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Cite as: [2017] JRC 195A

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Care proceedings - reasons for declining to approve the care plan and to make an interim care order.

[2017]JRC195A

Royal Court

(Family)

16 November 2017

Before     :

J. C. Clyde-Smith, Esq., Commissioner, and Jurats Olsen and Sparrow

Between

The Minister for Health and Social Services

Applicant

 

And

A (the mother)

First Respondent

 

And

B (the father)

Second Respondent

 

And

Lucy (through her guardian)

Third Respondent

 

IN THE MATTER OF LUCY (CARE PROCEEDINGS)

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

Advocate C. R. G. Davies for the Minister.

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

Advocate M. J. Haines for the Second Respondent.

Advocate R. S. Tremoceiro for the Third Respondent.

judgment

the COMMISSIONER:

1.        On 8th November, 2017, the Court declined for a second time to approve a care plan for the immediate (that day) removal of the third respondent ("the child"), who is aged 12, from the care of her mother, for her to be placed in a therapeutic placement in England.

2.        The first application was made on 13th October, 2017, and the background is set out in the judgment of the Deputy Bailiff dated 13th November, 2017 In the matter of Lucy (Care order) [2017] JRC 194 which we will take as read.

3.        The picture painted at the first hearing was that of a very disturbed child, who was beyond the control of her parents, prone to violent outbursts, leading to the need for physical restraint, who was often not attending school and who was soiling and had urinary incontinence.  She had only come to the notice of the Children's Service for the first time in May of this year. A good summary of the concerns is contained in the letter dated 11th September, 2017 from Dr Laura Posner, the consultant clinical psychologist: -

"Presenting concerns:-

For the past year at primary school her functioning has deteriorated to the point where she is not learning or cooperating with adults she is refusing to cooperate with adults and has isolated herself and has alienated herself from the other pupils through her behaviour.

At home her behaviour ranges from at times mature and age appropriate, to controlling and powerful, through to rageful, out of control and destructive towards her mother in particular and towards property.  Serious behavioural incidents are occurring on a regular basis.

[The child] refuses to sleep in her own bed and is clingy and controlling towards her mother who at times feels unable to go to the toilet on her own.

[The child] is soiling and has urinary incontinence, the soiling has been dramatic and frequent and [the child] has not shown embarrassment or motivation to resolve this issue."

4.        Dr Posner's advice was that it was in the child's best interests to have a break from the family dynamic in order for her parents to prioritise working on their own wellbeing to allow them to rebuild a healthy dynamic in their relationship with the child.  Given the extreme nature of her presenting behaviours, Dr Posner advised that her needs would be best met in a residential therapeutic placement with integrated education, a facility not available in the Island.

5.        Much of this disturbing conduct had taken place when the family were living in the maternal grandparents' house, and at a time when the parents were separating, the father leaving to live in another Channel Island.

6.        The Court at the first hearing had heard evidence from Mrs Mary Pilbeam, team manager at the Children's Services, Dr Posner, Ms C, the education welfare officer at School A, the mother and two witnesses on her behalf, and finally, the guardian, Mrs Elsa Fernandes.

7.        The evidence of the guardian is summarised in the judgment of the Deputy Bailiff at paragraph 21 in this way: -

