Jersey Unreported Judgments

Care proceedings - reasons relating to granting of interim Supervision order/Residence order applications

[2017]JRC089

Royal Court

(Samedi)

14 June 2017

Before     :		W. J. Bailhache, Esq., Bailiff, and Jurats Grime and Christensen
Between	Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	B (the father)		Second Respondent
And	William (the child, through his Guardian Eleanor Green)		Third Respondent
And	Mr and Mrs C (the grandparents)		Fourth Respondents

IN THE MATTER OF WILLIAM (INTERIM SUPERVISION ORDER/RESIDENCE ORDER)

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

Advocate N. S. H. Benest for the Minister.

Advocate H. J. Heath for the Mother.

Advocate M. R. Godden for the Father.

Advocate C. R. Dutôt for the Grandparents.

judgment

the bailiff:

Preliminary

1.        The Court sat on 6^th April, 2017, to hear two applications:-

(i)        An application by the Fourth Respondents for an interim residence order in respect of the Third Respondent child. 

(ii)       An application by the Minister for an interim supervision order. 

2.        Both applications were granted with reasons reserved.  This judgment contains those reasons. 

3.        On 10^th November, 2016, the child was made the subject of an interim care order under Article 30 of the Children (Jersey) Law 2002 ("the Law").  As part of the care plan, he was placed with the Fourth Respondents, his paternal grandparents. 

4.        The grandparents have applied to be joined to the current proceedings.  There was no opposition to that application albeit Advocate Heath was without instructions.  Advocate Heath made it clear that the mother knew that the hearing was taking place, but she had not been able to provide the instructions which Advocate Heath needed. 

5.        Given that the grandparents were applying for an interim residence order, it seemed appropriate that they should be joined as parties to the proceedings and the Court so ordered. 

6.        The application for an interim residence order which the grandparents have brought raised a slightly unusual point.  Article 10 of the Law, so far as is material, provides as follows:-

"Power of court to make certain orders with respect to children

(1)       Subject to Article 11 and the following provisions of this Article, in any family proceedings in which a question arises with respect to the welfare of any child, the court may make the following orders with respect to a child -

(a)       a contact order;

(b)       a prohibited steps order;

(c)       a residence order; or

(d)       a specific issue order.

(2)       The court may make an Article 10 order -

(a)       on the application of any person who -

(i)        is entitled to apply for an Article 10 order with respect to the child, or

(ii)       has obtained the leave of the court to make the application; or

(b)       if it considers that the order should be made even though no such application has been made.

(3)       The following persons are entitled to apply to the court for any Article 10 order with respect to a child -

(a)       any parent or guardian of the child;

(b)       any person in whose favour a residence order is in force with respect to the child; and

(c)       any person falling within such category of persons as may be prescribed in relation to such type of Article 10 order as may be there prescribed.

(4)       The following persons are entitled to apply for a residence or contact order with respect to a child -

(a)       any party to a marriage or civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;

(b)       any person with whom the child has lived for a period of not less than 12 out of the 15 months immediately preceding the application;

(c)       any person who -

(i)        in any case where a residence order is in force with respect to the child, has the consent of each of the persons in whose favour the order was made,

(ii)       in any case where the child is in the care of the Minister, has the Minister's consent, or

(iii)      in any other case, has the consent of each of those (if any) who have parental responsibility for the child.

(5)       ....

(6)       Where the person applying for leave to make an application for an Article 10 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to -

(a)       the nature of the proposed application for the Article 10 order;

(b)       the applicant's connection with the child;

(c)       any risk there might be of that proposed application disrupting the child's life to such an extent that the child would be harmed by it; and

(d)       where the child is being looked after by the Minister -

(i)        the Minister's plans for the child's future, and

(ii)       the wishes and feelings of the child's parents."

7.        As the child is in the interim care of the Minister, the grandparents are able to bring an application for a residence order, given that they have the Minister's consent. 

Background

8.        The child was born in May 2013, and therefore was just short of four years old at the date of the hearing.  The care plan which accompanied the Minister's application for an interim care order in November 2016 recorded that there had been a written agreement between the mother and the Minister on 25^th October, 2016, as a result of which the child was not to be removed from the care of Mrs C, his paternal grandmother.  This was described as an appropriate short-term placement, and it was further recorded that the Fourth Respondents had indicated they would consider having the child on a longer-term basis if necessary.  The care plan goes on to indicate that:-

"However, further assessment of [the Fourth Respondents] would need to be undertaken to establish that is the most appropriate placement for [the child], if he cannot return to his mother's care.

The Children's Service will also consider whether the most appropriate long-term option for [the child] is adoption outside his birth family, if he is unable to remain with his family [sic] and have his global needs to be met."

