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Jersey Unreported Judgments


You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of Tommy (Care order) [2015] JRC 029 (10 February 2015)
URL: http://www.bailii.org/je/cases/UR/2015/2015_029.html
Cite as: [2015] JRC 29, [2015] JRC 029

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Care order - application by the Minister for a final care order.

[2015]JRC029

Royal Court

(Samedi)

10 February 2015

Before     :

W. J. Bailhache, Bailiff, and Jurats Nicolle and Milner

Between

Minister for Health and Social Services

Applicant

 

And

The Mother

First Respondent

 

And

The Grandfather

Second Respondent

 

IN THE MATTER OF TOMMY (CARE ORDER)

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

Advocate C. R. G. Davies for the Minister.

Advocate P. G. Nicholls for the First Respondent.

Advocate A. T. H. English for the Second Respondent.

Mrs E. Fernandes, Guardian.

judgment

the bailiff:

1.        This is an application by the Minister for a final care order in respect of Tommy, who is aged 12, the son of the first respondent ("the mother") and the grandson of the second respondent ("the grandfather"), his maternal grandfather.  The Court made orders on 13th January, 2015, declaring itself satisfied that the threshold criteria had been met, and approving the care plan with a final order committing Tommy into the care of the Minister.  The Court also granted leave to disclose Dr Willemsen's assessment dated 16th October, 2014, to Tommy's foster carers.  The reasons for the decisions were reserved, and this judgment contains those reasons. 

2.        The judgment is not long because the parties before us were agreed on the terms of the orders which were sought.  As was said In the matter of the T Children [2009] JRC 231, the Court is required to be satisfied on evidence that an order under Article 24 of the Children (Jersey) Law 2002 ("the Law") should be made, and the requirement to be so satisfied places a duty on the Court to make such enquiries as to the evidence as are appropriate to that case.  However, where matters have been substantially agreed by the parents and other relevant parties, including of course the Minister and the guardian, it is generally not necessary for a court to proceed with a long trial. 

3.        Tommy's father has never been involved in his care and does not hold parental responsibility.  He does not live in Jersey and although he has been notified of these proceedings he has not sought to participate in them. 

4.        In this case, the Court is entirely satisfied on the written material contained in the bundles put before it that the mother, the grandfather and the guardian all consider that the Minister's application for a final care order should be granted and the care plan approved, and, having read the material put before us, we are satisfied that this is the right course to follow.  In reaching that conclusion we have noted that threshold has been agreed, and given the matters of fact which have been agreed in the threshold document, we think rightly agreed, although we will refer to threshold in slightly more detail later in this judgment. 

5.        We have also taken into account the report of Dr Willemsen who is a psychologist jointly instructed to prepare an assessment on the grandfather and on Tommy, and to opine on possible contact between the mother and Tommy, whose report was circulated and not challenged.  Indeed, although Dr Willemsen had been warned for this hearing, he was stood down as a witness by agreement between the parties, and it follows that the Court is entitled to take his report as reflecting his unchallenged opinions. 

6.        In accordance with practice, Ms Jade Allchin gave evidence attesting to her belief that her final statement and care plan was true.  She was not challenged to any degree save insofar as concerned Tommy's younger sister Sarah.  The reason for that questioning again will become apparent later. 

