Care proceedings - reasons for the orders made by the court in November 2017.
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Sir William Bailhache, Bailiff, and Jurats Ramsden and Sparrow. |
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Minister for Health and Social Services |
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(1) A (the mother) |
Respondents |
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(2) B (the father) |
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(3) Owen |
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(4) Finlay |
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(5) Andrew |
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(6) Abbie |
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(7) Rory |
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(the children through their Guardian Eleanor Green) |
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IN THE MATTER OF OWEN, FINLAY, ANDREW, ABBIE AND RORY (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDRENS (JERSEY) LAW 2002
Advocate H. J. Heath for the Minister.
Advocate M. J. Haines for the Mother.
Advocate L. K. Helm for the Father.
Advocate R. E. Colley for the Third and Fourth Respondents.
Advocate T. V. R. Hanson for the Fifth, Sixth and Seventh Respondents through the Guardian.
judgment
the bailiff:
1. This was an application by the Minister under the Children (Jersey) Law 2002 ("the Law") in respect of five children of the mother and father. The children are aged between 16 and just over a year. More details about them appears below because each child of course comes to be considered separately. The family have been known to Children's Services since 2001, but these, and related, proceedings were not commenced until December 2016. On 7th December that year, the Court (Commissioner Sir Michael Birt) granted an emergency protection order in respect of Abbie, and declined emergency protection orders in respect of the remaining children. In January 2017, the Minister applied for interim care orders in respect of the other children; the application for an interim order was adjourned, but a number of directions were given for the preparation of child and adult psychologist reports, a dual drugs and alcohol and psychiatric assessment in respect of the father, and hair strand testing. On 29th June the Court granted leave to the Minister to place Abbie in an off-island therapeutic placement, the medical evidence clearly establishing that that was necessary. In July, the Court granted an interim care order in respect of Andrew, and also gave its approval to the interim care plan whereby Andrew would be placed outside the Island on an interim basis. There were difficulties with that placement and an application was made on 12th September for Andrew to be returned to the Island, but that application was unsuccessful in the sense that it was adjourned to the final hearing, at which time the application was not renewed. Subsequently the Court sat to hear the Minister's application for a final care order in respect of Andrew, Abbie and Rory, a supervision order in respect of Finlay, and notwithstanding the Minister's contention that threshold had been passed, no order in respect of Owen. Those applications were heard over six days between 13th and 23rd November. On the latter date, final care orders were made with reasons reserved in respect of Andrew, Abbie and Rory, and the case in respect of Owen and Finlay was adjourned. On 27th November, a supervision order was made in respect of Owen and a care order in respect of Finlay, with reasons reserved. This judgment contains those various reasons.
Threshold - Owen, Finlay, Andrew and Abbie
2. There was no agreed threshold document. The Minister's threshold document was to the effect that Owen, Finlay, Andrew and Abbie had suffered, and Rory was likely to suffer, significant harm as a result of the care provided to them by their parents. The Minister contended that all four of the older children had throughout their childhoods displayed aggressive, sexualised and uncontained behaviours as a result of being exposed to neglect, domestic violence, drug and alcohol misuse and inconsistent levels of basic care. The parents accepted that threshold was passed, but on a different basis - nonetheless their threshold document was to the effect that Finlay, Andrew and Abbie had suffered significant harm as a result of the care provided to them by their parents. The particulars, or examples, of exposure to harm were not as detailed as appeared in the Minister's draft threshold document.
3. Given the argument of final disposal, it is appropriate to review the nature of the evidence which we had before us. It included a very large amount of documentary material, including a chronology of events; a number of statements filed in the proceedings on behalf of the Minister; a final statement of the social worker Nikki Nnochiri dated 9th October, 2017, with care plans for each of the five children; three reports from the Guardian, to the last of which was annexed a series of extracts from the Children's Service files over the period from 2001 onwards; draft statements from Owen and from Finlay, details of which appear below; a drug and alcohol report in respect of the father's alcohol and substance misuse; a number of expert medical reports - a dual diagnosis (substance misuse and psychiatric) report by Dr Tanya Englebrecht on the father, a clinical psychology report on the Children and the parents from Dr Mair Edwards with a formal addendum and supplementary advice; a psychological report by Dr Laura Posner; and a mass of further information in written form including many internal reports generated in the Children's Service in respect of one or more of the Children; supervision notes in respect of social workers employed in the Children's Service, provided by consent on this occasion only without any precedent being agreed by the Minister; contact logs and foster parent notes and much other documentation as well. In addition, we had the oral evidence of Ms Nnochiri, the social worker, Ms Emmy Lindsey, manager of the Fostering and Adoption Team, the Head teacher of School A, Dr Edwards, the mother, the father, the Guardian and Dr Englebrecht. It is fair to say that most of the oral evidence which we heard was not directed at threshold but rather what if any orders ought to be made in respect of the Children, albeit that in the course of giving their evidence, both the mother and the father accepted that all four older children had suffered significant harm as a result of the care which they had been given by their parents falling short of that which should reasonably be expected of them. In so far as the mother was concerned, these tended to be rather generalised admissions. She said:-
"I do accept parenting of our eldest four children was not good enough. I struggled - I was on my own."
4. When he gave evidence, the father said that he accepted that in the past - before March 2016 - he and his wife had shouted at each other in the presence of the children. He said that since then there had been much less arguing. He agreed that the children had seen sexually explicit material on the computer and that they must have heard him talking "adult stuff" to his friends. He agreed that Dr Edwards was right when she said that a child suffered insecurity in his or her relationship with his or her parents as a result of fighting between them and he added "It's terrible, it really is. I have to live with it".
5. We will refer to some of the detailed factual findings in the course of the statements in relation to each child when considering what order ought to be made, but we make it clear that we have no doubt at all that threshold has been passed in respect of the four older children in the following respects.
6. The chronology has been largely unchallenged. It shows a number of incidents of domestic violence, the first occurring approximately one month after Owen was born. The father had been using alcohol, and punched the mother in the mouth in the course of an argument whilst she was holding Owen. A second incident occurred some three months later. Again the father had been using alcohol, and on this occasion the mother was taken to the Women's Refuge. A third incident occurred in December 2002 when the father refused to allow the mother and Owen into the family home. Further incidents followed in June and July 2003, and again later in September, October and November 2003. In March 2004 the mother alleged that the father had been drinking, using drugs and had threatened to kill both her and the children. The domestic abuse continued over a number of years. We note the chronology shows that on 24th May, 2008, neighbours reported an assault on the mother in front of the children, and the father was arrested. The mother had a black eye, bruising to her arm and red marks on her cheek and neck. During the course of a home visit on 28th May the same year, the children were seen in the presence of the parents. Owen stated that the police were fighting with his father and were going to spray him with gas. Finlay stated that his father had hit his mother and he pointed to her black eye.
7. There was an incident in July 2008, when the father and mother were shouting at each other in the street. Both Owen and Finlay were present in the car adjacent to this argument between the parents.
8. On 17th August, 2010, Finlay told a member of staff at School B that the father had grabbed him around the face and squeezed his arm in the door. He did not wish to make a formal complaint, but he was adamant as to how the bruising on his face had occurred. The parents denied that they had been responsible. On 21st May, 2015 School A reported in relation to Andrew that he had told staff members that his father had been angry because some money had gone missing. "Daddy pushed over the table and chairs. Things smashed including his juice. [Andrew] said it hurt him and mummy's eye. He said mummy was shouting and Finlay was swearing at Dad to make him stop. Mum took him and his sister to Nan's house where they found some money and took it back to daddy. Daddy was happy when he got the money."
9. On 15th September, 2016, the Head teacher of School A told us how Abbie had been brought to school by the father. At home time, when the mother arrived to collect her, Abbie became visibly distressed and screamed "I will fuck kill you" at her mother. She also said "I don't want daddy to come to school, I fucking hate him". She repeated whilst going under a table that she would not go home. Abbie said to her mother "You big fat bastard", "You big fat winey bitch", "You fucking cunt". Abbie was five years old at the time. We are satisfied that the language that she used on that occasion was language which she had heard her father use to her mother.
