Jersey Unreported Judgments

Care Order - application for full care order.

[2013]JRC252A

Royal Court

(Samedi)

12 December 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Fisher and Crill.

 

IN THE MATTER OF L (CARE ORDER)

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

Advocate D. C. Robinson for the Minister.

Advocate E. L. Wakeling for the Respondents.

Ms E. Fernandes, Guardian.

judgment

the deputy bailiff:

1.        This is an application by the Minister for a full care order in respect of the child of the marriage between the mother and the father, both of whom have a number of physical and mental health problems.  The child was born in January 2013, and protective measures were initiated by the Minister on 24^th January.  It is accepted that this latter date is the relevant date for the purposes of determining the threshold criteria under Article 24(2)(b) of the Children (Jersey) Law 2002 ("the Law"). 

2.        Much of the summary of the Minister's position in relation to threshold has been agreed.  To the extent that it was not agreed, a very limited amount of evidence was put before us.  Neither the mother nor the father had put to them in cross-examination the contested contentions, at least for the most part.  Although some of these contentions are reflected in independent documents at the time, we have accordingly proceeded upon the basis only of the admitted threshold findings in the Minister's document. 

3.        Following the birth of the child, the Court made an interim care order and directed that an assessment be made of the parents at Orchard House, the Family Assessment Centre in the United Kingdom.  The most important threshold finding, which is accepted by the parents is that during the residential assessment at Orchard House from 6^th February to 1^st March, 2013, they were unable to care for the child independently.  The view expressed by Orchard House was that without the full support of a multi-disciplinary team, the parents would be unable to parent the child safely and meet his needs.  The assessment was intended to take place over a period of three months.  In fact it was brought short after a period of some three and a half weeks. 

4.        The nature of the Court's enquiry into whether or not threshold has been reached is limited where the parents and the guardian accept the Minister's contention that it has.  (See for example In the Matter of T [2011] JRC 098 para 2.)  That is the position here.  We are satisfied that the threshold criteria have been made out and we therefore go on to consider the welfare stage. 

5.        Since the parents' return to Jersey with the child in March, the child has been in the care of foster parents.  He is doing very well.  He has seen his parents regularly, contact sessions taking place for a few hours three or four times a week.  These sessions have always been supervised, and, for the most part, have been attended by both parents.  The father, however, has not always attended play group with his son, because he found he was generally the only adult male present.  We understand that and make no criticism of him in this respect. 

6.        The Minister's care plan involves an arrangement for the child which will give him permanent care in a loving and secure home.  The Minister contends that the matter is increasingly urgent, and that the child should be freed for adoption, with only annual letterbox contact from the parents.  The Minister contends that the child needs to be placed with adoptive parents soon, in order that he has the best opportunity to make a secure attachment to them. 

7.        The parents resist this course of action.  They contend they have not really been given a chance yet to show that they might be "good enough" parents for this child.  In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at page 2063, Hedley J said this:-

"It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it.  It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability.  These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of their defective parenting."

8.        This passage was approved in Re B (a child) (Care Proceedings: Threshold Criteria) (SC (E)) [2013] 1 WLR 1911.  We note the passage has already been approved and applied in the past in this court.  (See for example In the matter of the A Children (Care Proceedings) [2013] JRC 168B). 

9.        What the passage recognises is that some children will suffer harm, and that it is not the province of the court to prevent every child from suffering harm.  Of course that is not to say that the court is sanguine about a situation where children experience harm; it is rather to say that as a matter of practicality and common sense, it is simply not possible to avoid the situation where some children suffer some harm.  Indeed if we were to try and avoid it, by taking children away from their parents simply on the possibility that there might be some harm suffered, there would be a significant risk that more harm would be caused, completely avoidably. 

10.      Sometimes this debate is turned into a discussion as to what is meant by "significant harm".  We note that the Supreme Court in Re B (supra) declined to define what was and what was not significant harm.  What was interesting in that case however was that a finding of significant harm required proof of facts which were specific, attributable to the lack or likely lack of reasonable parental care, and not simply to the personal traits of the child and/or the child's parents.  To be significant, the harm had to be considerable, unusual, noteworthy, or important. 