9.        As of November 2016, the mother wanted to have the child returned to her.  However she had then, and it appears still has a problem with regard to her drug and alcohol use. 

10.      Following the grant of the interim care order, the child became a looked after child for the purposes of the Law, and it was the obligation of the Minister to provide accommodation and maintenance for him.  There is relevant provision in Articles 19 and 20 of the Law as follows:-

"19     General duty of Minister in relation to children the Minister looks after

(1)       Where the Minister is looking after any child, the Minister shall -

(a)       safeguard and promote the child's welfare; and

(b)       make such use of services available for children cared for by their own parents as appears to the Minister to be reasonable in the case of that child.

(2)       Before making any decision with respect to a child the Minister is looking after or proposes to look after, the Minister shall, so far as is reasonably practicable, ascertain the wishes and feelings of -

(a)       the child;

(b)       the child's parents;

(c)       any person who is not a parent of the child but who has parental responsibility for the child; and

(d)       any other person whose feelings and wishes the Minister considers to be relevant,

regarding the matter to be decided.

(3)       In making any such decision the Minister shall give due consideration -

(a)       to such wishes and feelings as the Minister has been able to ascertain of -

(i)        the child, having regard to the child's age and understanding, and

(ii)       any other person mentioned in paragraph (2); and

(b)       to the child's religious persuasion, racial origin and cultural and linguistic background.

(4)       The Minister's powers may be exercised, with respect to a child whom the Minister is looking after, in a manner which may not be consistent with the Minister's duties if the Minister considers it necessary to do so to protect members of the public from serious injury.

20       Provision of accommodation and maintenance by Minister for children whom Minister is looking after

(1)       The Minister shall provide accommodation and maintenance for any child the Minister is looking after -

(a)       subject to paragraph (2) and any Regulations made by the States, by placing the child with a family, a relation of the child or any other suitable person on such terms as to payment by the Minister and otherwise as the Minister may determine;

(b)       by maintaining the child in a children's home or voluntary home; or

(c)       by making such other arrangements as seem appropriate to the Minister and which comply with any Regulations made under this Law.

(2)       Save as the States may, by Regulations, otherwise provide, the Minister shall make arrangements with respect to a child the Minister is looking after to enable the child to live with -

(a)       the child's parent or a person with parental responsibility for the child;

(b)       where the child is in care and there was a residence order in force with respect to child immediately before the care order was made, a person in whose favour the residence order was made; or

(c)       a relative, friend or other person connected with the child,

unless that would not be reasonably practicable or consistent with the child's welfare.

..."

11.      The States have made some regulations which are relevant to this issue, namely the Children (Placement)(Jersey) Regulations 2005 ("the Placement Regulations").  These Regulations set out at Part 2 the general duties of the Minister and at Part 3 there are provisions which are to apply to every child who is in the care of the Minister and who is or is proposed to be placed with his or her parent, or a person (other than a parent) but who has parental responsibility.  None of that applied in the case of the placement of the child with the grandparents. 

12.      It is of interest to note that by Regulation 7 of the Placement Regulations, the Minister is not to place a child with a parent or other person who has parental responsibility unless the Minister is satisfied that the placement is the most suitable way of performing the Minister's duty under Article 19(1) of the Law.  Under Regulation 7(2):-

"Before placing a child under this Part, the Minister shall make all necessary enquiries in respect of -

(a)       the health of the child;

(b)       the suitability of the person with whom it is proposed that the child should be placed;

(c)       the suitability of the proposed accommodation, including the proposed sleeping arrangements;

(d)       the educational and social needs of the child; and

(e)       the suitability of all other members of the household, aged 16 and over, in which it is proposed that the child will live."

13.      Regulation 7 does not prevent the immediate placement of a child in circumstances in which the Minister considers that to be necessary, in which case the Minister shall take steps to ensure that any provisions of Part 3 of the Placement Regulations that were not complied with before such placement are complied with as soon as reasonably but practicable thereafter. 

14.      All these provisions emphasise the importance of the Minister taking the greatest care before placement of a child either with the parent or anyone else with parental responsibility once the Minister has been granted care of that child. 

15.      Part 4 of the Placement Regulations deals with a placement with foster parents albeit the scope of Part 4 is rather wider than that.  The relevant provisions are as follows:-

"13     Scope of Part 4

(1)       This Part applies to any placement of a child by the Minister to which Part 3 does not apply, other than the placement of a child not in the care of the Minister with a parent of the child or other person having parental responsibility for the child.

(2)       If a care order is in force the application of this Part is subject to any direction given by the court (whether or not it was given after the commencement of these Regulations).

(3)       Nothing in this part requires the temporary removal of a child from a person with whom the child is already living before placement under this Part.

14       Approval of foster parents

(1)       Except in the case of an immediate placement under Regulation 19, a child shall not be placed with any person unless the person is approved by the Minister as a foster parent under this Regulation.

