Jersey Unreported Judgments

Final Care Order.

[2022]JRC207

Royal Court

(Family)

10 October 2022

Before     :

Sir Michael Birt, Commissioner, and Jurats Ramsden and Cornish

 

Advocate P. F. Byrne for the Minister

Advocate N. S. H. Benest for the First Respondent

Advocate C. R. Dutôt for the Second Respondent

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF JJ (THE CHILD) (FINAL CARE ORDER)

judgment

the commissioner:

1.        This is an application by the Minister for a final care order in respect of JJ ("the child"), who is now 9.  Her mother is the First Respondent ("the mother").  Her father has played no part in her life and she has been brought up entirely by the mother. 

Background

2.        There is a considerable history.  The mother herself had a very troubled upbringing and there was concern, even before the child's birth, about the mother's capacity to care for the child because of her own needs. 

3.        The child was made the subject of a Child Protection Plan in November 2018 under the category of neglect.  However, the Minister remained concerned about the child's situation and the mother's ability to promote the child's needs in the areas of health, emotions, education, parental boundaries and security despite the support she was receiving from various agencies. 

4.        In May 2020, the Minister applied for an interim supervision order.  At the hearing on 29^th May 2020, for the reasons set out in the judgment of the Bailiff of that date, the Court was of the view that the Minister needed to share parental responsibility with the mother and accordingly invited the Minister to revisit his care plan. 

5.        The Minister did so and the revised care plan suggested an interim care order with the child to be cared for at home by the mother.  The Court granted an interim care order on 9^th July 2020.  The child remained living with the mother under the auspices of the interim care order until January 2021. 

6.        On 17^th January 2021, the police attended at the mother's home following a disturbance.  The mother was not initially honest as to what had happened, but it transpired that there had been an incident of violence in the presence of the child.  The Minister decided that the child should be removed from the care of the mother and a few days later the child was placed in foster care.  

7.        It was planned to work towards re-unification of the child with the mother and various reports were obtained.  A final hearing had been fixed for early November 2021, but by agreement this was put off until late March 2022 in order to allow for further work to be undertaken. 

8.        In February 2022, the Minister filed the care plan for the final hearing in March.  This envisaged a placement in long-term foster care.  There would be a complete cessation of contact with the mother for 3 months and then only limited supervised contact. 

9.        It is fair to say that, in her report dated 4^th March 2022 prepared for that final hearing, the Guardian - then Laura Cardinal - was critical of this proposal.  Whilst she fully acknowledged the problems of the mother, she felt that many of the criticisms of the mother in the social worker's report prepared for the hearing were either unfair or incorrect.  She felt that there was still a reasonable prospect of re-unification. 

10.      In the light of the Guardian's concerns, the Minister agreed to a further adjournment to allow further time for work to be undertaken. 

11.      The child had moved from the previous foster carers to the present foster carers at Easter 2022.  All the reports suggest that the placement with the present foster carers is working very well and that there is a good relationship between the foster mother and the mother.  As from 5^th May 2022, the child has been having overnight contact with the mother for 3 nights a week.  Although the contact with the mother is unsupervised, the Children's Service make frequent unannounced visits and no material concerns have been identified during such visits. 

12.      Despite this, on 10^th August 2022, the Children's Service said that, at the final hearing which had now been fixed for 28^th September, the Minister would once again be seeking a placement in permanent foster care with a break in contact to allow the child to settle. 

13.      The Guardian - by now Eleanor Green as Laura Cardinal was on parental leave - again disagreed and once again the Children's Service changed its mind and reverted to maintaining the status quo. 

14.      The proposal of the Minister which is now before the Court is reflected in the Care Plan filed on 19^th August as amended by an Amended Care Plan filed the day before the hearing in order to reflect concerns which the Guardian had expressed as to the lack of clarity on the therapies and other work to be undertaken in relation to the child and the mother. 

15.      The Amended Care Plan proposes that a final care order will be made, but that the situation on the ground will remain unaltered, namely that the child will reside with the current foster carers for 4 nights a week and the mother for 3 nights a week; in effect a form of shared care. 

16.      The Amended Care Plan also proposes certain work to be undertaken.  This includes the following:

(i)        The Guardian has raised a concern as to whether the child is suffering from a neuro-developmental disorder.  The Minister has arranged for CAMHS to see if it considers that an assessment should be undertaken.  The Minister has been told that, even if CAMHS agrees to an assessment following a preliminary review, the assessment could probably not take place with CAMHS for 9 months.  The Minister has made it clear that if an assessment cannot be undertaken by 31^st December 2022, she will procure a private assessment.  

