In the matter of W and J [2012] JRC 106C (25 May 2012)

Child access - application relating to the level of contact in respect of the two children.

[2012]JRC106C

25 May 2012

Before :

Sir Michael Cameron St. John Birt, Kt., Bailiff, and Jurats Clapham and Crill.

Between	1. A	First Applicant
	2. D	Second Applicant
And	1. The Minister for Health and Social Services	First Respondent
	2. B	Second Respondent
	3. W and J (acting through their Guardian, Anthony Williams)	Third and Fourth Respondents

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF W AND J

Advocate D. Gilbert for the First Applicant.

Advocate P. S. Landick for the Second Applicant.

Advocate D. C. Robinson for the First Respondent.

Advocate E. L. Burns for the Second Respondent.

Advocate H. Heath for the Third and Fourth Respondents.

judgment

the bailiff:

1. This application relates principally to the level of contact which should be allowed in respect of the two children concerned (who are the subject of Care Orders) pending an adjourned hearing which is to take place in October.

2. On 25th May, the Court announced its decision and ordered an increase in contact. We now give our reasons.

Background

3. The background to this case is described in the Court's judgment dated 28th February, 2012, [2012 JRC 044] ("the February judgment"); see in particular paras 1 - 40. Those paragraphs should be considered as included in this judgment and we do not propose to repeat them. Suffice it to say that we are concerned with two children, W (3) and J (nearly 2). W is the child of the mother (A) and B and J is the child of the parents (the mother and D). Expressions in the judgment have the same meaning as in the February judgment.

4. On 22nd March, 2011, the Court made final Care Orders in respect of the children ([2011] JRC 059). However, pursuant to the Care Plan approved at the time, the children remained living with the parents.

5. On 16th August, 2011, without warning, the Children's Service removed the children from the care of the parents. W was placed in foster care and J was placed with potential kinship carers. Unfortunately this broke down and he was moved to separate foster carers on 30th November, 2011. Each child has remained with his respective foster carers since then.

6. In October 2011, a decision in principle was reached by the Children's Service that the children would not be returned to the parents and the parents were informed that J and W were to be provided with permanent solutions by a way of kinship and adoption respectively. Contact was reduced to once every two weeks on a supervised basis. This was of course prior to the kinship placement breaking down in respect of J. Following that occurrence, adoption was also envisaged for J.

7. In December 2011, the parents applied to discharge the Care Orders and this resulted in the re-appointment of the Guardian, Mr Williams, who had been the children's Guardian at the time of the original care proceedings.

8. As set out in the February judgment, the Guardian produced an interim report on 1st February, 2012, which raised serious concerns over whether it had been right for the Children's Service to remove the children from the care of the parents in August 2011. He recommended an immediate increase in contact, following which the parents made such an application.

9. That was the matter which came before the Court and gave rise to the February judgment. The Minister opposed the application for an increase in contact on the basis, inter alia, that such an increase was indicative of a decision in favour of rehabilitation. The Children's Service also opposed unsupervised contact on the basis that C, the children's maternal grandfather who had been convicted of sexual offences in relation to two teenage children (one of whom was his daughter), was a threat to W and J and work had to be done with the parents prior to unsupervised contact in order to ensure that they understood the risk posed by C. In connection with this risk, the parents gave an undertaking to the Court ("the Undertaking") that they would not allow the children to come into contact with C and would remove them immediately in the event of any accidental contact.

10. For the reasons set out in the February judgment, this Court agreed with the views of the Guardian that the lack of contact was damaging to the children and should be increased notwithstanding that their long term future (i.e. adoption on the one hand or rehabilitation with the parents on the other) was not yet resolved. The Minister sought to appeal that decision but leave was refused by the Court of Appeal on 7th March, 2012.

11. At the time of the hearing in February, it was envisaged that the parents' application to revoke the Care Order would come before the Court in the week commencing 21st May. In preparation for that hearing, the Court, at the request of the parties, ordered two reports to be prepared. First, it ordered a psychological assessment in respect of each of the parents and B. This was in due course carried out by Ms S Gaskins who reported on 5th April, 2012. The second was a report on the attachment of W and J with the parents and the effect thereon of the increased contact which had been ordered. This was prepared by Dr S Murray who reported on 12th April, 2012.

