Jersey Unreported Judgments

Care order - application for increase in contact.

[2012]JRC044

Royal Court

(Family)

28 February 2012

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Clapham and Crill.

 

IN THE MATTER OF W AND J

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

Advocate D. Gilbert for the First Applicant.

Advocate P. S. Landick for the Second Applicant.

Advocate C. R. G. Davies for the First Respondent.

Advocate H. J. Heath for the Second Respondents.

The Third Respondent did not appear and was not represented.

judgment

the bailiff:

1.        This is an application for an increase in contact with two children who are presently the subject of full care orders in favour of the Minister.  The Minister agrees to a modest increase in the existing level of contact but not to the extent requested by the applicants and recommended by the Guardian.  It is envisaged that any variation in contact will take effect pending a decision as to the long term future of these two children, which is expected to be taken at a hearing towards the end of May 2012.  

2.        At the conclusion of the hearing, the Court made an order for increased contact broadly in line with that recommended by the Guardian and said that it would deliver the reasons for its decision at a later date.  The Minister has now asked for these reasons as a matter of urgency so that she may consider whether to appeal against the Court's decision.  

The background

3.        We are concerned with two children.  W was born in 2008 and is therefore just over 3.  He is the son of A (to whom we shall refer as "the mother") and B.  The second child is J who was born in 2010 and is therefore now just over one and a half.  He is the child of the mother and D.  We shall for convenience refer to the mother and D jointly as "the parents" albeit that D is not of course the father of W.  B has some contact with W at present and that is not affected by this application; hence his non participation in this hearing. 

4.        The case has a complex history.  It is not necessary to recount it in detail but some reference to it is essential in order to put the present application in context. 

5.        The mother comes from a severely dysfunctional family which has been well known to the Children's Service for many years.  By contrast, D and his family have not been known to the Children's Service other than in connection with these proceedings. 

6.        The mother is now nearly 22.  When she was about 15, she complained that she had been sexually abused by her father, C from the age of about 5.  A friend of hers made a similar complaint.  However she did not ultimately maintain this complaint and no prosecution was brought at that time.  Following the death of C's wife, he assumed sole care of their seven children.  The Children's Service continued to have regular contact with the family and it was clear that their upbringing was dysfunctional.  

7.        In August 2008, the mother's younger sister E alleged sexual abuse by C from the age of four until the mother had made her disclosure.  In September 2008 C was arrested and charged with sexual offences against E and a young female friend of hers.  By then the mother was over 18 but emergency protection orders were made in respect of her three younger brothers.  Full care orders have since been made.  C was subsequently sentenced to 4 years' imprisonment. 

8.        W was born in October 2008.  There were considerable concerns as to the mother's parenting skills and whether she was bonding appropriately with W.  Eventually on 5th February, 2010, an interim care order was granted in respect of W and he was removed to foster care.  

9.        J was born in 2010 following the commencement of the mother's relationship with D.  They remain together.  An interim care order was made in respect of J on 3rd August but he has remained in the day to day care of the mother and D since the making of that order.  

10.      Following the making of the interim care orders the parents lived with D's mother for a while until October 2010 when they moved into their own accommodation.  J remained with them throughout.  

11.      W remained with foster carers but staying contact with the parents was introduced from 8th November and on 29th November, 2010, he returned to live with them and J.  

12.      The Minister's application for final care orders had been due to be heard on 29th November, 2010.  However, in the light of these developments, that application was adjourned.  Nevertheless, on that date, the Court held a hearing to consider whether the threshold criteria required for making a care order were met.  A threshold statement agreed by all the parties was produced and the Court duly declared that the criteria were met.  The threshold statement in respect of W agreed that it was more likely than not that W had suffered (or would be likely to suffer) harm as of the date of the interim care order in three ways, namely neglect, emotional harm and the potential threat posed by C. 

13.      In relation to neglect, examples were given in the threshold statement.  In essence they related to matters of hygiene and tidiness as well as the lack of a settled environment at a time when the mother and D were staying with W in various locations in England and Scotland prior to the interim care order.  It also related to the mother's failure to work constructively with the Children's Service and others involved. 

14.      In relation to emotional abuse, this was summarised in the statement as follows:-

"Although A loves W, it is apparent that her own difficulties have at times caused her to withdraw from him and/or to behave in a manner towards him that has been emotionally harmful.  There have been significant concerns for A's emotional health which continued into her second pregnancy.  

