Jersey Unreported Judgments

Care order - application by the Minister for a final care order and application by the father for parental responsibility.

[2014]JRC051

Royal Court

(Family)

28 February 2014

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Kerley and Milner.

 

IN THE MATTER OF ANNA (CARE ORDER)

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

Advocate D. C. Robinson for the Minister.

Advocate A. T. H. English for the First Respondent.

Advocate H. J. Heath for the Second Respondent.

Advocate C. R. Dutôt for the Third Respondent.

judgment

the deputy bailiff:

Introduction

1.        This is the Court's judgment on the application of the Minister for a final care order under Article 24 of the Children (Jersey) Law 2002 ("the 2002 Law") in relation to the child, whom we shall call Anna for the purposes of this judgment.  This is not her real name, but it is firstly more personal than selecting a letter of the alphabet for the purposes of anonymity, and secondly it will make for easier distinguishing of cases for the purposes of law reporting in the future.  A previous decision of this Court in relation to Anna has been published as In the matter of B (Care Proceedings) [2013] JRC 244. 

2.        Anna is currently approximately one and half years old.  The first respondent is her mother, who has parental responsibility for her.  The third respondent is her father but as he and the mother have not been married, he does not hold parental responsibility.  He is joined as a party to these proceedings, and his application for parental responsibility has been referred into these proceedings.  Ms Eleanor Green has been appointed as the guardian for Anna for the purposes of this case. 

The mother's absence

3.        The hearing of the Minister's application took place on 18^th and 19^th February, 2014.  The Court proceeded in the absence of the mother pursuant to Rule 17 of the Children Rules 2005 ("the Rules").  Rule 17(4) provides that:-

(4)       The Court shall not begin to hear an application in the absence of a respondent unless -

(a)       it is proved to the satisfaction of the Court that the respondent received reasonable notice of the date of the hearing; or

(b)       the Court is satisfied that the circumstances of the case justify proceeding with the hearing."

Rule 17(3) of the Rules permits:-

(3)       Subject to paragraph (4)

...the Court may proceed with the hearing in the absence of a respondent. 

4.        Unfortunately the mother did not appear on either date, although her counsel, Advocate English, was present throughout.  She had not been in touch with him or his firm to give instructions recently, and had given no indication that she wanted to attend but was unable to do so.  Indeed, it appeared from Ms Jenner, the social worker, that the mother had been seen on one occasion by the aunt in the last two weeks, and appeared to be well. 

5.        The last occasion on which the mother attended on Messrs Viberts was 27^th January, 2014, when she signed a position statement.  In that statement she made plain that while she wanted to be part of Anna's life in the future, she accepted that she could not provide sufficiently the care which Anna needed at present.  She therefore supported the contention of the Minister that Anna should remain where currently placed, although the mother felt that a residence order, as opposed to a care order, would be sufficient for Anna in the future.  In her position statement the mother indicated that she would want greater contact than was provided in the care plan advanced by the Minister. 

6.        This position statement differed from the position which the mother had previously adopted.  We understand entirely that these proceedings have been a source of great stress for her.  Nonetheless we think that it was a mistake for her to have disassociated herself from the proceedings and we can only think that her doing so reflects the particularly low point at which she had arrived in her lifetime.  If she truly wants to be part of Anna's life in the future, she needs to rethink her position on co-operating with the Minister and engaging with public authorities generally in relation to Anna's life. 

7.        We had no doubt that the mother had been given notice of the proceedings.  Directions hearings were held on 15^th July, 2013, and 6^th November, 2013, when time tables were set for various procedural steps to be taken, including a date for fixing the final hearing.  We were informed by Advocate English that his firm had written to the mother on 12^th February, 2014, to indicate that they had been unable to contact her over the telephone and that she had failed to attend her last two appointments.  The letter continued that "your final hearing is fast approaching and is due to commence on Monday 17^th February, 2014, and therefore it is very important that you provide me with your instructions".  Given that the hearing in fact started on Tuesday 18^th February, 2014, - the case had been put back by one day by consent on or about 14^th February, 2014, we were concerned that perhaps the mother had appeared in Court on the wrong day.  However on our instructions a review was carried out of the CCTV footage at the reception in the Royal Court Building, and we are told that it is plain from that review that the mother did not in fact attend on that day. 

8.        We were satisfied that she was aware of the hearing date and also that it was in Anna's best interests that the hearing proceed.  Accordingly we continued in the absence of the mother. 

9.        The consequence of doing so however was this.  Advocate English considered that he was in effect without instructions, and he therefore played a very minimal part in the proceedings.  He indicated that he attended as an officer of the Court and asked questions only where he considered clarification of the evidence in chief was necessary.  Nonetheless, the Court has taken the view that it was right to approach its consideration of the matter on the basis that the mother's statement of 27^th January, 2014, continued to reflect her position. 

