Jersey Unreported Judgments

Care order - approval sought by the Minster for off-island placement of the child.

[2017]JRC125A

Royal Court

(Samedi)

8 August 2017

IN THE MATTER OF CAMERON (CARE ORDER OFF-ISLAND PLACEMENT)

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

Advocate S. L. Brace for the Minister.

The Mother appeared on her own behalf.

The Guardian appeared for the Child.

judgment

the bailiff:

1.        On 3^rd August the Court made an order pursuant to Article 20 and Schedule 2 of the Law giving leave for the child, being in the care of the Minister, to live outside Jersey.  The child is in the care of the Minister pursuant to a care order granted on 14^th October, 2016, and reported at In the matter of Ollie, Cameron and Sally (Care order/Supervision order) [2016] JRC 186.  The child was then aged eight and is now aged nine.  The Court's judgment last October, to the extent now material, was as follows:-

"10.    The care plan which the Minister proposes has the two brothers placed in long-term foster care in individual placements, preferably on-island with a therapeutic plan of intervention delivered by the CAMHS service.  It is unfortunate that the present carers will not be able to continue looking after [the brothers] on a long-term basis, and so far the Minister has not been able to identify suitable long-term carers on the island.  Ms Allchin told us that work is continuing in that respect, and we very much hope that it is successful as we share the view that it would be better, in the light of their family and friendship contacts, and the fact that they know that this island is where they come from, that they are brought up here if possible. Of course if that should not prove to be possible the Minister will have to return to court seeking approval for an off-island placement.

11.      The recommendation is that the boys should go into individual placements because they both need one-to-one care and there would be a high risk of a placement breakdown if they were put together.  That recommendation is supported by the evidence of Dr Edwards and we understand why it was made."

2.        We also note that, perhaps unusually, the Court met the child in Chambers.  At paragraph 3 of its judgment, the Court said this:-

"We also saw Cameron in Chambers in the presence of the guardian and his foster carer.  Cameron, who seems a delightful little boy, told us that he wanted to go back to live with his mother.  We have had to think carefully because the wishes of the child are an important consideration; but at the end of the day we reached the conclusion that at his age, his wishes do not reflect what is in his best interests."

3.        Ms Allchin submitted a report in support of the present application for the child to live outside Jersey.  The report indicates, and this also appears in the Court's judgment in October 2016, that at the time the care order was granted, it was recognised that there were no suitable long-term foster carers on-island.  Ms Allchin indicates in her report that every effort was made to identify potential matches for the child with approved carers, and that the fostering service has also attempted to recruit a carer specifically for him following more than one island wide campaign.  Some three weeks after the Court's judgment was delivered last October, a permanence planning meeting took place.  It was confirmed at that meeting that there were no potential matches for the child on island with approved carers.  It was agreed that if no potential matches were found by the date of the review meeting in December, twin tracking with an off-island placement would have to be considered.  By February 2017, the social worker in conjunction with the fostering and adoption team came to the following conclusions- there were no registered viable carers on-island trained to level 3 to 4 in therapeutic care, which is what had been assessed to be the child's needs, none were forthcoming, and the next campaign to recruit foster parents would not start until at least September 2017.  Accordingly a long-term foster placement off-island needed to be explored urgently. 

4.        Considerable work has been done, and off-island placements have now been found both for the child and for his brother.  Indeed, the off-island placement for the brother was approved some weeks ago and we are now told that that placement is working well. 

5.        A good deal of work has gone into finding a suitable placement for the child and the Court is impressed both with the information we have been given about the carers identified, and with the work which has been done to explain to the child what steps are being taken and what life will be like for his future.  The information in relation to the particular carers shows that they live in South East England, not far away from the brother's carers, and that indeed the foster mother for the brother is first cousin to the prospective foster father for the child.  They are expected to have regular contact with each other, which will be good both for the child's sense of stability and the maintenance of his sense of family.  