10. When the mother gave her evidence, she said that her cousin Evan had assaulted her at her mother's house, in Abbie's presence. There was another incident when both Abbie and Andrew were present where Evan shouted at the mother in Parade Park. When she was 38 weeks pregnant she said that he struck her in the face. Her sister, Evan's mother, she said had sent her death threats and in 2016 apparently her sister had been convicted of stabbing someone in the back. This was generally the background against which the issues around Evan built up leading to her husband, the father, assaulting him. The mother told us that she was constantly looking over her shoulder, whether for her sister or for her sister's son Evan.
11. These are just some of the examples of violence which appear to have arisen according to the papers before us. We are satisfied that the father, who suffers from schizophrenia and has not always taken regularly the medication which is necessary for that condition, is prone to aggression, particularly if he has also been consuming alcohol. Dr Englebrecht told us that the father has a history of both substance and alcohol dependency. He came into contact with heroin in 2003 and quickly moved on to daily injecting. At that time, his use of alcohol decreased considerably. He has not used heroin since 2013, but the use of alcohol has increased - he drank large amounts of whisky daily in 2014 and 2015 and at the start of 2016 his use of alcohol had escalated to approximately 450mls of whisky every day. It is said that he has improved considerably since then, and certainly the results of the hair strand and blood test taken on 29th March, 2017, showed that although he had consumed alcohol excessively some 3 to 4 weeks before the blood sample was taken, there was no evidence to suggest chronic or excessive alcohol consumption in the four to eight months before sampling.
12. It is often difficult to attribute a child's sexualised behaviour to anything specifically done or not done by his or her parent. However one can look at sexualised behaviour on the part of children and, where that exists, conclude that either the parents are responsible for that sexualisation directly, or they are responsible indirectly by not protecting the child from exposure to the conduct which causes it. The notes of Nursery School C (later School A) showed that when Owen was about four years old, he demonstrated sexualised behaviour towards other children, including being found in a shower, naked and aroused, having pinned another child against a wall. The Head teacher of School A told us that she thought this had been written up by either the Deputy Head, or one of the teachers. Another incident occurred when Owen was five. He was reported as having put his hands down a female child's underwear. There was another incident in May 2005 where Owen was found naked in a toilet with another girl. One of the children said they were "doing sex". The Head teacher of School A also explained how Finlay, when aged seven, had on occasion displayed aggressive behaviour and foul language, and in the course of kicking his teacher, had raised his third finger at her. Probably the most extreme example of sexualised behaviour came from October 2016 onwards in the case of Abbie. She began to run away from school and started to behave in an extreme manner by removing her clothes, initially shoes and socks and then all clothing, making highly inappropriate comments and engaging in extremely distressing behaviours such as displaying her bottom and putting her hand in her vulva and telling her mother to smell her fingers. She was aged five. It was that behaviour, amongst other things, which led to Commissioner Sir Michael Birt granting the emergency protection order on 7th December, 2016, and the Court making an interim care order on 3rd January, 2017.
13. The mother had no explanation for the sexualised behaviour on the part of her older children. She recognised that it had happened, but she could not understand why it had happened. The father similarly was not entirely clear how things had arisen but he did accept that the children had seen some sexually explicit material. He said that the parents had not known this at the time. He thought that although they had put the appropriate controls on the children's i-Pads, the children had possibly been able to use Siri to call up the game "Dead pool", which seems unlikely to us. It seems to us more likely that the father had been using or accessing sexually explicit material himself, and that the Children either saw this or, as the Father put it, "They must have heard me talking adult stuff to my friends".
14. It is clear from the chronology that the home conditions have been reported by social workers and health visitors over the years to be unhygienic, dirty, cluttered and at times unsafe for the family. There have been times where the house has been kept clean and tidy, but regularly there have also been hygiene issues.
15. By way of example of the above, in August 2014, the family's General Practitioner raised concerns that the home environment was unkempt, cluttered and grimy. As a result the Children's Service completed an initial assessment in November 2014. Concerns were raised with the parents on the basis the home conditions were unsafe and unhygienic for the children to live in - the home was observed to be cluttered and littered with empty cans of drinks, food wrappers, plates, glasses and cutlery thrown on the floor in every room, lighters left in reach of the younger children, bicycles and other items obstructing the back door in the hallway and the fuse box left uncovered. The staircase was littered with drinks bottles, empty cans and food wrappers, increasing the risk of children or adults tripping and falling down the stairs. On many occasions, the parents were given advice about the importance of keeping the stairs and hallway clear of rubbish to prevent accidents, but that advice was not consistently implemented.
16. Weekly or fortnightly home visits were carried out between November 2014 and April 2015. On each occasion save the last, the Children's Service raised concerns with the father and the mother as regards the home environment being unsafe and unhygienic. There was some temporary improvement but in May 2015, the Children's Service were contacted by the property agents who expressed concern in relation to home conditions and the welfare of the children following a home visit which they had conducted. The agents informed the Children's Service that the parents were in breach of their tenancy agreement by failing to keep the property in a good and safe condition - if they did not improve, they were liable to be evicted. Following this visit some improvements were made.
17. Information provided by School A highlights that recurrent head lice had been an issue with Abbie since the beginning of her attendance at nursery, and it remained a concern until June 2016. The head teacher of School A told us that she had worked with the family since 2010. It is not normal school practice to send a child home because of head lice but on one occasion Abbie came into her room and the head lice fell from her head onto the table. They were large, whereas typically they are small. At one point, Abbie rubbed her head on the seat of the chair, as the itching was so bad. The head teacher of School A examined her head and found it covered in sores. Abbie saw her general practitioner and the nurse, and was given antibiotics and treated for head lice. It was plain that they had been allowed to grow untreated for some time, which is symptomatic of neglect.
18. In all the circumstances we are satisfied that the level of care provided by these parents in respect of their four older children falls well short of the care which it would be reasonable to expect a parent to give to a child.
19. There is considerable evidence of these children suffering harm. Owen has been in trouble with the police - this seems to have started as long ago as 2013, and it continued until he was placed on probation in 2016 for a grave and criminal assault, arson and attempted robbery. However since the end of 2016 he has not been in trouble with the police and that is put down to a new relationship which he has formed with a girl.
20. At his request, the Court agreed to see Owen in private - he was accompanied by the guardian and by Advocate Colley. The reason he wanted to see us was to explain why we should not make a care order in respect of Rory, his youngest brother. He told us that things were much better now than they had been when he, Owen was growing up. Of itself of course, that suggests some support for the view that he had suffered significant harm during his early childhood. We were struck by what a nice boy Owen can be. Nonetheless, his overall presentation was nervous in the extreme, agitated and unsettled. Making every allowance that we can for what one might expect in terms of nervousness in attending on unknown judges in private, nonetheless the nervousness which he displayed was not in our view a nervousness of the Court, but a central core nervousness as part of his personality.
21. Dr Edwards considers that Owen has a diagnosis of ADHD, epilepsy and dyslexia. He is not taking any medication at present. She considers that he is an individual of low average/borderline cognitive ability with a specific learning difficulty and she thinks that his diagnosis of ADHD might indicate that his education had been affected by concentration and attention difficulties. She herself found it difficult to hold his attention, and she attributed this not only to the ADHD diagnosis but also possibly to attachment difficulties and hyper vigilance.
22. We have no doubt that Owen has suffered significant harm in the course of his upbringing as a result of the parenting which he has received.
23. At his request, we also saw Finlay in Chambers, again in the presence of the guardian and Advocate Colley. He presented very differently to Owen. He was relatively calm and measured and he did not speak at the same frenzied pace as his brother. His message was essentially the same - he wanted us to make no order in respect of Rory, and leave him with the parents. We were in no doubt that this was a message which Finlay had been asked by his parents to pass on to us.
