Jersey Unreported Judgments

Care proceedings - application by the Minister for a supervision order.

[2015]JRC179

Royal Court

(Family)

1 September 2015

Before     :		T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Kerley and Sparrow
Between	Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	B (the father)		Second Respondent
And	Ella (the child, acting through her Guardian ad Litem)		Third Respondent

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF ELLA (SUPERVISION ORDER)

Advocate R. E. Colley for the Minister.

Advocate M. J. Haines for the First Respondent.

Advocate M. R. Godden for the Second Respondent.

Advocate C. R. Dutôt for the Guardian.

judgment

the deputy bailiff:

Introduction

1.        This is an application by the Minister for Health and Social Services ("the Minister") for a supervision order pursuant to Article 24 of the Children (Jersey) Law 2002 ("the Law").  On 15^th June, 2015, we granted the order sought by the Minister.  These are our reasons. 

2.        The proceedings were first started by the Minister on 14^th October, 2014, who, at that point, sought a care order and, on an interim basis, the transfer of the child to the care of foster parents pending an assessment.  The guardian did not agree with the Minister's proposals for foster care and in fact the child remained with the mother and has done so since with the benefit of a broad range of support from the Minister.  The evidence before us which we refer to below is that the mother has made significant progress since the Minister commenced proceedings and, as a result of that progress, the Minister now applies, not for a care order, but for a supervision order for a period of 12 months. 

3.        All of the parties agree that if the relevant date for the Court's determination as to whether the threshold criteria is met ("the relevant date") was 14^th October, 2014, ("the October date") then the threshold criteria was in fact met at that date.  Further, all of the parties also support the making of a supervision order. 

4.        However, the mother contends that the relevant date is not the October date but is the date of determination of the application, namely the 15^th June, 2015, ("the June date").  If the relevant day is the June date then the mother and the father rest on the wisdom of the Court as to whether or not the threshold criteria is met.  The Guardian, however, asserts that if the relevant date is the June date, the threshold criteria is not met.  The Minister contends that the threshold criteria is met on either the October date or June date. 

The October Date

5.        Naturally the agreement by all of the parties that the threshold criteria had been met at the October date does not absolve the Court from making enquiry and we have the benefit of evidence from Mr Jonathan Collins of the Children's Service and the Guardian, Gillian Mary Timmis.  We have also, of course, had the various reports and documents contained in the bundle submitted by the Minister in support of this application. 

6.        It is clear from the evidence that we have heard that as at the October date the threshold criteria had in fact been met.  The main evidence, in brief, is as follows:-

(i)        Mr Jonathan Collins is the social worker with responsibility for this matter.  He confirmed the signature in his statement of 19^th May, 2015, relating to the child and he confirmed that the contents of that statement were true to the best of his knowledge, information and belief.  He also identified the Minister's care plan.  He had been the social worker in respect of the child since 20^th May, 2015, and the evidence that he was able to give us was, as a consequence, based not on his personal experience of the circumstances that existed at the October date but rather from records held by the Minister and from conversations that he had had with colleagues from who he had taken over responsibility for this matter. 

(ii)       His report and his evidence before us referred to the reasons why it was asserted that the child was suffering and was likely to suffer significant harm as at the October date.  He informed us that the child's name had been on the Child Protection Register since 20^th May, 2014, and over the period since then the mother had had the benefit of multi-agency support to assist her in making and sustaining changes which were thought to be necessary in her parenting of the child.  However she was not receptive to this support as at the October date and she flouted the plan put forward to protect the child by leaving the child in care of others.  Moreover she failed to maintain safe and appropriate home conditions. 

(iii)      Significant concerns had been raised about the home conditions in which the child lived.  They were described as dangerous for a young and mobile child.  The mother, however, expressed the view that a two year old was aware of the dangers and knew how to avoid them.  The mother's then partner expressed a similar view.  The mother failed to implement advice about keeping the child safe and the child was, for example, left exposed to cleaning products, medication, coins, lighters, tobacco and other items. 

(iv)      The child was frequently left with persons who were inappropriate carers and the mother allowed the person with whom she was in a relationship at the time to stay overnight at her flat although she was firmly advised that that should not be permitted until the usual police checks on him had been concluded. 

