Jersey Unreported Judgments

[2011]JRC147

Royal Court

(Samedi)

28 July 2011

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton and Kerley.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF J

Advocate D. Robinson for the Minister.

Advocate M. Godden for the First Respondent.

Advocate D. Blackmore for the Second Respondent.

judgment

the commissioner:

1.        This judgment is concerned with the placement of two young children away from their mother as an interim measure.

2.        At the hearing before us on 13^th June, 2011, the Minister applied for an interim care order in respect of C and D and the approval of a care plan which provided for their placement together that day with foster carers.  The mother did not oppose the making of an interim care order but did oppose that part of the care plan which separated her from her children.  The father, who was made a party to the proceedings at the commencement of the hearing, did not oppose the making of an interim care order and through his counsel submitted that it might be best if the children were placed in foster care so that pressure could be taken off the parties.  Whilst it was accepted that the father was the father of C, there was some dispute as to whether he was the father of D.

3.        The Court heard evidence from Miss Laura Stark, the social worker, and from the mother.  The Court was satisfied that the threshold criteria for the granting of an interim care order under Article 24(2) of the Children (Jersey) Law 2002 ("the Law") were met.  The real issue before the Court was the placement with foster carers and we therefore set out some of the background to put that issue in context.

4.        The mother and the father were in a relationship together from approximately 2002 until 2008.  It was an unstable relationship with frequent periods of short separations.  During the relationship, the police and/or the Children's Services were notified of 32 separate incidents of domestic abuse the majority of which were allegations made by the mother against the father, although a significant minority were made by the father against the mother.  C's name was placed on the Child Protection Register in August 2008 under the category of emotional harm and due to the frequency of domestic abuse between the parents.  C's name was removed from the Register in 2009 and a child in need plan was developed.  D was also made subject to a child in need plan at birth.

5.        Towards the end of 2009 and the beginning of 2010, the mother stopped engaging fully with Health and Social Services, frequently missing appointments with the health visitor and not attending child in need meetings.  Health appointments for the children were missed.

6.        Concerns were expressed by neighbours over domestic violence, intoxication and poor supervision of the children and on 15^th June 2010, the children's names were placed on the Child Protection Register for risk of neglect.  There were concerns about home conditions and that the children's needs were not being prioritised around hygiene, nutrition and cleanliness.  A letter before proceedings was issued by the Children's Service to the mother on 13^th August 2010 in which they expressed their concern over her care of the children and giving her notice that they would issue proceedings unless matters improved.  Steps to prevent this happening were set out.

7.        In November 2010, the mother's father died in Madeira and there was, according to the evidence of the mother, some strife between the surviving members of the family, all of which, she told us, caused her to become depressed.  While she denied having a general drink problem, she admitted that she did drink to excess on 5^th December 2010 and called the police to have the children taken into temporary care.  The police found her depressed, vague and slightly confused.  C was asleep on the sofa in day clothes in an upright position and D was awake, in dirty clothing and in need of his nappy being changed.  The police described the flat as messy, unkempt and hazardous.  She was arrested for neglect and protection powers were used to remove the children from her care.  They were placed with her brother.  The children were returned to her on 7^th December 2010, and on 23^rd January 2011, she was given a 12 months binding over order for an offence under Article 35 of the Law, namely intentionally or recklessly exposing the children to a risk of harm. 

8.        In February 2011, the family support worker stated the mother "had taken on board the information given to her and that she had made changes .... and is asking for advice rather than having to be constantly prompted, but she was concerned that the mother continued to drink alcohol and appeared to be either low in mood or very hyped up".  The mother denied she had been drinking but the family support worker was uncertain if she would be able to sustain the changes she had made in the care of the children in the long term.

9.        On 24^th April, E, with whom the mother was having a relationship, informed the police that there had been an argument at his home during which he had been assaulted.  The mother, he alleged, had left with the children, heavily intoxicated.  The mother was located the next day and arrested for grave and criminal assault.  The children were taken into care overnight.  She refused to consent to their being admitted into care voluntarily and they were returned to her.  The mother denied being intoxicated or assaulting E and explained that this had been a domestic argument over another woman.  No charges were pressed.

10.      In March 2011 the mother failed to take up offers of appointments with the Alcohol and Drug Service and in May 2011 had withdrawn from the Mellow Parenting course run by Dr Posner from CAMHS.

