W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Fisher and Olsen.
Minister for Health and Social Services
B (the mother)
A (the child)
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF A (SECURE ACCOMMODATION ORDER)
Advocate D. C. Robinson for the Minister.
Advocate M. J. Haines for the Mother.
Advocate H. J. Heath for the Child.
The Guardian appeared in person.
the deputy bailiff:
1. This is an application by the Minister for a secure accommodation order under Article 22 of the Children (Jersey) Law 2002 ("the Law") in respect of the child. It is not the first occasion on which the Court has had to consider this particular matter. Secure accommodation orders have already been made for periods of three months on 15th November, 2011, 16th March, 2012, and 22nd February, 2013, and on 14th May, 2013, the secure accommodation order was made for a further month. The Minister now seeks to extend the secure accommodation order for a period of two months.
2. The Court sat on 14th and 18th June, 2013, to receive the Minister's application. At the conclusion of the hearing, the Court indicated it was not prepared to make the secure accommodation order requested and that reasons would be delivered later. This judgment contains those reasons.
3. We heard evidence from Ms Rozena Connor, the social worker, Ms Avril Raines, the residential child care officer at Greenfields, Mr Philip Dennett, the director of Children's Services and from the Guardian. We had an amount of written material to which reference will shortly be made. The Minister's case was that the child needed to be protected now, and that a secure accommodation order represented the only way of doing so. As a result the application was for a two month secure accommodation order. Reliance was placed on the history of absconding including some relatively recent absconding from Greenfields where, pursuant to the order made on 22nd February this year, the child has been residing. Reliance was also placed by the Minister on a number of text messages taken from the child's telephone, upon injuries which the child had sustained at the time of the last absconding and on what the social worker perceived to be lies told to her by the child. Reliance was placed on previous judgments of the Court, and in particular the following comments.
4. In the oral judgment of 15th November, 2011, Clyde-Smith, Commissioner, said this:-
"Of the criteria which the Court has to consider, Mrs Heath [sic], for [the child] accepts, as we feel she must, that there is a history of absconding and that if [the child] absconds she is likely to suffer significant harm. The issue relates to whether she is likely to abscond if no secure accommodation order is made. [The child] had told us she will not abscond if she returns to C Children's Home and we have taken that into account but we have to say that the history is such that we have no alternative but to agree with the Minister and with your mother and father that you will be likely to abscond. We are satisfied therefore that the criteria are met and we must therefore grant the secure accommodation order, which we do, and which we agree, being permissive as it is, should be for a period of three months ending on 15th February 2012."
5. On 16th March, 2012, the Court faced a further application by the Minister for a secure accommodation order, the November 2011 order having ceased on 15th February. Events set out in the then social worker's report included the following references:-
(i) On 24th February the child failed to return home after school and although she would answer her phone at times to assure the police she was fit and well, she would not divulge her whereabouts.
(ii) The child was located on 27th February having been missing all weekend. She was found with an injury to her arm, apparently caused by a doorman. Later that evening she was arrested outside Platinum nightclub in possession of a hammer.
(iii) On 3rd March the child left D Children's Home without permission and was located by the police at midnight. She was returned to D Children's Home, but then climbed out of a window with another resident within an hour. She was located again by the police at 8am the following morning and was arrested on suspicion of an assault of a female peer.
(iv) On 7th March the child left D Children's Home again without permission. On her return she was found with love bites on her neck and she had been drinking. The Children's Service had discovered that she had been at the home of a 21 year old male who has since been arrested in relation to the historic sexual abuse of two minors.
(v) On 12th March, D Children's Home received information that the child was intoxicated in People's Park. She was not found there, but finally located at an address in Midvale Road with a 15 year old girl and a 23 year old man. She was intoxicated and abusive and had scratched a male's name down the length of her forearm.
6. These facts were not disputed by the Child.
7. On 22nd February, 2013, Sir Michael Birt, Bailiff, summarised the evidence in the social worker's report as follows:-
(i) On 9th February the child left the children's home without permission and was found at about midnight at an address where a party was being held. She was extremely intoxicated and aggressive, and when returned to the children's home was verbally abusive to staff.
(ii) Two days later on 11th February she again left the children's home without permission. She returned briefly at 10:40pm but then left again and stayed out until 3:45am and would not say where she had been.
