Before : |
J. A. Clyde-Smith, Commissioner, and Jurats Fisher and Milner. |
Between |
The Minister for Health and Social Services |
Applicant |
And |
A |
First Respondent |
And |
B |
Second Respondent |
And |
C and D |
Third Respondents |
IN THE MATTER OF J (CARE ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate D. C. Robinson for the Applicant.
Advocate M. R. Godden for the First Respondent.
Advocate B. J. Corbett for the Third Respondents.
judgment
the commissioner:
1. On 14th November, 2012, the Court made a care order placing C (aged 6) and D (aged 3) in the care of the applicant ("the Minister") under a care plan the intention of which is to place the children, who are currently in foster care, permanently away from the mother with their paternal aunt.
2. The children were made the subject of an interim care order on 14th June, 2011. The Minister sought the removal of the children from the mother at that stage primarily because of her misuse of alcohol, which in the Minister's submission rendered her incapable of providing the children with adequate and consistent care. If left with the mother, the Minister submitted that she could not guarantee their safety.
3. The removal was resisted by the mother, who denied (on oath) that she had a problem with alcohol. The Court was not persuaded on the evidence before it at that stage that the high hurdle laid down in Re LA (Children)(Care: Chronic Neglect) [2009] EWCA Civ 882 approved by the Court in the case of In the matter of QQ [2010] JRC 217E namely that the children's safety "demanded" or "required" their removal had been met. Whilst accepting that the children's welfare necessitated the granting of an interim care order (which was not resisted by the mother) the Court did not approve that part of the care plan which provided for their immediate removal.
4. The Court's reasons and the general background to the case are set out in the Court's judgment of 28th July, 2011, [JRC 147] which we will not repeat here. That judgment needs to be read in conjunction with this judgment.
5. On the 18th June, 2011, a mere four days after the interim care order hearing, the police were called to the mother's home where they found evidence of alcohol use, neglect and domestic violence. The mother was arrested for breach of the peace and exposing the children to a risk of harm and the children were accommodated into emergency foster care. They have remained in foster care ever since.
6. On 16th August, 2011, the mother pleaded guilty to causing a breach of the peace, two counts of exposing the children to a risk of harm, possessing cannabis and breaching the binding over order imposed on 24th January, 2011, for an earlier offence of exposing the children to a risk of harm. She was placed on probation for twelve months.
7. It is clear that contrary to what she had told the Court, the mother was consuming large quantities of alcohol daily to such an extent that she was hospitalized in August 2011.
8. On the 14th June, 2011, the Court had ordered an assessment of the mother and father by the Alcohol and Drug Service, a psychiatric assessment of the mother, a psychological assessment of the mother and father and a psychological assessment of the children. The father did not participate in any of the assessments or in these proceedings from which he was excused.
9. The mother started attending the Alcohol and Drug Service on 22nd September, 2011, and on 30th September, 2011, informed an Alcohol and Drug worker that she had stopped consuming alcohol.
10. In his report of 18th October, 2011, Mr Michael Gafoor, the director at the Alcohol and Drug Service, acknowledged that she had made considerable progress in addressing her alcohol problems. She had disclosed to him her earlier history of drug abuse from the age of 12, including a period of addiction to heroin, and informed him that she had not used illicit substances since 2006. However, on her second appointment, she tested positive for opiates and cannabis. The mother attributed this to taking two illicit dihydrocodeine tablets for a headache that had been given to her by a friend, who had also smoked cannabis in her presence, an explanation Mr Gafoor found unconvincing. He found her to be an emotionally fragile and anxious young woman, almost childlike in demeanour, who by her own account was easily stressed during periods of emotional distress. As such she remained susceptible to relapse when faced with stressful situations.
11. In her report of 2nd November, 2011, Doctor Elise Lawrence, a clinical and educational psychologist, concluded that:-
"[The mother's] psychological state directly impacts on her ability to parent the children ... this currently impacts on her ability in this respect and is highly likely to in the future unless she enters into long term therapy to address the various issues around her functioning and interpersonal relationships".
