Before : |
Sir William Bailhache Commissioner, and Jurats Ramsden and Cornish |
Between |
Minister for Children and Education |
Applicant |
And |
A (The Mother) |
First Respondent |
And |
B (The Father) |
Second Respondent |
And |
GG and HH (The Children) represented by their Guardian Amaya Arana |
Third Respondents |
IN THE MATTER OF GG AND HH (INTERIM CARE ORDER)
AND IN THE MATTER OF THE CHILDRENS (JERSEY) LAW 2002.
Advocate P. F. Byrne for the Minister.
Advocate H. J. Heath for the First Respondent.
Advocate L. K. Helm for the Second Respondent.
Advocate R. E. Colley for the Third Respondents.
judgment
the COMMISSIONER:
1. This is an application by the Minister for an Interim Care Order under Article 30 of the Children (Jersey) Law 2002 (the "Law") in respect of the Third Respondents. The First and Second Respondents (the "Mother" and the "Father" respectively) are the parents albeit not married and now separated. By agreement, the Second Respondent has parental responsibility of GG. The biological father of HH is unknown.
2. There is a slightly unusual history to the present application. On 29th April 2022, sometime after 5pm, the Court sat to receive an application by the Minister for an Emergency Protection Order. A Police Protection Order had been made at approximately 14.50 hours the same day, and given the forthcoming bank holiday, the Minister considered it necessary to seek an Emergency Protection Order that evening. It was an ex parte application and some evidence was heard. At the conclusion of that evidence, the Deputy Bailiff granted an Emergency Protection Order and gave his ex tempore reasons for doing so. He was clearly very anxious about making the order in question but, given the decision of the police to take the children into protective custody under Article 41 of the Children (Jersey) Law 2002 ("the Law"), having reached the conclusion that the other evidence had not been sufficient to justify such an order, he said:
"It is proper for me to give weight to their [the professionals'] concerns but, particularly bearing in mind the decision that she was personally responsible for making, the evidence of DS Young and the concerns that she had and the conclusion that she drew, as I have said, that there was in her view a risk of serious, significant and immediate harm. In those circumstances, having regard to the test I have set out at the outset of this decision as contained in Article 37, I am just persuaded that it is appropriate for me to make an Emergency Protection Order today."
3. That decision was made on the basis that there would be an inter partes hearing within seven days. That hearing came before me on 4th May. Having heard evidence from Dr Evans, Detective Sergeant Young and Mr Duncan Fairweather, a Practice Manager at the Jersey Children's Service, I indicated towards the end of the morning session that, unless some further evidence was forthcoming (which seemed unlikely on the papers) the evidence which had been produced was nowhere near enough to justify the grant of an Emergency Protection Order and I could not understand why an application was not being made in the usual way for an Interim Care Order with a proper Care Plan attached. In the light of that indication, further consideration was given over the lunch adjournment to the application by the Minister, and there were some discussions with the parents. In the afternoon, I gave leave to the Minister to withdraw the application for an Emergency Protection Order and a date was fixed for 6 May when the application for an Interim Care Order would be brought. Two matters were material to that agreement:
(i) The Mother indicated that her partner had agreed to leave the accommodation which she shared with him and not to have contact with the children. His presence in the home had been one of the worrying features which had led the Minister to make the application he had.
(ii) Secondly, the Minister indicated that in the light of that information and the undertakings which the Mother had given, the Care Plan, which would be presented with the application for an Interim Care Order, would provide for the children to remain with their Mother while further investigations were carried out.
4. In my view, the approach which the parties took following the indications which I had given was entirely correct. It may just be worth reiterating that the Court's power to make an Emergency Protection Order with respect to a child is, as found in The Matter of B [2008] JLR Note 15, 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 course of action will achieve the essential end of promoting a child's welfare".
5. It is also to be noted that the use of the police protection powers under Article 41 is, in my judgment, similarly constrained.
