Jersey Unreported Judgments

Care order - application by the Minister for an interim care order and the granting of a supervision order by the court.

[2015]JRC163

Royal Court

(Family)

7 August 2015

Before     :		W. J. Bailhache, Esq., Bailiff, and Jurats Nicolle and Liston
Between	The Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	B (the father)		Second Respondent

IN THE MATTER OF EMMA AND BEN (CARE ORDER)

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

Advocate C. R. G Davies for the Minister.

Advocate C. J. Scholefield for the First Respondent.

Mrs Elsa Fernandes, Guardian.

judgment

the bailiff:

1.        The Court sat on 21^st, 22^nd and 23^rd July to hear an application by the Minister for an interim care order in respect of Emma, born in 2009 and Ben, born in 2011 (together "the children"), children of the first and second respondents.  The decision of the Court was handed down on 24^th July with reasons reserved.  This judgment contains those reasons. 

2.        The first respondent is the mother of the children.  The second respondent is the father of the children and has not yet been served, although both of them have parental responsibility.  An application to the Court was made by the Minister that the Court should proceed without service of the papers on the second respondent and the Court has been advised, albeit no Act of the Court is in the bundle, that that application was successful.  We return to this point in relation to directions at the end of this judgment, but we record that we proceeded on the Minister's application in the absence of the father. 

3.        The children have been in the voluntary care of the Minister since 28^th June, 2015, but on one occasion since then, the mother, apparently on legal advice, removed the children from school without the Minister's approval.  For this reason, the Minister takes the view that the voluntary care arrangement is not sufficiently secure, and applies for an interim care order.  During their voluntary placement with the Minister, the children have been placed in alternative care arrangements as follows.  On 28^th June, the children were placed in the care of their maternal grandfather.  The following day, they were placed in the care of a family friend, identified by the mother.  That placement broke down quite quickly and the mother identified two further friends who were said to be willing to have the children to stay with them.  However, on 9^th July, they were removed from the care of those friends and placed with other foster carers, one of whom is Ben's keyworker at D.  It goes without saying that moving two small children from the care of the mother into the care of three different carers over the course of some four weeks was not ideal. 

Threshold

4.        On an application for an interim care order, the Court's jurisdiction to make either an interim care order or an interim supervision order arises under Article 30 of the Children (Jersey) Law 2002 ("the Law").  The Court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child(ren) are as mentioned in Article 24(2).  This Article provides:-

"(2) The court may only make a care order or supervision order if it is satisfied -

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to -

(i) the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child, or

(ii) the child's being beyond parental control."

5.        Article 24(2)(b)(ii) does not arise on the facts here.  In summary, for the purposes of this case, the Court on an application for an interim care order must ask itself if there are reasonable grounds:-

(i)        For thinking that the child concerned is suffering or likely to suffer significant harm; and

(ii)       If yes, that this is attributable to the care given or likely to be given by its parent falling short of what it would be reasonable to expect.

6.        The mother was resident in Jersey until she was 13 when she moved to live in England.  She herself was a looked after child for part of her childhood.  She has an older daughter from a previous relationship, and that daughter is, so we are told, subject to a special guardianship order in the United Kingdom.  The mother has contact with her. 

7.        Emma and Ben moved to Jersey with their mother in July 2014, seeking refuge from domestic violence committed by the children's father, the second respondent, on the mother.  Prior to coming to the Island, the Minister has information that the children lived with their mother in the UK where they were known to the local social services.  There was apparently a long history of involvement relating to drug and alcohol misuse, domestic violence with multiple partners and a chaotic lifestyle.  The older daughter, to whom we have referred was registered on the child protection register in that local authority in 2003 and it was noted that that child had made allegations of sexual abuse against her maternal uncle and also against the second respondent.  In 2011, the local authority recorded that the elder child had expressed concern that the mother was permitting Emma to have contact with the same maternal uncle about whom the elder child had made the allegations of sexual abuse. 

