Jersey Unreported Judgments

[2010]JRC130A

royal court

(Samedi Division)

15^th July 2010

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW3 2002

AND IN THE MATTER OF CHILD H

Advocate E. L. Hollywood for the Minister.

Advocate P. S. Landick for Miss X.

Advocate T. V. R. Hanson for the child.

The Guardian appeared in person.

judgment

the commissioner:

1.        On 20^th June 2010 the mother applied for a direction pursuant to Article 30(4) of the Children (Jersey) Law 2002 ("the Children Law") for the child "to be the subject of a residential assessment of the mother"; the need for the application to be so worded will become clear.  The application, albeit for directions, is in practice likely to be of great significance to the mother and to her prospects of being able to care for the child. I therefore reserved my decision.

2.        Article 30(4) is in the following terms:-

"Where the court makes an interim care order or interim supervision order it may give such directions (if any) as it considers appropriate with respect to the medical or psychiatric examination or other assessment of the child having regard to his or her wishes."

3.        The child is the subject of an interim care order and counsel were agreed that I had jurisdiction to give such a direction as a single judge pursuant to the provisions of Rules 13(2) and 17(7) of the Children Rules 2005.

Background

4.        The mother became pregnant with the child in 2009 shortly after the close of Family Law proceedings in which her previous children by two fathers were taken into care.  Threshold statements supporting the application for care orders in respect of these children were agreed by the mother.  The statement dated 19^th August 2009 in relation to the eldest children refers to the likelihood of their having been sexually abused by an unknown number of people over many years, to the mother exposing them to the risk of such abuse, and to physical neglect and abuse.  In the statement of 5^th January 2009 in relation to the younger children, the mother accepted and acknowledged the conclusions of the clinical psychologist, Dr Miriam Silver, a senior consultant clinical psychologist practising in England, as follows:-

"(1)      She could not look back over the past and consider how she would wish it to be different in order to ensure she did not pass on the negative behaviours that she has learnt from her experience of being parented to her children through her parenting."

(2)       She has a mild learning disability and a lack of positive experiences of being parented that make it hard for her to learn new skills and parent differently to how she was brought up.

(3)       She has lacked insight into her children and has failed to recognise that they were showing signs of disturbance.

(4)       She hadn't recognised that children have needs beyond basic physical care of being fed and clothed and having somewhere to sleep.

(5)       she did not recognise potential risks to her children, in terms of her relationships with certain "risky adults"".

5.        In her evidence in the proceedings in relation to the eldest children, Dr Silver told the Court that they were in the top five of the vulnerable 650 children that she looked after.  The judgment of the Court refers to her opinion in relation to all of Miss X's  children in which she said this:-

"Sadly, Miss X has minimal understanding that the children have any needs beyond being fed and clothed and having somewhere to sleep, and even these basic needs have not always been met (though Miss X denies this).  She has no understanding of the importance of feeling valued, understand (sic) and nurtured by a parent, as she has not experienced this herself.  Similarly, she has very little empathy for her children and can be critical, rejecting and dismissive towards them.  Even when the children clearly express distress or disclose abuse she is not able to respond appropriately ... I would conclude that Miss X is not able to understand or meet the needs of a child sufficiently to be the carer of any child."

6.        Having reviewed the deficits in the mother's ability to care for her children, Dr Silver concluded:-

"It would be my view that these deficits have been apparent for at least ten years and that the fact that they remain despite the massive amount of practical support and intervention that has been provided to the family gives a very negative prognosis in terms of her capacity to change."

7.        When, following these proceedings, the mother became pregnant with the child she did not inform the agencies or attend ante-natal classes.  The first the agencies were aware of the pregnancy was when the mother turned up at the hospital in labour.  She refused to name the father, a refusal maintained up until the hearing before me, and is now in a relationship with another man.

8.        The mother suffers from epilepsy controlled by medicine, which she apparently stopped taking during her pregnancy.  She also has stated that she was diagnosed with a brain tumour 1½ years ago which the surgeons will apparently only operate upon if it gets worse.

The current proceedings

9.        The child was born underweight and remained with the mother in the Maternity Hospital.  On 30^th April 2010, the Minister was granted an interim care order.  The care plan approved by the Court made the following recommendations:-

(i)        That the child should be placed in foster care with contact with the mother five times a week in order to continue to promote the attachment between the mother and the child.

