Jersey Unreported Judgments

Care order - application by the parents seeking a revocation of the order placement of the child in the UK.

[2017]JRC147

Royal Court

(Family)

12 September 2017

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats Nicolle and Blampied
Between	The Minister for Health and Social Services		Applicant
And	A the mother		First Respondent
And	B the father		Second Respondent
And	Owen		Third Respondent
And	Finlay		Fourth Respondent
And	Andrew		Fifth Respondent
And	Abbie		Sixth Respondent
And	Rory (Third to Seventh Respondents acting through their Guardian ad Litem)		Seventh Respondent

IN THE MATTER OF ANDREW (CARE ORDER AND PLACEMENT)

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

Advocate H. J. Heath for the Minister.

Advocate M. J. Haines for the First Respondent.

Advocate L. K. Helm for the Second Respondent.

Advocate C. Hall for the Third and Fourth Respondents.

Advocate T. V. R. Hanson for the Fifth, Sixth and Seventh Respondents.

judgment

the commissioner:

1.        The Court sat late on Friday 7^th July, to hear an urgent application by the Minister for:-

(i)        an interim care order in respect of the fifth respondent (Andrew, this is not his real name) who was aged 7;

(ii)       approval of a care plan for the removal of Andrew from the care of his parents; and

(iii)      leave for him to leave the island for a therapeutic foster placement in England.

2.        Andrew is the third of five children in this family who have been known to the Children's Service since the birth of the eldest child, the third respondent (Owen, this is not his real name), in 2001.  There have been long-standing concerns about the care of the children by their parents, including neglect, domestic violence and inconsistent levels of even basic care.  There were also concerns regarding drug and alcohol misuse on the part of the second respondent (the father).

3.        The fourth child in the family, the sixth respondent (Abbie, this is not her real name) was made the subject of an emergency protection order on 7^th December, 2016, and we have seen the judgment of Sir Michael Birt, Commissioner of that date (In the matter of Abbie (Care proceedings) [2016] JRC 228).  Suffice to say that although the judgment does not go into detail as to the conduct of Abbie, she was described as an extremely distressed child.  An application for the other children was refused, because there was no evidence in support.

4.        An interim care order was made in respect of Abbie on 3^rd January, 2017, when she was taken into foster care in Jersey, and because of her significant emotional needs, leave was granted on 29^th June, 2017, with the consent of the parents, for her to live outside the island in a therapeutic placement of a kind not available here.  We have seen the Bailiff's judgment (unpublished) of that date and were told that she has made great progress in that placement.

5.        No application for an interim care order has been made in respect of the other children, but they were made party to the proceedings on 9^th January, 2017.  A psychiatric assessment of the father and psychological assessments of the children and parents were ordered on 10^th February, 2017, and directions were given on 14^th June, 2017, for a final hearing, now fixed for November 2017.

6.        The psychiatric assessment of the father, who has a long history of alcohol and substance dependency, was undertaken by Dr Tanya Engelbrecht and he has a diagnosis of schizophrenia.  She is of the opinion that he has limited coping skills.

7.        Dr Mair Edwards has assessed the parents and the children.  As the guardian commented, her report makes grim reading.  In her opinion, the parents do not have the capacity to care for the children to a good enough standard.  She says they also lack insight and the capacity to make positive changes for the children.

8.        Andrew presented to Dr Edwards as having significant emotional and behavioural difficulties, with particular incidents being described in 2015 and 2016.  She thought it highly likely that he has a learning difficulty; that needs to be reassessed after he has had an opportunity to develop within an enriched environment. 

9.        Dr Edwards said this in relation to the ability of the parents to provide the appropriate level of care for all of the children at paragraph 8.12.1:-

"Based on the full assessment it is my opinion that the parents in this case have failed to provide even the most basic physical care consistently to the children, and without them meeting the children's most basic care, it is impossible for them to have provided the necessary emotional care.  Even without the additional concerns about lack of sexual boundaries, the care offered by the parents has been inadequate and harmful to the children's development."