8.        On arrival in Jersey, the mother initially lived with Emma and Ben at the Women's Refuge, which made a referral to the multi-agency safeguarding hub (MASH) expressing concern about the mother's care of the children and noting that the mother had returned with the children late at night on three occasions in the space of a week, on each occasion smelling of alcohol. 

9.        The Children's Service received three police notifications of domestic abuse between March and April 2015 and it was asserted that each of these incidents was witnessed by one or both of the children.  The children were placed on the Child Protection register on 22^nd May, 2015, under the category of risk of physical harm. 

10.      On 28^th June, 2015, the mother was charged with two counts of intentionally or recklessly neglecting a child in a manner likely to cause harm to the child, and one count of intentionally or recklessly causing harm to a child.  These proceedings are currently before the Magistrate's Court and the mother has reserved her plea.  It was the incident of 28^th June which led to the children being placed in the voluntary care of the Minister. 

11.      In summary, the Minister asserts that:-

(i)        The children are suffering emotional harm and likelihood of physical harm as a result of their exposure to long term domestic abuse;

(ii)       The children are suffering neglect and likely physical harm as a result of their exposure to alcohol and drug abuse;

(iii)      The mother's minimisation of the concerns and her inability to place the children's needs above those of her own in effect place the children at risk; and

(iv)      The pattern of concerns of the Minister replicates those that resulted in the mother's eldest daughter being placed permanently outside her care on a special guardianship order. 

12.      As threshold was disputed, it is appropriate to review the evidence put before us.  For the Minister, this consisted of the evidence of the social worker Ms Rachel Stroyan coupled with police reports of the various incidents which are referred to above.  There is no documentary evidence in respect of the concerns of E Social Services actions and approach in the UK, where the mother lived.  The mother gave evidence before us on her own account in disputing that threshold had been passed; and it was also said by Advocate Scholefield that her evidence, even if not conclusive in establishing that the threshold had not been passed, was also relevant to the issue of whether the Court should make any order, and if so, what order ought to be made. 

E Social Services

13.      In her written evidence, Ms Stroyan said that the mother had had a long involvement with agencies through her experience as a looked-after child and her difficulties as a parent to her two children.  She had been known to the States of Jersey Children's Service since 21^st July, 2014, following her seeking refuge at the Jersey Women's Refuge from the UK on 8^th July.  She had fled to the Refuge from domestic violence committed by the second respondent who, it was said, was known to Social Services in the UK due to his high levels of domestic violence.  Seventeen incidents were known of at the point of arrival.  The second respondent is known to "Palladin" a UK database for stalkers, and is classified as a prolific stalker.  The mother had informed Ms Stroyan that there was a non-molestation order in place in respect of the second respondent which prevented him from having any contact with the children and with her.  E Social Services had shared with the Minister that the mother had developed a drug problem before her eldest daughter was born in April 2001 and the following year UK police attended three incidents of domestic violence.  Over the three years after that, the mother had continued her drug use, and moved frequently.  During this time there was further domestic violence with subsequent partners and the mother had a chaotic lifestyle.  This led to the eldest child being made subject to child protection registration in December 2003.  The Children's Service were concerned that there was a similar pattern with the experiences of Ben and Emma.  The allegation of violence against the mother by the second respondent involved kicks and punches to the head and torso in September 2010, and attempts to choke the mother by the second respondent in February 2012 which it was said both children had witnessed.  In March 2014 the second respondent had allegedly bitten the mother following an argument.  It was suggested in cross-examination of the mother that she had been hit by the second respondent with a baseball bat, and she seemed to agree that that was so.  When the mother gave her evidence, she agreed that the police notes were right in respect of the domestic violence committed upon her by the second respondent but incorrect in so far as it was suggested the children had witnessed that violence.  She said that the children never witnessed violence until a couple of days before she left, and indeed it was that violence which drove her to leave the United Kingdom and come to Jersey. 

