[2011]JRC044
royal court
(Samedi Division)
21st February 2011
Before : |
M. C. St. J. Birt, Esq., Bailiff, and Jurats Fisher and Kerley. |
IN THE MATTER OF F
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate D. C. Robinson for the Minister.
Advocate P. S. Landick for the Mother.
Advocate A. C. Pinel for the Father.
Advocate M. J. Haines on behalf of the Children (acting through their Guardian).
judgment
the bailiff:
1. This is an application by the Minister to suspend contact between two children, who are the subject of interim care orders, and their father. It came before the Court as a matter of urgency and, as well as raising the issue of whether it is appropriate to suspend contact, it raised the question of whether certain information in the possession of the Minister should be disclosed to the father and the mother.
Background
2. On 29th July, 2010, this Court granted interim care orders in respect of three children A, B and C. We shall refer to their parents, who are not married and are now separated, as the mother and the father.
3. This application concerns B and C, who are twins girls, aged 10. They both suffer from cerebral palsy, in the case of B to a minor degree but in the case of C to an extent that the child requires the use of a wheelchair. Both children suffer from a serious eating disorder such that, at the time of the interim care order, both were seriously underweight. There were considerable concerns that they had suffered physical as well as emotional harm.
4. Since the interim care order was made, both children have shown considerable improvement in their general wellbeing. B was being fed through a nasal tube but that was removed a while ago, although since then she has lost a little weight again. She resides with foster carers who are her maternal uncle and his wife, to whom we shall refer as "the aunt". They have children of their own and the aunt is a school counsellor. C, with her greater physical disability, resides in a respite centre. Both children have considerable learning difficulties such as they have an age equivalent of six years.
5. The father has had supervised contact with each of the children on a weekly basis and they also have separate regular contact with their mother. It is fair to say that, until the events giving rise to this application, no concerns had been expressed by the Children's Service about any adverse impact or stress being caused as a result of contact with the father.
Events Giving Rise to this Application
6. On the evening of 2nd February, B made a disclosure to the aunt which suggested that she had been the subject of sexual abuse by the father. This was reported to the Children's Service who held a child protection strategy meeting on 4th February. This was attended by representatives from the police, the Children's Service, the Education and Health Departments as well as the aunt as foster carer. The meeting was given a copy of notes which the aunt had made immediately following the disclosure by B as well as some drawings made at the time by B herself when trying to explain things to the aunt. These documents have all been disclosed to the Court.
7. The strategy meeting was also in possession of a letter from Dr Laura Posner dated 3rd February. She is the consultant psychologist at the Child and Adolescent Mental Health Service (CAMHS) who has had responsibility for the treatment of B and C. This letter was written following the disclosure by B. She pointed out that in lots of ways the children were thriving in their new placements; B was doing well without a feeding tube and it was vital that this progress was maintained. She said that anxiety was not good for the girls and would reduce the impact of the Service's efforts. She said that in her view there was sufficient evidence that the father was a source of anxiety for the girls that contact should be terminated for a number of months and the impact of this on the girls to be evaluated. She added that B would be anxious if she felt that decision making was based on her recent disclosure about the father. Dr Posner recommended that the girls be told that the suspension had been made in the light of information from a number of people and doctors and was an experiment to see whether not seeing the father for a while would help them to feel happier.
8. The outcome of the strategy meeting was that the Children's Service decided to suspend contact in order to enable investigations to be carried out into the allegations made. We would add that contact between B and her father had been due to take place on 3rd February but Miss Charpentier, the childcare officer responsible for the case, had taken the decision to cancel that occasion of contact in the light of the disclosure the previous evening. She telephoned Ellen Raynor, the member of the Children's Service who was to supervise the contact shortly before the contact was due to start and Miss Raynor informed B that contact had been cancelled. She reported that B did not appear to be distressed by the cancellation of contact.
9. Article 27(6) of the Children (Jersey) Law 2002 provides that the Minister may, as a matter of urgency, refuse to allow the contact that would otherwise be required under Article 27(1) for a period of not more than seven days if the Minister is satisfied that it is necessary to do so in order to safeguard or promote the welfare of the child who is in the Minister's care. Accordingly it was in those circumstances that the Minister brought this urgent application before the Court seeking a suspension of contact until further order. The matter came before us on 10th February. Having heard evidence from Miss Charpentier and from Mr Paul Watson, the Acting Manager of the Assessment and Child Protection Team, the Court agreed to authorise the Minister to suspend contact until the next hearing, which is to be in approximately six weeks. This judgment constitutes our reasons for that decision.
