Sir Michael Birt, Kt., Bailiff and Jurats Fisher and Kerley
The Minister of Health and Social Services
Advocate C. R. G. Davies for the Minister.
Advocate B. J. Corbett for the Respondent.
1. On 27th October the Court granted the application of the Minister for a secure accommodation order under Article 22 of the Children (Jersey) Law 2002 in respect of the respondent ("Lucas"), who is aged 16. (This is not his real name).
2. Article 22, so far as relevant, provides as follows:-
"(1) Subject to the following provisions of this Article, a child who is being looked after by the Minister may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears -
(a) that -
(i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and
(ii) if the child absconds, he or she is likely to suffer significant harm; or
(b) that if the child is kept in any other description of accommodation he or she is likely to injure himself or herself or other persons.
(3) The court hearing an application under this Article shall decide whether the necessary criteria for keeping a child in secure accommodation are satisfied and if so it shall make an order -
(a) authorizing the child to be so kept; and
(b) specifying the maximum period for which the child may be so kept."
3. The Minister submits that Article 22(1)(b) is satisfied in this case and relies on the evidence contained in the report of Andrea Davison the allocated social worker in this case. She has produced a detailed report which we have considered carefully.
4. However, a difficulty arose during the hearing because Miss Davison had only taken over as Lucas' allocated social worker on 15th October, 2014. She was therefore unable to answer many of the questions posed to her by Advocate Corbett when she gave evidence. We therefore requested the attendance of Mr Scott Eastwood, Lucas' previous social worker and adjourned briefly so that he could attend. He was then questioned by Advocate Corbett. We also heard from Lucas himself.
5. At the conclusion of the hearing, the Court granted the order for a maximum period of three months. We now give our reasons.
6. The background is that Lucas' mother ("the mother") lives in Jersey with his younger brother ("the brother"), who is 14. Lucas' father has had no contact with him since he was four and the Children's Service have no contact details for the father.
7. Lucas lived with the mother and brother until 17th February, 2014, at which time he was taken into voluntary care and placed with Mr and Mrs A ("the foster carers"). Lucas' family has been known to the Children's Service since 2004 and there have been concerns about Lucas' challenging behaviour. Since 2012 there has been considerable unease about his misuse of drugs.
8. In October 2013 the mother contacted the Children's Service with concerns that he was using drugs. She felt he was beyond her control. This situation continued over the next few months. Lucas admitted to taking cannabis and also New Psychoactive Substances ("NPS's").
9. On 29th January, 2014, Lucas was reported missing to the police and eventually returned home under the influence of drugs. On 2nd February the mother left the Island to travel to Spain with the brother. Lucas' belongings were left in the garden shed and he was found at the bus station in a distressed state. Arrangements were made for him to stay at a friend's house.
10. Not surprisingly, this incident has caused problems in the relationship between Lucas and the mother and the situation remains difficult. As already stated, on 17th February, Lucas was received into voluntary care and placed with the foster carers.
11. They have done their very best and it is clear that Lucas has struck up a good relationship with them. Lucas states that he wishes to return to live with them rather than be placed in secure accommodation. However, it is clear from the evidence that his drug use, particularly of NPS's is spiralling out of control. We list below a few of the key incidents referred to in the social worker's report which have led the Minister to make the application in this case:-
(i) On 4th March, 2014, Lucas said he did not feel able to give up drugs even though he wanted to.
(ii) Shortly afterwards he spoke to his support worker of having suicidal thoughts.
(iii) On 23rd April he jumped out of the foster mother's moving car and absconded.
(iv) Two days later, he returned home late and his condition was described as "high as a kite".
(v) On 13th June he went missing and was returned by the police at 11:45pm.
(vi) At a meeting in July, Dr Howden, the medical adviser to "looked after" children reported that Lucas had told her that on one occasion when he had taken drugs, he had vomited 19 times and thought he had gone blind for about 30 minutes.
(vii) In July/August, he spent three weeks in residential care whilst his foster carers were on holiday. In that time he absconded on several occasions, once for two days.
(viii) On 10th October, the mother found Lucas at the address of a friend unconscious and appearing to fit, with his face down in vomit. He was admitted to Robin Ward for two days. He admitted having taken cannabis and the NPS called "Spice".
(ix) On 17th October, Lucas returned home in the early hours of the morning. The foster mother heard a loud noise and found that Lucas was in his bathroom with the door locked. He was screaming that he had gone blind. The foster mother called the police and ambulance who broke into the bathroom and found Lucas unconscious in a pool of vomit with a homemade "bong" and drugs lying beside him. He was admitted to hospital where he remained until the day of the hearing, at which time he was discharged. Whilst in hospital he said that he intended to go and "get stoned" as soon as he was discharged.
(x) Dr Coverley, consultant child and adolescent psychiatrist with CAMHS has stated that Lucas is at significant risk of killing himself unintentionally through his substance misuse as well as suffering physical and emotional harm.