Threshold

10.      In broad summary, the Minister contended that Anna had suffered harm in utero as a result of her mother's drinking whilst pregnant.  It was contended the mother continued to suffer from her dependence upon drugs and alcohol, and that in consequence of her drug and alcohol dependency, and her own history of depression, the mother was unable to meet Anna's needs without intervention.  The Minister also contended that the mother was unable to manage her anger and therefore posed a risk of significant psychological harm to Anna.  Reliance was placed upon the way the mother had treated Anna's half-brother some years earlier.  Furthermore it was contended that the mother had failed to engage or demonstrate a willingness to change, and continued to use alcohol and drugs despite a number of detoxification attempts. 

11.      On 1^st July, 2013, following an incident on that day when the mother was intoxicated and arrested for placing Anna at risk of neglect, Anna has resided with her paternal aunt (the "aunt").  1^st July, 2013, is therefore the relevant date for the purposes of Article 24 of the 2002 Law. 

12.      At all material times until December 2013, the father has been in custody.  He was deported from the Island on 3^rd December, 2013.  It is clear that at the relevant date he was unable to prevent Anna being exposed to a risk of significant harm while in the care of her mother. 

13.      Neither the father nor the guardian contend that threshold is not met.  Indeed they do positively contend that the threshold has been met in this case.  Even the mother agrees that threshold has been met as in her statement she says:-

"I am in agreement that [Anna] has been subject to significant harm, and that she has been at risk of significant harm, due to my abuse of alcohol.  I have never intentionally put [Anna] at risk of harm, but that this has been a consequence of my misuse of alcohol."

14.      The Court heard evidence from Ms Jenner, the social worker currently assigned to Anna, and we have had the advantage of being able to read much written material.  Leaving aside the fact that threshold is not in fact in dispute, the Court is entirely satisfied that threshold is passed in this case. 

No order

15.      In accordance with Article 2(5) of the 2002 Law, the Court has considered whether it should not make any order on the basis that it would be better for the child not to do so.  We are completely satisfied that it would not be in the best interests of Anna to make no order.  That would leave the mother with sole parental responsibility, subject to the father's application, in circumstances where the mother in her statement says that:-

"I am aware of the issues that have been raised in respect of my availability to care for [Anna] and I wish to work on these in the immediate future, but unfortunately, in consideration of [Anna's] immediate needs, I accept that, right now, I am unable to care for [Anna] to the standard she deserves."

16.      In those circumstances it is clear to us that some order is necessary. 

Supervision order

17.      No party before us has contended that the Court should impose a supervision order.  As the guardian said in her report to the Court - and we note that both her report and her evidence were of great assistance - a supervision order would leave the mother as the only adult with parental responsibility, subject to the father's application, and without someone who was able to exercise this appropriately.  Even if the father's application were to be accepted, it would not be appropriate that the only people to be able to exercise parental responsibility were the mother, who cannot exercise it appropriately at the moment, and the father who by reason of the deportation order is resident in Madeira. 

18.      Accordingly we do not think a supervision order would be appropriate. 

Care Order or Residence Order?

19.      The Court is thus left in effect with the options of a final care order or a residence order.  It is now necessary, in order to explain the Court's reasons for its decision, that we go a little further into the evidence. 

20.      Since July 2013, Anna has been in the care of her aunt.  There has clearly been established an attachment between them.  The father describes himself as "110%" pleased that Anna is in his sister's care.  He says that she is in good hands and is looking very well.  When his sister brought Anna to the prison to see him, he noted that Anna was clean and looking pretty.  In his statement, he said that he felt that Anna was safe in the care of his sister. 

21.      In her statement, the mother says that:-

"I agree that decisions about [Anna's] future need to be made without delay.  It has been noted by the social worker that I have commented that I did not wish for [the aunt] to care for [Anna] on a permanent basis.  I accept that this comment is not helpful, and merely shows my frustration about the nature of these proceedings, rather than any ill feelings towards [the aunt].  As stated above, I am extremely grateful to [the aunt] for caring for [Anna] during a period when I was not able.  I am grateful that [the aunt] came to my aid on 1^st July to care for [Anna] when I could not.  Whilst I admit that our relationship has been strained, and tension has arisen between us, I cannot fault the care that she has provided to [Anna].  I would only ask that [the aunt] ensures that [Anna] is kept away from her grandmother's dog, as I am aware that this dog is vicious and I do not wish [Anna] to be at risk of any danger. 

The comments that I have made in the past, I no longer stand by.  I have recognised the love that [Anna] has for [the aunt], and if I am not able to care for [Anna] at present, I would wish [the aunt] to care for [Anna] on a permanent basis.  Whilst it saddens me greatly that, due to the problems that I currently experience, I am not able to care for [Anna], it comforts me greatly that [Anna] remains with her family, and that is extremely important to me.  Whilst it has taken me some time to recognise the importance of this factor, when faced with the cold hard facts, it is something that is plain and simple.  [Anna] deserves to be cared for by her family."

22.      Later in her statement, the mother says that she agrees that Anna should remain in the care of her aunt on a permanent basis. 

