Jersey Unreported Judgments

Care proceedings - application by the Minister for leave to withdraw application to extend supervision order in relation to Taylor.

[2017]JRC037

Royal Court

(Samedi)

6 March 2017

Before     :		Sir Michael Birt, Commissioner, and Jurats Olsen and Ramsden
Between	Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	B(the father)		Second Respondent
And	Taylor (through his guardian Mrs Elsa Fernandes)		Third Respondent

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF TAYLOR (CARE PROCEEDINGS)

Advocate P. F. Byrne for the Minister.

Advocate B. J. Corbett for the First Respondent.

The Second Respondent did not appear and was not represented.

Advocate H. J. Heath for the Third Respondent.

judgment

the commissioner:

1.        This is an application by the Minister for leave to withdraw his application to extend the supervision order in respect of Taylor (this is not his real name).  The application is supported by the other parties and at the conclusion of the hearing, the Court granted the application.  What follows constitutes our reasons for reaching that decision. 

Background

2.        The supervision order in question was granted on 11^th December, 2015.  The judgment giving the reasons for that decision was dated 18^th December, 2015, (In the matter of April and Taylor (Care proceedings) [2015] JRC 264.  For convenience we repeat (with minor alterations) certain parts of that judgment ("the December judgment") in order to describe the background to this matter. 

3.        Taylor is 15 and will very shortly be 16.  He has a sister called April (this is not her real name) who is now over the age of 18.  They are both the children of the First and Second Respondents ("the mother" and "the father"). 

4.        In November 2011, the father was sentenced to a total of 5 years' imprisonment for eight counts of indecent assault and four counts of procuring an act of gross indecency on a boy who was between the age of 12 and 15 during the period of offending.  He was also sentenced to 2 years' imprisonment, consecutive, for twelve counts of making indecent photographs of children.  The father befriended the victim who was a particularly vulnerable child and ingratiated himself by buying sweets and expensive gifts for the boy.  During his period of imprisonment, the father did not engage with any sex offender treatment and continued to deny his offending.  He is subject to a restraining order ("the restraining order") under Article 10(4) of the Protection of Children (Jersey) Law 1994 which, inter alia, prohibits him from being alone with any person under the age of 16.  

5.        April and Taylor have lived with the mother throughout their lives.  The father was released from prison in November 2014 but he lived separately from the mother and her children.  The Minister was concerned that, upon the father's release, the mother would not be able to protect the children from the risk of harm because she was in denial over the father's offending.  Accordingly, the Minister applied for a care order.  An interim care order was granted by the Court on 3^rd December, 2014.  On 11^th March, 2015, the interim care order in respect of April was discharged and replaced by an interim supervision order as she was about to turn 17 and a care order would not extend beyond her 17th birthday. 

6.        Subsequently Dr Dawn Bailham was appointed to carry out psychological assessments.  Her report is dated 7^th April, 2015, with an addendum dated 9^th May, 2015.  She concluded in her report that the father presented some degree of sexual risk to April and a high sexual risk to Taylor.  He also presented a high sexual risk to other children and young people, both male and female.  Dr Bailham recommended that contact with the father should be supervised.  

7.        Significantly, she recommended that concentrated therapeutic work should be undertaken with the children and the mother with a view to assisting them all to keep the children safe.  After some initial delay, Mr Rob Tucker and Ms Jo Ziegert were appointed to carry out the recommended therapeutic work after the Minister had agreed the necessary funding.  

8.        On 27^th July, 2015, the Court sat to hear an application by April for unsupervised contact with the father.  That application was rejected for the reasons set out in a judgment dated 28^th September, 2015, (In the matter of April (Contact order) [2015] JRC 198).  However the Court indicated that it would be willing to reconsider the matter in early October after the therapeutic work had been undertaken by Mr Tucker and Ms Ziegert and they had reported on the outcome of such work.  

9.        Mr Tucker and Ms Ziegert undertook the recommended therapeutic work with the mother, the father and the children during the course of July and August.  They reported on the outcome of the work on 24^th September.  In essence, the report was very encouraging.  All the parties had engaged very fully and had had to confront difficult issues.  In particular, the mother and the children had moved away from a position whereby they believed the father to be innocent of the offences of which he had been convicted.  The report recommended further work to develop a Family Safety Plan which was to be agreed by all family members and professionals.  This was intended to set out a structure for keeping the children safe.  The report further recommended that once the work on a Family Safety Plan had been done, April could start unsupervised contact with the father in the community and Taylor could move to contact with the father supervised by the mother.  Furthermore long-term work was recommended to help with communication about sex offending and to ensure updates on the father's progress on work concerning sexual offending with the probation service.  On 30^th September, the Court made orders to reflect these recommendations which were agreed by all parties. 

10.      The Family Safety Plans for April and Taylor were subsequently prepared and agreed.  The programme for the more long-term work was also put in place. 

