Jersey Unreported Judgments

[2010]JRC118

royal court

(Samedi Division)

29^th June 2010

Before     :

W. J. Bailhache, Esq., Deputy Bailiff, and Jurats Clapham and Morgan.

IN THE MATTER OF R

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

Advocate E. L. Hollywood for the Minister for Health and Social Services.

Advocate D. Gilbert for the Mother.

Advocate M. P. Renouf for the Guardian

judgment

the deputy bailiff:

1.        This is an application by the Minister for Health and Social Services for a full care order in relation to a child known as R.  The Minister contends that R is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to R by the mother.  The allegations in essence are that R has suffered emotional abuse the core reason for which is the mother's addiction to alcohol.  She does not consume alcohol to excess every day and indeed has periods of sobriety which last for up to a month.  There is no suggestion that R is concerned for R's own safety when the mother has been drinking, and indeed the evidence before us was that his or her's primary concern is for the mother's safety.  At the time of the application before us, R spends part of the time at a Children's Home ("the Children's Home"), and part of the time staying at the mother's house.  In practice, it has been left to R to call the Children's Home to state that it was necessary to stay there overnight until the mother has sobered up.  On occasion, R has spent the night at the home of a friend and the friend's mother as opposed to being at the Children's Home.  The ongoing emotional abuse which the child suffers is that it is not possible to predict when R goes home in the afternoon:- i) whether the mother will be at the home; ii) if so whether she will be drunk; iii) whether, if she is drunk, she has other drunken company with her. 

2.        Counsel for the Minister, the mother (who until these proceedings had sole parental responsibility) and the Guardian all agree that the threshold test in Article 24(2) of the Children (Jersey) Law 2002 ("the 2002 Law") has been passed.  The Court has had the benefit of six witness statements sworn by Ms Stark, the social worker with responsibility for R, which were taken as evidence-in-chief.  There was no substantial cross examination on the contents of those statements insofar as they went to whether the threshold test was passed.  In the circumstances, the Court has had no difficulty in concluding that the threshold test was indeed passed, and it has therefore moved on to consider whether any order should be made and if so what type of order.  In that connection the Court has had regard to the principle that R's welfare is the paramount consideration, as provided by Article 2(1) of the 2002 Law; has had regard to the no order principle contained in Article 2(5) of the Law, and has applied the statutory welfare checklist set out in Article 2(3). 

3.        In relation to the question as to what order should be made, the mother rested on the wisdom of the Court.  We did not find that to be particularly helpful, and in future we hope that the parent and their counsel will reflect on these comments before reaching the conclusion that resting on the wisdom of the Court is the right course to follow.  The Court has a duty to reach its conclusion as to what is in the best interests of the child, and its ability to do so must be assisted by views which are expressed by the parent as to what is in the best interest of the child.  In this case, the mother undoubtedly loves her child, and through her counsel informed the Court that she wants what is best for her child.  Her commitment to R is reflected by the fact that she came to Court for the proceedings, which the Court recognises can be a very emotional and uncomfortable process. 

4.        Be that as it may, the rival contentions before us were in effect a submission from the Minister that a full care order was necessary, and from the Guardian that all that was necessary for the time being would be a supervision order.  Accordingly it is necessary to look to the principal reasons why those rival contentions were made. 

Application for Full Care Order

5.        Advocate Hollywood opened by reminding us that there was indeed a substantial difference between a supervision order and a care order.  In that context we were referred to the judgment of Judge Coningsby QC in the case of Re S (J) (A Minor) (Care or Supervision Order) [1993] 2 FLR 919 at page 950 where the judge said this:-

"We tend to look at supervision orders and care orders under the same umbrella because the threshold criteria or 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 s 22 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. 

For completeness, S35(1), with regards to supervision, goes on:-

[While a supervision order is in force, it shall be the duty of the supervisor...]

(c)         "where -

i)      The order is not wholly complied with; or

ii)    The supervisor considers that the order may no longer be necessary,

to consider whether or not to apply to the court for its variation or discharge."

