Before : |
Sir William Bailhache, Commissioner, and Jurats Ronge and Hughes |
Between |
Minister for Children and Education |
Applicant |
And |
A (the "Mother") |
First Respondent |
And |
YY (the "Child") |
Second Respondent |
IN THE MATTER OF YY (SECURE ACCOMMODATION ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate P. F. Byrne for the Minister.
Advocate D. C. Robinson for the Mother.
Advocate M. R. Godden for the Second Respondent.
judgment
the COMMISSIONER:
1. The Court sat on 8th March 2022 to hear an application by the Minister for a Secure Accommodation Order for a period of three months pursuant to Article 22 of the Children (Jersey) Law 2002 (the "Law") in respect of the Second Respondent ("YY"), who will attain the age of eighteen years later this year. At the conclusion of the hearing the order was made for a period of three months as requested by the Minister. The Care Plan is that she should be accommodated at Accommodation F, where she was living at the date of the application pursuant to a Secure Accommodation Order made on 10th September 2021.
2. Neither the Mother nor the Guardian was able to raise any reason as to why the Secure Accommodation Order should not be extended, nor indeed as to any viable alternative to it. On behalf of the Mother, Advocate Robinson submitted that the three-month Secure Accommodation Order was in his view inevitable because of a lack of contingency plan and he expressed concern indeed for the absence of any viable exit plan for YY when she reaches the age of eighteen.
3. As indicated, this application is regrettably not the first public law children's application in the Royal Court in respect of YY. She was made subject to a Final Care Order on 16th April 2019 and subsequently the Minister was given leave to place her out of the island after concerns for her welfare and safety had escalated. At that time there was no placement available on island reasonably to meet her needs and as a result she was placed at Accommodation A with 3:1 support.
4. Secure Accommodation Orders have been made in the past by this Court. As was said in the Court's judgment on 10th September 2021 (In the matter of YY (Secure Accommodation Order) [2021] JRC 262) when giving reasons for the Secure Accommodation Order made on 30th June 2021:-
"3. YY experienced trauma in her early childhood which has had a significant impact on her day to day functioning in her teenage years. She has been diagnosed with Emotionally Unstable Personality Disorder, which means her mood can become unpredictable and at times can put herself and others at risk. At times of high distress, YY has been known to abscond, be aggressive towards others, self harm and damage property.
4. Initially, YY settled well at Accommodation A, however from March 2021, which coincided with the Covid-19 pandemic, and lockdown measures, there was a marked escalation in her distress and her behaviours again escalated. She was made the subject of a Community Treatment Order under Scottish law, where she was considered an adult at the age of sixteen. Due to the escalating behaviours, Accommodation A gave notice on her placement. Alternative accommodation was sought for YY across the UK but without success. YY also indicated her wish to return to Jersey.
....
6. Since YY has returned to the island, her behaviour had become more challenging and had escalated the attempts of harm to herself and others. These had become more frequent and intense recently..."
5. The Court on that occasion also summarised what the Children's Social Care Service then proposed for YY:
" 10. The Court heard evidence from the social worker, Dr Keep, Mark Owers, Director of Safeguarding and Care/Chief Social Worker for Children and Families, and the Guardian. The application was supported by the Guardian, the parents and unusually, by YY herself.
11. It was Dr Keep's opinion that YY needed to be placed in an environment which could safely manage the risk which she posed to herself and others. She needed a secure setting, which could manage these risks safely but also provide a caring, nurturing and therapeutic response to recognise her emotional vulnerability as well as her risks. With YY remaining in Accommodation F under a Secure Accommodation Order, the CAMHS plan would be:
(i) Her care coordinator and psychiatrist would continue to meet with her on a regular basis to build on engagement with her, to review her mental state and advise regarding further treatment.
(ii) CAMHS would work with Accommodation F staff to develop care plans to manage her risk and interventions which would be informed by her therapeutic needs.
(iii) CAMHS would try to engage her in individual dialectical behaviour therapy which is the recommended psychological therapy for Emotionally Unstable Personality Disorder.
(iv) CAMHS would request an assessment and consultation from the Adolescent At-Risk and Forensic Service (South London and Maudsley Trust) regarding further risk assessment, treatment options and recommendations for future placement.
