Jersey Unreported Judgments

Care order - reasons for dismissing the Minister's application for a final care order

[2018]JRC145

Royal Court

(Family)

13 August 2018

Before     :

Sir Michael Birt, Commissioner, and Jurats Olsen and Thomas

 

IN THE MATTER OF TYLER (FINAL CARE ORDER)

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

Advocate H. J. Heath for the Applicant.

Advocate S. McFadzean as amicus curiae in connection with the First Respondent.

Advocate C. R. G. Davies for the Second Respondent.

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

judgment

the COMMISSIONER:

1.        In this case the Applicant ("the Minister") applied for a final care order in respect of the Third Respondent ("Tyler" this is not his real name), who was aged 9 at the date of the hearing.  The application was opposed by the Second Respondents ("the grandparents", "the grandmother" and "the grandfather" respectively), who hold a residence order in respect of Tyler.  The Guardian also opposed the application. 

2.        The First Respondent ("the mother") has played no part in these proceedings.  She has mental health issues and learning difficulties.  On 7^th February, 2017, the Deputy Bailiff made an order appointing an amicus curiae to put forward any points which could properly be put forward on her behalf.  Advocate McFadzean has fulfilled that task.  The identity of Tyler's father is unknown.   

3.        The circumstances are fairly unusual in that since June 2015, Tyler has resided with a long term foster carer ("the foster carer") but has had contact twice a week with the grandparents.  All parties agree that the foster carer is providing an excellent home for Tyler and none of the parties are suggesting any change to that arrangement.  Accordingly, the Minister's care plan proposes that Tyler should remain in the care of the foster carer with contact continuing as at present with the grandparents.  Conversely, the grandparents accept that, even if no care order is made and the residence order in their favour therefore continues, Tyler should remain in the care of the foster carer.  As the hearing developed, they confirmed that the only change which they would wish to see would be an increase of one night a week in staying contact during the school holidays. 

4.        Following the conclusion of the four day hearing, the Court announced that it did not find the threshold criteria for making a care order to be satisfied and accordingly dismissed the Minister's application.  It indicated that it would give reasons later and what follows constitutes the reasons for that decision. 

Background

5.        The mother has significant learning difficulties and mental health problems and has never looked after Tyler.  Tyler has lived with the grandparents since his birth and they were granted a residence order when he was three months old.  They also look after Lexi (not her real name), who is Tyler's elder sister.  Tyler's younger sister was adopted by a member of the maternal family. 

6.        Tyler is a child with complex needs who presents with highly challenging behaviour.  He suffers from epilepsy and had a number of serious seizures when young.  He has a diagnosis of ADHD, shows autistic traits and has social and communication difficulties.  According to Mr Davies, the jointly instructed consultant educational and neuropsychologist, in overall terms Tyler is functioning four years behind his chronological age and has moderate learning difficulties. 

7.        Tyler had his first seizure when 8 months old and was subject to a substantial episode when he was approximately 2½ years old which necessitated a stay in hospital.  According to the grandparents - and no evidence to the contrary has been presented to us - he was a fairly normal child until then but thereafter his behaviour changed.  He would physically and verbally lash out.  He also developed sleeping problems.  He would wake many times during the night.  The grandparents would try to settle him each time only for him to wake again.  The only time he would really settle was if he came into their bed but even then he would still wake up very early in the morning. 

8.        According to Mr Andrew Kean, a social worker in the fostering and adoption team, the need for occasional respite was identified as early as February 2010 but apart from one or two short lived attempts, it did not prove possible to provide it.  The grandparents were referred to CAMHS in 2012.  A letter from Dr Lam of CAMHS dated 31^st July, 2012, indicates the sort of disruptive behaviour which Tyler was displaying and re-iterated (the original comment to that effect having been made by CAMHS in March 2012) that the question of respite support for the grandparents was of 'utter importance' as they were exhausted by the effort of caring for a child with such challenging behaviour.  Dr Lam wrote again on 20^th March, 2013, to the Children's Service pointing out that the task of procuring steady and routine weekly block of respite was still outstanding one year later and emphasising its importance. 

9.        In April 2013 the foster carer was identified and began to provide respite care.  In June 2013 the grandmother was diagnosed with cancer.  It was acknowledged that the grandfather would not be able to look after Tyler and Lexi on his own and accordingly it was agreed that Tyler would stay full time with the foster carer and that Lexi would be placed in different short term foster care.  Following the grandmother's operation, Lexi returned to the care of the grandparents in October 2013 and Tyler returned in December 2013.  Following his return, the foster carer continued to provide respite care for three nights a week. 

10.      A convenient summary of the sort of challenging behaviour which Tyler was presenting is to be found in a letter dated 15^th October, 2013 from Mr Julian Radcliffe, Principal Educational Psychologist in the Educational Psychology Service who had visited Tyler's school on 25^th September, 2013.  In relation to Tyler's social behaviour he said this:-

"Tyler presents school with a range of challenging behaviours (kicking/screaming/crying - directed towards both adults and other children) intermittently through the day.  It is clear that these behaviours take up a fair amount of teacher and TA time as a result.  School reports specific difficulties (and to varying degrees) in the following areas:-

Following adult instruction (generally) i.e. a tendency to work to own agenda and not doing as asked (especially at times of transition e.g. tidy up time);

Behaviour is often inconsequential;

Social difficulties (in terms of friendships/working in small group) and in particular an apparent lack of skills in perspective taking;

(often) a lack of sustained attention (interest at tasks).

As part of my own observations of Tyler I observed all of the above in a comparatively short time - and looking beyond more formal assessments Tyler certainly felt very young in social/emotional and behavioural terms.  In this respect, his behaviour felt similar to a pre-schooler (toddler).  I was also struck as to how quickly his behaviour could escalate from calm to distressed (and then return to calm again) with no sense from Tyler that this had bothered him - or indeed that it might have had an impact on anyone else (again - very similar to a much younger child)."  

11.      His behaviour is described in the following terms on page 8 of the Core Assessment (referred to below):

"In respect of behavioural development, there have been noted difficulties with Tyler's behaviours, which have presented as challenging and at times completely unmanageable and overwhelming as they have been extreme both in school and in the care of [the foster carer] and [the grandparents].  Tyler has major difficulties with controlling and expressing his feelings, often having temper tantrums and lashing out at those around him.  [The foster carer], [the grandparents], and teachers at school have had to deal with physical aggression from Tyler, which has left marks and bruising to the adults he has hit out against."   

12.      As explained below, the Court was provided, part-way through the hearing, with a selection of contemporaneous documents from the files of the Children's Service.  These indicate that during the course of 2014, although Tyler continued to show challenging behaviour and had sleeping difficulties, the placement with the grandparents was felt to be going well.  For example, a report issued on 29^th May, 2014, reported that "Tyler is doing really well with [the grandparents]" and that family support work was therefore being withdrawn.  There was a note following a visit of 25^th September, 2014 which (having referred to the fact that following a parenting assessment in May 2014, it was agreed that the placement with the grandparents should continue long-term with the contingency that, should the placement breakdown, Tyler would be cared for long-term by the foster carer with regular contact with the grandparents), went on to say "Tyler has adapted well to this care plan and is part of both families and see[s] each member of each family to be a part of his big family".  Similarly, following a visit on 10^th November, 2014, a further report stated:-

"Tyler is doing really well with [the grandparents].  I observed the family relaxing and enjoying each other's company today with no issues identified whatsoever.  Tyler was hyper and eager to show me how he can charge like a bull and [the grandparents] acted appropriately encouraging Tyler to be gentle and then distracting him so they could talk to me."  

13.      However, in the first half of 2015, Tyler's behaviour deteriorated.  In an initial assessment ("the Initial Assessment") dated 17^th April, 2015 carried out by Ms Jade Allchin for the Children's Service, the behaviour was summarised as follows:-

"

·         Swearing using rude and abusive language at home, school and with his carers;

·         Aggressive to his teachers, grandparents and carer;

·         Physically hurting people around him;

·         Oppositional, doing the opposite of what he has been asked to do;

·         Stubborn, refusing to follow instructions;

·         Tyler's behaviour had regressed, for instance behaving like a dog or other animal;

·         [the foster carer] described Tyler as becoming increasingly upset about returning to his grandparents on the Saturday evening and she finds she has to take him back against his will, although he appears generally happy when he actually returns to their care;

·         Tyler had gone up to an unknown male at the swimming baths and had tried to bite his ankle;

·         Tyler has punched and kicked himself on his head in frustration;

·         Tyler has screaming episodes, which are taking longer and longer to calm him down from;

·         Tyler has also recently been suspended from [the school] on two occasions in four weeks for assaulting four teachers including his head teacher."

