at the school in September 2008 when C had assaulted her son and there was a second assault on 25^th September 2008.  She had told her son to keep away from C but it seemed to her that he could come and go as he wanted and do what he wanted without any reprobation for his actions.  As the mother of a teenager she was desperately worried for him.

Kinship assessment

60.      The concerns as to the suitability of the M's expressed by Mrs L and Mrs W have been addressed in the kinship assessment carried out by Mrs Sarah Michael of the Fostering and Adoption team at the Children's Services and which was completed on 23^rd April 2009.  Mr M is Ch's father and she visits the M's every weekend, staying overnight.  C has his own room.  At the family home, he shared a room with A.  Initially, C had difficulties with anger resulting from problems at school and with the police.  But the M's say that he has made more sensible choices of late and appears more settled.  They have had to make changes to their lives in order to be responsible for C.  Whilst they consider the most desirable outcome for C would be to return to his mother, they have expressed the wish to look after C in the long term should that be necessary.  In Mrs Michael's view, the M's are open, honest people who are willing to work with the services.  They found it difficult to deal directly with Mrs L, which was a constraint, but their tie with C had strengthened attachments which were already there. C clearly feels comfortable with them and the placement promotes his sense of belonging and identity.  C was able to talk freely about his family and see his sister Ch every week.  Mrs Michael regarded them as good carers.  Her report recommending that they be approved as kinship carers specifically for C was accepted by the Fostering Panel on 28^th April 2009.

Presence of C at the hearing

61.      In the Jersey and Guernsey Law Review of June 2009, Barbara Corbett, Head of Family Law at Hanson Renouf made the following comment about the involvement of the child in care proceedings and this in the context of the case of Minister for Health and Social Services v KG and others [2009] JRC 076 (in which the child concerned was 16 years of age):-

"This case is however also noteworthy for the actions of the court in asking to meet and hear from the child concerned, in person.  The Deputy Bailiff and Jurats, in a confident and intuitive way, met the child in chambers, giving him the opportunity to confirm to them his wishes and feelings as ascertained by the children's guardian.  This is possibly the first time that the Royal Court has taken such a step in public law proceedings and puts Jersey judicial practice in this context in line with some of the most enlightened child law judges and practitioners in England.  In March 2009, in a private law case, Re H, an intractable contact case also involving a teenage child, the Bailiff  specifically requested the child to attend court to hear the judgment delivered.  In such a case, where the child's conduct may be almost as  relevant as that of the parents, the effect of the involvement of the child within proceedings, and the child-focused way in which his participation was achieved, again shows that the Royal Court is prepared to consider very carefully its role in respect of children within the court process."

62.      Mrs L applied for the Court to see C as she was concerned that his true views were not being communicated to us by Mrs Green.  Miss Dutôt and Mrs Colley opposed the application. Miss Dutôt drew to our attention the following guidance given in the Judicial Studies Board Family Bench Book:-

"4.13   Requests for the judge to see the child

Sometimes you will be asked to see the child in the course of family proceedings.  The essential guidance is that this simply should not be done.  Judges are not qualified in this skill; it usurps the role of guardian or court welfare officer; you cannot offer confidentiality; and it is sometimes difficult to discern the real reason for the request.

Exceptionally, you may be convinced of the need to see the child.  It is essential that all should be clear as to the purpose of the meeting: is it to ascertain the child's wishes and views, or is it simply a case of a child wishing to meet the person making major decisions about that child's life?  You may be more readily convinced by the latter reason.  Moreover, you must be satisfied that it is the child who wants this meeting.

If you decide to see the child, you should only do so after consulting the parties' legal representatives and always with a member of the court staff present.  You should emphasise to the child that the final decision is not the child's, but yours.  Also, you should point out to the child that the child's parents and the guardian, if relevant, will be informed as to what you have been saying to each other, since otherwise it would be unfair to them.

The parents should subsequently be informed as to the contents of the conversation so that they should be able to make submissions on those matters - see E v E (1985) The Times, 2 December.  It is difficult to envisage any possible exception, unless it involved any danger to the child as a result of what they have divulged.  In such a case, there should be discussion with the legal representatives as to what steps to take to afford the child adequate protection.  This should be done without divulging what the child has said, since a legal representative is professionally bound, unless given specific dispensation by his client, to inform him what the judge has told them.

