Jersey Unreported Judgments

Care proceedings - contact.

[2020]JRC084

Royal Court

(Family)

13 May 2020

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ramsden and Averty

 

IN THE MATTER OF FF (THE CHILD) (CARE PROCEEDINGS)

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

Advocate P. F. Byrne for the Minister

Advocate D. C. Robinson for B.

Advocate E. L. Wakeling for C.

Advocate C. Hall for the Guardian and FF (The Child)  

judgment

the deputy bailiff:

1.        The Royal Court made an interim care order on 18^th March, 2020.  At the end of its judgment the Court expressed the following views:

"46. The Court also, when making the interim care order, expressed the view that if possible the ABE interview should take place, as recommended by the Guardian, within the next two weeks and that if such interview and the further police enquiries yielded no incriminating material as against B, then supervised contact between FF and B should commence.

47. The Court stressed that it made no findings for or against the Applicants or the Respondents at this stage of the proceedings.  Further, if it was not possible to hold an ABE interview, then there ought to be a re-assessment of the question of contact."

2.        Contact between FF and B did not commence as envisaged even though, for matters connected with the current public health crisis, it was not possible to hold an ABE interview within two weeks. 

3.        Accordingly the Court was required to sit again on 23^rd April, 2020 when, during the course of a day the Court considered two applications.  First, the application of the Guardian for an order under Article 27(4) of the Children (Jersey) Law 2002 ("the 2002 Law") that the Court should authorise the Minister to refuse contact between FF and his father B at this time until certain protective measures had been put in place.  That application was refused by the Court. 

4.        Secondly, the Court also considered the application of B for an order that the contact which the Minister planned between FF and B was insufficient and that contact should be more frequent and that the duration of contact should be "fluid, not static" and although it may begin at 10 minutes, each contact session should, if FF is enjoying himself be allowed to continue for "up to 30 minutes". 

5.        After the evidence was given by the social worker in this case, counsel for B and the Minister reached a general agreement as to the way forward in relation to contact and both parties agreed that the Court should make no order on FF's application, which the Court did. 

6.        The purpose of this judgment is to briefly summarise the evidence heard and the Court's reasons for making the orders that it did. 

7.        When it became clear that the current public health crisis would prevent an ABE interview of FF at this time, the Minister, having reviewed the matter, considered that it was appropriate for contact between FF and B to be re-introduced.  For that purpose a contact agreement was agreed between B and the Minister on 3^rd April, 2020.  Pursuant to that agreement it was agreed that contact between FF and B would take place every Tuesday and Friday at 11:00am for 10 minutes, the contact to be audio and visual; the said contact to be supervised by the social worker and FF's foster carers.  The contact would be reviewed following the second contact and thereafter weekly with written observations being provided by the social worker; any changes to contact to be led by FF's needs as assessed by the Minister. 

8.        In fact contact could not commence immediately as, first there needed to be a variation in B's bail conditions.  This took some time but it ultimately occurred when ordered by the Magistrate on 9^th April 2020.  Fortunately FF had not been told that contact with one of his parents was about to start. 

9.        Thereafter contact was prevented from commencing by virtue of the Guardian's dissent to its commencement.  The Minister took the view that to begin contact between FF and B might not be in FF's interest if the Guardian shortly thereafter persuaded the Court that contact was premature. 

10.      We heard evidence from the Guardian and from the social worker.  B was prepared to give evidence but we agreed with his counsel that it was not necessary to do so.  He is keen for contact to resume with FF and has previously given evidence to that effect as set out in the judgment given after the interim care application was determined. 

11.      The Guardian expressed the view that she thought that more work needed to be done to establish FF's early life experiences before contact began.  She referred to a statement made by the acting Guardian on 6^th April, 2020 (the Guardian was unwell at that time) in which she said that she was not averse to contact commencing but she felt that there needed to be further efforts to ascertain whether FF felt physically and emotionally safe.  The acting Guardian expressed the view that his parents might use contact as a way of controlling what FF might say prior to any ABE interview and expressed the view (not supported by the Guardian in evidence) that until the pandemic lockdown was lifted no contact by video link should commence.  At the date of the hearing it was not known when this would be. 

