Jersey Unreported Judgments

Care proceedings - applications for a supervision order and residence order

[2020]JRC112

Royal Court

(Samedi)

10 June 2020

Before     :

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

 

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

Advocate C. R. G. Davies for the First Respondent.

Advocate M. R. Godden for the Second Respondent.

Advocate M. J. Haines for the Third Respondent.

Advocate H. J. Heath for the Fourth and Fifth Respondents.

judgment

the deputy bailiff:

1.        On 12^th May 2020 the Court determined a number of applications in relation to GG and HH who are aged 8 and 4 years respectively.  We now give reasons for our decision. 

2.        The parents of GG and HH are A and B who are unmarried and in their 20s.  A is the mother and B is the father.  C, in whose favour we made a residence order in relation to GG and HH, is the maternal grandmother. 

3.        The applications before the Court were an application for a supervision order made by the Minister in relation to GG and HH, for a residence order in relation to GG and HH in favour of C and for an order giving B parental responsibility.  All the applications were granted by the Court, although the application for parental responsibility on the part of the father was contested by the mother, A. 

4.        We heard evidence from the social worker, F, who was the social worker responsible for the family between October 2019 and March 2020; J the current social worker; and H a senior supervisor from the Fostering and Adoption Service.  We also heard evidence from the father and from the Guardian. 

The Minister's application for a supervision order

5.        Originally the Minister was seeking an interim care order in relation to GG and HH.  The father and the mother separated not long after HH was born and their relationship was a difficult one owing to problems that both parents experienced with alcohol, occasions when the father was violent to the mother and, since their separation, long periods when there was little or no communication between them. This led to the father having very infrequent contact with the children for a period of approximately three years until GG and HH went to live with their maternal grandmother, C in the autumn of 2019. 

6.        The mother has accepted that she is currently unable to care for her children.  Owing to previous difficulties with alcohol both GG and HH became looked after children under Article 17 of the Children (Jersey) Law 2002 ("the Law") on 7^th September 2017 and were first placed with their maternal grandmother, having been living with her from 14^th August 2017. 

7.        In January 2019 the mother was admitted to Silkworth Lodge for several weeks and we heard some evidence to the effect that the level of her alcohol misuse has reduced since then and certainly over the past few months.  GG, the older boy, is aware of his mother's alcohol misuse.  It troubles him and prevents him from wanting to live with his mother. 

8.        After the mother was discharged from Silkworth Lodge on 15^th February 2019, she indicated that she would like to resume care of the children.  This occurred with the consent of C and the Children's Service and the children returned to the care of their mother on 12^th April 2019.  The mother found the period during which the children stayed with her difficult.  Ultimately, during August 2019, the mother decided that she could no longer cope with the children and returned them to C.  The mother suffers from a long history of mental health challenges and on 21^st August 2019 reported suicidal ideation.  When these proceedings were commenced, the mother was under the care of the adult mental health team, suffering from anxiety. 

9.        Although the mother has made efforts to overcome her difficulties with the support of the relevant agencies, these efforts have sometimes been sporadic and F said in evidence that the mother was not able to prioritise the interests of the children.  The children returned to the full-time care of C on 22^nd September 2019 and this is the "relevant date" for the purposes of considering threshold as, since that date, they have lived with their maternal grandmother, her husband and their family, pursuant to Article 17 of the Law. 

10.      Although we needed to satisfy ourselves that the threshold criteria for making an order pursuant to Article 24(2) of the Law were met, and we were so satisfied, we note that all parties agreed that the threshold criteria were met. 

Threshold

11.      As to threshold, we found that but for the intervention of the Minister in supporting the Article 17 placement with C in September 2019, the children would be likely to suffer significant harm as a result of their mother's inability to care for them consistently.  It is not necessary to set out in this judgment the entirety of the threshold document placed before us but it is accepted and we found that the mother was unable to care for the children owing to significant problems with her mental health and her use of alcohol, both of which may have been exacerbated by domestic violence and abuse within her relationship with the father.  It was accepted that that abusive relationship had come to an end some years ago and there had been no repetition of the domestic violence that featured within it. 