4.14    Attendance of the child at court

This is potentially a difficult area and one in which it is increasingly likely, (sic) requests will be made.  As a general rule, attendance in court during the hearing is discouraged as not being in the interests of the child.  However, a request by an older child (perhaps a teenager) may have to be looked at more closely.  You might find it helpful to consider the following:

1.        Why does the child want to be there?

2.        What is the likely effect on the child of being present or of being refused permission to be present?

3.        If the child is to be present, for how much of the proceedings should that be?

4.        Generally it would be very unwise for any child to be present whilst any family member was giving evidence.

The test is, of course, the welfare of the child.  Before reaching any decision, it would be necessary to take into account the views of all parties in the case."

63.      The purpose of our meeting C, who is still only thirteen, would be to ascertain for ourselves whether his true wishes and feelings were being presented to us by Mrs Green.  There was nothing to indicate that this was not the case; indeed his wish to stay with the M's had been consistently expressed to all the professionals involved. It seemed to us that in doing so we would be usurping the role of the person (Mrs Green) whom we had appointed under Article 75 to assist and befriend C, a person who, unlike us, was qualified in this skill.  C himself had not asked to see us and Mrs Green and the Minister opposed us doing so.  He would have to be told that anything he said to us would be passed to his mother and on the facts of this particular case, we saw the possibility of such an exercise being emotionally harmful to him.

64.      We could understand the general desirability of involving the child, particularly as he or she gets older, so that the child can better understand the process and the decisions being made, where that can be done without usurping or indeed undermining the work of those the Court has appointed and without exposing the child to emotional harm. On the facts of this case, however, we declined the application.

Ch as witness

65.      Mrs L sought to call Ch as a witness.  Ch had signed a statement dated 14^th June 2009 dealing with her memory of the events of 3^rd April 2008 both at the school and at Police headquarters. She did not witness the incident itself. It is clear that in making the application Mrs L did not appreciate that calling her daughter as a witness would expose her to cross-examination. Ch wanted to give evidence and Mrs L wanted her to have her say.

66.      Miss Dutôt and Mrs Colley submitted that the Court had a general discretion as to whether Ch, who was still a child, could give evidence in care proceedings.  There was nothing in the Children Law to that effect.  Article 70 permitted the Court to order the child concerned in care proceedings to attend such stage or stages of the proceedings as it may specify.  Ch is not of course the child concerned in these proceedings.  Article 71 provides that where a child who is called as a witness in any civil proceedings and does not, in the opinion of the Court, understand the nature of the oath, it may still hear his or her evidence if it considers that he or she understands that it is his or her duty to speak the truth and he or she has sufficient understanding to justify the evidence being heard.  We had not been given an opportunity to assess Ch in this respect but in view of her age (17), it would be surprising if she did not understand the nature of an oath. 

67.      Miss Dutôt referred us to the case of LM (by her guardian) v Medway Council, RM & YM (2007) EWCA Civ 9.  The case involved a child and mother who had made allegations of sexual and physical abuse against the father of the child.  The mother had subsequently withdrawn her allegations and said she had instructed the child to make the child's allegations.  It was not known what the child would say and both the mother and father had applied for the child to be called as a witness.  In his judgment Smith LJ said this at paragraphs 44 and 45:-

"The correct starting point in my view (in accordance with past Court of Appeal guidance) is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken.  There will be some cases in which it will be right to make an order.  In my view, they will be rare.

In considering whether to make an order, the judge will have to balance the need for the evidence in the circumstances of the case against what he assesses to be the potential for harm to the child.  In assessing the need for oral evidence in the context of care proceedings, the judge should, in my view, take account of the importance of the evidence to the process of his decision about the child's future.  It may be that the child's future cannot be satisfactorily determined without that evidence.  In assessing the risk of harm or oppression, the judge should take heed of current research into the effect on children of giving evidence and should not rely only upon his impression of the child, although that will of course be relevant."

It is clear that the court was dealing with an application for an order compelling the child who was the subject of the proceedings, to attend as a witness. We accept that this Court, in dealing with an application to compel any child in this jurisdiction to attend as a witness in any proceedings, let alone care proceedings, must have a discretion as to whether to grant the order or not. It is a serious matter to compel a child, especially a young child, to give evidence and be exposed to cross examination.

