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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of DD (Care Order) [2012] JRC 135 (12 July 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_135.html Cite as: [2012] JRC 135 |
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Care order - application for prohibited steps orders.
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Crill. |
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Between |
Minister for Health and Social Services |
Representor |
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And |
The Mother |
First Respondent |
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And |
The Father |
Second Respondent |
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And |
Jane Whittaker Guardian ad-litem for "B", "A", and "DD" (children of the First and Second Respondents) |
Third Respondent |
IN THE MATTER OF DD (CARE ORDER)
Advocate S. L. Brace for the Minister.
Advocate H. J. Heath Amicus Curiae on behalf of the Mother.
Advocate R. E. Colley for the Father.
Advocate C. R. G. Davies for the Children.
judgment
the deputy bailiff:
1. B, A and DD are the children of the Mother and the Father. B and DD are male, aged 15 and five respectively. A is female and aged 11. They have an elder brother F, now aged 17 who is not involved in these proceedings. The relationship between the Mother and the Father ended in 2007. For approximately four years thereafter, the Father had relatively little contact with his children. He had brought various private law applications in order to try and gain access to them. Initially this was given on a supervised basis at the Milli's Family Contact Centre, and subsequently on an unsupervised basis. However he eventually gave up as a result of continued difficulties over attempts to engage with the Mother over access which she resisted. By August 2011, he had not seen his three younger children for six months. The eldest child F had left the Mother when aged 14 to live with the Father.
2. On 24th August 2011 the Court made an interim care order on the application of the Minister. The evidence before the Court suggested very strongly that the Mother was suffering from mental ill health with delusions in particular about the children's safety. As Commissioner Clyde-Smith described in the Court's judgment of that day, the Mother had made many allegations against the Father, none of which had been substantiated, but including for example that he had attempted to poison their food and water supply. This allegation had apparently led to the Mother keeping the children's food permanently on her person and dispensing it from there. The children had witnessed her screaming and shouting at people who do not exist. She had driven the children around the Island for hours on end and moved them from time to time to guest house or hotel accommodation, all for their "safety". Their routine was irregular. There were locks on their bedrooms, and indeed a bolt outside one of the bedrooms, with the implication that the children were locked in their rooms at night. The front door was very heavily secured. There were allegations that the Mother used a bamboo stick by way of physical chastisement, but the main complaint was that her treatment of the children was causing them or was likely to cause them significant emotional harm. She refused to engage with the Children's Service, or to be subject to any psychiatric assessment. She feared that if she co-operated with that assessment, she would be harmed by the doctors concerned. It was said that she told the children that if they talked to the Children's Service, they would be injected with poison or sold abroad. For all these reasons, there appeared little doubt that the threshold test for making an interim care order was met and no counsel submitted otherwise.
3. Advocate Corbel who assisted the Mother at that time was understandably in no position to accept instructions from her given the concerns about her psychiatric state of health. Advocate Heath who appeared before us as amicus for the Mother was equally not in a position to take instructions but she participated in the hearing as best she could, advancing, to the extent she properly could, all points which the Mother could reasonably have given instructions to advance. She thus protected the interests of the Mother, who, despite being given notice of these proceedings in different ways and on more than one occasion, was not present.
4. Before going any further in that respect, we note that in the Court's judgment of 24th August 2011, Commissioner Clyde-Smith said this:-
5. The background to those statements was that the Mother would not agree to a psychiatric assessment and until that assessment had taken place she was to have no contact with them. The starting point in all public law cases is that it is in the interests of the children that they should have a relationship with their parents, but on the facts of this case it has not proved to be possible.
6. The extent to which the Mother is suffering from psychiatric difficulties is perhaps revealed by the instructions she gave for a submission to be made to the Court in December 2011, when she was present, that she could not be sure that the Father was in fact the father of one of the children, although she asserted she had not had a relationship with anyone else. This was a position which, in the absence of any suggestion of divine intervention, was hard to take as anything other than an indication that she needed psychiatric assistance.
