Jersey Unreported Judgments

[2009]JRC206A

royal court

(Samedi Division)

29^th October 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats de Veulle and Fisher.

 

IN THE MATTER OF PE AND PH

AND IN THE MATTER OF AN APPLICATION FOR INTERIM CARE ORDERS

Advocate E. L. Hollywood for the Minister.

Advocate M. J. Haines for A (mother of P and K).

Advocate C. M. Fogarty for Mrs Ph mother of J and R and caring for P and K.

Advocate V. Myerson for P and K represented by guardian Tracey Goode.

Advocate R. E. Colley for R and J represented by guardian Leonora Green.

Advocate D.A. Corbel for Mr D (father of P and K)

judgment

the commissioner:

1.        The Minister applies for interim care orders in respect of four children, namely J, R, P and K.  The application is made for all four children because between May and August of this year they lived as a family with J and R's mother, Mrs Ph, and P and K's natural father, Mr D. 

2.        P and K's mother A has effectively abandoned them to live with her new child and husband in Madeira.  Mr D, has not applied for parental responsibility and therefore there is no one in the Island with parental responsibility for them. 

3.        In August all four children were removed from their home by voluntary agreement.  The catalyst for their removal was the discovery of bruising on K, seen at an unannounced visit made by the Children's Service on the 21^st August, and in particular bruising to her face which Dr Martin, a dental surgeon and practising forensic odontologist, concluded beyond reasonable doubt to be a human bite caused by adult dentition, adult meaning someone over 12.  When asked about this bruise K apparently said to the social workers that her mother had done it.  Mrs Ph denies this.

4.        However, the application does not rest on that one incident alone, concerning as it is.  There is a history of violence, or allegations of violence going back to 2001, then involving an earlier child of Mrs Ph, A.  There are references to allegations of violence in 2001, 2003, 2004, 2005, 2006, 2007 and 2009.  Mrs Ph had been in what was, clearly, a violent relationship with her then partner, Mr Ph (the natural father of J and R), and it is clear that R was, from time to time, caught in the cross-fire of that violent relationship.  R and J were the subject of a supervision order in 2006.  The relationship between Mrs Ph and Mr Ph ended in December 2006. 

5.        R and J were placed, initially in August, with their paternal grandparents but they have been unable to cope with clearly challenging grandchildren and they are currently placed together in foster care.  P and K had been placed with their maternal aunt and husband which placement appears to be going well.  Although too early to assess, this may be the ultimate solution for their care.  There is no question of them returning to live with Mrs P and their natural father D.  Mrs Ph does not seek to have them back.

6.        The Court first sat on the 25^th September, 2009, and made a number of orders by consent.  Quoting from the Act of Court and the numbering used in that Act:-

"3. ordered that contact between R and J and Mrs Ph and Mr D be supervised and take place at the discretion of the Minister. 

...

5. ordered that Mr Ph be made a party to the proceedings and named as the Second Respondent.

6. ordered that Mr D be made a party to the proceedings and named as the Third Respondent.

7. ordered that a children's guardian be appointed in respect of the Pe and Ph children.

8. ordered that local counsel, be appointed to act as legal representative for the said children

...

10. directed the children shall be made parties to the proceedings.

11. directed that parties identify a suitable expert with a view to preparing psychiatric assessments of Mr and Mrs Ph. 

12. directed that the parties identify a suitable expert with a view to preparing a psychological assessment of Mrs Ph and Mr D. 

...

15. ordered that the report(s) should be filed within ten weeks of the joint letter of instruction being received, with liberty to apply for an extension to the filing of said report(s);

16. ordered that a further hearing be listed for  28^th October, 2009."

Mrs Colley represents R and J and Mrs Myerson P and K.  Mrs Green of the NSPCC has been appointed as the guardian, although not yet clear whether she will be acting in that capacity for all four children.

7.        The application for the interim orders is opposed by Mrs Ph in respect of her children, R and J.  The application for P and K is not opposed; both their representatives resting on the wisdom of the Court.  Mrs Green attended the hearing and gave us helpful advice, but she has not yet met with Mrs Ph or seen the children.  We heard evidence from her and also from Miss Tinari and Miss Jenner, both social workers with Children's Services, from Dr Martin, and from Mrs Ph.  We declined to hear further evidence presented by Mrs Ph following the guidance given in the case of Hampshire County Council v S [1993] 1 FLR 559 that we should restrict evidence to the issues that are essential for an interim hearing and ensure it does not become a dress rehearsal for a full hearing.

8.        We now turn to the principles to be applied.  We should only make an interim care order if we are satisfied on the balance of probabilities that there are reasonable grounds for believing that the circumstances of each child, are as mentioned in Article 24(2) of the Children (Jersey) Law 2002, which is in the following terms:-

"(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to -

(i) the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child, or

(ii) the child's being beyond parental control."

For the purpose 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."

9.        The Hampshire case to which I have already referred gives useful guidance on our approach. Justices should bear in mind that they are not requited to make a final conclusion.  Nevertheless a substantial issue should be tried as soon as possible.  Where the interim order may substantially change the child's position justices should consider permitting limited oral evidence to be led and challenged.  In cross-examination evidence should be restricted to issues essential to the interim stage.  There should be, if possible, written advice from the children's guardian and finally, although it would not normally be open to them to make findings on disputed facts, not having heard the full evidence, it might assist if the justices summarise briefly the essential factual issues between the parties.

