Jersey Unreported Judgments

[2009]JRC076

royal court

(Samedi Division)

22^nd April 2009

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Tibbo and Clapham.

 

Advocate E. L. Hollywood for the Applicant.

Advocate R. E. Colley for the First Respondent.

Advocate M. E. Harris for the Second Respondent.

Advocate T. V. R. Hanson for the Third Respondent.

judgment

the deputy bailiff:

1.        This is an application by the Minister pursuant to Rule 9 of the Children Rules 2005 ("the 2005 Rules") for leave to withdraw an application for a care order in respect of B.  The Court dismissed the application on 3rd April, which was the day after the hearing.  The Court now gives its reasons.

Factual Background

2.        The family consists of 7 children, namely C (21), G (20), D (nearly 19), Ca (18), B (16), Ba (13), and O (11). The father is KG.  The mother died of cancer in September 2006.  The father has had sole care of the family since then and, at the time of the intervention of the Children's Service, all of the children were living with the father.

3.        The family has been known to the Children's Service from shortly after C's birth.  According to the report in support of the application for an emergency protection order (to which we shall refer shortly), there have been a total of 19 referrals to the Children's Service including 5 regarding financial support or accommodation, 5 relating to domestic violence against the mother, 2 relating to the children being left home alone, 3 relating to sexual issues, 2 regarding physical chastisement of the children by the father and 1 about the state of the home conditions.

4.        The detailed background is set out in the first and second reports of Ms Tanja Tinari, a social worker in the Children's Service, filed in support of the applications for an emergency protection order and an interim care order respectively.  It is not necessary for the purposes of the current application to refer to these in any detail.  Suffice it to say that, during the summer of 2008, O made allegations of physical abuse within the family on the part of the father and in the latter part of August 2008, Ca complained to the police that she had been repeatedly sexually abused by the father from the age of 5 until she was 14.  This was not the first allegation of sexual abuse against the father.  In 2005 D had alleged similar abuse against her by the father, although she subsequently withdrew these allegations.  The home environment was known to be extremely chaotic with no routines, poor hygiene and loud and aggressive communication.

5.        The Children's Service were informed that the police proposed to arrest the father in respect of Ca's allegations.  The Minister therefore applied for an emergency protection order under Article 37 of the Children (Jersey) Law 2002 ("the Law") in respect of the three younger children.  This was granted by Commissioner Clyde-Smith on 3rd September, 2008.  Since this was put into effect Ba and O have been with foster carers and B has been at La Preference Children's Home.  The father was arrested on 4th September, and has since been charged with the rape of Ca.  He has been remanded in custody since then and his trial is due to take place in June 2009.  Ca has been in England since these events.

6.        Subsequently, on 23rd September, 2008, an interim care order was made in respect of B, Ba and O and these orders have been renewed on a regular basis since then. 

7.        The Court has received a number of reports from Ms Tinari.  It has also received a detailed psychological report from Ms Lisa Wolfe, an experienced chartered clinical psychologist from England as well as a report from Ms Leonora Green of the NSPCC, who has been appointed as guardian of the three younger children ("the guardian").  Because there is a reasonable measure of agreement on the way forward, we do not need to describe events since the making of the interim care order in great detail.  Initially, there were considerable difficulties.  Perhaps not surprisingly, the family was suspicious of the actions taken by the Children's Service and there was very little cooperation.  Secret contact took place between the siblings, B gave up the course that he was studying at Highlands and there were a number of occasions when he drank to excess.

8.        However, since January 2009, a combination of the dedicated work of Ms Tinari, the responsible and mature attitude shown by C and B's own efforts have resulted in a considerable change.

