Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Nicolle and Ronge. |
Between |
The Minister for Health and Social Services |
Applicant |
And |
(1) A, the Mother |
First Respondent |
And |
(2) B, The Father |
Second Respondent |
And |
(3) Linda, the child (acting through her guardian, Elsa Fernandes) |
Third Respondent |
IN THE MATTER OF LINDA (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate P. F. Byrne for the Minister.
Advocate M. J. Haines for the Mother (First Respondent).
Advocate R. S. Tremoceiro for the Father (Second Respondent).
Advocate M. R. Godden for the Child (Third Respondent).
judgment
the Commissioner:
1. The issue in this case is whether the Court should grant its approval to the Minister arranging for the third respondent, Linda (this is not her real name), to live in a therapeutic residential home in England, pursuant to Paragraph 4 of Schedule 2 of the Children (Jersey) Law 2002, a move for which her consent is required, unless the Court dispenses with that consent. Linda does not consent to the move.
2. The Court made an interim care order in respect of Linda in favour of the Minister on 26th June, 2018, in respect of proceedings which had commenced on 4th December, 2017. Linda is beyond her mother's control, and had been living with her father under a supervision order made by the Court on 13th December, 2017. That was not successful, for the reasons explained in paragraph 9 of the Court's judgment of 18th July, 2018 (unpublished):-
"9. In short, the evidentiary picture that emerged was that while [Linda] was in theory residing with her father, she was not, in effect, subject to any effective control of appropriate boundaries. [Linda] is a girl with complex needs and at the age of 14 it is crucial that those needs are addressed if she is to have a reasonable prospect of a successful and fulfilling life. She is highly emotionally vulnerable. She absents herself from her father's home and would associate with her friends or be by herself, sometimes into the early hours of the morning. The father did not appear to have the desire or perhaps the ability to engage fully with the Children's Service and to take the necessary interventions to assist him in becoming the parent that [Linda] needs. He does not appear to see why his social life and consumption of alcohol should be curtailed and the efforts that he has made, whilst real and laudable as far as they go, are not sufficient to enable him to provide [Linda] with the supportive, secure and danger free environment she needs with appropriate boundaries."
3. Linda was placed with Accommodation A, a residential home, where ongoing difficulties were experienced in getting her to engage in her care plan. On 11th September, 2018, the Minister applied for a secure accommodation order, such was the concern over the risks she was taking. Paragraph 3 of the unpublished judgment of the Court of 11th September, 2018 summarised it in this way:-
"We have heard evidence today from acting Detective Inspector Ryan, summarising the involvement of [Linda] with the Police Protection unit, but in summary their concerns are:-
(i) That she has been reported missing from [Accommodation A] on some twenty seven occasions since 26th July, and at least one occasion she was missing for three to four days.
(ii) On the ten occasions the police attended [Accommodation A] after she had returned they were concerned about her intake of alcohol and drugs.
(iii) There have been two recovery orders, the first time such orders have been made by this Court as we understand it.
(iv) There are concerns about sexual exploitation and association with registered sex offenders."
Of further concern was Linda's failure to engage in education, despite being described as bright and able.
4. She had been held briefly at Accommodation B, under an emergency protection order, with a loss of liberty which came as a shock to her, and she was very distressed at the prospect of a secure accommodation order being made. She gave this written undertaking to the Court:-
"Dear Sir,
This is what I would like you to know. I will return to [Accommodation A] by 9:30pm, I will attend education. I will not drink alcohol and I will not take drugs. I will attend meetings of drug and alcohol, I will also attend CAMHS. I will always tell [Accommodation A] where I am when they ask. I will work with my social worker to become a better/different person.
I promise I will try my best.
Yours sincerely
[Linda]"
5. Despite reservations, the guardian felt that Linda should be given a further chance. Quoting from paragraph 8 of the unpublished judgment (11th September, 2018):-
"8 Despite the Guardian's real concern about the risky situations she is exposing herself to, concerns which we unreservedly share, it was important the Guardian said to listen to [Linda] and on balance she felt [Linda] should be given a last chance to engage and fulfil the undertakings she has now offered to the Court, on the understanding that if she fails to do so then a secure accommodation order will almost certainly be imposed upon her. Candidly the Guardian made it clear that whilst she believes [Linda] to be sincere and genuine in the undertakings she has given, the Guardian could not in the light of the history have full confidence that she would be able to do so. Even so, she felt [Linda] should be given that chance."
