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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> in the matter of D and E (Care Order) [2012] JRC 165 (19 September 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_165.html Cite as: [2012] JRC 165 |
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Care Order- application by the Minister for a full care order.
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Kerley and Liston. |
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Between |
Minister for Health and Social Services |
Applicant |
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And |
A (the Mother) |
First Respondent |
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B (Father of the Fourth Respondent) |
Second Respondent |
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D (by her Guardian ad-litem Monash Kessler) |
Third Respondent |
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E ( by her Guardian ad-litem Monash Kessler) |
Fourth Respondent |
IN THE MATTER OF D AND E (CARE ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate S. L. Brace for the Minister.
Advocate C Hall for the First Respondent.
Advocate J. M. Woods for the Second Respondent.
Advocate H Heath for the Third and Fourth Respondents.
judgment
the deputy bailiff:
1. This is an application by the Minister for a full care order in relation to the Third and Fourth Respondents (together called "the children"). Interim care orders were made first on 15th December, 2011, and have been renewed four weekly since then. The Third Respondent is aged 11 and the Fourth Respondent is aged two. The First Respondent is the mother of both children, and the Second Respondent is the father of the Fourth Respondent only. The Third Respondent's father does not have parental responsibility and he did not wish to be joined to these proceedings. He lives in the United Kingdom.
2. Since 31st October, 2011, the children have been in the care of their maternal aunt K. She and her partner are currently living in relatively small two bedroomed accommodation, and have taken on the care of the children in addition to the care of their own child. Both the Children's Service and the Guardian have been impressed with the quality of care provided.
3. It is agreed by all parties that as at 15th December, 2011, the Third Respondent and the Fourth Respondent were likely to suffer significant harm through emotional abuse and neglect whilst in the care of the mother, that care not being what it would be reasonable to expect a parent to give to a child within the meaning of Article 24(2)(b) of the Children (Jersey) Law 2002 ("the Law"). The Children's Services departmental records show that there has been some intervention with regards to the welfare and wellbeing of the Third Respondent since 2001 and with regard to the Fourth Respondent since birth. There is an unhappy picture of registrations and removals from the child protection register. The Third Respondent's name was placed on the register under the category of emotional harm in June 2003, removed in January 2004, but in June 2006 placed back on the register under the category of emotional abuse. In December 2006 the Third Respondent was made subject to an interim care order. This lapsed on 3rd August, 2007, according to the Department on the basis that the threshold for significant harm was not met at that stage. In November 2011, the Third Respondent and the Fourth Respondent were placed on the child protection register under the category of neglect, and removed following the grant of the interim care order in December that year.
4. It is agreed that the mother has been unable or unwilling to provide an appropriate level of care for the children, given her dependence on drugs during their respective entire lifetimes. She has been imprisoned on at least two occasions for drug related offences, and she has received 160 hours of community service on the same grounds. While the mother was living in Luton, concerns were raised by the local police for the Third Respondent's welfare, and those concerns have remained since the mother returned to live in Jersey. In July 2011, police officers attended the mother's home address to examine allegations of excessive drug use and alcohol consumption in the presence of the children. On 31st October, 2011, the mother was arrested and detained for importing one gram of heroin. She was travelling with her children at the time of her arrest and subsequently charged with the importation of controlled drugs.
5. It is also agreed by all parties that the children have been exposed to incidents of domestic violence within the mother's relationships, and thus have been placed at potential risk of physical harm. Allegations have been made by the mother against the Second Respondent, and by the Second Respondent against the mother. The Second Respondent denies that he has treated the mother violently, but he has asserted that in June 2011 she punched him numerous times to the head and face as a result of which he had to attend at the Accident and Emergency Department for his injury and was diagnosed with a broken cheekbone. On the other hand in July 2011, the mother obtained a non-molestation injunction against the Second Respondent which, it was agreed, was breached by the Second Respondent on numerous occasions.
6. It is agreed that the children have been subject to emotional abuse whilst in the care of the mother. This arises in various forms - first of all the provision of inappropriate and inconsistent parenting, repeatedly relocating them and moving the children between homes and carers. The emotional abuse also takes the form of neglecting the children's needs and failing to prioritise their needs above the mother's own needs - the Third Respondent has had to get herself up in the mornings and get ready for school and make her own way there. The mother admitted in May 2011 that she was not awake in the mornings when the Third Respondent left for school. On one occasion in May, the elder child failed to attend school and the mother refused to report as missing as she did not want the police attending at her home.
7. It is agreed that there has been a history of concern for the mother's capacity to provide adequate and consistent care for the children, and that despite longstanding professional involvement she has failed to demonstrate change.
8. In the light of the agreed threshold document, the Court was satisfied that the threshold criteria had been passed and the bulk of the hearing was taken up therefore with the welfare considerations and the care plan.
9. Earlier on, in separate proceedings, the Second Respondent made an application for parental responsibility in connection with the Fourth Respondent. This application was consolidated with the care proceedings, and we return to this point later in this judgment.
