Emergency Protection Order - reasons for declining to make the order
Before : |
R. J. MacRae, Esq., Deputy Bailiff, sitting alone |
Between |
Minster for Children and Education |
Applicant |
And |
(1) A (The Mother) (2) B (The Father) (3) HH (The Child) (through her legal representative Advocate N. S. H. Benest) |
Respondents
|
IN THE MATTER OF HH (EMERGENCY PROTECTION ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate P. F. Byrne for the Minister.
Advocate E. L. Wakeling for the First Respondent.
Advocate A. T. H. English for the Second Respondent.
Advocate N. S. H. Benest for the Third Respondent.
Guardian E. Green
judgment
the deputy bailiff:
1. On 16th September 2021, I declined to make an Emergency Protection Order in relation to the child, HH, who is aged 2 and will be 3 years old in January.
2. I now give reasons for my decision.
3. Two days before the application was heard, the father, the Second Respondent, was arrested on suspicion of possession / distribution of indecent images of children.
4. The child lives with her parents, the First and Second Respondents, and also another adult family member, C.
5. C was also arrested on the suspicion of the same offence as B.
6. Neither men have been charged with an offence. I will summarise the police evidence in respect of the investigation below.
7. The child has spent her whole life with her parents.
8. While the mother is capable of meeting the essential needs to ensure the child's well-being and development, due to the nature of her medical needs she requires round the clock support to do so.
9. By way of background, and of significance to the application made by the Minister, on 30 December 2019, the Royal Court gave a judgment (unpublished) in proceedings to which the Minister, the parents and the child were also parties.
10. The judgment arose in connection with the Minister's application for an interim care order shortly after the child was born, seeking her immediate removal to foster care. The application was principally driven by the fact that the father was wanted for questioning by a police force in another jurisdiction in relation to possession and distribution of indecent images of children. As the father failed to attend upon that police force for questioning, and no application for his arrest and removal from Jersey was ever made, those proceedings never progressed and were, presumably, ultimately discontinued.
11. When the Minister's first application came before the Court on 31 January 2019, the Court, whilst satisfied that the threshold for making an interim care order was met, declined to make such an order but understood the need to investigate whether the father posed a risk of sexual harm to his child and, if so, the extent of that risk.
12. Subsequently, the Court ordered a fact finding hearing as to whether or not the father had, in fact, possessed the indecent images of children.
13. Dr Briggs, a psychologist, produced a report in which he said he did not believe that the child was at immediate risk of sexual harm from the father and, if the father was found to have downloaded indecent images, it would be more likely that the risk would increase as she progressed towards puberty and into early adolescence where there would be at least 'a theoretical risk' of the father carrying out direct sexual abuse or capturing her image for sexual purposes and, further, if the father were to be found to have downloaded indecent images, there would be need for a programme to manage that risk.
14. The Care Plan, subsequently filed by the Minister, indicated that the Minister would be seeking 'no order', whatever decision was made by the Court on the subsequent finding of facts, but the nature and level of support provided to the family would depend on the facts found.
15. The downloading of indecent images in England took place in 2010. The father denied involvement with any indecent images.
16. The mother was not well enough to give evidence on the day of the fact find and, in any event, the events took place before she met the father. She was supportive of the father's denial of his involvement in downloading indecent images of children. Over 800 images and movies were found on various devices, all falling within category C (the least serious) of the Sexual Offences Definitive Guidelines. The Royal Court determined, having all the evidence, that the father had downloaded indecent images of children.
17. The Court held that the threshold for making an interim care order or supervision order had been met but, having regard to the welfare considerations set out in Article 2(3) of the Children (Jersey) Law 2002 ("the Law"), declined to make an order. The Court said that the evidence before it was that the child was well looked after and 'thriving in the care of the parents'. Any risk of harm could be managed by the work recommended by Dr Briggs, with which the parents and the wider family (largely based in two different jurisdictions) were willing to cooperate. The Court therefore made no order, expecting the parents to cooperate with the plan recommended by Dr Briggs. That plan was set out at page 35 of Dr Briggs's report dated 29 March 2019 as follows:
"Were findings to be made that [B] had downloaded / viewed sexual images of children there would be a need for various interventions.
