Jersey Unreported Judgments

Care order - reasons

[2023]JRC066

Royal Court

(Family)

28 April 2023

Before     :

Sir William Bailhache, Commissioner, and Jurats Averty and Le Cornu

 

IN THE MATTER OF DD (CARE ORDER)

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW, 2002

Advocate J. A. E. Kerley for the Minister.

Advocate B. J. Corbett for the First Respondent.

Advocate E. L. Hollywood for the Second Respondent.

Advocate M. R. Godden for the Child (Assisted by Mrs E Fernandes, Guardian)

judgment

the COMMISSIONER:

1.        This is the judgment given on the Minister's application for a Final Care Order in respect of the Child, the application having been made on 31 January.  On 1 February, the decision was handed down confirming that the Court was satisfied that threshold was reached and that it was in the best interests of the Child on the application of the welfare test to make a Final Care Order.  In addition the Court approved the Care Plan.  This judgment contains our reasons.

2.        The opening paragraphs of the Court's judgment dated 18 January 2022 (unpublished) on the application for an Interim Care Order summarised the background to this application:

"1.      The Child is thirteen years of age and has an elder sibling.  They and their parents, the First and Second Respondents, moved to Jersey from Eastern Europe in [redacted].  Until the commencement of Public Law Children Proceedings in December 2021, they all lived in a small flat in St Helier.  [Redacted].

2.        On 13 December 2021, an Emergency Protection Order was granted pursuant to Article 37(1)(a) of the Children (Jersey) Law 2002 (the "Law"), the application for that Emergency Protection Order not being resisted by either parent.  On 6 January 2022 the Court heard an application by the Minister for an Interim Care Order in respect of the Child.  The application was not resisted by either parent and was supported by the Child's guardian.  At the conclusion of the hearing, the Interim Care Order was made and the Minister's Care Plan approved with reasons reserved. This judgment contains those reasons.

3.        It is clear from the chronology prepared by the Children's Service for the ICO hearing that since June 2020, there have increasingly been incidents involving the Child which give rise to concern.  He has been involved in fighting with other children, including his brother, and he has displayed threatening and sexualised behaviour on a number of occasions.  There have been concerns for his emotional responses since arriving in Jersey, and for his behaviour and social development.  His attendance at school has been poor and as of March 2021, he was not registered with any medical practice but other records indicate that he has missed dental appointments and as a result of neglect has had severe tooth decay which ultimately required dental surgery.  The reasons for this behaviour remain to be established.  The chronology indicates that by November 2021 the Child had informed the police that he was scared to go home because he said his Father would hit him.  The Child made a similar allegation to the school authorities.  Matters came to a head on 10 December 2021 when the Child attended school, claiming a number of physical assaults on him by both his great-uncle and his Father.  As a result of those allegations, the Child was examined by medical practitioners who considered that the bruising which he exhibited was consistent with the allegations which he had made that day, and the Child was taken into police protection under Article 41 of the Law.  The application for an Emergency Protection Order was granted the following Monday.  Since being taken into police protection, the Child has been living with foster carers registered with the Minister.  He has been adamant that he does not wish to live with his parents and brother, nor indeed does he wish to see them and we were informed at the ICO hearing that that remained the position."

3.        The Child's placement with foster carers appears to have proceeded well in the first instance.  Indeed the Children's Service case records report that the Child commenced eleven nights staying contact with his parents which, as confirmed by an unannounced home visit on 5 August, seemed to be progressing well.  However, on his return to his foster carers subsequently, the Child began to go missing.  The first occasion being on 19 August.  There were further difficulties with the carers during September, and increased concerns that the Child was involved in criminality.  The final care hearing was due to take place on 7 November, but this was adjourned on the Minister's application in October.

