Jersey Unreported Judgments

Care order - reasons for granting the interim care order in favour of the Minister.

[2018]JRC074

Royal Court

(Family)

23 April 2018

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats Crill and Thomas
Between	The Minister for Health and Social Security		Applicant
And	A (the mother)		First Respondent
And	E (the father)		Second Respondent
And	Kian (the child)		Third Respondent

IN THE MATTER OF KIAN (INTERIM CARE ORDER)

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

Advocate H. J. Heath for the Applicant.

Advocate S. McFadzean for the First Respondent.

Advocate B. J. Corbett for the Second Respondent.

Advocate N. S. H. Benest for the Third Respondent.

judgment

the COMMISSIONER:

1.        On 8^th March 2018, the Court granted the Minister an interim care order in respect of the 3 day old child, Kian (this is not his real name) ("the Child"), approving a care plan for his immediate removal from the care of the first respondent ("the mother"), and the second respondent ("the father"), a draconian intervention, but one which the Court was compelled to make in order to protect the Child's safety.

The capacity of the mother

2.        There was a question over the cognitive ability of the mother, who cannot read, and her ability to give instructions and to participate in the proceedings.  This is the mother's fourth child.  Her first child lives with the maternal grandparents under a residence order.  Her second child was removed from her care at birth and placed with the maternal grandparents, although he is currently in foster care on a voluntary basis.  Her third child was also removed from her care at birth, for the reasons set out in the judgment of the Court of 28^th September, 2015. (In the matter of Ruby (Emergency protection order) [2015] JRC 197).  She was made the subject of a final care order and freed for adoption on 7^th April, 2016, for the reasons set out in the Court's judgment of 21^st April, 2016, (In the matter of Ruby (Care proceedings) [2016] JRC 089)  She has since been adopted by her maternal aunt.

3.        The mother did not attend any of the proceedings involving her second and third children, and has a history of non engagement with the Children's Service.  As a consequence, there has never been an opportunity to have her properly assessed.  She is thought, however, to have a learning disability and a history of psychosis, in which she can experience auditory hallucinations, a condition which until her pregnancy with the Child was managed by medication.

4.        She was admitted to Orchard House under Article 6 of the Mental Health (Jersey) Law 1969 on 9^th July 2015 in order to be assessed.  There was found to be no evidence of mental disorder at that time, and she was discharged.  She flatly refused any support and stated a desire to be left alone, refusing any further visits or welfare checks.

5.        In paragraph 6 of the judgment of 21^st April, 2016, there is an extract from a report by Rebecca Lowe of the Clinical Practitioner Learning Disability Nurse Team, in which she expressed the view that the mother did have capacity to make decisions, but it had been difficult to monitor her mental and physical health due to her lack of engagement.

6.        Advocate McFadzean was appointed on legal aid to represent the mother and had attended upon her at the maternity unit where she was understandably upset to learn of the Minister's plan to remove the child from her care.  She expressed the view that she and the father were capable of looking after the child, provided they were able to continue enjoying the support of Tutela, a private organisation which provides services to people with complex needs living in the community.

7.        The mother was adamant that no court proceedings were necessary and that she would not attend Court.  In the absence of clear and specific instructions and on notice that she would not be attending Court, Advocate McFadzean recommended that an amicus curiae be appointed, as in previous proceedings, and she was appointed to that role.

8.        However, the mother did attend the hearing, and expressed the view that she did want Advocate McFadzean to represent her.  Despite reservations, Advocate McFadzean was satisfied that the mother had capacity to instruct her at least for that hearing, and accordingly her role as amicus curiae was dispensed with.  However, special measures were put in place in that:-

(i)        the mother was accompanied by Mrs Caroline Parsons of Tutela, who very effectively and helpfully played the role of intermediary;

(ii)       those participating in the proceedings were asked to speak slowly, use simple language and ask simple questions;

(iii)      there were regular breaks.

9.        There were occasions when the mother left the Court for short periods of her own volition, with the Court resolving to continue in her absence, pursuant to Rule 17(4) of the Children Rules (2005), but she attended for the majority of the hearing and indeed gave evidence.

Evidence

10.      For the Minister the Court heard evidence from the social worker, Ms Eugenia Baidoo, and had her statement of 6^th March, 2018, the minutes of the child protection conference held on 14^th December, 2017, the pre-birth assessment by Ms Baidoo and another social worker, Ms Cristina Matei and a number of police reports.  The Court also heard evidence from the mother and the father and from the guardian Eleanor Green.

11.      Ms Baidoo told us that the mother had discharged herself from hospital the previous day, namely Wednesday 8^th March, 2018, at 7:30am leaving the child behind in the care of the staff at the hospital.  The father said that he and the mother had left the hospital at around 3:00pm that day, but did not dispute that the mother had discharged herself leaving the child behind.  Ms Baidoo's understanding from the hospital staff was that the mother had not returned since discharging herself.  The mother's explanation for discharging herself, and leaving the child behind, was that she had been in a disagreement over child care advice given by one of the nurses and over things they said they would supply her with and didn't, such as the Red Book.  The child had apparently been bottle fed from the outset.

