[2011]JRC031
royal court
(Samedi Division)
3rd February 2011
Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton and Clapham. |
IN THE MATTER OF Q
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate V. Myerson for the Minister.
Advocate D. Gilbert for the Child.
Advocate T. V. R. Hanson for the Guardian.
Advocate C. Hall for the Mother.
judgment
the commissioner:
1. On 3rd December the Court granted the Minister a care order in relation to Q ("the child") in a short judgment given orally in the child's presence. The Court indicated that it would set out its reasons in a fuller written judgment which we now do.
Threshold criteria
2. On 5th October, 2010, a differently constituted court found that the threshold criteria in Article 22(1) of the Children (Jersey) Law 2002 ("the Law") was met and adjourned to the hearing before this Court the issue of what, if any, order should be made in the child's best interests, with the interim care order remaining in place in the meantime. The judgment of the Court is in the following terms:-
"Now, we have had much material placed before us in anticipation of this hearing. That includes a number of statements from Miss Laura Stark of the Children's Service, three reports from the guardian, psychological reports from Dr Ruth Emsley and Dr Bryn Williams, an educational report from Katherine Robinson and also a report from the Chief Probation Officer. We have also been presented with a document headed "threshold document"' which has been filed on behalf of the Minister and sets out in some detail the facts and matters relied upon by the Minister to show that the threshold criteria are satisfied. So far as the guardian is concerned she agrees that the criteria are met for the reasons set out in the document and has together with the Minister's advocate, signed it. The mother does not oppose the Court finding that the threshold criteria are met and accepts indeed that they are. However, she has not actually signed the document because she considers there are certain factual matters set out in there with which she does not agree: but she nevertheless does agree that the threshold criteria are met, even allowing for those matters. Q, who is separately represented by Advocate Gilbert because Q does not agree with the views of the guardian on matters generally, also does not contest that the threshold criteria are met, although, for reasons explained by Advocate Gilbert, Q has not actually signed the document. It follows therefore that all the parties to this case either agree that the threshold criteria are met or at any rate do not contest that they are met.
Having considered all the material put before us, we agree that the threshold criteria are met. We are satisfied that at the material date when the interim care order was made, Q was suffering significant harm, as set out in the document. We are also satisfied that Q would be likely to suffer significant harm if Q were returned to the care of the mother. We are also satisfied that the harm and likelihood of harm are due to both of the reasons set out in the Article, namely the care given not being what it would be reasonable to expect and that Q is beyond parental control. So for those reasons, we find the threshold criteria are met."
3. The reason for the adjournment was the need for further work to be undertaken to the care plan, following an unauthorised deviation from that plan on 18th September, 2010, when the shift leader at F made the decision to permit the child to stay out for tea rather than returning to F prior to Q's collection from there by the mother for overnight contact. The child went missing for a period of a few hours during which time Q engaged in sexual intercourse with a 17 year old male.
4. Whilst we do not doubt the need to adjourn the hearing for further work to be done on the care plan, we think it was unhelpful for the matter to be adjourned to a differently constituted court. We note the dicta of Baroness Hale in Re B (Care Proceedings:Standard of Proof) (2008) UKHL 35 about the need for continuity of judicial involvement. Although no evidence was heard before the Court on 5th October, 2010, the matter should have been adjourned to a similarly constituted court, in so far as it was reasonably practical to do so.
Background
5. The child was raised until 2½ by the mother and the biological father, A. Q has one older and one younger sibling and two older half siblings from the mother's earlier marriage. A is a convicted sex offender, one of whose victims was the child's elder sibling. Following A's departure, the mother lived with C from 2000-2008. He had a serious drinking problem which led to domestic violence. The mother is now married to D and they live in the family home with the child's two siblings and one of the older half siblings.
6. There is a history of contact between the Children's Service and the mother, but in 2006 she could no longer cope with Q who was placed into voluntary care and has been in and out of care on a voluntary basis ever since. Between January 2009 and February 2009, Q was placed at E and in February 2009 at F, again on a voluntary basis. Throughout the period March to December 2009 the child spent periods of time at G on remand for various offences. Q was also remanded to G in January 2010 and released a few days later.
7. In his report of 28th July, 2010, Dr Bryn Williams, a consultant clinical psychologist, had the opportunity of reviewing the police records concerning the child's involvement with the police. Dr Helen Mills, head of the Criminal Justice Unit, described the child to him as a prolific offender who had had over 225 contacts with the States of Jersey Police and who had been reported missing on 118 occasions between May 2008 and January 2010, both from the mother's home and from E and F. Q had been convicted on four occasions between May 2009 and January 2010, involving 30 offences. Q had also been taken into custody on 15 other occasions between November 2008 and February 2010 for a variety of offences. As well as being a perpetrator, the child had been reported as a victim of common assault on two occasions, a victim of harbouring on one occasion and also being a witness to five other offences, four of which involved violence.