12. It is in these circumstances that the Children's Service, on behalf of the Minister, has applied for a secure accommodation order. The care plan envisages that, with three months of enforced abstinence from drugs and regularity of taking his prescribed medication for his Attention Deficit Hyperactivity Disorder ("ADHD"), there will be an opportunity for a full health assessment and for therapeutic and assessment work to be done with a view to deciding whether Lucas should return to his foster carers or move to a placement outside Jersey. Quite naturally, the foster carers are worried that he may come to harm by his actions whilst he is in their care.
13. The mother and the foster carers see no alternative to what is proposed at present. All of them, and indeed all of those who are working with Lucas, are very worried about him and want to try and help him out of his current spiral into drug dependency.
14. Lucas opposes the application. He has put forward a seven point plan which he gave to his advocate and which was explained to us. Lucas gave evidence and we wish to pay tribute to the mature way in which he gave his evidence. His plan is as follows:-
(i) He intends to change his peer group, particularly to start associating with a friend, B, who is fiercely anti-drug.
(ii) He intends to engage in positive activities. He gave as examples learning to work as a disc jockey and returning to his activity of skateboarding.
(iii) He wishes to receive increased input from CAMHS.
(iv) He intends looking for a Saturday job.
(v) He wishes to live with his foster carers.
(vi) He will continue his involvement with the Alcohol and Drugs Service.
(vii) Most importantly, he wishes to continue with the course which he is undertaking at Highlands. This is extremely important to him and he feels that a secure accommodation order will imperil his success in this course, because he will not be able to attend for the early part of any stay at Greenfields. He explained - and he was supported by a comment from the foster mother - that CAMHS has been somewhat inflexible in making appointments to meet him. He was very keen not to miss any of the course at Highlands but CAMHS was unwilling until very recently to commit to regular meetings with a senior member of the team at a time and day which would not cause him to miss time at Highlands. A timetable which achieved this was only eventually offered on 15th October, two days before his latest admission to hospital.
15. The difficulty is that Lucas has made similar statements about his desire to change on previous occasions but has not been able to follow through. Thus:-
(i) In evidence Mr Eastwood, whilst accepting that Lucas wanted to change, said that Lucas had often expressed motivation to change previously but had not been able to achieve it.
(ii) A similar view was expressed by Dr Coverley in her report when she said that, during the current year, Lucas had at times expressed a wish to stop using substances and appeared to be co-operating with services and engaging with professionals but these episodes had not lasted for long and there was often increasing evidence of substance misuse, erratic behaviour and health issues.
(iii) During his first stay in hospital, Lucas announced that it was a "wakeup call" which made him realise that he should change.
(iv) As recently as 16th October he had said to the Alcohol and Drugs adviser that he felt he could abstain from taking NPS for three weeks and signed a contract agreeing to do this.
(v) Unfortunately it was the very next day that he once again took an NPS and had to be taken to hospital as described earlier.
(vi) Whilst in hospital for the second time, he spoke to Dr Howden. He said that it had not been his intention to kill himself but he accepted he might end up dead. When it was explained that he could not be discharged as he was a danger to himself, he expressed unhappiness about being made to stay in hospital and said that he intended to go and get "stoned" as soon as he was discharged.
16. The clear advice from all the professionals is that a period of safety in secure accommodation is required. We have already quoted at para 11(x) from Dr Coverley's report. Dr Howden went so far as to state in her report of 22nd October that she and her three consultant paediatric colleagues would not agree to discharge Lucas from hospital unless it was to a secure unit.
17. We have carefully considered Lucas' views, particularly given that he is 16. But we are in no doubt that, if Lucas were to return to the foster carers, or indeed to any other insecure accommodation, he would continue his drug use and would be likely to injure himself through such drug use. The pattern which we have described above would be likely to continue. We are satisfied therefore that the criteria set out in Article 22(1)(b) are met.
18. Article 22(3) provides that, where the criteria are satisfied, the Court "shall" make a secure accommodation order. That would suggest that the Court has no option. However, we agree with the obiter observation of William Bailhache, DB in In the matter of A (Secure Accommodation Order)  JRC 125, that Article 22(3) has to be read and applied so as to be consistent with the child's rights under the European Convention on Human Rights 2000, in particular Article 5 of the Convention. A secure accommodation order may therefore only be made where it is proportionate to do so, even where the criteria in Article 22(1) are met.
19. As we say, we accept that Lucas means what he says when he states that he wishes and intends to change. However, given his lack of success on previous occasions, and given the nature of the evidence before us including the expert evidence from the medical team and the social workers, we consider that it would be too great a risk to return him to his foster carers at present. Our primary duty is to Lucas' safety and welfare and we consider that both of these are best served at present by making a secure accommodation order. We emphasise that this is not a punishment; it is because everyone is concerned with his safety and this seems to us the best way of achieving that.
20. We also emphasise that the making of an order for three months does not mean that Lucas must stay in secure accommodation for three months. How long he stays there will depend on the progress he makes and therefore lies to a considerable extent in his own hands. We also emphasise the importance of trying to ensure that he can continue with the mechanics course at Highlands with the minimum amount of interruption, as we consider the attaining of this qualification to be very much in Lucas' long term interests.
21. For these reasons we made the secure accommodation order for three months.
Children (Jersey) Law 2002.
European Convention on Human Rights 2000.