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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of B (Care Order) [2012] JRC 023 (27 January 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_023.html Cite as: [2012] JRC 023, [2012] JRC 23 |
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Care proceedings - application for the implementation of a care plan.
[2012]JRC023
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Before : |
J. A. Clyde-Smith, Esq., Commissioner and Jurats Fisher and Kerley. |
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Between |
The Minister for Health and Social Services |
Applicant |
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And |
A |
First Respondent |
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C |
Second Respondent |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF B
Advocate C. Davies for the Minister.
Advocate B. Corbett for the First Respondent.
Advocate J. W. R. Bell for the Second Respondent.
judgment
the commissioner:
1. This judgment is concerned with the placement of a young child away from his mother as an interim measure.
2. At the hearing before us on 9th and 16th December 2011 the Minister applied for an interim care order in respect of B (hereinafter called "the child") and the approval of a care plan which provided for his placement that day with foster carers. The mother agreed to the making of an interim care order but opposed that part of the care plan which separated her from the child. The father also agreed to the making of an interim care order and on the issue of the child's immediate removal rested upon the wisdom of the Court.
3. The Court heard evidence from Rachel Maguire, the social worker, and from Jane Ferguson, on behalf of the Jersey Family Court Advisory Service, which had been directed on 5th December 2011, pursuant to Article 75(1) of the Children (Jersey) Law 2002 ("the Children Law"), to appoint a guardian for the child. The Court was satisfied that the threshold criteria for the granting of an interim care order under Article 24(2) of the Children Law were met and this judgment is concerned, therefore, with the main issue before the Court, which was the placement of the child away from the mother as an interim measure.
4. The parents have a long history of involvement with the Children's Service. The child has three full siblings and one half sibling, all of whom were taken into care in 2003. Two remain in long term foster care and two were freed for adoption and adopted in 2005. The concerns for these children were primarily:-
(i) A considerable number of injuries to the children, for which there was no conclusive explanation and the changing explanations that were given for these injuries by the mother, the father and the children.
(ii) The mother's negative responses to the children, as well as apparent lack of stimulation provided to them. It was also stated that all four children use foul language, that both parents openly use this language and that the children's behaviour was wild and "out of control".
(iii) That the relationship between the parents caused the children to be exposed to continuous marital disharmony and loud, violent confrontations.
5. The father has been assessed as having a learning disability and a low IQ. The mother has not been assessed as having a learning disability but she reports ongoing problems with her memory, due to an accident at work.
6. When the child was born on 30th August 2005, he was removed from the mother and father on a police protection order, and placed in foster care. An emergency protection order obtained by the Minister was challenged by the parents and discharged in favour of a supervision order for a period of one year, as a result of which the child was returned to the care of the parents where he remained.
7. The parents separated in November 2008. In the ensuing matrimonial proceedings, the father applied for contact with the child, as a result of which a parenting assessment of the father was undertaken by the Children's Service. Following a home visit by Jane Ferguson and Michael Cutland in March 2009, during which the child displayed sexualised and violent behaviour, an Article 29 report was ordered by the Court on 31st March 2009. The report dated 26th August 2009 concluded that the child's behaviour had improved and that the grounds for either a supervision order or a care order were not met, i.e. that the child was not suffering and was not likely to suffer significant harm attributable to the care given to him by the mother or to the child being beyond parental control.
8. Concerns were raised in 2009 over the child's unsupervised contact with his godfather, E, who had numerous allegations of sexual assaults on children made against him. The mother denied any risk and that the matter was referred to Dr Ruth Emsley for a risk assessment. In her report of 4th November 2009, whilst noting that the file information indicated that the mother had adequate parenting skills, she concluded:-
"11 CONCLUSIONS AND RECOMMENDATIONS
11.1 In my opinion [A] is a vulnerable woman who sees herself as a victim in the world. She has remained in abusive and dysfunctional relationships. To some extent this is likely to have developed in her a tolerance to such treatment. When she encounters those who treat her with warmth and care I believe she is vulnerable to believing unconditionally in them and becoming totally loyal. This appears to have occurred with [E] and prevents her from viewing the present situation objectively.