8. An interim care order was granted on 1st December 2009 on the basis that the child was beyond parental control. In the Court's judgment, the Bailiff emphasised that:-
"...there is a need for structure and clarity in the arrangements for looking after Q. The present arrangements lead to confusion with Q being in the voluntary care of the Minister but the Minister having no legal powers and with uncertainty as to whether the care will continue or whether Q will go back to the mother. What is clear is that there is need for security for Q. There has to be certainty as to who is in charge, who can take responsibility for trying to put some structure into Q's life and set boundaries so that Q knows where Q is."
9. During the child's placement at F, it was necessary for the Children's Service to invoke the provisions of the 72 hour welfare placement at G (pursuant to Article 2 of the Children (Secure Accommodation)(Jersey) Order 2005), when Q's behaviour placed Q's safety and welfare at risk.
10. In January 2010 a Secure Accommodation Order was granted to safeguard the child's welfare and this was subsequently renewed in April 2010 and July 2010. A Secure Accommodation Order is used permissively and the child spent the majority of time during 2010 living at F. It is clear from the statement of M, the acting manager at F, that notwithstanding these events there was a significant and positive change in the child's behaviour and attitude following the introduction of structured individualised care plans in 2010, with the child developing good working relationships with the majority of the staff team and improving communication. Q's attendance at school also improved. However, in the latter part of October and in November 2010, there was a marked deterioration in the child's conduct with almost daily absconding and truanting to the extent that a further Secure Accommodation Order was granted in November 2010 for a period of two months, with the result that the child was at G at the time of the hearing before us.
Child's attendance at the hearing
11. At the outset of the hearing, Miss Gilbert, for the child, applied for Q to be present throughout the hearing. She submitted that the Court had to undertake a balancing exercise between the harm to the child attending such a hearing and Q's interests in being present. At a hearing before a differently constituted Court on 15th September, 2010, the child had been found competent to instruct an advocate for reasons to be set out in a judgment not yet delivered and it was Q's express wish to be present. Furthermore, Q had been present at the applications for Secure Accommodation Orders. Q's application was supported by Miss Hall, on behalf of the mother but resisted by the Minister and the guardian.
12. Notwithstanding the child's status as a party with separate representation Q had no statutory right to attend the hearing. Rule 17(2) of the Children Rules 2005 is in the following terms:-
"17(2) Proceedings or any part of them shall take place in the absence of any party, including the child, if -
(a) the Court considers it in the interests of the child, having regard to the matters to be discussed or the evidence likely to be given; and
(b) the party is represented by an advocate or a solicitor or by a person appointed under Article 75;
and, when considering the interests of the child under sub-paragraph (a), the Court shall give the person representing the child and, if he or she is of sufficient understanding, the child an opportunity to make representations."
13. Miss Myerson relied upon the case of Re C (a Minor)(Care: Child's Wishes) [1993] 1 FLR 832. In that case the child, C, was present in court throughout proceedings, save for brief intervals when evidence was being given which the guardian ad litem thought it better for C not to hear. C had been allowed to be present because C had expressly requested so and the guardian held the view that C would benefit from the experience. However, the Court of Appeal held:-
"C is accepted to be a child who is young for C's years, and for most of a hearing devoted largely to analysis of reports, notes of evidence and discussions of points of law, C seemed preoccupied.
I think it would be a pity if the presence of children as young as this at the hearing of High Court appeals from magistrates in family proceedings were to be allowed to develop unquestioningly into a settled practice. Most of the children concerned in care proceedings have only become involved in the first place because of some past or anticipated experience which threatens the stability and lightness of heart which could be called the natural birthright of every child. I would have thought myself that to sit for hours, or it may even be days, listening to lawyers debating one's future is not an experience that should in normal circumstances be wished upon any child as young as this."
14. Miss Myerson submitted that further guidance could be sought from the case of Re W (Secure Accommodation Order: Attendance at Court) [1994] 2 FLR 1092 which concerned a child aged 10 and in which it was said:-
"On behalf of the Official Solicitor it is said that in general terms the presence of children in court is harmful to children ... and that it will be of no benefit to them to sit through to the end. Moreover, it is likely to increase their sense of responsibility for what is being decided, and to cause anxiety and distress.
In my judgement the court in dealing with an application for secure accommodation, and probably in dealing with an application for a care order, can allow the child to be in court, but the court must always bear in mind that attendance in court is likely to be harmful to the child, and the court should only allow the child to attend if it is satisfied that attendance is in the interests of the child."