(ii)       The Minister will commission Headsight to complete dyadic therapy to strengthen the alliance between the mother and the child.  It is acknowledged that some progress has already been made but more work is needed to help the mother to engage in positive parenting work.  Although there is a suggestion in the Amended Care Plan that such work should wait until the outcome of the neuro-developmental disorder assessment, Ms Claire Stanley of Headsight, who gave evidence, thought that her work could be provided without waiting for the assessment. 

(iii)      The Minister will also refer the mother and the foster carer to the New Forest Parenting Course which is intended to assist with caring for a child with a development disorder.  The Minister agrees that this would be an appropriate intervention for the benefit of the child even without the assessment.  

The hearing

17.      At the hearing, as well as numerous reports and written statements (including from the mother), we heard oral evidence from Ms Stanley, from the social worker, Ms Joslin Madzvamuse, who has been the child's allocated social worker since 20 July 2022, and from Eleanor Green, the Guardian. 

18.      The Guardian supported the Minister's application.  The mother supported continuation of the current shared care arrangements with the child staying overnight with the mother 3 times a week, but she submitted that there should be a supervision order rather than a care order.  The mother is somewhat suspicious of the Children's Service because they have on more than one occasion planned to place the child in long-term foster care with very little ongoing contact with the mother and she also feels that some of their criticisms of her previous conduct have been unfair or inaccurate; and in this respect, she has some support from the Guardian, particularly as set out in the report dated 4 March 2022 from the previous Guardian Laura Cardinal.

Threshold

19.      The first matter we must consider is whether the threshold requirement set out in Article 24(2) of the Children (Jersey) Law 2002 ("the Law") is satisfied, as the Court cannot make either a care order or a supervision order unless satisfied that the threshold is met. 

20.      Article 24(2) is in the following terms:

"(2)     The court may only make a care order or supervision order if it is satisfied:

(a)       that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)       that the harm, or likelihood of harm, is attributable to:

(i)         the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child, or

(ii)        the child's being beyond parental control."

21.      The Minister has filed a threshold statement setting out the matters which he relies upon in order to show that the threshold in Article 24(2) is met.  Essentially, it is said that the child has suffered and is likely to suffer significant physical and emotional harm as a result of the parenting provided to her because of a long-standing pattern of neglectful parenting whereby the mother has failed to consistently meet the child's physical, emotional and health needs, which failures have had a cumulative effect of causing negative outcomes across the continuum of the child's development. 

22.      We do not think it necessary to set out the details of the threshold statement.  The mother and the Guardian both agree that the threshold set out in Article 24(2) is met in this case.  We have considered the evidence for ourselves and agree that this is so. 

Welfare

23.      Accordingly, we must go on to consider the child's welfare and determine whether an order should be made and if so, what type of order.  The Court's approach to this stage is well-established, namely that it must apply the principle that the child's welfare is paramount, apply the statutory welfare checklist set out in Article 2(3) of the Law, consider the no order principle, consider contact and scrutinise the Care Plan.  It must also have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

24.      We are satisfied that to make no order would not be in the child's best interest.  The position is still too uncertain and there must be a real risk of the improvement in the child's wellbeing which has been shown since she has been in foster care, being undone if there is no order at all. 

25.      The issue therefore is whether we should make a care order as the Minister, supported by the Guardian, proposes or a supervision order as the mother submits.  In this respect we bear in mind that if the balance between a care order and a supervision order is equal, the Court should make the least intrusive order, namely a supervision order.

26.      We have been referred to some of the cases which discuss the difference between a supervision order and a care order.  These include in particular Re S (J) (A Minor) (Care-Supervision Order) [1993] 2 FLR 919, and Re O [2011] JRC 226. 

27.      The key difference for present purposes is that under a care order, the Minister has parental responsibility jointly with the mother whereas, under a supervision order, the mother would be the only person with parental responsibility. 

28.      On behalf of the mother, Advocate Benest submitted that it is not necessary for the Minister to have parental responsibility.  Her submissions included the following points:

(i)        The mother was wholly supportive of the arrangements in the Amended Care Plan, namely the shared care between the foster carers for 4 nights a week and the mother for 3 nights a week.  There was no risk of her exercising her parental responsibility so as to terminate or prejudice these arrangements e.g., by removing the child from foster care.  There was no suggestion that she had at any stage done anything to undermine the current arrangements.