24. Dr Edwards considers Finlay to be an individual of low average cognitive ability who may well have some literacy difficulties. However he has recently made some progress and acknowledged, particularly with mathematics, that by changing his attitude school life can be more enjoyable. Like Owen he has engaged in sexualised behaviours at an early age. Dr Edwards considered that he was currently presenting as functioning reasonably well, but was vulnerable to developing future mental health problems. However, an addendum report indicated that from the information provided by the school, Finlay presented with clinically significant emotional and behavioural difficulties. She concluded that it was his anxiety and need to avoid that leads to his behavioural difficulties. She thought he would benefit from an individual intervention to assist him to manage his anxiety in a more adaptive manner. That conclusion seems to us to support the view that he has suffered significant harm as a result of the parenting he has received.
25. As to Andrew, the school noted in May 2015 that he presented as 'tired, overly emotional, his behaviour is erratic and he struggles to manage his feelings. He can't accept the needs of others, take turns, and he won't share resources. If he is not the centre of attention he doesn't like it, he likes to control and manipulate. Andrew's hygiene is extremely poor, his fingernails and teeth are not clean nor are his clothes. Everyday there is an unpleasant smell at times this is overwhelming.' In October the same year he demonstrated extreme behaviours and was suspended from school, having been heard swearing and threatening to kill others, damaging property and physically assaulting the Deputy Head teacher by kicking him. Later reports from school suggest that he continues to be unable to self-regulate his emotions and he struggles with friendships. He has poor self-esteem and a strong tendency to assume that others are talking about him in negative terms and making fun of him, even when they are not. In his associations with others, he has been observed to be emotionally distressed, crying, hitting, punching, stating that he wants to kill himself and go into care and that nobody cares about him. He says he hates the social worker and does not want to be taken away. He is clearly very confused and as Tania Tinari, team manager at the Children's Service said in her witness statement, "Andrew is not emotionally safe, as is demonstrated by their lack of ability to support [him] at this crucial time in his life and in the fact that they have enabled him to become fearful of adults who they have led him to believe may present a risk to him and his family.'
26. Andrew was sent off island following the grant of the interim care order in July. This would have been traumatic for him in any event and in those circumstances, we do not necessarily attribute much weight to the assessment of his conduct since then as supporting the view that he has suffered significant harm. Nonetheless, even with that qualification, there seems little doubt from examining the contact logs that such harm has been suffered, and indeed that is clear also from some of the more extreme difficulties he has had with the earlier carers with whom he lived in England.
27. As to Abbie, we are in no doubt at all that she has suffered significant harm as well. We have touched on some of her behaviour at paragraphs 9 and 10 above and also in paragraph 12. There is also other relevant evidence before us as to the effect of the parenting deficits upon her. There is no need to go further in this judgment.
28. As regards Rory, the arguments raised by Advocates Haines and Helm suggested that the standard of parenting had improved considerably. Whereas it was more or less accepted, albeit not as to detail that there had been parenting deficits for the older four children, both parents asserted in their evidence, and through their counsel, that things were now different. If that were so, then it was asserted what had happened to the older four children would not be relevant to the threshold question in relation to Rory. By contrast, the Minister's case was that there never was any particular difficulty with the older children when they were Rory's age, and the parenting deficits manifested themselves in the years following. Accordingly one could look at what had actually happened with the older four children and reasonably conclude that the same would happen with Rory in a few years' time. Indeed, the Minister's view was that there was some evidence that Rory had already been adversely affected by parenting deficits.
29. Under Article 24 of the Law, the Court, if it is to have jurisdiction to make a care order, must be satisfied that the child has suffered significant harm or is likely to suffer significant harm. It must be so satisfied on the balance of probabilities. It is naturally much easier for the Minister to establish that a child has suffered significant harm than that the child is likely to suffer significant harm at some future date; but it is in principle a legitimate basis for a contention that the track record of parents in raising older children is a good indicator of how they will raise the child under consideration. If that track record is poor, then, unless one can point to reasons why things should be different, that may well provide a good basis for a court to be satisfied on the balance of probability that the same outcome will be experienced for that child. In making that assessment therefore the Court is looking not only at what has happened in the past but also at the psychological make-up of the parents, their reactions to the present circumstances including the way in which they give their evidence and any other relevant features. That is what we have done in the instant case.
30. We take now the question of whether there is any evidence that Rory has suffered significant harm to date, and whether he is likely to do so in the future and whether that is attributable to the care or likely care given to him by his parents falling short of what it would be reasonable to expect.
31. Both the mother and the father gave evidence before us. She told us that she had a really good attachment to Rory and she acknowledged that her response to him was better than it had been with her other children. She said she had more support now, and that the father was a much better father to Rory than he was with the others. She was proud that Rory could stand by himself when a number of children at The Bridge of a similar age were not able to do so. She felt that she had never had sufficient support from Children's Services, and the position has not been helped by very many changes in social workers. In addition she felt that the Children's Services have to use her expression "had it in" for her family since she had been a little girl. In any event, however, she took the view that it was very different having one child from having four. She found it much easier to cope with Rory and her husband, the father, was in her view a much better father to Rory than he had been to the other children. He kept an eye on him when she was not able to do so. She agreed that she did argue with her husband from time to time, but she said it had been much better since Rory was born. In cross-examination from Advocate Hanson, she agreed that when she and the father argued, Andrew would often be taken upstairs by Finlay, and that on one occasion Finlay had taken Rory away so he did not hear the argument.
32. She also told us of her difficulties, touched upon at paragraph 10 above, with her sister's child Evan, who has, we are told, a learning difficulty. He is not allowed to see her children. There have been a number of incidents involving Evan - at one of them, Abbie saw Evan assault the mother at her mother's house and the police were called and gave him words of advice. On another occasion when both Abbie and Andrew were present in Parade Park, Evan had again shouted at her (the mother). Again the police were called and gave him words of advice. When she was 38 weeks pregnant, he had struck her in the face, and there had been other incidents as well. Clearly they had some impact because, according to the Mother, Abbie would wet the bed every time she saw Evan and Andrew also has been very upset by him.
33. According to the mother, her sister has sent her death threats. Indeed she was convicted in about October 2017 of an offence of violence or threatened violence, and the previous year she had been convicted of stabbing someone in the back six times.
34. When the father gave evidence he too agreed that arguing between him and his wife had reduced. Since Rory had been born, the family has operated much better together - there was no comparison to what the position was before. He had stopped drinking to excess. He said that apart from the day of his mother's funeral, he had drunk very little.
35. The father agreed he was on probation for a common assault on Evan, which had been committed when he might have had a beer to two. He believed that he and the mother could give Rory everything he needs. He agreed he would put safeguards on Rory's computer and he said he had put passwords on the computer used by Finlay and Owen. The Father denied that he was a violent man or that violence was part of his lifestyle, but he accepted that in the past - before March 2016 - he and the mother had shouted at each other in the presence of the children. At that time he was drinking a bottle of whiskey a day, but since then there had been much less arguing.
36. We have to say that the evidence of the parents led us to conclude that there remained a good deal of violence, whether oral or physical, in and around Rory's life. The fact that on at least one occasion Finlay, who would be expected to understand the difficulties that existed in the household, had taken Rory away from the parents when they were arguing, speaks volumes. We add that although this section of the judgment concerns Rory, we accept Advocate Hanson's submission that Finlay has suffered significant harm by being in effect required to take a general parenting role in seeking to protect Andrew and Rory from harm.
37. The Court had the benefit of a report made by Ms Tania Tinari, a team manager employed by the Children's Service. Her report discloses that on 4th July last year she went to the school to check in with Andrew. He was in a very distressed state, no doubt because his sister Abbie had been removed from the family home. He was very aggressive towards Ms Tinari, throwing chairs, fans and ornaments, and kicking and punching both her and the head teacher. Because he had been so upset, he was informed that Ms Tinari would need to call his mother to come and collect him. He became very distressed again saying that he wanted to stay in school and not go home. However the mother arrived with Rory in his pram. The mother's arrival did not calm Andrew at all and he became more distressed and upset. Ms Tinari's evidence was that both she and the head teacher witnessed "Rory freeze in his pram - with stiff limbs, clearly waiting for his mother's reaction". Ms Tinari believed that he was expecting his Mother to shout and that he was confused when she did not. She thought that the mother had not shouted only because she was in a professional setting, and that the calm approach is what confused both children.
