Care proceedings - reasons related to the granting of a supervision order by the Court.
Before : |
W. J. Bailhache, Esq., Bailiff, and Jurats Olsen and Sparrow. |
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Between |
Minister for Health and Social Services |
Applicant |
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And |
A (the mother) |
First Respondent |
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And |
B (the father) |
Second Respondent |
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IN THE MATTER OF EMMA AND BEN (SUPERVISION ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate H. J. Heath for the Minister.
Advocate A. T. H. English for the Mother.
Advocate L. J Glynn for the Father.
The Guardian on behalf of the Children.
judgment
the bailiff:
1. The Court sat on 29th July to hear an application by the Minister for a final supervision order in respect of Emma, born in 2009 and Ben born in 2011 (together "the children"), children of the First and Second Respondents, the mother and the father respectively. The application was agreed by both parents and the Court granted a supervision order for one year, with reasons reserved. This judgment contains those reasons.
2. An interim supervision order was made on 24th July, 2015, and full reasons given in a judgment handed down on 7th August, 2015. At that time, the Minister had been seeking an interim care order. As the judgment shows, the Court considered that in the light of the undertakings which were given to the Court by the mother at that time, it was appropriate to make an interim supervision order and not an interim care order and we then confirmed that both the mother and the Minister had liberty to apply in relation to both the interim supervision order and the undertakings given. The father had not been convened at the time of that hearing but the Court subsequently ordered that he should be convened and given notice of the present proceedings. Having been served with the proceedings, he has co-operated fully in the interim steps that have been taken and indeed has issued an application for an order for contact with his two children. We address the question of contact later in this judgment but we note that the father agreed on the hearing of the present application that the contact application should be deferred, and he did not press it at present.
3. Although negotiations in relation to its content continued right up to the morning of the hearing, the parties ultimately agreed a final threshold document which was put before the Court. The threshold document enables the Court to consider whether it has jurisdiction to deal with the case and make any form of final order. That jurisdiction arises out of Article 24 of the Children (Jersey) Law 2002 ("the Law") as provided by Article 24(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." [emphasis added]
4. It follows that the Court is obliged to give consideration to the statutory threshold test as to whether it has jurisdiction to make an order under Article 24. As was said in In the Matter of the T Children [2009] JRC 231, the requirement to be satisfied that the threshold is met, places a duty on the Court to make such enquiries as to the evidence as are appropriate to the case to reach that state of satisfaction. We note that in Devon County Council v S and others [1992] 2 FLR 244 all the members of the family and the guardian agreed on the arrangements both for interim care and for a full care order. Despite that agreement, the justices sat for two and three quarter hours of investigation and oral evidence at the hearing of the interim application, and six hours to the investigation of the application for the full order, including oral evidence. Thorpe J, as he then was, considered that this was unnecessary and excessive. He thought that the evidence which was advanced should be limited to what was still in dispute between the parties, if anything.
5. Because threshold has been agreed, we have only to satisfy ourselves that we have jurisdiction to make an order in this case. We are satisfied not only from the agreed threshold document (or part of it) but also from the documentary evidence which has been put before us. We do now wish to comment on the threshold document, in case, for the future, it should be necessary to refer to this again. It is in particular necessary to make a comment because although she was unsuccessful then, the mother disputed the question of threshold at the time of the interim application, and the Court heard a good deal of evidence at that hearing. It is important to recognise that the threshold test was different for the purposes of the interim application than it is now for the purposes of the final order. We have not made any detailed enquiry into the facts for the purposes of satisfying ourselves on the threshold at the time of this final order because it has been agreed. Neither Minister, mother nor father can get away from the agreed facts in the future, but it is inevitable that those facts go only as far as they go, and there will be nuances which it may be necessary to explore if ever the matter comes to be returned to Court.
6. The first agreed point was that the children were at risk of suffering significant harm at the relevant date in June 2015 as a result of one incident when the police attended at the mother's home address on Sunday 28th June. She was found to be intoxicated and unware as to where the children were. Ben was found to be in a wet bed and highly distressed having been crying and shouting "mummy". Subsequently the mother was arrested and pleaded guilty to two charges of intentionally or recklessly exposing a child to a risk of harm, and she was sentenced to a 12 month binding over order on 29th September, 2015.
