Jersey Unreported Judgments

Secure Accommodation Order  -  reasons

[2022]JRC183

Royal Court

(Samedi)

28 July 2022

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF EE (THE CHILD) (SECURE ACCOMMODATION ORDER) ASSISTED BY SUSAN CLARK IN HER CAPACITY AS GUARDIAN

Advocate P. F. Byrne for the Minister

Advocate C. R. G. Davies for the Father

Advocate N. S. H. Benest for the Mother

Advocate M. R. Godden for the Child

judgment

the commissioner:

Introduction

1.        On 31^st March 2022 the Royal Court made a Final Care Order in respect of the Third Respondent ("EE"), [redacted], on the grounds that he was beyond parental control.  All the parties agreed that the threshold under Article 24(2) of the Children (Jersey) Law 2002 ("the Law") was met.  As was set out in the judgment delivered by Commissioner Clyde-Smith in April [unpublished], EE has a history of absconding behaviour and related criminal activity.  Care proceedings were initiated in 2020 and an Interim Care Order made on 29^th  September of that year.  Since then, the absconding and criminal behaviours have continued, and a number of secure accommodation orders have been made enabling the Minister to place EE at Accommodation F.

2.        At the time of the making of the Final Care Order, EE was residing at Accommodation C, a residential home in which two other children had been placed.  The Minister's Care Plan was for him to continue residing there.  As Commissioner Clyde-Smith indicated, and indeed as we heard, efforts had been made to secure an off island specialist residential placement for him but, of the 53 providers approached, no positive responses have been received.

3.        On 3^rd May 2022, this Court, differently constituted, sat to receive a further application by the Minister for a secure accommodation order.  The Court determined that it would proceed in the absence of the First and Second Respondents pursuant to Rule 17 of the Children Rules 2005, and adjourned the hearing of the Minister's application until 16^th May at 10:30 a.m., making an interim order authorising EE to be kept in secure accommodation until that date. 

4.        The parents were not present in Court on 16^th May 2022, when the application was renewed.  We were told that the Father is overwhelmed by the current proceedings and that the Mother had been unable to obtain nursery care for her pre-school fourth child; in any event, she was struggling with what to do for the best.  We resolved that it was in the best interests of EE that we proceed with hearing the application, but we do emphasise that, where possible, it is desirable that parents should attend Court when applications concerning their children are being heard.

5.        On 16^th May 2022 we heard evidence from Detective Sergeant Young of the States of Jersey Police Force, Ms Bianca Walters, a social worker employed by the Children's Service who has been social worker for EE since November 2021 and from the Guardian.  The Minister's application for a secure accommodation order for a period of three months from 3^rd May 2022 was not opposed by either of the parents and was supported by the Guardian.  The application of the Minister was granted and the Court made an order authorising EE to be kept in secure accommodation for a period of three months from 3 May 2022, with reasons reserved.   This judgment contains those reasons.

6.        EE unfortunately suffers from some medical difficulties, the causes of which appear to be attributable to the 29 week gestation pre-term birth and some unpreventable complications such as hypoxia and IVH leading to hydrocephalus.  As a result of these conditions, EE has suffered what appears to be [redacted].  His current cognitive age is said to be half his actual age [redacted], but the view was expressed by the consultant educational and neuro psychologist Mike Davies that it is very unlikely that in adulthood EE will present any differently from the way he does at the moment.  Accordingly, the Minister should set his sights on how EE is to be managed as an adult for the rest of his life, including where he will live, how he will be looked after and what form of sheltered employment he might be provided with; indeed how his leisure time will be managed and planned.  [Redacted:]

"[Redacted]"

7.        The Guardian told us that she had spoken to EE some days before the hearing.  He looked physically well and was chatty, unlike previous occasions she had spoken with him, when he had been monosyllabic.  However it was clear that his general level of understanding as to his management had not increased.  In particular, he thought that he might be at Accommodation F as a result of the criminal activity which he denies being involved in, but otherwise did not understand why he was there.  He has only a rudimentary appreciation of risk.  He is said to be unable to read or write and he has told the Guardian that he is bored of education.  His understanding generally is very superficial and he certainly does not understand what these proceedings are about.  It is clear from speaking to him that he would like to return to Accommodation C, where he was previously living, and not remain at Accommodation F.  He thinks that if he is "good for a month", then he would be allowed to return to Accommodation C and should be alright there.  Despite the fact that these are his expressed wishes to her, the Guardian told us that his patterns of behaviour have remained fairly consistent throughout the care proceedings and she would be concerned if he were not in secure accommodation.  She agreed with the social worker, Ms Walters, that this was necessary to keep him safe.