23.      According to the social worker, Ms Jenner, Anna is a bright and bubbly little girl with a beautiful smile.  She has thrived in the care afforded to her by her aunt, and currently meets all of her expected developmental milestones.  The aunt has safeguarded Anna as far as possible from the risks that the mother has posed to her emotional and physical security and stability.  Furthermore, Anna has been identified as having strong indicators of fetal alcohol syndrome, which can be associated with neurological and behavioural development difficulties, and can be a cause of intellectual difficulties.  Dr Williams in his report said that "children with FAS are at increased risk of having learning difficulties, poor motor coordination, developmental delay and in middle childhood demonstrate problems with lower tension skills, poor impulse control, hyper-activity, elevated anxiety and mental health difficulties".  Different children will seemingly appear at different points of the spectrum relevant to those who suffer from fetal alcohol syndrome, and it is not possible to say at present to what extent Anna may suffer from any of these difficulties.  Fortunately the current position appears to be that "Anna is receiving a high level of care and stimulation and this is most likely to mitigate most of the gross deficits, if any, emerging from the damage caused to her brain and body [due] to the exposure to alcohol with the pregnancy."

24.      According to the guardian, the aunt is very alert to Anna's health needs and attends all medical appointments necessary.  The guardian says in her report that the aunt is "providing excellent, child focused care for her niece.  When observed with her, [Anna] displays highly selected attachment behaviours and the relationship between them is characterised by mutual love and responsiveness.  [The aunt] is consistently available to Anna and has prioritised her needs.  Whilst wanting to maintain links with [the father] and [the mother], she is clear that Anna's safety is her first concern and she would not encourage a relationship that might be harmful or destructive."

25.      If matters rested here, it might be that a residence order as a result of which Anna remained with her aunt would be sufficient for protecting her safety and security in future.  However there are two consequences of a residence order in favour of the aunt.  Article 13(2) of the 2002 Law provides:-

"Where the court makes a residence order in favour of any person who is not the parent or the guardian of the child concerned, that person shall have parental responsibility for the child while the residence order remains in force."

26.      It follows therefore that both the aunt and the mother - and dependent upon the outcome of his application, possibly the father - would have parental responsibility. 

27.      Secondly, the provisions in the 2002 Law which relate to care orders do not sit comfortably with those relating to residence orders and despite Article 11(1) which provides:-

"(1)     The court shall not make any Article 10 order, other than a residence order, with respect to a child who is in the care of the Minister."

We do not think there would normally be circumstances where the two types of order could simultaneously be in force. 

28.      If, therefore, we were to make a residence order in favour of the aunt, the Minister's parental responsibility would be removed with the care order. 

29.      It is not particularly unusual for families to make arrangements by which children are wholly or partly brought up by a relative rather than by one of the natural parents.  It may be appropriate in some of these cases for the Court to be requested to make a residence order so that parental responsibility is conferred upon the relative providing care for the child.  It is obvious, however, that where more than one person has parental responsibility for the child, it is essential that those having parental responsibility are able to communicate amicably with each other and, together, reach conclusions as to what is in the child's best interests. 

30.      It follows from these remarks that the relationship between the aunt and the mother will be of particular importance if the Court were to conclude that a residence order in favour of the aunt was the right way forward. 

31.      Dr Williams, the social worker Ms Jenner and the guardian all express some concerns about that relationship at present.  They do so with varying degrees of emphasis.  We note that even the mother accepts in her statement in January that relations between her and her sister-in-law are not ideal, because she describes those relations as having been "strained" and that tension has arisen between the two of them. 

32.      Ms Jenner and Ms Green take the view that at least in the short term, and maybe indeed in the longer term, the aunt will need to have support in handling any relationship between Anna and her mother.  It is for that reason that the Minister contends that a care order, which confers parental responsibility on the Minister, is the right way forward in this interim period.  Having the legal powers which go with parental responsibility will enable the Minister to provide support to the aunt in dealing with a mother who herself retains some legal status in the context of having parental responsibility.  It is possible, also, that the mere fact of granting a care order will provide to the aunt the confidence which she needs in order to deal appropriately with Anna's contact with her mother.  By contrast, a residence order in favour of the aunt would leave open the possibility of continued dispute between aunt and mother, both of whom had parental responsibility. 

33.      Dr Williams put the matter slightly differently.  In his written report dated 23^rd December, 2013, Dr Williams tended to emphasise the reaction of the mother towards the aunt rather than the other way around.  It is clear from his report that he noted that the mother has a grievance both with the professionals involved at Le Bas Centre but also with the aunt.  He said:-

"The interaction and communication between the mother and the aunt was extremely poor with both the mother and the aunt explaining to me that their relationship had broken down.  One very tangible example of their difficulties was displayed through the pushchair that the aunt had purchased, a green multi-purpose pushchair for Anna, to replace the pink multi-purpose pushchair that had been bought for her by her mother.  The mother was much aggrieved that the pushchair had been replaced saying that the one she had purchased had been perfectly adequate.  She was equally distressed by saying the aunt returned the pink pushchair to social services for her to take home."

34.      Later on Dr Williams said:-

"Throughout the assessment I was mindful that [the mother's] substance misuse remained unresolved.  I was also mindful that she was consumed by the social worker and the aunt's apparent plot to undermine her and remove Anna from her permanently."