6. In the light of the guardian's advice, and Linda's undertakings, the Court felt it would be disproportionate to impose a secure accommodation order, and therefore gave Linda that last chance. However, rather than dismiss the Minister's application for a secure accommodation order, the Court adjourned it to 5th November, 2018, so that the Minister could report back to the Court, as then constituted, on whether Linda had abided by her undertakings and engaged meaningfully with the Children's Service, and the other agencies.
7. When the matter came back before the Court on 5th November, 2018, Lesley McCann, the social worker, reported that there had been sufficient progress made by Linda for the threshold for a secure accommodation order no longer to be met and leave was sought to withdraw the application for a secure accommodation order. Linda was no longer being rude, and was engaging better with the social worker and staff at Accommodation A. She had attended CAMHS, although she had declined to engage further with them, finding the process too "full on". She was now returning home at night at the due time, save for three occasions. In particular in the weekend prior to the hearing, she had walked home alone at 3am on the Sunday morning, under the influence of alcohol, and expressing concern that someone had been following her. Disappointingly, her school attendance had deteriorated, and was now less than 60%, particularly when the school report indicated that she was capable of achieving good results.
8. However, the social worker was concerned that without specialist therapeutic intervention her potential would not be met, and her predicted outcomes would be poor. The threatened secure accommodation order had been a driving factor in the improvement that had been seen. Without this the social worker had concerns that the pull factors that still remained would impact negatively upon her. She was still finding solace and distraction in her current peer group, in which she was the youngest and which could be considered to be exploitative.
9. A psychological assessment had been carried out by Dr Elizabeth Gillett dated 18th May, 2018, an assessment in which Linda had refused to engage. Describing Linda's emotional needs as complex, and her behavioural presentation being sufficient to warrant professional input in the medium to long term, she gave this concerning prognosis at paragraph 7.3.3:-
"7.3.3 [Linda's] current trajectory based on her current care plan in my view is poor with her being at high risk of significant behavioural and emotional dysfunction into her adulthood with likely mental health difficulties, substance misuse issues, social and relationship difficulties as well as poor outcomes in terms of her education and employment prospects, despite being bright, with a combined lowering of her life chances overall."
10. Dr Gillett recommended a therapeutic approach influenced by Dyadic Developmental Practice ("DDP") as devised by Dr Dan Hughes. DDP is a therapy which she explained is also a broader approach to caring and parenting children that provides a particular framework for helping children who are recovering from developmental trauma through the parenting and support they received. This support is supplemented by the therapy when appropriate. In order to address the extreme difficulties that Linda has, she requires a permanent placement at the earliest opportunity, in order to maximise her chances of secure primary attachments forming with her carers. Ideally, Dr Gillett recommended a specialist foster placement, with a team around the placement offering ongoing and responsive support. She dealt with the practical issue of what was available in Jersey at paragraph 7.4.10 - 7.4.12:-
"7.4.10 At a practical level it is unclear what is available on Jersey that might address [Linda's] need for reparative care, as the residential options as I understand are not therapeutic and have not in the past been able to contain her behaviour. Indeed the issue of availability of specialist carers and a team to support them seems problematic, at least at this time. As such the on island options appear limited but should be fully explored with a commitment to finding creative solutions. Even if an option was found it needs to be borne in mind that [Linda] may well continue to abscond from any such placement to return to [the father], and this would significantly undermine any placement stability but more importantly the chances of any reparative care getting traction.
7.4.11 As such the possibility of [Linda] having to move the UK to receive the care she requires cannot be ruled out although this will likely represent further loss and increase her resistance therein.
7.4.12 This is a difficult situation to hold in balance and there are risks in all options however from a psychological point of view my preferred option would be for [Linda] to be placed with specialist foster carers with a professional team supporting them including a DDP therapist or equivalent whilst accessing an educational provision with an attachment aware approach and capacity to offer bespoke and individualised input, even if this was only available in the UK."
11. There are no such therapeutic facilities within the Island, and the Minister's care plan was therefore formulated with a view to a placement in the United Kingdom. This was flagged at the hearing on 11th September 2018 (unpublished) when the Court said this at paragraph 6(iii):-
"(iii) That placement has not yet been identified and [Linda] has made it clear that she is opposed to any move to the United Kingdom. Whilst we understand that instinctive reaction this option could be the key to her future and we hope that she will keep an open mind and give proper and mature consideration to the detailed proposals when they are put to her by the Social Worker."
