Before : |
Sir Michael Birt, Commissioner, and Jurats Kerley and Liston |
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Between |
Minister of Health and Social Services |
Applicant |
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And |
A (the mother) |
First Respondent |
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And |
B (the father) |
Second Respondent |
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And |
Freddie and Arthur (through their Guardian Eleanor Green) |
Third Respondents |
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IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF FREDDIE AND ARTHUR (CARE ORDER)
Advocate C. R. G. Davies for the Applicant.
Advocate A. T. H. English for the First Respondent.
Advocate A. D. Field for the Second Respondent.
Advocate N. S. H. Benest for the Third Respondents.
judgment
the commissioner:
1. On 7th January, 2015, the Court made an interim care order in respect of Freddie (aged 11) and Arthur (aged 8) (these are not their real names). Following the making of that order, the children remained living with the First Respondent ("the mother"). The Minister now wishes to remove the children from the care of the mother and has submitted a revised care plan. He has however deferred removal of the children until the outcome of this hearing.
2. Following the Minister's decision, the mother has applied to discharge the care order. Her preferred solution is that this Court should not approve of the revised care plan and should ask the Minister to reconsider with a view to his allowing the children to remain living with her. Should that be unsuccessful, she does however wish to discharge the care order.
3. Her application was heard over two days on 25th/26th March. The Court announced its decision on 27th March which was to dismiss the mother's application and to approve the Minister's revised care plan. We now give our reasons for reaching that decision.
4. Much of the background was described in the judgment of the Court dated 20th February (In the matter of Freddie and Arthur (Care order) [2015] JRC 037) giving the reasons for its decision on 7th January ("the ICO judgment") and we shall draw heavily on that judgment where appropriate.
5. Freddie was born when the mother was 16 and the father 19, with Arthur following two years later. The parent's relationship broke down in December 2008. The mother has since married and has a daughter Evie (aged 4) by that relationship. The father has also since married and has a son Joseph (aged 1) by that relationship.
6. The mother has a learning and physical disability which impacts upon her capacity to meet the demands of parenting the children. The father has a diagnosis of an autistic spectrum disorder as well as physical health problems which impact upon his capacity to meet the demands of parenting the children.
7. Freddie and Arthur have been exposed to numerous changes in their living and care arrangements (including short periods in voluntary care) and almost continuous disputes, allegations and counter allegations between the parents and their wider families. Private law proceedings took place in 2009/2010 and 2013/2014 during which psychological and educational psychological assessments were commissioned. Dr Bryn Williams, the psychologist, concluded that both children were vulnerable. Freddie was considered to have fairly significant learning difficulties combined with clearly evidenced emotional behavioural problems. Arthur has a diagnosis of ADHD, combined with significant learning difficulties and clearly evidenced emotional and behavioural problems.
8. In October 2014, the Family Registrar was sufficiently concerned about the welfare of the children and for the possible need for a care or supervision order to make an order under Article 29 of the Children (Jersey) Law 2002 ("the Law") requiring the Minister to undertake an investigation into the children's circumstances. That investigation was undertaken by Jayne Isaac, senior social work practitioner within the Children's Service and in her comprehensive report of 6th December, 2014, she concluded that the children were being subjected to significant harm and would continue to experience significant harm without an application to the Court to consider their welfare now and into the future. She recommended that an application for an interim care order be made which would allow the Minister to share parental responsibility and enable the Children's Service to manage contact arrangements, whilst undertaking appropriate assessments and considering the long-term needs of the children.
9. The report sets out in detail the physical, emotional and sexual harm together with the neglect which in the writer's opinion the children were suffering from or being exposed to.
10. In relation to physical harm, she pointed out that the Children's Service had received a total of nine referrals relating to concerns that the children had been physically harmed by a family member. These included being kicked by the father, being hit by both the mother and the father, receiving scratches to their bodies when in the care of the mother, being hit by the paternal grandfather, being hit by the step-father (i.e. the mother's husband), being "shoved" by the paternal grandmother and father, being bitten by a paternal cousin, being bitten by the father, being pinched by the paternal grandfather, being hit by a rolling pin by the mother, being 'drugged' by the paternal grandmother, being punched by the step-father and being hit with a wooden spoon by the step-mother (wife of the father).
11. Ms Isaac emphasised that none of the allegations had been substantiated but it was clear that both children had presented with marks and bruising and the allegations and counter-allegations were part of the troubled background of these children.
