Jersey Unreported Judgments

Care order - reasons for refusal of contact between the mother and child.

[2015]JRC008

Royal Court

(Family)

15 January 2015

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Fisher and Grime

 

IN THE MATTER OF ANDREW (CARE ORDER)

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

Advocate S. M. Roberts for the Applicant.

Advocate M. P. Boothman for the Respondent.

judgment

the commissioner:

1.        On 17^th November, 2014, the Court granted the Minister's application under Article 27(4) of the Children (Jersey) Law 2002 ("the Children Law") authorising the Minister to refuse contact between Andrew (this is not his real name), ("the child"), who was then aged some five months, and the respondent ("the mother").  The mother's application for contact with the child under Article 27(3) was adjourned. 

2.        There was no issue between counsel that preventing a mother's contact with a new-born baby required compelling reasons as Munby J stated in Re K (Contact) [2008] EWHC 540 (Fam):-

"(1)     It was a very drastic thing to interfere with a young mother's contact with her newborn baby and his contact with her, particularly at a time when the 'threshold' was yet to be established.  It was even more drastic to deny contact altogether, a course which lay at the very extremities of the court's powers; at this early stage in care proceedings extraordinarily compelling reasons must be shown to justify an order under s 34(4) of the Children Act 1989.  However, the child's safety imperatively demanded that the court make such an order in this case, although it would be too drastic for such an order to last until the final hearing.  The s 34(4) order would expire on the date of the case management conference, giving the mother another chance to show that she could put the child's needs before her own problems.  The onus at the case management conference would be on the mother to demonstrate to the judge that carefully supervised contact, subject perhaps to stringent conditions, was something that should be allowed to be resumed (see paras [25], [28], [30]. [31]."

3.        The Court was persuaded that compelling reasons existed in this case to authorise the Minister to refuse contact between the child and the mother and we now set out our reasons. 

4.        The mother, who is 31, has a history of drug addiction and violence.  She has eight convictions involving 45 offences, four of which were for grave and criminal assaults.  In November, 2009, she was sentenced for a term of three years' for three grave and criminal assaults.  In May, 2014, she narrowly avoided a sentence of imprisonment for grave and criminal assault on account of her pregnancy with the child.  She has three older children all of whom have been removed from her care. 

5.        The child was born addicted to opiates and had to be treated in the Special Care Baby Unit as he was suffering from withdrawal and respiratory difficulties.  By way of medication, he was being treated with oramorth and thenabaritone, the latter being a sedative.  It would seem from the Court's judgment in relation to two of the older children (In the matter of EE [2011] JRC 178) that physical harm to them commenced in utero with the use by the mother of heroin and other substances. 

6.        The Court granted the Minister an interim care order in respect of the child on 18^th June, 2014, shortly after his birth, approving the care plan for him to be taken into foster care once released from hospital and the judgment of the Court dated 2^nd September, 2014, (In the matter of Andrew (Care order) [2014] JRC 164) sets out the circumstances leading to that decision which we will not repeat here.  That care plan envisaged the mother having supervised contact with the child once he left hospital five times a week, but that never came to pass. 

7.        The chronology of events presented by Ms Diane Burgess, the current social worker, is by way of summary as follows:-

(i)        On 26^th June, 2014, the mother attended Accident and Emergency on two occasions in a distressed state expressing suicidal ideation.  She stated that she had not been taking her Subutex as prescribed but had been diverting and injecting it.  She also disclosed the use of "legal highs". 

(ii)       On 27^th June, 2014, in a telephone conversation with the then social worker (Jon Collins), the mother agreed the contact between her and the child should cease immediately until a risk assessment had been completed.  She told the social worker that she was worried she would harm the child.  This was not the first reference to her possibly harming the child.  In an interview with the police on 20^th January, 2014, she had threatened to hang herself and the child. 

(iii)      On 27^th June, 2014, the mother's parents reported that they were fearful of their daughter who had presented as threatening to them, barricading herself in her room and standing over them in the night. 

(iv)      On 29^th June, 2014, the mother was admitted to Orchard House and described as "displaying some strange behaviours including incoherent speak, tangential conversations, self-harm by running into a door and wandering naked in the ward".  She was still under the influence of drugs and had not finished her detox.  She presented as threatening and aggressive towards staff, but notwithstanding was not diagnosed as suffering from any mental health disorder. 

(v)       On 1^st July, 2014, on a visit to the mother at the Shelter, Jon Collins reported concern about her presentation.  She told him that she was worried what she might do to the child. 

(vi)      On 1^st July, 2014, the hospital advised that the mother was trying to get to the child.  She was described as "not coherent, crying, and stating that the baby was dead."

