Jersey Unreported Judgments

Care order - reasons for the Court's decision granting the Minister's application for a final care order.

[2018]JRC138

Royal Court

(Samedi)

27 July 2018

Before     :		Sir William Bailhache, Bailiff, and Jurats Ramsden and Dulake
Between	Minister for Health and Social Services		Applicant
And	(1)   A (the Mother) (2)   B (the Father) (3)   Emma and Ben through their Guardian (4)   I (5)   J		Respondents

IN THE MATTER OF EMMA AND BEN (CARE ORDER)

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

Advocate C. R. G. Davies for the Minister.

Advocate A. T. H. English for the Mother.

Advocate S. McFadzean and Advocate C. G. Hillier for the Father.

Advocate R. S. Tremoceiro for the Children.

Advocate B. J. Corbett for the Fourth and Fifth Respondents.

judgment

the bailiff:

1.        On 9^th July the Court granted the Minister's application for a final care order in respect of the Children and approved the Minister's care plan which involved placing the Children in long-term foster care outside the island in the United Kingdom.  An application by the maternal grandmother and her husband for leave to bring an application for a residence order was refused.  A similar application by Mr and Mrs K, aunt and uncle of the Children, was also refused.  This judgment contains the reasons for the Court's decisions.

History of family proceedings involving the Children

2.        Until July 2014, the Children lived with their mother in England.  The Court has previously been given information that the family was known to the local social services.  The Mother came to Jersey in July 2014 with the Children seeking refuge from domestic violence allegedly committed by the Father on the Mother.  The Children were placed on the child protection register on 22^nd May 2015 under the category of risk of physical harm, and in July 2015 the Court heard an application by the Minister for an interim care order in respect of them.  On 24^th July, the Court concluded that an interim supervision order was the more appropriate order to make, and full details of the Court's reasons in that respect are to be found in the judgment dated 7^th August 2015 under the heading In the matter of Emma and Ben (Care order) [2015] JRC 163.

3.        The interim supervision order appears to have worked satisfactorily because in July 2016 the Minister applied for a final supervision order rather than a final care order.  This was granted, and the detailed reasons handed down on 14^th September 2016.  Those reasons demonstrated that during the intervening twelve months, the Mother had been proactive and attended a number of programmes at H as recommended by Children's Services. She had completed a "Growing Together" course, a cookery course, a "Mellow Parenting Programme" and a "Making Changes" programme.  She was attending the "Incredible Years" programme and the "Inbetweenees" programme. All seemed positive and, in particular, the evidence demonstrated that she had good routines, was organised and put boundaries in place for the Children.  The Children's Service did not have any current concerns at that time about her then partner's involvement with the Children, although the social worker considered that while the Mother was liable to minimise her consumption of alcohol and might well be consuming more than she disclosed, she, the social worker, had not witnessed the Mother to be under the influence of alcohol when she visited the family home on either announced or unannounced occasions.  The evidence was that the Mother provided good enough parenting for the two Children and had worked in partnership with the Children's Service in an open and transparent way.  Accordingly the Court made a supervision order for a period of twelve months.  Details of the reasons for that decision can be found at In the matter of Emma and Ben (Supervision order) [2016] JRC 164.

4.        Regrettably all did not continue so well. On 28^th June 2017 the Minister applied for an interim care order in respect of the Children.  The Court agreed that that was the only appropriate order to be made, and indeed this was one which was supported by the Guardian. The fundamental problem was the Mother's alcohol consumption, which she indeed reported herself, thus putting the interests of her two Children above her own.  She agreed to them being placed in a short-term foster placement. The Court ordered the production of a dual alcohol/drug and mental health assessment in respect of both parents, to be conducted by Dr Englebrecht and the production of a statement from CAMHS in relation to the younger child.  In particular, both parents were ordered to provide the Minister with names and contact details of any persons whom they wished to put forward as alternative carers of the Children by 13^th July 2017.  At that time it was anticipated that a final hearing would take place on 29^th January 2018, although that date was subsequently vacated. On 29^th March, a directions hearing was held when it was ordered that Dr Mair Edwards, who had provided a psychological assessment of both the Children and the parents, should prepare an addendum report and that further medical evidence would be obtained from the hospital and from CAMHS.  At a hearing on 10^th April, the Minister applied for the Court's approval to place the Children outside Jersey with United Kingdom foster carers, but on hearing from the parties, the application was withdrawn, it being noted that the Children would be cared for by their maternal grandmother until the date of the final hearing, fixed to commence on 18^th June.  Given the difficulties which had then arisen, the Court appointed an advocate for the Children.  Between the making of the interim care order in June 2017 and the application for a final care order in June 2018, the Children had been cared for by the maternal grandmother for approximately five to six weeks, by a series of foster carers in Jersey, and then again by the maternal grandmother from April 2018 as indicated above.

June 2018 applications

5.        The final hearing - or what was expected to be the final hearing - dealt with an application by the Minister for a final care order, with a care plan placing the Children in long-term foster care in the United Kingdom.  There was also an application by the Fifth and Sixth Respondents (the grandmother and her husband, both now joined to the proceedings) for leave to bring an application for a residence order.  The Court was aware that the Mother's sister, K, also wanted to bring with her husband an application for leave to bring an application for a residence order.

Viability assessments made

6.        A number of viability assessments of the extended family were made by or on behalf of the Minister.  These included assessments of the maternal grandfather, the Mother's sister, L and her husband, living in the UK, and, at the Mother's request, the paternal grandmother.  Neither the maternal grandfather nor the maternal aunt, L, and her husband wished to be considered as carers for the Children.  In case this judgment should ever be read by the Children, it is to be emphasised that this decision on their part was absolutely nothing to do with them - it was simply a reflection of their aunt's concern that there would be instability introduced by the relationship which existed with the Mother and the maternal grandmother. We will deal with the matter later in more detail but relevant to the grandmother's application for leave to bring an application for a residence order, L, her daughter, said that she would be unable to have any dealings with either the Mother or the maternal grandmother because her wish was to protect her own family from them.

7.        The report on the paternal grandmother was commissioned when unfortunately she was suffering from a bout of pneumonia.  The grandmother emailed a few days later to explain that she was going into hospital for her illness and did not know her date of release.  Subsequently she was released and since that date had been recuperating at her own sister's home, and later at her own home.  Two months later, the paternal grandmother said that she was still recuperating and was not able to provide a time when she might meet those carrying out the assessment in person.  A decision was subsequently made therefore to terminate the prospective assessment.

8.        A viability assessment on the maternal grandmother and her husband was prepared in June 2018.  The conclusion was that they would not be viable options for long-term care and the assessment was negative.

9.        The Fostering and Adoption Panel considered on 5^th June an assessment of the paternal grandparents as potential connected person carers.  For a number of reasons disclosed in their recommendation, the Fostering Panel concluded that the paternal grandparents could not be recommended as prospective connected persons carers.

10.      Finally, an assessment was carried out in June 2018 of the maternal aunt (K) and uncle, Mr and Mrs K.  Mr and Mrs K live abroad but it was thought would be prepared to return to Jersey to look after the Children here.  They do not know them well.  They came forward at the last moment when they heard about these proceedings and the assessment was inevitably rather hurried. It was not a full connected persons assessment.  The social worker had not had the opportunity of observing Mr and Mrs K in the company of the Children but the assessment was that the couple did not have the skills required to meet the Children's daily needs - this included a lack of insight in relation to the Children's needs and only limited awareness of high functioning autism and ADHD. Again, we will return to our assessment of this possibility later in this judgment.