12. In relation to emotional harm, she pointed out that the Children's Service had received a total of five referrals relating to concerns that the children had been emotionally harmed by a family member. She gave as examples witnessing domestic abuse between the parents, witnessing domestic abuse between close family members, witnessing physical assaults on family members, being abandoned by the mother during their early years, regular repeated exposure to parental acrimony, regular and repeated exposure to adult conversations and difficulties, experience of regular and repeated changes in contact arrangements as a result of allegations and counter-allegations between adults, repeated interviews and/or physical examinations by doctors, the police, social workers, school staff and key workers and concerning behavioural responses to situations such as running away from home, taking part in violent and aggressive physical acts, use of sexualised and abusive language, refusal to attend school, feigning illness to avoid having to go to school and emotional and occasionally angry outbursts. She emphasised in particular the fact that they have repeatedly been exposed to acrimony between family members.
13. In relation to sexual harm, there had been a total of nine referrals to the Children's Service relating to concerns that they had been sexually harmed by a family member. These included possible knowledge of allegations that the mother had made of sexual abuse against the father and paternal grandmother, exposure to adult pornography, alleged sexual abuse by the paternal grandmother, inappropriate sexual conduct with their female cousin, inappropriate sexual contact with each other, displaying inappropriate sexualised behaviour in school and using sexualised/indecent language and swearing i.e. 'wankers', 'fuck off', 'you bitch', 'shagging' and 'humping'. Ms Isaac stated that whilst neither child had directly disclosed any sexual abuse, she was very concerned about the reasons for the sexualised behaviour, particularly in relation to Arthur.
14. As to neglect, she pointed out that the Children's Service had received a total of nine referrals relating to concerns that the children had been neglected by a family member and these included allegations of lack of supervision when in the care of paternal family members, neglect of home conditions when in the care of the maternal family members, neglect of their emotional behavioural needs by all members of their family, neglect of physical presentation within the care of the paternal family, exposure to dangerous and life-threatening materials, neglect of their educational needs by all members of their family and lack of prioritisation of needs by all of their family members.
15. Following production of that report the Minister duly applied for a care order. When the matter came before the Court on 7th January, 2015, it was conceded by all parties, including the parents and the guardian, that the threshold for making an interim care order was met. In other words there were reasonable grounds to believe that the circumstances with respect to the children were as mentioned in Article 24(2) of the Law, namely that they were suffering or were likely to suffer significant harm attributable to the care given to them or likely to be given to them if a care order or a supervision order was not made, not being what it would be reasonable to expect a parent to give their children. Although initially the mother and father were arguing for an interim supervision order rather than an interim care order, having heard the evidence produced to the Court, she and the father rested on the wisdom of the Court as to which order should be made. As already noted, the Court decided that an interim care order was required in order to safeguard the children.
16. The interim care plan made it clear that the Minister proposed in the short-term to leave the children in the care of the mother (with existing contact arrangements to see the father) but also made it clear that removal was in the Minister's mind. The relevant paragraphs of the plan are as follows:-
"3.3 If the Minister is successful in his application for an Interim Care Order, this plan proposes that Freddie and Arthur will remain in the care of their parents at this point. The Children's Service has given careful consideration to the removal of the children from parental care. Whilst it remains the opinion of the Children's Service that the only way to safeguard Freddie and Arthur is to remove them from parental care, we remain mindful that an interim psychological assessment is required to inform the question of removal and to identify whether necessary assessments can be undertaken with the children remaining in parental care or whether it would be less harmful to remove them.
...
4.1 Should the Court grant an Interim Care Order in respect of Freddie and Arthur the children will remain in parental care pending completing of a psychological assessment which will identify whether the children can be adequately safeguarded by parents while further assessment takes place or whether it would be in the best interests of the children to be removed from parental care. The assessment would also aim to identify the likely impact of the removal of Freddie and Arthur from parental care."
17. As envisaged in the interim care plan, Dr Williams was instructed to prepare an interim psychological report to assist in relation to the issue of whether the children should be removed from the care of their parents or not. His first interim report is dated 16th February. He had of course had previous involvement with the family having prepared reports for the private law proceedings in January 2010 and in May 2014.
