[2011]JRC218
Before : |
J. A. Clyde-Smith, Esq., and Jurats Tibbo and Nicolle. |
IN THE MATTER OF Q
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002.
Advocate C. R. G. Davies for the Minister.
Advocate N. M. Santos-Costa for the Child.
judgment
the commissioner:
1. On 21st October, 2011, the Court granted the Minister's application for a secure accommodation order in respect of Q, who is 14 years of age. We now set out our reasons.
2. Q was made the subject of a care order on 3rd December, 2010. That order was the subject of a judgment of the Court dated 3rd February, 2011, ([2011] JRC 031) which sets out the reasons and the background which we will not repeat here, but suffice to say that the Court expressed itself as dealing with a young person who was beyond parental control and with a high level of emotional control and behavioural needs. During the course of those care proceedings, Q had been made the subject of secure accommodation orders in January, April, July and November 2010.
3. Much hope was based upon Q's anticipated integration back into mainstream schooling at J and her move to K which was in the process of refurbishment into a small group home where she could receive the kind of reparative experience required.
4. The move to K took place on 18th August, 2011. According to the report from K, Q had the pick of the bedrooms and it was decorated with the colours of her choice prior to her taking up residence. She was fully involved in putting together the house rules and designing the contents of the young persons' "chill out room". Although initially she was keen to have a fresh start at K and put the difficulties she had experienced whilst residing at F behind her, this positive attitude was unfortunately short lived. Quoting from the report:-
"Q reverted to flouting the house rules: she found it increasingly difficult to stay in house when she was supposed to, on occasions walking out without permission in the small hours of the night for periods of time up to 2 hours. She has refused to get up and attend school despite every effort made by staff. Q is rarely present for pre-arranged pickups following her time out with friends and then calls staff to be collected some hours later and even then does not always turn up for the lift."
5. The report of Laura Stark, the social worker, of 12th October, 2011, details Q's conduct from April 2011 through to shortly before the application before us and in short Q continues to be beyond control, absconding frequently (and at night), being suspended from school (she is now permanently excluded), conducting herself in an abusive and threatening manner towards staff at K and teachers at school, involving herself in a sexual relationship, increasingly using alcohol, self-harming, barricading herself in her room and being convicted twice of assault. As Laura Stark put it in her report the only way to safeguard her is by placing her in secure accommodation where she will be physically prevented from absconding and from engaging in behaviour which puts herself and others at risk.
6. Q, through Mr Santos Costa, accepted the accuracy of Laura Stark's report save in two respects:-
(i) She denied that she had personally set off a fire alarm or a fire extinguisher at an incident on 10th October, 2011, when she had barricaded herself into her room and
(ii) She denied that she had ever threatened to fabricate evidence or make false claims against the staff at K. However she did not deny pointing out that she would not hesitate to make a complaint if she felt that there had been an assault or any other form of abuse.
In so doing, Q acknowledged that she has a history of absconding.
7. However, Mr Santos Costa submitted that there was no evidence that Q had suffered significant harm from her absconding in the past and accordingly there was no persuasive argument that she would be likely to do so in the future. Whilst accepting that she can become enraged and act in a hostile way, she is learning he said to recognise that this is wrong and absolutely denied that she would injure herself or others.
8. The predicament faced by the staff at K is well illustrated in paragraph 33 of the guardian's report:-
"33. The staff at K are in a very difficult position. When Q is determined not to stay in their care whatever the time of day or night they will do all they can to stop her going. They cannot physically restrain her; if they stand near the door she will leave by the window. If Q is in touch by mobile phone then they can at least keep in touch with her and know that she is safe. They will go out during the night and pick her up and bring her back however, this creates some difficulties and paradox. On the one hand, they encourage Q to stay in touch and want to show that they care by collecting her, on the other this gives Q a sense that this is acceptable and an entitlement thus confirming her view that she can choose what she does, where she goes and when all this occurs. I do believe that the staff at K have done everything in their power to help Q to turn these behaviours around. Nothing or no-one can force any help on to Q until she comes to a position where she understands the need to accept the plentiful help being offered."
9. The Guardian went on to say this in relation to the granting of a secure accommodation order at paragraph 39:-
"Her sexual relationship with her (ex) boyfriend, her lack of educational placement currently and the fact that she now has convictions for assault must also be of serious concern to the Court. If a secure accommodation order was made this would keep her safe from these influences and prevent her being able to go where she pleases for as long as the Order lasts. However, history suggests that it will not address the heart of the problem, unless Q chooses to accept that she needs help to change her behaviour. Q needs to understand that there are those who will care for her no matter what behaviour she, sometimes literally, throws at them. She needs to understand that to prevent her doing what she wants is not punishment but a sign of care. Whilst it is finely balanced, and I can understand the professionals taking the action that they have, I am not convinced that a secure accommodation order will provide a positive forum to address these issues. I am concerned that Q has learned that if she behaves appropriately during these orders things will go well but as soon as she is aware the sanction has been removed then she responds by returning to her previous behaviour patterns believing that nothing can be done to stop her."
10. The Guardian acknowledged that the fact that Q was away from K for long periods of time was very worrying and accepted in cross examination that when this occurred she did put others at risk.
11. Mr Santos Costa submitted that even if the grounds for granting a secure accommodation order under Article 22(1) of the Children (Jersey) Law 2002 ("the Law") were made out, the decision still had to be taken as to whether a secure accommodation order should be made. The Guardian and the mother also appeared to proceed on the basis that the Court had such a discretion.