11,2 I recommend [A] undergoes Motivational Interviewing work to enable her to become more objective and amenable to exploring the negative side of the current situation. She may then benefit from work to gain an understanding of how men interested in sexual contact with children can groom vulnerable children and their equally vulnerable carers to gain their trust."
9. Rachel Maguire reports that the mother abided by the precautions felt necessary by the professionals involved at the time in relation to the child's contact with E.
10. As improvements in the mother's care of the child had been made, the Children's Service closed the child's case on 14th June 2010. However the child continued to display behavioural problems which the mother attributed to his suffering from ADHD and Tourettes, conditions which had been diagnosed in relation to her eldest child. ADHD stands for "Attention-deficit/hyperactivity disorder" a psychiatric disorder affecting we understand about 3 to 5 per cent of children globally. Tourettes, as we understand it, is an inherited neuropsychiatric disorder with onset in childhood sometimes associated with the exclamation of obscene words or socially inappropriate and derogatory remarks.
11. In response to the mother's concerns, the child was referred to the Child and Adolescent Mental Health Service ("CAMHS"). In their report of 15th December 2010, whilst acknowledging that the child did have many behavioural difficulties that could be associated with impulsivity and perhaps a lack of attention, they did not feel that he presented with ADHD. They felt that the child's experiences and environment, both past and present, were probably the most contributory factors to his presentation and were concerned at the apparent deterioration in his behavioural problems since the Children's Service had withdrawn its support for the mother. Their concerns were compounded by the mother's reluctance to accept any responsibility for the child's development, insisting that there must be a medical explanation. They agreed to carry out some work with the mother in respect of her parenting and management of the child, but referred the case to the Children's Service for an assessment of the mother's ability to parent and manage the child.
12. The mother reacted defensively and anxiously to the further involvement of the Children's Service, perhaps not surprisingly in the light of the removal of her four other children from her care. An initial assessment was completed by the Children's Service on 12th January 2011, and the recommended direct work with the child to ascertain his wishes, ongoing support from CAMHS for the mother and monitoring by the school.
13. Unfortunately, CAMHS notified the Children's Service on 3rd March 2011 that they were closing their file, because of the failure of the mother to attend two out of the four appointments offered, and concerns that their involvement was reinforcing the mother's view that the child had a developmental disorder.
14. There were three referrals between April and June 2011; the first from a neighbour, concerned at the mother allegedly shouting at the child for hours and being told by the mother "if they heard [the child] screaming, it was because they were having to do things for his ADHD"; the second when he attended school with a scratch on his neck, covered with concealer, caused, according to the child, by F, the mother's partner with whom she had been in a relationship since April 2010 and the third from a previous foster carer of one of the child's elder siblings, who had received a call from the mother, saying that the child's behaviour was (like his elder sibling) uncontrollable and for which people were blaming her. No-one, she complained, was listening to her.
15. When discussing the "scratch" incident with the school, the child mentioned that he liked his baby sitter "D" and that "they played bedroom games" together. The mother subsequently confirmed that the baby sitter was a D. When informed that he had learning difficulties, the mother agreed that he should not have sole care of the child unless an assessment was undertaken.
16. In view of the mother's concerns over the child's development an educational psychologists report was commissioned, dated 12th May 2011, which noted the mother's high level of anxiety, with the possibility of the child having special needs, which may not have been identified, partly because of family history and a worry about how the child's behaviour reflected on the mother's parenting skills. Both issues were causing her considerable distress. In summary, the report stated that the child was very young for the year and a little delayed in some areas, but had made progress and would continue to make progress with the right support. It was felt possible that the child sensed his mother's anxiety and reacted negatively to it. Professional concern had been expressed about the levels of negativity directed by the mother towards the child, which may well have a bad effect on him. A multi-agency approach was needed, in order to support the mother and reduce her anxieties regarding the child. A number of recommendations were made to enable everyone involved "to work harmoniously together towards a happy and successful childhood for [the child]".
