Before : |
Sir William Bailhache, and Jurats Christensen and Dulake |
Between |
Minister for Children and Education |
Applicant |
And |
A (the Mother) |
First Respondent |
And |
B (the Father) |
Second Respondent |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF QQ (INTERIM CARE ORDER) (ASSISTED BY D IN HER CAPACITY AS GUARDIAN)
Advocate H. J. Heath for the Minister
Advocate B. J. Corbett for the First Respondent
Advocate A. E. Binnie for the Second Respondent
judgment
the COMMISSIONER:
1. The Court sat on 21 April to receive an application by the Minister for an Interim Care Order in respect of a baby, ("QQ") (the "Child"). The Court heard from the social worker, ("E"), the Mother's social worker, ("F"), and from the Father. The Guardian did not give evidence but she did put some questions to the witnesses and she made some submissions or observations at the end of the hearing. We gave leave to the Mother not to attend under Rule 17 of the Children Rules as she was still in the Maternity Unit at the hospital caring for the Child. We had the advantage of a good deal of paperwork which we considered. At the end of the hearing, we indicated we did not consider that threshold was passed and, accordingly, we had no jurisdiction to make any Interim Care Order. Our reasons for that conclusion were reserved. This judgment contains those reasons.
2. The Minister contended that the Child was likely to suffer significant harm and neglect as a result of the inability of the parents to provide suitable care for the Child on the following basis:
(a) The Mother, [redacted], is subject to a Child In Need plan, and has a history of safeguarding concerns, having been on the Child Protection Register under the category of sexual harm and neglect between 2008 and 2022, with reports of a history of child sex exploitation with former partners of the maternal grandmother. This is said to indicate the Mother's limited awareness and emotional vulnerability.
(b) A former senior youth worker at Support Centre A has described the Mother as "socially naïve and eager to please, to her own detriment", lacking life skills and presenting as emotionally and socially younger than her age with little emotional resilience.
(c) A police report on 12 July 2022 showed the Ambulance Service had been called to attend the Father's house and had found him heavily intoxicated. He was unable to look after and monitor the Mother safely in his own home. The ambulance staff had reported that the property was unkempt with an unclean kitchen, used cigarettes and empty alcohol bottles left lying around the premises, and numerous fire hazards were identified. Housing Provider A had described that property as very dirty and unkempt.
(d) The Father suffers from depression and anxiety. In 2022, he had presented at the Emergency Medical Services with suicidal ideation after an argument with the Mother.
(e) Children's Service staff had observed the Father to present as hostile, aggressive and challenging. He had sometimes not allowed staff entry to the house he was living in. He was not in any employment and had demonstrated an inability to maintain a job.
(f) The parents did not accept the Minister's concerns and had not engaged with programmes such as Baby Steps and Maternal Early Childhood Sustained Home Visiting, or the Family Group conference process. Their engagement with the pre-birth assessment was described as superficial.
(g) The parents had no significant support work which would assist them in their care of the Child. Indeed, the Mother had a strained relationship with her family and had recently blocked them on social media platforms to stop any contact, largely because her family did not support her relationship with the Father.
3. In approaching the question of threshold, we are of course guided by the decision of the Court of Appeal in The Matter of F and G (No 2) [2010] JCA 051, and governed by the terms of Article 24 of the Children (Jersey) Law 2002 ("the 2002 Law").
4. The material parts of Article 24 are as follows:
"(2) The Court may only make a Care Order or Supervision Order if it is satisfied:
that the child concerned is suffering or is likely to suffer significant harm; and that the harm, or likelihood of harm, is attributable to:
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 the child being beyond parental control.
.....
(6) In this Article
'harm' means ill treatment or the impairment of health or development;
'development' means physical, intellectual, emotional, social or behavioural development;
'health' means physical or mental health; and
'ill treatment' includes sexual abuse and forms of ill treatment which are not physical.
(7) Where the question of whether harm suffered by a child is significant turns on the child's health or development, his or her health or development shall be compared with that which could be expected of a similar child."