12. Doctor Lawrence advised that:-
"it would be necessary for [the mother] to remain abstinent from alcohol for the foreseeable future if she is to provide good enough care for her children."
13. She further advised that:-
"... currently [the mother] does pose a risk to the children ... In order to minimise this risk, [the mother] needs to receive intensive therapy ... once [the mother] acquires an understanding of her own history and how this has affected her she will certainly need to acquire coping strategies with which to manage a more positive outlook with routines and systems built into daily life with her and the children.....
[The mother] is motivated to change her behaviour and prioritise the children's needs ... but if [the mother] does not engage with available support services in the island, including that of intensive therapy, she would not be able to manage risk or change her behaviour as appropriate."
14. A psychiatric assessment was completed by Dr Dale Harrison in respect of the mother in December 2011. He concluded that the mother:-
"fulfils the criteria of suffering from mental and behaviour disorders due to the use of alcohol ... (and) the criteria for alcohol dependence syndrome currently abstinent ... but she does not have any other psychiatric disorders."
15. He further concluded that the mother needed to remain abstinent from alcohol and be monitored for a period of one to two years.
16. By the time these reports had been completed, the children had been in foster care for six months, but in the light of the mother reporting herself to be abstinent from alcohol, it was felt by the Children's Service that a further period should be allowed in order for the mother to address these issues.
17. The mother was asked to:-
(i) Remain abstinent from alcohol and drug misuse.
(ii) Attend all Alcohol and Drug Services' appointments with Ms Lorna Easden. This work would include assisting the mother in remaining abstinent.
(iii) Attend all Probation Services' appointments which work would include looking at her social networks and support.
(iv) Attend the Mellow Parenting Course with Child and Adolescent Mental Health Services (CAMHS).
(v) Agree to a referral to Adult Psychology Services and attend all appointments with them.
(vi) Attend all arranged contacts with the children which would continue to be supervised by the Family Support Worker, Ms Sandra Jones but with Ms Jones taking a less active role in the contacts relying on the mother to manage the children's care during this time.
(vii) Attend all other appointments with Children's Services.
This required an intensive multi-agency support which was reviewed regularly.
18. On 14th December, 2011, the Court directed inter alia that Mr Gafoor provide a further Alcohol and Drugs assessment, Dr Lawrence undertake a further psychological assessment, focusing on the attachment needs of the children, Dr Harrison prepare a further psychiatric assessment and that the mother undergo hair strand testing in respect of alcohol and drug use. On 16th January, 2012, and pending receipt of these further reports, the Court directed that the final hearing dates listed for 5th - 9th March, 2012, be vacated.
19. In his second report of 7th March, 2012, Mr Gafoor reported that the mother claimed to have remained abstinent from alcohol except for one brief lapse over Christmas. She had been guarded and unforthcoming during key worker sessions and revealed little insight of any underlying issues relating to her substance misuse. She appeared to him to have a vacuous lifestyle with few meaningful relationships or interests, her daily routine being taken up mostly with appointments. In his view, she was currently abstinent from alcohol, but the severity of her alcohol dependence means that any surreptitious drinking will quickly spiral out of control and become apparent to the agencies involved. She understood total abstinence has to be her goal. He went on to say that although her use of illicit drugs was infrequent, her ongoing association with drug users had to be of concern given her past drug history.
20. In her second report of 14th March, 2012, Dr Lawrence said she believed the mother had developed a far clearer understanding of the needs of the children and what she needed to do in order to meet their needs consistently. The concern from those working with her is whether she could consistently apply this understanding in practical terms. She assessed the mother's IQ at 88, which put her at the top end of the low average range. She found that with her working memory index she scored at a comparatively low level, i.e. 63. In her opinion, the mother required cognitive behavioural therapy from a psychologist in order to develop strategies with which to address specific worries and anxieties that she has on a day to day basis. If the mother were able to attend regularly to psychology sessions as offered and to continue to attend regularly to the parenting group as offered, it was her opinion that she could achieve an adequate standard of parenting over the following four to five months, i.e. by June or July of 2012.