35.      When commenting on the question raised in his instructions as to whether, in the light of the assessments undertaken by Dr Briggs and Mr Gafoor, recommendations for the mother were within Anna's timescales, he said this:-

"Given the inconsistency in the mother's availability to her daughter, her failure to attend to her own emotional problems and her ongoing substance misuse issues, it is difficult to see how the mother would be available for the foreseeable future to meet the needs of her daughter.  This presumes that the Court is satisfied that the quality of the care provided to Anna is sufficiently compromised by the mother's behaviour.  The evidence from this and other assessments shows that the mother "can do it", but is also raises very serious questions as to whether the mother's own needs make it too difficult for her to provide an "adequate" and "good enough" parenting experience for their daughter for the majority of the time.  It also supposes that the mother would be willing to work effectively with the aunt and both able to meet the needs of Anna if it were determined that Anna should remain with her aunt..."

36.      In his evidence before us, Dr Williams expanded on these comments.  He said that the mother had contacted him twice since his assessment in December to say that her sister-in-law had belittled her to her daughter.  While Dr Williams was pleased that the mother had felt able to contact him to make this complaint, the fact of the complaint showed a continuation of the difficulties between the mother and the aunt, wherever the truth might lie. 

37.      He went on to say that there was in his view a huge amount of animosity between the aunt and the mother.  They had complaints about the other.  This would be a very difficult relationship for a little girl to have to manage.  It was clear to him that the aunt wanted to promote contact with the father.  This was and is a potential sore point as far as the mother is concerned.  In answers to cross-examination by Advocate Heath, he said that both women were hostile to each other.  They would have to work very hard to make contact work in the future if the aunt were to participate in the contact arrangements. As far as he was concerned, he thought that the relationship between the aunt and the mother was toxic, and he felt that at times each of them was trying to persuade him that she would make the better mother for Anna. 

38.      Having regard to this evidence, the Court is absolutely satisfied that a residence order at this stage is a non-starter.  We will turn shortly to questions of the care plan and contact, but it is apparent that both mother and aunt need to work hard on their relationship if it is to become a functional working relationship from which Anna will benefit.  It is very desirable that both of them should put in that effort. 

Care Plan

39.      Article 27(11) of the 2002 Law requires us to consider, before making the care order, the arrangements which the Minister proposes to make for affording any person contact with the child concerned.  This requires us therefore to turn to the care plan. 

40.      The aim of the care plan put before us by the Minister is to promote permanence for Anna with her aunt.  This is deemed by the Minister to be the outcome which is in Anna's best interests.  Anna has resided with her aunt since 1^st July last year, and the aunt has been recommended for approval as a connected person carer at a meeting of the permanence and adoption panel on 21^st January, 2014.  The Minister suggests that Anna should remain within this placement on a permanent basis. 

41.      The care plan raises the possibility of different ways in which permanence can best be achieved.  These include:-

(i)        An assessment of the aunt as a prospective adopter for Anna;

(ii)       Long-term kinship care with the aunt;

(iii)      A residence order in favour of the aunt. 

42.      The care plan noted that the best interests decision provided by the permanence and adoption panel in December was for Anna to achieve permanence via adoption, specifically by the aunt.  That decision was ratified by the agency decision maker on 12^th December and the Minister apparently agreed to Anna being freed for adoption on 7^th January.  The care plan suggests that whilst the decisions taken so far have been undertaken in Anna's best interests, the recommended outcome for her will be carefully considered over the next six months and dependent upon the aunt being approved as a prospective adopter.  There is little doubt in our view that as regards the different options for providing permanence, the current emphasis in the Children's Service lies upon adoption by the aunt, assuming she is approved as a prospective adopter.  

43.      Whatever the basis for permanence, the plan proposes that Anna should remain in her placement with the aunt on a permanent basis.  Accordingly the aunt will be responsible as her primary carer for ensuring that Anna attends all appointments with medical professionals, and that where parental consent for medical treatment was required, the aunt would be expected until there is any change in legal status to contact the Children's Service who would liaise with the mother.  Insofar as education is concerned, the aunt would be responsible for promoting and facilitating Anna's education, with the oversight and consent of the Minister, who would consult the mother about any significant decisions that were required to be taken. 

44.      The care plan proposes that over the next six months, the aunt would be given some assistance from the adoption team in line with her role as permanent carer for Anna, including consideration as to how the aunt should best manage contact with the mother, who is said to be unpredictable and volatile.  It is proposed that the adoption team will assist the aunt in managing what is expected to be an effort from the mother in undermining the placement. 

45.      There are no plans to reunite Anna with either of her birth parents.  Indeed the further six months assessments which might be made will not include any further assessment of the mother as a carer for Anna, as she has been ruled out as a viable carer now or in the future. 

46.      On matters of contact, the care plan originally suggested that the mother have contact with Anna a maximum of four times per year.  It was suggested that it was in Anna's best interests for the aunt to facilitate and supervise this contact, which would increase the normality of these visits.  However if it became apparent that the mother was unable to accept and support the permanent placement of Anna with the aunt, the Minister would reduce such direct contact in line with prioritising Anna's best interests.  Indirect contact would be permitted. 