The Father

11.      The Father has moved in and out of the present proceedings.  At times, he has communicated with the Children's Service, and at times he has exercised Skype contact with the Children.  However, he has not been reliable in his contacts and although at one stage he appeared to show a promising interest in the Children, that has not in reality been maintained.  We will deal later with the question of any contact he may have with them but we note at this stage that he did not give Advocate McFadzean any proper instructions in relation to the hearing which took place between 18^th and 21^st June, and he did not appear in Jersey for that hearing.  The Court resolved to proceed in his absence as it was in the best interests of the Children that we did so.  In addition, given that she was without instructions, we released Advocate McFadzean from that hearing.  On 9^th July, at the resumption of the hearing, Advocate Hillier appeared on behalf of the father.  Once again the Father did not appear, apparently because there was some difficulty obtaining transport in London, and Advocate Hillier had only limited instructions. The Father had not actively provided consent to off-island foster care, but he had indicated a wish to have contact at some future date. In the light of the Father's failure to appear, the Court resolved it was in the best interests of the Children to proceed in his absence at the adjourned hearing on 9^th July.

Threshold

12.      The Minister's threshold document showed that on 29^th July 2016 the Children were made the subject of twelve month supervision order based upon a sentence of the Mother on 29^th September 2015 to a twelve month binding over order in respect of two charges of intentionally or recklessly exposing a child to a risk of harm, to which offences the Mother had pleaded guilty; and given the concerns arising from hair strand test results, which suggested that the Mother had consumed chronically excessive levels of alcohol in the period between May 2015 and the end of November 2015, the threshold document asserted that, following the making of the supervision order, the Children had been at continued risk of significant physical harm due to the Mother's misuse of alcohol, and extensive details were given.  Furthermore, on 2^nd October 2016, the Mother had been found in a car where Emma was not wearing an age appropriate seat belt and Ben was sitting on her lap without any proper protective seat belt - in circumstances where the driver of the car, as was known to the Mother, was on the sex offenders' register.

13.      The threshold document asserted that the Children were at risk of significant harm by way of neglect - the Mother had not ensured that the Children attended school on 24^th May 2017, and the school could not contact the Mother on that day; indeed she was unable to care for them as she could not wake up and kept falling asleep and the Children had to put themselves to bed.  Furthermore, Ben required a stable household routine to control his ADHD, but the Mother's dependence on alcohol prevented this. It was noted that the Mother had been discharged from the Alcohol Service due to lack of engagement.

14.      The Children were said to be at risk of significant emotional harm for numbers of reasons, and that they had also suffered significant harm as a result of the abusive relationships which the Mother had had.  It was noted that in the United Kingdom, Social Services had recorded 17 incidents of domestic violence on the part of the Father, and there was, apparently, a non-molestation order in place which prevented the Father from having any contact with both the Children and the Mother.

15.      Threshold was not contested by any party.  The evidence before the Court over the four days of the initial hearing and the subsequent hearing, and all the submissions made were aimed at the care plan rather than the question of threshold. The social worker, Deborah Welding put in a detailed witness statement in support of the Minister's threshold document and was not cross-examined upon it.  We also have the advantage of a chronology which had been prepared from the Children's Service files.

16.      Having regard to the contents of the evidence given by the social worker, we were satisfied that threshold had been passed and that the threshold document provided adequate particulars as to why that was so. Accordingly we have gone on to consider the no order principle and the least intrusive order against the welfare test which the Law requires us to apply.

The evidence

17.      The Court heard evidence from Mrs Welding, the social worker who has been the social worker for the Children for approximately twelve months and considered that she knew them fairly well. We also heard evidence from Dr Mair Edwards, a clinical psychologist specialising in the psychological assessment of parents and Children for family courts, from the headmaster of School A which both Children attend, Mrs Jane Jones a team manager at the Children's Service with general oversight of this particular case, Mrs Crossman Anderson, the supervising social worker in the Fostering and Adoption Team, the maternal grandmother and the Guardian.  We also had the advantage of a substance misuse (alcohol and drug) report on both parents prepared by Dr Tania Englebrecht, who did not give live evidence before us, and likewise a detailed report from a clinical psychologist Mr John Castleton, on the Mother, together with various letters from other medical practitioners - Dr Coverley, dated 1^st August 2017, Dr Posner dated 7^th August 2017 and Dr Hamilton dated 11^th August 2017.  We had a statement from Dr Amar of the Jersey General Hospital in relation to the Mother's attendance in hospital on 25^th May 2018.

18.      There was a wealth of evidence in these various medical reports, and it should be read in conjunction with the police disclosure, an autism and social communication team report, and various other reports which we have been shown.  However, we think we can summarise the reports as follows.

The Mother

19.      Dr Englebrecht was of the view that the Mother suffers with alcohol dependence syndrome, which is characterised by a cluster of behavioural, cognitive and physiological phenomena that develop after repeated alcohol use, which include a strong desire to drink alcohol, difficulties in controlling its use, persisting in its use despite harmful consequences, giving a higher priority to alcohol use than to other activities and obligations, an increased tolerance and a physical withdrawal state.  She self-referred to the Alcohol and Drugs Service in June 2017, and her general practitioner provided her with medication to facilitate a detoxification from alcohol at home.  She relapsed two days after completing it. She sought an assessment from M and attended some Alcoholics Anonymous meetings to show her commitment.  Indeed she was abstinent from alcohol one and a half weeks before entering the M rehabilitation programme, which she completed over a three month period. Dr Englebrecht considered her alcohol intake was due to emotional dysregulation, which is a trait of emotionally unstable (borderline) personality disorder.  The Mother does not have a significant mood disorder or psychotic illness.  Dr Englebrecht went on to say that alcohol and substance dependence are increasingly viewed as chronic disorders and are relapse prone. The risk of relapse is particularly problematic in the first three years of abstinence and never completely goes away. 

20.      In his report, Mr Castleton recorded the Mother's description of her own background that was disrupted and dysfunctional. She had many moves of home; periods in care, her education was disrupted and she did not complete her statutory schooling.  She reported experiencing physical, sexual and emotional abuse or neglect, and had a history of deliberate self-harm, anxiety and low mood.  Mr Castleton reports that he thought her relationship with her parents was ambivalent.  He noted that Dr Edwards had described her impression of the Mother's childhood as being someone who had "lived in a chaotic, emotionally neglectful, and sometimes violent environment", and in Mr Castleton's view, that was true for much of the Mother's adult life too as she had had three significant relationships which have been dysfunctional. He agreed that there was no suggestion in his assessment of any serious mental illness.

21.      Dr Mair Edwards made it plain that the Mother had no sense of emotional security in her childhood, and she had therefore formed insecure attachment strategies which have become part of her personality traits.  She was articulate, and had no learning disabilities. She had no serious mental illness. She was highly vulnerable within relationships and struggles to protect and consistently to prioritise her Children.  In her written report in May 2018 Dr Edwards noted that whilst the Mother had apparently engaged in various interventions, the overall impression was of a pattern of engaging and then disengaging, with no evidence of any sustainable improvement in her functioning. In her oral evidence before us, Dr Mair Edwards told us that the Mother had deteriorated over the last two years.  She noted in particular that this was a severed and dysfunctional family.  She also noted that the Mother had drunk champagne with the maternal grandmother on leaving M in October 2017, which was not only a poor indicator for the future, but also revealed the extent to which there was a lack of understanding by the maternal grandmother of the problems which her daughter faced.

The Father

22.      In her written report Dr Englebrecht gave detail of the Father's substance and alcohol history. He had experimented with substances from a very young age, starting on cannabis at the age of nine and using amphetamines and LSD at the age of twelve and thirteen respectively. He was introduced to crack cocaine and heroin at the age of sixteen. That substance misuse had serious consequences including homelessness and acquisitive crime, which resulted in convictions for shoplifting and theft.  He had a chaotic lifestyle for many years.  The father also had an excessive use of alcohol and with that historic problematic alcohol consumption came domestic violence. Dr Englebrecht reported that the Father had no serious mental disorder, i.e. no psychotic illness or significant mood disorder. He had no diagnosis of schizophrenia.  She noted that he had regularly been reluctant to engage with psychological therapy services in the past. At the time of her first report in January 2016, the Father was in a good emotional place, referring to his then current stable relationship with a girlfriend. Regrettably, it appears that relationship may have since broken down.

23.      In her report of February 2016, Dr Mair Edwards noted that the Father felt that since he had been separated from the Children they were "missing out on family".  He expressed considerable sadness apparently, stating "I love the kids to pieces - they're my whole world - there's nothing I wouldn't do to prevent them from being hurt". Later in the session, she reports him saying "I love my Children - I am their dad - I can offer stability".  "Me not being in their lives has had an impact on them".

