Secure accommodation order - reasons for declining the application.
Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Blampied and Thomas |
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Between |
The Minister for Health and Social Services |
Applicant |
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And |
A (the mother) |
First Respondent |
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And |
Scarlett |
Second Respondent |
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IN THE MATTER OF SCARLETT (SECURE ACCOMMODATION ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate C. R. G Davies for the Applicant.
Advocate A. T. H. English for the First Respondent.
Advocate B. J. Corbett for the Second Respondent.
judgment
the COMMISSIONER:
1. On 26th January, 2018, the Court declined to make an interim care order and a secure accommodation order in respect of the second respondent ("Scarlett", this is not her real name), a young person of 16½ years, and who turns 17 this year.
2. The Minister made the application because of the Child was placing herself at escalating risk of sexual exploitation and physical harm. These risks were summarised in the statement of the social worker Ms Patricia McConville. The Child is currently resident at a provision for homeless young people.
3. Scarlett's medical notes showed three admissions to Accident and Emergency in December 2017 and four in January 2018, involving incidents of self-harm.
4. All of this made bleak reading. The Minister filed his application for an interim care order and a secure accommodation order on Monday 22nd January, 2018, and a guardian was appointed and a hearing fixed for Thursday and Friday, 25th and 26th January, 2018.
5. The Minister's care plan was for Scarlett to be moved to a secure children's home under a secure accommodation order for her protection, where she would be assessed and a suitable therapeutic residential place would be identified in the United Kingdom (there being no appropriate facility available in Jersey). The care plan acknowledged that her time at the secure children's home could not exceed three months.
6. In evidence, Ms McConville acknowledged that this plan was reliant upon the Children's Service gaining the co-operation of Scarlett during her time at the secure Children's home for the following reasons:-
(i) Leave of the Court would be required under Schedule 2 Article 4 of the Children (Jersey) Law 2002 ("the Children Law") to move her to the United Kingdom. One of the requirements for the granting of leave is that Scarlett consents to living in the United Kingdom unless "the Court was satisfied that she did not have sufficient understanding to give or withhold her consent". Bearing in mind her age, there would be some difficulty in the Court finding that she did not have sufficient understanding to give or withhold her consent.
(ii) The residential unit in the United Kingdom would not be a secure unit, and there would be nothing, therefore, to keep her there.
7. The evidence of Ms McConville was as summarised above. She had become Scarlett's social worker in October 2017 and the evidence of what had taken place prior to her involvement had been taken from her review of the records of the Children's Service. She had succeeded in seeing Scarlett some four times only, but not for want of trying. In her view, Scarlett was not engaging with the Children's Service or with Ms Alison Pell, the mental health nurse from CAMHS, who was undertaking dialectical therapy with her, or with any of the other agencies.
8. Residential provision was there to provide accommodation for young people, but it was not a regulated children's home. Provided Scarlett told them by phone where she was, she could be out all night without being reported missing. Scarlett had been taken to see a regulated children's home, but she refused to be subject to the rules that would apply there, a refusal maintained by her at the hearing.
9. The concern of Ms McConville was genuine. In her view, Scarlett was a very vulnerable person, whose risk taking behaviours were escalating. Her relationship with her mother had broken down, and her mother would not have her back. In the view of the mother, Scarlett needed psychiatric help, a view not shared by Ms Pell. Her father, who did not have parental responsibility, had a long history of alcohol and drugs abuse, and was of no fixed abode.
10. Even if Scarlett's co-operation could not be won, Ms McConville felt she would at least be safe in secure accommodation, in particular safe from the possibility of accidental death through self harm. There were no other options as Scarlett refused to comply with the regime of a regulated children's home, and would not be manageable in foster care. In addition to being safe from harm, she would be available to the agencies whilst in secure accommodation, who might be able to get her to engage.
11. Ms Pell was not supportive of Scarlett being restricted through a secure accommodation order. She is a mental health nurse with CAMHS and her approach, and that of her team, which included qualified psychiatrists, was to provide a dialectical behavioural therapy informed approach. She had managed two or three sessions with Scarlett, in which Scarlett had engaged, but Scarlett had missed two or three sessions and Ms Pell had then been ill over Christmas. Scarlett was at the very early stages of this therapy.
12. In her view, and that of her team, there was no diagnosable mental health problem; the working formulation agreed by the team was that Scarlett was emotionally dysregulated, and suffered from an ambivalent attachment disorder linked to her mother. In order to cope with and manage her emotional distress, she had created an alter ego, but this was a voice inside her head and not psychotic. Her eating disorder could be another way of her managing her emotional distress, and the reference to her being a Succubus also fitted in with the team's formulation of emotional dysregulation.