14.      The Initial Assessment concluded that the escalation in challenging behaviour was attributable to the different styles of parenting in the two homes (i.e. the grandparents and the foster carer) and also inconsistency within the grandparents' home in that they would get tired and sometimes they would be firm with Tyler but on other occasions they would give in.  This was to be contrasted with the care of the foster carer where the boundaries were firm and consistent no matter how hard Tyler pushed against them.  The Initial Assessment recommended that Tyler should transfer to the full-time care of the foster carer on a voluntary basis for an initial period of four months with ongoing contact with the grandparents.  This was subsequently put to the grandparents who reluctantly agreed, although the grandparents assert (and they are supported by the statutory visit form of 24^th April, 2015), that they were told that if they decided that they wished Tyler to remain with them, the respite care would be removed.  It is clear that the Initial Assessment was influenced by the opinion of Ms de Wolff, a clinical psychologist at CAMHS.  She had given her view to Ms Allchin in a telephone discussion on 15^th April and confirmed this in an email of 28^th April which included the following:-

"It also became clear that Tyler is confused about who his main care giver is, and this is adding to his distress and confusion.  It appears that Tyler is a young boy that will thrive off consistency and clear rules and boundaries, something which is very difficult to manage when he is going between two residence [sic] (even when both carers are doing a great job).  It is my initial opinion that Tyler's aggressive outbursts are a result of this emotional immaturity coupled with attachment based difficulties (first formed in early years) and limited emotional regulation skills." 

15.      Tyler accordingly moved to live with the foster carer on 15^th June, 2015 and has remained there since that date.  The annual educational psychologist's report prepared by Dr Graham Ramsden of the Educational Psychology Team on 11^th May 2015 referred to the fact that the school was concerned about Tyler's increasing need to display controlling behaviour in the classroom and around school and the fact that he had been excluded from school for aggressive and disruptive behaviour and was also showing problems at home.  In his summary, Dr Ramsden said:-

"Tyler's presentation can be best described by models used to explore children with Ambivalent Attachment difficulties.  The child is therefore preoccupied with their relationship with adults and constantly being the centre of attention.  This means that any task presented to Tyler will get in the way of adults attending to him unless he uses the tasks to get the attention he desires."       

16.      A Core Assessment was carried out by Ms Allchin and completed in October 2015.  With reference to the views of Dr Ramsden and Ms De Wolff that attachment difficulty was the probable cause of the behavioural problems, the Core Assessment said this at page 9:-

"Although Mr Ramsden and Ms de Wolff make valid points concerning Tyler's behaviours and what they may indicate, it is uncertain if Tyler's needs are organic or environmentally influenced as a result of an underlying difficulty or parenting and this needs to be further assessed by qualified professionals who can make such a diagnosis."   

So far as we are aware, no further assessments were in fact ever carried out despite this recommendation.  

17.      Despite the comment quoted in the preceding paragraph, the thrust of the Core Assessment was that Tyler's behaviour had been substantially contributed to by the inconsistent parenting of the grandparents leading to attachment difficulties.  Thus at page 15, it is stated:-

"[The grandparents] were remind[ed] that attachment difficulties are not organic, but are a result of the parenting a child receives in the early years. 

I feel [the grandparents] look elsewhere to blame for Tyler's difficulties (epilepsy, school, previous convulsions) and are not looking at their own parenting, despite this being explored with them.    

Unfortunately, I feel that [the grandparents] do not 'fully understand' or accept that their parenting has contributed to Tyler's difficulties, but they do acknowledge and accept that there would have been times throughout the children's lives where they had been inconsistent.  [The grandparents] could give an example with implementing consequences following bad behaviour with Lexi.  [The grandfather] would be 'too firm' and say she could not go out for a week, and then [the grandmother] would allow her out the next day and would implement a softer punishment."   

18.      At page 29, the Core Assessment said:-

"[The grandparents] have shown Tyler the ultimate commitment by caring for him since birth and Tyler has always been well cared for, his basic care needs have been met, he has always had everything he needs and there has been a real attempt by [the grandparents] to provide him with the best possible care.  [The grandparents] have always ensured Tyler's school attendance and promoted healthy physical development and there is no doubt that they want what is best for Tyler." 

19.      However it went on to say:-

"However, despite the implementation of a range of supports and interventions over the years which has included a 'shared care arrangement', the care Tyler has received with [the grandparents] may have contributed to his emotional and attachment behaviours.  This has unfortunately been further impeded by further issues affecting their parenting capacity as expanded upon throughout this assessment." [emphasis added]

20.      The Core Assessment went on to conclude that, given the grandparents' limited capacity to change, it would not be in Tyler's best interests to be returned to his grandparents' care and he should remain in long-term foster care with the foster carer. 

21.      After receiving the Core Assessment, the grandparents reluctantly agreed to Tyler remaining with the foster carer.  They currently have contact after school on Tuesdays until 6:30pm and overnight Friday at 4:30pm until Saturday at 10:00am.  He is therefore able to see his sister Lexi and also meet with other family members, including his younger sister. 

22.      The Minister instituted the current care proceedings in February 2017.  No interim care order was applied for as it was not felt to be necessary in view of the grandparents' agreement to the current arrangements.  Whilst the Minister suggests that Tyler's behaviour, although still challenging, has improved since moving to live with the foster carer, there was apparently a deterioration in his behaviour in November and December 2017.  Most notably he ran away from school and has apparently been more threatening to the foster carer and the foster carer's father, which has required extra support.  In January 2016, Tyler alleged that the foster carer had punched him in the eye that morning.  An investigation was carried out and established that the allegation was completely false.  He previously made an allegation against the grandmother in March 2015 that she had bitten him but this was again investigated and found to be untrue.  In January 2018, he hit a teacher with a hoe.    

23.      Mr Michael Davies was jointly instructed in January 2017 as an expert to provide a psychological assessment of Tyler.  In June 2017 he made an interim recommendation that Tyler should be assessed for autism spectrum disorder (ASD). That was undertaken in August 2017 by the Autism and Social Communication Team in Jersey.  Their conclusion was that Tyler exhibited a range of autistic features and scored above the diagnostic cut-off on some aspects, but they did not feel able to give a formal diagnosis of ASD because he scored below the diagnostic cut-off on some other tests.

24.      Mr Davies also recommended that an independent social worker be appointed to provide a parenting assessment of the grandparents. Ms Barry-Relph was duly appointed and she produced her report on 4^th December 2017.

The law

25.      The law is well established.  Article 24(2) provides a threshold which must be met before a care order can be made.  Only if that threshold is satisfied can the Court go on to consider whether the making of a care order would or would not be in the best interests of the child's welfare.  Article 24(2) of the Children (Jersey) Law 2002 ("the Law") is in the following terms:-

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

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

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

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

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

26.      The important context for the threshold requirement is helpfully set out in two judgments to which we would refer.  In Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141; [2008] UKHL 35, Baroness Hale said this:-

"20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued.  Hence the totalitarian state tries to separate the child from her family and mould her to its own design.  Families in all their subversive variety are the breeding ground of diversity and individuality.  In a free and democratic society we value diversity and individuality. Hence the family is give special protection in all the modern human rights instruments including the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 8 (the Convention), the International Covenant on Civil and Political Rights 1966, Art 23, and throughout the United Nations Convention on the Rights of the Child 1989.  As McReynolds J famously said in Pearce v Society of Sisters 268 US 510 (1925), at 535, 'The child is not the mere creature of the State'.

21. That is why the Department of Health and Social Security, Review of Childcare Law (HMSO, 1985) and the white paper, the Law on Child Care and Family Services Cmnd 62 (1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the review put it, 'Only where their children are put at unacceptable risk should it be possible compulsorily to intervene.  Once such a risk of harm has been shown, however, [the child's] interests must clearly predominate' (para 2.13)."

27.      In a well-known passage in re L (Care: Threshold Criteria) [2007] 1 FLR 2050 Hedley J said this at para 50:-

"What about the Court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy.  Basically it is the tradition of the United Kingdom, recognised in law, that children are best brought up within natural families. Lord Templeman, in re KD (a minor ward) (termination of access) [1988] 1 AC 806 at page 812 said this:-

'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'

There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point.  It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences from it.  It means that some children will experience disadvantage and harm, whilst other flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done."

28.      In Re F & G (No. 2) [2010] JCA 051, the Court of Appeal, having quoted the above passage from the judgment of Hedley J, went on to say, per Beloff JA, at paragraph 6(ix):-

"We find that too a helpful definition, because it reminds us to not fall into the trap of concluding that merely because children might be better off away from their natural parents an order of the kind made is warranted.  More is required to justify severance of such familial links."    

Earlier in the same sub-paragraph, Beloff JA had said:-

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

29.      When considering the issue of significant harm, the Court must consider the particular child.  Thus Article 24(7) of the Law provides:-

"Where the question of whether harm suffered by a child is significant turns on the child's health or development, his or her health or development shall be compared with that which could be expected of a similar child." 

In relation to the identical provision in the equivalent English statute, Baroness Hale said in Re B (Care Proceedings): Appeal [2013] 2 FLR 1075 at para 178:

"Thus, whilst the standard of parenting expected by s 31(2)(b) is the objective standard of a reasonable parent, the level of development expected of the child is the subjective level to be expected of a child like him." 