(iii) On 13th February she was warned by the Children's Service that they might well have to apply for a secure accommodation order if she continued to behave in that way. She did not heed that warning because on 14th February, she absconded at 11:50pm and stayed out until 2:24am and when she returned she was slightly intoxicated.
(iv) On 15th February she was reported missing from the children's home at 6:00pm and police returned her to the children's home at 12:50am. She was then highly intoxicated and fell up the stairs to her bedroom, and was verbally abusive to staff.
(v) On 16th February she went missing at 6:50pm and was located in town at 2:30am the following morning. She was highly intoxicated and was abusive to the staff who found her and she refused to return. She eventually returned at 9:30am the next morning but refused to say where she had been.
8. The Court saw the child in chambers with her advocate on that occasion, and clearly spent some time considering with anxiety whether the child was likely to abscond. The Court was satisfied that she genuinely intended not to abscond in the future, but nonetheless considered that she was still likely to abscond if she remained at the children's home in question. The Court went on:-
"It follows that we are satisfied that all the criteria met and we therefore have no choice but to make an order.
8. We also urge the Children's Service to concentrate on taking advantage of the time in Greenfields. We are sure that that is what they intend to do but we do urge them to do so. It is not enough just to keep [the child] safe and secure for three months because she is in a secure accommodation; it is important to do the necessary work and to build on what she says is a real intention to change so that if that is indeed genuine, she would be in a much stronger position when she comes out."
9. The Court made the order on a permissive basis for three months and in particular urged the Children's Service to give consideration to the child going back to school as soon as possible consistent with her safety. The Court indicated that it was "terribly important" that she resumed her education and that the least time she was out of mainstream education the better.
10. The reference in the Court's judgment in February this year to the work which the Children's Service intended to do was a reference to work with the child and Adolescent Mental Health Services, and a reference to work needed to be completed with both the mother and the child and the Drug and Alcohol Services.
11. The social worker's report dated 13th June, 2013, which was essentially the basis for the Minister's application, shows that following the making of the secure accommodation order in February, considerable progress was made. The secure accommodation order was used permissively, and the child's attendance at mainstream school was promoted, with unsupervised time with friends and family being allowed to her from time to time. The intention was to allow the child to demonstrate that she was able to make good decisions and keep herself safe. This approach has been described as the child being placed on "Level 3" at Greenfields, a matter to which we return later. On 25th May she was allowed time with her friends. However although she checked in with staff on a regular basis throughout the day, from 7:50pm, she did not do so, and when she was telephoned by staff, she directed them to different places in the Island to collect her. However she was at none of the locations given. She was accordingly reported as a missing person, and she was eventually located at 00:35am on Monday 27th May.
12. On her return to Greenfields, the child had a bandaged hand. She informed staff that she had punched a wall. She said that she had attended the Accident and Emergency Department of the General Hospital on the night of 25th May. Contact was made by the social worker with that department, who checked their records and indicated that there was no record of any female being treated between 11:00pm on 25th May and 4:00am on 26th May. This of course leaves open the question of what the child was doing during this period. The child apparently told the social worker that, having received treatment for her hand, she went to the house of a friend of hers at Five Oaks where they fell asleep. She said that she had been drinking vodka, which her friend had purchased, at the Havana Club. When she woke up, it was because her father was calling her and she told the social worker that she then left her friend's house and walked into town to meet the same friend and they went to Howard Davis Park. They then went to the Millennium Park before returning to the friend's house where they stayed all day until approximately 7:00pm or 8:00pm. This account of what happened was believed to be incorrect particularly in the light of various text messages which were subsequently obtained when the police seized the child's telephone and reviewed incoming and outgoing messages on that telephone. On the basis of these text messages, the social worker expressed grave concern that the child was placing herself at the risk of sexual exploitation, that she was at risk of sexual harm in the form of rape, and that she was playing a part in orchestrating meetings between young females and older men. We were told that there was a police investigation into all these matters which was ongoing.
13. In his closing summary, Advocate Robinson asserted that the Minister considered the text messages to be an important part of the risk assessment, and added to that was the question of the child's bandaged hand over the evening of 25th May and her lies to the social worker.
14. By contrast Advocate Heath, on behalf of the child, pointed to the minutes of a professionals' meeting held on Tuesday 4th June at 2:00pm. The purpose of the meeting was to discuss internal resources in respect of the child's care plan and what needed to be put in place to assist a transition to a care home other than Greenfields, and to minimise risks. The minutes show that the professionals acknowledged that for any care plan to work, the child needed to achieve the right mindset in order to take responsibility for her own actions in terms of her behaviour and the choices which she made.