24.      Dr Edwards considered that the Father remained vulnerable to relapse in both his emotional and mental health and alcohol and substance misuse, particularly if he encountered difficulties in his current relationship or other difficult life events.  She thought that his coping and problem solving skills were not well developed and that he was not particularly resilient. Any question of contact would need to be reviewed against an assessment of the risk of any relapse on his part.  She noted that he had himself experienced a chaotic and neglectful childhood with emotional neglectful parenting. This has made it difficult for him to form secure attachments, vulnerable to mental health problems such as depression and made it more difficult for him to forge a healthy intimate relationship.

Emma

25.      The psychological assessment of Emma has changed over the three year period since the first supervision order. Originally Dr Edwards considered that Emma was not presenting any particular difficult or challenging behaviours, although some of them were oppositional and defiant in nature.  Information then suggested she was a child of average to low average cognitive ability who had not been achieving her full potential. Dr Edwards considered that that was a reflection of the unsettled nature of her home environment, which is not conducive to attending and concentrating on learning.  Dr Edwards did express the view as long ago as 2015 that Emma had developed a type A insecure attachment strategy to her Mother, where she feels responsibility for both her Mother and her brother, and she had a tendency towards being overly self-reliant.  This presented as a slightly anxious approach - with avoidant behaviour. She appeared to be hyper-vigilant, to ensure that all is well in the world, and her slightly low mood at that time reflected uncertainty about her relationship with her mother and feeling second best to her brother. The update in May 2016 suggested that she was less challenging in the home setting than had been the case in September the previous year, reflecting reported improvements in routines, which would have a beneficial impact on her feelings of security and safety.  She was still presenting with anxiety (including borderline post-traumatic stress problems) and withdrawn/depressed symptoms.

26.      When Dr Edwards gave her evidence before us, she said that it was clear that Emma was deteriorating in her behaviours.  She was more withdrawn and suffering difficulties in peer relationships.  She thought we should all be very worried about her future development. Given the inconsistencies in her upbringing so far, Emma needed better than average parenting.  One of the particular difficulties was that because of Ben' needs, which we will turn to shortly, Emma's needs received less attention. 

27.      Normally Dr Edwards considered that siblings should remain together where there was a positive sibling relationship. Where however one sibling always received more attention than the other, it was very important new carers should give the same amount of attention to both siblings in the future if they were to be placed together. In her view one would need certainty to ensure they could manage both siblings. The worst outcome would be yet another placement failure and Emma, in particular, needed carers who would alleviate her problems in sorting her own attachment strategies.  The carers would need to understand attachment difficulties and work along therapeutic lines.  Dr Edwards said that Emma was very concerned about her mother and she would need regular contact with her mother to know that she was functioning well.  She has felt responsibility for her.  Dr Edwards also told us that her elder half-sister, N, is an important figure in Emma's life, for her sense of belonging to the family.

28.      Dr Edwards thought that Emma's needs would be much better met in a single placement, where she was likely to go back to being the happy child she once was.  In a single placement, it was unlikely that her needs would be overlooked.  The risk was the sense of loss in not being with her sibling, and it was important that the level of contact with her brother should be carefully managed. She thought that Emma needed to be able to absolve herself from responsibility both for Ben and for her mother, and she needed to learn to be a child again.

29.      We had the benefit of a school report dated April 2018 from School A.  Her attendance and punctuality at school was high and her uniform consistently clean and appropriate during the periods September 2017 to April 2018.  Prior to September 2017 she had presented as a child who was reluctant to engage openly with adults or peers in school, and she was not open to support in the classroom. However, some of the work done with Emma at school had had a positive impact and as at March 2018, she had made good progress.  Although still shy, she was beginning to respond to her academic potential more readily. Since returning to school on 16^th April, however, she had become more withdrawn, both in the classroom and in the nurture group setting. Staff had noticed she was less open and engaging with them than she was before the holidays; she was more reluctant to attempt activities independently, and needed significant adult support to undertake tasks.  When he gave evidence before us, the headteacher said that emotional resilience for Emma was a worry, as was her anger and frustration towards Ben.  He felt there were attachment issues which needed exploring. Emma was currently below the age related expectations of her educationally, but not irredeemably so.  There was still time to get things right.  He was asked whether she was a happy, bubbly child and his response was:-

"No, quite opposite. She has become more withdrawn. She used to call in and see me but that hasn't happened for some time."

30.      In cross-examination, the headteacher said that Emma changed around about March or April this year.  Over the last twelve weeks to the hearing in June, she had become less open, more closed and more guarded.

31.      In cross-examination by Advocate English, the headteacher said that Emma was indifferent or ambivalent about her brother's outbursts. He said that Ben had gone into Emma's class the previous day, and she would not make eye contact with him. In addition she has been physically aggressive, and that is part of her long-term frustration. In answer to Advocate Tremoceiro, the headteacher said that Emma needed an opportunity to thrive away from the extreme demands which Ben has made on her.  She has taken a great responsibility for him, and in his view she was just now becoming angry about it.

Ben

32.      In her report in May 2016, Dr Edwards records that Ben's mother described him as needing a lot of attention. His mother also referred to his impulsive, risk-taking behaviours. She described his "complete lack of sense of danger" even though he might know the consequences.  As the Mother put it "He doesn't seem to care in the moment. He is impulsive - he just does it". 

33.      In her last report to the Court, Dr Edwards noted that Ben had been diagnosed with both Attention Deficit Hyperactivity Disorder (ADHD) in April 2017 and with Autism Spectrum Disorder (ASD) in October 2017. It is not uncommon for such comorbidity to be diagnosed. Whether the observed symptoms seen in Ben are as a result of those disorders or whether they flow from attachment difficulties was a matter about which the experts disagreed.  In October 2017, Ben was diagnosed as having high functioning ASD and the school report showed that he had a record of need for social, emotional and behavioural difficulties, and was provided with one to one support in the school setting. However his school attendance was poor and by June 2017, he had also been excluded on six separate occasions due to his violence towards staff and other children.  Dr Edwards said that if Ben' behaviours are not effectively managed, he will develop into a highly challenging child and young person where it may be difficult to keep him or others around him safe from harm.

34.      Dr Edwards said that due to his complex presentation, Ben now needs a placement that has experience of working with children with complex needs, and which offers a highly structured, predictable and consistent upbringing in order to contain his challenging and aggressive behaviours. In view of the high levels of need which he had, Dr Edwards thought that it would be difficult to place Ben in an environment where there were other children of similar or younger age as this might impact upon the quality of care which he received. In view of the considerable difficulties in the relationship he had with his sister, and in view of his significant additional needs, Dr Edwards thought it was appropriate to consider separating the siblings at this stage so that their needs could be met without them being in competition with one another.

35.      In the formal report obtained from School A, it was said that since March 2018 Ben's behaviour in school had changed. He had found it increasingly difficult to focus on established routines and systems for engaging with the curriculum and the class, resulting in his exiting the classroom and his workstation, despite full-time adult support and on occasions two to one adult support. The report shows that Ben has shown a lack of regard or awareness as to his own personal safety - he has jumped through the office hatchway without knowing what is underneath, climbed high furniture, hidden under a parked car and run across a road without stopping or checking. He has started to self-harm again, by punching himself in the face or pinching himself. He has said he wants to die.

36.      In evidence before us, the headteacher said that Ben had a high level of impulsivity, and would take high levels of risk. His behaviour is not really predictable and environmental factors tended to have a big impact on him. Noise really agitated him.  He described how, with four hundred children in the corridors, school was quite a noisy place, and the school had suggested to the maternal grandmother that Ben should be dropped off at school later so he arrived on his own at a time when the other children were not around.  On the Monday of the preceding week, he had been dropped off at 9am and all was quiet and went well. However, he was dropped off earlier for the next two days, and on the Thursday when that happened, the headteacher told the maternal grandmother's husband to take Ben around the park for a bit.  It appears he did not do so, and Ben had significant difficulties and became very agitated after spending some 20 minutes in a noisy corridor.