18. His first interim report stated that he remained deeply concerned about these two very vulnerable boys and recognised that something significant needed to change. He considered that they were at risk of significant harm of emotional abuse as a result of the ongoing conflict and lack of consistency in the family. He was deeply concerned about the children. Nevertheless, he concluded that the risks to the children were chronic, and that there was no obvious immediate risk to them. He concluded that removing them from their parents care immediately would not be helpful in the long-term. He felt that everyone should not act too hastily in removing the children.
19. On 27th February, Dr Williams provided a second interim psychological report following a further visit to the Island the previous day. In this report, he changed his mind. He concluded that his concerns for Freddie in particular were now such that he recommended removal from parental care. We shall consider the reasons for his change of mind later in this judgment.
20. Following receipt of the two interim reports the Children's Service reviewed the position and on 5th March concluded that the children should be removed. This was communicated to the parents at a meeting on 9th March. That removal has however been deferred by agreement until the outcome of the present proceedings.
21. The Minister proposes that the children should live in a special residential unit which has been created specifically for them. They will each have their own bedroom and it will be staffed by specialists who are experienced at dealing with children with complex needs. It is intended to be a time limited placement so that the necessary assessments can be undertaken and the children can be freed from the pressures imposed upon them by the family situation with its allegations and counter-allegations. The aim is to see if, following a period of concentrated attention in an atmosphere free from family stress, appropriate changes can be made so that the children can be rehabilitated with their family in due course.
22. The Court had the benefit of all of Dr Williams' reports together with his oral evidence. It was clear that he considers that Freddie in particular is a deeply troubled boy in need of safeguarding. Arthur is also very troubled and his sexualised behaviour is a matter of real concern.
23. Naturally, he was pressed on why he changed his mind between his first interim report on 16th February and his second interim report on 27th February on the issue of removal from parental care. We think it is not unfair to say that his answers were somewhat discursive but we hope that we summarise them accurately by saying that he was relying on the following matters:-
(i) He learned of an incident which took place on 18th February between the mother and the father outside the father's home. Arthur was present as he was being brought for overnight contact. According to the email from Advocate Field dated 20th February (which was seen by Dr Williams) an argument developed and the mother was shouting and behaving in an aggressive and abusive manner within earshot of Arthur. She made all sorts of allegations in front of Arthur including that their father had in the past stabbed her, beaten her and mentally abused her and she also brought up again the allegations of sexual misconduct concerning the father and the maternal grandmother. She then accused the step-mother of being a child beater. Dr Williams accepted that he had not obtained the mother's version of events but there seemed no doubt to him that an incident had occurred. This was quite contrary to his belief at the time of the first interim report, when he understood that relations between the parents were proceeding more smoothly which would be to the benefit of the children. A recurrence of the sort of acrimonious conduct described in the email was a matter of concern to him.
(ii) A consequence of this incident was that the father had decided to withdraw from contact with the boys. This was a further concern which would cause them emotional harm.
(iii) The grandmother had only been allowed supervised access following the interim care order and had made it clear that this was not satisfactory. She had therefore decided to stop contact with the children. Dr Williams regarded this as an additional worrying factor. She had been an important figure to them during their lives, perhaps the most stable figure notwithstanding the allegations of sexual misbehaviour against her by the mother. The withdrawal of contact with her was an additional stress factor for the children.
(iv) He had concluded that Freddie was becoming beyond parental control. He gave as an example that the father had told him that Freddie had insisted on going to his maternal grandparent's house even though the father had not wanted him to do so. He had also been present when the mother had told Freddie that he must be back before dark but Freddie had not in fact returned before dark. Freddie was also seen by members of the Intensive Support Team (IST) on 7th March walking off on his own from the mother's house in the direction of Grainville School. There was a grave risk of Freddie joining an anti-social peer group and being easily led to get into serious trouble. Freddie appeared to be increasingly beyond the control of the parents. He was a vulnerable child who was riding his bike across busy roads in the Island and making unilateral decisions about who he was going to see whether in terms of family or friends.
24. Dr Williams agreed that a fact finding hearing was now necessary in order to enable everyone to take decisions on a factual basis rather than surrounded by serious and repeated but unproven allegations. Removing the children for an interim period would give space for such a hearing. It would enable effective parenting to be provided so that the children should become more settled, it might allow disclosures to be made once the children were out of the firing line and it would enable the professionals to work with the family on what is required for rehabilitation without the day to day pressures on them of parenting. In short, whilst conscious of the risks of removal, he was now of the opinion that it was the preferred option.