(v) CAMHS would also seek the opinion of the Jersey Probation Service over risk assessment and management.
(vi) CAMHS would continue to offer and review psychotropic medication options in the form of regular medication and as required for acute episodes. It was noted that YY had a pattern of consenting to and then refusing medication. Whilst psychotropic medication might reduce some of the impulsivity and frequency and severity of episodes of severe emotional dysregulation, the focus of treatment would be on containment of her risky behaviour and specialist psychologist therapy for the management of emotionally unstable personality disorder and trauma.
12. Mr Owers gave evidence as to the steps being taken to provide appropriate accommodation for YY. The Government of Jersey currently has four children's homes registered with the Jersey Care Commission to provide support for young people from twelve to eighteen years of age but none are registered as therapeutic environments, but it was the intention to provide a children's home with therapeutic support for which funding had been secured. A suitable property had been located, but there were a number of bureaucratic steps that needed to be gone through and some twelve staff to be engaged and trained to provide 24/7 care. It was hoped that such a home would be established by the beginning of October 2021.
13. The Guardian said a Secure Accommodation Order was necessary, although she had concerns over the proposed exit from Accommodation F and the viability of Accommodation C. The proposed new therapeutic children's home may not be developed in YY's timeframes. In view of YY's age, there was a limited window of opportunity to provide her with the specialist engagement that was required."
6. We will come to the Maudsley report shortly, but it appears that other than procuring that report, the steps envisaged then have either not been taken or have proved fruitless. In its judgment dated 22 October 2021 (In the matter of YY (Secure Accommodation Order) [2021] JRC 263) giving reasons for its decision on 10th September 2021 when the June Secure Accommodation Order was extended for 6 months, the Court had said:
" Mr Owers was not available to give evidence on 10th September 2021, but the Minister provided a statement from Ms Daniela Raffio, Head of Commissioning at the Children, Young People, Education and Skills (CYPES) Department. To the frustration of Advocate Robinson, representing the first Respondent ("the Mother"), Ms Raffio had not been asked to attend the hearing. In her report, she explained that currently there were no providers in Jersey who were registered to offer 24-hour support and care for those under 18, but four providers had been contacted all of whom would need to register for a variation of their current registration with the Jersey Care Commission and of those four, Provider 1 had expressed an interest. A property would need to be provided (one had been identified) and she estimated it would take in the region of four months to complete the process to the point where the property would be ready for YY and staff to occupy. Provider 1 currently had three experienced members of staff who had been approached and would be core to the formation of a team developed to support YY. They would need to recruit a further eleven full time staff or equivalent. In terms of timescales, Provider 1 had estimated at least three months if all went to plan with recruitment and preparation."
7. This Court has the benefit of a report from the South London and Maudsley NHS Foundation Trust. This described YY as being unable to discuss her trauma experiences in depth, but she acknowledged experiencing significant emotional abuse, physical violence and witnessing domestic violence during childhood, with indication of further trauma in adolescence. Psychometric measures indicated that she experienced a significant level of Post-Traumatic Stress Disorder, the symptoms of which are an important vulnerability factor when considering her difficulties with managing emotions and relationships.
8. The assessment of YY's cognitive abilities place those in the borderline range and the fourth percentile, meaning that 96% of people her age would have obtained a higher score. There was no current autism diagnosis.
9. YY is undoubtedly at moderate risk of harm. She engages in self-harm approximately fortnightly and is considered to be at moderate risk of non-suicidal self-injury, generally using available ceramics or plastic to cut herself on the arms and legs. She does not require routine medical attention.
10. The risk of suicidal behaviour is currently low although in the past she has historically engaged in potentially suicidal actions. The risk therefore is reduced in the context of a currently high level of supervision and support.
11. YY presents a high risk of future interpersonal aggression and therefore a risk of harm to others; the level of risk was low at present, but on her return to the community it might well increase. On that return, she will certainly be vulnerable to engaging in sexual or criminal acts to obtain alcohol or illicit substances. Her emotional and relational difficulties place her at risk of exploitation.