30.      The fact that the standard of parenting is assessed by the objective standard of a reasonable parent was emphasised by Hughes LJ in Re D (Care Order) [2011] 1 FLR 447 where at para 35 he said this:-

"For the avoidance of doubt, the test under s 31(2) is and has to be an objective one.  If it were otherwise, and the 'care which it is reasonable to expect a parent to give' were to be judged by the standards of the parent with the characteristics of the particular parent in question, the protection afforded to children would be very limited indeed, if not entirely illusory.  It would in effect then be limited to protection against the parent who was fully able to provide proper care but either chose not to do so or neglected through fault to do so.  That is not the meaning of s 31(2).  It is abundantly clear that a parent may unhappily fail to provide reasonable care even though he is doing his incompetent best."      

The shape of the case

31.      The first question is whether the threshold criteria in Article 24(2) are met in this case.  The Minister argues that they are.  He points out (correctly) that the Court must look at the position in June 2015 when protective measures were first put in place.  He submits that the behaviour shown by Tyler during the first part of 2015 amounted to significant emotional harm and that this was caused by attachment difficulties which were attributable to the parenting given by the grandparents.  He further submits that Tyler would be likely to suffer similar significant emotional harm were he to be returned to the care of the grandparents.

32.      The grandparents, on the other hand, submit that the causes of Tyler's behaviour are organic and are not attributable to the parenting which they have given.  In this, they are supported by the Guardian.

The evidence

33.      We heard evidence over four days.  We have carefully considered all that we heard together with the numerous reports which were before us.  However, given our conclusion on threshold, we propose to refer only to those aspects of the evidence which we regard as most significant on this aspect.  To assist the narrative, we also do not refer to the evidence in all respects in the same order as it was adduced before us. 

(i)         Evidence supporting the Minister's case

(a)        Dr Ramsden

34.      As already described, Dr Ramsden is an educational psychologist in the educational psychology team in Jersey.  He first became involved with Tyler in July 2014.  In his opinion, ambivalent attachment difficulties is the best diagnosis for Tyler's behaviour.  He explained that attachment difficulties arise as a result of inconsistent parenting in the first three years of life.  By inconsistent parenting, he meant parenting where the parents would at times show love and attention to the child but at other times would not.  This led to the child not feeling safe and therefore to unconscious anxiety around adults.  The child was preoccupied with his relationship with adults and his need to get the attention from them which he desires.

35.      This leads to the sort of challenging behaviour which he observed in Tyler.  Tyler does not follow adult instruction and works to his own agenda, reprimand has no effect and he does not learn from making mistakes.  He suffers social difficulties in that he cannot appreciate other people's perspectives or participate in shared games.  There is a lack of sustained attention and he cannot focus on a task.

36.      Dr Ramsden accepted that autism could cause similar behaviour but he had discounted autism because Jill Butterfield, the previous educational psychologist, had described Tyler as caring and affectionate in nursery and he had observed Tyler joining in a game.  In his opinion, if the cause of Tyler's behaviour was not autism, it was likely to be attachment difficulties.  Tyler suffered from a disengagement from learning and there was a strong link between that and attachment difficulties.  In his opinion it was absolutely vital that Tyler had a settled home life; children could learn to feel safe.  He had not prepared an annual report on Tyler in 2017 as he had not been asked to do so by the school.  He assumed from this that they were managing without further input from him. 

37.      In cross-examination he said that he had seen Mr Davies' report.  He was not sure that he accepted that Tyler had moderate learning difficulties. He agreed that Tyler was functioning at a level well below his years but if he was not emotionally ready to learn, the outcome would be poor regardless of his cognitive ability.  He thought therefore that it was more a question of Tyler's lack of emotional development.

38.      As to the cause, Dr Ramsden said he was not qualified to assess any organic cause, but, from an educational point of view, attachment difficulty was the best model to explain what he had observed.  He accepted that he had only observed Tyler at school, not with the foster carer or with the grandparents.  He had not seen any actual evidence of inconsistent parenting, but he deduced that this had occurred because of the behaviour which he saw.  He based his diagnosis on his observation of Tyler's behaviour together with the research about attachment difficulties and its link to inconsistent parenting.  He said that he was aware that Tyler was being withdrawn from Epilim (a drug to control epilepsy) in early 2015 but was not aware of any possible side-effects of withdrawal.  He explained that Tyler now had a bespoke timetable and had a high level of support, including one to one teaching i.e. a teaching assistant superficially available to support him at all times.

39.      He was pressed by Advocate McFadzean as to whether a combination of autistic features and epilepsy might be the cause of Tyler's behaviour.  He replied that it was conceivable but attachment difficulties remained the best diagnosis from his perspective.

(b)        Dr Coverley

40.      Dr Coverley is a psychiatrist with CAMHS.  She has been seeing Tyler for about 18 months in the ADHD clinic but had no involvement before then.  Tyler has a diagnosis of ADHD.  She is aware of the views of Dr Ramsden and Ms de Wolff and she considers that the most likely cause of his behavioural problems is a combination of intrinsic matters and attachment difficulties resulting from inconsistent parenting, with the parenting being more difficult in this case as a result of the intrinsic difficulties.

41.      She understood from the foster carer that there had been some progress, which was probably caused by a combination of consistent care from the foster carer, extensive support in the school and medication for ADHD.  Clear and consistent guidance was important in the case of attachment difficulties.  This included consistency between his different environments.  There needed to be clarity about who would be making decisions.  She agreed that there were still behavioural problems and was aware that in January 2018 Tyler had hit a teacher with a hoe, which was serious.  However he had shown better understanding than previously after the incident and wanted to make reparation. She had no direct knowledge of events in 2015.  She confirmed that the first year of life was really important for forming good attachment relationships.

(c)        Jade Allchin

42.      Ms Allchin was the social worker in the Children's Service allocated to Tyler from 2012 to 2015.  She did not prepare the statements of 8^th February, 2017, in support of the original application for a care order or the statement filed on 26^th January 2018 in support of the present hearing.  These were prepared by Laura Stark, another social worker in the Children's Service. However, she had prepared the Initial Assessment and the Core Assessment in 2015, which reflected her views.

43.      She explained that Tyler's behaviour had got worse in the early part of 2015.  She considered that the shared care between the grandparents and the foster carer was not working. She was aware that Tyler was being weaned off Epilim at that time and was concerned as to whether this may have been done too quickly but she was not clear whether this could impact on his behaviour. Dr Jones had said it would not have any effect and Dr Howden thought that Tyler's behaviour might improve once he was off Epilim. 

44.      She was concerned at the differences in the parenting style between the two households.  Some children could manage shared care with different styles of parenting but she felt that Tyler could not.  Tyler's sleeping problems had a huge impact on the grandparents.  A family support worker was provided and there was a good bedtime routine.  However when this support was reduced, things slipped.  There was also some inconsistency within the grandparents' home.  They could be firm for a while but then at times of stress or tiredness, consistency dipped.  This was confusing for Tyler.

45.      When cross-examined by Advocate Davies, Ms Allchin accepted that it was difficult for her to understand Tyler's medical history at the time she prepared the Core Assessment and she could only go on the reports which she had.  She was mindful that his behaviour might be caused by intrinsic difficulties or by poor parenting.  She confirmed that the shared care arrangement worked well from December 2013 until early 2015 when Tyler's behaviour deteriorated.  As the Core Assessment stated, they were trying to establish the reasons for his behaviour and concluded that it might be organic or might be caused by inconsistent parenting and needed to be further assessed.  She transferred to another team in February 2016 and did not know if further assessments were in fact carried out.  However she definitely thought that parenting was at least a contributing factor, although there might be a combination of factors.  She was troubled by the inconsistency in two respects, first as between the foster carer's home and that of the grandparents and secondly inconsistency within the grandparent's home.  She was also concerned that harm might be done by Tyler witnessing how the mother behaved.  The mother did come round to the grandparents' home and he was thereby exposed to inappropriate behaviour.  The grandparents did sometimes stop the mother coming in but it was hard for the grandmother to put her grandson's needs before those of her daughter.

46.      It was at this stage that her evidence was adjourned so that she might go through the file in order to find specific examples of what she considered parenting by the grandparents which fell below a reasonable level.  The Court was concerned at that stage that it was being presented only with general assertions.  When she resumed her evidence two days later, she had produced a chronology of significant events and a file of additional documents such as minutes of meetings, home visits etc.  Advocate Davies took her to a number of documents and we have considered all the exchanges.  However we would mention only the following points in the cross-examination.

47.      She was asked about the fact that the Core Assessment (page 10) asserts that Tyler had been encouraged by the grandparents to call the mother "mummy". She was pressed on where this information came from as it was hotly denied by the grandparents.  Ms Allchin said that she did not know where this information had come from, it was simply her understanding.  She said that she had once been there when the mother came round and agreed that on that occasion the grandparents had not told Tyler to call the mother "mummy" nor had they referred to the mother as "mummy".  She agreed that the grandparents sometimes locked the door to stop the mother coming in but there were occasions when she was there and the grandparents should not have let her in.  They needed to prioritise Tyler over the interests of the mother.