There would be a need for [B] to undergo an intervention of a psycho-educational sort designed to provide him with information about the nature of sexuality, how sexual interests can emerge at different points in the life cycle and why, those circumstances in which illegal sexual interests can develop, how normal sexual interests can mutate from healthy interests, the ways in which the person's context and circumstance can exacerbate risk, the nature of dynamic risk factors and the strategies sexual offenders have found useful in managing those risk factors, the importance of achieving a balanced lifestyle and acknowledging important personal goals, and the nature of harm caused by the child abuse imagery industry.
There would be a need for the non-abusive parent ([A] in this case) to be educated as to the nature of risk and tactics for risk management. (This is discussed below in more detail.)
There would be a need for the child to be taught keep safe strategies at various points throughout her childhood and in ways which are age appropriate.
There would be a need for surveillance and monitoring of the family through close family members and friends, individuals who are alert to issues of risk, who have access to the family, who are prepared to build an appropriate safety plan with the parents, who will monitor this plan, and who will liaise with the appropriate authorities if there is concern of the plan being breached."
18. In short, correspondence from Dr Briggs and the submissions made by counsel before me indicated that that plan had been complied with and both parents had cooperated. Indeed, it was the mother's case that she continues to survey and monitor her husband's access to devices capable of accessing the internet.
19. Detective Sergeant Manners of the States of Jersey Police said that he was allocated the case on 14 September. Police intelligence received was that a person using a device registered to the home address of the parents using the 'discord' platform (which is apparently frequently used to play computer games) had sent a category A (the most serious category) indecent image of a child to a third party. It was not clear whether the image was a photograph or a 'movie', i.e. a collection of images in film form.
20. The police attended the home address. They were satisfied from a conversation with the mother that she was not a suspect. Both the father and C were arrested and cautioned. Twenty devices were seized including mobile phones, computers and storage devices. DS Manners thought the items would take four to five weeks to analyse, although the Court accepted the evidence of the Guardian and the submissions of counsel that, in fact, the analysis would probably take much longer. C exercised his right to remain silent in interview. The father denied any offences and denied using the discord platform when he was interviewed. The police, using their powers under the Law, took the child to a place of safety at 1pm on Tuesday before the hearing.
21. The police, in taking the child into police protection, were using their powers under Article 41 of the Law which provides that where a police officer has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, the officer may take the child into police protection for up to 72 hours. The child was taken into temporary foster care and well looked after.
22. The social worker, in evidence, confirmed that the work recommended by Dr Briggs was completed satisfactorily by the parents. She said that the home was found to be dirty and untidy when the police attended, except for the kitchen and bathroom, and that the child's cot was piled with belongings and she was sleeping in her parents' bed. C has a psychiatric condition which affects his cognitive functioning and it was claimed, although not confirmed, that he had admitted to the alleged offence. Whether he had, and whether or not such an admission in the context of this case would be reliable, the Court cannot say and any suggestion that he had admitted an offence I disregarded for the purpose of considering whether to grant the order in this case.
23. The social worker said that the child's mother relied upon the child's father as a full-time carer. She has said the child's mother did not show understanding of the possible risk of sexual harm that the father posed to the child. The social worker said that they were concerned that the father may pose a risk of sexual harm to the child because of the 2019 Royal Court findings and the current investigation. The father's current denials were viewed with suspicion in view of his denials of accessing indecent images of children in 2010 and the Royal Court's findings in 2019 that he had done so.