37.      His behaviour with staff is very difficult. It is inconsistent.  He has also pulled out the hair of other children, and has threatened to poke his teacher's eye with a pencil.  All in all, he is the school's most needy child.  The medication will help but the problems will not go away and the professionals have now reached the view that his needs were not best met in mainstream primary education.  The headteacher said that Ben was not a person with whom one could negotiate. He needs experienced staff, able to deal with autism.  His own staff are not trained in that way.  He emphasised that Ben was currently high functioning compared with others his age but he was likely to plateau in his functioning skills if the domestic issues did not improve.  However, he had a phenomenal memory, was articulate and reasons well.  He was not interested in literacy.

38.      We also noted a letter from Dr Posner dated 30^th April 2018 in which she said that Ben had engaged well with the sessions offered by CAMHS so far, but given his age and developmental problems, most of the support had been offered to adults around him. Dr Posner added however that:-

"I do hope that some resolution on the matter of placement is offered as soon as possible to Ben.  As you are aware it has been very difficult for him to manage the uncertainty of the situation that has been offered to him since he was removed from his mother's care."

39.      A good summary of the evidence which we heard in relation to Ben is to be found in Dr Edward's most recent report:-

"Due to his complex presentation Ben now requires a placement that has experience of working with Children with complex needs, and who can offer a highly structured, predictable, and consistent [sic] in order to contain his challenging and aggressive behaviours, whilst at the same time stimulating his development through a range of activities. In view of his high levels of needs, it is my opinion that it may be difficult to place Ben within a placement where there are other Children of a similar or younger age as this may impact on the quality of care that they receive."

Other evidence

40.      The Court heard detailed evidence from the social worker, Mrs Deborah Welding, and also from Mrs Jones, her team manager. Mrs Welding told us that the maternal grandmother had put her and her husband forward as potential long-term carers on 10^th April this year, and they had not been suggested as such carers by either of the parents.  As late as 10^th April, Mr and Mrs K had also not been mentioned by the Mother. 

41.      Mrs Welding told us that when she completed the sibling assessment in March 2018, she had concluded that the Children should be placed separately because their competing needs negatively impacted on each other daily.  She identified that Ben's needs were different from those of Emma, and the Children would be less likely to be there for each other as they grew.  Emma required focussed time and there was a potential that she would not thrive as life could too easily become "Ben's world" and others, including Emma, would need to conform.  However she had changed her view since March 2018 and for that reason the care plan proposed a single placement for both Children.  She told us that the Children loved each other and that there would be a better outcome in her view when they reached adulthood if they had had the same placement experience. She advanced details of the proposed foster carers in England, rather late it has to be said.  The proposed placement was in O and the female carer was a teacher with experience of teaching children with ASD and attachment difficulties. Both foster carers were well-equipped to meet the needs of both Children, and had undertaken specific training. They had both fostered children before and could ensure that the Children had quality time together.  She confirmed they had previously fostered children with ASD and attachment difficulties.  She explained her change of mind in relation to a joint sibling placement by informing us that at the time of the sibling assessment, the Children were struggling in their previous foster placement and were competing for attention. However, since they had lived with the maternal grandmother and her husband, they were the only children in the home and they seemed to be slightly better together at the moment.

42.      She told us of the different care arrangements that had been made for the Children since July 2017.  Initially they were taken into short-term foster care, but then there was a difficulty over the summer when fortunately, the maternal grandmother agreed to come over to the island and look after them for some five weeks.  Thereafter the Children settled with what had been hoped to be a secure and stable foster placement until the final hearing, but it had broken down, largely because of the effect that the Children were having upon the other children in that placement. As a result, the Minister had brought an application to the Court in April to have the Children placed in short-term foster care in the United Kingdom pending the application for a final order. However, the maternal grandmother had again offered to look after the Children in Jersey, and that offer had been accepted. She was not however approved for the purposes of the Children (Placement) (Jersey) Regulations 2005 and in those circumstances the maximum period for which the Minister may place a child with a person who is not an approved foster parent is twelve weeks.  That period therefore in respect of the maternal grandmother and her husband was set to expire on 9^th July.  We were informed by Mrs Welding that temporary foster care thereafter would be available with a local couple for a short while, but it was essential that arrangements for the Children be made in short order or the Minister would have nowhere to house them in the island.

43.      Mrs Welding also then gave evidence on her appraisal of Mr and Mrs K and of the maternal grandmother and her husband.  As far as the Ks were concerned, she understood their feeling of obligation towards the family, but the following features were, in her view, overwhelming as to why they would not be suitable long-term carers:-

(i)        They did not show any sufficient understanding of the Minister's concerns in relation to these Children.

(ii)       They had no relationship with either Emma or Ben, having seen them only three times in their lifetime.

(iii)      They had no Children of their own.

(iv)      They had no experience of Children with special needs.

(v)       Mrs K referred to the Children on more than one occasion as "a project".

44.      In addition, Mr and Mrs K did not say where they were going to live nor how they would manage financially.  Mr K said he found it difficult to manage his anger.  Given that both Emma and Ben could be extremely challenging, and that Ben in particular is well aware how to get a reaction from adults, her view was that Mr and Mrs K were not suitable long-term carers.  In any event, an appraisal of them through a connected persons assessment would take too long and was outside the Children's timescales.

45.      As far as the maternal grandmother and her husband were concerned, Mrs Welding was worried about the maternal grandmother's history in relation to her family; worried by her view that the grandmother did not take advice from the Children's Service, in particular in allowing the Mother to stay overnight at their accommodation, having unfettered access to her Children; not confident that the maternal grandmother would be open and honest with the Children's Service and her basis for that last comment was the impression she had that the maternal grandmother had been guarded and selective in the information she was willing to share in relation to her own children.  There had been allegations of sexual abuse within the family and she was not sure that the maternal grandmother would protect the Children. For example, the grandmother considered that the Mother had been abused by her father when she was younger, but at no time was she in touch with Children's Services when Emma and Ben were seeing their maternal grandfather in 2013/2014.  Furthermore, Emma's half-sister, N, has accused another member of the family of sexually assaulting her but the maternal grandmother has never contacted the Children's Service to say that N herself might as a result be a sexual risk to a child. All in all, Mrs Welding did not see the maternal grandmother as a protective factor.  However her negative appraisal was based on other factors as well - the grandmother's health, her belief that there was no emotional warmth between the grandmother's husband and the Children and because the age of the maternal grandmother and her husband was such that, when the Children might be expected to be at their most challenging, both she and her husband would be in their 70s, if not older in the case of her husband. This last view was very much supported by Mrs Jones, her team manager. She was quite clear that the maternal grandmother and her husband were not suitable or viable long-term carers for the Children.  Ben's behaviour, which was challenging now, was likely to become worse and the physicality of a six year old is not comparable with that of, say, a thirteen year old.  Care proceedings in this case have continued a long time, and Mrs Jones said that it was important that the Children knew what was going to happen to them.  Giving the maternal grandmother and her husband an opportunity would be damaging if later it was necessary to remove the Children from them.  Mrs Jones also told us that she considered the maternal aunt and her husband to be well motivated but they could not provide the level of care, the "better than good enough parenting" referred to by Dr Edwards which these Children needed.

46.      The Court also heard detailed evidence from the maternal grandmother and from the Guardian, which we deal with below. 

Discussion

47.      In essence, the question of threshold having been conceded and the Mother agreeing that she was not able to provide care for the Children, the Court was faced with a straightforward choice between the Minister's care plan which provided for long-term foster care off island or residence orders, either for both Children with the maternal grandmother and her husband or with the maternal aunt and her husband, or a combination of one child with each of them.  In considering that decision, we have to have regard to the welfare test set out at Article 2(3) of the Law and the starting point therefore is the wishes of the Children with whom the Court is dealing.