38. When the social worker Nikki Nnochiri gave her evidence, she described how she had seen Rory show no emotion when his parents shouted at each other. He seems to have normalised it. She drew the conclusion that the fact that he shows no problems at the moment does not give any comfort for the future, as he gets older.
39. In cross-examination Advocate Haines asked Ms Nnochiri whether Rory had suffered any harm up to today. The answer given was that she accepted he was not at risk of imminent harm but in the longer period she thought he was.
40. Dr Mair Edwards is a clinical psychologist who has particular expertise in the psychological assessment of adults, children and young people in relation to family situations. We had the advantage of reports from her on this family, and also of hearing from her with some live evidence. Her view was that Rory might be alright at the moment, although he was a bit clingy. She concluded that while he may seem alright, as did the other children at his age, it is quite possible that he is showing early anxiety in his attachments. She was asked particularly to comment on the evidence of Ms Tinari. In her expert view, young children tended to freeze in order to dampen down their response. It is a way of dealing with stress. When they freeze in anticipation, you know they have been exposed to something which has caused stress in the past. If he is used to shouting, it is what he will expect. On the point as to whether things would be different with the parents looking after only one child, in her view it was difficult to say it would be any different. Looking at the history of the family, and the fact that Finlay had already started removing Rory from the arguments which occurred in the family home and at the indications of continuing alcohol abuse by the father, her view was that there was a high probability that Rory would develop similar problems to those of his siblings. In cross-examination, Dr Edwards was challenged on her analysis of Rory freezing - surely, suggested Advocate Haines, he would have frozen on other occasions, but there was no evidence of that. Dr Edwards thought he probably had not at an earlier stage learned how not to respond. A baby could sense his mother's anxiety and hence he would not have reacted or felt threatened when with her at The Bridge, because she was not anxious.
41. Dr Edwards also noted that Rory was constipated for two weeks after birth because his bottles were not properly made up; and he was the fifth child. She thought it was surprising that by that stage the parents were not able to make up bottles of milk appropriately. I put to her at the end of her evidence a summary of her evidence:-
(i) The parents have shown not good enough parenting in relation to the first four children;
(ii) It is too early to see signs of that with Rory, but one could expect that to emerge when he was two to three years old; and
(iii) In her view it is unlikely that the parents could change.
42. Dr Edwards agreed that that was an appropriate summary of her evidence.
43. We heard also from the Guardian Ms Green. In her view the evidence of Dr Edwards showed that the parents demonstrated no insight in to their need for change. The Guardian had been concerned at the absence of a parenting assessment and she wanted to hear from the parents in order to assess for herself whether they were likely to change. She agreed that there was still a block in the mother's thinking in this respect and, like Dr Edwards, she did not think that it was clear that any therapeutic interventions could work within Rory's time frame. Ms Green gave evidence that she would sometimes make an appointment to see the parents and sometimes would call unannounced. On 2nd November, she had arranged a lunchtime meeting and attended at the family home and rang the bell. Eventually it was answered by the father, who had a black eye. He said he had had a bad day and that the mother and Rory were not in. She was apparently at a mother and baby group.
44. During the two to three minutes Ms Green was at the door, not invited in, she heard Rory crying. After that the mother came to the door and she (Ms Green) asked her why the father had said what he had. The mother said the father did not know she was in and she also told Ms Green it was not a convenient time for her to come in. As a result, Ms Green did not see Rory that day. The incident is concerning because it shows that the father was prepared, for whatever reason, to be untruthful with the Guardian when she came to see Rory, and the mother was defensive in relation to the father's position, and unwilling to let the Guardian in. Accordingly we do not know why Rory was crying. Perhaps there is an innocent explanation. Perhaps there is not. Regrettably, the incident is illustrative of the attitude of the parents towards professionals whose job it is to help both them and their children.
45. Ms Green told us that she went back over the Children's Service files before she gave her evidence. She wanted to determine for herself whether the parents were being truthful or not. She recognised that she received messages from them which they thought she wanted or ought to hear, and she thought the files probably showed a slight manipulation of professionals engaged with the family. In her view, Rory was presently doing alright, but there had been fifteen years of trauma and neglect in the family, and she felt she could not trust the parents. In those circumstances she recommended to the Court on Rory's behalf the orders which the Minister was seeking but she agreed it was a really difficult case to analyse. Neither she nor the family support worker had seen Rory freeze. She noted Ms Tinari's interpretation of the incident where that occurred, and she agreed that that could be consistent with shouting or violence in the house. However, she had not seen the incident and, as she was not there, she could not really comment on someone else's interpretation.
46. The Court considers that Rory has suffered harm already as a result of the care given to him by his parents falling short of that which it would be reasonable to expect a parent to give. The harm is illustrated by the freezing incident which we have described; by Finlay having to take him out of earshot of the parents when they were arguing; by the violence which has surrounded this family even during Rory's short life to date; by the father's drunkenness at home on 7th December and by his being present when the father assaulted Evan; and by his bottles not being made up properly. Whether those individual incidents are such that one can say Rory has suffered significant harm is a more difficult question, and the evidence in its totality probably suggests otherwise. Nonetheless the fact that we are quite satisfied he has suffered harm to date is part of the evidential matrix the totality of which in our view justifies the conclusion that he is likely to suffer significant harm in the future and we now go on to explain why.
47. As we indicated earlier, it is in our judgment a legitimate approach to take to say that the significant harm which the four older children have suffered as a consequence of their parenting is likely to be repeated unless something significant has changed. We accept the expert evidence of Dr Edwards. She said that the mother presents as having competence and applying what she has learned and yet there are cycles of problems when the children reach the age of two to three years and become more independent. The history shows that she makes the choice of putting her husband first; she minimalizes problems and finds it very hard, even now, for example, to put Abbie's problems down to parenting deficits on her part. There had been a lack of curiosity as to why Abbie behaved as she did, which was troubling. Indeed it was quite shocking that the mother did not show horror at what was happening to her children, and in her view neither parent demonstrated insight nor particularly any wish to have insight. As Dr Edwards put it, insight is the first thing that is needed, because without it, change is almost impossible. If a person has insight, then in order to assess whether change is likely, one has to make an assessment as to whether there is a willingness to change. It seems to us that what she was really saying was that here, in her view, the parents did not get over the first hurdle.
48. She certainly told us that the parents' reaction to the Guardian's unannounced visit in November was very worrying and indicative of non-compliance with professional agencies, and that was absolutely demonstrated by all the documentary evidence in the case. In cross-examination, she said that the essential problem with this family is that the professionals could not rely on the mother's reporting of what was going on, as opposed to things being observed by the children. The history showed that the mother had no difficulty in contacting professionals, but she did not engage with them routinely. Although the mother presented as having good mental health, she has indicated poor adaptive functioning in 2008, which could have been associated with a depressive episode, and her relationship with the father gave an indication of personality traits seen in a dependant and avoidant personality disorder. This was confirmed by the more formal psychometric assessments which she asked the mother to undertake - for example, when completing the questionnaires on the children, she failed completely to present a realistic, objective picture of the children and their needs, and instead presented them as not experiencing any real difficulties, although clearly that was not the case.
49. As we indicated earlier, we consider the mother to have an avoidant personality. All the problems which exist are always someone else's fault. She will not engage with professionals properly, and has no time for the Children's Service. It does not really matter to this extent, whether she is right or wrong in blaming the Children's Service for what has gone on in the past, because the test for us to day is not to find fault if fault exists, but to form a view as to what is in the best interests of the child and whether those interests are likely to be accommodated by a satisfactory liaison between mother and the Children's Service; and we are satisfied that no proper liaison will take place.