15. It is clear that the professionals were much influenced by the comments of a police officer from the Police Protection Unit who attended. His comments as revealed in those minutes were challenged by both the mother and the child and as a result it was intended that he should be called to give evidence. Instead, the Minister agreed to have the minutes redacted so as to exclude the police officer's comments, and it followed that there would be significant redactions also from the report of the social worker. The Court has proceeded on the basis of the revised information, conscious therefore that there may be other information generated from the police investigation of which we are currently unaware.
16. Advocate Heath also relied upon the minutes of a strategy meeting in relation to the child held on 5th June. Those minutes reveal that the professionals felt reassured by the care plan in place, which included an exit plan, and "it was agreed that an extension application [in relation to the secure accommodation order] was not necessary. [The child] remained at Level 1 at Greenfields. However this decision was subject to any new information of concern that the police brought to today's strategy meeting and on that basis subject to change and review."
17. The submission made on behalf of the child therefore was that it was plain that as of 5th June, prior to the strategy meeting, the Children's Service did not consider any renewal of the secure accommodation order was necessary. The only change since then, the minutes having been redacted for the reasons set out in paragraph 15 above, was the production of various text messages extracted from the child's telephone in respect of the text messages. It was submitted by Ms Heath and the guardian that the Court could effectively take judicial notice of the fact that children frequently send messages on each other's telephones, and that there was no evidence that the messages on this telephone, admittedly the child's telephone, had in fact been sent by the child. It was also contended that some of the messages were sent as a joke. The Court was asked to consider the text messages against that background.
18. The child is the subject of an interim care order, the application for the final care order being set down for hearing in September this year. In the course of those proceedings, the Court has ordered the production of a psychological report by Dr Bryn Williams. An initial report had been provided on 31st May, 2012, but additional questions were posed, and an addendum report prepared, dated 10th April, 2013. This was further expanded by letter dated 10th May, 2013.
19. The reports of Dr Bryn Williams raise some substantial concerns. Critically however, the report contains a recommendation that the child requires a therapeutic placement, in which she could be supported, to the best of her ability to learn effective and safe ways of behaving using a combination of non-violent resistance, and through nurture, modelling, stimulation and support so that she can be encouraged and helped to make adaptive changes in her life. It was said that this would require a well-resourced foster family, or probably more appropriately, a very small care home. Whether Dr Bryn Williams' suggestions are endorsed or not will be a matter for the Court dealing with the final care hearing.
20. It has always been clear that the child's own wishes are that she should live with her mother. In the submissions of both Advocate Haines, for the mother, and Advocate Heath for the child, and in the evidence before us of the guardian, it was said that the delivery of Dr Bryn Williams' report in April 2013 came as a bombshell into the child's life. Suddenly, all hope was gone. She had been making good progress under the secure accommodation order, and had been beginning to demonstrate a satisfactory response to the issues which she faced. Now, the final care order application date looming, it was apparent that the experts were contending she should not go to live with her mother after all. While the Minister had been equivocal about that possibility at an earlier stage, now it was obvious to her that she would not be returning to her mother's care. As the guardian told us in her evidence, the child asked her, in the context of following the rules at Greenfields "what's the point?". The absconding of 25th May had to be seen against that background.
21. The Court so far has granted to the Minister secure accommodation orders on a permissive basis. This has enabled the Minister to determine the extent to which the child will be kept in conditions of close security. We have been told that at Greenfields there are essentially three levels of security. At Level 1, the person subject to a secure accommodation order is not permitted to leave the property at all, unless accompanied, and is generally subject to a very strict regime. At Level 2, the regime is relaxed to an extent, and some privileges are afforded to the person in question. At Level 3, there is a further relaxation such that the person who is subject to the secure accommodation order will be allowed to attend school and, subject to an obligation to keep the staff members at Greenfields informed as to where he or she is at any given time, to meet with friends and family without being accompanied by Greenfields staff.
