Interim Care Order - reasons for the Court's decision.
Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Thomas and Christensen. |
Between |
The Minister for Children and Housing |
Applicant |
And |
(1) The Mother |
First Respondent |
And |
(2) EE (The Child) (acting through his JFCAS Guardian) |
Second Respondent |
IN THE MATTER OF EE (THE CHILD) (ACTING THROUGH HIS JFCAS GUARDIAN)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate P. F. Byrne for the Minister.
Advocate C. Hall for the First Respondent.
Advocate H. J. Heath for the Second Respondent.
judgment
the deputy bailiff:
1. On 9th April, 2020, the Court granted an interim care order in relation to the baby in this case, EE. We also approved an amended care plan and adjourned the matter for a further hearing on 6th May at 10:00am.
2. This judgment provides the reasons for the Court's decision.
3. EE's mother is in her late 30s. We heard evidence from the social worker in this case who prepared the social work evidence template, the care plan and a pre-birth assessment of the mother, together with a very preliminary assessment of the maternal grandmother of EE who we will call B. The social worker also gave evidence in respect of threshold, and although such agreement was not binding on the Court, which must make its own finding, the parties (the Minister, the mother and the Guardian) agreed and the Court found that the threshold test for the making of an interim care order under Article 24(2) of the Children (Jersey) Law 2002 ("the Law") was satisfied in this case. The Court was satisfied that at the relevant date, on the balance of probabilities that there were reasonable grounds for believing that EE is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to him or likely to be given to him if the interim care order was not made, not being what it would be reasonable to expect a parent to give to a child.
4. The key threshold matters which led to this conclusion being recorded by the Court are that:
(i) Both the mother's previous children were removed from her care. Her son was removed and now lives with his father and her daughter was the subject of care proceedings which resulted in the child being removed from her care and freed for adoption;
(ii) The mother has significant mental ill health (including suicidal ideation), which has fluctuated over many years and has meant that she has not been able to meet or prioritise the needs of her children;
(iii) From October 2019 to earlier this year, the mother was an in-patient at Establishment 1, she was subsequently discharged to a supported living facility where she remained, owing to the fact that she has felt unable to return to her home having been subject to assault whilst there; and
(iv) It was conceded on behalf of the mother that she does not have stable living arrangements and is currently unable to care for a child.
5. The putative father did not appear and was unrepresented. He has agreed to undergo DNA testing to confirm whether or not he is the father of EE.
6. In reciting these matters, the Court makes no findings of fact and bears in mind the words of the Court In the matter of D (Care Order) [2013] JRC 104 where the Court said, at paragraph 18:
"We agree with the statements in the cases that on an application for an interim care order, evidence should be restricted to those issues which are essential for such an order, and the Court should be careful first of all not to make any findings of fact which might prejudice the final hearing, where the threshold test is not the same and secondly the Court should ensure that the interim care application should not become a dress rehearsal for the final hearing."
7. Although threshold was conceded by and on behalf of the mother, the care plan was not agreed.
8. Pursuant to the care plan, it was proposed that EE is placed with a foster parent and her two children, aged approximately [redacted], with contact with his mother three times a week and supervised by the Children's Service.
9. However, the position of the mother, to some extent supported by the Guardian, was that this drastic action should not be taken whilst the mother had just bonded and was still bonding with her baby son, but that she and her son should go and live with B.
10. The difficulty was that for reasons which it is unnecessary to set out in this judgment, but which the Court found readily understandable owing to the history of the family in this case, B did not put herself forward as a potential carer for EE until 6th April, 2020, and the enquiries that Children's Services would ordinarily have carried out by the time of the hearing, had not yet been completed.
11. Accordingly, the Court was left in a difficult position, as described below.
12. We now explore the evidence we heard in more detail.
13. The social worker, having dealt with threshold, said that the Minister sought an interim care order so that he could share parental responsibility with the mother. She said that foster care was the only realistic option in this case. It had only been three days since B had put herself forward as a potential carer for EE. EE is doing well in hospital and his mother was catering for his needs - feeding him, changing his nappy and bathing him. It was only on one evening when the mother was very tired that EE spent a night in special care.
14. The Children's Service would normally require up to 12 weeks to carry out a connected carer assessment which would look at the circumstances of the family members, home conditions, family history and take references.