25. Ms Rae is a social worker and is the manager of the Statutory Social Work Team in the Children's Service, which position she has held since 19th January, 2015. She has not had personal experience of the children but has reviewed the file from, as she says, an objective point of view. Unfortunately, the social worker allocated to the children and who prepared the report for the interim care hearing in January is off sick.
26. Ms Rae emphasised that, although she accepted that Dr Williams had changed his mind, there had been no change of mind on the part of the Children's Service. The interim care plan in January stated that it was the opinion of the Children's Service that the only way to safeguard the children was to remove them from parental care but the Service was mindful that an interim psychological assessment was required to inform the question of removal and to identify whether necessary assessments could be undertaken with the children remaining in parental care or whether it would be less harmful to remove them. That assessment had now been received from Dr Williams. Whilst his first interim report suggested leaving the children in parental care, his second interim report now supported removal. The Children's Service had reviewed the whole matter and had concluded that the protection of these children from further significant harm required them to be removed at this stage.
27. It was clear from the Article 29 report and the other reports available to the Court in January that the children had suffered significant harm. The decision facing the Children's Service was that nothing had really changed since then to improve the position and they were still at risk of significant harm. For example, there had been the resurrection during the incident on 18th February of the old allegation by the mother of sexual misconduct by the paternal grandmother and the father. This had raised the temperature and led to the father withdrawing from contact for a while. It meant that the problem of family conflict with allegation and counter-allegation was continuing.
28. She was also concerned about the sexual behaviour displayed by Arthur. It was not natural for a boy of that age to be saying things such as 'me hump Harriet'. This had been added to by the fact that there was now a formal referral from a third party alleging sexual conduct between Arthur and Harriet. She referred to the suggestion at paragraph 5.25 of Dr Williams report that Arthur had also told his mother 'me love shagging Harriet' and that Arthur had 'tried to hump Evie'. In this connection she referred also to paragraph 5.29 of Dr Williams' first interim report where it said that Arthur had asked the step-mother if she 'sucks his cock' in relation to the father and had been observed trying to 'hump' his father.
29. She was also very concerned that Freddie was out of control. She noted reports that he was out on the streets on his own. He was a very vulnerable child because of his learning difficulties and lack of self-esteem and he could be very easily led.
30. She accepted that the parents loved their children but they could not put the children's interests before their conflict. Similarly IST, whilst it could be helpful, did not consist of qualified social workers. They were simply there to offer support and parenting advice in relation to matters such as setting boundaries etc.
31. The difficulties caused by the family conflicts were shown by a letter dated 3rd December, 2014, from the Positive Behaviour Support Team. They had been brought in in August 2013 to help with Arthur but had decided to close the case in December 2014 because of the ongoing conflict. The letter from Mr Snook, the behaviour advisor included this:-
"Throughout our involvement we have been very concerned with the relationships between Arthur's parents, the countless allegations and counter-allegations involving police investigations, child protection proceedings and the Family Courts. During the last 16 months there has only been a brief period where the families have cooperated with each other and maintained an amicable relationship. Recent core group meetings have been volatile with professionals being brought into family disputes. The ongoing disputes and accusations, even whilst under child protection proceedings for emotional harm, is a direct indication that the parents do not seem to understand the harm they are causing their children. Clinical work to resolve behavioural problems with Arthur under such circumstances is impossible as the behaviour itself may be a manifestation of the emotional trauma surrounding this family."
One of the advantages of the proposed placement was that work by the Positive Behaviour Support Team could recommence.
32. In relation to the placement, Ms Rae explained that they had investigated the question of foster care. However, because of the specific needs of the children, specialist foster care would be required and none was available in the Island. It was in those circumstances that the Children's Service had set up this special unit specifically for the children. She endorsed the guardian's description of the proposed unit. She emphasised that the placement was intended to be time limited. It was to enable assessments to be carried out and for the children to be removed during this period from the chaotic family situation. Everyone hoped that it would be possible to rehabilitate the children with the family in due course. Dr Williams had indicated a 6-9 month timescale and she hoped that it would be less than this. She indicated that she felt strongly about this case. She said that in 11 years of being a social worker, this was only the third occasion on which she had had sleepless nights about a case. When pressed as to whether this was because she was not sure of the right answer, she replied that, to the contrary, it was because the children were still at home and still suffering significant harm.
