Care order - further directions given in relation to care order.
Before : |
J. A. Clyde-Smith, Esq., Commissioner, sitting alone. |
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Between |
The Minister for Health and Social Services |
Applicant |
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And |
A (the mother) |
First Respondent |
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And |
Ruby (the child) |
Second Respondent |
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IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF RUBY (CARE ORDER)
Advocate C. Hall for the Applicant.
Advocate N. S. H. Benest for the Second Respondent
Advocate L. J. Glynn as Amicus curiae.
judgment
the commissioner:
1. I sat alone on 10th November, 2015, to give further directions in relation to the involvement of the first respondent ("the mother") in this case.
2. Ruby (this is not her real name) was removed from the mother the day after her birth, pursuant to an emergency protection order made by the Deputy Bailiff on 17th September, 2015, for the reasons set out in his judgment of 28th September, 2015, (In the matter of Ruby (Emergency Protection Order) [2015] JRC 197). Ruby was made the subject of an interim care order on 7th October, 2015, and is currently in foster care. The mother has had no contact with her and the putative father has shown no interest in her.
3. The mother did not attend the interim care order proceedings, and Advocate Glynn, who had been appointed amicus curiae on 16th September, 2015, had been unable to make contact with her. In view of the circumstances which are summarised below, Advocate Glynn, I believe wisely, thought it better not to impose herself, a complete stranger, upon the mother, who might not understand her involvement and whose reaction may well be hostile. In view of the mother's lack of engagement, the Court ordered a report from her adult social worker, and I said this in the short judgment (unpublished): -
"5. There is real doubt as to the capacity of the mother to engage in these proceedings and, before giving all of the directions put forward by the Minister, we feel there should be a further hearing before a single judge to consider:-
(i) the report of the adult social worker;
(ii) the capacity of the mother;
(iii) the plan for her engagement and
(iv) the role of the amicus curiae."
4. The report of Zoe Frankum, the adult social worker, dated 23rd October, 2015, makes worrying reading. There is a long history of the relevant agencies seeking to assist the mother and the situation can be summarised as follows:-
(i) She has been assessed with presenting with mild to moderate learning difficulties. She appears to have capacity to make decisions but a formal assessment of her capacity has not been possible, because she refuses to engage.
(ii) She was admitted to Orchard House in July 2013 for assessment, but it was found that there was no evidence of a current mental health disorder.
(iii) She has demonstrated behaviour that continually raises significant concerns on the part of all of the relevant agencies for her well-being and vulnerability.
(iv) Those concerns are listed at paragraph 35 of the report in this way:-
"Current Concerns for A
At time of writing this assessment the current concerns for A include;
Increased vulnerability due to her moderate learning disability.
Lack of engagement with health care professionals. No medical examination for A has been achieved since the birth of Ruby.
A's lack of and/or engagement with current court proceedings.
Risk of domestic abuse.
Risk of exploitation.
Risk of self-neglect.
Risk of financial exploitation.
Risk of sexual exploitation.
Risk associated with transporting or using illegal substances.
Lack of engagement with services.
Lack of emotional support for A.
Lack of clarity regarding her cognitive ability.
Lack of clarity regarding her capacity pertinent to the relationship she is in and identified risk.
Disengagement from Mr and Mrs D, her mother and father."
5. Repeated and ongoing attempts have been and are being made to engage with her without success. When members of the Learning Disability Team attend her flat, there is no answer although movement can be heard in the flat. The report concludes in this way:-
"39 From an adult service perspective consideration needs to be made that whilst continued attempts are in place to actively engage A these are not being successful. Risks identified for A remain, but it has not been possible to formally assess regarding cognitive and capacity issues. Therefore whilst we have grave concerns we do not have a legal basis upon which we can impose ourselves or our services if A does not want them. It is vital that A's rights are respected; in so far that her behaviour and lack of engagement with services may suggest that she does not want any formal support.
40 The service is of the view that from a legal status and under the Mental Health Law at present there is no statutory basis upon which A can be lawfully detained."
6. Zoe Frankum attended Court, with other members of the Learning Disability team, and was able to update the Court. Contact had in fact been made with the mother the day before the hearing. She appeared to want to have contact with Ruby, but unfortunately was discouraged by a male companion. Through the maternal grandmother a meeting had been arranged with her uncle for contact with Ruby, which she did not attend. Her priority seemed to be very much focused on her immediate physical needs; in this case, getting her new flat ready, which was causing her stress. What was needed was someone to build up a relationship of trust with her.
7. Everyone involved is concerned to facilitate the mother's involvement in and understanding of these proceedings, but there is little that anyone can do if she refuses to engage in any way.
8. Advocate Benest raised the possibility of a curator being appointed at a recent advocates' meeting. She feels that the situation cries out for the appointment of a curator, who might be able to deal with the mother's day to day requirements, on which she is currently focused, thus taking away much of the stress she currently suffers, which might in turn enable her to engage with the agencies or at least to function better. It was in Ruby's interests that this should happen and the necessary steps have been put in train with the Law Officers' Department.
9. It will be important that the right person be appointed as curator to undertake what will be a sensitive and difficult task. The Court supports this initiative and gives leave for a copy of this short judgment to be given to the Solicitor General so that, if appropriate, the appointment of a curator can be expedited and careful consideration given to the candidate.
10. In the meantime, the efforts to engage the mother will continue. She must, of course, continue to receive all of the documentation which she is entitled to receive as a party.
11. The amicus curiae must remain in place to assist the Court so as to ensure, as far as she is able, that at the final hearing the Court receives the benefit of any submissions on the law or facts which may have escaped its attention or which might properly be drawn to the attention of the Court in the interests of the mother.
12. Subject to the input of counsel, I propose that in the period leading up to the final hearing, the amicus curiae will: -
(i) receive all documentation which the mother, as a party, is entitled to receive;
(ii) assist the Court on any procedural issues that arise or directions the Court is invited to make;
(iii) be consulted by the other parties over any instructions given to any experts;
(iv) attend all hearings and be involved generally in the proceedings to the same extent as if she were the legal representative of the mother, but it being clear that she is here to assist the Court and does not represent the mother.
13. It is anticipated that the Minister may be seeking to have Ruby freed for adoption, a profoundly important order from the point of view of any mother. Careful consideration will need to be given as to how the import of such an order will be communicated to the mother, and the basis upon which the Court might be invited to dispense with her consent.
14. The following further directions will be given subject to any further observations of counsel: -
15. It is directed that:-
(i) Leave is granted for the Minister to instruct a psychologist to undertake a Cognitive and Mental Capacity Assessment in respect of the mother, and, if so instructed, under a timetable that will not delay the final hearing.
(ii) The Minister shall file his final statement/care plan, including a parenting assessment of the mother and any other witness statements, including the Freeing for Adoption application, if so advised, that he seeks to rely on by close of business on 12th February, 2016.
(iii) If she has engaged with these proceedings, the mother may file her final statement and any other witness statements that she seeks to rely on, or a Position Statement by close of business on 26th February, 2016.
(iv) The children's guardian shall file her final analysis and recommendations by close of business on 11th March, 2016.
(v) The Minister shall lodge a bundle, to be agreed if possible, one week in advance of the final hearing.
(vi) All parties and the Amicus Curiae shall file their skeleton arguments three days in advance of the final hearing.
(vii) There will be liberty to apply.
Authorities
In the matter of Ruby (Emergency Protection Order) [2015] JRC 197.