22. It transpires that during the last three or four weeks, the child in this case has been held consistently at Level 1. The Minister's position is that the way in which the secure accommodation order is utilised is a matter for the Minister and not a matter for the Court; and it would seem to be a necessary extension of the Minister's position therefore that the Court should not be concerned either with how the child has been held previously or how the child might be held in the future if a secure accommodation order were to be made. The Minister's position was that the statute confers the executive power on the Minister and not upon the Court, and by comparison of our Article 22 with Section 25 of the Children Act 1989 which is in similar terms, reliance was placed upon the judgment of the Court of Appeal in Re K (Secure Accommodation Order: Right to Liberty)  1 FLR 526 at paragraph 97 on page 554 where Judge L J said this:-
"In summary, S25 therefore, forms part of the overall framework for the support and welfare of children who present particular difficulties and who for their own protection and that of others, and to ensure their continuing education, require that the accommodation in which they are being looked after should be secure. The necessary authorisation in domestic law, enabling the local authority to restrict the liberty of such children is provided by the Court order. Although the maximum length of any order must be specified, the question whether this authorisation should be used, and if so for how long and in what degree, remains with the local authority. If and when the statutory conditions ceased to apply, the order may no longer be enforced (LM -v- Essex County Council  1FLR 988)." (emphasis added).
23. Advocate Robinson submitted that the words "in what degree" are a direct reference to the type of arrangement as such as is described above in relation to Levels 1, 2 and 3 at Greenfields. We return to this point below.
24. In his closing submissions, Advocate Robinson contended that there was no other option but a secure accommodation order at the present time. He said that it was clear that, on the facts, the first limb of Article 22 was made out and that accordingly the Court was bound to make a secure accommodation order. For the purposes of the submission that the Court was so bound, reliance was placed on Article 22(3) of the Law.
25. The relevant parts of Article 22 of the Law are in these terms:-
"(1) Subject to the following provisions of this Article, a child who is being looked after by the Minister may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (secure accommodation) unless it appears:-
(a) That -
(i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and
(ii) if the child absconds, he or she is likely to suffer significant harm; or
(b) That if the child is kept in any other description of accommodation he or she is likely to injure himself or herself or other persons.
(3) The Court hearing an application under this Article shall decide whether the necessary criteria for keeping a child in secure accommodation are satisfied and if so it shall make an order -
(a) Authorising the child to be so kept; and
(b) Specifying the maximum period for which the child may be so kept."
26. Advocate Robinson's submission that, if the Court were satisfied that the necessary criteria in Article 22(1) were satisfied then the Court had no option but to make a secure accommodation order because, by virtue of paragraph (3), the word "shall" is mandatory, would, if correct, appear to remove any discretion from the Court not to make such an order. In theory, this could lead to quite startling results. It would mean, in theory at one extreme, and we emphasise that this is entirely hypothetical, that even if the child were absconding because he or she were being beaten by an employee of the Minister every night, the Court would be obliged nonetheless to make a secure accommodation order, the result of which might be the continued beating of that child. At a less extreme level, it may be that the child was absconding not because of some deliberate misconduct on the part of the Minister's employees, but, taking Advocate Haines' illustration, because of some neglect, as when the staff in question had been unable to deal with bullying of the child by another inmate of the home where the child was accommodated leading the child to abscond. It would seem to follow from Advocate Robinson's reliance upon the mandatory nature of Article 22(3). Advocate Robinson's position was that even if the absconding was attributable to deliberate misconduct or some ineffective supervision of the child by the Minister, the Court was obliged to impose a secure accommodation order, effectively removing the child's liberty.
27. In this case, for the reasons to which we will shortly come, the issue does not in terms arise albeit the matter has been argued before us. However, we would not have been prepared to accept Advocate Robinson's submissions in this respect. The Court is charged under Article 22(3) to make a secure accommodation order if all the necessary criteria for doing so are satisfied. The necessary criteria certainly include the criteria set out in paragraph (1) of that Article, but those are not the only criteria. By virtue of Article 7 of the Human Rights (Jersey) Law 2000, it is unlawful for the Court, as a public authority, to act in a way which is incompatible with a convention right. Similarly the Minister, as a public authority, is obliged not to act in a way which is incompatible with a convention right. By Article 4 of the Human Rights Law, principal legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights. For these reasons, it is clear that in considering an application for a secure accommodation order under Article 22, the Court must have regard to the relevant convention rights and, so far as it is properly able to do so, read down the legislation to ensure that the Court's decision is not incompatible with those convention rights. These are part of the "necessary criteria" about which the Court must be satisfied under Article 22(3) of the Law. There are plainly some convention rights which are engaged by the process of granting a secure accommodation order. These include Article 5 of the European Convention - see Re K (supra) at paragraph 32 on page 537 where Dame Elizabeth Butler-Sloss, P said:-
"In the light of the concession by the UK government, and for the reasons which I've set out above, for my part, I am satisfied that a secure accommodation order is a deprivation of liberty within the meaning of Art. 5 and requires, therefore, to come within one of the exceptions set out in Art. 5(1) so as not to be incompatible with K's right to liberty under the Convention."