5. In Re F & G (no 2), Beloff JA summarised the principles in this way:
"6. It is well established that:-
(i) satisfaction of the threshold conditions in Article 24(2) is a necessary but not a sufficient basis for the making of a Care Order (Re M (A Minor) Care Holder: Threshold Conditions [1994] 2 FLR 577 at 583).
(ii) the threshold conditions have to be satisfied at the date of the application, but the Court is not precluded from taking account of all relevant circumstances which exist at the date of the hearing (ditto).
(iii) the two elements of the threshold conditions are alternative ("is suffering" as contrasted with "is likely to suffer"). (Given that it is the future with which a Court must be concerned, it may seem odd that the first element is in the legislation at all, other than as a reminder of the need to bear the past and present in mind when considering the future: but it is there, and both the Royal Court and we must take it into account).
(iv) The first aspect requires proof of [past harm] on the balance of probabilities....
(v) The second aspect requires an assessment of a real possibility of future harm.... "a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case"...
(vi) For the purposes of assessing the risk of future harm, the Court may only have regard to proved facts as distinct from unproven allegations....
(vii) Ill treatment is not confined to physical ill treatment...
(ix) The harm contributed by either form of ill treatment has to be "significant". Harm which does not satisfy this criterion cannot meet the threshold. To put it another way the law tolerates natural parents causing harm to their children as long as it is not significant. In Humberside County Council v B [1993] 1 FLR 257, Beath J said this:
"Significant harm was defined by Miss Black, in accordance with dictionary definitions, first as being harm that the Court should consider was either considerable or noteworthy or important. Then she expressed it as harm which the Court should take into account in considering a child's future. I think that is a very apt and helpful submission."
.....
(x) The range of facts which may properly be taken into account in determining whether the threshold conditions are met is infinite....
(7) If the threshold criteria are not satisfied, the Court will make no order. If they are satisfied, the Court must then consider whether such an order should be made.
(8) For this purpose it is well established that:
(i) the child's welfare is the paramount consideration (Article 2(1) of the 2002 Law);
(ii) any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of the child (Article 2(2)) (ditto);
(iii) the Court must have regard to the seven matters ("the welfare checklist") set out in Article 2(3) (ditto);
(iv) the Court must not make an order unless it considers that doing so would be better for the child than making no order (Article 2(5) (ditto);
(v) before making a care order the Court must scrutinise the care plan by the Minister for the child. Before making a care order the Court must scrutinise the proposals for contact in the care plan and invite the parties to comment on them (Article 27(11)) (ditto)."
6. In the same case of Re F and G No 2, the Court of Appeal endorsed the following passage in the judgment of Hedley J in Re (L) Care Threshold Criteria [2007] 1 FLR 2050 at [50]-[51]:
"50. What about the Court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it is intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the United Kingdom, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re: KD (A Minor Ward) (Termination of Access) [1988] 1 AC 806 at page 812 said this:
"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature."
There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.
51. That is not, however, to say that the state has no role, as the Children Act 1989 fully demonstrates. Nevertheless, that Act, wide ranging through the Court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in part III of the Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a Court is satisfied that the significant harm criteria in Section 31(2) is made out. Such an approach is clearly consistent with Article 8 of the European Convention on Human Rights. Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the state may lawfully infringe that right. In my judgment Article 8(2) and Section 31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to attempt an all-embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it."
7. Finally, for the purposes of making an Interim Care Order, we note that under Article 30 of the 2002 Law, the jurisdiction to make such an order (or an Interim Supervision Order) arises where there is an application for a Care Order which is adjourned, provided that the Court is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in Article 24(2). Accordingly, the Court does not have to be satisfied that the child is suffering or is likely to suffer significant harm, attributable to the care or lack of it likely to be given to the child by the parent falling short of what it would be reasonable to expect a parent to give the child; but only whether there are reasonable grounds for thinking this might be so.
