Jersey Unreported Judgments

Residence Order.

[2021]JRC064

Royal Court

(Family)

9 March 2021

Before     :

J. A. Clyde-Smith OBE., Commissioner, and Jurats Thomas and Hughes

 

IN THE MATTER OF WW (RESIDENCE ORDER)

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

Advocate P. F. Byrne for the First Respondent.

Advocate C. R. G. Davies for the Third Respondent.

The Applicants and the Second Respondent appeared personally.

judgment

the commissioner:

1.        On 25^th February 2021, the Court granted the Applicants ("the maternal grandparents") a residence order in respect of the Third Respondent, their granddaughter ("WW"), who is aged thirteen years, and we now set out our reasons.

2.        The Second Respondent ("the Mother") gave birth to WW in 2007.  In June 2008 hair strand samples taken from WW tested positive for methadone and heroin.  Following a protection order, she was placed with the maternal grandparents on in 2008.

3.        An interim care order was made on 3^rd October 2008, to which D was made a party as WW's putative father ("D").  The procedural history thereafter is complex, but following a fact finding hearing the Court found on 22^nd March 2010 In the matter of E [2010] JRC 060) that, inter alia:

(i)        the Mother and D had been heroin addicts from at least 2003;

(ii)       the heroin and methadone had not been intentionally administered to WW, but had entered her body as a result of culpable neglect on the part of "someone" whilst she was in the care of the Mother and D;

(iii)      there were occasions prior to WW being placed with the maternal grandparents when no responsible drug free adult was caring for her;

(iv)      there had been incidents of domestic violence in the home of the Mother and D, to which WW had been exposed;

(v)       the family home of the Mother and D was an environment in which drugs and drug paraphernalia were present. 

4.        It transpired following a paternity test that D was not the biological father of WW.  It is not known who her biological father is.  In 2010, the Mother gave birth to another child, VV, of whom D is the biological father.  

5.        On 4th February 2011, the Court made a final care order in favour of the Minister in respect of WW and VV on the basis that WW would continue to reside with the maternal grandparents, and she has resided with them ever since, apart from a short period of unsuccessful rehabilitation to the Mother's care between November 2013 and March 2014.

6.        Happily, from that inauspicious start to her life, things have gone well for WW under the consistent and guiding hand of the maternal grandparents, who she regards as her main carers.  She is very well settled and doing well at school.  She is clearly bright and articulate and may well aspire to attending university.   

7.        The Mother has made positive changes in her life and is now caring for another child born (through another partner) in 2018, a half-brother to WW.  The relationship between the Mother and WW has blossomed to the extent that WW now has a weekly overnight stay with her Mother and half-brother, although the Mother is not in a position to care for WW full time.

8.        D has also made positive changes in his life, and WW has unsupervised family time with him (who WW regards as her father) and his extended family, including VV.

9.        A good working partnership had been developed between all the family members with the maternal grandparents consulting them to arrange family time.  Assessments of that family time had been completed and monitored but no concerns had been noted.

10.      The maternal grandparents made the application for a residence order at the instigation of WW, who does not see herself as "a Looked After Child".  She was living with her family and not in care and wanted a status to reflect this.  She did not want constant social worker intervention with statutory home visits and Looked After Child reviews.   She wanted to be normal.  

11.      The Mother supported the application as it was what WW wanted.  She said in her position statement that the maternal grandparents had always done what was best for WW and provided her with very good care.  She was not seeking any order herself as she feels that she and the maternal grandparents can work together to agree on contact arrangements.  

12.      The application was supported by the Minister and by the guardian, who put the position succinctly in paragraph 51 of her report:

"51.     [WW] is a young person who has been cared for by her grandparents for most of her life.  She wishes this to continue but wants it to be under the auspice of a Residence Order and not a Care Order.  She does not like the intrusion of being a Looked After Child.  [WW] has the capacity to understand what the making of a Residence Order means.  Her grandparents have demonstrated their commitment to her over the years and seek to share Parental Responsibility with [WW's] mother.  It is clear from observing [WW] with her grandparents that she is loved by them and that they want to continue to provide care for her.  This is supported by [WW's] mother and the Minister."

13.      The guardian raised two matters in her report, which required clarification from the Minister relating to a number of health concerns for which assessments were required and the extent of financial support for the maternal grandparents, who are both pensioners, and for [WW] when she comes of age.  These were helpfully addressed by the social worker as follows:

(i)        The maternal grandparents will be in receipt of an allowance (which we understand to be non-taxable) once the Residence Order is granted, and this for a duration of the Residence Order and assuming WW remains living with them.  A Residence Order agreement had been drafted to that end.  Under the current policy, there is scope to provide extra funding under exceptional circumstances should there be a significant need.

(ii)       WW will be eligible in her own right to be given "Care Leaver" status, after attaining the age of sixteen years.  Currently that status gives care leavers access to financial support through "Student Finance" to provide, for example, for university fees.  Care leavers are also allocated a personal adviser to provide support from the age of sixteen through to twenty-five.

(iii)      WW had been referred to CAMHS for ADHD and ASD assessments and attended her first appointment.  Another appointment has been made. 