28. Later in her judgment, Dame Butler-Sloss accepted the distinction between a complaint that a step taken by a local authority pursuant to a power granted by statute was in breach of the convention and a complaint that the statutory provision was itself incompatible with the convention. This emphasises the need for decisions taken under Article 22 to be consistent with the Convention rights involved.
29. In that case, reliance was placed by each of the judges on the decision of the European Court of Human Rights in Koniarska-v-UK (Unreported) 12 October 2000 which ruled inadmissible a contention that the statute was incompatible with the convention. In Koniarska, the Court stated:-
"In the context of the detention of minors, the words "educational supervision" must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned."
30. We are satisfied that Re K and Koniarska are good authority for the proposition that Article 22 of the Law is not incompatible with the Convention. However the provisions of Article 22 must be read and applied in a way which is compliant with the European Convention. This requires that the Court be satisfied that it is proportionate to make the secure accommodation order. Such a conclusion is an inevitable consequence of the requirement in paragraph (3) that the Court must decide whether all the necessary criteria are satisfied.
31. Advocate Haines submitted that the word "shall" was in any event not to be construed as carrying the weight which Advocate Robinson suggested it had. He relied upon an extract from the judgment of Hoffman L J, as he then was, in the case of Re M (a minor)(Secure Accommodation Order)  1 FLR 418 when he said at pages 426/427:-
"It seems to me that the question of whether a decision to keep the child in secure accommodation would be in accordance with these statutory duties imposed upon the local authority must be among the "relevant criteria" to be considered by the court under Section 25(3). It is said that the mandatory language of sub-section (4) - if the court determines that the criteria are satisfied, it "shall" make an order - suggests that the criteria must involve giving a yes or no answer to a question of fact rather than a flexible application of general principles. But the mandatory element in sub-section (4) is to some extent illusory. True, the court shall make an order, but the maximum period for which he may be kept is a matter for the court's discretion. Since there is in practice little difference between an order for a very brief period and no order at all, the use of the word "shall" does not seem to me to carry much weight. Thus I think that the duty of the court is to put itself in the position of a reasonable local authority and to ask, first, whether the conditions in sub-section (1) are satisfied and secondly, whether it would be in accordance with the authorities duty to safeguard and promote the welfare of the child (subject to the qualification in Section 22(6)) for the child to be kept in secure accommodation and, if so, for how long."
32. The reference in this extract to "the statutory duties" was a reference back to Section 22 of the UK Act on which Article 19 of the Law is modelled. Thus it was said by Advocate Haines that the Court had to be satisfied that the Minister was safeguarding and promoting the child's welfare in making the application for a secure accommodation order and this was one of the relevant criteria. Both he and Advocate Robinson accepted that there was no difference between the expression "relevant criteria" in the UK Act and "necessary criteria" in the Law.
33. We do not have to decide whether to follow Hoffman L J today. It may be that the approach which he enunciates is not far away in practice from the approach which we have described in relation to including, as part of the necessary criteria, the requirement that the Court is satisfied that the Minister is acting proportionately. Whilst leaving the approach of Hoffman L J open for decision in a future case should that be necessary, we merely say for the time being that in our view the European Convention approach seems to us to provide a more solid foundation for the construction of this particular Article.
34. For this reason too, we reject the submission of Advocate Robinson that the Court is not concerned with how the authorisation of a secure accommodation order has been used or is to be used. The obligation of the Minister is to act proportionately and in a convention compliant way. It seems to us, on a proper construction of the statute, that if a Court were not to be satisfied that the order would be applied in a convention compliant way, it would be obliged not to make the order. Although in this case, the Court has been extremely concerned that the child has been detained at Level 1 for such a long time - which was a form of detention which both the guardian and Advocate Heath suggested was having an extremely adverse effect upon the child's emotional health, which allegation the Minister through Advocate Robinson rejected - this is not the basis upon which the decision not to grant a secure accommodation order in this case was made because we did not need to go so far. However, it would have been an entirely legitimate construction of the statute for these matters to have received consideration.