7. The Minister and the parents also agreed that threshold was met on the grounds that at the relevant date the children had suffered and were at risk of suffering significant emotional harm in the future, not only because of the incident just described but also because of nine other events as recited in the threshold document. Some of these events related to the time when the parents were living together in the UK, where they were known to the local Social Services. E Social Services had a long history of involvement with the parents who had difficulties with drug and alcohol misuse and the mother also suffered domestic violence at the hands of the father. They had a chaotic lifestyle. Although it has been agreed that the children had suffered and were at risk of suffering significant emotional harm at the relevant date on this basis, we record that the terms of Article 24 require that the harm or likelihood of harm is attributable to the care given to the child, not being what it would be reasonable to expect a parent to give him or her. In this instance, the material in the final threshold document which relates to the risks to the children at a time when the parents were living together in England seemed to us not to be risks which existed at the relevant date because the mother had left England with the children and had not told the father where she was living. The Court is of course entitled to review what is happening or has happened in order to assess whether it is likely to happen again. It looks at the position before the relevant date in order to assess whether, at the relevant date, the child is suffering or is likely to suffer significant harm attributable to the care or lack of it falling short of what it would be reasonable to expect of a parent. But in the instant case, as at the relevant date the children were not suffering harm or likely to suffer harm from incidents which took place whilst their parents lived together because not only did the parents now live apart but also the father did not know where the mother or children lived. The facts agreed are as they are, but it does not seem to us that they would go towards threshold unless there was other material which made what were historical facts currently relevant.
8. At one point, it was suggested that two instances of domestic violence between the father and his current partner in June 2015 and August 2015 might be relevant to the question of threshold. The suggestion was rightly removed and we do not think it could be maintained. At that time the children were not living with the father and were not seeing him. Assuming that there had been domestic violence between the father and his new partner, and no findings were made in that respect, the children concerned had definitely not suffered significant harm as a result of it, and, because they were not living with him, they were not likely to do so either.
9. There were five paragraphs in the agreed threshold document going to the relationship between the mother and her former partner, one Mr F, between 20th March, 2015, and 7th August, 2015. The facts here have been admitted, but it is not obvious to us that in so far as the children were aware of the incidents in question, and they may well have been unaware of at least most of them, the substance of these complaints has led to the children suffering significant emotional harm, nor was it likely to do so.
10. The final issue agreed in the threshold document was that hair-strand test results suggested that the mother might have consumed chronic excessive levels of alcohol in the approximate time period from May 2015 to the end of November 2015 and that the father had consumed chronic excessive levels of alcohol in the approximate time period from the end of November 2015 to the beginning of March 2016. Insofar as that agreed statement refers to the father, it does not seem to us that it goes to the threshold criteria because, in our opinion, the children suffered no harm as a result of the father consuming chronic excessive levels of alcohol during that period, and were not likely to do so because they were not in contact with him. However we do take as relevant that the mother may have been consuming excessive levels of alcohol between May and November 2015 and it seems to us, particularly in the light of the other agreed facts and the incident on 28th June, 2015, that excessive consumption of this kind would be likely to cause the children significant harm. We therefore proceed on the basis that we have jurisdiction to make an order because threshold has been passed in relation to the one allegation of physical harm and the one allegation against the mother of emotional harm arising out of her excessive drinking.
11. The mother has been proactive and has attended a number of programmes at H, as was recommended by Children's Services. She has completed a Growing Together course and a Cookery course, and more recently attended a Mellow Parenting programme and a Making Changes programme which she has described as being particularly empowering. She is also attending the Incredible Years programme and the Inbetweenies programme. She reports that the latter has provided her with valuable bonding time with Emma.
12. The social worker then in place had contact with the family on a regular basis and tried to visit at least fortnightly. She has noted that the mother has good routines, is organised, and puts boundaries in place for the children. Her current partner has been checked by the police and no offences have been highlighted. The Children's Service do not have any current concerns about his involvement with the children. The social worker considers that while the mother is liable to minimise her consumption of alcohol and may well be consuming more than she thinks she is, the social worker has not witnessed her to be under the influence of alcohol when she has visited the family home on either announced or unannounced occasions.
13. It seems clear on the evidence that the mother provides good enough parenting of the two children. She does not appear to have misused alcohol since the alcohol and drug report of 24th December, 2015. She has worked in partnership with the Children's Service in an open and transparent way and has accepted the impact of her previous behaviour on the children. She is willing to continue to work with the Children's Service within the framework of a supervision order.