14.      We note that a social worker apparently visited the family home in May 2012, and raised concerns regarding Emma hitting her in the face several times and appearing to think it was funny. 

15.      Pausing there, and bearing in mind that for threshold to be reached, the Court has only to conclude that there are reasonable grounds for believing that the circumstances envisaged in Article 24(2) of the Law are met, it seems to us that there is sufficient evidence for such a conclusion to be reached.  It is a parent's duty not to permit the child to be exposed to domestic violence, and where that domestic violence continues over a protracted period, and is on the scale reported to us in this case, it appears to us that it is not at all unreasonable to think that significant harm may well have been sustained by the children.  Of course, had those been the only circumstances, and notwithstanding that threshold had been passed, the fact that the mother had, if belatedly, removed the children from circumstances in which the domestic violence took place, might have led the Court to considering that intervention was not necessary.  However, in the present case, there are further relevant facts to consider. 

The Refuge

16.      The evidence of Ms Stroyan was to the effect that on three occasions in July 2014 the children were considered by the women's refuge to be at risk.  On 11^th July, the mother had arrived back at the Refuge at 12:10am via a taxi with the children, and she smelt of alcohol.  The children were tearful and distressed.  On 15^th July, 2014, again she had arrived back at the Refuge at 12:05am., smelling of alcohol, and again the children were tearful and distressed.  On 17^th July, she arrived back at the Refuge with the children at 10:00pm., and had apparently had an accident which caused swelling to her ankle, and hospital attention was required.  The mother informed the Women's Refuge that on this occasion she was on the beach with the children and had hurt her ankle, after preventing Ben from running on the rocks.  She denied any use of alcohol, but it was noted that she exhibited some hysterical behaviour in the emergency department at the hospital. 

17.      For these reasons, the Children's Service expressed the fear that the mother was staying out very late with Ben and Emma, and she did not prioritise their needs above her own, especially evidenced by the fact that she was consuming alcohol.  The mother's explanation was that she came to Jersey to feel safe.  She said that her childhood was alright up until the age of 13 and she just wanted to come home.  She went to a restaurant with her father and she agrees that the children were tired when she got back to the Refuge.  On 15^th July, 2014, which was her father's birthday, there was a party at his home and it was increasingly crowded so that the children could not settle.  In relation to the last incident on 17^th July, she said she was at the beach with her father and his wife at the Dicq.  They started eating at about 8:30pm.  It was nice to be near her family.  She agreed that on each of the three occasions that she had had a couple of glasses of wine.  She denied that she was under the influence of alcohol.  In response to this, put to her in cross-examination, Ms Stroyan said that it was too late for the children to be out at night, and although it was possibly a good thing that the mother was trying to re-establish a relationship with her father, the children's grandfather, all this suggested that she was prioritising her needs over those of her family. 

18.      The Court takes the view in relation to the Refuge incidents that, if these had been serious, they would have resulted in an application to the Court at an earlier stage.  In fact, nothing was done in this connection until a year later.  We do not regard the allegations of drunkenness as having been established, but as will be clear from the directions which we are giving in this case, we do think it would be desirable in the interests of the mother and of ensuring that the Court is able to reach the right conclusion, that these allegations are further tested. 

19.      The mother commenced a new relationship with a Mr F, a friend of her bother, in or about August 2014.  In her evidence she said that he was not violent as her husband had been.  She had met him in England and he was a source of comfort to her.  He knew what she had suffered at the hands of her husband.  In her view, the two children, her and Mr F were like a family.  However, it all subsequently went wrong. 

20.      The Police log for 20^th March, 2015, shows that the mother called the Police for assistance and a Police officer attended at approximately 17:40 hours.  The mother had said that there were three unwanted visitors who would not leave her flat.  On arrival, the Police found that the three visitors were the mother's former partner Mr F, her brother, G, and his girlfriend.  The mother stated that her brother had told Mr F that the mother had been cheating on him, an allegation which the mother denied.  This led to an argument.  Mr F, who had at one stage been living in the flat, returned and had refused to leave.  When the mother called the Police, all three left.  There were no allegations of any direct violence, and no signs of disturbance in the flat.  The mother agreed that her three unwanted visitors could return while the Police were there to collect their things. 