(ii)       That a clinical psychologist be appointed to meet with the mother and have access to the papers of the previous care proceedings to consider what changes have taken place with regard to the mother's ability to address concerns and whether she had the capacity to meet the needs of the child.

(iii)      The Children's Service would consider the possibility of placing the mother and the child in a mother and baby unit for a specialist parenting assessment in the UK should the psychological assessment consider this to be a viable option.  A mother and baby unit had been identified that could potentially accept the mother and child at the end of May/beginning of June.

(iv)      If this was not considered a viable option then the Children's Service would be considering a more permanent foster placement for the child.

10.      On the 30^th April 2010, the Court also gave the following directions, inter alia:-

"...

2.        directed the child shall be made party to these proceedings pursuant to Rule 10 of the Children (Jersey) Rules 2005;

3.        directed that Tracey Goode of the NSPCC be appointed as Guardian in respect of the child;

4.        directed disclosure of the papers filed and to be filed in the care proceedings relating to the child including documents as set out in the schedule attached to the Act of Court dated 23^rd April 2010, a copy of which is attached hereto, to the child's guardian;

5.        directed that the parties identify a suitable expert no later than 5th May 2010, with a view to preparing an updated psychological report on the mother;

6.        directed that once a suitable expert is agreed between the parties a joint letter of instruction shall be agreed by all parties within one working day, in default of which the disputed letter will be sent to the court for it to approve a joint letter of instruction;

7.        directed that the papers referred to in direction 4 above, be disclosed to the appointed expert undertaking the report as ordered above;

....

12.      noted the Minister's care plan that if the psychological report of Ms X recommended she attend a residential unit with the child that the minister would be agreeing a residential assessment being directed pursuant to Article 30(4) of the 2002 Law;"

11.      Pursuant to the care plan the child was placed into foster care on 4^th May 2010 and the mother has contact with her five times a week. Subsequently, on 21^st June 2010 the Court appointed Advocate Hanson to act for the child.

12.      The joint letter of instruction was sent to Dr David Briggs, a Clinical Psychologist, and his report of 23^rd June 2010 did not support a residential assessment.

Report and evidence of Dr Briggs

13.      Dr Briggs set out in his report the reasons put forward by the mother for her being able to care for the child, and her understanding of the reasons for her previous children being taken into care.  In his view, there was no intellectual reason why her parenting capacity could not be improved, given appropriate skills, training and with opportunities for the over-learning of new skills and reminders of those skills already attained.  Her capacity to improve her parenting skills would be influenced however by her psychological functioning and character, as well as the infrastructure which supports her:-

"Miss X has an unfortunate heritage.  She describes being exposed to neglectful parenting and to an impoverished maternal role model for the first two years of her life.  Thereafter she was exposed to two years of institutional care within a children's home.  This was not the best start in life.  Whilst she reports having achieved a period of stability in her pre-adolescent years i.e. in the care of Mr & Mrs D and with the primary carer being the foster "mother", that relationship was reported to have turned in her early adolescence.  Miss X described the foster mother as having been unresponsive and relatively emotionally unavailable in her adolescence.  Again the quality of the maternal role model she was exposed to therefore at a fairly crucial stage in her development was poor.

I have noted Miss X's reports of having been sexually abused in adolescence by the male foster carer.  Again this calls into question the quality of family life she was exposed to and not least in terms of her exposure to distorted boundaries, the emotional burden she carried given her victimisation, and the secrecy and negative feelings which will have been associated with that abuse."

14.      In terms of the mother's ability to fulfil the child's or any future biological child's residence and contact needs now, he expressed the following opinion;-

"I believe the various comments I have made above raise significant concerns as to Miss X's ability to meet H's residence needs. I have concerns about her ability to protect H from harm presented by others, including sexual harm.  I have concerns that her parenting capacity is compromised and that her ability to empathise with H, to anticipate, respond to and maintain H needs is compromised. I believe Miss X's capacity for change within a timescale that meets H needs is weak.  I believe the infrastructure which would support her parenting of H is uncertain (I note that Miss X is unemployed, she has neglected her health, she has relatively few effective informal social supports, and the likely progression of her current intimate relationship is uncertain).