48.      As to the sleeping problems, she accepted that these were not caused by the grandparents but they needed to manage it.  The various notes suggested that management of the sleeping problems had been inconsistent.  Her overall concern was that they were too permissive when tired and tended to give in to any challenge from Tyler.  There was therefore inconsistency on their part.  She was referred to a note of a meeting on 14^th February, 2013, when it was agreed that, as the Children's Service had not provided the family with the respite they needed to enable both Tyler and the rest of the family to have time away from each other to recharge their batteries, assessments until then had not been a true assessment of the grandparents' ability to meet Tyler's needs.  Ms Allchin accepted that there had been a delay in providing respite until April 2013 when Tyler first started spending time at the home of the foster carer. A number of documents in late 2013 and during the course of 2014 were put to her and she accepted that these suggested that things were going well in relation to the shared care arrangement at that stage.  We have quoted some of these at para 12 above. 

49.      Ms Allchin was referred to a statutory visit form dated 24^th March, 2015 which disclosed that the foster carer was considering adoption and had spoken to Tyler about what it would be like if there was another child in the placement.  The foster carer was also providing respite for two children at weekends and Tyler would see them with the foster carer at times.  The form listed these matters as two possible triggers of the deterioration in Tyler's behaviour.  Ms Allchin agreed that the grandparents had not been told of the possible adoption.  She was pressed on why the Core Assessment did not focus on these other possible triggers for the deterioration in behaviour in 2015 but had instead focussed on the shared care, which had worked very well until the end of 2014.  She agreed that the Core Assessment could have included the other possible triggers for the deterioration.  When questioned about the agreement of the grandparents to placing Tyler with the foster carer in 2015, she said she could understand how the grandparents might have felt that they had no choice because of the proposal to remove respite care.

50.      Advocate McFadzean referred Ms Allchin to the observation at page 16 in Ms Stark's statement of 26^th January, 2018, that a deterioration in Tyler's behaviour in November and December 2017 at school should be considered in the context of Tyler thinking more about his mother being pregnant again and certain other matters.  She asked whether this had also been considered as an unsettling feature in 2015, when the mother had also been pregnant.  Ms Allchin stated that it had not been considered as an unsettling factor and it was her understanding that Tyler had only learned about the pregnancy just before the birth in September 2015. 

(d)        Andrew Kean

51.      Mr Kean is a senior practitioner in the fostering and adoption team.  He is responsible for working with the foster carer.  He provided a statement and gave oral evidence.  Apart from providing details of the respite offered in the past, his evidence was mainly concerned with passing on certain views expressed by the foster carer.  We have considered these carefully but do not think it would be productive to maintaining the current excellent relationship between the grandparents and the foster carer to record in this judgment such concerns as she expressed.  The foster carer was supportive of maintaining the current level of contact but was not in favour of extra contact.  It is clear that there are some aspects where the approach which the foster carer takes and that which the grandparents take differ and we agree with the suggestion raised in the course of the hearing that it might be helpful on occasions for the foster carer and the grandmother to get together over a cup of coffee to discuss any concerns which either may have in an informal and friendly manner. 

52.      Mr Kean reported that the foster carer was in favour of a care order as she felt it would give security to her position as carer of Tyler.  She was dedicated to looking after him in the long term but was concerned that, under the present arrangement, the grandparents could in theory remove Tyler from her care at any stage because they hold parental responsibility.  She wished to see the continued involvement of the Children's Service and accordingly would not be making any application for a joint residence order, nor had she any intention of applying to adopt Tyler. 

(ii)        Independent expert evidence

(a)        Mr Davies

53.      As already stated, Mr Davies is a consultant educational and neuropsychologist and was jointly instructed to prepare an assessment of Tyler.  He prepared a very detailed report running to some 120 pages.

54.      In briefest outline, he accepts that the behaviour displayed by Tyler can also be displayed by children with attachment difficulties.  However that is not the only possible cause of such behaviour. He considers that the Children's Service and those advising them have looked at the behaviour and then jumped to the conclusion that attachment difficulties must be the cause.  The most critical period for attachment difficulties is the first nine months of life but there was no evidence on the file of the sort of serious inconsistent parenting by the grandparents which would be necessary in order to lead to attachment difficulties.  In para 610 of his report he quoted a definition of ambivalent attachment disorder in the following terms:-

"(a)      Children experience ambivalent attachment when they are never quite sure whether their carers will meet their need for reassurance or comfort.   

(b)       The parent may sometimes respond to distress and anxiety or may sometimes ignore it. 

(c)       There is a lack of predictability in the behaviour of the carer that make the child feel 'all over the place'." 

55.      He considers that the more likely explanation of Tyler's presentation is that it results from idiopathic epilepsy syndrome.  "Idiopathic" means that there is no identifiable organic or structural brain malformation but something has gone wrong with the wiring of the brain which leads to epileptic seizures.  There is well established literature that such a condition can lead to behavioural problems of the nature displayed by Tyler.  He notes that both the mother and maternal great grandmother also presented with epilepsy and that, following the early onset of epilepsy in the mother, her behaviour was similar to that of Tyler. In overall terms, Tyler was now functioning over four years behind his chronological age and had moderate learning difficulties.   Following his recommendation, Tyler was also tested for ASD and it was clear that he had autistic traits. 

56.      As part of his report, Mr Davies witnessed Tyler in all three of his environments, namely school, with the foster carer and with the grandparents.  He describes in detail in his report what occurred during the course of each visit.  He summarised the position as follows:-

"403. It may be seen from my detailed descriptions of all three settings that Tyler adopts the same behaviour and in particular, he remained exactly the same and he showed no deference, for example, to the teachers or support staff in school as would normally have been expected. 

404.  Indeed, I saw examples of all the following in all three settings. 

405. He wanted to control everything.

406. He would refuse to what he did not want to do.

407. He needed to be persuaded by various means to do things but this was always by some "bargain", there was always something in it for him to do what others wanted of him.

408. He always appeared to want to do things exactly the same as previously or with some small variation.

409. His moods changed quickly and he would quickly switch from good to bad mood, or vice versa and his moods were related to getting what he wanted and he could switch mood in an instance. 

410. He used many turns of phrase at all times that appeared quite adult-like. 

411. He often said things that did not make sense but he seemed clear that he was repeating something he had heard - he doesn't necessarily understand what he hears but can often repeat it exactly except when he has not understood or had not realised the importance of some bits of what he heard. 

412. He would blame others for not doing things.

413. He would also criticise and say emotionally hurtful things to get his way and I have noted examples.

414. None of these are to do with how Tyler was brought up by his grandparents and all are the result of his innate nature and whatever brain damage he sustained in his early life as a result of the epileptic episodes that he experienced."

57.      Mr Davies said that the teacher, the foster carer and the grandparents all dealt with Tyler's difficult behaviour in a satisfactory manner.  In relation to the grandparents he said:-

"397. Both grandparents had remained calm throughout and had not raised their voices at all.

398. I consider that they handled the situation very effectively, did not give ground, took all the necessary reasonable steps, did not get upset with all the quite cruel things that Tyler said, and were eventually able to calm Tyler down.

399. On Tyler's part, he was playing a role of getting what he wanted by any means, including trying to reason with his own peculiar logic and he did not shy away from saying the most hurtful things to get what he wanted."  

58.      He pointed out at page 24 that sleep had been a continual problem.  Tyler's EEG did display a higher level of slow wave activity and slow wave epilepsy does interfere with sleep.  He noted that a referral to the sleep clinic of Dr Greengrass had been mooted in the file and advised that this should be followed up. 

59.      As to how to manage Tyler, he considered that the normal strategies advised by the Children's Service to the grandparents were based upon the wrong model with the wrong expectations.  There was a distinction between managing, on the one hand, children who had been allowed to be naughty because they had not had appropriate and fair boundaries put in place and, on the other, children, primarily with ASD but also with syndromes caused by some sort of brain malformation or injury, who tend to have impaired centres of the brain responsible for social communication and adaption.  With children in the first category, the child is able to make rational choices and may respond therefore to positive reinforcement and rational argument.  But where there is an organic cause, this is unlikely to be effective and the main management strategy is to avoid the triggers to outbursts in the first place.  He considered that so far Tyler had been managed by the former method; there was still no recognition that he needed to be managed by the latter type of approach.  As an example, he referred to the advice given about the thinking chair and that Tyler should remain on the chair if he did not comply.  In Mr Davies' opinion, this was completely inappropriate for someone with an organic cause of his behaviour. 

60.      Given the organic nature of Tyler's difficulties, Mr Davies expressed the view at paragraph 20 that, even with superb and patient management, the underlying drivers to Tyler's presentation would remain and would become more difficult to manage when he reached adolescence.  Any confrontation would result in the types of behaviour already displayed.   

61.      In oral evidence, Mr Davies confirmed the opinion set out in his report.  He had considerable experience of children with brain injury or with epilepsy.  He rejected the diagnosis of attachment difficulty.  Behaviour like Tyler's could have many different causes.  It was wrong to look at the behaviour and jump to the conclusion that it must be caused by attachment difficulty.  There was no evidence to support attachment difficulty in this case.  There was nothing to suggest that Tyler's parenting by the grandparents had been at the unsatisfactory level necessary to cause attachment difficulty. 