21. In his second report of April 2012, Dr Harrison agreed with Dr Lawrence regarding the emotional difficulties experienced by the mother and that she would be a suitable candidate for cognitive behavioural therapy, which could provide the mother with the skill she needed to better control her emotions which would have the beneficial effect both in relapse prevention of her alcohol and substance abuse and also with her parenting of the children.
22. After failing to attend an appointment with the Adult Psychology Service, the mother was offered a programme of cognitive behavioural therapy on 25th April, 2012, to be undertaken by Dr Pat Gwyer in a timescale that would meet the children's needs. The Minister sought and was granted an adjournment of the final hearing, which had been listed for 8th May, 2012, in order to allow the mother to engage with this programme.
23. On 14th April, 2012, the police attended the address of a friend of the mother following reports of raised voices. The police log shows that they gained entry and "both parties had been drinking and were drunk, however coherent and capable of speaking to officers." ..."[The mother] would not give her details and ... was later identified as the other party involved." The mother denies being present at this incident.
24. On 26th May, 2012, the police attended the same flat after a member of the public reported shouting coming from the address. When the police attended, the friend said he was alone. Believing that they had heard two voices, the police searched the flat and found the mother behind the sofa. She had dried blood on her mouth and appeared upset. No complaint or charges were brought against either person but in interview, the mother stated that she and her friend had gone for a drink at the Lamplighter pub. She had had some cider there and they went back to the friend's address where they consumed wine. According to the police report, the mother did not want to give an account of what had happened. The friend stated that they had clashed faces during a verbal argument. Both parties were arrested on suspicion of assault but no charges were brought.
25. On 25th June, 2012, Dr Gwyer reported to the Children's Service that after five sessions (some of which the mother had missed) the mother's commitment to therapy seemed sparse. He had no sense of real commitment on her part, certainly not enough for the change process to occur.
26. On 26th July, 2012, the results of the first hair strand testing results were received which gave a positive result of frequent excessive alcohol consumption over the period early April to July 2012. The mother was said to exhibit the characteristics of a chronic alcohol abuser.
27. In his third report of 26th September, 2012, Mr Gafoor noted numerous failures to attend key worker appointments and concluded that although the mother had reduced the frequency of her drinking, she was unable to maintain total abstinence and there had been reported drunken incidents involving the police. "In addition, her attendance at the Alcohol and Drugs Service remains erratic and her engagement with therapeutic interventions appears merely superficial. Subsequent to my previous report, [the mother] has made little progress in overcoming alcohol dependency and making positive lifestyle changes."
28. On 9th November, 2012, the results of the second hair strand test were received, which were again positive for frequent alcohol consumption by the mother over the period mid-April to mid-October 2012, with her again exhibiting the characteristics of a chronic alcohol abuser.
29. Under the provisions of Article 24(2)(a) and (b)(i) the Court may make a care order if it is satisfied that the child concerned "is suffering or is likely to suffer, significant harm; and .... that the harm, or likelihood of harm, is attributable to .... the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child."
30. The Minister had put forward a threshold statement, the majority of which was agreed by the mother, who accepted that the threshold had been met. Both the guardian and Mrs Corbett for the children agreed that the threshold had been met. Central to the case against the mother is her dependence upon alcohol as a consequence of which the children have been exposed to arguments and domestic violence, to poor supervision, to missed health appointments, to physical harm, to unhygienic conditions and to physical neglect. The Court was satisfied that the threshold criteria were met at the relevant date, namely the date when the interim care order was first imposed.
