Jersey Unreported Judgments

Care proceedings - reasons for adjourning the application by the Minster and for making an interim care order.

[2018]JRC088

Royal Court

(Samedi)

16 May 2018

Before     :

Sir William Bailhache, Bailiff, and Jurats Olsen and Dulake

 

IN THE MATTER OF WILLOW AND MATILDA (CARE PROCEEDINGS)

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

Advocate J. A. E. Kerley for the Minister.

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

Advocate R. S. Tremoceiro for the Second Respondent.

Ms S. Clarke, Guardian.

judgment

the bailiff:

Introduction

1.        On 2^nd May, 2018, the Court gave judgment adjourning an application by the Minister for a final care order and an application for approval to arrange for the children now aged 9 and 4 to live outside Jersey and made an interim care order.  These are the reasons for our decision.

2.        The children have been looked after by the Minister since 24^th February, 2017, which is agreed by all parties to be the relevant date.  Initially the children were placed with family members, but that placement came to an end in August 2017 and they were placed with foster carers.  In October 2017 the foster placement came to an end and the children were placed back with the family members after they had confirmed that they were willing to look after them until the final hearing.  The Minister confirmed to the Court that at the end of that hearing, the family members were no longer prepared to have the children living with them, and that foster parents in Jersey were able to look after the children until 29^th July, 2018, but no later.  The Minister's position was that the children should not be returned to the care of their parents who, although still on friendly terms are no longer in a relationship and do not live together.  No other foster parents were available in the Island, or likely to be available by the end of July, and accordingly the Minister was proposing in his care plan that there should be a long-term foster care arrangement with foster parents living not far from Southampton in the United Kingdom.

3.        We describe the Father as father to both children although he is only the biological father of the younger child.  The biological father of the older child it is thought lives in France but his exact whereabouts are unknown.  However, the Father has for all practical purposes been the father to the older child all her life, as he and the mother commenced their relationship some eight years ago, and the older child knows no other father but him and regards him as her dad.  Accordingly we have treated him as the father of both children for the purposes of this judgment.

4.        This family has been known to the Children's Service since 2008, although the present proceedings brought in April 2017 are the first time that the Court Service has been engaged.  The Minister's case is that the chronology shows a continuous problem of alcohol and substance abuse for both parents which in effect reached a crisis point in 2017 as far as the Mother was concerned although there were occasions of difficulty before then.  The Court has been shown a number of police logs showing volatility in the family home at best, and potentially domestic abuse at worst, the police having been called out frequently to the family home. 

Threshold

5.        The Court has not previously had to consider threshold in relation to these children because they have been looked after by the Minister under a voluntary arrangement without an interim care order having been made to date.  As is so often the case where there has been a long history of involvement between the Children's Service and the family in question, the Court is faced with limited first hand evidence on the part of the Minister, and regard has to be had to the historical evidence which is documented in the files of the Children's Service without live viva voce evidence from the person who made the relevant entries. In some cases, that can cause a difficulty.  Here, however, both parents accepted that threshold had been crossed, albeit it was clear that not all the elements of the Minister's threshold document were accepted. In her statement to the Court, prior to giving evidence, the Mother said:-

"I accept that at the time the girls were removed from my care under a voluntary arrangement in February 2017 I was unable to look after them properly.  I was drinking far too much.  I was also taking drugs.  I accept that had the Minister applied for an interim care order at that stage, it is more than likely that the Court would have granted one as threshold was met."

6.        In his statement to the Court the Father did not concede threshold was passed, but Advocate Tremoceiro confirmed in court that the Father did accept this to be the position. 

7.        In our view it is important to record why this Court considers threshold was passed in case that should be necessary in any further proceedings.

8.        The Court's jurisdiction to make any order under the Children (Jersey) 2002 (the "Law") in proceedings of this nature is only established if threshold is passed as provided for by Article 24 which in its material part provides:-

"(2)     The court may only make a care order or supervision order if it is satisfied -

(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 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."

9.        As was said by Beloff JA In the matter of F & G (No.2) [2010] JCA 051:-

"6.      It is well established that:-

(i)        Satisfaction of the threshold conditions in Article 24(2) is a necessary but not a sufficient basis for the making of a care order  ...

(ii)      The threshold conditions have to be satisfied at the date of the application, but the Court is not precluded from taking account of all relevant circumstances which exist at the date of the hearing ...

(iii)     The two elements of the threshold conditions are alternative ("is suffering" as contrasted with "is likely to suffer"). (Given that it is the future with which a Court must be concerned, it may seem odd that the first element is in the legislation at all, other than as a reminder of the need to bear the past and present in mind when considering the future: but it is there, and both the Royal Court and we must take it into account).

(iv)     The first aspect requires proof [of past harm] on the balance of probabilities....

(v)       The second aspect requires an assessment of a real possibility of future harm, ... "a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" ...

