Before : |
T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Grime and Sparrow. |
Between |
Minister for Health and Social Services |
Applicant |
And |
(1) A the Mother (2) B the Father |
Respondents |
IN THE MATTER OF Z (CARE PROCEEDINGS)
AND IN THE MATTER OF CHILDREN (JERSEY) LAW 2002
Advocate P. F. Byrne for the Minister.
Advocate N. S. H. Benest for the Mother.
Advocate C R Dutôt for the Father.
Advocate M R Godden for the Grandfather.
Ms Gill Timmis MBE - JFCAS Guardian.
judgment
the deputy bailiff:
1. These are the reasons for our order made on an application brought on behalf of the Minister for the discharge of a care order made by the Court on 26th November, 2013, with regard to Z ("the Child").
2. At the same time the Minister asked the Court, of its own motion, to make a residence order for Z in favour of C ("the Grandfather").
3. On 9th October, 2018, the Court made an order as requested discharging the care order and also made a residence order with certain conditions. We indicated that we would give our reasons on a subsequent occasion.
4. At the time of the application A ("the Mother") was the only person who held parental responsibility for Z. At the hearing, however, B ("the Father") made an application for parental responsibility. That application was not opposed and we made such an order.
5. Z has been diagnosed with a medical condition. He has undergone treatment and is undergoing continuing treatment, which could well last for some time into the future.
6. Until September 2012 Z lived with the Mother and the Father. As a result of the high levels of alcohol consumed by them and incidents of domestic abuse that were reported, the Court in February 2013 made an interim care order and ultimately a final care order as we have said on 26th November, 2013. The care plan at that time, which the Court endorsed, provided that Z would live with the Grandfather.
7. Z has resided with the Grandfather since that time. On the evidence before us that has been an unqualified success. Z and the Grandfather have a very close bond and the Grandfather provides for all of his needs. It is the Grandfather who has the day to day management and care of Z and who organises and attends a Children's Hospital for Z's ongoing treatments. The evidence before us is that Z feels entirely settled and his life is oriented in a way that has his Grandfather firmly at the centre. The Grandfather, who has received significant praise in evidence before us, is described as a very caring man with great common sense and who understands and responds to Z's particular needs.
8. It also appears that to a great extent the Father has put his difficulties behind him and he plays an active role in Z's life. He sees him regularly and Z values his bond with his Father.
9. There is no doubt that the Mother loves Z and that there is an important bond between her and her son. However she has suffered historically and continues to suffer from emotional and mental instability and has mental health issues. This means that Z has had to learn to deal with his Mother's fluctuations in behaviour as a result. For the most part, the Mother acts entirely in Z's interests but she has on one occasion in the past sought an order discharging the care order and for Z to take up residence with her. That application did not come to fruition as it was withdrawn as a result of her emotional and mental health challenges. She also has appeared to struggle with the idea of Z living permanently with the Grandfather.
10. We heard evidence from Carrie Jukes who has been the allocated social worker in Z's case since 12th June, 2017, when she joined the Children's Service. She brought into evidence both her report and chronology that underpins the Minister's application.
11. As part of her evidence, she was asked about a report that was before the Court from Ms Gill Timmis ("the Guardian") in which, whilst supportive of the Minister's application, thought that certain conditions should be put upon the residence order and that the Court should make an order under Article 66(8) of the Children (Jersey) Law 2002 ("the Law") restricting any application that the mother might make to vary the residence order by requiring first that she make an application to the Court for leave to do so. The Guardian also sought an extension of the residence order, which would normally expire when Z was 16 years of age, to expire when he was 18 and also wished that the Court specify that, whilst the Mother, the Father and the Grandfather would have parental responsibility in the event of disagreement, the Grandfather's parental responsibility would take priority and he would have the final say in any issues relating to Z.
12. In her evidence before us, Ms Jukes was supportive of extending the duration of the residence order to the age of 18 and thought that this would be prudent given Z's complex needs and ongoing treatment. He needed stability and certainty as to where he would reside and therefore it was appropriate in these circumstances to extend the duration beyond the age of 16.
13. Ms Jukes did not, however, support any order being made under Article 66(8) or any variation in connection with parental responsibility. She points out that there is a complex but functional family dynamic and there is no reason to suppose that decisions would not be made in Z's best interests as they have been over the period of his residence with the Grandfather. There has been no concern over the last couple of years and the Grandfather has managed the complex relationships within the family extremely well.
14. Furthermore, although there was one instance in 2014 of the Mother applying to change the position with regard to Z, there has been nothing since that time and there is no reason to suppose that she would make an application again. She does not believe that an order under Article 66(8) would be necessary.
15. In cross-examination, however, Ms Jukes agreed that if the Mother were to make an application to discharge the residence order then that would be highly disruptive to Z.
16. We also heard from Ms Gill Timmis who is the Guardian in this case and had been since 2013 in connection with earlier matters before the Court.
17. She was fully supportive of the discharge of the care order and that Z should be subject to a residence order in favour of the Grandfather. She pointed out that whilst the Grandfather had managed the relationships in the family well and there had been no real difficulties, that had been within the context of a care order being in place and we were now in rather unknown territory. The Mother had already made one application which she withdrew after a number of months, but nonetheless she felt that there should be a period within which she should not make any application without reference first to the Court. This, it was felt, would be to afford Z the stability that he needed and would provide some form of comfort to Z should his mother start to talk to him about wanting him to live with her. She anticipates that any application to the Court for leave would involve the Court asking questions as to the Mother's position in terms of her health and her ability to offer residence to Z before it allowed her to make an application. She would see it as an initial hurdle.