13. In a telephone conversation with Ms McConville's team manager at the Children's Service, Ms Pell had said that Scarlett could be considered to be "at massive risk" but not actively suicidal. "If she was to die it would not be the worst case scenario for her, but there is fear, and so no intent." "I don't think she wants to die." She went on to say that people like Scarlett do not fend well in residential treatment facilities, as there was a potential for her to become "a long-term patient". CAMHS did not have the funding resources to offer anything more. Finally, she said "I don't know how we keep her safe".
14. In evidence, Ms Pell agreed that there was a high risk of accidental death whilst self-harming to regulate her emotions, although death would not be her intention. However, in her view, this risk applied wherever she was, and it wasn't necessarily the case that the risk in secure accommodation was lower; if she wanted to harm herself, she would find a way of doing it.
15. Initially, Scarlett's distress in being taken into secure accommodation would be overwhelming. She would not engage, but after settling in, Ms Pell said she might well engage in order to gain her freedom. If she did engage, then she would have to be released back into the community where she would quickly revert to her previous behaviours, but the process will have been damaging, as it would have invalidated "her voice".
16. The whole point of the therapy, Ms Pell advised, was to decrease risk and manage emotions. Quoting from her report:-
"To change Scarlett's relationship with her emotions will require long term utilising a dialectical behavioural therapy approach to enable Scarlett to acknowledge she has and can tolerate the emotions she is experiencing and develop alternative strategies to disassociation, depersonalisation and self harm to manage them. There always remains a high risk that there will be an increase in risk taking behaviours as these are being challenged known as an extinction burst."
17. Advocate English, for the mother, suggested a third alternative to Scarlett either staying at residential provision, as she wished, or being placed in secure accommodation, namely for her to stay at residential provision on the basis that she agreed to comply with a curfew and engage with CAMHS and the Intensive Support Team, under threat of a further application for a secure accommodation order if she did not. Ms Pell's concern at this suggestion was any element of therapy being coerced. For therapy to work, Scarlett must want to engage.
18. The guardian had been appointed on 22nd January, 2018, three days before the hearing, and had been told in an initial conversation with the Children's Service that a decision had been taken not to tell Scarlett about the application, as it was felt she was too vulnerable to manage this information appropriately, and would be at high risk of absconding or self-harm if she knew of the Minister's plan. The guardian did not feel she could proceed in this manner, and in conjunction with Scarlett's appointed legal representative Advocate Corbett, made the decision to "doorstep" Scarlett and inform her of the application and the plan. Scarlett did not agree that the Minister needed to share parental responsibility, and did not feel that she was at such risk that she should be under a secure accommodation order. She expressed the wish to live with her father, who she believed was obtaining a one bedroom flat.
19. The guardian spoke to, the assistant manager at the residential provision, who felt that she was at high risk, but would welcome the opportunity to undertake further work with her. The staff at the residential provision were increasingly aware of her self-harm, but felt this may be because she was building a more trusting relationship with them and asking for help. In his statement to the Court, the assistant manager said this:-
"Our main concerns in relation to Scarlett's time with us are around her disregard for her health and personal safety, her diet and her lack of practical life skills.
Scarlett's attitude and general behaviour at [residential provision] is up and down. Sometimes Scarlett engages really well and at other times there exists a lack of engagement.
We believe we have done useful work with Scarlett, have a positive relationship with her and can see a way forward for Scarlett over time.
Our major concern is what is happening for Scarlett when she chooses not to come home to [residential provision]."
20. The guardian said that the way Scarlett was informed of the application was difficult for her, but to her credit, she engaged well with the guardian and spoke to her very openly. They had met for breakfast before the Court hearing, when she was polite, articulate and open. They had a good discussion, in which she was able to express her viewpoint, and gave the guardian a measured written response to the evidence that she had heard during the hearing. She told the guardian that she was willing to engage with the agencies.
21. Having heard the evidence, the guardian expressed herself in this way. She said that the emotional part of her wanted to put Scarlett somewhere safe where nothing could happen to her. Scarlett was a very likeable person, who needed support, and it was awful to think of her being in that much emotional pain and distress. Looking at it logically, however, she was involved with other young persons in the care system who self-harmed and engaged in risk taking behaviours, but they were not kept in secure accommodation; the risks were managed in the community.