11.      The burden is on the Minister to show that the parents will not be "good enough" parents, applying this test and it is to this that the parents say that they have not yet been given a chance to prove themselves.  They would like to be subject to a further assessment by Orchard House.  We note in passing that the parents were further assessed in Jersey in July this year, when the amount of contact was substantially increased for the period of assessment, but the Orchard House view at that stage did not change.  However, the assessment again took place in circumstances where the parents were never left alone with their child, and never given the opportunity of demonstrating their ability to provide a secure home for him. 

12.      All the evidence before us is to the effect that these parents love their child deeply.  Furthermore, this is not a case where any neglect or defect in parenting is down to any conscious lack of effort by the parents, or any absence of good intention on their part.  The mother told us she was very happy when her child was born.  She was worried about him, but she is becoming more confident in dealing with him.  He should not be taken away.  She said "He is our world.  It would break my heart if he is adopted". 

13.      When the father gave evidence, it was to like effect.  He told us he was elated to discover that he and his wife were to have a baby, and when the child arrived, it was just joy.  He added "I feel amazing when contact with [the child] comes round.  I can't explain how lucky I feel, how blessed."

14.      When the social worker gave her evidence, which she did with great sympathy and professionalism, she agreed that:-

(i)        The parents would feed the child. 

(ii)       The parents would clothe the child. 

(iii)      The parents would take him to the doctor if they thought he was ill.  In fact she thought they would take him to the doctor too quickly, even if he had a minor sniffle. 

(iv)      The parents would send him to school. 

(v)       The parents would love him, talk with him, and play with him. 

15.      The contact logs significantly bear out these statements.  So what is the problem?

16.      The problem is not concerned with the marriage between the father and the mother.  The parties had been married for some twenty months, and were in a relationship for six to twelve months before the marriage.  B described his wife as "marvellous".  She is everything to him.  A said that she loved her husband very much.  All the evidence before us has been to the effect that this is a mutually supportive marriage in circumstances which are not easy for either of the parties to that marriage.  

17.      The Court had available to it a psychological report on the parents prepared by Dr Joshua Carritt-Baker, a Chartered Clinical Psychologist.  The date of the report was 30^th January, 2013, and the assessments were made by him on 16^th and 17^th January.  He was asked to address specifically a cognitive assessment, a psychological assessment, a risk assessment and an assessment as to capacity to change in relation to both parents.  It is clear that the mother was very nervous during interview - she was very hesitant and there were long pauses in her speech.  She constantly played with her hair and exhibited signs of anxiety.  The mother appears to have told the psychologist that she suffered with a personality disorder - about which there is now some doubt - and from fibromyalgia, a painful form of muscular rheumatism.  What is clear from the psychological report is that both parents were reluctant to engage in any sort of comprehensive assessment.  There is an important caveat to the Psychologist's report, which is that:  "This report is therefore provisional and/or incomplete and should not be regarded as a full expert witness assessment.  Clearly, however, there was a reasonable amount of information available from a variety of sources about many of the key issues ..."

18.      The variety of sources included two interviews with Ms. Tandy, the Social Worker, with a follow up telephone interview with her, an interview with Ms. Magee of Headway, an interview with Mr. Des Curran, B's care co-ordinator, and the results of some of the Wechsler Adult Intelligence Scale tests performed by both B and A. 

19.      In terms of cognitive assessment, Dr Carritt-Baker said that general cognitive factors were not a clear concern.  Both parents have verbal and non-verbal reasoning skills that are not grossly impaired and would not ordinarily be expected in themselves to interfere with parenting.  The mother's scores may have been reduced by her relatively advanced state of pregnancy and her low mood at the time.  The father has a variety of problems stemming from a head injury which he sustained some years ago after a fall from a balcony, which resulted in brain injury, with diffused haemorrhaging and resulting in subsequent disability.  He has both mobility and dexterity problems which are clearly relevant to practical aspects of parenting, which the psychologist noted, but which fell outside his area of expertise.  However he added, importantly, that the father in his view tended to under-estimate or under-state the implications of his mobility issues in relation to parenting and he suggested that specific detailed observations would need to be undertaken to determine what the father is safely able to do in terms of handling a baby.  In addition, the father's memory problems would make it very much more difficult for him consistently to implement advice or information. 