(ii)       It was argued on behalf of the Minister that the Minister needed parental responsibility because it was too early to say how things would turn out following the various therapies and work which was suggested as part of the Amended Care Plan.  However, under a supervision order, the Minister was under a duty to visit and accordingly would become aware if anything was going amiss.  At that stage, if the child's interest required it, the Minister could apply for a new interim care order ("ICO") or an emergency protection order ("EPO").

(iii)      The mother was willing to provide undertakings, as contained in the draft supervision order handed up by Advocate Benest during the hearing.  These would emphasise the commitment of the mother to the shared care arrangements and to supporting the further work as proposed in the Amended Care Plan. 

(iv)      Contrary to some of the unfair comments in earlier reports by different social workers, the mother had been cooperative, although it was accepted that, as a result of her own challenges, she had missed some appointments.

(v)       There was no evidence of any concerns about the level of care provided by the mother during the 3 nights a week that the child resided with her.  There were frequent unannounced visits by the Children's Service which would have identified any concerns had they been present.

(vi)      One of the respects in which the Minister said that the mother had not been fully cooperative was in relation to PETH tests, intended to ascertain whether she had been consuming alcohol at an excessive level.  Although there had been difficulties in respect of her taking these tests, she had taken a number and, apart from one occasion back in September 2020 (for which there was a specific explanation), these had shown no evidence of anything other than normal social use of alcohol.  The importance which the Minister attached to the mother's lack of full engagement with the PETH tests was unwarranted, as there was simply no evidence to suggest that any consumption of alcohol by the mother was to an excessive or undesirable degree.  

(vii)     As to the consistency of the care given by the mother to the child, it was accepted that on occasions she had become overwhelmed and had withdrawn as a result.  However, with the help and support of the foster carers and the assistance of the Minister under a supervision order, those concerns could be addressed satisfactorily.  This was shown by the fact that the Minister had not in fact had to exercise parental responsibility so as to overcome any difficulties caused by the mother.  The child had flourished since the shared care arrangements and the mother was very supportive of the continuation of those arrangements.  It would be disproportionate for there to be a care order when a supervision order would be sufficient. 

29.      The Guardian agreed that the mother and the child had made good progress and she also agreed with some of the mother's criticisms of the Minister's actions (or inaction) over the period since the ICO had been made.  She considered that the choice between a supervision order and a care order was fairly finely balanced. 

30.      However, in both her report and in her oral evidence, she recommended that a care order be made rather than a supervision order.  Although the mother had made real progress and things had gone well since the shared care arrangement was put in place on 5^th May 2022, it was still comparatively early days.  There was still much work to be done and there was a real risk that the mother could at any stage become overwhelmed and simply withdraw, which was her method of dealing with being overwhelmed.  This would be very harmful for the child.  It was necessary for the Minister to have parental responsibility so that she could step in should this happen.  The Guardian would have concerns if the mother was the only person with parental responsibility.

31.      We have carefully considered the mother's submissions.  But we agree with the Minister and the Guardian that the child's best interests would be served by making a care order rather than a supervision order.  We would summarise our reasons as follows:

(i)        The current arrangements are working well and all parties agree that they should continue.  As it was put during the hearing, the status quo should be maintained.

(ii)       These arrangements were put in place and have been operating at a time when the Minister has had parental responsibility by reason of the ICO.  Thus the status quo involves the Minister having parental responsibility. 

(iii)      We have no doubt that the continuation of the current arrangement is in the child's best interests.  As the social worker said in her report of 19^th August:

"4.1 Research shows that children who do not have consistent emotional warmth tend to have low self esteem, they feel more alienated, hostile, aggressive and anti-social.  Most of these traits have been observed in how [the child] relates to her peers and she has the need to belong which makes her vulnerable.  It is positive that [the child's] school has reported that they have realised(sic) a reduction of these negative behaviours since [the child] came into care.  This shows that [the child] is being afforded consistent care that is emotionally warm, predictable and clear guidance and boundaries; hence she is beginning to learn to self-regulate.  [The child] is being listened to and her carers are predictable, warm and kind which makes her feel safe and secure."

It is clear from all the evidence that the child is benefitting greatly from the warmth, security and boundary setting which the foster carers are providing.  Her school reports positively on the improvement of her behaviour.

(iv)      We accept the genuineness of the mother's statement that she does not wish to disturb the current arrangements.  However, if she has sole parental responsibility, there will be nothing in law to prevent her from unilaterally removing the child from foster care.  If that were to occur, we have no doubt that it would be extremely damaging for the child. 