68.      In this case we had a child on the cusp of legal adulthood, who was willing to attend voluntarily as a witness. There was no application to compel her to do so. We did not need to explore the matter further with counsel as we determined that the evidence of Ch was not relevant to the issues we had to determine and it was therefore excluded on that basis. If we were in error in so determining, then we would still have excluded her evidence on the basis that, as a matter of policy, it is highly undesirable for a child to be brought in as a witness in care proceedings, unless there is a real justification for it and we saw no justification here.

Statutory threshold criteria

69.      Before the Court can make a care order the statutory threshold criteria under Article 24(2) of the Children Law must be met, namely the Court must be satisfied

(i)        That the child concerned is suffering, or is likely to suffer, significant harm;

(ii)       That the harm, or likelihood of harm, is attributable to -

(a)       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

(b)       The child being beyond parental control.

Under Article 30(1) of the Children Law, a lower threshold applies for the making of an interim care order so that on 12^th September 2008 the Court had to be satisfied only that there were reasonable grounds for believing that the circumstances in respect of C were as mentioned in Article 24(2).

70.      Article 24(6) provides that for the purposes of that Article:-

""Harm" means ill-treatment or the impairment of health or development;

"Development" means physical, intellectual, emotional, social or behavioural development;

"Health" means physical or mental health and

"Ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical."

71.      Under Article 24(7) where the question of whether harm suffered by a child is significant in terms of  the child's health or development, this health or development shall be compared with that which could be expected of a similar child.  The word "significant" is to be given its ordinary meaning in English, i.e. important or notable.

72.      There are two branches to the first part of the statutory test, namely whether the child "is suffering" or "is likely to suffer" significant harm.  The latter branch looks to the future but the former "is suffering" relates to the circumstances not at the time that the hearing takes place but at the time that protective measures were first put in place by the Children's Services.  This is made clear by the decision of the House of Lords in the case of In re M (a minor) (1994) 2AC 424 in which the equivalent provisions under English law, namely section 31 of the Children Act 1989 were construed.  Lord Mackay said this at page 433:-

"It is also clear that Parliament expected these cases to proceed with reasonable expedition and in particular I refer to section 32 [the equivalent to our Article 25] in which the hearing by the court is not regarded only as taking place at the time when the applications are disposed of.  Indeed, I think there is much to be said for the view that the hearing that Parliament contemplated was one which extended from the time the jurisdiction of the court is first invoked until the case is disposed of and that was required to be done in the light of the general principle that any delay in determining the question is likely to prejudice the welfare of the child.  There is nothing in section 31(2) which in my opinion requires that the conditions to be satisfied are disassociated from the time of the making of the application by the local authority.  I would conclude that the natural construction of the conditions in section 31(2) is that where, at the time the application is to be disposed of, there are in place arrangements for the protection of the child by the local authority on an interim basis which protection has been continuously in place for some time, the relevant date with respect to which the court must be satisfied is the date at which the local authority initiated the procedure for protection under the Act from which these arrangements followed.  If after a local authority had initiated protective arrangements the need for these had terminated, because the child's welfare had been satisfactorily provided for otherwise, in any subsequent proceedings, it would not be possible to found jurisdiction on the situation at the time of initiation of these arrangements.  It is permissible only to look back from the date of disposal to the date of initiation of protection as a result of which local authority arrangements had been continuously in place thereafter to the date of disposal.

It has to be borne in mind that this in no way precludes the court from taking account at the date of the hearing of all relevant circumstances.  The conditions in subsection (2) are in the nature of conditions conferring jurisdiction upon the court to consider whether or not a care order or supervision order should be made.  Conditions of that kind would in my view normally have to be satisfied at the date on which the order was first applied for.  It would in my opinion be odd if the jurisdiction of the court to make an order depended upon how long the court took before it finally disposed of the case." 

73.      Thus it is only if the statutory threshold criteria is first met that the Court then has jurisdiction to consider the question of whether or not an order should be made and if so what type of order. In doing so the Court has then to apply the principle that the child's welfare is the paramount consideration (Article 2(1) of the Children Law), apply the statutory welfare checklist (Article 2(3) of the Children Law), not make an order unless it considers it doing so would be better for the child than making no order at all (Article 2(5) of the Children Law), before making a care order, consider the proposed arrangements for contact with the child and invite comment on them (Article 27(11) of the Children Law) and finally, scrutinise the care plan.