47.      As far as contact with the father is concerned, the father currently enjoys indirect contact via telephone on a daily basis both with Anna and with the aunt.  This apparently worked well and the father had shown himself committed to his daughter over a long period.  He always knew what was happening in her life.  The Minister identified no need to stipulate restrictions around the level of contact that the father should have with Anna and it was anticipated that there would be different forms of regular contact including telephone, Skype, letters and gifts.  Indeed, if the aunt wished to facilitate direct visits to the father in Madeira, the Minister was in principle in agreement with such a proposal. 

48.      Anna has a half-brother who is now aged approximately 10, being a child of the mother from a different relationship.  Her half-brother lives with his father, and had some occasional contact with the mother.  Anna also has a half-sister who is over 21, a daughter of the mother by a different relationship, and already Anna has shown some delight in seeing her half-sister from time to time.  The Minister wishes to promote ongoing contact between Anna and both her half-siblings and it is recommended that this be left in the domain of the aunt to arrange. 

49.      In her report, the guardian considered that the care plan was choate.  She expressed some reservations about the Minister's preferred option, namely that adoption was the right method for achieving permanence once the aunt had been formally approved as an adopter.  In particular she thought that it was likely to be difficult to make any fair assessment of the different ways of achieving permanence with such limited contact between the mother and Anna over the next six months.  Ms Jenner has clearly considered this comment carefully because in an addendum care plan, it is now proposed by her on behalf of the Minister that she should allow the mother the opportunity to put into action the sentiments that she had set out in her statement dated 27^th January, 2014.  Thus, the mother is given an opportunity to demonstrate whether she is able to accept and support the care plan for Anna and to respect the role of the aunt in providing permanent care for her daughter.  The proposed contact plan therefore is that up to six contact sessions with Anna will be offered to the mother by the Children's Service.  These will be supervised by the aunt, who will be responsible for facilitating and managing the contact, and a member of the Children's Service will observe the contact and interactions for assessment purposes.  The first two contact sessions will be booked in advance and a social worker will review the quality of the contact and any issues arising after those sessions have taken place in order to assess whether the mother has attended and constructively engaged with the process, and what the impact of contact with Anna has been.  It is proposed that the Minister will then decide whether and how many further contact sessions should be arranged. 

50.      It is clear from reading the addendum plan that the Children's Service do not have much confidence in the mother's statement of 27^th January, 2014.  Reference is made to text messages sent by the mother to the aunt only a few days before that statement was made, which would be capable of being seen as undermining the aunt's confidence in a caring role for Anna.  Ms Jenner appears to have been informed by the aunt that she has been told by her son and his girlfriend that many people in the Portuguese community had heard the mother say that the aunt was preventing her from having contact with Anna.  Ms Jenner understandably places some significance on the fact that the mother's attendance for contact sessions has been unpredictable since last July, and in particular has been poor this year.  Between 2^nd September, 2013, and 14^th January, 2014, the mother has missed 33 and attended 48 of the 81 contact sessions fixed.  This year the mother has attended only one out of 22 contact sessions.  Added to her failure to attend these proceedings and her consistent comments, hostile to the aunt, prior to the statement on 27^th January, 2014, it might well be thought not unreasonable for the Children's Service to be expressing such serious reservations about any ongoing relationship between the mother and Anna. 

51.      It is in our judgment important at this stage to make a few remarks about the evidence concerning the mother.  First of all, through no fault of her own, she has a number of psychological problems.  She was exposed to physically abusive parenting practices perpetrated upon her by her father.  Her mother does not appear to have been particularly protective of her, and there is a suggestion of intimate partner violence within her parents' relationship, something which was witnessed on occasions by her.  In her pubescence, she asserts she was sexually abused by a maternal uncle over a three year period.  She describes herself as having been bullied at primary school.  In his opinion, which is dated 14^th October, 2013, Dr Briggs suggests that the mother has self-medicated for this maltreatment by the use of drugs and alcohol.  She does not present with signs of any personality disorder, but she has a history of depression and low mood.  Her relationship history suggests she has difficulty sustaining age appropriate intimate partner relationships.  All these problems lead to an impaired parenting capacity - in Dr Briggs' view, he means by this that at times her own needs have overwhelmed her, but at the cost of her care of her children. 

52.      Secondly, the mother clearly has continuing issues with abuse of alcohol.  The evidence from their sample tests is quite clear as to such a conclusion.  Furthermore her own statement indicates that she is not currently able to manage her abuse of alcohol. 

53.      Thirdly, Dr Williams reports that the reunions between Anna and her mother "were warm experiences with evidence of both physical and verbal affection.  Whilst walking around the town the mother was able to maintain the connection with her daughter, in one seven minute intensive observation she interacted with her daughter, commented on [Anna] or checked her clothing 17 times.  In the park she maintained an awareness of her daughter in relation to the apparatus, and in the playroom when Anna fell, or on one occasion appeared to be about to knock her head against the desk, the mother responded with sounds and words indicating concern and vigilance."

54.      Later on Dr Williams said this:-

"As indicated in some of the narrative above it was clearly evident that the mother knew how to provide basic care for her daughter, keeping her warm, changing her nappy, feeding her and giving her drinks."

