Jersey Unreported Judgments

Secure Accommodation Order.

[2021]JRC322

Royal Court

(Family)

20 November 2021

Before     :

J. A. Clyde-Smith OBE., Commissioner, and Jurats Ronge and Hughes

 

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

AND IN THE MATTER OF EE (SECURE ACCOMMODATION ORDER) (ASSISTED BY SUE CLARKE IN HER CAPACITY AS GUARDIAN)

Advocate H. J. Heath for the Applicant.

Advocate C. R. G. Davies for the First Respondent.

Advocate N. S. H. Benest for the Second Respondent.

Advocate M. R. Godden for the Third Respondent.

judgment

the commissioner:

1.        On 15^th November 2021, the Court granted the Minister's application to extend the Secure Accommodation Order made on 24^th August 2021 [unpublished] in respect of the Third Respondent EE ("the Child"), aged thirteen, for a further period of three months.  The application was supported by the Guardian but opposed by the Second Respondent ("the Mother").

2.        To recap briefly on the procedure, an interim care order was made in respect of the Child on 29^th September 2020.  Psychological assessments were obtained from Dr Bryn Williams and Dr David Briggs.  Final hearing dates, firstly in April 2021 and then in June 2021 were postponed.  A Secure Accommodation Order was made on 29^th April 2021 for the period ending on 21^st July 2021 and a second Secure Accommodation Order was made on 24^th August 2021 for the period ending on 16^th November 2021. 

3.        No date for a final hearing has yet been fixed, as the case took a new turn on the filing of the interim report of Mike Davies, a paediatric neuropsychologist, to the effect that the Child was born with [redacted] by which his brain was damaged.  He was assessed by Mike Davies as functioning with the social, emotional, communicative and intellectual abilities of a child between the ages of four and seven and a half years, but with some age appropriate and street-wise behaviours.  The outlook appeared challenging to say the least.

4.        The Child has absconded some 223 times, with episodes varying from a few hours to over 24 hours. Even when in secure accommodation at Accommodation F, he absconded frequently when taken out into the community. 

5.        In an attempt to meet his needs, an intensive foster care placement was prepared for him, and approved by the Court.  The planned transition from Accommodation F to this new placement appeared to go well, but on the first night there, he absconded in the early hours, alleged that he had stolen a car and ended up at the Mother's house, from where he was returned to Accommodation F.  He made it clear that he would not return to the foster placement and that he would continue to run unless returned to the care of his Father, who has refused to cooperate with an assessment of his parenting capability and who Dr Briggs said does not have the framework and competence to keep the Child safe from harm.  The Father has, in any event, declined to care for him.  The Mother is also unable to meet his needs.  The residential placement at Accommodation G, where he had robust support, had clearly not worked and the Minister is therefore currently exploring the possibility of an off-Island placement, able to meet the requirements recommended by Mike Davies.  Initially the Minister was looking for an extension to the Secure Accommodation Order of one month.

6.        The threshold for the making or continuing of a Secure Accommodation Order is set out in Article 22(1) of the Children (Jersey) Law 2002, which is in these terms:

"(1)     Subject to the following provisions of this Article, a child who is being looked after by the Minister may not be placed, and, if placed, may not be kept, in secure accommodation unless it appears -

           (a)        that -

(i)         the child has a history of absconding and is likely to abscond from any other description of accommodation, and

(ii)        if the child absconds, he or she is likely to suffer significant harm; or

(b)        that if the child is kept in any other description of accommodation he or she is likely to injure himself or herself or other persons."

7.        The Minister submitted that the Child had an undoubted history of frequent absconding and was likely to suffer significant harm by virtue of his vulnerabilities and involvement in criminal activity, but the application was made on the basis that both limbs of the threshold were met, as the Child was likely to injure himself or others in any other type of accommodation.  The Minister's concerns repeat those that have been made at previous applications and were summarised as follows:

"i.        [The Child's] absconding is persistent, unpredictable and completely without any insight by him into the risks he is exposed to.

ii.        [The Child's] flight reaction and lack of insight prevents his engagement with any plan of safety arounds his behaviours.  He does not seek out safe people or safe spaces.  His whereabouts, activities, associates and welfare are unknown during his missing episodes.

iii.       [The Child's] vulnerabilities are exacerbated by his age, understanding and dysregulation.

iv.       His missing episodes and behaviour, generally, are resulting in actual harm, including involvement with the criminal justice system.  It is likely that when absconding, [the Child] may be suffering harm that the Minister and his parents are not aware of.

v.        The Minister is unable to keep [the Child] safe, prevent his absconding, or ensure his safety when he absconds.

vi.       Secure accommodation is the only current measure that presents the safe opportunity for sourcing alternative and tailored accommodation that will meet [the Child's] needs.

vii.       The most recent experience of [the Child] absconding from his intensive Foster Care Placement at the introductory visit, evidences the likelihood of repeat of behaviours, with the possibility of more grave consequences for [the Child's] welfare than that experienced to date."