Decision

74.      It is not the role of the Court to make findings of fact in relation to all the issues that have arisen historically in this case and, in any event, we did not hear evidence from the two officers of the Children's Services (Mrs Welch and Mr Thompson) who were involved in the initial stages. We have therefore limited ourselves to those findings which are required in order to apply the statutory threshold criteria and, if met, for the purpose of deciding what, if any, orders should be made.

75.      Applying the first branch of the test - "is suffering" - it is clear to us that at the time the Children's Services first put in protective measures, namely on 19th August 2008 when the Minister's powers under Article 17(4) of the Children's law were engaged (the arrangements up to that time being voluntary certainly in so far as the Children's Services were concerned), C was suffering from significant physical harm attributable to the care given to him and not being what it would be reasonable to expect a parent to give.  Mr L had admitted to the police hitting him six or seven times over the head too hard, for which he felt remorse and, because C protected himself, over the elbows.  A criminal prosecution against Mr L was in train.

76.      This finding is sufficient to grant jurisdiction but we have also considered the second branch of the test, namely "is likely to suffer" significant harm, it being permissible to apply the two branches of the test separately (see In Re M at page 437 paragraph A). 

77.      We are not satisfied that C is likely to suffer significant physical harm in the future.  None of the experts are able to assist us on this issue because, through lack of cooperation on the part of Mr and Mrs L, they had not been able to assess the risk of future physical harm.  Mr L did however give evidence before us (as did Mrs L). Mrs Colley informed us that Mrs Green's concern about the risk of physical harm had been reinforced by that evidence because Mr L did not seem to understand or realise the significance of what he had done even today.  She was of the view that there must be a possibility that such action could happen again.

78.      As against that, the Children's Services have carried out lateral checks on the family and have no concerns as to the physical safety of the other children. Although there have been suggestions of physical chastisement over a three year period, we agree with Mrs L that in reality this case centres around this one incident and we were not dealing with three years of physical abuse.

79.      Furthermore, it was clear to us that the incident and its consequences have made an enormous impact upon Mr and Mrs L and we believe them when they say they have no intention of committing or permitting any repetition. 

80.      On the other hand we accept the evidence of Dr Williams, which was supported by Miss Probert and Mrs Green, that C was likely to suffer significant emotional harm if he were to be returned to the home now and this for the reasons put forward by Dr Williams.

81.      Thus we conclude that the statutory threshold criteria has been met and that we therefore have jurisdiction.  On the facts of this case, the real choice for the Court is between making no order and making a care order.  The decision causes us much anxiety because as with everyone else involved in this case we feel that C's proper place is back with his mother and half siblings but a number of factors have conspired to frustrate that aim:-

(i)        C had been placed with the M's, whom he knew and who had previously cared for him.  Indeed Mrs M had probably become a primary attachment figure for him. 

(ii)       C, unlike A, was reluctant to return home after the incident. He had been the victim of an assault and understandably had expressed fear of returning to his stepfather.  He was now a witness in the criminal case against his stepfather in circumstances where, in his eyes, his mother had essentially sided with the stepfather.  It needs little imagination to appreciate the implications of such a scenario for a child aged 12.  Perhaps not surprisingly, he had expressed the wish to remain with the M's.

(iii)      The change in the bail conditions on the 23^rd April 2008 precluded C, whilst Mr L remained in the house, from returning home until September 18^th 2008, some 5 months later.

(iv)      By the 18^th September Mrs L's position had become entrenched and cooperation with the authorities had all but ceased.  Battle lines were being drawn and as Dr Williams put it, it became an issue between her and the system and not about C's needs

82.      All of these factors combined to leave C living with the M's for the fourteen months leading to the hearing of the matter before us on 25^th and 26^th June and 21^st July 2009.  This is a very long time in the life of a child of his age.  Not surprisingly C has become settled with the M's and does not wish to return to his mother although he wished to maintain contact with her and his half siblings.