10. Although at the outset of the hearing, the father took the view that the care plan was inchoate because it did not set out clearly enough what work the father had to do to get to a position where contact with his daughter might be increased, it was helpful that by the end of the proceedings; it was agreed that a full care order in favour of the Minister was appropriate in respect of both children, the Second Respondent only having locus standi in relation to the Fourth Respondent and not in relation to the Third Respondent, and the only issues were the questions of contact and parental responsibility.
11. The mother sat through the entirety of the care proceedings. She clearly loves both her children, and she not only had to listen to evidence being given much of which will have upset her, but she also gave evidence herself and indeed was cross examined. This was very brave of her and she is commended for it. She was not originally intending to give evidence, but Advocate Woods made an application to cross examine her on the level of basic care which the Second Respondent gave the Fourth Respondent. This, it was contended, went to the question of parental responsibility. Furthermore, the allegations of domestic violence had been a reason for reducing contact. Accordingly, the mother was compellable and should be tendered for cross examination.
12. The Court ruled that as the mother had not sworn an affidavit, the usual rules of cross examination on an affidavit did not apply. In fact the mother had given no evidence which fell to be tested. It followed that if she was compelled to give evidence - and she was compellable on usual notice - it would be evidence in chief.
13. As to the facts of this particular case, on the evidence the Court had to date, it did not appear that domestic violence between the First and the Second Respondents would be relevant to questions of contact. The Fourth Respondent was unaware of any such past violence, and there is no prospect of future violence given the apparent end to the relationship. Accordingly, the Court ruled that cross-examination on the issue of domestic violence was not relevant to the matters currently before it, in relation to the care plan, and the previous incidents of domestic violence, whatever they were, could not reasonably support the Minister's decision to reduce contact on the facts of the case.
14. The application to cross-examine the mother as to the care which the Second Respondent gave to the Fourth Respondent fell into a different category, because that was relevant to the issue of parental responsibility. Nonetheless the Court ruled that this was the Second Respondent's application, and he would have to adduce what evidence he could to support it. Accordingly he could call the mother, but this would be her evidence in chief on the subject without cross-examination by him.
15. In the event the matter was circumvented because the Guardian then resolved to call the mother. The practical consequence of that was that the mother could be cross-examined by the Second Respondent. She gave evidence coherently and well. Although her relationship with the Second Respondent had come to an end, much of what she said supported the view that the Second Respondent gave the Fourth Respondent good quality of care - he was a good cook, he would change the Fourth Respondent's nappy and put her to bed. Although the Fourth Respondent was bathed more often by the mother than by the Second Respondent, he did do so sometimes, and occasionally he also put the Fourth Respondent to bed. The Second Respondent saw less of the Fourth Respondent after he left the joint home and went to live in the Shelter. She formed the view that when he emphasised his need for contact with the Fourth Respondent, it was more about his desire to see her, the mother, than to see his daughter. When the Second Respondent was offered contact for the entire afternoon, he would in practice only exercise that contact for 15 minutes and then give his daughter back.
16. The Second Respondent has his own medical problems to which we will refer later. However, apart from a short period, he too was in Court for the proceedings, and he too gave evidence. He asked the Court to increase and not reduce the amount of contact he had with his daughter, for whom, he said, he would do anything. He would never be physically violent to her. He agreed that he did get frustrated from time to time when people lied deliberately and tried to stop him seeing her. He said there were errors in the contact log and he had not taken this matter up with the Children's Service because he was not sent the contact logs regularly.
17. During the course of the hearing, he had some time away from the hearing because he was in receipt of medical treatment. It appears that during this period he was the victim of an assault. The Second Respondent said that this took place because he did not pay for drugs he had not received. He said that he was at the premises in question when two men arrived. There was an argument about some methadone, which the Second Respondent says was not his. Another man had injected the lady whose property it was, but he, the Second Respondent had not done so and did not inject himself. The assault took place at 5am on the second morning of the hearing, and he agreed he was in breach of one of the conditions of his bail on another matter by not returning to the Shelter by 11pm the previous night. He agreed he had told the hospital that methadone was involved in the assault, but not that he was injecting himself. He agreed he told the doctor not to tell anybody what had taken place, but this was apparently not because he was seeking increased care of his child the Fourth Respondent, but because he considered the event to be part of his personal life.