20.      Dr Carritt-Baker thought both parents had personality characteristics that it would make it difficult for them at times to engage with professionals who are providing input and advice.  From our observation of what has taken place in this case so far, it may well be that the difficulties which the parents have in accepting advice depends in part on the nature of the advice and in part on the identity of the person who imparts it.  It is clear, for example, that advice given to the parents about smoking during the mother's pregnancy was not well received, and to us it was apparent that the Social Worker was unimpressed that good advice in this respect was being apparently disregarded, although the mother did claim to have reduced her consumption of tobacco at that time. 

21.      In terms of the psychological assessment, Dr Carritt-Baker identified the mother's problems as characterised more as mental health issues than as a personality disorder.  He thought that her anxiety and chronic pain might well be amenable to psychological therapies, although he thought there was a significant problem in the parents' willingness and ability to engage in interventions or treatment upon the basis that everything would be all right.  Dr Gardner has more recently reached a similar conclusion. 

22.      What is difficult about Dr Carritt-Baker's report is that, having identified that the mother's problems are more to be characterised as mental health issues than as a personality disorder, the report then goes on to consider the reaction which people with personality problems have to different stress factors, and what therapies might be available.  Dr Carritt-Baker did not give evidence before us and these apparent inconsistencies in his report have therefore not been explained.  In fairness to him, it appears to us that Dr Carritt-Baker's ability to provide a report that would be of significant help in these proceedings was impaired by the approach which the parents took to the interviews which took place before the child was born.  What we can say however is that there is very little in the psychological report at that time which suggests any problems closely approaching those which we normally see in public law children proceedings of this kind. 

23.      That the mother has some psychological difficulties is suggested in the medical reports of her general practitioner, who says that from the psychological point of view, she is prone to low mood.  He indicates that since she was a teenager, she has had psychological and psychiatric input and care many times over the years.  What is not clear is whether any such psychological difficulties might in fact be improved by the presence of a baby and the drive of motherhood which, as her general practitioner indicates, has the capacity to distract her from her own symptoms and may in fact lead to more permanent improvement.  She was severely depressed in the autumn of 2011 when unfortunately it appears she took a serious overdose which could have had tragic consequences. 

24.      Although Dr Gardner gave evidence that the mother suffered with complex psychological problems, there is not much in the Orchard House reports which deal with these in great detail.  What we can see is that the different Orchard House reports show a continuing improvement in the mother's mental health and psychological functioning; and even more importantly that Dr Gardner, whose care and interest was shown by her voluntarily remaining in court for a further day after she had given evidence in order that she might hear the evidence given by the parents, was recalled and informed us that while she was giving evidence the mother showed significantly improved levels of confidence over those which had been demonstrated even in the summer of this year, which was extremely positive. 

25.      As a result of the fall from a balcony, mentioned already, the father has physical and mental health problems.  There has been an impairment of his IQ, and he has an organic schizophrenia like disorder.  This however is well controlled on the medication which he takes.  We noted that in the Orchard House report of 9^th August, 2013, there had earlier been evidence of some improvement in the father's mental health and psychological functioning.  Indeed that had led to the suggestion that there should be a further assessment of the child in interaction with his parents in the context of contact in Jersey.  The report concludes however that although for periods of contact the parents were able to provide sensitive and largely appropriate parenting and care for the child, and in spite of their on-going love and commitment for him, an intensive assessment revealed evidence that they were not able to provide consistent and appropriate parenting and care over longer and more intensive periods.  Dr Gardner's report in August 2013 concludes that:-

"It is my opinion that the intensive assessment revealed evidence that the parents were not able to provide consistent and appropriate parenting and care for L over longer/more intensive periods.  There was evidence of difficulties and the provision of basic and emotional care.  It is my view that the function of the parents also revealed evidence that it would be very unlikely that the parents would be able to meet the comprehensive and changing needs of [the child] for the long term given the nature and extent of the difficulties of both parents and their significant and long-term individual needs."

26.      When she gave evidence before us Dr Gardner thought that the mother was capable of learning a parenting technique, but she had not shown that she could move on and adopt that to meet any new problem.  She could not build on her experiences to create, as it were, a bank of parenting skills which could be applied to meet different circumstances. 