The Minister accepts that A thought that she was caring for W properly and notes that she now accepts that this was not the case.  The Minister accepts that A is now shocked and saddened by the lack of care that she provided for W leading up to January 2010."

15.      In relation to the risk posed by C, this related to the fact that he was an untreated sex offender, that there had been a lack of sexual boundaries within the family as the mother was growing up and that C exercised a strong emotional influence over his children. 

16.      In relation to J, the threshold statement was based entirely on the risk of suffering harm and in essence that risk was based upon the same facts and issues as applied in respect of W.  The Minister accepted however that, following his birth, the mother and D appeared to have bonded well with J.  

17.      The Minister's application for final care orders in respect of both W and J came before the Court on 22nd March, 2011.  All parties were agreed that final care orders should be made but the Care Plan for both children envisaged their continuing to live with the parents.  The Court duly made final care orders. 

18.      In view of what has occurred since then, it is worth quoting certain observations from the papers presented to the Court at that time.  Both the Guardian and Sarah Jenner, the social worker in the Children's Service who had had responsibility for the children, spoke in glowing terms of the dramatic change in attitude of the mother in the period since the interim care orders had been made.  Thus Miss Jenner summarised the position in her report of 18th February, 2011, as follows:-

"82. It is my professional opinion that A has shown capacity to change as well as indications that she can sustain that change.  The positive advances in A's parenting do not appear superficial changes but appear underpinned by a genuine maternal nature which is becoming more and more apparent.  It is acknowledged that in the context of W's life history the period of sustained change remains relatively short, however the evidence to date is promising.  

83. A's positive and constructive engagement with the Children's Service as well as renewed involvement with the services such as the Health Visitor has enabled guidance and support to be offered and, importantly, accepted by A.  This has enabled continued progress as A is open and receptive to the support network around her for the benefit of her sons.  

...

85. The risks outlined above which as yet remain unavoidably untested, could potentially have a significant impact on the care planning of W's future.  It is therefore considered essential for the Children's Service to maintain shared parental responsibility in order to achieve ongoing and comprehensive assessment of the potential risk of harm to W, whilst ensuring capacity for immediate intervention to protect W's welfare should the need arise."

19.      The areas of risk referred to were, first, that the mother might not be able to maintain the positive progress and development in her parenting capacity, secondly the risk that the relationship between the mother and D might break down which would impose additional strain on the mother's ability to cope, and thirdly, the risk posed by the release from prison of C in May 2011.  Miss Jenner summarised the position at paragraph 77 of her report as follows:-

"I remain of the professional view that the greatest risk posed to W and J is by C's influencing control over A in two ways particularly; impacting on A's engagement with the Children's Service and influencing A's level of care and protection of her children."

20.      The Guardian supported the care plan.  A convenient summary of his approach at the time is to be found in the following paragraph of his report dated 1st February, 2012, prepared for the present hearing:-

"2.2 There were, at one time, concerns about the serious neglect of W whilst in the care of his mother, A.  She could be and frequently was "cruelly" rejecting of him during contact after he was placed in foster care.  She had a total mistrust in Children's Services, although she did gradually begin to engage with them constructively and as time passed very positive relations developed.  This seemed to coincide with the expectant birth of J (as he became known) and the increasing influence and support of the extended family of D.  These factors seem to have ignited in A an ever strengthening sense of bonding with her unborn child but also with W. 

2.3 Prior to that point it was felt, including by the Guardian, that A was set on a path whereby she would have permanently lost her parental responsibility of both her children, by way of adoption.  However, through a combination of efforts of the then social worker (Ms Jenner) and D's extended family, the growing sense of attachment to both children by A (together with a stable relationship with D) provided an opportunity - that opportunity was grasped and exploited, resulting in effect in an entire about face plan where W was returned to the care of A and her partner, D. 

2.4 The plan was never without risk.  However the assessed and independently arrived at conclusions by both the social worker and Guardian were to support the final Care Plan of both children remaining in the care of A and D."

21.      As already mentioned, the Court made final care orders on 22nd March, 2011, and gave a brief judgment In the matter of W and J [2011] JRC 059 explaining the reason for coming to that conclusion.  

Events since the care order

22.      We now turn to summarise what has occurred since the making of the care order.  We shall do so as briefly as possible.  