18. Dr John Castleton is a chartered psychologist. He conducted interviews with both the mother and with the Second Respondent. As a result of what was said to him, he considered that a psychiatric report should be prepared on the latter. Dr Dale Harrison, the consultant psychiatrist at the General Hospital, prepared a main report for the Court and an addendum. In those reports, Dr Harrison ruled out any diagnosis of schizophrenia, but he did express the view that the Second Respondent was suffering from persistent delusional disorder, which is a psychiatric disorder. His particular delusional belief was that he is a participant in a ten year game which will end in 2013, and that due to his participation in the game, he will be tested by events going against him, particularly by those in some authority or control over him. The Second Respondent reported that the game started after he made a telephone call whilst in Italy, but it seems that the game appeared to be activated at a time when he moved to England. Dr Harrison suggested that the Second Respondent be offered a course of treatment of anti-psychotic medication with the hope that this would lead to a softening of his delusional beliefs. However the nature of the delusion is that the Second Respondent is unlikely to engage in psychiatric treatment and specifically would refuse to take medication. The prognosis for his delusional disorder was therefore relatively poor. Dr Harrison concluded that the Second Respondent believed that "the game" would end in 2013. In Dr Harrison's view, the Second Respondent's expectations regarding the game would not be met and it was likely that he would interpret that in a manner that he could integrate into his existing delusion.
19. When he gave evidence before us, the Second Respondent demonstrated a consistency with the delusion which Dr Harrison described.
20. The Court also heard from Dr John Castleton in relation to the psychological condition of the mother. The key question surrounded the ability of the mother to change her previous behaviours, in particular her substance abuse, and if she had any such ability, her timetable for doing so. In Dr Castleton's view, the mother suffered from obsessive compulsive disorder, and showed a history of substance misuse. She had the additional difficulties of very impulsive behaviour.
21. In his view, the mother has complex needs. Sometimes she can manage well but at other times she cannot do so. She has high levels of anxiety and suffers from depression. The substance misuse - both drugs and alcohol - compounds those difficulties. What was important was that there should be some co-ordination in her care, so that a coherent programme was created and the mother did not have to negotiate her way through her problems with the different agencies. Assuming she was prepared to co-operate, that co-ordination was crucial. If she had been living in England, Dr Castleton was of the view that a drug and alcohol worker in what he described as a tier three service for treatment would be appointed. Such a person would be commissioned by the District Health Authority and would be the care co-ordinator.
22. In his view, the next review of her condition would be after a minimum of twelve months from her last detox in February. Despite a relatively recent lapse on the part of the mother, the next review could therefore possibly be next February, but it would depend on all the circumstances at or around that time. The question was put to him as to whether an in-house residential assessment would assist, and we were told that this would focus on drug abuse but would not necessarily affect the overall time scales. It would certainly assist in knowing at an earlier stage what progress was in fact being made. When asked in cross-examination by Advocate Hall whether the Minister's summary in the care plan in December 2011 of the specific nature of the work which needed to be undertaken to work towards a rehabilitation plan for the children with the mother was adequate, Dr Castleton said that he had given a breakdown of the areas that needed to be addressed and he thought there was sufficient detail for a working plan to be drawn up. The service providers would need to produce a comprehensive care plan for the mother. He emphasised that any relapse did not mean that the clock had to start all over again, but that decision would have to be taken in all the circumstances of the case as they then existed. At the present time, for example, the position regarding the mother's alcohol intake was not clear, although there were indications of excessive drinking, and that was a matter that needed further enquiry.
23. It was a positive factor that the mother was motivated to have her children back, which was better than having no motivation, but it was not as good as recognising that she had a problem. In his report he emphasised - and he did not depart from this when giving evidence - that although the mother should be commended for her recent efforts and achievements, there was limited evidence to suggest that she had the capacity to sustain change. If she received the assistance which she had outlined, and did not achieve stability in the following six months, he would be of the view that the mother would be unlikely to do so in the future. It follows that as far as her prognosis is concerned, the next twelve months would appear to be fairly critical.
24. The Court also heard from Mr Michael Gafoor, the Director of the Alcohol and Drugs Service. He confirmed that the mother was a 28 year old heroin-dependent woman with a history of illicit drug use. She has been involved, on and off, with his service since 2004. He was familiar with the tier service which Dr Castleton had described and he proposed that Lorna Easton would continue to be the mother's key worker in the Drug and Alcohol Service, and would be responsible for co-ordinating the different treatments. In particular she would be able to refer the mother to the Psychology Department for treatment based on their observations. Clearly the Psychology Department would carry out its own assessment at the General Hospital, notwithstanding the detailed report which Dr Castleton had prepared. This was inevitable because it was the Psychology Department which would have responsibility for the mother's treatment. At all events, Mr Gafoor confirmed that his department could ensure a package of care if the mother was willing to engage, and he would be able to produce progress reports if appropriately requested of him.
25. In cross-examination from Advocate Woods, Mr Gafoor indicated that the mother had never given them reason in the Department to suspect binge drinking notwithstanding the two occasions of episodic binge drinking which were put to him.
26. It is against that background of professional opinion that we considered the care plan which the Minister put forward, which was in these terms.