21.      On 6^th April, 2015, at approximately 18:00 hours Mr F contacted the police to say that he was outside the mother's property and that the mother was throwing his belongings out of the window onto the street.  He also suggested that he was being threatened with a hammer, although the mother denied this.  According to the mother, there was an oral argument only, as she had discovered messages from another female on Mr F's Facebook.  Mr F denied this, although he refused to show the officers his telephone.  The officers gave words of advice to both of them, and Mr F was given a lawful order to leave the area.  The officers expressed some concern that the young children were being further exposed to situations of this kind, which might have a physical or emotional adverse effect upon them. 

22.      The police log shows that the police officer attended at the mother's home address on 10^th April with the Force medical examiner.  It was plain that there was bruising to the mother's arms and inner right thigh.  The mother was reluctant to speak about these bruises in any detail.  She said she did not wish to take the matter any further.  The officer noted that the available medical evidence had been secured. 

23.      Mr F was not interviewed in relation to this incident.  However, although the mother was originally not prepared to take the matter further, she was by 12^th April willing to make a formal complaint, because Mr F had not left the Island as anticipated.  The following day, she said her bruise was looking much worse than when the photographs were taken.  She explained that Mr F had wanted sex and that she did not.  He had pushed her into the bedroom by the shoulders, banging her arm.  He also had grabbed her and had bitten her thigh before having sex with her.  She had shouted out at the time.  It was pointed out to her that non-consensual sex amounted to rape.  She immediately tried to lessen her complaint by saying that "he probably thought I was joking".  Subsequently she refused any further examination by the Force medical examiner, saying that she did not want to go down that route.  She would like to pursue an allegation of assault by Mr F but not an allegation of rape.  She duly made a formal complaint of a grave and criminal assault but this was not to include any allegation of rape as part of the same incident.  The police log discloses that at the time this incident occurred, Emma and Ben were asleep in their bedroom.  When the mother gave her evidence, she said that she had asked Mr F to leave on the 6^th April, but he came back and he pushed her into having sex.  She did not know why she had not called the police.  She did not want it to be real.  That comment perhaps should be interpreted in the context of her statement immediately before that she and Mr F were like a family and she did not know what had gone wrong. 

24.      A further incident occurred on 12^th April.  

25.      There appears to be some difference of opinion between the two Police officers who attended.  One police officer considered that the children were unaffected by the incident.  They were happy and distressed only in the sense that their mother was bleeding from her foot.  That officer considered that the incident did not have a major effect on them, and that they were soon playing with toys and watching television in their bedroom.  The other officer was of the view that the children could not have been unaffected because the mother admitted that her daughter was woken up by the incident and it could not be certain what she had seen.  Given the size and layout of the premises, and the amount of damage caused, the children in that officer's view would have been affected by this violent domestic argument.  As a result of this incident, Mr F was charged with a grave and criminal assault.  He was committed to the Royal Court on this charge, and granted bail on conditions.  One of those conditions was that he should not contact prosecution witnesses, including the mother and another that he leave the Island until trial. 

26.      The final incident which was taken into account by the Minister for the purposes of the present application occurred on Sunday 28^th June.  The police received a telephone call to the effect that a baby had been crying for over half an hour shouting "mummy, mummy".  On the police attending at the premises, they found the mother, in their view, to be very intoxicated.  She smelt of alcohol and was unsteady, slurring her words and repeating herself.  She could not give a coherent account of what had happened that evening.  Ben had clearly wet his bed and a towel had been placed on the wet patch and it had almost dried.  She did not seem to know where Ben was, although she thought he might have been asleep in her bed.  The police noted that the flat was generally tidy but a bean bag on the living room floor had broken open and polystyrene balls were everywhere.  Also on the floor was female underwear and a bra.  The Police noted a glass and a half full bottle of rosé wine.  The mother was arrested on suspicion of child neglect and her father (the children's grandfather), was called and requested to attend to look after the children, as it was 2am on 29^th June there was, it seems, no other option. 