23.      Unfortunately, Miss Jenner had to take a period of extended sick leave not long after the care orders were made and she was replaced as the social worker in the Children's Service with responsibility for the children by Mr Matthew Davies.  Sadly, this does not appear to have been a success.  The statement of the Guardian records the views of the parents and their extended family as to Mr Davies' perceived defects and Mr Davies' statement sets out his perception as to the somewhat hostile reception he received from the family.  It is not for this Court to resolve these differences on this occasion and we are not in a position to do so.  Accordingly, nothing we say should be taken as any attribution of blame.  Nevertheless, what is clear is that the relationship between Mr Davies on the one hand and the parents and the extended family on the other was not very good and bore no comparison to the excellent and trusting relationship which had been built up so painstakingly between Miss Jenner and the family.  

24.      On 26th May, 2011, restraining orders were made against C to take effect on his release from prison.  In effect he was prohibited from contacting or approaching any persons identified in a list attached to the order.  The list included W and J.  The order also provided that, if he were to find himself in contact with any of the persons that he was prohibited from contacting, he had a positive duty to remove himself from that situation as soon as reasonably possible.  

25.      The Children's Service thought it better to try and forestall any unauthorised contact which might occur because of the mother's desire to see her father and accordingly arranged certain supervised contact between C and the children.  This duly took place on 16th June and 14th July.  Further planned sessions did not take place as neither the mother nor C turned up. 

26.      However, on 12th August, C breached the restraining order and was arrested.  We were informed that this came to the attention of the police because the mother herself said what had happened, although we do not know whether this is so. 

27.      According to the mother and D, their landlord indicated to the mother that he disliked having her as a tenant because of the identity of her father.  She says that on 10th August they and the children had all gone to stay with D's mother, F for a few days.  The mother visited the flat on 13th August with friends and the flat was as they had left it.  It was basically clean and tidy although they were in the habit of leaving full rubbish sacks on the balcony until D would take them down to the rubbish bin.  She says that on 13th August she received a text from her landlord asking them to get in contact within the hour as he would be letting himself into the flat.  When she texted back enquiring why he needed to go into the flat, she received no response.  She says that on 15th August, they went round to the flat and found it locked.  They were unable to contact the landlord.  With the help of a friend who climbed in via the balcony, they managed to gain access and they found the flat to be in a complete mess.  It was not in the condition that they had left it.  Their only explanation was that the landlord had wanted them out of the flat because of the identity of her father and he had made the mess in order to justify his decision.  They were in effect, she said, unlawfully evicted from the flat. 

28.      C appeared before the Magistrate's Court the same day for breach of the restraining order and was remanded in custody. 

29.      On 16th August, Mr Davies, together with others attended the flat from which the parents had been evicted.  The landlord asserted that they had left it in a disgusting condition and it appears that it was in such a condition at the time it was inspected by Mr Davies and others.  There was a clear lack of hygiene and it would have been unsuitable for children to be in such conditions.  

30.      Following this inspection, it was decided to remove the children from the care of the parents.  The parents and the children had spent the night at the home of Mr and Mrs H (D's sister and brother-in-law).  The children were placed in emergency foster care.  

31.      On 2nd September, the Children's Service informed the parents that they could have supervised contact for two hours three times a week.  On 6th September J was placed with Mr and Mrs H but W remained in foster care.  

32.      On 20th September a "permanence planning meeting" was held and the meeting recommended that W be adopted off Island whilst J should be afforded prospective permanent placement by a kinship placement with Mr and Mrs H, subject to confirmation of all the appropriate reports. 

33.      On 24th October, 2011, a "looked after child care planning meeting" was held and it was decided to reduce supervised contact between the parents and the children from three times per week to once every two weeks.  This was because a decision in principle had been reached that care of the children would not be returned to the parents.  The parents were informed by Mr Davies that J and W were to be provided with permanent solutions by way of kinship and adoption respectively and that once the Royal Court had granted the Minister a freeing order in respect of W, a final goodbye would be arranged between W and the parents.  

34.      Subsequent difficulty arose over whether Mr and Mrs H could offer a permanent kinship placement.  It is not for us to explore the reasons today although it is clear that an aspect - albeit not necessarily the sole aspect - was that the Children's Service was unable to assist financially in respect of nursery placement for J.  Be that as it may, Mr and Mrs H said that they were unable to offer permanent kinship and as a result J was moved to new foster carers (separate from W) on 30th November.  Thus the position is that since then, W and J have each been with foster carers. 

