Care proceedings - application by the Minister for an emergency protection order.
Before : |
Sir Michael Birt, Commissioner, sitting alone. |
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Between |
The Minister of Health and Social Services |
Applicant |
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And |
The Mother |
Respondent |
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IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF IMOGEN (EMERGENCY PROTECTION ORDER)
Advocate S. M. Roberts for the Minister.
Advocate M. J. Haines for the Respondent.
judgment
the commissioner:
1. On 9th February, 2015, I granted the application for an Emergency Protection Order ("EPO") in respect of Imogen (this is not her real name) who has just attained the age of seven. What follows constitutes my reasons for that decision.
2. In anticipation of the hearing, the Court had ordered that a guardian be appointed for Imogen, but due to the shortage of time, the appointment had only just been made and the appointed guardian had been unable to begin work. Fortunately, Mrs Ferguson, the Manager of JFCAS, had read the papers and attended the hearing in order to listen to the evidence and submissions. Having done so she gave evidence to express her views. The Court was grateful for her participation.
3. There had initially been some uncertainty as to whether the Minister would be applying for an interim care order or an EPO. Accordingly, the Court had been constituted with Jurats sitting as they were to be necessary had the application been for an interim care order. Unfortunately the Court was not informed that the Minister would only be applying for an EPO and Advocate Haines confirmed at the hearing that he was not willing for the Court to consider the possibility of an interim care order as he had only come prepared to challenge an EPO. Because the decision to grant an EPO is conferred by statute on the Bailiff alone, the presence of the Jurats was therefore not necessary. Nevertheless, with the agreement of the parties, they remained to hear the evidence and submissions. It transpired that they agreed with my decision that an EPO was required but, as required by Article 37 of the Children (Jersey) Law 2002 ("the Law"), the decision was mine alone.
4. The Minister's application was brought because of an incident on 28th January, 2015, when Imogen was taken to hospital. I shall describe that shortly but, in order to put the application in context, it is necessary to refer briefly to some of the background to the case.
5. The Court had the benefit of a report by Jane Bartlett, the social worker in the Children's Service allocated to Imogen. Unfortunately she was unavailable at the hearing but evidence was given on behalf of the Children's Service by Sarah Rae, the interim team manager for the statutory team in the Children's Service. The Court also had the benefit of evidence from Dr Love, a forensic physician who is a specialist in the area of child sex abuse. As well as producing three reports, she also gave oral evidence by video link and was cross-examined by Advocate Haines.
6. I take the background from the report of Ms Bartlett supplemented by the oral evidence of Ms Rae.
7. The mother is 33 years old. She herself was brought up in the care system from the age of seven and sadly experienced familial abuse as a child. She has had four children. The older two sons have been adopted and the third lives with his father. Imogen is the youngest and is now seven.
8. The Children's Service has been involved for substantial periods since Imogen's birth. She has been placed on the child protection register under the category of neglect on three separate occasions. However she was removed from the register in June 2014 although she remains as a "Child in Need". However, prior to the incident on 28th January, 2015, professionals supporting the family were becoming increasingly concerned about the deterioration of the mother's parenting of Imogen, particularly in relation to Imogen's emotional development.
9. It is said that the mother has deep-seated difficulties of her own and often blames Imogen for these difficulties in Imogen's presence. This will be causing emotional harm to Imogen by damaging her confidence and self-esteem. It is said that this had been an on-going issue for practitioners, school, CAMHS and family support staff working with the mother and Imogen. Selected examples are as follows:-
(i) On 28th February, 2014, during a visit by Ms Bartlett, the household was in chaos at tea-time. There were four visitors and Imogen was refusing to sit at the table to eat her tea. The mother was shouting at her and urged Ms Bartlett to go and tell her saying "see what I have to put up with". In due course as Imogen was beginning to settle, she was lying on the floor of the living area and the mother stated "don't kick me, don't kick me". It had not been apparent that Imogen had this in mind. However she then made a half-hearted waving of her leg towards her mother as the suggestion had been made to her, whereupon the mother said "see what I mean".
(ii) On 11th June, 2013, and 11th November, 2013, when Imogen was in earshot, the mother had requested that the Children's Service take her into care.
(iii) On 2nd July, 2013, at a meeting at CAMHS when Imogen was present, the mother threatened to jump out of a window during a therapy session, stating that she could not cope and blaming Imogen for her state of mind.
(iv) During an appointment with Dr Mark Jones on 7th January, 2015, the mother, again in Imogen's presence, repeated her concerns that Imogen may suffer from ADHD, Asperger's syndrome and other health conditions which, the mother said, caused Imogen to have a lack of awareness of danger and to be very oppositional to the mother. It was reported that when she returned to school following that appointment, Imogen was in a kind of haze as if she was not really there. Ms Bartlett expressed the opinion that Imogen would have come away from that appointment overwhelmed by what had happened there.