27.      It is against this background of accepted physical disability on behalf of the father and the rather uncertain psychological assessments of the mental health difficulties in relation to both parents that we turn to the fundamental issue which the Minister contends makes a final care order appropriate, and accordingly a freeing for adoption order.  At the end of it all, the Minister's contention is really based on the proposition that these parents cannot be relied upon to provide a secure environment for the child which will enable him to be safe.  This contention is premised on the following observations:-

(i)        There are said to be road traffic issues, such that the mother cannot be trusted on the roads with the baby in his pram.  Reference is made to an incident on 9^th July, 2013 when, during a contact session the mother stopped before the crossing place, and did not seem to be observing oncoming traffic.  Accordingly she did not notice that a car had stopped to allow her to push the pram across the road.  She was no doubt engrossed in her baby.  She had not pushed the pram into the road, and had not done anything, so it seems to us, to suggest any cause for concern at all.  A lack of awareness that a car had stopped to allow her to cross when she was not trying to do so at that time is not on the face of it grounds for suggesting that she is unable to keep her baby safe.  The second occasion was two days later on 11^th July when, on her way back to the flat, the mother was pushing the pram on the pavement.  A car had stopped on the pavement, making it narrow for the pram, but the mother kept going and the pram became lodged between the wall and the car.  The mother had not realised that the driver was in the car and was about to move off.  This apparently put the baby at risk.  We accept that it might have done.  The third incident took place on 21^st October, when the mother went to cross the road with her baby.  The father told her to wait, in a raised voice, because there was a lorry approaching.  The observer of contact thought that the mother would have made it across the road safely, but that she had not adequately checked that the road was clear.  In the absence of any more evidence than that, it is difficult to say how unsafe this really was.  Different views were clearly taken by the father, the mother and the observer as to the safety of crossing the road at that time. 

(ii)       There are said to be problems in personal hygiene for both parents.  They deny this. 

(iii)      The parents are said not to follow advice given by professionals.  We have mentioned the issue of smoking during pregnancy.  Another example, relating specifically to safety, occurred when the parents were picking up the pram to carry the child up four steps rather than use a ramp which was approximately one hundred yards away.  The danger to the child arose because of the father's physical disabilities following his fall.  It was only after a discussion on 21^st August about their ability to work with professionals did they apparently alter their behaviour in relation to the use of the ramp. 

(iv)      There have been occasions when the mother has been late and/or disorganised in preparing the child's food or in applying ointments for eczema and the like. 

(v)       It is said that both parents put each other first, and therefore, in case of a crisis involving the child, would not be able to respond adequately to it.  Various examples are given of this.  When the mother took an overdose in the autumn of 2011, the father did not call the hospital or a doctor, but called his father who had to walk for approximately half an hour before he arrived at his son's address to find the wife comatose.  He then immediately called for medical help.  When the father had a surgical procedure in July this year, the mother chose not to exercise contact that day, but to accompany her husband to hospital for that procedure.  We entirely understand the mother's desire to support her husband on this sensitive matter and we think the criticism of them in this respect is most unfair.  When they gave evidence, the parents said that they were able to decide priorities and that their child would not be put at risk. 

28.      There are two features of this case which compound the present problems.  The first is that in addition to their various physical and mental health problems, the parents do not have a network of family and friends to assist them and give them support.  They are having to learn on their own.  We hope that they will recognise that in those circumstances they need the support of the Children's Service and other professionals and it is all the more important to listen to the advice which they give. 

29.      The second feature is that since the child was born, no professional has apparently felt safe in leaving him with his parents alone.  Whenever the parents have had contact, it has been in the presence of others.  We are not experts but, considering the mother's psychological make-up, knowing that there is a risk that her baby will be taken away from her, she may well feel drawn to seek reassurance that she is doing things properly.  Some people react like that.  This is interpreted by the Children's Service as meaning she has no confidence or real knowledge in parenting skills.  That may be true, but it may not be true.  We are undecided on the point, and it is an important one. 

30.      When she was recalled to give evidence, Dr Gardner accepted that there was an unanswered question as to whether she would get a different result in her assessment if the authorities stepped back and let the parents look after the child.  She also said that there would be space at Orchard House for a further assessment to be made now, if that were thought to be the right approach to take.  The parents have confirmed that they would be willing to attend at Orchard House for such an assessment. 