(2)       Before approving a person as a foster parent the Minister shall -

(a)       interview 2 persons whose names and addresses have been given by the person as referees; and

(b)       obtain so far as practicable the information specified in Schedule 5 relating to the person and other members of the person's household and family.

(3)       If, having regard to the matters mentioned in paragraph (2), the Minister is satisfied that the person is suitable to act as a foster parent and that the person's household is suitable for any child in respect of whom approval is given, the Minister may approve the person as a foster parent.

(4)       The Minister shall not approve a person as a foster parent if the person is disqualified for carrying on a voluntary home or for fostering a child privately under Schedule 4 of the Law unless the person has disclosed the disqualification to the Minister.

(5)       An approval given under this Regulation may specify that it is given in respect of -

(a)       a particular named child or children;

(b)       a particular number and age range of children; or

(c)       placements of any particular kind or in any particular circumstances,

and the Minister shall give notice of any such specification to the foster parent.

(6)       Before the Minister places a child with a foster parent the Minister shall require the foster parent to enter into a foster care agreement with the Minister in writing and covering the matters specified in Schedule 6.

(7)       If the Minister decides not to approve a person as a foster parent the Minister shall give the person notice of the decision and the reasons for it."

16.      Once a care order is therefore made in favour of the Minister and the duties under Articles 19 and 20 of the Law arise, the structure of the Placement Regulations is as follows: there are general duties imposed on the Minister under Part 2, specific provision in connection with a placement of the child with the parents or other persons having parental responsibility under Part 3, and particular duties imposed in relation to any other placement under Part 4.  In the instant case, the grandparents not being persons with parental responsibility for the child, Part 4 must apply.  To the extent that it is inconsistent with Article 20(2) of the Law, Part 4 contains the operative provisions, because that Article is said to have effect save to the extent that the States otherwise provide by Regulations. 

17.      It is clear that the Placement Regulations do not anticipate that the Minister will place a child subject to a care order with any person other than a parent or other person with parental responsibility except:-

(i)        On a short term basis under Regulation 19; or

(ii)       With an approved foster parent under Regulation 14. 

18.      The grandparents are not approved foster parents for the purposes of Regulation 14 of the Placement Regulations. 

19.      There are restrictions on Part 4 placements contained at Regulation 16. 

"16     Restrictions on Part 4 placements

(1)       The Minister shall not place a child under this Part unless the Minister is satisfied that -

(a)       the placement is the most suitable way of performing the Minister's duty under Article 19(1) of the Law; and

(b)       the placement it is considering is the most suitable placement available having regard to all the circumstances.

(2)       In making arrangements for a placement the Minister shall secure that where possible the foster parent -

(a)       is of the same religious persuasion as the child; or

(b)       gives an undertaking that the child will be brought up in that religious persuasion.

(3)       Except in the case of an emergency or immediate placement under Regulation 19, the Minister shall not place a child unless the Minister and the foster parent have entered into a foster placement agreement relating to the child in writing and covering the matters specified in Schedule 7."

20.      There is provision for emergency and immediate placements at Regulation 19:-

"19     Emergency and immediate placements

(1)       Subject to paragraph (2), where arrangements have been made for the placement of a child in an emergency the Minister may for a period not exceeding 72 hours place the child with any person approved under Regulation 14.

(2)       Before making an emergency placement under paragraph (1) the Minister shall -

(a)       satisfy himself or herself that it is the most suitable way of performing the Minister's duty under Article 19(1) of the Law; and

(b)       obtain a written agreement from the person with whom the child is to be placed that the person will carry out the duties specified in paragraph (4).

(3)       If the Minister is satisfied that the immediate placement of a child is necessary the Minister may, for a period not exceeding 12 weeks, place the child with a person who has not been approved under Regulation 14 provided that -

(a)       the person is a relative or friend of the child;

(b)       the person has made a written agreement with the Minister to carry out the duties specified in paragraph (4); and

(c)       after interviewing the person, inspecting the person's accommodation and obtaining information about other persons living in the person's household, the Minister is satisfied that the placement is the most suitable way of performing the Minister's duty under Article 19(1) of the Law.

(4)       The duties referred to in paragraph (2)(b) and (3)(b) are -

(a)       to care for the child as if the child were a member of that person's family;

(b)       to permit any person authorized by the Minister to visit the child at any time;

(c)       if the placement is terminated, to allow the Minister to remove the child at any time;

(d)       to ensure that any information that the person may acquire relating to the child, or to the child's family or any other person that has been given to the person in confidence in connection with the placement is kept confidential and is not disclosed except to, or with the agreement of, the Minister; and

(e)       to allow contact with the child in accordance with -

(i)        Article 27 of the Law in relation to a child in care,

(ii)       a contact order, and

(iii)      any arrangements made or agreed by the Minister."