11.      Following the April 2011 incident, the mother was informed by the Children's Services that they intended to apply for an interim care order in respect of the children.  She was anxious and unhappy about this and on 16^th May 2011, telephoned the Children's Services to inform them that she had sent the children to Madeira and that they would not return until after the Court hearing, which then had to be vacated as the children were not in the jurisdiction.  She refused to tell the Children's Services where the children were staying and efforts were made by the Children's Services to locate the children via the police and Madeira's Children's Services.  Eventually, the Children's Services were informed that the children were with the mother's brother and they were returned to the jurisdiction on 22^nd May 2011.  Both her mother (who lives in Madeira) and brother have expressed concerns about her ability to cope with the children. 

Case for separation

12.      The Minister submitted that these incidents have primarily been caused by the mother's misuse of alcohol resulting in her incapacity to provide adequate care for the children.  Due to the high level of risk, the Minister was unable to provide a care plan to enable the children to remain at home. Miss Stark, whilst acknowledging that the mother does have a basic understanding of the needs of the children, coupled with an ability to provide it at times, said she does not do this on a consistent basis or accept that her own actions have frequently led to this situation.   In order for the children's needs to be assured and to assess the impact on them of being cared for well and on a consistent basis, it was her view that they needed to be accommodated separately whilst adult psychiatrist, adult psychologist, child psychologist, alcohol and drug service and parenting assessments were carried out.  It was her belief that the risks of harm to the children if they remain in their current circumstances were greater than the risk associated with them being temporarily separated from their mother, and that these risks could be better managed with the proposed care plans of the Children's Services; the current child protection registration and plans being insufficient to protect them.

13.      In evidence, Miss Stark told us that if the children remained with the mother the Children's Services would not be able to guarantee their safety.  They would not know where the children would be at any given time or their routine.  The children would be exposed to the mother's drinking and incidents arising out of that similar to those that have already occurred.

14.      The care plan envisaged the immediate removal of the children to foster carers.  They could not be placed with the family as the brother now lives in France and the grandmother in Madeira.  It was proposed that the mother would have supervised contact four days a week and the father one day a week for 1½ hours.  There would be no weekend contact because no supervisor would be available.  Contact would need to be supervised for the moment so that the Children's Services could observe the mother's interaction with the children, carry out their assessments and prevent the childrens' removal from the jurisdiction.

Legal principles to be applied

15.      Ordinarily, an interim care order is an impartial step to preserve the status quo, pending a final hearing.  Quoting from the judgment of the Court in In The matter of PE and PH [2009] JRC 206A at paragraph 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.  An 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."

16.      Furthermore, the starting point is that if at all possible, the children should live with their natural parents.  Quoting from the judgment of Scriven, Commissioner, in In the matter of QQ [2010] JRC 217E:-

"14.    We should also make it clear that our starting point is that if at all possible it is in the best interest of the child to live with its natural parents.  We bear in mind that under the European Convention for the Protection of Human rights and Fundamental Freedoms 1950 both the children and parents have the right to respect for their family and private life.  As Hale LJ, as she then was, said in the case of Re C and B  [2001] 1 FLR 611 at page 621 paragraph 34 (a case where the adoption of a small child was proposed):-

'There is a long line of European Court of Human Rights jurisprudence .. which emphasises that the intervention has to be proportionate to the legitimate aim.  Intervention in the family may be appropriate but the aim should be to reunite the family when circumstances enable that and the effort should be devoted towards that end cutting off all contact and the relationship between the child or children in their family is only justified by the overriding necessity of the interests of the child.'

She made similar observations in the case of Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 when she said:-

'The principle has to be that the local authority works to support and eventually reunite the family unless the risks are so high that the child's welfare requires alternative family care.'

We are also guided by the words of Thorpe LJ in Re V (Care: interference with Family Life) [2003] EWCA Civ 786; [2003] 2 FLR 813 at paragraph 34 when he said:-

'.. where the application is for a care order empowering the local authority to remove a child or children from the family the judge in modern times may not make such an  order without considering the rights of the adult members of the family and of the children of the family.  Accordingly he must not sanction such an interference with family life unless he is satisfied that it is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of children.

..Where the interests of the parents and child conflict, however, it is the child's best interests which must prevail (Youssef v Netherlands [2003] 1 FLR 210).'