14. We think the mother is to be congratulated on taking advantage of the help which Children's Services have been able to give her, and for her willingness in being able to accept the further help which the Children's Service will give over the course of the supervision order. Of course, there remains a risk that she will re-engage in associations that would not help her in achieving good enough parenting, and that she might at some future date again resort to alcohol misuse, putting the children at risk of harm. In our view she should recognise those risks and be prepared when necessary to ask for help from the Children's Service with a view to minimising the risks and safeguarding the children and we are confident that she will do so.
15. We have considered the no order principle, but we do not think it is appropriate to make no order given the circumstances in relation to the father and the question of his contact with the children in the future. We now turn to that issue.
16. According to the mother, the relationship which she had with the father was marred by drug and alcohol abuse on both their parts and domestic violence. The allegations of violence against the mother by the father involved kicks and punches to the head and torso in September 2010, and attempts to choke the mother in February 2012, which it was said both children had witnessed. In March 2014, the father had allegedly bitten the mother following an argument and there was at least some suggestion that she had been hit by the father with a baseball bat. On her account, it was this history of violence which led to her leaving the United Kingdom and returning to Jersey with the children. We note that the father was not present in court at the time in August 2015 to challenge this account and it is not necessary to make any finding with regard to it. The relevance is only that the existence of these allegations shows that the relationship between father and mother cannot be any standards be regarded as founded on mutual trust - either the mother is right, in which case caution in trusting the father is very understandable, or she is not right, in which case the father's caution in trusting her would be equally understandable. We note that Social Services in the UK had recorded 17 incidents of domestic violence on the part of the father, who had been classified as a prolific stalker; and that there was apparently a non-molestation order in place which prevented the father from having any contact with the children or with the mother.
17. We also note that the father has therefore not seen the children since the mother came to Jersey with them on 8th July, 2014. At that time Emma was aged 5, and Ben a few months short of 3. We note that Emma was equivocal, when she discussed the matter with the guardian, as to whether she recognised her father, and as to whether she wanted to see him. Most important to Emma was that her mother should not be angry with her if she saw her father and she did not know what her mother would think. She was anxious about seeing him and that anxiety might well have arisen from her fear that her mother would be angry. Ben, on the other hand, appears to have very little awareness of his father. He thinks of his mother's current partner as his "daddy". We note he also told the guardian that with regard to his birth father, he said "I would like to see him. I don't know why I never see him. He never comes".
18. The father has issued an application for a contact order, which he is not pursuing at the present time, and according to Advocate Glynn he is willing to do what he can to be re-introduced to the children with a view to having contact with them as naturally as possible in the future. She told us that the father was glad the children were living with the mother, and that he did wish to be involved in their lives. He accepted that the Minister would facilitate matters of contact and he hoped that after 12 months it would be possible for contact to be agreed with the mother when the supervision order might no longer be necessary.
19. The father lives in the United Kingdom. In April this year a social worker visited him and his current partner. She described the visit to us as positive, the father speaking about his children with a great deal of emotional warmth. She formed the view that he was genuinely interested in initiating some form of contact. She had made enquiries of the UK local authority as to whether there was any information known to them which might be valuable to the Children's Service in Jersey. She was told that UK Police had recorded two incidents of domestic violence between the father and his current partner, the first on 7th June, 2015, and the second on 22nd August, 2015. It is thought that although categorised as "violence" there was not in fact any violence on either occasion but merely some aggressive oral argument. When the social worker addressed these incidents with the father and his partner, both of them indicated that they arose as a result of stress about the court proceedings in Jersey, and were fuelled by alcohol, but there have been no further incidents since. The father's partner was particularly keen to emphasise that she supported contact between the father and his children, and they both informed the Children's Service that they were willing to travel to Jersey if direct contact is granted.
20. The father admitted to having had a drug addiction in the past, and that after separating from the mother his use of cocaine had escalated and he said he had become very depressed. However, his current partner would not tolerate him misusing substances and in the view of the social worker, they have a close relationship and what appears to be a deep commitment to one another. The partner is currently pregnant and imminently due to give birth to the couple's new-born baby. That pregnancy has been troubled by complications in recent weeks, and it is thought the baby will almost certainly arrive early. As a result, the father, who had originally intended to be present in Jersey for the final hearing, requested that he be excused from such attendance, which we gave.
21. The father has commenced indirect contact with the children. He has already sent the Children's Service gifts for Emma for her birthday, but these arrived late due to difficulties with surrounding postage rather than the father sending the gifts at late notice. The Children's Service propose that Emma and Ben should have fortnightly indirect contact with the father by way of an exchange of cards, letters, drawings and photographs. The father should forward his correspondence to the Children's Service and the Social Worker will deliver those communications to Emma and Ben. This arrangement will remain in place for three months at which point the plan will be reviewed. The current intention is that if indirect contact goes well, Skype contact should be introduced and continue for a further period of some two months. If that goes well, then there can be supervised contact in Jersey on alternate months with perhaps the option of contact moving to supported contact if there are no issues.
