Care proceedings - reasons for declining to approve the Minister's application.
Before : |
J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Ramsden and Pitman |
Between |
The Minister for Health and Social Services |
Applicant |
And |
A (the Mother) |
First Respondent |
And |
B (the Father) |
Second Respondent |
And |
Peter (the Child) (through his guardian Elsa Fernandes) |
Third Respondent |
IN THE MATTER OF PETER (CARE PROCEEDINGS)
AND IN THE MATTER OF CHILDREN (JERSEY) LAW 2002
P. F. Byrne Esq., Crown Advocate for the Minister.
Advocate A. T. H. English for the Second Respondent.
Advocate B. J. Corbett for the Third Respondent.
judgment
the commissioner:
1. On 29th May 2019, the Court declined to approve the Minister's care plan for the immediate removal of Peter (not his real name) ("the Child") from the care of his mother and father, and we now expand upon the brief reasons given at the close of the hearing.
2. The Child was born on a date in May 2019 and the Minister's application for an interim care order was filed that day. Notice of the application and of the proposed hearing at 2.30 p.m. 2 working days later was given that afternoon to Advocate Tremoceiro, acting for the mother, and Advocate English, acting for the father. The day before the hearing the Commissioner appointed a guardian and formally abridged time for the hearing to take place at 2.30 p.m. as proposed. The Child was still at the Maternity Hospital at the time of the hearing.
3. The mother and the father attended the hearing, the father represented by Advocate English. The mother's legal representative, Advocate Tremoceiro, and the guardian were unable to attend the hearing, because they were involved in another Children's public law matter being heard in another Court at the same time. The social worker with responsibility for the case was also unable to attend the hearing and evidence on behalf of the Minister was therefore given by her team manager, Ms Allison Tandy. At the commencement of the hearing, the Court made the Child a party to the proceedings and appointed Advocate Corbett to represent him.
4. Having heard evidence from Ms Tandy and the mother, and after considering all of the documentation before the Court, including a psychological report on the parents by Dr James Murray dated 29th April 2019, the Court was satisfied that the lower threshold test for the making of an interim care order was met, namely that there were reasonable grounds for believing that the circumstances mentioned in Article 24(2) of the Children (Jersey) Law 2002 ("the Children Law") were met. In brief summary, and working from the threshold document prepared by the Minister:-
(i) The mother, had lost her first child to adoption in care proceedings that took place on 11th December 2017, as a consequence, in part, of the mother's own difficulties and needs and her relationship with that child's father (who for the avoidance of any doubt is not the father of the Child).
(ii) There was evidence of the mother's fluctuating emotional state, history of emotional dysregulation and poor distress management.
(iii) The relationship between the mother and the father featured domestic abuse and there was evidence of poor dynamics within the wider family.
5. Dr Murray was clear in his report that the father of the Child had no diagnosable mental illness or psychological disorder and was not experiencing significant levels of anxiety or depression. He showed no signs of thought disorder, psychosis or any other serious mental illness and showed no indication of having a personality disorder. There was no evidence that his psychological state would make him a risk to the Child any more so than any other young prospective parent, although his ability to cope and parent a baby was untested.
6. The mother was also not experiencing any mental illnesses, but in Dr Murray's view, she did show a pattern of behaviour indicative of considerable psychological dysfunction, with a considerable risk that the stresses of caring for a new baby would result in a deterioration in her mental health. Without going into further detail, he advised that an assessment of the mother's daily living skills would be informative, and that would best be undertaken in the environment in which she will be parenting the Child with the father.
7. Although the relationship between the parents was relatively new, and had its difficult points, it appeared to Dr Murray to be of mutual benefit and support to them. Thought should be given, he said, to how they might be helped in sustaining this if the Child is placed in their care. He was aware that a previous placement had not been successful, but in his view, there might be grounds for seeking to retry something within that arena, and if this were available in Jersey, there would be a considerable chance of this being able to help the mother demonstrate that she possesses the skills and resilience needed to parent a child. He was less confident of such a placement being successful off island, and said it would be important to involve the father in such a placement.
8. The care plan was for the Child to be removed immediately from the parents and placed with foster carers, with the parents having contact initially three times a week. The social worker's statement confirmed that consideration had been given to placing the Child instead with the extended family:-
(i) The maternal grandparents were initially reluctant to put themselves forward they had confirmed that they wished to be considered as carers for the Child. They would need to be assessed.
(ii) The paternal grandparents had put themselves forward as carers, and an initial viability assessment had been undertaken, which would need to be followed by a full assessment. That would take some 12 weeks. Placing the Child with them at the moment was not considered a viable option, as the father was still officially residing with them (but not the mother).
(iii) The mother's paternal grandparents had also expressed a wish to have a viability assessment of them as carers undertaken.
Accordingly none of the assessments of the wider family had been completed.
9. Ordinarily, an interim care order is an impartial step to preserve the status quo pending a final hearing (see In the matter of PE and PH [2009] JRC 206A at paragraph 10), and the starting point is that if at all possible, children should live with their natural parents. Quoting from the judgment of Scriven, Commissioner, in the case of In the matter of QQ [2010] JRC 2178:-
"14 We should also make it clear that our starting point is that if at all possible it is in the best interest of the child to live with its natural parents. We bear in mind that under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 both the children and parents have the right to respect for their family and private life. As Hale LJ, as she then was, said in the case of Re C and B [2001] 1 FLR 611 at page 621 paragraph 34 (a case where the adoption of a small child was proposed):-
'There is a long line of European Court of Human Rights jurisprudence .. which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate but the aim should be to reunite the family when circumstances enable that and the effort should be devoted towards that end cutting off all contact and the relationship between the child or children in their family is only justified by the overriding necessity of the interests of the child.'