It would seem to me to be a considerable experiment in the life of a very young child were we to place H in her mother's care."

15.      With these comments in mind, he believed the risks to the child in being placed in the care of the mother to be as follows:-

"a.       The risk of neglectful parenting, particularly the risk of Miss X being inattentive to H emotional and psychological needs as the child matures and develops.  I would anticipate there would be periods of 'good enough' physical care of the child though on occasions this may slip were Miss X to have other priorities.

b.        I believe there is a risk that Miss X  would fail to protect H from harm, particularly that which may be presented by any adult who is motivated to exploit Miss X's  vulnerabilities and those of H.  As stated there are particular concerns to Miss X's ability to offer protection from sexual harm.

c.        I believe that Miss X would offer an impoverished model of care giving to any child and could expose a child to uncertainty and instability.

The most effective way of managing the risks in this case is for H not to be placed in her mother's care.  I am mindful that it is of extreme importance that decisions are made as to H future as soon as possible, and that she is placed in a secure, stable and loving home where her long term wellbeing is secured.  Ideally this should be achieved within a matter of weeks rather than months.

I do not advocate any package of therapy, support, counselling, skills training or the like in Miss X's case as I believe the timescales for such are not in H interests.  Furthermore the likely prognosis is uncertain."

16.      Finally, in relation to the proposed residential assessment he advised as follows:-

"I do not support the notion of a residential assessment in this case.  I say this because of the following.

It is only relatively recently that significant findings and decisions were made in respect of the older children.

Miss X's behaviour in concealing the pregnancy with H, her reluctance to name the father, and the neglect of her health needs raise significant concerns as to whether she has changed fundamentally.

The infrastructure that would support Miss X's parenting of any child i.e. beyond a residential assessment is uncertain and possibly impoverished.

I believe Miss X's capacity for change is compromised.  In part this is by virtue of her heritage.  This includes her being neglected in infancy, exposed to institutional care in pre-school years, and once placed in foster care being subject to sexual maltreatment, alongside the relative neglect of her emotional and psychological needs by the foster 'mother' in adolescence.

I have no quarrel with the notion that Miss X  may be able to offer care to an infant child.  I concede that within the confines of a residential assessment unit and under the special forms of structure and support available to her that she may evidence periods of good enough care of H.  Further she may appear to be responsive to prompts and guidance thereby raising hopes that she may benefit from support and guidance across time.  My concern however is that by its very nature a residential unit in its structure offers both explicit and implicit prompts and continual reminders of parenting responses.  It is an environment which is free of the day to day pressures that a parent faces in their local community.  Within such a setting Miss X would also be free from the distraction of her relationship with her current partner.  In some ways this would present her with a period of respite and support from the uncertainties of her own life.  However once removed from the residential setting Miss X's life would change and matters would be much more uncertain.

As stated above I have significant concerns about Miss X's capacity to change within a timescale that matches H needs.  I anticipate that as H matures the nature of the demands that she places upon Miss X will change and much more sophisticated and higher levels of parenting skills will be required, something I fear which Miss X cannot provide.

I believe a residential assessment in this case will simply delay matters.  I do not believe H should be placed in her mother's care.  The issue of whether Miss X could attend to H needs in the special environment of a residential assessment unit and respond to prompts given there as to the care of her infant daughter is significantly different to that of whether she will sustain full and proper care of her daughter across time.  This is something which I fear she will be unable to do and for the various reasons outlined above.

Miss X's capacity for change is not within a timescale that is compatible with H needs."

17.      Mr Landick put to Dr Briggs in cross-examination that the delay envisaged by the residential assessment (3 months) was not material in the life of such a young child. Dr Briggs disagreed.  In the early months he advised, key attachments and experiences are built and the quality of those attachments in the early years is crucial to a child's development; conversely, interruption in the child's care and those attachments was harmful.  The sooner the child was cared for by a permanent carer the better.

18.      Dr Briggs agreed that ordinarily a relationship between a mother and child should be the presumption, but only if it was "realistic, credible, safe and in the interests of the child."  In view of the very difficult and recent history involving the mother's earlier children, he did not agree that in this case the Court should err in favour of a relationship with the mother.