17. The mother responded to the report with a very detailed letter commenting on the report and agreeing that there were a lot of "concerns" over the child and requesting that he be re-tested for ADHD and Tourettes as he was displaying the same behavioural characteristics as his elder sibling. She wanted this done before the child got any older so that it may help him and herself with an easier life as she loved her son very dearly and did worry about him.
18. On 1st September 2011, three witnesses saw F acting aggressively towards the child and assaulting him. Following a visit from the Children's Service, the mother agreed not to allow F access to the family home or to the child until the Child Protection investigation had been completed. An initial Child Protection conference was held on 14th September 2011, but the child's name was not placed on the Child Protection register at that stage.
19. In October 2011, a Marshack Interaction Method ("MIM") assessment was carried out by the NSPCC Jersey Pathways to observe and assess the relationship between the mother and the child. A previous MIM assessment had been completed in June 2009, when the mother had talked very negatively about the child and appeared to continue to punish him during the assessment. After some intensive work, she had shown an improvement in her relationship with the child, while still maintaining that he was ADHD. The report of 31st October 2011 expressed concerns for the child's emotional development, as the mother did not show any emotional warmth towards him, nor did he ask for it. The mother had attended various parenting courses with other agencies in the past, but appeared to be unable to transfer the skills into her parenting role. They recommended a further assessment of the mother's parenting capacity, respite for the mother, to explore with the child his identity, wishes and feelings and to provide the child with an environment that would enable him to reach his full potential.
20. At a paediatric clinic held on 4th November 2011, the mother reported a deterioration in the child's behaviour since the last clinic in September, including impulsiveness, destructiveness and running away, which she attributed to her partner, F, no longer being involved. She felt that the child needed constant supervision and this was affecting their relationship. At school, his behaviour continued to be challenging; he could be disruptive and attention-seeking, displaying emotionally immature behaviour and struggling to retain friends. He was bed-wetting most nights.
21. On 2nd November 2011 at an initial Child Protection conference, attended by the mother, the child's name was placed on the Child Protection register under the category of "Emotional harm". Rachel Maguire informed us that there was no discussion at that conference about the possibility of care proceedings and the child being removed from the mother, but following the meeting, removal was discussed with her line manager, and the decision was taken to seek legal advice. The mother was informed on 21st November 2011 that care proceedings were being issued.
22. We were shown a report from school dated 2nd December 2011 which was in the following terms:-
"Presentation
The child has always appeared clean and well dressed in appropriate school uniform.
He is always provided with appropriate lunch in clean containers. On a minimum of two occasions the child has had to be monitored eating his lunch due to large quantities provided and his inability to eat that quantity.
He appears physically well cared for.
He attends breakfast club every morning. This provides a calm start to the day.
The child wears glasses.
He has had grommets fitted at the hospital.
Attendance reports from Reception to Year 2 attached.
Performance
The child is the youngest child in his year group. DOB 30/08/05.
Academically, he is at a very low level compared to his peers.
He has a short attention span and is often unwilling to complete independent work even though it is matched to his ability level.
The child requires a high level of positive adult direction and support in school. He is very immature for his age and is reluctant to try new things for himself.
At times he has difficulty in following class rules. He calls out at inappropriate times using words and phrases such as 'who wants to lick my boobies', 'willy', 'I'm a Barbie girl', 'pants', 'lick my penis'.
The child is frequently attention seeking e.g. shouting out, disturbing others.
The child has found it difficult to make friends with peers.
He has limited play skills.
The child really enjoys 1 to 1 attention and is currently responding well to a behaviour chart that gives him regular daily rewards.
The child responds well to routine and calm, positive behaviour management in school.
The child finds it more difficult to settle to work towards the end of the day. He often acts in a silly manner, shouting out for attention.
The child is currently supported by the Speech and Language Therapy service. Support from this service has been ongoing since he started First Tower School.
The child is monitored by the school's Educational Psychologist Carol Milnes."
23. We were also provided with a pupil review report for the autumn term of 2011 which said that the child was more settled with his behaviour, becoming more aware of his expectations and responding well to his "smiley chart" to help him do the right thing.