8.        The Guardian accepted that the threshold for the making of a further Secure Accommodation Order was met but pointed out that holding the Child in secure accommodation could not be a long-term solution.  She agreed that if he was not kept in secure accommodation, he would carry on behaving as before.  He was unable to assess risk, or to make safe decisions.  The risks were very high if he was not kept in secure accommodation. In her view, the proposed extension for one month was completely unrealistic, bearing in mind the time it would take to locate a placement out of the Island and obtain the Court's permission for the Child to live there. The Guardian recommended that bearing in mind a Secure Accommodation Order is permissive, it should be renewed for a period of two to three months.  

9.        The Guardian had spoken to the Child's key worker at Accommodation F on the morning of the hearing, and at that time, neither parent was speaking to him.  The Guardian was told that whilst he was not happy at Accommodation F, he related to the staff there.  He now wanted to go and live with his mother, the relationship with his father having broken down. 

10.      Advocate Davies was without instructions from the Father, but Advocate Benest, for the Mother, opposed the extension of the Secure Accommodation Order. On examining the residential placement logs from 6^th September - 9^th November 2021, it was revealed that the Child had been asking to be locked in his own room for his own safety as he was scared of another resident, that he has been self-harming in so far as he has punched walls, requiring medical treatment to his hand, and that he had smashed the television in his bedroom, scattering glass across his room and his bed.  In the Mother's view, he was no more safe in Accommodation F than he would be in another unsecure residential placement. 

11.      There clearly had been incidents at Accommodation F, where there were four residents (the maximum that can be managed there), but in the view of the Social Worker, the Child was safer there than in any other unsecure residential placement, bearing in mind that he was under the constant supervision of the staff.

12.      Advocate Benest questioned whether it could be said that the Child had truly absconded, referring to this extract from the judgment of the English Court of Appeal in the case of In the matter of W (a child) (Secure Accommodation Order) [2016] EWCA Civ 804:

"21.    Miss Judd QC's arguments in relation to the Judge's definition of 'absconding' arose in the fact-specific circumstances of this case and did not persuade us that it is necessary to attempt to define the term beyond its ordinary meaning. Munby J (as he then was) in Re G (Secure Accommodation Order) [2001] FLR 884 at 895 relied on the definition of 'abscond' as found in the Concise Oxford Dictionary.  This accords with the usual application of the term to connote the element of 'escape' from an imposed regime.  Mr Tyler QC's reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps born of the need to support his argument that Keehan J's approach to the issue was correct.  However, it seems to me to add an unnecessary gloss to a term which is able to be readily understood.  Although trite to say, the facts will speak for themselves.  As it is, we were satisfied, as we indicate below, that the judge wrongly categorised W's absences from the unit in which she had been placed since January 2016 as constituting part of a history of absconding.    

22.      In determining that W had absconded, Keehan J invoked the facts that W had 'disengaged with the unit, returning not 'just a few hours later but well into the following day'.  I do not consider that this meant that W was 'absconding' from the unit, in terms of escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed.  However, the factual matrix of the case was determined by Keehan J quite clearly satisfied the criteria in s 25(1)(b).  Placed in any accommodation other than that which could 'contain' her, she was in danger of serious harm."

13.      Applying paragraph 22 of that judgment, Advocate Benest submitted there was no evidence that the Child had intended to abscond indefinitely; indeed, he invariably presented himself to police headquarters with a request that he be returned to his placement.  She submitted that in these circumstances, the "child missing" episodes did not sit within the definition of absconding, applying Re W.

14.      However, as Advocate Heath pointed out, that is to ignore the first sentence of paragraph 21 of Re W, in which the English Court of Appeal was not persuaded that it was necessary to attempt to define the term "absconding" beyond its ordinary meaning.  Advocate Godden referred the decision in Re M (a child) (Secure accommodation order: length) [2018] EWCA Civ 2707 in which the English Court of Appeal said at paragraph 4:

"4.      Absconding means something more than trivial disobedient absence.  It may connote an element of escape from an imposed regime (Re W [2016] EWCA Civ 8704 at [21]) but it is not limited by consideration of the intentions of the individual concerned.  Judges can be relied upon to give the word its ordinary meaning and recognise behaviour that can be properly described as absconding in all the circumstances of the individual case."

15.      The history of the Child leaving his parents, his residential placement and Accommodation F without permission was extensive and certainly not trivial. In the Court's view, it was beyond doubt that he had a history of absconding using the ordinary meaning of that word.

16.      Advocate Benest argued that in any event there was no evidence of the Child suffering significant harm when absconding.  He had a tendency to fabricate events, as acknowledged by Mike Davies at paragraph 56 of his report.  However, as Advocate Godden points out, we are dealing here with the likelihood of significant harm, well established in this context as meaning a possibility that cannot sensibly be ignored - see In the matter of F and G (No. 2) [2010] JCA 051 at paragraph 6(v). A perusal of the police reports alone left the court in no doubt that the likelihood of significant harm for this thirteen-year-old child (with a much lower functioning age) could not be sensibly ignored.

