Jersey Unreported Judgments

Child custody - application by the minister for a supervision order in relation to O.

[2011]JRC226

Royal Court

(Samedi)

25 November 2011

Before     :

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

 

IN THE MATTER OF O

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

Advocate V. Myerson for the Minister.

Advocate S. A. Franckel for the Mother.

Advocate G. A. H. Baxter for the Father.

Advocate B. J. Corbett for O (the Child).

judgment

the Commissioner:

1.        On 7^th November, 2011, the Court made a supervision order pursuant to Article 24 of the Children (Jersey) Law 2002 ("the Law") putting O, (who we will refer to hereafter as "the child") aged 3, under the supervision of the Minister. 

2.        An interim care order was granted in respect of the child on 15^th January, 2010, following the release of her parents from HMP La Moye, in the light of the heroin use of the mother and criminal activities of the father, which the Court was satisfied provided reasonable grounds for believing that the circumstances in respect to the child were those mentioned in Article 24(2) of the Law. 

3.        The child was initially placed in foster care with daily contact being promoted in accordance with the plan agreed by the parties.  Rehabilitation to the care of the parents took place successfully and the child returned to their care on 19^th July, 2010.  A second child, C, was born on 6^th October, 2010, and the family have remained living together since that date, save for a period of approximately 4 months, when the father was remanded in custody and the children remained in the sole care of the mother. 

4.        Delay has taken place in this matter as a result of the mother falling pregnant with C, and it being agreed that the final hearing should be adjourned to allow the mother and father a period of time to demonstrate that they were able to care for two young children.  A second delay was occasioned due to the father being arrested and charged with grave and criminal assault on 2^nd November, 2010, and being remanded in custody.  It was agreed that the final hearing date set down should once again be adjourned to await the conclusion of the criminal proceedings.  The father pleaded not guilty and was granted bail on 4^th March, 2011.  On 17^th May, 2011, the Crown offered no evidence upon the basis that a prosecution witness was not prepared to give evidence.  A directions hearing took place on 25^th May, 2011, at which the Court ordered that a fact finding hearing in respect of the criminal allegations was not necessary ([2011] JRC 111) and the final hearing was set down to take place from 27^th - 29^th July, 2011. 

5.        On 27^th July, 2011, the matter was further adjourned as a result of the initial hair strand screening for the parents indicating that both had tested positive for illicit drugs.  Whilst those initial results were not conclusive evidence of misuse of illicit substances, they were clearly of concern.  The final hearing was therefore adjourned to await the final test results.  In the light of these provisional findings the parents volunteered admissions in respect of the limited misuse of opiates, the mother on two occasions and the father on one occasion, when he was in prison.  Surprisingly, in the light of these admissions, the final test results were in fact negative for illicit drugs and we will comment on this later.  

Threshold criteria

6.        All the parties had signed a threshold document produced by the Minister, in which they agreed that the threshold criteria as set out in Article 24(2) of the Law were satisfied.  In the light of that agreement, the Court felt able to proceed with a more limited inquiry.  The mother's drugs misuse, in particular of heroin, and the father's criminal conduct have resulted in the child's neglect, exposure to illicit substances; exposure to violence by the parents against the police and to emotional abuse, leading the experts to classify her as an infant with an insecure attachment style.  As a result of both parents' incarceration and the mother's substance misuse, the child had been placed in voluntary care and had therefore experienced separation anxiety which has had a harmful impact upon her development.  Suffice it to say for the purpose of this judgment that the Court was satisfied that the threshold criteria were met.  

Welfare Stage

7.        The Court went on to address the second welfare stage of the decision-making process, namely whether an order should be made and if so, what type of order.  The Court's approach to this stage is well established, namely that it must apply the principle that the child's welfare is paramount, apply the statutory welfare check list, consider the no order principle, consider contact and scrutinise the care plan.  Finally, it must have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.  

8.        In this case, the parties again were in agreement that the appropriate order for the Court to make was a supervision order.  The child had been with the parents continuously for 14 months.  They were implementing the parenting advice given to them on a consistent basis and O was reported as thriving and being happy and content with her parents.  The home conditions were clean and tidy and no drugs or drug paraphernalia had been observed during home visits.  Quoting from the Looked After Child Review:-

"Her development is excellent.  She has clear speech and good understanding of language.  O is very expressive and is able to use imaginative play well.  O is always clean and well presented at my visits and appropriately dressed.  I have not observed the attention seeking behaviour during my recent visits which I had previously observed."

