Jersey Unreported Judgments

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

[2017]JRC172

Royal Court

(Family)

19 October 2017

Before     :		J. A. Clyde-Smith, Esq., Commissioner, sitting alone.
Between	The Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	B (the father)		Second Respondent

IN THE MATTER OF JACK (EMERGENCY PROTECTION ORDER)

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

Advocate C. R. G. Davies for the Minister.

Advocate A. T. H. English for the First Respondent.

Advocate M. J. Haines for the Second Respondent.

judgment

the commissioner:

1.        On 5^th October, 2017, I granted the Minister an emergency protection order in respect of Jack, (this is not his real name) ("the child") aged 10 months.  Due to the lateness of the hour, I gave only very brief reasons for my decision, which I now set out more fully.

2.        I heard evidence from the senior social worker, Ms Val Ready, Dr David Lawrenson, the consultant paediatrician at the General Hospital, and the first respondent ("the mother").  I also had the benefit of advice from the guardian for the child appointed that day, Ms Eleanor Green.

3.        The evidence before me showed that on 26^th September, 2017, the second respondent ("the father") returned home from work and noticed that the child had a lump to the right side of his head.  The parents sought medical advice by calling the hospital, and were advised to attend.  This they did at 11:30 that evening, and the child was admitted overnight.  The parents could provide no explanation for the injury.

4.        On the morning of 27^th September, 2017, Dr Lawrenson examined the child.  He produced a child protection report, which stated that the child had suffered a 6 centimetre x 8 centimetre soft tissue haematoma (swelling).  Investigations were performed over the next 24 hours, including a skull X-Ray, CT scan and skeletal survey.

5.        Dr Lawrenson's initial opinion was that this was a "significant unexplained injury", which the child could not have sustained accidentally without the parents' knowledge, considering his developmental status.  It was explained in evidence that the child had been born premature, and there had been some developmental delay, even though he was doing well.  He was not yet able to crawl. 

6.        In the absence of any explanation by the parents, the police were alerted and interviewed them under caution on Friday 29^th September, 2017.  They were not able to provide any explanation as to the cause of the injury; they had no knowledge as to how the injury was sustained.

7.        On 3^rd October, 2017, Dr Adam Oates, consulting paediatric radiologist at Birmingham Children's Hospital, provided the results of an analysis of the CT scan, which showed an "extensive right parietal skull fracture and associated scalp haematoma". 

8.        On the basis of this analysis, Dr Lawrenson revised his official opinion to say that given the nature of the injury, he was of the view that the injury is "non-accidental" in the absence of a reasonable explanation by the parents.

9.        The child was about to be discharged from hospital.  The Minister's concern arose from this relatively immobile child having suffered a skull fracture without any viable explanation being provided by the parents, and the conclusion of Dr Lawrenson that in the absence of any viable explanation, the injury was non-accidental.  The parents had not provided their consent for the child to be placed in foster care pending further investigations, and the Minister was of the view that the child would suffer significant harm if he was not removed to accommodation provided by the Minister whilst further investigations were carried out.

Grounds for emergency protection order

10.      Under Article 37(1) of the Children (Jersey) Law 2002 ("the 2002 Law") the Bailiff may on application of any person, make an emergency protection order with respect to the 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; or

(ii)       the child does not remain in the place in which he or she is then being accommodated; or

(b)       in the case of an application made by the Minister -

(i)        enquiries are being made with respect to the child under Article 42(1)(b), and

(ii)       those enquiries are being frustrated by access to the child being unreasonably refused to an officer of an administration of the States for which the Minister is assigned responsibility, or other person authorized to act on behalf of the Minister and the Minister had reasonable cause to believe that access to the child is required as a matter of urgency."

The Minister in this case relied upon Article 37(1) (a) (i), namely that there was reasonable cause to believe that the child is likely to suffer significant harm if not removed to accommodation provided by or on behalf of the Minister.  As Advocate Davies, for the Minister, pointed out, this test differs from that in Article 24 of the Children Law for a care or supervision order, in that the harm is not required to be attributable to the care of the parents.

11.      The welfare checklist set out in Article 2(3) of the 2002 Law has no application to an emergency protection order, but Article 2(1) of the 2002 Law applies, namely that in determining any question with respect to the upbringing of a child, the child's welfare shall be the Court's paramount consideration.  Furthermore, under Article 2(5) of the 2002 Law, the Court has to give consideration to the no order principle.

12.      As to the principles to be applied, the courts in Jersey have taken guidance from the English case of X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam) (see for example In the matter of B [2008] JRC 026A.  I had regard to those principles, but it is worth setting out the first of them, which is in the following terms:

"(i)      An EPO, summarily removing a child from his parents, is a 'draconian' and 'extremely harsh' measure, requiring 'exceptional justification' and 'extraordinarily compelling reasons'.  Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child.  Separation is only to be contemplated if immediate separation is essential to secure the child's safety: 'imminent danger' must be 'actually established'."

The evidence

13.      The evidence of Ms Val Ready was that the mother had been the sole carer of the child on 26^th September, although the child's maternal grandfather and his partner had also been present that day, and were present that evening.  They had been visited and were unable to provide any explanation for the injury.  Not only were none of the adults concerned in the care of the child able to give an explanation for the injury, but none of them had noticed any distress on the part of the child.