(v) In a letter dated 23rd July, 2013, to the Children's Service, Dr Posner, of CAMHS, who has been meeting regularly with the mother and Imogen, referred to the mother's obstinacy and failure to take advice. Dr Posner has heard the mother talk in front of Imogen about the idea that there is something wrong with Imogen. Dr Posner considers that this perpetual search for an underlying reason for normal childhood behaviour is likely to erode Imogen's self-esteem. She considers that Imogen has an insecure avoidant attachment with the mother. There is a lack of joyful connection between the mother and Imogen and Imogen appears not to be relaxed; it is as if she is waiting for the next criticism to come along from her mother. Dr Posner expressed the view that it is widely evidenced that children learn a lot about who they are and how to behave from their primary attachment figure. Dr Posner's worry is that the longer that Imogen is exposed to the mother's way of doing things, the harder it will be for Imogen herself to change. Should the mother continue to interact with Imogen in the way that Dr Posner has observed, Dr Posner would have concerns for the long-term impact on Imogen's sense of self-worth, her capacity to manage her own emotions and her skills at managing her social relationships.
10. Another area of concern for the Children's Service has been the mother's inability to recognise risk. The mother's background has meant that she has been personally vulnerable through her lifestyle and associated relationships. Her personal relationships have been mostly highly emotionally dysfunctional and characterised by violence, which has consistently had an impact on her ability to be available for her children and to provide a sustained safe environment.
11. In this connection, she has not taken professional advice seriously regarding her choice of associates within the community in the past. One example given is in October 2013 when she was inviting a known offender at risk level 2, JMAPPA (for targeting and grooming vulnerable teenagers) into her home. She said that she was not going to have the Children's Service tell her what to do about her friendships and that they might as well "take Imogen". She explained that this known individual was an old friend of her brother's and would not hurt Imogen. Her brother is an offender against whom sexual allegations have been made although there are no convictions. He is currently in prison for vehicle theft and breach of an order. In due course the mother agreed she would not see this individual in her home when Imogen was there. Instead she invited the man to spend time in conversation with her from just outside the threshold for her property. In that way she adhered in strict terms to the request but not to its spirit. At the same time she seriously annoyed the neighbour opposite who had children and knew the particular offender's history. There is a history of explosive disputes with neighbours.
12. It is against that background that the incident of 28th January, 2015, falls to be considered. That evening the mother attended the Emergency Department at the General Hospital with Imogen and was seen by Dr Lawrenson, the consultant paediatrician. The mother explained to him that Imogen had gone to school that day, albeit a little reluctantly but the mother had put this down to her not enjoying PE, which she was due to have at school that day. There was no evidence of any bleeding at that time. She spent the day at school and on arriving home, Imogen went to the toilet to pass urine. The mother said that Imogen started screaming and called her mother. Blood stains were then seen in her underwear. The mother said that Imogen had given her a possible explanation, namely that whilst doing a hand-stand in PE, her foot had dropped and she had kicked herself in the perineum (i.e. the area between the vagina and the anus). However Imogen herself did not mention this explanation to the doctor. She has not so far given any explanation.
13. On examination, Dr Lawrenson noted a linear abrasion about 1 ½ cm in length on the right side in the groove between the labia majora and the labia minora (being the outer fleshy lip and inner fleshy lip respectfully of the vagina). There was no bruising and the hymen appeared intact.
14. Dr Lawrenson decided to call in a specialist and on 31st January, 2015, Imogen was examined by Dr Love. She confirmed the existence of a healing laceration, approximately 1 ½ cm long on the inner aspect of the labia minora, just below the clitoris. She considered that the injury had been caused within the last two weeks although she could not say when within that period. In her second report, she stated that the possible causes for such an injury would include sexual abuse, (particularly rough digital fondling or penetration), an accidental penetrating straddle injury, ulcerative and fissuring (skin splitting), skin disorders such as lichen sclerosus or ulcerative infections such as genital herpes. However there were no symptoms or signs to suggest either a skin disorder or genital infection. The laceration was located between the folds of protective genital skin pads (labia majora and minora), so that the area was well protected from a straddle injury (e.g. falling with legs astride gym bars). Knocking a foot into the genital area might be expected to cause bruising but not a tear, although it was possible that knocking the area could dislodge a scab or reopen a wound already in the process of healing. A sharp penetrating straddle injury (e.g. falling with legs astride a pointed or sharp object) could cause such an injury but would be accompanied by substantial bruising and trauma to the tissue surrounding the area. She also stated that she would have expected Imogen to be aware of when the injury occurred as it would probably have been painful and, if it occurred accidentally, she would have expected the child to alert any adults close by and to recall the incident.
15. In her third report, Dr Love considered some further possible explanations given by the mother for the injury. These possible explanations, together with the some possibilities originally referred to by Dr Love, were explored by Advocate Haines when he cross-examined Dr Love. I do not think it necessary to record her responses in detail. Suffice it to say that she was of the clear opinion that all the possible causes put forward on behalf of the mother were inherently implausible and she was left only therefore with sexual abuse as the likely cause of the laceration.