83.      In many ways we had some sympathy for Mrs L.  When the incident took place, she was managing a household of five children and was 7½ months pregnant.  Suddenly two of her children were taken from her and her husband was arrested and placed in custody; a traumatic set of events by any standards  However the optimum time to secure C's return was within the period immediately following the incident when Mr L was required under the bail conditions to live away from the family home.  By cooperating with the Children's Services, as Mr and Mrs L initially said they would do, that could have been achieved. It did not happen.  By 23^rd April 2008 Mr and Mrs L had between them decided that the priority for them was for Mr L to return home.  From Mrs L's point of view, we can understand her need to have Mr L back assisting her with her young family in the last months of the pregnancy but it was a decision that shut C firmly out of the family home for some 5 months.

84.      In our view, Mrs L was seriously misguided in her decision not to cooperate with the authorities and it has certainly not assisted C.  Furthermore she has defied the authority of the Court by ignoring its directions. The issue of her contempt was not pursued before us but we reserve our position on it. It became clear in discussion with her that having lost two children precipitously in this way she feared for her remaining children and concluded that the best way to protect them was to erect a steel barrier between her and anyone she perceived as being connected with the authorities.  She accepted that any Children's Service faced with an allegation of this kind had to take immediate action to safeguard the child concerned whilst the situation was assessed.  It would have been a dereliction of its duty not to have done so.  We reject her assertion in evidence that it was the "avowed intent" of the professionals involved to take her children from her - in effect that there was a conspiracy within the agencies to break up her family. 

85.      The sad fact is that from time to time children are subjected to abuse by those who care for them and against whom they have no protection.  The Children's Service can provide that protection but discharging its statutory duties in that regard may well bring it into conflict with the parents.  The true interests of the children and the family, however, lie in the cooperation of the parents. 

86.      There was no real explanation given by Mrs L for her decision not to cooperate with Dr Williams and with Mrs Green, and we found that particularly reprehensible if not incomprehensible.

87.      Mrs L asks us to make no order.  She says she will deal with C's return in a natural way.  It may be, she says, that he will never come back from the M's.  She would be left with sole parental care and the current funding arrangements for the M's would cease.  In our view, that would be to cast C adrift and would not be in his best interests.  He and those currently looking after him need a legal and financial framework to support the current arrangements and that can best be provided by a care order.

88.      The current care plan makes provision for a rehabilitation programme for C which is dependent upon the cooperation of Mr and Mrs L.  The plan was written prior to the contact that has now resumed between C and the family.  If he is ever to return home on a permanent basis, it will be as a result of Mrs L maintaining and building upon that contact and cooperating with the Children's Service and agreeing a rehabilitation programme.  We can only urge her to do so.  C's rightful place is with his mother.  She is the one person able to bring that about and there is no conspiracy to prevent her doing so.

89.      We therefore grant the Minister's application under Article 24(1) of the Children Law for a care order placing C in the care of the Minister and approve the care plan.

Application for a sibling contact order between C and his half siblings

90.      This application first came before the Court on 1st June 2009 and was adjourned to be dealt with at the same time as the Minister's application.  

91.      The initial application for contact was presented on the basis that C had a right to see his half siblings which the Court was under a duty to enforce rigorously.  In so doing, we were told that it was only C's interests that we could take into account.  It was proposed that the half siblings should be taken to a neutral location supplied by the Children's Service and handed over to the Children's Service in order to meet C.  It was submitted that if Mrs L did not cooperate with such an order then the Court should use all of its powers to ensure compliance, including ultimately the power to imprison for contempt.

92.      We were concerned about the implications of three young children aged 1, 2 and 4 being handed over to complete strangers for this purpose and as to whether we should take into account their interests and welfare.  We declined therefore to make the order sought and adjourned the application, but in the meantime gave judicial encouragement to Mrs L to re-establish contact between C and his family.

93.      After further research conducted by Mrs Colley with the assistance of English counsel, Catherine Kelsey of 1 King's Bench Walk, it transpires that upon analysis of the relevant provisions of the Children Law, it is in fact the interests of the half siblings that we have to take into account in considering such an order and not those of C - in other words, the complete opposite of the position as originally urged upon us and this for the following reasons:-

(i)        The application was originally made under Article 27 of the Children Law.  Article 27(1) to (3) provides:-

"(1)     Subject to the provisions of this Article, the Committee shall allow a child in its care reasonable contact with -

(a)       his parents:

(b)       where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and

(c)       where, immediately before the care order was made, a person had care of the child by virtue of an order made by a court of competent jurisdiction with respect to children, that person.

