Before : |
J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Pitman and Cornish |
Between |
The Minister for Children and Education |
Applicant |
And |
A (The Mother) |
First Respondent |
And |
B (The Father) |
Second Respondent |
And |
CC (The Child) |
Third Respondent |
IN THE MATTER OF CC (RECOVERY ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002.
Advocate P. F. Byrne for the Applicant.
Advocate C. G. Hillier for the First Respondent.
Advocate D. C. Robinson for the Second Respondent.
Advocate M. Godden for the Third Respondent.
judgment
the COMMISSIONER:
1. On 19th May 2022, the Court granted the Minister a sixth Recovery Order under Article 45(1) of the Children (Jersey) Law 2002 ("the Children Law"). The first Recovery Order was applied for on 28th April 2022 and refused for the reasons set out in the judgment of the Court of 10th May 2022 (In the matter of CC (Recovery Order) [2022] JRC 105).
2. For ease of reading, we reiterate the background as set out in that judgment. A final care order was made in respect of the Third Respondent ("CC") aged 10, on the basis that neither the First Respondent ("the Mother") nor the Second Respondent ("the Father") had the capacity to parent him. He had been living with the Father and the plan was for him to be placed with long term foster parents. The full background and reasons for the making of the care order are contained in the Court's judgment of 20th September 2021 (In the matter of CC (Care proceedings) [2021] JRC 232).
3. That care plan did not materialise, with CC's placements with foster carers breaking down. He was therefore placed by the Minister at Home 1 with his elder brother ("AA"), who is also the subject of a final care order and where he still resides. [Redacted].
4. In July and August 2021, the Father applied to have the care orders discharged, so that CC and AA could live with him. However, expert advice was taken which was not supportive of the Father parenting them, so he was given leave to withdraw his applications on 22nd March 2022 for the reasons more fully set out in the Court's unpublished judgment of 20th April 2022.
5. The catalyst for the application for a Recovery Order is that CC ran away from Home 1 on 15th April 2022 to a private residence and refused to return to Home 1 despite every effort to persuade him to do so. His presence at the place the place he ran away to was detrimental to the welfare of other children there, and his behaviour generally problematic. [Redacted].
6. The chronology in the statement of Q, the team manager in the Children in Care Team, shows that CC has left Home 1 on previous occasions. He is aware and states openly that no member of staff nor the Mother can touch him or make him leave the place where he attends. He is apparently aware that he cannot be moved from there unless the police have a Recovery Order and he thinks that such an order is only valid for one time use. He is also aware that it might be difficult for an Emergency Protection Order to be used to return him to the care of the Minister at Home 1, as he is not seen to be at immediate risk of harm in the other property.
7. The evidence of Q is that CC appears to want to control his environment and dominate when he can. He is becoming more defensive, with a much higher propensity to engage in defiant behaviour, as well as aggressive exchanges with professionals, who he increasingly sees as without power or influence and not worthy of trust or respect. His absconding heightens the risk of this becoming learnt behaviour and is reinforcing his perception that no-one can stop him from doing what he wants to do.
8. Because CC had in fact returned to Home 1 during the course of the hearing on the 28th April 2022, the application for a Recovery Order was refused (see paragraph 24 of the judgment) but the Court envisaged the possibility of further orders being applied for by the Minister ex parte if the circumstances were the same, i.e. CC repeatedly absconding [redacted]. Five Recovery Orders were subsequently granted by the Court to the Minister ex parte on 1st May, 3rd May, 6th May, 13th May and 15th May 2022. In granting the Recovery Order of 15th May ex parte, the Commissioner indicated that if any further application was made, it would need to be heard inter partes.
9. The social worker, was not available to give evidence at the hearing on 19th May 2022, but Q informed the Court of the following:
(i) Whilst the Recovery Orders obtained have resulted in CC's return to Home 1, he usually leaves within 24 hours and eventually returns to the place where he attends. In addition to refusing to attend school he is becoming involved in anti-social behaviour, [redacted]
(ii) CC has become, at times, more emotionally dysregulated and distressed, as well as being linked with a number of incidents that have caused concern, [redacted] Both parents remain unable to care for CC and the staff at Home 1 are unable to force his return there, or his attendance at school.
(iii) Whilst in its judgment of 10th May 2022 the Court had left open the possibility of an extended order to cover repeated running away from the Minister's care to the place where he attends, it was accepted that on a proper reading of the Children Law, the duration of the order cannot be extended beyond the recovery of the child on any single occasion. The Court in making the order, needs to be satisfied that the child concerned is at the address specified. An enduring order would need to be made on the possibility that the child would be at a specified address, which would not be in accordance with this requirement.
(iv) The Minister was unable to identify any other legal mechanism to curtail CC's behaviours in the current circumstances. Bearing in mind his age, it was not felt that a Secure Accommodation Order would be found to be both necessary and proportionate.