(vii)     On 2^nd July, 2014, the mother attended at Le Bas Centre, again displaying very strange behaviour and asking if the child was dead, believing that he had had a post mortem. 

(viii)    On 2^nd July, 2014, the Jersey Multi-Agency Public Protection Arrangements (JMAPPA) assessed the risk of the mother as a "High Risk Level 2". 

(ix)      On 4^th July, 2014, the mother's parents called the police because of the mother's behaviour and presentation.  They were afraid of her and could not have her at home. 

(x)       The mother attended at Le Bas Centre on numerous occasions in an attempt to see the social workers in a distressed emotional state. 

(xi)      On 11^th July, 2014, the Children's Service held a risk assessment meeting.  The risks were considered to be too high at this time for the mother to be seen at Le Bas without an appointment.  The police would need to be in attendance when discussing the child's care plan. 

(xii)     On 16^th July, 2014, with the police present, the child was discharged from hospital and placed with foster carers.  On the same day, the mother attended at her parents' home asking to borrow money to purchase Subutex and becoming aggressive when they refused.  She threatened to kill herself by hanging or with a drill in her head, threats that were repeated to the police officers who had been called. 

(xiii)    On 23^rd and 24^th July, 2014, the mother attended at Le Bas without an appointment, on the first occasion going through to the staff area.  The police were called on both occasions.  She also attended the Le Bas centre on the 21^st July, 2014, without an appointment. 

(xiv)    On 25^th July, 2014, the carer for two of the older children informed the Children's Service that the mother came up to the window of her car outside the hospital and said "I'm going to slice your fucking neck.  I haven't forgotten you and I'm going to kill you".

(xv)     On 5^th August, 2014, the mother agreed with the social worker that she would have no contact with the child until a report from Dr Tanya Engelbrecht, a consultant psychiatrist at the Alcohol and Drugs Service, had been completed.  At a meeting on one occasion in August held between the mother, her key worker at the Alcohol and Drugs Service and Dr Engelbrecht, the latter two had to leave the room, fearful for their own safety. 

(xvi)    On 14^th August, 2014, the lextox expert drug and alcohol report concluded that the mother had "tested positive for buprenorphine use and two constituents of cannabis.  Her hair analysis suggested that she may have consumed "chronic excessive levels of alcohol in the previous six months from approximately the end of January 2014 to the end of July 2014".

(xvii)   On 1^st September, 2014, the child received his last dose of thenabaritone sedative. 

(xviii)  At the Multi-Agency Risk Assessment meeting on 17^th September, 2014, it was noted that there had been positive changes in that the mother's urine tests had proved negative and there no evidence that she was diverting Subutex or engaging in criminal activity.  Even so it was agreed by all the agencies represented that direct contact could not be promoted at that time.  

(xix)   On 17^th October, 2014, the mother had proved positive again for cannabis and on 7^th November, 2014, for valium, which shows that she was still using illicit substances on top of her prescribed programme.  The valium was more of a sedative than an amphetamine, but its use was of concern to Dr Engelbrecht. 

8.        In her report following an assessment that had taken place on 23^rd July, 2014, Dr Engelbrecht advised that the mother did not suffer with a serious mental disorder but had traits of a dissocial personality disorder.  Quoting from page 33 of her report:-

"These traits include impulsivity and high negative emotionality, as well as irresponsible and exploitative behaviour.  This manifests in unstable interpersonal relationships and a disregard for the consequences of her behaviour.  [The mother] has a low tolerance to frustration and a low threshold for discharge of her emotions.  Her use of substances and recent stress factors exacerbated this vulnerability and led to a series of emotional outbursts."

9.        She went on to advise that this disorder has a link with violence and that the mother's substance and alcohol use can lead to disinhibition of her behaviour exemplified by the recent incidents at her parents' home and during admission to Orchard House.  She concluded that if the mother could achieve a significant period of stability and the Children's Service considers that she could have contact with the child, she would support contact sessions being supervised initially. 

10.      In evidence, Dr Engelbrecht explained that the mother's personality disorder leads to dysfunction in her behaviour and a disparity between that behaviour and social norms.  She has no appreciation about how others are feeling.  Her low threshold for violence would bring her into conflict with society and the law.  The mother had a "low coping strategy and high stress vulnerability" which goes up and down, depending on the stress she is under.  After the birth of the child, she was chaotic.  By the time of the assessment on 23^rd July, things had settled reasonably and there were no positive tests.  In the period leading up to 17^th October, 2014, things had become chaotic again. 

