Jersey Unreported Judgments

Care proceedings - application by the Minister for an Interim Care Order.

[2018]JRC239

Royal Court

(Family)

17 December 2018

Before     :

J. A. Clyde-Smith, Esq., and Jurats Thomas and Pitman

 

IN THE MATTER OF BAILEY, ELLIS, VIOLET AND ELLIOTT ("THE CHILDREN") (CARE PROCEEDINGS)

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

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

Advocate D. C. Robinson for the Mother.

Advocate R. S. Tremoceiro for the Father.

judgment

the COMMISSIONER:

1.        The Minister applies for Interim Care Orders in respect of the four children, Bailey who is 7, Ellis who is 5, Violet who is 4 and Elliott who is 2.  The children are currently placed with two separate foster carers. 

2.        The catalyst for the children being removed from the care of their parents is that on the 16^th November, 2018, Bailey disclosed to his educational welfare officer, quoting from the Threshold Document:-

'My brother Elliott (2) is tied in a cot with cardboard and rope'.  'He rips the cardboard and dad locks him in'.  'He screams and I can't sleep when he is crying'.  'he could hit his head and daddy puts it on'.  'I worry lots and lots'.  'I worry he might hurt mum again'.  'Dad pushed mum on the floor of the bedroom.  Ellis told me he saw this.  I didn't see it'. 

3.        As a result of this disclosure a social worker and a police officer made an unannounced visit that day to the house and found the travel cot covered with a sheet of cardboard tied down with twine.  The mother was arrested on suspicion of child neglect and she and the father were subsequently interviewed at the police station. 

4.        All four children were immediately placed in foster care with the agreement of the mother, she says because she was assured they would be returned to her the following Monday.  Having taken legal advice that agreement was revoked on the 26^th November, 2018.  The police then invoked their powers of protection under Article 41 of the Children (Jersey) Law 2002 and shortly before that expired, the Minister obtained an Emergency Protection Order last night for 24 hours or until such time as this Court reached a decision on the Interim Care Order application. 

5.        The Minister's care plans for the children is that they should remain in foster care until full assessments have been carried out, something that could well last some three months, if not longer.  The test for the imposition of an Interim Care Order is that there are reasonable grounds for believing that the threshold for a Care Order is met i.e. that the children are suffering or are likely to suffer significant harm attributable to the care given to them or likely to be given if the order is not made, not being what it would be reasonable to expect a parent to give the child. 

6.        Ordinarily the grant of an Interim Care Order is an impartial step to preserve the status quo pending the final hearing (see Re PE and PH [2009] JRC 206A at paragraph 10), but it would be wrong in these circumstances to regard the status quo as being the children in foster care.  We think the proper approach is to regard this as an application for the children to be removed from the care of their parents on an interim basis and before assessments have been carried out, which can only be justified if the children's safety demands it (see In the matter of J [2011] JRC 147 at paragraphs 15 to 18). 

7.        In addition to the issue of the cot the Minister relies on the following; and quoting from the Threshold Document. 

"The children are being exposed to domestic arguments between the mother and father which they have expressed through a number of disclosures made to school staff, as follows:-

(i)        On Friday, 9^th November, 2018, Bailey expressed feelings of worry to an education and welfare officer at school stating: 'Mummy and daddy shouting at each other, not my Mum just my Dad.  I feel scared.  Last year my daddy smoked then he stopped and shouted at mummy.  Mummy wasn't doing anything'. 

(ii)       On the 12^th November, 2018, Violet stated to her class teaching assistant: 'When it was Halloween I had a broken arm, Daddy pulled me and I went to the doctors'. 

(iii)      On the 13^th November, 2018, Violet's teacher described a change in her behaviours with three incidents, wetting herself and demanding constant attention from the adults present. 

8.        The mother has sworn a detailed affidavit dated the 29^th November, 2018, and the father has signed a very detailed statement of the same date.  We have heard evidence from them, as well as from the social worker, Ms Becky Brawley and from the Deputy Headmaster. 

