J. A. Clyde Smith, Esq., Commissioner and Jurats Fisher and Blampied
C (the grandmother)
The Minister for Health and Social Services
A (the mother)
IN THE MATTER OF CHILDREN (JERSEY) LAW, 2002
AND IN THE MATTER OF OSCAR (CARE PROCEEDINGS)
Advocate M. R. Godden for the Applicant.
Advocate D. C. Robinson for the First Respondent.
Advocate J. R. Giovannoni for the Second Respondent.
1. This is an application by C the child's maternal grandmother, for a residence order under Article 10 of the Children (Jersey) Law 2002 (the "Law") in relation to Oscar, who was 2 this year.
2. A is Oscar's mother and holds parental responsibility for him.
3. B is Oscar's father. He does not hold parental responsibility for him and is therefore not a party to the care proceedings. In accordance with Schedule 1 of the Children Rules (2005) (the "Rules") the father was given notice of the care proceedings but has failed to engage. With reference to the residence application, because the father does not have parental responsibility the Rules do not require that notice be given to him. Furthermore we have proceeded with the application today in the absence of the mother. She has indicated from the prison that she does not wish to attend and the Court is satisfied under Rule 17(4) that it is appropriate to proceed in her absence.
4. An Initial Child Protection Conference was held on the 18th June, 2012, and it was agreed that Oscar would be placed on the Child Protection Register (prior to his birth) under the category of "neglect".
5. On the 5th June, 2013, a further child protection review was held, and it was recommended that Oscar's name remained on the Child Protection Register for a further period of six months under the category of "emotional harm".
6. A pre-action letter was sent to the mother on the 27th August, 2013, outlining concerns in relation to Oscar's care and the mother's behaviour. As a result a meeting was held to discuss the letter on the 5th September, 2013, at the Children's Service.
7. At that meeting the Children's Service received a telephone call from the Midvale Resettlement Unit on the following day, as they were concerned as to the whereabouts of Oscar. The social worker made enquiries and located Oscar with his paternal aunt, D, who at that time was 16 years old. As a result the Children's Service intervened and Oscar was placed with C.
8. The mother agreed to allow Oscar to remain with C pending the Minister's interim care order application and on the 8th November, 2013, the Court made an interim order placing Oscar under the care of the Minister. On the same day, the Court directed independent expert assessments.
9. Turning to matters since the interim care order was made, the mother was arrested on the 15th January, 2014, and is currently in Her Majesty's Prison at La Moye. The hearing for her criminal matter has been postponed due to concerns in respect of her fitness to plead. A report relating to the mother's fitness to plead will be provided to the Royal Court for the criminal proceedings on the 11th August, 2014.
10. Dr Engelbrecht, the Consultant Psychiatrist in Substance Misuse and Dual Diagnosis with the Alcohol and Drug Service, submitted her report in January 2014 and Dr Hessel Willemsen, the Clinical Psychologist, submitted his report on 20th February, 2014.
11. Dr Willemsen says in his report:-
" A understood that I came to see her in respect of her son Oscar. She said that she wanted Oscar to stay with her mother. She was happy with her mother looking after him, for the time being, at least for one year. She needed time to sort herself out..."
" Her addiction and instability is such that she will not be able to look after Oscar in the near future..."
12. On 29th April, 2014, the mother's lawyer confirmed that " she appears to accept that she is not in a position to care for Oscar herself and supports his placement with her mother..."
13. Subsequently, the parties and guardian met on the 3rd July, 2014, and agreed that a residence order would be in Oscar's best interests.
14. C filed her residence application on 17th July, 2014, and the social worker, Ms Allison Tandy, served her report in support of the residence application on the same day. Her report was prepared in anticipation of C's application and is dated 16th July, 2014.
15. The parties agree that a residence order should be made in favour of C.
16. The Minister has concerns with regard to Oscar's welfare should he be returned to the care of his mother. However, it is her view that the making of a residence order will be the 'least interventionist approach' in this case and that further public law proceedings are unnecessary. Therefore, the Court should have the opportunity to hear the maternal grandmother's application before continuing with the care proceedings.
17. The 'least interventionist approach' was recently applied in the UK Court of Appeal in Re B-S (Children)  EWCA Civ 1146. Sir Munby J said:-
" Behind all this there lies the well-established principle, derived from s 1(5) of the 1989 Act, read in conjunction with s 1(3)(g), and now similarly embodied in s 1(6) of the 2002 Act, that the court should adopt the 'least interventionist' approach. As Hale J, as she then was, said in Re O (Care or Supervision Order)  2 FLR 755, 760:
"the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children ... unless there are cogent reasons to the contrary."
18. Under Article 66(1) of the Law, the making of a residence order with respect to a child who is the subject of a care order discharges the care order.