15. This has not been possible in the case of B. The extremely brief "viability assessment" carried out in relation to the possibility of mother and child living with B was based on a more detailed viability assessment carried out over five years ago, which is plainly out of date, and a brief telephone conversation with B. The concerns of the social worker were summarised as follows:
(i) The relationship between the mother and B has historically been a volatile one;
(ii) They had not had a great deal of contact during the last year;
(iii) B had suggested that the daughter should not have another child in view of her previous difficulties;
(iv) B had not carried out a great deal of planning for the arrival of EE in her home and, prior to the hearing before us, the Children's Service were not aware that B shared her home with one of her sons and his girlfriend, neither of whom had been assessed by the Children's Service; and
(v) [Redacted]
16. In short, the social worker said "there are a lot of issues which require further exploration. There are also current concerns into the relationship between [the mother] and her parents and also about [B's] understanding of [the mother's] support needs." Accordingly further assessments were needed.
17. Reliance was also placed upon the fact that when, several years ago, B put herself forward as a potential carer for the mother's second child, who was ultimately taken into care, she withdrew her wish to be assessed at the time as she was concerned about the enquiry into the allegation of historic sexual abuse on the part of her husband.
18. If an interim care order is made, contact between the mother and EE is planned to take place at the premises in St Helier of the Children's Service. It was proposed that it would take place three times a week for one and a half hours. There would be a contact agreement.
19. [Redacted]
20. In cross-examination, the social worker accepted that the assessment of B and her home could take place in the space of four weeks. It was accepted that there was no suggestion of domestic violence between B and her husband and that they had many children together without any involvement on the part of the Children's Service. Further, B had cared for other children without any concerns being expressed by the Children's Service.
21. It was accepted that to remove EE from the current constant contact he has with his mother would interfere with the natural bonding process that should take place between child and mother, although the social worker did say that a baby could form multiple attachments and that she thought the bond that he had formed with his mother could be maintained through contact.
22. When cross-examined on behalf of the Guardian, it became clear that the social worker had not explored whether or not the baby could stay longer at the hospital in order for there to be further bonding between mother and child and for B's offer of care to be assessed. During the course of the hearing this was investigated and the hospital indicated that the baby could only stay an additional one or two days owing to the current public health crisis caused by the Coronavirus.
23. It was also clear that the social worker had failed properly to consider (which she accepted) the effect of the Coronavirus upon supervised contact. She did not know what practical effects the virus would have upon contact, but subsequently she and her supervising social worker were recalled to deal with this issue. The extent to which the public health crisis would affect contact between mother and baby would be reflected in the contact agreement. In summary, it was anticipated that if the mother was complying with the social distancing and other requirements issued by the Government, then she would need to wear a mask during contact sessions with her baby, but if she did not then she would need to wear an apron, mask, gloves and possibly a mask that covered both her mouth and also her eyes. The social workers present would also be wearing personal protective equipment. It was confirmed that neither the proposed foster carer nor her children were vulnerable or regarded as otherwise at greater risk from the virus.
24. Although she was present in Court throughout, we did not hear evidence from the mother, as she had only recently given birth and has various mental health difficulties and we accepted the explanation from her counsel that she would find giving evidence upsetting.
25. We did hear evidence from B who on the face of it was a straightforward witness. She described her accommodation in detail and it was plain that she had room in her house for both the mother and EE. She and her husband care for [redacted] and also temporarily accommodate her adult son and his girlfriend.
26. She told us about a period many years ago when her husband cared alone for several of their children for six or seven months and a subsequent period when she cared for the mother's eldest son for seven months when he was five or six years old. On neither occasion was there any expression of concern on the part of the Children's Service. She said that she had lost her father last year and her mother had recently moved into an old people's home which firstly made her want to focus more on her family and, secondly, gave her plenty of time in which to care for EE. She was confident that she would be able to enforce the current Government advice in relation to public health so as to ensure the mother complied. She described how she and her family members who live with her got on together in the home. She had been to the hospital every day since EE was born and seen the mother feeding him and dressing him. B was very happy to help and indeed said that she would have EE sleeping in her room overnight if that was the wish of the Court.
27. The members of the Court did not think B could be criticised for only recently volunteering to assist her daughter. There were many reasons for that which she explained. It appeared to the Court on the face of it that her accommodation was suitable for EE. The Court did not think that B could really be criticised for not making more preparations for the arrival of EE as she was an experienced mother and would, at short notice, be able to assemble sufficient clothes and other items needed to care for a baby.
28. The Court was also content with B's explanation that the reason she did not have telephone numbers for the mental health team, the social worker and others yet was because she had not been provided with them, but would use those resources if she needed them to assist with helping the mother overcome any difficulties which she experienced.
29. The Guardian gave evidence. In her report to the Court the Guardian agreed that the mother would not be able to meet the needs of EE. As to the proposal that she and EE are allowed to move in with her parents whilst assessments are undertaken, the Guardian had some sympathy with this suggestion. She described the decision as whether or not to remove a new born baby from her mother as "very draconian". She felt that the Minister had a "duty to immediately explore family members in order to enable EE to be placed with his mother and family or that he is placed separately with family instead of foster care".