(v)       The mother and father demonstrated a lack of understanding of the child's basic needs and did not take on board or implement advice in relation to diet.  They also declined to work openly with the family support worker.  Significantly the mother appeared to lack insight into the reasons why the Children's Service were involved and did not accept the concerns that the Children's Service highlighted to her during core group meetings, appointments and home visits. 

(vi)      A psychological assessment conducted by Dr Bryn Williams and Associates dated 15^th May, 2014, also demonstrated that the Mother did not understand why the Children's Service were worried about her capacity as a parent.  She accepted that the home was at times "a pigsty" although she blamed this on the father.  Both parents blamed each other for the unsafe state of the home.  Over the period leading up to the commencement of the proceedings by the Minister, the mother had become increasingly hostile towards the professionals who visited her home and it was felt that she was influenced in this by her then partner.  The professionals experienced significant difficulties in gaining access to the child.  Immediately before the proceedings, therefore, there were serious concerns about the relationships within the home, the conditions of the home, the basic care of the child, and the mother's willingness to engage with the plans made for the child's welfare. 

(vii)     The mother did not seem able to prioritise the child's needs appropriately and on one occasion left the child in the care of the father for approximately four weeks with minimal contact between the mother and the child during that period.  The father was not really able to care adequately for the child during that period and required significant support to maintain basic care.  This was distressing for the child who could not make sense of the mother's absence. 

7.        The documentation available to us, and indeed the evidence of Mr Collins, gave rather more detail of the concerns relating to the child under the themes set out above and having had the benefit of this information, we are satisfied that the threshold test was passed as at the October date in that it is clear that as at the October date the child was suffering significant harm. 

The June Date

8.        The main evidence relating to the 15^th June, 2015, was as follows:-

(i)        Mr Collins informed us that since the Minister commenced proceedings on the October date there had been an improvement in many of the aspects relating to the child's welfare.  The mother had now started a relationship with an individual whose influence appears to be beneficial for her and she relies to a significant extent on this individual for support.  As a result the mother has engaged much more actively and co-operatively with the Children's Service and there are material improvements in the child's home environment.  There are no health concerns and there is no suggestion that at the present the child is suffering from actual harm.  This was confirmed by the Guardian. 

(ii)       The relationship between the mother and her new partner is, however, a new one and is, at this point, untested.  There are very substantial challenges ahead. 

(iii)      The first challenge is that the new partner, who is spending more time at the child's home and stays overnight, is seeking to integrate his existing family into the child's home.  This will mean a significant change for the child and indeed for the dynamic within the child's home. 

(iv)      Much more significantly, however, the mother is now pregnant and is due to give birth shortly.  The pregnancy has complications and the prognosis for the new baby should it be born alive (which is in significant doubt) is not at all positive.  There is no doubt that if the baby is born live then the mother and her new partner will need to relocate to the United Kingdom for a significant period where the baby will have to undergo a protracted period of intensive care. 

(v)       The family is therefore facing challenges which may range from grief to the stress of relocation and the ongoing worry of a baby with major health challenges.  In either circumstance this will place a very substantial challenge on the mother and her new partner and will mean in any event a very significant change for the child. 

9.        In our view, the untested nature and relatively short duration of the relationship between the mother and her new partner, together with the challenges ahead for them both in seeking to integrate his other family into the child's life and, more significantly, the very substantial challenges faced in connection with the mother's pregnancy and the possible sequelae lead us clearly to the view that the child remains at risk and is likely to suffer significant harm to the level necessary to satisfy the threshold criteria.  The mother has in the relatively recent past been unable to prioritise the child's needs appropriately.  The challenges that this new family faces would be significant even had there been no issues facing them in the past.  In the context of the history of this matter, and in particular of the evidence available to us as at the October date in the relatively recent past, we form the view that the child is likely to suffer significant harm. 

10.      We have considered with care the other options available to the Minister and indeed to us in dealing with this matter.  We have considered the Minister's care plan.  It is our view that this child is best helped and protected by a supervision order of 12 months duration.  We note once again that no party opposed a supervision order and all parties accepted that the child would benefit from such an order. 