"We had the benefit of evidence from the guardian, Mrs Elsa Fernandes.  She had only been appointed very recently but had met with [the child] as well as talking to a number of professionals involved and reading the papers.  [The child] knew the words 'care order' and the possibility that she could go to the United Kingdom.  [The child] was very firm that she did not want to be separated from her Mother or placed into care.  Mrs Fernandes thought that perhaps there might be an alternative placement available where the mother and [the child] could go together.  Mrs Fernandes could not see how the interaction between the Mother and [the child] could be monitored or altered if they were not together.  Mrs Fernandes is very concerned about [the child] and the incidents that had been reported but she is very clear that there should be an opportunity to monitor both [the child] and the mother together. If the Minister's care plan was granted, then she would have concerns about how any such assessment would take place given that there could be a separation of between six months or even a year.  Although she could not comment on the extent of any improvement in [the child's] behaviour and otherwise in recent months, she did say there was some evidence for some improvement and whilst she could see whilst the Children's Service may have concerns about the Mother and [the child] moving to new accommodation alone, she makes the observation that [the child] has been in a household with bruises and presenting as she has since May of this year with no application being made.  [The child] does not like living at her grandparents' house and quite clearly the move to new accommodation will be a significant change.  The guardian was also concerned that not enough had been done to prepare [the child] for a potential move to the United Kingdom if it occurs.  From her point of view we were dealing with an extremely anxious child who was very close to her Mother and we should listen to what the little girl says.  In cross-examination the guardian accepted that it may well be the case that [the child] is minimising how bad things were for the purposes of today's application and there is a good chance that the Mother is doing so as well.  She felt, however, that there was a value in letting [the child] and the Mother move into new accommodation and at least [the child] would then feel that she had been heard by the professionals in this case.  As far as the guardian was aware there had been no injuries noted in the last few weeks.  She accepted that there was risk in any decision and was satisfied in her own mind that the threshold had been made out."

8.        Having met with the child in chambers, the Court reached this conclusion at paragraph 29: -

"We do not however think that enough weight has been given to the fact that many if not all of [the child's] most serious problems occurred during the time of the active acrimony between the Mother and the Father.  We think that there is a possibility now of a period of calm and that [the child's] general welfare, health and emotional stability can improve with the help of the professionals around this family.  It may be, as it was suggested to us in submissions, putting off the evil day but we think that [the child] and the Mother should have the opportunity in new accommodation to build upon the recent improvements of which we have heard.  Advocate Benest submitted that there was no trigger event at this time to justify suddenly removing this child from her Mother and from Jersey and we agree.  If after a period (which should be determined on the basis of professional advice) the Minister still thinks that the situation is such that an off island placement is indicated then it would be in the light of the knowledge of how [the child] and her mother function together and the dynamic between them and there would also be more time to prepare the way."

9.        The Court, having found that the threshold for the making of an interim care order had been met (as agreed by the parties), did not therefore approve the care plan for the child's removal and placement in the England, and the Minister withdrew his application for an interim care order.

10.      At the hearing before us, we heard evidence from Mrs Pilbeam, Ms C, the mother and the guardian.  We also heard evidence from the social worker, Ms D, who had been appointed the day before the first hearing.  Dr Posner was not available to give evidence, but supplied a letter dated 6th November 2017 in which she reiterated that the child would benefit from separation from the mother.  We too met with the child in chambers at her request.

11.      In very brief summary of the evidence we heard, Ms C told us that the problems attending school had continued.  Since the last hearing on 13th October, 2017, and the hearing before us on 8th November, 2017, the child had attended only 7 out of 12 days of school, a very low rate for a child in year 7.  She said the issue of soiling had continued.  It was unusual, in her experience, for a child this age to soil, and, apparently, to do nothing about it.  The child was finding it difficult to forge relationships, particularly when she was not attending school, and was beginning to associate with those children who also had problems. The mother was not always truthful in her dealings with Ms C, because in Ms C's view, the mother was frightened of the consequences of intervention by the Children's Service.  The mother had agreed with Ms C that she was struggling with parenting, and indeed, was exhausted in dealing with the child.

12.      Ms C told us that in the presence of the mother, the child behaved in a very baby like and infantile fashion, using a different voice, whereas in school, away from the mother, she behaved in a more age-appropriate manner.  There were no concerns about her behaviour in class.