12. The placement has now been identified through the agency of Accommodation D namely at a residential home in the United Kingdom which would carry out a 12 week assessment. It is clear that this residential home has a highly skilled and qualified clinical team, most of whom have been trained in DDP. Following that assessment, she would most likely be placed in another associated residential home for either one, two or three children (as recommended in the assessment), and there would be continuity of the therapeutic team. As we understand it, all the children accommodated through this agency attend the same central school, where there are some sixty pupils. Although Dr Gillett had recommended a foster placement, the social worker explained that Linda was not yet foster care ready, and needs first to have the benefit of this intensive support. The Children's Service had secured a place for Linda and funding has been agreed for two years, at a cost of between £7,000, reducing to £5,300, per week.
13. Linda had allowed the social worker to talk about the off-Island placement, but had consistently said that she would not go. The social worker feels, however, that part of Linda wants adults to intervene and "stop what's happening". Linda has refused to take the paper work provided by the social worker on the placement, but it is hoped that she can be persuaded that it is in her best interests to co-operate in the proposed move.
14. In addition to hearing the evidence of the social worker, the Court heard evidence from Sheree Maher, the Service Lead - Residential at the Children's Service and from the guardian.
15. Sheree Maher explained the number of care homes currently provided by the Children's Services for sixteen children out of a total of some 96 looked after children, and the long term problems faced by the Children's Service in recruiting for the post of residential child care officers in Jersey, leading to an unstable work force. Recruitment for vacant posts is being progressed, but there is a lack of specialist staff in the Island to provide additional and specific services to meet the requirements of children with complex needs.
16. In order to address this, the States of Jersey has commissioned a significant training exercise for the staff group who presently provide care for children in residential homes and the Children's Service is actively reviewing the current provision of accommodation, with a view to moving towards the use of smaller group living, which is relevant specifically to Accommodation A which is a home for six children between the ages of eleven and sixteen. In addition, the Fostering and Adoption Team were reviewing the fostering strategy to recruit carers for children who were more difficult to place, due to the complexities of their needs.
17. Turning specifically to Linda, the possibility of purchasing a "team" from the United Kingdom to support children like her in a residential setting had been looked into, but did not bear fruit, probably as a result of the high level of demand in the United Kingdom for staffing to support children in residential homes.
18. For these reasons creating a specialist placement for Linda, or indeed, for any other child, was not an option at this stage, and although it was the aim to be able to do so as quickly as possible, she could not provide a timeframe. In the interim, a one bedroomed self-contained flat had been vacated at Accommodation A, into which Linda was currently being moved with "'wrap around' non therapeutic support comprising a team of five or six residential child care officers and for whom training would be provided, but she said that the exploitative factors around Linda were so significant that this would not promote the long-term change needed, although it was a step in the right direction.
19. The mother, who was in Court and who has parental responsibility, supported the off Island placement, although as Advocate Haines said, it would break her heart to see Linda go. For the mother, the advice of Dr Gillett and the social worker was clear, namely that such a placement was in Linda's best interests.
20. The father did not attend the hearing, and provided no reason to Advocate Tremoceiro for his failure to do so. We were given to understand that he was being investigated for serious drugs offences, and may face a lengthy custodial sentence. He also has parental responsibility but did not consent to the off Island placement, apparently for two reasons; firstly, he felt that Linda would be at greater risk in that placement than she would in Jersey and secondly, he did not want her to feel that he was abandoning her.
21. Linda chose not to attend the hearing, but sent the Court a letter dated 2nd November, 2018, making clear her opposition to this placement. She felt it was a punishment which should not be inflicted on any child in a children's home, to be sent to the United Kingdom in the middle of nowhere, with people she did not know. She raised in particular her strong relationship with her grandparents, and her young half sibling and other connections which would be broken if she was sent away. According to the social worker, she did not come to Court because she feared her father's poor choices would reflect on her and she thought she would end up in Accommodation B.
22. The guardian did not support the move. Whilst she agreed that Linda needed the therapeutic care advised by Dr Gillett and the social worker, that care should, she said, be provided in Jersey. She pointed out that these proceedings had been on foot for nearly a year, and the report from Dr Gillett had been available since May, 2018, yet the Minister has still not provided the package of care Linda needed. In the guardian's view, that package should be provided in Jersey, and not in the United Kingdom, with Linda uprooted from her friends and family, a prospect which terrified her.