6.        The prospective foster carers for the child are both full-time foster carers.  They specialise in caring for teenage males who come with a history of significant absconding, school refusal and antisocial behaviours, and have cared for ten males in their fostering career for placements lasting between three months and three and a half years.  They have two adult children of their own and currently have two other male children placed with them.  The child is a younger male than they are apparently used to fostering, and they will presumably have to have him for longer.  At all events, they are willing to take him on, and the professional assessments are all very positive in that respect. 

7.        We also had put before us arrangements for the child's schooling were he to move to England as is intended.  The Ofsted report on the school in question appears to us to be perfectly satisfactory.  In her report, the social worker indicates that the child has had difficulty in coming to terms with the fact that he cannot return to his mother's care.  He is troubled by the fact that his step-father is back home again, and he, the child, is not.  He has only recently begun to accept that he will not go home, a message which has been given to him consistently by his temporary foster carer, his mother and those around him.  He has also struggled in coming to terms with the fact that he cannot stay with his current carers, and that he will be moving to England.  Initially he stated quite firmly that he did not want to go.  As late as 23^rd July, he was described by his carers as depressed.  They said that he has moved away from being demanding or wanting to be in control of what happens to him but instead has pleaded with them making statements such as "please don't make me go".  A couple of days earlier, after his last day at school which had gone well, he was in a highly emotional state, and that evening he had woken up sweating and shaking, stating to his carers "what's going on - I don't know what's going on" while shaking his head. 

8.        These reactions are not at all surprising.  The child has been removed from his mother, brother and sister, and now is to be removed from his school friends, his more recent carers and the only place (Jersey) he has known as his home. 

9.        There will be those who think that to do this to a vulnerable child of eight or nine years old amounts to institutional cruelty.  No other option has been put before the court and in answer to a question from the court, Advocate Brace accepted that there was in reality no choice for us to make.  We do not think it should be like this.  There is no doubt that the child has suffered badly from the lack of care provided to him in his early years, and there is no doubt that it was in his best interests that he be removed from the care of his mother.  The mother herself agrees that that is so.  As a result of the lack of appropriate care which he has had, the child is particularly vulnerable, but even so there is nothing so dramatically unmanageable in his conduct that it should not be possible for proper care to be given to him in the island.  How care to Looked After Children is provided is under the Law a question for the Minister and not for the Court.  However, we know from the cases brought before us that there are usually between twenty and thirty different families, sometimes with more than one child per family, whose circumstances are brought before the Court with public law applications each year.  The outcome from those cases is variously a return to the care of the parents or to some other connected person, or long-term foster care or freeing for adoption and a subsequent adoption in the case of the younger children.  The numbers themselves however are almost certainly at a sufficiently high level to indicate that long-term fostering for those who are aged nine or ten and above is unlikely to be possible over an extended period - because there will probably not be enough Jersey resident foster carers available to take on such children.  It is a different type of foster caring than is provided for a relatively young child, or even an older child such as the child in this case - for a few months while more permanent arrangements are found.  There are of course risks with the provision of institutional care, as the recent independent care inquiry has revealed, but those risks are not necessarily, so it seems to us, to be managed by avoiding institutional care overall.  The Court does not hold itself out as being expert in the provision of children's care but we are bound to express some doubts as to whether foster care on its own will ever be a sufficient answer in the Island and we think  that those whose responsibility it is to make policy decisions should consider other options. 

10.      If suitable on-island provision was made available, the capital cost of the supply of housing need not be lost to the States.  The economic cost of contact arrangements - which we go on to deal with in this case later in this judgment - might be avoided.  The emotional cost to the child, which ought to be one of the primary considerations, would be much reduced because he or she is not being uprooted from everything that is familiar and sent away, which must emphasise to the child a sense of abandonment from family and friends, and ultimately when the child is adult, a sense of abandonment by the public authority. 