The law

14.      The maternal grandparents' application for a Residence Order was brought under Article 10 of the Children (Jersey) Law 2002 ("the Children Law").  Under Article 11(1), a Residence Order is one of the few orders that can be made where a child is subject to a Care Order.    

15.      Pursuant to Article 10(4)(b) the maternal grandparents did not require leave to bring the application, because WW had been living with them for not less than 12 out of the 15 months immediately preceding the application.  In any event, the application was made with the consent of the Minister, pursuant to Article 10(4)(c)(ii).

16.      In deciding whether to make a Residence Order, the Court must apply the welfare principle under Article 2(1) of the Children Law which provides that WW's welfare is the Court's paramount consideration.  The Court must also have regard to the welfare checklist set out in Article 2(3) and to the no order principle under Article 2(5). 

17.      A Residence Order, if granted, will give the maternal grandparents parental responsibility for WW, pursuant to Article 13(2) of the Children Law, for so long as the Residence Order is in place, something that they currently lack and the granting of a Residence Order has the effect of extinguishing the Care Order pursuant to Article 66(1) of the Children Law.

Decision

18.      The guardian had helpfully taken the Court through the welfare checklist in her report, but in summary:

(i)        WW did not want to attend the hearing but had communicated her wishes clearly and articulately through the maternal grandparents, the Mother, the social worker and the guardian.  She no longer wanted to be a Looked After Child. 

(ii)       Her physical, emotional and educational needs were being met and she was developing and maturing well.

(iii)      There would be no change in her circumstances as a result of the making of a Residence Order.

(iv)      There were no aspects of her age, sex or background or characteristics which needed particular consideration.

(v)       The harm suffered by WW in the past as summarised above is well documented.  It is now some ten years from the care order, and positive changes had been made in the lives of the Mother and D.  However, the risk of her suffering further harm if cared for by the Mother alone could not be discounted.

(vi)      The capability of the maternal grandparents to meet WW's needs was proven in that they had successfully looked after her for most of her life and it was accepted that the Mother was unable to meet those needs on as full-time basis.

(vii)     In terms of the range of powers available to the Court, it was not proposed that there should be no order in place at all, leaving the Mother alone with parental responsibility. The Residence Order would discharge the Care Order, but at the same time give the maternal grandparents parental responsibility, enabling them to step into the shoes, so to speak, of the Minister, and thus securing and underpinning the placement of WW with them.

19.      The Court had no difficulty in agreeing that a Residence Order should be made for the reasons summarised by Advocate Byrne on behalf of the Minister as follows:

(i)        WW's wish is to be freed from the status of being a Looked After Child.  It is apparent from the professional reports that she has good reasons for this and an understanding of what it means for her.

(ii)       The maternal grandparents have been WW's primary carers for most of her life and did not require the Minister's continued involvement to meet her needs.

(iii)      The effect on WW will be the reduced involvement of professionals in her life.  As that involvement is no longer deemed necessary, the effect can only be positive on the making of a Residence Order.

(iv)      WW has been, and will continue to be, protected from the harm that resulted in the making of a care order.  Although in future, the maternal grandparents would be without the additional alerts to potential risk that the Minister could provide, they are as capable as any parent of managing the risks that WW may ordinarily be exposed to.  They also have significant experience and awareness of the specific and potential risks faced by WW.

Duration of the Residence Order

20.      Article 11(6) of the Children Law provides as follows:-

"(6)     The court shall not make any Article 10 order -

(a)        which is to have effect for a  period which will end after the child has reached the age of 16; or

(b)        other than one varying or discharging such an order, with respect of as child who has reached the age of 16,

unless it is satisfied that the circumstances of the case are exceptional."

21.      The Minister proposed, supported by the maternal grandparents, the Mother and the guardian, that the Residence Order should extend to WW attaining 18 years of age.   

22.      No authority was produced as to what might constitute "exceptional circumstances" and so as a matter of ordinary statutory interpretation there would need to be circumstances justifying an extension of the order to the age of 18 which are unusual or which deviated from the norm.  In this case, we were satisfied that such circumstances did exist for the following reasons:

(i)        Although this is a private law application made outside care proceedings, it will have the effect of discharging a care order made from a finding that WW had then suffered, and was likely to suffer, significant harm if no care order was made.  Whilst the risk of harm had reduced over the years, it could not be discounted and this underpinned a finding of exceptional circumstances.    

(ii)       If the Residence Order were to cease at the age of 16, thus terminating the maternal grandparents' parental responsibility, WW may find herself without someone to effectively and maturely exercise that role, potentially exposing her to things that might place her at risk.  Decisions made at the age of 16 or 17 can be crucial and determinative.  The parental role of the maternal grandparents therefore, so central to her care to date, should be extended to her attaining the age of 18.

Conclusion

23.      In conclusion, and for the reasons set out above, the Court made a Residence Order in favour of the maternal grandparents, extended to WW's eighteenth birthday, which had the effect of discharging the Care Order.

Authorities

The Children (Jersey) Law 2002

In the matter of E [2010] JRC 060