14.      The family were not known to the Children's Service.  The child had spent his first three months in hospital and had three-monthly appointments at the Child Development Clinic.  The mother had attended all of those appointments with the child, but had not attended at the appointment due on 26^th September, 2017.

15.      The mother had attended the hospital every day of the child's admission there as a result of this injury, with the father attending every evening after work.

16.      Ms Ready had considered alternative arrangements for the child's care pending further investigation, but the maternal grandfather and his partner had been at the home on 26^th September, and the paternal grandmother, who had also been visited, suffered from anxiety and depression.  A friend of the mother, "C", had been put forward as a carer, but had yet to be assessed.

17.      The evidence of Dr Lawrenson was that this was a very serious, potentially life-threatening, injury which would have required considerable force, consistent with a fall or blow.  The child could not have sustained the injury at his own volition.  The skull of a child this age is strong but pliable, and significant force was needed to cause a fracture.  He could have been rendered unconscious and would have been very upset for some time afterwards.

18.      For such a significant finding, he would have expected a carer of the child to have known something of it.  The child did not have any particular vulnerability to skull fracture or abnormality of the bones.  There was no evidence of "baby shaken" syndrome. 

19.      Advocate English put it to him that the injury could have been caused by a fall of just 1 metre, quoting from an article in "Archives of Disease in Childhood," which was not given to Dr Lawrenson.  Dr Lawrenson accepted that it could have been caused by a fall, but doubted that it would be less than 1 metre.

20.      He informed the Court that the swelling was skin coloured, but it was not possible for him to age the injury - it could have been as much as 10 days old.

21.      The mother, who is 25, described a happy child who was doing well.  It was the father who had noticed the injury that evening, but she had not noticed anything before, and there had been no discomfort on the part of the child that day.  She said the appointment at the Child Development Clinic was for 25^th September not the 26^th but she had missed it because they had just returned from holiday and she had much to do.  She described a happy relationship with the father, and said it was not possible that anybody in the family could have hit the child.

22.      The only explanation she could think of was that they had just purchased a new cot for the child, which had wooden bars on the side against which the child might have banged his head.  That possibility had not been put to Dr Lawrenson, but it seemed unlikely to me to have been the cause of such a serious injury, bearing in mind the evidence of Dr Lawrenson. 

23.      The mother gave details of her wider family, and how the maternal grandfather was in a position to devote time to the child's care, whilst further investigations are carried out.  Her friend C, with whom she had worked previously as a care worker, was able to devote time.

Decision

24.      Advocate English said I should treat the evidence of Dr Lawrenson with caution, as he had given evidence beyond his expertise.  It was possible, he said, that someone had witnessed this injury, but kept it secret.  There was no evidence here, he said, of domestic violence, mental illness or substance abuse and in his submission, the test for an emergency protection order had not been met.

25.      Advocate Haines said the key issue is whether this was an accident or not.  The evidence before me did not suggest that the parents would intentionally injure their child, and therefore I should find that this injury was caused by an accident, and thus the test for an emergency protection order had not been met.

26.      I had no reason to treat the evidence of Dr Lawrenson with caution.  On the contrary, the guardian agreed with me that his evidence was clear.

27.      It is true that the family was not previously known to the Children's Service, and there was no evidence of domestic violence, mental illness or substance abuse, but this was a very serious injury.  As Dr Lawrenson said, a child this age would always be supervised, and it was deeply concerning that the parents and maternal grandfather had been unable to give any explanation as to how the injury had been incurred.  I had no basis upon which to find that the injury was accidental; particularly in the light of Dr Lawrenson's opinion that it was non-accidental.

28.      The child had suffered very significant harm as a consequence of that injury, and it was a question of whether it was safe to return him to the very environment in which that injury had been inexplicably sustained whilst the matter was further investigated.

29.      In my view, the nature of the injury was such that there were compelling reasons to intervene.  His safety required it, and removal into temporary foster care was both necessary and proportionate.

30.      Making no order would not self-evidently protect the child.  I gave consideration to an assessment order under Article 36(3) of the 2002 Law but, pursuant to Article 36(3), there were grounds for the making of an emergency protection order and in order to protect the child I needed to make such an order rather than an assessment order, which would have again returned him to the very environment in which this serious injury had been inexplicably sustained.  It would not have been appropriate to entrust the welfare of the child to the maternal grandfather and his partner as they had been in the home on the day concerned or to the mother's friend C, as she had not yet been assessed.

31.      The next stage was for a suitably qualified medical expert to undertake a further assessment of the child, and directions were given to that end.  In the meantime, it was clear that the parents had the support of wider family and friends and Ms Ready indicated that viability assessments would ordinarily take some 7 days to complete.  The guardian expressed the view, with which I agree, that given positive assessments, it should be possible for the child to be returned, with suitable arrangements to safeguard his safety, and no doubt the Children's Service will work hard to achieve that outcome as soon as they properly can.

32.      I had no need to make any orders as to contact, pursuant to Article 37(4) of the 2002 Law, as there were satisfactory proposals for contact contained within the care plan.

Authorities

Children (Jersey) Law 2002.

X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam

In the matter of B [2008] JRC 026A.