27.      The police noted that their concerns for the children's safety were that:-

(i)        The mother had become drunk and had not attended to the crying child;

(ii)       He had wet the bed and she had put him back in the same bed;

(iii)      The living room was a mess with alcohol on the floor and polystyrene balls everywhere on which the children might choke; and

(iv)      The mother did not seem to be aware of where Ben was, and indeed had made comments which suggested that he and Emma had been left alone in the flat on occasions that day. 

28.      When she gave evidence on this subject, the mother indicated that she believed the complaint had been made by a neighbour with whom she was on bad terms.  She said she could not seem to talk to her.  She asserted that that evening, when she went to bed, she had had a glass of wine and had not realised that it might not go well with the co-codamol which she was taking then.  She was tired.  Ben was crying because he had wet his bed.  She changed his pyjamas and put a towel over the wet patch on his sheets.  He had continued to cry, maybe for 10 minutes, because he wanted to sleep in her bed and she did not agree with that.  She woke up with a start when the police arrived at 1:30am.  It would appear that Ben had crept into her bed without her realising it.  She did not think there was any basis for all the complaints which had been made. 

29.      The Court heard from Ms Elsa Fernandes, the appointed guardian, who told us that she had read the paperwork and appreciated that although the incident on 28^th June was the instigating incident, for her it was the background and chronology which raised concerns that the mother had not been able to protect the children from domestic abuse.  In her view, the real concern was that she, the mother, had not been in Jersey long, and yet the same thing was happening again as had happened previously in the United Kingdom.  She agreed that the children appeared to have a good relationship with their mother, and, she was sure, would want to be with their mother.  In her view a separation was needed to enable assessments to be undertaken. She agreed that she had not yet had the opportunity of meeting either the children or the mother, or indeed the present foster carers.  She expressed the hope that there might be more flexibility in contact arrangements in the longer term and she was in particular concerned at the possibility that there might be another move if this placement were to break down.  When asked why the Minister needed parental responsibility, she said that it was important that the Minister should be able to prohibit contact with the second respondent.  The application of the Minister took longer than was scheduled.  As a result, Ms Fernandes was not able to hear the evidence given by the mother, and Mrs Ferguson sat in Court to listen to that evidence.  Like her colleague, she had not had the opportunity to meet either the mother or the children or the present carers.  She told us, having heard the mother's evidence that, JFCAS would continue to support the Minister.  The reason that she had not changed her mind was that she thought that what was needed was an honest open relationship between the Children's Service and this family which went deeper than mere lip service.  When pressed on that, it appears that Mrs Ferguson relied on the lack of responsibility shown by the mother in not agreeing that there might be something wrong - indeed by contrast the mother always alleged that officials had it wrong - the neighbour was malicious, the police were wrong, the Refuge was wrong, and the police were wrong in suggesting that she and Mr F were celebrating his birthday together at the Watersplash in July; and, in relation to the breach of Mr F's bail conditions in July, that it was just coincidence that she happened to be in Mulcaster Street when he was there. 

Conclusions on the threshold

30.      Given that this is an application for an interim order, it is not appropriate that any findings of fact be entered at this stage, although of course we have noted those facts which the mother agrees.  In particular we note that she had agreed that she was subject to domestic abuse at the hands of her husband when they had lived in the United Kingdom, and she agrees that some of this abuse was witnessed by her children.  Leaving aside the facts which are admitted, we are required only to consider at this stage whether there are reasonable grounds for believing that the circumstances envisaged by Article 24(2) of the Law exist. 