(2)       On an application made by the Committee or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and the named person.

(3)       On an application made by -

(a)       any person mentioned in paragraph (1)(a) to (c); or

(b)       any person who has obtained the leave of the court to make the application,

The court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person."

(ii)       The purpose of Article 27 is to deal with firstly ensuring that the Minister allows a child in care to have reasonable contact with certain people and secondly applications by people to have contact with a child in care, some of whom can make that application as a right and some of whom will need leave to bring such an application.  In other words orders under Article 27 attach to the Minister.  However there is no question in the case before us of the Minister not allowing C to have contact with his half siblings and any order against the Minister would therefore be otiose.  This application is for C to have contact with his half siblings by way of an order against Mrs L as opposed to the Minister and the provisions of Article 27 therefore have no relevance.

(iii)      Where a child in care wishes to be allowed contact with another child, who is not in care, the child in care may apply for a contact order under Article 10 of the Children Law, which provides that subject to Article 11 and the following provisions of the Article, in any family proceedings in which a question arises in respect of the welfare of any child, the Court may make the following orders with respect to a child, namely inter alia, a contact order.  Under Article 10(2) the Court may make an Article 10 order on the application of any person who is entitled to apply for an Article 10 order with respect to the child or has obtained the leave of the Court to make the application.  A child in care is not a person entitled to apply for an Article 10 order and therefore C required the leave of the Court to make the application which was granted.

(iv)      The test to be applied to an application by a child in care for contact with a child who is not in care is the welfare of the child who is the subject of the application (not the child applicant), i.e. the child who is not in care.

(v)       A contact order is defined under Article 1 of the Children Law as meaning "an order requiring the person with whom that child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other."  Thus a contact order under Article 10 would require Mrs L, with whom the half siblings live, to allow those half siblings to have contact with C (the named person).

(vi)      Such an order does not fall foul of the restrictions imposed by Article 11 of the Children Law, which provides that the Court shall not make an Article 10 order in respect to a child who is in the care of the Minister, and that is because the order is in respect of the half siblings who are not in the care of the Minister.

94.      This interpretation of the relevant provisions of the Children Law is consistent with the decision of the English Family division in the case of Re F (Contact - child in care) (1995) 1 FLR 510, in which the equivalent (although not absolutely identical) English provisions were considered. In that case a child aged 16 who was in the care of the local authority, through her guardian ad litem, sought orders under section 34(2) of the Children's Act 1989 (the equivalent of Article 27 of the Children Law) for the child to have supervised contact with her four younger siblings. It was held that the compulsory effect of an order under section 34 attached only to the local authority which, as in Jersey, owed a duty to endeavour to promote contact between the child and her siblings, and since the local authority's stance in relation to contact had been positive any order against the local authority was otiose.  It was further held that the remedy of the child in care was to apply under section 8 (the equivalent of our Article 10) for an order for contact with the other children.  An application under Section 10 did not fall foul of section 9(1) (the equivalent of our Article 11) because any such order would be made "in respect" not of the child in care, but of the other children. Since a contact order under section 8 was defined as "an order requiring the person with whom the child lives ..... to allow the child to visit ....the named person", it followed that in any such order the applicant child in care would be "the named person" and each of the other children would be "the child" and that accordingly it would be the interests of the other children, not of the child in care, which would be paramount therein.

95.      Thus, having granted leave to C to bring an application for contact with his half siblings under Article 10 of the Children Law, the Court needs evidence in relation to the wishes and feelings and best interests of the half siblings before any decision as to whether a contact order should be made.

96.      Article 10(3)(a) of the Children Law does provide that one of the persons entitled to apply for a contact order is the "guardian" of the child.  Some care has to be exercised with regard to the use of the expression "guardian" in proceedings under the Children Law.  The Children Law defines a "guardian" as a "guardian appointed under Article 7."  Under Article 7 the Court may appoint an individual to be a child's guardian if the child has no parent with parental responsibility for him and the person so appointed assumes parental responsibility for the child concerned (Article 7(6)).  Although generally described as such in the Minister's application for a care order and in previous Acts of Court, Mrs Green is not C's guardian for the purposes of the Children Law and she does not have parental responsibility for him.  She was appointed under Article 75(1)(b) as a person to assist and befriend C, being a person independent from the Minister.