35.      In the meantime, on 4th November, 2011, C was sentenced for the breach of the restraining order.  It is clear from the Court's judgment that the Court was informed that this was a brief chance meeting in the street which had not lasted longer than a minute or two and the essence of the breach was that he had not removed himself immediately.  Given that he had already spent time in custody, the Court placed him on probation for 6 months. 

36.      In December the parents made application to discharge the care orders in respect of both W and J and the Guardian was therefore reappointed to represent the children in respect of this application.  His involvement had of course, ceased on the making of the care order on 22nd March. 

37.      On 1st February, 2012, the Guardian produced an interim report.  This raised serious concern over whether it had been right for the Children's Service to remove the children from the care of the parents in August.  The Guardian accepted that he had not yet seen a statement from Mr Davies setting out the grounds for removal.  The Guardian also explained in the report that, following the concerns raised with him by the parents and their family as to the actions of Mr Davies, he had felt it necessary to raise the matter with the Children's Service.  The Children's Service had very properly agreed that some other social worker should take over responsibility for the case and Mrs Laura Stark had taken over responsibility since 27th January.  We emphasise that the decision to replace Mr Davies is not to be taken as any acceptance that he did anything wrong.  It is merely a practical response to what has clearly been a breakdown of relations between Mr Davies and the family.  

38.      In his report, the Guardian also recommended an immediate increase in contact.  The parents have made such an application and it is that matter which now comes before the Court. 

39.      The context of this application is that the parents' application to revoke the care order is due to come before the Court in the week commencing 21st May.  The Children's Service will undoubtedly be opposing that application.  The Service is currently awaiting psychological reports on the parents and the children which are expected to be available towards the end of March.  Following receipt of those reports, the Children's Service will reach a decision as to whether to maintain the proposal for adoption of both children or whether to seek rehabilitation of the children with the parents under a continuing care order.  If the former, an application will be made to the Adoption Panel on 1st May and if that Panel gives its approval, the Minister will seek an order from this Court freeing the children for adoption.  Ideally, that application would be heard at the same time as the parents' application for revocation of the care order if that application is maintained.  Should the Children's Service decide to seek rehabilitation of the children with the parents, it seems probable that the Court hearing in May will not be required.  

40.      Thus the Court is concerned with the level of contact which should be ordered until the anticipated hearing in May.  

The law

41.      In relation to most matters, responsibility for children who are the subject of a care order rests with the Minister rather than the Court.  However, under Article 27 of the Children (Jersey) Law 2002, the Court retains jurisdiction in matters of contact.  The relevant provisions for our purposes are as follows:-

"(1) Subject to the provisions of this Article, the Minister shall allow a child in care reasonable contact with:-

(a) the child's parents

(b) ...

(c) ...

(2) On an application made by the Minister or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and a named person. 

(3) On an application made by:-

(a) any person mentioned in paragraph (1)(a) to (c); or

(b) any person who has obtained the leave of the court to make the application,

the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.  

...

(6) The Minister may, as a matter of urgency refuse to allow the contact that would otherwise be required by virtue of paragraph (1) or an order under this Article for a period of not more than 7 days if the Minister is satisfied that it necessary to do so in order to safeguard or promote the child's welfare."

42.      The provisions of Article 2 of the 2002 Law govern this application and accordingly the welfare of W and J is the Court's paramount consideration when deciding what order to make. 

Evidence

43.      As well as the past material in respect of these proceedings, the Court has received statements from the following persons:- Mr Matthew Davies, the mother, F (paternal grandmother), Mrs H (paternal aunt), D and Jane King (supervising social worker with the Fostering and Adoption Team of the Children's Service).  In addition the Court has received a statement from Mrs Stark on the issue of contact and a report from the Guardian, Mr Williams.  Both Mrs Stark and the Guardian also gave oral evidence before us. 

Discussion

44.      The case for the Minister was articulated by Mrs Stark both in her statement and in her evidence.  She suffers from the disadvantage that she only assumed responsibility for the children on 27th January and has only seen each child once at the home of his foster carer.  However, she has read the files very thoroughly. 

45.      We would summarise the effect of her evidence as follows.  She accepted that the reduction in contact in November from three times a week to once a fortnight was because the Children's Service had decided at that stage to go for permanence, albeit that the Service had not yet referred the matter to the relevant Panel for a decision, which was necessary before any application for a freeing order could be made.  An application is now planned for 1st May if the Children's Service maintains its stance on adoption of both children. 

