Care proceedings - refusal of application for continuance of supervision order.
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Olsen |
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Between |
The Minister for Health and Social Services |
Applicant |
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And |
B (the mother) |
First Respondent |
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And |
C (the father) |
Second Respondent |
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And |
(3) Oliver (4) Grace (5) Daniel (6) Chloe (7) Holly (8) Adam (through their legal guardian Advocate H. J. Heath) |
Third Respondents |
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IN THE MATTER OF THE A CHILDREN (SUPERVISION ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate C. R. Dutôt for the Applicant.
Advocate E. L. Jordan for the First Respondent.
Advocate H. J. Heath for the Children.
judgment
the deputy bailiff:
1. This is an application by the Minister for Health and Social Services ("the Minister") for a continuation of the supervision order granted to the Minister in respect of the six children of the first respondent (together called "the children") on 22nd April, 2013. The reasons for the decision given then are set out in the judgment reported at In the matter of the A Children (Supervision order) [2013] JRC 080A. That supervision order lasted for a period of one year, and it is clear from the penultimate paragraph of the Court's judgment on that occasion that the Court then contemplated that there might be an application for an extension of the supervision order at a later stage.
2. We note also that there were further proceedings brought by the Minister on 5th August, 2013, in which she sought the conversion of the supervision order in to an interim care order. The Court's refusal of that application is to be found at In the matter of the A Children (Care proceedings) [2013] JRC 168B.
3. At the conclusion of the hearing of the current application on 24th April, 2014, the Court indicated that the supervision order would not be extended and that reasons would be delivered later. This judgment contains those reasons.
4. We record that the second respondent, who has parental responsibility as the father of Grace, Daniel and Chloe has not appeared. He was telephoned by representatives of the Law Officers' Department on 14th April, 2014, and advised that bundles were available for collection but he has not collected them. He had notice of the proceedings as indeed was the case on the last occasion. He did not appear before us, and exercising our powers under the Children (Jersey) Rules 2005, we resolved that it was in the interests of the children that we proceeded with the hearing in his absence.
5. We note that when the Minister first brought her application before the Court in relation to these children, it was an application for an interim care order but on 22nd April, 2013, at the final hearing the Minister's position had changed in that she no longer sought a care order but then sought a supervision order. The Court was presented with agreed threshold findings. There was agreement that the children had suffered or were at risk of suffering serious harm. The parties agreed that an allegation of sexual assault had been made by an unrelated 12 year old female against the father of Holly and Adam. It was agreed that in April 2012 Grace had disclosed to the mother that she had been sexually abused by the father of Holly and Adam, and had made a further allegation of sexual assault in September 2012. In October 2012, Chloe had made a similar allegation. Holly's father is currently in custody in the United Kingdom serving a 7 year prison sentence having been found guilty in March 2013 of four charges of assault by penetration on a child under 13 years.
6. The threshold document in 2013 accepted that the children had suffered neglect through parenting received. There were agreed examples in relation to their presentation at school in an unkempt state without adequate lunchboxes; unsatisfactory home conditions; leaving the children in the care of inappropriate carers; on occasion leaving the children in the car alone; and there was an acceptance on the part of the mother that during periods of stress she had placed her children at risk and subjected them to neglect, for which she then expressed enormous regret. The agreed threshold document also indicated that the children had suffered emotional harm through the parenting they had received, in particular arising out of the stress which the mother had suffered and her exposure of the children to domestic abuse between her and her former partners. Finally the agreed threshold document indicated that the children had been exposed to physical harm whilst in the care of their mother. None of the examples given arose out of any intentional conduct on the part of the mother to harm them, however.