31. The applicable principles are set out in paragraph 8 of the judgment of Beloff JA in the case of In the matter of F and G (No. 2) [2010] JCA 051:-
"For this purpose it is well established that:-
(i) The child's welfare is the paramount consideration (Article 2(1) the 2002 Law).
(ii) Any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of the child (Article 2(2) (ditto).
(iii) The Court must have regard to the seven matters ("the welfare checklist") set out in Article 2(3) (ditto).
(iv) The Court must not make an order unless it considers that doing so would be better for the child than making no order (Article 2(5) (ditto).
(v) Before making a care order the Court must scrutinise the care plan prepared by the Minister for the child. Before making a care order the Court must scrutinise the proposals for contact in the care plan and invite the parties to comment on them (Article 27(11) (ditto)."
32. It was the mother's case that she had shown sufficient change for the children to be returned to her. She wanted them back so that they could make a fresh start. If the Court felt that the changes she had made were not enough, then she had the capacity to make the further changes required to satisfy any concerns the Court may have. Accordingly, she sought the discharge of the interim care order.
33. Mr Godden accepted that his client was not the best mother but it was a draconian step, he said, to remove the children from her care, albeit that they had not been in her care for some eighteen months. She was, he said, making efforts to address her alcohol dependency, in particular by attending AA. She was now much more open and accepting of the need to change. She would like to try Antabuse and wanted more contact with the Alcohol and Drugs Service. She was willing to get further help and was determined to continue with the progress that she had made. There were five key reasons for the Court not making a care order and for the children to return to her care:-
(i) She was capable of attending to their day to day needs.
(ii) She needed more time to make further changes.
(iii) The children had a good relationship with her.
(iv) It was a draconian step.
(v) It was desirable to preserve the natural bond between the children and the mother.
34. The Minister sought a care order on the basis of the care plan which provided for the children to be placed together away from the mother on a permanent basis with the children's paternal aunt, who, with the support of the children's paternal grandmother and step grandfather had put herself forward and had been approved by the Fostering and Adoption Panel as a kinship foster carer.
35. The Court heard evidence from Miss Laura Anne Stark, a Senior Practitioner at the Children's Service, the mother and the guardian. There was no application to cross-examine any of the experts whose reports we had before us. In our consideration of the welfare checklist two particular issues arose for our consideration, which we take in turn.
36. The first issue was whether the children could return to the mother either now or after some further period of time. We were satisfied that the mother was an alcoholic who had not been able to address her dependency; the evidence of Mr Gafoor, the hair strand test results and the ongoing incidents of drinking made that clear. Her own evidence put the matter beyond doubt. She told us she did not drink every day but when she could not handle a problem she would drink and when she did drink, she would drink to excess, often ending up in a fight. She accepted she could not look after the children when drunk. Furthermore, she could not say no to friends who came round to her flat encouraging her to drink; friends in respect of whom the Children's Service and Mr Gafoor had serious reservations.
37. She described herself as a recovering alcoholic who had quit drinking, although she could not say when she had quit drinking. At the same time, she admitted two definite lapses. She produced an unsigned and undated letter from "Robbert" who she told us was her sponsor at Alcoholics Anonymous. That letter informed us that she had first joined AA on 3rd August, 2011, but her attendance had been poor until March 2012, when she came once a week, although she had missed four meetings. He thought it would be beneficial for her to come more frequently. In his opinion, she could stop drinking and had made great progress since November 2011, but she has relapsed on days when she cannot emotionally handle a problem or situation. He expressed the view that alcoholism was a progressive illness that cannot be cured in the ordinary sense of the term but can be arrested through total abstinence from alcohol in any form. The mother had often spoken to him of Antabuse (medication which apparently will make an individual very ill if consumed with alcohol) and he recommended Antabuse for the mother's "future sobriety and total abstinence from alcohol". It should be said that Mr Robinson had made his own inquiries of the AA who said that it was most unusual for any of its members to provide a letter of this kind giving a view on a person's progress and possible recommendations for medication.