19. The Court notes that Dr Willemsen expressed concerns in February 2014 about C's ability to parent Oscar in the long term and the social worker deals with this matter in her statement. Ms Tandy says:-
"As stated previously Dr Willemsen expressed concerns about C's ability to parent Oscar in the long term as he had not assessed care given to her children, E and F and looked to the Children's Service to "provide the Court with their observations of the quality of care given by C. It has been demonstrated in this statement that the quality of care given to Oscar has been of a high quality and that I am satisfied that C provided a good quality of parenting to her children, E and F.
Dr Willemsen expressed concerns about C's ability to work with Children's Service, given her comments during the assessment that C's difficulties lie in her time during the care of Children's Service. However it has been my experience of working with C that she has strong opinions about the care of Oscar and his contact with A, but has been able to take on board concerns expressed by me and to seek support when appropriate.
Dr Willemsen raised concerns that if C were the primary carer she would be unable to manage contact for Oscar with A as "mother and daughter are bound to have arguments". I would agree that contact is a difficult issue if C is to be granted a Residence Order. C has, however, demonstrated that she is aware of times that A's emotional presentation would not be positive for Oscar and has ceased contact on these occasions. C recently received a letter from A addressed to Oscar. Initially the letter is positive, with A talking about the love she has for her child, but then goes on to describe her history with inappropriate details about abuse she has suffered in the past. C informed me that she knew this letter should not be shared with Oscar, even when he is much older, but that she wished to share the positive parts of the letter."
20. The Minister has utilised the time, from Dr Willemsen in February 2014 to date, to consider and assess the concerns raised by him in his report. The social worker has been able to give positive examples of why she feels that C is well equipped to continue to care for Oscar without a care order.
21. The Minister believes her approach to be consistent with the overriding objective contained within Rule 4 of the Children Rules 2005, and, in particular, with her obligation under Rule 4(4). Rule 4 states,
"(1) The overriding objective of the Court in proceedings is to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable -
(a) ensuring that -
(i) the parties are on an equal footing,
(ii) the case is dealt with expeditiously, fairly and with the minimum of delay,
(iii) the welfare of the children involved is safeguarded, and
(iv) distress to all parties is minimised; and
(b) allotting to the case an appropriate share of the Court's resources, while taking into account the need to allot resources to other cases;
(c) dealing with the case in ways that are proportionate -
(i) to the gravity and complexity of the issues, and
(ii) to the nature and extent of any intervention proposed in the private and family life of the children and adults involved.
(3) The Court must seek to give effect to the overriding objective when it -
(a) exercises any power given to it by these Rules; or
(b) interprets any Rules.
(4) The parties are required to help the Court to further the overriding objective."
22. Her consent is not a requirement to the making of a residence order but both the guardian, the social worker, Mr Giovanni acting for the mother, and indeed, Dr Willemsen are clear that she has been consistent throughout that she wishes Oscar to be looked after by C. Quoting from Ms Tandy's report she says:-
"During A's admission to Orchard House, I telephoned and spoke to her on 4th December, 2013. A was lucid and clear in her opinion that she wanted C to care for her son, Oscar.
On 19th December, 2013, I went to Orchard House to meet with A to discuss her views on the future plan for Oscar. At this meeting, it was my opinion that A was clear about the risks to her child and the need for a plan for his safety. A confirmed that she wished for Oscar to be cared for by her mum, C and that A was content with the planned arrangements for her to see Oscar three times per week for 1.5 hours.
A should be commended for recognising that she is unable to care for Oscar and for supporting a Residence Order application by her mother. She has remained steadfast in this wish throughout the period of the Interim Care Order.
Most recently, A was visited at HMP La Moye and again reiterated that she wishes Oscar to be cared for by her mother. Importantly she stated that she would prefer Oscar to be adopted by her mother.
It is the wish of both A and C that Oscar will continue to be looked after by C under a Residence Order.
A has expressed this view continuously since before the Interim Care Order was granted. Although there have been times when she has not been positive about her mother, she has never faltered from this view."
23. As Mr Robinson has pointed out there is nothing to prevent the mother from bringing a residence application at a later date. There would be no prejudice to her because under Article 10(3) she is "entitled" to apply to the court for any Article 10 residence order; she does not require leave.
24. This would result in the issue of residence being dealt with by the Family Registrar who would exercise her discretion to appoint a Court Welfare Officer under Article 9 of the Law. Article 9(1) reads:-
"9 Welfare reports
(1) In considering any question with respect to a child under this Law the court may require -
(a) a probation officer who is not the child's guardian ad litem; or
(b) the Minister to arrange for -
(i) an officer of an administration of the States for which the Minister is assigned responsibility, or
(ii) such other person (other than a probation officer) as the Minister considers appropriate,
to report to the court, in writing or orally as the court may direct, on such matters relating to the welfare of that child as are required to be dealt with in the report."