48.      Emma is aware that the Court is considering long-term foster care in the United Kingdom. It presents mixed emotions for her according to Mrs Jones.  In some ways there is an air of excitement, but understandably some anxiety. Mrs Jones thought that the Mother's suggestion that each child should be given a map of the country with pins to show the Children where their sibling and mother were would be helpful. According to the Guardian, Emma has told her firmly after the June hearing that she does not want to go to the United Kingdom.  She has been told something of the proposed long-term foster carer, and she thought that because this lady had animals, she must be lonely. Emma was very distressed. Although she does not cry, she sucks her thumb when upset and she asked the question "Is it because of me?"  When the Guardian saw Emma a little later, she spoke about the good time she had had with her temporary foster carers going to the beach, swimming and having a fish and chip supper on her own. She had met the proposed foster carer by now, and she said she was alright. However Emma said she was not going on an aeroplane because she was scared that it would crash and she could not go by ship as she got seasick.  She wanted to stay in Jersey, did not want to leave her school and her friends. The Guardian thought that that was the main issue for her, and noted that Emma had not said that she wanted to live with her mother. As for Ben, when she had called to see the Children on the first occasion after the June hearing, he immediately ran upstairs away from her.  That was unusual.  The Guardian later saw him and told him what she had told his sister, but with less detail.  Ben snuggled into his short-term foster father with his thumb in his mouth.  On the next occasion the Guardian saw Ben, he said he did not want to go to England either, but the meeting she had with him was not very satisfactory. The care staff did not know she was going to see him, and there had been disruption, because when he came out of the swimming pool with his Children's Service carer, they had been told that they had to move out of the flat which they were occupying immediately.  Ben's morning was "all over the place" and accordingly the Guardian was not able to talk to him in any detail - apart from anything else she had not received the care plan, and therefore could not talk to him about that.  Accordingly she could not speak to him about P which we will come onto shortly.

49.      We now turn to the physical, emotional and educational needs of the Children. We were struck by, and accepted, the evidence of the psychologists and of the Children's Service that the Children needed to be placed separately.  We recognise that placing siblings together is desirable where the relationship works, but in this case, much of the damage which Emma will continue to suffer if there is not an opportunity taken to put things right arises because of the particular needs that Ben has with his ADHD and ASD conditions.  If they are placed together, his needs take over.  Emma's key emotional need is to know that she is important, that things are done for her because she is who she is, and not that things happen to her because she is Ben's sister. 

50.      Both Children have already suffered significant harm from their upbringing to date. They will need some therapeutic care. In Ben's case, the carers providing care for him will need to understand children who suffer from ADHD and ASD and children who have been traumatised.

51.      When one analyses Emma's needs, it is apparent that it would be better for her if she is placed separately from Ben.  When one analyses Ben's needs, it is less important that he is placed with Emma, and more important that he has a world which does not change too much, or, when it does change, it goes in a direction he understands. Our first conclusion in reviewing what was necessary for the Children was that they should be placed separately - that was the evidence of essentially all the professionals in the case, albeit temporarily the Minster's care plan in June had the Children placed together in a foster placement in the United Kingdom.  Having heard all the evidence that was given then, however, the Minister revised that care plan during the course of the hearing to provide for separate placements.

52.      We then turned to the question of a family placement because if the parents are not able to provide a good enough care for Children, it is, if possible, in their interests that they be placed with family members - that confirms in them their sense of identity, it leaves open the possibility of rehabilitation with the parents in due course and it assists in their sense of belonging.

The maternal grandmother

53.       The maternal grandmother has stepped up to the plate twice in the last twelve months to be of support and assistance to the Children, first in August 2017, caring for them for four or five weeks during the summer holidays, and secondly from April this year until the hearing in June. She has, of course, had some support from the Children's Service both financially and otherwise during those periods of care, but that is by the by.  The Court accepts unreservedly that she has done her best for the Children during the last twelve months and her best has included providing some very valuable and necessary support to them at a difficult time. Mrs Welding told us that the grandmother has a good knowledge of what has taken place in the care proceedings. The Guardian told us that the grandmother is calm, caring and quietly spoken. She deals with the Children in a very gentle way, speaks calmly and indeed the Children present as calmer in her care than previously. On the other hand, the Guardian and Mrs Welding both told us that there was little or no interaction between the Children and the grandmother's husband. He is a private man who has not engaged much either with them or with the process.  This is not a criticism of him. It seems to us this is likely to flow from his relatively recent marriage to the maternal grandmother, and his lack of knowledge of the Children. He did not join her when she looked after the Children in August last year, and he has only relatively recently joined her in Jersey when she took care of the Children from April 2018. When, for example, he went to pick up Emma from school at the beginning of term, he did not recognise her.

54.      The short term care by the maternal grandmother has broadly gone well, leaving aside the incident when the Mother turned up where they were living and was permitted to stay overnight, sharing a bed with Emma, notwithstanding the agreement which the Children's Service thought they had with the grandmother that this would not take place. The Children, however, have been reasonably relaxed albeit there are some behaviours which have been worrying - Emma has become more closed in her approach to adults outside the family.  Ben has been challenging at school to the extent that the school was considering whether mainstream schooling was appropriate for him and, indeed, recently decided that it was not. The long-term care of the Children, though, is not the same as what has essentially been a holiday stay.  The question for the Court is whether the maternal grandmother and her husband can meet the requirements of these Children over the rest of their childhood, and we are convinced that they cannot do so. 

55.      Regrettable as it is for the maternal grandmother, we need to look first at what has taken place in the past, painful reading for her though it will be.

56.      A report of the Probation and After-Care Service in Jersey prepared in 1986 reveals that the grandmother was married at the age of 17 and she and her husband had two daughters (L and K) immediately following which the grandmother suffered severe post-natal depression, resulting in a nervous breakdown.  In September 1974, the two girls were taken into care when they were found to be living in filthy conditions, and the grandmother was clearly unwell - sufficiently so to be in need of in-patient psychiatric treatment.  In May 1975, parental rights orders were taken on the girls to secure their safety and they lived at Q. The parents reunited and the children were returned to their care in April 1976 with a son being born to them a year later. The marriage however broke down in October 1980, and the children all went to Q where they remained until 1986.  Initially the grandmother maintained fairly regular contact with the Children but her contact was erratic. There was almost a two year period when she had no contact at all, notwithstanding that she was then living in Jersey.  By 1985, the maternal grandmother had married her second husband, with whom they had a daughter, the Mother in this case.  The Probation report in 1986 was prepared in the context of the grandmother's application to reunite her family and have them all living with her. 

57.      By 1988, the relationship with her second husband had firmly broken down.  The grandmother took proceedings against her then husband on the grounds of physical cruelty, and sought and obtained an immediate injunction restraining him from entering the matrimonial home on the grounds that he might inflict or attempt to inflict further serious injuries on her and the children, including the Mother in this case. In her affidavit, she described how some of the violence which she alleged took place in front of the children, and in particular her eldest daughter K, who is also now applying for leave to apply for a residence order in relation to the Children.

58.      The Children's Service records in respect of K show that between 1973 and 1980, she was in and out of Q and otherwise with her parents.  From 1986, then aged 14, she was given into the care of her mother, and in 1987, admitted to R.  In 1988 she was discharged to a family friend, and later the same year admitted to S.  After ten days there, she was discharged back to the care of her mother.  The notes in relation to her sister L followed the same basic pattern and similarly with their brother. 

59.      The Mother spent some part of her childhood with the grandmother and other parts with her father, but in the Children's Service records in August 1991, it is recorded that the grandmother had been admitted to the adult psychiatric unit suffering from depression due to the breakup of her marriage and the fact that she was facing eviction from her home.  She planned to send her son and the Mother to her sister in T.  This appears to have taken place, but the grandmother was looking to remove the Mother from her sister's care by October of that year.

60.      Notes written by the grandmother's second daughter L when aged 15, and found in the possession of the Children's Service say this:-

"1. K is staying at a friend's home 'safe'.

2. Mum just whacked by head about 5 times.

3. Beated up ... with a tennis bat.

I overheard mum having a conversation with [Mrs X] about it was mine and K turn to be beated up as we disciplining as we had the wrong disc on ..."