12. The Court had understood that, prior to the anticipated hearing on 21st May, the Minister would have made a decision as to whether to seek adoption and, if she did so decide, would have made an application for a freeing order, which could be heard at the same time as the parents' application to revoke the Care Order.

13. That did not occur and no application for a freeing order has been made. However, the Court was informed on 15th May that the Minister now proposed that the parents' application should be adjourned for six months for a period of testing and assessment. The purpose of the adjournment was said to be so that the Minister could work intensively with the parents in order to assess whether rehabilitation of the children back to their care (with the protection of a continuing Care Order) was a possibility. However, the Minister indicated that a further 3 - 4 months period of assessment would be required before contact could be increased, whereas the Guardian was of the opinion that there should be an immediate increase in contact with a view to testing the possibility of rehabilitation of the children to the parents. Accordingly the Guardian made an urgent application for increased contact and it was that application which came before this Court and was heard for some two days spread over 23rd - 25th May.

14. The adjourned proceedings will now take place at a hearing fixed for two weeks commencing 1st October, 2012. At present, the only matter formally before the Court on that occasion remains the parents' application to discharge the Care Order. It is earnestly to be hoped that, if the Minister decides ultimately to pursue adoption, she takes all the necessary steps before then so that any application for a freeing order can be considered at the same time.

The expert reports

15. As mentioned at paragraph 11, two expert reports were prepared in anticipation of the hearing fixed for 21st May.

Ms Gaskins

16. Ms Gaskins is a chartered psychologist whose specialist field is children and family assessment. On 15th March she saw the mother and D separately, in each case for about three hours. She also met B. She had apparently not seen the contact logs when she wrote her report, although she has since done so.

17. She concluded that, although the mother had impressed professionals with improvements in her attitude and presentation over the last 18 months, she (Ms Gaskins) was unconvinced of the genuineness of this. She felt that any change would not be sustained without psychological therapy, which would need to be long term and intensive. She doubted that the benefit of any gains in the mother's parenting ability would be apparent for two to three years. She had concerns about the mother's ability generally to engage in the process because of the mother's suspicion of such activity. In the meantime, Ms Gaskins believed that the mother continued to present a risk to the children in terms of emotional harm, neglect and an emotionally unstable environment.

18. Most significantly, so far as the Children's Service is concerned in relation to this application, Ms Gaskins did not believe that the mother had a genuine belief in the risks posed by C or the emotional ability to protect the children from him in the long term.

19. As to D, Ms Gaskins was of the view that he also presented a risk to the children as he was focused on his work and, although he might love his son, he did not see the day to day care of the children and responsibility to manage their health appointments as his responsibility. In relation to C, she felt that D did not fully appreciate the risks that C poses to the children and was likely to be too easily "talked around" by the mother to protect the children satisfactorily.

Dr Murray

20. Dr Murray is a consultant clinical psychologist. He was asked to assess the quality of the attachment relationships between the two boys and the parents as well as with each other. He met with the parents and also observed contact between the children and the parents. His view of whether the mother had changed differed from that of Ms Gaskins. He said that he had heard evidence from interviewees that in their view the mother had changed over time, particularly since being in a relationship with D and had become more mature, more reflective and more willing to work with others and listen to advice. He said that, in his relatively brief experience of observing her and negotiating with her, he would concur with that view. He found that it was possible to work collaboratively with the mother although he had the awareness that this collaboration was fragile. His observation of contact was broadly positive although it was clear that the parents found it hard to lay down clear boundaries and insist that the children should conform to those boundaries. It was his opinion that the separation of the children from their parents (particularly during the period when there was very infrequent contact with them following their removal in August) would have damaged their attachment relationships with the parents and made the children less secure. Having said that, the more recent period of time, where contact had been increased substantially following the February judgment, appeared to have led, in his opinion, to a significant improvement in the children's attachment relationships with the parents. He further concluded that the parents were already able to provide much of the kind of care giving experiences that would help to promote secure attachment styles and normal affective and cognitive development in the children, although they would need assistance and support in a number of areas if the children were to return to their full time care.