10.      In relation to Andrew, she gave this advice at 8.9.1.3:-

"Andrew's primary need currently is to be in a nurturing, enriched environment that will allow him to develop to his full cognitive potential, and provide him with a safe environment where he can begin to make sense of his experiences to date.  It is my opinion that Andrew is an anxious child, and was clearly anxious about sharing information with me in case his mother became angry.  This suggests that he has issues on his mind that he wishes to disclose, but is afraid of doing so in case of repercussion.  Andrew has already developed a negative view of the world and other people, expecting the worst, and there is a high risk that as he gets older these will develop into anti-social attitudes and behaviours. I am also concerned that Andrew has cognitive difficulties and possibly other developmental difficulties, that will make his life more complex."

11.      Dr Edwards has reached these conclusions notwithstanding very considerable support being given to the family by the Children's Service and other agencies over this period.

12.      On 25^th January, 2017, a second child, the fourth respondent (Finlay, this is not his real name), gave this insight into family life:-

"At that meeting, Finlay conveyed that there appears (not infrequently) to be friction in the home with swearing/arguments between the parents with Finlay taking Andrew upstairs to get away.  Finlay was asked if he could wave a magic wand and make one difference, what would it be?  He answered 'I'd change the arguments into conversations'.  He stated he would want to stop Dad arguing with Mum and stop the swearing and arguing about money.  He thought that Abbie had learned her bad language from these arguments and also from him and his brothers swearing at their mother.  He stated, 'Everyone was swearing'."

13.      The reason for this urgent application was a serious deterioration in Andrew's emotional health following Abbie's departure to England on 30^th June, 2017.  She had been in foster care since January 2017, but Andrew had contact with her twice a week and of course, he would see her at the school which they both attended.

14.      We heard evidence from the team manager at the Children's Service, namely Tanja Tinari, who had had a personal involvement in the events of the last week, the allocated social worker Caroline Flynn being unavailable, from the head teacher of the school, and from the guardian, Eleanor Green.

15.      On Friday 30^th June, Andrew exhibited extremely distressed and uncontained behaviour at school.  Quoting from an e-mail sent by the head teacher to the Children's Service:-

"I am very worried about [Andrew] today.  He has been really emotionally upset, this afternoon he screamed for nearly an hour and was rolling on the floor with his hands over his ears and repeatedly saying 'No'."

His mother was called, and he was taken home with the request that she do something lovely with him over the weekend.  He had asked to go to Milbrook Park and the mother said she would take him there.

16.      On Monday, 3^rd July, he arrived at school, again upset and uncontained.  On this occasion, he was violent, kicking the head teacher in the shins and face and kicking his mother when she was called to the school.  He refused to return home with her.  He said repeatedly that he wanted to kill himself, that people would just laugh if he died, that nobody cared about him and that he wanted to go into foster care.  He had a particular fixation on a schedule one offender (described by him as a man not allowed to go anywhere near children), being convinced that this person, who appears to have some kind of connection with the family, would come into this house, go to the kitchen drawer, pull out a knife and quietly creep up the stairs and stab him to death.  He was also worried that this person would come to the school.

17.      This behaviour continued during the week, and we will not set it out in any further detail, as it is well documented in the statement of Tanja Tinari of 5^th July, 2017, and clear from the evidence of the head teacher.  It would seem that Friday 7^th July, the day of the hearing, had been a better day for Andrew at school.

18.      As Tanja Tinari said, it is understandable that Andrew would be upset at his sister leaving the Island, but it would be reasonable to expect his parents to be able to ensure his emotional safety, which they were clearly unable to do.

19.      Dr Edwards had given this advice in relation to any placement in foster care of Andrew:-

"However, the foster carers would need to be very skilled, as Andrew has the potential to become highly challenging.  As he is likely to be a child of limited cognitive ability, it would be more difficult for him to make sense of his experiences through talking therapy.  Managing his behaviours in a consistent, nurturing way would therefore be an essential part of aiding his recovery."