So he has to monitor whether or not the supervision is working properly. 

Then there is the schedule which does contain further material about supervision orders.  It is clear that consent is necessary for the care plan, which does make a difference, although in a care order the carer knows that non-compliance can result in the child being taken away.  Even though that is not likely to happen in practice, the knowledge that legally it can happen must be a useful sanction in obtaining compliance with a care plan, whereas in a supervision situation the consent is needed and the sanction is, I am satisfied, less strong. 

Then there is a provision, of course, to extend the supervision for up to a total period of three years.  In the present case I do not consider the fact of the limitation of three years to be a significant disadvantage to a supervision order and I am not making my decision on that basis. 

Then there is para 8 which requires information to be given to the supervisor and access to be given to the supervisor and that can be enforced by a warrant under s 102.  I accept that that part of the arrangement is enforceable.  But it is the only part which is given a specific sanction.  There is therefore a sense in which the supervision order has less teeth than the care order.  I do take the view from the scheme of the Act as a whole and from the sections which I have read about the care order which place specific obligations upon the local authority that the care order is the stronger order.  It places the local authority in a better position to enforce its requirements. 

It must surely be a strong sanction for parents to know that there is a care order and that if they do not comply the local authority has power to take a child away.  That sanction is not there under a supervision order..."  

6.        Section 22, to which the judge referred is replicated by Article 19 of the 2002 Law.  Section 35(1) is replicated by Article 28 of the 2002 Law.  Accordingly we take the view that the comments of the judge in the case referred to above are helpful in emphasising the difference between the care and the supervision order, and can be transposed for application in Jersey. 

7.        The evidence of Ms Stark, who greatly impressed the Court with her sensitivity and obvious care for R's best interests was that in her view the mother tried to impose appropriate boundaries on R, but was unable to do so.  An example of that was in relation to the imposition of a curfew by which time R was required to return home.  Experience had shown that R did not always keep those curfews, in her view because R could not know whether the mother would be drunk when R returned.  In her view it would be easier to impose and enforce the curfew if a care order were made. 

8.        There was evidence before the Court that there have been a limited number of occasions of truanting by R more recently.  It appears this may only have arisen since R became aware that the Children's Service was going to apply for a full care order.  The Court was informed that R did not want a full care order to be made but Ms Stark said that nonetheless she felt that R would work with her whether the Court imposed a care order or supervision order.  In her view and in order to develop to full potential R needed guidance and boundaries, and the imposition of a care order would enable that better to happen.  In particular, in her view, the care order would enable her to ensure that, when it was necessary for R to be taken to the Children's Home, she had legal authority to ensure that happened in an appropriate way. 

9.        Advocate Hollywood submitted that if a supervision order were made, Ms Stark would be the supervisor.  The drawback of the supervision order was that no parental responsibility would have been given to the Minister.  She pointed out that it would have been easy for the Minister to go with a proposal for a supervision order, for which the Guardian contended, but the Minister was making the application for a care order because that was what was believed by the Minister to be the right course of action.  In that context, she also relied upon other extracts from the judgment of Judge Coningsby QC in Re S(supra) where, at page 957 he said this:-

"I think there may be cases where one can actually isolate a particular situation where parental responsibility may have to be exercised at a moment's notice by the local authority and it is obvious that that is going to be a care order case. 

However I do not believe that is the only approach.  In other words, I do not think that that approach is exhaustive.  It is not necessary, as I understand the relevant parts of the Children Act, to be able to isolate a likely circumstance for exercising parental responsibility before it becomes right to make a care order.  I do not believe that the legislation is as restrictive as that.  I believe that it is an appropriate approach for the court to look at the case as a whole, to look at the gravity of it, to decide what its view is as to the risk of harm to the child (both physical harm as in this case and also emotional deprivation or failure to thrive because of the situation in the home or of some other situation arising (and to decide whether, in the light of the gravity of the case as a whole, the local authority ought to have imposed upon it the extra duties that I have referred to.  If it comes to the conclusion, looking at the case as a whole, that is so, then it should make a care order.  Therefore it is not necessary to be able to put one's finger specifically on some aspect of parental responsibility which might need to be exercised by the local authority". 