11.      We accept the social worker in this case has treated the placement of the child in England as being the last option, and it has not been put forward as a desirable option.  We think she was right in that respect.  It is not for her - nor really for the Court save that the Law imposes upon us the duty of making a decision under Schedule 2 to give leave for the child to live away from the Island - but for the Minister to find an appropriate and sustainable long-term policy.  We hope very much that the Minister and his colleagues in the Council of Ministers will consider these comments in early course, because, in our judgment, the application of funds to tackle the problems described at paragraphs 7-10 above might have a real and beneficial impact on child care in the Island. 

12.      Paragraph 4 of Schedule 2 of the Law is in these terms:-

"(1)     The Minister may -

(a)       with the approval of the court arrange for, or assist in arranging for, any child in the Minister's care to live outside Jersey; and

(b)       with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any child not in the care of the Minister but looked after by the Minister to live outside Jersey.

(2)       the court shall not give its approval under sub-paragraph (1)(a) unless it is satisfied that-

(a)       it would be in the child's best interests to live outside Jersey;

(b)       suitable arrangements have been, or will be, made for the child's reception and welfare in the country in which the child will live;

(c)       the child has consented to living in that country except where -

(i)        the court is satisfied that the child does not have sufficient understanding to give or withhold his or her consent, and

(ii)       the child is to live in the country concerned with a parent, guardian or other suitable person; and

(d)       every person who has parental responsibility for the child has consented to the child living in that country except for a person whom the court is satisfied cannot be found, is incapable of consenting or is withholding his or her consent unreasonably."

13.      Paragraph 4(2) of Schedule 2 therefore sets out the legal test which the Court must apply when it exercises the discretion it has to give or withhold approval under paragraph 4(1)(a).  The first question is whether it would be in the child's best interest to live outside Jersey.  In the present case, most instincts are that it is far from being in the child's best interests for him to live outside Jersey.  As has been indicated, he is uprooted from family, friends, school and the jurisdiction with which he is familiar.  It is hard to say how that could ever be thought to be in a child's best interests.  In the present case, for two reasons, we are satisfied however that the test is passed.  The negative reason is that no other proposal for his accommodation is put forward.  He cannot stay where he is because his present foster carers will not continue to look after him until adulthood, and there is no one else available to do so.  In those stark terms, it is clearly in his best interests to live somewhere where he will be cared for.  The second reason is perhaps more positive.  As his social worker Ms Allchin said to us, the child has been in a state of limbo ever since the interim care order, and now it is very important that he is given his last placement.  He knows that he cannot stay where he is, and he knows there is no other option.  At the moment, he lives from day-to-day and cannot see the long-term, and for a proper transition from childhood into adulthood, it is essential that he learns to do that.  This sentiment was very much taken up by his guardian Mrs Fernandes.  As she put it, he needs permanence.  If he had the choice, he would stay with his existing carers, but he knows that he cannot do so.  We consider this test is therefore passed and that it is in his best interests that he live outside the Island. 

14.      The next test is whether suitable arrangements have been or will be made for his reception and welfare.  We were very impressed with the care which has been taken by Ms Allchin to prepare the child for his move.  She has of course been aware that, first of all, there was no other option for him, and secondly that he was resistant to a move.  It has been hugely important that the mother has supported her in the discussions which she has had with the child and in the preparations which have been made for him to leave the Island.  It has been described to him as an adventure, as the next step in his growing up, something exciting to which he should look forward.  It is very important as well that his brother will be living not that far away, and that his brother's carers have a connection with those with whom the child will live.  Arrangements have been made for his brother to be at the child's new home when he first arrives.  The introduction to his new carers has gone well.  They met the child the day before the hearing, and Ms Allchin had previously agreed with the child as to the activities which he would have with his new carers.  The arrangements had to take into account the weather, which was poor, but even so, they did some pottery painting in the morning, bowling and then the cinema in the afternoon.  Although the child had stuck close by Ms Allchin to start with, and was, as she described it, "wobbly", by the evening he felt sufficiently positive that he could give her a thumbs up sign. 