Disclosure
10. The application filed by the Minister said merely that B had disclosed allegations of sexual harm caused to her by her father. In the report of Miss Charpentier filed in support of the application, no further details of the exact nature of the complaint by B were given.
11. In the original report prepared for the hearing at which the interim care order was made in June, there was reference to various allegations having been made of sexual abuse by the father but that these had not been confirmed. The Court formed the view that it could not reach a decision on the present application without hearing more of the nature and circumstances of the allegation now made. Counsel for the Minister said that the Children's Service did not believe it was in the children's interest for the father to become aware of the exact nature of the allegation at this stage. This stance was supported by the Guardian. Reluctantly therefore, the Court decided to hear evidence about the allegation in the absence of the mother and father and their advocates. We would add that the mother was present at the hearing but the father was not. The Court however reserved to itself the decision on whether, having heard the evidence, that evidence should be disclosed to the parties, including in particular the father, who was of course at risk of being prejudiced by any decision to suspend contact.
12. Following withdrawal of the other parties (except the Guardian) the Court was shown the documents referred to earlier comprising the record of the strategy meeting notes, a statement by the aunt, various notes made by the aunt at the time and the drawings done by B at the time of the disclosure. The Court also heard oral evidence from Mr Paul Watson of the Children's Service.
13. From this material, the Court is satisfied that there are reasonable grounds for thinking at this stage that B is struggling to tell something which she has bottled up for a long time, and that extracting the information will be a difficult process which will require skilled and sensitive handling both because of her inhibitions and because of her learning difficulties. In this connection the police representatives at the child protection strategy meeting agreed that it would be premature for them to become involved and that the Children's Service should be left to see if they could establish the position with greater clarity. Nevertheless, like those who were at the strategy meeting, we are satisfied from the evidence that B has inferred that the father had sexually abused her in a serious manner and that it is in the children's best interests that this matter be investigated further. In making the above remarks, we are not of course reaching any conclusion on whether any allegation is true or not. We are simply saying that B needs to be given the opportunity of saying whatever it is she wishes to say.
14. Advocate Pinel argued strongly that it was unfair and unjust for the Court to reach a decision on suspending contact on the basis of evidence which the father and his advocate had not seen and upon which they could not comment. In this connection we were referred to the case of a County Council-v-SB, MA, AA [2010] EWHC 2528 (Fam), a decision of Sir Nicholas Wall, President of the Family Division. The circumstances in that case were very different and involved a possible risk of "honour" violence in a family of Pakistani origin. However, at paragraphs 29 to 32 the President summarised the position on disclosure. He confirmed that, save in exceptional circumstances, the normal rules should apply, namely that all parties should see all the material upon which the Court may form its opinion. However he said that, as shown by a number of cases, in cases involving children, the Court had a discretion not to order disclosure in certain circumstances. At paragraph 36 he indicated that, where there was an issue, full disclosure should be made to the Court of the relevant material and the Court should then decide whether the ECHR Article 6 rights of the parties required disclosure to them. It is therefore a question of balancing the welfare of the child against the rights of the other parties to be able to comment on all the material which the Court may take into account. It is clear that any decision to withhold material will be exceptional.
15. We are fully conscious of the need for there to be a level playing field between all the parties. Nevertheless we have concluded that, at present, the welfare of the children requires us not to disclose to the father the material which we have seen and heard in his absence. We would summarise our reasons as follows:-
(i) The complaint is at a very early stage. It needs to be established exactly what B is alleging and whether there is sufficient evidence to justify involvement of the police. It would be very unusual for the suspect in a criminal investigation to be kept informed of the details of the complaint as it emerges. There is a strong public interest as well as a strong interest for the benefit of the children that B should be allowed to say whatever it is which she wishes to say without stress or pressure.