22. The fact that Scarlett engaged in risk taking activities was not in her view a reason for imposing a secure accommodation order. Since 2010, the guardian had been involved with only one child, actively suicidal, who was placed at a secure children's home, but she was much younger than Scarlett.
23. The guardian questioned how some of the evidence about Scarlett's behaviour had originated. Scarlett had informed her that she had only once been called a Succubus, and had passed that on once. It was not clear where the references to her placing herself at risk of sexual exploitation had come from, and in what context. Scarlett denied it completely. If it had occurred, it was before September 2017, and there was no suggestion of it continuing.
24. The guardian pointed out that the assessments being sought by the Minister would ordinarily take some twelve weeks, and the selection of a placement in the United Kingdom could not be made until assessments had been completed. The process was likely to take longer than the three months permitted on the making of a secure accommodation order.
25. The secure children's home provided a locked door, but it was not therapeutic in nature. Scarlett would be there physically and therefore would have to meet with the agencies, but therapy needed her active cooperation. The guardian was concerned that the loss of her freedom in this way would increase, not reduce, the limited trust she had in others. It could be said that at most, it would provide a pause, but not an effective mechanism to reduce risk; that should be addressed by Scarlett engaging in therapy with trusted adults, and she was only at the very beginning of that process. Could it be said, the guardian asked, that every other option had been explored?
26. The law in relation to interim care orders is well traversed, but the key issue before the Court was whether a secure accommodation order should be made against Scarlett's wishes.
27. Article 22(1) of the Law sets out the limited circumstances in which a secure accommodation order can be made. The provision reads as follows:-
"(1) Subject to the following provisions of this Article, a child who is being looked after by the Minister may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ('secure accommodation') unless it appears -
(a) that -
(i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and
(ii) if the child absconds, he or she is likely to suffer significant harm; or
(b) that if the child is kept in any other description of accommodation he or she is likely to injure himself or herself or other persons."
28. Thus there are two limbs under which a child may be kept in secure accommodation. The Minister relied on the second limb, namely that Scarlett is likely to injure herself or others if kept in any other type of accommodation.
29. Article 22(3) of the Law provides that;
"The Court hearing an application under this Article shall decide whether the necessary criteria for keeping a child in secure accommodation are satisfied and if so it shall make an order -
(i) authorising the child to be so kept; and
(ii) specifying the maximum period for which the child may be so kept."
30. In the Matter of A (Secure Accommodation Order) [2013] JRC 125 the Court considered whether the word 'shall' in Article 2(3) of the Law required the Court to make an order if it was satisfied the criteria were met. The Court said that it must consider the criteria for granting a secure accommodation order under Article 22(1) in light of the European Convention on Human Rights enshrined by the Human Rights (Jersey) Law 2000. Accordingly, the Court retains discretion and must be satisfied that it is proportionate to make a secure accommodation order.
31. Under Article 3(1) of the Children (Secure Accommodation) (Jersey) Order 2005 ("the 2005 Order"), the maximum period the Court may authorise a child to be kept in secure accommodation is three months. The order may subsequently be renewed for up to 6 months at any one time (Article 3(2)). The Minister was seeking an interim secure accommodation order to 26th April, 2018 (three months) which Advocate Byrne for the Minister said would will allow for an expert psychological/psychiatric assessment to be undertaken and for a residential unit to be identified.
32. A secure accommodation order is permissive. It does not require the Minister to retain Scarlett at the secure children's home if that is no longer necessary. Article 10 of 2005 Order requires an independent panel to review the keeping of a child in secure accommodation and to satisfy themselves as to whether or not -
"(a) The criteria for keeping the child in secure accommodation continue to apply;
(b) The placement in such accommodation continues to be necessary; and
(c) Any other description of accommodation would be appropriate for the child, and in doing so shall have regard to the welfare of the child whose case is being reviewed."
33. Advocate Corbett referred us to the recent case of In the matter of M (a child) [2017] EWHC 3021 (Fam) in which a secure accommodation order had been imposed on a girl, who had recently turned 15 years of age, "at the end of the line" when all the alternatives had been looked at imaginatively. Hayden J referred to an observation he had made in the case of London Borough of Barking and Dagenham v SS [2014] EWHC 4436 (Fam) at paragraph 15:-
"It scarcely needs to be said that restricting the liberty of a child is an extremely serious step, especially where the child has not committed any criminal offence, nor is alleged to have committed any criminal offence. It is for this reason that the process is tightly regulated by the Children Act 1989 in the way I have set out, but also in the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation No. 2) Regulations 1991. The use of s.25 will very rarely be appropriate and it must always remain a measure of last resort. By this I mean not merely that the conventional options for a child in care must have been exhausted but so too must the 'unconventional', i.e. the creative alternative packages of support that resourceful social workers can devise when given time, space and, of course, finances to do so. Nor should the fact that a particular type of placement may not have worked well for the child in the past mean that it should not be tried again. Locking a child up (I make no apology for the bluntness of the language, for that is how these young people see it and, ultimately, that is what is involved) is corrosive of a young person's spirit. It sends a subliminal and unintended message that the child has done wrong which all too often will compound his problems rather than form part of a solution."