11.      Having determined that the threshold criteria was met at both the October date and the June date it is accordingly unnecessary, in order for us to reach the conclusion and make the order that we have, to determine which is the relevant date for the purposes of our decision.  However in view of the submissions made to us in this regard, and whilst the following can only be obiter dicta we make the following observations. 

12.      As we have said, the Minister's proceedings commenced in October of 2014.  At that point he invoked the Court's jurisdiction to make orders under Article 24 of the Law.  Although that application was adjourned with no order being sought, firstly because of the guardian's input, and thereafter to enable the matter to be considered further, at no stage was it withdrawn and the Court as at the June date was considering that application.  Between the October date and now the Court has been asked to make a number of orders largely procedural in nature, by consent. 

13.      Undoubtedly applications of this nature would normally be considered expeditiously but sometimes it is in the interests of the child in question to take a somewhat more cautious approach and allow matters to develop before either the Court is asked to make an order under Article 24 of the Law or, indeed, the Minister withdraws the application because it is no longer necessary. 

14.      In our view in this case the application by the Minister brought the difficulties with this family very much into focus and successfully encouraged the mother to engage appropriately with the Children's Service when before she had not.  This meant that at the end of the period since the commencement of the Minister's application, the Minister was able to seek from the Court a much less interventionist order than was anticipated when the proceedings started.  This, it seems to us, is entirely consonant with the correct approach of the Minister in seeking minimal intervention rather than going immediately for an interim care order or the like. 

15.      If we were to have taken the view that, because the Minister did not in early course seek an emergency protection order, or an interim care order, but chose instead to proceed cautiously and constructively as in this particular case, he was thereby unable to invoke the Court's jurisdiction when clarity was reached on the appropriate way forward then this would so it seems to us create a wholly unwelcome pressure on the Minister to intervene and seek orders at an early and perhaps inappropriate stage. 

16.      The purpose of the Minister's powers is to protect children.  The powers that he has are governed by certain principles amongst which are the importance of keeping children with their birth families if at all possible and to intervening in the minimum way consistent with the protection of the child.  Insofar as possible we think that the Law should be interpreted in that light and we see nothing in the terms of the Law itself nor in the cases cited to us by counsel, that conflicts with that view. 

17.      We do not propose to refer to all of the cases referred to by counsel.  The following seemed to us to be the most relevant. 

18.      Considering of the question of the relevant date in the case of In the matter of A [2010] JRC 006, Bailhache, Deputy Bailiff (as he then was) quoted Lord MacKay in Re M (A Minor) (Care Order:-Threshold Conditions) [1994] 2 FCR 871 who said:-

"It has to be borne in mind that this in no way precludes the court from taking into account at the date of the hearing all relevant circumstances.  The conditions in sub-section 2 are in the nature of conditions conferring jurisdiction upon the court to consider whether or not a care order or supervision order should be made.  Conditions of that kind would in my view normally have to be satisfied of the date on which the order was first applied for.  It would in my opinion be odd if the jurisdiction of the court to make an order depended on how long the court took before it finally disposed of the case."

19.      At paragraph 25 of the judgment of the Court the Deputy Bailiff said:-

"... the States cannot have intended that the Court would lose its jurisdiction to make an order under Article 24 simply because the circumstances, which did satisfy the threshold criteria at the time an interim care or an emergency protection order was made, no longer applied as a result of that order; the loss of jurisdiction might arise, however, if it could be said that it was likely that even if no order was made, those circumstances would not arise again."

20.      In the case of In the matter of F & G (No. 2) [2010] JCA 051 the Court of Appeal at paragraph 6 of its judgment said this:-

"It is well established that:-

...

(ii)       the threshold conditions have to be satisfied at the date of the application, but the Court is not precluded from taking account of the relevant circumstances which exist at the date of the hearing."

21.      Regarding In the matter of D (Care order) [2013] JRC 104 the Royal Court again considered in some detail the House of Lords case in Re M in which in considering the question of when the threshold determination should be made their Lordships said this:-

"It is permissible only to look back from the date of the disposal to the date of initiation of protection as a result of which the local authority arrangements have been continuously in place thereafter to the date of disposal."