12.      In evidence the Guardian also claimed that the social workers in the case shared her concerns and in fact they had been directed to support contact by senior management against their assessment of FF's best interests.  She said that in order to understand FF's life experiences the social worker should have three to four sessions in person with him or six to seven on a video link. 

13.      She accepted that it was unrealistic to wait until the outcome of the police investigation was known prior to commencing contact as that could be months away.  The Guardian had only managed to speak to FF twice, notwithstanding the fact that she had been appointed over a month before the hearing and in fact only one of those contacts (by video link) was more than momentary and that took place two days before the hearing.  It lasted for 20 minutes.  The Guardian said that she could see FF's face.  He was moving around a lot.  During the course of the conversation FF had showed the Guardian a picture of his parents and he has said "get them here now".  She accepted that it was plain that he wanted to resume contact with his parents as soon as possible. 

14.      The foster parents had told her that FF mentions his parents at bedtime and she accepted that any child of his age would be anxious to see his parents.  She said it would be useful for FF to see CAMHS but it was clear from the evidence it that was not known when CAMHS would find time to see FF or indeed whether they would see FF at all at the moment. 

15.      The Guardian accepted there were various reports compiled in relation to FF's life experiences but she had not read them as they had not been provided to her. 

16.      She repeated the evidence referred to at paragraph 31 of the Royal Court's judgment given in relation to the interim care hearing that parents might give signs and signals that might prevent children from providing information.  The members of the Court indicated that in the context of the contact that was planned - namely a limited amount of time on the video link supervised by the social worker and the foster parent with a child who was described as "hyperactive" - such a concern should not on its own be sufficient to prevent contact. 

17.      She accepted when questioned by the Court that she agreed with the observations of her supervising officer, who gave evidence on her behalf at the hearing on 18^th March 2020, which included the view that if the police investigation had established that B was blameless then FF should return to live with him. 

18.      We then heard evidence from the social worker. 

19.      She started working with FF on 19^th March, 2020.  She said that he was doing very well.  She had had seven conversations over video link and one face to face visit.  He had settled very well with the foster parents who were extremely experienced and had been working in this capacity for 24 years. 

20.      She said in every call bar one FF had asked to see his parents.  He said he wanted to see them "right now".  She said she had read various assessments and notwithstanding the fact that the ABE interview could not now take place owing to the crisis, her view was that contact should go ahead.  She said "I feel very strongly that he needs to have contact with his father".  She added "I feel extremely strongly that his contact should be up and running". 

21.      She said that the contact would be supervised by her in its early stages and that it would begin with 10 mins telephone contact twice in the first week and then in week two progress to video contact twice a week, each session lasting 10 minutes.  The concern expressed by the advocate for B that calls would not be truncated artificially mid-flow would be dealt with responsibly by the social worker, she said that she would ensure that contact would end at a natural time so telephone calls and video calls might last up to 15 minutes. 

22.      At the beginning of the third week there would be an assessment about increasing contact and the social worker said "My hope would be that contact would be increased - in terms of days and duration.  Three times a week for 30 minutes is achievable.  I am confident that we will get to that." 

23.      Plainly any increase in contact would only occur at FF's pace consistent with his needs. 

24.      She specifically denied that she had been put under any pressure by senior staff to agree to contact - her view throughout had been that contact should begin as soon as it was appropriate to FF's needs and she thought it should be promoted now.  

25.      We were pleased to hear that the social worker had already had sessions with B as to how he should deal with his emotions during contact (he has not spoken to FF for a while so could become upset) and also deal with difficult questions. 

26.      We accepted the social worker's evidence in its entirety, including her assertion that she had not been put under any pressure to support contact. 