38. The mother placed much emphasis on Antabuse, both in her statement and in evidence. She told us that she had been to Accident and Emergency some two months ago to obtain a prescription. They had spoken to the Alcohol and Drugs Service, who told them not to give it to the mother as she needed to go to her own GP. This she told us she was unable to do as she owed the surgery some £200. In response to questions from the Court she indicated that she had recently changed surgery and was unsure to which surgery this debt was owed. Furthermore, she confirmed that she could still get access to a GP, subject to paying the usual fee.
39. The guardian felt that the mother was clutching at straws. Alcoholism is very difficult to overcome and in her view there is no magic bullet. Antabuse may assist, but it will not be the answer. We agreed. In any event, the mother was clearly able to get access to a GP for Antabuse to be prescribed and for whatever reason, had failed to do so.
40. The mother informed us that she had completed the Mellow Parenting Course which involved twelve weekly sessions which she felt she had learnt from but she had not completed the cognitive behavioural therapy with Dr Gwyer, essentially because she said she did not get on with him. She was still willing to undertake this therapy but with Dr Lawrence. This information had not been communicated either to Adult Psychological Services or to the Children's Service. She was, she said, committed to change but with the right person.
41. The mother attributed her failure to attend appointments to her poor memory (as confirmed by Dr Lawrence). We accepted that in part, but it could not, in our view, provide an explanation for her failure, for example, to attend follow-up out-patient appointments for C after she had contracted HSP, a condition that can lead to renal failure.
42. The mother had attended all the supervised contact sessions (held three times a week) but she told us she was easily distracted - "I float away" - leaving the family support worker, Miss Sandra Jones, to intervene on occasion to keep the children safe. She relied on Miss Jones to provide boundaries for the children, who like all children could be challenging from time to time, in part because she felt her own ability to do so had been undermined by her own "bad" conduct which resulted in them being placed into care; she felt she could not tell them what to do.
43. As both Miss Stark and the guardian pointed out, these proceedings have been prolonged in an effort to provide the mother with an opportunity to demonstrate her abstinence from alcohol, to take advantage of the therapeutic support recommended by Dr Lawrence and this in the hope that she could make progress and demonstrate her ability to resume reliable parenting to her children.
44. The reports of the experts show that she has been unable to commit to remaining abstinent from alcohol, she has not been able to change her lifestyle, she continues to maintain relationships with individuals unlikely to assist her and she has not taken meaningful advantage of the therapy provided to her.
45. The time given to the mother needs to be emphasised. The letter before proceedings sent to her on 13th August, 2010, recites the extensive steps taken by the Children's Service and other agencies to help the mother from as early as 2008. The interim care order hearing on 14th June, 2011, when the Minister sought to remove the children from the mother, might be thought to have been a serious wake-up call for her. In effect, the Court gave her a further chance pending receipt of expert advice, only to find the children had to be removed from her as a consequence of her drinking four days later. Following extensive expert advice, the final hearing scheduled for May 2012 was adjourned so that the mother could undertake the cognitive behavioural therapy recommended by Dr Lawrence. She failed to do so. It is now over two years from the letter before proceedings and some 18 months from the date of the interim care order; over half of D's lifetime.
46. We accepted that the children love their mother and she them and, with some reservation, when sober she might with support be able to meet their day to day needs, but time had run out for further changes. The Court had arguably allowed too much time already for her to address her problems and she had failed to do so. If she continued to make progress, then the natural bond with the children, through ongoing contact, would not necessarily be broken, but on the evidence before us, there could be no question of the children being returned to her care. It would certainly not be right, as Miss Stark said, for the children to be used as a form of treatment for her. As the guardian said, the time has come when the children needed a safe and permanent home and we agreed with the Minister and the guardian that this could not be with the mother for the reasons set out above.