12.      The concerns of the Minister can be summarised in this way:-

(i)        The Court, in its judgment of 7^th October, 2015, described the mother as a highly vulnerable individual, susceptible to exploitation, financially, sexually and emotionally.

(ii)       The mother was not capable of looking after herself, let alone a child.  She currently receives the assistance of Tutela for her own care some 38 hours a week, and according to Ms Baidoo, was not working with Tutela as she should.  The father himself told the police that the mother needed "24/7 care", something he confirmed in Court.

(iii)      The mother has little understanding of money and has difficulty budgeting.  Before her relationship with the father, whom she married on 21st October, 2017, there is evidence of her running out of money for electricity and using candles to light her home.

(iv)      The mother has particular antipathy for the Children's Service, whose mere presence upsets her.  They visit weekly on a rota, but she becomes very agitated and they have to leave.  Ms Baidoo had only seen the inside of the home some three times since her involvement in October 2017.

(v)       The mother is a very heavy smoker, smoking some two packets a day.  Although the mother said she cut down on smoking during the pregnancy, she continued to smoke.  She said that she had smoked through all of her pregnancies and none of the other children had suffered any adverse effects.  Ms Baidoo informed us that the baby had been seen by staff at the hospital to be "shaking", which might be attributable to withdrawal from nicotine.  The mother was reported to smoke in bed, something which she denied.

(vi)      Her home was overly cluttered to a point that was considered to be a fire risk. Such was the concern that a representative of the landlord, C, had come down to the home with a member of the Fire Service.  According to the father, they had carried out all of the instructions given to them, and the situation in the home had improved, as confirmed by the police reports. 

(vii)     There were significant concerns over the mother's hygiene, with her allegedly giving off a "pungent and overwhelming" smell of a combination of urine, cigarettes, faeces and body odour.  Ms Baidoo testified to the smell in the home and there was reference to it in the police reports, but the father denied that there were any hygiene issues, certainly since he had been living there.

(viii)    The relationship between the mother and the father was unstable.  The police report that between 2003 and 2017, there have been numerous complaints by the mother of serious sexual assault by various partners, one of which concerned the father.  The mother made allegations against her previous partner, the putative father of her third child, up to the summer of 2017.  There are reports of the mother calling the police on 20^th November, 2017, 21^st December, 2017, 26^th December, 2017 and 17^th January, 2018, making complaints about the father, most relating to his allegedly being unfaithful.  The father acknowledged that these calls had been made, but the mother never saw the complaints through.  He said she didn't realise what she was saying.  The mother acknowledged that there have been problems with the relationship, but said that they were better now.  She said there had been no real quarrels and that the father had never hurt her. However on any analysis, a relationship in which the police had been called by one partner some four times can hardly be described as stable.

13.      When the mother was asked in evidence whether she would allow the Children's Service to visit the home should the child be in her care, she said that they could not come every day, as she needs her space, but the way in which she answered the question left us in serious doubt as to her willingness to cooperate meaningfully with the Children's Service.  Her record of non-engagement gave little hope for optimism in that respect.

14.      Turning to the father, who himself has learning difficulties and problems with reading, there is some doubt as to whether he is the biological father of the Child.  The mother had previously put forward three other potential fathers, and it is the understanding of the Children's Service that their relationship started after conception.  However as a matter of law, the father has parental responsibility for the Child as the result of his marriage to the mother.

15.      The father has a very concerning history in relation to his five children (one adopted) by his previous marriage, all of whom were removed from his care and that of his previous wife in June 2003, due to ongoing concerns, quoting from the pre-birth assessment:-

"For their physical health, emotional well being, chronic neglectful home environment and the children's exposure to domestic violence at home".

The pre-birth assessment states that the father was considered the perpetrator of the domestic violence within the couple's relationship.

16.      The father, whilst acknowledging the "terrible" home conditions then, said he was working full-time in his rubbish removal business and he placed all of the blame on his children being taken into care on his previous wife.  He denied in evidence having any convictions for assault, but the guardian was clear that the records show he has two convictions for grave and criminal assault in 2001 and 2003, involving his previous wife.

17.      The guardian said that on looking back on the Children's Service chronology, there was copious evidence of physical abuse and neglect over some period of time, in which the father was implicated, and it was very unsatisfactory, she said, for him to blame his previous wife entirely for his children being taken into care.

18.      There was evidence in the case files of alcohol being a problem in the past and the father was convicted of drink driving in 2016, losing his licence for 12 months.  He told us that he was only just over the limit.  As a consequence, he lost his business, leading to a low point in his life and an incident on 8^th January 2017 when he was found drunk on the road, stating that he wanted to kill himself.  He denied drinking now, as did the mother.