(vi)      For the purposes of assessing the risk of future harm, the Court may only have regard to proved facts as distinct from unproven allegations ...

(vii)    Ill treatment is not confined to physical ill-treatment.

(viii)   The concept of "forms of ill treatment which are not physical" has not been explored in the jurisprudence.  In the document "Working Together to Safeguard Children" which was prepared by HM Government in the United Kingdom as a guide to inter-agency working to safeguard and promote the welfare of children, there is a useful explanation of emotional abuse (in context a synonym):-

"Emotional Abuse

1.31    Emotional abuse is the persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child's emotional development. It may involve conveying to children that they are worthless or unloved, inadequate or valued only in so far as they meet the needs of another person. It may feature age or developmentally inappropriate expectations being imposed on children. These may include interactions that are beyond the child's developmental capability, as well as over protection and limitation of exploration and learning, or preventing the child participating in normal social interaction. It may involve seeing or hearing the ill treatment of another. It may involve serious bullying, causing children frequently to feel frightened or in danger, or the exploitation or corruption of children. Some level of emotional abuse is involved in all types of maltreatment of a child, though it may occur alone."

(ix)      The harm contributed by either form of ill treatment has to be "significant". Harm which does not satisfy this criterion cannot meet the threshold. To put it another way the law tolerates natural parents causing harm to their children as long as it is not significant. ...

(x)       The range of facts which may properly be taken into account in determining whether the threshold conditions are met is infinite. ..."

10.      It is important to emphasise the requirement that the harm caused to the children must be significant.  Where the Minister produces, as in this case, a chronology of previous events in the distant past which, it is asserted, demonstrates significant harm, the question is obviously posed as to why the Minister took no action at that long past date.  One would think that if it were so clear that as a result of the parent's lack of care, significant harm had been suffered by the child, action would then have been taken.  Of course, the Court recognises that the Minister does not wish to act precipitously in the bringing of proceedings; but in the context of assessing whether threshold has been passed as at the relevant date, a long history of alleged harm is likely to prompt a question as to whether it is significant harm, where the Minister has taken no action previously.

11.      The next general point to make in the context of assessment of threshold in this case is that it does not seem to us that the fact that a child may have been made subject to a child protection plan is of itself relevant to the question of threshold.  Making a child subject to a child protection plan means only that at that time, in the opinion of the relevant official in the Children's Service, the child was at risk.  That opinion is proof of nothing.  It is the underlying facts which are relevant to whether or not the child had suffered or was likely to suffer significant harm. We consider this is an important distinction for professionals in this area of the law to have in mind.  It is the Court's opinion as to whether or not threshold has been passed which is relevant, and the Court's opinion must be based on the facts.  The opinion of a social worker ten years ago that the child should be made subject to a child protection plan is not a fact of itself which is likely to carry much weight. This emphasises the need for proper records to be kept because, likely as not, the person who formed the opinion that the child should be made subject to a child protection plan many years ago will not be before the Court to give evidence and be challenged on that opinion.

The particular allegations

12.      One of the contentions which the Minister has brought is that the children have suffered physical and emotional harm as a result of the chaotic relationship and domestic violence which they have witnessed. Three allegations were made:-

(i)        On 28^th April, 2014, the Mother left the house and her two children and became involved in a fight in which her brother was involved outside the premises.  The only evidence of this before us is the States of Jersey Police official log.  It shows that the mother was subsequently arrested and found to be grossly intoxicated.  The children were checked, and were in the care of the Father who was mildly under the influence of a substance, but the police found that he was in no way incapable of caring for the children. The younger child was asleep in her crib, and in clean bedding.  The visiting police officer added the entry "I had no concerns for anyone in the flat and [the Father] appeared lucid and cooperative ... [the older child] was not present as she was at her granny's for the night."

It must not be thought for a moment that the Court condones the Mother's behaviour on this occasion and we do not.  Equally, it is perfectly apparent from the evidence we do have that this allegation does not justify a contention that the children have suffered significant physical and emotional harm by witnessing domestic violence. One child was not there, and the other child was asleep in her crib in the care of her father who was fit to look after her.

(ii)       The second allegation brought under this heading is that in November 2014 the police attended a disturbance at the parent's address to find the Mother in sole care of the children and intoxicated.  The Mother was found to be unfit to care for the children and was arrested. The older child was awake, and confirmed to the police officer that her daddy had been there. In response to this the Mother started shouting at her to shut up and she said "He hasn't been here, what are you talking about stupid".