12. The Minister had endorsed an addendum care plan dated 21st October, 2011, authored by Matthew Davies, a social worker. Being acutely aware that the issue of contact was important for Q and her mother and stepfather, the Children's Service wished to afford them an opportunity to evidence their commitment and dedication to ensuring contact arrangements are progressive, involving three incremental stages whereby the conclusion would be three overnight stays per week and additional daytime contact within the school holidays. This gradual increase of contact would take place initially at G and progress when it is felt that Q is ready to be reintegrated into the community. During the first month, Q will be allowed no direct or indirect contact with any of her friends or acquaintances in order to afford an opportunity to develop significant and meaningful relationships with her allocated residential key worker and co-key worker. The plan states that Q has a significant role to play in recognising the impact her behaviour has had on the residents of K and the members of staff who desperately wish to care for her and support her in achieving the very best of her potential and Q must recognise that with the progressive contact arrangements with her family will come naturally progressive freedom and with freedom comes greater responsibility.
13. Q had reacted positively to this addendum care plan but Mr Santos Costa argued on her behalf that it could be implemented from K without recourse to a secure accommodation order.
14. Q expressed to the Court views very similar to those expressed on 3rd December, 2010. She wanted to be integrated back into her family and to be given the chance to make the new addendum care plan work but from K. She said she would behave at K and attend school. She had written to the staff at K apologising for her behaviour.
15. Mr Santos Costa asked what a secure accommodation order would achieve apart from punishing Q (in her eyes). The answer was provided by Matthew Davies who gave evidence before us. Q is strong-willed and expects to get what she wants when she wants it. The Children's Service needs her "on board to invest in the care plan". If a child is able to run away, it is not possible to parent. The secure accommodation order brought Q metaphorically to the table from which she could not walk away. The addendum care plan backed by the secure accommodation order was the best way forward and the only means to keep her safe. In terms of parenting, safety was paramount and it was just not acceptable for her to be able to do as she wished.
16. The grounds upon which such an order can be made are set out in Article 22(1) of the Law which is in the following terms:-
"22 Use of secure accommodation
(1) Subject to the following provisions of this Article, a child who is being looked after by the Minister may not be placed and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears -
(a)
(i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and
(ii) if the child absconds, he or she is likely to suffer significant harm; or
(b) that if the child is kept in any other description of accommodation he or she is likely to injure himself or herself or other persons."
17. However, Article 22(3) goes on to provide as follows:-
"(3) The court hearing an application under this Article shall decide whether the necessary criteria for keeping a child in secure accommodation are satisfied and if so it shall make an order -
(a) authorizing the child to be so kept; and
(b) specifying the maximum period for which the child may be so kept." (Our underlining).
18. The role of the Court is to decide whether the criteria set out in Article 22(1) of the Law are met and if so, it is then required to make an order; it has no discretion to do otherwise. This is consistent with the fact that the child is in the care of the Minister and not the Court and it is the Minister who is required to safeguard and promote the child's welfare. Article 22 of the Law places a restriction upon the Minister's parental powers so that the Minister may not restrict the child's liberty through the use of secure accommodation unless the Court is satisfied that the criteria are met.
19. Looking at the criteria there is no question that Q has a history of absconding and in view of that history it would be naïve of us in the extreme to accept her word that if she returns to K she will not be likely to abscond again.
20. As to whether she is likely to suffer significant harm, Birt, Bailiff said this on 1st December, 2009, when the Court imposed an interim care order:-
"It only has to be asked whether it is safe for a 12 year old girl to be absconding in the company of others and drinking and committing criminal offences to satisfy oneself that she is at risk of significant harm. We are satisfied that if no order is made that is a real risk and she is likely to continue to be out of control, to abscond, to commit further offences and generally to be at significant risk of physical harm as well as emotional harm". `
21. Q is now 14 (but only 14) and you only have to look at the history this year as recited in great detail by Laura Stark to be quite satisfied that if she absconds she is likely to suffer significant harm. We find it difficult to see how any reasonable tribunal could reach any other conclusion. It is equally clear that the alternative applies here, namely that if she is not kept in secure accommodation she is likely to injure herself or other persons. The suggestion that at 14 Q had become streetwise and would protect herself against harm did not impress us.
22. We found that the criteria were satisfied and therefore we were required to and did impose a secure accommodation order.
Duration of the Order
23. Under Article 22(3), the Court does have discretion as to the maximum period for which any child may be kept in secure accommodation. Under the provisions of Article 3(1) of the Children (Secure Accommodation)(Jersey) Order 2005 ("the Order") that period cannot exceed three months.
24. The mother told us that she could see Q coming home again. She listens now which was important and she got on with the mother's other children. They were generally pleased with her behaviour at home. The mother had worked well and closely with Children's Service playing a major role in Q's life. She felt that the secure accommodation order, if imposed, should be for no more than two weeks. There were in particular family arrangements over Christmas including Q's birthday that she did not want her to miss. The Children's Service sought the full three months permitted by the order to enable the addendum care plan to succeed.
25. Having listened to Q and to the mother, we determined however that a duration of two months was appropriate ending as it would on 21st December, 2011. We felt that this would give Q some light at the end of the tunnel and an incentive to work towards the addendum care plan, noting that under Article 3 of the Order the Court could, on the application of the Minister, order Q to be kept in secure accommodation for a further period not exceeding six months.
Contact
26. The Minister applied for the minimum contact order imposed on 3rd December, 2010, to be lifted so that contact could be arranged on a flexible basis, bearing in mind his obligation under Article 7 of the Law to allow reasonable contact. The application was opposed by the mother and Q. After consideration we determined to suspend the minimum contact order during the period of the secure accommodation order on the basis that the minimum contact order can be reviewed at the termination of the secure accommodation order in the light of the circumstances then prevailing.
Authorities
In the matter of Q [2011] JRC 031.
Children (Jersey) Law 2002.
Children (Secure Accommodation)(Jersey) Order 2005.