15. Mr Hanson, whilst maintaining the guardian's resistance to the application, referred us to Mabon-v-Mabon (2005) 2 FLR 1011 which he submitted demonstrates a move away from the paternalistic judgment of welfare in recognition of the rights in particular of articulate teenage children. It was a private law case in which the mother was seeking a residence order and it involved an appeal against a decision to refuse three children separate representation in relation to a fact finding trial in which they had been joined as parties and were represented by a guardian. The judge considered there were almost no advantages to independent representation and several disadvantages including delay, emotional damage to the children and exposure to the harshness of the litigation process. The children's appeal was allowed, and quoting from the headnote:-
"(1) The judge was plainly wrong. There were a number of factors which pointed strongly towards the grant of separate representation in the present case. There had been no doubts as to the sufficiency of their understanding: it was unthinkable to exclude young men of such ability and maturity from knowledge of, and participation in, legal proceedings that affected them so fundamentally.
(2) This case provided a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. Family Proceedings Rules 1991, r 9.2A was sufficiently widely framed to meet the UK's obligations to comply with the United Nations Convention on the Rights of the Child 1989, Art 12, and the European Convention for the Protection of Human Rights and fundamental Freedoms 1950, Art. 8, providing that judges correctly focused on the sufficiency of the child's understanding and, in measuring that sufficiency, reflected the extent to which in the twenty first century there was a keener appreciation of the child's autonomy and consequential right to participate in decision-making processes that fundamentally affected his or her family life.
(3) The courts must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighed the paternalistic judgment of welfare. Having said that, welfare had a place in testing the sufficiency of a childs understanding. If direct participation would pose an obvious risk of harm to the child, arising out of the nature of the continuing proceedings, and if the child was incapable of comprehending that risk, then the judge was entitled to find that sufficient understanding had not been demonstrated. However, judges had to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of, and participation in, the continuing proceedings."
16. In the case before us, the child had been found competent to instruct lawyers and did have independent representation. Q was therefore participating in the process to that extent but we acknowledge that participating fully in the process includes being present at the hearing, as any client ordinarily would be. We accept that as a child progresses through his or her teens towards legal adulthood the Court should move away, as would loving parents, from the paternalistic judgement of welfare but in our view the Court should be cautious in doing so. There is a very material difference, we would suggest, between the maturity and understanding you would expect to see in a child aged 13 and a child aged 15 and then again between a child aged 15 and a child, on the cusp of legal adulthood, aged 17.
17. The Court had the benefit of advice from Dr Laura Posner, a consultant clinical psychologist at CAMHS, in a letter dated 17th June, 2010, which it is worth setting out in full:-
"As you know Q has experienced inconsistency in the care offered to Q by Q's family and then upon entering the care system there has been a repeating pattern of Q's placements breaking down. The following factors have in my view been influential in contributing to these placement breakdowns:-
Ÿ Q's sense that Q is unlovable and unmanageable that has led Q to test out whether carers are able to contain Q's behaviours.
Ÿ The mother, through being critical of Q's care placements and through inconsistently offering Q the possibility of returning to the mother's care, has been undermining of Q's placements.
Ÿ Q's difficulties in relationships with adult men which have originated in Q's relationships within the family and are acting as barriers to Q receiving care from male care staff.
As we have discussed I feel it is vital that when Q moves into the next placement Q's carers convey to Q a strong sense of confidence that this is a claiming placement for Q. Q needs to know that if there are problems that these are fixable and that Q will not be rejected nor will Q be allowed to reject the care offered by the team.
This 'attitude' needs to be consistently delivered to Q and I am concerned that it is unhelpful for Q to be party to discussions which are going on within the court arena as to whether this placement is the correct one to meet Q's needs. I understand the need for a debate on this issue but I would ask that Q is not involved in these discussions. The placement on offer to Q is [F] and if this is going to work Q needs to feel that all of the adults around Q are confident that it will be a good move for Q."
18. In his report of 19th October, 2010, Dr Williams gave the following advice:-
"5.16 When asked to give evidence in Court with regard to Q's involvement in these legal proceedings I made it very clear that I am extremely uncomfortable about the way Q is being exposed to what I consider to be adult 'parental' issues. I share Dr Posner's concern that Q does not have the requisite emotional skills in order to be able to make sense of very complex conversations about Q's care. Q's investment in Q's family and Q's inevitable desire to go home compromises Q's ability to look at and understand all of the complex issues that are required. I would therefore recommend that Q does not attend Court. I consider this to be wholly inappropriate and would prefer to see Q's child care officer and key workers explain to Q what the Court has decided and what the adults have considered to be in Q's best interests. The Guardian and Child Care Officer are able to understand Q's wishes and feelings and these should in my view be shared with the Court through Q's Advocate and the Guardian.