17.      However, it is clear that removal from the natural parents can be ordered if the child's safety demands it.  The leading case setting out what is a high test is Re LA (Children)(Care: Chronic Neglect) [2009] EWCA Civ 882.  Scriven, Commissioner, referred to Re LA  in paragraph 15 of her judgment:-

"15.    In relation to the issue of H's removal from the parents we also have in mind the guidance of Thorpe LJ in the case of Re LA (Children)(Care: Chronic Neglect) [2009] EWCA Civ 882 at paragraph 7 when he restated the proposition expressed in earlier cases that separation is only to be ordered if the child's safety demands immediate separation or, put slightly differently, that ' ... at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection'.  We bear in mind the fact that when considering whether a child's welfare requires immediate removal, safety should be regarded in a broad sense which may include psychological welfare as well as physical harm Re B (Care Proceedings: Interim Care Order) [2010] 1 FLR 1221.

16.      We also take into account that where the issue is whether or not the child should be removed from home during the interim period, the risk of harm is a "two-sided coin" and the Court must have regard to the detriment in being separated from the home as well as the risk of harm remaining there Re M (Interim Care Order: Removal) [2005] EWCA Civ 1954; [2006] 1 FLR 1043."

18.      Mr Godden drew our attention to a decision of the English Court of Appeal in Re F (Care Proceedings: Interim Care Order) [2010] 2 FLR 1455.  In that case, the mother had given birth to twins.  Her elder children had been taken into care and although it was accepted that the mother and father were competent to deliver good enough care to the twins in the interim and there had been no criticism of their care in hospital, the local authority was granted an interim care order committing the care of the twins to the local authority, the judge essentially deciding the final outcome of the case prematurely.  Quoting from the judgment of Thorpe LJ:-

"13.    Ms Szwed relies upon the decision of this court in the case of Re LA (Care: Chronic Neglect) [2009] EWCA Civ 822, [2010] 1 FLR 80.  This was the only authority to which the judge referred, albeit briefly, in her judgment.  This case establishes two propositions.  The first is that, on an application for an interim care order, the court should limit itself to issues that cannot await the trial and must not extend to decide issues that are being prepared for trial at that final hearing.  The second proposition is that separation is only to be ordered if a child's safety demands immediate separation.

22.      So, for me, the judge has fallen into error.  She focused on the issues that will fall to be addressed at the final hearing.  She has too much concluded that the history is in itself the determination of the interim care order.  She has thereby breached the first of the propositions in Re LA (2009) EWCA Civ 822, [2010] 1 FLR 80.  Secondly, her identification of the risk of emotional harm does not, in my judgment, meet the high test that is there in the second limb of Re LA.

23.      Rhetorically I ask, what are the risks to the safety of the twins that demand their immediate separation?  In a case in which there are no welfare concerns, no doubt as to the parents' ability to care for the twins on a day-to-day basis, given their very tender age, given the fact that there will be a final hearing in the autumn, it seems to me that the judge's elevation of emotional harm to justify the making of an interim care order for separation of parents and children does not begin to meet the high threshold set by the authorities in this court.  So for those reasons I would set aside the interim care order."

The mother's case

19.      The mother denied that she had a problem with alcohol.  Her relations with her neighbours were not good.  The police had been called out by the neighbours on a number of occasions alleging that she was intoxicated, only to find that she was not; as confirmed in Miss Stark's report.  She was now willing to attend the Drugs and Alcohol Service but did not wish to take D with her and therefore needed to have him looked after when she was there.  She would also co-operate with the assessments.  She was willing, in order to prevent the children being placed with strangers, to go and live at the Women's Refuge with the children whilst these assessments were carried out.  That would be better, in her view, than the children being placed with strangers.  She denied her mother's suggestion that she was schizophrenic but did say that she suffered from paranoia.

20.      As Mr Godden acknowledged, there are issues over the mother's ability to care for her children, as is clear from the above.  But all was not quite as dark as might appear.  The family service worker had been visiting regularly since September 2010.  From her logs, it would appear, as Miss Stark accepted, that things had improved and the children were physically well.  There were no educational concerns.  C attended a local primary school nursery and D attended occasionally a local nursery.  C had health problems in the past, in particular involving convulsions with which the mother appeared to cope appropriately, although there were issues over her attending follow up appointments.