Once again the only evidence before the Court in relation to this threshold allegation is the States of Jersey Police official log.  The police appear to have attended at the family's address in the early hours of 1st November.  The entry in the police log later that day is as follows:-

"[the parents] had an argument having drunk approximately 4 to 5 beers each through the course of the afternoon and evening.  Both their children were at home with them asleep, [one] on the sofa and [the other] in her cot.  The argument had been about [the Father's] half-sister who has been saying nasty things about [the Father], to all anyone she can, and attacked [the Mother] when she didn't believe her.  [The Mother] has been really upset by this and wanted to go and confront [redacted] who lived next door. [The Father] would not let her out the flat and physically stopped her. [The Mother] had no injuries.  [The Father] then left the flat, saying he would leave her for ten minutes to calm down. In the meantime the police attended following a report from a neighbour about a disturbance.  [The Mother] did not react well to their arrival, [the elder daughter] had woken at this point and was found to be safe and well, [the younger daughter] was asleep still in her cot."

The police log indicates that the Children's Service had attended at the premises during 1st November 2014 and assessed the condition which, though untidy, would not support a prosecution for neglect. The investigation was therefore purely based upon the Mother's state of intoxication whilst caring for the children.  She asserted that she was not intoxicated and only angry when the police arrived following the argument.  The police log shows that officers considered the Mother was intoxicated, and it contains this entry:-

"The concerns were due to the intoxication of the Mother and her being in sole charge of them at the time the police were there.  The flat is also full of piled up clothes all over the place and is generally messy, although [the older child] seemed clean and happy, albeit she was acutely aware of the argument between her parents."

The police log supports the contention that the older daughter told the police in her mother's presence that the four of them had been in the flat at the relevant time and that the Mother had shouted at her that the Father had not been there saying "He hasn't been here, what are you talking about stupid".  We find the allegation as set out in the Minister's threshold document at paragraph (2)(ii) factually proved, although we do not necessarily reach the conclusion that the children suffered significant emotional harm as a result.

(iii)      The final example under this heading is the contention that on 18^th July 2016, the police received a report of a young girl being slammed into the side of a 4x4 vehicle and shouted at.  The person was identified to be the Father, and the older child as the young girl in question.

This is a case where an unidentified member of the public has reported an incident of domestic violence which has been recorded.  The only evidence before us, other than that record, is that of the father who denies any such event took place.  He remembered the occasion because he had been asked questions about it by the police.  At the time the police clearly considered the evidential test was not passed, because no prosecution was brought.  We do not find there is any evidence to justify the allegation of physical cruelty against the older child.

13.      Dr Van Rooyen was instructed to make a psychological assessment of both parents.  She is also an expert in child psychology, although she has not seen the children and has not prepared any psychological reports on them.  She considered that these children must already be unstable in the sense that when asked about the possibility of returning the children to the care of their parents in the context of the parents' psychological state, she said that "if the children were not already unstable, it would be less of a concern".  We have no doubt that that implied assessment of the lack of stability on the part of the children was based on her assessment of the documents and what generally might be expected as to harm sustained by a child facing the experiences which those documents show.

14.      However, the fact remains that there is no evidence of these children having suffered significant emotional or physical harm as at the relevant date.  The Court accepts that they probably have suffered harm but there are no medical reports and no psychological reports and indeed no reports of anything demonstrating behavioural problems which would suggest that they have suffered significant emotional harm. 

15.      We should not leave this point without referring to three convictions which the Mother has in respect of neglect of the older child in 2010 and 2012.  Those convictions are matters of record, and she was sentenced at the time to probation orders, community service and subsequently in relation to the third charge a binding-over order.  The circumstances underlying each of those convictions were that the Mother was intoxicated.  The older child was placed in voluntary foster care for some five months in 2010 as a result of the mounting concerns regarding the parents' use of alcohol.

16.      We have no doubt that the older child suffered harm at that date.  We think this finding is relevant to the assessment of the risk of future harm, and we think it carries more weight in the context of an assessment of threshold at February 2017 in that context.  We note also from the records of the Children's Service that the social worker reports that the older child had taken two tablets believed to be clomazapam in 2010, when aged 2, that in June 2012 she had a cigarette burn on her arm and in September 2012 she failed to attend school until lunchtime, because she had been unable to wake her mother and father that morning.

17.      The Court's jurisdiction is not something merely to be conceded by the parties, and we must be satisfied that threshold is passed.  We make it plain that we are completely satisfied that it is passed, but we reach that conclusion for this reason.  We are satisfied that both parents have had a substantial problem with abuse of drugs and alcohol for many years.  There is ample evidence to this effect and it does not need to be summarised in the light of the acceptance that threshold has been passed.  We are also satisfied that while actual significant harm does not appear to have been established on the evidence before us, the abuse of drugs and alcohol which has taken place does mean that as at the relevant date it was likely that the children would suffer future significant harm as a result. Accordingly, on that basis, we find threshold is passed.

