Jersey Unreported Judgments

Care proceedings - application by the Minister for an emergency protection order.

[2015]JRC197

Royal Court

(Samedi)

28 September 2015

Before     :		T. J. Le Cocq, Esq., Deputy Bailiff, sitting alone.
Between	Minister for Health and Social Services		Applicant
And	A (through her Amicus curiae Advocate L. J. Glynn)		Respondent

IN THE MATTER OF RUBY (EMERGENCY PROTECTION ORDER)

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

Advocate C. Hall for the Minister.

Advocate L. J. Glynn as Amicus curiae on behalf of the Respondent.

judgment

the deputy bailiff:

1.        On 17^th September, 2015, on the application for the Minister for Health and Social Services I made an emergency protection order in respect of Ruby ("the child").  Although I gave very brief reasons when I made the order I indicated that I would provide more elaborate reasons.  I now do so. 

2.        The child, who is not yet named, is a baby girl born this year and is the daughter of A ("the mother").  The father is understood to be B but paternity has not at this point been established.  In any event the mother and B are not married so only the mother has parental responsibility for the child. 

3.        The child is the third child of the mother.  The child has two half-siblings, Lexi (this is not her real name) born in 2006 and Tyler (this is not his real name) born in 2008.  Lexi lives with her maternal grandparents ("the grandparents") under a residence order and Tyler is in a foster placement. 

4.        The application before me is made pursuant to Article 37(1)(a)(i) of the Children (Jersey) Law 2002 ("the 2002 Law") which insofar as relevant to this application says:-

"The Bailiff may, on the application of any person, make an emergency protection order with respect to a child if the Bailiff is satisfied that: 

(a)       There is reasonable cause to believe that the child is likely to suffer significant harm if;

(i)        the child is not removed to accommodation provided by or on behalf of the Minister, or

...." 

5.        Furthermore, pursuant to Article 2 of the 2002 Law the paramount consideration for the Court is the welfare of the child. 

6.        The leading Jersey case on emergency protection orders is In the matter of B [2008] JRC 026A in which Birt, Deputy Bailiff (as he then was) referred to the overriding principle set out in the English case of X Counsel v B (Emergency Protection Orders) [2005] 1 FLR 341 and said:-

"I have carefully considered the matters summarised there; in particular the fact that summarily removing the child from her parents is a draconian and extremely harsh measure requiring extraordinary compelling reasons.  Such an order should not be made unless I am satisfied that it is necessary and proportionate and that no other less radical form of order will achieve the end of promoting B's welfare."

7.        In the case of X v B (Emergency Protection Order) [2005] 1 FLR 701 Munby J at paragraph 57 set out what he considered to be the most important points when considering the grant of an emergency protection order.  I do not need to set out all of the points made in that case but I summarise, I hope sufficiently, what I take to be the most important in the present circumstances.  They are:-

(i)        An emergency protection order is, as mentioned above, a draconian and extremely harsh measure and it requires exceptional justification and extraordinarily compelling reasons to make such an order.  The Court must be satisfied that it's both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. 

(ii)       The Minister assumes a heavy burden of responsibility and it is important that both the Minister and the Court approach every application with an anxious awareness of the extreme gravity of the relief being sought and a regard for the European Convention Rights of both the child and the parents. 

(iii)      The order should be the least interventionist possible consistent with the preservation of the child's immediate safety. 

(iv)      No order should be made for any longer than is absolutely necessary to protect the child and if an application is made on ex parte basis very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety. 

(v)       The evidence in support of the application should be full, detailed, precise and compelling.  Generalities will not suffice and the sources of hearsay must be identified. 

(vi)      Save in wholly exceptional cases parents must be given adequate prior notice of the date, time and place of any application. 

(vii)     The evidential burden on the Minister is even heavier if the application is made ex parte and in those circumstances there is a duty to make the fullest and most candid and frank disclosure of all relevant circumstances. 

8.        This matter came before me as one of utmost urgency the child having been born in the early hours of the morning.  The mother was served with the papers on that date and I heard evidence that both she and B, whilst at the maternity unit, were informed by Ms Ceri Owens ("Ms Owens"), the social worker assigned to the child, that an application was to be made on 17^th September, 2015.  Furthermore, Advocate Glynn was appointed on the tour de rôle to act for the mother.  Unfortunately when she appeared before me she had been unable to obtain instructions the mother having left the maternity unit. 