(ii) We accept the evidence of the Children's Service that there is a risk of B becoming distressed and reluctant to disclose whatever it is she wishes to say if she believes that the father is being told the details of what she is saying as they emerge.
(iii) As Dr Posner says, any additional stress on these children at present may create a real risk of undoing or adversely affecting the progress which they have made since the interim care order, particularly in relation to their eating and their need to maintain their weight.
(iv) The father knows the essence of the reason why the Minister wishes to suspend contact, namely that B has made an allegation of sexual abuse against him and it is wished to investigate the matter further. Furthermore, he knows that the complaint has come through the aunt, whom he says is biased against him. All he does not know at this stage is the exact nature and circumstances of the complaint and exactly what B has said. However, the exact details will not be material to our decision. We have done our best to look at the material we have seen and heard in his absence with a view to considering whether there is anything in it which might materially assist his case in connection with the application for a temporary suspension of contact while the matter is being investigated further. We do not think that there is anything which falls into this category.
(v) The decision which we are being asked to reach is a temporary one. This is not a case where the order we are being asked to make will have a long term effect on the father. We have determined that there should be a further hearing in approximately six weeks and we shall review our decision on disclosure as well as our decision on contact in the light of the information then available. We are at the very early stages of a possible complaint of sexual abuse and the sole issue which we are considering today is whether, as a short term measure, contact with the father, who is the suspect, should be suspended so as to prevent any possible interference or distress and allow B to say whatever it is which she wishes to say. In our judgment, the balance in this case, falls clearly in favour of the welfare of the children and the need to establish whether there is anything in the allegation which B is making. The need to allow that to happen in the interests of the children outweighs the short term prejudice to the father and justifies the step of withholding the material from him at this stage.
Decision on Contact
16. Advocate Pinel argued that there is no need to suspend contact at this stage. The evidence is that the contact with both B and C has gone well so far. None of the supervising family support workers have suggested that contact has caused any distress to either child. Furthermore, contact is supervised and therefore there is no risk of either child coming to any harm during contact. The Court should also bear in mind that there is no direct allegation from B at this stage. The alleged complaint has only come through the aunt who, says Advocate Pinel, has a record of being hostile to the father and has been involved in earlier complaints of sexual abuse on his part.
17. The mother supports the Minister's application although we take note of the fact that there is now hostility between the father and the mother. Perhaps more importantly, the Guardian, who has a close knowledge of all three children, supports the Minister's application on the grounds that it is in the best interests of both children at this stage.
18. The Court has ordered a further hearing to take place in six weeks' time. In the meantime, with the agreement of all the parties, the Court has directed Dr Posner to prepare a report by 15th February expanding upon the issues referred to in her letter of 3rd February; Dr Bryn Williams is to be instructed to prepare an expedited psychological report on both children in relation to contact; and the Children's Service will be working urgently with B, possibly with the help of the art therapist at CAMHS, in order to clarify what she is alleging. We are therefore concerned only with what should happen in the forthcoming six week period whilst these measures are undertaken.
19. We have carefully considered the submissions by Advocate Pinel, but we have concluded that it would be in the best interests of both children for contact to be suspended until the next hearing. Taking B first, we would summarise our reasons as follows:-
(i) B has alleged sexual abuse by the father. The evidence suggests that she has found it difficult to talk about this alleged abuse. We have no doubt that, if she has to continue to see the father in the interim whilst she is being questioned about the nature of her allegation, this is likely to confuse her and cause her some distress.
(ii) There is evidence that contact with the father has been causing her anxiety. Thus, it appears from Miss Charpentier's report that, according to the aunt, B has expressed considerable anxiety before the supervised contacts and before telephone contacts with the father. For example, during the weekend of 5th and 6th February, B said to the aunt that she did not wish to see her father; she also asked for the aunt to not refer to the "D" word (Daddy) in her presence; she did not wish for the foster carers to mention her father's name and referred to her father by his first name There is further evidence from the aunt that B had felt very anxious when she was unwell at Christmas and could not attend a contact session with her father. B is said to have stated to the aunt "I have to go because Daddy will be angry at me" and at other times she has said "I have to go to make him happy". It is the opinion of the Children's Service that these statements suggest that B is very anxious about contact.