12. The Maudsley assessment does not recommend any single occupancy in bespoke therapeutic placements.
13. The Court has received a detailed statement from the Social Worker concerned with YY and the chronology contained in that statement makes it plain that the terms of Article 22 of the Law are met. The Minister must satisfy the Court that YY has a history of absconding and is likely to abscond from any other description of accommodation than secure accommodation, and, if she does, she is likely to suffer significant harm. It is unnecessary to set out all the details in this judgment. The report of the Social Worker speaks for itself and there has been no evidential criticism of it.
14. YY has been known to the Minister since she was 8, when she first came to the attention of CAMHS in 2012 because of emotional and behavioural difficulties. She had been living with the Mother and her step-father but in October 2017 this placement broke down and she went to live for a while with her maternal grandmother. This came to an end in December, following which she went to live with her father, out of the jurisdiction. Unfortunately, this arrangement also broke down and she returned on an unaccompanied flight to Jersey in January 2018, following which, with the agreement of the father and the mother, she was accommodated on a voluntary basis at Accommodation G. Thereafter there was a progressive decline in her behaviour such that the Minister applied for a Secure Accommodation Order which was granted on 29th May 2018 for a period of 28 days. The Court summarised the position at paragraph 3 of its judgment in the following terms:-
"The result is that during the last four weeks the evidence is that YY has been sleeping rough, she has been found to be intoxicated, she has admitted smoking cannabis and she has been arrested for larceny. She committed vandalism and she has also self-harmed. She has stopped engaging with CAMHS and there is a significant concern that she might become subject to child sexual exploitation."
15. On 14th June 2018, the Minister was granted an Interim Care Order. We note from an earlier judgment that the Court said this when granting a Secure Accommodation Order in 2018:
"7. Dr Rajpal, a psychiatrist, had been instructed to prepare a report which he produced on 30th August. He made a clear recommendation in the following terms at para 9.3 of his report:-
"As somebody with such complex relationship issues and attachment issues, she would require a period at a residential placement, which has skill sets in managing emotional and challenging behaviour.
The best way to deliver this would be a place which is away from the current environment and has some kind of legal authority to restrain and stop her from going out so that she does not continue to present with behaviours so as to engage and evoke an emotion. Once (over a period of time) she has settled and is able to feel safe and secure, then she will require support to learn how to express her attachment in an appropriate manner. ...
8. In view of the continuing difficulties with absconding, consuming alcohol, associating with older men etc., the Minister applied for a further secure accommodation order. However, this was rejected by the Court on 1st October. The Court accepted that the threshold for making such an order was met, but, we are told by Advocate Kerley, said that it was not willing to make such an order because of the lack of a satisfactory placement on the expiry of the order.
9. On 17th October information was received that YY was associating with a registered sex offender.
10. In the light of these developments, the Minister explored the possibility of an off-island placement and identified Accommodation A located in Scotland. The Court was shown some details about Accommodation A. It is a care home service for children and operates a therapeutic model known as the Sanctuary Model of Care. The Minister having identified this possible placement, YY was approached as to whether she would like to visit Accommodation A to inspect it as a possible alternative to Accommodation G. She agreed to visit.
11. On the weekend of 21st October she travelled to Scotland with two support workers from Accommodation G, returning on 23rd October. According to the social worker from the Children's Service Helen Hawkins, she enjoyed her time at the unit in Scotland and wished to return as soon as possible.
12. There were then various discussions involving the social worker, Accommodation G, the mother and the grandmother. These will need to be investigated at the adjourned hearing, but the upshot was that, according to the social worker, YY and the mother agreed to YY returning to Accommodation A for a period of assessment and she duly returned to Accommodation A on 24th October. The social worker was apparently unable to contact the father during this period.
13. The mother's version is somewhat different. She says that she has not given consent to the placement at Accommodation A, but she emphasises that she is not saying she would not do so once she has been given proper information. She says she has had no communication with the social worker and that everything has come via staff at Accommodation G. They simply informed her that YY was going for the initial weekend trip and subsequently informed her that YY was returning to Scotland. They did not ask for her consent. She met with YY on 23rd October and YY appeared to be enthusiastic about going to Accommodation A. She has not been informed of any detail of the placement, the purpose of it or any other detailed information. She has had no direct contact with the social worker."