The proposals

18.      As we have indicated above, the Minister's application is for a final care order and permission to place the children in long-term foster care off island.  No foster carers have been identified on island and there is no suggestion that the children should be separated or put up for adoption.  Indeed the older child is of an age where adoption would not really be feasible in any event.  The Court does not have the luxury of time.  The family members indicated they would not continue to look after the children past the hearing date, and temporary foster care was available only until the end of July.  The reality of the choice facing the Court was therefore endorsement of the Minister's plan or a return of the children to the Mother.  In that latter connection, the focus of the Minister was on the Mother's historic abuse of alcohol, her inability to heed the warnings which had been given to her by the Children's Service and to follow up appropriately on the treatment which she had had since February 2017.  The Minister considered that her conduct generally showed an unwillingness to change and that therefore the Court was faced with a person who historically had shown she would do just enough to keep the children albeit only for a short while until her capabilities as a parent dropped again and the children faced once more a risk of significant harm.

19.      We now turn to the evidence.  We take first the evidence of substance and alcohol abuse.

The Mother

20.      A hair-strand test was conducted on 22^nd March, 2017.  The hair was examined for drug and alcohol markers over a six-month period. In short summary, the results of the test showed that cannabinoids, opiates, benzodiazepines and sedatives, methadone and methamphetamines were detected.  The tests of ketamine, cocaine, amphetamine and cathinones proved negative.

21.      As to cannabis, the hair sample was positive over each of the six-month sections, at medium concentrations as would be observed with recreational drug abusers, suggesting that the hair belonged to someone who was a repeated user of cannabis during the last six months.  As to benzodiazepine and sedatives, the hair sample proved positive - it was also positive for diazepam, sometimes known as Valium, over each of the six month sections albeit at low concentrations.  As at March 2017 the hair sample was positive for MDMA, also known as Ecstasy, at a low concentrations, showing that the hair belonged to a subject who was an occasional user of MDMA during the last two months before sampling.  Heroin abuse was not confirmed but the hair sample was positive for codeine and dihydro-codeine in the six-month section at a medium concentration suggesting a repeated use of these drugs during that period. There was a low concentration of methadone and its metabolite EDDP over the six-month period.

22.      The alcohol test results on the same hair strand test showed chronic and excessive alcohol consumption in the last six months before sampling.

23.      In short, the hair-strand test in March 2017 showed the Mother's abuse of drugs and alcohol at that time to be a serious problem.  She was, however, admitted to Silkworth Lodge Residential Rehabilitation Unit in or about May 2017.  This was a 12 week course of complete abstinence from drink and drugs. To her credit, the Mother completed that successfully.  We will return later in this judgment to other concerns which have arisen, but we note that although requested by the Children's Service to undergo further hair-strand tests in the autumn of 2017, the Mother did not do so at that time.  However, she did provide a hair sample on 23^rd March, 2018, and we have had an expert witness report from DNA Legal, forensic toxicologists in relation to that test.  It covers the six month period prior to the giving of the sample, and thus enables analysis of alcohol and drug consumption for the period from September 2017 through to March 2018.  At the request of the Guardian, further work was conducted to provide further forensic analysis on a month by month basis.  In summary, the findings were that it was more likely than not that the Mother had consumed cannabis repeatedly over the six-month period before the hair sample collection in March 2018.  Similarly, on a more likely than not basis, Diazepam, also known as Valium, had not been actively consumed during that six-month period.  The analysis indicated that it was more likely than not that opiates and cocaine had not been consumed over that period, and likewise amphetamines and methamphetamines had also not been consumed.  As to alcohol, there had been no excessive alcohol abuse over the six months before sampling, and furthermore the PETH test indicated that there had been either no consumption or very low consumption during the 28 days preceding the test.  In short summary, there had been regular cannabis use and either abstinence or very low alcohol use during the six months to March 2018.

24.      The Minister suggested that the March 2018 test results could have been affected by the Mother dying or bleaching her hair, because it is known that hair dye or bleach can affect the reliability of these tests - indeed the Mother confirmed that she was aware of that.  It was also clear the Mother had actually bleached her hair.  She informed us that this happened after the hair-strand sample was given, and that seems to be consistent with the evidence.  We do not find that the Minister's criticism of the hair-strand results obtained in April 2018 was established.

25.      When she gave evidence, the Mother accepted that she had had a problem with drugs and alcohol for some time.  She said that, on emerging from Silkworth Lodge, she had not lapsed back into her old habits but she agreed that she did still take cannabis.  She was trying to stop taking it and would continue her efforts in that respect.  She told us that she took cannabis to assist her in sleeping, and that if her children were returned to her, she would not take it any more.  She told us also that she had had one ecstasy tablet at New Year, and on two occasions had taken some alcohol - at around New Year she had a single shot of Sambuca and on Mother's Day 2018 (10^th March) she drank two cans of lager.  In her statement she said that felt sick afterwards, both physically because she was not used to drinking any more but also emotionally sick with herself because she realised she had let herself down.