Threshold

7.        The threshold document has been signed by advocates representing the Minister, the grandfather and the mother.  We have proceeded on the basis that the advocates had authority from their respective clients to sign that document on their behalf, and indeed insofar as the grandfather is concerned, this was expressly stated to us in Court by Advocate English.  We interpose here to say that by reason of illness the grandfather was not present at the hearing.  No medical certificate was supplied by him, although a medical certificate was made available later in the day.  We proceeded upon the assumption, however, that he was genuinely ill and unable to attend Court.  In those circumstances we had to consider the extent to which it was appropriate to proceed in his absence.  In the event, on the application of Rule 17(4) of the Children Rules 2005 the Court determined that it would proceed.  That Rule provides the Court should not hear an application in the absence of a respondent unless it is proved to the satisfaction of the Court that the respondent received reasonable notice of the date of the hearing or the Court is satisfied that the circumstances of the case justify proceeding with the hearing.  In this case, the Court was satisfied on both counts.  The grandfather undoubtedly received reasonable notice of the hearing, but in any event the Court was satisfied that the circumstances of the case justified proceeding.  This was because threshold had been agreed on his behalf, and according to Advocate English on his express instructions, secondly the expert witnesses have been stood down by agreement, thirdly the care order was agreed by the grandfather to be the appropriate order to make and fourthly because it was in Tommy's interests that a decision should be taken in early course as to his future.  The last point can in fact be reversed - it was very much not in his interests that there should be any further delay. 

8.        The opening language of the threshold document is important.  It is in these terms:-

"It is accepted that at the relevant date, Tommy was suffering or was likely to suffer significant harm; that harm being attributable to the care given or likely to be given to him by [the grandfather], or [the mother] not being what it would be reasonable to expect a parent to give to the child.  The relevant date is the 18th November 2013, being the date on which [the grandfather] agreed that Tommy should be looked after by the Minister pursuant to Article 17(1) of [the Law] and since when protective measures have been continuously in place."

9.        It was agreed in the threshold document that between April 2004 and March 2010 the Children's Service received nine referrals highlighting concerns for the welfare of Tommy and his sister.  These included poor and unhygienic home conditions, Tommy presenting with a speech delay, inadequate nutrition and diet and inadequate provision of safety and shelter.  Also between 2004 and 2010 the Children's Service received eight reports that Tommy and his sister were regularly being cared for by other individuals than the mother.  In October 2009, a parent informed the school which the children then attended that they had been observed sheltering under trees when it was raining as they could not access their home.  When a visit took place in January 2010, the mother's home was untidy and extremely dirty.  The bedding and linen in particular were in an unclean and poor state. 

10.      It was agreed that the mother had caused significant emotional and physical harm to Tommy due in part to inappropriate relationships, substance misuse and her inability to prioritise the care of her children.  As a result, the Children's Service had received reports of alleged physical abuse against Tommy and his sister perpetrated by the mother and two of her partners; had received individual disclosures of witnessing or experiencing abuse within the home from Tommy and his sister - they had witnessed the mother injecting herself with heroin, and one of her partners carrying weapons and threatening individuals.  In particular, one partner carried a knife and one of Tommy's school teachers reported that he had been told by Tommy that the partner "carries a flick knife around for people he does not like".  Tommy had also claimed that the partner had carried the knives and put them to people's throats if they were "mean to him".  The abuse was alleged to have included sexual abuse by one of the mother's partners.  Furthermore, Tommy stated in May 2010 that his mother squirted lighter gas fuel into her mouth when she thought no one was watching. 

11.      The grandfather became the primary carer for the children in March 2010 and was granted a residence order on 25th November, 2010, thus obtaining at that time parental responsibility.  The threshold document sets out agreement that his ability to care for Tommy, given the child's particular needs, has been partly impeded by the grandfather's own health issues.  He was admitted to hospital with anaemia in October 2010.  In November 2012, he was admitted again after a kidney failure and was not discharged until mid-January 2013. 

12.      Importantly it is agreed that the grandfather has been unable to manage Tommy's behaviour.  In October 2010, Tommy is described as having rages, trashing his room and hitting his sister.  In May 2012, his grandfather stated that he was struggling to control his grandson.  In April 2013, the grandfather advised the Children's Service that Tommy had used knives to threaten him, was stabbing walls and using foul language.  In May 2013, it was agreed that the grandfather had contacted the Children's Service stating he was unable to cope with Tommy.  In November 2013 the grandfather told Tommy that his behaviour was making him unwell.  On 14th November, the grandfather again stated he was finding it very hard to cope with what was asserted to be Tommy's recent bad behaviour.  The same day, Tommy went missing as he did not return home for dinner at 17:00 hours.  He was unwilling to return home and could not give any reason why he did not want to stay with his grandfather. 