19.      Not proceeding with a residential assessment was not to pre-judge the issue that would be before the Court when it considers a final care order.  In his view there was already sufficient information available to the Court to make the decisions that would be placed before it.

20.      The mother's conduct during the pregnancy - not disclosing it, failing to maintain and check her own health needs and not disclosing the father's name - were significant markers, in his view, which were direct echoes of the concerns in the previous care proceedings.

21.      Mr Landick drew Dr Briggs' attention to the serious case review in relation to the previous care proceedings which Dr Briggs had not seen before and which refers at paragraph 7.28 to certain criticisms of the agencies involved and the mixed messages which were apparently given to the mother over the years.  Whilst accepting that those matters may have contributed, he had to go back to the underlying problems with the mother.  He maintained his strongly felt opposition to a residential assessment.  The Court would only get very limited information from such an exercise and would be left with the uncertainty of what would happen beyond that assessment.  Certainly the mother would perform in part when under residential assessment, but what happens when she is back in the community without those prompts?  The concern here is with the child's long-term care.

22.      Accepting that one child, by definition, was easier to look after than several , his view, expressed with sadness, was that one child was too much for this mother, who he strongly believed had fundamental difficulties.

The evidence of the guardian

23.      Whilst delayed in the commencement of her work by the late appointment by the Court of Mr Hanson, the guardian had considered the relevant documentation and was able to express a view to me, notwithstanding that she had not yet undertaken her meeting with the mother (scheduled for later that day) or seen her with the child (which she intended to do over the next two weeks).  She supported the recommendation made by Dr Briggs that there should be no residential assessment and agreed with the opinions that he had expressed.  She thought it was unlikely (although possible) that anything would come from her meetings with the mother and the child that would cause Dr Briggs or her to change that recommendation.  The evidence in relation to the mother's inability to look after her previous children was overwhelming and real and significant changes needed to have been demonstrated before a new pregnancy was embarked upon.  The mother did not appear from her conduct during the pregnancy to have learned from the lessons of her previous children and there were simply too many unknowns at the moment.

Submissions

24.      When addressing the Court following evidence, Mr Landick was instructed to and did reveal the name of the father.  The father has not been informed.  Mr Landick's written submissions had been formulated on the basis that there would be no input from the guardian.  Without such input he submitted that the mother would be denied a fair trial, contrary to her rights under Article 6 of ECHR. As it transpired I did receive input from the guardian. His more general written submission rested on Article 8 of ECHR, namely the right to respect for private and family life.  The Court had said on many occasions that it was preferable for children to remain with their biological parents if possible.  The mother was not asking for the child to be returned to her care at this stage, but simply to be given the opportunity to show that she had the capability to properly care for the child by undertaking a longer and more detailed assessment.  Dr Briggs' findings were based on his review of the documentation in the care proceedings and his interview of the mother, but he had not been properly able to assess her ability to care for the child which would be possible during the twelve week stay at the residential unit set up for that purpose.  The benefit of exploring whether there is any possibility that the child could remain with her biological mother outweighed the marginal detriment of delaying the matter by three months while the mother undertook a residential assessment.  Every effort should be made to allow the child and mother to have a family life in accordance with Article 8 of ECHR.

25.      In his oral submissions, Mr Landick did not voice any criticism of Dr Briggs' report and opinions, save that in his view Dr Briggs had been over cautious in his approach and on that ground, he invited me to depart from his recommendation that there should be no residential assessment.  Lessons had been learnt by the mother from the previous care proceedings and the support now available to mothers in Jersey was much improved.  There was accordingly less risk.

26.      Mr Hanson agreed that the mother's Articles 6 and 8 ECHR rights were engaged.  In his view this led essentially to a cul-de-sac in that the child's rights were similarly engaged and her interests were being articulated before the Court by both the guardian and her lawyer.  Both Miss Hollywood and Mr Hanson drew my attention to the case of Yousef v The Netherlands (2003) 1 FLR 210 where the European Court considered Article 8 of the ECHR and held that where Article 8 rights were at stake, the child's rights must be the paramount consideration. If the balancing of interests were necessary, the interests of the child must prevail.