19. Miss Stark in her 5th statement also raises concerns that the child's involvement in these proceedings has been detrimental and that Q's involvement at such a level has not assisted in Q "accepting and adjusting to Q's placement and has risked undermining Q's placement in terms of the uncertainty and the level of criticisms made about key people in Q's life. Such information is written for adults and not children who have suffered significant emotional harm and has risked distorting Q's view of Q in the process. Whilst Q's views and opinions on Q's life are important, they should also not be given undue weight or the impression of such as this will make Q feel more powerful and adult than Q is."
20. In the light of this advice Miss Myerson submitted, as did Mr Hanson, that the child should attend in order to express Q's views directly to the Court and to hear the Court's judgment communicated in a child friendly way, but should not otherwise participate in the proceedings in which Q was, of course, separately represented.
21. In our judgement the child, although articulate in that Q could express clearly and intelligibly, did not have sufficient maturity and understanding to justify our going against the advice of all three experts that it was not in Q's interests to be present whilst these complex issues were debated; in other words a paternalistic judgement on welfare was still appropriate in Q's case. However we accepted the Minister's submission and ordered that the child should attend in order to express Q's views directly to the Court and to hear the Court's judgment but Q should not otherwise be present at the hearing.
The care plan
22. The care plan proposed that the child be rehabilitated from G, where Q is currently residing pursuant to the Secure Accommodation Order, to F. At the time of the hearing, Q was being educated at G but it is proposed that Q should be reintegrated back into J. The child has a high level of emotional control and behavioural needs especially in regard to poor self esteem and self worth. The care plan was designed to balance all of Q's emotional and behavioural needs and was developed with the advice and support of Dr Posner who will continue to work with the staff at G and F. It is anticipated that the child will move to K following its refurbishment in June 2011, along with other children in residential care.
23. Mr Jo Kennedy, the manager of Residential and Secure Services, has responsibility for the project management of the redevelopment of K. In his statement of 28th October, 2010, he explained that this had been acquired to be developed into a modern facility to provide long-term residential care for five young people. An annexed building will separately provide respite/emergency accommodation for young people in crisis which will be entirely separate from the main house with its own entrance and staff. Admissions will be handled by the intensive support team and will not impact on the staff in the principal unit at K. This is important in the light of the disruption caused by the emergency placement of children at risk at F undermining the planned work for the other residents there.
Range of powers available to the Court
24. In her skeleton argument Miss Myerson submitted that the Court had a range of powers available to it in this case, namely:-
"a. The Court could make the full care order as the Minister has applied for. This would give the Minister the authority to make long-term decisions for Q. These are set out in the care plan and seek to ensure some stability for Q as Q moves towards independence;
b. If the Court felt that they required more assurances than the care plan as set out would be adhered to then they may wish to consider making a further interim care order until such time that they can be satisfied that the Minister is able to meet Q's needs adequately; or
c. The Court could decide that Q's desire not to be the subject of a care order was the right decision. As B did not seek the return of Q to her care, this would effectively return Q to the situation prior to the making of the interim care order; a child voluntarily placed with the Minister without the benefit of parental responsibility; or
d. It was also open to the Court to make a supervision order placing Q in the care of the mother although this option was not sought by B and was therefore not viable."
Formal position of the parties
25. In terms of their formal positions before the Court the mother supported the necessity for a care order which she believed to be in the best interests of the child, although she had expressed concerns about the care plan and whether it would bring about any real change in the child. She rested on the wisdom of the Court. The guardian supported the making of a care order and the approving of the care plan. The child wished to support whichever case the mother felt able to advance in terms of Q returning home and because the mother had rested on the wisdom of the Court Q felt Q must also do so, but Q expressed the view in clear terms that Q wanted to return home, or failing that to be placed with foster parents. Q did not wish to live at F.
Documentation and evidence
26. The comprehensive documentation before the Court included the care plan, statements from the child, the mother, Miss Stark, Mrs Ferguson, M and Mr Kennedy and the advices of Dr Williams. Although the granting of the care order was not opposed by any party, the Court heard evidence from M, Dr Williams, Miss Stark, the mother and Mrs Ferguson and adjourned to a more informal sitting to hear directly from the child.
M
27. M is the acting manager of F, a post which is apparently permanent. In her statement she spoke of the way the child had responded positively since the introduction of structured, individualised care plans and how at the time of the statement Q's attendance at school had improved significantly. M and Dr Posner had worked together to devise a behaviour management plan in respect of the child based on the concept of "non-violent resistance" which is a positive approach to the managing of young people with emotional and behavioural difficulties. Dr Posner had attended staff meetings at F in order to deliver training around the theory and practice of "non-violent resistance". This had been successful in managing the child's behaviour and there had also been a significant improvement in the child's relationships with male staff at F. Her statement covers the more challenging behaviour since October 2010 and in particular the deviation from the care plan on 18th September, 2010, when the child was allowed to stay out with friends during which time Q had sexual intercourse with a 17 year old male said to be against Q's will, as Q subsequently disclosed to one of Q's key workers. There was no record of why or when this decision to deviate from the care plan was made. Since that incident record keeping has she says been excellent. She also described the steps taken to minimise the disruption to the child and the other residents when there was an emergency admission in to F of a young person on 15th September, 2010.