25. In practice the role of the Court Welfare Officer goes much further than that outlined in Article 9(1) and extends to working with families to overcome issues relating to residence and contact. This is clear from the guidance on the Jersey Family Court Advisory Service ("JFCAS") website which outlines their role and reads:-
"Jersey Family Court Advisory Service (JFCAS) looks after the interests of children involved in family court proceedings. They work with children and their families, and then advise the courts on what they consider to be in the best interests of individual children. Their involvement may be brief, happening at the beginning of the case only, or it may be longer, depending on what is requested of them."
26. In practice because JFCAS Officers are appointed as guardians in public law proceedings and Court Welfare Officers in private law proceedings, it is likely that Ms Green (the guardian in the extant public law proceedings) would be reappointed to assist this family in the context of private law proceedings, should such proceedings be necessary.
27. By virtue of Article 27 of the 2002 Law the Minister has a positive duty to allow 'reasonable contact' between a child in care and his parents. That duty will cease if the Court is minded to make a residence order in favour of C. However, the Minister is mindful of the comments made in Dr Willemsen's report, where he says:-
"61. In my view contact with Oscar will need to be supervised. An assessment of A's mental state will need to be undertaken before she sees her son. Supervision in my view will need to take place by the Minister..."
28. Bearing this opinion in mind, the Minister does not wish to leave this family in any difficulty and in her report Ms Tandy outlines the Minister's proposals to support contact. These go beyond that required under the Law and differ from the recommendation of Dr Willemsen. In her report, Ms Tandy says, starting at paragraph 82:-
"Children's Service would normally recommend a Residence Order only in circumstances where the carer is able to provide for all aspects of the care of a child, including contact with any family members.
C would be expected to make the decision about how often and when contact should take place with A. Children's Service will offer support for three months after the Residence Order is granted in order to assist C in her decisions around contact. A Children's Service social worker will help her to understand the expectations of her daughter, how to plan a safe contact including appropriate venues, who to include in contact and how to end a contact if it is not going well.
Additionally the social worker will offer support for A for three months in understanding her role in attending positive contact with Oscar. A will be encouraged to engage with relevant services such as Alcohol and Drugs Service and Psychology or Adult Mental Health. A will be supported in promoting positive behaviour during contact with Oscar and it is hoped that this will help A to sustain good progress.
C will be provided with support in preparing Oscar for contact and in managing any impact on his behaviour and emotions.
If A is able to demonstrate stability within that period of three months, the Children's Service could assist with attending a supervised contact and provide feedback to both parties for future contact sessions.
This support will be offered to both A and C for a period of up to three months after the granting of a Residence Order, or until C states she no longer needs it, whichever is the sooner.
It is my opinion that offering Children's Service supervision of contact would not provide C with the necessary skills or tools to deal with the challenges she will face for future contact. By providing the above support, it is hoped that C will feel equipped to help A have a positive experience of contact in a safe and appropriate manner for Oscar which is the expressed wish of both parties. This support will be provided whether or not A is released within that three months, as it is intended as a toolkit for when it will be needed. The work will not be dependent on A being released within that time limit."
29. The intention of the Minister is therefore to equip C with the necessary tools to allow her to manage contact herself rather than to take on a supervisory role as can be seen from that extract.
30. Should the position in relation to contact deteriorate then the mother is able to bring a private law contact application under Article 10(1)(a) of the Law. This would result in the Minister's role becoming superfluous at that point in so far as a Court Welfare Officer would be appointed under Article 9 of the Law to assist the Court.
31. Turning to the decision, the Children's Service has assessed C since September 2013 and they have found her able and willing to care for Oscar. They are of the view that further public law proceedings are unnecessary and support her application for residence.
32. The application is fully supported by the guardian who has addressed us today. We have read C's statement in support of her application and she says this at paragraph 9:-
"The original intention of the Minister was that a full care order be made with Oscar being looked after by me. However I do not wish Oscar to be a 'looked after' child. I do not want him to grow up as a social services child. I want him to be in a loving family unit, looked after and cared for by me, in other words I want him to have as normal an upbringing as possible."
Moving to paragraph 11 she says:-
"I take great comfort from the Minister's support of me, I love Oscar very much and desperately want to be the one responsible for his full-time care. I could not bear the thought of him going anywhere else, he means everything to me."
And then in terms of contact she says this at paragraphs 12 and 13:-
"I appreciate that in removing Oscar from the care of the Minister that I cannot rely on her support in the future. I am however confident that I can meet all Oscar's needs. My only concern was in relation to contact with A. I want A to have contact with Oscar but I fully appreciate that this needs to be managed very carefully and cannot commence until A demonstrates that she has remained drug free.
I am grateful for the package of support offered to me by the Children's Services as set out in Ms Tandy's statement. This will help me to plan safe contact, prepare Oscar for any contact and make the decision as to when and how contact should take place."
33. So the Court therefore is happy to make a residence order in favour of C with whom Oscar will now live and who will have parental responsibility for the duration of that order and we also discharge the Minister's underlying application and we vacate the dates fixed commencing 27th August.
Re O (Care or Supervision Order)  2 FLR 755, 760.