50. The father's state of mental health is not good. He has been diagnosed as having schizophrenia and from time to time has been on anti-psychotic depo-medication and also anti-depressive medication. He has been a long-term abuser of drugs and alcohol. He has been out of work since 2010. His alcohol and substance use almost certainly has had a negative impact on the prognosis of schizophrenia; such substances are likely to cause depression and psychosis, quite apart from the problem that drugs and alcohol can interact with the anti-psychotic medicines which he takes. He has a history of opioid dependence syndrome, and more recently has suffered with alcohol dependence syndrome, which is characterised by a strong desire to drink alcohol, difficulties in controlling its use, persisting in its use despite harmful consequences, giving a higher priority to alcohol use than to other activities or obligations, showing an increased tolerance of alcohol and having a physical withdrawal state. When seen by Dr Englebrecht, the psychiatrist, in April 2017, he stated he was then consuming up to six cans of Carlsberg Export lager up to twice a week. That would indicate, in her view, that he was then engaging in the harmful use of alcohol, that is regularly binging on alcohol rather than drinking dependently. Both he and the mother say that he now has his alcohol use under control, and has not been drinking so much. He acknowledged to Dr Edwards that a few years ago he had a serious drinking problem, drinking half a bottle of whiskey a day but the evidence summarised in paragraph 11 above shows that there has been some improvement. Dr Edwards considered that of the two of them, the father showed more insight than the mother, and he certainly recognised that he had contributed to the problem. However, the alcohol difficulties which he had remained. It has been important for us to form a view of the risk of further alcohol abuse, not least because the mother said in her evidence that the father had not drunk in the family home since Rory had been born. When the father gave his evidence, he said that he had had four cans of beer three times since Rory was born - which was a very precise piece of evidence - and that that had followed the death of his mother last November. He said he was not drinking whiskey at all any more, except that he had had some on the day of his mother's funeral. He acknowledged that drink and illness went hand in hand.
51. He agreed that he had assaulted Evan. When that occurred, he probably had had a beer or two. He was on probation, and he found the alcohol awareness course useful.
52. Given the long history of drinking and substance abuse problems the father has had, it is inevitable that one is cautious about any statement that he has now overcome the problems. That is particularly demonstrated by an incident which started on 7th October, 2017, when, at 10.50pm he sent an unsolicited and obscene text message to a female advocate then representing him. The message included the statement "BTW I am drunk AF ...". The text message was reported to the police, who spoke to the father about it. He was very dismissive of the whole situation, but the incident would tend to suggest that he had been drinking that night to a degree that caused him to lose inhibitions. When he gave evidence he was asked about it. He denied that he was drunk at the time, even though the text message indicated that he then said he was, and he said that he had sent the text message because he had been encouraged to do so by some friends with him. The Court does not accept that explanation and though he might not have been incapable, we consider he certainly had been drinking significantly on the evening in question.
53. We also considered the Father was generally unreliable in the witness box. His explanation that the psychiatric nurse did not come in October 2017, thus accounting for his not taking his anti-psychotic drugs at that time was unconvincing, and Dr Englebrecht noted that he had shown in that period a decrease in motivated self-initiated purposeful activity, one of the negative aspects of schizophrenia.
54. It is said by Advocate Helm that the father's mental health has become stable, his substance misuse no longer takes place and that his alcohol misuse is under control. It is said that the father is more hand on in his contributions in the home and to Rory. We are not satisfied overall that those things are established.
55. Advocate Haines put to us that there were 18 changes from the position which appertained when Owen and Finlay were young. He said that there was only one child under three at home, which of course is true. He said that the mother was not in full or part-time employment, but as the Guardian pointed out, that was also true when Andrew and Abbie were young. He said that the mother was undertaking courses, but she did that previously especially over 2004/2005. He said she was attending play groups, but of course she also did attend community groups previously. We have considered all 18 changes which were put to us. We will return to them in our assessment below.
56. Advocate Haines also put to us a document setting out 19 previous concerns in relation to this family, and a table in which he asserted the previous concerns were no longer current. We did not entirely accept this table. The first of those previous concerns was the question of hygiene, and it is true that that is not currently a concern. Nonetheless, hygiene has been a concern off and on for the last 17 years, and while there have been times when it has not been a concern, the problem reasserts itself. He contended that domestic violence in the home was no longer a concern, but we think that is not true, and that the evidence persuades us that there is still an element of domestic violence, even if it does not include physical violence. He contended that there was no longer any possibility of exposing the children to adult content in terms of pornography, but we are certainly not satisfied that that is the case, nor are we satisfied that there is no current concern about stress, anxiety or worry in the home, and we do not agree generally that there is evidence of sustained change.
57. The very extensive documentation shows that there are times when these parents operate - just - to a "good enough" standard of parenting. The fact that they may be operating in that way at the moment needs to be put in the balance against the fact that they have done so in the past but there have been relapses which have caused significant harm to their eldest four children. It needs to be weighed against our finding that by their parenting they have already caused some harm to Rory, albeit not necessarily at this stage manifest significant harm. The Children's Service records for 2003 in relation to Finlay show that a referral was made from the police on 9th July that year concerning a domestic incident between the father and the mother on 7th July. There were concerns expressed regarding the father's alcohol use and the fact that he had not been taking his medication on a regular basis. The report indicated that the parents were willing to cooperate and engage with the assessment. Finlay was described as a healthy baby and an easy baby. He was clean, tidy and appropriately dressed. The flat in which they lived was clean. There were no concerns regarding the mother's parenting of her children and the main area that needed further development was the area of stimulation.
58. A report in 2005 showed that the functioning of the family was described as changeable. There were periods of calm which are then interrupted with crises which can sometimes be related to issues involving the extended family and requests for financial support. In March 2005 there were concerns over the home conditions and safety issues within the home, over domestic violence between the parents, over hygiene, both Owen and Finlay being described as dirty and unkempt; over the mother denying professionals access to the family home, over Owen's behaviour at school showing aggression to a female child, over the father's alcohol use and mental health, and his inability to parent his children, and the mother's personal hygiene. It appears that during 2005 some of these issues improved, but as has been indicated above and is obvious from the chronology, there were further relapses.
59. It is possible that the parents are currently in one of those periods of relative stability, but in our judgment, the probability of Rory being likely to suffer significant harm in the future is high for these reasons:-
(i) History shows that at the age Rory currently is, there were few problems for any of his older siblings, but those problems have developed as they became more independent.
(ii) The father has an established alcohol dependence disorder, and the evidence we have heard suggests that he has not overcome this particular problem, even if there are only four such occasions - when out drinking with friends when he sent the text message, when he assaulted Evan, when his mother died and on the day of the funeral. Each of those incidents may be individually understandable - and certainly the last two - but understandable or not, they show a person who is not easily able to overcome the alcohol disorder from which he suffers.
(iii) Although the parents are able to say the right things on occasion, we are not satisfied from hearing them and watching as they gave evidence that they really mean them. They know what they ought to say but we are not satisfied that they are truly committed to meaning what they say. Crucially, the lack of insight which Dr Edwards considered in her evidence is in our view borne out in these parents. Although the father was able to tell us that what he has done to the eldest four children is terrible, we are not wholly convinced that he means it. As to the mother, her avoidant personality coupled with the lack of insight persuades us that she is not on the road to understanding what has gone wrong with the care of the first four children, and therefore it is highly unlikely that she will avoid those problems with her fifth.
60. For these reasons we are satisfied that the threshold is passed in relation to Rory and we now go on to consider the welfare test and the orders which potentially we might make.
61. Owen was aged 16 years and 2 months at the date of the hearing and no doubt for that reason, the Minister contended initially that we should make no order in relation to him. On the 6th day of the hearing we indicated that we were minded to make a supervision order in relation to Owen, and the matter in relation to him was therefore adjourned until the following week when a revised care plan was produced for our consideration, approved and the supervision order was duly made. Our reasons for that follow.
62. We have no doubt that Owen has suffered significant harm as a result of the upbringing he has had so far. Aged 16, adulthood for him lies in the next room. In our view, he needs help to make it there successfully. The challenges of adulthood will include handling relationships, obtaining and keeping employment, finding appropriate housing and maintaining it in a proper state, dealing with hope, excitement, success, loss, rejection and failure - and in all things, maintaining some self-esteem which is so essential for a stable life.