27.      It is relevant to note that Article 30(4) of the Children Law empowers the Court to give directions where it considers appropriate with respect to an examination or assessment "of the child", not of the parent or anyone else; hence the manner in which the mother's application was framed.  The equivalent English provision (namely section 38(6) of the Children Act 1989) was considered by the House of Lords in the case of Re G (Interim Care Order: Residential Assessment) 2005 UKHL 68.  I draw the following from the leading judgment of Baroness Hale of Richmond:-

(i)        The principal purpose of this article (which needs to be read in conjunction with Article 30(5)) is to enable the Court to control, and therefore to be able to limit the number and type of examinations or assessments that a child subject to care proceedings should be required to undergo.

(ii)       The provision enables the Court to obtain the information it needs, but also enables the Court to control the information gathering activities of others; but the emphasis is always on obtaining information.

(iii)      A fortiori the purpose of the article cannot be to ensure the provision of services either for the child or the family.  It is not always possible to draw a hard and fast line between information gathering and service providing.  Some information can only be gathered through the provision of services:-

"It may be necessary to observe the parents looking after the child at close quarters for a short period in order to assess the quality of the child's attachment to the parents, the degree to which the parents have bonded with the child, the current parenting skills of the parents, and their capacity to learn and develop." (Paragraph 66)

(iv)      It cannot be a proper use of the Court's powers under the article to seek to bring about change:- 

"Where the threshold criteria are in issue, it must be recalled that these are phrased (in s 31(2)) in the present tense: that the child 'is suffering or is likely to suffer significant harm'; and 'that the harm or likelihood of harm is attributable to' the quality of actual or likely parental care or to the child's being beyond parental control.  Where the threshold is found or conceded but the proper order is in issue, the welfare checklist is likewise focussed on the present, for example, in s 1(3)(f): 'how capable each of his parents ... is of meeting his needs'. The capacity to change, to learn and to develop may well be part of that.  But it is still the present capacity with which the court is concerned.  It cannot be a proper use of the court's powers under s 38(6) to seek to bring about change." (paragraph 67)

28.      As made clear by Lord Scott (at paragraph 7) the main focus must be on the child and (at paragraph 14) even if a  programme of therapy or treatment for the mother was sought (although no such programme is sought by the mother in this case) in order to give her the opportunity of change so as to become a safe and acceptable carer for the child, it would not fall within the article, notwithstanding that it would be valuable and influential in enabling the court to decide whether a care order in respect of the child should be made and if the purpose were to be achieved it would very greatly benefit the child.

Decision

29.      I agree with Miss Hollywood and Mr Hanson that applying these principles, no residential assessment of the child should be ordered as the Court is unlikely to gather any relevant information from it.  The mother's lack of parenting skills are amply evidenced by the previous and very recent care proceedings in which all of her children were taken into care and in which she agreed that they had all suffered significant harm.  According to the evidence of one expert in those proceedings, three of her children were the most damaged children that she knew of in Jersey.  As Dr Briggs conceded in his report, within the confines of a residential assessment unit and under the special forms of structure and support that would be available to the mother, she may evidence periods of good enough care of the child and appear to be responsive to prompts and guidance.  The Court will be concerned, however, with her care once removed from that residential setting.  The mother needs to change but Dr Briggs advises that her capacity for change is not within a timescale that is compatible with the child's needs.  In any event, it would not be an appropriate use of the Court's powers under Article 30(4) to seek to bring about that change. 

30.      My only reservation is as to whether I should await the guardian's interview with the mother and her seeing the mother and child together in the unlikely event, as the guardian put it, that something would arise from that process that might lead to a change in the recommendation. Mr Hanson submitted that in that unlikely eventuality, the guardian would draw it to the attention of the parties and there could be liberty to the mother to reapply. I accept that submission. Whilst I am sure the guardian would draw any such matter to the attention of the parties, I think it fair to direct her to do so immediately she has completed the interview with the mother and her observations of the mother with the child. If she does so then the mother has liberty to bring her application back to the Court.

31.      On that basis I decline to exercise the Court's powers under Article 30(4) of the Children Law as requested by the mother.

32.       I request counsel to give consideration to any further directions that may be required to ensure that this matter proceeds to a final hearing so that the same can be considered when this judgment is handed down.

Authorities

Children (Jersey) Law 2002.

Yousef v The Netherlands (2003) 1 FLR 210.

Children Act 1989.

Re G (Interim Care Order: Residential Assessment) 2005 UKHL 68.