9.        The nursery school is happy with the child's progress and has no current concerns about punctuality or otherwise.  C is similarly doing well.  In short, as Mr Franckel put it, there is a transformation in the lives of the parents.  Their relationship appears to be stable and they have successfully completed the Community Service Orders, Probation Order and Treatment Orders that were imposed upon them.  

10.      However a note of caution is necessary.  As the guardian noted, the parents have not always demonstrated a willingness to accept the legitimate concerns of the authorities or to fully engage with the Children's Services and they have continued to express the view that they want to be free to get on with their lives without interference. 

11.      Both parents have made these changes in a relatively short period of time and given the level of concern that was present and that the child had suffered significant harm as a result, it was felt that there needs to be a further period of monitoring and support, using a supervision order.  This would enable the Children's Service to help ensure that the change was maintained.  

12.      The risk, as Laura Stark, the social worker, put it is that the parents return to their previous life styles in which case both children could suffer neglect, physical harm or emotional harm.  There had been limited lapses in terms of the taking of heroin in the past 6 months, but this had not impacted upon the child's care and there had been no referrals.  The mother in particular has significantly addressed her former chronic dependency on both illicit and licit drugs since her imprisonment and for this, as the guardian says in his report, she is to be congratulated.  The guardian describes them as a young family who show every indication that they wish to succeed, are succeeding in many respects, but matters remain a little fragile.  As he says:-

"However more time is needed to consolidate these very positive developments with a safety net of children's services in the background complimenting the support of the wider family.  At this time the parties all appear to agree that Children's Services have a role to play."

13.      As previously stated, a concern arose as a consequence of the hair strand tests carried out on the parents which had provisionally tested positive in the case of the father for amphetamines, Benzodiazepines and opiates and for the mother for Benzodiazepines and opiates but the final test results were entirely negative for the father and positive for the mother for Diazepam (which she was being prescribed).  The father had also been prescribed Diazepam continuously from March 2011 through to the hearing and the negative final result in that respect for him was surprising.  If he had not been taking the Diazepam which had been prescribed to him, which has a street value, was he supplying it to others, which might indicate a return to his previous life-style to which the child had been exposed?  

14.      The Minister had sought an explanation from the University of Glasgow who carried out the tests as to the surprising difference between the provisional and final results and it is best if we quote from their response:-

"Screening tests are generally carried out by means of immunoassay methods.  These act on an antigen-antibody interaction when specific drugs (antigens) bind to sites within a screening plate and cause a colour reaction.  In addition to the desired antigens (drugs) other substances can interact with the analysis causing a false positive test result.  

In addition to this, where a drug and its metabolites are present, they all have the potential to bind to the antibody sites thereby causing a cumulative response, e.g. diazepam has 3 main metabolites namely desmethyldiazepam, temazepam and oxazepam.  If all 4 substances were present at low levels they would add together to create a potential positive immunoassay response.  This is similar for the opiate group of drugs.  When the confirmation analyses are then carried out the individual drugs are evaluated i.e. diazepam, desmethyldiazepam, oxazepam and temazepam are looked at as individual substances and not as a cumulative response.  Therefore very low levels of these substances may not be detected by the confirmation test.  

What can be inferred from the above statement is that the screening tests may be more sensitive for a "group" of drugs however they are not specific.  Confirmation tests are in general more sensitive and are specific for individual drugs within a group."

15.      If the mother had taken heroin on only two occasions it was likely, they advised, that this infrequent use would have been removed from her hair by routine hygienic washing and that the false positive screening results were as a result of cumulative drugs response (heroin and its metabolites and by-products).  They conceded that it was more unusual that diazepam had not been detected in the father, who had been taking it on a regular basis.  

16.      However, the father provided a specimen of urine for analysis by the official analysis laboratory on 12^th October, 2011, and that had detected diazepam.  This somewhat unsatisfactory position could not be taken any further but it underpinned the desirability for the ongoing involvement of Children's Services. 

17.      The care plan envisages the child remaining in the full-time care of the parents with the support of the Children's Services; that support being underpinned by a supervision order for a period of 12 months.  The care plan could be managed by voluntary agreement with the parents, but if the parents decided not to engage, there would be nothing the Children's Services could do unless any future referrals or assessments indicated that the child was suffering significant harm justifying the initiation of fresh care proceedings.  None of the parties submitted that "No Order" was appropriate in this case and we agreed.  The risks to the child identified by the recent history are such as to discount a "No Order" as the appropriate way forward. 