6. The structure of the Law is to ensure that children are not removed from their parents without a Court order, and the Court will inevitably be anxious to look at all options before doing so. The status quo is generally that the children in question are living with their parents or parent, or with others approved by the parents or parent. Good reason for disturbing the status quo must be established. It was very noticeable in the evidence which I heard that there might be something significantly wrong within this family: but, by way of example, Dr Evans said that she "would like to have the opportunity of exploring why [GG] is making the comments which he did". Detective Sergeant Young said:
"There are too many unknowns to say that these children would be safe if they were to be returned to that property."
7. Both these witnesses were rightly concerned about the welfare of these children and there is absolutely no criticism of them for that. Nonetheless, the expressions which they have used indicated to me that what I have referred to as the status quo was, if the application were granted, to be interrupted on the basis that not enough was known to be sure that the children would be safe. In my judgment that is the wrong approach. One does not remove children from their parents on the basis of a lack of knowledge. Children can and should only be removed from their parents if they are at risk of significant harm if they were not so removed; and the nature of an Emergency Protection Order is well summarised by its description. It has to be an emergency. In the present case, the evidence from the social worker was that these children had been the subject of Child Protection Plans in the past, and indeed there had been ongoing concerns which the Children's Service had had. The only precipitating event was the discovery of some abrasions on the back of the eldest child, thought to be non-accidentally caused. Otherwise the main concerns were of neglect and of some comments by the eldest child which would justify further enquiry.
8. I emphasise that when I heard the application for an Emergency Protection Order as a single judge on May 4, I was in no doubt at all that all those concerned on the side of the Minister were rightly troubled by some of the issues affecting the children. These do give rise for concern. We have heard evidence about those issues with a threshold document, which is agreed, on the application for an Interim Care Order. It is right that further enquiry is made. However, the draconian steps, whether under Article 41 or Article 37, should only be exercised where there is an immediate risk of significant harm and it is important to emphasise the need for immediacy in that respect. Where children have been the subject of Child Protection Plans over months previously, evidence of those concerns is hardly relevant to the question of an Emergency Protection Order: one needs evidence of some immediate problem which is sufficient to lead the Court into making the draconian order that Article 37 envisages.
9. In this case, we have received a threshold document which has been agreed by the parties as conferring upon the Court a jurisdiction to make the order in question. We have received also a report from the social worker employed by the Minister with responsibility in this case, and we agree that threshold is passed. The time for assessing whether there was a risk of significant harm is the first occasion on which the Minister has taken some positive action in proceedings before the Court, which was the position on Friday 29th April. As of that date:
(i). There were reasonable grounds for believing that there was a risk of significant physical harm by virtue of the Mother's partner living in the family home, he apparently having caused the abrasions to the eldest child's back.
(ii). There were reasonable grounds for considering that both children were at risk of emotional harm as a result of things which they have said; and
(iii). There were reasonable grounds for thinking that the children were suffering from neglect in their care.
In each case as a result of the care of them by the Mother and/or the Father falling short of the standard which it would be reasonable to expect of a parent.
10. As is the case with any application for an Interim Care Order, the threshold test requires only that reasonable grounds are established, and the Court makes no concluded finding that the children have suffered or are likely to suffer significant harm, whether physical, emotional or through neglect. That will be for further enquiry at a later stage, and our conclusions at this stage are only that there are reasonable grounds for thinking that this harm, or some of it, may have been suffered.
11. We turn next to the Care Plan, which envisages that the Mother's former partner will have no contact with the children and will not be living in their home, and the Mother has undertaken that that will be the case. The Care Plan envisages that the children will remain with their Mother while other investigations are carried out. The question of contact with the Father will be the subject of ongoing consideration by the Minister, in conjunction with the Mother and the Father. We approve the Interim Care Plan and make the Interim Care Order in respect of both the children in favour of the Minister.