She made similar observations in the case of Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 when she said:-
'The principle has to be that the local authority works to support and eventually reunite the family unless the risks are so high that the child's welfare requires alternative family care.'
We are also guided by the words of Thorpe LJ in Re V (Care: interference with Family Life) [2003] EWCA Civ 786; [2003] 2 FLR 813 at paragraph 34 when he said:-
'... where the application is for a care order empowering the local authority to remove a child or children from the family the judge in modern times may not make such an order without considering the rights of the adult members of the family and of the children of the family. Accordingly he must not sanction such an interference with family life unless he is satisfied that it is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of children.'
10. However, it is clear that removal from the natural parents can be ordered at an interim stage if the child's safety demands it. The leading case setting out what is a high test is Re LA (Children) (Care: Chronic Neglect) [2009] EWCA Civ 882 to which Scriven, Commissioner, referred at paragraph 15 of her judgment:-
"15 In relation to the issue of H's removal from the parents we also have in mind the guidance of Thorpe LJ in the case of Re LA (Children)(Care: Chronic Neglect) [2009] EWCA Civ 882 at paragraph 7 when he restated the proposition expressed in earlier cases that separation is only to be ordered if the child's safety demands immediate separation or, put slightly differently, that '...at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection'. We bear in mind the fact that when considering whether a child's welfare requires immediate removal, safety should be regarded in a broad sense which may include psychological welfare as well as physical harm Re B (Care Proceedings: Interim Care Order [2010] 1 FLR 1221.
16 We also take into account that where the issue is whether or not the child should be removed from home during the interim period, the risk of harm is a 'two-sided coin' and the court must have regard to the detriment in being separated from the home as well as the risk of harm remaining there Re M (Interim Care Order: Removal) [2005] EWCA Civ 1954; [2006] 1 FLR 1043.'"
11. Removing a child from a mother at or shortly after birth is an extreme measure. Advocate English referred the Court to the case of VKS and PAS v Health and Social Services Committee [2005] JLR 390, in which this passage was cited from the judgment of Munby J in the case of In re M (Care proceedings: Judicial Review) [2003] 2 FLR 171 at paragraph 44:-
"(ii) At the risk of unnecessary repetition I emphasise that the removal of a child from his mother at or shortly after birth is a draconian and extremely harsh measure which demands 'extraordinarily compelling' justification. The fullest possible information must be given to the court. The evidence in support of the application for such an order must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.
(iii) Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for either an emergency protection order or an interim care order. They must also be given proper notice of the evidence the local authority is relying upon.
(iv) If a baby is to be removed from his mother, one would normally expect arrangements to be made by the local authority to facilitate contact on a regular and generous basis. It is a dreadful thing to take a baby away from his mother: dreadful for the mother, dreadful for the father and dreadful for the baby. If the State, in the guise of a local authority, seeks to intervene so drastically in a family's life ... then the very least the State can do is to make generous arrangements for contact. And those arrangements must be driven by the needs of the family, not stunted by lack of resources. Typically, if this is what the parents want, one will be looking to contact most days of the week and for lengthy periods. And local authorities must be sensitive to the wishes of a mother who wants to breast-feed and must make suitable arrangements to enable her to do so - and when I say breast-feed I mean just that, I do not mean merely bottle-feeding expressed breast milk. Nothing less will meet the imperative demands of the European Convention. Contact two or three times a week for a couple of hours a time is simply not enough if parents reasonably want more."
12. This is not dissimilar to the test for making of an emergency protection order under Article 37 of the Children Law, where it has been held that to remove a child summarily from his parents is a draconian and extremely harsh measure requiring extraordinarily compelling reasons. Such an order should not be made unless the Court is satisfied that it is both necessary and proportionate, and that no other less radical order would achieve the essential end of promoting the child's welfare (see In the matter of an emergency protection order in respect of B [2008] JLR Note 15).
13. The paternal grandparents attended the hearing and confirmed that the parents and the Child could live with them, certainly in the short term. Whilst the father's parenting capacity was untested, as with any new parent, Dr Murray had confirmed that he posed no risk to the Child, and although there were issues with the mother's psychological functioning, he advised that there was still a considerable chance that the mother could, with support, demonstrate that she could parent the Child. There was nothing in Dr Murray's report to suggest that the Child's safety demanded his immediate removal from the parents.
14. The mother feared that to have the Child removed from her care at this very early stage and contact reduced to three times a week, a level of contact castigated by Munby J, could set her up to fail and would certainly not give the Child the best opportunity of being parented by his natural parents.
15. Advocate Corbett had spoken to the guardian who was not supportive of immediate removal and who expressed the view that consideration should be given to a residential assessment of both parents. Taking into account the mother's lack of legal representation, the absence of any considered advice from the guardian and the absence of compelling evidence, the Court was not prepared to make such a draconian order. With the parents and the Child able to live in the paternal grandparents' home, and in the context of the wider family assessments in progress, we were not convinced that the Child's safety demanded his immediate removal.
16. In the circumstances, the Court did not approve the care plan, which it asked the Minister to reconsider, and adjourned the application for an interim care order.
Authorities
Children (Jersey) Law 2002.
In the matter of PE and PH [2009] JRC 206A.
In the matter of QQ [2010] JRC 217E.
Re LA (Children) (Care: Chronic Neglect) [2009] EWCA Civ 882.
VKS and PAS v Health and Social Services Committee [2005] JLR 390.
In re M (Care proceedings: Judicial Review) [2003] 2 FLR 171.
In the matter of an emergency protection order in respect of B [2008] JLR Note 15.