18.      A family assistance order can be similarly discounted, because it can only be made for 6 months and there is no provision for its extension.  We agree with the parties that this is too short a time frame when taking into account the risks identified. 

19.      The real choice therefore was between a care order and a supervision order. 

20.      The difference between a care order and a supervision order was explored in the case of In the matter of R [2010] JRC 118, in which the judgment of Coningsby QC in Re S (J)(a minor) Care or Supervision Order (1993) 2 FLR 919 was cited with approval.  As made clear in the latter case, the fundamental difference between the two orders is that with a care order it is the Minister who has to undertake the safeguarding of the child, whereas in the supervision order, it is the parents.  Quoting from the judgment at page 950:-

"That is a fundamental difference between these two orders.  In the one case it is the local authority which has to undertake the safeguarding of the child, in the other case it is the mother. 

Looking at this case: should I leave it to the mother with all the pressures that she is under to keep safe this child?  Can I be sure that she will do it?  Or is not this a case where I should say to the local authority: 'This is a mother who has got difficulties, she is under pressure from this man who is living with her who has been violent in the past - the local authority must now undertake this duty, it must take over as the effective parent and keep safe this child and, in particular, look at the case very frequently, almost day-to-day if necessary at the critical period and constantly be asking, as the regulations require the local authority to ask: is this still a safe placement?  And to keep on asking that question?'

It is quite a different concept to be supervising the mother in her keeping safe of the child on the one hand and, on the other hand, the social worker actually knowing that he or she has got to make that decision literally on a day-to-day basis to keep safe the child. 

We tend to look at supervision orders and care orders under the same umbrella because the threshold criteria for the coming into operation of the two is the same.  But when we actually look at the content of the two orders we find that they are wholly and utterly different.  This is because of s 22 [equivalent to Article 19 of the Law] and because of the passing of parental responsibility.  Supervision should not in any sense be seen as a sort of watered down version of care.  It is wholly different."

21.      As Laura Stark makes clear in her report, the parents have been making the day to day decisions for the child since July 2010 and the Minister is not currently using the parental responsibility inherent in the interim care order.  Furthermore the care plan does not require the Minister to exercise any parental responsibility.  The progress made by the family is such that this is not a case where the Children's Service believes that things could occur so rapidly and so dangerously that it requires the ability through a care order to remove the child.  If matters do begin to deteriorate, then the Children's Service can implement further protection measures or even commence care proceedings again. 

22.      A supervision order may also be the best way of maintaining and developing the working relationship between the Children's Services and the parents.  In Re O (Care or Supervision Order (1996) 2 FLR 755, a case involving 6 children ranging from 9 down to 23 months, who had always lived with their parents and whom the local authority had no intention of removing from their parents, the local authority wanted to maintain the progress which had been made when working with the family and sought supervision orders, whereas the guardian ad litem wanted the Court to make care orders.  Hale J said this at page 762:-

"They also failed to address the issue of how best to develop and maintain a working relationship with the parents.  Given that the children are to stay at home, it must always be a difficult and delicate task to seek to gain the parents' co-operation, and to work with them in understanding the children's needs and meeting those needs.  There will be cases in which a care order may be the only way of achieving this; there will be other cases in which a supervision order is going to be the better approach, not least because the parents will perceive it as less heavy-handed, and this may be helpful rather than the reverse.  On that particular issue the social worker's evidence was that he could work with the family, and although the guardian expressed very serious doubts about the family's approach in the light of this, the social worker was the person who knew best how he would be able to approach working with the family."

23.      These observations are particularly relevant to the case before us where, as the guardian pointed out, a care order might well be regarded by the parents as punitive. 

24.      In Re D (Care or Supervision Order (2000) Family Law 600, a child had been removed from the care of the mother and placed with the father and the question arose as to whether the Court should make a supervision order as sought by the local authority or a care order, as sought by the guardian ad litem.  It was held as follows:-

"1. If the balance between a care order and a supervision order is equal, the court should adopt the least interventionist approach.  The court should ask itself whether:-

(a) the stronger order is needed to protect the child;

(b) the risks could be met by a supervision order;

(c) there is a need for the sort of speed of action that a care order gives a local authority;

(d) the father could protect the child without sharing parental responsibility with the authority;

(e) parental co-operation could only be obtained through the more Draconian order;

(f) the child's needs could be met by advising, assisting and befriending him rather than by sharing parental responsibility of him;

(g) there have been any improvements seen by objective observers during the current proceedings which would indicate the future, and the range of powers allotted to a supervision order, including its duration.  