9.        For the reasons that I will come on to mention there are serious concerns that the mother may not have capacity to understand the nature of these proceedings and to give instructions.  I had been asked to consider appointing an amicus curiae on the papers prior to the hearing on the basis that the mother lacked capacity.  At that time, however, there was no evidence before me relating to the mother's mental capacity at all and I declined to do so. 

10.      However having now had the opportunity to review the papers it is clear that there is a serious issue relating to the capacity of the mother and a question mark over whether she is in fact capable of giving instructions.  As a result I appointed Advocate Glynn to act as amicus curiae to speak on the mother's behalf. 

11.      Whilst at the maternity unit the mother, in the company of B, had been served by an officer of the Viscount's Department with the papers for the hearing before me.  In addition Ms Owens had through the open door to the mother's room informed both the mother and B that the application was to be made before the Court today which news had been treated by the mother with some hostility.  When the mother indicated that she was proposing to leave the maternity unit the police exercised their powers and put in place a police protection order which currently applies in respect of the child.  The child was, once the mother had left, put into a hot cot in order to maintain body temperature.  The child was underweight but otherwise appeared on first examination to be healthy. 

12.      Later that evening the mother and B returned to the maternity unit and approached the area where the child used to be found but then left once they realised that Ms Owens and the police were present.  When the room that the mother had vacated was inspected the papers served on her were found to have been torn up and thrown away. 

13.      In the circumstances, when considering the quality of evidence before me, I have had regard to the standard that should be applied had this been, in fact, an ex parte application. 

14.      Prior to the hearing before me, on 15^th September, 2015, I had also received an application on the part of the Minister to appoint a guardian for the child.  I made that order on the papers.  Although no guardian appeared before me, as one was not available, an email was received from the Team Leader at the Jersey Family Court Advisory Service in the following terms:-

"I understand that the Minister is making an application inter parties for an emergency protection order tomorrow.  Unfortunately no one from JFCAS is able to attend due to other commitments.  Please advise the appropriate judge that I have been provided with the bundle.  I have also spoken to the Law Officers' Department who have updated me, informing me that the mother has left the hospital and the child has been made the subject of police protection. 

In the circumstances outlined in the bundle together with the updated information I have no hesitation in supporting the Minister's application and care plan.  I have not yet identified a guardian but would expect to have done so by the end of this week." 

15.      That email was copied not only to the Law Officers' Department but also to Advocate Glynn who, as I have said, had been appointed at that time to represent the mother. 

16.      The evidence before me comprised a statement and oral evidence from Ms Owens.  She adopted as part of her evidence in chief the contents of a chronology, and her statements. 

17.      Her oral evidence was in effect a synopsis of the contents of her statement.  I do not set out the full detail of her evidence in this judgment but in summary key parts of her evidence were as follows:-

(i)        The mother is a 36 year old woman who lives in a single bedroomed apartment in St Helier.  She is assessed as being a highly vulnerable person.  She has been open to Social Services but has not engaged well with them.  Sometimes she refuses access to her apartment to Social Services or does not answer her door.  She occasionally answers the door for the purposes of a visit but in general it is proved very difficult for her to engage with the Social Services. 

(ii)       Ms Owens had been the appointed social worker for the child since 24^th  July, 2015, and since that time she had met with the mother on four or five times and had attempted, unsuccessfully, to meet with the mother on numerous other occasions.  Ms Owens had been in Jersey for some 12 months but previously had worked for Lancashire County Council where she had specialised as a social worker in dealing with parents with disabilities or who were particularly vulnerable.  She was trained to assess parents who may have those characteristics. 

(iii)      The mother had been known to Social Services since childhood.  She had attended Mont a l'Abbe School and she had displayed delayed development.  She was assessed when she left school with an IQ that fell below 70 although because she has not co-operated with Social Services there has been no updated capacity assessment. 