7. When the Court refused the application for a care order in August 2013, we recorded the allegations of significant harm and the threshold findings in relation to the earlier order before saying this:-
"15. We have gone into this detail because an analysis of the present conditions, compared with the agreed threshold findings in April this year shows that most of what was then sufficient to confer jurisdiction on the Court no longer applies, and cannot be used to justify the likelihood of the children suffering significant harm in the future. The sexual abuse allegations are in the past, and the father of Holly and Adam who is alleged to have caused that abuse is serving a long term prison sentence. Furthermore the mother not only reported him to the police at that time, following her becoming aware of the allegations of sexual abuse, but also has made it plain that she has no intention of having anything to do with him. The most serious complaint which existed at the relevant date in September 2012 (in relation to the previous proceedings) no longer applies.
16. Insofar as the neglect allegations which were agreed in April are concerned, it is accepted by the Minister that there is nothing unsatisfactory about the present home conditions.
17. Insofar as the physical harm allegations were concerned, there is said to be as similarity only in relation to one of the factors which were agreed in April. In July 2012, Chloe fell out of a moving car whilst the mother was driving and sustained a bang to her head which required an overnight stay in hospital. The mother was not charged by the police with neglect. However there is a resonance with this incident in one of the complaints which we deal with below. Otherwise there are no current allegations of physical harm which are consistent with the complaints as at September 2012."
8. The supervision order was granted in April 2013, the Court then being satisfied it had jurisdiction to do so on the basis of the agreed findings.
9. In Re A (Supervision Order: Extension) [1995] 1 FLR 335, the English Court of Appeal considered inter alia whether it was necessary for the local authority to re-establish that threshold was passed on an application for an extension of an existing supervision order. The Court found that it was not necessary, principally for the reason that if threshold had to be re-established, then there would have been no need for the provisions in the Children Act 1989 for an extension of the supervision order - it would simply have been the case that the local authority would have to apply afresh for a supervision order and meet the statutory criteria for establishing the Court's jurisdiction to grant that order again. In many respects, the Children (Jersey) Law 2002 ("the Law") is in similar terms to the relevant provisions of the Children Act 1989. We accept the reasoning of the Court of Appeal in Re A (Supervision Order: Extension) and we apply the same principles here. Accordingly there is no need for the Minister to re-establish that threshold has passed.
10. That is not to say of course that the Court should not take into account, when deciding whether or not to extend the supervision order, all the relevant circumstances which apply at the time that the extension is considered.
11. The Minister's skeleton argument in support of the renewal was lodged on 10th April. The only fresh circumstance which was mentioned in that skeleton was the added factor of the mother's pending birth of her seventh child. It was suggested that the extension of the supervision order would enable the children's health, safety and wellbeing to continue to be monitored, and it would allow the mother to receive support which was necessary for her to continue and sustain the changes required to reduce the risks to her children.
12. When Advocate Dutôt opened the case for the Minister, she indicated that the level of communication between the mother and the Children's Service had not been as good as it could have been, and that the Minister felt uncomfortable about withdrawing support from the family at the present time.
13. In her skeleton argument, Advocate Jordan contended that notwithstanding that she accepted that there was jurisdiction to extend the supervision order without revisiting threshold, the application of the welfare test as at April 2014 meant that it would not be right to extend the current supervision order, because of the non-intervention principle. There was a positive duty on the Court not to make an order unless it was in the interests of the children to do so, and the mother contended that the order was not in the children's best interests. Accordingly we had a contested application for the extension.
14. We heard from Ms Diane Burgess, the social worker who had taken over from the previous social worker Laura Stark as of November 2013. She had had monthly meetings with the mother, and had seen the children either at school or at home on three occasions in December, January and February. She thought that the mother now managed her finances reasonably well on the whole, although occasionally when there was a crisis, she would turn to the Children's Service for support. Indeed that was a comment which applied more generally - at times of crisis, the mother would turn to Children's Services, which, overall made her communication with the Service intermittent and therefore not as good as it might be. This was really the substantial evidence of what was contended on the part of the Minister to be insufficient engagement by the mother with the Children's Service.
15. The lack of engagement was considered to be even more important in the context of the impending birth of another child.
16. Ms Burgess was concerned that one of the Children, Chloe, was over familiar with strangers. In her view, this needed attention.