33. She accepted that there had been some positives. The IST reports were broadly positive and the basic care provided by the parents was satisfactory. Furthermore, Freddie's school had gone above and beyond the call of duty in providing one to one teaching which had helped Freddie considerably. Nevertheless, none of these matters addressed the emotional and psychological harm which the children were suffering and that could only be addressed by the Minister's amended care plan, which involved removing the children to the new unit.
34. Ms McMillian is a member of IST and, together with her colleague, was allocated to support the parents and children. The Court was provided with a log of the visits which commenced on 22nd February and ran until 22nd March. She confirmed that the purpose of IST was to provide help with parenting, including in particular routines and boundary setting. However, after a week or so, the instructions to IST had changed and thereafter they were simply to provide assistance in a practical way. She said that she had seen a number of positives. She saw some challenging behaviour from the children but this had on the whole been managed by the mother and step-father. We should add that, because the involvement of IST coincided with the period when the father had withdrawn from contact after the incident on 18th February, IST had limited involvement with the father. She had not seen any sexualised behaviour on Arthur's part.
35. The guardian has had previous involvement with this family albeit in a different capacity. She was the court welfare officer in the private law proceedings in 2013-14. She was appointed the children's guardian immediately prior to the hearing for the interim care order. The Court had the benefit of her position statement together with her oral evidence.
36. She told us of her meetings with the children since her appointment. She regretted the fact that IST had not become involved immediately after the granting of the interim care order and this had caused her to wonder whether the parents should be given a further period with the help of IST before removal was considered. However she acknowledged that IST did not provide specialist assistance, it was really intended only to help with basic parenting. It would not address the complex issues and the emotional harm which these children had suffered and therefore it was unlikely to address the root problems.
37. She explained that she had visited the proposed residential unit because she had initially been concerned that this would in effect be parenting by a large number of adults, which might not be an improvement on what they currently had. However she had been greatly reassured. She had spoken to the manager who had extensive experience in setting up tailored packages of care for children with complex needs. The manager had explained how she envisaged things working and how she intended to make the unit feel like a home rather than a unit. The manager was clear that this was an assessment period to identify whether the children could return home; if so what support was needed; or what other options could be explored. The manager was keen to avoid further drift which was also something which the guardian was anxious should not occur.
38. It was clear that the guardian found the decision as to whether it was right to remove the children more difficult than the Children's Service. However, having given the matter her careful consideration, she had concluded that the Minister's amended care plan should be supported. She was certainly against discharge of the care order and she felt that, on balance, the proposed removal was best for the children. However she wished to ensure that the period in the unit was spent constructively and she therefore urged that there should be regular meetings, with the guardian being kept fully informed so that progress could be monitored and positive steps taken if need be. She acknowledged the risks in removal and the possibility of fracturing relationships. Removal was clearly a policy of last resort but the children were suffering harm. Not without trepidation, she felt that the children's best interests would be served by what was proposed. She supported the need for a fact finding hearing so that everyone could proceed on the basis of a known factual basis concerning the various allegations and counter-allegations.
39. The father rested on the wisdom of the Court. His advocate emphasised that this was not because he was not interested in his children's future; far from it. It was simply that he was not sure of the best way forward and was willing to defer to the experts and to the Court's decision.
40. Advocate English, on the mother's behalf, opposed the amended care plan. The mother accepted that the threshold for an interim care order was met in January and continued to be met at present. There was therefore jurisdiction in the Court to continue the interim care order. But the mother submitted that the amended care plan, with its proposal for removal from the care of the parents, was not in the children's best interests and ran the risk of doing irreparable harm. Advocate English invited the Court to say it did not agree with the amended care plan and to send the matter back to the Minister for reconsideration. If that were unsuccessful, the interim care order should be discharged and replaced by a supervision order. The mother did not give evidence but we fully understand her decision not to do so.
41. Advocate English submitted that there had not really been any change since the date of the interim care order. Given that at that stage the Minister was prepared to let the children remain with the parents, there was no proper basis to justify removal at this stage. He referred to the evidence of the IST logs in support of this contention together with other evidence of positive elements as agreed by Ms Rae.
42. He said that too much reliance had been placed on Dr Williams' change of heart. It seemed as if, once he had changed his mind that was determinative of the issue. He submitted that the grounds for Dr Williams' change of heart were flimsy. He had placed great weight on the incident of 18th February but had done this only on the basis of the father's version of events. He had not spoken to the mother about it before writing his second interim report. The other matters upon which he relied were not of sufficient gravity to justify the change of view or to justify the draconian step of removal from the parents' care.