31.      We do not think there is sufficient evidence to conclude at this stage that there are reasonable grounds for thinking that the mother's drinking is a problem which has caused significant harm.  She may have been under the influence of alcohol on 28^th June, 2015, but that is not enough in our view to suggest that her alcohol consumption has caused the children significant harm.  That is not to say that the evaluation of the extent of the risk would be inappropriate.  It is simply to say that at this stage there are no reasonable grounds for believing that threshold is passed having regard to the allegations of alcohol consumption. 

32.      As to the incidents on 20^th March and 6^th April, there is no direct evidence of any impact of those events upon the children but in our view there are reasonable grounds for thinking that the children may have suffered significant harm, particularly in the light of their past history, on these occasions.  In addition, we think that reasonable grounds exist for believing that they suffered significant harm as a result of the incident on 12^th April.  Nonetheless, the test on an interim care order goes beyond an assessment of whether there are reasonable grounds for thinking that the children have suffered significant harm.  The Court is required to conclude that there are significant grounds for believing that the harm caused resulted from the care, or lack of care, of the parent.  In this case, we note that the mother called the police on 20^th March and on 6^th April.  In relation to the incident on 12^th April, it appears there were many people in the flats at the time, and she did not invite these particular men in.  It is true that the door must have been open, because people were coming and going, but the mother also said that she had retained a babysitter for that evening because it was her birthday party. 

33.      As to the incident on 28^th June, the Court's view is that there were reasonable grounds for considering that the children might have suffered significant harm, especially as part of a pattern of behaviour, taking into account the previous experiences which they had had. In concluding that the threshold was passed, the Court has noted that there is also room for a conclusion that no significant harm has in fact been experienced since the mother left the UK with the children.  They may have done so but no firm conclusion in this respect could be reached here on the relevant evidence we heard. 

34.      In summary, we consider that the Minister has established threshold to our satisfaction in respect of the allegations of abuse in the United Kingdom and, to the limited extent set out above, in Jersey. 

The welfare test

35.      We went on to consider whether this was a case in which no order should be made, or whether it was a case for an interim supervision order or an interim care order.  We do not take the view that no order would be an appropriate conclusion to reach.  Not only has threshold been passed, but we must recognise that there are real concerns about the safety of these children and about the mother's ability to protect them. 

36.      We also recognise that we should make the least intrusive order, consonant with the obligation to protect the children and to place their interests first.  In this context, it was contended on behalf of the Minister that the critical question was whether the children could be kept safe.  If the mother was inebriated to the extent of being incapable of looking after the children, then it was said that of course they are at risk.  It was contended that there was no doubt that the mother had tended to form relationships with abusive men and there was a question mark over her ability to remove herself from those relationships once she is in them.  It was said that the discussion or "chat" on 13^th July in Mulcaster Street which the mother described in evidence was with a man who had broken into her house, had raped her, and had made threats on Facebook.  Why would the first respondent behave in such a way?  It was apparent, said Advocate Davies, that the first respondent might seek a non-molestation order but it is well known that some ladies encourage a breach of injunction which they have obtained themselves.  It was said that the mother knew on 8^th July that she should not be talking to Mr F, but that did not stop her from doing so. 

37.      The Minister emphasised that there was no evidence that the current placement with foster carers was damaging the children in any way.  They seemed to be doing well.  The Minister had the support of the Guardian.  By contrast, the submissions of Advocate Scholefield that it would be wrong to remove the children from their mother were based on a false premise, because the children were not currently with their mother.  Accordingly, comments in other cases to the effect that it was a serious thing to remove children from the care of their mother, was inapplicable. 