7. It appears that the relevant doctors have not felt able to take any steps under the Mental Health (Jersey) Law 1969 with the result that the Mother remains untreated for these psychiatric problems. We do not know of course how successful any such treatment might be, but just as the Court felt in August last year, we have no doubt whatever, as lay people, that medical treatment is necessary. The consequences of the Mother not receiving such assessment and treatment are that it is impractical today to contemplate any course other than the removal of the children permanently from her care, and indeed, because of the damage already done and risk of significant emotional harm in the future if we made any other order, the continued lack of contact with them and the other prohibited steps orders which we are going to make. At the hearing on 22nd December, the Court gave leave to the Minister to disclose the report prepared by Dr Williams and dated 15th December 2011 to the Mental Health Service. We also have given leave for the disclosure of the full judgment in this case, together with the Act of Court to the Mental Health Service.
8. It is not for us to come up with conclusions as to what a mental health law should or should not say. That is for politicians. However it has been apparent now for a number of years that the mental health legislation which exists in the Island, which dates back to the Criminal Justice (Insane Persons) (Jersey) Law 1964 and the Mental Health (Jersey) Law 1969 is simply not fit for purpose in 2012. There is an absolutely urgent need for new mental health legislation to be prepared. The Court has been faced now on numerous occasions with the position where the course of justice has been substantially affected, and indeed adversely affected, by the defects in this legislation. From enquiry as recently as Friday 25th May of the Crown Advocate in some criminal proceedings, and of Advocate Brace in relation to these public law children proceedings, it appears that there is no immediate prospect of a new mental health law coming before the States for consideration. If that is so, it does the relevant authorities no credit whatsoever. We have asked Advocate Brace to bring to the attention of the Attorney General the need to emphasise to the Minister the Court's serious concerns about the legislative position. We hope that in fact there is great activity behind the scenes, but, if there is, there is no sign of that, and if there is in fact no such activity taking place, we simply cannot understand why there is a lack of attention to a matter which is so urgent and so necessary.
9. We have expressed ourselves in this way in relation to the instant case because the evidence before us suggests that there was nothing substantially wrong with the Mother's parenting skills and abilities until she became ill, the first signs of which may have become apparent in or about 2007. We have no doubt that she loves her children and no doubt either that until they experienced the lack of security over the last few years, she was very important to them. Like many of the public law children's cases which come before this Court, the present case is extremely sad and represents a personal nightmare for the Mother as well as presenting problems for the children, all of which might have been avoidable, and we emphasise the word "might", had it been possible to ensure that appropriate medical treatment was given to her.
10. The application first made by the Minister was for a care order. By the time of the final hearing, the Minister was in fact asking for an order that the threshold had been passed for the making of a care order, but rather than have a care order, there should be a residence order made in favour of the Father with a number of other orders for the protection of the children. We will come to this matter later in this judgment, and we now deal first with the question of threshold. In that connection the Court heard from Dr Bryn Williams, who has prepared a psychological report on the children, and also from Ms Laura Stark, the social worker currently attached to this family. We also had the benefit of the statements made by Ms Anna Flower, the social worker previously engaged with this family. The threshold findings have in effect been conceded by the Father and by the children's guardian, and have not been challenged by the Mother for obvious reasons. We mention this because the evidence contained in Ms Flower's statements has not been sworn, and they are before the Court insofar as Ms Stark was able to say that the contents of the statements were to the best of her knowledge, information and belief consistent with the records of the Children's Service. In circumstances where a social worker may not necessarily be available to give evidence in a case where the final hearing is some distance in time away from the application for an interim care order, it would be desirable if the statements, when made, were made on affidavit. In a contested matter, given that the contents of the statements will often include some hearsay evidence, it may well be necessary for the deponent to be available to give evidence and be cross-examined, but even where the application is not challenged, as is the case now, it would be preferable for these statements to be sworn, which we mention for future practice.
11. The threshold findings put before the Court by the Minister were based on the premise that the children have suffered emotional harm through the parenting which they have received from their Mother and that this is apparent from what the Mother has knowingly or otherwise said or done. First of all it is said that the Mother has exposed the children to situations which frighten or worry them:-
(i) On 14th December 2010 A told the States of Jersey Police that she had witnessed her Mother talking about their home being bombed.