43. Furthermore, not enough consideration had been given to other options. In particular, the mother had not been given sufficient time since the interim care order to see if she could manage with appropriate support. IST had not been engaged until late February and this was wrong of the Minister. If IST had been engaged soon after the interim care order, the benefits of its support might well have manifested itself. The Court should insist that the Minister give IST a further opportunity to work.
44. Furthermore, insufficient consideration had been given to the risks of removal. It was a draconian step and both Dr Williams and the guardian were clear that the children would be upset at the removal. The risk was that the placement would break down and the family relationships would have been fractured.
45. Advocate English was also critical of the procedure which had been adopted. It appeared that there had not been a meeting of relevant officers to consider the change of care plan nor were there any minutes to record the decision or the reasons for it. This was unsatisfactory. Furthermore, Ms Rae's statement had only been provided on 24th March, which was far too close to the hearing to give the mother adequate opportunity to respond to it. It had made preparation of the case difficult. In summary, the Court should invite the Minister to reconsider. Should the Minister fail to do so, the interim care order should be discharged.
46. The Court is naturally very aware of the draconian nature of a decision to removal children from the care of their parents. It is an interference with the rights of the various individuals under Article 8 ECHR and it is a policy of last resort, only to be followed where it is necessary to safeguard the welfare of the children. In Re L A (Care: Chronic Neglect) [2010] 1 FLR 80, Thorpe LJ made it clear at paragraph 7 of the judgment that "... at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection." The Court of Appeal disapproved of the alternative formulation of "an imminent risk of really serious harm". We adopt the approach articulated by the English Court of Appeal in that case.
47. We note that the Children's Service, Dr Williams and the guardian are all of the opinion that removal is necessary in this case to protect the children. Like the guardian, we have not found it to be straightforward but we have come to the conclusion that we agree with them.
48. We are satisfied from the evidence that these children have suffered and are continuing to suffer significant harm. We find the summary set out in the Article 29 report to be accurate. These children have been exposed to relentless conflict between the maternal and paternal sides of the family which has caused them immense distress. As Dr Williams put it, they have been living in a 'whirlwind' as a result. At the time of writing his first interim report, Dr Williams thought that things were improving. But the incident of 18th February - no matter who said exactly what to whom and who was responsible for the incident - shattered that illusion and made it clear that the conflict continues. Furthermore, it involved a resuscitation of the old allegations of serious sexual misconduct by the paternal grandmother and the father which led to the father temporarily breaking off contact (amongst other reasons). In relation to the grandmother, it is one of the ironies of the situation that, if the mother's allegations against the grandmother are true, one would have thought that the last thing that the mother would wish would be for the children to be exposed to the grandmother whereas in fact the mother is keen for that relationship to continue. If, on the other hand, the allegations are not true, that also is very worrying given the effect of such conflict on the children.
49. There are also real grounds for concern in relation to the sexualised conduct shown by Arthur. All the expert witnesses appear to be agreed that this is not natural conduct for a boy of his age and it is not clear what is giving rise to his behaviour. How is he learning about and seeing the sort of conduct and expressions which he manifests?
50. We further accept that there is real concern that Freddie in particular is out of parental control. He is clearly a very vulnerable child and the thought of him being out and about and possibly falling into bad company with the consequence of being easily led into misbehaviour, is very worrying.
51. We have been comforted by the guardian's description of the proposed unit and by the acceptance by both Ms Rae and the guardian (as well as Dr Williams) that this is intended to be a time limited placement. It is intended to remove the children from the maelstrom in which they find themselves in order to allow work to be done with them, disclosures about sexual abuse (if any) to be made and generally work to be done with all parties in an atmosphere where the children are safe and free from the family conflict in which they normally live. A placement would, for example, enable the work with a Positive Behaviour Support Team to recommence.
52. We are however conscious of the concerns of the guardian. We think it is of the first importance that there be regular meetings between the Children's Services, members of the unit, the guardian and where appropriate the parents in order to monitor progress and ensure that there is no drift. We were much comforted by the guardian's comment that, since the arrival of Ms Rae, there had been much improved liaison and we were also encouraged by the assertion by Advocate Davies on behalf of the Children's Service that they too recognise the importance of this aspect.