35. Given the redactions in the relevant minutes and in the social worker's report which the Minister has agreed, it appears to us that the one thing which caused a change of heart on the part of the Children's Service in relation to the risks to the child are the text messages. The Court was taken to them by all parties and it is unnecessary to set them out in detail. We say immediately that they are not appropriate messages for a 14 year old child to send and they are a cause for concern. However, although for present purposes we are prepared to assume that the child sent and received the messages in question, they do not appear to be us to be a sufficiently significant reason for thinking, either on their own or in conjunction with the other risk factors in this case, that the child is now likely to abscond when on June 5th the Children's Service did not think this was the position. They do reveal a child who needs to receive help and guidance in respect of their content, both because they have been sent at all; and because of the responses received from and reactions likely to be inspired in adult men; and because they reveal anxieties on the part of the child which ought to be capable of being talked through and assuaged. In some respects they reflect historic facts. In some respects they show an awareness of the reactions which the child might inspire in others. In some respects, they seem to us to reflect the challenges which a child of this age presents as she experiments on going through the growing up process. These are challenges that, one hopes, might be resolved by empathetic communication rather than diktat.
36. The child's behaviour in this case is extremely worrying, as the Court has concluded on previous applications for a secure accommodation order. She has not in the past seemed to appreciate that it is not normal for young girls of 14 to be out and about unsupervised in the early hours of the morning. She has not seemed to appreciate the dangers of excessive use of alcohol, nor of the risks of her being used for the sexual gratification of older men. As an example of these risks, it has been said to us that she has recently administered to herself a pregnancy test which has proved positive, but the result has not been confirmed.
37. What is disappointing about this case so far is that notwithstanding these various risks having been well identified months ago, there seems to have been little progress made by all parties in addressing them. The Children's Service asserts that the child does not assume some responsibility for herself and that there is only so much they can do as adults if the child herself will not engage with the arrangements which need to be made. The Mother asserts that the Children's Service have been talking about providing drug and alcohol advice and assistance from CAMHS, but despite the talk, no meetings have been offered. The guardian tells us that both mother and the child assert there has been no real communication with the social worker given responsibility for this child in March this year, and that her experience is that the mother and the child do engage and participate in meetings. She told us that the child is very vocal in expressing her wishes, and that the guardian has drawn up a dream care plan. This clearly envisages, as far as the child is concerned, that she should return home to be with her mother and sister as a family. The guardian is clear in those circumstances that the possibility of foster care is not an option which either the child or the mother would see as viable.
38. Following the secure accommodation order made in February, Ms Raine told us that the child responded positively. She has dealt with the child for some two and a half years and things could be chaotic, especially if the child had been drinking, but very often she was "a delight". In February this year she was on Level 3 at Greenfields by the 10th day, the quickest progress possible under their systems. She had time out without staff with friends and with her mother. She told us that the mother was committed to the child, and would telephone at least once a day, every day before bedtime. She was "in constant communication". It was very, very important to the child that she might go home to her mum. It seems therefore that when the secure accommodation order was first made in February there was a very positive response. This is in marked contrast to what followed next.
39. In April, however, the child was given the report of Dr Bryn Williams. It is not clear who gave her the report, but she was adamant she wanted to read it. Ms Raine told us that she could not stop the child from doing so and she sat with her as she read it because there was no one else to do so. This seems to us to have been most unfortunate. At all events, they were up until 2:00am. Ms Raine wrote out a list of questions for the child to ask, because she was not competent to deal with them herself. It was clear that the child was very troubled by what she read. Later on, she took it very badly when the Children's Service told her that they were not intending that she should go back to live with her mum. Again this led to a discussion with Ms Raine late into the night.
40. From the moment that the child felt that she would not be going home, her engagement, according to Ms Raine has waned. "I don't care" is a regular reaction. The last three weeks have been extremely difficult. It has been difficult to get the child out of bed. Once she is up, she will just sit in front of the television. None of these difficulties arose prior to her seeing the Bryn Williams report.
41. The guardian told us that the expression "what's the point" is one she too has heard from the child frequently. The child has been informed, apparently, that she would stay at Level 1 at Greenfields until Mr Dennett, the Children's Service Director, decided otherwise. In the guardian's view, the child needed a definite timetable. The explanation for the absconding which took place at the end of May was that as the system was not moving in a direction that could achieve the child's wishes, there was not much purpose in engaging with it.