10.      Before leaving that case it is to be noted that the judge found that there were serious risks as far as that particular child was concerned, not least because the judge found that the child would always be at risk with the father in the home, and that as that was a case which required very detailed monitoring, more than could be provided for under a supervision order which was not sufficiently frequent and not sufficiently onerous to cover the needs of that particular child, the care order was the right solution rather that a supervision order. 

11.      It was contended by Advocate Hollywood that the biggest concern was with the persons with whom R might associate with in the future, and the imposition of a care order would help in that respect.  Ms Stark absolutely accepted that R was entitled to have his or her views taken into account, but they were not the determining feature - after all, R is under 18 years of age, and although the Court should, on the application of the welfare checklist, pay substantial regard to the child's views, considering R's age, nonetheless the nature of the parenting exercise is that sometimes a parent takes a decision for a child which is in the child's best interests, even though the child may not perceive that at the time. 

Supervision Order

12.      The Guardian, Miss Tracy Goode, also gave evidence before us and we had the advantage of a very full report from her dated 23^rd October, 2009, which was prepared for a hearing in November which in fact was adjourned, and a supplemental report completed on 24^th April, 2010.  In summary, the Guardian took the view that a supervision order would be the best solution at present.  R has said clearly to her that he or she will not co-operate with the Children's Service if a care order is made, and it was a possibility that this was a threat R would carry out.  The fact is that R has run away from the Children's Home on occasion, and that shows that R is angry at times with the Children's Service, and thinks that sometimes the Children's Service are exerting more pressure than they should.  When living with the mother, R never feels in physical danger from her drinking or from her friends.  Her behaviour changes when she is about to start drinking, and R usually is sufficiently perceptive to know this.  R and the mother have a close and loving relationship and R much prefers her cooking to the food which R is served at the Children's Home, although that is adequate.  The Guardian points out that the mother's drunkenness appears to have rendered her incapable for six days out of the last 42, which is not of itself of primary significance but needs to be viewed against the overall background of what has taken place in the last few years. 

13.      In her view, the mother did try from time to time to lay out appropriate boundaries.  R however is able and intelligent, and also very strong willed, and does not always agree.  In her view, there was a risk that R would not co-operate with the Children's Service, and that R was more likely to be at risk and end up on the streets of St Helier late at night.  Therefore the making of the care order in that respect might prove to be counter-productive.  The Guardian took the view that compared with the report that was made in 2009, the position has changed, and R is now showing more maturity.  R now asks for help when it is needed. 

14.      In his submissions to the Court, Advocate Renouf asked us to pay considerable regard to R's age, in accordance with the welfare checklist.  He pointed out that the fact that R has been discharged from Dr. Posner's care was very positive, and that it did appear that the child is now able to cope and is in fact coping with what is undoubtedly sometimes a difficult position.  It was submitted that the Court should not poke a big stick into the family troubles and it would be risky to do so.  Advocate Renouf further submitted that the fact that the Minister accepted the mother's input into R's upbringing in the care plan which the Minister proposed before the Court showed that the Minister intended to provide back-up to the mother and to R and that that was more consistent with a supervision order than a care order.  

Decision

15.      The Court has considered anxiously the options which are available to it.  In particular, the Court recognises that the application brought by the Minister was an entirely proper application to bring, and wishes to commend Ms Stark on her approach and on her commitment to R. 

