Jersey Unreported Judgments

Care order - reasons for not re-imposing the emergency protection order.

[2018]JRC105A

Royal Court

(Family)

20 June 2018

IN THE MATTER OF SOFIA (EMERGENCY PROTECTION ORDER)

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

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

Advocate C. Hall for the Mother.

Advocate M. J. Haines for the Grandmother

judgment

the deputy bailiff:

1.        On the 11^th June I made an emergency protection order with regard to Sofia (this is not her real name).  The context of that order was a disclosure by Sofia of three blows or slaps to her head by her grandmother in respect of whom there was a residence order.  There was continued pain in Sofia's ear some forty-eight hours after the blow was struck.  There was also report of some strike to the leg with a hard object but we know nothing more of that because we heard only reports of the complaints from Sofia and not from her directly.  There was some suicidal ideation which had been somewhat intensified from earlier occasions.  There was the serious matter of the lack of co-operation by the grandmother, confirmation by her that she had struck Sofia, and that she would do so again.  In the context of the residence order that then obtained I was satisfied that the test for an emergency protection order had been met and I made that order for a period of seven days.  

2.        The tests in law for the making of an emergency protection order are stringent ones and I refer now to the case of In the matter of Ruby (Emergency protection order) [2015] JRC 197 in which I summarised the position from paragraph 6 onwards:-

"The leading case on emergency protection orders is In the matter of B [2008] JRC 062A in which Birt, Deputy Bailiff (as he then was) referred to the overriding principles set out in the English case of X Counsel v B (Emergency Protection Orders) [2005] 1 FLR 341 and said:-

"I have carefully considered the matter summarised there; in particular the fact that summarily removing a child from her parents is a draconian and extremely harsh measure requiring extraordinary compelling reasons.  Such an order should not be made unless I am satisfied that it is necessary and proportionate and that no other less radical form of order will achieve the end of promoting B's welfare.""

3.        I then went onto say:-

"In the case of X v B (Emergency Protection Order) [2005] 1 FLR 701 Mumby J at paragraph 57 set out what he considered to be the most important points when considering the grant of an emergency protection order.  I do not need to set out all of the points made in that case but I summarise, I hope sufficiently, what I take to be the most important in the present circumstances they are:-

(i)        An emergency protection order is, as mentioned above, a draconian and extremely harsh measure and it requires exceptional justification and extraordinarily compelling reasons to make such an order.  The Court must be satisfied that it's both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. 

(ii)       The Minister assumes a heavy burden of responsibility and it is important that both the Minister and the Court approach every application with an anxious awareness of the extreme gravity of the relief being sought and a regard for the European Convention Rights of both the child and the parents. 

(iii)      The order should be the least interventionist possible consistent with the preservation of the child's immediate safety. 

(iv)      No order should be made for any longer than is absolutely necessary to protect the child and if an application is made on ex parte basis very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety. 

(v)       The evidence in support of the application should be full, detailed, precise and compelling.  Generalities will not suffice and the sources of hearsay must be identified. 

(vi)      Save in wholly exceptional cases parents must be given adequate prior notice of the date, time and place of any application. 

(vii)     The evidential burden on the Minister is even heavier if the application is made ex parte and in those circumstances there is a duty to make the fullest and most candid and frank disclosure of all relevant circumstances"

4.        The matter was returned before me on Monday last, and at that point it was put before me that the mother wished for Sofia to live with her.  The mother gave evidence but the grandmother did not.  The Guardian, Mrs Ferguson, who has helped the Court greatly, spoke with Sofia on one occasion prior to Monday and then prior to the hearing before me today and Sofia was happy and expressed the wish that she wished to be returned to her grandmother or mother but if necessary was not discountenanced by the possibility of remaining in foster placement for the time being.  

5.        Concerns have been raised concerning the mother's ability to parent.  There are concerns relating to the state of her living environment whether or not it is hygienic.  There were concerns relating to violence in her previous domestic relationship, which I have heard about at some length, including the fate of another child of that relationship.  I heard of the close relationship, clearly occasionally fraught, between the grandmother and the mother.  There are other items of evidence before me, but they are of a somewhat historic nature.  

6.        I heard the evidence from the mother as I have said, and I was impressed by her genuine desire to have Sofia back.  She has, what on any analysis, a responsible job and she provides.  Clearly she has had more contact with Sofia including staying contact either at the grandmother's house or at the mother's accommodation, than the Children's Service have been previously aware of. She has an understanding employer who has made arrangements to help her by adjusting her hours and holiday so that she can, if Sofia is in her custody, make the necessary arrangements with regard to delivery to and collection from school.  Similarly, in the few days between Monday and today she has made arrangements, which I have seen confirmed by a letter, to remove her brother from her accommodation.  Without making any finding, of course, I heard in evidence on the last occasion that the grandmother was somewhat fearful of him but that was not a feeling echoed by the mother.  In any event, however, he is removed from the picture and that is a situation that I would expect to see continue.  

7.        Concerns were raised about the sleeping arrangements were Sofia to return.  The mother has confirmed, however, in her evidence that proper sleeping arrangements (a separate bed for Sofia probably in the sitting room) will be put in place as quickly as possible.  What is important at this stage is that the mother will co-operate fully with the Children's Service.  She will co-operate concerning assessments and she will be guided by the Children's Service with regard to the care of Sofia and with regard to the contact or interaction between Sofia and the grandmother.  She will co-operate with unannounced visits and will take whatever help is available to her.  The mother has confirmed through counsel and in evidence that she will co-operate.

8.        There was no evidence before me that any physical threat was posed to Sofia by the mother.  There is certainly no evidence that were I to re grant the emergency protection order the dangers on which it was originally based would continue.  

9.        In the light of this and the legal test that I must apply, and in particular in the light of the co-operation that the mother has confirmed in evidence and through counsel that she will give to the Children's Service, I will not re impose the emergence protection order.

10.      I am assuming that Children's Service will give guidance to the mother as to the appropriate way that Sofia will be returned or given to her care and that I imagine the Minister will be moving to consider and interim care order and we have one scheduled, I think, for next week.

Authorities

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