Threshold

19.      Under Article 30 of the Children (Jersey) Law 2002 ("the Children Law"), the Court can make an interim care order, provided it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in Article 24(2), namely that:-

"(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)       that the harm, or likelihood of harm, is attributable to -

(i)         the care given to the child, or likely to be given to the child if the care order were not made, not being what it would be reasonable to expect a parent to give the child, or

           (ii)        the child's being beyond parental control."

The Court had no difficulty in finding this threshold met, thus giving it jurisdiction.

Removal at an interim stage

20.      As the Court held in the case of In the matter of J [2011] JRC 147, ordinarily, an interim care order is an impartial step to preserve the status quo, pending full assessments and a final hearing.  The starting point is that if at all possible, it is in the best interests of a child to live with her or her natural parents and the removal of a child can only be sanctioned if it is both necessary and proportionate. 

21.      It is clear, however, that removal can be sanctioned if the child's safety demands it, a necessarily high hurdle (see the judgment of Scriven, Commissioner In the matter of QQ [2010] JRC 217E.)  In this case, we are being asked to sanction the removal of the Child three days after his birth, a draconian intervention.

Decision

22.      It is fair to the mother and the father to note that not all of the concerns expressed by the Children's Service were supported by the evidence before us.  There was no evidence of alcohol being an issue, certainly during the period of the pregnancy.  It was also clear that the situation in the home had improved with the arrival of the father, who, as he told us, took charge of the shopping, cleaning and cooking and controlled the family budget.  He worked full-time, from 8:00am to 4:00pm weekdays, but even with his involvement, the mother still needed the help of Tutela in respect of her own care.

23.      The mother also deserves credit for the fact that during the pregnancy, she stopped taking her medication, Olanzapine, which had been prescribed for her psychosis, for fear of the possible side effects it could have on the development of the unborn child, although it was unclear what effect this would have on her mental health and her ability to focus and take on board professional advice.  The mother had packed her maternity bag in preparation for the birth and had purchased clothing and equipment in anticipation of the arrival of the Child.  She had also cooperated with her ante-natal care.

24.      Even so, in the Court's view, this was a clear case in which the draconian step of removal only three days after the Child's birth was both proportionate and necessary.

25.      Previous Courts had already found that the mother lacked the capacity to parent her first three children, all of whom had been removed from her care.  She had a consistent history of non-engagement with and antagonism towards the Children's Service, and there was nothing to convince us that this would change. The mother had serious difficulties of her own, and was unable to care for herself, as confirmed by the father and by the engagement of Tutela.

26.      The guardian was firm in her advice that the Child would not be safe with the mother and should be removed into foster care.  She worried that the mother would be unable to provide even basic care, and whether the mother knew enough about the Child's needs, particularly if he became ill.

27.      In the view of the guardian, the reasons put forward by the mother for leaving the Child in the hospital after only two days (effectively abandoning him there), over an argument with a nurse about child care advice, did not bode well for the Child.  It seemed to the Court that this was a clear illustration of the struggle the mother would have in putting the Child's needs before her own.

28.      The father was being put forward as a protective factor, but, leaving aside that he worked full-time and would therefore not be in the home for the best part of the day, his own history with his previous children raised very serious concerns about his ability to parent.

29.      The mother showed considerable courage coming to Court so soon after giving birth and giving evidence, an experience she found very difficult.  It took her considerable time to process questions and her answers were not always easy to understand, but the process did nothing to alleviate our concerns as to her capacity to safely parent the Child.

30.      The father described the mother as a "nice woman", who had gone through enough and should be given a chance to parent the child with help.  We understood that sentiment, but under Article 2(2) of the Children Law, the child's welfare had to be our paramount consideration, and in our view, it would be grossly irresponsible to allow the Child to go home to a mother whom the Court on three occasions had found incapable of caring for her previous children, who had a history of non-engagement with the Children's Service and who was incapable of looking after herself, let alone a child, relying on the presence of a father with whom she had an unstable relationship and whose own history with his previous children raised very serious concerns about his ability to safely parent.  Such an environment would not be safe and the situation demanded the child's removal to the safety of foster care, pending full assessments.

31.      Having applied the principles set out in paragraph 8 of the Court of Appeal decision in the case of In the matter of F and  G (No 2) [2010] JCA 051, the Court approved the care plan of the Minister and the contact arrangements and made an interim care order in favour of the Minister, being the only order that could properly safeguard the welfare of the Child.

Authorities

In the matter of Ruby (Emergency protection order) [2015] JRC 197. 

In the matter of Ruby (Care proceedings) [2016] JRC 089. 

Mental Health (Jersey) Law 1969. 

Children Rules (2005). 

Children (Jersey) Law 2002. 

In the matter of J [2011] JRC 147. 

In the matter of QQ [2010] JRC 217E. 

In the matter of F and  G (No 2) [2010] JCA 051.