(ii) On 24th December 2010, the Mother attended Accident and Emergency with A informing staff there that the Father had tried to poison her, despite there being no medical or other evidence to substantiate this.
(iii) On 5th August 2011, the Mother refused to allow entry to the home to check the welfare of the children and it was only four hours later that the Police forced entry there.
(iv) On several occasions the Mother has exposed the children to bizarre behaviour such as chanting in a language unknown to them, placing her hair on the children's pillows and in their food; discussing speaking to her ancestors and throwing water, and keeping the family food in a trolley.
(v) The Mother has told B that he is evil and that people were trying to poison them because B had spoken to a social worker.
(vi) On 25th March 2011 B described to his school counsellor that his Mother drove the children around the Island for long periods of time, moved them into guest houses and kept all the families' food, drinks and necessaries in a blue trolley.
(vii) Since the date of the interim care order, the Mother has visited the schools regularly and has shouted strange statements at the children while they are in the playground. She has attempted at various times to remove the children from school claiming that the Court had ordered that she could do so. On several occasions she has shouted abuse at the children and at the father during school drop off and collection times.
(viii) On 12th March 2012, the Mother turned up at the School when the children were leaving to go home and attempted to remove DD by pulling him by the arm. The Father, who happened to be there as he had arrived to collect the children, and the Head of the School stopped the Mother from removing DD. Another teacher called the Police and the Mother left the premises before the Police arrived.
12. It was also contended that the Mother had caused the children significant harm by making several complaints to the Police and other agencies about alleged attempts to harm her and/or the children, all of which were unfounded. These included statements in April 2008 that the father had put a chemical letter through the door of the family home twice a week in order to induce her into sleep; on 3rd January 2010 that the Father had put substances in her food to make her ill; in July 2010 that a loaf of bread she had purchased was torn in the centre and soaked in a clear fluid. She stated her food was continuously being tampered with. Analysis of the bread found nothing untoward. On 5th October 2010, the Mother attended at the Police station with all three children claiming that the Father had been in their back garden attacking the back door and they had run from the home leaving half eaten dinner. On attendance at the home the Police found no evidence of any half eaten dinner or indeed of the Father visiting the property or attacking the back door. On 21st October 2010 the Mother attended at Police Headquarters with A and DD some ten minutes before midnight to allege tampering with a water cylinder at her property. On 9th December 2010, the Mother alleged to the Police that the Father had placed a bomb in the family home. The Police found no evidence of this. On 13th December 2010, the Mother reported to the Police that the Father had poisoned the water supply to her home. On 26th April 2011, the Mother reported to the Police that someone had tried to gain entry to the house. The Police attended and found no evidence of any attempted entry. At 2 a.m. on 22nd November 2011, the children by now being in the care of the Father, the Police attended the Father's property following an allegation made by the Mother that the children were at immediate risk. Uniformed officers attended at the property and found the children were sleeping safely in their beds. On 31st January 2012, the Mother instructed Advocate Heath to contact the Father's advocates immediately as she contended the Father had taken the children to the airport and was attempting to remove them from the jurisdiction. Investigation showed that the children were at school and the Father at work.
13. In December 2010, the school reported concerns about the children's lateness and poor attendance at school. Finally in the context of emotional harm, it is said that the Mother created an environment in which the children were made to fear their father and other adults. As an example of this, B reported that his Mother told them that if they were to speak to social workers, the social workers would inject them with poison.
14. As another example, on 6th October 2011, Ms Stark was returning DD from school to home. During the journey, DD told Ms Stark that "mummy told him daddy would kill him". According to the Head Teacher of DD's school, on 26th September 2011, the Mother attended school and approached A while she was playing netball. The Head Teacher asked her to leave. The Mother was very upset and talked about the Father wanting to buy the children for £60,000, and also claimed that he had bought a gun.