27. The care plan for both the Third and Fourth Respondents is that they should continue to live with their maternal aunt, K. She and her partner have been approved as kinship carers, and they have the support of a supervising social worker from the fostering and adoption team who can provide emotional support and advice, and ongoing training opportunities. This is very much the preferred placement as far as the Minister is concerned. If ever it should break down, consideration will be given to the viability of alternative family placements, or if none is considered viable, then an alternative placement under the Minister's care will have to be identified. The placement is intended to last until at least early 2013. This timescale is proposed by the Minister on the basis of a 12 month period from the end of the First Respondent's detox from substance misuse, and the care plan is to be reviewed in February 2013. If it is then thought that it will be in the Third and Fourth Respondents' best interests to consider a return to the First Respondent's care, a gradual and progressive rehabilitation plan will then be formulated. This is thought to be necessary to prevent the Third and Fourth Respondents from experiencing sudden instability and insecurity in the care environment. Accordingly the care plan is that they remain in the care of their kinship carers for the minimum period of approximately 12 months from February 2012.
28. It is clear that in the lead up to the present proceedings, the First Respondent suffered some further difficulties. On 2nd June, she was verbally abusive towards K, regarding her efforts to provide an appropriate home for the children. The same day, she was reportedly dismissive of the Third Respondent's wish to spend some one to one time with her mum, verbally abusing the Third Respondent while she was with her, pulling her hair and grabbing her shoulder as the Third Respondent tried to walk away. After their trip to the cinema that day, the First Respondent did not accompany the Third Respondent home. Notwithstanding her age (11 years old) she put her on a bus alone for the first time at approximately 6pm on a Saturday evening, against the Third Respondent's wish for her mum to go with her, to a new home address where the Third Respondent had only lived for four days, in an area which she did not know. As a result, the Third Respondent became lost for approximately an hour, until K eventually found her.
29. Over the following days, the First Respondent became increasingly emotionally unstable. Her contact with the children was limited and when she did see them, she was crying and unable emotionally to manage during the contact, and therefore kept her visits brief.
30. All these were worrying developments, but the Court feels that the stress and tension which is engendered by court proceedings may have had some impact on the First Respondent's conduct. Accordingly, we do not take that conduct as anything other than illustrative of the journey which the First Respondent has to make if at the time the care plan is reviewed at or shortly after February 2013, she is to be able to satisfy the Minister that a change in the children's care might be appropriate.
31. As to contact, the Minister proposes a reduction in contact between the Third Respondent and her mother, in line with the recommended long term care plan for the Third Respondent, and prioritising her opportunity for stability in her current placement. As far as the proposals for contact between the Fourth Respondent and her mother are concerned, it is similarly proposed that contact be reduced with the same objectives in mind.
32. As far as contact between the Fourth Respondent and the Second Respondent, her father, is concerned, it is proposed by the Minister that contact remain at the discretion of the Children's Service in order that it can be managed in the best interests of the Fourth Respondent. However the Minister has made it plain that it is envisaged that the frequency of contact will be reduced to once a month for one hour each session and it may well be determined at a subsequent review after six months that, having regard to the children's needs and best interests in long-term placements, it might be appropriate to reduce contact still further to perhaps four times a year. The Minister makes it plain that there is no envisaged plan for rehabilitation of the Fourth Respondent to her father's care. The purpose of ongoing contact is to allow an opportunity for the Fourth Defendant to promote a sense of identity and build knowledge of her father. The contact that is allowed by the Children's Service is proposed to be supervised contact so as to ensure that her safety and welfare are given priority throughout contact periods. It follows that the contact will take place, according to the care plan, at the playroom at the Children's Service, thus providing a secure venue.
33. We now turn to Article 2(3) of the Law in the consideration of the welfare test, having regard to the obligation to ensure that the welfare of the children is our paramount consideration, and that each child is considered separately.
34. We deal first with the Minister's application in relation to the Third Respondent. The care plan shows that she is a girl who is clearly able to articulate her wishes and feelings, although she is sometimes inhibited from expressing her views openly in case she should upset her mother. The social worker reports that in principle the Third Respondent would like to return to her mum's care but only when her mum is ready, and that she carries an ongoing worry that her mum may relapse into drug misuse. She feels safe and secure in the care of K and her partner, and has accepted and indeed appreciated the routine, the boundaries and the day to day functioning of the household. She is content with the recommended care plan, and is clear that she would want to live with her sister the Fourth Respondent, with whom she has a strong bond. She wants to remain in Jersey and while she enjoys contact with her father, she would not wish to live with him. She has expressed the wish that the Children's Service remain involved with the family for an extended period. This is said to be based upon her anxiety around a deterioration in her mother's condition if the service were to withdraw.
35. The Guardian's view is that the Third Respondent is easy to engage in conversation, is a bright and articulate girl who was well able to describe her feelings and lay out her wishes. The Third Respondent told him that she was very happy to stay with K and her partner. She got on well with them. Her main concern was that the accommodation was very small and she had to share a bedroom with her aunt's four year old daughter. She would prefer to live with her mother but she knew her mother was not well enough to care for her at the moment, because she had a drug problem although the Third Respondent hoped that would change. The Third Respondent confirmed to the Guardian that she had a good relationship with her father, but did not wish to leave Jersey. She said that she wanted to be with the maternal family in Jersey, and to be with her sister, the Fourth Respondent.
