Jersey Unreported Judgments

Care proceedings - Orders made - reasons

[2019]JRC167

Royal Court

(Family)

23 August 2019

Before     :

J. A. Clyde-Smith OBE., Commissioner, and Jurats Olsen and Averty

 

IN THE MATTER OF ELEANOR (CARE PROCEEDINGS)

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

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

Advocate M. J. Haines for the First Respondent.

Advocate A. T. H. English for the Second Respondent.

Advocate R. S. Tremoceiro for the Third Respondent

judgment

the COMMISSIONER:

1.        On 16^th April, 2019, the Court made a final care order in respect of Eleanor ("the Child") in favour of the Minister and gave its approval for the Child to continue living outside Jersey. The orders were made with the consent of the parties and therefore our reasons can be briefly given. 

2.        The Child has been known to the Children's Service since 2012, when concern over her emotional and behavioural difficulties arose.  Her relationship with her parents deteriorated and she went to live with her maternal grandmother in 2017, but she could not cope with the Child's behaviour.  She went to live with her father in 2017, but he has his own issues and struggled with her care.  She was returned to the Island unaccompanied on 6th January 2018, and both parents confirmed that they were not willing or able to care for her.  She was therefore accommodated at Accommodation A by voluntary agreement, pursuant to Article 17 of the Children (Jersey) Law 2002 ("the Children Law").

3.        Whilst at Accommodation A, the Child's behaviour declined further, with her regularly absconding and whilst missing, sleeping rough, consuming alcohol, smoking cannabis and involving herself in petty crime.  She was also associating with peers known to the Children's Services and was at risk of sexual exploitation.  A secure accommodation order was granted on 29^th May, 2018, for a period of 28 days and that was extended on 22^nd June, 2018. 

4.        In the meantime, on 14^th June, 2018, the Minister was granted an interim care order and C, a consultant psychiatrist, was jointly instructed.  In his report of 30^th August, 2018, he advised that the Child's issues were caused by attachment difficulties and anxiety, as opposed to being neuro-developmental in nature.  He recommended that the Child required a period in a residential placement, where the staff had the requisite skills in managing her emotional and challenging behaviour.  This would be best delivered away from her current environment and at a geographical distance from her current peer group. 

5.        On the Child's return to Accommodation A on 27^th July, 2018, from secure accommodation, she resumed her previous behaviour, absconding and associating with older men.  On 1^st October, 2018, the Minister applied for a further secure accommodation order, and whilst accepting that the threshold for such an order had been met, the Court declined to make one, due to a lack of alternative placements for the Child in Jersey.  On 17^th October, 2018, the police and the Children's Service received information that the Child was associating with a registered sex offender. 

6.        A therapeutic placement at Accommodation B was identified, and the Child taken to visit it.  She confirmed that she would like to be placed there.  Taking advantage of her agreement, she was taken to Accommodation B on 24^th October, 2018, where she remains to date. 

7.        The Child's move to Accommodation B was undertaken without the prior approval of the Court, as required by paragraph 4 of Schedule 2 of the Children Law.  At an urgent hearing on 31^st October, 2018, the Court gave its approval for the reasons set out in its judgment In the matter of Eleanor (Care Proceedings) 2018 JRC 209.  That approval was renewed on 26^th November, 2018, for the reasons set out in the Court's judgment In the matter of Eleanor (Care Proceedings) 2019 JRC 005A, and on 4^th January, 2019, the Court further extended its approval until the final hearing. 

8.        At Accommodation B, the Child was further assessed by D, a clinical psychologist, who confirmed that she was not suffering from a neuro developmental disorder, or autistic spectrum disorder, and that her symptoms were more likely to be due to anxiety, stress, fatigue, or even substance misuse.  In his opinion, Accommodation B met many of her needs, and the calmness of the physical environment was helpful to her.  Noting that the placement was far away from Jersey, which could result in limited contact which might hinder her return to the care of the parents, he advised that a similar style of care closer to Jersey or in Jersey could meet her needs, or alternatively, a placement in a specialist foster care environment. 

9.        At the final hearing, the Court heard evidence from the social worker, the guardian and from Mr Carl Le Poidevin, the interim service lead for residential homes within the Children's Service. 

Threshold

10.      Under Article 24(2) of the Children Law, the Court can only make a care 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."

