Jersey Unreported Judgments

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

[2016]JRC228

Royal Court

(Family)

7 December 2016

IN THE MATTER OF ABBIE (EMERGENCY PROTECTION ORDER)

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

Advocate H. J. Heath for the Minister.

Advocate M. J. Haines for the Mother.

Advocate L. K. Helm for the Father.

judgment

the comMissioner:

1.        This is an application by the Minister for an emergency protection order in respect of Abbie (this is not her real name) who is 5, very nearly 6 years old.  I have heard oral evidence as this matter has been presented in great haste.  I have heard evidence from teachers at the school which Abbie attends, from the social worker and family support officer and from the supervising officer at the Children's Service. 

2.        This evidence discloses a very worrying state of affairs.  I have heard evidence about an incident last Friday and a further incident earlier today.  I am not going to recount it; suffice it to say that the evidence satisfies me that this is an extremely distressed child who is clearly suffering great difficulties and is having difficulty in dealing with and expressing her distress.  

3.        Now as to what that difficulty is we cannot of course be sure at this stage.  But very worryingly, she has today made remarks which may suggest some form of sexual abuse of her and what she has suggested is that it is by her mother.  It is in those circumstances that the Minister now applies for an emergency protection order. 

4.        I remind myself of the legal test for an emergency protection order.  It is contained in Article 37(1)(a) of the Children (Jersey) Law 2002 and provides as follows:-

"Emergency protection orders

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...."

5.        I have also reminded myself of the leading authority in Jersey which is In the matter of B [2008] JRC 026A which in turn drew heavily on the English case of X Council-v-B (Emergency Protection Orders) [2005] 1 FLR 341.  In particular at paragraph 22 of the Jersey judgment it is said:-

"22.    I was referred to the case of X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 which, at paragraph 57 of the judgment of Munby J, sets out the overriding principles which should be borne in mind when considering whether to grant an emergency protection order under the equivalent English legislation.  I have carefully considered the matters summarised there; in particular the fact that summarily removing a 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 both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting B's welfare."

6.        Those remarks of course apply with particular force where an application is made ex-parte, as this one is.  I understand why that is so, given that the disclosure of possible sexual abuse occurred only this morning and the Minister is clearly very troubled at the thought of Abbie going back to a home in which this may be occurring.  The Minster has very properly arranged for legal representation as a matter of urgency and I am most grateful to Advocate Haines and Advocate Helm for attending at such short notice but, of course, they have been unable to participate in any meaningful way given that they have not even met their clients and have no instructions.  Nevertheless I am most grateful to them. 

7.        I accordingly bear in mind very much that this is a draconian order and if made will result in a child being taken away from her parents within the next hour or two without their having had a chance to have their say.  Nevertheless I am satisfied that in Abbie's case it is necessary.  I agree that the evidence that I have heard suggests that Abbie is suffering significant harm. Its exact cause may not yet be known and, of course, there need to be investigations to find that out, but a child who behaves as Abbie has been in recent times is clearly suffering significant harm of some sort and there is evidence before me which suggests that it could well be attributable to sexual abuse taking place within the family environment.  In those circumstances I am satisfied that the requirements of Article 37 are met and that an emergency protection order in respect of Abbie must be made. 

8.        The application, although not originally framed to cover the other children, has been amended, so to speak, during the hearing and I have been asked to make emergency protection orders for the other children.  However, apart from one reference to something one of them has said, I have not heard any evidence in relation to these other children.   I have not heard anything to suggest that they are suffering significant harm.  Of course I understand the point that, if it is the case that there is sexual abuse taking place in relation to Abbie, it is quite possible that sexual abuse may be taking place in relation to the other children; but that fact alone is insufficient to justify an ex-parte draconian order of an emergency protection order.  I would not have been true to the legislation and the principles which have been adopted if I were to make an order in respect of those children with no evidence other than a general concern because of what may be happening to Abbie.  So I am not willing to make emergency protection orders for the other children.  Clearly that can always be kept under review and if further evidence emerges, applications can be brought if necessary. 

9.        So my decision is to grant the order in respect of Abbie and to reject it in respect of the other children.  As to the time, the Minister has very properly suggested in his draft order that there should be an early inter-partes hearing if the parents so wish and that is clearly right.  Accordingly I grant the application for such period until the Court can be reconvened for an inter-partes emergency protection order hearing or an interim care order hearing but, in any event, no longer than 28 days.  I am putting 28 days, not because I think that anyone should wait that long until there is an inter-partes hearing, but just to cover the position in case the parents wish to take further time or to cover the eventualities.  But if there is an inter-partes application, that will come on within the 28 days and the emergency protection order will be reviewed at that stage with the benefit of all the submissions the parents wish to make. 

10.      So I make paragraph 1 of the draft order in those terms.  I have considered the position on contact but I agree for the reasons set out on behalf of the Minister that at the moment direct contact should be suspended under the relevant provision and I so order.  Of course that too is a matter which can be kept under constant review and the parents have a right to bring an application if they wish.  I appoint a guardian and I am grateful to Mrs Ferguson for attending today at short notice and I also grant leave to disclose the proceedings into any care proceedings as requested.  

11.      I have been asked to make orders under Article 37(4)(b) for the carrying out of any medical or psychiatric examinations thought necessary and under Article 40(11) for the Minister i.e. the Children's Service, to be accompanied by a registered medical practitioner if they so wish. 

12.      Thank you to everyone for attending at short notice and I hope that satisfactory arrangements can be made for Abbie tonight. 

Authorities

Children (Jersey) Law 2002.

In the matter of an EPO in respect of B [2008] JRC 026A.

X Council-v-B (Emergency Protection orders) [2005] 1 FLR 341.