28. In evidence she confirmed that there would be no change in the care plan without social worker agreement. The care plan was currently being reviewed fortnightly in a process that was open to the mother to attend as she had done on a number of occasions. She felt the child was getting the message that the staff wanted Q to stay with them and was confident that the care plan would work. She acknowledged the mother's complaint that the staff could be difficult to contact by telephone but this was due to their being otherwise occupied dealing with the needs of the residents or with incidents. Contact, however, with the mother she felt worked well and such contact was never used as "a consequence" or "reward" for the child.
29. She explained that F was not a secure unit and although they will try and dissuade the child from leaving, including trying to physically block Q's exit, they cannot physically restrain Q. In terms of the range of disciplinary measures available to them, the child could lose time with friends or be grounded for a period of time. If Q absconds, they will go after Q and report Q as missing to the police and at "high risk". The Minister had the power to detain Q at G for a maximum of 72 hours in any period of 28 consecutive days and this pursuant to Article 2 of the Children (Secure Accommodation) (Jersey) Order 2005. Ultimately, the Minister had the power to apply to the Court for a secure accommodation order.
Dr Williams
30. In his report of 28th July, 2010, Dr Williams described the history of abuse and discontinuity of care in detail and concluded that it would not be in the child's interest to return to live with the mother. Whilst sympathetic to the mother's complaint that she felt blamed by the system, he shared the concern of the other professionals that the child is a victim of an abusive and destructive family experience. Q's parents had collectively failed to protect Q and foster Q's development adequately. The risk of history repeating itself if Q were to be returned to the mother was high. Q needed to be placed in a home environment where Q can re-learn how to care for Q, develop trusting and unconditional relationships, develop skills for solving problems in Q's personal, social and educational lives and above all, learn to tolerate the shame that Q experiences in Q and Q's family. This may take the form of a small group home but it will need to be resourced by staff that understand the task ahead of them. Simply containing the child and allowing Q to be artificially mature would in his opinion maintain the current level of risk.
31. In his discussions with the Children's Service, he had been told that F was working towards a reparative experience in the care system using "L" as a model of good practice. L is a recent initiative developed within Jersey to provide an alternative to a foster family and is a model of intervention that contrasts with a generic home where young people are simply contained. The biggest issue raised with him during the assessment he undertook was the limited number of qualified staff available to work with the young people and the very great concern that the work they do was undermined by the system placing other children in crisis in the homes, undermining the planned work.
32. He also referred to the concerns expressed to him by Mrs Ferguson that the Children's Service had been unable to provide the child with an adequate parenting experience. She felt that the children's home had a very laissez faire approach to managing the child claiming that Q had to have free time to see friends and free time to do Q's own thing. Mrs Ferguson said that whilst she understood the need for young people to have freedom, she did not agree that it was normal for example to allow a child to be left in town on their own for 3 hours without any parental presence or awareness, especially a young person that was already deemed to be out of control and engaging in offending behaviour. She was concerned that even very minimal expectations were not met, including doing their best to prevent the child from smoking.
33. These concerns led Mrs Ferguson to ask whether the care offered by the Children's Service while the child was in F was any better than could be provided by the mother. She was concerned that the child continued to run away, becoming at risk. Whilst in secure accommodation at G, the child had gained in confidence and allowed the staff to gain Q's trust, giving Q greater freedom but following leaving secure accommodation Q continued to abscond and remained beyond the control of Q's family or the social work team. This had led Mrs Ferguson to feel uncomfortable about the local authorities' capacity to provide an adequate level of parenting.
34. She recognised, however, that the Children's Service had been able to put together other care packages for vulnerable young people and cited the L in Jersey as an example of the quality of care she would wish for the child to access. However lack of resources were likely to make this difficult. She also highlighted for Dr Williams her concern that a recurring pattern of the mother saying that she wanted the child home then saying she did not want Q home, and then taking Q home but being unable to cope, is a cycle that needs to be interrupted.
35. In his addendum report of 19th October, 2010, Dr Williams expressed the view that the Children's Service had set out a strategy and detailed a care plan which attempted to provide the child with an alternative nurturing experience outside Q's family. The problem lay in its implementation. He felt that F was moving in the right direction but had yet to reach its potential for providing an alternative parenting experience. He believed the manager, the psychologist and the child care officer had an understanding of what was required but this had yet to be realised.