38.      We have rejected the submissions of Advocate Scholefield that threshold is not passed for the purposes of an interim order, but the submissions which he did make are, in many respects, equally relevant to our consideration of the welfare test and we now repeat them.  In essence, the mother's position was that she had had an unhappy time in England and she did take positive, indeed dramatic, steps to take care of the children by removing them from that jurisdiction and returning to Jersey.  When she came back here, she made contact with her family - she was not on any alcoholic binge, dragging children in her train, but by contrast seeking to re-establish links with her father and his new family.  The evidence was that she had taken an active interest in the children's education and was a member of the parent-teachers association.  She attended the Freedom Church with the children.  She had a growing network of friends and, there was no dispute, a good relationship with both children.  They loved their mother and she loved them.  As to the breakup with the relationship with Mr F, it was conceded that this ended unhappily.  Nonetheless, Advocate Scholefield submitted that the mother had taken all the right steps.  She caused the property of Mr F to be removed from her flat and she terminated the relationship.  The fact that he took the termination badly and intruded on her birthday party was hardly her fault.  Indeed at that party there was a baby sitter looking after the children.  As to the incident on 28^th June, it was said that the mother had attended to Ben.  She had changed his pyjamas and she had placed a clean towel on his bed.  An assessment had to be made between what amounted to "controlled crying" which would be his client's submission, and "neglect" which would be the neighbour's conclusion.  In the former case, it was not poor parenting to allow a child to cry with a view to teaching him to stay in his own bed rather than move into his mother's bed.  In any event, Advocate Scholefield submitted, his client had not realised the effect which drinking alcohol would have when co-codamol was being taken, and to the suggestion that she appeared confused when woken up at 1am., he asked rhetorically whether that would not be the same for anyone?

39.      We will consider these contentions shortly, but we mention one other submission which initially appeared to us to be relevant.  Advocate Scholefield submitted that the foster carer had said she could not keep the children past the end of the school holidays.  That apparently was in the agreement made between the Minister and the foster carer.  Advocate Davies did not know instantly the answer to that submission, which the Court considered raised an extremely important issue.  She did however undertake to ascertain what the position was and circulate us after the adjournment, which she duly did.  Her instructions were that the carers and the mother were told that the placement would be reviewed approximately six weeks after placement, largely because the outcome of the Minister's application for a care order was and is unknown.  The placement was not however time limited.  The Children's Service had spoken to the carer that day, and she has confirmed that she and her husband were happy to have the children beyond the end of the summer and potentially until permanence for the children is decided.  The confirmation given by the Children's Service was important because if the present carers were not willing to continue to look after the children, there was a serious question mark as to where they might be accommodated and as to whether it might be necessary to separate them.  Put at its lowest, there was a not negligible risk of separation, which could not be ignored.  We mention this issue because the Court considers that the separation of the children from each other would be extremely damaging, and as the Court is concerned with the issue of risk in assessing what order ought to be made, it would be correct to identify that there is an area of risk if the current placement should break down.  Fortunately, that appears to be a low risk in the light of the confirmation which the Children's Service have given the Court through Advocate Davies. 

40.      The central premise for the Minister's application for an interim care order, as a result of which the children would be withheld from the care of their mother, was that they were at risk of suffering significant harm and the Court should keep them safe. 

41.      It seems to us that the starting point is that no situation is free of risk.  The Court could be faced with careful parents who love their children and have looked after them competently for perhaps five years.  Is their continued care free of risk?  The answer is that it is not.  The reality is that risks surround all of us all the time.  The Court is therefore not faced with a choice between a situation of risk and a situation of no risk.  There is a need to evaluate the different risks which might exist. 

42.      We take it as axiomatic that the removal of children from their mother is liable to cause them significant harm.  We use the expression "liable to cause" deliberately - there may be cases where the removal of the children from their mother will not cause harm, but the probability is that in circumstances where there is a good relationship between them, it will.  In the present case we are in no doubt that having regard to the obvious loving relationship between mother and children, which was not in dispute, their removal from the mother would in fact cause them harm, and to some degree has already caused them harm.  In saying that the children may have already suffered some harm by their removal from their mother, we do not mean to imply that the Children's Service have acted incorrectly in the actions which they have taken so far.  Indeed, we note that the information available to the police and the Children's Service on 28^th June was such that it was not unreasonable to take protective action. 