22. The mother's approach to this is probably best described as supportive with reservations. She appreciates that it is good for children to know who their parents are and if possible to have a good relationship with both mother and father. She is concerned that the father's interest in the children may be only temporary and that if he does not keep it up, they will be hurt by it. She was adamant in court that she did not wish the father to have her contact details, which certainly would seem to preclude Skype or Facetime other than through the intermediary of the Children's Service.
23. We endorse the proposals which have been made for contact, but would like to add some comments.
24. It is well known that it is in children's best interests that they know where they come from and who their parents are; ideally that they have a good and loving relationship with both mother and father. They need to grow up in conditions which make them feel safe with established boundaries not only for their conduct but also for the conduct of those around them. Children benefit from consistency of treatment, and from adults empathising with their issues. By contrast, violence in the home shatters the safety and security which children need - violence towards the person who cares for them most and whom they love most directly destabilises all that is most important to them and makes the world a very worrying place. When their parents misuse drugs and alcohol, there is also every probability of inconsistency in their treatment and a lack of safety in their care.
25. It is not too late for the father to re-enter the lives of the children and it is very much in their interests that he does so, if that can be achieved safely and consistently. We do not underestimate the problems which both the mother and the father will face in this respect. They will need to work on the lack of trust which exists between them, not for their own benefit other than indirectly, but in the interests of the children. It is important that children whose parents are no longer together realise that their parents are able to interact with each other in so far as the arrangements for them are concerned. It is better that the children do not get the impression that one parent is hostile to the other, and however difficult communication between the parents might be, a refusal to communicate inevitably sends a message to the children of that hostility which is so undesirable. In this case, already, Emma has been saying to the guardian that she thinks her mother will be angry with her if she sees her father. This is not healthy for Emma, and the mother must do everything she can to recognise that contact with the father should be encouraged as a positive step.
26. On the other hand, the father has much to do to build up the trust which the mother needs to have, not just because of what has gone wrong in the previous relationship - and he cannot ignore from that perspective the history which E Social Services have in relation to violent incidents between them - but also because of the practical problems which arise in reintroducing himself into these children's lives. Indirect contact - not missing birthdays or Christmas, sending cards regularly as recommended by the Children's Service and so on is of course very important. Skype or Facetime, if it works, will be useful; but the Court's view is that Skype or Facetime may produce its own difficulties. Children of this age may well not be interested for long, and the father must prepare himself for disappointment in that respect. If they do not lose interest relatively quickly after a few minutes, that is all to the good, but if they do, that is unsurprising even within very established relationships. We recognise that the father now has a new relationship, and will shortly have fresh responsibilities towards a child in that relationship. Money may be tight and there will from time to time be competing demands on what is available. Supervised contact is not easy at the best of times, and if it does get to that stage, there will be a heavy burden on the father not to have unrealistic expectations in the early contact sessions which take place. The mother has benefitted from the Children's Service involvement and we recommend to the father that he accepts whatever help and advice is offered to him through the Children's Service in this respect as well. By initiating contact, he will be embarking on a road which is capable of bringing good returns, both for him and for the children, but it requires real and consistent commitment in what will not be necessarily easy circumstances given the practical problems which arise from living so far apart.
27. We have no doubt the supervising officer will keep these comments very much in mind over the course of the next 12 months during the pendency of the supervision order.
28. In that connection, we would like to add this. The supervising officer will be Ms Brigid Kelly, who is also the children's social worker. Ms Kelly is the fifth social worker for these children within the last 12 months and as in other cases, the Court notes with some concern that turnover in personnel. Ms Kelly has told us that she hopes that she will be in place for the full 12 month period, but she only arrived in the Island two weeks ago, and is currently on a renewable three month agency contract. It is not for us to manage the staffing arrangements within the Children's Service but we can make the point that, just as children need consistency from their parents, there is much advantage if they have consistency from the social workers whom they have to get to know and learn to trust.
29. The supervision order is therefore made for a period of 12 months and the care plan and contact arrangements as proposed are approved.
Authorities
Children (Jersey) Law 2002.
In the Matter of the T Children [2009] JRC 231.
Devon County Council v S and others [1992] 2 FLR 244.