11.      In this case, the Minister was reliant on the second limb under Article 24(2)(b), namely the Child being beyond parental control, so that the Court had to be satisfied that the Child was suffering, or was likely to suffer significant harm, and that harm, or likelihood of harm was attributable to the Child being beyond parental control. 

12.      The Court was referred to the case of Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1, where Bellamy J gave the following guidance:-

"148    The clearest statement concerning what the 'attributable' condition is to be found in Lancashire Country Council v B [2001] 1 FLR 583.  Lord Nicholls said that,

'5 ....the phrase 'attributable to' in section 31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the Child's being beyond parental control on the other ... the connection need not be that of a sole or dominant or direct cause and effect; a contributory causal connection suffices'.

...

150     That leads on to consideration of the expression 'the Child's being beyond parental control'.  There is little authority on the meaning of this expression.  It is an expression that appeared in earlier Child protection legislation.  Section 1(2)(d) of the Children and Young Persons Act 1969 provided that proof that a Child 'is beyond the control of his parent or guardian' was sufficient of itself to empower the court to make a care order.  The Children Act 1989 makes two important changes to that wording.  First, the expression 'he is beyond parental control' is replaced by 'the Child's being beyond parental control'.  Second, proof of the Child's being beyond parental control' is not of itself sufficient to empower the court to make a care order.  The court must be satisfied that the Child 'is suffering or is likely to suffer significant harm ... attributable ... to the Child's being beyond parental control.'

151     The first reported authority is M v Birmingham City Council [1994) 2 FLR 141.  Stuart-White J there said,

'...Subsection (2)(a) contains a verb, in what is unquestionably the present tense ... whereas subs (2)(b)(ii) contains no verb in the present or any other tense.  It must be read together with the opening words of subs (2)(b) as follows: '...that the harm, or likelihood of harm, is attributable to - (ii) the Child's being beyond parental control'.  The expression contained in subs (2)(b)(ii) is, it seems to me, plainly a substantial expression capable of describing a state of affairs in the past, in the present or in the future according to the context in which it falls to be applied.  No doubt this is why the concept of likelihood finds no place at this point in the subsection.  Two other matters in relation to subs (2)(b)(ii) have been canvassed in argument.  In relation to those I am prepared to assume for the purpose of this appeal, without deciding the point.  That 'parental control' refers to the parent of the Child in question, and not to parents, or reasonable parents, in general ..."

152     The only Court of Appeal authority addressing the concept of 'being beyond parental control' is L (A Minor) 18 March 1997 (unreported).  Butler-Sloss LJ says,

'It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a Child is beyond parental control you must show some misfeasance by the parents.  There is almost no authority on the phrase 'beyond parental control' and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today.  We are asked to look at the useful guidance to the Children Act, Volume 1, under Court Orders, which says at paragraph 3.25:

'...the second limb is that the Child is beyond parental control .... It provides for cases where, whatever the standard of care available to the Child, he is not benefiting from it because of lack of parental control.  It is immaterial whether this is the fault of the parents or the Child.  Such behaviour frequently stems from distorted or stressed relationships between parent and Child'.

That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous Child legislation of 'beyond parental control'.  I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically ... Quite simply this Child is beyond the control of his parents.  It is extremely sad.  It is not a case of apportioning blame.  It is a case of recognising a very worrying situation and one would have hoped, trying to work together, to make something of this Child'.

153     The Children Act 1989 Guidance and Regulations, to which Butler-Sloss LJ referred, was updated in 2008.  The text and tone of the latest guidance is noticeably different from the earlier version.  The guidance now states:

'3.41    If the Child is determined by the court as being beyond parental control, this means that, whatever the standard of care provided by the parents, the Child is suffering or is likely to suffer significant harm because of lack of parental control.  This requires the court to determine whether as a matter of fact, the Child is beyond control: it is immaterial who, if anyone, is to blame.  In such cases, the local authority will need to demonstrate how the Child's situation will improve if the court makes an order - how his behaviour can be brought under control, and why an order is necessary to achieve this."

13.      Whether a child is beyond parental control is therefore a simple question of fact, and it is immaterial who is to blame for this.  In this case, the mother and the father (and the maternal grandmother) had been unable to control her behaviours and indeed had refused to care for her.  Whilst voluntarily accommodated at Accommodation A, her conduct deteriorated so that she was beyond the control of the staff there, control ultimately being established through the imposition of a secure accommodation order. 