17. There had been a mentoring scheme which had benefitted Oliver, Grace and Daniel considerably. She expressed concern that if the supervision order were not to be renewed, the mentor scheme would end. The mentors, who are family support workers from a different team in the Children's Service, have spent approximately two hours a week out of the home, with activity based meetings with those children, giving them a break from the younger children. It provided them with more resilience. Ms Burgess was anxious that if the mentoring scheme had to come to an end, it did so in a positive way.
18. It was apparent from the evidence which we heard that the real concerns which the Children's Service have in relation to this family are two-fold. First of all, there is concern that with the birth of the next child, there will be additional pressure upon the mother, and a serious risk of post-natal depression. Coupled with the mother's apparent disenchantment with the Children's Service, the resulting disengagement would therefore be liable to put the children at serious risk.
19. Secondly, there was continuing concern about the mother's new partner. The Children's Service feared that there would be, and might already be, domestic abuse within that relationship. The mother's partner struggles to regulate his own conduct, and had been particularly aggressive to the social worker and to one of the secretaries in her office. He had been volatile and he had refused to allow the mother to speak to the Children's Service. He insisted that she leave a pre-birth child conference. It was said that the mother's new partner had a 7 year old child (although Ms Burgess did not seem to be entirely sure of the age of the child) whose welfare was relevant as it was intended that she should spend more time with the children. It was said that the partner and that child's mother have a particularly acrimonious relationship, and this would in turn be likely to have an impact on the child and thus on the way in which the mother and the children function as a family.
20. We heard evidence from the Guardian, but not from the mother. She had met the mother and spoken to her on the telephone several times since March 2014. She had met the children at home, and one of the children at school as well. She had offered to meet the mother's partner, but he has not made contact with her. She reported that the two elder children, aged 11 and nine at the date of the hearing, did not want the supervision order extended. They felt that the order put stress on them and on their mother and they just wanted to get on with their lives. As far as the eldest child was concerned, although he did not use this language, she reported that he felt the order embarrassed and stigmatised him. There had to be police checks before he could have a sleepover with one of his friends, and it was embarrassing to have to ask other families to go through that process. The second eldest child simply wanted peace. She wanted to avoid visits from the Children's Service whether spontaneous or not. Sometimes the children wanted to go out but because the Children's Service were expected, they were unable to do so. She felt that "people were always asking them what they wanted, but they don't listen".
21. In the guardian's view, the elder children were very much aware of how their mother felt, and so when they expressed the view that the supervision order put their mother under stress, it was both some of their own view and a reflection of the mother's view. She also reported that on one of her home visits, one of the younger children had said that they hated Social Services. The guardian had not had the time to explore that statement. However she personally had been welcomed by the whole family.
22. The guardian reported that there was no evidence of any physical difficulties or needs that were going unattended. She had spoken to the Children's head teacher, who confirmed that the attendance record had improved. The guardian confirmed that the mentoring arrangements worked well and were appreciated by the elder children. She thought it would be helpful if the mentoring arrangements could continue if possible.
23. The guardian's view was that the mother's emotional wellbeing was very relevant to the children's emotional welfare. Understandably, they realise how she feels. There is currently mistrust on her part. She believes there is information in the reports which is incorrect and she has told the guardian that although she has informed the Children's Service of the incorrect references, the information simply reappears in the next reports. The application which was made for an interim care order notwithstanding the existence of the supervision order also troubled the mother. The mistrust which she has is directly relevant to the appropriateness of the intervention.
24. The guardian agreed with many of the concerns which the Minister has raised, but in her view they were not sufficient to warrant the intervention. She felt that with the mother's support, the Minister could designate these children as children in need and in fact give them a wide range of support which could include mentoring - that of course had resource implications for the Children's Service and would be a management issue for them. In her view, if there were no extension of the supervision order, the Children's Service would not be obliged to close the case. She thought that the family would continue to need support and she would be concerned if the Children's Service took the view that no supervision order meant that there was no need for support. The guardian told us that the mother had told her that if the supervision order were not renewed, she would work with the Children's Service. The guardian hoped that the mother would perform as she said she would, because without their support she feared that the mother would reach a crisis point sooner or later. The mother was said to be alert to this issue.