16. The Court made the Final Care Order in April 2019 and the Guardian's report was referred to in the Court's judgment of 23rd August 2019 (In the matter of Eleanor (Care Proceedings) [2019] JRC 167):
"The Guardian summarised the position in this way:
"Whilst [the Child] appears to be adequately cared for at Accommodation B, it is disappointing, to say the least, that there is no proper provision for her in Jersey at this time. I understand that there appears to be a drive to improve residential care provision in Jersey: it is sad that it has not happened in sufficient time to enable this child to come home. [The Child] has no extreme levels of need that could not be met with reasonably well resourced care provision in Jersey; she is only placed away because we have no proper space or support for her here. This makes it difficult for her to have contact with her family and friends, she cannot see her mother as much as she would like and her father (considering his difficulties), is almost lost to her. Were she in Jersey, contact would be significantly easier to organise. There is no other real choice to be made now and arguably she will do better in Accommodation B, where the services she needs are already in place.""
17. As was said by the Guardian, YY's need for a therapeutic placement has been well-known from the outset, and the drive for a locally sourced provision for her was a significant factor within the care proceedings which took place. It was hoped at the time of the final hearing that efforts would continue to be made to return YY to a placement in Jersey, her home, potentially as soon as the summer of 2019. However, it appears that the efforts to provide a care provider locally have been unsuccessful.
18. In her most recent report to us, the Guardian said this of the current placement at Accommodation F:
" ... Advocate and I spoke to the staff team at the unit at length about her needs and the issues within the placement and I am extremely concerned about her safety, the safety of the other children living there, and the viability of the placement over the next three months.
10. The staff informed me they felt close to breakdown in managing her needs, which are significant. They had not received risk assessments and pertinent information from her unit in Scotland until a week or so ago, and on reading these, realised they had been falling into almost all the pitfalls of managing her behaviours which the unit there had risk assessed. They have not, until recently, received sufficient clinical supervision from CAMHS. They feel they are in the position of having to care for her in a piecemeal fashion and are doing the job of mental health professionals, without the proper training. They feel strongly that [YY's] placement should be in a mental health setting, rather than being in a children's social care provision.
11. Three members of staff have left since her placement there and a fourth has recently handed in her notice. They are understaffed and working long shifts as a result and feel close to burnout in managing her care. They are worried for the safety of the other young people living there, describing how [YY] has imposed isolation upon herself within her corridor, which they are very grateful for, as if she involved herself with the other young people they would be a risk of real harm. The staff are trained in de-escalation and safe restraint techniques. However, due to the nature of [YY's] needs they are having to offer 1:1 to her and the other young people, and are consequently unable to follow procedures to undertake their work within safety guidelines, if an incident occurs. They note that the intensity of her outbursts has lessened recently but continue to feel extremely worried about her wellbeing (they do not feel they are meeting her needs other than in a very basic sense), their own safety, and the welfare of the other young people living there. More young people are likely imminently to be admitted to Accommodation F and they are concerned that asking for another three months is unlikely to be safe, or workable. The staff note that [YY] has been given mixed messages and they do not support or feel confident in the work that has been undertaken, feeling that a further three months will not achieve change.
12. I am very concerned about the stability of the placement at Accommodation F, and whether it is feasible for [YY] to remain there for another three months, or until she is eighteen and can be moved to an adult provision. I am uncertain what the answer is, as it is clear she needs a secure placement and the provision is not available locally. However, I am angry and sad that I am repeating the advice I gave in 2018: [YY's] needs are well known, and the Court is being presented with no proper choice in this matter. She cannot live without support, but the current accommodation is not suitable for her."
19. The Social Worker's report analysed the likely impact on YY of the preferred options in this way:
"The plan is that YY will remain in Accommodation F until a bed is found in a specialist DBT therapeutic unit / hospital in England. The proposed length of the placement would take to her eighteenth birthday and there is the possibility that she would not be able to move to an provision (sic) until her eighteenth birthday, the same date of which she would no longer be able to remain at Accommodation F. It is not known how long any treatment plan and the type of setting by the Maudsley report would take. This will help with supporting and containing [YY] while she waits for the transition to a hospital setting in England and it is acknowledged that this will be an uncertain time for her with a number of transitions planned.