23. At the same time the guardian acknowledged that this therapeutic care was not available in the Island and would not be within Linda's timescales and she accepted that if Linda remained in Jersey she would not receive the same level of care that she would in the off island placement.
24. The guardian had discussed the proposal with Linda who would not consent to the placement. Although she had refused the paper work from the social worker, she knew where the placement was, and that it was for an initial twelve week assessment, after which she would probably have to move again, something that concerned the guardian. Further concern for Linda was that once in the placement, she would be unable to return. Even if her father consented to the move, Linda made it clear to the guardian that she would still refuse to go.
25. In the guardian's view, the Minister should have obtained Linda's buy in to the proposal before applying to the Court, rather than the other way round. The proposed move was simply not feasible because of Linda's resistance. She needed to remain here.
26. Linda is under the care of the Minister, who has decided that it is in her best interests to attend this off Island placement, for which he needed the Court's approval. We were concerned, therefore, with the provisions of Paragraph 4(2) of Schedule 2, which is in these terms:-
"(2) the court shall not give its approval under sub-paragraph (1)(a) unless it is satisfied that -
(a) It would be in the child's best interests to live outside Jersey;
(b) suitable arrangements have been, or will be, made for the child's reception and welfare in the country in which the child will live;
(c) the child has consented to living in that country except where -
(i) the court is satisfied that the child does not have sufficient understanding to give or withhold his or her consent, and
(ii) the child is to live in the country concerned with a parent, guardian or other suitable person; and
(d) every person who has parental responsibility for the child has consented to the child living in that country except for a person whom the court is satisfied cannot be found, is incapable of consenting or is withholding his or her consent unreasonably."
27. We take each of these requirements in turn.
28. There was agreement that Linda needs the kind of therapeutic placement advised by Dr Gillett. The difficulty is that currently the Children's Service is not able to provide that kind of placement, supported by staff trained to handle children with the development trauma experienced by Linda. It was, however, available in the United Kingdom.
29. Advocate Byrne gave the analogy of a medical condition from which a child was suffering but which could not be adequately treated here in Jersey; there would, he said, be no hesitation in moving such a child to the UK, where that treatment was available. It is not, of course, as simple as that, as we are not talking about some short-term medical treatment, but the uprooting of a child from her home environment for potentially two years, whilst she completes her education, sadly neglected to date.
30. Even so, there is something in the analogy. The fact is that the therapeutic reparative work Linda requires is not available in Jersey currently, and will not be available in her timescales. It is strongly arguable, as the guardian does, that it should be available here. It would not appear to be an issue of resources, as the Minister has agreed funding of up to £364,000 per annum for this one placement. The problems appear to relate to training and, in particular, recruitment, but our statutory mandate is a very practical one, namely Linda's welfare now, and specifically where her best interests lie. Should she be condemned to the poorer outcome that was likely if she remained in the Island, or should she be given the chance of having the therapeutic reparative work that is only available in the United Kingdom, but for which she would have to be uprooted from her home environment here, at least for the period of her education?
31. As Dr Gillett said at paragraph 7.4.3 of her report:-
"This may well be [Linda's] last opportunity to experience a nurturing relationship within which she feels prioritised with the emotional reality that this window of opportunity is closing forever."
32. We are very conscious of the downward trajectory predicted by Dr Gillett and the short time now left for reparative work to be carried out, and we are left in no doubt that Linda's best interests lie in this off Island placement, where this reparative work can be done, and where there is a chance of reversing that downward trajectory. The consequences of her attending this off-Island placement could be life-changing.
33. The social worker has not provided detailed proposals as to contact arrangements that would be put in place which is of concern to us. Ongoing contact with her parents and wider family will naturally be of great importance to Linda and whilst we have no doubt that proper arrangements will be put in place, we recommend that the care plan be amended now to make it clear precisely what contact arrangements are being proposed.
34. Accordingly, we conclude that it would be in Linda's best interests to attend this off island placement.
35. There was some criticism of the fact that at the end of the twelve week assessment period it may be necessary for Linda to move to another residential home associated with the same agency, but with continuity of the therapeutic team supporting her and of her schooling. Concern was also expressed at the suitability of some of the children in the residential home at the time of a recent Ofsted report. We have considered the material provided and the evidence of the social worker in this respect, and are satisfied that suitable arrangements will be made for Linda's reception and welfare in this residential home and that she will be suitably matched with any other children who may be there. Furthermore a period of assessment by this specialist team seems sensible before a decision is made as to the kind of residential home she should attend.