9.        As a result C has been approved by the Fostering Panel as a Kinship Foster Carer for B.  A Pathway Plan has been developed.  The objective is that B should in due course move to live with C full time.  However that can only be achieved in a phased manner having regard to B's best interests.  To begin with B started going for dinner with C and G on Tuesdays and Thursdays of every week.  From 5th March, he began staying overnight for three nights a week from Friday evening until Monday morning.  So far all has gone well during these visits.  The original plan was that, by the end of May, if all went well, B would be spending 7 nights a week with C but, in the light of the report from Ms Wolfe, it is now felt that this might be a little too soon.  B will be 17 on 27th May, 2009.  No care order may be made after that date and any care order which is made before then will expire a year later when he is 18.  It is in the light of these factors and the progress which has been made that the Minister now applies to withdraw the application for a care order, preferring to rely on a package of voluntary arrangements which the Children's Service is putting in place to support B.  The father supports the application and C is neutral, resting on the wisdom of the Court.  However the guardian opposes the application and accordingly we must consider where B's best interests lie.

The legal test

10.      Under Rule 9 of the 2005 Rules, the Minister's application for a care order may only be withdrawn with the leave of the Court.  The equivalent provisions in England are to like effect and accordingly English authorities are of assistance.  Re F (a Minor)(Care Order: Withdrawal of Application) [1993]  2 FLR 9 makes it clear that withdrawal of an application for a care order is a matter which has to be considered as carefully as any other application under the relevant legislation in relation to children.

11.      In London Borough of Southwark v B [1993] 2 FLR 519 Waite LJ said at 573:-

"The paramount consideration for any court dealing with a r 4.5 application is accordingly the question whether the withdrawal of the care proceedings would promote or conflict with the welfare of the child concerned.  It is not to be assumed, when determining that question, that every child who is the subject of care proceedings derives an automatic advantage from having them continued.  There is no advantage to any child being maintained as the subject of proceedings that have become redundant in purpose or ineffective in result.  It is a matter of looking at each case to see if there is some solid advantage to the child to be derived from continuing the proceedings."

12.      In Re N (Leave to withdraw care proceedings) [2000] 1 FLR 134, Bracewell J refused an application to withdraw care proceedings on the basis that the evidence needed to be tested in Court.  In passing she said this:-

"I recognise that  courts should be slow to differ from careful decision-making from a local authority and should take into account the reluctance of a local authority to continue with proceedings when they do not wish to have an order.  However, once the application has been made, the decision whether to proceed is that of the court and not that of the local authority, guardian or any other party.  I accept that any party opposing (which in this case is the guardian) must advance solid cogent reasons."

The judge went on later in the judgment to say the following:-

"The local authority and the parents rely on the evidence that L is not suffering any harm currently and therefore, even if concerns exist, they argue that there should be a wait and see policy with no court proceedings, voluntary monitoring and help in the knowledge that should L suffer any harm in the future fresh proceedings could be commenced.  The reports all show that L is not currently at risk and any risk would only arise in the medium to long term.  The local authority argue that this does not justify proceedings now and they rely on the current quality of care as justifying withdrawal.

I do not accept that argument.  The law does not countenance, where there is real risk, waiting for a potential harm to actually occur before taking action.  That is not the objective of the second limb of S31.  The background facts have to be found and then the question arises whether on those proved facts there is a real risk of harm in future.  The second limb is not only concerned with the immediate future.  In my judgment it encompasses the capacity of parents to provide appropriate care throughout childhood.  The past is often the best prediction of the future and here there is evidence to be tested which if found established would give rise to the real possibility of future harm to L."

13.      The Court must of course also bear in mind the 'no order principle' which is encapsulated in Article 2(5) of the Law which provides as follows:-

"Where the court is considering whether or not to make one or more orders under this Law with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."

Submissions

14.      As well as the reports referred to earlier, the Court has received written and oral submissions on behalf of the Minister and the guardian.  Ms Tinari and the guardian have also given oral evidence. 

