Jersey Unreported Judgments

Care proceedings.

[2022]JRC159

Royal Court

(Family)

2 August 2022

Before     :

J. A. Clyde-Smith OBE., Commissioner, and Jurats Ramsden and Christensen.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF KK (THE CHILD) (CARE PROCEEDINGS)

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

Advocate E. L. Hollywood for the First Respondent.

Advocate B. J. Corbett for the Second Respondent.

Advocate E. L. Wakeling for the Third Respondent.

Advocate D. C. Robinson for the Fourth Respondents.

judgment

THE COMMISSIONER:

1.        The issue in this case is whether the Court should make a final care order in respect of the Third Respondent ("the Child"), who is aged 4, in favour of the Minister or a residence order (potentially combined with a supervision order) in favour of the fourth Respondents ("the Godparents").  There is no issue over the threshold criteria for the making of a care order or supervision order being met or over the placement of the Child with the Godparents.  The First Respondent ("the Mother") and the Second Respondent ("the Father") accept that they are unable to parent the Child.

The background

2.        There is a long history of the involvement of Children's Service with the Child, who was subject to a Child in Need plan from 18^th November 2020.  The concerns at that time related to possible domestic abuse and the parenting styles of the parents, including lack of stimulation and shouting at the Child.  Throughout the Child in Need plan, the Mother and Father were separated.  During this period, the Mother was provided with extensive parenting support, including access to courses and the support of a family support worker. 

3.        Whilst the parents were separated, the Father is reported to have attended the Mother's residence when it suited him, often under the influence of alcohol.  The Mother reports that she would ask the Father to leave which resulted in them shouting at each other in front of the Child.  The Mother reported that her relationship with the Father was very acrimonious. 

4.        Between November 2020 and 25^th August 2021 there were numerous reports from various professionals that the home environment was in such a poor state that it was placing the Child at risk of significant harm.  On 5^th August 2021 there was a fire at the family home which started because the Mother left cooking unattended.  On attendance at the flat the landlady described the flat as "disgusting" and added that although the Mother had only occupied the flat for approximately five weeks, she could not believe the state of the flat.  Photographs taken by the attending fire crew evidence that conditions of the flat were hazardous, unhygienic (with rotting food present on the floor) and not suitable for a child to be living in. 

5.        The Child's home environment has consistently been reported to provide limited stimulation for the Child, including no or limited toys, no cot and the Child not being able to play or jump at home.  The Child was sharing a bed with the Mother which did not have any sheets.  Notwithstanding his age, there were numerous reports of the Mother shouting or screaming at the Child.  The Mother was provided with support and guidance to stop this; however, reports continued to be received.  In February 2021 concerns were raised by nursery staff that the Child was repeatedly attending in soiled clothes, appeared unwashed and his face, hands and nails were very dirty.  There were also concerned about the Child's diet and the Mother's ability to manage the family finances. 

6.        The Mother was provided with significant support and guidance under both Child in Need and Child Protection plans.  However, she was unable to implement this guidance to bring about change in her parenting.  The Mother required repeated prompting to try and resolve issues (e.g. with getting the Child to bed, her housing and income support) and often relied on professionals to try and resolve these issues.  

7.        On 25^th August 2021, the Mother confirmed that she was unable to cope with caring for the Child and agreed for him to be placed in the case of the Minister under Article 17 of the Children (Jersey) Law 2002 ("the Children Law").

8.        An interim Care Order was granted to the Minister on 22^nd September 2021.  The Court directed the parties to instruct a neuropsychologist to undertake a psychological and neuropsychological assessment of the parents and for a parenting assessment to be completed by an independent social worker ("ISW"). 

9.        The ISW filed her parenting assessment in respect of the Father on 29^th December 2021.  In summary, the ISW opined that the Father cannot parent the Child at present.  The ISW filed a parenting assessment of the Mother on 3^rd January 2022 but she required the outcome of the psychological assessment before being able to provide a conclusion.  

10.      Dr L Jeffes, a Chartered Clinical Psychologist, filed her psychological report on the Mother on 15^th  January 2022.  Dr Jeffes opined that the Mother presents with complex psychological difficulties best understood within the framework of Borderline Personality Disorder along with anxiety and emotional discomfort when drawn into sustained intimacy with others.  Dr Jeffes concluded that the Mother is not able to parent a child, now or in the foreseeable future, a conclusion accepted by the Mother.  On 31^st January 2022 the ISW confirmed that she did not recommend that the Child be placed in the care of the Mother.  

11.      Dr Jeffes filed an assessment of the Father on 15^th March 2022.  She concluded that the Father presents as a man suffering from anxiety and communication difficulties and meets the DSM 5 criteria for Alcohol and Disorder in the Moderate Range.  Dr Jeffes raised significant concerns with regard to his capacity to provide the Child with a secure, safe environment in which his basic needs would be met.  The Father has also been subject to PETH (blood alcohol testing) and hair strand testing which confirm that the Father was consuming alcohol excessively between December 2021 and March 2022.  