(iv)      A number of other professionals have been involved in dealing with the mother.  She has an adult social worker who has co-ordinated support for the mother through special needs services.  It is observed that the mother engages reasonably well with services when she is left to her own devices but when in the company of or under the influence of B she is much more hostile and resistant to any engagement.  She also had contact with the mental health services team who had tried to assess her mental health but this has not yet been concluded.  She has also had support from C who have assisted her with money for electricity and have had to arrange for the fumigation of the mother's home.  She has also had access to maternity services.  Ms Owens has accordingly had the benefit of information from a range of other professionals who have dealt with the mother. 

(v)       The mother has also had very significant support from the grandparents.  As I have said Lexi, the mother's eldest child, is in the full time care of the grandparents and Tyler was in their care until he needed to be moved into foster placement.  The grandparents are however elderly and not in the best of health and although they wish to be considered as carers for the child at the moment it is not considered appropriate that they do so.  In addition, one of the mother's sisters has also asked to be considered as a carer for the child but at the present time she cannot give up work and consequently cannot provide an immediate solution. 

(vi)      When it was known that the mother was pregnant she initially refused to disclose who the father was.  Later, B having asserted that he was the father, the mother acted on the basis that he was. 

(vii)     There is great concern that the mother, a highly vulnerable individual, is susceptible to exploitation financially, sexually and emotionally. 

(viii)    In terms of being exploited financially it is understood from the grandparents that the mother often lends money to individuals who do not then repay her.  She is often left without money during the month as a result of which she cannot provide food for herself or care for herself properly nor indeed afford electricity.  As a result of this she sometimes takes to lighting candles in her home which are a potential fire hazard.  It is for this reason that she has received support from C to provide money for electricity and it is hoped, although is far from certain, that she will not need to resort to candles again.  It is also for this reason that arrangements have been put in place to provide her with hot meals.  She has been observed to be thin and very gaunt and significantly underweight and did not appear to be able to care for herself during the course of her pregnancy. 

(ix)      In terms of sexual exploitation it is not clear to Ms Owens that the mother is capable at all times of giving informed consent to sexual intercourse.  The mother has confirmed to the maternity unit when she has called in with abdominal bleeding that such has occurred from time to time after sexual intercourse with B and, on one occasion, during the course of a visit with Ms Owens, the mother pulled Ms Owens into the kitchen and said that B must stop "putting his fingers in down there".  Although the mother is shy and not able to express clearly what she means it was clear to Ms Owen in discussing it with her that the mother was complaining about B inserting his fingers into her vagina and causing her discomfort.  It was apparent to Ms Owens that the mother was not describing a consensual activity.  She repeated her allegations to the police but was not able to communicate sufficient details. 

(x)       Furthermore, the chronology discloses a number of occasions in which complaints had been made by the mother concerning some form of unwanted sexual activity by B.  On one occasion, in 2014, she was taken in a car by unknown men to the United Kingdom where she was abandoned in a car park and had to be helped back to Jersey.  It is clear that the mother does have apparently consensual sexual intercourse with B but she has also made complaints of having sexual intercourse with his associates and it is unclear whether or not she has consented to that.  Neighbours have complained on one occasion of men going in and out of the mother's apartment and noise of a sexual nature emanating from it. 

18.      There are a number of other concerns about the mother's life and lifestyle that apply directly to a consideration of the Minister's application before me today. 

(i)        The evidence is to the effect that the standard of hygiene and clutter makes the mother's accommodation wholly unsuitable for a young baby.  I was shown a number of photographs of the mother's flat taken by C in July 2015 and those photographs, supplemented by the evidence of Ms Owens who has visited the accommodation, paints a picture of an environment which is completely cluttered, where no surface is clean and clear, where decomposing rubbish and food is left out and where there is so much clutter that it would be difficult to escape in the event of fire.  There is no adequate access to the sink. 

(ii)       An illustration of the level of hygiene and care that may be attributed to the mother may be found in the fact that in 2014 she began to collect guinea pigs which she viewed as an act of liberating them from the pet shops.  She ended up with a large number of guinea pigs and ultimately faced prosecution for cruelty to the animals by reason of neglect.  The charges were not continued and the guinea pigs were removed.  Thereafter, however, the mother complained of bites and it appears that the accommodation was infested with fleas probably as a result of the number of guinea pigs that had been kept there by the mother.  C arranged for the property to be fumigated but the report from the individuals carrying out that process was to the effect that it was only partially successful because such was the clutter and mess in the flat that it would first need to be cleared and to be fumigated again before a complete eradication of pests could be ensured. 