20.      In the Minister's view, Andrew's needs could only be met off island in a therapeutic foster placement of the kind not available here.  Such a placement had been identified, within a short distance from Abbie's placement, and there was a possibility that both children could attend the same school.

21.      The position of the mother and father was that this deterioration in Andrew's behaviour was attributable to the way the Children's Service had handled Abbie's departure from the island.  The emotional harm that he was now suffering was attributable to the conduct of the Children's Service and not to their parenting and, in the submission of Advocate Haines, the test for an interim care order was not met.

22.      Advocate Helm pointed out that the minutes of a child protection conference on 31^st October, 2016, state that at that stage, Andrew did not meet the criteria for CAMHS and from that time to the present, there has been no application by the Minister for an interim care order.

23.      The parents described this application as rushed and chaotic and said that the way forward was for Andrew to remain with the family, for him and the family to receive more support and for him to be referred to CAMHS.

24.      Advocate Hall had discussed the possibility of Andrew being sent to a placement in England with Owen.  He agreed that Andrew's behaviour was worrying, but he said Andrew cannot vocalise his concerns properly.  He was missing Abbie and Owen thought it would be very harmful for him to be removed from the family.  He needed counselling/therapy but in Jersey, something he had not been given before.  This application was premature - a knee-jerk reaction.

25.      Whatever criticisms there may be of the way the Children's Service handled Abbie's departure, which we did not have time to explore, the problems here run far deeper than Andrew being upset about that.  In fact, it is clear that in discussion, Andrew deals with Abbie's departure sensibly, but there are serious emotional difficulties with Andrew, as identified by Dr Edwards, and which as Advocate Hanson put it, had ebbed and flowed.

26.      The guardian had been to see Andrew prior to the hearing and described him as a child with high anxiety and a multitude of fears (which he detailed to us) jumping out of his skin over little things.  He was living in a state of chronic stress with which the parents, with their own needs, were ill-equipped to deal.  He required an extremely high level of parenting and in her view, he needed that opportunity now.  There would, of course, be a knock-on effect for the family and the remaining siblings, which would require thought and there was always risk in any child being removed from home, but she could not see what further support could be given to the family that had not already been given.  She supported the application.

Threshold

27.      The test for an interim care order is that we must find that there are reasonable grounds for believing that the threshold under Article 24(2) of the Children (Jersey) Law 2002 ("the Children Law") is met.  We rejected the suggestion that Andrew's deep-seated emotional problems were in no way attributable to the care given by the parents.  The evidence of serious emotional harm was overwhelming and there were reasonable grounds for believing that this was attributable to his home environment.  We had no doubt that the threshold test was met and that we had jurisdiction.

28.      As to the welfare stage, we had regard to the guidance given in the Court of Appeal decision of In the matter of F and G [2010] JCA 051, but the key issue for the Court was the plan to remove Andrew from the care of his parents on an interim basis, although we were now at a stage when the Court had received very full reports on the parents' parenting capacity.

29.      The test, set out in the case of In the matter of J [2011] JRC 147 is that Andrew's safety required interim protection.  His removal must be most necessary and proportionate and no other less radical order would suffice to provide that protection.  Safety in this context has to be regarded in a broad sense and includes psychological harm and in particular safety from emotional harm.

30.      The risk of harm is, of course, a two-sided coin and we must have regard to the detriment in Andrew being separated from home, as well as the risk of him remaining there.

31.      We were left in no doubt that Andrew needed to be removed from his current environment as a matter of urgency.  His behaviour at school was extreme and deeply troubling and we had nothing but admiration for the way it was handled by the head teacher.  The suggestion that he just be referred to CAMHS failed to appreciate the serious damage being done.  As Tanja Tinari said, CAMHS would not be able to help Andrew when he was under that degree of stress and it took all their efforts just to contain him.  Whilst it provided therapeutic service, it could not replace the environment in which Andrew lives.  It was that environment which needed to change urgently before therapy could be usefully engaged in.  The test for removal on an interim basis was met.