4.        Since then, the Child has been accommodated at a care home operated by the Minister, the Child's relationship with his foster parents having broken down.  That arrangement has not gone well either.  On a number of occasions, the Child has left the care home and turned up at his parent's address in the early hours of the morning.  On the occasions they have reported the matter to the care home, he has not always been collected and the parents have accommodated him overnight.  Indeed the records show that he stayed with his parents for some ten days in January 2023, as a result of which the care home staff would not collect him from Police headquarters on 20 January.  The most recent occurrence the care home was unable to collect the Child was from Police Headquarters at or after midnight on 30 January.  On other occasions, the Child has been walking about the island for most of the night; and on yet other occasions has been involved in apparent acts of criminality.  It is of concern that those responsible for his care seem unable to keep the Child at night in an environment which keeps him safe.

5.        The threshold document indicates that at the relevant date (13 December 2021), the Child was at risk of suffering significant harm because he was beyond parental control; because he has exhibited violent, racist and sexualised behaviour; and because at the relevant date the relationship between the Child and his parents had broken down as he had made unfounded allegations of assault against his Father, refused to return home and refused to have contact with his parents.  These are the grounds which we have found to be established for the purposes of threshold and in that connection it is important to note also that notwithstanding that the Child was beyond parental control at the relevant date, he has also demonstrated himself to be beyond the control of the Minister on a number of occasions since the Interim Care Order was made, particularly in the last four months or so.  It is right to note that his behaviours have escalated during this period and we will return to that question when we consider the Care Plan later in this judgment.

The options

6.        Threshold having been established, we have gone on to consider the welfare test bearing in mind the three options which are available to the Court:

(i)        Make no order;

(ii)       Make a Supervision Order;

(iii)      Make a Care Order.

7.        We could of course also have adjourned the proceedings for further enquiries to be made - and if we had followed this course, it would have been necessary for there to be a clear focus on the advantages to be gained from such an adjournment because of the general rule, embodied in the statute, that delay does not work in the best interests of the child.  In fact we did briefly consider this option; but we are in no doubt, as will be apparent from our consideration of the Care Plan below, that these proceedings have been going on long enough and that the Child needs to have some certainty as to where he is.

8.        We do not consider that making no order is an option.  To follow that course would leave the Child and the parents in an impossible position.  The parents have accepted that he is currently beyond their control, and to make no order would simply be to abandon him.  This would not be right.

9.        For similar reasons, we do not think a Supervision Order could possibly work either.  The effect of a Supervision Order would be to remove parental responsibility from the Minister and leave that with the parents alone.  Obligations would be imposed upon them vis a vis the Minister which, the Child being beyond parental control, they would be unable to meet.  To make a Supervision Order would be to postpone an inevitable application at a later stage to convert it into a Care Order.

The Care Plan

10.      Accordingly we are satisfied that we must make a Care Order in this case.  However, that requires us to apply the welfare test in the context of the Care Plan which the Minister has proposed.  The foster placement having broken down in November 2022, the Child has subsequently been looked after by Children Service staff in holiday let accommodation until he was placed at the care home on 7 December.  That is still his placement in theory, although it appears that he spends a considerable amount of time at his parents' address where, as we have indicated, he turns up often in the early hours of the morning.  The parents have no car and cannot transport him back to the care home and for staff shortage or other reasons, the detail of which is unclear, the care home have not always been able to collect him.  As a result he has spent perhaps as much time in the care of his parents, despite apparently being accommodated at the care home, as in the care home itself. 

11.      The Child's behaviour in the care home is also a significant cause for concern.  The entry in the care home records on 2 January provide a typical summary of his activity.  Those records show that he was still asleep just after midday, but he went into the kitchen to get himself a drink of juice at approximately 5pm.  After a short conversation with one of the care workers, he returned to his room.  At 7pm he was asked if he would like to have dinner, but he declined.  At 8.05pm staff could smell cigarette smoke which appeared to be coming from his room and, although he denied smoking, he was advised that smoking was not allowed in the house not least because smoke detectors would go off if he smoked.  At 9.20pm, he came out of his room and said he was going out.  At 10.30pm he was reported as a missing person as he had not returned, but at 11pm, staff received a text message from him to say he would be back at 11.30pm.  At 11.25pm, he texted again requesting a pick up from a St Helier garage.  At five minutes past midnight, he was back in his room and texted the night staff requesting some food.  He was given something to eat and returned to his room.