(iii)      The mother also suffers from epilepsy as a result of which she has been prescribed drugs.  Unfortunately she does not take the medication as regularly as prescribed and she has, according to discussions between B and the grandparents, occasionally had an epileptic seizure.  There would be enormous concern were the child to stay in her care that at some point she would have a seizure whilst caring for the child. 

(iv)      The mother is a heavy smoker and smoked a substantial number of cigarettes, some 40 a day, during the course of the pregnancy.  There is no reason to suppose that she would not continue to smoke and, in such a small environment, exposure to that level of smoke would be detrimental to the child's wellbeing. 

(v)       The mother had also confirmed that she, during the course of the pregnancy, had drunk "a Smirnoff a day".   This I take to be a Smirnoff Ice and not a large bottle of spirits and indeed there is no indication that the mother was heavily or at all under the influence of alcohol at any time when she has been in contact with Social Services. 

(vi)      B is an ongoing relationship with the mother.  She is under his influence and is noticeably less co-operative with Social Services when B is present or "on the scene".  B was known to Social Services when he was as young as 17 as a result of his excessive drinking and it appears that he is an alcoholic although has apparently said that he has stopped drinking spirits and is now only drinking "strong beer".  From time to time he was thought to be under the influence of alcohol when dealing with the Social Services. 

19.      Ms Owens was cross-examined by Advocate Glynn and in response to that cross-examination informed us that there was no obvious alternative to the making of the order sought from me today and in particular that there was no sheltered provision where the mother and the child could move and receive sufficient support to enable her to care for the child. 

20.      I have not set out in full the evidence given by Ms Owens and there is a significant amount of detail in both the chronology and in her statement which I have not thought necessary to refer to in this judgment.  Suffice to say that in my judgment it would be very dangerous indeed to allow the Child to return with the Mother into her home environment.  The environment itself is dangerous and unhygienic and the Mother cannot look after herself, nor would be able to offer the Child the care that it would need to thrive.

21.      By reason of the mental challenges that she faces and learning difficulties the mother has shown herself to be incapable of looking after herself adequately during the pregnancy.  There were concerns that her failure to eat meant that she was malnourished and she smoked heavily.  She only kept appointments when reminded numerous times by her own mother who took responsibility for ensuring that she attended.  Without that support the mother was wholly incapable of consistently keeping appointments.  Whilst the mother's love for the child is unquestioned, there is no more reason to assume that she would be in a position to look after a vulnerable child than she was able to look after herself. 

22.      I was informed that the Minister wishes to have assessments carried out as to where the child might suitably be placed in the long term but that in making an order the child would be, when released from the maternity unit, placed in a foster placement, with very experienced and highly regarded foster carers.  The Minister's care plan provides for significant supervised contact with the mother and B and the child, similar contact with the child and the mother's sister and somewhat lesser contact between the grandparents and the child.  The Minister will make an application for an interim care order during the currency of any emergency protection order.  I have considered these contact arrangements carefully as I am required to do and in my view they are appropriate at this time. 

23.      The Court inevitably approached the making of an emergency protection order with a great deal of caution and circumspection.  It does not lightly take the extreme measure of removing a child from its mother even though, in this case, the child being very young, the trauma for the child may not be as much as would be the case with an older child. 

24.      The Court had in mind the convention rights of both the mother and the child but believes that it is both necessary and proportionate to intervene to ensure the safety of the child. 

25.      I was entirely satisfied to the appropriate standard that there was at least reasonable cause to believe that the child is likely to suffer significant harm if the child was not removed to accommodation provided by or on behalf of the Minister.  I considered the possibility of making no order or the various other options such as placement with family members which, whilst theoretically possible, clearly were neither practical or advisable at the present time.  Accordingly I made the order in the terms set out in the Act of Court. 

Authorities

Children (Jersey) Law 2002.

In the matter of B [2008] JRC 026A.

X Counsel v B (Emergency Protection Orders) [2005] 1 FLR 341.

X v B (Emergency Protection Order) [2005] 1 FLR 701.