12.      The attempt in 2019 to reunify the family had been unsuccessful, as the mother was unable to provide care to GG and HH as she would have wished.  The mother (and the father) agreed that they cannot provide a home for the two boys and an attempt by either of them to do so would be likely to result in the children suffering significant harm.       

13.      The Court commended both the mother and the father for the realistic approach that they took to the question of threshold, and the fact that they were prepared to put their children first in accepting that children would be far better cared for by C. 

14.      The father accepted that his role in the children's lives had not been consistent and that for long periods, although he said that he had wanted to see his children, he had not done so. 

The evidence of the social worker (F)

15.      F was responsible for the Children's Service's relationship with the children between September 2019 and March 2020.  She said that, initially, the mother would see her children infrequently when they were living with C.  This had left GG in particular "confused".  We note from the assessment prepared by F in October 2019 that the mother had only seen GG and HH approximately five times in six weeks and "on some occasions these contacts had been as short as five minutes, on other occasions [the mother] has failed to arrive for pre-arranged contact or been late.  [The mother] has also suggested that she has the boys overnight, however this would be at her friend's home with her friend and her child.  This was not a child focussed plan and not in [GG or HH'S] best interests". 

16.      To be fair to the mother, she was at the time living in a one bedroomed home and some of the assistance, particularly by way of family therapy, that is now strongly recommended for the family was not available.  The mother only attended two of the parenting assessment sessions which she was required to attend in the course of the proceedings.  The father did not attend any - he said this was because they were arranged for when he was at work, but there were at least two occasions when he either did not provide a reason for not attending or attended too late to begin the session.

17.      In autumn 2019, when GG and HH were initially placed with their grandmother, it was observed that GG was "an anxious little boy", and unsettled.  The social worker said that he was "worried about being returned to the care of his Mum".  It was the social worker's firm opinion that GG had suffered emotional harm whilst living with his mother and that no child of his age should be worried about where he was going to live.  As to HH, at that stage the social worker observed him to be "an angry little boy with challenging behaviour". 

18.      However since those observations were made, both boys have settled with C.  There has been a "massive change" simply because they have both been given adequate parenting.  Both boys are now emotionally settled.  The maternal grandmother provides care to a "very high standard".  Indeed, the Guardian in her evidence described that care as being "phenomenal".  Their after school activities are well organised.  The children "have changed.  They are content".  They both want to stay at C's house. 

19.      The children get on very well with one of C's teenage children, a boy with whom they enjoy playing.  They also get on very well with C's husband who is described as being "completely committed to them".    

20.      These positive developments have been observed even though living conditions at C's house are far from ideal.  Although she occupies a four bedroomed rented house, four of C's older children also live there, together with her husband.  The husband is now sleeping on the sofa in the living room and C shares a bedroom and a bed with both GG and HH.  The provision of more suitable accommodation is supported by the Minister.  He has promised to assist in helping the family to secure either better accommodation in the public sector or provide assistance with rent in the private sector. 

21.      A positive change for both parents is that over the last few months (prior to the current public health crisis) both mother and father began to regularly attend the contact sessions offered to them.  These sessions have been generally positive and beneficial for GG and HH. 

22.      Their relationship with their father is in many respects a new one.  The social worker observed "both GG and HH look forward to seeing their father and enjoy the time they spend together". 

23.      The mother has been a little less consistent in her attendance at contact but, again, when she does attend the meetings are observed to be "of good quality and enjoyed by both children".      

24.      The contact, until the onset of the current public health crisis when face time/video contact has replaced direct contact, consisted of both parents having 1.5hrs per week with GG and HH at a location in the community. 

25.      A care order is no longer proposed by the Minister, as C is now prepared to and has sought a residence order in respect of the children.  However, a supervision order for the period of 12 months was sought.  All parties consented to this proposal. 

26.      F said that the purpose of the supervision order was to rebuild relationships within the family with the support and guidance of the Children's Service.  The care plan was written with this in mind. 