The Court's decision 

27.      The Court could understand why the Guardian made this application but it was unfortunate there had not been further and better communication between the parties prior to gathering for a hearing which ultimately was not necessary. 

28.      With regard to the evidence that we heard, and accepted, the only proper course for the Court was to refuse the application by the Guardian and make no order on the application on behalf of B as the Minister agreed that contact should resume and, if appropriate, increase as explained by the social worker in evidence. 

29.      The Court also felt comfortable with the introduction of contact in the context of extremely experienced foster carers who were well aware of FF's wishes and his needs and were content with what was proposed. 

30.      There was one matter of law that was raised by Advocate Robinson on behalf of B which was to the effect that there was in any event a legal impediment to the Court making the orders sought by the Guardian.  He relied upon the decision of the English Court of Appeal in the case of Re W (a child) (parental contact: prohibition); [2000] 1 FCR 752.  In that case three children had been placed in care and the mother had been granted an interim order in relation to contact with one of the children and the local authority had obtained an order for providing contact at their discretion. 

31.      The Guardian ad litem sought a specific order prohibiting any exercise of the local authorities' discretion to permit staying contact.  The local authority submitted that such an order would be valueless since they could immediately and lawfully circumvent it by agreement with the mother under the Contact with Children Regulations 1991.  The Guardian rejected that submission on the footing that secondary legislation could not be invoked to circumvent the effect of orders made under the statute itself.  The judge at first instance decided the point in the local authority's favour.  The Guardian appealed to the Court of Appeal, the question being whether or not there was jurisdiction under section 34 of the Children Act 1989 (which is very similar to Article 27 of the 2002 Law) to make such prohibitory orders. 

32.      The Court of Appeal held that on its true construction section 34 of the 1989 Act did not create a prohibitory jurisdiction so as to inhibit the local authority in the performance of their statutory duty by preventing contact which they considered as advantageous to the children's welfare. 

33.      The relevant parts of Article 27 are: 

"27. Contact with children in care

(1)       Subject to the provisions of this Article, the Minister shall allow a child in the care reasonable contact with -

(a) the child's parents;

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

(c) where, immediately before the care order was made, a person had care of the child by virtue of an order made by a court of competent jurisdiction with respect to children, that person.

(2)       On an application made by the Minister or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and the named person.

(3)       On an application made by -

(a) any person mentioned in paragraph (1)(a) to (c); or

(b) any person who has obtained the leave of the court to make the application,

the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.

(4)       On an application made by the Minister or the child, the court may make an order authorizing the Minister to refuse contact between the child and any person mentioned in paragraph (1)(a) to (c) and named in the order."

34.       It can be seen that Article 27(1) gives the Minister the power to allow a child in care reasonable contact with, inter alia, its parents.  Further, Article 27(2) permits the Court on an application by the Minister or the child to make such orders as are appropriate in respect to contact with a named person. 

35.      Article 27(3) empowers the Court to make such orders as are appropriate with respect to contact to be allowed between the child and the applicant - often the parent.  However, Article 27(4) is different as it indicates that the Minister or the child (no other party is named) may make an application to the Court for an order "authorising the Minister to refuse contact between the child and any person ... named in the order". 

36.      Accordingly this would appear to indicate that the Court's wide discretion, usually to promote contact under 27(1), (2) and (3) is quite separate and distinct from applications under 27(4) which would be to authorise in principle decisions by the Minister to refuse contact.  This is quite different from, as in this case, asking the Court to prevent the Minister from allowing contact in circumstances where the Minister wishes to promote it. 

37.      This distinction was regarded as significant by the English Court of Appeal in the context of Section 34 of the Children Act which has, for these purposes, identical wording. 

38.      The English Court of Appeal's commentary on the relevant provisions of the Children Act said: 

"In broad outline it will be seen that sub-s (1) imposes on the local authority with a child in care a duty to allow contact.  Subsection (2) empowers the court on an application made by the authority or the child to make such order as it thinks appropriate with respect to the contact which is to be allowed.  Subsection (3) gives the court a similar power in relation to an application made by persons other than the local authority or the child.  Subsection (4) empowers the court to authorise the local authority to refuse contact thus disapplying the duty set out in sub-s (1)."