11.      On the basis of the positive progress which appeared at that stage to have been made, the Minister recommended at the final hearing of the care proceedings on 11^th December, 2015, that no order should be made in respect of April and that a supervision order for nine months would be sufficient in respect of Taylor.  That recommendation was supported by the guardian and by the parents.  For the reasons set out in the December judgment, the Court also agreed that it was the appropriate course of action.  Thus Taylor was made subject to a supervision order which would expire on 10^th September, 2016. 

12.      The Family Safety Plan included amongst other things the following requirements:-

(i)        Supervised contact could only take place in community settings.  In particular it could not take place at the father's home. 

(ii)       The father was not allowed to visit the mother's home where the children resided with her. 

(iii)      The father was to avoid any text, telephone, Snapchat or use of social media contact with Taylor.

13.      As set out in detail in the statement of Caroline Glynn (the social worker at the Children's Service with responsibility for Taylor) dated 23^rd August, 2016, it emerged in February 2016 through disclosure from the children that there had been breaches of the Family Safety Plan and that at least one such breach had occurred even before the Royal Court sat on 11^th December, 2016. 

14.      Thus it emerged that Taylor had been taken to the father's home for contact by the mother despite Taylor having on one occasion expressed reluctance to do so because he knew it was contrary to the Family Safety Plan.  It also transpired that there had been text communications between Taylor and his father and the father had on one occasion attended at the family home. 

15.      Considerable discussions with the different members of the family were subsequently held by Mr Tucker and Miss Ziegert as well as the Children's Service and the view of all those involved was that, contrary to what had been thought to be the position at the time of the hearing before this Court on 11^th December, 2016, the mother was unable to stand up to the father and the father had been the prime mover in respect of the various breaches because he did not really believe that the Family Safety Plan was necessary. 

16.      As a result, the Children's Service instructed that contact between Taylor and the father should once again be supervised by the Children's Service rather than by the mother.  However, this was ignored.  The mother said that she felt able to supervise safely and accordingly contact continued to occur without the involvement of the Children's Service.  Despite Taylor (and April) indicating that they did not see their mother as assertive enough to withstand the challenge presented by the father, both parents stated that they had no intention of changing their arrangements as they did not agree with the Children's Service that Taylor continues to be placed at risk as a result of their decision making. 

17.      In the light of these developments, the Minister applied on 24th August 2016 for the supervision order in respect of Taylor to be extended for a further two years and three months.  On 9^th September, the Court extended the supervision order on an interim basis until the hearing of the Minister's application. 

18.      Because of the above events, there was considerable concern about the risks to Taylor.  As a result, the Attorney General applied to the Royal Court to vary the restraining order against the father originally imposed by the Royal Court in November 2011 on the basis that, in view of the breaches of the Family Safety Plan, Taylor was in need of additional protection. 

19.      The relevant paragraph of the restraining order originally imposed was to the following effect:-

"(i)       That during the period of 10 years following his release from custody, the accused be prohibited from being alone with any persons under the age of 16 years.  The person will be considered to be alone if there is not a third person present who is over the age of 21."

20.      In relation to Taylor, the Court did not in November 2011 think it necessary to make a special restraining order in respect of him and said this at paragraph 24 of its judgment, AG v U [2011] JRC 219:-

"... We have considered the question as to whether we should make special provision for the defendant's son.  In our view it would be right to take account of the fact that there will be nothing preventing the defendant from seeing his son in the presence of others including his former partner, the child's mother, in the event that that should be what the son then desires, and in the circumstances we do not see the need to make any special change to the terms of the restraining order as the Crown has contended."

21.      For the reasons set out in a judgment dated 13^th October, 2016, (AG-v-U [2016] JRC 185), the Court granted the Attorney General's application to vary the restraining order on the grounds that Taylor was in need of further protection and that the father would only comply with the relevant restrictions if there were to be criminal sanctions in the event of breach.  It therefore amended the restraining order by, amongst other changes, introducing a new provision as follows:-

"That contact between the offender and Taylor, until he reaches the age of majority, may only take place at the written direction of the Children's Service under such conditions as to supervision or otherwise as the Children's Service may in its discretion direct in writing."

22.      The Children's Service issued written directions to the father the same day and we have been provided with these.  The relevant document contains a number of directions but the key ones for present purposes are that contact may only take place when supervised and in the presence of a member of the Children's Service and any form of other contact with the father, including telephone, text, email, Facebook and Snapchat is not permitted. 

23.      In the light of the amendment to the restraining order, the Minister now applies to withdraw his application for the extension of the supervision order. 