(v)       There is clear evidence that at times the mother becomes overwhelmed and her remedy in these circumstances is to withdraw.  Although she has made progress, as the Guardian says, there remains a significant risk that she could become overwhelmed in the future.  We share the concern of the Guardian that in these circumstances it would be important for the Minister to have parental responsibility so as to step in as necessary.

(vi)      We do not regard the alternative, in these circumstances, of the Minister seeking a new ICO or an EPO as a satisfactory alternative.  Such a course would require fresh court proceedings with all the stress and strain that this would bring both to the child and to the mother; far better for the interests of the child if the Minister has parental responsibility and can take any necessary steps with the minimum of stress and disturbance. 

(vii)     There is still much work to be done.  It is important for the child that this work takes place.  In our judgment, the best prospects of the necessary work being successfully undertaken are if the Minister has parental responsibility so that she can direct what action has to be taken.

(viii)    If all goes well, it will be open to the mother and/or the Minister to apply for the care order to be discharged. 

(ix)      For so long as it remains in the child's best interests - and it certainly appears to be so at present - the objective should be to aim for re-unification.  In our judgment, the best hope of getting to a stage where re-unification can be achieved is for all the necessary work to be done and for the Minister to retain parental responsibility in the meantime, so that she can step in at any stage and maintain progress so as to maximise the chances of re-unification.

32.      We have reminded ourselves of the need to make the least intrusive order consistent with the child's best interests.  However, for the reasons we have given, we are of the opinion that a care order is the order which needs to be made in the best interests of the child. 

Postscript

33.      We have decided in favour of a care order because we consider that the Minister needs to have parental responsibility.  In reaching this conclusion, we have not ignored the fact that the Children's Service's performance in relation to the child has not been entirely satisfactory.  To list a few of the issues upon which the mother and/or the Guardian have made justifiable criticisms:

(i)        There have been too many changes of social worker for the child.  We appreciate the difficulties facing the Children's Service in this respect but the consequences for children in care and the parents of such children are extremely unfortunate.  Just as they are beginning to get to know and trust a social worker, he or she disappears and everyone has to start all over again.

(ii)       Even when a social worker has been allocated in this case for a longer period, the social worker has not always been available to the child and the mother.  Thus, according to Advocate Benest, although the previous social worker Mr Dokwani was allocated for 21 months, he spent a total of 8 months of that period outside Jersey, so that he was not available in person to the child and the mother.

(iii)      The Children's Service has been slow to pursue the meeting with CAMHS.  In a judgment dated 13^th December 2021, the Bailiff noted that, although the first meeting of the child with CAMHS had been unsuccessful because the child had become too traumatised to continue, no replacement meeting had been arranged.  The Bailiff strongly urged that the necessary arrangements for such a meeting be put in place.  Yet, it appears from the evidence before us that nothing had been done in this regard until the appointment of Ms Madzvamuse as the allocated social worker in July 2022, at which point things moved forward. 

(iv)      The Children's Service has flip-flopped on more than one occasion as to the direction of travel in this case.  As stated earlier, shortly before the planning final hearing in March 2022, the Children's Service stated that the Minister would be applying for the child to be placed in permanent foster care with a reduction in contact with the mother.  It was only following the intervention of the Guardian in her strongly worded report of 4^th March 2022 that this approach was reversed. 

(v)       Despite this, in August 2022, the same thing happened.  The Children's Service indicated that it would be pressing at the final hearing for a permanent foster placement with a consequent reduction in contact.  Again, this decision was swiftly reversed following the intervention of the Guardian. 

(vi)      These actions call into question the rigour of the decision making process of the Children's Service in the first place, and the initial decisions undoubtedly caused great distress to the child and to the mother.  It is hard to see the grounds upon which the Children's Service reached the decision to abandon re-unification, particularly in August 2022, at which time the shared care arrangement had been in place from the beginning of May and appeared to be working very well.

34.      Be that as it may, we were comforted by the evidence of Ms Madzvamuse that re-unification remains the clear objective provided that the mother undertakes the planned work and it is in the child's best interests.  We urge the Children's Service to be proactive in taking forward all the various work set out in the Amended Care Plan and to show an appropriate degree of tolerance to the mother if at times she fails to turn up for appointments.

35.      In this latter respect, we commend the mother for the progress which she has made, but we urge her to continue that progress by undertaking the various work set out in the Amended Care Plan and turning up for the necessary appointments.  That way lies the best hope of her showing that it would be in the child's best interests for re-unification to take place. 

Authorities

Children (Jersey) Law 2002.

Re S (J) (A Minor) (Care-Supervision Order) [1993] 2 FLR 919.

Re O [2011] JRC 226.