Thorpe LJ then went on to summarise the effect of the rest of section 34 and then said: 

"The summary is intended to set the scene.  Against that background Miss Hyde repeatedly submitted that since the court is under a duty to promote the welfare of the child therefore the court must have jurisdiction to prohibit contact to a child in care.  That seems to us a non sequitur.  Of course in so far as the court has jurisdiction, in the exercise of that jurisdiction it must put welfare paramount.  But the paramount principle does not help to determine the jurisdictional boundaries.  In our judgment the strongest point for Miss Hyde is the width of the statutory language: see sub-s (2), 'the court may make such order as it considers appropriate' and sub-s (5), 'the court may make an order under this section' and sub-s (7), 'an order under this section may impose such conditions as the court considers appropriate'. 

On the other hand it is in our judgment important to construe s 34 in the context of the statute as a whole and in recognition of the statutory objectives.  Perhaps the most striking reform introduced by Pt IV of the statute was to shift the power from the court to the local authority on and after the making of the care order.  As Butler-Sloss LJ lucidly expressed it in Re L (minors) (care proceedings: appeal) [1996] 2 FCR 352 at 361: 

"The effect of the Children Act is to set aside the former powers of the court in wardship and to remove from the court any continuing control over children after the making of a care order unless or until a further application was made to the court.  On the making of a further application, such as for residence or contact to the child, the powers of the court and the exercise of discretion under s.1 are restored for the duration of the application.  If the care order remains in place, other than by control over contact by virtue of the provisions of s.34, the court has no further part to play in the future welfare of the child, see Re B (children in care: contact) ([1993] 1 FCR 363 at 377). This interchange between the judicial control of children, the subject of applications, and the local authority responsibility for children placed in care under the Children Act, is a difficult and sensitive area.  The point at which the court withdraws from further control over the child and passes the responsibility to the local authority is a matter of the exercise of discretion by the court and will vary with each set of circumstances.  But at some point, if a care order is made by the court, it must hand over the future arrangements for the child to the local authority.  That is not abdication of responsibility by the court; it is acting in accordance with the intention of the legislation.  The Children Act provides for many of the most important decisions, including whether to place a child for adoption to be made by the local authority and therefore there is nothing untoward in the Judge leaving the ultimate decision in the hands of the local authority with whom the child is placed."     

Another legislative objective was to impose upon local authorities a clearer and a higher duty to promote contact between children in care and parents and others having a significant place in their lives.  Taking these two cornerstones of the Pt IV provisions in conjunction we are of the opinion that the primary purpose of s34 is to impose obligations and restraints on local authorities with children in care.  The obligation is the duty to promote contact.  The restraint is upon their discretion to refuse contact unless they have first persuaded a judge that such a refusal is necessary.  The power of the judge to supervise and control is the power to require the local authority to go further in the promotion of contact than the authority themselves consider appropriate.  The other power is to monitor the local authority's proposal to refuse contact in order to ensure that their proposal is not excessive.  We do not believe that the legislation ever intended the jurisdiction of the judge under s34 to be deployed so as to inhibit the local authority in the performance of their statutory duty by preventing contact which the local authority considers advantageous to welfare.  Although we recognise the width of the statutory language we are of the opinion that the construction for which Miss Hyde contends invades unduly and unnecessarily what Butler-Sloss LJ described as a difficult and sensitive area." 

39.      We regard the extract from the judgment that we have underlined above to be an accurate interpretation of the Court's powers and the limits to those powers under Article 27, although we did not hear extensive argument on the issue. 

Authorities

Children (Jersey) Law 2002.

Re W (a child) (parental contact: prohibition) [2000] 1 FCR 752

Contact with Children Regulations 1991

Children Act 1989