15. The other matter raised in relation to threshold is that the children have been exposed to physical harm whilst in their mother's care. B has disclosed being force fed and hit by his mother. On 14th December 2010, DD disclosed being pushed to the floor by his mother and hitting his head. Thirdly the children have received poor nutritional care whilst in the care of the Mother, due to her concerns concerning the children's food being poisoned and consequently restricting their food to items she carried in a blue trolley. Finally, the Mother has compromised the children's physical safety and exposed the children to a likelihood of physical harm due to her failure to accept advice to remove locks from the outside of the children's bedroom doors.
16. None of this evidence was challenged. Some of the evidence of course relates to matters after the relevant date, namely 24th August 2011 being the date on which protective measures were put in place, but it is permissible to look at the subsequent events if they support the position as at the relevant date. In our view there is no doubt that the threshold test has been passed and that the children were suffering or were likely to suffer significant emotional harm, that harm being attributable to the care given or likely to be given by the Mother if no orders were made, that care being less than the standard which it would be reasonable to expect a parent to give.
17. We also accept that the children have been exposed to physical harm whilst in the care of their mother. This was significant harm, although by itself the conduct which led to this harm might or might not have led to a different outcome. However, when considered in conjunction with the emotional harm which has been caused by the Mother, we are in no doubt that the threshold has been passed.
18. In the ordinary course of events, the Court would then have to consider on the application of the welfare test whether to make a care order. The Minister in fact asks us to make a residence order in favour of the Father together with some prohibited steps orders. While these may be the right orders to make on the facts of the case, it does not appear to us that it is appropriate as a matter of law that the Minister should make that application. There are a number of reasons for this.
19. First of all the structure of the Children (Jersey) Law 2002 ("the Law") is that those who have parental responsibility have the rights, duties, powers responsibilities and authority which the father of a legitimate child had prior to the commencement of Part 1 of the Law. The Minister has a number of duties in respect of support for children and families as set out in Part 3 of the Law, without conferring on the Minister any form of parental responsibility. On the other hand, Part 4 of the Law provides for applications for care orders, which, whether interim or full care orders, if made, do confer, temporarily or permanently, parental responsibility on the Minister. Article 66(1) of the Law provides that the making of a residence order with respect to a child who is the subject of a care order discharges the care order. It is therefore counter intuitive that on an application under Article 24 for a care or supervision order which would give the Minister parental responsibility thus interfering with the exercise of parental responsibility by those who previously had it, the Minister should make application for a residence order which would put the care order aside.
20. Secondly, it is clear from Article 24(5) that on an application for a care order, the Court may make a supervision order and vice versa. The Article does not indicate that the Court can, on an application for a care order, make a residence order.
21. Thirdly, the jurisdiction of the Court to make a residence order or a prohibited steps order arises from Article 10(1) of the Law. The persons who are entitled to apply to the Court for an Article 10 order with respect to a child are set out in paragraph (3) and, insofar as residence or contact is concerned, paragraph (4) of Article 10. These paragraphs do not confer any such entitlement on the Minister.
22. Finally in this respect, Article 11 introduces restrictions on the making of Article 10 orders. These in their material parts are as follows:-
23. Article 11(1) clearly contemplates that there may come a time when the Minister's responsibility for the care of a child, whether on an interim or full care order basis, can be discharged in favour of a private person.
24. It seems to us to be clear that there is a public law involvement for the Minister in circumstances where the Minister is seeking a public law remedy such as a care order or a supervision order. If the Minister is not seeking such a remedy, the underlying assumption of the Law is that the private law remedies are available to those private parties who are able to apply for them.
25. The draft orders which were put before us, containing as they do some draft prohibited steps orders, take us into difficult territory as a result of Article 11(1). The children are currently in the care of the Minister as a result of the interim care order. In those circumstances it is not possible to make prohibited steps orders while the interim care order remains in force. If it is right, as we inclined to think it is, that the Court has no power to make a residence order on the application of the Minister for the reasons given, it follows that there is no mechanism for the Minister to make an application for prohibited steps orders. We made these comments in case the Minister should consider that it would be useful to have the ability to make applications of this kind in future cases.