36. The Third and Fourth Respondents were joined to these proceedings as parties and Advocate Heath was appointed as the children's lawyer upon consideration of the different criteria set out in Re B (Separate Representation of Minors) [2010] JLR 387. In particular the Guardian had made the application that they be joined because he said the Third Respondent had a need to feel involved in the proceedings, and that he personally also felt the need to have the support of a lawyer for the child who would assist in cross examination and in the presentation of evidence in what were to be contested proceedings. At the hearing, Advocate Heath, on behalf of the Third Respondent, advised us that she had asked to see us. The Guardian expressed the view that this would be a sensible course for us to follow. Neither the Minister nor the First and Second Respondent objected, although all parties, including the Court, were concerned that any conversation between the Third Respondent and the Court should not go into territory where there was a disputed fact, such as whether or not the Second Respondent had ever treated the First Respondent violently. Against that background, we saw the Third Respondent in private, with her Lawyer and the Guardian present, and also the Greffier. She confirmed that she had asked to see us, and we explained to her what the hearing was all about and what it was our task to do. We told her what the Guardian had said her wishes were. She confirmed that the Guardian had it right. She loved her mum but she realised that her mum had drugs problems. She was worried about those and wanted her mum to have support to get better. We said that we understood that that support would be given, but it would take some time, and whether her mum came through the problems was ultimately a matter for her mum and no-one else could fight that problem for her. The Third Respondent told us about the room which she shared with her sister, which is decorated in pink. She was going to France later this year, and hoped to do some abseiling, archery and riding. She was not at all sure about the quality of French milk or ice-cream, but was looking forward to hot chocolate for breakfast! She has a group of seven other good friends, and enjoys going to Millbrook Park at the weekend with them, and indeed would like to see more of them. When we asked her if there was anything else that she wanted to know, she asked us how we would go about making our decision. We have explained that we had many papers to read, that we would be hearing what was said in Court by the different people who had come to talk to us, and we would then have a discussion amongst ourselves. We did not go into any territory where facts were in dispute, and all difficulties of that kind were therefore avoided. Indeed, the Third Respondent said nothing of consequence which we have not summarised above.
37. She is a delightful and articulate 11 year old girl, and it was helpful to see her to the extent that what she had to say was consistent with the reports we had received from the social worker, her Guardian and her Lawyer. We hope that the exercise was of value to her in the circumstances that she was aware of the court proceedings and that it was her future that was under consideration.
38. At the end of the day, the only difference between the approach of the Minister and the approach of the mother lay in whether or not a contact order should be made under Article 27(3) of the Law. The mother agreed to the reduction of contact to six hours a week, and was appreciative of the appointment of a care co-ordinator to assist her in her rehabilitation. However, the mother's position is that K is only 21 years old and has a huge responsibility. The mother wants to help K as much as she can, and though she agrees the reduction in contact, is anxious that it might be reduced further and therefore wants the order to establish a minimum of six hours, as opposed to the addendum to the care plan where the Minister suggests "up to" six hours contact. It was said the better balance lies in favour of making an order, not only in the interests of K and the mother, but also in the interests of the Third Respondent. She may want to spend more time with her friends, but putting an order in place, Advocate Hall said, would give her certainty as well. Advocate Hall submitted the order should contain provision that the six hour contact period per week could be increased by agreement between the Children's Service, the mother and K if it were thought to be in the best interests of the children.
39. Neither the Minister nor the Guardian considered that an order was necessary or appropriate. The Minister submitted that even in relation to questions of contact, the no order principle applied under Article 2(5) of the Law. Thus the Court should not make an order unless it considered that making the order would be better than making no order. The Court has considered the matter carefully. We were pleased to see the First Respondent's mother in Court supporting her daughter. There is obvious scope, for example for family Sunday lunches which can be very constructive in shaping a child's upbringing, and so far the reports which we have received have all been encouraging. The Court was impressed with the social worker, Ms Jenner, who was professional and whose approach was appropriate. The contact plan was flexible - it provided for unsupervised contact with the First Respondent, subject to regular review and assessment, and it is based on a recognition that contact should be a child focussed activity. The mother should have contact with the Third Respondent and/or her sister alone, with no other persons except the immediate maternal family involved, and there might be additional contact for family events or special occasions from time to time. Ms Jenner said in evidence before us that she would consider an increase or decrease if the Third Respondent asks for it.
40. It is part of the cycle of growing up that, as children get older, they cannot easily be forced to have contact with their parent or parents if they do not wish to do so; and indeed if such contact were forced upon them, the quality of contact would be likely to deteriorate, unless there was some special reason for thinking that the child's real wishes were inconsistent with those which were expressed. The Third Respondent does indeed need to be able to invest in her current placement with the emotional security which that supplies. It is in her interests that the First Respondent also invests in that placement and if her rehabilitation plan is successful, there is no reason why the Third Respondent will not want to have continued close contact, though whether it will be for the same weekly periods, or extended or reduced periods, only time will tell. We do not think it is appropriate to make an Article 27 order in the circumstances of this case.