21.      Accordingly, in November 2016, when the Minister put the care plan before the Court for approval proposing that the child reside with his paternal grandparents, that was seemingly consistent with Regulation 16(1) and 19(3).  No doubt that was why the Minister's care plan also referred to the need to make an assessment of the Fourth Respondents to the extent there was any proposal for them to have long-term care of the child. 

22.      In fact no formal assessment on the grandparents has been conducted.  The Minister's explanation for this was that the grandparents had indicated that they would probably bring an application for a residence order, which was thought to be a sensible way forward.  However the three month period expired in February 2017, and therefore it followed that by April 2017 the Minister had apparently placed the child with the grandparents outside the scope of his duties under Article 20(2) of the Law and the Placement Regulations.  The Minister indicated that the grandparents' application for a residence order had been brought in February albeit it was not heard until April. 

23.      The Law places the obligation on the Minister to make appropriate arrangements for looked after children, and the Placement Regulations have been adopted to give guidance to the Minister as to how he should conduct his responsibilities under the Law.  When an application comes before the Court, the Court should be entitled to assume that the Minister has complied with this statutory obligations - the Court's function is, as it were, to act as an auditor of the Minister's proposals as contained in a care plan, with the ultimate sanction, if the proposals are not acceptable to the Court, that the relevant orders applied for - a care order or a supervision order - might in fact not be made at all.  That fall back is the Court's only sanction. 

24.      Nonetheless, the Court was being asked in April to approve an application by the grandparents for an interim residence order, supported by the Minister, in the absence of any assessment at all of the grandparents' ability to look after the child properly and ensure that in all respects he is given the care which he ought reasonably to have, and be kept safe.   

25.      We have to say this was not satisfactory.  Advocate Benest, on behalf of the Minister, correctly pointed out that if the Court, however, refused for this reason to endorse the interim residence order, the alternatives would be very unpalatable indeed - placement of the child back with the mother in circumstances that would undoubtedly put the child in an unsafe position; or placement with strangers for a few months until the final hearing date of the Minister's application which is listed for 21 - 23 June 2017, when, it was said, it was likely the Minister would endorse the application for a residence order. 

26.      Faced with these unattractive options, the Court determined that it would hear evidence from the social worker Ms Andrea Codrington, who has been the social worker allocated to this case since 25^th October, 2016, and, depending upon that evidence would consider whether it felt comfortable in endorsing the application for a residence order notwithstanding the absence of any formal assessments of the grandparents.  We were satisfied that the Court was not being asked to act in breach of the Law as such, albeit the Minister had probably himself acted in breach, but we were being asked to approve an interim residence order in circumstances where there was certainly an absence of written material upon which such an order might be made; but where that gap in evidence might be made good by oral evidence. 

27.      Ms Codrington informed us that the child had remained in the care of his grandparents since the interim care order.  It had originally been intended that there would be a connected persons assessment, but the grandparents had been concerned with the confidentiality of the paperwork which would be generated by such an assessment, and accordingly the preparation of the assessment had been put to one side.  The grandparents were away on holiday shortly after the interim care order was made and during that period the child had resided temporarily with his paternal great-aunt.  On their return, the child had moved back in with the grandparents and Ms Codrington had seen him in the family home.  She had no concerns for his well-being and was very comfortable with his care and his routines.  He had a positive relationship with both grandparents, and a strong sense of family identity and routine. 

28.      In Ms Codrington's view, it would distress the child enormously to remove him from his grandparents.  It was worth mentioning also that there were no current alternative fostering placements possible in Jersey.  A return to the mother's care was not a viable option, and accordingly, if the child did not remain with his paternal grandparents, he would have to be housed with foster parents in England. 

29.      Ms Codrington said she had been round to the grandparents' house every four to six weeks since the interim care order had been made and she had herself performed a mini-assessment of them, which was to some extent similar to the connected person assessment - a review of background, their parenting capacity, their own childhood and that of their siblings and children; their financial arrangements and the quality of the home, the attachment strategies and so on.  Her assessment of course had not gone through the Fostering Panel, and it was the question of confidentiality, particularly in relation to the Law Officers' Department where the grandmother had previously worked, that appeared to have been the issue. 

30.      The Court was informed by Ms Codrington that her assessment had gone to the Head of Service.  The Children's Service was generally comfortable that the child was safe with his paternal grandparents.  In the circumstances, recognising that the procedure adopted left a lot to be desired, the Court concluded that it was prepared to make the interim residence order in favour of the grandparents.  The reason for that conclusion was that it was by far and away the best course of action to take in the child's best interests. 

31.      Order accordingly. 

Authorities

Children (Jersey) Law 2002.

Children (Placement)(Jersey) Regulations 2005.