16.      It is also to be emphasised that leaving aside the question of truanting, which the Court of course does not condone, R has not done anything wrong.  The contrary is true.  Faced with some extraordinarily difficult circumstances for a person of that age, it is clear that R has acted and continues to act with a great deal of maturity and with common sense.  We wish if possible to arrive at a solution to the family difficulties which will encourage R to continue along those lines.  R undoubtedly receives considerable support from the school - and we add that R must continue to attend school regularly, and not allow the domestic situation to compromise an education that will be fundamental to R being able to find employment and to leading a happy and successful adult life.  School will also help R to acquire a range of coping strategies and to become sufficiently confident to know what to do when the mother is incapacitated.  We hope that generally R will continue to recognise that the authorities are there to help and that he or she should not hesitate to turn to them for that help, whether one is talking about the support from the school, or the support from the social worker Ms Stark, or when out of hours and Ms Stark is unavailable, the support from the duty care officer or indeed the Children's Home.  The important thing for a person of R's age facing difficulties is to have someone older to whom they can turn for advice and help, and it is very good that R now shows the maturity to do so. 

17.      As to the stress points in the relationship between R and the mother, and between R and the social worker, we think those are, in part at least, down to the seemingly inevitable tussles which young people have with those who have parental responsibility for them.  When the young person has reached adulthood, he or she frequently appreciates better that the rules which have been put in place by the parent or the Minister, where an interim or full care order has been made, have been put there for his or her benefit, even though it does not seem so at the time.  It is a sign of growing maturity that, even though the young person does not necessarily accept that the rules which are being put in place are sensible, nonetheless he or she agrees to respect them.  Social workers cannot expect to rely, as many parents can, on the natural love and affection which children have for their parents, but R is now old enough to appreciate that social workers generally do not propose rules just to be officious but because they care about the young people in their charge.  In the knowledge that R is likely to read this judgment, the Court hopes very much that these comments will be taken to heart.  The members of this Court have seen too many young people before the courts facing criminal charges, with the consequent very damaging effects on their future lives, where they have found themselves in situations with which they could not cope, and which, had they respected the rules and boundaries which were being put in place, they would have been able to avoid. 

18.      Having close regard to the welfare test and to the case as a whole, as we are charged to do, we do not have any doubt at the moment that a supervision order is the correct order to make.  We note that the supervisor will be Ms Stark, and her obligations, which R must respect, are to advise, assist and befriend R, take such steps as are reasonably necessary to give effect to the order and to keep in mind the need to consider whether or not at any stage to apply to the Court for the variation or discharge of the order as the case may be.  In accordance with paragraph 5 of schedule 3, the supervision order ceases to have effect after one year, subject to any extension which may be made on application by the supervisor.  On the information currently available to us, the Court expects the supervisor to apply for an extension of the supervision order at the end of the 12 month period, but, in accordance with the statute, that decision is for the supervisor. 

19.      The Court wishes to add the following specified requirements, which we do in order to assist R's upbringing:-

(i)        R must meet regularly with the social worker to enable the obligations of the supervisor to be performed - as far as possible this is to provide support so that any issues which may arise from the mother's alcohol use and which could lead to any emotional harm being suffered by R can be addressed and hopefully avoided. 

(ii)       R must continue to attend school to acquire a range of coping strategies and to be sufficiently confident to know what to do when the mother is incapacitated. 

(iii)      R should receive from the social worker factual information regarding relationships, including sexual activity and contraception.  

(iv)      The mother, who will continue to play an important and critical part in R's upbringing, should attend an alcohol programme to support her in her wish to abstain from alcohol. 

(v)       The mother should in addition consider attending a further course on the parenting of teenagers. 

(vi)      The mother should accept regular home visits from Ms Stark, the supervisor. 

(vii)     The mother must allow R to go to the Children's Home if R so wishes.  It is anticipated that this would only arise where the mother has a relapse in her problems with the use of alcohol. 

(viii)    The supervision order also confers power on the supervisor to give directions to R from time to time, requiring R to attend on a person specified in the directions at such time and place as may be so specified. 

20.      The supervision order does not include the powers contained in sub-paragraphs (a) and (c) of paragraph 1(1) of schedule 3 to the 2002 Law.  The Court has noted however that pursuant to Article 28 of the Law it is always open to the supervisor to apply for a variation of the supervision order should circumstances change and that become necessary. 

Authorities

Children (Jersey) Law 2002.

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