36. Linda has not consented to living in the United Kingdom. We therefore have to decide whether we can dispense with her consent, on the basis that she does not have sufficient understanding.
37. The advice of the guardian was that Linda was able to make choices, admittedly often not good ones. For example she had understood the danger of being in the company of a registered sex offender, but somewhat impracticably, suggested she be informed by staff who were sex offenders and who were not, so that she could avoid them. The guardian said Linda would not understand the subtleties of sexual grooming, but she did understand the risks of walking home alone in the early hours under the influence of alcohol. The guardian was more concerned about the young adults she mixed with, whose life-styles Linda knew were not good for her.
38. Clearly at one level Linda understands what a move to this off island placement would entail, as arguably could a much younger child, but as Advocate Byrne said, it is more than making choices. It is about having sufficient understanding as to where her best interests lie, which in our view must mean whether she has sufficient understanding of the advantages and disadvantages of the move in relation to her welfare and the implications for her welfare of giving or withholding her consent.
39. He referred us to the case of In the matter of SS [2012] JRC 061, which concerned a 14 year old boy who had presented with complex behaviour on a background of severe learning difficulties and emotional abuse. He needed a high level of therapeutic and specialised input. Sir Michael Birt, then Bailiff, said this at paragraph 24:-
"We accept that he would prefer to return to live with his parents, failing which to live with his grandparents. However, when considering his views, we have noted Dr Willemsen's opinion that, because of the damage he has suffered, his emotional development is equivalent to that of an 11 - 12 year old rather than a 14 year old. In our judgment, his expressed wishes cannot outweigh the unanimous advice of all the experts and those responsible for his care to the effect that he needs to attend an off-Island therapeutic centre for there to be any prospect of remedying the damage he has suffered and minimising the risk that he will cause harm to himself or to others in due course. At his age of emotional development, SS cannot be expected to know what is in his best interests when that conflicts with what he would like to happen."
40. Linda does not have learning difficulties, indeed she is described as bright, but does she have the understanding, aged fourteen and in her current environment, to know where her best interests lie in the sense we have described above? As Dr Gillett said at paragraph 7.4.3, while she presents as older, she is only fourteen, and "the most challenging years of her adolescence lie ahead on a pathway littered with pitfalls and risks."
41. Her current influences comprise in the main young adults whose lifestyle is not good for her, and friends within the care system, one of whom the social worker told us has been instrumental in her poor application and attendance at school. Her horizon is limited to and influenced by these young persons around her who are manifestly ill equipped to guide her. Separation from them would be given undue weight in her mind.
42. In our view, Linda does not have sufficient understanding of the urgent need for therapeutic reparative work and to appreciate the long term consequences of the downward trajectory predicted by Dr Gillett if this potentially life-changing chance is not taken. Refusing consent now, assuming it is not dispensed with by the Court, is the kind of decision which we think she would look back on as an adult and regret and question why the decision was not made for her by responsible adults with her best interests at heart.
43. In all the circumstances, we are satisfied that Linda does not have sufficient understanding to withhold her consent and we dispense with it pursuant to paragraph 4 (2)(c)(i). In addition we are satisfied that this duly regulated residential home constitutes "a suitable person" for Linda to live with pursuant to paragraph 4(2)(c)(ii).
44. The mother has given her consent, but the father has not. In our view, he is withholding his consent unreasonably. A reasonable parent would have regard to Linda's best interests. We agree with the Minister and with the mother that her best interests lie in this off-Island placement. We can see no basis for his suggestion that she would be at greater risk in that placement, bearing in mind the catalogue of risks she has been exposed to this year alone, and as for his wanting to feel that he is not abandoning her, this is an entirely selfish emotion.
45. It is a pity that the father did not attend the hearing, but we ask him to reflect on his position and hopefully to find his way to supporting the stance of the mother, as it can only be helpful to Linda to have her parents agree upon where her best interests lie.
46. In conclusion, we give leave for the application for a secure accommodation order to be withdrawn and we give our approval under paragraph 4 of Schedule 2 of the Children (Jersey) Law 2002 to the Minister to arrange for, or assist in arranging for, Linda to live outside Jersey. We hope she can be persuaded to appreciate that this is not a punishment, but a potentially life-changing chance.
Authorities
Children (Jersey) Law 2002.