11.      A report on the mother dated 7^th October, 2014, had been prepared by Joy Pickett, a psychologist, and at paragraph 6.3.1 she gave this explanation of the diagnosis of dissocial personality disorder:-

"Regarding any features which could be associated with risk to others, Antisocial PD is characterised by irritability and aggressiveness, as indicated by physical fights or assaults, reckless disregard for safety of self or others and failure to conform to social norms with respect to lawful behaviours by repeatedly performing acts that are grounds for arrest.  Dissocial Personality Disorder is characterised by callous unconcern for the feelings of any others, very low tolerance to frustration and a low threshold for discharge of aggression, including violence and a marked proneness to blame others or to offer plausible rationalizations for the behaviour that has brought the individual into conflict with society.  Borderline Personality Disorder is characterized by inappropriate, intense anger or difficulty controlling anger, recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour".

12.      Joy Pickett advised that throughout her interview with the mother, she did not demonstrate any understanding or insight into why the children were removed from her care nor as to how her behaviour had influenced this.  She concluded that the mother had not shown an acceptable level of change over an appropriate length of time to be granted direct contact with the child.  In relation to the future, she said this at paragraph 6.9.1:-

"Again, having had a discussion with [the mother's] Alcohol & Drugs Service key worker (Sue Terry) it is apparent that the longer the person is abstinent the less likely it is that a lapse would occur but that this will vary from person to person as well as according to other factors in their lives.  Given [the mother's] unstable lifestyle, personality disorder and traits of personality disorders, her lack of support from her parents, known associates within the drug culture then, in my opinion, her risk of lapse would remain high for a considerable length of time which it seems is not possible to determine categorically.  It is therefore my opinion that [the mother] needs to remain abstinent for the foreseeable future."

13.      In evidence, Joy Pickett confirmed that she could not support direct contact.  There would have to be a risk assessment carried out before each contact session.  If contact became volatile for any reason, it was important that the Children's Service was able to bring it to an end and that required the mother's cooperation; in that respect there was an overriding concern over her hostility towards professionals. 

14.      As Diane Burgess explained, the Children's Service was concerned with the mother's history of violence, her unpredictability and the threats she had made about herself and the child.  A police officer would more likely have to be in attendance at any contact sessions and if at any stage the child was in her arms then she would make the decisions as to what to do.  The environment at a contact session, even with the police officer present, could not be controlled to ensure the child's safety as he could be used by the mother as a weapon or harmed as a consequence of being held by her.  For contact to be safe, the Children's Service needed to be confident that the mother would respond to advice.  Ordinarily, there would be time to consider how to phrase advice in a way which would not offend her, but in contact sessions, there would be no time for that.  In essence, the Children's Service did not feel able to safely manage contact between the mother and the child. 

15.      There was a need for the mother to be "professionally" challenged by the Children's Service if she were to change but in view of her record for violence, Diane Burgess had not felt able to challenge her as she would be fearful of antagonising her - accordingly, she kept the status quo.  Diane Burgess accepted that the Minister had a duty to promote contact between the mother and the child and that to withhold direct contact altogether (indirect contact was being afforded) was an extreme measure.  For that reason, the Minister was only seeking permission to suspend contact for eight weeks.  A review then would allow the Court to retain judicial oversight. 

16.      The mother, in her statement and in evidence, accepted much of the case put forward by the Children's Service.  Her record, of course, speaks for itself, but she admitted that the child had been born addicted to drugs, her mental state at that time and when admitted to Orchard House, her taking of legal highs and the incidents with her parents.  She was able to give her account of these difficult times, which was helpful, and of the issues that were then surfacing over the abuse she says she suffered from her father.  It was clear that she found the relationship with her then social worker, Jon Collins, difficult and denied ever threatening to harm the child.  She denied the allegation that she had threatened the two older children's' carer outside the hospital or that she had been or would be a threat to anyone within the Children's Service. 

17.      The mother emphasised the progress that she had made since the beginning of July.  She had attended all key worker sessions and tried hard to change her lifestyle choices.  She had been accepted at the Midvale Road Resettlement Project, had managed to repay a lot of her debts and saved money at the Community Savings Bank.  She had started going to the Town Church on Sundays and had the support of the Freedom for Life Church Ministry.  She had attended a parenting class of her own initiative, which she had found helpful and had given her insight into what had gone wrong with her other children. 

18.      In relation to the recent positive tests for valium and cannabis, she explained that she had been offered valium by one of the residents as she couldn't sleep and that she had had a few drags of cannabis whilst in the Shelter in the company of other residents, all of whom were smoking.  It just made her sick.  

19.      The guardian reminded us that the child had only recently come off his sedation and following that, she had seen that he was a child that needed assurance and comforting.  She was concerned for him should direct contact take place.  Contact, as she rightly pointed out, is about the child, and it needs to be safe.  She drew our attention to the advice given by Joy Pickett at paragraph 6.21.1 of her report, where she states "In my opinion, in the light of the concerns documented by Diane Burgess..... there are no measures that can be put into place to safeguard Andrew during contact sessions."   Bearing in mind this assessment and recommendations, she did not feel able to support direct contact between the mother and Andrew. 

