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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of Eleanor (Care Proceedings) [2019] JRC 005A (18 January 2019) URL: http://www.bailii.org/je/cases/UR/2019/2019_005A.html Cite as: [2019] JRC 5A, [2019] JRC 005A |
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Before : |
Sir William Bailhache, Bailiff, and Jurats Christensen and Dulake. |
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Between |
Minister for Health and Social Services |
Applicant |
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And |
The Mother |
First Respondent |
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The Father |
Second Respondent |
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The Child (acting through her guardian Eleanor Green) |
Third Respondent |
IN THE MATTER OF ELEANOR (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate J. A. E. Kerley for the Minister.
Advocate M J. Haines for the Mother.
Advocate C Hall for the Father
Advocate R. S. Tremoceiro for the Child
judgment
the bailiff:
1. The Court sat on 26th November, 2018, to consider further the application of the Minister for Eleanor to remain out of the jurisdiction. On that day, for reasons reserved, the Court granted the Minister's application until the end of the final hearing fixed to take place on 7th January, 2019, or until further order, and furthermore granted leave for the reports of Dr Rajpal and Dr Murray to be released to the carers for Eleanor for the purposes of assisting with that care. This judgment contains those reasons.
2. We record that the final hearing fixed for 7th January was in fact adjourned by the Royal Court on Friday 4th January following a hearing to consider an application for that purpose and the permission to the Minister was extended until the end of the adjourned final hearing.
3. The circumstances in which Eleanor comes to be accommodated out of the Island are set out in the judgment of this Court at In the matter of Eleanor (Care Proceedings) [2018] JRC209 at paragraphs 4 to 31, that judgment being delivered on 16th November 2018.
4. At the hearing on 26th November, the Mother was generally supportive of the application, although Advocate Haines on her behalf initially indicated he needed further information - but his final submissions were that the Mother accepted the significant risk which Eleanor faced in Jersey, and she gave her consent until January 2019. If the final date should change (as it now has) Advocate Haines indicated that the Mother would wish to reconsider her position at that time.
5. For the Father, Advocate Hall indicated that he was not pleased that Eleanor had been sent off-island without any discussion with him, but nonetheless he aligned himself with the guardian and considered it was correct that Eleanor stay where she was until the conclusion of the hearing in January. His main concern was a request to have some Christmas contact with her. The Minister was clear that for good evidential reasons it was necessary for Eleanor to stay off-island, and his application was supported by the guardian who told us that Eleanor's wishes and feelings are that she should come back to Jersey, but the guardian did not consider there was a safe place here for her at present. Advocate Tremoceiro had instructions directly from the Child which were different. He told us that Eleanor opposed the application and wanted to return to Jersey where she could be temporarily housed in Accommodation A until there was a move to a smaller unit in the Island.
6. The Court heard evidence from Ms Helen Hawkins the social worker, from Ms Karen Ogle, the Interim Head of Service within the Children's Services, from Mr John Ruddick a team manager in Children's Services and from the guardian.
7. We also had the advantage of a number of written psychological and other reports.
8. Eleanor was placed in a unit in Scotland on 23rd October, 2018, without the permission of the Court, as neither the social worker nor the manager in the Children's Service at the time had appreciated that such consent was needed. A part of the hearing on 26th November was concerned with how that should have come to pass, as indeed had been envisaged by the Court when the interim approval for Eleanor to be accommodated outside the Island was given on 16th November.
9. Ms Hawkins told us that Eleanor, who had been at Accommodation A prior to 22nd October had visited the accommodation in Scotland during the period 22nd - 23rd October. We were told that Eleanor had said that on her return to Jersey after that visit, she said that she wanted to go back to Scotland to live, and it was only the question of tobacco restrictions there that had caused her to hesitate. However, her mother had bought her a vape, and her grandmother produced a suitcase for her in which she could take all her things; and they bought her some new trainers. They also helped her to pack her belongings. She had seemed at the time to be prepared to go.