9.        Our first task is to decide whether the threshold for an Interim Care Order has been met.  Time does not permit the Court to summarise all of the evidence we have heard, but we are not satisfied that the threshold is met in this case and as a result we have no jurisdiction to make an Interim Care Order. 

10.      There is evidence of difficulties in the marriage of the parents in the latter part of 2017 and early 2018.  The family had not come to the notice of the police, the Children's Service or other agencies, and it was the mother who, in January 2018, sought advice from the Women's Refuge about the father's controlling behaviour and verbal abuse.  There was one allegation of a physical assault by the father when he was alleged to have pushed the mother on to the floor of the bedroom in the presence of Ellis.  There is no question of alcohol or substance abuse of any kind. 

11.      A family assessment was undertaken by the Children's Service, who noted that the home where the family reside was owned by the maternal grandparents.  It comprised a large detached home set in its own grounds, split into three houses with the family living in one of the houses, the maternal great grandmother (aged 90 and in good health) in the second and the maternal grandparents (the maternal grandmother, a retired nursery nurse, aged 63) in the third.  The report noted that this is a positive and significant safeguarding factor.  The photos of the family home showed it to be spacious, well-furnished and immaculately tidy. 

12.      The father did not engage with that assessment, but, whilst noting that harm can be done when children are exposed to domestic violence, the report concluded that the threshold for social care intervention was not met.  Quoting from the report:-

"It is clear that the children's needs are being met, and they are all developing well."

The file was closed.

13.      The mother did not want to end the relationship with the father, and she and the father then engaged in marriage guidance counselling which, she said, had a very positive effect on their relationship. 

14.      It was not asserted by the Minister that Violet had broken her arm.  She had dislocated her elbow, which the mother had been advised at the Accident and Emergency Department, could easily be done by pulling a child up by the arm, which the father had done very late in the evening when Violet was resisting going to bed.  The mother was present when this took place, and we accept both parents' account of this incident, which we regard as entirely innocent. 

15.      The incidents of Violet wetting herself all took place on one day, 13^th November 2018.  The school had suggested that this may have been attributable to a urinary tract infection, but it had not happened before or since.  We did not find this evidence supportive of the Minister's case. 

16.      We were left with a relationship that had been through difficulties a year or so ago, and which had now improved, but in which the children could still be exposed to shouting on the part of the father and the cardboard over Elliott's cot. 

17.      Although not referred to in the threshold document, the social worker has also raised the problem of Ellis soiling himself, which she felt could be a manifestation of emotional harm brought about by the home environment.  However, it was clear that this was a long-standing problem which the mother was addressing with appropriate medical advice, and which could be put down just as easily to a physical cause.  Again, we did not find this supportive of the Minister's case. 

18.      Turning to the issue of the cardboard, the parents were transitioning Elliott from a cot to a bed, and he kept getting out of his bed, disturbing the other children.   He was therefore kept in his cot, which had high sides, but which he was able to climb out of.  This raised a safety concern for the father, because there were spiral staircases going up and down from the room in which Elliott slept, which were too wide to fit a stair-gate to.  There had been an incident with Violet at a similar age when she had taken herself downstairs, gone through the front door across the courtyard to her grandparents' house at 3.00 a.m. 

19.      It was the father's idea to place cardboard over the cot at night, secured by outside ties, to prevent Elliott from waking and getting out.  The mother did not think this was appropriate, but was assured by the father that it was a temporary measure.  The father deeply regretted the decision.  We understand the concern of the Children's Service at the use of cardboard over the cot in this way.  We accepted the evidence of the parents, however, that:-

(i)        The cardboard was only used at night.

(ii)       It was never used as a form of punishment.

(iii)      The mother would always attend to Elliott if he cried at night; their bedroom was immediately adjacent. 

20.      In terms of the threshold, we concluded that there was no evidence of the children suffering physical harm attributable to any lack of care on the part of the parents.  There were grounds for believing that the children might have suffered emotional harm by being exposed to the father's shouting, by the elder three seeing cardboard placed over Elliott's cot, and on the part of Elliott, having cardboard placed over his cot at night.