27.      We will examine the care plan below.  The Court notes that pursuant to Article 28 of the Law, whilst a supervision order is in force the supervisor shall:

(i)        advise, assist and befriend the supervised child;

(ii)       take such steps as are reasonably necessary to give effect to the order; and

(iii)      where the order is not wholly complied with or the supervisor considers that it may no longer be necessary, consider whether or not to apply to the court for its variation or discharge.

28.      Pursuant to Schedule 3 of the Law, directions may be given to a supervised child specifying where the child is to live and, inter alia, requiring the child to present themselves to a person specified in the direction at such a time and in such a place as may be specified and participate in such activities as may be specified.  Furthermore, with their consent a "responsible person" may, under a supervision order, be required to take certain steps to ensure that a supervised child complies with any requirements. 

29.      In this case, the Court was invited to (and did) confer a power on the Minister under Schedule 3 to give directions to D and E specifying that they live with C and requiring them to, inter alia, participate in any other requirement reasonably in their best interests.  Further, C consented to take all reasonable steps to ensure that D and E complied with the directions given by the Minister and speak or meet with the Minister's representatives as reasonably required, and attend child in need meetings with the Minister and other professionals as required to review GG and HH's plans.   

30.      J the current social worker gave evidence in support of the supervision order, the care plan, and the residence order. 

31.      The Guardian in evidence also supported the making of these orders.  She particularly recommended family therapy as a way of dealing with communication difficulties between the parties, including between A and C.  She recommended that the adult members of the family access "Our Family Wizard" which was an application which could be downloaded on mobile telephones and other devices and was developed with parties with difficult relationships in mind.  It would prevent the sending of aggressive messages and ensure that participants work together to agree a calendar for the children and exchange messages in respect of their needs. 

32.      The Guardian agreed that a lot of hard work needed to be done over the next year.  The father, if granted parental responsibility, would need to understand what it really involved.  The family would need to be offered therapy in order to improve relationships, particularly that which exists between the parents.  The Guardian made the perceptive observation that much of the focus of the evidence was on the needs of the parents as opposed to those of the children. 

33.      As the courts have previously held there is a fundamental difference between a care order and a supervision order.  In the former case the local authority is given parental responsibility for the child and has to undertake the safeguarding of the child.  In the latter case it is another party who is responsible for safeguarding - in this case the grandmother.  In In the matter of O [2011] JRC 226 an extract from the judgment of Coningsby QC in the English case of Re S (J) (A minor) Care or Supervision Order [1993] 2 FLR 919 was cited with approval in which the English Court said:

"20. We tend to look at supervision orders and care orders under the same umbrella because the threshold criteria for the coming into operation of the two is the same.  But when we actually look at the content of the two orders we find that they are wholly and utterly different.  This is because of Section 22 (equivalent to Article 19 of the Law) and because of the passing of parental responsibility.  Supervision should not in any sense be seen as a sort of watered down version of care.  It is wholly different." 

34.      For this reason the Court, during the course of the hearing, queried whether the "care plan" in this case should in fact be titled "supervision plan" in order to keep the difference between the two concepts firmly in mind. 

35.      In In the matter of O the court observed at paragraph 22 that "A supervision order may also be the best way of maintaining and developing the working relationship between Children's Services and the parents". 

The welfare checklist 

36.      Satisfaction of the threshold criteria is a pre-condition for the making of a supervision order but insufficient in itself.  The Court must have regard to the seven matters ("the welfare checklist") set out in Article 2(3) of the Law. 

37.      We now consider these matters: 

(i)        The ascertainable wishes and feelings of the children concerned (considered in the light of the children's age and understanding);

GG is described as a sensitive and clever little boy who understands the proceedings.  He speaks positively about his grandparents, is happy with their care and wants to stay living with C.  HH is too young to understand these proceedings but understands he lives with his nanny and not his mummy.  He is very attached to C and has spent the majority of his life living with his maternal grandmother, only experiencing sporadic care from his mother.  C's understanding of HH's needs is described as being "impressive".