13.      On the basis of this threshold document, agreed by all parties, the Court was satisfied that threshold was passed. 

14.      We then followed the approach laid down by the Court of Appeal in Re F and G (No. 2) [2010] JCA 051.  We have recognised the child's welfare to be the paramount consideration, and have had regard to the welfare checklist. 

The ascertainable wishes and feelings of the child

15.      The guardian has reported fully her discussions with Tommy as to where he wants to live, and with whom.  Tommy is clear that at one time his grandfather was not an easy man to be with, but things had now changed.  He wanted to go back and live with him.  He said that everything had changed.  His grandfather no longer shouted, did not ground him, and gave him time to do things.  He used to be angry all the time, but now he is not.  As far as Tommy was concerned, things had improved between himself and his sister and they no longer argued as once they did.  He was clear that if he could not stay with his grandfather, then he wanted to stay with his current foster parents, as indeed is the Minister's suggested care plan.  Subsequently he said that if he was not with his grandfather he would want to be with his aunties first and then with his existing foster carers. 

16.      Given that he is aged 12, we have naturally had to have careful regard to Tommy's views.  Despite those views, we have made the care order and the reasons for doing so really flow from the analysis below, but we emphasise that we have thought carefully about the points which he has made. 

The child's physical, emotional and educational needs

17.      There are no concerns about Tommy's health.  As to his emotional needs, it is clear that he has settled well into his present placement and appears to be fully integrated into the household of his foster parents.  He has been away on holiday with them and gets on well with members of the family.  There have been no concerns about his behaviour since moving in with them.  Indeed Dr Willemsen notes in his report that "it is important to note the change in Tommy's behaviour following the intervention of being removed from the care of his grandfather into care; this indicates that the change of care positively affected Tommy's behaviour".  The grandfather does not agree with this assessment and does not accept that his parenting had anything to do with Tommy's previous behavioural difficulties.  As far as he is concerned, it is the Children's Service who failed to do enough to ensure that Tommy and his sister received counselling to help them make sense of their early life experiences.  We are told by the guardian that Tommy's emotional needs are currently met in his foster placement where he feels safe and secure.  That certainly is borne out by the change in behaviour since he moved in with his foster parents, who are committed to providing him with long-term foster care.  There is concern that Tommy feels some emotional guilt as to the effect of his living elsewhere on the health of his grandfather, and also that his being taken into care is the result of his own conduct and therefore his fault.  We will return to this later in this judgment. 

18.      There have been some issues at school due to Tommy's behaviour, leading to him being temporarily withdrawn from lessons, but there have been no suspensions. 

The likely effect on the child of any change in the child's circumstances

19.      The recommendation of the Minister in the care plan is that Tommy should remain in the care of his foster parents on a long-term basis.  There would therefore be no physical change to his current circumstances.  Both the mother and the grandfather acknowledged that he is best placed where he is at present.  As the guardian notes in her report, a decision not to seek an order for continued care of a child is one of the most difficult decisions a carer can make.  It does not necessarily reflect a lack of love for the child.  It does not necessarily reflect indifference towards the child.  It can reflect the sacrifice on the part of the carer, made in the best interests of the child.  We are satisfied that that is the position here insofar as both the mother and the grandfather are concerned and it is to their credit that they have taken the approach they have.  

Age, gender, ethnicity, cultural background, language, religion and other relevant characteristics

20.      We note that Tommy has been placed with foster carers who match his cultural background and he is part of the local community. 