24. It is clear from the summary of the background that there is a concern, shared by the mother, about the child's behaviour and development. For that reason, the mother consented to an interim care order being made, so that, with her co-operation, a full investigation and assessment of his psychological needs could be undertaken. The care plan, however, proposed that the child be placed in foster care whilst these investigations and assessments were completed, to ensure that he is safe and his needs are met during the assessment process. There would be supervised contact twice weekly for an hour and a half during this period.
25. Mrs Davies, for the Minister, acknowledged that the removal of the child as an interim measure was as she put it a "draconian act" and should only be sanctioned if the child's safety demanded or required his removal now. The test is set out in the judgment of Thorpe LJ in the case of Re LA (Children)(Care:Chronic Neglect) (2009) EWCA Civ 882 cited with approval by Scriven, Commissioner In the matter of QQ [2010] JRC 217E at paragraph 15:-
26. That test was applied in the case of In the matter of J [2011] JRC 147 where reference is made at paragraph 18 to the case of Re LA establishing two propositions. The first is that on an application for an interim care order, the Court should limit itself to issues that cannot await the trial and must not extend to decide issues that are being prepared for trial at the final hearing. The second proposition is that separation is only to be ordered if a child's safety demands immediate separation.
27. The plan to remove the child as an interim measure was supported by Rachel Maguire in her second report on 7th December 2011 and by her evidence. In summary her evidence was as follows:-
(i) In October 2011 the school reported a deterioration in the child's behaviour with his shouting out inappropriate and sexually offensive words and phrases. His behaviour over the last half hour in school had been challenging although a change in the timetable had made this more manageable.
(ii) On 12th October the mother had brought the child to school in walking reins, apparently, commenting to the staff "It's been a horrendous morning, he's been like this since 7 o'clock - you can deal with him". It was what was felt to be the humiliating nature of this incident that had triggered the convening of the Child Protection conference on 2nd November 2011.
(iii) The child was not being provided with a good enough level of emotional and social inter-action whilst in the mother's care. He told Kirsty Mosely, a trainee social worker, that the mother seldom played with him, preferring to play with her X box. He had demonstrated very limited play skills at school and had little ability to socialise with his peers. He had one friend at school who he played alongside, rather than with.
(iv) At an unannounced visit to the home on 10th November 2011 at 4.30 p.m. a check of his room revealed that it did not have an overhead light (it had apparently been broken for about a month), there were no sheets or other bedding on the bed and the room smelt noticeably of urine. The mother said she had not yet managed to make the bed up again. In the view of Rachel Maguire, this would lead to the child having a sense of shame and humiliation at having wet the bed.
(v) There was a stair gate at present between the kitchen and the living room, when one would have expected a child of six to be responsible enough to have access to the kitchen without his mother monitoring his whereabouts.
(vi) The child was not allowed unsupervised access to the garden in case he fell down a set of external steps.
(vii) As noted in the MIM assessment, the mother would "take over" tasks and was over protective in a way that did not allow the child to achieve and be praised for those tasks.
(viii) It would appear from a number of observations of the Children's Service that the child's reluctance to be in the sole care of the mother had become more apparent since his name was included on the Child Protection register on 2nd November 2011.
(ix) The child had been prescribed glasses full-time as he was found to have hypermetropia and a convergent squint on the right side, but the mother had kept them away from him as she was concerned that he would break them. As a consequence it was recommended that he wear a patch over his left eye, which was noted at a school visit by Rachel Maguire on 28th November 2011, something which again in her view would mark him out as different from his peers and make him feel shame and humiliation within the school.
(x) The mother was not observed to welcome the child on his return into his care in the way that one would expect from a parent with any affection shown seeming to be an afterthought.
(xi) The child had described the mother as "angry" and that it is his fault that he is naughty. The child had accepted blame for events that should never be considered the fault of a six year old, in that the mother had stated to Rachel Maguire that the child wished to write a letter to apologise to F, suggesting to Rachel Maguire that the child had internalised the blame for the assault on him and felt responsible for F leaving the family home.
(xii) The risks to the child would increase following an interim care order because of the mother's anxieties that it would impact further on her ability to meet the child's needs.
(xiii) The mother's ability to protect the child was in question.