26. In the circumstances of this case, the problem does not arise because the Father has made an application for a residence order. There is nothing in Article 11 which prohibits him from doing so, and he has status to make such an application under Article 10(3). Furthermore, at the Court's invitation, Advocate Colley confirmed on behalf of the Father that she wished to make application for prohibited steps orders, and she invited the Court to deal with her applications contemporaneously with the Minister's Article 24 application. We agreed to deal with the matter in this way, because it seemed to us to be in the best interests of the children to do so. In considering her applications, we have of course had regard to the welfare checklist which is set out in Article 2 of the Law and have been much assisted not only by the evidence of Ms Stark but also by the contributions of the guardian.
27. Before considering the matter any further, however, we have considered whether it is right to make no order. This is necessary pursuant to Article 2(5) of the Law. In our view, there is no doubt that it is better to make orders today. To make no order would be to leave the Second Respondent open to further litigation at the instance of the First Respondent, to leave the children in a place of uncertainty as to where their future lay, and in effect to encourage the First Respondent to take steps in relation to the children which we do not consider would be in their best interests. We are quite clear that in our judgment it would be wrong to make no order.
28. We have set out above the harm which the children have suffered and would be at risk of suffering if they returned to the care of their mother. We have also set out the children's age and sex. The other relevant background which we think perhaps ought to be said is that B is clearly coming up to a time of taking examinations in 2013, and is therefore at a critical stage in relation to his schooling, and as far as A and DD are concerned, they attend the same school and are very close and A, as the eldest sister, helps DD on a day to day basis.
29. The Father is employed full time on a farm and has two bedroomed accommodation provided with that employment. He lives with his partner. The accommodation is shared with the son of the partner by a previous relationship, now aged 17, F, and since August 2011, B, A and DD. The physical accommodation is obviously very cramped indeed and far from ideal. The Father asks us to make a residence order despite this being the case. He is hopeful that other, more suitable, accommodation will become available in early course, although we of course have no certainty that that will be the case. As against that negative, the guardian said to us that we had to balance some strong positives. In terms of the physical attributes of the home, it was very clean and there was a garden. Most importantly however, it was a warm and loving home.
30. As the guardian put it in her report, the children have undergone tremendous changes since August 2011, from living in an isolated, suspicious and distorted home environment with their mother to an open and more engaging one with the Father. There are difficulties, not simply with an overcrowded home but also because the Father's partner speaks limited English and the children speak limited Portuguese. Yet they are beginning to flourish and are starting to enjoy lives that include healthy relationships at home and with their peers. B and A have been invited to sleepovers with friends, which they have been permitted to accept. DD was very excited at going to a birthday party in September last year. At the most basic level, the children are permitted to go to the fridge to find food, something that was unthinkable in their previous environment. Removing them from this warm and loving environment to anything different could only be very damaging indeed.
31. It would be easy to under emphasise the significance of the changes which have come about in the Second Respondent's life, and that of his partner. Their accommodation has suddenly become very restricted indeed with the advent of three extra children in the home. As far as the Second Respondent's partner is concerned, she has to cope in circumstances where she has limited knowledge of the language the children speak, and given that the Second Respondent is working long hours, she copes in part by using computer translations facilities. She has had problems such as the children's refusal to eat when they first arrived, fearing the food was poisoned. The guardian reports that she has been impressed by the partner's commitment to the children both practically and emotionally. The Court is also impressed both by what we have been told of the partner and also of the Second Respondent, who have reacted to a position which was unexpected with an admirable care and commitment to these children. Dr Williams said in his report that in his opinion the Second Respondent and his partner "provide a more than adequate home for the children and ... they are even taking steps to repair the damage to the children's psychological health which have resulted from their fractured relationship with their mother".
32. We turn next to the ascertainable wishes and feelings of the children, considered in the light of their ages and understanding. It seems clear that B, who is now 15, is well able to express a view and is secure living with his father. The guardian reports that his emotional needs are being more fully met. He apparently accepts the overcrowding as part of living with his father. What is clear from the evidence of both the guardian and Dr Williams is that there is some concern that B no longer wants to discuss with any professionals anything which has happened to him. He simply wants to get on with his life, and, in Dr Williams' view, to know that the parts that have been bad for him have been put behind him. He has become self resourceful, taking responsibility for himself and that reaction is not at all unexpected as a mechanism for managing his own safety.