61.      In 1990, the grandmother had moved to Essex where she had a relationship which resulted in the birth of a son, G.  The relationship ended in 1993 and was marred by domestic abuse, but G, the Mother's half-brother, continues to live with the grandmother in O.  The Mother had a relationship which resulted in the birth of her daughter N in 2001, just before the Mother's sixteenth birthday.  Temporarily, the grandmother took over the care of N when the Mother and her then partner split up.  Information within the documentation seen by professionals suggests that N has made allegations of being sexually abused by the Father and also by her maternal uncle G.  N has lived with her father's ex-partner under a special guardianship order imposed in the United Kingdom. 

62.      We have considered the grandmother's relationships with the different members of her family. She appears today to have a reasonable relationship with the Mother, albeit that when the Mother was growing up she found the grandmother to be punitive in her discipline and records that during this time "Mum couldn't cuddle me" and had made her feel "I was bad".  The Mother describes the grandmother as "Independent", "bold", "brash", "harsh at times" and "never knows when to shut her mouth", describing her as "socially insensitive".  Despite these comments, the Mother has said to Dr Edwards that she speaks to the grandmother every day and that the grandmother has helped her much with her business and is supportive.

63.      The relationship with K, the grandmother's elder daughter, appears today to be reasonable.  She described her mother as loving and kind, whilst she was growing up, and says that her mother was diagnosed as bi-polar.  At the same time, K also said that sometimes her mother was so depressed she would get into bed and stay there.  K said that her mother had extreme highs and lows.

64.      The relationship with her daughter, L, is for practical purposes non-existent.  They have not spoken for upwards of 25 years.  L has said that she was neglected by her mother when she was a child, and that her reasons for not wanting to have permanent foster care of the Children was that she would be unable to deal with the maternal grandmother and that her wish was "to protect her own family from them". 

65.       Although the grandmother is said to have a reasonable relationship with her eldest son, that relationship cannot be described as vibrant.  The grandmother herself told us that she had tried to talk to him but although he tells her that he loves her when she does speak to him, "nothing else happens". 

66.      It appears from what we have read that the grandmother herself might have had a very difficult upbringing marred by violence and potential domestic abuse of one kind or another. She does not talk about that, and was not cross-examined on it.  Whatever the causes of the present position, we cannot pass on from the history of what has taken place without noting that the grandmother's relationship with her sister and her second daughter is non-existent, and with her elder daughter and elder son it can hardly be described as close.  Her relationship with the Mother has clearly not been straightforward, and she has shown, by sharing champagne with the Mother on her departure from M, a surprising lack of awareness of the Mother's problems.

67.      When the grandmother was questioned about her previous history, her answers demonstrated her ability to provide explanations which were inconsistent with contemporaneous documents and to distance herself from the difficulties which previously had occurred. She also emphasised that she had changed, and said that the governing factor in that change was when she found God and improved her life in 1999.  She became a better person.  The difficulty with that explanation is that it is inconsistent again with the contemporaneous documents in the 1980s and early 1990s, which suggests that her interest in and commitment to spiritual matters commenced much earlier than 1999. 

68.      We were interested to note that the maternal grandmother and her husband have not to any material degree exchanged information about their respective histories.  They take each other as they are. That has many advantages no doubt, but we have to look at that relationship and all the other relationships which the grandmother has and has had to identify whether we can feel confident that she is sufficiently grounded to provide the support which the Children will need in the future - the better than adequate parenting the psychologists say is necessary given the significant harm they have suffered already.

69.      In the assessment of the maternal grandmother and her husband, the Children's Service reached the view that they would not be suitable kinship carers. The concerns centred around the age of the couple, the grandmother's medical history and current lack of mobility, her inability to follow the instructions of the Children's Service in relation to contact with the Mother, the fact that she was ruled out by local Social Services to care for her eldest grandchild N as it was alleged that the latter had been sexually abused by her uncle; and her husband's lack of real engagement with the Children.  These would be formidable objections if they were to be considered as long-term carers for any children, but given her previous history and the requirement that the Children require better than ordinary parenting given their experiences to date, the Court has no doubt that the maternal grandmother and her husband would not be suitable long-term carers.  For these reasons, we refused leave for the maternal grandmother and her husband to bring an application for a residence order in the knowledge that we would not have granted it in the circumstances of the case.  In reaching this conclusion, we do not wish to suggest that we do not accept completely that the maternal grandmother loves the Children and has done a reasonable job in looking after them on the occasions that she has had them during the previous twelve months. We are not however considering short-term care but long-term care, having regard to the circumstances of both the potential carers and the Children. In that context we have no doubt whatsoever that the maternal grandmother is not able to provide adequate long-term care.

The maternal aunt

70.      K and her husband live abroad where she works part-time as an English teacher and as a voluntary missionary worker.  They have been married for 25 years and met at a young age when both doing voluntary work as part of the Jehovah's Witness Church.  They have met the children on three occasions and say that they have maintained a relationship, communicating via video chat of one form or another, and they have photographs of the Children.

71.      K's background has been described above.  Her husband also appears to have had a stormy upbringing.  They have not had a family, and have no experience of children other than through their work.  This has been a deliberate choice.  Their lifestyle has been somewhat nomadic, and their current tenure abroad is subject to their making a yearly application to remain in that country.

72.      The suggestion that they might look after the Children came late in the day.  They were subject to an appraisal which was completed in June 2018 approximately a week before the dates fixed for the final hearing.  Those assessing them took the view that it was not appropriate for them to have a more detailed connected persons assessment because although they put themselves forward at the request of the maternal grandmother and have well-meaning intentions, they did not appear fully to understand the Children's needs, nor to understand what it would take to care for the Children until adulthood.

73.      On 21^st June, the Judicial Secretary received a C2 form indicating a request to be considered as carers for the Children in the future. It was said that the viability assessment did not accurately reflect the position and it was full of errors.  Subsequently a C2 form was filed on 2^nd July seeking leave to apply for a residence order in respect of both Children, and seeking also a report by an independent social worker as to their suitability to care for the Children. 

74.      We rejected the application for leave to bring an application for a residence order, and we do not think it is appropriate to order a review by an independent social worker and we now explain why. The major reason is that this all comes too late for the needs of these Children.  Public law proceedings in relation to these Children have continued since 2015.  They desperately need to know where they are going to be brought up and by whom.  It is inevitable that if we were to order an independent social worker's report, there would be a considerable delay in taking these proceedings forward.  Advocate Corbett says that it would only be four weeks for the independent social worker to produce a report, whereas Advocate Davies asserts it would be twelve weeks.  Either way, it would be a delay which would then lead to further adjournment whilst a date was fixed for a final hearing and the parties considered their positions.  The independent social worker might or might not recommend that K and her husband have care of these Children.  If the recommendation was that they should not do so, then that would be time wasted.  If the recommendation was that they should do so, then there would be a full hearing and finding court time at which that could be considered would be a matter of months and not weeks.  In the interim, something would have to be done for care arrangements for these Children - they could not stay with the maternal grandmother, who is not an approved foster carer and therefore would fall outside the Placement Regulations, and there are no foster carers in Jersey apparently at present able to care for the two of them.  That would mean sending them off-island, and to do so as a temporary expedient whilst permanent arrangements were considered seems to us to be likely to cause further damage to them. 

75.      We also have to form a view as to whether it is likely that the Court would ultimately end up making a residence order, and doing so in the absence of final information is, of course, a difficult exercise because we recognise that the facts which may be presented ultimately are not those which appear to be the case today.  Nonetheless, we can take into account that both K and her husband have had some troubled backgrounds and neither of them know these Children at all well; and we can take into account that both these Children have some quite definite needs which will require better than average parenting. To reach the view that long-term care should be given to two people who have never parented in their lives, who do not know the Children particularly well and whose only connection with them is through a family whose relationships are described by the psychologists as severed and fractured, seems to us to be unlikely and it is hard to see how the damage from any delay of this kind whilst the matter is investigated can be justified.