And, thereafter, at page 871 the following:-

"Indeed I think there is much to be said for the view that the hearing that Parliament contemplated was one which extended from the time the jurisdiction of the court is first invoked until the date the case is disposed of and that was required to be done in the light of the general principle that any delay in determining the question is likely to prejudice the welfare of the child.  There is nothing in S31 (2) which in my opinion requires that the conditions to be satisfied are disassociated from the time of the making of the application by the local authority.  I would conclude that the natural construction of the conditions in S31 (2) is that where, at the time the application is to be disposed of, there are in place arrangements for the protection of the child by the local authority on an interim basis which protection has been continuously in place for some time, the relevant date with respect to which the court must be satisfied is the date at which the local authority initiated the procedure for protection under the Act from which these arrangements followed.  If after a local authority had initiated protective arrangements, the need for these had terminated, because the child's welfare had been satisfactorily provided for otherwise, in any subsequent proceedings, it would not be possible to found jurisdiction on the situation at the time of initiation of these arrangements.  It is permissible only to look back from the date of disposal to the date of initiation of protection as a result of which local authority arrangements have been continuously in place thereafter to the date of disposal."

22.      The Royal Court, after considering that passage in Re M went on to say:-

"Re M has been applied on a number of occasions in this Court.  In addition, it seems to us to be clear that Articles 24(1) and (2) are setting out the jurisdiction of the Court to make a care order or a supervision order and it is obvious that they need to be construed by having regard to the purposes for which this jurisdiction has been created.  Its purpose is to protect children.  Re M concerned a case where the harm to the child existed at the time of the original application but that harm may not have existed at final disposal.  The jurisdiction to make a care order arose because the proceedings were a continuous set of proceedings.  It would be absurd if the Court had no jurisdiction to make a care order or a supervision order in circumstances in which a week before the date of the application by the Minister the child was suffering serious harm but was no longer suffering that harm at the date of the application because there had been some supervening event which was of a temporary nature but such that the harm was likely to be suffered again at some future date if the Court were to make no order.  It is absolutely clear that both on precedents previously in this Court and as a matter of logic and principle that the Court is entitled to look at the position for the date on which the application was made in order to assess that the relevant date, namely the initiation of proceedings, whether the child is likely to suffer significant harm in the future."

23.      In the light of these authorities it may be thought that the position with regard to the relevant date was clear.  However Advocate Haines, for the mother, urges on us a different approach to the question of the relevant date.  He submits that as at the date of the Minister's application nothing changed for the child.  The child had been placed on the Child Protection Register sometime before and the family was in receipt of support from the Children's Service both before the Minister's application and afterwards.  It was only, so Advocate Haines submitted, when the Court actually was asked to make an order that the Court should at that point determine the threshold.  He submitted that there were no protective measures in place in that the Minister had not applied for either an emergency protection order, or an interim care order and therefore there was no protective regime in place. 

24.      He places a different interpretation on the passage in Re D than does the Minister.  He points out that what is required to link the date of the commencement of proceedings to the date of determination (such as to make the former the relevant date for the threshold determination) is the initiation by the Minister of protective arrangements.  In terms of what is meant by "protective arrangements" he refers us to Children Law and Practice at paragraph 941 to 943 which says as follows:-

"The relevant date for determining whether a child (is suffering) significant harm is:  ... at the time when the local authority initiated the procedure for the protection of the child concerned, provided those arrangements have been continuously in place until the time of the hearing. 

This means that a child "is suffering significant harm" if he is so suffering at the date of the hearing or he was so suffering when for example an emergency protection order, an interim care order or provision of accommodation was made if the provision made had been uninterrupted to the date of hearing."

25.      Advocate Haines submits that quite clearly an emergency protection order or an interim care order or the provision of accommodation is required and they go much further than the approach that the Minister has taken in this particular case since he commenced proceedings. 

26.      The problem as we see it with this analysis based on that quotation is that the measures cited above are expressed to be examples and are not necessarily exhaustive and, further, the "provision of accommodation" can be voluntary on the part of the parents. 

27.      We do not intend in any way to limit the assessment by the Court of what should be the relevant date of the determination of its jurisdiction in any particular case.  Indeed Advocate Haines brought to our attention a number of cases in which it appears that the relevant date was taken as being the date of the determination by the Court of whether or not to make an order rather than the date of commencement of proceedings.  It is not clear whether in those cases the question of the "relevant date" was in issue. 