21.      Our difficulty was that if such emotional harm had been suffered by the children, whether it was "significant".  We were cognisant of the well-known and often quoted passage from the judgment of Hedley J in Re L (Care Threshold Criteria) [2007] 1 FLR 2050 at paragraphs 50-51 (cited in the Court of Appeal judgment of In the matter of F and G (No 2) [2010] JCA 051) that children are best brought up with their natural families and the need for society to tolerate very diverse standards of parenting, with the inevitable consequence that children will have very different experiences of parenting with very unequal consequences flowing from it.  

22.      The same difficulty applies in relation to the likelihood of future significant harm.  It might be argued that of the four children, there were grounds for believing that Elliott alone was likely to suffer significant physical harm from the use of the cardboard.  The social worker talked about the possibility of accidental strangulation on the cardboard or the ties, but the use of the cardboard was a short-term measure, and in any event, it only related to Elliott.  The Minister's application was put forward on the basis that the threshold had been met in respect of all four of the children, not just one of them. 

23.      On finding the cardboard on the cot, the decision was taken by the Children's Service that all four children had to be removed immediately and accommodated with foster carers under Article 17 of the Children Law.  The mother asked that rather than go to foster carers, the children should be accommodated with the maternal grandparents.  They were dismissed as alternative short-term carers because they apparently knew of the sleeping arrangements for Elliott and had not intervened.  We have not heard evidence as to what was said to the maternal grandparents or their account.  We can only express concern at their dismissal as temporary carers for any of the children in this way, with the result that all four children were removed from their home, separated and placed with two sets of foster carers, who of course were strangers to them.  We have some sympathy with the submissions of both counsel for the parents that this was an over-reaction. 

24.      The social worker gave evidence of what were perceived to be improvements in the children's presentation since being taken into foster care, but we are wary about placing too much emphasis on this.  There had been a sudden and dramatic change in their lives, which could manifest itself in a number of ways for which it was far too early to draw any conclusions.  Furthermore, removal in this way is "a two-sided coin", and we are conscious of the risk of harm caused by their removal.  Bailey, in particular, was showing signs of very considerable distress. 

25.      In summary, the threshold document on which the Minister relies is weak, but is relied upon to support the most drastic of orders namely the removal of all four children.  The evidence of Violet's injury to her arm and wetting herself can be discounted.  The evidence of shouting on the part of the father could be emotionally harmful to all four children, but this is an accusation by a seven year old which is unclear as to time and quantum and whether it related to the earlier period in the parties' marriage or more recently.  We question how many families there must be where one or other parent is prone to shouting.  

26.      On the evidence before us, we are not persuaded that there are grounds to believe that any emotional harm they may have suffered or would suffer in the future was "significant".  The use of the cardboard over Elliott's cot, the catalyst for the application, was wrong, but in terms of physical harm, it related to only one child (and only in the future) and could not be used to meet the threshold for all four children.  As the mother says in her affidavit she would have removed it immediately if the Children's Service had advised her to do so.  In terms of emotional harm to Elliott and the others in relation to the use of the cardboard, again the Court is not persuaded on the evidence that there are grounds to believe it is "significant".

27.      We would add that if we are wrong in this respect, and the threshold criteria for an interim care order is met, we do not regard the continued removal of these children from the care of their parents as either proportionate or necessary, and we do not therefore approve the Minister' care plans.  The decision of the father to place cardboard over the cot to prevent Elliott getting out was wrong and he clearly regrets it.  The mother should not have allowed it.  Even so, in our view there is simply not enough evidence for the Court to say that the safety of any of children demands their immediate removal.  Accordingly we would have declined to grant an interim care order on the basis of those care plans.  Having said that, there are concerns and we think it right that the assessments sought by the Minister should be ordered. 

28.      We would like to add this - the task of the Children's Service is often very difficult.  It is prone to criticism whether it intervenes or not.  We think it was right for the Minister to be concerned in this case and to seek these assessments.  In particular we wish to commend Ms Brawley for the clarity of her evidence and her command of it. 

Authorities

Children (Jersey) Law 2002.

Re PE and PH [2009] JRC 206A.

In the matter of J [2011] JRC 147.

Re L (Care Threshold Criteria) [2007] 1 FLR 2050

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