20.      The guardian was satisfied that the Minister's application was not resource led; nor was it led out of concerns for staff safety.  The mother needed to demonstrate that she could be consistent and contained.  It was important that the "challenging" work should now start as part of the core assessment of the mother and that the mother should remain drugs free. 

21.      In a detailed skeleton argument, Mr Boothman referred to the right to respect for family life of the mother and the child under Article 8 of the European Convention and argued that the interference by the Minister in the mother's contact with the child was both unnecessary and disproportionate, citing Johansen v Norway [1996] ECHR 17383/90 and Kutzner v Germany [2000] ECHR 46544/99.  It is well established, of course, that where the rights of a child and a parent are at stake, the child's rights must be the paramount consideration (Yousef v The Netherlands [2003] 1 FLR 33711/96).  In any event, it seemed to us that these decisions of the European Court went no further than Re K, which we have cited above, where it was held that the child's safety must imperatively demand that the Court make an order. 

22.      Mr Boothman further argued that the Minister was in breach of the provisions of Article 27(6) of the Children Law by refusing contact between the mother and the child for more than seven days; the purpose of this provision being, he said, to ensure that any denial of contact beyond that time required Court sanction.  The documents we have seen show that when contact was first refused, notice was given to the mother, her legal advisers and the guardian, pursuant to Article 2 of the Children (Contact in Care)(Jersey) Regulations 2005.  At that stage, the mother and her legal advisors agreed that contact should cease.  On the 5^th August, 2014, it was agreed that there would be no contact until receipt of Dr Engelbrecht's report.  The mother issued her application for contact on 5^th September, 2014, and a hearing was fixed for 24^th October, 2014.  On 23^rd October, 2014, that hearing was, by agreement, adjourned to 17^th November, 2014, to enable Joy Pickett to file her psychological report on the mother.  On 5^th November, 2014, detailed directions were given by the Court, again by consent, for the filing of position statements and skeleton arguments.  The Minister's application under Article 27(4) was filed on 11^th November, 2014. 

23.      It is clear that the mother was legally represented throughout the process and there had been an acknowledgement that her erratic and unpredictable behaviour had precluded direct contact.  From the point when the Court's jurisdiction was invoked by the mother on 5^th September, 2014, the matter has proceeded procedurally by consent to the hearing on 17^th November, 2014.  In the circumstances, we concluded that there had been no breach by the Minister of Article 27(6) of the Children Law. 

24.      Mr Boothman pointed out that most of the risks posed by the mother were known to the Children's Service prior to the interim care order being imposed, and yet the Minister put forward a care plan proposing supervised contact by the mother with the child five times a week, which plan was approved by the Court.  We accept that this is so, but in view of the subsequent lapse by the mother into illicit drug use and her erratic and unpredictable behaviour, we regard the decision to suspend contact as justified; indeed, the mother and her legal advisers have not sought to argue to the contrary. 

Decision

25.      The Court was not in a position to make findings of fact in relation to those matters which were in dispute.  It had not heard the evidence of those to whom threats to harm the child had allegedly been made or of the carer of the two older children about the incident outside the hospital.  The evidence that was not in dispute, however, did provide sufficient support for the case put forward by the Minister.  These were, on any objective analysis, extreme circumstances; a mother with a record of serious violence, a diagnosis of anti-social personality disorder with the traits that go with that, a long history of substance abuse so bad that the child had been born addicted and uncontroverted evidence of erratic and unpredictable behaviour and drug taking since the birth of the child.  Although denied, there were worrying allegations of threats to harm the child. 

26.      We accepted Mr Boothman's submission that she had made great efforts in the last few months and that it was a drastic step for all direct contact to be withheld but on balance, we concluded that for the reasons put forward by the Minister, there were compelling reasons to justify an order under Article 27(4) of the Children Law.  The final hearing was in fact due to take place on 16^th February, 2015, and we adjourned the mother's application for direct contact to that date.  However in view of the drastic nature of such an order, we also reserved 7^th January, 2015, and gave the mother liberty to apply back to the Court on that date for the issue of direct contact to be reviewed.  By these means, we were satisfied that we had retained judicial oversight over the issue. 

Authorities

Children (Jersey) Law 2002.

Re K (Contact) [2008] EWHC 540 (FAM).

In the matter of EE [2011] JRC 178.

In the matter of Andrew (Care order) [2014] JRC 164.

Johansen v Norway [1996] ECHR 17383/90.

Kutzner v Germany [2000] ECHR 46544/99.

Yousef v The Netherlands [2003] 1 FLR 33711/96.

Children (Contact in Care)(Jersey) Regulations 2005.