Jersey Unreported Judgments

Care proceedings - application by the Minister for the child to live outside Jersey

[2018]JRC209

Royal Court

(Family)

16 November 2018

Before     :

Sir Michael Birt, Commissioner, and Jurats Blampied and Ronge

 

IN THE MATTER OF ELEANOR (CARE PROCEEDINGS)

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

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

Advocate M. J. Haines for the First Respondent.

Advocate C. Hall for the Second Respondent.

Advocate R da S Tremoceiro for the Third Respondent.

judgment

the COMMISSIONER:

1.        In circumstances we shall describe shortly, the Court sat as a matter of urgency on 31^st October, 2018, to consider an application by the Minister for approval under paragraph 4 of Schedule 2 of the Children (Jersey) Law 2002 ("the Law") to the Minister arranging for the Third Respondent ("Eleanor", this is not her real name), who is a child subject to an interim care order, to live outside Jersey. 

2.        At the hearing, the Court adjourned the Minister's application to the first available date after 20^th November but approved Eleanor remaining at her present accommodation out of the Island until that hearing. 

3.        We now explain briefly why we reached that decision.

Background  

4.        Eleanor is aged 14.  She first came to the attention of CAMHS in 2012 because of emotional and behavioural difficulties.  She had been living with the First Respondent ("the mother") and her step-father but in October 2017 this placement broke down and she went to live for a while with her maternal grandmother.  This came to an end in December, following which she went to live with the Second Respondent ("the father") out of the jurisdiction.  Unfortunately this arrangement also broke down and she returned on an unaccompanied flight to Jersey in January 2018, following which, with the agreement of the father and the mother, she was accommodated on a voluntary basis at a home in Jersey ("the Jersey Accommodation").  Thereafter there was a progressive decline in her behaviour such that the Minister applied for a secure accommodation order which was granted on 29^th May, 2018, for a period of 28 days.  The Court summarised the position at paragraph 3 of its judgment in the following terms:-

"The result is that during the last four weeks the evidence is that Eleanor has been sleeping rough, she has been found to be intoxicated, she has admitted smoking cannabis and she has been arrested for larceny.  She committed vandalism and she has also self-harmed.  She has stopped engaging with CAMHS and there is a significant concern that she might become subject to child sexual exploitation."       

5.        On 14^th June, 2018, the Minister was granted an interim care order. 

6.        On 22^nd June, 2018, the Court extended the secure accommodation order until 27^th July.  During that time Eleanor began to engage with CAMHS and there was a marked improvement in her behaviour and reduction in her self-harming.  As a result, she returned to the Jersey Accommodation on 27^th July. 

7.        Dr Rajpal, a psychiatrist, had been instructed to prepare a report which he produced on 30^th August.  He made a clear recommendation in the following terms at para 9.3 of his report:-

"As somebody with such complex relationship issues and attachment issues, she would require a period at a residential placement, which has skill sets in managing emotional and challenging behaviour. 

The best way to deliver this would be a place which is away from the current environment and has some kind of legal authority to restrain and stop her from going out so that she does not continue to present with behaviours so as to engage and evoke an emotion.  Once (over a period of time) she has settled and is able to feel safe and secure, then she will require support to learn how to express her attachment in an appropriate manner. 

It is reported that [Eleanor's] behaviour and presentation has deteriorated further.  She has been involved in shoplifting, absconding and sleeping rough.  She has been drinking alcohol, failing to communicate with staff and her appearance and hygiene have become of concern.  ... She is also a suspect in a number of shoplifting offences of alcohol.  The background history collated for this young lady included an initial presentation, when she was placed in the current care home of breaking things, mostly whenever her demands were not fulfilled, once they were met then she was described to be remorseful.  It would be essential that she is placed in a caring environment that has some legal authority to detain her.  Geographical distance from her current peer group would be of benefit but her care needs require, as a priority, a legal restriction on her and a caring environment with the skill sets in managing attachment issues, early developmental trauma and skill sets in supporting kids with attachment difficulties."     