62.      As to the deterioration of Tyler's behaviour in early 2015, withdrawal of a drug can change behaviour if the brain is used to the drug by then.  It means that the brain is no longer being controlled by the drug and the brain may buzz around for a while before it settles down.  In his opinion it was unlikely to be a coincidence that Tyler's behaviour got worse at the very time that he was being withdrawn from Epilim, being the drug used to control his epilepsy. 

63.      He confirmed that Tyler would have to be managed very carefully as he would not learn from sanctions because he thought he was right.  Carers would need training and support as to how to recognise trigger points and have strategies to distract Tyler so as to avoid outbursts.  It was said in the reports that the grandparents were over permissive but he had not observed this.  Tyler had behaved the same way in all three environments by pushing boundaries and the adults had managed this satisfactorily in their own ways.  He supported the current position.  Tyler should live with the foster carer and the grandparents should have their role as grandparents.  All parties would need support.  He personally would be opposed to a care order and had not seen anything to suggest that the grandparents had behaved unreasonably or had misused their parental responsibility in any way.  Tyler's behaviour was unlikely to change and it simply had to be managed.  Unless managed properly, he might well turn out to be a difficult adult. 

64.      As to triggers for the deterioration in behaviour in 2015, it was noted that the foster carer had spoken to Tyler about possible adoption.  He considered that this would have been very unsettling and worrying for Tyler and might well have created difficulties in his behaviour.  Similarly, the fact that the foster carer was providing respite care for two other children might impact on Tyler as he needed to be the centre of attention.  He was pressed by Advocate Heath with reference he had made to the 'exemplary parenting' of the grandparents.  She put to him a number of documents and Mr Davies conceded that these indicated that there were inconsistences in the firmness of approach between the grandmother and the grandfather and that the grandfather has occasionally lost his temper.  However, he said that no two parents were ever the same and it was often the case that one was stricter than the other.  It was a question of the degree of inconsistency and he did not think that there was inconsistency between the grandparents to the extent that it would be damaging. 

(c)        Ms Barry-Relph

65.      Ms Barry-Relph is an independent social worker who was instructed to provide a parenting assessment of the grandparents following the recommendation to that effect from Mr Davies.  She produced a detailed report and also gave oral evidence.  The report goes into considerable detail concerning the background and upbringing of the grandparents.  We do not think it necessary to rehearse these details in this judgment but we have carefully considered them.  Ms Barry-Relph held several meetings with the grandparents, observed them with Tyler, met the foster carer and attended a meeting which included, amongst others, Dr Ramsden and Dr Coverley. 

66.      We would summarise the key findings in her report as follows:-

(i)        The foster carer reports that although Tyler's sleeping is better, he still has problems in that area.  He sometimes wakes and checks that the foster carer is there 4 to 5 times a night. 

(ii)       She agreed with Mr Davies that, given his behaviour, Tyler would be a challenge for any parent or grandparent.  She agreed with Mr Davies' comment that the normal strategies advised to the grandparents by the Children's Service were based upon the wrong model with the wrong expectations.  She recommended that the grandparents would be greatly supported in their care of Tyler when he was with them if they could be offered a psycho-educative bespoke training to help them come to understand something of Tyler's limitations for reciprocal relationships. 

(iii)      She agreed with Mr Davies' view that Tyler's behaviour was not as a result of attachment difficulties. 

(iv)      She said that the grandparents had a caring close affectionate bond with Tyler and were attached to him.  They had brought him up since birth and wanted the best for him.  In the short term they would be able to continue caring for Tyler on a part-time basis but in the long term Tyler's needs would become more time consuming and demanding at a time when the grandparents were in their advancing years.  She was of the view that, although the grandparents cared deeply about Tyler, given his age and stage of development, the energy levels required and the physical, psychological and emotional strength needed to care for him full-time, it was likely to be too challenging for the grandparents when they were also looking after Lexi.  They had additional demands upon them in terms of the mother's learning disabilities and psychotic episodes, the new pregnancy of the mother and a caring role which they fulfilled in relation to the grandfather's brother.  He did not live with them but they assisted him greatly.  The grandparents were however capable of caring for Tyler alone for short periods of time with the support of other family members and the foster carer and/or the Minister. 

(v)       Their parenting style was different from the foster carer's.  This was likely to be confusing to Tyler as he was being exposed to two different parenting styles and approaches to discipline and behaviour management. 

(vi)      Her recommendation was that Tyler should remain in the long term care of the foster carer and the current level of contact with the grandparents should be maintained.       

67.      In oral evidence, she elaborated upon particular aspects of her report.  She emphasised that the grandparents were very important people to Tyler.  However she thought it might be disruptive to have an extra night of contact in the week as was apparently being suggested.  Tyler liked routine.  If there was to be an extra night, the weekend would be more appropriate as it should not interfere with schooling.  Advocate Davies suggested to her that the grandparents would be happy with a second night of contact during the holidays only, so that it did not interfere with the school term.  Ms Barry-Relph said she would be happy with that.  However she was not sure about Tyler's need to spend more time with the grandparents but she appreciated that the grandparents wished to have more time with Tyler. 

68.      Her view as to the nature of Tyler's behaviour was that it was not the result of attachment difficulties and poor parenting.  Her view very much accorded with that expressed by Mr Davies.  She considered that Tyler had organic neurological problems.  She had seen no evidence from her observations or from the file that the grandparents' parenting of Tyler could have caused his behavioural problems. 

69.      In the longer term, the next 8 years would be critical for Tyler and during this time the grandparents would be getting older and more frail.  The advantage of a care order was that the Minister would have control and would be able to monitor and implement any plan.  The disadvantage was that it might cause a loss of the sense of kinship and belonging with the grandparents, which was important.  There was no evidence that the grandparents had not cooperated and there was nothing at present to suggest that, if the voluntary arrangement was maintained, they would not comply with advice from the Children's Service.  But she agreed that there was nothing to stop them changing their mind in future; the success of a voluntary arrangement would depend upon a good collaborative working between all parties.  If there was evidence that contact was causing difficulties for the foster carer immediately after contact sessions, she would not support any increase. 

(iii)       The evidence of the grandparents

70.      The grandparents provided two joint statements, one filed in May 2017 and the second dated 15^th February, 2018.  They set out some of the background, which we have summarised earlier and do not need to repeat.  The key points that we would extract from the statements for present purposes are as follows:-

(i)        They have cared for Tyler since birth.  Lexi remains in their full time care and both Tyler and Lexi have regular contact with their baby half-sister. 

(ii)       They strongly disagree with the Initial Assessment and the Core Assessment where those reports conclude that there are attachment difficulties caused as a result of poor parenting.  Tyler's behavioural problems manifested themselves after the seizure when he was about 2½ years old.  They agreed to the decision that Tyler should move to reside mainly with the foster carer in June 2015 very reluctantly because they were told that if they did not agree, respite care would be withdrawn.  They felt they had no choice.  They were told it would be for a trial period but it has remained in place since then.  Indeed, contact was subsequently reduced to its present state of one night each week and one afternoon after school. 

(iii)      Their main concern is to retain parental responsibility so that they continue to have an involvement on important matters such as Tyler's future education etc.  They would be happy with a shared residence order with the foster carer but the foster carer does not wish to apply for such an order. 

(iv)      They are content for Tyler to remain living with the foster carer but would like to have an additional night of contact during the week.  This could be on the Tuesday when he currently comes for tea.     

(a)        The grandfather

71.      The grandfather is aged 74 and gave oral evidence.  He was asked first about sleep patterns.  He said that they were advised by the Children's Service to keep putting Tyler back to bed when he woke.  They followed this advice and accordingly left him to cry on many occasions.  Until the respite from the foster carer was provided, the grandparents both had little sleep as a result.  They had asked for respite for some time before it was eventually provided. 

72.      They were also advised to use the thinking chair as a means of not letting Tyler get his own way.  They were told to put Tyler in the chair until he said sorry.  They felt that it did not work well and often went on for far too long.  Tyler would just get more and more angry whilst in the chair.  After a while they let the thinking chair lapse because it was not working and adopted their own strategy.  They tried to distract him and calm him down or take him for a walk.  It worked reasonably although it was not perfect. 

73.      As to the suggestion of inconsistent parenting, he agreed that he was the 'softie' compared with the grandmother but they did their best to follow advice from the Children's Service. 

74.      He agreed that Tyler's behaviour got worse in 2015.  They had seen that before whereas the foster carer had not.  They were not told at the time that the foster carer might adopt a child and that Tyler was aware of this; nor were they aware that the foster carer was providing respite care for two other children.  He thought these matters would have been very significant for Tyler who liked things to be done his way and needed to be the centre of attention.  They had not changed anything about the way they looked after Tyler in 2015. 

75.      As to the question about the mother's influence, he agreed that she would come round on occasions but Tyler was not troubled by this. He was like an adult with her and mostly ignored her.  He called her by her first name and he was never left alone with her.  The grandparents frequently locked the door to prevent the mother coming in, although sometimes they forgot.  Both the grandparents and the foster carer, when necessary, described the mother to Tyler as his 'tummy mummy', but they never encouraged him to call her mummy and she was never there enough to have a relationship with him.  In his opinion, there was no need for the Children's Service to be concerned about Tyler's relationship with the mother. 