97.      Mrs Colley submitted that the Court should:-

(i)        order an assessment under Article 9 of the Children Law of the wishes and feelings of the half siblings;

(ii)       order a risk assessment to be carried out under Article 9 of the Children Law  in relation to the L household to ensure C's safety and as a necessary corollary the safety of his half siblings and

(iii)      at the same time make a sibling contact order under Article 10 on a structured basis.

98.      Miss Dutôt, for the Minister, broadly supported the application for a sibling contact order.  She pointed out that to the extent possible, given Mrs L's lack of engagement, the Children's Services had assessed the risk to C and the siblings but it was true that there had been no independent expert report assessing the risk.  She queried whether the Court had jurisdiction to order a risk assessment in relation to C when the care proceedings were about to come to an end and whether it had the jurisdiction to order an assessment that focuses on the risk posed to other children in the household who were not the subject of these proceedings.  In any event, she submitted that such a risk assessment cannot be undertaken effectively without the cooperation of Mr and Mrs L to engage in the process. 

99.      Miss Dutôt agreed that the contact should be ordered on a structured basis, initially without Mr L being present but subject to review at the 'Looked After Child Review' Meetings.

100.   Mrs L said it was pointless ordering an assessment of the half siblings' wishes and feelings.  She was their mother and could tell us that there was no question that they all wished to have contact with C.  As far as she was concerned, contact should continue in a natural way as it has since the beginning of June.  There was no need for any further orders or for the involvement of the Children's Services.

101.   We agree with Mrs L that there is no need for the wishes and feelings of the half siblings to be independently assessed.  It is clear and we accept that they all wish to have contact with C.  Orders should only be made where it is necessary to do so.  In our view there is no need for the Court to order Mrs L to allow contact between C and his half siblings, because she does not seek to prevent it.  It is clear that C is welcome in the family home whenever he wishes to attend.

102.   Mrs Green's concern is that the initiative is left to C and that without an order contact may lapse.  But C is in the care of the Minister, who has parental responsibility which he shares with Mrs L.  Under Article 2(1) of Schedule 2 to the Children's Law, the Minister must endeavour to promote contact between C and his mother and half siblings.  The Minister has placed C with Mr and Mrs M and in our view it is for the Minister, through the M's, to ensure as far as reasonably practicable that C attends at the family home on a regular structured basis.  That structure should in our view be there to ensure a minimum level of weekly contact and not to impose any upper limit.  If at any stage in the future the Minister is of the opinion that Mrs L is preventing or inhibiting access by C to the family, an application for an order under Article 10 against Mrs L could then be made.

103.    We doubt incidentally that it would be appropriate to make such an order without convening the fathers of the half siblings and if we had been minded to grant such an order we would have required them to be convened.

104.   That leaves the issue of C's physical safety.  We take very seriously the concerns of the Minister and the professionals in this respect; a concern which arises from their inability to have C's safety independently assessed within the home.  We agree with Mrs Green that this is an unsatisfactory state of affairs and of course it would be preferable for an independent assessment to be carried out, but we share the concern of the Minister that for that to be done effectively Mr and Mrs L need to engage with the process.  The fact of the matter is that the L household is one that already contains five children, regarding the safety of whom the Minister has no concerns, and it is the case that the Court was not persuaded that there is a  likelihood of C's suffering significant physical harm if he returned. C is now 13 and it is clear he talks freely with the M's about his family.  He and the M's see his elder sister Ch every weekend. It will be possible to monitor the situation going forward but in the meantime we express the view that there should be no restriction on Mr L being present when contact takes place and there should be no restriction on staying access. 

105.   We decline therefore to make a sibling contact order.

Authorities

Children (Jersey) Law 2002.

Minister for Health and Social Services v KG and others [2009] JRC 076.

Judicial Studies Board Family Bench Book.

LM (by her guardian) v Medway Council, RM & YM (2007) EWCA Civ 9.

In re M (a minor) (1994) 2 AC 424.

Re F (Contact - child in care) (1995) 1 FLR 510.