8. We have applied these principles.
9. We do not seek to repeat all the evidence that was before us, particularly so because, as Advocate Heath contended on behalf of the Minister, our focus should be on the events of the last couple of years at the outside. What has taken place before that time might or might not be relevant to an assessment of what has taken place in the last two years, but is otherwise not directly to be taken into account. It follows that the concerns raised by Minister, in reliance on a Child Protection Notification from the States of Jersey Police in October 2020 in relation to the Mother, are to be disregarded as grounds in themselves for concluding that threshold is passed.
10. The threshold document relies upon a police report of 12 July 2022, but this document does not support the Minister's case as it does not describe the Father as heavily intoxicated when the Ambulance Service came to the Father's home. It was instead a 16 year old girl (not the Mother). It does say that the Father, unable to look after and monitor that visitor. The Ambulance Service staff had reported the property was extremely unkempt, and Housing Provider A have provided a chronology of instances where they have received reports of antisocial behaviour from the Father. By contrast with the concerns expressed in the threshold document, the social worker told us that the parents had arranged proper housing for themselves and for the Child with effect from 1 March 2023. This they had sourced privately. The social worker had not been able to visit it, but no concerns had been raised with him. His colleagues had visited the property more than three times in April, and it has been entirely adequate on each occasion. The social worker said that there remained a concern that possibly the property might not be maintained in that state in the future. It is a small flat, and because of its size it will need to be kept very clean. He thought that, based on previous experience, there probably would be a problem in future. There were no concerns currently over the Father's use of alcohol, and that part of the threshold document was therefore not relied upon.
11. The Minister's threshold document placed emphasis on the Mother being socially naïve and lacking life skills. The social worker told us that the parents would have to make important decisions for the Child, and the Mother was immature. He had met the Mother several times. She was very pleasant to work with, but she had significant learning difficulties, and that comes across in one's dealings with her. He gave as an example of his concern that if she were asked a question, she would wait for the Father to express a view and would then agree with it. Although there had been a change on the morning of the Court hearing, until that time she had not wanted any discussion with her mother and had called the Father's family her family. The social worker told us that the Mother might not challenge another person's view - he gave as an example of that her reaction to signing the Contract of Expectations, where she had waited for the Father's approval before she agreed to do so.
12. He regarded the Father as sometimes dysregulated and forceful, and in those moments the Mother would not have the capacity to stand up to him.
13. Turning to the Father, the social worker thought it to be a concern that his relationship with the maternal grandmother was non-existent. The Father also has a personal adviser to help him on the transition from care to adult life. Although the Father is believed to engage with that personal adviser, he nonetheless sometimes struggles and is inconsistent in that respect. In the social worker's view, he worried about the Father's tokenistic engagement with mental health professionals. He misses appointments and has self-harmed. If he cannot meet his own needs, he would be unable to meet the needs of a vulnerable child. Because he was not in employment and reliant upon income support, there remained a risk that the Child's material needs would not be met.
14. Finally, the social worker expressed concern that the family relationships were dysfunctional, and although the maternal grandmother has been consistent in saying she wanted to help her daughter, the paternal grandmother is herself given extensive support by Children's Services in relation to another child at the moment.
15. In cross-examination, the social worker told us that the Children's Service were, in effect, taking a predictive stance based on their experience of past behaviour. To the extent that there were suggestions of potentially controlling behaviour or domestic abuse on the part of the Father, he said, when questioned as to why there was no detail in the paperwork about this, that not all domestic abuse is reported to the police. The Children's Service was aware, from family members, of some incidents that have happened, but the family members in question wished to remain anonymous and the police could not take the matter any further because the Mother had not wanted to make any complaint. In our view, that is too nebulous a basis to be treated as reasonable grounds for thinking that domestic abuse was taking place, or would be likely to take place in the future.