Any harm the child has suffered or is at risk of suffering

21.      The report of Dr Willemsen highlights that Tommy is at risk of significant emotional harm if he were to be returned to the care of his grandfather.  He has raised concerns about the grandfather's health history, including anxiety, obesity, depression and suicidal ideation, indicating that the grandfather has been seen by a number of psychiatrists over a number of years.  He says that "[the grandfather] lacks insight and generally looks outside himself to explain the problems he is confronted with".  The grandfather has been on anti-depressant medication since he was involved in a motor accident some 13 or 14 years ago.  He has made it clear to the guardian, and we think it is likely he will have made it clear also to the children, that they are very important in his life, and if he were to lose both of them he would have nothing left to live for.  The guardian expresses concern about the burden of responsibility that is placed on Tommy and his sister in keeping their grandfather safe, and the impact this may have on their own emotional and psychological wellbeing and sense of responsibility. 

Any connected persons who might meet Tommy's needs

22.      Apart from the grandfather and the mother, Tommy has occasionally stayed with his aunts and slept overnight with his grandfather's former mother-in-law.  A careful review, albeit no detailed connected person assessments, has been made, and all the evidence before us is that none of these persons could provide the sort of care which Tommy needs.  We have no reason to question that. 

Discussion

23.      In the light of the fact that so much was agreed between the Minister, the mother and the grandfather, and in the light of the evidence contained in the written reports from Dr Willemsen and the social workers, the Court did not anticipate much by way of oral submission.  However at the hearing it became clear that there was a point raised by the grandfather which required to be addressed.  Advocate English contended that the Court should make its order under Article 24(2)(b)(ii) of the Law, and not under Article 24(2)(b)(i).  The grandfather's position was that in effect the care order ought to be made because Tommy was likely to suffer significant harm attributable to his being beyond parental control, rather than upon the basis that the harm would be attributable, if the order were not made, to the standard of care falling short of what would be a reasonable standard to expect a parent to give.  In oral argument, as we understood it, Advocate English slightly departed from the original contention by submitting that the order could be made under both sub-paragraphs (i) and (ii).  It appeared to us that the reason this submission was being made was that the grandfather was concerned that, as a result of the comments made about him in the report of Dr Willemsen, care proceedings might be taken by the Minister in respect of Tommy's sister as well.  Indeed, the grandfather's position statement points in the direction of this concern.  The grandfather was anxious to avoid anything in the present judgment amounting to a finding of fact which went to support a possible application by the Minister in relation to Tommy's sister.  

24.      Given that the grandfather agreed that it was in Tommy's best interest that he should be in long-term foster care, one could take the view that the submission that the order ought to be made upon the basis of Tommy being beyond parental control was an illustration of the grandfather failing to put the interests of Tommy first and indeed putting his own interest first - because having the children was so important to him that, having "lost" Tommy, it became all the more necessary to retain Tommy's sister.  We do not make any findings of this kind adverse to the grandfather.  Any application in relation to Tommy's sister, if ever there is to be one, will be based upon evidence relevant to that application, and the result of the process adopted in this case is that the evidence has been put before has gone largely unchallenged.  We have no doubt that it was in Tommy's best interests that it should have been unchallenged because the relationship between Tommy and his grandfather remains an important relationship and we would expect the Minister to bear that in mind in the contact arrangements which are made.  There is, of course, a special responsibility placed on the grandfather in this respect as well.  Important relationship though it is, the arrangements which the Minister must make for contact, and any adjudication upon them by the Court, are based upon what is in Tommy's best interests, and not upon what is in the best interests of the grandfather.  Good parenting skills frequently involve a selflessness on the part of the parent, and that is exactly what the grandfather must recognise.  If it gets to the point where contact is not working in Tommy's best interests, but takes place for the benefit of the grandfather, he will find that contact may be reduced even further. 

25.      We therefore turn next to the question raised before us as to which limb of Article 24(2) of the Law provides the basis for the care order.  The relevant provision is as follows:-

"24(2)  The Court may only make a care order or supervision order if it is satisfied -

(a)       That the child concerned is suffering, or is likely to suffer, significant harm; and

(b)       That the harm, or likelihood of harm, is attributable to -

(i)        the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child, or

(ii)       the child's being beyond parental control."