13.      Mrs Pilbeam said her concerns had escalated.  The Children's Service were not confident that the mother was entirely truthful with them and was reluctant to work openly and honestly with them.  The child continued to be highly distressed and emotional, and at possible risk of physical harm, arising out of her outbursts.  She was very concerned over her continued struggle to attend school, and the ongoing soiling issue, which had been a problem since May of this year.  The child would not allow Dr Malpas or indeed anyone else to examine her, which raised questions for the Children's Service.  In her view, there could be underlying emotional issues linked to the soiling problem.  There had been no singular triggering event, but it was the accumulative effect which made the application urgent.  She said this child was the most high profile child that the Children's Service were currently dealing with.  It was essential to get her out of her current environment away from the mother, so that they could assess what was happening.  This would not be forever;  the aim would be to rehabilitate the child to the mother. Mrs Pilbeam's evidence was supported by that of the social worker Ms Gowns.

14.      The mother had now moved into two bedroomed accommodation with the child away from the grandparents, and it would appear that the child was sleeping in her own bed (she had previously insisted on sleeping with the mother). The mother opposed the care plan.  She described how she and the child had settled into their new accommodation, and their routine.  She had started the course "Blame my Brain" and had put herself down for a course dealing with separated parents due to start next month.  The child was about to take part in a taster session for a drama/musical group.

15.      In terms of the child's soiling, the mother said it was being sorted.  They had been to the doctor twice since the last hearing, and the treatment had been changed.  There were still outbursts of anger, in which the child would throw soft items, such as cushions, and overturn chairs, but she had not been violent towards any members of the family and there had been no need for her to be restrained. 

16.      The mother told us that child liked to work with Dr Posner, and with the intense support worker, Ms E.  The child was, however, wary of the new social worker, Ms D, because of the threat of removal and was not willing to work with the Children's Service.  The mother gave evidence in relation to two particular incidents which had been raised at the hearing, which it is not necessary for us to detail in this judgment, but in terms of the placement in England, the mother said that it was not a good idea.  A targeted support plan had been agreed only the previous Friday, which had not even started.  She and the child had not been given a chance for it to work. She denied not being truthful with the Children's Service and said she would cooperate with the targeted support plan. It would be extremely distressing for the child to be sent off to live with strangers for an unlimited time. That would cause her more damage than if she were to stay with the mother, with the support given under the targeted support plan.  Having just lost her father (through separation), the child had told the mother that she did not want to lose her "Mum".

17.      As with the previous Court (paragraph 26), we thought that the mother was minimising the concerns over the welfare of the child and painting an over positive picture of the current state of affairs.

18.      Ms D had visited the home some three times since the last hearing, but there had been no in-depth discussion as to the expectations of the Children's Service.  That had taken place at the Child Protection Conference held on Friday 3rd November, 2017, attended by the mother and the child (in part); it would seem that the child attended having soiled herself.  At that conference, all of the professionals agreed that the child should be placed on the Child Protection Register under the heading of Emotional Abuse.  However, a targeted support plan as to how best to safeguard the child living with the mother, with review dates of four weeks, devised by the professionals at a meeting between them on Tuesday 31st October, 2017, was discussed and agreed. It was summarised orally by the chair in the presence of the child. 

19.      Nothing had been said at that conference, or it would seem at the meeting of the professionals on Tuesday 31st October, 2017, indicating that the Minister was contemplating an urgent application to the Court within days. Using the words of the guardian "there was no indication of an impending crisis."

20.      The initial minutes of the conference, however, contain these entries: -

RECOMMENDATIONS INCLUDING OUTLINE OF CHILD PROTECTION PLAN

What needs to happen

Specific Intervention

How will change be identified

Who will be responsible

By when

[The child] to live in an environment where her needs are met, both physically and emotionally and she is safe from harm

Legal advice sought by Children's Services

[The child]  will live in an environment where her needs are met, both physically and emotionally and she is safe from harm

Children's Services

To be considered immediately following this Conference

21.      The mother, Ms D and the guardian were all agreed that there had been no reference at all at the Conference to the Children's Service seeking legal advice.  It was unclear as to how this had got into the minutes, but it would seem that at a meeting of the Children's Service held immediately after the Conference, intervention was considered and a decision made to take legal advice.