28. It was also supported by Jane Ferguson. She gave the Court the benefit of her advice based on the documents she had read, bearing in mind that the nominated guardian had not had time to consider the case. Apart from a visit she had conducted herself in 2009 in the context of the father's contact application, she had not had the opportunity of meeting the child or seeing him in his home or school environment. She supported the removal of the child as an interim measure because of the long standing issue of emotional harm. In her view, nothing had changed since 2009 and in fact had deteriorated. Very considerable help had been given over the years to the mother but it appeared to make no difference. Care proceedings would take six to nine months to complete, which was too long for this kind of harm to continue.
29. Mrs Davies submitted that the balancing exercise favours placement of the child outside the care of the mother due to the risks posed towards him from her parenting.
30. The child is being emotionally harmed, she alleged, whilst in the case of the mother, who is persistently negative towards him and who is unable or unwilling to give him the positive responses he requires in order to enable him to meet his potential. This negative behaviour has been noted in the statements of Rachel Maguire, the report of the Educational Psychologist and in the report of the NSPCC.
31. Despite long standing attempts to assist the mother to improve her parenting, she has been unable to sustain any improvements and the child's reluctance to be in the sole care of his mother has increased with frequent requests from him for contact with adults other than his mother.
32. Future decisions concerning the child's long term placement cannot be made without expert assessments of the mother's ability to make sufficient sustained changes to enable her to meet the child's needs and it is imperative, she argued, that in the meantime the child is removed to a foster placement where his emotional and other needs can be met.
33. In closing, Mrs Davies submitted that whilst it is more difficult to pin down emotional harm, the evidence of the two professional witnesses we had heard, namely Rachel Maguire and Jane Ferguson, supported the removal of the child now, as being the only way to protect him. The position she said was clear. The child exhibited low self-esteem, had an inability to play, had few friendships, cannot use his back garden unsupervised, cannot be trusted with his glasses, was not allowed to move freely in and out of the kitchen, had his light removed from his room, was humiliated by his bed being left unmade and the room smelling of urine until late in the day, was reportedly subjected to persistent shouting, was walked to school on reins (on one occasion) - what sort of life was he leading? Action had to be taken now.
34. Mrs Corbett submitted that there was no reason why the child had to be removed so quickly. Such a dislocation and major change to his life and routine, being taken to live with strangers and seeing his mother only twice a week, would not be in his best interests. He had been in his mother's care for six years and the harm he is suspected of suffering is cumulative harm and there is no evidence to suggest that the harm he will suffer by being removed was less than the harm he may suffer if he remains at home.
35. The evidence given by the social worker Rachel Maguire was to the effect that the child was exhibiting behaviour at school which indicated that he is suffering emotional distress and that 'something is wrong' . The suggestion was made that the child's behaviour deteriorates for the 30 minutes before school ends and this is attributed to him not wishing to go home. However, when the child was previously collected early from school, at the same time each day, he did not exhibit such behaviour. There is nothing to suggest that the behaviour is related to him not wanting to go home rather than, for example, him being tired at the end of the day.
36. There is confusion and inconsistency on the part of the social worker about the child's behaviour. On the one hand it is said that his behaviour at school is deteriorating, whereas his latest school report indicates that his behaviour is improving. It is also suggested that the child can behave well in one to one sessions and with CAMHS, nevertheless it is his behaviour at school which is used to suggest there is a problem with his mother's care of him.
37. The fact that the mother is concerned about the child and has tried to find an explanation for his behaviour by looking into the possibility that he has ADHD and Tourettes, conditions his elder sibling was diagnosed with when he was 8 and living in foster care, has been used as a reason to criticise the mother. It has been characterised as putting the blame on the child, whereas in fact, the search for a medical explanation shows that the mother is not blaming the child for his behaviour, rather she is seeking to find an explanation and a solution.
38. The history of proceedings in respect of the child have also been cited as examples confirming that the mother's care is inadequate, whereas it is clear that:
(i) The concerns about the child's siblings related to a large extent on physical injuries caused by their father;
(ii) The investigation in respect of the child in 2008/9 related to concerns about E.