31.      We have reached the view that there is a gap in the information which has been put before us.  It is so easy to be critical of a parent both for being neglectful of safety in allowing a child to hurt himself by falling over, or bumping into a table, and be equally critical of a parent for not allowing the child to explore on his own and gain confidence from doing so.  Unless one is actually there, it is very difficult to form a view about these things.  What has troubled us is that there has been a collectivity of opinion forming by the professionals in this case and we think that there has perhaps been a too ready assumption that the obvious difficulties which this couple face will prove to be insuperable.  We do not think they have really been given a chance to show that they can provide appropriate parenting skills, and the idea that we should determine that a full care order is appropriate, with a freeing order to follow, is not attractive in these circumstances, nor prima facie is it consistent with their Convention rights, nor is it in the best interests of the child. 

32.      We are also very aware that the original assessment by Orchard House took place in circumstances for the parents which were very stressful.  The child had been born by caesarean section some ten days earlier and the mother would still have been suffering the physical effects of that.  She was in a low mood, perhaps in a depressed state.  The two parents were removed from their regular support network and taken off island to a strange (for them) place.  Everything was new and they did not take immediately to the parenting tasks given to them.  We are not surprised.  The assessment was carried out in circumstances where, it seems to us, there was a high probability that they would fail. 

33.      In Re B-S (Children) [2013] EWCA Civ 1146, Munby P, delivering a judgment of the court was considering changes in England and Wales to the Family Justice System, and used this language, which appears to us to be highly relevant in Jersey as well:-

"We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of twenty-six weeks.  Critical to the success of the reforms is robust judicial case management from the outset of every care case.  Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with.  Never is this more important than in cases where the local authority's plan envisages adoption.  If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over twenty-six weeks.  Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied."

It is not being proposed in Jersey, as far as we are aware, that there should be a maximum twenty-six week period, nor indeed do we think it is necessary that there should be one.  These sorts of timetable restrictions may have to be produced in larger jurisdictions where there are a number of family courts sitting up and down the country.  The position is quite different in a small jurisdiction such as our own.  Nonetheless, we agree that robust judicial case management is essential and we also agree that where the court does not have sufficient evidence, particularly in cases such as the present one which involved proposals for non-consensual adoption, then it is right to adjourn in order that the relevant evidence is obtained. 

34.      The argument against any further assessment at Orchard House is said to be one of timing.  The Minister contends that it is urgent that the child is freed for adoption so that he can form an attachment with new adoptive parents.  The evidence from Dr Gardner was that there would not be a significant impact on the child if there were to be a delay on adoption until he was fifteen months old, i.e. by May next year.  At the same time Dr Gardner agreed that delay would make the transfer of attachment to new primary carers more difficult. 

35.      We have resolved that it is in the best interests of this child that a further assessment at Orchard House take place.  Because she was present during much of the hearing, we are sure that Dr Gardner will be able to ensure that such an assessment tackles the areas of concern which have arisen and of course she will have the benefit of this judgment as well.  We accordingly propose to adjourn the application by the Minister for a full care order until such time as a further assessment has been carried out, and we trust that the Minister will be able to make appropriate arrangements as a matter of urgency.  It is in our judgment critical that the parents are allowed space with their baby so as to identify the extent to which they can be "good enough" parents for him, without the stress of continually having to exercise contact in the presence of a watching third party. 

36.      It may yet be the case that a full care order and a freeing order is the right course to take in the best interests of the child.  The Minister, however, has not established that at present.  What is needed is a fresh, uncluttered look at the parenting skills of these parents, banishing any pre-conceived ideas which may have emerged from the Jersey professionals' consideration of the matter.  At the end of that, the same view may be reached and the Court will then consider it further - but if it is, there will need to be a much more precise identification of the significant harm that it is said the child will suffer as a result of being in his parents' care.  At the moment, we are not sufficiently satisfied to make the orders sought and we order the adjournment for a further assessment to be carried out, this in our view being in the best interests of the child. 

Authorities

Children (Jersey) Law 2002.

In the Matter of T [2011] JRC 098.

In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050.

Re B (a child) (Care Proceedings: Threshold Criteria) (SC (E)) [2013] 1 WLR 1911.

In the matter of the A Children (Care Proceedings) [2013] JRC 168B.

Re B-S (Children) [2013] EWCA Civ 1146.