55.      Thirdly, the relationship between the mother and her son, who lives with his father, is interesting.  The son lives with the father by virtue of a residence order.  This does not seem to cause any practical difficulty, and the father is able to manage matters well.  He does not permit contact to take place when the mother is suffering from abuse of alcohol, but if the mother suggests that contact should take place, the father reasonably and responsibly encourages their son to have such contact and it takes place, apparently on a perfectly appropriate basis.  It seems from what we have been told that her son enjoys a secure and safe upbringing with the knowledge of an involvement by his mother in his life. 

56.      We were also interested to hear this evidence from Dr Williams.  In his oral evidence to us he said that the mother had good basic parenting skills, she knew how to stay attuned to her child but she was constantly anxious of being belittled.  The majority of interactions between mother and daughter was positive, but the mother was very defensive and pre-occupied with a sense of injustice.  He then went on to say that the mother was a very lovely woman who had been very hurt.  When she was under stress, she would retreat into her shell, would fail to engage and would put her interests first.  She may then go on to substance abuse and that of course would put any children at risk of harm.  These are characteristics which, with help, the mother may be able to address provided she is willing to do so, although doing so successfully may not be a speedy process.  

57.      In re-examination, Dr Williams said that the mother might find peace in herself.  At present she was frightened and defensive.  The possibility of finality of the proceedings might help the relationship between the mother and the aunt. 

58.      It is against this background that we look at the welfare test in relation to a care order and the care plan. 

The ascertainable wishes and feelings of the child

59.      Anna is approximately a year and a half old.  The Court assumes that she wishes to be brought up in a safe and secure family environment where she receives consistent reliable care and attention and is safeguarded from harm.  The Court also assumes that she wishes if possible to have a positive relationship with her birth parents as this is likely to improve her psychological wellbeing when she becomes an adult. 

The child's physical, emotional and educational needs

60.      We note that Anna has thrived in the care of her aunt and is currently meeting all her expected developmental milestones.  We are informed, and accept, that the aunt has safeguarded Anna as far as possible from the risks that the mother has posed to her emotional and physical security and stability so far.  We accept the opinion of Dr Williams that Anna needs unconditional and reliable love, nurture and support and protection from harm with a safe adult figure who will be able to set aside his or her own needs and prioritise Anna's needs.  

The likely effect on Anna of any changes in her circumstances

61.      If Anna were to return to the care of the mother, the Court is satisfied that there would be real concern for her emotional and physical welfare and that she would be placed at risk of significant harm.  On the other hand, if she remains in the care of the aunt, the evidence before us from all parties is that Anna will be given consistent, reliable and nurturing care which hopefully will enable her to thrive.  The Court shares the Minister's concern that any severance in the relationship between the aunt and Anna at this stage would disturb the solid foundations that Anna has established and that would give rise for concern as to her future emotional welfare. 

The child's age, sex, background and any other relevant circumstances

62.      The Court considers it important that Anna is given the opportunity to form a real and solid attachment to her long-term carer.  In this case the Court accepts that the aunt is the long-term carer who provides the best opportunity for Anna's emotional and physical safety in the future.  As Anna will remain with the aunt under the care plan assuming a care order is made, it seems to us that there is no particular urgency in taking any other decisions which may have an impact upon other relationships, especially the relationship which might develop between Anna and her mother. 

Any harm which the child has suffered or is at risk of suffering

63.      The Court accepts that Anna has been physically harmed by her mother's alcohol abuse during pregnancy and that at the relevant date there was emotional and physical harm which had been caused or was likely to be caused as a result of the mother's care of Anna, which fell short of that which a reasonable mother should have provided. 

64.      For these reasons the Court accepts that a full care order should be made in favour of the Minister and notes the Minister's plan to provide permanence for Anna by placing her with the aunt.  The Court endorses that approach and grants the Minister's application for a care order accordingly. 

65.      The rest of the care plan causes the Court a few concerns.  We articulate these concerns now not because we reject the care plan but because we are concerned that what ought to be an iterative process where the route, but not the destination, is uncertain is in danger of becoming a motorway journey in which the participants look neither to the left nor to the right. 

66.      We think the Children's Service appear to have resolved that adoption of Anna by the aunt is the best course, subject to the formality of the aunt being approved as an adopter by the adoption panel.  We gratefully recognise that the Court is not taking a decision on this point today.  In our judgment, there is no urgent need, on the information currently available, for such a decision to be taken.  It seems to us that the timetable which the Children's Service advances has as its premise a belief that the mother's position statement at the end of January (in which she says she recognises that the aunt is the best person to care for Anna at present and that she, the mother, is unable to do so) is not reflective of the mother's true position.  The premise upon which the Children's Service appear to be operating is that there is a high probability that the mother will try to disturb the placement of Anna with her aunt, and that this will cause uncertainty and difficulty for Anna.  Accordingly, on this premise, it is better that the aunt should adopt Anna and be in a firm position to take steps if necessary to minimise if not remove any contact between Anna and her mother at some future date and that over the next six months the Children's Service will be able to guide the aunt as to how to achieve that end, should it be necessary. 