18. She also argued in evidence that the parental responsibility of the Grandfather should be in effect a "trump card" in the event that the holders of parental responsibility could not jointly reach agreement. All her concerns revolve around the mental health of the Mother.
19. Lastly, she urged the Court that there should be an extension of the residence order until the age of 18 to provide Z with the stability that he needed.
20. The application to discharge the care order was made under Article 33 of the Law. There is no threshold test to be met however, as with other applications under the Law the main focus is the welfare of the child and the welfare checklist.
21. We have had regard to the welfare of Z and to the checklist set out under Article 2(3) of the Law. It is clear to us from the evidence both of the social worker and of the Guardian that Z feels himself to be entirely connected with and settled with the Grandfather and would wish to live with him and that his physical, emotional and educational needs are fully met by the Grandfather. There would be, in effect, no change in his circumstances as a result of the orders sought as he will continue to live as he has done over the last few years, with his Grandfather. There are no other factors that we feel are relevant to our consideration although we do not think that either of Z's parents would be capable of meeting his needs at the present time.
22. Accordingly we were satisfied that we should discharge the care order as there no longer needed to be any involvement with the Children's Service and we make a residence order in favour of the grandfather. We were asked to do so by the Minister of our own motion but that was supported by way of an application by the Grandfather for a residence order.
23. We turn now to the conditions suggested by the Guardian.
24. Article 11(6) of the Law says that:-
"The court shall not make any Article 10 order -
(a) which is to have effect for a period which will end after the child had reached the age of 16;
...
unless it is satisfied that the circumstances of the case are exceptional."
25. We must, accordingly, consider any application for the extension of a residence order against that test. This is to our mind a somewhat unusual case in that Z has and will continue to have into the future (and the prognosis and timing is uncertain) complex medical needs. In addition there is a history in which the Mother has, perhaps ill advisedly, sought to set aside residence but, as we have said and in the event, that application was not proceeded with. We do not in any sense criticise the Mother for this but it does seem to us that there is some significant risk that Z may be destabilised were the residence with the Grandfather and the Grandfather's parental responsibility to come to an end when he reaches 16. In our view, these are circumstances which justify an extension of the normal period within which a residence order should terminate, and we make the order to expire on Z's 18th birthday.
26. For similar reasons, and in particular the history of the Mother's engagement in this matter, we also think it appropriate to make an order under Article 66(8) of the Law. That Article provides:-
"On disposing of any application for an order under this Law, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Law of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court."
27. We have in mind the judgment of the Court in the matter of T [2010] JLR Note 38 where it was held:-
"A residence order would be made in favour of E, who would also be given parental responsibility for the children. The mother would be allowed only letterbox contact with them. The Court would also make a prohibitive steps order against the mother under Article 66(8) of the Children (Jersey) Law 2002, requiring that she obtain the leave of the Court before making any application in relation to the children. The power to make such an order should be used with great care and sparingly and it should be the exception not the rule. It was generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications. It could, however, be made in suitable circumstances and on clear evidence in cases where the welfare of a child required it even though there was no history of unreasonable applications. In such cases, the Court would need to be satisfied, first, that the facts went beyond the commonly encountered need for a time to settle in to a regime ordered by the Court and the all too common situation of animosity between the adults in dispute or between the local authority and the family; and secondly, that there was a serious risk that without the restriction the child or the primary carers would be subject to unacceptable strain ...".
28. The Court in that case went on to determine that although the mother had not made repeated and unreasonable requests, the Court was satisfied on the evidence that the order would be in the children's best interest.
29. We remain concerned that at a time when her mental health may not be as good as it currently is, the Mother might chose to launch proceedings seeking a variation of the residence order which would be inevitably worrying and disruptive to Z. We do not in any sense think that the Mother should be prevented from recourse to the courts where the circumstances are appropriate but as an additional means of securing certainty for Z we are minded to make an order under Article 66(8) for the period of 5 years. This means that in the event that the Mother wishes to make an application to vary the residence order she must first make an application to the Court and satisfy the Court that there is some reasonable basis for her making such an application. That will not be a high hurdle to overcome but it will provide a filter against applications made when the Mother's judgement may not be at its best. We emphasise that this only applies to an application to vary the residence order that we have made and does not apply to any other form of application.
30. Although there has only been one application by the mother, which has not been repeated, she nonetheless continues to suffer from mental health challenges and in our view it is entirely in Z's interests that a filter in the way we have set out above, should apply in this case. We have chosen the period of 5 years because, although we were initially minded to think of a period of 3 years, that would expire just at the point when Z was leaving primary school and entering secondary school and it seemed to us that it would be better to make an order of longer duration so that he would be fully established in secondary school.
31. Lastly, we do not consider it appropriate to make any orders in connection with parental responsibility. It would seem strange to the Court having just, with the agreement of all parties, given the Father parental responsibility then in some manner to provide the Grandfather with a "trump". The Grandfather, the Father and the Mother have parental responsibility and there is no reason why they should not be jointly involved in making significant decisions in Z's life. Anyone with parental responsibility acting alone can give the necessary medical consents and medical arrangements should that be required and we are confident that the Grandfather will be in a position to manage the relationships in the future as successfully as he has done in the past.
32. For the above reasons, we made the orders for the discharge of the care order and residence in favour of the Grandfather subject to the conditions as set out above.
Authorities
Children (Jersey) Law 2002