15.      When he arrives in his new home, the child will receive a letter from his mother which will be supportive.  The prospective school looks to be appropriate.  The information given to the Court about the prospective carers is good.  We are satisfied that sub-paragraph (b) is met. 

16.      We come to sub-paragraph (c) which is not elegant in its drafting, perhaps by reason of the double negatives.  The Court is not to give its approval unless it is satisfied that the child has consented to living in the other country, except where the Court is satisfied the child does not have sufficient understanding to give or withhold consent and where the child is to live in the country concerned with a parent, guardian or other suitable person. 

17.      In our judgment the correct construction to place on paragraph 4(2)(c) is that the Court is not to give its approval unless the child consents, but the requirement for consent can be dispensed with if there are two conditions satisfied:

(i)        The child does not have sufficient understanding to give or withhold consent, and

(ii)       The child will live either with a parent or guardian or with another person whom the Court is satisfied is suitable. 

18.      The evidence before us fell short of establishing a true valid and informed consent on the part of the child, and probably the best summary of his position was that there was a reluctant acquiescence in the fact that he had to go.  We think a reluctant acquiescence is still capable of amounting to consent, but even if that were not so, we would take the view that if it did not amount to consent, then it is clear that the child does not have sufficient understanding of the circumstances to give or withhold that consent.  Either way paragraph 2(c)(i) is satisfied.  As to the second condition for disapplication of the child's consent, we are satisfied that the child will live with a suitable couple in England. 

19.      As to paragraph 4(2)(d), the mother has confirmed her consent for the child to live in England.  She is the only person with parental responsibility apart from the Minister, and accordingly that sub-paragraph is met. 

20.      We have also reviewed the question of contact with his family.  As Ms Allchin says in her report to us, the child needs ongoing contact with his brother, sister and mother in terms of his identity and attachment needs.  That family contact needs to avoid stressful situations where the mother is unable to cope, and should if possible take place in the community, outside the home, with the family undertaking an activity based session which all might enjoy.  The intention is to promote positive aspects of the relationship between the mother, the child, and his siblings.  Clearly contact arrangements cannot be set in stone, and will be subject to regular review.  The proposal is that contact should cease for a four week period when the child moves into his long-term placement to allow him to settle and focus on that placement.  Thereafter Ms Allchin told us that she hoped the mother would be flown over to England to arrange contact with both brothers, either separately or together, and this would happen perhaps monthly, but dependent on how things went.  At such time as it was possible for the child's sister to join her mother in those contact sessions that too would be facilitated.  Ms Allchin was aware that the contact arrangements might break down, and either the mother or the child might feel unable to continue with the arrangements as set out.  In those circumstances the Children's Service would intervene and assess the situation to determine what, if any, new arrangements could be made. 

21.      The Court considers that the contact arrangements proposed are appropriate on the information we currently have available to us.  If it turns out that they do not work well, then of course they will need to be reviewed.  They have an economic and emotional cost to them - an economic cost to the Island, and an emotional cost both to the mother and to the child, and they will need to be managed carefully - if they go poorly, that will have an adverse effect on the child's sense of attachment and family.  If they go well, there is a risk that the child will become unsettled in his placement, and attention will need to be paid to ensuring that the child does not lose his focus on where his long-term care will lie so that he gains advantage from the contact which has taken place, can look forward to the next contact which will occur, and yet is not uneasy with where he is living.  This will present challenges of course to both the mother, the child and the new long-term carers. 

22.      Having regard to all these circumstances, the Court was satisfied that it was appropriate under Schedule 2 of the Law to give its approval to the Minister's proposal that the child should live outside Jersey. 

Authorities

Children (Jersey) Law 2002.

In the matter of Ollie, Cameron and Sally (Care order/Supervision order) [2016] JRC 186.