67.      This is of course one possibility, and it may be necessary to reach that stage at some point.  However there are other possibilities which are absolutely consistent with Anna remaining permanently in the care of the aunt, and which involve a greater degree of contact between Anna and her mother and indeed the possibility of some helpful and positive relationship between Anna and her mother being built.  According to the guardian, it is unusual to have adoption in a kinship carer situation.  The guardian also accepted that it was unusual to have looked after children in care indefinitely.  Families ought to be able to show that they can manage the care of young children, and if they cannot manage it, then some other outcome ought to be found. 

68.      The difficulty at present is that the mother is not in the best emotional place to be helpful and cooperative either with the Children's Service or with the aunt.  Emotionally, one can quite understand why that should be so.  In her sober and rational moments, she is capable, clearly, of accepting that Anna's best interests lie in permanence with her aunt.  Yet we are none of us always unemotional and rational.  We reserved judgment because we wanted all parties, but especially the mother, to recognise that the care of a child is not a 100 yard sprint, but a marathon.  There may come a time when the mother's position, either in relation to her psychological make-up or in relation to her abuse of alcohol, changes sufficiently to enable her to have a degree of contact with Anna which makes the building of a relationship possible, and enables Anna to understand that despite her mother's difficulties, there is the genuine care and love for her which her mother professes.  None of that raises any question mark around the permanence of the identity of Anna's permanent carer, who is her aunt.  That is where the attachment will lie.  The fact that the aunt has exclusivity as the permanent carer does not mean however that Anna is not capable of developing a relationship with anyone else. 

69.      As at present advised, our view is that there is no urgency in hurrying forward with an adoption appraisal, and we hope that the Minister will reconsider that approach, having regard to these comments.  In any event, as the mother will be advised, the matter of adoption does not lie in the Minister's hands.  Any application for a freeing order must come to Court in due course. 

70.      It may well be that if one were looking for the ideal solution, it would be a residence order in favour of the aunt, which would provide the permanence of care and at the same time leave a relationship between Anna and her birth parents.  Of course, this may not be achievable because of the relationship between the aunt and the mother.  However, those two ladies need time to work through the tensions which have arisen, and the knowledge of the care order and the permanence of the placement which this judgment provides will hopefully remove one of the aggravating factors in that relationship.  The mother will also need to come to terms with the fact that the father too will have a relationship with Anna and indeed will have to recognise that it is in Anna's best interests that he should. 

71.      Arising out of these comments in relation to the possibility of adoption or, in the long-term, of a residence order, we turn to the question of contact.  The probability is that the present situation remains very raw for the mother.  It may be some time before she is able to overcome those feelings.  It is in Anna's best interests that she tries to do so, and this will need a big effort on her part.  We were struck by Dr Williams' comments that the mother was a very lovely woman who had been very hurt.  We think that the Children's Service should try to accommodate that comment, not because their focus is upon the mother, but because their focus is on Anna's best interests which lie with permanence with the aunt but the possibility of an ongoing relationship of some kind with the mother assuming that can be achieved as a positive relationship.  It follows that there may be - and indeed we think we would probably expect there to be - some continuing difficulties over contact over the initial period, but we hope that a way will be found to work through them.  There are a number of options for mediation between them, whether in Anna's presence or not, and we hope these will be explored. 

72.      We are strongly of the view that it would be unhelpful for contact to take place routinely at the aunt's home.  It would be best if contact could take place in some neutral location.  As the weather improves, contact in the parks or on the beach would offer such an opportunity for mother and aunt to inter-relate in a more relaxed way.  If there were mutual friends or acquaintances with children of their own prepared to be present, that might help.  The goal is to get to a position where both mother and aunt are comfortable with contact sessions taking place in the presence of just the two of them, who after all share an interest in Anna's welfare. 

The father's application for parental responsibility

73.      The father makes an application for parental responsibility under Article 5 of the 2002 Law.  As with other matters involving children, the child's welfare is the Court's paramount consideration.  On the application of LS v NS [2007] JRC 103A, the Court should consider:-

(i)        The degree of commitment which the applicant has shown towards the child;

(ii)       The degree of attachment between him and the child;

(iii)      The applicant's reasons for making the application. 

74.      Furthermore the Court must recognise that this is not an exhaustive list and that all relevant circumstances should be taken into account. 

75.      Before going to the facts of this particular case we note with approval the comments of Balcombe LJ in Re G (A Minor) (Parental Responsibility Order) [1994] 1 FLR 504 at page 508:-

"We do not have the opportunity that the judge had of seeing all the parties in the witness box and forming an impression of their characters, but let me assume against Mr G that he is awkward, difficult, and thoroughly unresponsive to the approaches of the social workers who have the interests of his child at heart; even so I cannot see why that should unfit him to have the order which gives him a locus standi in the life of his child, when he has displayed commitment; when there is clearly a degree of attachment, not merely between him and L but between L and him (that is clear from the judgment and indeed from such parts of the evidence as we have been shown); where his reasons for seeking a parental responsibility order appear to be perfectly proper, namely that he wants to have the ability to have a say in the life of his child which has been - chaotic is not perhaps too high a word to put towards it - up until now.  All those seem to be wholly appropriate factors for making a parental responsibility order. 