43.      What we are therefore faced with is a comparison between an order which continues known harm and an order which perhaps leaves them exposed to a risk of significant harm.  Accepting, as we do, that there are reasonable grounds for believing that the children's experiences in England, perhaps exacerbated by the events in April this year, have caused them significant harm, and that such harm results from a lack of care on the part of the mother, we need to assess the extent of the risk that there will in the future be a continued lack of care with a similar consequence.  It is well established that the Court makes the least intrusive order when exercising its powers under Article 24.  If we think that it is possible to make a lesser order than a care order, such as a supervision order, with conditions imposed or undertakings given which will effectively prevent the children suffering from such harm again, it seems to us that that is the course which we should follow. 

44.      When she gave her evidence, the mother said she would do absolutely anything to get her children back.  There were no conditions she would not accept.  Advocate Scholefield repeated those views in his closing submissions.  Before delivering judgement, we asked the mother if she were prepared to give the following undertakings to the Court.  These were:-

(i)        She is to comply with Paragraphs 1 and 2 of Schedule 3 of the Law. 

(ii)       She is not knowingly to have contact with any persons reasonably considered to be inappropriate by the Children's Service, and in the event that such contact takes place unwittingly, she is to remove herself and the children forthwith from any situation in which such contact might continue. 

(iii)      She is to keep the Children's Service informed of the identities of any person(s) with whom she expects to have social contact more than three times a week. 

(iv)      She is to accept any visits from the Children's Service at her place of residence in order that the Children's Service may satisfy themselves that all is well between the mother and the children.

(v)       She is to attend such parenting courses in Jersey as are notified to her by the Children's Service. 

(vi)      She is not to cause or permit the children to leave the island without the written permission of the Minister pending the outcome of these proceedings. 

45.      Advocate Scholefield took instructions from his client and gave these undertakings on her behalf.  It was then suggested by the Minister that it would be desirable that if the mother gave a further undertaking that she would, if necessary, seek a non-molestation order against the father if he were to arrive in Jersey or attempt to contact her.  Having taken instructions, the mother agreed to give this undertaking as well through Advocate Scholefield. 

46.      In the light of the fact that these undertakings were given by the mother, the Court considered that it was appropriate to make a supervision order and not a care order on an interim basis, this order to continue until 11th September 2015. 

47.      In reaching this conclusion it should not be thought that the Court has disregarded the views of the Guardian, which have been carefully considered.  However, it remains true that the Guardian could only reach such conclusions as she did on the strength of the written material which was before her, as her appointment had taken place very shortly before the hearing of the Minister's application for an interim care order.  In particular we do not think that the fact that the children are in the care of the mother will make any difference or provide any impediment to the conduct of the psychological report on the children which will be a necessary part of the ongoing examination of the circumstances surrounding these children in this Court. 

48.      In the circumstances we make a supervision order in the light of the undertakings given by the mother and confirm that both the mother and the Minister have liberty to apply in relation to the interim supervision order and in relation to the undertakings given. 

49.      We are conscious that the second respondent remains unaware of the present proceedings.  In principle, we think it is appropriate that he should become aware of them, and it seems to us to be possible that he could be so served without becoming aware of the residential address of the first respondent or the children.  However, we agree that that needs further consideration and we mention it in this judgement solely to ensure that the issue is raised at the next directions hearing which is to take place on Thursday 13^th August at 9:30am.  Our current thinking is that the second respondent is probably aware that the first respondent is in Jersey with the children, and yet he has made no attempt to contact her, or come to the Island, for some 12 months.  Although he may have spent some other time in custody, it appears to be the case that he has been at liberty also for part of that time, and in those circumstances the fact that he has not made attempts to contact the mother seems to us to be relevant to the assessment of the risk of his attending in the Island and being a danger to the mother and these children.  

Authorities

Children (Jersey) Law 2002.