30. She said that the Minister would need to provide the Court with reasons why a family placement is currently not viable. "especially considering the current social distancing restrictions and how this will impact on contact and EE's ability to bond with his mother"
31. She said that contact between the mother and baby should be at least five times a week if EE was taken into foster care and each session for a two hour period.
32. However, when the Guardian gave evidence, she said that she now knew that a hospital placement for the mother and baby together was not possible and she was also now aware that the Children's Service had not been aware of the presence of the son and girlfriend in B's household which needed to be considered. She remained of the view that contact between EE and his mother should be five times a week for a minimum of two hours and she thought that two and a half hours would be about right. She was worried about masks and said that the baby should be able to see his mother's face. She thought that an assessment could be carried out in two weeks, not the four weeks suggested by Social Services and the matter should be reviewed by the Court then. She also said that B should also be permitted to have contact with EE if an interim care order was made.
33. It was important for B to have contact because she was going to provide care to EE if any urgent assessment of the suitability of B's home for EE was positive.
34. In the Guardian's view, the viability assessment needed to focus on the son and girlfriend living at B's home, their police checks, their views of the mother and how the other members of the family view the mother, and a general assessment as to how the household functions. Further, an assessment of the support available to the mother was also essential.
35. In final submissions, counsel for the Minister and Guardian invited us to make the care order and approve the care plan, as, in the case of the Guardian, amended in relation to contact. Counsel for the mother asked us to reject the Minister's application, adjourn the matter for a brief period for an assessment and in the meantime accept an undertaking from the mother that she would permit B to care for EE and they would both reside with B.
36. Satisfaction of the threshold test, although a pre-condition of the making of an interim care order, is not sufficient in itself. It is necessary to have regard to the welfare checklist contained in Article 2 of the Law. The Court had regard to the welfare checklist and made the following findings:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding)
EE was too young to express any wishes of his own.
(b) the child's physical, emotional and educational needs
The child's physical and emotional needs are currently being met by his mother. But there was a concern arising by virtue of the matters referred to in respect of threshold that this may cease when she leaves the hospital environment and that, pending the assessment that the Court ultimately ordered, there would be a risk to the child's physical and emotional wellbeing. This would not be encountered if the child was placed in foster care.
(c) the likely effect on the child of any change in his or her circumstances
Owing to the child's age, the change in his/her circumstances by being placed (possibly temporary) in foster care should be small. EE will be able to continue to bond with his mother and we accepted the evidence of the social worker that a child of this age can form a number of attachments.
(d) the child's age, sex, background and any characteristics of the child which the court considers relevant
There were no relevant circumstances under this heading.
(e) any harm which the child has suffered or is at risk of suffering
Again, there may be a risk to the child if he is sent to a home which has not yet been adequately assessed, on the evidence of the social worker as supported by the Guardian. Although some criticisms of the mother and B were misplaced, they have had a difficult relationship and the extent to which they would be able to live together successfully and the context in which they would do so must be explored in order to ensure that EE's needs are met.
(f) how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs
The position of EE's father is not known as the putative father disputes paternity. As to the mother, she accepts that she is unable, without assistance, to meet the child's needs.
(g) the range of powers available to the court under this Law
The Court did consider the powers open to it, but felt that the only proper way of safeguarding the child's welfare, was for the Minister to share parental responsibility with the mother under the auspices of an interim care order.
37. The Court also gave anxious consideration to the care plan in this case and as a consequence made it clear that it would only approve the care plan as amended.
38. The care plan was amended. The principal alterations were:
(i) That following placement with a foster carer, the Minister will conduct an expedited viability assessment of B's household with a view to B acting as co-carer/carer for EE, such assessment to be completed in 14 days from next Tuesday (i.e. by 28th April, 2020).
(ii) That the section of the care plan dealing with contact was expanded to emphasise the importance of contact with B, as well as the mother.
(iii) That the proposed contact between the mother and the child be extended from one and a half hours three times a week to, when appropriate, two and a half hours three times a week with B being able to be present for one hour of each of the contact sessions.
These alterations were made and on that footing the Court was prepared to approve the care plan.
39. Ultimately the Court agreed to make the order sought by the Minister as set out in the Act of Court, the interim care order was granted and the care plan approved and the balance of orders sought by the Minister were left to be considered by counsel.
40. The Court hopes that the mother will use the period of assessment to continue bonding with EE, will cooperate with the Children's Service and will work with B to provide a realistic alternative to the continuation of foster care when the Court considers this matter again on 6th May 2020.
Authorities
The Children (Jersey) Law 2002.