26.      As a matter of construction of the legislation, it is immediately to be noted that there is a conjunctive "and" between sub-paragraphs (a) and (b), and that there is a disjunctive "or" between sub sub-paragraphs (i) and (ii).  Insofar as the latter point is concerned, it seems to us to be clear that the legislature had in mind in the passage of this legislation that the attribution of harm, or the likelihood of harm would either be to the care given to the child falling short of the appropriate standard or to the child's being beyond parental control.  The submission therefore that in any particular case the harm or likelihood of harm might be attributable to both reasons seems to us to have been beyond the contemplation of the legislature when this provision was drafted.  We add that that makes sense as far as our own experience is concerned.  Sometimes, however good the parents might have been, and whatever efforts they might have made, children for reasons which are not easily understood act in a way which is beyond any parental control.  However in the vast majority of cases which have come before this Court, the reasons for a child's behaviour are to be found in the care or upbringing which that child has experienced.  In our experience, if a parent provides reasonable care to a child, one would not expect a child to suffer significant harm or be at risk of suffering significant harm. 

27.      As a matter of construction, we therefore reject the submission that it is possible to attribute the harm or the likelihood of harm both to the standard of care falling short of what it would be reasonable to expect and to the child being beyond parental control.  This is an important point of principle because it goes to the point of whether a child should be regarded as being at fault for the way he or she behaves.  Clearly this is not about any form of criminal responsibility where the issues here under discussion are relevant more to mitigation than to liability.  In the context of care orders made pursuant to the Law, the Court approaches the matter from a different perspective because what would be mitigating factors in a criminal case provide the jurisdiction, if the test under Article 24(2)(b)(i) is met, for the exercise of a jurisdiction to interfere in the private and family life of the child and his or her carers, in the best interests of the child. 

28.      Before leaving Article 24, it is appropriate also to make this comment.  Article 24(2)(b)(i) requires that there is an objective standard to be applied to the assessment of whether the care given to the child was reasonable for a parent to be expected to give.  That it is an objective test is apparent by the use of the indefinite article "a" before the word "parent".  The reference is not to this particular parent but to any parent.  By contrast, the standard of care which it is reasonable to expect of a parent is related to the particular child who is under consideration.  That is why there is the definite article "the" before the word "child" where it appears in that sub sub-paragraph.  It follows that if a particular child has special needs, the Court takes into account those needs and the care that is required for that child and then determines whether it is objectively reasonable to expect any parent to provide that standard of care. 

29.      We therefore consider the question in this case as to whether the care order is made because Tommy was beyond parental control, or whether it is made because he is at risk of harm arising out of the standard of care falling short of what it would be reasonable to expect.  We categorically reject the submission which we understood to have been made that the care order should be made as a result of a finding of fault on the part of Tommy.  We reject the view that it is his behaviour which is unreasonable as opposed to the standard of care which he has been given.  We do not think that any such submission should have been made.  The threshold document, which we understand the mother and the grandfather to have agreed, through signature of this document by their advocates, opens with these words:-

"It is accepted that at the relevant date, Tommy was suffering or was likely to suffer significant harm; that harm being attributable to the care given or likely to be given to him by his grandfather, ..., or mother, ... not being what it would be reasonable to expect a parent to give to the child."

30.      As a result of the acceptance by the parties that this case fell within Article 24(2)(b)(i), the witnesses, especially Dr Willemsen, were stood down.  The grandfather, admittedly by reason of illness, did not put himself forward to give evidence, nor did he apply for any adjournment so that he could give evidence.  Indeed it is hard to see the basis upon which he should have given evidence, in the light of the acceptance in the threshold document that his standard of care fell short of what it would be reasonable to expect a parent to give this particular child. 

31.      The headline point is therefore that the care order is not made because of any failing on the part of Tommy.  It is not his fault. 

