Jersey Unreported Judgments

[2011]JRC100

royal court

(Samedi Division)

16^th May 2011

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Cornu and Nicolle.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF A, B AND C (

IN THE MATTER OF V

Advocate D. C. Robinson for the Minister.

Advocate P. S. Landick for the Mother.

Advocate A. C. M. Pinel for the Father.

Advocate M. J. Haines for the Fifth Respondent.

judgment

the commissioner:

1.        On 14^th April, 2011, the Court granted the Minister a full care order in respect of A, a 13 year old girl. 

2.        A was admitted into care with the voluntary consent of her parents on 13^th July, 2010, and has remained in a family placement with her half sister, F (aged 25) since that time.  With the consent of the parents an interim care order was made by the Court on 29^th July, 2010. 

Threshold criteria

3.        The parties had executed a schedule of agreed threshold findings by which they agreed that the threshold criteria in Article 24 of the 2002 Law had been met in respect of A and that a full care order should be made. 

4.        Mr Robinson referred us to the case of Devon County Council-v-S and others (1992) 2 FLR 244 in which it was held that although there was an overriding judicial duty to investigate the parties' agreed terms by consent, the depth of any investigation must reflect the consensus reached between the parties to litigation and that the taking of oral evidence at some length on both the interim and substantive applications was inappropriate given the general consensus. 

5.        We therefore heard evidence briefly from Justine Cook, a social worker from the Children's Service, and from the Guardian.  We also had the benefit of forensic psychological assessments of the parents by Ruth Emsley, a child and family psychological assessment by Dr Bryn Williams and a cognitive assessment of the mother by Dr Alice Simon. 

6.        The Court was satisfied on the balance of probabilities that at the relevant time (namely when protective measures were put in place in July 2010) A was suffering or was at risk of suffering significant harm attributable to the care given or likely to be given to her by her parents.  In the circumstances we do not think it necessary to set out the nature of that harm. 

The welfare test

7.        The Court went on to consider whether or not an order should be made applying the principles as set out in paragraph 8 of the judgment of Beloff JA in Re F & 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) 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) (ditto). 

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

(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) (ditto).

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

8.        A did not wish to be involved in the proceedings and was content for the Guardian to represent her interests, working with Mr Haines.  She had remained absolutely consistent that she wished to live with her half sister F, who in turn wished to have her long term care.  Both parents supported that wish. 

9.        Initially, the Minister proposed that A be made the subject of a residence order but it was considered necessary in consideration of A's best interests to seek a full care order.  Like any teenager, she was challenging the boundaries that F was putting in place and there was a concern that the mother was not as supportive of F's role as she should be, potentially undermining her position.  Whilst under Article 13(2) of the 2002 Law a residence order would give F parental responsibility for A, that responsibility would be shared with the mother whereas under Article 26(1) a care order gives the Minister the power to determine the extent to which the mother may meet her parental responsibility; thus the Minister would be in a position to support F as against the mother should that be necessary. 

10.      In addition F needed the support and guidance of a supervising social worker from the fostering team which could only be put in place through a care order and by F being approved as a kinship carer, which approval was obtained on 1^st April, 2011.  As the Guardian made clear in his report, this is the time when A needs the maximum level of support.  The Guardian and the parents and indeed A herself supported the making of a full care order.  We concluded that it was the only proper order we could make. 

Contact

11.      The proposals for contact set out in the care plan needed amendment in two respects. 

Contact with the father

12.      On 7^th April, 2011, A had, through a friend, disclosed that she remembered her father sexually abusing her.  Justine Cook and Tim Rowe, from the Public Protection Unit, went to see her the next day and it was clear she was very reluctant to discuss the matter at all.  She stated that it happened on one occasion when she was about 5-6 years old and although she could remember what had happened, she did not want to discuss it with them.  Given her very clear reluctance to talk further, and the lack of substantive information, it was not considered possible to proceed with a video interview and thus the Public Protection Unit could take the matter no further. 

13.      In more recent times A had seen little of her father, but on 2^nd March, 2011, had requested a meeting which took place, supervised by a family support worker, on 28^th March, 2011.  Judging by her report, that meeting had gone well and it was anticipated that A would wish to see her father again.  This subsequent allegation, which cannot be investigated further, presented the Minister with some difficulty, as indeed it did the father, who strongly denied any such misconduct.  However, to his credit, he agreed an amendment to the care plan proposed by the Minister as follows:-

"The Children's Service are aware of an allegation made by A that raises ongoing concerns regarding the father.  The Children's Service will not actively promote contact unless it is determined to be in A's best interests."

14.      The Guardian was content with that addition, but went further in seeking a voluntary undertaking from the father to be given to the Court not to contact or communicate in any way with A by text, telephone or any other form of communication. 

15.      Mr Pinel had advised the father against the giving of such an open-ended and all encompassing undertaking, which he felt was an over-reaction by the Guardian to the recent allegation, any breach of which would expose the father to penalties for contempt of Court.  He informed us that the father had seen A once in October 2010 in the presence of F and had been in telephone contact with her.  However, he had been requested by the Children's Service not to make contact with her unless she requested it and had abided by this.  She had called him once briefly at Christmas.  His position was that he did not wish to force the issue of contact with A and would only see her if she wanted to.  An undertaking can only be given to the Court voluntarily and the Court could not therefore take that issue any further.  However, it approved the amendment to the care plan. 

Contact with siblings

16.      A has two younger sisters (the 3^rd and 4^th respondents), both of whom were born with cerebral palsy and one of whom, B resides at Oakwell Respite Centre.  B sees her sister C at Oakwell every two weeks and A chooses whether to attend those contact sessions, although it is clear that she does not like going there, particularly at weekends.  The Guardian stressed the importance of contact between all three siblings and questioned whether more imaginative arrangements could not be put in place by the Children's Service for contact away from Oakwell.  An amendment to the care plan was agreed as follows:-

"The Children's Service will positively encourage contact between A and B and C, taking into account the wishes and feelings of each child and what is in the best interests of each child at any given time.  A will be given the opportunity to have contact with B and C at least fortnightly, which will be subject to review."

17.      We shared the concerns of the Guardian in relation to contact between the three sisters and approved this amendment to the care plan. 

Conclusion

18.      Thus the Court made a full care order having scrutinised and approved the care plan and contact arrangements as amended.  In doing so, it expressed its appreciation, which we reiterate, for the hugely important role F is playing in the life of A.  Caring for any teenager can have its challenges but it is clear that she is doing an excellent job, for which she is to be commended. We encourage her in that role and are comforted by the knowledge that through the care order she will have the guidance and support of the Children's Service.  We also expressed our appreciation to the parents for their cooperation in the process and for consenting to the proposals that were so clearly in A's best interests. 

Authorities

Children (Jersey) Law 2002.

Devon County Council-v-S and others (1992) 2 FLR 244.

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