33. As far as A is concerned, she too knows the relationship with her mother was not positive and she wanted to live with her father. It is clear that she particularly will need some better physical space as she gets older. Like her brother B, she has been guarded in her conversations with professionals, and no doubt like her elder brother has had to learn how to be self reliant for her own safety.
34. DD is the youngest of the children with whom we are now concerned and the only one who has been less critical of his mother's care, perhaps as a result of his age. He has stated to the guardian that he wished to live with his mother although the guardian's view was that there might have been some motivation for that statement in that he wanted to have all his belongings including his favourite toys, which at that time were in the Mother's possession. However DD has strong emotional attachments to his brother and sister and has gained strength from that, and he also relates well according to the guardian both to the Father, as well as to the Father's partner and her son.
35. All the evidence before us strongly supports the Father's application for a residence order. The Minister also supports that application. In the view of the Children's Department, the Father's authority, and the children's perception of that authority will be improved by the absence of any care or supervision order or involvement directly by the Children's Service. As Dr Williams put it, the Father needs to be supported in such a way that the children do not see him losing that authority over them during their childhood.
36. For all these reasons, we therefore accept that it is right to make a residence order in favour of the Father in respect of B, A and DD. The consequence is that the interim care order is discharged, as a result of Article 66 of the Law.
37. We turn next to the application for prohibited steps orders. The Father seeks a prohibited steps order pursuant to Article 10(1)(b) of the Law prohibiting the Mother from:-
(i) Having any form of direct or indirect contact with the children until further order of the Court;
(ii) Attending or approaching within 50 metres of the children's home;
(iii) Attending or approaching within 50 metres of the children's respective schools, or such other schools as they may subsequently attend, except by private arrangement with the respective school.
38. The draft order put before us includes a prohibited steps order that would require the Father to prevent contact, to the extent that he can, between the First Respondent and the children. It is unusual for a party to seek an order against himself, but on the information which have before us, it would appear to be the only way in which this order could conveniently be made and it is in our view an important order that is made.
39. We make the prohibited steps orders described above for these reasons:-
(i) There is no doubt that the children have suffered significant emotional harm as a result of the Mother's conduct towards them.
(ii) In our view the information which we have been given all points to the Mother having a psychiatric illness that needs treatment. Until the Mother gets that treatment, she will continue to be a risk to these children. The extent of the risk is unknown. Frequently in cases where a parent has caused physical or emotional harm to a child, it is possible to anticipate the particular risks that might be engaged and how they might be dealt with. Here, however, the very nature of the psychiatric difficulties which the Mother appears to have is that her behaviour is unpredictable. Dr Williams described how he tried to engage with the Mother but she ran off with a trolley and hid behind a car so that she did not have to talk to him, and as he did not wish to frighten her, he did not pursue it. Ms Stark saw the Mother at the hearing last December, and they had a brief conversation, the Mother being upset because she could not deliver the Christmas cards personally to the children. Thereafter the Mother contacted Crime Stoppers to ask them to stop Ms Stark going to see them. More recently Advocate Heath, as amicus curiae, has delivered by hand to the Mother's address a letter of advice, which the Court has seen, as to what was taking place at this hearing and the Mother has not been prepared to see her.
(iii) The Mother's attempts to see the children at school over the last months have clearly caused difficulties in themselves. In March this year, the Mother repeatedly visited DD's school where she attempted to grab DD as the Father's partner was collecting him. This undoubtedly caused DD to be frightened.
(iv) In November the Mother told the school that the judge had contacted her to say that he had made a mistake and she could see the children. The same day she was found peering into the window of DD's classroom.
(v) In February 2012, the Mother told DD's school that the Police from Madeira were coming to the Island to speak to the judge and the Children's Service.
(vi) Overall the Mother has visited the school of A and DD on 11 occasions since the academic year began.