17.      Some of the entries in the logs gave rise to a concern on the Mother's part as to the Child's mental health in Accommodation F, and Advocate Benest questioned whether care for the Child should be provided for under the auspices of the Mental Health (Jersey) Law 2016.  This concern, combined with the finding of [Redacted] and the Child's lack of capacity led her to question whether a further Secure Accommodation Order should be ordered at this stage.  She referred to the case of Wigan Metropolitan Borough Council v W, N, Y (By his Children's Guardian), Wrightington Wigan & Leigh Teaching Hospitals NHS Foundation Trust, Greater Manchester Mental Health NHS Foundation Trust [2021] EWHC 1982 (Fam), in which the English High Court declined to authorise the continued deprivation of liberty of a child, Y, aged twelve, given the conditions in which he was currently deprived of his liberty, which was in breach of Article 5 of the ECHR, notwithstanding that there was no alternative currently available for Y.  He was subject to an interim care order and was therefore a looked after child.  The facts were explained in paragraphs 2-4 of the judgment as follows:

"2.      In what will be a scenario now depressingly familiar to those in the habit of reading on BAILii judgments given by High Court judges and Deputy High Court judges in cases of this nature, and within the context of acute emotional and behavioural difficulties consequent on past abuse, Y has been assessed as not meeting the relevant criteria for detention under ss. 2 or 3 of the Mental Health Act 1983 as he is not considered to be suffering from a mental disorder.  At the same time, the therapeutic treatment within a restrictive clinical environment for acute behavioural and emotional issues arising from past trauma that he does urgently require is simply unavailable.

3.        In the circumstances, Y is currently and inappropriately placed on a clinical ward at the [named hospital] where he has had to be subject to chemical restraint, physical restraint and 5:1 staffing in order to attempt to control his behaviour.   At times there have been up to thirteen on the ward in an effort to control Y's behaviour.  That paediatric ward has now had to be shut to new admissions due to the risk presented by Y and parts of the ward have been closed entirely.  Other gravely ill children have had to be moved to alternative hospitals across the North West of England and lists of elective surgeries for children in urgent need of such treatment have been cancelled.  Nurses and other hospital staff have been injured.  Other sick children and their parents have been alarmed and frightened.  At present, Y has nowhere else to go.

4.        Within this context, Wigan Metropolitan Borough Council applies for an order authorising the continued deprivation of Y's liberty on the hospital ward, that application having been issued on 6 July 2021. Y is also the subject of care proceedings under Part IV of the Children Act 1989 issued on 1 July 2021.  On 8 July 2021, the Designated Family Judge for Greater Manchester, Her Honour Judge Singleton QC, made Y the subject of an interim care order and an interim order authorising the deprivation of his liberty and re-allocated this matter to me for hearing."

18.      Describing the Y's current situation in a hospital ward as "inappropriate demeaning and, quite frankly, brutal one for a twelve year old child" MacDonald J said this at paragraph 64:

"64.    Judgments given by a court should be sober and measured.  Superlatives should be avoided.  It is likewise prudent that a judge carefully police a judgment for the presence of adjectives.  However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child 'as shameful as this one is', Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement.  But that is not a solution that can be countenanced in a civilised society.  The test laid down by the law is not which is the lesser of two evils but what is the child's best interests having regard to the child's welfare as the paramount consideration.  The parens patriae inherent jurisdiction of the court is protective in nature.  As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y's current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility."

19.      Advocate Benest did not suggest that in this case the circumstances of the Child compared to that of Y in Wigan. In this case, the Minister has tried placing the Child in a residential home, with substantial support, and then in a bespoke intensive foster care placement, which broke down on the first night.  The Minister was now actively pursuing the placement of the Child outside the jurisdiction, an exercise which takes time, and is rightly concerned with keeping the Child safe in the interim.  However, as the Guardian says, secure accommodation cannot be a long-term solution, and the Minister does not contend otherwise.  This is, in effect, the third Secure Accommodation Order that has been made in respect of the Child and there may come a point when the Court will be unable to continue with this deprivation of his liberty.

20.      Having heard the evidence of the Guardian, the Minister amended his application to seek an extension of the Secure Accommodation Order of three months.  The Court agreed that 28 days was far too short and would almost certainly give rise to a further application having to be made to extend the Secure Accommodation Order, which would only cause unnecessary uncertainty and potential distress.  Knowing that the order is permissive and subject to regular review, the Court therefore extended the Secure Accommodation Order for three months.

Authorities

The Children (Jersey) Law, 2002. 

24th August 2021 [unpublished]. 

In the matter of W (a child) (Secure Accommodation Order) [2016] EWCA Civ 804. 

In the matter of F and G (No. 2) [2010] JCA 051. 

Mental Health (Jersey) Law 2016. 

Wigan Metropolitan Borough Council v W, N, Y (By his Children's Guardian), Wrightington Wigan & Leigh Teaching Hospitals NHS Foundation Trust, Greater Manchester Mental Health NHS Foundation Trust [2021] EWHC 1982 (Fam). 

 

"This version of the judgment may be published only on condition that the anonymity of the children and their family is preserved and that there is omitted any detail or information that may lead to their identification, whether on its own or in conjunction with other material in the judgment. This includes, but not exclusively, information of location, details of family members, organisations such as school or hospital, and unusual factual detail. All persons, including representatives of the media, must ensure that this condition is complied with. Failure to comply will be a contempt of court."