22.      The Form C2 making the application for an interim care order was signed by the Deputy Bailiff on Monday, 6th November, 2017, abridging time for a hearing on Wednesday 8th November, 2017.  Advocate Benest, acting for the mother, was told of the application on the morning of Tuesday 7th November 2017.  She saw the supporting statement of Ms D at 13.46 and the revised care plan, setting out inter alia, where it was intended the child would be placed in the United Kingdom, in Court on the morning of 8th November, 2017.  She and Advocate Tremoceiro, (as well as Advocate Davies), had all been in Court on another public law matter for the whole of 7th November, 2017, which had run late.  Advocate Benest had not been able to take instructions properly, and said she felt a sense of ambush.

23.      The guardian had also only learnt of the application on Tuesday 7th November, 2017, when she too was in Court on the same matter.  She had only been able to have a very brief meeting with the child that evening and not having seen the care plan, had very little information to impart to her as to what was planned for her; in particular the guardian was not aware then whether the child was going to be placed in foster care or residential care in the United Kingdom.  She had been given no time to research the proposals contained within the revised care plan received on the day of the hearing.  

24.      When we met with the child in chambers, she told us that she had asked to see us because she wanted us to know that there had been a plan which had not been implemented, or in her words, even started.  As with the previous Court, (paragraph 22 of the judgment) some of what she said appeared to us scripted a little, from things she might have heard other people say, in particular, the mother, but even so, she had been there at the Conference the previous Friday when the targeted support plan had been outlined and had been given no warning whatsoever that her removal from her mother, and indeed from Jersey, was so imminent. She told us that she did not wish to be separated from her mother.

25.      The evidence of the guardian was, in our view, pivotal.  In her opinion, the support contained in the targeted support plan agreed at the Child Protection Conference was appropriate, if actioned.  She shared the concerns of the Children's Service, but could not see what had happened that required the child to be removed now, without that removal being planned and discussed - the child was old enough to be involved in this way.  She was surprised by the application.  To remove the child from her mother at her age and without her consent was, she said, a big ask.  Attending meetings was not the same as actual support, and whilst there had been meetings, she did not hear evidence that support around the triggers, i.e. in the morning, when the child was getting ready for school or in contact with her father.  In her view, the targeted support plan agreed at the Conference on the previous Friday had not been given time to be implemented.  If it failed, then the Court would be in a better position to make a decision.

26.      The guardian felt she was in the same position as she was at the hearing on 13th October 2017. In her opinion, it was likely that the child would end up in residential care but it had to be planned. She did not support the care plan for the child's immediate removal and she maintained her position under cross-examination.

Legal test

27.      The Court considered the law on removal in the case of In the matter of J [2011] JRC 147, where Scriven, Commissioner, referred to this passage from the case of Re LA (Children) Care: Chronic Neglect) [2009] EWCA Civ 881.

"In relation to the issue of H's removal from the parents we also have in mind the guidance of Thorpe LJ in the case of Re LA (Children) (Care: Chronic Neglect) [2009] EWCA Civ 882 at paragraph 7 where he restated the proposition expressed in earlier cases that separation is only to be ordered if the child's safety demands immediate separation or, put slightly differently, that '... at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection.'  We bear in mind the fact that when considering whether a child's welfare requires immediate removal, safety should be regarded in a broad sense which may include psychological welfare as well as physical harm Re B (Care Proceedings Interim Care Order) [2010] 1 FLR 1221."