46.      She also accepted that, if she had been the responsible social worker at the time and the parents had objected to the reduction in contact, she would have maintained it at the level of three times a week, given that the relevant processes to apply for permanence had not been finalised.  However, she said that was not what had occurred.  Contact had been reduced and the parents had not complained at that time.  

47.      The position now was that contact was only taking place once a fortnight.  She had suggested immediately before this hearing that an increase to once a week would be satisfactory but she did not consider that any further increase would be appropriate.  Although no final decision would be taken until receipt of the psychological reports, there was clearly a strong possibility that the Minister would maintain her position and seek adoption of both children.  If that were to occur and if the Court were to grant a freeing order, contact would at that stage have to be reduced in order to prepare the children for adoption.  She felt it would be highly undesirable for contact to be increased substantially at this stage only for it to be reduced if a freeing order were to be made.  This would be most upsetting for the children.  

48.      Conversely, if a decision was made to seek rehabilitation with the parents whilst maintaining the care order, contact could be increased at that stage prior to the children actually moving back to live with the parents.  She felt that increasing the level of contact, particularly to the level suggested by the Guardian, was indicative of a decision in favour of rehabilitation whereas that was not the present position. 

49.      Furthermore, she was concerned at the suggestion that any contact should be unsupervised.  She felt that C remained a potential threat to the children and that, before any unsupervised contact could be allowed, work would have to be done with the parents (and the mother in particular) in order to ensure that they understood the risk posed by C and understood the importance of ensuring that he did not have any contact with the children.  She felt that the mother's ability to be influenced by her father meant that work had to be done in this respect before unsupervised contact could be allowed.  She did not agree with the Guardian's view that the present level of contact was insufficient to maintain a proper relationship between the children and their parents until the decision was made as to the children's long term future.  She argued that, if the Court remained concerned about levels of attachment, early guidance should be obtained from CAMHS before any change in contact was implemented. 

50.      In short, she felt that any dramatic change in contact at this stage might well be disruptive to the children and that any perceived benefit would be greatly outweighed by the risk of damage and distress to the children in the event of such increased contact subsequently being reduced because the decision was taken to seek adoption.  She also pointed out that the Guardian was recommending overnight contact but that the accommodation currently occupied by the parents was a bedsit and would be unsuitable for having two children to stay. 

51.      The Guardian profoundly disagreed with the views of Mrs Stark.  In his report he had expressed serious concerns as to whether the removal of the children had been justified but he accepted that, at that stage, he had not seen a statement explaining the reasons for that removal.  He had now seen Mr Davies' statement but he felt that this did not justify the removal and he remained of the view that it should not have occurred.  Although there were clearly some concerns, these had not been raised with the parents and were not of sufficient urgency or seriousness to justify the extreme measure of immediate removal.  There had been no warnings to the parents or explanations that, if they did not change their ways, removal might become necessary.  

52.      Similarly, he felt that the decision to reduce contact in November from the three times a week which had been taking place since the removal to only once a fortnight was wrong for the children and was premature, given that the Children's Service had not yet taken the proposal for adoption to the Adoption Panel and indeed had still not done so.  

53.      He pointed out that it was well known that it was important for young children to form bonds of attachment.  Frequent changes in placement, even as a very young child, interrupt that attachment process and can have a very serious impact.  The result of the actions of the Children's Service was that J, who had lived with the parents since birth, had had three placements in a very short space of time, namely the initial foster carers, Mr and Mrs H and the present foster carers.  In the event of J being placed for adoption, he would then move to a fourth carer within a year.  Whilst W had only had one foster carer since removal, he too would face a change in the event of adoption and he had had less stability than J prior to being reunited with the parents in November 2010. 

54.      In the opinion of the Guardian, a reduction in contact down to once a fortnight will have left the children bewildered and confused.  They will have blamed themselves (it must be my fault) and will also have been left with a sense of abandonment (I am not worthy of my parents' affections).  It is of vital importance that children should not be left with such feelings, but this was likely, in his opinion, to have been the effect of what had occurred in this case.  