36. He remained confident that it would be inappropriate for the child to return home and believed that the mother now recognised that this would not be possible, despite the child's repeated desire to return to live with her. He did not believe that the child would be appropriate to be fostered as Q would be very destructive towards any potential foster family, whom Q would see as a direct threat to Q's own family and he did not consider an off island placement would help the child to prepare for adult life. Putting Q in an environment outside Jersey would simply have the effect of transferring Q's difficulties elsewhere and in a relatively short period of time Q would want to return home.
37. The child required a placement that is vigilant, pleasant and resourced with staff who have the knowledge, time and energy to be right on top of the child at all times, mindful of where Q is with Q's friends, knowing what Q is doing, able to go and get Q, be with Q and to respond to Q. Those responsible for planning Q's care know that this is what Q needs and are doing their best with the resources available to provide the child with this alternative experience. It is clear to him from the comments of the Children's Service as well as from the evidence and the result of the child's behaviour that this intervention could be more robust. He wanted the Court to know that he was very worried about the child's current placement and believes that the issues identified in his assessment placed Q at a high risk. Q is challenging Q's carers and they are aware that at present they are not delivering the service they know is required.
38. In his evidence Dr Williams reiterated that the mother was hurt and bruised and had issues arising from her own childhood, but the contradiction in her position as to the child had to stop. She must "get on board" and work with the Children's Service or be removed from the picture. She must "engage" or "get out of the kitchen". His preference was for the former. This living in limbo between voluntary and home care had to stop. The child needed to be told once and for all that the child would not be going home. He stressed the importance of the mother giving her seal of approval to the care plan and of the child knowing that she had done so.
39. There were three issues as far as he was concerned. Firstly, the child must stay in the Island. Secondly, the child must stay in touch with the family and thirdly, the child must be parented by Children's Service who should have the resources to carry out the care plan.
40. In relation to the work of the staff at F, he emphasised that these criticisms were intended to be constructive. He reiterated his view that they were moving in the right direction and he said he had every confidence in them. It was clear that they were doing all they could to implement the care plan. There must be no parachuting of children in crisis into the home, disrupting and undermining the work being done with the other children. The provision for a separate respite/emergency accommodation unit at K was of huge comfort to him and very welcome.
41. He supported the care order and had to trust that the States of Jersey would honour what the children services said would happen in particular in relation to K. In terms of a contact order, he did not consider that this was necessary if the culture was right but there did need to be some structure.
Miss Stark
42. Miss Stark, a social worker with the Children's Service, had provided a number of detailed statements in relation to the child. In her fifth statement of 8th November, 2010, she attributes to Dr Posner a concern that the Court had unrealistic expectations of what could be achieved with a child with the problems this child exhibited, without the certainty of a long-term placement and in the relatively short time in Q's life that the court case had been ongoing. This may in part be a reference to the criticisms made by Mrs Ferguson and endorsed by the Court with some diffidence in its judgment of 28th July, 2010, namely that the Children's Service were not applying clear sanctions with the rigour that they should. She reported Dr Posner as feeling that an over bureaucratic and critical approach had been adopted towards the care given by the F staff, who were making significant and important changes to the way the care home was managed and regulated. This had, in Miss Stark's view, resulted in staff feeling unable to make specific day to day judgements on the child's care for fear of criticism.
43. She emphasised the improvement seen in the child between 2009 and 2010 and remained of the view that the care plan was the best available plan for the child. It is clear from her report that in her view the current lack of certainty as to the child's placement was hindering the Children's Service in the work that they needed to do with Q.
44. Miss Stark pointed out in her very detailed report that the child will continue to make mistakes and poor choices and Q's carers need support to address these, given Q's attachment difficulties and life experiences, not condemnation. The child is likely to have problems at school, have a higher rate of detention and suspension than the average, be involved in criminal activity and inappropriate relationships, due to the significant harm Q has suffered prior to any of Q's placements and certainly the most recent one. Events such as these should not be used as "evidence" of the plan not working, whilst at the same time not minimising the impact they have on the child and the concern they create for those caring for Q, but rather examined as to their pattern and whether this type of risky behaviour overall is reducing over the months and years the child's care plan is in place. It was her belief that the child's risky behaviours were reducing but also changing, as the child grows and develops and will continue to do so. The only way to ensure outward compliance would be to maintain Q permanently in a secure accommodation, but this would not enable Q to grow and develop as Q should.
45. In evidence, Miss Stark described the sanctions available to the Children's Service as summarised by M and how they were being implemented. She indicated that the child was beginning to respond better to them. The staff at F were aware of the challenge Q represented but were very committed to Q. What was needed was certainty as to Q's placement. The mother could not meet Q's behavioural and emotional needs, but she wanted to work with the mother to help give the child a consistent message. It was very important for the child to know that Q would be living at F and how the mother fits in.
