Before : |
J. A. Clyde-Smith, Commissioner, and Jurats Le Cornu and Marett-Crosby. |
Between |
The Minister for Health and Social Services |
Applicant |
And |
A |
First Respondent |
And |
C |
Second Respondent |
And |
B (acting through his guardian ad litem Mrs Elsa Fernandes) |
Third Respondent |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF B (CARE ORDER)
Advocate C. R. G. Davies for the Applicant.
Advocate B. J. Corbett for the First Respondent.
Advocate V. Myerson for the Third Respondent.
judgment
the commissioner:
1. On 23rd May, 2012, the Court, with the consent of the parties, granted the Minister a final care order in respect of B ("the child") and approved the care plan placing the child away from A ("the mother").
2. When the interim care order was granted on 27th January, 2012, the Court at that stage declined to sanction the removal of the child, in essence because, in its view, that was a decision to be taken by the Court at the final hearing with the benefit of expert advice.
3. Much of the background of the case is set out in the Court's judgment of 27th January, 2012, ([2012] JRC 023) which we will not repeat here.
4. The child was subsequently made a party to the proceedings acting through Mrs Elsa Fernandes as guardian ad litem, and was represented by Miss Myerson. The father was excused from attending the final hearing, but he supported the granting of a final care order and approved the care plan.
5. Following the interim care order, reports have been received from Dr Bryn Williams, the child psychologist, Dr David Briggs, the adult psychologist and Dr Jasmine Murray, the educational psychologist. The experts subsequently met and as there were no material differences between them, Dr Williams alone gave evidence. We also heard evidence from the social worker, Mrs Rachel Maguire and from the guardian, Mrs Fernandes.
6. In Dr Murray's report, she describes the child's general cognitive functioning as falling within the "borderline" classification range, his full-scale IQ being 74. He struggled to concentrate, to remain seated, to avoid fidgeting with objects within his reach and to retain instructions and explanations given verbally, especially instructions containing more than two information carrying words. Specific learning difficulties often exist together and share some common characteristics but because the child was only six years old at the time of his assessment, Dr Murray advised that it would be more reliable to explore the issue of whether he also has ADHD when he is older. His hyper activity and difficulties of retention and concentration could improve with maturity, especially with appropriate training, consistent behaviour management and change of environment. Evidence clearly suggested to Dr Murray that the child had been under achieving at school across the curriculum. His difficulties may be innate, but other factors such as parenting and circumstances within the home environment could also contribute to his educational needs.
7. Dr Briggs did not carry out a full assessment of the mother's cognitive functioning, but she presented to him as of modest intellectual ability at interview. In his report, he describes the very difficult upbringing to which she was exposed, including violence, and said that it was unsurprising that her upbringing would have cast shadows over her longer term emotional and psychological functioning and could have compromised her parenting abilities. He said that at interview she appeared insensitive to social cues:-
"She struggled to rise above the situation and to take note of how she and I were interacting. She would persist with commentary to an unnecessary degree or at a tangent to what we were talking about. I worry about this trait as I fear it would complicate any efforts to help her learn skills and hence benefit from counselling, therapy or skills training. I also worry that because she can appear so self-focused and absorbed in her own issues that she will be insensitive on occasions to those around her, including [the child] and his needs."
8. Dr Briggs had considerable sympathy for the mother's position, saying it was hard to ignore the fact that she is the product of her own abusive upbringing, but he concluded that she would have very significant difficulty parenting the child. She would struggle to cope with consistent and enduring boundary setting and attention to his various needs. On occasions she would be focused on her own needs rather than his. She would interpret any difficulties inaccurately and from an egocentric perspective:-
"In essence I feel [the mother] would find it incredibly difficult to attune to [the child's] emotional and psychological needs, to reflect on her contribution to his difficulties and to regulate her behaviour and emotions in any systematic way to ensure his healthy rehabilitation".
9. Dr Briggs was unaware of any treatment that was likely to bring about a significant change in the mother's parenting capacity within a time scale that is compatible with the child's needs.
10. Dr Williams advised that the child had a disorganised attachment style and a particularly destructive and abusive relationship with the mother. Whilst his behaviour may in part be attributed to his development difficulties, it exists in parallel with a home environment that has not, from a psychological perspective, been adequate to meet his needs. He has been exposed to violence through domestic conflict and inadequate parenting. He may also have been exposed to inappropriate sexualised behaviour and the risks associated with this. He was concerned about the child's chaotic behaviour which he did not consider it possible to explain on the basis of developmental delay alone. Quoting from paragraph 8.10 of his report:-
"It is probable that [the child] can be more contained in familiar routine, not only because the demands upon him are less challenging but also because they contain his emotions and behaviour. This is most evident in his school environment. However, at home when he becomes stressed he is confronted with a mother who on her own is unable to address his needs. It is likely that at the most stressful of times in their relationship when [the child] needs his mother the most, [the mother] is most likely to be over-aroused herself and thus retreat into inadequate parenting strategies."