16. The social worker accepted that there was no evidence from the hospital that the parents were unable to care for the Child. He was aware that despite the fact that the Mother had indicated she did not wish to have contact with the maternal grandmother, the latter had nonetheless visited the hospital and the fact that on the morning of the hearing it became apparent that the maternal grandmother was willing to have the Mother and her Child live with her, did indicate that there had been some sort of rapprochement between them. He was aware that the Mother had been in regular touch with her own maternal grandmother.
17. The social worker agreed that the Father presented well at the hospital the preceding evening and that there had been no incidents with regard to the Father's mental health in the last three or four months. He agreed that the parents had not refused help from a family support worker, and that the provision of such assistance by the Minister had in fact not even been discussed with them. He agreed that domestic violence was not in fact an issue, although there may be some coercive control exercised by the Father over the Mother. He agreed there was no current concern about the property in which the parents were living, or about the parents allowing visitors to inspect its condition. He agreed that there were no complaints from the neighbours in their present property, and he accepted that two or three weeks before the hearing he had received an email confirming that the parents were willing to engage with Brighter Futures and with Baby Steps.
18. In the light of those points which had arisen in cross-examination, it became apparent that the Minister's position was that the Father and the Mother needed to evidence to the Children's Service that they will make good parents. We will return to the remaining evidence momentarily, but we pause there to say that that was the wrong test for the Minister to apply on threshold. It is not for the parents to establish by evidence that they will make good parents. It is for the Minister to establish that there are reasonable grounds to suggest that their lack of care will lead to a risk of the Child suffering significant harm.
19. The Court asked the social worker for the birth weight of the Child. He was not aware of it, but we were informed that the birth weight was 8 lbs 8 ounces, which would certainly suggest that the Mother had been looking after herself appropriately during pregnancy.
20. We heard from the Mother's social worker, F, who has been involved with assisting her only since February this year. F advised us that the Mother had wanted nothing to do with the maternal grandmother, and she thought that the relationship between the Mother and the maternal grandmother had been lost because of the relationship between the Mother and the Father. F was surprised to hear that the Mother would go home to the maternal grandmother, although the Mother had texted her to tell her this the day before. In F's opinion, the Mother was indeed vulnerable, but she had been able to speak to her on her own. If the Father is present, he does most of the talking, but she was nonetheless clear that the Mother does have a view and was prepared to express it.
21. Although he did not have to do so, the Father gave evidence. He said that he and the Mother had a very good relationship and if they did not agree with each other, they voiced it, albeit they did not disagree that often. However, he said that he would not have arguments in the presence of his daughter, the Child. He will not shout at the Mother and has never raised a hand to her. He agreed that he did sometimes talk for her because she does not know how to put her emotions into words - no one has taught her how to do this.
22. The Father confirmed that he had spoken to the maternal grandmother a few times and confirmed to her that he was not going to stop seeing her daughter or her grandchild. According to him, she has said that she wanted to put it behind them. He said that he has learnt how to talk about his differences.
23. He did not deny that being young parents was likely to be difficult. He was willing to attend Baby Steps with the Mother, but he had been told that there were no groups available at the moment. As far as Brighter Futures was concerned, these were all mother and baby groups, but he agreed that he and the Mother would certainly take all appointments if it meant keeping their daughter.
24. He confirmed he was willing to work with a family support worker or, indeed, anyone else. He wanted his daughter to be part of his life. He wanted her to have everything he never had - to have the best, nursery, college, university. He told us that she had changed his life. He had not previously thought that he was father material, but now he had found out that he was.
25. We consider that the first reaction of most people would be to have real concerns about the future for these two young parents and their Child. The Father is aged twenty and has had a not entirely settled upbringing in care. He is unemployed and there is no immediate sign of that changing. There has been one occasion - and who knows maybe more - where his home has been found to be full of empty alcohol bottles. In previous experiences in accommodation provided by Housing Provider A, he has had difficulties with his neighbours. The Mother is herself a child in need, [redacted], with an uncertain relationship with her own mother. She is considered to be immature and vulnerable and has her own significant learning difficulties. A relationship between the two of them of twelve to fifteen months will possibly be viewed by some as unlikely to last, having regard to their difficulties and their ages. If it does not last, the Child will join that host of children who are the product of broken relationships, and may or may not end up in a single parent family.