26.      Both Dr Englebrecht, the consultant psychiatrist for the Alcohol and Drugs Service and Dr Van Rooyen, the clinical psychologist, considered that controlled use of alcohol would not solve the Mother's problems and that she needed to be abstinent.  They were both quite clear on that point.  The fact that the Mother had relapsed, on her own admission, twice in relation to the taking of alcohol was therefore of serious concern to the Minister.  It was suggested by Advocate Kerley that the relapse might well have been more serious, because officials found on attending at the Mother's premises in August 2017 that there was a half-empty bottle of alcohol in the fridge - and that therefore was only a month after emerging from Silkworth Lodge.  The Mother told us that the alcohol on that occasion was not hers and she had not realised it was there.  Finally in relation to alcohol we add this.  The twelve week course at Silkworth Lodge is the first part of what is sometimes described as a journey to assist those with chronic alcohol problems to overcome them.  No one pretends that twelve weeks is enough to cure the problem.  Accordingly Silkworth Lodge offer as stage two a twelve-week period in a four-bedroomed house, and at stage three a further twelve-week period in a self-contained flat where additional support is available.  They offer an aftercare programme with sessions on a Thursday afternoon.  If a participant misses a couple of sessions, they have to re-engage, and it appears the Mother has not done so.  Silkworth Lodge also has a drop in centre in St Helier, which was open six days a week in 2017 and is now open seven days a week.  Again the Mother has not availed herself of this.  She has not sought to take any anti-alcohol drugs such as Antabuse, and there appears to be some uncertainty as to whether she has sought any assistance at all from the Drug and Alcohol Service since she left Silkworth Lodge.  The Mother says that she has been in touch with them on two or three occasions to seek help but Dr Englebrecht told us that they had no records of any such contact.  She agreed, however, that there was a person working there bearing the same name as the person to whom the Mother said she spoke.

27.      It is said on behalf of the Minister that the Mother has regularly under reported her drug and alcohol use in the past, and that the probability is that she continues to do so.  She certainly does not appear to have availed herself of the assistance which Silkworth Lodge offers as aftercare, and she has not been to Alcoholics Anonymous on more than a few occasions.  She apparently has not found them helpful.  She has instead sought to rely upon herself to overcome her problems with alcohol and drugs, albeit she has had some support from regular meetings with two or three other inmates with her at Silkworth Lodge in 2017.  She told us she found that helpful, and no doubt there is that mutual understanding which enables some support to be available in that quarter.

28.      Our conclusions on the Mother's position are these.  We accept the evidence given by Dr Englebrecht and by the Guardian that the Mother has clearly made very significant progress between February 2017 and the date of the hearing in April 2018.  The hair-strand tests show that she has significantly reduced her drug and alcohol use.  We accept also the evidence of Dr Van Rooyen that her target must be complete abstinence from alcohol, and clearly she should not be taking illegal drugs of any kind.  To the extent that she does not hit this target, she is technically in a state of relapse; but in the Court's judgment, this is a time for a little understanding.  Chronic alcohol and drug abuse of the kind in which the Mother engaged up to April 2017 is not put to one side overnight.  It is, to use the jargon, a journey.   We take the view that the Mother is to be congratulated on her efforts in the first part of that journey; we have noted the occasional lapses which have taken place, which are a concern, but which do not take away from the progress made already.  If there were to be many more lapses, that may cause us to revisit that judgment.  Without in any sense encouraging the Mother to have just a few more lapses, we acknowledge it is perhaps possible that she will have some, but the longer she can avoid them, the better the chance of securing her long term future.  We have no doubt that as Dr Van Rooyen said, the zero hours contract which has provided her with almost permanent employment since December 2017 has proved to be therapeutic in its way. It has given her a sense of self-worth, which is entirely right, and assisted her financially.

29.      We also accept the evidence of Dr Van Rooyen that the Mother still needs to tackle the underlying problems which may have led to her alcohol and drug abuse in the first instance.  Tackling those problems does mean that she should try not to associate, and certainly not closely, with those who continue to have drug or alcohol problems and in that connection she should be careful about her ongoing relationship, through the children, with the Father.  The Mother told us that she was on the waiting list for an assessment at Talking Therapies.  She has not been on it for long.  In her report, Dr Van Rooyen indicated the counselling and therapy that she thought the Mother needed and in our view that assessment is one which should be implemented as far as possible.

30.      In other words, our assessment of the Mother's position is that she has made very good progress from where she was, and has done so despite not having the additional support following her leaving Silkworth Lodge which she was offered and should have taken up.  She should not imagine that it will be easy to complete this journey on her own and it is in the interests of her children that she should accept that.