53. At the end of the day, the children are at present in the care of the Minister. He is responsible for their welfare. We think there can be no question of discharging the interim care order and replacing it with a supervision order. We are quite satisfied that these children are suffering significant harm and it is necessary for the Minister to have joint parental responsibility in order to be in a position to protect them from further harm. The choice therefore is between approving the amended care plan or concluding that we do not agree with it and inviting the Minister to reconsider. For the reasons we have given, we in fact agree with it as being necessary to protect these children in the interim and give everyone an opportunity of addressing the very complex needs of these children.
54. We therefore reject the application of the mother to discharge the care order and give our approval to the amended care plan. We add however that the Court placed reliance on the clearly expressed intention that this was to be a time limited placement. It is hoped that rehabilitation with the family can be achieved. It is therefore necessary that assistance is given to the mother and the father (both of whom have difficulties of their own as already mentioned) with a view to helping them address and bring to an end the acrimony which has so damaged their children. We ask that the Minister focusses on this aspect as well as on support for the children.
55. As to contact, Dr Williams suggested limited contact immediately after removal so as to enable the children to settle and then modest contact thereafter. That is the proposal of the Children's Service in the amended care plan. The guardian was concerned that a flexible approach should be adopted in relation to contact, particularly after the initial period following removal. She was concerned to ensure that there was no damage (through lack of contact) in the children's relationship with the parents or, equally importantly, with the wider family such as the maternal and paternal grandparents. We share the views of the guardian and this is clearly a matter which should be kept under review and discussed at the regular meetings to which we have referred. Having said that, we make no order in relation to contact. It is of course always open to any party to apply for an order as to contact should he or she feel that what is permitted by the Minister is not satisfactory.
56. Ms Rae, Dr Williams and the guardian were all agreed that it was necessary to have a fact finding hearing in this matter before the final hearing in respect of the Minister's application for a care order. The difficulty at the moment was that there were many allegations and counter-allegations swirling around with no resolution. For example, the mother had recently resurrected her allegations of serious sexual misconduct against the paternal grandmother. If these allegations were true, it would clearly have an impact on her ability to play a major part in the children's upbringing. Conversely, if they were held to be ill-founded, she might well be able to play a very significant role, which could be of great benefit to the children.
57. It was accepted that, regardless of the outcome of any fact finding hearing, it might well be that one or more of the parties did not agree with the Court's decision and maintained the truth (or otherwise) of the allegations, but it would enable the professionals to plan the way ahead on the basis of ascertained facts. This would be for the benefit of the children.
58. The Court agrees. At least if there is a finding of fact in relation to certain key allegations, everyone can move forward on the basis of that factual situation and plans can be drawn up and put forward accordingly. It is vitally important that the professionals involved in decision-making about the best way of meeting these children's complex needs are as fully informed as possible about the risks as well as the merits involved in parenting within the family environment.
59. The Court therefore directs that the parties seek to agree a list of those matters which need to be the subject of a fact finding hearing. Clearly not every allegation which has ever been made needs to be the subject of a decision, only those that are significant for panning the way ahead.
60. We direct that the parties produce a list of issues for consideration by Commissioner Clyde-Smith at the next directions hearing. It would be for him to rule on which actual issues do need to be resolved and give directions for bringing the matter to trial at the earliest practical opportunity. If the parties are unable to agree, they should produce an agreed list to the extent that they are able to do so, with each party then producing a supplementary list of those issues which it says need to be resolved.
61. As we have mentioned, Advocate English was critical of certain aspects of the procedure followed in this case. We would make the following points for future reference:-
(i) A decision to remove children from the care of their parents is a major decision. We do not think it is satisfactory that such a decision appears to have been taken by one or at most two people in the Children's Service at an informal meeting with no written record of the meeting. In our judgment, such a major decision should be taken at a meeting of appropriate officers with a written record of the decision and the reasons for it being prepared at the time. That record should be made available at any subsequent court hearing.
(ii) We appreciate that this hearing came on as a matter of urgency but nevertheless, it was unsatisfactory for Ms Rae's statement to be produced so late. As stated in Re E (a child) (Care Order: Change of Care Plan) [2014] 3 WLR 1733 at para 49, it is important that the parents are properly involved in the decision making process and have an opportunity of putting forward their objections to a proposed removal.
Authorities
In the matter of Freddie and Arthur (Care order) [2015] JRC 037.
Children (Jersey) Law 2002.
Re L A (Care: Chronic Neglect) [2010] 1 FLR 80.
Re E (a child) (Care Order: Change of Care Plan) [2014] 3 WLR 1733.