76.      From a fairly early stage, the grandparents had asked for an autism assessment but were told that he was too young to be assessed.  They had also asked for one to one teaching in school.  They thought that Tyler's behaviour was not explained just by autism, it was other things as well. 

77.      He was referred by Advocate Heath to, amongst other documents, notes of 30^th January, 2014 and 7^th May, 2014 which both suggested that the mother had been coming round regularly in a distressed state and he accepted that she had turned up when she had split up with the man who, at that stage, was believed to be Tyler's father and was also the father of Lexi.  There was reference to a note of a professionals' meeting on 20^th April 2015, but he did not recall the mother using that language in front of the children.  The mother came round infrequently.

78.      He confirmed that they had no intention of changing the care arrangements.  Tyler had bonded with the foster carer who was doing a wonderful job.  They would however like to have an increase in contact in the school holidays to two nights a week.  They would be content to remain at one night a week in the term time together with the Tuesday evening visit. 

79.      An entry dated June 2015 was put to him which suggested that the family support worker had visited the grandparents on 11^th June and had observed that the grandfather was not coping well and that this was having an impact on the grandmother.  There were other factors referred to in the note which were contributing to this.  The grandfather agreed that he had his off days but it did not affect Tyler or the family.  There were at that time a number of pressures for a few months. 

(b)        The grandmother

80.      The grandmother is aged 60 and also gave oral evidence.  As to Tyler's sleeping problem, she said they did what they were advised by the Children's Service, namely to put him back to bed immediately every time he came down.  They found this did not really work and on occasions she would sit next to his bed for up to 2 hours.  Until the respite was offered, she became exhausted by her lack of sleep. 

81.      As to discipline, again they were advised to be very firm with him and to use the thinking chair.  However this did not work well.  They would keep him in the chair and he would simply get angry.  She found it better to stay calm when he was being difficult and explain what she wanted of him.  She would also try to distract him by doing something different so as to take his mind off his problem.  Normally this would enable him to calm down before it escalated too far. 

82.      As to inconsistency in parenting, she felt that they were fairly consistent.  She thought she was probably better at handling Tyler than the grandfather.  She fulfilled the role of Tyler's mother and she saw herself as his mother. 

83.      As to the mother, she had not been much involved in Tyler's life.  The grandmother only recalled one occasion when the mother had caused a scene in Tyler's presence and she had never had a parenting role for him.  She recalled another occasion when the mother popped in and tried to help Tyler put his socks on.  The grandmother had suggested that the mother should try to let Tyler do things for himself.  The grandparents had never referred to her as 'mummy'.  The mother herself had sometimes said to Tyler that she was his mummy and the grandparents had explained that she was Tyler's 'tummy mummy'.  The mother did sometimes telephone the grandmother when she was in trouble and Tyler might have heard the grandmother's side of the conversation but could not hear the other side.  She did not think that he was aware of the mother's problems.  He had never asked about the mother in that way but if he were to, she would answer as best she could.  In summary, she did not consider that Tyler was in any way confused about the mother's role in his life. 

84.      She was asked about the transfer to the care of the foster carer in June 2015 and confirmed that she and the grandfather had felt they had no choice because they were informed that all respite would be removed if they did not agree. 

85.      Turning to the present, she said there was 'no way on earth that we as parents would remove him from [the foster carer]'.  She said they knew their own limitations and that they would not be able to care for him without help and support.  They could not wish for a better person than the foster carer to look after Tyler and they got on very well with her.  When asked, she did say that she was surprised that the foster carer had not had a chat with her about the concerns which had been relayed by Mr Kean in his evidence and she would like the foster carer to speak directly to her if she had an issue she wished to raise; they had always done this in the past.  The grandmother said she felt a great sense of loss as a result of the separation and found it hard living without Tyler. 

86.      She said it was very important to her to retain parental responsibility.  They wanted to be with him through school and be part of his life and see him through the good and the bad times.  If a care order were made, they would have no say in what happened to him.  When asked whether she had been open and honest with the Children's Service, she said she had been as open and honest with them as they had been with her. 

87.      She was pressed on this last remark by Advocate Heath at the beginning of her cross-examination and the grandmother said she had been as open and as honest as she could be and could not think of something that she had not told them.  Like the grandfather, she spoke briefly of an incident with the foster carer's mother but said that she and the foster carer would be able to sit down and discuss any issue in relation to Tyler which might arise in the future. 

88.      Turning to the events of 2015, she agreed that there had been a deterioration in Tyler's behaviour as set out in the Children's Service note of 8^th July, 2015.  She could not think of any particular reason for the deterioration but Tyler's behaviour did go up and down all the time.  The Children's Service's view was that the shared care with Tyler living in two homes was the problem but she did not agree that that was the cause.  She thought there were other factors.  The shared care had worked satisfactorily until then. 

89.      She was pressed about the note of 30^th January, 2014, when she was reported as having said that the mother had been in Tyler's life a lot more recently, had come to the grandparents' address as early as 5am and would stay until she helped taking the children to school.  The grandmother maintained that she did not think this had happened more than a couple of times.  She did not think that Tyler was confused.  She was referred to a note of 4^th March, 2014, which suggested that the mother had been to the school and made something of a scene.  She agreed that this had happened but said that the mother was not allowed to attend the school.  The same note indicated that there had been an occasion when Tyler had slapped the mother.  The grandmother said she did not remember this but Tyler could lash out for no reason. 

90.      She was also referred to a note of a meeting on 26^th March, 2014, where it was noted that the mother's long-term relationship with Lexi's father (who was thought at that time also to be Tyler's father) was coming to an end and that Tyler might have overheard conversations in relation to this.  The grandmother agreed that this was possible.  She was also referred to a note of a visit by the family support worker on 28^th April, 2014, where there was reference to the mother turning up on a Saturday and a Sunday wanting the telephone number of Lexi's father.  She was also referred to a note of a visit on 24^th March, 2015, when the grandmother had apparently said that the mother was present in the home more because she was pregnant and the grandmother wished to support her.  The grandmother agreed that this was so but said it was usually when Tyler was not there.  She wanted to be there for her daughter, particularly when she was pregnant, but she would not put the daughter's interest above those of Tyler.  She reiterated that she did not think Tyler was affected at all by the presence of the mother in his life. 

(iv)       The Guardian 

91.      The Guardian did not give oral evidence but the Court had the benefit of her report and of submissions by Advocate Benest on her behalf.  The report was primarily concerned with welfare issues but we quote two relevant passages from the report.  At paragraph 713 the Guardian said this:-

"7.13 The Minister's case, as far as I can tell, is that Tyler would be likely to suffer harm were he to be returned to the care of his grandparents, as they might find it too difficult and stressful to meet his needs.  This is a change in position: at the time of the application being made, it was argued that Tyler had attachment difficulties based on poor care experiences at an early age.  This does not appear to be the case: his care is simply highly complex to navigate easily.  It seems that [the grandparents] did find it hard to manage and needed help (particularly in 2015) but it is questionable whether they received the right sort of assistance.  It also appears that they would struggle to manage his needs on a full-time basis now and are not asking for his return.  Whilst I can therefore appreciate the concerns raised by the Minister regarding [the grandparents'] historic stresses, that is different to whether the threshold for a Care Order is met: Tyler has not been harmed by poor care and the case is not clearly made that [the grandparents] with the right support, would be unable to meet his needs to that degree." 

"9.2 However, to have a full Care Order, to justify such intervention in the trajectory of the life of a child, to take over entirely from their birth family and to offer them corporate parenting in return, the Court must be clear that significant harm has occurred, or is likely to occur in the future.  I cannot see that this case is clearly made, on the basis of the available evidence.  Tyler is staying where he is: all have agreed that.  The question of whether his grandparents would or would not cope if he was returned to them is therefore fairly irrelevant (and Mr Davies feels they would, given the right support).  He has not come to harm whilst being accommodated on a voluntary basis for two years, indeed, he seems to be thriving at present.  I cannot see why, at this point in time, Tyler needs the Minister to share Parental Responsibility.  I can also appreciate [the grandparents'] concerns: they have felt very blamed and side-lined: if their Parental Responsibly is extinguished by a Care Order there will be no effective challenge from the biological family to any decisions made which they do not agree with." 

92.      In her closing submissions to the Court following all the evidence, Advocate Benest submitted on behalf of the Guardian that the threshold criteria were not met and that the Court could not be satisfied on the balance of probabilities that any harm suffered by Tyler was attributable to the care given by the grandparents. 

The Minister's case on threshold

93.      The Minister filed a five page threshold document.  Much of it consists of factual statements which are not in dispute e.g. the various conditions from which Tyler suffers and the fact that he had been in the care of the foster carer since June 2015.  We would summarise its contents under the same headings as are used in the document. 

94.      Under the heading of 'Health' it asserts that Tyler as at the relevant date (which is June 2015) was at risk of significant emotional and physical harm as a result of his significant health needs and inability of the grandparents, despite their best efforts, to meet those needs.  The document then includes reference to the diagnosis of epilepsy, his developmental delay and CAMHS' diagnosis in April 2015 that he was emotionally underdeveloped. 