(ii)      The children's physical, emotional and educational needs;

As to GG, his physical needs are met living with C.  He attends medical appointments and is clean, well-nourished and has plenty of exercise.  There are no concerns regarding his emotional development.  He has benefitted from a loving maternal family of which his mother and father are still included by C.  He attends school and is doing well.  As to HH, there were concerns regarding his weight but these have reduced.  His other medical needs are being met.  His behavioural problems have reduced and he is receiving such support as arranged by C as is necessary, including support from CAMHS.  He plays happily.  He is attending a nursery and is receiving support there.  C is very good at involving the mother in parents' evenings, assemblies and Christmas plays for both children. 

(iii)     The likely effect on the children of any change in their circumstances;

Change in circumstance was extensively examined by the Guardian in her report.  She regarded the best of the three options - the children returning to their mother's care, the children living with C and her husband under a residence order with no supervision order - and the children remaining with C and her husband under a residence and supervision order - as being the third one.  We agree. 

In any event the status quo is for the children to live with C and her family, and the children are on any view content there. 

(iv)     The children's age, sex, background and any characteristics of the children which the court considers relevant;

GG is 8 years old, developing well and showing no signs of emotional or behavioural difficulties.  Such adverse experiences as he underwent at a younger age have been significantly offset by the care and nurture he now receives from C and her husband.  HH is 4 years old and has experienced certain difficulties as set out elsewhere, but these are now being managed well in the secure full-time care of C and her husband. 

(v)       Any harm which the children have suffered or are at risk of suffering;  

GG has been exposed to alcohol misuse, domestic abuse and fluctuating adult mental health difficulties which could have had a profound impact on his life outcomes.  The harm that he suffered was significant at the time but has been "quickly repaired", according to the Guardian, by the quality of the care he has received.  If he was to return to the care of his mother then he would be at risk of suffering such harm again. 

The same considerations apply to HH.   

(vi)     How capable each of the children's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the children's needs;

Neither parent is putting themselves forward as able to care for GG or HH.  As observed by the Court, both parents love their children and have positive contact with them.  However, it is clear that C is best placed to cater for the needs of GG and HH. 

(vii)    The range of powers available to the court under this Law in the proceedings in question.

The Court could make both orders sought (a residence and supervision).  The Court could make one order and not the other, or the Court could make no order.  It was plain from the evidence, as summarised above, that the appropriate orders to make in the best interests of these two children were a supervision order in favour of the Minister and a residence order in favour of C.  

The care plan

38.      Finally, having considered the welfare checklist and prior to making a supervision order, the Court must scrutinise with care the care plan proposed by the Minister and, in particular, the proposals, if any, for contact, and invite the parties to comment thereon. 

39.      The final care plan prepared by F dated 9^th March 2020 was drafted prior to the public health crisis which has resulted in what is described as "lockdown".  This state of affairs has prevented much social contact.  When the care plan was drafted GG and HH had contact with their parents, supervised in the community, for 1.5 hours per week.  It was proposed that that contact would develop into unsupervised contact and increased to 2.5 hours and possibly more.  

40.      F said in evidence that she had no difficulty with contact progressing to unsupervised contact fairly quickly.  However, she said that the mother had sometimes been inconsistent in attending contact meetings and the father had in recent weeks not joined video calls - which had replaced direct contact when such contact became difficult.  In evidence, the father said that this was because initially such calls were made to him and when that ceased he was unsure of the social worker's contact details or whether the children would be busy with their grandmother at the time that the call was due to take place.  He said, and we accepted, that he was determined to resume video contact, as organised by C and social workers, and thereafter face to face contact.  J also said that contact should become unsupervised and she also said that by the end of the period of the supervision order she hoped that the family would be able to manage contact issues themselves. 

41.      Although she did not give evidence, in her witness statement C said that she was worried about what was proposed by way of contact.  She is clearly committed to GG and HH having contact with their parents but she was concerned that the mother sometimes did not attend contact or attended late, which left the children disappointed.  As to the father, although the children enjoyed their contact with him, they were often very tired afterwards and she was worried that the father's difficulties in respect of settled accommodation may make it hard for him to accommodate increased contact.  C also said that she felt frustrated that both parents had not completed their parenting assessments as required. 