55.      He believed that if contact was continued at the current level, further damage would be done to the attachment process.  It was important for the children that the bonds of attachment with the parents should be re-established at the earliest opportunity in order to prevent further damage.  He accepted that, if adoption was the course finally chosen, contact would have to be reduced again and this would cause distress to the children.  But it could be managed and planned for at that stage.  He felt that any potential damage caused by that eventuality was greatly outweighed by the continuing damage caused to the children by the loss of contact with their parents at this stage in circumstances where there was a real possibility of rehabilitation with the family being the right course.  

56.      He accepted that his proposal for contact involved a considerable change over a short period and indeed he modified his proposal slightly during the course of the hearing so as to slow things down a little.  However, he was firmly of the view that these children's best interests were served by trying to re-establish contact with the parents and that this should move to unsupervised and staying contact as soon as possible, so that the natural bonds of attachment were not damaged further. 

Decision

57.      Having had the benefit of seeing both the Guardian and Mrs Stark in the witness box as well as reading their reports and the other papers, we have come to the conclusion that we prefer the recommendations of the Guardian.  We would summarise our reasons as follows. 

58.      It is not for us to decide today whether the removal of these children was justified or not.  But the fact that the Guardian has raised real concerns as to whether it was justified is relevant.  Suppose, for example, that all were agreed it was justified, that there was no prospect of any rehabilitation with the parents and that adoption was the only answer.  This would clearly be a relevant factor pointing against an increase in contact at this stage. 

59.      But that is not the position.  The Guardian has raised what the Court considers to be serious concerns over whether the children ought to have been removed from the parents on 16th August.  As Mrs Stark accepts in her statement, only three reasons have been put forward by Mr Davies in support of the decision to remove.  These are:-

(i)        The impact of C's release from prison and the parents allowing unsupervised contact between him and the children. 

(ii)       Neglectful home conditions. 

(iii)      A lack of engagement with Children's Services, CAMHS, health visitor or speech and language therapy.  

60.      The Guardian has raised serious question marks over each of these concerns.  As to contact with C, although there is a suggestion in the papers that the children may have found themselves in the vicinity of C either at the harbour or in a flat, the only instance of unsupervised contact that we are aware of is that which gave rise to his prosecution for breach of the restraining order and which took place on 12th August, four days before the removal.  This was a momentary contact lasting for a minute or two in a public road and appears to have been an unplanned meeting.  There clearly is a strong argument to the effect that this incident merely required words of warning or advice to the parents, even if it transpired that either of them had contributed to the coming about of this situation.  In fact, the mother had shown herself shortly before that to be unenthusiastic about continued contact between the children and C.  

61.      The second matter relied upon by Mr Davies was the state of the flat.  Clearly, by the time it was inspected by Mr Davies, it was indeed in a state which was unfit for children.  However, the case for the parents is that this "trashing" of the flat was done by the landlord to justify his decision unlawfully to evict them by locking them out of the flat.  He was able to do so because it was accepted that D had been storing rubbish bags on the balcony of the flat prior to taking them to the rubbish bin.  It appears that Mr Davies had only visited the flat once since assuming responsibility for the children and he had not noticed anything untoward about the condition of the flat at that time.  Similarly Mrs H and F have provided statements which suggest that, although the flat was not necessarily very tidy, it was not in an unfit state for children whenever they visited, which was often unannounced.  There is accordingly an issue of fact as to whether the condition of the flat on 16th August was because of the parents or because of the landlord.  In any event, there is no assertion by Mr Davies that he had had any concerns about the home conditions prior to this occasion or that he had at any stage warned the parents that there were concerns about the condition of the flat and that things must improve.  

62.      As to the third matter, it does appear from the statement of Mr Davies that there had been difficulties and there was room for improvement in the parents' attitude as to cooperation with CAMHS and other agencies.  However, such matters would normally only lead to the ultimate step of removal if such non-cooperation was prolonged and continued after clear warnings about the possible consequences. 

63.      Putting these matters together, the Court accepts that there are serious questions as to whether the Children's Service was correct to take the drastic step of removing these children immediately from the care of the parents.  

64.      We also agree with the Guardian that it was premature for the Children's Service to reduce contact from three times a week to only once a fortnight in November 2011.  Although the Children's Service had decided as early as September to pursue a policy of permanence, it had not taken - and has still not taken - the necessary steps to get the approval of the Adoption Panel, which is a requirement for an application before a freeing order can be made.  