10. It may be questioned why the staff at Home 1 do not simply use the measures that an ordinary parent may use to prevent their child leaving their home, but the Minister, as an emanation of the state, is limited in his ability to similarly act, as preventing a child leaving his residential home would likely amount to an unauthorised deprivation of liberty.
11. The case of A local Authority v D and Others [2016] 1 FLR 601, refers at paragraph 19 to the criteria in Storck 43 EHRR 96, paragraphs 74 and 89, which had been referred to in the case of Surrey County Council v P and Others (Equality and Human Rights Commission and Others intervening), Cheshire West and Chester Council v P and Another (Same intervening) [2014] UKSC 19 [2014] AC 896 (Cheshire West). In that latter case, having undertaken a review of decisions of the ECHR, Baroness Hale of Richmond said:
"[37] The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck 43 EHRR 96, paras 74 and 89, confirmed in Stanev, 55 EHRR 696, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state ...
[38] ...the difference between restriction and deprivation of liberty is one of fact and degree in which a number of factors may be relevant. Simply asking whether a person is 'confined' is not enough except in obvious cases. The 'starting point' is always on the 'concrete situation' of the particular person concerned and 'account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question' ... The presence or absence of coercion is also relevant. Thus there is no single touchstone of what constitutes a deprivation of liberty in this or any other context."
12. The English Court in A local Authority v D and Others then went on to consider whether a local authority in the exercise of their statutory parental responsibility could consent to what would otherwise amount to a deprivation of liberty? The court responded with an emphatic no:
"In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would
(1) breach Art 5 of the European Convention which provides 'no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law';
(2) would not afford the 'proper safeguards which will secure the legal justifications for the constraints under which they are made out'; and
(3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests."
13. In the circumstances of that case the English Court did invoke its inherent jurisdiction to authorise a deprivation of liberty, but whilst invoking the inherent jurisdiction of the Court may create an authorisation for the Minister, Advocate Byrne pointed out that there are wider considerations in respect of safely exercising that authority with ordinary residential staff, in a residential setting with other residents that is not designed to minimise injury as, for example, a secure facility would. In any event the only application before the Court was an application for a Recovery Order.
14. CC was once again at the place where he attends and the Court was faced with a binary decision, either to grant the application for a further Recovery Order or to refuse it.
15. The Guardian had attempted to speak to CC, who used to engage with her well, on the day of the hearing. She spoke first with the Mother and arranged to call later to speak to CC. When she did, he refused to speak to her. The Guardian tried speaking to him through the Mother, but he was very rude, so there was no discussion. Through the call she gathered that the Father had arrived [redacted] and the situation in the home then became quite violent and angry, [redacted]. The Mother was becoming distressed so there was no purpose in continuing the call. As the Guardian said, the repeated use of Recovery Orders was not breaking the pattern of CC's behaviour. The situation was becoming more difficult and the impact upon the Mother was not to be under-estimated. It would seem that CC will only engage now if it is likely to achieve what he wishes.
16. The Guardian had not experienced Recovery Orders being granted by the English court in this way (the Guardian practises in England) and in her view, the use of repeated orders was not the true purpose of a Recovery Order. [Redacted]. However, the Guardian supported the making of the Recovery Order even though in her view, the pattern was more likely to continue than not. She recommended that a senior manager should convene a multi-agency meeting for CC [redacted], in order to consider the wider strategy. She described a Secure Accommodation Order as draconian and a last resort. She said that in England, such orders cannot be made for children under 13 without the permission of the Secretary of State.
17. CC has difficulties other ten-year-old children do not have and whilst he most often identifies with older children with whom he mixes, he craves affection and home life. [Redacted].
18. Advocate Hillier, for the Mother, said she just did not know what to do. She supported the making of the Recovery Order. Advocate Robinson, for the Father (who did not attend the hearing) was against the making of repeated orders which he said were futile. In the short time available for the hearing, he took Q through the Missing from Care Policy, which he submitted had not been followed fully, and which, if more closely followed, would, he said, lead to a solution, although he was unable to suggest what that solution might be.
19. Advocate Byrne confirmed that the high-level multi-agency meeting suggested by the Guardian would be convened and he further informed the Court that it was the intention of the Minister to procure a further report from the psychologist, Dr Gillett, who had advised at the time of the care order.
20. Advocate Byrne and the Guardian made the point, however, that for the Court to refuse an order would be to empower CC even more. He would be in control. The concern of the Court was the making of repeated orders which appeared to be having no effect, but in the absence of any other solution, the Court was not prepared to act in a way that empowered CC any further. The Court therefore agreed to the making of a further Recovery Order.
Authorities
In the matter of CC (Recovery Order) [2022] JRC 105.
In the matter of CC (Care proceedings) [2021] JRC 232.
A local Authority v D and Others [2016] 1 FLR 601.
Storck 43 EHRR 96.
Surrey County Council v P and Others (Equality and Human Rights Commission and Others intervening), Cheshire West and Chester Council v P and Another (Same intervening) [2014] UKSC 19 [2014] AC 896.