42. We have been very troubled as to how it might be possible to break this circle - a lack of trust on the part of the mother and the child leading to non-engagement with professionals who themselves are finding that their efforts are not receiving the response which they think is required. Certainly, some action needs to be taken, and soon, to find a way forward which has the best chance of success. We do not doubt that there are some quite difficult circumstances which face the various Children's Service officials in this case, and we certainly have some sympathy with them - but that circle must be broken so that trust in the professionals, particularly on the part of the mother whose relationship with the child is so important, might be recovered. We add that it is essential that in the course of the next months the mother responds positively to the Children's Service and that the child recognises that her mother has done so. Mother and child must work together in this respect.
43. It may be thought that this discussion is not relevant to the secure accommodation order. In our view, however, it is. The question for us in the first instance is whether the child is likely to abscond if not placed in secure accommodation. She clearly has a history of absconding, and there is clearly a risk that she will. If she does abscond, there is clearly a risk that she will suffer significant harm. However we are required to decide, on the balance of probabilities, whether it is likely she will abscond, and if she does whether it is likely she will suffer significant harm, and therefore the causes of any potential absconding fall within the ambit of our review in order to assess that likelihood. If a position can be reached where the cause of absconding is removed, then it would be not only be disproportionate to make a secure accommodation order, but in the ordinary language of the statute, it would not be likely that the child would abscond, notwithstanding the previous history. We think that can be achieved by a recognition on the part of the child and the mother that notwithstanding the report of Dr Williams and the current views of the Children's Service that they would not support a return to her mother's care, hope in that respect is not lost until the Court has made that order. Of course it may make it, but to date, the question is unresolved - no one knows what order the court will make until the hearing itself and it is clear that there is room for considerable enquiry as to what is the best course to pursue.
44. It seems to us that the child needs to believe that an outcome which is in her best interests and with which she agrees is not an impossible dream. That affords the best chance of appropriate help and treatment being provided to her. She is of an age that makes it essential that she engages with any therapy which is planned for her benefit, or it stands little chance of success. In our view, the first step is for the relevant professionals to give her an opportunity to believe in the possibility of such an outcome. If that can be achieved, then we consider that the Minister has not satisfied us that the child is likely to abscond. Of course she may abscond - but the circle is potentially broken only by taking the step of giving the child the possibility of believing that there will be a good outcome to these proceedings. The alternative would appear to be a series of secure accommodation orders for the indefinite future, which would do the child enormous emotional harm.
45. The final care order application is in September. We understand that at the expiration of the current secure accommodation order, the child will be placed in D Children's Home, which is said to be not entirely satisfactory for a number of reasons none of which are the fault of that care home. We accept that D Children's Home may not be the ideal placement in the circumstances of this case. It may well be that 24 hour care in a place such as E, if refurbished, might be an appropriate therapeutic placement. It may be that there are other possibilities. These are matters for the Children's Service to investigate urgently. We are minded to think that the child herself must realise - and both Advocate Heath and the guardian will no doubt emphasise this to her, as should her mother - that her behaviour between now and the date for the hearing of the final care order application may well be critical to whatever decision the Court then takes. Indeed, the mother's reaction between now and September may also be critical to the final decision at which the Court then arrives. What is essential is that all parties re-engage in a process of communication, rather than build the walls of Jericho around themselves for protection whilst other parties seek to knock those walls down.
46. Because for the reasons given we are not satisfied that the child is likely to abscond if the secure accommodation order is not made, the threshold test under Article 22(1) is not met and we have no jurisdiction under Article 22(1) to make a secure accommodation order in favour of the Minister as requested. That is not a permanent finding in the sense that the situation may change - the child may abscond, and if she does, she must realise that a further application by the Minister for a secure accommodation order would stand a good chance of success.
Children (Jersey) Law 2002.
Children Act 1989.
In the matter of A (Secure Accommodation Order)  JRC 125.
Re K (Secure Accommodation Order: Right to Liberty)  1 FLR 526.
Human Rights (Jersey) Law 2000.
European Convention on Human Rights.
Koniarska-v-UK (Unreported) 12 October 2000.
Re M (a minor)(Secure Accommodation Order)  1 FLR 418.