32.      It is relevant to reflect that the thrust of the legislation is not, in truth, about the allocation of fault in any event, but when one is dealing with a child who does not understand the implications of the legislation which is being applied, it is sometimes necessary to use language which is unequivocal, even if not entirely appropriate to the legislation.  Whether Tommy reads this judgment or has the material parts explained to him, it is right that he should have firmly the message that the care order is not his fault.  However, the Law is not about the allocation of fault in any event.  It is about making orders which are in the best interests of a child, given the circumstances which have arisen.  In this case the standard of care supplied by the mother over a period from 2004 until 2010 fell significantly short of what it would have been reasonable to expect the mother to provide.  There will be cases where one could say that the failure to provide the reasonably appropriate standard of care was the fault of the parent.  In this case, as in many others, it is not a question of allocating blame, and at some point, probably when he is older, Tommy will hopefully come to an understanding that the care order is not made because the mother or the grandfather comes in for particular criticism, but simply because it is in his best interests that it has been made.  There is no doubt that between 2004 and 2010, the mother was beset by a number of problems, partly arising from her own upbringing, partly from the company which she then kept, in particular her then partners, partly her addiction to drugs and no doubt partly from mistakes of her own making.  In her final statement put before us in this case, she tells us that she has been clean of illegal drugs since late 2010 and does not drink alcohol.  She has since then met and formed a relationship with a new man, whom she has married.  They have a child, and indeed the Children's Service conducted an initial assessment and subsequently a pre-birth assessment, but have not placed that child on the Child Protection Register because it is not considered that she is a risk to him.  In essence she says in her statement that she is not the same person she was during the period when she had care of Tommy.  She recognises that he has suffered harm as a result of the care which she then gave him, and that is one of the reasons why she agrees that the care order should now be made and that he should stay with his long-term foster carers. 

33.      She says in her statement, and through her counsel, that she is concerned for Tommy, that he should be safe and well cared for, and should obtain the emotional and physical support that he needs.  She would like at some point to have contact with him but she recognises that it will be for him to choose if and when that contact takes place.  These are all entirely appropriate comments and we commend her for it.  We also note that, although she did not have to do so given the stance taken in these proceedings, she nonetheless came to Court to listen to all that was said, and therefore indirectly supported Tommy during this process.  It may be important that one day he becomes aware of that fact. 

34.      As far as the grandfather is concerned, we have noted his final statement, which contains a number of important assertions on his part:-

(i)        He has tried his very best to give Tommy the care he needs, and it is a matter of great sadness to him that he cannot provide the care which he recognises his grandson needs and which he desperately wishes to provide. 

(ii)       It is not fair, and not true, to say that he does not love Tommy.  He does. 

(iii)      He has never intended to suggest that Tommy is the problem at all.  He accepts that Tommy worries about him, and for his part he much enjoys spending time with Tommy and would like to see him as often as he wants.  However he reluctantly agreed that reducing the amount of contact in the first instance would be in Tommy's best interests. 

35.      It is worth quoting, because it is consistent with our own approach, a particular paragraph in his statement:-

"I know that this is not Tommy's fault and I worry that he sometimes feels he cannot live with me because he has been naughty in some way.  I would very much like to reassure him that this is not the case.  I would also like to reassure Tommy that he does not need to worry about me, and that, because I love him, I want him to have the best possible life, even if that means he has to live away from me for a time."

36.      All these comments go to support the views which we have expressed that many children's cases - including this one - are not about allocation of fault.  They are about finding the best solution for the child given all the circumstances which have arisen.  Tommy is at an age where he understands all that is happening, but does not perhaps understand in full why some things happen as they do.  Hopefully at some point the comments which are made in this judgment will assist him in that respect. 

37.      Finally it would not be right to ignore in this judgment the contribution which has been made by Tommy's foster parents.  There is no doubt from all that we have seen so far that they have provided a safe and secure home for him in circumstances which both he and they will have found challenging.  The Court is pleased to commend them for what they have achieved so far.  We think it will assist them in the care they will be providing to Tommy in the future if they have a copy of Dr Willemsen's report and we order that this should be made available to them. 

Authorities

Children (Jersey) Law 2002.

In the matter of the T Children [2009] JRC 231.

Children Rules 2005.

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


Page Last Updated: 16 Jan 2017


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