The Minister's proposals

21. The Minister's proposals were set out in the Outline Care Plan dated 15th May (which was produced for the purposes of seeking the adjournment referred to at paragraph 13 above) and the more developed Care Plan dated 21st May. Both were prepared by Ms Laura Stark, the social worker in the Children's Service who has been allocated to the case since the beginning of the year. She also gave oral evidence before the Court and had prepared a witness statement in connection with the proposed hearing of the application for the discharge of the Care Order.

22. In essence, the Minister proposed the following:-

(i) The adjournment of six months was proposed by the Minister for a period of testing and assessment. The purpose of the adjournment would be to work intensively with the parents in order to assess whether rehabilitation of the children back to their care (with the Care Order continuing) was a possibility. The Care Plan made it clear that, given the report of Ms Gaskins and the history of the case, the Minister felt that adoption was still the most likely outcome in the children's' best interests but the Minister was prepared to keep an open mind during the period of assessment.

(ii) The assessments would be as follows:-

(a) Dr Murray would prepare a psychological needs assessment of the children, because his previous report had only been on their attachment. The intention would be to identify what, if any, additional psychological needs the children may have as a result of their life histories and what skills any carers would need to have to learn to meet those needs. We should add as an aside that it is clear from the evidence that, no doubt as a result of what has happened to them so far in their short lives, the children pose considerable challenges to whoever looks after them.

(b) Ms Gaskins would prepare an addendum to her report in order to advise whether her opinion had changed.

(c) A report would be prepared by the Lucy Faithfull Foundation in order to assess the capacity of the parents and B to protect the children from sexual harm in general and C in particular.

(iii) Ongoing work with the parents would be carried out during the three month period so as to give the parents the opportunity to demonstrate that they were sufficiently motivated to meet all of the children's needs. Thus work would be undertaken with CAMHS on a fortnightly basis to help the parents consider new ways of managing the children's behavioural and emotional regulation and with NSPCC Pathways to provide an early play programme.

(iv) The Children's Service would make some unannounced visits during contact occasions and would also arrange a family meeting to see what support the extended family could give to the parents. It was intended that all the assessments should be completed by the end of August at which time the Children's Service would decide whether it was appropriate to return the children to the care of the parents (under a continuing Care Order). If the decision was made in their favour, the children would be returned during the course of September. If the decision was not favourable, the Minister would then be seeking orders freeing the children for adoption at the October hearing. The Outline Care Plan suggested that the children would not be returned to the care of the parents if appointments were not attended or advice not followed, if the parents had failed to obtain suitable housing or if they had shown insufficient knowledge or understanding to protect the children from the risk of sexual abuse.

(v) As to contact during this period, the Care Plan proposed that, although the timing of the contact would be changed from the current position (so that staying contact would be during the week), the overall level of contact would remain broadly similar to that which was taking place following the Court's order reflected in the February judgment. Thus the proposal was that they should normally have contact from 12 noon until 5pm on Mondays and then from 10am on Wednesdays until 4.40pm on Fridays. The Care Plan made it clear that D might need to make arrangements to take time off work so as to attend appointments.

23. Miss Stark opposed the Guardian's application for increased contact. As she had in February, she contended that it was tantamount to a plan for rehabilitation. That was yet to be decided upon. She was of the view that, before there was any material increase in contact, the extra assessments had to be obtained.

24. Furthermore, she did not agree with the Guardian that the parents could be relied upon to protect the children from C, even with the existence of the Undertaking. She referred to the fact that they had not removed the children from the vicinity when there had apparently been an unexpected encounter with C at the harbour in 2011 before the children were removed from the parents' care. She said that she was faced with the report of Ms Gaskins. She accepted that this drew heavily on the report of Mr Hunt which had been prepared prior to the final care hearing in March 2011 and that, at that stage, despite Mr Hunt's opinion, the Children's Service had been willing to place the children with the parents. But she was of the clear view that, if the Court did not order a report from the Lucy Faithfull Foundation, she would be left with the report of Ms Gaskins and could not therefore contemplate rehabilitation with the parents because of the risk that they would not protect the children from sexual harm.