25. Although she has not met the mother's partner, and cannot therefore assess his impact on the family functioning, the two older children have told the guardian that he makes their mum happy. He is a good cook, he joins in activities, and he has a positive impact on the family. She felt that the mother's partner expected the children to do as they are told but nonetheless the children were aware that their mum was "the boss" and set the routines - as an example, the eldest girl had informed her that the mother's partner had grounded her for two weeks, but her mum had reduced that to three days.
26. In summary, the guardian's view was that the no order principle meant that the supervision order should probably not be renewed.
27. There is certainly room for the view that the supervision order did not create the relationship nor provide the type of assistance which the mother needed. We add that the following example is not intended to be a criticism of the Children's Service nor of the social worker, merely a reflection of the kind of problems which arise when children - especially this number of children - are being brought up in one household. On 24th October, 2013, Advocate Jordan wrote on behalf of the mother to Advocate Robinson at the Law Officers' Department. She said that the mother had requested that her four eldest children attend a children's club, or an alternative holiday club, during half-term. The mother thought that the children would greatly benefit from the opportunity to spend time with children of their own age, taking part in new playtime activities in which they would otherwise be unable to participate. It was said that the social worker (who is not the social worker who gave evidence before us on this occasion) had rejected the proposal because she did not think it would be beneficial to the children. Advocate Jordan asked that the decision be reconsidered.
28. When Advocate Robinson responded he did so on instructions to defend the social worker from criticism. He did not respond directly to the request in relation to funding half-term attendance at a children's club. Instead he said that the mother was the person with parental responsibility, not the Minister. Ultimately the Minister's role was to support and empower parents to care for their own children without the need for continued social work intervention. The Children's Service would continue to offer guidance and support, but this did not mean, nor indeed could it mean that the Minister would accede to every request that the mother made.
29. As it happened, the mother apparently obtained funding for a children's club on her own. She was right, and the social worker was in our view not right in relation to what was in the best interests of the children. That is not to say that necessarily the Children's Service should have been expected to fund that activity. That question goes to one of resources, and we have no evidence upon which to base a decision. We merely emphasise that the mother was right and the social worker was not right in the assessment of what was in the best interests of the children in that respect. Of itself it is a small point, but it perhaps illustrates that the supervisory jurisdiction did not necessarily bolster the mother's confidence in herself, or in her ability to parent.
30. In some ways, the Court has found this to be a difficult case. In our judgment on 28th August, 2013, we said at paragraph 35 and following:-
"We do not think there is any doubt that there are grounds for being concerned as to the future outlook for this family. The mother has six children, the oldest of whom is 10 years old. The pressure on any mother with that number of children would be very great. Inevitably there will be times when she feels under the greatest stress, and times when she feels unable to cope. There will be other times when she feels the greatest satisfaction at what she has been able to achieve for her children where others with fewer number of challenges seem to achieve less.
36. In this case the problems which this particular mother faces are no doubt exacerbated by psychological traits, her past relationship experiences, and an occasional problem with alcohol and with authority. We do not doubt the existence of the care proceedings commenced in September 2012 added greatly to the pressure and stress which this mother faced. We also do not doubt that the resurrection of these care proceedings will have added to the pressures upon her...
37. We completely understand the concerns of the Children's Service that, given the mother's tendency to have unfortunate relationships with men who do not look after her or her children, she may have embarked on a similarly difficult relationship with [the current partner]. We understand the concerns, but there is no sufficient evidence before us to justify them and indeed we think the difficulties between the mother and the authorities, within which we include the Children's Service and the schools, may have been exacerbated by a hasty - perhaps too hasty - judgment on the merits of [the partner]..."