76.      As we said at the closing of the hearing, we very much appreciate that K and her husband have been prepared to come to the Island, and have shown the level of commitment they have by making the application, but we cannot think that it is in the Children's interests that more detailed consideration should be given at a future date to this possibility.

77.      We reached these conclusions in relation to the possibility of a residence order in favour of the grandmother and K, the maternal aunt, at the hearing which took place in June.  A residence order in favour of either of those applicants did not seem to us to be viable, and we were therefore thrust back on the Minister's plan.  That plan involved long-term foster care in the United Kingdom, and accordingly it was necessary for us to look first at the law which governs approval of such a care plan.

78.      Paragraph 4 of Part 1 of Schedule 2 of the Law deals with arrangements to assist children to live outside Jersey and sub-paragraphs (1) and (2) provide as follows:-

"4       Arrangements to assist children to live outside Jersey

(1)       The Minister may -

(a)       with the approval of the court arrange for, or assist in arranging for, any child in the Minister's care to live outside Jersey; and

(b)       with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any child not in the care of the Minister but looked after by the Minister to live outside Jersey.

(2)       The court shall not give its approval under sub-paragraph (1)(a) unless it is satisfied that -

(a)       it would be in the child's best interests to live outside Jersey;

(b)       suitable arrangements have been, or will be, made for the child's reception and welfare in the country in which the child will live;

(c)       the child has consented to living in that country except where -

(i)        the court is satisfied that the child does not have sufficient understanding to give or withhold his or her consent, and

(ii)       the child is to live in the country concerned with a parent, guardian or other suitable person; and

(d)       every person who has parental responsibility for the child has consented to the child living in that country except for a person whom the court is satisfied cannot be found, is incapable of consenting or is withholding his or her consent unreasonably."

79.      On the basis that we were minded to make a care order and approve the care plan, the Minister sought our approval for the Children to live outside Jersey, which required us to be satisfied of the matters set out in sub-paragraph (2). 

80.      We were satisfied that it would be in the Children's best interests to live outside Jersey for these reasons:-

(i)        There was no other realistic option. No family member was both willing and appropriate to look after the children, and there was no long-term foster care in Jersey available for them.

(ii)       It was likely that both Children, but particularly Ben, would need some therapeutic wrap-around care to enable him to move into adulthood with the best possibility of a rounded and successful life.

81.      Sub-paragraph (2)(d) requires that the Court be satisfied that every person having parental responsibility consented to the child living in the other country, or if he or she did not consent, was withholding such consent unreasonably.  The Mother did not consent, and the Father did not indicate whether he consented or not. In the circumstances, both being capable of consenting, the Court had to resolve whether it was satisfied that the consent had been withheld unreasonably.  The decision as to whether or not to consent as a parent to arrangements of this kind is one which needs to be taken in the best interests of the child - In the matter of F and G (No. 2) [2010] JCA 051, the Court of Appeal was considering an appeal against a freeing order for adoption.  It had to consider whether the Royal Court had approached the question as to whether the mother had withheld her consent unreasonably.  The Royal Court had relied upon paragraphs 26 to 29 of Re JS and BS [2005] JRC 108, and it noted that the test was an objective one.  At paragraph 80, Beloff JA said this:-

"A reasonable parent will give great weight to what is best for the child (see the observations of Lord Denning MR in re L (1962) 106 LOS JO 611 approved in re W (1971) 2 All ER 49) but a Court must be careful not simply to substitute its own opinion for that of the parent.  As the Royal Court put it:-

'The question is whether the parental refusal comes within the band of possible reasonable decisions, not whether it is right or mistaken.  There is a band of decisions within which no court should seek to replace the individual's judgment with its own.' [para 18]

81.      Helpful in this context are the observations of Steyn and Hoffmann LLJ in Re C (A Minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR at 272 as to the test:-

'Whether, having regard to the evidence and applying the current values of our society, the advantages for adoption of the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents.  The reasonable parent is only a piece of machinery invented to provide the answer to this question.'"

82.      Although those comments related to an order freeing a child for adoption, the substance of the language of the statute in relation to agreement to place a child outside the Island under Schedule 2 of the Law is in this respect the same.  Accordingly, we adopt the same test as was applied in Re F and G (No.2).

83.      We do not think that there is any doubt at all that the Mother is withholding her consent unreasonably, nor, in not actually giving consent, is the father behaving reasonably.  Our reasons for this view are as follows:-

(i)        The best interests of the Children are to provide them with a long-term placement which will serve their needs.  As was said in F and G, that is a weighty matter for any parent to consider.

(ii)       There is no prospect at present of the Children being returned to the care of their mother, nor is there any family member willing and appropriate to take care of them.  In the circumstances, placing the Children in the care of the Minister requires that some arrangements are made which will be in their best interests.

(iii)      Unfortunate as it is, there are no long-term foster carers in Jersey.  It is therefore necessary to look for a placement outside the Island.

(iv)      All the evidence is that these Children should have a permanent home at the earliest opportunity. Continued delay and uncertainty is likely to damage them even further than they have been already.  In that context we note the evidence of both the social worker and the school, and indeed to some extent the Guardian, that Emma has become more closed, and the deterioration in Ben's behaviour has been obvious.  The withholding of consent prolongs the uncertainty and no reasonable parent would wish this for his or her child.

(v)       As was said in F and G and has been said in other cases, we completely understand that a mother may find herself unable to consent to placing her children off island, just as she would find herself unable to agree to their being freed for adoption.  The latter does not apply in this case, but the fact that her own desire not to lose the Children from the family, as she will see it, is as strong as it is does not provide a reasonable basis for not making the order. We are satisfied in the circumstances that in not consenting to placing the Children off island, the parents are withholding consent unreasonably.

84.      Paragraphs 4(2)(b) and (c) caused us some difficulty when we sat in June this year to consider approving the Minister's care plan and placing the Children off island. The reason for this was twofold.  First of all, the arrangements which were being made by the Minister seemed to be developing - and that is putting it kindly - by the hour.  In the first arrangements accompanying the care plan, the Minister identified a particular couple who would look after both Children.  Having heard the evidence, the Minister then changed the proposed arrangements, midway through the hearing to suggest that this couple would look after Ben, and a different person would be promoted to look after Emma.  It was clear that although the arrangements needed to be completed by 9th July, which marked the end of the twelve week period of the grandmother's care of the Children, no adequate preparation of the Children had taken place. Neither of them had met either of the proposed carers.  It was impossible to conclude that suitable arrangements had been or would be made for the reception and welfare of the Children in the country in which they would live. Secondly, sub-paragraph (c) provides that the child had consented to living in that country.  We were faced with a position where the information emanating from the Minister came so late that the Guardian was not able to give us any information as to how the Children reacted to the idea that they should live in the United Kingdom, and so we did not know whether either child had consented, or if he or she did not consent whether it was fair to say that there was insufficient understanding to give or withhold consent.  It was in our view unfair on the Guardian to put her in a position of requiring her to give advice to the Court about the wishes of the child when she had not been able to have a reasonable discussion with either of them.

85.      Accordingly, the Court continued the interim care order at the conclusion of the June hearing and fixed a hearing on 9th July when the case would be further considered. We made it plain that Article 2 of the Law required us to have regard to the feelings of the child and the Guardian had not been able to speak to the Children and was not able to tell us their wishes.  The combination of circumstances made it impossible for us to proceed. Accordingly we indicated that we were minded to make a care order on the basis that neither the parents nor the grandparents nor K and her husband would have care of the Children. We indicated we were minded to make an order for placement off island with long-term foster carers and that the Children would be in different placements. We made those "minded to" statements in order that the parties would know what they had to do between that date (21st June) and the final hearing fixed for 9th July.  The delay would enable the Guardian to ascertain the views of the Children in the light of the "minded to" orders which were described.

86.      We indicated on 21^st June that we thought that the Children should be removed from the care of the maternal grandmother and her husband immediately. This seemed to us to follow from a conclusion that she could not provide what the Children needed.