25. She accepted that, despite her expressed concerns about the issue of sexual harm at the February hearing (as described at para 9 above), there had been no unannounced visits by the Children's Service to see how the parents were managing during the unsupervised contact ordered by the Court in February. She put this down to the difficulty of staff attending at weekends. She said that, although the Minister did not propose any material increase in contact at present, she was putting forward adjustments so that contact took place more during weekdays (when there could be unannounced visits) and in a manner which was less tiring for the children through travelling etc.

The Guardian's position

26. The Court had the benefit of a second interim report dated 21st May from the Guardian and also heard his oral evidence.

27. In his second interim report, the Guardian indicated that he had been in two minds as to whether to support the adjournment given the already lengthy period that had elapsed since the children were separated from the parents in August 2011. However, he had been persuaded to do so on the basis that the Minister wished to explore rehabilitation of the children to the care of the parents.

28. He was, however, firmly of the view that, for the adjournment to serve its purpose, there had to be progress rather than simply more of what there had been since the children were separated from their parents. In his opinion, the emphasis should be on doing all that was necessary to make a valid assessment as to the ability of the parents to manage in future. The Guardian hoped very much that the Children's Service would put its full weight behind the attempt to persuade the Housing Department of the need to house the parents with suitable accommodation for the children.

29. The Guardian felt that the Minister's proposals for contact would not assist. In substance, the Minister was proposing to leave the level of contact as it was and simply obtain two more reports from experts in order to assist in the assessment as to whether the children should be rehabilitated with the parents. The Minister had already had many months to obtain the necessary assessments and the Guardian doubted that the extra assessments sought would disclose much that experienced social workers were not capable of assessing for themselves. Further assessments and reports would undoubtedly be stressful for the mother in particular, given her difficult background and he was concerned that the production of further reports was simply setting the parents up to fail. While he did not oppose a further report from Dr Murray on the children's needs, he offered the observation that, if the Children's Service did not have insight into the children's needs after having had their care since August 2011, that was rather concerning. As for the suggested assessment by the Lucy Faithfull Foundation, he felt that this was a sledgehammer to crack a nut. The Children's Service already had all the information it needed and he thought that the obtaining of further assessments of this nature, with the pressure and stress that it would place on the parents, would not be in the children's best interests. He had himself been trained at the Lucy Faithfull Foundation and, while he had no claim to infallibility, he felt confident in his ability to assess the risk of sexual harm and to assess the character and ability of the parents.

30. In his opinion, the right course was to increase contact to see how the parents coped. He expected them to manage satisfactorily but, if they did not, this would clarify the position for the October hearing.

31. He did not agree with Ms Gaskins that the parents posed any risk to the children by reason of their inability to protect the children from C. He had noted a considerable change in the mother. In the early days she had not been willing to accept that her father had been guilty of sexual abuse and had accused her sister of lying. That was no longer the case and he was satisfied from his considerable knowledge of both parents that they appreciated the risk which C posed. There was no suggestion that they had not honoured the Undertaking since the hearing in February. He believed that they appreciated the importance of adhering to the Undertaking absolutely and he therefore did not consider there to be a significant risk by reason of increasing contact.

32. He had witnessed several occasions of contact between the children and the parents since February and had found the contact to be very positive. He accepted that the mother found it difficult to set appropriate boundaries for the children but felt that, with assistance from the Children's Service, this could be overcome over time.

33. In summary he suggested an increase to three nights of contact per week for weeks 1 - 3 after the hearing, four nights a week for weeks 4 - 6 and five nights a week thereafter until the end of the three months review, with additional daily contact on weekdays. At present, contact would be at the home of F as hitherto but the Guardian hoped that that Children's Service would do their very best to locate suitable accommodation for the family.

The parents' position

34. The parents supported the application of the Guardian. They wished to see increased contact so as to show that they were capable of looking after the children full time. We did not hear evidence from the mother but we did hear from D.

35. It was put to D by Advocate Robinson that the parents had often missed appointments in the run up to the removal of the children in August 2011 and that some of the assertions he had made or was making in that connection were clearly wrong. It is fair to say that D was somewhat reluctant to accept that this was so, despite evidence to the contrary.