21.      It was clear from the mother's evidence that the children have an appropriate routine and are properly fed.  With the ongoing support of the family service worker, there would appear to be no issues as to their physical needs, certainly in the relatively short period between now and the final hearing.  Thus while the children's physical and educational needs were being met in the short term, Mr Godden submitted that their emotional needs could not be assessed at this interim stage and we should not fall into the trap of the Court in Re F by trying to determine those issues which fell to be dealt with at the final hearing, when the Court would have the benefit of the assessments that would have been carried out.  In any event it was clear from Re F that emotional harm was not enough to meet the high test in Re L.

22.      The children had always lived with the mother.  Placing them now with foster carers for what might be 3 to 4 months and restricting contact to 4 days a week of 1½ hours each day would be a significant change for them.  The Court, he said, must consider very carefully the other side of the coin, namely the emotional harm done to the children by such separation.  In Re QQ, the Court refused separation of a 3 month old baby on an interim basis having balanced the emotional harm the baby would suffer if removed against the risk of physical harm.  The circumstances of that case are, of course, different but the Court had the benefit of expert advice which stressed the harm caused by a disruption of the bonding process and the effect of separation anxiety.  In this case, we are dealing with young children but we have no advice to guide us on the emotional harm that would be caused by a separation.  In his submission, the status quo with the children living at home should be maintained in the short period between now and the final hearing.

Decision

23.      By reference to the welfare checklist set out in Article 2(3) of the Law:-

(i)        The children's wishes - D is too young to express any feelings and it must be presumed that C would want to remain with her mother.

(ii)       The children's physical, emotional and educational needs - Notwithstanding the background, the children's current physical and educational needs are being met.  The Court was in no position, absent expert advice, to assess their emotional needs.

(iii)      Effect of any change - The Court was concerned as to the emotional harm that separation from the mother would cause to the children.  It had no expert guidance to assist it, but common sense dictated that such a dramatic change in their lives could be emotionally harmful.

(iv)      Characteristics of the children - There was nothing about the children's age, sex or background or characteristics which the Court considered relevant over and above those already mentioned.

(v)       Harm or risk of harm - There have been two occasions in December 2010 and April 2011 in which the children had been taken into care for short periods and a period in May when they had been separated from their mother whilst they were with the brother (and grandmother) in Madeira.  We accepted Miss Stark's concern that such separations were damaging although we had no advice to assist us in assessing how damaging.  If the mother did have a drink problem, which she denied, then that too was a serious concern.  At this stage the Court could go no further than the threshold test, namely that there were reasonable grounds for believing that they had suffered or are suffering harm.

(vi)      Capability of parents - The mother is capable of meeting the children's needs but the Children's Services have serious concerns, which we shared, as to the consistency of the children's care and the mother's erratic behaviour.

24.      We had to be satisfied, applying Re LA, that the childrens' safety "demanded" or "required" their removal now, notwithstanding the emotional harm that, even without expert advice, we felt could be caused by such removal and this over the relatively short period between now and the final hearing. In Re QQ the Court was concerned with physical abuse by the parents as a by-product of domestic violence. There was evidence of bruising and allegations of rough handling and physical chastisement.  In the case before us there is no suggestion that the mother physically abuses the children.  She is no longer in a relationship with the father and the children are not therefore exposed to that relationship.  Even when in December 2010 she did on her own admission drink to excess, we note that it was she who called for help with the children.

25.      The key concern in our view is that, as Miss Stark says in paragraph 83 of her report, whilst there have been times of good parenting, this has not been sustained sufficiently to guarantee the children are developing as well as they should i.e. that their emotional development is being affected.  In our view this was a matter for the final hearing but at this interim stage, we were not persuaded that the high test in Re LA had been met.

26.      We accepted that the children's welfare necessitated the granting of an interim care order, so as to give the Minister shared parental responsibility for them with the status and safeguards set out in the care plan but based upon the children staying with the mother. 

Authorities

Children (Jersey) Law 2002.

In the matter of PE and PH [2009] JRC 206A.

In the matter of QQ [2010] JRC 217E.

Re LA (Children)(Care: Chronic Neglect) [2009] EWCA Civ 882.

Re F (Care Proceedings: Interim Care Order) [2010] 2 FLR 1455.