28.      In this case, of course, the relevant date was in issue.  The Court accordingly has taken the view that it is helpful in this case to look at the reality of the effect of the commencement of proceedings by the Minister.  In this case the Court has found that commencement of proceedings had a material effect in protecting the child.  In our view, therefore, it would be artificial to hold that protective measures were not in a real sense in place following the commencement of proceedings by the Minister.  That was so on the facts of this case.  It will not necessarily be so on the facts of another case and each case must, accordingly, be considered by the Court in the light of its particular circumstances. 

29.      Advocate Haines argues that to take another date other than the June date as the relevant date would be to deny the Court the fullest information.  If circumstances have changed then the Court should have the most up to date information, the "best evidence" as Advocate Haines referred to it on a number of occasions, before making the determination.  This, it seems to us, is misconceived.  The Court will never deny itself the fullest possible information in determining what order if any it should make under the welfare stage.  However "fullest information" is not necessary, and often simply impossible to obtain in making the jurisdictional or threshold determination and it would indeed be artificial in the Court's view in this case if it were to consider the threshold determination at a date other than the date on which the Minister had made the application and the Court's jurisdiction had first been invoked provided that effective protection of the child was thereby put in place and have been in place since the commencement of the proceedings up until the point of determination. 

30.      With the caveat, already referred to above, that these observations can only be obiter dicta, it seems to us that the following general principles apply in considering the relevant date:-

(i)        Where the Minister's application has not been withdrawn or otherwise determined then the relevant date would generally be the date upon which the Minister made his application.  This is particularly so where, as in this case, the case has been actively managed by a number of applications to the Court (which were by consent but might not have been) and there has been active support and involvement by the Children's Service to ensure that the child in question is protected in the intervening period between the application and the final determination;

(ii)       The protection of the child might on the one hand be achieved by invoking the Court's jurisdiction to grant such things as an emergency protection order or interim care order but also by reaching, under the umbrella of ongoing proceedings by the Minister, a voluntary arrangement with the parents of the child or indeed an enhanced level of de facto supervision and support which has ensured the child's safety.  We do not think that the interests of the child nor the ends of the Law are best served by being overly prescriptive as to the nature of the protective arrangements that the Minister might, between application and determination, put in hand.  It seems to us that the Court should adopt a realistic approach and ask itself whether the commencement of proceedings coupled with other measures put in place by the Minister have afforded the child a meaningful measure of protection.  If so, then it was the date of commencement that put the "protective measures" in place that is the relevant date. 

(iii)      Accordingly where the threshold criteria has been met as at the date of the Minister's application, the Court should in our view be slow to hold that the threshold criteria has not been passed at the date of the hearing especially when there has been such continuous involvement on the part of the Minister to demonstrably good and positive effect.  The application for protective measures that the Minister started is part of the process of protecting the child and in many cases creates an umbrella or context in which the subsequent actions of the Children's Service can be viewed. 

(iv)      This does not mean that the Court cannot, in appropriate circumstances, hold that a different date might be relevant for determining jurisdiction.  "Relevant date" is not a statutory term.  The Court when it is asked to make an order must make its determination of jurisdiction or threshold at that point.  It may in doing so look at circumstances at the date when proceedings were initiated, or circumstances before or after that date as appears to the Court to be relevant. 

31.      Of course that does not mean that the Minister is not required to deal with these matters promptly and nor that they can be left untended or unadvanced for a protracted period.  What is needed is a practical appraisal by the Court of the effect of the Minister's proceedings. 

32.      Nor does this view mean that the Court does not take into account all of the available information at the time that it makes the determination.  All of the information is relevant, if not for the threshold determination, then for the Court to consider what if any order it should make. 

33.      Had it been necessary in this case for us to decide, because the threshold determination would be different depending upon our decision on whether the October date or the June date was the relevant date, then in our view, the relevant date in this case was the October date. 

Authorities

Children (Jersey) Law 2002.

In the matter of A [2010] JRC 006.

Re M (A Minor) (Care Order:-Threshold Conditions) [1994] 2 FCR 871.

In the matter of F & G (No. 2) [2010] JCA 051.

In the matter of D (Care order) [2013] JRC 104.