42.      The provisions in relation to contact were amended and agreed by the parties during the hearing, as reflected in the care plan approved by the Court.  It was agreed that both GG and HH should continue to have video conferencing contact for 1.5 hours each week with both parents and as soon as possible thereafter (subject to a risk assessment in relation to HH to be completed before 9^th June 2020) direct supervised contact to take place with each parent for 1.5 hours per week.  After three such sessions a review will take place where it will be considered whether contact can develop to unsupervised contact and increase to 2.5 hours a week.  The plan expressly provides that this "contact has to be in [the children's] best interests and allow [them] to have a normal family life, whilst maintaining a positive relationship with [their mother and father]". 

43.      It should be kept in mind that now that the children are residing with C pursuant to a residence order, the question of contact is principally one for her to agree with the father and mother, subject to the assistance of the Children's Service.  If the mother and/or father are not content with contact that C is prepared to agree, then they will need to make a private law application for contact to which C will respond.  However it is hoped that such action will be unnecessary. 

44.      The second amendment to the care plan was in relation to the section which dealt with other services to be provided to the parents.  The care plan was amended so as to provide that certain steps should take place in the next four weeks, prior to the first child in need meeting including: 

(i)        the obtaining of medical advice in relation to HH's asthma and the impact of that condition on the re-introduction of safe direct contact;

(ii)       the formulation of a proposal of family therapy which will assist the family in improving relationships between them; building trust, managing conflict and managing the placement's potential so that GG and HH can thrive;

(iii)      considering what support and assistance (aside from financial support) can be given to C to ensure that the family is able to secure more appropriate housing;

(iv)      putting together a detailed child in need plan which will include reference to the assistance required from other agencies, the expectations that the Minister has of the parents and C and the support that the Minister will provide to ensure the success of the placement. 

45.      Subject to these further amendments being made to the care plan, the Court was prepared to approve the same. 

C's application for residence order

46.      As C was not a parent of GG and HH she required leave to make this application which we gave, pursuant to Article 10 of the Law. 

47.      The effect of granting a residence order under Article 13 is that a person who is not the parent of the child shall automatically have parental responsibility for the child whilst the residence order is in force. 

48.      As making a residence order was not opposed by any party it was not necessary for the Court to consider the welfare checklist under Article 2(3) of the Law, nonetheless the Court is required to consider the child's welfare in the broad sense and for the reasons set out earlier in this judgment the Court had no doubt that making a residence order was in the interests of the children in this case. 

49.      When making the residence order the members of the Court expressed their thanks to C for stepping forward to care for these two boys to such a high standard and we repeat those remarks in this judgment. 

The father's application for parental responsibility

50.      If a child's mother and father were married to each other at the time of the child's birth then both have parental responsibility for the child.  If they are unmarried the mother has responsibility unless, owing to a recent amendment to the legislation, he is named on the birth certificate. 

51.      Article 5 of the Law gives no guidance as to the appropriate test that a father must meet in order to acquire parental responsibility.  It was agreed by all counsel that the threshold was relatively low and the Guardian addressed her evidence to the "three strand test" namely the father's reasons for seeking parental responsibility; his commitment to the child or children and the relationship with the child or children. 

52.      That three strand test is borne out by consideration of the case law. 

53.      In LS -v- NS [2007] JLR Note 37, the Royal Court's judgment is adequately summarised by the note which reads:

"On an application by an unmarried father for parental responsibility, the court should consider, inter alia, the degree of commitment he has shown towards the child; the degree of attachment between him and the child; and his reasons for applying. Those factors are merely a starting point, however, and are not exhaustive. All the relevant circumstances should be taken into account and the welfare of the child is paramount. Even if the three factors are established as satisfactory in a particular case, other factors may tip the balance against an order. As parental responsibility confers an important status on a father, it will usually be granted unless clearly contrary to the child's welfare."