46. Today, the child is saying that Q absconds because Q wants to go home, but in reality Q wanted to be with Q's friends. That is Q's motivation in discussions with Q. The position would be just the same if Q were to live with the mother.
47. Contact between the child and the family was important and would not be used as a sanction or reward. She was against the current level of contact being increased as the child needed to develop relationships and work with the staff at F. She was not in favour of a defined contact order. She preferred the amount of contact to be at the discretion of the Children's Service and for there to be flexibility.
The mother
48. In her first statement of 9th August, 2010, the mother, having made a number of observations on the threshold document, accepted the proposed care order, acknowledging that she could not cope with the child alone. In her second statement of 15th November, 2010, the child's recent conduct absconding almost every night led her to question whether F was a safer environment for Q. She had been very anxious that a Secure Accommodation Order be imposed for the child's protection and that has now been put in place. As she put it in her conclusion:-
"I do understand the necessity of the care order because I know that given Q's current behaviour I would also be struggling to control Q. However, I am failing to see how F are managing any better than I would have."
49. In her evidence she explained how she felt over the past that everyone was against her. She felt bad and didn't want to be "knocked back" again. She was now in a calmer relationship and would like to have Q back, but she wanted to do what was right for Q. She had always sought the assistance of the Children's Service and always supported the care plan. The child feels she is pushing the child away which makes her feel guilty. She tries to assure the child by telling the child how she feels and that it is not the child's fault. She, the mother, had failed to protect the child.
50. Her overriding concern was for the child's safety and she felt relief when the child was in G. She accepted that it wasn't viable for Q to come home where Q is beyond her control but she did not appear to be safe at F either as Q was never there. She would be prepared to have the child back for a trial period but she would do whatever the Children's Service and the Court felt best.
51. In terms of contact, she would like an extra overnight stay in due course and would like to have the current level of contact clearly defined so that both she and the child knew where they stood.
Mrs Ferguson
52. The concerns expressed by Mrs Ferguson have been raised through the reports of Dr Williams as discussed above. In her statement of 22nd November, 2010, Mrs Ferguson said that there had been positive changes in the care provided to the child in that it had begun to change from containment to the sort of place that Dr Williams had described as being necessary to meet the child's needs. The concerns that she had raised were being addressed.
53. Despite the deterioration recently, she could see that there had been some positive changes in the child and was of the opinion that as we drew nearer to the final hearing and the truth that the child would not be returning to the mother's care, Q will be more emotionally fragile. The child's statement to Mrs Ferguson about the three other children being at home with their mother while Q is the subject of a care order suggested to her that there is a deep hurt around this for Q, which will need to be addressed in the context of Q's psychological needs overall. Following the hearing, the messages that staff are giving to Q about F being Q's home where Q is wanted and valued would have more impact and Q would begin to accept the situation.
54. In evidence, she confirmed her confidence in Miss Stark and M. She echoed the concerns expressed by Dr Williams over the implementation of the care plan in respect of which they spoke as one voice.
The child
55. We did not hear evidence from the child but invited Q to speak to us in a less formal environment than the courtroom which Q did in the presence of the mother, the guardian and counsel. A member of staff at G had typed out a statement of Q's views and wishes which we went through together.
56. Q acknowledged that Q went missing frequently but said that Q kept safe, staying at a friend's house. Q's friend did come round to this house, but Q was not engaging in risky behaviours or having sex. Q did not understand why a further Secure Accommodation Order had been imposed on Q and although this kept Q in at night, it was not affecting Q's thinking. If anything, it was making it worse.
57. Q did not think that F would ever make Q feel at home. All Q wanted to do was to get out of there and stay away. Q should not be in a "kid's home" when Q has a mother and family who wanted Q. All Q wanted to do was to go home and Q would make it work. Q asked for a trial run, to give Q a chance to prove that being at home with the mother is the place for Q to live. If Q is allowed to go home Q would not need to run away and would not want to do so, and Q would therefore be safer.
58. Giving a full care order Q said would definitely make Q's behaviour worse. All we had to do was to look at Q's past behaviours. When Q was in voluntary care, Q was well behaved but when the interim order was imposed, Q's behaviour got worse. Q accepted in discussion however that the evidence did not bear this out. Q would even prefer a fostering placement and informed us that Q knew a lady who had indicated that she wanted to foster Q.
59. When asked by the staff why Q was taken into care initially, Q acknowledged it was because Q was not coming home at a decent time, was disrupting Q's family, was not going to school and was arguing with the mother all the time. Q no longer argued with the mother, but accepted that Q was not going to school regularly. Q did not like big schools and would prefer a smaller school as Q could not cope with people around Q who annoyed Q.