8.        To some extent this evidence was not entirely consistent with the evidence of the social worker.  She told us that over the last two weeks whilst in secure accommodation at Accommodation F, EE has made real progress.  He has gone to bed at a reasonable time, eaten breakfast and engaged in education between 9:30 a.m. and 3:00 p.m.  In particular he is studying for a B Tech qualification in food, and it is hoped that he might get this qualification in a couple of weeks (by contrast the Guardian said that he did not realise that he was studying for that qualification).  Ms Walters told us that she expected him to stay at Accommodation F for the next three months if the secure accommodation order were granted.  He might get the opportunity of education in the community provided there was a smooth transition to enable this to take place.  EE was manageable during the day; it was a problem, however, containing him safely in the evening. Ultimately the real problem with him is that he lacks the ability to join the consequences of what he does to the decision to do them.  It is apparent not only from the documents and reports we have read but also from the evidence of the Guardian that this assessment of an inability to think consequentially is generally agreed.

9.        It might be thought disappointing that the situation in relation to EE's care has changed so dramatically since the final care order was granted in March.  Nonetheless it is clear that the situation has changed.  The evidence from Detective Sergeant Young showed that EE has been reported missing to the Police 40 times between 11^th February 2022 and 29^th April 2022 - the duration of the periods during which he has been missing varies between 39 minutes at one end of the spectrum to 17 hours and 21 minutes at the other.  During this period there have been a number of criminal investigations into activities for which it is thought that he might be responsible.  The files on many of these investigations have been closed.  There have been no prosecutions, and in some cases it has been difficult obtaining the evidence which might justify a prosecution because the police do not have his finger prints.  It is hard to understand why that should be so, because, on the face of it, the committing of a number of criminal offences by him would justify the taking of finger prints for his future care even if not - which we would not accept - for the particular cases in which he is currently a suspect.

10.      We recognise and entirely accept that prosecution of children is often the wrong course.  The counterpart to that position is that for many months now it appears that EE has been committing criminal offences as a result of which nothing has happened to him.  He could quite legitimately take the view that it does not matter if he commits such offences; equally we have to accept the possibility that he does not even realise he has committed them and therefore there is nothing to be gained from a prosecution in any event.

11.      Article 22(1) of the Law provides as follows:

"(1)     Subject to the following provisions of this Article, a child who is being looked after by the Minister may not be placed, and, if placed, may not be kept, in secure accommodation unless it appears -

(a)        that -

(i)         the child has a history of absconding and is likely to abscond from any other description of accommodation, and

(ii)        if the child absconds, he or she is likely to suffer significant harm; or

(b)        that if the child is kept in any other description of accommodation he or she is likely to injure himself or herself or other persons.[18]

(1A)    A young person within the meaning of the Criminal Justice (Young Offenders) (Jersey) Law 2014, who having been sentenced to youth detention or remanded in custody is required to be detained in secure accommodation shall be treated for the purposes of this Law as a child who is being looked after by the Minister.[19]

(1B)     Where paragraph (1A) applies the conditions in paragraph (1) and the remaining paragraphs of this Article do not apply." 

12.      Although the application for a secure accommodation order was not contested, it is nonetheless our obligation to ensure that the criteria for making such an order are met and that, this being a welfare decision, it is in the best interests of the child that we make it.  In particular, the Court has an obligation under Article 5 of the European Convention on Human Rights to satisfy itself that any restrictions on the liberty of the child are imposed proportionately and in accordance with the Law. 

13.      The particular incident which gave rise to the application for the secure accommodation order took place on 29^th April 2022.  The social worker's statement reveals that EE left Accommodation C at approximately 21:55 hours - although a staff member was following him on foot, they quickly lost sight of him because, as the social worker put it to us, "he is very fast on his feet".  In the early hours of the morning, a woman well known to Children's Social Care reported that EE and her children were at her property.  EE had cut his hand after breaking a window but he refused to allow the woman to take him to hospital.  She bandaged his hand and he then left the property.  It was then alleged that he had stolen a car in St Peter and had driven it around the island with a 10 year old and a 13 year old as passengers, both these children having been reported as missing.  At about 6:00 a.m. the following morning, the 10 year old child had been found in the Trinity area by a member of the public before being returned home by the police.  That child was reported to be distressed and crying at the time he was found.  The 13 year old was located on the Five Mile Road.  The mother of the two children later notified Children's Social Care that the children had told her that they had been in a car driven by EE and that the car was being driven at 100 miles an hour.

14.      When this information was put before the Court on 3^rd May 2022, we made it plain to the Minister that at the resumed hearing we expected to see some more definite evidence than had then been produced.  At that time, no ABE interview with either the 10 or 13 year old had taken place, and although the police had spoken to EE about the incident, he denied that he had been driving the car or indeed had been present.  Because the police were not in possession of his finger prints, no forensic comparison could be made with finger prints found in the car.  There is thus no direct evidence in relation to the alleged incident on 29^th April 2022 which links EE, as a person reported at the time as missing, with the incident which the social worker reported to us. 

15.      We completely understand why the police might take operational decisions not to investigate complaints that offences have been committed, particularly in circumstances where they understand that no prosecution is likely to be brought.  However, the fact remains that in the case of EE, there are apparently at least three matters, distinct from the 29^th/30^th April 2022 allegation, where the police are investigating, or the Law Officers are considering, the question of a charge.  In those circumstances, the important consideration appears to us to be that sufficient information is obtained by the police which will enable an informed prosecution decision to be taken, and, in parallel, will permit the Minister to have a solid factual basis for taking particular steps in relation to a child's care.  Numbers of offences appear to have been committed by EE where it would be perfectly possible and appropriate to take his finger prints.  Had those been taken, proof of his involvement in the incident on 28^th/30^th April 2022 could have been obtained.  We understand that actually taking finger prints from him may raise its own particular difficulties but we do not consider that these will be insuperable.