31. There is no doubt about the stress which the proceedings might cause the mother. As was indicated at paragraph 51 of our judgment of 28th August, 2013:-
"In the Minister's application for an interim care order, the suggestion was made that it was timed to start parallel planning, from which we understand the Minister to be contemplating removing these children from their mother. Nothing we have seen or read suggests that the harm that would be caused to these children by staying with their mother would be anything like as great as the harm which would be caused to them by removing them. The stress of further care proceedings is not helpful. In our judgment, notwithstanding the understandable concerns which the Children's Service may have, there is a considerable gap between the present circumstances and circumstances where it would be right to contemplate draconian action of that kind."
32. If the mother's reaction to the supervision order has been underwhelming, it is not entirely unreasonable, although there is no doubt that the mentoring system which the Children's Service have put in place has proved to be extremely valuable and one hopes has continued and indeed will continue. In saying that we do not think the mother's position to be entirely unreasonable, assuming we have summarised it correctly, we do not mean to imply criticism of the various social workers as if this family would not necessarily have been an easy family with which to work. Any mother under the stress of bringing up six children is likely to present difficulties from time to time. What we think we must note, without attributing blame for it, is that successive relationships have not worked as well as they should, and we are really back to the basics of deciding in those circumstances what the purpose of state intervention might be. The no order principle is intended to ensure that if there is no constructive basis for state intervention such that the position will be better with that intervention than would be the case without it, then the right course is not to permit the state to intervene further.
33. In this case, as Advocate Heath put it, the guardian's view is that the dynamics of the relationship between the mother and the Children's Service need to be changed so as to remove the supervisory jurisdiction which undermines her confidence in herself and in her ability to parent. We are not really surprised that she has lost trust in the Children's Service. The application for a care order in August 2013 was a difficult application to justify because if unsuccessful, as it was, the mere fact of bringing it was likely to do - and has done - considerable damage to the relationship with the mother; and even if successful, was unlikely to lead to a position where the children would be removed from their mother on the welfare test, because there simply wasn't the evidence put before the Court remotely to justify that course of action. It was submitted to us by Advocate Heath that if one extended the supervision order, then what was an existing bad relationship between Children's Service and mother would probably get worse. One of the immediate drawbacks of that was that the mother's distrust was already having a detrimental effect on the two older children, and there was a real risk that it would have a detrimental effect on the younger children as well.
34. In our view, these considerations led to the conclusion that the supervision order should not be extended. We recognise that quite apart from the pressures which existed in August 2013, more pressures would arrive with this family with the birth of the new child. We recognise also that if, as was said to us to be likely to be the case, the child from a former relationship of the mother's new partner were to spend more time with the family, that too would be an additional source of pressure and stress.
35. The supervision order is capable of doing some good where the relationship between the supervisor and the family, and in particular the mother, works adequately. That is not the case here. The agreed threshold findings no longer present the same concerns for the children's welfare as they did at the time threshold was passed in April 2013 and the supervision order was first made. The underlying problems may well be still there, but the supervision order is not really addressing them. In those circumstances, the "no order" principle directs the conclusion that the supervision order should not be renewed. However we very much expect this mother to continue to need some assistance from the authorities from time to time. As Advocate Heath put it to us, it would be surprising - she said verging on the petulant - if the scaffolding around this family were to be removed in its entirety simply because the supervision order was not extended. We think that the mother will require further assistance from time to time but the hope is that an equality of bargaining position, as it were, as between the Children's Service and the mother will improve their relationship if both the Children's Service and the mother are prepared to work at it. Hopefully that too will have allowed the continuation of mentoring.
36. For all these reasons the supervision order was not renewed.
Authorities
In the matter of the A Children (Supervision order) [2013] JRC 080A.
In the matter of the A Children (Care proceedings) [2013] JRC 168B.
Children (Jersey) Rules 2005.
Re A (Supervision Order:-Extension) [1995] 1 FLR 335.
Children Act 1989.
Children (Jersey) Law 2002.