If the options are Accommodation F or Accommodation E, I feel that [YY's] preference would be Accommodation F. She may voice that she would like to move out of Accommodation F due to the other residents and the impact this has on her mental health, however, this is based on not having a comparison such as Accommodation E. It could be months or when [YY] turns eighteen years old when she is able to access a specialist unit / hospital. Accommodation E has the most vulnerable adults in need or in-house mental health support as a consequence they may present with some challenging behaviours which [YY] could also struggle with but she would not have her key staff team to help her manage this.
There is a concern that [YY's] world is a small one in a physical sense, however this has been built upon recently. If [YY] is to continue to engage with the DBT that CAMHS are providing and she continues accessing the community with staff when appropriate it is more likely that this will continue in a positive way while being supported by the right people and in an familiar environment.
[YY] is still displaying behaviours which communicate her need for this containment to continue."
20. We note that on 18th January 2019, when approving the order for YY to remain outside the jurisdiction, the Court said this:
"29. In making our assessment, we have been much influenced by the fact that all the evidence suggests that there is nowhere currently safe for [YY] in Jersey. Whilst the placement in Scotland may or may not be the right long-term placement for her - and we have noted that the Minister is adopting a twin-track approach to her long-term placement, namely either in Jersey or in the United Kingdom - the evidence suggests that there is currently no safe place for [YY] in Jersey. Her safety is paramount, and it is our view of that risk which has led us to the conclusion that she does not at this stage have a sufficient understanding of what it means to give or withhold consent."
21. In the light of the material which we have cited above, it is unsurprising that the Court was extremely concerned at the position in which it has been placed. We agree with the Guardian and with the parties that today there is no sensible option other than a Secure Accommodation Order for the purposes of protecting YY from the risk of significant harm until she is eighteen. But we could not ignore the fact that not only have Interim and Final Care Orders been made but also that Secure Accommodation Orders have been made on numbers of occasions. We were extremely concerned that, taking a step back and looking at all that has been said and done over the last six years, this young person has been failed. As a result, we requested Mr Mark Owers, the Director of Safeguarding and Care, to attend in Court to respond to the concerns which have been expressed in the reports and to questions which were put to him by the Court in the witness box.
22. In summary, we were advised by Mr Owers:
i. He did not regard the Children's Social Care Service as having failed YY. On the contrary, the service had kept her alive for four years and maintained her safety, significantly reducing the serious harm which she might have caused herself through her own endeavours. It was important to recognise that because many people with the diagnosis she had actually died. The service had not failed her but kept her alive.
ii. The social workers had helpfully stressed how hard the staff at Accommodation F worked to go the extra mile every single minute of the twenty-four hour shifts that they had to do.
iii. As a jurisdiction Jersey would never be able to provide the specialist support that this child required on island. It would not be cost effective and would not be a good use of our scarce resources. There was a struggle to provide this sort of resource for 65 million people in England, and we had to remember that in Jersey we had only a population of 110,000, with approximately 18,000 children under the age of eighteen. Although the Maudsley report was extremely helpful, those experts identified a specific provision in YY's best interests, where Jersey was effectively at the back of the queue because we were not operating in the United Kingdom.
iv. The need for CAMHS services on island had increased dramatically, perhaps exponentially. This was no doubt partially impacted by the pandemic. The fact that a £1 million a year service provider in Scotland could not deal with YY's behaviour in fact showed how well the Jersey Children's Social Care Service had coped with the difficulties caused by her return here.
23. Generally, he told us that the Children's Social Care Service were doing a good job for YY under very difficult circumstances. Accommodation F was not primarily designed to meet someone with such specialist needs as she had. It was hoped that new training would be provided for staff both at Accommodation F and through CAMHS and that this would ameliorate the position.
24. We feel obliged to say that we did not find the evidence of Mr Owers to be impressive. A summary of the arrangements surrounding YY over the years is set out above. It seems to us to be an unacceptably low expectation to regard the mere keeping alive of a child in the Minister's care as a success. The fact is that the Court has been assured and reassured on regular occasions over the last few years that the Minister would be making provision for accommodating children and young people facing special challenges in Jersey, with the specialist care or therapy which they required, but none of this seems to have happened. Only on the most recent occasion is it now being said that this provision is not possible.