16.      We have to be satisfied on the balance of probabilities that, as a result of his absconding, EE will be likely to suffer significant harm.  We are satisfied that that is indeed the position, although we do not base our decision on the alleged incident of 29^th/30^th April 2022 where we are not convinced that the evidence reaches the necessary threshold.  There are a number of what we might describe as straws in the wind in relation to EE.  On 26^th April 2022, he was reported missing by Accommodation C staff at approximately 23:45 hours, having left the home at 20:00 hours without saying where he was going.  At one point he was reported to be with a group of other young people and then suspected to have run away from the police on Patier Road coincident to a report of a window being broken at a private property occupied by an 80 year old woman living alone.  The group was then said to have moved into town and commenced a course of serious anti-social behaviour, including throwing a bicycle and rescue buoy into the harbour and then pushing over multiple push bikes as they walked along the street.  It is said that EE remains under investigation for these acts, although Detective Sergeant Young was not able to identify any report in this connection at all.  However, the point to be made from this recital of the extract from the social worker's report is that once again there is no sufficient evidence put before us to justify a conclusion that EE was in fact involved.  He may have been, and the police investigation, if it takes place, may establish that.

17.      In the circumstances, we take the view that the risk of harm is firmly established by an incident on 25^th March 2022.  That evening, EE was found in the driver's seat of a stolen vehicle in a field in St Peter.  A young person aged 12 was found in the immediate vicinity.  It was established by the police that EE had driven the stolen vehicle from St Peter along Victoria Avenue to Gorey Pier, later returning to St Peter via the same route.  According to the 12 year old, who was reported to be in the car with EE, EE had to hold the headlights on full beam when he was driving as he could not work out how to turn the headlights on low beam.  As CCTV footage shows EE driving the vehicle quickly into Gorey Pier against a no entry sign and later, as he drove away from Gorey Pier, showing the car without its headlights turned on, we are satisfied that not only did he not know how to turn the headlights on, but that when he was driving with the lights on, he did so by using the flash headlight facility.  This conclusion in relation to the driving in question that evening satisfies us to the relevant standard that both he and members of the public were close to significant risk of harm, and indeed potentially fatality.

18.      We are also influenced by an incident which took place on 20^th March 2022, when police found EE riding a child's scooter down Beaumont Hill during hours of darkness but without any lights on.  This again showed that he placed himself at significant risk of harm. 

19.      These incidents were known to the Court when it made the final care order on 31^st March.  At that time, there was no application for a secure accommodation order and in the circumstances the Court did not consider the evidence against the test for such an order.  We do not think that inhibits us from doing so now, and indeed from taking the history into account in considering the evidence, lacking as it is, in respect of the more recent incidents. 

20.      We are satisfied from the evidence that we have read and heard that there is a disconnect in EE's mind between what he does and the potential consequences or risks that flow from his actions.  We do not think that he has shown that he has learnt or can learn from the experiences he has previously had.

21.      Advocate Byrne submitted that the Court was entitled to reach a conclusion that EE was at risk of significant harm because he was putting himself at risk of prosecution, or at the very least, putting himself in a position where he was involved in the criminal justice system.  We do not eschew that possibility outright, but we are certainly doubtful about it and we would take some persuading that mere involvement in the criminal justice system was necessarily an indicator of the child being at risk of significant harm.  If that were so, numbers of children would potentially be at risk of being removed from the care of their parents.

22.      On the other hand, Advocate Byrne also submitted that both limbs of Article 22 were met - not only that EE has a history of absconding and, if he absconds, he is likely to suffer significant harm; but also that if EE is kept in any other description of accommodation than secure accommodation, he is likely to injure himself or other persons.  On behalf of the Mother, Advocate Benest expressed some reservations as to the second ground for making a secure accommodation order: however in our judgment, his history of absconding shows that he is likely to abscond unless kept in secure accommodation, and we are satisfied that if he absconds he is likely to suffer significant harm.  In the present case therefore, we take the view that the facts which justify a conclusion under Article 22(1)(a) of the Law also justify a conclusion under Article 22(1)(b).

23.      We accordingly make the secure accommodation order for a period of three months commencing on 3^rd  May 2022.  We conclude this judgment by adding that of course the Minister has the discretion not to enforce the Secure Accommodation Order at any point during its continuance.  We would like to add that we have serious doubts about any removal of EE from secure accommodation during the course of the present order.  Recognising that it is a matter for the Minister, we nonetheless indicate that it seems to us in the light of the special circumstances affecting EE that such a course is unlikely to be in his best interests and/or to be successful.

Authorities

Children (Jersey) Law 2002.

Children Rules 2005.

European Convention on Human Rights.