12.      The Court has reviewed a number of other notes prepared by the care home during January.  They reveal inconsistent attendance at the care home overnight by the Child, usually because he is at his parents' house.  They reveal that he has been consistently difficult with and disrespectful to staff and that he does not attend school. Indeed he has not attended school since last September.

13.      We have also seen a number of police reports of serious antisocial behaviour late at night.

14.      The next entry for the same day is made at 5.14 a.m.:

"This was a long line of antisocial behaviour from [the Child] this evening, mostly relating to running in and out of hotels and A&E causing a nuisance.  At the time of writing this entry, [the Child] is still out and about, currently sat in Parade Park.

There are concerns that [the Child] is associating with some unsavoury individuals, who all egg each other on."

15.      The next entry is made at 5.19 a.m. the same day:

"[The Child] is currently at [the care home].  Staff were made aware of his location, they stated they could not pick him up as they had only two members of staff.  One was sleeping, one was on probation so not allowed to collect and they had a vulnerable resident at the home so could not leave one staff member alone with them.  Staff expected police to return [the Child] as the police had found him - it was explained that this was not the case and it was their responsibility to collect.  At time of writing he is still out at Parade Park in the company of two other youths."

16.      As will be seen from these various entries, the Court is faced with a fourteen year old boy who suits himself as to where he stays overnight, who leaves the care home where he is supposed to be accommodated, associates with dubious company, sleeps in when it suits him and does not attend school.  It is in that context that we now look at the Minister's Care Plan.

17.      The Minister's recommendation is that the Child remains at the care home under a Care Order with continued work with him, his parents and his older brother to provide support and to enable a future rehabilitation back home.  No timeline for completing that work could be given because it all depends on the Child's progress.  Providing support to the family with appropriate advice with a view to rebuilding relationships between the Child and his family was at the core of the proposal.  The care home which is currently available for the Child accommodates three young people.  The Child has his own allocated bedroom and shares the bathroom, toilet and communal areas with the other residents.  If he does not live there on any permanent basis, it is uncertain how long the managers of the care home will keep the allocated bedroom for the Child, because there are other children in need of accommodation.  Nonetheless, the Minister's proposal is that the current placement in that care home is a long term placement until a rehabilitation back home can be achieved or until the Child lives independently.

18.      The Child has had difficulty with failing to maintain proper oral hygiene, as a result of which dental treatment has become necessary.  The Care Plan envisages that the care home staff will be responsible for his day-to-day healthcare and will support him to access appropriate intervention regarding any ill health or dental treatment that may be required.  The care home residential notes we have seen indicate that, if such treatment is necessary, it will be accepted by the Child only if he feels like it.

19.      The Child has not attended school for many months.  Indeed he has disclosed that he sees no point in attending school and does not intend to do so.  It has now got to the stage when he would be almost certainly embarrassed to attend school because he has missed so much of his education  and friends at school might be likely to look down on him.  As a result he is currently enrolled with an alternative education provision.  The plan is that at the end of February he will have an initial meeting to attend a tour of the school in question, and discuss his timetable.  The proposal is that he should receive fifteen hours of one-to-one support each week.  Should the Child refuse to attend school, it is proposed that there will be visits to the care home or the parents' address in the hope of monitoring the non-school attendance and taking appropriate steps to ensure that the education plan is implemented.  Given the Child's responses so far to questions of education, this proposal is bound to provide its own challenges.

20.      Dr Khan has made a psychiatric assessment of the Child and there is an identified need for ADHD and autism assessments to be undertaken by CAMHS.  So far the Child has refused to engage with CAMHS, although he seems to accept that he could have ADHD and that he does have anger management issues.  Headsight have allocated him a lead therapist who will be working on a one-to-one basis.  The purpose of that therapy is to facilitate an exploration of the issues which he has around excessive gaming, antisocial behaviour and offending.  As far as gaming is concerned, the care home will be leading weekly direct work sessions around gaming and online safety, that work being undertaken alongside the work which Headsight will also be providing.