The Father

31.      There are many reports of police attendances regarding the Father, as with the Mother, revealing him to have a problem with both drugs and alcohol.  He too was the subject of a hair strand test, the sample being given on 3^rd May, 2017.  The sample was examined for alcohol and drugs markers over a three-month period.  The results of the tests carried out showed the presence of benzodiazepines and sedatives, cannabinoids, opiates and methamphetamines.  The tests for cocaine, ketamine, amphetamine, cathinone and methadone proved negative. The hair sample showed the Father to be a repeated user of codeine during the three months before sampling and also a repeated user of dihydrocodeine.  The results showed a decrease in either usage or dosage over the period.

32.      The sample was also positive in showing that the Father had been an active user of cannabis during the relevant period.  It was also positive for the use of diazepam and Nordiazapam.  The concentrations were medium to low in the last month, and suggested repeated exposure to these benzodiazepines over the three month period before sampling. 

33.      The Father also tested positively for MDMA (Ecstasy) during each of the three month sections, suggesting that he was a repeated user of MDMA during that period.  Finally the ethiglucuronide concentration in the hair sample suggested chronic and excessive alcohol consumption during the three month period in question.  Alcohol consumption was regarded as excessive at 30pg/mg of scalp hair, and the level detected in his case was 123pg/mg.

34.      Dr Englebrecht reported that according to the Father, he has engaged in regular binge-drinking at weekends with his friends from the age of about 16.  That problematic drinking had occasionally landed him in trouble. He currently consumed 6 pints of lager twice a week and every weekend although he denied ever drinking on a daily basis.  The Drug and Alcohol Service records indicated that the Father started drinking for intoxication by the age of 12, and by the age of 18 that he was getting "hammered" daily.  Shortly after that the Drug and Alcohol records show that he served a sentence of three years imprisonment for grave and criminal assault whilst intoxicated.  Dr Englebrecht reported that it was likely the Father was dependent on opiates, benzodiazepines and cannabis and that his alcohol binges meant that he was prone to outbursts of aggression when drunk.  Dr Englebrecht also indicated that for any treatment programme or relapse prevention work to be successful, the person concerned must be willing to engage and have insight into their difficulties.  She thought that he did not acknowledge the full extent of his problems and he was ambivalent about attaining abstinence.  She thought he was unlikely to succeed in the light of the fact that he underreported his substance and alcohol use.  For example, he said that he currently consumed alcohol about once a month, which was at odds with the findings of the hair analysis which indicated he was an excessive alcohol abuser in the three months prior to sampling.

35.      The Father was also interviewed by Dr Van Rooyen who prepared a clinical psychological report upon him.  She thought it was of concern that the Father did not consider he required any formal assistance or treatment in relation to his longstanding alcohol and substance misuse, and that his resistance suggested a psychological dependency and a poor prognostic indicator for change in the short term.  When Dr Van Rooyen gave evidence before us, she emphasised that for his own health's sake, he needed to address those problems.  He under-reports his consumption, and clearly did not see the level of alcohol intake as problematic.  Although there was psychological work to be done with him, he was not ready for therapy because he had not reached the starting block.  The witness statement which he put before the Court indicated that he was not at all convinced of the problems which he faced and he was self-medicating in a very disruptive way.

36.      We heard evidence that the Father consistently refused to take a second hair strand test through the autumn and early spring of 2017/18, but he did agree to a blood test being taken on 4^th April, 2018.  This showed on the PETH test that he was still consuming alcohol excessively.

37.      When he gave evidence before us, the Father said that he was shocked by this result.  He accepted the scientific analysis.  He thought he had made considerable progress and reduced his alcohol intake, but it was clear that he had not done so.  He said that he was not a regular drug user, but he accepted that he had a problem with both drugs and alcohol.  When this evidence was put to Dr Van Rooyen, she thought that was an extremely positive sign. As she put it, his acceptance of his problem at least put him "in sight of the race track".  Nonetheless, she emphasised that he needed to take the same journey as the Mother had been taking, and he was some way behind her.  He needed to address his physical issues and his alcohol abuse and to understand how unstable he becomes with his alcohol intake.  This meant that he had to demonstrate his abstinence, and if he did not do so the children would not learn how to trust him - and instead might themselves adopt his maladaptive ways of coping.

38.      We accept that the Father has had and continues to have a serious problem with abuse of drugs and alcohol.  The witness statement which he put before the Court, signed on 18^th April 2018 does not show that he accepted even at that date that there was a problem. He is some distance away from having totally unsupervised contact, let alone being considered as a person who might be treated as the primary carer for these children.  That is likely to remain the position until such time as he can demonstrate that his addiction to alcohol and drugs is under control.

Disposal

39.      The parents currently have separate twice weekly direct contact with the children.  We have examined the contact logs.  They reveal that there is good contact between both parents and both children.  Dr Van Rooyen suggested there might be an attachment difficulty between the Mother and the children.  That seemed to us to be based upon the premise that objectively the children could not possibly have learned how to trust the Mother, as a result of her intoxication, and therefore they would feel an insecure attachment to her.  The Guardian was not sure that there was an attachment problem.  She thought the current presentational difficulties, to the extent that they existed, may just come from their age profiles and in particular from their uncertainty as to the ultimate result of the current proceedings.