16. Article 37 of the Law provides (so far as relevant) as follows:-
"(1) The Bailiff may, on the application of any person, make an emergency protection order with respect to a child if the Bailiff is satisfied that:-
(a) There is reasonable cause to believe that the child is likely to suffer significant harm if:-
(i) the child is not removed to accommodation provided by or on behalf of the Minister, or;
(ii) the child does not remain in the place in which he or she is then being accommodated; or
(b) ...".
This application is brought under Article 37(1)(a)(i).
17. In Re B (Emergency Protection Order) [2008] JRC 026A, I said this at paragraph 22:-
"I was referred to the case of X Council -v- B (Emergency Protection Orders) [2005] 1 FLR 341 which, at paragraph 57 of the judgment of Munby J, sets out the overriding principles which should be borne in mind when considering whether to grant an emergency protection order under the equivalent English legislation. I have carefully considered the matters summarised there; in particular the fact that summarily removing a child from her parents is a draconian and extremely harsh measure requiring extraordinary (sic) compelling reasons. Such an order should not be made unless I am satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting B's welfare."
18. I have been referred again to the X Council case and I have reminded myself of the terms of paragraph 57 of the judgment in that case and the high threshold which must be achieved before making such a draconian order. I bear these principles very much in mind.
19. Imogen remained in hospital from 28th January, 2015, until the day of the hearing on 9th February, 2015. However she was to be released that day and accordingly, unless any order were made, she would return to the mother's home.
20. On behalf of the Minister, Advocate Roberts contended that nothing less than an EPO would suffice in this case. The evidence suggested that Imogen had been sexually abused. However the mother did not accept this and was looking for alternative explanations, none of which were plausible. There were a number of individuals who had had access to Imogen during the two week period before the visit to the hospital and until the police had completed their investigation, none of these could be ruled out as a potential abuser. It would therefore be highly dangerous to return Imogen to the environment in which such abuse had taken place and where her mother had been unable to protect her. The Minister would place Imogen in foster care during the term of any EPO so that she was in a safe environment while investigations and assessments were carried out.
21. Advocate Haines, on behalf of the mother, reminded me of the words of Munby J in paragraph 57 of his judgment to the effect that "imminent danger" had to be established before the draconian remedy of an EPO could be justified. The need to assess the position and establish what had happened did not amount to "imminent danger". The police could carry out their investigation satisfactorily even if Imogen were at home. If the order were made, what would happen at the end of the 28 day period? Imogen needed to be back in the family home with her mother and that was where she wanted to be. There was no evidence that the mother had caused the injury or that there had been strangers in the house. The mother was in an impossible position. She herself was a victim and the Court should not compound it by removing Imogen from her care. The mother would be able to protect Imogen and the high threshold for the making of an order had not been met. On the contrary, the disruption of placing Imogen in foster care would be damaging for her.
22. Mrs Ferguson emphasised that she could only proceed on the basis of having read the papers and listened to the evidence and the submissions. However, in her opinion, Imogen needed protection that day. Given the background, there was a question to be asked as to whether action should have been taken earlier. She considered that there was an immediate risk to Imogen. In the first place, sexual abuse might happen again given that the perpetrator's identity was unknown at this stage. In the second place, if Imogen were to return, the perpetrator might well be in a position to influence her or issue threats and thereby persuade her not to make any disclosure as to what had happened. It would therefore make the police's task much more difficult. That would in turn increase the risk to her.
23. I agree with the views expressed by Mrs Ferguson. On the basis of Dr Love's evidence, I find on the balance of probabilities that the laceration to Imogen was caused by sexual abuse within the two weeks prior to her attendance at the hospital. I also find that the mother does not accept this and is casting around for alternative causes. That means, in my judgment, particularly when combined with her previous attitude to contact with persons who were sex offenders as described above, that she cannot be relied upon to protect Imogen from such abuse. I find therefore that, if Imogen were to return to the mother's care on leaving hospital, there will indeed be an imminent danger of further abuse. There is therefore reasonable cause to believe that Imogen is likely to suffer significant harm if she is not removed to accommodation provided by the Minister. I consider that the making of an EPO is a proportionate response in the particular circumstances of this case.
24. The Minister's plan is that Imogen should move immediately to foster care and that she should remain there while detailed investigations and assessments are carried out. No doubt following such investigations and assessments, the Minister will decide on whether it is necessary to apply for an interim care order or whether he is satisfied that Imogen may be returned to the care of the mother or to some other friend or member of the family.
25. For these reasons, on 9th February I made an EPO for 28 days. I also directed that the mother should have contact with Imogen in accordance with the proposals contained in the care plan.
Authorities
Children (Jersey) Law 2002.