12.      A very positive Connected Persons Assessment of the Godparents was completed by a Supervising Social Worker from the Fostering Service on 28^th February 2022, and they were approved by the Fostering and Adoption Panel on 15^th March 2022.  Contact between the Godparents and the Child commenced shortly after this and the Child was placed in their full-time care on 20^th May 2022.  Following the completion of the Connected Persons Assessment it became known that the Godparents were expecting their first child, due to be born in November of this year.  Accordingly, the Supervising Social Worker produced an addendum to her assessment dated 25^th May 2022 confirming that in her belief, they had the time, space and skills to support both the Child's development and the needs of a newborn baby. 

13.      On 17^th May 2022 the Minister filed a care plan acknowledging that the Child's needs were best met by the placement with the Godparents and proposing that, as the Child had only recently been placed with them and given the pregnancy of the Godmother, the Child remain in the care of the Godparents under a final care order with permanence to be sought through a residence order in favour of the Godparents or a freeing for adoption order at a later date. 

14.      In her report of 22^nd June 2022, the Guardian, whilst supporting a care order in favour of the Minister, did not agree to the care plan referring to freeing for adoption and requested a change in the care plan.  The Minister accordingly filed a revised care plan on 23^rd June 2022, which now reads as follows: 

"7. The Minister proposes that [the Child] remain in the care of [the Godparents] under a Care Order and after a period of time of at least twelve months, is allowed to pass before the permanence through an alternative order being made. The Minister anticipates that this will be best achieved by a Residence Order with additional supporting orders, but will consider all options for permanence at a later stage."

15.      Following receipt of legal advice, the Godparents filed an application for and were granted party status and on 27^th June 2022 they filed an application for a Residence Order.

16.      The Court heard evidence from the Social Worker, the Supervising Social Worker and the Guardian. 

Threshold

17.      We will not set out the threshold document prepared by the Minister, as we have said enough in the background to the case to show that in the view of the Court, the threshold criteria under Article 24(2) the Children Law is met.  This is agreed by all of the parties.  That background inevitably paints a negative picture of the Mother and the Father as parents, and in fairness to them it needs to be acknowledged that whilst they accept that they cannot parent the Child, they clearly love the Child and there exists a warm and loving relationship, in particular between the Mother and the Child as demonstrated by the many contact logs to which we were referred by Advocate Hollywood.  

Welfare stage

18.      In terms of the welfare stage, the Court took into account the principles set out in paragraph 8 of the judgment of the Court of Appeal in Re F and G (No 2) [2010] JCA 051 as follows:

"For this purpose it is well established that:-

i.         The child's welfare is the paramount consideration (Article 2(1) of the 2002 Law)

ii.        Any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of the child (Article 2(2)).

iii.       The Court must have regard to the seven matters ("the welfare checklist") set out in Article 2(3).

iv.       The Court must not make an order unless it considers that doing so would be better for the child than making no order (Article 2(5)).

v.        Before making a care order the Court must scrutinise the care plan prepared by the Minister for the child including scrutiny of the Minister's proposals for contact and invite the parties to comment on them (Article 27(11))."

Position of the parties

19.      The Minister seeks a final care order.  Notwithstanding the very positive assessment of the Godparents by the Supervising Social Worker, it was too early for any kind of permanent order to be made in their favour, essentially for the following reasons:

(i)        The Child had only been placed with the Godparents since 20^th May 2022, a matter of weeks, and therefore in fairness to the Child, his placement with them had not been tested. 

(ii)       The Godparents were expecting their first child in November of this year, an event which realistically could well impact upon the Child's placement with them. 

(iii)      The Godparents need assistance over regulating contact between the parents and the Child, there being an indication that the Godmother found communications from the Mother, certainly at one stage, overwhelming.

(iv)      Under a care order the Godparents would continue to receive the support of the Fostering Service and access to training that the Fostering Service could provide. 

(v)       Proceedings have been on foot now for nearly a year and needed to be brought to an end. 

20.      The Guardian supported the position of the Minister, but in the alternative, would agree to an adjournment of the application for a final care order till early next year, so that the placement of the Child with the Godparents can be further assessed under the interim care order. 

21.      The parents and Godparents all resisted the making of a final care order, which they said would leave the Minister in control, with no ability on the part of the Godparents to seek a discharge of that order other than making an application for a residence order at a later date, which would place the onus upon them.  The Godparents felt that they would have to live under the scrutiny and pressure of a care order when they had done nothing to warrant such scrutiny.  Such an order was not the least draconian order that could be made, was intrusive to the family and would put unnecessary pressure upon the placement.  