60. Q's statement concluded as follows:-
"I feel that my CCO is stopping me from having a proper family life and I do not understand why people say they want to keep families together and yet they are stopping me going to live at home. If I had a trial and messed up I would only have myself to blame. My Mum has spoke (sic) to me about not being a perfect parent but she does look out for me, does not drink or take drugs and works odd jobs to buy things or cloths (sic) for the children. Mum said she wants nothing more than for me to come home and the stupid thing is that if I do go home I will never need to run away because home is where I will be the happiest, can you not give me a chance to prove myself."
Decision
61. In this case, we were dealing with a young person who was beyond parental control and with a high level of emotional control and behavioural needs. Q was pleading with us to be returned to Q's home to a mother who clearly loved Q, but who had failed to protect and control Q in the past and who was unable to address Q's needs now. Q's behaviour whilst in care had been a considerable challenge to the staff at F, who had no means to physically restrain Q and whose position had been handicapped by the lack of certainty as to Q's placement.
62. It seemed to us that with a young person as challenging and self-willed as the child, the choice ultimately may come down to physical containment within a secure unit such as G, or the kind of small group home described by Dr Williams towards which the services are moving and which will culminate in the move to K in 2011. The criticisms voiced by Mrs Ferguson and Dr Williams as to the ability of the Children's Service to provide an adequate level of care and parenting for the child are serious and were of concern to the Court. There was some force in the mother's complaint that if the child is to be allowed to abscond from F on an almost daily basis and thus be at high risk, Q might as well be at home from where Q would be equally beyond control but at no greater risk. However unlike the mother, the Minister does ultimately have the power to control Q either through 72 hour welfare placements at G or through applying for secure accommodation orders. Furthermore it is clear that the Children's Service are now taking the steps necessary to provide the child with the kind of group home that Q requires. It is critical that they are provided with the resources to do this.
63. As Mr Hanson pointed out, we are working in a very narrow time-frame. There should be no further delay or adjournment. A supervision order had not been suggested by any party and would be inadequate to deal with this child's needs. Making no order or making a further interim care order would continue the uncertainty and cause delay, both of which are inimical to the interests of the child.
64. The advice given to us by all the experts was clear, namely that a full care order should be imposed and the care plan approved. There was no formal opposition to such an order and it appeared to us that it was the only viable order that we could make.
65. As we said when delivering our decision, the plea of a young person to be able to return to live with their family is difficult to resist, but anyone with Q's true interests at heart would be bound to agree with the advice of the experts. To do otherwise would be to fail Q at this critical juncture in Q's life. We had to set the idealistic picture that Q painted of how Q's life would be at home against the evidence of how that life had so recently been. At the moment Q enjoyed limited but structured contact with the mother and family which had worked, but on the evidence before us, things would be very different if Q was to be returned home full time.
66. We therefore made a care order, a decision which we acknowledged the child would find hard to accept but in time we hope and trust that Q will come to understand and accept it. The mother and family remain very much a part of Q's life, but working in conjunction with the staff at F and subsequently K. It is important as Dr Williams advised for the mother to give her seal of approval to this and that the child knows she has done so.
Contact
67. Miss Hall applied on behalf of the mother for a defined contact order, which she said would provide certainty which would help the child. Miss Gilbert, for the child, submitted that a tangible order of that kind would help the child and an increase in contact in due course would allow for some "buy in" for Q.
68. Mr Hanson and Miss Myerson opposed a defined contact order. Miss Myerson was concerned that a defined order was too prescriptive. Much depended upon how the child reacts to the care order and the mother's input. If the mother stood in the way, then the Children's Service might have to reduce the current level of contact.
69. The care plan provides for contact and Article 27 of the Law requires the Minister to allow the child reasonable contact with the mother. Was it necessary, therefore, for an order to be made? We were cognisant of Dr Williams' advice that the child should remain in contact with the mother and the family and the need for structure. We had been impressed by the honesty of the mother's evidence and accepted that her application was made in the child's best interests. We concluded that setting down a minimum level of contact would not undermine the work of the Children's Service and was in the interests of the child. We therefore made an order which provides for a minimum level of contact namely contact every Sunday, one evening every week and one overnight staying access every 28 days, which to allow flexibility can be changed by agreement between the Minister and the mother in the child's best interests. In terms of overnight staying contact, we ordered that this was "with a view to overnight staying contact increasing to 2 nights in every 28 days" - in other words, if the Minister so agrees in due course. The order for contact was effectively suspended for the period of the current Secure Accommodation.
Authorities
Children (Jersey) Law 2002.
Re B (Care Proceedings:Standard of Proof) (2008) UKHL 35.
Children (Secure Accommodation)(Jersey) Order 2005.
Children Rules 2005.
Re C (a Minor)(Care: Child's Wishes) [1993] 1 FLR 832.
Re W (Secure Accommodation Order: Attendance at Court) [1994] 2 FLR 1092.
Mabon-v-Mabon (2005) 2 FLR 1011.