25. The central question before us is whether or not a Secure Accommodation Order could be justified, having regard to Article 22 of the Law. The short answer to that question is undoubtedly an affirmative one. There is no doubt that YY is being looked after by the Minister, has a history of absconding and is likely to abscond if not kept in secure accommodation and, if she does abscond, is likely to suffer significant harm. Pursuant to the Children (Secure Accommodation) (Jersey) Order 2005, the maximum period for which a child may be kept in secure accommodation is three months, save that where a Secure Accommodation Order has already been made, the Court may impose a Secure Accommodation Order of up to six months. In this case, the problem is not so much whether the statutory tests are met, because they are, but what the exit strategy is for a young person who will reach the age of majority shortly after the three-month period expires.
26. We are faced with a young person who is quite clear that she does not wish to be placed back in the United Kingdom, and she wishes to stay in Jersey. She undoubtedly needs specialist therapy, which is not directly available to her at Accommodation F, and is unlikely to be available through Accommodation E. The reality is that there has been little improvement in her presentation during the last four years while she has been in the Minister's care.
27. We were advised by the Minister that there is no realistic prospect that she will move from Accommodation F before her eighteenth birthday and from her perspective we consider that it is better for her to have that confirmation immediately. Accordingly, we have made a Secure Accommodation Order for a period of three months but we have indicated that while there needs to be a further application, the probability is that the order will be extended to expire on her eighteenth birthday.
28. In our view, the Court is faced with no other sensible option, as indeed the Guardian said in her evidence. When he gave evidence before us, Mr Owers told us that YY was one of the five children in the care of the Minister about whom he was most concerned. He agreed that Accommodation F was not designed for children with her particular needs. He accepted that the Children's Social Care Service had been impacted by the pandemic and mental health challenges for young people: and indeed, the number of those challenges had grown exponentially over the last few months. The specialist provision which was necessary for children like YY were considerable because it required expertise, experience and years of training.
29. It is not the Court's job to identify what the solutions are. What we can say in the present case is that nowhere apart from Accommodation F appears to be safe for YY in Jersey. It is unlikely that anything will change much before her majority and the fact that there is no realistic exit plan makes the present position no different from what it was many months ago. It is disappointing that if the Maudsley assessment was commissioned in August 2021, it was for some reason only received in February 2022.
30. A consequence of our order is that, for her peace of mind, special attention needs to be given to explaining the risks to YY which her behaviours have exposed her to, and the desire on the part of all to keep her safe until her adulthood with accompanying explanations of how therapy can help her with her decision taking as she enters adulthood and what will be made available to her. In the circumstances of her care over the last three or four years, that seems to us to be the least the Minister should do.
31. What we think we should also say is that there is an urgent need for an assessment - probably an independent assessment - of whether improvements can be made in the provision of Children's Social Care Services in this area. It may well be that such an assessment should not be made by persons outside the island who do not understand the particular problems which the island faces; although that is not to say that whoever does carry out the assessment would not wish to obtain advice or evidence from outside the island in doing so. We accept that there are many challenges which the Minister faces in making provision for these services - those challenges are not assisted by nationwide shortages of staff with the relevant expertise, and the particular difficulties of scale which the island inevitably faces in terms of recruitment. We do not disregard the possibility that the problems are exacerbated by a lack of housing provision for social workers recruited from outside the island, where other recruited professions might have some assistance to avoid them having to compete in the private rental sector. The situation can only get worse if inflation rates continue as at present. On the other side of the coin, however, our experience from other cases is that the cost of providing care for the numbers of children who come before this Court and end up in the care of the Minister is extremely high as things stand now. That this is so, is an additional reason why an independent assessment might well be thought to be needed.
Authorities
Children (Jersey) Law 2002.
In the matter of YY (Secure Accommodation Order) [2021] JRC 262.
In the matter of Eleanor (Care Proceedings) [2019] JRC 167.
Children (Secure Accommodation) (Jersey) Order 2005