41. We now turn to the issues around the care plan for the Fourth Respondent. Once again the First Respondent's position was that the Minister's care plan was supported, but subject to the desirability of having a formal contact order under Article 27. Clearly the Fourth Respondent is at the age of two not able to express her views about the care plan in the way that the Third Respondent has been able to do. However we noted from the evidence that Ms Jenner gave us that the Fourth Respondent is content and stable when she is in K's presence. She is more open now than she was previously and she is making very good progress. It is confusing for her when her mum comes and goes, and indeed K and her partner struggle a little when the mother is around, because the Fourth Respondent is less stable then and in Ms Jenner's view the First Respondent has not really supported the present arrangements, whatever she may say. On behalf of the Guardian, Advocate Heath indicated that the Fourth Respondent's behaviour can change dramatically and that the contact between her and her mother is of concern. The Guardian's view is that the contact between the mother and the Fourth Respondent should take place away from K's home if at all possible.
42. We are not convinced that it is necessary to make any contact order in relation to the Fourth Respondent under Article 27. We are confident that the Children's Service will approach the matter of contact sensibly and in the Fourth Respondent's best interests and of course it is always open to the mother to make a contact application if she should be so advised in the future. We recognise that the position that the Fourth Respondent faces is confused and that she will take time to adjust. The Minister should have the ability to make changes in contact in the best interests of the child from time to time, subject of course as we have said to the mother's right to make an application if so advised.
43. We now come to the two matters concerning the Fourth Respondent which involve the Second Respondent, namely contact between the Fourth Respondent and her father and secondly the question of parental responsibility.
44. In her submissions at the end of the hearing, Advocate Woods agreed the full care order, but indicated that on behalf of the father she sought an interim supervised contact order in relation to the Fourth Respondent for a minimum of once a week, pending review after six months. She asked for the imposition of a condition that there should be an independent observer or that the contact sessions should be video recorded, preferably the latter. In support of the jurisdiction in the Court to make a contact order coupled with the final care order, she relied on In the matter of D [2011] JLR N 5. We agree that we have jurisdiction to make such an order if we think it is appropriate to do so.
45. The thrust of the submissions on behalf of the Second Respondent was that the social workers Ms Jenner and Ms Du Heaume had emphasised the negative aspects of the existing contact between the Second Respondent and his daughter, and that the contact logs contained a negative spin which was to his detriment. Yet it was very much in the Fourth Respondent's best interests that contact with her father should continue. It was said there had been a considerable improvement since the MIM assessment in February. The Second Respondent had agreed to undertake the ADAPT and parenting courses and put together, Advocate Woods submitted these would show a basis for increasing contact from once a week. The only thing which had changed more recently is what is to be found in the reports of Doctors Castleton and Harrison. The father could not understand why, given that he has accepted taking cannabis once, subutex once and some use of alcohol, the amount of his contact is less than the mother's contact when she has shown heroin addiction and a greater degree of alcohol abuse. In his evidence, the Second Respondent said that he would do anything for his daughter. Contact should be increased and not reduced, and the purpose was to reunite the family.
46. On the contact logs, he thought the Children's Service have lied on a number of occasions. In cross examination he said he did not really know what the cause of the problem was for the Children's Service. He thought the video recording would show that he was right in what he said.
47. The Guardian in his evidence said that in his view the Second Respondent had considerable difficulty in acknowledging his own problems. He was adept at twisting other people's arguments. He has a bad temper and is volatile. The incidents which have occurred are, as far as the Guardian is concerned, unsurprising. However the incident during the week of the hearing was particularly worrying. Here was another fight, with allegations of inappropriate drug taking, wherever the truth lay.
48. The Guardian said that the two contact sessions he had observed between the Fourth Respondent and her father were very good. He was cautious about that statement because social workers often say that parents act up i.e. better because the external guardian is there. Nonetheless he noted that there was love and affection between the Second Respondent and his daughter. He was concerned that perhaps the Fourth Respondent was fearful of men generally, which might explain some of her reaction even to her father. As far as he was concerned, the presence of a video recorder could not harm her, and neither could the presence of an independent person when the father was exercising a contact session. Indeed the presence of an independent person or the existence of a video recording might be useful in improving matters if it showed the Children's Service trying to work with the father. In cross examination he agreed that the independent observer in that case should not be part of the Children's Service. Cross examined by Advocate Woods, the Guardian said that the Second Respondent was not happy with the Fourth Respondent's current placement. He thought of himself as the father with more rights than anyone else has over the Fourth Respondent except the mother. In the Guardian's view, the Second Respondent is likely to continue to be angry, and he was pessimistic about the possibilities of change. The quality of contact he agreed was inconsistent and elements of it might be seen to be harmful. The volatility of the Second Respondent was the most worrying part, and the one thing that the Fourth Respondent really needed was stability and security. In her closing submissions, Advocate Heath emphasised that the real concern was the father's volatile behaviour. He has not acknowledged the concerns which exist about him. He does not admit any domestic violence and therefore he will not be able to attend on the ADAPT course. While the mother has in large measure been able to accept her problems and the diagnosis which has been made, the father has not.