87.      When we sat again on 9^th July we were informed that the Children initially were placed with short-term foster parents, but in relation to Ben that arrangement broke down in relatively short order.  On Friday 22^nd June, the Guardian went to talk to the Children about the possibility of going off island.  Although he did not become distressed in her presence, he clearly was upset by the proposition, and his behaviour deteriorated significantly over the weekend, following which, on Monday 25^th June, he was removed from those temporary foster carers and taken into the direct control and care of members of the Children's Service.  Emma stayed with the foster carers.  On 26^th June, the school indicated they could not keep Ben any longer because his behaviours had become more extreme, and he was excluded.  He was under obvious stress - Mrs Jones told us of information she had received from the foster carer that on the Friday evening after the Guardian had left, Ben tried to find some string and a rope and put it round his neck, and over the weekend he would bang his head on the floor.  He tried to get out of a car while it was moving and he attempted to run all the time, and did cartwheels over the furniture. It was very plain he would need therapeutic support.

88.      For whatever reason - and it was not entirely clear what the reason was - the foster carers in the United Kingdom who, it had been hoped, would originally have both Children and then subsequently have Ben, decided that they did not wish to continue with any placement in respect of either of them.  As a result, the Minister has had to review other possibilities and has identified for Ben a specialist home for young people in O.  The Court has previous experience of this residential home, which takes six children, because there is currently another Jersey child there.  It appears that that child, who had suffered great trauma and needed considerable care and help, has stabilised extremely well.  The Minister therefore proposed as an amended care plan that in view of long-term foster care, there should be a placement in the residential care home which was described as a place of transition to get children to the point where a foster placement might be possible. Ben would be the youngest child there, and it emerged in cross-examination that most children there are aged 9 to 10, and there are two children aged 12 although one is moving imminently and the other expected to move shortly.

89.      As far as Emma was concerned, the long-term foster carer identified to the parties at the last minute at the previous hearing in June remained the foster carer with whom the Minister considered Emma should be placed.  It was proposed to move Emma, if the Court agreed, on 11^th July, following a positive ending at school and with her present carers.  Mrs Welding would take Emma over to the UK and deliver her to the foster carer, whom Emma had already met.

90.      The Children would be living approximately one hour's drive apart.  There were proposals for inter-sibling contact and also for contact with the Mother and the maternal grandmother.  None of that had changed.  As far as Ben was concerned, the handover day was intended to be Wednesday 18^th July.  Once again, he would be taken over to the United Kingdom by Mrs Welding, having had contact with his Mother on the previous Monday and a calm day on the Tuesday.  The Children's Service had offered the Mother the opportunity to visit the unit where Ben would be living, and to meet the keyworkers from that unit who would have care of him.

91.      Adequate arrangements had been provisionally made for the education of both Children if the Court agreed the care plan.

92.      The care plan was received by the Guardian on 4^th July, five days before the final hearing.  She was able to discuss it with Emma that evening and we have reported on Emma's views earlier in this judgment. The Guardian's position, in summary, was that she did not support the placement of Emma with this particular proposed foster carer, and her reasons for doing so were largely down to the lack of experience of long-term foster caring which this proposed foster carer had.  Indeed even her short-term experience seemed to be limited, although it was unclear whether that experience ran to one child or seven children. It was for these reasons that the Guardian did not support Emma's placement as proposed.

93.      She did, however, support the placement for Ben.  As she put it to us, the idea of a residential children's home was not immediately attractive.  Ben might copy other children who had their own difficulties.  It was clear that he does not like noise and the biggest concern might be that he was not in fact placed in a family for many years. On the other hand, she had made enquiries directly of those at the residential home, and she felt she had a good feel for it.  There was no doubt in her view that it was child focussed. The care workers there have worked with children who have both ADHD and ASD. They have training in both areas although the establishment is not specifically designed for autistic children. Nonetheless, they have great expertise in dealing with highly traumatised children. Each child has his own room, and the ethos of the home is to educate around play.  There is a low turnover in staff, and indeed the success rate in terms of placements there appears to be good.

94.      Returning therefore to consideration of the statutory test under Schedule 2 Part 1 paragraph 4(2)(b) and (c), we reached the conclusion that the arrangements for the reception of the Children and their welfare in the United Kingdom were suitable and that sub-paragraph (b) was therefore satisfied.  In so far as the child's consent is concerned, that, of course, causes more difficulty because neither Ben nor Emma do in fact consent. What we need to consider at that point is whether we think they have sufficient understanding to give or withhold consent.  At a superficial level, clearly they do.  Both of them know that it means that there will be a change in the place in which they live.  Emma's sense of understanding is more developed than that of her brother and she is anxious about the loss of her school friends and the change of school.  All these anxieties are entirely understandable, but it appears to us that the decision as to whether or not the Children have sufficient understanding to withhold consent requires us to form a view as to whether the withholding of their consent is reasonable.  We say that because there is an assumption under the Schedule of at least some objectivity in relation to this exercise.  That is implicit in the requirement that they have sufficient understanding of the issues.  If a child has sufficient understanding to give or withhold consent, he or she will be able to recognise the options available for his or her care if consent is not given.  We think that if the question were put to Emma, for example, as to whether she consented in circumstances where there was nowhere else for her to live in the Island, she would be bound to say that she consented. The fact that she has not done so, in our judgment, makes it plain that she does not fully understand the question which is being put to her and, in that context, it is not enough that her answer might be that she wanted to live with her mother, or her grandmother, or her aunt or with somebody else in Jersey. The Court has established from its earlier decisions that none of those things is possible and it is against the background of what are the possible options that the understanding which Emma has of the need for consent must be assessed.  Had she been older, it is possible the Court would have had to look at the matter more closely. In the circumstances, the Court is satisfied that Emma and Ben do not fully understand what withholding consent means, and therefore that lack of understanding is not an impediment to the order which we make approving the care plan including placement outside Jersey.

95.      In summary, while it is a pity that K and her husband were not promoted earlier as possible carers, in order that there might have been a full connected persons assessment, it is not on the Children's timescales that they should be further examined. The maternal grandmother and her husband are definitely not suitable carers for her. The Minister's proposal is therefore the least worst option, and is consistent with the Children's timetable. There are no long-term foster parents in the Island, and accordingly one has to look outside the Island. As to the proposed foster carer for Emma, there is of course a risk, but that is true in relation to all placements, it seems to us there is no reason in principle why this particular placement should not work out well.  There is a degree of risk with it, but it is a higher risk to consider any family members, and there is no other realistic option.  As to Emma's own views, she understandably has her short-term arrangements in focus, but the Court must be concerned with her longer term interests.

96.      As to Ben, there is no prospect of either his maternal grandmother or his aunt meeting his needs. What is proposed in the residential children's home is a good placement for him and the decision in his respect is much easier.  The fact is that the family is dysfunctional and severed, and the Minister's proposals represent the best option at this stage for the Children.

97.      We cannot leave this judgment without reflecting that many of the views expressed by the family have been hostile to the proposals of the Children's Service and we can understand why.  In many respects, it might sensibly be said that the Children's Service have not covered themselves in glory when dealing with these Children.  It is not that the supervision order was unsuccessful, because clearly such orders cannot always be successful. However, we do note that although Mrs Welding has been in place for twelve months, which is a big improvement as there has before then been a high turnover of social workers, the timetables for delivering documents have frequently not been met, with the result that the Mother and grandmother have had to deal with proposals that come forward much too late.  That is obviously true also for the Guardian, who has had little time to fulfil her role, receiving documents at short notice before the hearings.  The performance of the Children's Service in this case has therefore made the decisions more difficult for everyone, but we equally have no doubt that at the end of the day, the approach which they have commended to us is the right one. 

98.      Accordingly we made the care order in favour of the Minister in respect of both Children, approved the care plan and approved the placement of both Children outside the jurisdiction.  Leave to bring the residence applications was refused to both the maternal grandmother and her husband and also to K and her husband for all the reasons given.

Authorities

In the matter of Emma and Ben (Care order) [2015] JRC 163. 

In the matter of Emma and Ben (Supervision order) [2016] JRC 164. 

Children (Placement) (Jersey) Regulations 2005. 

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

JS and BS [2005] JRC 108.