8.        In view of the continuing difficulties with absconding, consuming alcohol, associating with older men etc., the Minister applied for a further secure accommodation order.  However, this was rejected by the Court on 1^st October.  The Court accepted that the threshold for making such an order was met, but, we are told by Advocate Kerley, said that it was not willing to make such an order because of the lack of a satisfactory placement on the expiry of the order. 

9.        On 17^th October information was received that Eleanor was associating with a registered sex offender. 

10.      In the light of these developments, the Minister explored the possibility of an off-island placement and identified a possible placement located in Scotland ("the Scottish Accommodation").  The Court was shown some details about the Scottish Accommodation.  It is a care home service for children and operates a therapeutic model known as the Sanctuary Model of Care.  The Minister having identified this possible placement, Eleanor was approached as to whether she would like to visit the Scottish Accommodation to inspect it as a possible alternative to the Jersey Accommodation.  She agreed to visit. 

11.      On the weekend of 21^st October she travelled to Scotland with two support workers from the Jersey Accommodation, returning on 23^rd October.  According to the social worker from the Children's Service Helen Hawkins, she enjoyed her time at the unit in Scotland and wished to return as soon as possible.

12.      There were then various discussions involving the social worker, the Jersey Accommodation, the mother and the grandmother.  These will need to be investigated at the adjourned hearing, but the upshot was that, according to the social worker, Eleanor and the mother agreed to Eleanor returning to the Scottish Accommodation for a period of assessment and she duly returned to the Scottish Accommodation on 24^th October.  The social worker was apparently unable to contact the father during this period. 

13.      The mother's version is somewhat different.  She says that she has not given consent to the placement at the Scottish Accommodation, but she emphasises that she is not saying she would not do so once she has been given proper information.  She says she has had no communication with the social worker and that everything has come via staff at the Jersey Accommodation.  They simply informed her that Eleanor was going for the initial weekend trip and subsequently informed her that Eleanor was returning to Scotland.  They did not ask for her consent.  She met with Eleanor on 23^rd October and Eleanor appeared to be enthusiastic about going to the Scottish Accommodation.  She has not been informed of any detail of the placement, the purpose of it or any other detailed information.  She has had no direct contact with the social worker. 

14.      As set out below, the Court's approval is required for a child in care to be placed out of the Island.  This was not obtained by the Children's Service prior to Eleanor's departure on 24^th October, with the intention at that stage being that she should remain at the Scottish Accommodation for an assessment period of three months. 

15.      This error was only realised after the event.  No satisfactory explanation for the error is provided in the two witness statements from the Children's Service and, according to a note prepared for the hearing by Advocate Tremoceiro, the Guardian spoke to Jane Jones, the manager of the Children's Service, who said that she had no idea that the Minister needed the Court's consent for Eleanor to be placed abroad.  Whether this is accurate will of course require exploration at the adjourned hearing but, if it were to transpire that a senior manager was ignorant of such an important provision of the Law, that would be a serious matter. 

16.      Be that as it may, the error was identified and the Minister presented an application the same day seeking the Court's approval under paragraph 4 of Schedule 2 for Eleanor to live outside the Island at the Scottish Accommodation for the 12 week period of assessment.

17.      It appears that the Guardian was not consulted prior to the decision and she has certainly had no opportunity to form a view about the desirability of the placement at the Scottish Accommodation.  She has in fact been on leave and was unable to be present for the hearing before us because of the short notice. 

18.      By the time the matter came to Court on 31^st October, the Minister had realised that, given the short notice and the lack of opportunity for the Guardian to assess the position, the Court would not be in a position to give its approval to Eleanor remaining there for the entire period of the assessment.  Accordingly, the Minister proposed a short adjournment so as to give time for the Guardian to visit the Scottish Accommodation and report on the proposed placement and for a psychological report on Eleanor (which had been previously ordered) to be carried out and completed by Dr Murray.  We were informed that the Guardian would visit the Scottish Accommodation on 14^th/15^th November in order to assess the placement and discuss the matter with Eleanor and that Dr Murray could attend at the Scottish Accommodation on 11^th November to interview Eleanor and would be able to prepare his report by 17^th November.  Hence the application by the Minister was that the matter should be adjourned to a date shortly after that on which the report from the Guardian and Dr Murray would be available, and that the Court should approve Eleanor remaining at the Scottish Accommodation until the adjourned hearing. 