(iii) Dr Posner is of the view that there is sufficient evidence to suggest that the father is a source of anxiety and states that anxiety will reduce the impact of the efforts to help B get to a healthier weight. Certainly, it is clear that B and C have both been in a very vulnerable condition because of their eating and weight disorder and the Court can readily accept that stress and anxiety is likely to exacerbate the problem.
(iv) We accept the point made by Advocate Pinel that much of the evidence at present comes through the aunt rather than direct to the Children's Service. However, there is no immediate reason for the Court to doubt what is being said by the aunt, although of course that has to be ascertained. The adjournment will give the Children's Service (and possibly the police if this is thought appropriate in due course) to investigate the allegation of sexual abuse and for Dr Williams and the Children's Service to ascertain for themselves whether B is in fact caused distress or anxiety by contact with the father.
(v) We accept that, with supervised contact, there is no physical danger to B from her father. However, as Miss Charpentier said, sexual abusers very often exert considerable control over those whom they have abused. There must be a risk that, if B's allegation is true, a certain type of look or expression on the part of the father during occasions of contact will be enough to cause B distress and lead to her becoming unwilling to make any further disclosures.
(vi) We also accept the evidence of Miss Charpentier that, in the light of B's disclosure and the suggestion that B has said she does not wish to see her father, a decision to make her continue with contact will be seen by B as a betrayal by those to whom she has confided something very personal and sensitive.
(vii) We accept that the logs of the supervising social workers have not suggested any difficulty with contact in the past but the position has undoubtedly changed following the disclosure by B. We accept that in these circumstances there is a risk of harm to B if the Court insists that contact should continue. We accept the reasons put forward by the Children's Service and Dr Posner for thinking that B's best interests are served by suspending contact until the next hearing, at which time the matter can be reconsidered with an open mind in the light of the evidence then available, including the state of any investigation and the report from Dr Williams.
(viii) We accept that there is good reason to believe that the alleged sexual abuse is not a re-hash of the allegations mentioned in the report of June 2010 (see paragraph 11 above). The previous allegations related mostly to alleged abuse by the father against A; this is the first time that B has suggested any abuse of her.
20. Turning to C, the position is not as clear-cut. Nevertheless we have concluded on balance that the Children's Service should also be authorised to suspend contact in her case pending the next hearing. We summarise our reasons as follows:-
(i) B and C see each other regularly. B will therefore know if C continues to see the father. B has said things which may indicate that she is alleging that the father has also abused C. She has expressed a fear that C is not in a position to run away from the father because she is in a wheelchair. B may therefore suffer additional anxiety and distress on C's behalf.
(ii) If there is a suggestion that the father may have abused C, this needs to be investigated without the risk of the father influencing C which, despite the fact of any contact being supervised, he might be able to do in subtle and unobvious ways if contact were to continue in the meantime.
(iii) Furthermore, if the allegations are true, the father could use C exert pressure on B e.g. by saying things to C in the expectation she will pass them onto B and cause her anxiety and distress.
(iv) We accept that, unlike B, C has expressed a wish for contact with the father to continue and indeed was upset when it was cancelled on 4th February. This has caused us to consider very carefully whether contact should be suspended in her case. We have concluded that, on the basis of the evidence currently before us, it is in her best interests to do so given the allegation of sexual abuse. However, it might be the case that, if she were to become seriously distressed at not seeing the father, her interests would on balance best be served by continuing supervised contact. Accordingly, we are expressing our order in terms of the Children's Service being authorised to suspend contact with C, but they are not directed to do so. Thus, they need to keep the position carefully under review and, if the strength of C's wishes and feelings were to be such that a lack of contact was causing her real distress, the balance may well tip in favour of resuming contact. The Children's Service are therefore authorised to so decide during the interim period if they conclude this is in C's best interests; and of course the Court will have the benefit of the report by Dr Williams when the hearing resumes in six weeks' time.
21. In summary, the Court was persuaded that it was in the best interests of both children to permit the suspension of contact with the father pending the next hearing. At that stage, the matter will be considered afresh in the light of the evidence then available. It is incumbent upon the Children's Service to progress the investigation of the allegation made by B with all practical speed.
Authorities
Children (Jersey) Law 2002.
County Council-v-SB, MA, AA [2010] EWHC 2528.