14.      The Minister first applied for that order on 25^th May, 2018, which we take to be the relevant date for the purpose of establishing threshold.  We have not gone into detail over the behaviour of the Child that led to that application, because it is manifest from the summary we have given that she was both suffering and likely to continue to suffer harm attributable to her being beyond parental control.  The parties agreed that this was the case. 

Welfare Test

15.      The Court had regard to the applicable principles set out in paragraph 8 of the judgment of the Court of Appeal in Re F and G (No 2) [2010] JCA 051, but in this case, there was no question in the Court's mind as to the appropriate order, as agreed by the parties. 

16.      The evidence of the social worker was that the Child was settled in her placement in the UK, was attending school regularly and engaging well with her psychological treatment with E, with whom the Child had a very good relationship.  Whilst there remained incidents of self-harm, she was receiving appropriate therapeutic support, and was no longer exhibiting the extreme behaviour seen in Jersey.  She was described by her school as bright and intelligent and a pleasure to teach.  She had chosen her options for next year, and wished to complete her education within the UK educational system.

17.      The guardian confirmed that the situation for the Child had improved in the UK.  As she pointed out in her helpful report, the Child could not return to her parents, or to a placement in Jersey, as there is no suitable provision in Jersey which met her needs.  Being returned to Jersey could lead to a resurgence of her risk-taking behaviours.  In her placement in the UK, she was receiving therapeutically based care that met her needs, was attending school and was physically safe.  She wished to remain there and a care order was necessary to secure that placement.  No other order could do so.  

18.      That said, there were a number of issues which were the subject of discussion at the hearing:-

(i)        The guardian stressed the importance of the psychological work being carried out with E, for which funding had been agreed by the Minister for an initial twelve weeks.  It was imperative, she said, that this work was not ended abruptly, but would continue for as long as it was needed.  There was a long waiting list for Accommodation C (as in Jersey) and this private work was very important.

(ii)       The Child feels a sense of responsibility for her father, who struggles with a number of issues, and very much wanted to see him.  The social worker explained how difficult it was to contact and engage with him for the purposes of an assessment, but she offered to go and meet with him (potentially accompanied by Advocate English).  It was proposed that the Child would be taken by social workers, so that supervised contact with her father could take place.

(iii)      The care plan stated that the Child would remain in the UK until it was safe and suitable for her to return, a somewhat open-ended statement, of which counsel for the respondents were critical.  They were also critical of the lack of a similar therapeutic placement for the Child in Jersey.  Mr Le Poidevin explained the current position with regard to residential availability in the Island.  The lease for Accommodation A had expired, and a new smaller Children's home would be ready by the end of May, 2019.  A significant staff training exercise had been conducted, but it was unlikely that a therapeutic environment similar to the Child's current placement in the UK would be available until the end of 2019.  It would not be possible, of course, to replicate the remoteness of her current placement. 

(iv)      The guardian summarised the position in this way:-

"Whilst [the Child] appears to be adequately cared for at Accommodation B, it is disappointing, to say the least, that there is no proper provision for her in Jersey at this time.  I understand that there appears to be a drive to improve residential care provision in Jersey: it is sad that it has not happened in sufficient time to enable this Child to come home.  [The Child] has no extreme levels of need that could not be met with reasonably well-resourced care provision in Jersey; she is only placed away because we have no proper space or support for her here.  This makes it difficult for her to have contact with her family and friends, she cannot see her mother as much as she would like, and her father (considering his difficulties), is almost lost to her.  Were she in Jersey, contact would be significantly easier to organise.  There is no other real choice to be made now and arguably she will do better in Accommodation B, where the services she needs are already in place...."

19.      Finally, the approval of the Court was required for the Child to live in the UK, pursuant to Schedule 2, paragraph 4(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 had 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."

20.      The Court was satisfied that it was in the Child's best interests to continue living in her placement in the UK and that the arrangements there were suitable.  The Child had consented to living there and every person who had parental responsibility, namely the mother and father, had consented. 

21.      In conclusion, the Court granted the Minister a final care order, having approved the care plan and contact arrangements, and gave its approval to the Child continuing to live outside Jersey.

Authorities

Children (Jersey) Law 2002.

In the matter of Eleanor (Care Proceedings) 2018 JRC 209

In the matter of Eleanor (Care Proceedings) 2019 JRC 005A

Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1

Re F and G (No 2) [2010] JCA 051