I think it is perhaps unfortunate - I do not seek to say where the blame of this lies - Mr G and the social workers in the case are unable to get on with each other, but that cannot of itself be a reason for refusing a parental responsibility order.  Prima facie, I would have thought it must be clearly in the interests of L that her natural father should be given a proper part to play in her life by being given a locus standi.  I bear in mind that does not of itself, of course, give him any rights of either residence or contact.  L is still in the care of the local authorities.  Contact is at their discretion."

76.      We are very pleased to note that there is no difficulty in this case between the father and the social workers - nor indeed between the father and the guardian nor between the father and the aunt.  Indeed the closeness of the father and the aunt has clearly been material for the purposes of ensuring that the father has been able to maintain a contact with and knowledge of Anna since July 2013. 

77.      In 2012 the father was sentenced by the Royal Court to two years' imprisonment for a grave and criminal assault.  At the sentencing hearing, the Court also made a recommendation for deportation.  After Anna was born, the mother took her from time to time to HM Prison in order that the father could have some contact with his daughter.  We have no real information as to the quality of those visits or of the contact which took place, but there continued to be some friction between mother and father, which cannot have made any such contact sessions ideal.  Following a disagreement between the parents early in 2013, the contact became more sporadic, although the father had seven visits with Anna between 12^th April and 1^st July, 2013.  Against his wishes, there was no contact between 2^nd July and 6^th September, 2013.  Since then, there have been a number of supervised contact sessions at the Prison, which were increasingly successful and the father has regularly been in touch with his sister to ask after the child's welfare.  His application for parental responsibility was listed for hearing on 25^th October, 2013, at 2:30pm.  At that time the Court was told that it was urgent to deal with the application then because the father was due to be deported the following Monday, a deportation order having been made in accordance with the Royal Court's recommendation.  The deportation in fact was delayed for administrative reasons, and the father was not in fact deported until early December.  As has been indicated, he is now resident in Madeira, where he occupies a two bedroomed flat, and where he is looking for employment.  Employment opportunities may be limited, but he is hopeful that he will gain employment soon, and when he does, he has said that he intends to make some payments to his sister for Anna's maintenance and upkeep.  The Court at that time decided to adjourn the application because the view was taken that on release the father would undoubtedly face many challenges.  It was unclear whether he would relapse into the abuse of alcohol or drugs, and unclear whether, once a free man, he would continue to show a commitment to his daughter.  The application therefore came back before us for adjudication on the Minister's application for a care order. 

78.      The father's application is supported by the Minister and by the guardian.  The mother rested on the wisdom of the Court when the matter was heard in October, and has not advanced any other view before us on this application. 

79.      The Court heard the father give evidence by video link from Madeira.  He said that he regularly takes the medicine which is prescribed for him, and that he is currently free from drugs.  When asked about the relationship with Anna, he said that he saw her the day after she was born.  It gave him a weird feeling.  She was so small.  He wanted to be a dad to her, and he loved her very much.  He could not explain his feelings adequately but he did say that his father had died when he was nine years old, and his parents were already divorced.  The father said that he did not know what it was to be raised by a father and he did not want Anna to have that experience.  He wanted her to have a dad and a mum. 

80.      When asked why he wanted parental responsibility, the father said that he wanted to be able to look at Anna and to know that he is her dad.  He wanted to protect her. 

81.      In accordance with authority, the Court starts from the premise that unless there is good reason to the contrary, the natural father ought to be awarded parental responsibility.  No such reason is advanced to us by any party, and we are satisfied that on the application of the legal tests which we have mentioned above, it is right that parental responsibility be granted to him.  As his counsel submitted to us, despite the limitations of prison and deportation, he has shown and continues to show a commitment to Anna and a desire to be part of her life.  It is clear that there is some attachment between them in the sense that Anna recognises his voice and calls him daddy.  The guardian told us that he is nothing other than a positive influence in Anna's life.  Had we been minded to refuse the application, the mere fact of the father making it would have been at least of some value to Anna on her maturity because she would know that her father cared sufficiently for her to make such an application.  Anna is capable of getting the same value in the circumstances that we have granted the father's application - but of course that will be much enhanced if, despite his own personal difficulties he is able to maintain the commitment he has shown so far, and we very much hope that will be the position.  It is obvious, but we mention it anyway, that the fact that the father is granted parental responsibility has no impact on the conclusion that Anna has permanence with her aunt having the practical day to day care of her and we were reassured by the evidence we heard that even if the father were to relapse into drug or alcohol abuse in the future, the aunt recognises that Anna is entitled to protection, and would put her interests first. 

82.      For all these reasons the father's application for parental responsibility is granted. 

Authorities

In the matter of B (Care Proceedings) [2013] JRC 244.

Children (Jersey) Law 2002.

Children Rules 2005.

LS v NS [2007] JRC 103A.

Re G (A Minor) (Parental Responsibility Order) [1994] 1 FLR 504.