47. The second issue for the Court was the proposal in the care plan for the children to be placed with their paternal aunt. D was too young to express any opinion although he appeared to be happy living with his sister with the current foster carers. C had understandably expressed the wish to live with the mother if possible, although she would like her not to "get into fights". The relationship with her mother was, as the guardian advised, complicated in that she had not been getting what she needed from the mother for some time. For eighteen months she has been living with foster carers whom she likes and the contact with the mother has been supervised by Miss Jones, upon whom the mother has relied for support.
48. There were a number of concerns about the proposed placement; the paternal aunt was a single parent with one child, F, aged 8; because of issues between the father and his family, the children had enjoyed little contact with the paternal aunt and the paternal family generally; the impact upon F with the arrival of the children into her home; the need to move to a new home with more accommodation and the proposal that F should leave her school to attend the same school as the children.
49. It was clear from the evidence of Miss Stark and from the minutes of the Fostering and Adoption Panel, that these issues have been considered very carefully. Every placement has a risk, but as the guardian put it, this was a family group, comprising the paternal aunt, the paternal grandmother and step grandfather, who were putting themselves forward as a group to care for the children. The guardian described the paternal aunt as being very genuine and committed, serious in her approach but welcoming. She was proud of F and of F's achievements and very close to the paternal grandmother, who was in turn very supportive. The guardian had met the paternal grandmother and step grandfather, who were equally committed. She had also met F, who had been involved in the discussions about her cousins coming to live. It was difficult to predict how they will adjust to each other, but the paternal aunt, the paternal grandmother and step grandfather were very optimistic that all three would take it in their stride. In the guardian's view, the support of the paternal grandmother was crucial but she could see a good outcome. They see the children as part of their family and want to do everything possible. The children know that they know them and have a claim on them - that was important. There is a link and a common history.
50. The guardian was concerned that the placement might be delayed by the need for the provision of three bedroom accommodation by the Housing Department but was comforted by the evidence of Miss Stark that if by January 2013 accommodation had not been provided, the Children's Service would look to place the children with the paternal aunt in any event; that would appear to be feasible in her current accommodation. Miss Stark also informed us that the Children's Service work closely with the Housing Department who were aware of the need but could, of course, take no steps until a care order was actually made when they would be top of the transfer list.
51. The guardian was also concerned that the care plan proposes the adoption of the children by the paternal aunt and she sought reassurance from the Minister that once the children had settled in their placement, she would not be put under pressure to adopt the children. In her view, the children need to grow into their relationship together and we needed to trust them to learn what was best. The children knew their mother with whom they would be having ongoing contact. The matter could progress towards adoption but if the mother was able to address her alcohol dependency and move towards a more stable life there may be a balance that the family would find in which the children would remain living with the paternal aunt, who would remain their aunt (perhaps under a residence order) but with an ongoing relationship through contact with their mother, who would remain their mother. We should wait and see the best outcome.
52. It is clear from the evidence of Miss Stark and from the documentation that the Children's Service is flexible in this respect but we thought there was much wisdom in what the guardian said.
53. Having addressed the welfare checklist, we approved the care plan, which despite its risks presented the best option for the children. We agreed with Mr Robinson's submission that a care order was the only order we could realistically make on the facts of this case. In doing so, we took into account the rights of the mother under Article 8 of the European Court of Human Rights to respect for her private and family life but the children's rights were also at stake and their rights must be the paramount consideration (see Yousef-v-The Netherlands [2003] 1 FLR 210).
54. In terms of contact, the care plan envisaged a stepped reduction in contact between the mother and the children to once a month, which as the guardian advised was appropriate. The priority now was to ensure that the children were established in their new placement.
Authorities
Re LA (Children)(Care: Chronic Neglect) [2009] EWCA Civ 882.
In the matter of QQ [2010] JRC 217E.
In the matter of J [2011] JRC 147.
In the matter of F and G (No. 2) [2010] JCA 051.
European Court of Human Rights.