22.      There was a concern on the part of the parents and Godparents that with such an order, the Minister could remove the Child from the Godparents and apply to have him freed for adoption, based in part upon what was said in the first care plan that referred expressly to freeing for adoption and on certain comments made by the Independent Reviewing Officer, who the Godparents perceived as being in favour of adoption. 

23.      The assessment of the Godparents had been very positive and they had demonstrated their commitment to the Child.  They enjoyed a wide support network and there were no grounds for fearing that the placement would break down.  The Godparents, therefore, applied for a residence order (and potentially, a supervision order which they said they would welcome to assist them on the issue of contact) with the support of the parents, subject to conditions that would entrench the position of the Godparents and be close to the form of English order known as a special guardianship order.  Special guardianship had been introduced in England to provide permanence in the care of children who cannot return to their blood families but where adoption is not appropriate.  The purpose is to place the child with the special guardians permanently, the order lasting until the child is 18 years of age (see paragraph 35 of In the matter of P-S (Children) [2018] EWCA Civ 1407).

Discussion and decision

24.      Advocate Hollywood was concerned that making a final care order in these circumstances was setting bad law, using her words by giving a lease of life to what would in effect be short-term final care orders. The Minister was proposing that the Child remain in the care of the Godparents for twelve months when permanence would be considered.  She said that in reality this was a short-term order and there is nothing in the Children Law which allows for a time limited final care order. 

25.      This issue was considered in the case of In the matter of P-S in which the children concerned had not lived with the proposed special guardians and the judge at first instance was concerned that there should be someone in charge of the process of their move to their new home and to control the contact regime, and he therefore made what he described as short-term final care orders rather than special guardianship orders.  Sir Ernest Ryder, Senior President, agreed (at paragraph 39) that if, and in so far as, the judge needed more time to ensure that the relationship of the special guardians with the children was such that it was in the interests of each child to make a special guardianship order, that would have been an appropriate basis on which to adjourn the proceedings.  He said this at paragraph 33:

"The concept of a short term care order within which the placements could be tested was raised by the judge as a justification for making full care orders. Aside from the welfare merits of the orders, which were not adequately reasoned, the concept of a short term order is flawed.  There is no mechanism for a care order to be discharged on the happening of a fixed event or otherwise to be limited in time.  The exercise of parental responsibility by a local authority cannot be constrained once a full care order is made other than on public law principles of unlawfulness, unreasonableness and irrationality. The judge should have reflected on the fact that if the local authority did not in due course apply to discharge the care orders themselves it would have been incumbent on the proposed special guardians to do so...."

26.      It is argued on behalf of the parents and Godparents that this is close to the position here where the Minster is seeking what is in reality a short-term final care order in order to test the placement with the Godparents.  It was difficult, it was said, to see how the current care plan is choate in light of the uncertainties, notably where it refers to the need for a care order effectively to be tested out, rather than being conclusive.  In Re S: Re W [2002] UKHL 10, the Court was conscious of the delineation of the boundary of responsibility between the Court and the Minister, as explained by Lord Nicholls at paragraphs 94 and 95:

"94     More difficult, as a matter of legal principle, are cases where it is obvious that a care order is in the best interests of the child but the immediate way ahead thereafter is unsatisfactorily obscure.  These cases exemplify a problem, or a 'tension' inherent in the scheme of the Children Act 1989.  What should the judge do when a care order is clearly in the best interests of the child but the judge does not approve of the care plan?  This judicial dilemma was described by Balcombe LJ in Re S and D (Children: Powers of Court) [1995] 2 FLR 456,464 perhaps rather too bleakly, as the judge having to choose between the lesser of two evils'.

95       In this context there are sometimes uncertainties whose nature is such that they are suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application.  The uncertainty may be of such a character that it can, and should, be resolved so far as possible before the court proceeds to make the care order.  Then, a limited period of 'planned and purposeful' delay can readily be justified as the sensible and practical way to deal with an existing problem."

27.      Where there are circumstances which can and should be resolved before the Court proceeds to make a final care order, it was argued on behalf of the parents and Godparents that it was appropriate to make an interim care order, for such an order constitutes "purposeful delay".  An interim order may be appropriate where, for example, there is too much flux within the case to enable the making of a final order. In Re H (children) (care order: placement for adoption) [2011] EWCA Civ 1218, a distinction was drawn between:

"...giving the local authority free rein to implement their care plan and approving that care plan.  If welfare is truly to be treated as the paramount consideration before a care order can be made, then the court must not finally dispose of the matter when the facts are not as clearly known as can reasonably be expected.  The essential question is whether the court has a sufficiently clear picture of the way forward that the court [can test] the inherent uncertainties that lie in the path down which the child is to be taken.  The child's well-being demands that the court is satisfied by the local authority's proposals, and demanding as much certainty as is reasonably possible of attainment is no more than fulfilling the court's duty. There is inevitably a fine line to be drawn between requiring that degree of satisfaction and an over-zealous investigation and supervision of the local authority plan."