36. But generally speaking we did not find that this assisted us greatly in our task. We found D to be a simple man who loved the children and wished to look after them with the mother. He felt aggrieved at their removal in August 2011 and this has no doubt coloured his reaction. He accepted that he and the mother need help from the Children's Service. In relation to the missed appointments, the Guardian had suggested that the Children's Service should provide a diary of appointments and he felt this would be very helpful. He asserted in forceful terms that both he and the mother understood the importance of the Undertaking not to bring the children into contact with C and the likely consequences if they were to breach that Undertaking. As he put it, if they were to breach the Undertaking, the children would be adopted. He thought that the promise contained in the Undertaking lasted for lifetime. It was a promise to the Court and there was no limit to that promise.

37. The Court also accepted from his evidence that D attached importance to earning a living as a fisherman in order to support his family and that this meant that he would not always be able to attend appointments fixed with professionals.

Discussion

38. We carefully considered the views put forward on behalf of the Minister. But the Court reached the clear conclusion that the proposals of the Guardian (who is an experienced social worker whose duty is to represent the interests of the children) were to be preferred and were in the best interests of the children's welfare. We would summarise our reasons as follows:-

(i) As the Court said in the February judgment, there are real questions as to whether the children should ever have been removed from the care of the parents in August 2011. It is very much an open question as to whether their best interests will be served by adoption or by rehabilitating them with the parents under the protection of a continuing Care Order. This is despite Miss Stark's assertion in evidence that, in the absence of any further expert evidence to contradict the opinion of Ms Gaskins concerning the ability of the parents to protect the children from sexual harm, particularly from C, the Minister would have no alternative but to move for adoption.

(ii) Despite having had the care of the children since August 2011, the Children's Service still has no concrete proposal for the future of these children - we accept of course that Miss Stark has only had responsibility for the matter since the beginning of the year. Article 2(2) of the 2002 Law makes it clear that the Court must have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Despite the fact that the Children's Service decided as long ago as October 2011 to pursue a policy of permanence, it had still made no application for a freeing order by the time fixed for the hearing of 21st May. That hearing would therefore almost certainly have been ineffectual, as it would have been a simple application to discharge the Care Order without any positive proposal from the Children's Service. In the light of the history of this matter it was clearly a somewhat optimistic application on the parents' part to expect the Court to accede to such an application and the likely result of such a hearing would therefore have been not to have advanced the position at all despite a week's hearing of evidence.

(iii) Furthermore, despite having the care of the children since August 2011, the Children's Service has not procured the necessary assessments and reports. Certain reports were eventually ordered prior to the May hearing but the Children's Service now wishes additional reports. It is not clear why these additional reports were not sought originally.

(iv) The Minister having had the care of the children since August 2011, the Children's Service should be well placed to assess the needs of the children. Yet the Service wishes now to have additional assessments before taking a decision on whether to increase contact or proceed to trying out rehabilitation. We think it highly unlikely that the additional assessments will produce sudden insight into the position such that all will become clear. We have to say that, at times in this case, the Children's Service has given the impression of being unable to move without an expert's opinion to support them.

(v) The Court was impressed by the evidence of the Guardian. He responded in a measured and thoughtful way to the questions asked of him and has clearly considered the best way forward very carefully. He is an experienced social worker and his opinion was that the Court must be given the maximum assistance in assessing whether the children's best interests would be served by rehabilitation or by adoption. That was best achieved by increasing contact so as to assess whether the parents will cope with having the children for longer periods.

39. What are the arguments raised by the Minister against this course of action? The first is that the Minister is concerned that the parents will not protect the children from sexual harm from C. They rely upon the concern expressed by Ms Gaskins. However the Court prefers the evidence of the Guardian who is himself an experienced social worker and who has seen these parents and these children over a prolonged period, unlike Ms Gaskins. The fact remains that the Minister was content to place these children in the care of the parents at the time of the making of a full Care Order in March 2011 despite the reservations of Mr Hunt expressed at that time, which were in similar terms to those now expressed by Ms Gaskins. The Court is yet to be provided with convincing evidence that the parents exposed the children to any significant risk of sexual harm from C in the period between March and August 2011. Furthermore, since the February judgment, the parents have been having unsupervised contact, including staying contact. If the Children's Service were really concerned about the risk of sexual harm, one would have expected the Service to carry out some unannounced checks during such contact but none have been carried out. It would seem that the Children's Service has been content to rely upon the Undertaking which the parents gave in relation to C at the time of the February judgment. There is no evidence before the Court that they have breached that Undertaking and the Court believes that both parents understand the importance of adhering to the Undertaking. In all the circumstances, we accept the evidence of the Guardian that the risk of sexual harm is not such as to prevent an increase in contact along the lines suggested by the Guardian.