21.      The Care Plan also envisages an amount of work with the parents.  The relationship between the Child and his parents has improved over January, as is evidenced by the Child wanting to spend more time in the family home than in the residential placement.  However, the parents, although happy to have the Child at home, are still reporting difficulties in implementing and enforcing boundaries.  The Minister proposes that the Child has overnight contact at the family address on Friday and Saturday evenings, while between Sunday evening and Thursday evening, the Child should be supported at the care home.  Part of the thinking underlying this proposal is that it should assist the Child in getting sufficient sleep that he will be able to engage with his education.

The welfare checklist

22.      We now turn to the welfare checklist and start with the Child's wishes.  He expresses inconsistent views about where he wishes to live: his only consistent view seems to be that he does not wish to have any education which he sees as a waste of time.  We are charged to have regard to the ascertainable wishes and feelings of the Child, but in our judgment his wishes are so divorced from his welfare that we do not feel we can do so.  Indeed he has got himself into a position where we are doubtful whether he knows what he really wants, other than not to be where he currently is.

23.      Under the present arrangements, the Child's physical needs are being met, at least when he so permits. His educational needs and emotional needs do not appear to be met.

24.      Although the present arrangements are not satisfactory, no change is proposed.

25.      When aged less than 10, the Child was uprooted from his home and school friends and came with his parents and brother to an island where a different language is spoken.  In many respects he had to start again. It must have been traumatic.  His parents are not entitled to any income support as recently arrived immigrants and they work long hours.  When he first arrived, he may well have been left alone for long periods.  At school, he was bullied, and he spoke no or little English.  In 2020 his behaviour started to deteriorate, with both physical assaults on and sexualised conduct towards his school colleagues.  Towards the end of 2021 his reaction seems to have been to cut off his ties with his family, which can only have increased the trauma, yet none of the experts seem to have been able to persuade him to communicate why he has responded in this way.  He gives the impression of being an intelligent young man.  His spoken English is good.

26.      His parents are unable to meet his needs at the moment and the relationship between the parents and the Child has obviously proved difficult over the last two years.  The risks which this young man is taking clearly point to a lifestyle that could become increasingly dangerous both for himself and for the community as a whole.

Conclusions

27.      When considering the Minister's Care Plan, we are struck by two considerations.  The first is that if we were to get to the point where the Minister could not put together a care plan which we would approve, we would still have to make a care order because the other options are unacceptable.  The second is that there is the well known conundrum that if in the same circumstances you continue to do the same things, you will in all probability get the same results.

28.      We were impressed with the Child's social worker.  He has identified the issues well and obviously brings a dispassionate and caring approach to the task which faces him.  We are also impressed with the efforts the parents have made to engage with the process and with the authorities in relation to their son.  It is not easy for them to do so in a world where they have to work long hours to obtain a proper income and where they have struggled with the language of their chosen new home.

29.      We approve the Care Plan not because we have any great confidence that it will prove successful but because we cannot find an alternative at the moment which makes any sense.

30.      In our judgment, the Child needs support which is a mixture of understanding and, in old fashioned terms, discipline.  In the more modern jargon, he needs boundaries which are enforced.  If these are not provided, then his downhill slide into drug taking, alcohol consumption, street walking, absenteeism from school and minor criminality will more likely than not become an avalanche which it will be hard to contain.  Something needs to be done which will persuade him that for others to help him, as they wish to do, he must learn to communicate his worries and concerns; and to jolt him from his present view that nothing matters         in his life.  Without prejudging any application of this kind, it may take one or more secure accommodation orders to achieve that.  If the court were minded to acquiesce in any such application, it is hoped that the Minister will recognise that although the Law is structured to enable the court to authorise as opposed to order the detention of a child in secure accommodation, the maximum term which the court permits is often intended, in the best interests of the child, to be the minimum term as well.  There are risks in any such approach - not least that if such an order were made, there is a chance that the accommodation currently available at the care home would be lost, and the alternatives at that point might be limited.  These and other possibilities will naturally be considered by the Minister.

No Authorities