The law

24.      Rule 9 of the Children Rules 2005 provides that an application may be withdrawn only with the leave of the Court.  In Minister for Health and Social Services v KG [2009] JRC 076, this Court followed English authority in relation to the equivalent provisions in England and held that withdrawal of an application for a care order was a matter which had to be considered as carefully as any other application under the relevant legislation in relation to children.  It specifically approved the observation of Waite LJ in London Borough of Suffolk v B [1993] 2 FLR 519 at 573:-

"The paramount consideration for any court dealing with a R4.5 application is accordingly the question whether the withdrawal of the care proceedings would promote or conflict with the welfare of the child concerned.  It is not to be assumed, when determining that question, that every child who is the subject of care proceedings derives an automatic advantage from having them continued.  There is no advantage to any child being maintained as the subject of proceedings that have become redundant in purpose or ineffective in result.  It is a matter of looking at each case to see if there is some solid advantage to the child to be derived from continuing the proceedings".

25.      In our judgment, the sentiments there expressed are equally applicable to proceedings where the Minister is seeking the withdrawal of a supervision order rather than a care order.  The Court must also always bear in mind the no order principle encapsulated in Article 2(5) of the Law which provides as follows:-

"Where the court is considering whether or not to make one or more orders under this Law with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."

Discussion

26.      The Court received a statement from Ms Glynn bringing the Court up to date with events since the date of the Minister's application to extend the supervision order and explaining why the Minister now considers it to be in Taylor's best interests to withdraw the application for an extension of the supervision order.  The Court also requested Ms Glynn to give oral evidence to elaborate upon her report. 

27.      The mother supports the Minister's application to withdraw as does the guardian, who has filed a report explaining her conclusion.  The father did not attend the hearing despite being a party to the proceedings.  However Rule 17(4) of the Children Rules 2005 allows a court to proceed in the absence of a respondent if it is satisfied that the respondent received reasonable notice of the date of the hearing or the court is satisfied that the circumstances of the case justify proceeding with the hearing.  The Court is satisfied from the evidence that notice was given to the father of the date of the hearing and that he has simply chosen not to participate.  We therefore decided to proceed in his absence. 

28.      Having considered the reports, the oral evidence of Ms Glynn and the submissions of the parties, the Court agrees that it is in Taylor's best interests to give leave for the Minister to withdraw his application to extend the supervision order and, as a result, to discharge the interim extension of the order.  Our reasons are essentially those put forward by the Minister and supported by the guardian.  We would summarise them as follows. 

29.      First, safeguarding concerns in relation to contact between Taylor and the father, which provoked the application for an extension of the supervision order, have been addressed by the variation of the restraining order.  The latter order now provides that the father may only have contact with Taylor under the supervision of the Children's Service.  A restraining order has teeth (in that breach of it amounts to a criminal offence for which the father may be punished) whereas there is no sanction if directions given by the Children's Service pursuant to the supervision order are breached.  The evidence before the Court was that, given the existence of the restraining order, there would be ongoing monitoring of the father by the police and other agencies and there was no evidence at present that there had been any breach of the varied restraining order. 

30.      Secondly, effective application of the supervision order is not possible and it is highly unlikely to achieve any benefit.  The evidence shows that the family as a whole has refused and continues to refuse to engage with the Children's Service.  The parents have an extremely negative view of the Children's Service and have for some months now refused to co-operate in any way.  Their attitude has communicated itself to Taylor and the consequence is that he too will not communicate with Ms Glynn.  The purpose of a supervision order is to assist, befriend and advise.  This role and relationship is not possible if the young person in question does not wish to engage with the supervisor.  Taylor is nearly 16 and it is not possible to force him to engage if he does not wish to do so.  It follows that a supervision order will provide no additional support to Taylor or to the family given the family's views and their unwillingness to work with the Children's Service.  Indeed, the view of the guardian and Ms Glynn, when she gave evidence, was that the removal of the supervision order may even help.  Taylor has a good relationship with his counsellor at school and the removal of a supervision order might help the relationship with the counsellor as it would lift the feeling of things being dictated to him. 

31.      Thirdly, Ms Glynn made it clear that the support and assistance that would be available under a supervision order would be made available to Taylor on an informal and continuing basis should he request it.  His case would remain open and he would continue to have an allocated social worker who would be available if required and who would also liaise with the counsellor and the police and other agencies so as to monitor any further safeguarding issues. 

32.      For these reasons, the Court agrees that no advantage is to be gained by extending the supervision order and, bearing in mind the no order principle, Taylor's best interests are served by giving the Minister leave to withdraw his application and discharging the interim extension of the supervision order granted on 21^st September, 2016. 

Authorities

In the matter of April and Taylor (Care proceedings) [2015] JRC 264.

Protection of Children (Jersey) Law 1994.

In the matter of April (Contact order) [2015] JRC 198.

AG v U [2011] JRC 219.

AG-v-U [2016] JRC 185.

Children Rules 2005.

Minister for Health and Social Services v KG [2009] JRC 076.

London Borough of Suffolk v B [1993] 2 FLR 519.