28.      It was argued that the current care plan leaves too many questions unanswered if the Minister seeks the assessment of the Godparents to be further evaluated.  If that is the position of the Minister, then the care plan should not be approved at this stage.

29.      We note that in the case of Re S: Re W, the Sir Ernest Ryder went on to say at paragraph 97:

"Frequently the case is on the other side of this somewhat imprecise line.  Frequently the uncertainties involved in a care plan will have to be worked out after a care order has been made, and while the plan is being implemented.  This was so in the case which is the locus classicus on this subject: Re J (Minors) (Care Plan) [1994] 1 FLR 253.  There, the care plan envisaged placing the children in short-term foster placements for up to a year.  Then a final decision would be made on whether to place the children permanently away from the mother.  Rehabilitation was not ruled out if the mother showed herself amenable to treatment.  Wall J said, at 265A:-

'There are cases, of which this is one, in which the action which requires to be taken in the interests of children necessarily involve steps into the unknown ...provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the Court is not to oversee the plan but to entrust its execution to the local authority'".

30.      We accept the thrust of the submissions made on behalf of the parents and Godparents that a final care order now is in reality for the short-term purpose of testing out the current placement, with the way forward only being clear to the extent that the placement with the Godparents is to be tested.  Should that test fail or the placement founder for any reason, then the plan is simply to consider all options. It is, as the authorities say, a fine line, but we agree that the placement with the Godparents is an uncertainty which can and should be resolved before a final order is made.

31.      However, the Court agrees with the Minister and the Guardian that it is too early to grant the Godparents a residence order when the Child has only been very recently placed into their care.  We note in this respect that under Article 10(4)(b) of the Children Law a person cannot apply for a residence order unless the child has been living with that person for not less than twelve out of the fifteen months immediately preceding the application, although we acknowledge that in this case, the parents consent to the Godparents making such an application, as indeed does the Minister (although the Minister opposes the making of such an order). 

32.      In the premises, the Court determines that the right course is for there to be a period of planned and purposeful delay until February next year (the period recommended by the Guardian in evidence) by which time the placement with the Godparents will have been sufficiently tested and if successful permanence can be achieved with a residence order in their favour.  During this period, the interim care order will remain in place and the Minister's application for a final care order and the Godparents' application for a residence order will stand adjourned. 

33.      Counsel are invited to attend upon the Bailiff's Judicial Secretary to fix a date in or around February 2023 for a final hearing and we invite the Minister to put forward directions to ensure that the Court will have before it, inter alia, further advice on the making of a residence order and potentially a supervision order.  During this period, the Godparents will continue to receive the support of the Fostering Service and the benefit of any relevant training that might be made available.  Under an agreement dated 23^rd May 2022 the Minister has delegated much of the parental responsibility to the Godparents and it is envisaged that this will continue for the duration of the interim care order. 

Contact

34.      At the moment, the Child has twice weekly contact with the Mother for 1½ hours and weekly contact with the Father for 2 hours.  The Mother proposes that contact should continue at least at that level going forward, but adjusted after 1^st September, when the Child goes to school.  As part of her support for a residence order in favour of the Godparents and as an adjunct to it, the Mother seeks a defined contact order in these terms, so that she can continue to develop a strong bond between her and the Child and so that the Child will know that she is his mother and the importance of her presence in his life.  The Father also wishes his weekly contact to continue at the same level.

35.      In the care plan, and assuming a care order, the Minister proposes that supervised contact should reduce to once a fortnight for two hours for each parent, with an update given to the parents once a fortnight on the week where there is no contact.  That level of reduced contact is supported by the Guardian, who points out that the contact is for the Child, who must feel that his home is with the Godparents.  In evidence, she advised that contact could progress to a supported handover by the Children's Service or Milli's Separated Family Centre and from there to unsupervised contact to be arranged directly between the parents and the Godparents.  The Minister indicated agreement with this proposal.  

36.      In order to support the placement with the Godparents, which it is hoped will be permanent, we envisage that the Minister will put these proposed reduced contact arrangements into place now but in the light of the interim care order continuing there is no requirement, certainly at this stage, for a defined contact order.   

Authorities

Children (Jersey) Law 2002.

Re F and G (No 2) [2010] JCA 051.

In the matter of P-S (Children) [2018] EWCA Civ 1407.

Re W [2002] UKHL 10.

Re H (children) (care order: placement for adoption) [2011] EWCA Civ 1218.