(iii) The Article 29 referral in 2009 related to concerns about the father (and no care proceedings were brought);
(iv) The concerns in 2010 and 2011 relate to a time when F, the mother's partner at the time, was suspected of assaulting the child. The mother does not have a partner at present.
39. Mrs Corbett submitted that the use of the reins (on one occasion), the use of the stair gate and the restricted access to the garden were not done to humiliate the child but were sensible measures to protect him. Bed-wetting was not unusual and it was unreasonable to complain that the bed linen had not been changed to the social worker's particular timetable. It was untenable to say that this was done to humiliate the child. He does wear his glasses (as confirmed by the school report), although he has been through many pairs.
40. On the one hand the Children's Service attributes his behaviour to the mother, but on the other hand the school make it clear that his conduct is independently of concern. The mother feels that there is something wrong with the child and her suggestion that he may be suffering from ADHD and/or Tourettes is perfectly reasonable, bearing in mind that his eldest sibling has been diagnosed with both conditions. It was unfair for the Children's Service to criticise her for pushing to find out what was wrong.
41. Past referrals to the Children's Service had in the main been concerned with the conduct of her partners and it was important that the assessments be carried out whilst the child was in her care so that the experts could see the child with the mother. As to the child being reluctant to be with the mother, the fact that the child may on occasions have expressed the wish to be with the social workers does not mean that he did not wish to be with his mother - the two do not follow.
42. There was no explanation for the sudden escalation of the matter. At the Child Protection conference attended by all the agencies and the mother on 2nd November 2011, whilst the child was placed on the Child Protection register for emotional harm, that was on the basis of his staying in the mother's care. The minutes of that meeting had not been disclosed but the possibility of care proceedings was not apparently raised or discussed. Legal advice should have been obtained before that conference, not after.
43. As previously mentioned the Court was satisfied that there were reasonable grounds for believing that the circumstances with respect to the child were those mentioned in Article 24(2) of the Children Law, namely the child was suffering or was likely to suffer significant harm attributable to the care given to the child by the mother and in doing so, it shared the concerns expressed by all those concerned with the child, including the mother. Those concerns relate essentially to the child's emotional, social or behavioural development. Directions were given for a psychological assessment of the child and a cognitive and psychological assessment of the mother, inter alia, so that at the final hearing the Court will have the benefit of that expert advice, together with the fully considered advice of the nominated guardian.
44. The issue was whether the child's safety demanded his removal now before those reports could be obtained. Whilst there had been evidence of physical assaults at the hands of F, he had now left the home and in our view there was no evidence that the child's physical safety required his immediate removal from the mother's care. We were concerned, therefore, with emotional harm and accepted, on the authority of Re LA, that safety should be regarded in a broad sense and can include psychological welfare. Physical safety is something a court is well able to assess but it is less able to assess emotional harm without the assistance of expert advice. We had limited expert advice to assist us on the nature and cause of the emotional harm the Children's Service felt strongly he was suffering from and no expert advice on the emotional harm he might suffer by being suddenly removed from the mother who had looked after him all his life.
45. We took full account of the serious concerns expressed by Rachel Maguire, supported by Jane Ferguson, but the threshold is, rightly, a high one. Even with the somewhat tentative diagnosis of CAMHS that ADHD was not present, the mother had consistently pressed for a full psychological assessment for both ADHD and Tourettes and had reasonable grounds for suggesting such a diagnosis in view of her elder child being diagnosed with the conditions. That investigation and assessment was now being undertaken.
46. We were dealing with what was alleged to be cumulative emotional harm. By refusing to sanction removal now we appreciated that we would be extending that harm for the period of the assessments but equally if we sanctioned removal we might be exposing the child to emotional harm. In our view removal was a matter for the final hearing and it would be a decision taken with the benefit of expert advice, advice that would cover not only the harm the child was allegedly suffering in the care of the mother but the harm that he would suffer if he was removed from her care. In essence, we were being asked to decide the issue that was being prepared for trial at the final hearing.
47. We therefore approved the care plan save for that part which advocated the child's immediate removal.