28.      The plan was not just for the removal of the child from the mother, but for the child to be sent to a residential home in England, which required the approval of the Court under the provisions of Schedule 2 Clause 4 of the Children (Jersey) Law 2002, Clause 4(2) of which provides that the Court shall not give its approval unless it is satisfied that -

"a.      It would be in the child's best interest to live outside the Island;

b.        Suitable arrangements have, or will be made, for the child's reception and welfare in the country in which they will live;

c.        The child has consented to living in that country except where -

i.         The court is satisfied that the child does not have sufficient understanding to give their consent; and

ii.        The child is to live in the country concerned with a parent, guardian or other suitable person; and

d.        Every person who has parental responsibility for the child has consented to their living in that country except for a person whom the court is satisfied cannot be found, is incapable of consenting or is withholding his or her consent unreasonably."

Decision

29.      To the extent that it was necessary, bearing in mind the finding of the previous Court, we also found the threshold for the making of an interim care order was met, again as agreed by the parties.  The real issue was the care plan for immediate (that day) removal. We have not set out all of the issues explored in examination in chief and cross-examination, but a powerful case for separation from the mother was made out.  There were, however, two obstacles to that happening immediately.

30.      We were dealing with the removal of the child from her mother at an interim stage, and before full assessments had been carried out.  The legal hurdle is a high one, and it was difficult to see how it could be said that the child's safety demanded immediate separation from the mother, when only five days before the hearing, the Child Protection Conference had agreed a targeted support plan for the child to remain with the mother with a review period of four weeks. Other than the child arriving at the Child Protection Conference having soiled herself, nothing had happened since that plan was agreed and shared with the child to justify such a sudden and dramatic departure from it.  There would have needed to be evidence of further deterioration for that plan to be abandoned and separation justified.

31.      Turning to the child's consent to live outside Jersey, we were referred to this passage from the judgment of Sir Michael Birt, then Bailiff, in the case of In the matter of SS [2012] JRC 061 In the context of a child then aged 14, but with the emotional development equivalent of an 11 - 12 year old: -

"... his expressed wishes cannot outweigh the unanimous advice of all the experts and those responsible for his care to the effect that he needs to attend an off Island therapeutic centre for there to be any prospect of remedying the damage he has suffered and minimising the risk that he will cause harm to himself or others in due course.  At his age of emotional development, S cannot be expected to know what is in his best interests when that conflicts with what he would like to happen."

32.      At one level, it was clear that the child, who is bright, could understand what it meant to leave Jersey and live in the United Kingdom, but she had to have sufficient understanding to give her consent.  This was a child who was highly distressed and emotionally disturbed, and, as Mrs Pilbeam said, that would impair her ability to understand whether or not she should give consent.  At her age, and in that state, she could not be expected to know what was in her best interests when that conflicted with her wish to stay with her mother.  We would, therefore, have dispensed with the need for the child's consent.

33.      The father had given his consent for the child to live in the United Kingdom but the mother had not.  We applied the same principles as would be applied to the withholding of consent for the freeing for adoption and the guidance given by the Court of Appeal In the matter of F and G [2010] JCA 051 at paragraphs 80 and 81.  It is an objective test, but put simply, it was difficult to say that the mother was withholding her consent unreasonably, when the guardian for the child did not support the plan for removal.

34.      In summary, the Court shared the grave concerns of the Children's Service but, critically, the guardian did not support the plan for immediate removal. We agreed with the view of the guardian that the child may well end up in residential care, but the high hurdle for immediate removal at an interim stage had, in the light of the targeted support plan agreed only five days before the hearing, not been met. Furthermore, the position of the guardian made it difficult for the Court to find that the mother's refusal to consent to the child leaving the Island was being withheld unreasonably. 

35.      For these reasons, we declined to approve the care plan and to make an interim care order.

Authorities

In the matter of Lucy (Care order) [2017] JRC 194 

In the matter of J [2011] JRC 147. 

Re LA (Children) Care: Chronic Neglect) [2009] EWCA Civ 881. 

Children (Jersey) Law 2002. 

In the matter of SS [2012] JRC 061. 

In the matter of F and G [2010] JCA 051. 


Page Last Updated: 15 Mar 2018


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