26. However, in our judgment, the law requires more than this for this Court to conclude that, as a result of the care or lack of care given to her by her parents, this Child will be likely to suffer significant harm. It is clear that she has not suffered any harm at the moment. She had a healthy birth weight. There is no evidence of drug taking on the part of either parent; no evidence of physical violence to the Child or to the Mother; no evidence of any alcohol issues at all with the Mother; no evidence that the present home is inadequate for the Child's needs. There is evidence that the parents have shown both a willingness and an ability, while the Mother and her Child were in hospital, to cope with their parenting obligations.
27. If it should turn out that the relationship between the Mother and the Father falls down, and possibly even if it does not do so, then at present there are only reasonable grounds for thinking that the Child will fall into the category of those children envisaged by Hedley J in the extract set out above - that is to say, not as fortunate as other children, but possibly more fortunate than some. There is no evidence from which we can infer the possibility of future significant harm.
28. It follows that even though we conclude that there are reasonable grounds for thinking there might be difficulties ahead, there are no reasonable grounds in our judgment for thinking that the Child will likely suffer significant harm as a result of the care given to her by her parents. We were impressed with the evidence given by the Father. He has had his problems, and is very young, but in terms of the evidence he gave, he sounded well adjusted and sensible. It is not the case that children are subject to care orders simply because they have young parents. It is not the case that children are subject to care orders because their parents have themselves been in care. The fact that statistically children of very young parents, and / or children of parents who have been in care, may form a high proportion of those children who are taken into care, if it does, is not a basis for taking such children into care. One would need to know the statistics of how many children of very young parents or of parents who have been in care are never taken into care themselves in order to make any assessment of the validity of such a statement; but we suspect that the Minister's position is that because, of those children in care, a high proportion may have come from the families of those who were in care themselves, or who were young at the time they became parents, significant harm is likely to be caused to their children in these circumstances. We have that suspicion because the Minister made the error, as we have indicated earlier, of saying that it was for the parents to establish that they could be good parents.
29. The alternative way of looking at the present factual circumstances is to say that it would be disproportionate for the state to intervene in the private and family life of these parents on the basis proposed by the Minister. There can be no doubt about the nature of that interference - sharing parental responsibility with the Minister on an Interim Care Order would make it possible at any stage for the Minister to remove the Child from the parents and introduce a level of uncertainty which is unhealthy in a family relationship unless it can be justified in the interests of the safety - emotional, physical or developmental - of the Child. The making of an Interim Care Order would bring with it any manner of assessments which, the Minister indeed contended in her paperwork, should be carried out - parenting assessments, psychological assessments and so on. The Court needs to have sufficient evidence of reasonable grounds for thinking the conditions of Article 24 of the 2002 Law are met before any such interference can be contemplated.
30. For these reasons we have concluded that threshold is not met.
31. That is not the end of the story, as we were clear with the Father at the conclusion of the hearing. The fact is that these are very young parents, and they need to be supported in the most positive way. We urged them to take advantage of all that Brighter Futures and the Baby Steps programmes can offer. It is very much in the interests of the Child that they do so. We urged the Minister to ensure that a family support worker is available for this family and, indeed, to support them if they should make any application for other accommodation, perhaps more suitable for a family with a young child. We urged the parents to draw upon whatever family support they can to help them in what can be one of the most exciting and rewarding journeys they will have in their lifetime, namely the bringing up of a child. And, of course, overlying all these comments is the knowledge that it is always open to the Minister to come back to the Court with a further application if, in fact, the standard of care which these parents give to their Child is such that the Child is in danger of suffering significant harm.
Authorities
Children (Jersey) Law 2002.
Children Rules.
The Matter of F and G (No 2) [2010] JCA 051.