40.      Having looked at the contact logs and considered the evidence which the parents gave to us, we are in no doubt that the relationship between the children and the parents is essentially good.  We are also in no doubt that the Mother - and indeed the Father - can, when not succumbing to drugs or alcohol, provide good enough care for the children.  It is important to record that that is our starting point.

41.      The reason for disposing of the present application as the Minister requests would have to be a conclusion that the parents - and in particular the Mother - would in the foreseeable future be unable to provide good enough care to these children.  Even if we were unsure about whether she could provide good enough care, there is in any event a question which remains to be addressed, namely that long-term foster care is only available if the children are placed in the United Kingdom.  On this occasion, the social worker has suggested a placement with foster carers employed by an agency such that the children would live in the Southampton area.  Her proposal is that these prospective foster carers, to whom she has not yet spoken, and who have not yet met the children, would come over to the Island in the next two weeks or so, and arrangements would be made for the children to travel to their new home during May half-term upon the basis that they would have the second half of this current summer term to settle in their new school prior to the summer holidays and then taking up the new school year in September.  The couple have been married now for approximately 40 years, and have taken to fostering relatively recently.  The social worker produced details about the school to be attended by the children which has been assessed by Ofsted as a good school.

42.      If the Minister's application were to be granted, the contact between the parents and the children would be much reduced.  Instead of separate twice weekly direct contact, this would be reduced to four direct contact sessions a year.  Given the proposed timetable for moving the children to England, that reduction in contact would take place fairly abruptly. The rationale for four contact sessions a year is to allow the children to develop secure attachments to their new carers and settle into their placement. In addition, it is proposed that there would be contact with the maternal and paternal family once a year, included in the parent's contact sessions.  It seems to be envisaged, at four times a year, that either the parents will exercise contact together, even though they are not a couple, or that they will each have two contact sessions a year, one of which would be shared with their respective families.  In addition there could be indirect contact with correspondence provided to the Children's Service in the first instance to ensure the content was appropriate.

43.      The Minister proposes that there would be some life story work in order that the children could understand their childhood, family and identity.  This would be completed by a member of the Children's Service.

44.      The social worker informed us that although she would be leaving the Children's Service at the end of May, she thought that she would have the opportunity to travel to the new foster carers in England a week after the initial placement to make sure that the children had settled and thereafter there would be four to six weekly visits from a social worker.  It is unclear who that would be, but clearly a new relationship with the children would have to be established.

45.      It is often the case that this Court is faced with public law children's cases with a series of uncomfortable options and frequently the Court has to choose the least worst option.  In the context of the present application, we need to say this about the Minister's proposal for putting these children in long term foster care outside the Island, a proposal which led to comments in this Court in relation to a different child In the matter of Cameron [2017] JRC 125A, which we endorse.  We should note that in this present case there is no evidence before us at all that these children need specialist psychological therapy, medical treatment or educational provision.  They are, perhaps surprisingly in all the circumstances, remarkably normal children.  They are not merely statistics; they are vulnerable young people whose upbringing to date has not been as consistent as it should, but who have a loving and apparently close relationship with both parents as is demonstrated by the contact logs we have seen.  They have the benefit of an extended family network on both the paternal and the maternal side and indeed have been staying with family members for much of the last fifteen months, during which there has been regular and good contact with their parents.  They both attend schools in the Island.  The older child has not progressed as well as she might, partly because she has not had a regular attendance until becoming a looked after child in February 2017, but she is now making progress.  The younger child has settled well into nursery class and is a bright child who has made good relationships with other children and with the staff.  Both children have a culture and heritage in this Island, and know no other place as their home.  They both have expressed the wish to return to live with their Mother.

46.      The Minister's proposal, if implemented, would uproot these two children from everything they know - remove them from their parents, their extended family including those with whom they have been staying for the last fifteen months, their schools, their friends, and indeed everything which is familiar.  They would be allocated foster parents selected by the agency with whom the Minister has contractual dealings, and approved by the social worker, foster parents whom as of now they have not met, and with whom they might or might not form a reasonable relationship.  They would be placed into schools where they know no one.  They will be far from home, and will see their parents, in all probability only twice a year unless their visits are conjoined.  In her evidence to us, Dr Van Rooyen said that if this process were extremely well managed, it would nonetheless have an outcome which was very distressing for the children.  If not extremely well managed it would be traumatic.  There is no indication that there has been any concerted effort to match the proposed foster parents to these particular children.  The social worker has not specifically spoken to them. As the Guardian said to us, anyone would be gravely concerned at the removal of these children from their parents, family, school, community and heritage.  The Minister asks us to balance the risks which are inherent in the Mother continuing in the care of the children - risks that things might go wrong - against almost inevitable damage to these children by sending them away, and to resolve upon the latter. 