The Law

19.      Paragraph 4 of Schedule 2 (insofar as material) provides as follows:-

"4. Arrangements to assist children to live outside Jersey

(1) The Minister may:-

(a) with the approval of the court arrange for, or assist in arranging for, any child in the Minister's care to live outside Jersey; and

...

(2) The court shall not give its approval under sub-paragraph (1)(a) unless it is satisfied that:-

(a) it would be in the child's best interests to live outside Jersey;

(b) suitable arrangements have been, or will be, made for the child's reception and welfare in the country in which the child 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 or withhold his or her 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 the child 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...."

20.      It is important to note that we are only being asked at this stage to give the Court's approval to Eleanor remaining at the Scottish Accommodation for the period until the adjourned hearing referred to earlier.  It is only at that hearing that the Court will consider whether to give its approval to Eleanor remaining at the Scottish Accommodation for the period of assessment. 

21.      On the basis of the information before us, we are quite satisfied, given the limited nature of the approval sought, that sub-paragraphs (a), (b) and (c)(ii) of paragraph 4(2) are satisfied.  As to (b) and (c)(ii), Eleanor will remain at the Scottish Accommodation.  Suitable arrangements have been made and we are satisfied that, given the nature of the Scottish Accommodation, it is a 'suitable person' for Eleanor to live with. 

22.      As to (a), we have no doubt that it is in Eleanor's best interests to remain in the Scottish Accommodation until the adjourned hearing.  It is clear that she was not doing well at the Jersey Accommodation and is at risk of significant harm, because of her absconding, drinking, associating with men etc..  Dr Rajpal has recommended an appropriate residential placement out of the Island as being the best course for Eleanor and it is clearly in her interests that there be a proper investigation as to whether the Scottish Accommodation fulfils these requirements.  We are quite satisfied it would not be in her interests for her to come back to the Jersey Accommodation (or Greenfields if a secure placement order was required to protect her) for the next two weeks or so before then possibly returning to the Scottish Accommodation if the Court at that stage approves the Minister's application.  It is far better that she should be given time to settle.  If, on the adjourned application, the Court refuses the Minister's application, we do not believe that any harm will have been done by her remaining at the Scottish Accommodation for the extra three weeks or so.

23.      As to sub-paragraph (2)(d), Advocate Haines confirmed on behalf of the mother that, whilst she reserved her position as to whether she would consent to Eleanor remaining out of the jurisdiction at the adjourned hearing once the Guardian had investigated the position, she agreed that there should be an opportunity for the Guardian to investigate the placement and for Dr Murray to report and that it was best for Eleanor to remain at the Scottish Accommodation for that short period. 

24.      The father was unable to be present at the hearing but Advocate Hall confirmed that, when she had spoken to him the day before, he had consented to Eleanor remaining at the Scottish Accommodation for the time necessary for the Guardian to investigate the position.  We are satisfied therefore that the mother and the father have consented to Eleanor remaining out of the jurisdiction during the period of the adjournment. 

25.      That leaves sub-paragraph (c).  The evidence is that Eleanor consented to going to the Scottish Accommodation on 24^th October but we accept Advocate Tremoceiro's submission that the Court has to consider the position as at the date it is asked to give its approval. 

26.      We have to say that it is unclear whether Eleanor consents to remaining at the Scottish Accommodation or not and it is by no means clear whether she has been told that what is being suggested now is simply that she remain there for the period of adjournment.  She has been sending very mixed messages.  Thus:-

(i)        According to the social worker, she agreed to return for the assessment period on 24^th October. 

(ii)       On 26^th October she sent an email to the social worker in very positive terms saying she was happy with how things were going. 

(iii)      The mother says that she spoke to Eleanor on 28^th October.  Eleanor came across as being angry and said that she did not know why she was placed in Scotland and that she wanted to return home to Jersey. 

(iv)      The following day, according to the mother, Eleanor had a telephone call with her maternal grandmother but did not repeat any of the things she had said to the mother on Sunday, from which we infer that she was at that stage more content. 