32.      Such a therapeutic placement was not available in Jersey, and therefore the Minister applied for approval for Andrew to be placed in England under Schedule 2 paragraph 4(2) of the Children Law, which is in the following terms:-

"(a)     It would be in the child's best interests to live outside the island;

(b)       Suitable arrangements have, or will be made for his reception and welfare in the country in which he will live;

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

(i)        the court is satisfied that he does not have sufficient understanding to give his consent, and

(ii)       he 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 his living in that country except for a person whom the court is satisfied cannot be found, is incapable of consenting or is withholding his consent unreasonably."

Taking (a) first, we had no doubt that it was in Andrew's best interests for him to live outside the island because the therapeutic placement he needed was not available here.  We were also satisfied in relation to (b) that suitable arrangements had been made by the Minister for Andrew to be placed in England.

33.      In terms of his consent, in light of his age and cognitive difficulties, it was clear to us that he would not have sufficient understanding either to give or refuse his consent, and we therefore dispensed with that requirement.

34.      Turning to the parents, they did not give their consent to his living outside the island and we therefore had to consider whether or not they were withholding their consent unreasonably.

35.      We applied the same approach to the withholding of their consent as the Court does to the withholding of consent for freeing a child for adoption, namely that it is an objective test.  Quoting from paragraph 80 of the Court of Appeal judgment In the matter of F and G:-

"80     The Royal Court turned next to consider whether the mother was withholding her consent unreasonably (the father having consented).  It relied on the explanation of this test as described by this Court at paragraph 26-29 of Re JS and BS [2005] JRC 108 and it applied the principles there set out. In particular as it noted, the test is an objective one.  A reasonable parent will give great weight to what is best for the child (see the observations of Lord Denning MR in re L [1962] 106 LOS JO 611 approved in re W [1971] 2 All ER 409) but a Court must be careful not simply to substitute its own opinion for that of the parent. As the Royal Court put it:-

'The question is whether the parental refusal comes within the band of possible reasonable decisions, not whether it is right or mistaken. There is a band of decisions within which no court should seek to replace the individual's judgment with its own' [para 18]"

36.      Thus, a reasonable parent will give great weight to what is best for Andrew, but the Court must be careful not simply to substitute its own opinion for that of the parents.  The question is whether the parental refusal comes within the band of possible reasonable decisions, not whether it is right or mistaken.

37.      In the view of the Court, the parents were not showing sufficient concern for Andrew's deeply worrying behaviour and not acknowledging that the home environment was part of, if not, the problem.  They voiced no concern as to the actual placement put forward by the Minister, a placement that would not be available here, and did not seem to take into account that Abbie, who exhibited similar problems albeit with some differences, was responding well in her placement.

38.      By way of analogy, if a child was physically ill and the only treatment was available in England, then a reasonable parent would readily consent to that child going to England for treatment.  Similarly parents whose child had serious emotional problems which could only be contained and addressed in a therapeutic placement in England would surely take the same approach.

39.      We concluded that the parents were not giving sufficient weight to what was best for Andrew and were therefore withholding their consent unreasonably.  We therefore gave approval for Andrew to leave the island for the proposed placement in England.

40.      Whilst approving the care plan, the Court did not have sufficient time to go into the contact arrangements and only heard evidence on the proposals for the goodbye contact, which was that it should be limited to 30 minutes, so as to minimise the risk of Andrew becoming uncontained and distressed.  The parents felt that this was too short a time, but we accepted the advice of Tanja Tinari that Andrew should be able to cope with this if there were very clear boundaries in terms of time and that it was right to limit the goodbye contact to 30 minutes.  As for the remaining proposals for contact, there was no time at the hearing for them to be considered and the Court directed that if any of the parties wished to make an application in that respect, then they could do so for a hearing on 20^th July, 2017, which had already been reserved.

41.      In conclusion, we granted an interim care order in respect of Andrew, approved the care plan for his immediate removal and gave our approval to his being placed outside of the Island.

Authorities

In the matter of Abbie (Care proceedings) [2016] JRC 228. 

Children (Jersey) Law 2002. 

In the matter of F and G [2010] JCA 051. 

In the matter of J [2011] JRC 147.