95.      Under the heading of 'Education' the document asserts that at the relevant date Tyler was at risk of suffering significant emotional harm as a result of his significant educational needs not being met and an inability of the grandparents, despite their best intentions and efforts, to provide for those needs.  It then summarises his various educational difficulties including Mr Davies' assessment that he is now functioning over 4 years behind his chronological age and has moderate learning difficulties. 

96.      Under the heading 'Behavioural', the document asserts that Tyler was at risk of significant emotional and physical harm as a result of his challenging behaviour and an inability of the grandparents, despite their best efforts, to manage this behaviour.  There is then a summary of some of his challenging behaviour coupled with reference to Ms de Wolff's assessment referred to earlier that Tyler's aggressive outbursts are a result of his emotional immaturity coupled with attachment based difficulties (first formed in early years) and limited emotional regulation skills. 

97.      Finally, at paragraph 4 the document asserts that Tyler is at risk of suffering significant and emotional and physical harm as a result of the grandparents' own health needs, mental health needs and other commitments which result in an inability to provide for Tyler's needs, placing him at risk of significant harm.  This is followed by reference to certain medical conditions of the grandparents, the grandfather's age, and Ms Barry-Relph's opinion that the grandparents' parenting capacity is diminishing and will continue to diminish and it may prove too much for them to care for Tyler in the long term, although they are capable of caring for Tyler for short periods with the support of family members, the foster carer and/or the Minister. 

98.      As can be seen, the threshold document says little about the respects in which the grandparents have failed or are unable to meet the health, educational and other needs of Tyler or in managing his behaviour. 

99.      In her oral submissions, Advocate Heath seemed to accept that the cause of Tyler's behaviour is partly organic but submitted that it is also partly due to attachment difficulties caused by inadequate parenting.  She said that the relevant harm was the deterioration in behaviour in the first part of 2015.  That was contributed to by the parenting he received.  First there was the sleep routine.  The grandparents did not always act in accordance with the advice from the Children's Service in dealing with this.  Secondly, there was the question of boundaries.  There was inconsistency shown as between the grandparents as the grandmother was more of a disciplinarian.  There was also inconsistency between the home of the foster carer and the grandparents.  This was confusing for Tyler.  Thirdly, there was the presence of the mother which compounded the problem.  She submitted that the grandparents had minimised the mother's involvement.  She would swear, she would cause disturbance at the school, she was distressed at the break-up with Lexi's father and was pregnant.  The grandparents had underplayed the extent to which the mother was involved.  There was also a comparatively poor relationship at the time between the grandparents and the professionals.  It was clear that the grandparents had not been honest about their true feelings at the time about their reluctance to lose Tyler.  Putting all these matters together, including the emotional harm for Tyler in witnessing the grandmother crying or listening to the grandfather swearing, the picture which emerged was that the grandparents were overwhelmed and the care that they were able to give Tyler was not reasonable and caused significant harm.  Advocate Heath emphasised that it was not the Minister's case that the grandparents were to blame in any way.  It was an objective test and the demands placed upon any parent by Tyler would have been extreme.  Furthermore, it was clear that there was a risk of significant harm if Tyler were to return to the care of the grandparents as, with advancing years and their other commitments, they would not be able to cope with his challenging behaviour.   

Discussion 

100.   In order for the Court to have jurisdiction to make a care order, the Minister must satisfy it of two things; first that Tyler is suffering or likely to suffer significant harm and secondly, that the harm, or likelihood of harm, is attributable to the care given to him or likely to be given to him if a care order is not made, not being what it would be reasonable to expect a parent to give him. 

101.   We propose to consider first whether Tyler has suffered significant harm in the past attributable to the care given to him by the grandparents and/or the mother. 

102.   We propose to consider first whether Tyler's difficulties prior to January 2015 were attributable to the parenting given to him.  In our judgment, the probability is that his behaviour has an organic cause rather than a parenting one.  We so conclude for the following reasons:

(i)        It is the opinion of Mr Davies, the jointly instructed independent expert, that Tyler's behaviour (which clearly suggests he is suffering significant harm) has an organic cause rather than one attributable to the level of parenting he has received.  It is not disputed that he has ADHD and autistic traits.  He also suffers from epilepsy.  Mr Davies says that it is well established that epilepsy syndrome can lead to behaviour such as Tyler's in that it disturbs the 'wiring' of the brain. 

(ii)       We have had the opportunity of seeing and hearing Mr Davies give evidence.  Whilst his enthusiasm for the diagnosis which he was putting forward led him occasionally to appear less measured and objective than one might usually expect from an expert witness, we found his evidence as to the underlying cause of Tyler's behaviour to be convincing. 

(iii)      In particular, there is no evidence before us of any significant difficulties in Tyler's behaviour until after the serious seizure which he suffered when just over 2½ years old, following which his challenging behaviour began.  It would certainly be a coincidence if the challenging behaviour began at this point but was unrelated to his epilepsy syndrome. 

(iv)      Ms Barry-Relph agreed with Mr Davies.  She did not believe that Tyler's behaviour was the result of attachment difficulties.  She had seen no evidence in the file or from her observations of parenting by the grandparents which could have led to attachment difficulties.  

(v)       The case put forward by the Minister is that the challenging behaviour which Tyler shows is attributable to attachment difficulties, which are in turn attributable to the level of parenting he received in his early years.  It does not seem to be disputed that, in order to lead to attachment difficulties, the inconsistent parenting must be of a certain gravity and persistence.  Thus the child becomes anxious because one moment the parents display love and attention towards the child and suddenly they do not.   

(vi)      In our judgment, there is no evidence of inadequate parenting by the mother which could have caused these difficulties.  She has never had the care of Tyler since the first few days in the hospital following his birth; he has been brought up by the grandparents.  We accept that she visits the grandparents' home periodically and will have encountered Tyler whilst there. However, we do not consider these occasional visits from someone who is not Tyler's carer are likely to have led to the attachment difficulties posited by the Minister. 

(vii)     It is the grandparents' care to which attention must be given in deciding whether Tyler's behaviour has been caused or contributed to by attachment difficulties. 

(viii)    As to the grandparents, there are plenty of examples in the file of the love and attention which the grandparents have shown towards Tyler.  To quote from only two, the review form dated 8^th July 2015 said "Tyler's relationship with his grandparents is loving and warm and reciprocal". The Core Assessment itself, under the heading 'Emotional Warmth' said:-

"

[The grandparents] deeply love Tyler, this is evident and reciprocal. 

[The grandparents] show warm regard through appropriate physical contact, comfort, and cuddling although this is more observant (sic) between Tyler and [the grandmother].  

Appropriate affection is observed with lots of praise and encouragement. 

[The grandparents] display verbal and physical affection, which has been observed to be appropriate. 

Tyler has been observed to seek comfort from [the grandmother] but will also push away and avoid this."      

(ix)      Mr Davies and Ms Barry-Relph both observed the grandparents with Tyler and saw how they dealt with his challenging behaviour.  Neither of them saw anything to suggest the sort of poor parenting which, if given in earlier years, might have led to attachment difficulties.  On the contrary, they were both generally positive about the approach of the grandparents.     

(x)       The Minister essentially relies on the following matters in support of his assertion that inconsistent parenting has led to attachment difficulties.  First, he says the grandparents have been inconsistent as between themselves.  The grandmother is more of a disciplinarian than the grandfather.  The grandparents accept that this is so.  But this is the case in many families.  A mother and a father may have a slightly different approach to discipline and not be entirely consistent in the way in which they handle the child in relation to discipline.  Clearly, if the difference is sufficiently marked, this may cause difficulties.  But we have not seen evidence of sufficiently marked differences in approach as would be likely to lead to attachment difficulties. 

(xi)      Secondly, the Minister relies upon the asserted lack of consistent disciplinary boundaries.  He says that, when tired, the grandparents give way rather than maintain a firm disciplinary line and this was putting out inconsistent messages to Tyler.  We accept that this has happened on occasion. However, it has to be put in context.  First, no respite was given to the grandparents by the Children's Service until April 2013 despite the need for it having been identified and brought to their attention well before that.  It is hardly surprising that they became tired when faced with the challenging behaviour of the type which Tyler was showing.  Secondly, as Ms Allchin admitted, the grandparents were being advised to discipline Tyler in a way which Mr Davies advises was wrong (e.g. the thinking chair).  The grandparents worked out for themselves that it was not working and adjusted their approach.  They can hardly be criticised for not putting fully into effect a disciplinary approach advised to them by the Children's Service which is now said to the flawed.  The evidence from the observations of Mr Davies is that the grandparents adopted a very satisfactory approach when confronted with challenging behaviour by Tyler.  Again, we find no evidence of the level or degree of inconsistent parenting which is likely to lead to attachment difficulties.   

(xii)     The third aspect referred to by the Minister is the involvement of the mother.  The Minister asserts that it must have been confusing for Tyler to be faced with strange and erratic behaviour by the mother.  In view of the fact that she has never cared for him and he has merely seen her in the context of a visitor to the grandparents' home, we do not consider this is likely to have been sufficient to lead to attachment difficulties.

