Jersey Unreported Judgments

Child custody - reasons for granting an application by the Minister for a secure accommodation order.

[2012]JRC007

Royal Court

(Family)

6 January 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Fisher and Olsen.

IN THE MATTER OF Z

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

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

Advocate B. J. Corbett for Z.

judgment

the deputy bailiff:

1.        These are our reasons for granting an application by the Minister under Article 22(1)(b) of the Children (Jersey) Law 2002 (the "Law") which is in these terms:-

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

...

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

2.        The Court hearing the application is required to decide whether the necessary criteria for keeping the child in secure accommodation are satisfied and if so the Court should make an order authorising the child to be kept in that accommodation and should specify the maximum period for which the child may be so kept.  There is a statutory maximum period prescribed by Article 3 of the Children (Secure Accommodation)(Jersey) Order 2005, for the first such period namely three months, albeit the Court may authorise a child to be kept in secure accommodation for a further period of up to six months at any one time. 

3.        This is the third occasion on which the Minister has applied for a secure accommodation order in respect of Z.  The unfortunate background to this matter is fully set out in the judgment of the Court dated 7^th September, 2010, (In the matter of Z [2010] JRC 163) and it is not necessary to repeat here what is there said.  It suffices to say that for some time Z has had a problem with the consumption of drugs and alcohol as a result of which his liver function has deteriorated and short term memory has been affected.  There have also been occasions of self harming.  The last secure accommodation order was made on 24^th January, 2011, and was made for a period of 28 days. 

4.        Z was 18 on 4^th October, 2011.  The application was made by the Minister on 18^th July and was for a secure accommodation order expiring on that date. 

5.        In argument before us, Z submitted through his counsel that while there were elements of the evidence put before the Court in the form of the report of the social worker which were challenged - for example, Z has never made or intended any serious attempt at suicide - no formal fact finding was necessary.  Indeed, although Z did not agree that a secure accommodation order ought to be made at all, he was prepared to accept that such an order might be made for 28 days, particularly because he has been helped in the past by such orders having been made. 

6.        We heard and granted the Minister's application on 18^th July and reserved our reasons which we now give. 

7.        The Minister's case was that a secure accommodation order is not a punishment.  The social worker's statement indicated that Z posed a risk to others and to himself.  It is true that the Minister could have brought the application earlier and indeed it was late to bring it.  However it was submitted that Z needed the protection afforded by a secure accommodation order and that it was imperative to keep him safe and give him a better foundation for entering adult life.  The Minister submitted that the period of the order was really the only significant point of difference between her and Z.  The benefit of the longer order was that a great deal of work with Z needed to be undertaken.  Reference was made in particular to the medical evidence before the Court.  It was pointed out that a 28 day order has not worked in the past, and extensive therapy was needed.  In particular, support would be needed by Z when his assailant, who was due to be sentenced in the autumn, was actually sentenced. 

8.        The Minister confirmed that the independent reviewing officer appointed under the Children's Service procedures would be employed by the Children's Service but would nonetheless be independent.  The longer period the Minister was seeking will enable her to introduce Z to the community on a staged basis. 

9.        The competing submissions from Advocate Corbett were that as Z had been in secure accommodation for a few days already, a 28 day order in effect was for a greater period than 28 days in any event.  It was quite clear that if the Court imposed an order of 28 days and it turned out that the Minister needed more, she could return to Court.  That would show Z in practice that co-operation with the Minister would be in his best interests. 

10.      It appeared to be the case that part of the case for the Minister was based on staffing problems at the secure accommodation unit.  To the extent that this was so, such problems should not lead to Z losing his liberty for any longer period than was necessary.  Advocate Corbett expressed some doubts about the independence of the review which the Minister would make.  The so called independent reviewer would in fact be reporting to the same line manager in the Children's Service.  Z had the great support of his girlfriend and it would be better if Z in fact received his therapy in the community. 

Decision

11.      The Court was entirely satisfied from the evidence which was presented that the criteria set out in Article 22(1)(b) of the Law were satisfied namely that if Z were not kept in secure accommodation, he would be very likely to injure himself and possibly would injure other persons.  It was wrong to categorise the Court's order as a punishment or as locking Z up for the rest of his childhood, as had been contended by Advocate Corbett.  In fact the purpose of the order was to enable the Children's Service to attempt to address the harm which Z has suffered through his childhood.  It was quite clear from the medical evidence and in particular from the report of Dr Lam that 28 days secure accommodation was not expected to be enough.  The Court would have to reach its conclusions on the basis of the evidence as presented to it.  Of course, if the 28 day period did turn out to be sufficient to carry out the therapy which was envisaged, it was open to the Minister not to keep Z in secure accommodation.  The effect of an order under Article 22(1) was that it was permissive - if made, the Minister was entitled to place the child in secure accommodation but of course it did not mean that the Minister was obliged to do so. 

12.      The Court considered that there were really three choices available:-

(i)        Refuse the application for a secure accommodation order;

(ii)       Adjourn the matter for 28 days with an interim secure accommodation order and a subsequent review at that stage;

(iii)      Grant the order as requested by the Minister. 

13.      We were clear on the evidence provided to us that it would be entirely wrong not to make any secure accommodation order.  That course of action would not discharge the responsibilities which the Court owes to Z.  The choice therefore lay between effectively adjourning the application for 28 days with an interim secure accommodation order in place and a subsequent review at the end of that period, or the granting of the order requested. 

14.      The Court very much appreciates that Z does not see an order which lasts until his 18^th birthday as an order which is made for his benefit.  We understand that, despite what we have said, he may well see the order made as a punishment.  We hope that when he has had the opportunity to profit from the therapy which he is to receive, he will begin to understand that in fact the order now made is intended to operate for his benefit and is certainly not intended to operate as a punishment.  We have no doubt that Z is a victim - a victim of criminal offences committed on him, and a victim of circumstance.  A very great deal has gone wrong in his young life so far.  One of the problems is that the damage done to him is such that he may not appreciate now what is in his best interests.  We hope that by his 18^th birthday, he will have made enough progress to see the merits of continued therapy, and that this will be available.  His young life is as important as the life of every other young person, and the Court wants to see every effort made to give him a surer base for the future than he has had so far. 

15.      We think there is hope.  It is not too late for things to come right.  Whether they do come right depends upon the success of the therapy which is proposed and that would be very much influenced by Z's understanding and acceptance of the orders which are now made.  The fact is that Z must learn to manage the vulnerabilities to which he is subject and he needs professional help in our view in order to do so. 

16.      For all these reasons we grant the order requested by the Minister and make a secure accommodation order in respect of Z which is to expire on his 18^th birthday, namely 4^th October, 2011.  We have noted that the Minister, in accordance with Article 9 of the Children (Secure Accommodation)(Jersey) Order 2005 will appoint independent persons to review the keeping of the child in secure accommodation.  Those persons will have reviewed the secure accommodation order within one month of the inception of Z's placement in such accommodation and it was open to them to review the matter further should they chose to do so prior to 4^th October. 

Authorities

Children (Jersey) Law 2002.

Children (Secure Accommodation) (Jersey) Order 2005.

In the matter of Z [2010] JRC 163.