12. As to directions:
(i) The parties shall, within 7 days of 6th May 2022, jointly instruct DNA Legal to undertake a hair strand or nail testing on the Mother and the Father in respect of drug and alcohol use;
(ii) The parties shall, within 7 days of 6th May 2022, jointly instruct Dr David Briggs to undertake psychological and cognitive assessments of the Mother and the Father, whereby the Minister shall be responsible for sending the instructions, such report to be filed within 10 weeks of instruction;
(iii) The parties shall, within 7 days of 6th May 2022, jointly instruct an independent social worker to undertake "parenting assessment manual" (PAMS) parenting assessments of the Mother and the Father, such report to be filed within 12 weeks of instruction;
(iv) All health and medical records, including but not limited to GP records, any mental health records, and drug and alcohol records of the Mother and the Father shall be made available to the relevant experts and all relevant papers from these proceedings shall be disclosed to the relevant experts.
(v) In the event that the Children, Young People, Education and Skills Department is unable to confirm that an educational psychology assessment will be conducted in respect of the Third Respondents and that the related report provided within 10 weeks of 6th May 2022, the parties shall within 14 days of 6th May 2022, jointly instruct an agreed appropriate expert to conduct the same, such report to be filed within 12 weeks of instruction. The Minister shall be responsible for sending the instructions.
(vi) In the event that the Health and Community Services Department is unable to confirm that a holistic health assessment will be conducted in respect of the Third Respondents and that the related report be provided within 10 weeks of that instruction, the parties shall, within 14 days of 6th May 2022, jointly instruct an agreed appropriate expert to conduct the same, such report to be filed within 12 weeks of instruction. The Minister shall be responsible for sending the instructions.
(vii) The States of Jersey Police shall provide disclosure to the Minister within 14 days of being served with this order, and shall continue to disclose on an ongoing basis until the conclusion of these proceedings, all police national computer records and international records, to include antecedence relating to the following adults:
(a) A (the Mother); and
(b) B (the Father).
Police disclosure is relevant and necessary to assist the Court in making a decision about the welfare of the subject children.
(viii) Leave is granted to the Minister to disclose the material obtained by virtue of the order at paragraph 12(vii) above, to the parties on condition that the parties shall be permitted to read the documents at the offices of their legal representatives and are permitted to retain any copies;
(viiii) The States of Jersey Police shall have liberty to apply within three days of being served with the Act of Court.
(x) Pursuant to Rule 25 of the Children Rules 2005, and subject to the consent of the parties on a case by case basis, leave was granted for the disclosure of expert reports filed within these proceedings to professionals working with and/or treating the Respondents.
(xi) The Mother and Father shall provide the Minister with names and contact details of any persons they wish to be considered as alternative carers for either or both of the children, before 19th May 2022.
(xii) Any connected persons/kinship care assessments undertaken by the Minister shall be completed within 12 weeks of 6th May 2022.
(xiii) The parties shall, within 7 days of 6th May 2022, attend a date fix before the Bailiff's Judicial Secretary to fix a date for a directions hearing, issues resolution hearing and a final hearing in this case.
(xiv) The Minister shall file his final statement/care plan, including final threshold documents and any other witness statements which he seeks to rely on, 8 weeks in advance of the final hearing.
(xv) The Respondents shall file any final statements and any other witness statements that they seek to rely on, 6 weeks in advance of the final hearing.
(xvi) The Children's Guardian shall file her final analysis and recommendations 4 weeks in advance of final hearing.
(xvii) The Minister shall lodge a bundle, to be agreed if possible, and his skeleton argument 1 week in advance of the final hearing.
(xviii) The Respondents and the Guardian may, if so advised, file any skeleton arguments 3 days in advance of the final hearing.
(xviiii) The parties shall agree a reading list, 3 days in advance of the final hearing.
(xx) There shall be ongoing disclosure of the school records from School A to the Mother, the Father and the Guardian.
13. There is Liberty to Apply
Authorities
Children (Jersey) Law 2002.
The Matter of B [2008] JLR Note 15.
Children Rules 2005