15.      The Minister argues that a care order is not necessary.  Miss Hollywood referred to Article 21 of the Law which obliges the Minister to give advice and assistance up to the age of 21 to any child who was previously looked after by the Minister.  This would apply to B.  She argues that a Leaving Care Plan has been developed as described in the reports.  Although Ms Tinari would gradually disengage after the father's trial (she made it clear that she would remain fully involved until then) a Leaving Care team led by Ms Grace Little would be in place to give B the required support.  Services would also be available to assist C in fulfilling a parenting role.  The existence of a care order would make no difference in practice to what the Children's Service would be offering to B and C by way of support.  Ms Tinari felt that B was not at risk of significant harm at present because of the engagement of both C and B with the Children's Service.  For example, B had applied to Highlands College for a different course, namely one on construction, which he hoped to begin in September.  C had accompanied him to the interview a few days before the hearing. 

16.      Ms Tinari emphasised that B would be 17 on 27th May.  At that age a care order could not compel B to comply with the Children's Service any more than he was doing at the moment.  The police had indicated that, due to his age, they would not be able to remove B against his will from anywhere he chose to stay, unless it could be shown that he was at immediate risk of significant harm.  In short, the no order principle was applicable because there would be no real benefit from a care order.  Conversely, there was a risk that the imposition of a care order would have an adverse effect on B's positive working relationship with the Children's Service.  If B were to disengage from the current process for any reason, there would be concern for his emotional wellbeing and development.

17.      The guardian is critical of certain decisions of the Children's Service in the past.  She clearly finds it difficult to understand how it was thought appropriate for the children to be left in the sole care of the father following the mother's death, notwithstanding the previous allegations of sexual and physical abuse by the father and the report of the psychologist Ms Emsley in 2005 to the effect that the father presented a risk to persons under the age of 18 and should not reside with children.  However, those matters, whilst important, are not directly relevant for our decision today.

18.      The guardian considers that it would be a mistake to allow the Minister to withdraw the application for a care order.   She thinks that a full care order should be made.  She points to the fact that B is emotionally immature and presents as anxious, unconfident, lacking in self esteem, lacking in independent living skills and with a risk of being led into problematic peer relationships via naivety and a desire to fit in.  She asserts that there are too many uncertainties in what is a very fluid situation.  As an example, she points to the fact that, only a matter of days before the hearing, the content of the report from Ms Wolfe caused the Children's Service to rethink the rate of progress towards B spending 7 nights a week with C.

19.      She considers that there is a risk of significant harm in at least two respects.  The first is that, although she too admires C for the very responsible and mature attitude which he has shown since January, the fact remains that he is only 21, he has no previous parenting experience and he has issues of his own as outlined in Ms Wolfe's report.  Despite C's best efforts, there must be a real possibility of a breakdown in the level of care and support that he can offer B.  Secondly, the forthcoming trial of the father will place an enormous strain on the family regardless of the outcome of the case and all the siblings are likely to be looking to C for support.  Furthermore, if the father were to be acquitted, a real issue would arise as to what steps, if any, should be taken to safeguard B's welfare. 

20.      She argued that there were other outstanding matters which required attention before a decision could be taken that B should be living full time with C.  For example, there was no bedroom for B at present; he had to sleep on the sofa.  This was not appropriate.  Although the Housing Department indicated that 3 bedroom accommodation could be made available, there was a problem with rent arrears that had to be sorted out before a move could take place.  There was also an issue about the level of contact between B and Ba and O.  The guardian was also concerned that things were not going quite as well as the Children's Service believed.  Thus B had recently suffered a weight loss and had a dishevelled and unkempt appearance.  He appeared to spend every day with D and her child whilst C and G were at work and there appeared to be a lack of structure or development in his life. 

21.      She believed that there was no downside to making a care order.  In her conversations with him, B had indicated that he was not fussed whether there was a care order; what he was concerned about was the amount of time he could spend at C's house rather than at La Preference.   She did not think there was a material risk of B reacting adversely to the making of a care order.  Conversely, the existence of such an order would enable the Minister to intervene more quickly and easily in the event of any untoward event occurring and would also make clear the obligation of the Minister to promote and safeguard B's welfare in a way that went beyond the obligations imposed under Article 21.