2. Courts should not saddle local authorities with care orders when they have so many demands on their resources if it really is not necessary to do so."

Applying these useful steps to the facts of the case before us, each of them points to the making of a supervision order.  A care order is not needed to protect the child; the risks can be met by a supervision order; there is no need for the sort of speed of action that a care order gives the Minister; the parents can protect the child without sharing parental responsibility with the Minister; parental co-operation cannot only be obtained through the more draconian order; the child's needs can be met by advising, assisting and befriending her rather than by sharing responsibility of her and there have indeed been improvements seen by objective observers during the current proceedings.  Finally, we agree that we should not saddle the Minister with a care order when the Children's Services have so many demands on their resources and when it is really not necessary to do so. 

25.      Furthermore as made clear by Hale J at page 760 of In Re O, the legislature has provided the Minister with a wide range of powers to prevent children from suffering ill treatment or neglect and the Court should begin with a preference for the less interventionist approach unless there are cogent reasons to the contrary. 

26.      In the matter of EE [2011] JRC 178, Bailhache, Deputy Bailiff, expressed the view that supervision orders would not generally be contemplated in relation to children of the age of 4 and 2.  In that case, the Minister sought a care order and the mother had initially sought a supervision order although she ultimately rested upon the wisdom of the Court.  Quoting from paragraph 20 of the judgment:-

"It seems to us from the structure of the Law that the supervision order is designed for a different purpose - not for the purpose of transferring parental responsibility but instead, essentially, of advising, assisting and befriending the supervised child.  The provisions of Article 28 put the obligation on the supervisor to do just that, and Schedule 3 rather emphasises that the supervision order anticipates a different relationship between the Minister and child and, in an appropriate case the responsible person, than does a care order.  Thus the Schedule gives at clause 1 power to the supervisor to give directions to a supervised child, at clauses 3 and 4 makes provision for psychiatric and medical examinations of the child and treatment of the child, and generally anticipates a direct relationship between a supervisor and supervised child which is perhaps based upon having a more mature child than would necessarily be anticipated with the care order.  It is true that clause 2 of the Schedule, and indeed clause 6(2) envisages that the supervision order may also require things of a responsible person, who would be somebody other than the supervised child, and presumably the person who has parental responsibility in relation to that child - but the thrust of those obligations is to assist the supervisor in ensuring that the directions given by the supervisor to the supervised child are in fact performed and respected.  That highlights that the supervision order would not generally be contemplated in relation to children of the age of four and two."

27.      Mrs Corbett submitted that whilst it was possible that when the Children Act 1989 came into force it was thought that supervision orders were intended for older children for the reasons put forward by the Deputy Bailiff, there had been significant movement in the interpretation of the Act, with the English courts realising the utility of such orders for young children as well.  That it was the practice of the English courts to make supervision orders in respect of young children is borne out by the cases cited to this Court by Miss Myerson:-

(i)        In Oxford County Council-v-L (Care or Supervision Order) (1998) 1 FLR 70, supervision orders were made in respect of 6 children aged between 6 years and 2 months.  

(ii)       In Re S (J) supervision orders were made in respect of children aged 5 and 2. 

(iii)      In Re O, supervision orders were made in respect of children aged 9, 7, 6, 4, 3 and 23 months.  

(iv)      In Re K (Supervision Orders) [1999] 2 FLR 303, supervision orders were made in respect of children aged 5, 3 and 20 months. 

(v)       In Re D, a supervision order was made in respect of a child aged 6. 

(vi)      In Re C (Care Order or Supervision Order) [2001] 2 FLR 466, a supervision order was made in respect of a child aged 9 months. 

28.      It is not clear whether the observations of the Deputy Bailiff were the subject of discussion before the Court on that occasion, but certainly none of the above cases, save for Re S (J) were before him.  Re S (J) which he cited with approval, itself involved young children and there is no suggestion in the detailed analysis in that case of the differences between care and supervision orders that the latter would not generally be contemplated in relation to young children.  Whilst the Court will not necessarily follow English practice when construing equivalent legislation, we feel confident that if the English practice as illustrated by these cases had been before him, the Deputy Bailiff would not have sought to restrict the general use of supervision orders to older children.  It would be a pity, in our view, if such limitations were to be placed on a valuable tool available to the Court, which can properly be used to promote the welfare of children generally and enable the Children's Services and parents to work together in partnership without the use of the more draconian care order. 