24. As to the child, she is bright, well looked after, has excellent language skills and has a very close relationship with her mother. The social worker took the view that to make no order in this case was inappropriate as, in her opinion, it was not safe for the child to return home. When asked why the Minister sought the removal of the child now when he had not done so in 2019, the social worker said that if the father had accessed images then it shows that he 'may pose a risk of harm to the child if he has downloaded these images'. For the father to have done so would put in doubt the ostensible success of Dr Briggs in the work that he had done with the parents. The social worker confirmed that it is generally regarded as emotionally harmful to remove a child this young from its parents. She accepted that, at this stage, the age or sex of the child in the video / image was not known, nor is it certain that the image was indecent. Nonetheless, the social worker said 'There are too many grey areas and we wanted to protect the child'.
25. It was suggested in cross-examination that the parents could give various undertakings to the social worker, such as to permit spot checks at the home, allow remote video monitoring of the child, and to exclude C from the home. The social worker rejected these suggested undertakings as insufficient. In my judgment, she was right to do so as they would do little to mitigate any risk that there was.
26. The social worker said, in answer to questions from the advocate representing the child, that she was unable to say whether or not the Minister would be able to provide support for the mother to live alone with the child with another carer whose identity would be acceptable to the Minister. That would be a matter for adult social services and it was not possible to say whether or not they would be able to assist.
27. The Guardian supported the Minister's application. She confirmed that the child was independent and bright. She was doing well at the foster carers', content and sleeping in a cot.
28. The Guardian said that 'somebody' had sent a serious child abuse video, and the father had had access to such images before. She said, in the circumstances, 'We have to assume that there is some level of risk'. She said that if the child remained in foster care, she should see her parents five times a week, and not three times a week as was currently permitted, as supervised by the Children's Service. It appears that the Children's Service are not sufficiently resourced to provide such frequent contact between the child and her parents.
29. It was said on behalf of the parents that the Minister had not articulated what the likely harm was in this case.
30. I remind myself that the evidence of the social worker was that the father 'may pose a risk of harm' to his daughter. The evidence of the Guardian was that 'We have to assume that there is some level of risk'.
31. Does this evidence meet the statutory threshold that must be passed for the making of an Emergency Protection Order?
32. Article 37(1)(a) provides:
"37. Emergency protection orders
(1) The Bailiff may, on the application of any person, make an emergency protection order with respect to a child if the Bailiff is satisfied that -
(a) there is reasonable cause to believe that the child is likely to suffer significant harm if -
(i) the child is not removed to accommodation provided by or on behalf of the Minister, or
(ii) the child does not remain in the place in which he or she is then being accommodated."
33. Gloss on the words of the statute has been provided by both Jersey and English case law. In Re B [2008] JRC 026A, Birt, Deputy Bailiff, as he then was, said:
"22. I was referred to the case of X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 which, at paragraph 57 of the judgment of Munby J, sets out the overriding principles which should be borne in mind when considering whether to grant an emergency protection order under the equivalent English legislation. I have carefully considered the matters summarised there; in particular the fact that summarily removing a child from her parents is a draconian and extremely harsh measure requiring extraordinary compelling reasons. Such an order should not be made unless I am satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting B's welfare."
34. As to the decision in X v B, referred to by Birt, Deputy Bailiff, the judgment of Munby J [2004] EWHC 2015 (Fam) was drawn to my attention.
35. In that case, at paragraph 95, the judge considered with approval the decision of the European Court of Justice in Haase v Germany, which considered, inter alia, Articles 6 and 8 of the European Convention on Human Rights. The concluding part of paragraph 95 of the judgment of Haase said:
"95. .....The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the "necessity" for such an interference with the parents' right under Article 8 to enjoy a family life with their child."
36. Munby J then went on:
"The court added at para [99]: " ... before public authorities have recourse to emergency measures in such delicate issues as care orders, the imminent danger should be actually established. It is true that in obvious cases of danger no involvement of the parents is called for. However, if it is still possible to hear the parents of the children and to discuss with them the necessity of the measure, there should be no room for an emergency action, in particular when, like in the present case, the danger had already existed for a long period."
46. I draw particular attention to the court's reference to the test as being one of "necessity" and also to the requirement that "imminent danger" must be "actually established". I also draw attention to the court's statement (para [93]) that:
"The taking into care of a child should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child".