40. Advocate Heath rightly elicited from the witnesses that the Mother has previously made a positive contribution to the children's upbringing. Dr Williams agreed that their use of language, their sensory development and their physical health showed that the children did have adequate care in their early years. Their resilience and strength, in circumstances where the Mother was their sole carer for some time, show that she must have made a positive contribution to them and, as Dr Williams said, there is no record of any anxieties as to her parenting prior to 2007. In his view, she might recover her parenting skills if she received medical treatment and if so she could play a part in the children's future. In particular, that might involve:-
(i) Assisting them by completing their understanding as to where they came from and to help them build their own sense of identity; and
(ii) She might help the children understand why she acted as she did and indeed it would be extremely helpful if she were able to apologise to them for frightening them.
41. However the situation that faces the Court at the moment is that she has not prioritised the children's needs above her own and she has in effect frightened the children in numbers of ways. It has been emotionally harmful. Dr Williams made the point that it is not the Mother's fault as such, but it is the illness from which she appears to be suffering which has made her an inadequate parent.
42. The Court is therefore satisfied that it is right to make the prohibited steps orders as set out above.
43. We are also asked to make an order that the First Respondent should require leave of the Court to initiate private law proceedings in respect of the children pursuant to Article 66(8) of the Law. We have helpfully been referred to the Court's comments In the matter of T [2010] JRC 126 where at paragraphs 7 and 8 the Court referred to the principles which should apply in connection with an application under this Article.
44. Here it is right to record immediately that the circumstances which might normally be expected to give rise to this sort of order do not apply here. It cannot be said that the Mother has a track record of bringing hopeless applications, nor can one see from any such applications a history of damage being caused to the children, or any of them, simply as a result of the application. Unless there is a very substantial reason to the contrary, everyone should have access to a Court for the purposes of pursuing their legal rights of action. Advocate Heath may well be right to suggest that the effect of an order of his kind might be to inhibit the Mother from bringing any application and therefore in effect to remove her right of access to a court as a result of her own inhibitions.
45. We have considered this carefully but we still think that these are appropriate orders to make. In that connection we start by reminding ourselves that our primary concern is with the best interests of the children. After a period which has been extraordinarily unsettling, when what Dr Williams described as their "circle of safety" has been penetrated more than once as a result of the Mother's conduct; where both B and A in particular are less than forthcoming about what has happened to them and indeed tend to be unwilling to talk about their mother to any outside agencies; and when for the emotional stability of the children it is important that they know that they will be living with their Father and his partner, there is no doubt on the evidence as we see it that further proceedings would be liable to be very disruptive indeed.
46. We note from the guardian's report that both the Father and his partner would encourage contact between the Mother and the children if the Mother has treatment which satisfactorily deals with her illness. Dr Bryn Williams considers that such contact would indeed be capable of being positive, as set out above. So there is in theory no real impediment to the Mother successfully bringing an application at least for contact, provided she is well. The condition which we put on requiring her to have leave before initiating private law proceedings in respect of the children is intended to ensure that before being given leave, she would have to show that she had made such progress, supported by some evidence of an up to date psychiatric assessment on the Mother, that leave could be considered. We think this is a proportionate approach to take because in the absence of psychiatric treatment, we cannot think that the Court would permit any form of contact between the Mother and the children. If leave were given, the Court would also require to have a JFCAS welfare report before any contact took place.
47. It is obvious that it would be helpful that if there are further private law proceedings between the Mother and the Father concerning the children, the court papers relating to these proceedings should be disclosed into the private law proceedings, and we so order.
48. We also order that a copy of the Act of Court in this case be provided to the Police, to the Port authorities and to the respective Headmasters or Headmistresses of the schools which the children attend so that they are aware of the orders which exist in relation to the children. The Port authorities and the Police have been included not least because there is a flight risk if the Mother were to be successful in persuading DD to go with her.
49. We also order that this judgment as well as the Act of Court be disclosed to the mental health authorities. We hope they will give consideration to what we have said in relation to the mental health legislation and indeed as to whether there is anything that can be done for the Mother.
50. Finally we give leave to disclose a copy of translations of the Act of Court and of this judgment to the Second Respondent's partner. These translated documents should be retained by the Children's Service for the partner to view at the Children's Service offices.