54.      In C -v- D [2015] JRC 190A the Registrar adopted various passages from the English Court of Appeal's decision of In Re M (a child) (Parental Responsibility: Welfare Status) [2014] 2 FCR 46, where Ryder LJ said: 

"[15] Where a father has not been registered on a child's birth certificate and he and the mother are unable to make a parental responsibility agreement, a father may acquire parental responsibility by an order made in accordance with s 4(1)(c) of the 1989 Act.  The test to be applied by the court is the welfare test in s 1 of the Act: 'the child's welfare shall be the court's paramount consideration', but because the application is not one of those specified in s 1(4), the welfare checklist in s 1(3) does not apply.  In Re S (Parental Responsibility) [1995] 2 FLR 648 at 652-657, Ward LJ gave the leading exposition on how to apply the test to this decision.  In his review of the authorities which I shall not repeat, the following non-exhaustive factors were extracted which are relevant to this case (which I shall refer to for the purpose of this judgment as the 'Re S (Parental Responsibility) factors'):

(i) The court should take into account the degree of commitment which the father has shown towards the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order. 

(ii) It is a relevant but not an overriding consideration that the court considers the prospective enforceability of parental rights.

(iii) It is important to observe the interrelation between the rights and the status and the exercise of those rights and the restrictions upon the exercise of those rights that exists or that can be imposed.  One of the examples given of this was the 'cruel and callous' behaviour of a father who abducted a child from her mother for a few days who was not granted parental responsibility and other circumstances where a misuse of 'rights' could be controlled by a specific issue or prohibited steps order or in the last resort the discharge of the parental responsibility order. 

(iv) While not wholly irrelevant to each other, a s 8 welfare decision and a decision whether to grant a father parental responsibility and separate and distinct questions to be examined from different perspectives. 

(v) Where a concerned though absent father has established a degree of commitment to his child, there is a degree of attachment between them and his reasons for applying for parental responsibility are neither demonstrably improper nor wrong, then prima facie, it would be in the interests of the child for a parental responsibility order to be made and the court will need cogent evidence that the child's welfare would be adversely affected before considering otherwise.

...

[18] There are clear examples in the authorities of circumstances in which it has been held that the misuse or likely misuse of parental responsibility has been sufficient to lead to parental responsibility being refused where that would be likely to result in a direct interference in the settled care of the care giver or an indirect interference by the undermining of the ability of the care to provide adequate care.  As ever, it is the nature and extent of the misuse that is critical and each case is fact sensitive.  What perhaps should be emphasised is that, while there is no presumption, a parental responsibility order should normally be made on a father's application and it will be a rare case where it is not.  The value judgment of the first instance judge is critical in his or her assessment of whether the status it confers will be misused or abused and if so whether that is sufficient to decline it given the protections that can be afforded by conditions attaching to its use through another s 8 order."       

55.      The Court found the extract at paragraph 15(v) from the judgment of Ryder LJ in Re M of particular assistance as the example given bears a close relationship to the circumstances of this case. 

56.      All the witnesses who gave evidence agreed that the father should have parental responsibility in this case.  The evidence of the Guardian was of substantial assistance to the Court.  She drew to the Court's attention that it was F who had suggested to the father that he seek parental responsibility.  As far as she was concerned the father was not applying for parental responsibility in order to either seek power over the mother, or to further any conflict that he had with the mother.  In her view the father "does not want to upset people.  He just wants the best for the children".  She said that in her view he had not asked for much contact and he just wanted to be part of the decision making process for the children.  He had developed a good relationship with the children and although she understood the mother's concerns in relation to the granting of parental responsibility to the father, she felt that granting his application was in the best interests of the children. 

57.      She made the point that J, the social worker now having conduct of the supervision order on behalf of the Minister, would need to explain to the father what parental responsibility involves. 

58.      The father also gave evidence and said, which we accept, that all he wanted was the best for his boys.  His history of making financial contributions for the benefit of the children to the mother was patchy and we urge him, once he has again obtained full-time employment, to assist when he can in making contributions to C for the benefit of the children.  He also said that he would engage with family therapy and we encourage him to do so. 

Authorities

In the matter of O [2011] JRC 226. 

Re S (J) (A minor) Care or Supervision Order [1993] 2 FLR 919

LS -v- NS [2007] JLR Note 37. 

C -v- D [2015] JRC 190A. 

In Re M (a child) (Parental Responsibility: Welfare Status) [2014] 2 FCR 46