37. At the end of the judgment, he provided the following summary of the effect of the relevant English legislation which, for these purposes, is identical terms to the Jersey provisions:
"57. The matters I have just been considering are so important that it may be convenient if I here summarise the most important points:
i) An EPO, summarily removing a child from his parents, is a "draconian" and "extremely harsh" measure, requiring "exceptional justification" and "extraordinarily compelling reasons". Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child's safety; "imminent danger" must be "actually established".
ii) Both the local authority which seeks and the FPC which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the FPC approach every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the Convention rights of both the child and the parents.
iii) Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety.
iv) If the real purpose of the local authority's application is to enable it to have the child assessed then consideration should be given to whether that objective cannot equally effectively, and more proportionately, be achieved by an application for, or by the making of, a CAO under section 43 of the Act.
v) No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety.
vi) The evidence in support of the application for an EPO 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.
vii) 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 an EPO. They must also be given proper notice of the evidence the local authority is relying upon."
38. Munby J then went on to consider the correct approach to ex parte applications for an Emergency Protection Order which it is unnecessary to set out.
39. Two years later, in Re X: Emergency Protection Orders, this approach as revisited by McFarlane J in the High Court [2006] EWHC 510 (Fam). He said, inter alia:
"Emergency Protection Orders: Good Practice Guidance
101. For ease of reference I will now draw together the observations I have made with some additional guidance:
a) The 14 key points made by Munby J in X Council v B should be copied and made available to the justices hearing an EPO on each and every occasion such an application is made;
b) It is the duty of the applicant for an EPO to ensure that the X Council v B guidance is brought to the court's attention of the bench;
c) Mere lack of information or a need for assessment can never of themselves establish the existence of a genuine emergency sufficient to justify an EPO. The proper course in such a case is to consider application for a Child Assessment Order or issuing s 31 proceedings and seeking the court's directions under s 38(6) for assessment;
d) Evidence given to the justices should come from the best available source. In most cases this will be from the social worker with direct knowledge of the case;
e) Where there has been a case conference with respect to the child, the most recent case conference minutes should be produced to the court;
.....
j) Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice;
k) Cases of sexual abuse where the allegations are inchoate and non-specific, and where there is no evidence of immediate risk of harm to the child, will rarely warrant an EPO;
......
m) Justices faced with an EPO application in a case of emotional abuse, non specific allegations of sexual abuse and/or fabricated or induced illness, should actively consider refusing the EPO application on the basis that the local authority should then issue an application for an interim care order. Once an application for an ICO has been issued in such a case, it is likely that justices will consider that it should immediately be transferred up for determination by a county court or the High Court"
40. It was clear on the evidence that the child in this case was not in imminent danger of significant harm. Such a risk was not established by the evidence. Indeed, those who gave evidence in front of me did not purport to say that such a risk existed.
41. In refusing the application, I made clear to the Minister and the Guardian that there was no criticism of the stance that they had taken. Furthermore, the refusal of an Emergency Protection Order does not impede the Minister from applying for an interim care or supervision order. When giving a short extemporary judgment at the end of the hearing, I indicated that there are many circumstances that could be envisaged (I gave specific examples) of matters that might be revealed during the course of the police investigation which would make it appropriate for the Minister to consider renewing his application for an Emergency Protection Order.
42. Finally, this judgment should not be taken as suggesting that the content of a communication over the internet may not give rise to circumstances warranting the granting of an Emergency Protection Order. That is not the case. Indeed, I note from a (currently unreported) judgment of the Bailiff last year that such an order was granted having regard to the contents of a message between a third party and a parent living at the relevant home address in that case, in circumstances where the content of the message was regarded as 'extremely strong evidence of sexual activity' with one child and possible sexual activity with another. In those circumstances, there was plainly sufficient evidence to warrant the granting of an Emergency Protection Order.
Authorities
Children (Jersey) Law 2002.