47.      This Court has said before that it is simply not good enough to land the Court with a problem that there is no one on island to provide foster care and therefore children should be sent away.  If there are no foster parents available, the Minister must find other options whether those fit with what is currently thought to be good childcare practice in larger jurisdictions or not.  These are Jersey children, and the idea that children who do not need special care should be sent away simply because there is nobody here to look after them is unacceptable.  There is no other word for it.

48.      Unsurprisingly the Guardian does not recommend that the Minister's care plan should be adopted.  In her view the Mother cannot be ruled out entirely at this time as a potential carer for these children, and she thought one should not conflate an appropriate care plan with decisions about the parent's ability to overcome their various drug and alcohol problems.  She did not think that placing the children in the United Kingdom would have a good outcome, and we think that, if anything, that was an understatement.  As she pointed out, they will have no idea as to why they have been sent away; and, interestingly she pointed out that the Minister had not issued proceedings between 2010 and 2017 when the Mother's condition was far worse than it is at present, and yet now the Minister was contending that the Mother was unsuitable to have care of the children.

49.      If driven to it, we would have decided on 2^nd May that either there should be no order, or that there should be a supervision order with terms to be resolved after submissions had been received.  In either event, that would have meant that the children could stay with foster carers on a temporary basis if the Mother consented but otherwise they would be returned to her.  At the conclusion of her evidence, the Court asked the Mother a number of questions as to how she thought life would be if the children were returned to her, and to whom she would turn if there was any particular problem.  There was no doubt at all in our judgment that she had not really thought about practical arrangements at all - she had not really contemplated how she was going to manage getting them to school and maintaining her job, how she would arrange for them to be picked up, what other care would be available, what arrangements would be made for the summer holidays and so on.  There will be a number of practical things to think about.

50.      Furthermore it is clear that there is an amount of work with which she needs to engage - Talking Therapies; the 12 week emotional skills course; perhaps, if the children are returned to her, courses with Brighter Futures.  There is no reason why engagement with those initiatives should not start now. We recognise that in some cases delays are experienced in getting onto these courses and indeed there is said to be sometimes a 16 week waiting list for an assessment with Talking Therapies.  The Minister is ultimately responsible for both the Children's Service and the psychological services available through Talking Therapies.  His department can and should do better to ensure that in cases such as the present, which require immediate attention in the interests of the children who are at risk, there is a system of prioritisation which enables the right therapies to be made available at the right time.  We earnestly hope that some progress can be made in this respect in very short order.

51.      The Guardian interestingly suggested that a family group conference would be helpful if it were possible - as we understood it, an arrangement managed by the Minister by which family members were brought together to consider and agreed a package of support for the Mother as and when the children are returned to her.  It seems to us it would be very desirable to attempt that if family members are prepared to cooperate in such an exercise

52.      Given the work that has to be done and the relatively short time in which it might be done, we resolved that an interim care order would be the best solution.  It will clearly come to an end at some point between now and the end of July when the Minister's identified foster parents in Jersey will cease looking after the children, and at that point the current expectation is that the interim care order will come to an end and the children will be returned to the Mother, assuming she has not suffered any serious relapses.  It is probable that it would be appropriate that a supervision order be made at that time and a package of measures need to be considered constructively between the Minister and the Mother in that connection.  It seems very likely a family support worker will need to be allocated to the Mother in the early months until a routine has been established which works well for the children and minimises the stress for her, because stress will increase the likelihood of a relapse and all should be working to avoid that.

53.      The purpose of the interim care order therefore is to create a structure for organised progress towards the return of these children to the Mother over the next three months.  It will also enable the Guardian to continue to be involved, which we think will be helpful over that period.

54.      We should not like the Mother to think that the hard work is over.  It is not, and indeed in many respects it is probably just beginning.  As we indicated earlier, she has made enormous progress and is to be congratulated on it; but more needs to be done to provide these children with a consistent and stable base for the future.  It is right that she should have help from Social Services, but it is also right that she needs to commit herself in the following respects:-

(i)        She must continue her attempts to secure abstinence from alcohol and drugs.  She has told us that she finds the concept of abstaining from drugs easier than abstaining from alcohol.  We think it would help her to know that there will be regular hair strand and blood tests over the next three months so that her progress in this respect is monitored and indeed if there is a supervision order, that might well be a continuing obligation in such an order.

(ii)       She must engage constructively with the Children's Service and with the work which is recommended by the psychologist Dr Van Rooyen.

55.      With these commitments from the Children's Service and the Mother, we can be cautiously optimistic for the future and we very much hope that that cautious optimism will in fact be rewarded.

Authorities

Children (Jersey) 2002. 

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

In the matter of Cameron [2017] JRC 125A.