11. The mother, as a result of her own needs, was unable in Dr Williams' view to fulfil her parenting role. Her parenting approach was emotionally harmful to the child, who required a reparative parenting experience. It would not be advisable for the mother to remain in her current role as the child's primary parent. Dr Williams' greatest concern from a developmental perspective was that the consequences of the child being raised within a chaotic and disorganised attachment relationship would have a severe and detrimental impact on the child's outcome as a young man. The need was for the child to be placed in a therapeutic environment where his emotional needs could be addressed.
12. The advice of Dr Briggs and Dr Williams was therefore clear and to the great credit of the mother, she came to accept that advice and the painful reality that the child would be removed from her care. She was very much assisted in that process by her lawyers, Hanson Renouf. No appropriate foster placement was available in Jersey, but a placement was found with "By the Bridge Therapeutic Fostering Services" in England, for which the Children's Service would provide funding. It is likely that the child will remain there for some two to three years. That placement was supported by Dr Williams, the guardian and by the mother; indeed, the mother said she was very pleased with the match that had been made.
13. Much of the hearing was taken up with the details of the arrangements. An "hour by hour" plan had been prepared for the work during which the child was to remain in Jersey with the mother before leaving for England. The guardian, in particular, had concerns as to precisely when the child would be told about the plan and the level of supervision during that week, all of which were addressed and resolved. It was important that the child was given "permission to go" by the mother. The Court was impressed by the mother's commitment to the process.
14. The mother's residual concern lay in the possibility of the child's eventual adoption, to which she was opposed, being pre-judged by the Children Service. She was not expecting to get the child back into her care, but wanted to remain involved in his life. She felt it was important for him to retain his connection with his family and that the Children's Service should keep an open mind as to whether adoption or a permanent foster placement was in his best interests. There was, of course, no question of the Court pre-judging these issues.
15. All the parties were agreed that the threshold criteria had been met and had signed an agreed threshold document to that effect. Given that consensus, the Court conducted a more limited inquiry following the guidance given in the case of Devon County Council-v-S [1992] 2 WLR 273 and was satisfied that the threshold criteria were met, thus giving the Court jurisdiction.
16. The Court applied the principles summarised by Beloff JA in the Court of Appeal decision of Re F & G (No. 2) [2010] JCA 051 at paragraphs 5 - 8 and having approved the care plan, in which there had been a great deal of investment, and the contact arrangements, made a care order in favour of the Minister and gave its approval under paragraph 4 of schedule 2 of the Children (Jersey) Law 2002 for the child to live outside Jersey, being satisfied by the requirement set out in paragraph 4(2). In relation to paragraph 4(2)(c), we agreed that the child did not have sufficient understanding to give or withhold his consent and we were satisfied that he was going to live in England with a suitable person. Both parents consented to the child being placed outside the Island.
17. The mother accepted that the Minister had made provision in the care plan for a reasonable level of contact between her and the child and she had no application of her own in that respect. There had been some discussion as to the flow of information to the mother as to how the child was progressing in his new environment and whether the mother should be able to speak directly to the foster carers. No orders were sought in this respect, but the Court expressed the view that she should be kept informed by the Children's Service every week for the first two weeks of the placement and monthly thereafter for the next three months, but that there should be a buffer between the foster carers and the mother unless the foster carers agreed otherwise. The Court felt it important that in establishing a new relationship with the child, the foster carers should be given that protection if they felt it necessary.
18. The father, who has learning difficulties, had made an application for indirect contact with the child. He wished to be able to send him a birthday card and present. Appreciating that he had not seen the child for many years, he was willing to be guided by the experts on the issue and therefore asked for his application to be adjourned.
19. In his report, Dr Williams advised us that the father had been invited to be party to the assessment, but chose not to do so and he had therefore been unable to address the issue of contact between the father and the child in his report. He was mindful of the risks the father presented to the child, given the exposure to domestic violence. He told us in evidence that it would be "scary" for the child to receive a card from the father and that we should be cautious.
20. In view of this advice, and acknowledging the importance of this new placement for the child, the Court dismissed the father's application and authorised the Minister, pursuant to Article 27(4) of the Children (Jersey) Law 2002, to refuse contact until further order of the Court.
Authorities
In the matter of B (Care Order) [2012] JRC 023.
Devon County Council-v-S [1992] 2 WLR 273.
Re F & G (No. 2) [2010] JCA 051.
Children (Jersey) Law 2002.