49. The Court has considered all the material before it and approves the care plan and the proposed contact arrangements between the Second Respondent and the Fourth Respondent. Wherever the truth lies in relation to the assault which took place during the week of the hearing, the facts suggest that the Second Respondent is still active in the drug community in the sense that he is associating with those who take drugs. We have looked carefully at his conduct over the course of the last months and we have concluded that he cannot distinguish between the Fourth Respondent's needs and his own needs. A good example of this is his suggestion, at quite a late stage in the proceedings, that the Fourth Respondent could go to live with his mother in Italy. That possibility would have involved removing the Fourth Respondent from K's care where she has made great progress since October last year, removing her from her sister and her mother whom she has known all her life, and placing her in a foreign country where a different language is spoken and with a person with whom she is substantially unfamiliar. No-one who was focussing on the child's needs, as opposed to his own, could have thought that to be appropriate.
50. We are not of the view that the Second Respondent will act violently towards the Fourth Respondent, nor that there will be much opportunity for him to act violently towards the First Respondent in the Fourth Respondent's presence. Nonetheless, we are concerned at the Second Respondent's refusal to accept the diagnosis of Dr Harrison in relation to the delusions from which he suffers, and we think that there is some uncertainty as to how the delusions will affect his mental health over the next 12 months when "the game" is supposed to come to an end. We are strongly of the view that the Second Respondent's lifestyle is more of a concern than that of the First Respondent in the sense that she largely acknowledges her problems and has sought help, whereas he denies them and refuses it.
51. In our view, a reduction of contact on a supervised basis to once a month will not irreparably damage the relationship with his daughter or such bond as there might be and is in the child's best interests. It will give her an opportunity to settle and invest in her new home with a minimum of distraction and confusion. Furthermore, the matter of contact can be reviewed later in six months time. We consider the Minister's proposals to be appropriate.
52. In the light of the dispute between the Minister and the Second Respondent over the content of the contact or observation logs, we asked Advocate Brace to let us know what the Minister's policy was in respect of the distribution of these logs to parents. What we had in mind was that if these logs were distributed routinely, shortly after the contact took place, any dispute as to the content of the logs could be raised immediately, and addressed at a time when the events were clear in the minds of all those who were present. To have an argument six months after the event as to whether, at a particular contact session, a two year old child ran to the father with a smile on her face, or whether she came somewhat reluctantly may be an important dispute to resolve, but learning of it either on disclosure shortly before the hearing or in any event some weeks after the contact session took place does not provide a good basis for a factual enquiry. When the Family Support Worker Mrs Jean Du Heaume gave her evidence and the contact logs were put to her by Advocate Woods with various points being disputed, her regular response was that she could not remember at the time of the hearing everything which had taken place over each contact session, although she did recall some things. Whenever she could not recall particular observations, she stood by the content of the contact or observation log. Her practice was to take notes during the contact sessions and if possible to write them up the same day.
53. Advocate Brace said she would ascertain what the Children's Service policy was and advise us. After the hearing she reported that the Children's Service have no written policy, but that observation logs were classified in the same way as social workers case notes. They are not routinely distributed to parents, other than during court proceedings when as part of the disclosure process they are distributed to the parties through the Law Officers' Department.
54. The policy which the Children's Service adopts in relation to these disclosure logs is a matter for that department, in the first instance, rather than for the Court but we hope it might be helpful if we make these observations. First of all, we recognise that in most cases the contents of the contact log will not be directly relevant. What occurs during the contact sessions will no doubt assist the social workers, other professionals and the guardian to form a view as to the relationship between the child and the person having contact with him or her, and may therefore have an impact on the evidence which ultimately is given before the Court, whether by means of a written report or oral evidence but the log will generally just reflect the experiences of the writer who attends these sessions. In the case of the guardian, he or she will usually have observed a contact session, and therefore the contents of the observation or contact log maintained by the Children's Service will be only one factor in the formation of the view which is given to the Court. Accordingly, a practice of routinely sending out the observation or contact log notes may not be justified on a cost/benefit analysis. Secondly, however, it perhaps could be recognised that the contact logs are capable of being viewed with some suspicion by parents who may feel that the Children's Service are hostile towards them. Best practice clearly involves the writing up of the contact logs as soon as possible after the contact session has taken place, on the basis that the longer the delay, the less reliable the contact log would be. It may be that the Children's Service could consider a policy which involved notifying parents or those having contact that if they wished to apply to the Children's Service after a contact session for a copy of the log, they could do so and a copy would be available for them if they attended at the relevant departmental address to collect it. We emphasise however that the Children's Service policy in relation to contact or observation logs is a matter for the Children's Service and not for us. The comments which we have made may or may not be apposite, and may either go too far or not far enough. They reflect an unease on our part that there is the possibility of unfairness where reliance is placed by the Minister on some observation logs which, by the time the person wishing to criticise them obtains a copy, are historic.