34. Despite the advice that Scarlett was at the same level of risk whether in the community or at the secure children's home under a secure accommodation order, the Court accepted the Minister's contention that at the secure children's home, the opportunity for self-harm would be reduced, because Scarlett would be denied access to pills and other obvious instruments by which self-harm could be inflicted. She was, therefore, less likely to succeed in harming herself at the secure children's home than in the community and the criteria under Article 22(1)(b) was therefore met.
35. Despite the mandatory wording of Article 22(3), the Court retained a discretion as to whether to make an order and the issue was whether it was proportionate to do so
36. The Court found this a most difficult decision. Bearing in mind the risk of accidental injury or even death that could result through self-harm, even if there is no intention to commit suicide, the granting of a secure accommodation order was the easier decision to make, because at least for the duration of the order, Scarlett would be physically safer than she would be in the community.
37. There were a number of considerations, however, that weighed against that perhaps instinctive reaction to the evidence before the Court:-
(i) We were conscious of Scarlett's age. At 16½, she had reached the age of consent to sexual activity and at that age, her wishes carried very considerable weight. It was important for her voice to be heard. She did not agree to her freedom being restricted by the making of a secure accommodation order, or indeed to the ultimate objective of the Minister, namely her placement in a therapeutic unit in the United Kingdom.
(ii) Because of her age we are at the very last stages in which the state could intervene under the Children Law.
(iii) The care plan for Scarlett to be placed in a therapeutic unit in the United Kingdom was, in reality, based entirely upon her agreeing to such a placement. In all probability, her consent to such a move would be required, and in any event, any such unit would not be secured - she would stay there only as long as she wished to do so.
(iv) Restricting her liberty would be a short-term fix that was unlikely to address her deep seated issues. Whilst it was possible that held physically at a secure children's home, she would, after settling in, engage with the agencies, her motivation in doing so was more likely to be to gain her freedom than in genuinely addressing her issues. The process of review under a secure accommodation order would lead to her release back into the community, where she would, in all likelihood, revert to her risk taking behaviours, but damaged by the process. Although Ms Pell could not say how long the dialectical behavioural therapy would take to reach a point where Scarlett would be able to manage her emotions without resorting to these risk taking behaviours, it was clearly not going to be achieved within the three months of a secure accommodation order.
(v) Depriving Scarlett of her liberty was an extremely serious step, and a major consideration for the Court was the lack of support for a secure accommodation order on the part of Ms Pell, and in particular, on the part of the guardian.
(vi) Scarlett had agreed to engage with CAHMS and the Intensive Support Team, together with the other agencies, and although that agreement had been made in the face of a potential secure accommodation order, she had been given scant warning of the application, and the possible loss of her liberty, and we felt that we should take her agreement to engage at face value. She was fully aware of the ability of the Minister to return for a secure accommodation order in the future.
38. We think it was perfectly proper for the Minister to bring the application because of her risk taking behaviours, but having taken into account all of the circumstances and the advice we have received, we were not, at this stage, persuaded that a secure accommodation order was proportionate. In our view, the loss of her liberty was more likely to compound her problems, rather than form part of a solution.
39. Advocate Davies, for the Minister, indicated that if the Court declined to make a secure accommodation order, the Minister was still prepared to accept parental responsibility under an interim care order, but the Court felt that the secure accommodation order formed a central part of the care plan, and it was preferable for that care plan to be re-visited by the Minister, and a further application made for an interim care order on the basis of that revised plan. We can say, however, that the threshold for the making of an interim care order was clearly met in this case as agreed by all of the parties.
Authorities
Children (Jersey) Law 2002.
In the Matter of A (Secure Accommodation Order) [2013] JRC 125.
Human Rights (Jersey) Law 2000.
Children (Secure Accommodation) (Jersey) Order 2005.
In the matter of M (a child) [2017] EWHC 3021 (Fam).
London Borough of Barking and Dagenham v SS [2014] EWHC 4436 (Fam).