63. Dr Edwards thought that at his age, Owen needs insight as to his own problems. He has the capacity to build a relationship with a person who can help him, but the difficulty for him at present is getting the right person to him at the right time. Given all that had happened in his life so far, she thought it was unlikely that a social worker could do it. What was needed was a person used to dealing with young offenders and, in answer to a question from the Court as to whether it mattered whether that person be male or female, she said that the important thing was that it should be the right person, and not the right gender. She was asked in cross-examination whether she thought Owen was independent and self-reliant. Her answer was that he has known from an early age that he has to be self-reliant and independent, but nonetheless he does not have the emotional strength to deal with things. She was asked whether he was over defensive and needed help in terms of anger management. Her response was that he acknowledged a level of anger in his responses in the parents' bundle. Undoubtedly he needed help and the principal difficulty was going to be to engage him in the work that was needed.
64. Dr Edwards' expert report chimes with our lay assessment of Owen's needs from the meeting which we had with him in chambers. As we indicated at paragraph 20, he is clearly capable of being a charming young man. His nervousness, agitation and unsettled demeanour absolutely strikes a chord with the evidence which Dr Edwards could give as a professional psychologist. Owen has had his own difficulties including a spell of young offending. It is hugely to his credit that he has made strenuous efforts to overcome those particular problems and to undertake the course at college he has. The current relationship which he has with his girlfriend is unquestionably also a positive feature in his life.
65. Owen made it plain to everyone that he not only wanted to continue living at home himself, but also that he thought the family should stay together. Loyalty to the family is an admirable characteristic, even if, as in this case, families are not always able to provide everything needed for the successful transition into adulthood. At some point he will need to learn how to reconcile family loyalty with an acknowledgement that the family has not always provided to him the support which he needs. Following our indication that we were minded to impose a supervision order in relation to Owen, the Minister provided an amended care plan. We have reviewed that plan and we agree with it. It is particularly important that the mentoring which he needs at this stage does not come from social workers or the Children's Service, because it stands such a low chance of success. It may well be that if it is possible, some mentoring through the Probation Service informally would be the most help, not least because Owen has found the work with a Probation Officer to be helpful in the past. What is clear is that at his age, nothing by way of remedial work with Owen stands a chance of success unless it has his approval. The Minister may also wish to give some thought to what if any arrangements can be put in place to support Owen in young adulthood, once he has attained the age of 18, because his vulnerabilities are likely to remain for some years beyond attaining that age.
66. Advocate Colley, appointed to act for Owen, thought that arguably he needed some therapeutic support to understand what had happened to him during the first 16 years of his life. We agreed with that and we think it would be helpful if the Minister could fund some private psychological help for him in that respect, assuming he agrees.
67. For these reasons we considered that no order was the wrong step and that the supervision order was appropriate, and we agreed the terms of the draft put before us.
68. Finlay was aged 14 years and 8 months at the date of the hearing and accordingly his views also are of critical importance to whatever order is made. The Minister initially suggested a supervision order in relation to Finlay. At the time we adjourned, giving an indication of what we were minded to order in relation to Owen, we indicated that we thought that we would probably be minded to make a care order in relation to Finlay and when we returned, we did so.
69. Advocate Colley, appointed also for Finlay, told us that both young men were immensely reliable - they would always turn up on time, were engaging and showed a sense of humour. She confirmed that they were incredibly loyal to their parents, a point which we have noted already, and that they loved their siblings very much. They both have a huge distrust of Children's Services, for reasons of history, and perhaps some social workers in particular. She suggested that Finlay might be the child who everyone forgot about. He was very sensitive, but it is possible that he may have mental health issues without some psychological support from CAMHS. Neglectful parenting of him is clear from the chronology.
70. Dr Edwards in her first report on Finlay did not identify any behavioural or emotional difficulties affecting him, perhaps because the Mother presented him as having less problems than the majority of his peers. However, in her Addendum Report and in evidence before us, Dr Edwards developed her view and agreed that Finlay was presenting with clinically significant emotional and behavioural difficulties and it was critical to assist him to regulate his emotional responses so that the transition into GCSE work could be made successfully. She thought that it was his anxiety and need to avoid that leads to his behavioural problems, although they may be exacerbated by learnt anti-social attitudes. Although Finlay was functioning better than in the past, she thought he was vulnerable to mental health problems, particularly those related to anxiety, and providing him with an intervention to help him manage that anxiety was likely to be very positive. It would also assist him with making sense of his younger siblings being removed from the family home. For this reason, making no order would not be appropriate - it would provide him with no support.
71. Finlay clearly wants to continue living at home. He has also expressed the view that the family should be kept together. It is apparent from our decisions that this will not happen, and we are anxious that Finlay will need help to get him through that fact. Although he presents as less of a crisis problem, he needs to be released, as Dr Edwards put it, from any feelings of guilt or responsibility for Andrew, Abbie or Rory being removed from the family home. This is particularly so because he provided us, as did Owen, with two quite different statements, the first of which was undoubtedly less helpful to his parents' case than the second. We do consider that his first statement reflected more accurately what the position at home was; but he should take comfort from knowing that it was not his statement that led to our decision. Our decision was based on a great deal of evidence, both in terms of history and in terms of professional assessment. The decision was not based on what he said and he must not blame himself for it. We cannot say it more plainly than that. We hope that his parents have not tried to blame him, but if they have, they are wrong to do so.
72. The Minister's care plan for Finlay is that he should remain at home living with his parents, which is consistent with his views. We agree with that and we note that the draft care order makes provision that the Minister agrees to give not less than 14 days' notice of a removal of Finlay from residence with his parents, save in the case of an emergency. A care order as opposed to a supervision order was appropriate as the Minister should have parental responsibility for him.
73. The care plan is approved. We think the Minister should try to provide Finlay with some psychological assistance to assist him with the family transition and to promote his mental well-being. When Finlay came to see us in Chambers, he agreed that he could benefit from help. We hope that he has not forgotten that, because at his age as well, active cooperation in the help which is offered to him will be important.
74. Andrew was aged nearly 8 at the date of the hearing. He was accommodated in a residential children's home in the UK and it was hoped by the Minister that he would remain there for the time being, at least until his behaviour settled. We have reviewed the care plan, and we approve it and we go on to explain why.
75. Some of the detail in relation to Andrew is set out at paragraphs 25 and 26 above. The reality is that following his being sent off island in July, a number of placements in England broke down. The house where he now lives, is a residential children's home which accommodates six children. It is an environment which is said to provide Andrew with a high level of one to one care, tailored to his needs as highlighted in his care plan. We have had regard to the foster logs as well as the report from the social worker, and we have no doubt that he is in need of care that is consistent, care which provides him with a safe and stable base to enable him to recover from his previous instability. At some point, the Minister hopes to match him with a suitable foster family, but he must first of all recover his equilibrium.
76. There is no question of the Court making no order on the facts of this case, and also no question but that the Minister must have parental responsibility for Andrew. Accordingly we make a final care order in his case, and we have approved the care plan.
77. Abbie was the subject of an emergency protection order in December 2016 and subject to an interim care order in January 2017, and placed off island in June 2017. Her placement in foster care is England appears to have been successful. She has been residing with a single foster carer, and the placement is deemed stable. She does not appear to have any current health issues, and attends a primary school, where she appears to have settled well, and has made friends. Her foster carer is employed by an independent provider which supports its staff in line with its own internal procedures and processes, and as a regulated service provider is regularly inspected by Ofsted. The care plan proposes that Abbie remains subject to a full care order and in the Minister's care until she reaches adulthood, hopefully with her current foster carer. In her report dated 31st May 2017, Dr Edwards stated that Abbie "presents as a child with significant emotional and behavioural difficulties, but this appears secondary to severe trauma". She considered that Abbie had been sexually traumatised and was likely to have been exposed to sexually explicit material. It appears that the behaviours which Abbie has exhibited previously have been managed by her present foster carer with support from her agency. The present placement also has the advantage that some contact with her brother Andrew in the residential placement can continue.