10.      The general guiding principle is that interim orders are to be used to safeguard the welfare of the child until the Court is in a position to decide whether to make a care order.  And interim care order is an impartial step to preserve the status quo pending the final hearing and does not give the Minister a tactical advantage (see the case of Re G Minors (Interim Care Orders) [1993] 2 FLR 839).  An interim care order is a neutral and effective way of preserving the status quo designed to give the court the ability to maintain strict controls over any steps to be taken with respect to the child.  The court is not required to make a final conclusion at an interim hearing, the purpose of which is normally to establish a holding position pending a final hearing.  A court should make an interim care order only if an interim supervision order appears unlikely to be sufficient to obviate and meet the risk of harm to the child.  In addition the paramountcy principle, welfare checklist and principle of non-intervention apply to the decision regarding what, if any, order should be made.

11.      Article 24 has two elements, "is suffering" and "is likely to suffer".  Insofar as the former is concerned the relevant time is that when the Children's Service has first initiated arrangements to protect the child concerned, not the time or the date of the hearing (see In re M (a minor) (1994) 2 AC 424). 

12.      The position insofar as P and K is concerned is clear.  There is evidence that K may have suffered physical abuse and it was appropriate, in our view, for both her and her brother to be removed from that environment.  Whilst they have found a voluntary foster placement with a maternal aunt, they have no one in the Island with parental authority.  The likelihood of harm in the future for two such young people without anyone in a position of legal parent is in our view obvious.  A supervision order is not adequate and we therefore grant the Minister's application for an interim care order in so far as P and K are concerned.

13.      The position for R and J is more difficult.  Mrs Ph is desperate to have her two children returned to her.  We understand the depth of her feelings.  Miss Fogarty drew to our attention the following passage from a judgment of Hedley J in the case A County Council v AL and ML [2007] FLR 2050, as follows:-

"What about the Court's approach, in the light of all that, to the issue of significant harm?  In order to understand this concept and the range of harm that is intended to encompass, it is right to begin with issues of policy.  Basically it is the tradition of the United Kingdom, recognised in law, that children are best brought up within natural families.  Lord Templeman in Re KD ... said this:-

"The best person to bring up a child is the natural parent.  It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provide the child's moral and physical health are not in danger.  Public authorities cannot improve on nature."

There are those who may regard the last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point.  It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences from it.  It means that some children will experience a disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability.  These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting.  In any event, it simply cannot be done."

14.      We take those observations into account and have considered Miss Fogarty's submissions on the strength of the evidence that has been placed before us.  But notwithstanding those observations and those submissions we are not dealing here with final orders.  These are interim orders that are being sought.  The application concerns the children and it is the case that their legal representative, Mrs Colley, supports the application as being in their interests, as does indeed their guardian Mrs Green, even though we accept that she has not as yet had chance to meet them or the mother.  Not least we have taken into account the professional opinion of Miss Tinari and Miss Jenner, who seek an interim order in their interests.  The bruising and bite mark on K, with whom they shared a home, the history of concerns as to physical and emotional abuse and the advice that we have received leave us with no option other that to agree that there are reasonable grounds for believing that the circumstances are as mentioned in Article 24(2). 

15.      The Children's Service must carry out their assessments.  Mrs Green must carry out her work as the children's guardian and the reports must be obtained from the psychiatrist and psychologist.  We must emphasise that we have come to no final conclusions, nor have we made any findings as to disputed fact, but we think it right that we establish the current arrangements as the holding position, pending completion of the work we have referred to, and to a final hearing.  The Minister needs to have parental responsibility and his powers under Article 26 for that holding position to be maintained; a supervision order would not suffice.

16.      However, we are very concerned that delay could irreparably damage the existing relationship between Mrs Ph and her children.  Mrs Green advised us that in her experience a delay of 6 months significantly reduces the potential for children to return home.  It now seems likely that by the time all of these reports are completed it will be March 2010 before a final hearing will take place.  This is too long.  Miss Fogarty submitted that we should make it a condition of an interim care order that the children are returned to the mother.  In our view we have no power to impose such a condition and in any event in view of our interim conclusions it would be wrong to do so.  We do not, however, approve that part of the care plan that deals with contact and reunification.  We invite the Minister to revisit that plan so as to ensure, insofar as it is proper to do so, that through contact the relationship between Mrs Ph and the children is maintained.  In our view, with her cooperation, it should be the aim of the Minister to increase contact, currently a mere 3 hours a week, substantially and progressively.  We are not prepared to wait until March 2010 and will therefore be ordering a further hearing in late November, early December, so that we can inter alia review the contact arrangements.

17.      A further concern relates to Mrs Ph's apparent denial of the concerns of the Children's Service, of the relevance of the past history and her apparent reluctance to fully engage with the services.  She has said in evidence that those who have reported incidents are either jealous or lying insofar as she is concerned.  Hostility to the social workers is perhaps understandable when they are perceived as a threat to ones own children, but it is essential that Mrs Ph shows a change in her attitude and establishes a good working relationship with Children's Services.  The sooner she can do this, the more likely it is that her children will be returned to her.  It must be everyone's aim to return her children to her, but they cannot be returned to an environment where they are at risk of significant harm.

18.      We therefore grant the Minister's application for an interim care order in respect of J and R.

Authorities

Hampshire County Council v S [1993] 1 FLR 559.

Children (Jersey) Law 2002.

Re G Minors (Interim Care Orders) [1993] 2 FLR 839.

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

A County Council v AL and ML [2007] FLR 2050.