The Supervision Order

29.      Whilst Article 24(1) of the Law gives the Court the power to make a supervision order, Article 28 provides for its effect:-

"Supervision orders

(1) While a supervision order is in force the supervisor shall -

(a) advise, assist and befriend the supervised child;

(b) take such steps as are reasonably necessary to give effect to the order; and

(c) where the order is not wholly complied with or the supervisor considers that it may no longer be necessary, consider whether or not to apply to the court for its variation or discharge.

(2) Schedule 3 makes further provision with respect to supervision orders."

30.      Schedule 3 sets out a number of additional powers which may be conferred by the Court when making the supervision order, in particular paragraph 6 (1)(b) and (2)(b), none of which were sought by the Minister in this case.  One consequence of this is that the Minister would be unable to apply to the Bailiff for a warrant pursuant to Article 78(1)(b) of the Law.  However the supervision order could be varied in the future to allow for this, Article 33(2) providing that a supervision order may be varied or discharged by the Court on the application of any person who has parental responsibility, the child or the supervisor. 

31.      Article 5(1) provides that a supervision order shall cease to have effect at the end of the period of 1 year beginning with the date on which it was made, but the supervisor may apply for its extension for a period which cannot run beyond the end of the period of 3 years beginning with the day on which it was made.  Accordingly we made the supervision order for a period of one year. 

32.      In her report, Laura Stark set out a number of conditions which the Children's Services sought to have imposed on the making of a supervision order.  Counsel agreed with the Court that there was no provision within the Law enabling the Court to impose conditions on the granting of a supervision order but the Court could take note of the steps required so as to give effect to the order which in this case were as follows:-

"3(i)     The Family Support Worker to continue to work with the mother and the father around supporting their parenting, to be reviewed every three months;

(ii)       The Health Visitor to visit as and when she feels necessary and the parents to attend all health appointments for the children including audiology;

(iii)      The parents to desist from further involvement in criminal or anti-social behaviour including drugs misuse by themselves or others and Children's Services to be informed of any further involvement by the police;

(iv)      The child to attend nursery on a regular basis until she reaches the compulsory school age in September 2012;

(v)       An allocated Social Worker to be made available to the family for at least 12 months, the parents to allow access to the children as and when requested and visits to be conducted at least once every 3 months;

(vi)      In the event of further incidents of parental separation, drug misuse or further criminal charges brought which risk re-incarceration against the mother and/or father a core assessment to be updated as to O's needs;

(vii)      The allocated Social Worker will consider any requests to support activity outside nursery term time."

33.      At the suggestion of the guardian, the parents had given the Minister a number of helpful undertakings as follows:-

"(i)       That they shall fully cooperate with the Minister in the exercise of her duties.  This shall include allowing the Children's Services full access to their home, both by unannounced visits and by appointment;

(ii)       That they shall make disclosure to the Children's Service of any information which is relevant to the welfare of the child.  This disclosure shall include information relating to any relapse or risk of relapse into drug misuse;

(iii)      That they shall attend such support services and appointments deemed necessary by the Minister, for example, attendance at The Bridge;

(iv)      That they shall undertake further tests relating to drugs and alcohol on a frequency to be agreed."

The fact that they had volunteered these undertakings reinforced the view of the Court that the more draconian care order was unnecessary in this case.  

34.      The draft order prepared by Miss Myerson noted that Laura Stark or such other social worker as the Minister shall designate from time to time shall be the supervisor.  However, Article 24(1)(b) of the Law is explicit in stating that the supervision order places the child under the supervision of the Minister, and it is the Minister therefore who is the supervisor.  Accordingly, the Court noted that Laura Stark or such other social worker that the Minister shall designate from time to time was the allocated social worker. 

Authorities

Children (Jersey) Law 2002.

In the matter of O [2011] JRC 111.

In the matter of R [2010] JRC 118.

Re S (J)(a minor) Care or Supervision Order (1993) 2 FLR 919.

Re O (Care or Supervision Order (1996) 2 FLR 755.

Re D (Care or Supervision Order (2000) Family Law 600.

In the matter of EE [2011] JRC 178.

Children Act 1989.

Oxford County Council-v-L (Care or Supervision Order) [1998] 1 FLR 70.

Re K (Supervision Orders) [1999] 2 FLR 303.

Re C (Care Order or Supervision Order) [2001] 2 FLR 466.