78. The Court is in no doubt that a full care order is needed in this case, to give the Minister parental responsibility and to ensure Abbie's safety until she reaches adulthood. The care plan makes detailed provisions for contact which are generally acceptable.
79. There is no doubt that contact arrangements between the parents and Abbie and Andrew will need to be revised from time to time to accommodate changes in circumstances, but the present proposals are considered by the Court to be appropriate. The only qualification to that is that it has been suggested - and we agree - that it would be sensible for Owen and Finlay to have contact with Andrew and Abbie on their own (i.e. without the parents) from time to time. The revised contact arrangements make that provision. Again, like all contact arrangements in these circumstances, they will be subject to revision from time to time in the future as circumstances change and it will be open to any of the parties to make application to the Court should that be necessary.
80. It is clear to us that Andrew and Abbie have been significantly damaged in their upbringing to date. It seems to be apparent from the contact logs and from the foster placement logs that Andrew and Abbie may yet have information to disclose which will enable the Minister to have a better handle on the problems which they have had to suffer, and this may lead to a different assessment of what is in their best interests in the future, and how those interests might be accommodated. Of course, this will be a matter for the Minister given the fact that the care order has been made in each case. In our view the Minister should be alert to the potential that the further disclosures might have.
81. For children of the age of Owen, Finlay, Andrew and Abbie, relationships have already been formed and for as long as the contact offered does not adversely affect the placements, it is essential that it takes place. As the children get older, they may develop a need for greater contact or for less contact and the Minister will have to consider that according to the resources which are available at the time. We add for the present that we endorse the contact arrangements which are set out in the different care plans and in particular we endorse the desirability of sibling contact without the presence of the parents on at least some occasions. Of course, the desirability of contact must be viewed through the lens of the child having the contact. The arrangements which have been made and which are proposed will hopefully address that issue.
82. The care plan for Rory is that he should be made subject to a care order with a view to seeing a freeing for adoption order at a later date. This proposal gave rise to some legal argument which we now address.
83. The factual position which gives rise to the legal question is this. There has been so far no assessment of parenting of Rory. Advocate Haines described this as a serious omission. He submitted that the proposal contained in the care plan, namely that Rory should be freed for adoption, comes about without any assessment of his current conditions or the way in which the parents have managed his upbringing to date. Furthermore, the Fostering and Adoption Panel, had not yet met at the time of the hearing to agree that adoption was the right answer and indeed no application to the Panel had been made. The Agency Decision Maker had not therefore received the Panel recommendation on which he would subsequently make a decision. In those circumstances the care plan was inchoate. As the Panel was not due to meet for some weeks after the final hearing, this was bound to cause considerable delay in any event. In this submission he was supported by Advocate Hanson, the lawyer for the child. Accordingly it was said that the Court ought not to approve the Care Plan, with its proposal for a freeing order, at this stage.
84. The support in terms of legal authority for this line of argument rested certainly in part on the English case of Surrey County Council v S [2014] EWCA Civ 601. In that case the mother had five children aged 20, 18, 16, 3 and 2. Care proceedings were commenced in respect of the three younger children and final orders had been made by a specialist family circuit judge sitting in the Guildford County Court. The case was not concerned with the order in relation to the 16 year old. The judge at first instance had ordered that the two younger children should be placed under the supervision of the local authority for a period of 12 months so that an application could be made for them to be placed in care with a view to adoption. There are some similarities with the present case in the sense that in Surrey County Council v S the mother showed a reluctance to cooperate with professionals, had a fluctuating emotional state, and there was a likely repetition of the history of her care of the elder children in relation to the younger children's emotional development and well-being - the historical picture in relation to the older children had been bleak, because she had failed to provide proper boundaries for them, neglected them, was responsible for their poor school attendance, anti-social behaviour, drug use and criminality.
85. Although the issue does not appear to have been raised by the parties in that case, Ryder LJ said this:-
"26. I ought not to leave this case without dealing with an important issue that was not raised by the parties but which in my judgment underpins one of the problems in the case.
27. As the judge records, the care proceedings were pursued at the final hearing on the basis of proposed care plans which included placement for adoption. There were no placement order proceedings before the court relating to the two children with whom this court is concerned and to date none have been issued. That is because the local authority's 'agency decision maker' has not made the decision that is necessary to allow such proceedings to be issued. As I described in LB v LB Merton and LB (a child) [2013] EWCA Civ 476, there is a statutory duty upon a local authority to make an application for a placement order in the circumstances set out in section 22 of the 2002 Act. By Section 22(1)(c) and (d) those conditions were met in this case i.e. the local authority considered that the threshold conditions in Section 31 of the 1989 Act were met and the local authority was satisfied that the children ought to be placed for adoption.
28. There was no reason why the local authority could not have obtained the agency decision maker's decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed 'permanence report' which describes the realistic placement options for the child including extended family and friends. The report describes the local authority's assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an 'Annex A' report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.
29. In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker's decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children's guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker's decision, they could not present a full analysis of the factors in Section (1)(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.
30. Local authorities should be astute to timetable the decision of the agency decision maker so that all matters can be put before the court together without delay. There is no reason why concurrent applications would have caused delay and indeed they must not. It would be wrong to delay a necessary decision about a child's future ...."
86. Thus it is said by Advocate Hanson on behalf of the Guardian and Rory and by Advocate Haines on behalf of the mother that the plan for Rory is inchoate, because the agency decision maker has not made a decision, the permanence panel has not yet endorsed a recommendation for adoption, and the Court cannot proceed. We do not share that view, and go on to explain why, first in terms of analysis and secondly in terms particularly related to this case.
87. Surrey County Council v S is an interesting case and we respectfully agree entirely with the conclusion that as far as possible it is desirable that all evidence relevant to the application of the welfare test should be before the Court at the time it makes its decision. That must be so because the Court makes its decision having regard to the paramountcy principle, namely what is in the best interests of the child. The knowledge that others have considered in the permanence panel whether adoption is appropriate, and whether the decision maker in the Children's Service has endorsed that decision would undoubtedly be useful to the Court's analysis of the position. There is however a difference between saying it would be useful information to have and saying that it is essential information to have. Surrey County Council v S seems to suggest that it is essential, but in our view, that arises at least in part because a different statutory regime was being contemplated there. In that case it appears to have been essential that not only should the threshold conditions of Section 31 of the 1989 Act be met (similar if not identical to the threshold conditions under Article 24 of the Law) but also that the Local Authority had fulfilled its statutory duty to make application for a placement order under Section 22 of the Adoption and Children Act 2002. In order to make that application, the Local Authority needed the agency decision maker's decision, and for that decision to be made lawfully, the Adoption Agencies Regulations 2005 (as amended) had to be complied with. For that purpose, the agency decision maker had to have a detailed permanence report which described the various realistic placement options for the child including extended family and friends. Interestingly, it appears that when the placement order application is made, there is an Annex A report provided to the court which gives information on the suitability of the adoptive applicants, and all of that enabled the court properly to evaluate the adoption placement proposal, by comparison with other welfare options.
88. That is a wholly different statutory regime from the one we have in Jersey, and it emphasises the danger of referring to English authority on a different regime without seeking to establish whether it transposes naturally to the statutory regime which we have here. In our judgment, it is plain that here it does not do so. Arrangements for adoption in Jersey are made pursuant to the Adoption (Jersey) Law 1961, ("the Adoption Law"), which does not contain these various provisions. The procedure under that law anticipates that where on an application by the Minister the Court is satisfied that the parent agrees unconditionally to the making of an adoption order or that the parent's agreement to the making of that order should be dispensed with under Article 13(2), the Court makes an order declaring the infant free for adoption. No application is to be made unless it is made either with the consent of the parent or where the Minister is applying for dispensation of that consent, and the infant is in the care of the Minister. Article 12(2) therefore expressly contemplates that the Minister may have an infant in his care prior to making an application for a freeing order under the Adoption Law, and clearly the Minister cannot have an infant in his care unless the Court has made a care order and necessarily approved the care plan. The Adoption Law is silent as to whether the care plan should or should not include provision for the Minister's intention to make an application for a freeing order and similarly there is nothing in the Law which touches on that subject.