55. We now turn to the question of parental responsibility. The application was made by the Second Respondent under Article 5 of the Law. As with other matters involving children, the child's welfare is the Court's paramount consideration, and on the application of LS-v-NS [2007] JRC 103A, the Court should consider:-
(i) The degree of commitment which the applicant has shown towards the child;
(ii) The degree of attachment between him and the child;
(iii) The applicant's reasons for making the application.
56. Furthermore the Court should recognise that these factors are not exhaustive and all relevant circumstances should be taken into account.
57. We also have noted the case of Re G (A Minor) (Parental Responsibility Order) [1994] 1FLR 504 where at page 508 Balcombe LJ said this:-
58. We also note that if the Court were to make an order for parental responsibility under Article 5(1)(a), that order can be discharged under Article 5(4), which is some protection in the event that a father, given parental responsibility, then abused it by making unnecessary and unwarranted applications.
59. We have described already the evidence of the mother as well as the father in relation to the degree of commitment which was shown towards the Fourth Respondent in her early months, and also the evidence in relation to his contact with his daughter after the relationship between him and the mother broke down. We note also that the father has exercised weekly supervised contact since 19th December, 2011.
60. The parenting assessments show clearly that the Second Respondent loves his daughter and has a tender and affectionate approach to her. Frequently this has been reciprocated.
61. Advocate Woods submitted that the father gives his reasons for applying for parental responsibility as being a desire to remain closely involved in the important decisions in his daughter's life, and a desire to ensure that as she gets older, he wants her to understand that he loves her and wants to remain a part of her life. In particular, at this time of uncertainty insofar as her relationship with her mother is concerned, it is said that it would be particularly important that she knows that her father loves her and is interested in her welfare, and has not abandoned her; and furthermore it is said that it is important that the father should have the right to be able to seek to discharge the care order under Article 33 of the Law, or indeed to make any application for a variation of that care order, which he would not be able to do if not given parental responsibility.
62. The Minister opposes the application for parental responsibility at this stage. The concern is lodged in the context of the overall picture. There is some doubt about the level of attachment which the Fourth Respondent shows her father, and unusually one would expect to see a formal expert's view of that attachment before making the order for parental responsibility. When Ms Jenner gave evidence, she agreed that the Second Respondent loved his daughter, but she did not think there was much attachment on her part, considering the amount of hours during which contact had taken place. Generally, the view which Ms Jenner expressed was that the quality of contact was not very good. The Guardian's approach was that the level of attachment on the Fourth Respondent's part was not great, and he did not support the application for parental responsibility. In his view, the Second Respondent had not shown that he could work with those who cared for the Fourth Respondent, and he was worried that the Second Respondent would undermine the care which she received. Taking all those factors into account, it was thus submitted by the Minister and the Guardian that, having regard to the obligation in Article 27(1) of the Law that the Minister should allow reasonable contact between a child's parents and a child who was in care, and having regard to the Minister's assurance that in practice the father would be consulted from time to time, it was not unfair to refuse the application for parental responsibility.
63. The Court has given anxious consideration to this matter, not least because we entirely accept the views expressed by Balcombe LJ as cited above, that prima facie it is in the interests of the child that his or her natural father should have parental responsibility. Nonetheless, in this case, we are troubled as to whether the father has really established a commitment towards his daughter. Genuine commitment involves an ability to put the child's interests first, which in the context of this case, requires a change in lifestyle, a determined effort to get on well with the Children's Service as well as an ability to accept the problems which the father has in his own personal life. Against the application of these tests, the father has not shown a commitment towards his daughter.
64. We think it is important that the Children's Service should continue to consult the father. Furthermore, his circumstances may change, and although we are refusing the application for parental responsibility now, we expressly give him liberty to apply at a later stage, to the extent that might be considered necessary. Circumstances may change. He may decide that he can and should receive treatment for his delusional condition which Dr Harrison has diagnosed and which so far the father rejects. We emphasise that we should not in any sense be considered to be condemning the father. We consider, by contrast, that he is simply suffering from some medical mental health problems for which there is an antidote, and we think that properly motivated, he could get himself into the position where an application for parental responsibility could be favourably considered. In the light of the evidence we have heard, as a whole, we do not think that he has reached that position yet.
65. Finally, we would like to take the opportunity of commending all counsel for their approach to this case but in particular Advocate Brace who was called to appear for the Minister at very short notice indeed, as a result of an unforeseeable temporary illness of the advocate who had been instructed, and was nonetheless entirely on top of her brief.