(xiii)    As Mr Davies points out at paragraph 102 of his report, the grandparents have brought up a total of six children, four of their own and two grandchildren.  Only Tyler and the mother presented with epilepsy and behavioural difficulties.  The four other children do not present with any such problems.  If it was poor parenting which had led to the behavioural problems of Tyler and the mother, one would have expected one or more of the other children also to be affected.  This is a further factor pointing to an organic cause of Tyler's behaviour. 

103.   Putting all these matters together, we conclude that the most probable cause for Tyler's challenging behaviour is an organic one, as put forward by Mr Davies, rather than attachment difficulties caused by inconsistent parenting in the first three years (in particular the first 9 months) of his life. 

104.   We turn to consider whether the deterioration in Tyler's behaviour in the first part of 2015 is attributable to the parenting by the grandparents.  The Initial Assessment prepared by Ms Allchin concluded (drawing on the opinion of Ms de Wolff referred to earlier) that Tyler was confused about who his care giver was and about the different styles of parenting of the foster carer and the grandparents respectively.  The Initial Assessment concluded that Tyler was not coping with the current care plan with its shared care and that accordingly he should be placed in the care of the foster carer. 

105.   In our judgment, it is unlikely that this was the cause of the deterioration of Tyler's behaviour in 2015.  It is probable that there were other causes.  We reach this conclusion for the following reasons:-

(i)        All the evidence is that the shared care arrangement was working extremely well from December 2013 (when it started) until January 2015; see for example the extracts quoted at para 12 above. 

(ii)       Nothing appears to have changed in relation to these care arrangements in 2015.  Thus Tyler continued to spend the same amount of time with the foster carer and the grandparents as he had in 2014 and we accept the grandparents' evidence that they did not change their parenting style in 2015.  It is therefore hard to see why something which was working satisfactorily would suddenly cause Tyler to be confused to the extent that his behaviour deteriorated as it did. 

(iii)      Conversely, there were a number of changes in 2015 which, in our judgment, are far more likely to have caused or contributed to his emotional state and therefore his behaviour in 2015.  Thus:-

(a)       The foster carer spoke to him about the possibility of her adopting another child.  To a child who needs to be the centre of attention, this was likely to have been very unsettling.  The grandparents were of course not made aware of it and therefore could not assist. 

(b)       The foster carer was providing respite care for two other children.  This too would be likely to be unsettling for a child with Tyler's characteristics. 

(c)       The mother became pregnant.  We do not know when Tyler became aware of this and accordingly we do not place much weight on it.  Nevertheless, the Children's Service considered the mother's pregnancy in 2017 as a possible factor in his deteriorating behaviour at that time.  Accordingly, if he were aware of it, it might have had a similar effect in 2015. 

(d)       The Epilim for the treatment of his epilepsy was being gradually withdrawn in 2015.  We accept Mr Davies' evidence that this can cause changes in behaviour because the drug is no longer acting upon the brain. 

106.   In our judgment, it is far more likely that one or more of these factors, which were new in 2015, caused or contributed to the deterioration of his behaviour in 2015 rather than, as the Initial Assessment opined, a continuation of an arrangement which had apparently been working satisfactorily.  It follows that we do not attribute the deterioration in Tyler's behaviour in 2015 to the parenting of the grandparents (or indeed the mother). 

107.   We turn next to consider the likelihood of harm if no order is made.  As the Court of Appeal made clear in Re F and G (No. 2) (supra) at para 6(vi), this requires an assessment of a real possibility of future harm i.e. a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.  For the purpose of assessing the risk of future harm, the Court may only have regard to proved facts as distinct from unproven allegations. 

108.   Mr Davies was clear in his opinion that, because its causes were organic, Tyler's challenging behaviour is likely to continue and indeed will become more difficult as he reaches adolescence.  Ms Barry-Relph concluded that, although the grandparents may be able to continue caring for Tyler on a part-time basis, in the long term his needs will become more time consuming and demanding at a time when the grandparents are in their advancing years.  She concludes that their carer capacities have been diminishing and will continue to diminish and that it might prove too much for them to care for Tyler in the long term. 

109.   If there were any possibility of Tyler returning to the full-time care of the grandparents in the event of no care order being made, the Court would have to consider very carefully whether in view of (i) the lapse of time since they were last his primary carers in 2015, (ii) the disruption which would be caused by any move from the foster carer, (iii) the advancing age of the grandparents, (iv) the need for them to look after Lexi as well as assist in the care of the grandfather's brother, and (v) the likelihood of Tyler's behaviour becoming even more challenging as he reaches adolescence, there would be a real risk of significant harm.     

110.   But that is not what is likely to happen if no care order is made.  The grandparents have made it absolutely clear that they have no intention of seeking the full time care of Tyler or removing him from the care of the foster carer.  They acknowledge that she is doing a wonderful job and wish that to continue.  The only change which they might seek would be an increase of one night a week of overnight contact during the school holidays.  In other words, if no care order is made, the arrangements for Tyler's care will continue as they have been since June 2015, subject only to any possible minor alteration to the contact arrangements.

111.   In those circumstances we do not regard there as being any real possibility of Tyler suffering significant harm if no care order is made.  The position will remain as it currently is. 

112.   For all of these reasons, we conclude that the Minister has failed to satisfy us that the threshold criteria are met.  We therefore have no jurisdiction to make a care order. 

Welfare

113.   Despite this, we wish nevertheless to say something about welfare in case that is of assistance to the parties as they move forward. 

114.   Had we concluded that the threshold criteria were met, we would nevertheless not have made a care order.  That is because, as just mentioned, we regard it as highly unlikely that there will in practice be any change to the current care arrangements even if no care order is made.  We would therefore consider that the desire of the Minister to have parental responsibility was outweighed by the no order principle contained in Article 2(5) of the Law and the desirability of the grandparents continuing to have parental responsibility for their grandson so that they will be involved in decisions such as his education. 

115.   However, whilst we would not have made a care order, we are of the firm opinion that Tyler's best interests would be served by his remaining in the care of the foster carer.  The only change which we could see as possibly being in Tyler's interests - although we express no opinion - would be a small increase in contact as suggested by the grandparents, namely the addition of one overnight stay a week during the school holidays.  However, we emphasise that before any such decision is taken, there would have to be close consultation between the Children's Service, the foster carer, the grandparents, Tyler and any other expert who it was felt could contribute.  The most important matter is not to destabilise the placement and a decision must be in Tyler's best interests rather than those of the grandparents who, quite naturally, would like to see more of him.  If, contrary to their expressed intention, the grandparents were in the future to seek to remove Tyler from the full-time care of the foster carer, it would of course be open to the Minister at that stage to argue that, on the basis of the evidence then available, the threshold criteria were met and a care order should be made. 

116.   We wish to pay tribute to both the foster carer and the grandparents.  The foster carer has shown enormous devotion, skill and loving care in very challenging circumstances.  The grandparents have also displayed enormous love towards their grandson and have been willing to make great sacrifices in their own lives in order to provide a home for him.  Tyler is fortunate to have the foster carer and the grandparents in his life and we hope very much that they can all work together in Tyler's bests interests.   

117.   Finally, we cannot leave this case without expressing our concern at the conduct of the Children's Service in saying that they would withdraw the respite care in April 2015 if the grandparents did not agree to Tyler moving to live with the foster carer.  It was clearly essential for Tyler's welfare that, if he remained with the grandparents, respite care should be continued.  The Children's Service were therefore threatening to act contrary to Tyler's welfare.  We accept that the Children's Service believed that Tyler's welfare would be best served by moving to live with the foster carer and this was no doubt the motivation behind their conduct.  Nevertheless, it was quite unacceptable for them to procure the grandparents' consent by threatening to withdraw respite care and thereby placing the grandparents in an impossible position.  The correct course, if the grandparents did not agree to the proposed move, would have been to institute care proceedings at that stage if they believed that Tyler would suffer significant harm by remaining with the grandparents.  It was not a correct course for the Children's Service to pressurise the grandparents to grant their consent by threatening to remove respite care which was essential for the welfare of the child in whose best interests it was duty bound to act. 

118.   In her evidence, Ms Allchin expressed the view that the Children's Service would never in fact have withdrawn the respite care.  If that is correct, it is almost more serious than the conduct outlined in the preceding paragraph.  It means that the Children's Service procured the consent of the grandparents by deliberately misleading them i.e. by indicating that the respite care would be withdrawn when they had no intention of doing so.  That would be completely unacceptable behaviour from anyone, let alone from a department of government charged with protecting children.  We trust that those in charge of the Children's Service will look into what occurred in this respect.  

Authorities

Children (Jersey) Law 2002. 

Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141, [2008] UKHL 35. 

Re L (Care: Threshold Criteria) [2007] 1 FLR 2050. 

Re F & G (No. 2) [2010] JCA 051. 

Re B (Care Proceedings): Appeal [2013] 2 FLR 1075. 

Re D (Care Order) [2011] 1 FLR 447.