40. The second reason given by the Children's Service for opposing the increase in contact is that it is tantamount to a plan for rehabilitation, whereas that has not yet been decided upon. That was the same argument as was raised by the Service at the time of the February judgment. It was rejected by the Court on that occasion and we reject it again now. The question is what is in the children's best interests and how best to assess whether the right course for these children is for them to be rehabilitated or to be adopted. It is of vital importance that the Court reaches the right decision in this respect in October. The best chance of reaching the right decision is if the parents have had a material amount of contact so that their ability to parent for longer periods can be assessed as a matter of practical fact rather than by way of reliance upon the opinion of some expert who does not have the familiarity with the family of either the Guardian or the Children's Service.

41. The third argument against the Guardian's course of action is that increased contact will continue to develop the bonds of attachment between the parents and the children and that accordingly the children will suffer hardship if adoption is then chosen and the bonds have to be broken once again. That is true but, as in the February judgment, we think that the risk of that harm occurring is outweighed by the desirability of ensuring adequate bonds of attachment at present and the need to reach the best possible decision at the hearing in October.

42. Furthermore, the report of Dr Murray emphasises the importance of attachment for young children and the long term detrimental effect of multiple placement moves. As set out in the February judgment, J suffered three placements in short succession after being removed from the parents' care in August 2011. On any view the present foster carers will not continue as carers for the children, who will either move to the parents or to adopters if adoption is the chosen course. In our judgment, given the uncertainty of what will happen in October, the children's best interests at present are served by supporting the bonds of attachment with the parents and this will best be achieved by the Guardian's proposals for contact.

43. At the end of the day the Court is faced with a difference of opinion between two experienced social workers. The view of the Children's Service, reflected by Miss Stark, is that they should get further assessments with no increase in contact until those assessments are received. The view of the Guardian is that enough time has gone by, that the key thing is to ensure that the Court has the maximum amount of information available when it makes its decision in October, that there is no material risk of harm to these children from C by reason of any increase in contact and that their best interests are served by establishing in the best possible manner whether rehabilitation is practicable.

44. For the reasons given above, we find ourselves in agreement with the Guardian and accordingly we made an order for increased contact as detailed in the Order dated 25th May. The Order was for increased contact along the lines suggested by the Guardian save that we limited the maximum level of contact to four nights a week rather than moving to five nights a week as he suggested.

45. The other matter which we considered at the hearing was the ordering of assessments. Although there was doubt as to whether it was really necessary, no-one objected to a needs assessment from Dr Murray. It is regrettable that this was not thought of when he was asked to prepare a report on attachment but, be that as it may, we agree that this would be a sensible report. It is clear from the evidence that the children are demanding and challenging and a report in this respect may be helpful.

46. More difficult was whether there should be a report by the Lucy Faithfull Foundation. The Guardian was not in favour of such a report. He felt that it was unnecessary given that Ms Gaskins had opined on the matter and he, the Guardian, had also done so. Furthermore, he felt that preparation of further reports would increase the pressure on the parents, possibly setting them up to fail. We have concluded that it was not necessary to order this further report. There is sometimes a tendency to seek all manner of expert reports and sometimes social workers should be prepared to proceed on their detailed knowledge of the family rather than rely upon an expert who sees the family or the children very briefly and then proffers an opinion. We think that the Court has adequate information to reach a decision in October and that accordingly the disadvantages of obtaining a further report outweigh the advantages.

Authorities

In the matter of W and J [2012] JRC 044.

In the matter of W and J [2011] JRC 059.