22.      We should add that, with the agreement of all the parties, we met with B in chambers.  We were pleased to have this opportunity and we have considered very carefully what he said to us.  In essence, his attitude as expressed to us accorded with what he had said to the guardian.  He said that he was not bothered one way or the other whether a care order was made.  What he was concerned with was the amount of time he spent with C as compared with that spent at La Preference.  He did not wish there to be any reduction in the number of nights which he spent at C's house and he looked forward to the time when he could spend 7 nights a week there, although he appeared to accept that this had to be achieved at an appropriate rate.  He also said to us that he wished to see more of Ba and O and that he very much hoped that he would be able to undertake the construction course at Highlands commencing in September.

Decision

23.      We have considered very carefully the arguments put forward by Ms Tinari and Miss Hollywood but we have concluded that B's interests would best be served by not acceding to the application.  Essentially, our reasons are those put forward by the guardian as summarised above.

24.      We would summarise those reasons as follows:-

(i)        We agree that the situation is extremely fluid.  We repeat our admiration for all that C has achieved since January but the fact remains that he is only 21, he has a life of his own to live, he has no previous parenting experience and the contents of Ms Wolfe's report must also be considered.  Furthermore, the trial of the father will impose enormous strains on the family regardless of its outcome; and if he is acquitted, some very difficult issues will arise.  The decision in Re N emphasises that the risk of significant harm is not concerned only with the immediate future.  The medium to long term must also be considered.  In the light of the various uncertainties and possibilities which exist, we cannot agree with the Minister that there is no risk of significant harm.

(ii)       We do not agree that the voluntary arrangements which the Minister has put in place will be just as effective as a care order.  We do not for a moment doubt that the Children's Service will do what it says in relation to these arrangements.  However, the fact remains that the responsibilities and obligations of the Minister are very different where there is a care order from where he is acting to provide advice and assistance for a child under Article 21.  If no care order is made, the only person with parental responsibility for B will be the father.  Given the uncertainties and possible difficulties in the future to which we have referred, we do not think that would be a desirable situation.

(iii)      We accept that, as B will shortly be 17, the enforcement of a care order is a very different matter from where one is concerned with a young child and that discussion and persuasion are likely to be the most effective routes rather than compulsion.  But we do not agree that there is no difference between the situation where a care order exists and where one does not.  The fact is that B was 16 when the emergency protection order and the interim care order were obtained and we think that, if an emergency were to occur within the next year or so, the Minister would be in a stronger position to protect B's best interests with a care order than without one.

(iv)      We agree with the guardian that there is comparatively little downside risk to the making of a care order as compared with the risks of no care order existing after B is 17.  B's observations to us corresponded with those which he had made to the guardian.  We see no reason why the excellent relationship which has been established between Ms Tinari on the one hand and C and B on the other should be adversely affected by the existence of a care order.  After all, all the progress which has been made over the last few months has taken place whilst an interim care order has existed.

(v)       Ultimately, we must stand back and consider what is in B's best interest, which is the paramount consideration.  Given the particular circumstances of this case, we think that conferring upon the Minister the parental responsibility which accompanies a care order offers the best prospects of advancing B's welfare and minimising the risk of his suffering significant harm. 

25.      It was for these reasons that we refused the Minister's application to withdraw his application for a care order.  It follows that the application for a full care order must come on for hearing before B's 17th birthday.

Authorities

Children Rules 2005.

Children (Jersey) Law 2002.

Re F (a Minor)(Care Order: Withdrawal of Application) [1993]  2 FLR 9.

London Borough of Southwark v B [1993] 2 FLR 519.

Re N (Leave to withdraw care proceedings) [2000] 1 FLR 134.