(v)       The Scottish Accommodation contacted the Children's Service on 29^th October to say that Eleanor had been upset over the weekend as she had understood from her telephone conversation with the mother that the mother had been unaware of Eleanor's placement in Scotland.  She had also been informed that her grandmother was in bed with stress due to Eleanor leaving the island.  According to the Scottish Accommodation, this had unsettled and confused Eleanor. 

(vi)      On 30^th October, Eleanor had emailed Advocate Tremoceiro saying that she wanted to stay in Scotland and that everything was going well there, although she would like her mother and other relatives to come and see her. 

(vii)     At the hearing, Advocate Tremoceiro said he had spoken to Eleanor that morning and she wished to return to Jersey.  We were subsequently shown an email she had sent to him that day saying that she did not know what was going on, that the social worker had put the phone down on her and that she wanted to come home. 

In the light of these conflicting messages, we are unable to say that Eleanor is currently consenting to remaining out of the jurisdiction at the Scottish Accommodation. 

27.      We turn therefore to consider sub-paragraph (c)(i), namely whether Eleanor has sufficient understanding to give or withhold her consent.  In In the matter of SS (Secure Accommodation Order) [2012] JRC 061, the Court had to consider whether a 14 year old boy should be placed outside the Island.  At paragraph 24, the Court said this:-

"We accept that he would prefer to return to live with his parents, failing which to live with his grandparents.  However, when considering his views, we have noted Dr Willensen's opinion that, because of the damage he has suffered, his emotional development is equivalent to that of an 11 - 12 year old rather than a 14 year old.  In our judgment, 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 to others in due course.  At his age of emotional development, SS cannot be expected to know what is in his best interests when that conflicts with what he would like to happen."   

The Court went on to hold at para 25 that SS was accordingly not of sufficient understanding to withhold his consent. 

28.      We agree that sub-paragraph (c)(i) of paragraph 4(2) must be read in the context of an application for a child in the care of the Minister to live outside the Island and having regard to the purpose of such a proposed move.  The simple act of living outside the Island (without more) would, we suggest, be understood by comparatively young children.  If one were for example to ask, say, an 8 year old whether he wished to live in England with daddy or in Jersey with mummy, we venture to suggest he would understand the concept of living in England and therefore, in a narrow sense, could consent to living in England.  However, we cannot think that the legislature intended that, merely because a child understood the concept of living out of Jersey, that child should be given a veto on such a move regardless of his level of understanding of whether or not such a move would be in his best interests.  We think therefore that the reference to 'sufficient understanding' must be taken as meaning that the child has sufficient understanding of the advantages and disadvantages of any move in relation to her welfare and the implications for her welfare of giving or withholding her consent.

29.      We find that, in her present emotional state, Eleanor does not have sufficient understanding to give or withhold her consent.  It is clear that her view as to whether she wishes to stay or return to Jersey depends entirely on her emotions at the relevant moment she is asked.  If things are going well, she wishes to stay at the Scottish Accommodation; if anything is upsetting her, she wants to return home to Jersey.  That cannot be a proper basis upon which to give or withhold consent, particularly in circumstances where her best interests are clearly served by remaining in the Scottish Accommodation for the period of the adjournment. 

30.      In the circumstances we concluded that sub-paragraph (2)(c) was satisfied in that Eleanor, for the reasons given, does not have sufficient understanding to give or withhold her consent to the proposal that she remain at the Scottish Accommodation for the period of the adjournment.

31.      It is for those reasons that we gave our approval to Eleanor living out of the jurisdiction at the Scottish Accommodation until the adjourned hearing.  We have since been informed that the adjourned hearing has been fixed for 26^th November.  At that stage the Court will be in a position to consider the report of the Guardian, the report of Dr Murray and any other evidence produced in order to decide whether it should give its approval to Eleanor remaining at the Scottish Accommodation for the period of assessment.  At that hearing the Court will also wish to hear from the relevant officers of the Children's Service as to how and why the provisions of paragraph 4 were ignored.  It is of course the failure of the Children's Service to comply with paragraph 4 which has led to the Court having to consider the position after the event and to adjourn the application so that the matter can be properly investigated. 

Authorities

Children (Jersey) Law 2002.

In the matter of SS (Secure Accommodation Order) [2012] JRC 061.