89. We note also that there is nothing in the Law which establishes the Fostering and Adoption Panel, or requires the provision to such a Panel of a permanence report. Article 7 of the Adoption Law provides for the establishment of an Adoption Panel, which would carry out such powers and duties of the Minister as may be determined pursuant to Article 8. However we are advised that there is currently no ministerial order setting out what the function of the Panel is, specifically in relation to its role for recommending that a child should be freed for adoption. Accordingly the recommendation of the Panel carries no legal status. We are informed that in practice the permanence report is produced by the social worker and submitted to the Panel for consideration. After considering the Panel's recommendation, the Agency Decision Maker makes the final decision. The decision taker is not legally obliged to have any regard to the Panel's decision at all, subject always of course to any judicial review which might take place, but we are informed that in practice he follows carefully the recommendations which are made.
90. We have also noted that in paragraph 28 of Ryder LJ's judgment cited above, reference is made to the absence of legal aid in relation to the process under the 2005 Regulations. We note that does not apply here.
91. Advocate Heath submitted that as the social worker prepared the permanence report for the Fostering and Adoption Panel, and as the social worker is the same person who has prepared the report and given evidence for the Court, there was no harm in the Court expressing its views on the proposed care plan. Indeed, it would be very surprising if the decision taker reached any conclusion different to that of the Court which had necessarily received all the same evidence, indeed possibly more.
92. Before we turn to the particular facts of this case, we note that this will not be the first occasion on which the Court will have approved a care plan even though the agency decision maker has not made a decision, and the Fostering and Adoption Panel have not considered the question in detail, or may be at all. In the matter of Maria (Care Order) [2017] JRC 072, the Court considered, and agreed with, the application of the Minister that, due to the risks posed to the child and the parents' inability to provide for her safe care, then or within the child's timescales, permanence must be achieved beyond the parents by her remaining in her current placement with the paternal aunt under a final care order, pending an application for her to be freed for adoption in nine months' time. The reason for the delay was that although the paternal aunt was fully committed to the child, she and her partner were worried that at some future date the mother might seek to destabilise the child's placement with them. Accordingly the aunt and her partner decided to delay any adoption application for a period of time so that they might have support in the interval from the Children's Service following the conclusion of the care proceedings. It is clear that in that case the Court had more information about the prospective adoptive parents than is the case in the present case, to which we will shortly turn, but that case does at least demonstrate that the Royal Court considered that there was nothing in law which prevented it from making a care order and approving a care plan which had a freeing for adoption proposal within it, even though no application for adoption was going to be made imminently, and the freeing order was not part of a contemporaneous application. In fact that final care order having been made in 2016, an application for a freeing order was made by the Minister on 11th August, 2017, and the Court made that order.
93. We have approached the question of the Minister's care plan in the case of Rory against the background that we can, as a matter of law, approve that care plan if we think fit and we have considered the objections from the mother, in particular, but supported by the father, that we should not do so because the care plan is inchoate and because no parenting assessment has been made of them in respect of Rory.
94. We deal first with the absence of any parenting assessment, which we do not treat as being significant. The reason for that is that the basis upon which threshold is considered as passed is that the parenting assessment has been made in relation to the elder four siblings and has been found to be deficient and it is likely that the same deficiencies will arise in relation to Rory. There has, in other words, been a full appraisal of the problems currently besetting Rory or likely to beset him in the future in the evidence in this Court, and we do not think that a current parenting assessment will add to the analysis which has to be made.
95. It is true that there has been no connected persons' assessment, no doubt partly because the parents have not nominated anyone who they consider ought to be assessed, but also partly because the relationship between the mother and her family in Jersey has not been sufficiently satisfactory that there are any she would want to propose. More compelling, however, for us is the fact that further assessments, whether on the mother's side or the father's side, particularly of those which might have to be made in the country from which the father arrived in Jersey some 18 years ago, would at this stage take time which would take us beyond Rory's timescales. At the date of the hearing he was aged 1 year and 2 months. Completing a process for adoption will of itself take some time. There has to be a freeing application and there will need to be an appropriate matching of him with prospective adoptive parents. Our experience is that this can take 6 - 9 months. The sooner that process has been completed the better, in so far as concerns the chances of a successful adoptive placement - it is a classic illustration of the reason for the statutory provision that delay does not generally work in the best interests of the child.
96. For these reasons, we are satisfied that on the application of the welfare test, the Minister's care plan, involving as it did the removal of Rory from the parents in early course, and placement with temporary foster carers prior to a freeing application and ultimately matching with adoptive parents, provides the best outcome for Rory's future. In reaching this conclusion, we trust that the Fostering and Adoption Panel will not take offence, and we also take the view that both the Panel and the decision taker will find it helpful to know that the Court has received all the same evidence relevant to the decision in question as would have been produced to the Panel and more.
97. The skeleton argument filed by the Minister in advance of the hearing contained a proposal that the Court make an interim care order for Rory until a date in January 2018 when the Panel had had the opportunity of considering the permanence report prepared by the social worker in respect of him. That position was criticised by both the parents and Advocate Hanson on behalf of the child, the latter on the basis that there would be inevitable delay. It is unclear to us in particular why the care plan should have been regarded as inchoate in circumstances where only an interim order was being sought. In fact it became apparent during the hearing that the Minister was not seeking an interim order, but was seeking a final care order, and indeed it was precisely that application which led to consideration of Surrey County Council v S. There would have been no purpose in attention being given to that case and to the argument around an inchoate care plan if an interim care order only were being sought.
98. Where there is an application for a final care order, the Court is required to consider the care plan. In doing so, it will have regard to whether or not the care plan is choate, and if it is not choate in a material particular, the Court will not approve it, which may delay the making of a final care order. In the present case, all the information put before the Court was that it was essential, consistent with Rory's timeframe, that the final care order should be made, and indeed for the reasons set out at paragraph 95 above, the Court considers that point was well made. Approval of the care plan in relation to Rory might be thought necessarily to involve approval of an application for a freeing order and the Court understood the argument which proceeded at the final hearing to be based on that premise. It was therefore with some surprise that the Court received comments from counsel when the draft judgment was circulated in the usual way to the effect that no freeing order should have been made. These comments also have indicated that apparently the Minister is giving further attention to an assessment of the father's relatives, an assessment which seems to us will inevitably take some time and is almost certainly inconsistent with Rory's timeframe if it should turn out to be unsuccessful.
99. In the draft judgment which was circulated to the parties in February, the Court had indicated that in approving the care plan it considered it was in effect making a freeing order under Article 12 of the Adoption Law, and on the application of Article 13 of that law the Court concluded that consent of the parents could be dispensed with. Now it turns out that the Minister is not necessarily considering an application for a freeing order at all, which involves a quite different care plan than that put before the Court. However, given the requirement in Article 12 of the Adoption Law that there should be an application by the Minister for a freeing order and the lack of any certainty that there has been such an application, the Court does not consider now it has jurisdiction to make that order.
100. To say that all this is unsatisfactory is an understatement. The position is that the Minister put before the Court a care plan which provided for Rory to be adopted, and the necessary corollary of that was an application for a freeing order. The argument took place in court upon the basis that that was what was being decided. Making a final care order and approving the care plan and the making of the freeing order was what the members of this Court firmly considered - firmly considered - was in Rory's best interests, and for that reason, the Court was completely satisfied that the parents were withholding their consent to the making of a freeing order unreasonably; but for the reason given we cannot make it.
101. For these reasons we consider that threshold has been passed, and that on the application of the welfare test, a care order is in Rory's best interests. Accordingly, we have made a final care order in relation to Rory, and we have approved the care plan which provides for his adoption. The orders made end there.
Authorities
Children (Jersey) Law 2002.
Surrey County Council v S [2014] EWCA Civ 601.
Adoption (Jersey) Law 1961.