65.      We further agree with the Guardian that it must have been distressing for and damaging to the children to have contact reduced in this way.  J had never before been separated from the mother and was only 18 months old.  Yet in the space of three short months he had been placed with three different carers and was now to be allowed to see his parents for only two hours every fortnight.  We think it highly likely that he suffered damage in the way described by the Guardian.  In relation to W, he suffered a similar reduction in contact and this was in circumstances where his attachment with the mother was almost certainly less strong than that of J because of the previous history and the fact that he had only been living with the mother since November 2010.  

66.      In short, we accept the evidence of the Guardian that restricting the children to contact of only two hours a fortnight (or even two hours a week as suggested at the last moment by Mrs Stark) is highly likely to be damaging to them, particularly to their need for attachment and bonding.  We think that increasing contact as suggested by the Guardian will be beneficial to their sense of well-being, security and attachment for the reasons which he gives.  We accept that has to be balanced against the risk that, if orders freeing the children for adoption are eventually made, contact will have to be reduced again and this will cause distress to the children at that time.  But, in our judgment, the immediate best interests of the children are more important than possible distress which may be sustained in the future in circumstances where it is by no means clear that the Minister will necessarily decide that adoption is the right course or, if she does, whether the Court will agree with her and make a freeing order.  As the Guardian says, there are clearly powerful arguments to be put forward in favour of rehabilitation with the parents under a continuing care order.  The Court endorses the Guardian's view that it is more important to these children's well-being to deal with the current inadequate level of contact. 

67.      We have considered carefully whether it is right to increase contact to the extent suggested by the Guardian.  In relation to unsupervised contact, we do not think that the matters referred to in Mr Davies' evidence give sufficient grounds for concluding that these parents, who were responsible for looking after the children without major criticism until August, are not fit to be trusted to have contact with the children on an unsupervised basis.  The mother has undertaken not to facilitate any contact with C and has further undertaken that, should unplanned contact with C occur, she will remove the children from the vicinity immediately.  We believe that she understands the importance of honouring this undertaking and we think the children's best interests are served by having spontaneous and natural contact with the parents rather than the more forced environment of supervised contact.  

68.      Similarly, we agree with the Guardian that it is appropriate to move reasonably swiftly to overnight contact.  This will take place at the home of F (who is of course well known to the children) because the current accommodation of the parents is unsuitable for overnight contact with two children.  

69.      Contrary to the views of Mrs Stark, we do not see the level of contact suggested by the Guardian as an automatic move to rehabilitation.  In our judgment, the important thing is to do what is best for the children.  We accept the evidence of the Guardian that the current low level of contact is likely to be causing a sense of abandonment and self-blame.  In circumstances where it is by no means certain that these children will be freed for adoption, we think the right course is to increase contact so as to avoid further damage to these children, in the knowledge that, if rehabilitation is eventually the chosen course, this will have been entirely beneficial and, if adoption is eventually the chosen course, the consequent reduction in contact and the distress which will then be suffered by the children will be of a lesser order than the damage being done by the current position.  

70.      We did however adjust the suggestions of the Guardian a little so as to moderate the rate of increase in contact.  The order which we made for contact pending the final hearing of this matter was as follows:-

"a. Week 1 (i.e. the week commencing 20th February):-

(i) three times with J and W for two hours supervised by the Children's Service;

b. Week 2:-

(i) once with J and W for two hours supervised by the Children's Service; and

(ii) twice with J and W for two hours unsupervised;

c. Weeks 3 and 4:-

(i) once with J and W for two hours supervised by the Children's Service;

(ii) twice with J and W for two hours unsupervised;

(iii) one overnight stay for J unsupervised; and

(iv) one overnight stay for W unsupervised; and

d. Week 5 onwards:-

(i) once with J and W for two hours supervised by the Children's Service;

(ii) twice with J and W for three hours unsupervised; and

(iii) two overnight visits for J and W, but not two consecutive nights, unsupervised;"

71.      We should add that the reason for some continued supervised contact is so that the attachment and bonding (or otherwise) between the parents and the children can be assessed in order to assist in final disposal of this matter.  In that respect the Court has benefited greatly from having the records of the supervised contact (which were positive and encouraging) available for this hearing.  The Court also noted that the mother and D had agreed to cooperate with the Children's Service in receiving visits, to attend appointments at CAMHS and speech and language therapy and generally to cooperate with other allied services. 

Authorities

In the matter of W and J [2011] JRC 059.

Children (Jersey) Law 2002.