10. Ms Ogle told us that the manager in the Children's Service who had approved the transfer of Eleanor to Scotland in October misinterpreted the terms of Article 26(6) of the Children (Jersey) Law 2002 ("the Law"). She had believed that she had four weeks in which to bring the application to court. The Law Officers' Department had subsequently given advice which will assist in updating all social workers of their obligations under Article 26(6) and Schedule 2 paragraph 4. Ms Ogle was satisfied that this would assist considerably because, as she put it, "We can't afford to make an error like this".
11. Article 26(1) of the Law provides that where a care order is in force, the Minister shall keep the child in the Minister's care and has parental responsibility for her. There is further provision at paragraphs (5) and (6) as follows:-
12. There is then detailed provision at paragraph 4 of Schedule 2 which is in these terms:-
13. The decision of the Children's Service to remove Eleanor from the jurisdiction was taken at very short notice in the light of particular circumstances some details of which are set out at paragraphs 4 to 9 of the Court's judgment of 16th November. We accept that it was urgent that provision be made to keep Eleanor safe at the time that decision was taken. We also consider that it was reasonably to be expected that such an application would have to be made, and that therefore the urgency of providing some safe accommodation does not excuse the failure to make an application to the Court. As is clear from the Court's judgment of 16th November, the Children's Service made an error. Article 26(5) contains provisions which prevent the removal of a child from the Island without the written consent of every person who has parental responsibility or with the leave of the Court, but that does not apply where either the removal of the child is for less than a period of a month, or to arrangements for a child to live outside Jersey. The prohibition under paragraph (5) against removal of a child from Jersey does not apply to arrangements for a child to live outside Jersey. There is different provision for such arrangements, namely that provided in Schedule 2 Paragraph 4, which has effect by virtue of Article 20(3) of the Law. It follows that the one month period does not apply where the child is to live outside Jersey.
14. As we have said, the Children's Service made an error in its construction of the legislation. Social workers and managers should have been aware of the need to apply to the Court for permission to place a child to live outside Jersey, but at the same time we recognise that the provisions of Article 26(5) and (6) are not drafted as clearly as might have been the case. We also recognise that the decision taken on 24th October was one which was absolutely a decision considered to be in Eleanor's best interests. There was no question of bad faith and, as has been shown by subsequent Court decisions, no question of bad judgment other than a misconstruction of the Law. Given the evidence of Ms Ogle, we are reassured that it is unlikely that such an error will occur again and we give it no further attention.
15. The only local case to which we were directly referred in which the present issue has been considered (other than by this Court on 16th November 2018 in the present case) is In the matter of Linda (care proceedings) [2018] JRC 207, a decision of the Court handed down approximately one week before the present case was heard. In that case the Minister had applied for the Court's approval to a specialist placement for Linda in the United Kingdom. The placement was supported by the mother, but the father did not attend the hearing. Linda did not attend, but sent the Court a letter opposing the placement, indicating that she felt it was a punishment which should not be inflicted on any child. She raised in particular her strong relationships with her grandparents, her younger half-sibling and with other connections, and the guardian also did not support the move. In connection with paragraph 4(2)(c) the Royal Court approached the matter in this way:-
16. We note that the Court was not referred to the two English decisions which have been put before us. We note also that In the matter of Linda, reference was made to the case of In the matter of SS [2012] JRC 061, which although not put before us, concerned a 14 year old boy who had presented with complex behaviour and a background of severe learning difficulties and emotional abuse. The Court's decision in that case was that the boy's emotional development was equivalent to that of an 11 to 12 year old rather than a 14 year old, and his expressed wishes could not outweigh the unanimous advice of all the experts and those responsible for his care to the effect that he needed an off-island therapeutic centre. The Court found that at his age of emotional development, he could not be expected to know what was in his best interests when that conflicted with what he would like to happen.
17. From the extract contained in the judgment, it would seem therefore that In the matter of SS, the Court approached the issue by eliding the question of understanding with the question of welfare, whereas the decision In the matter of Linda was arguably more nuanced - there is certainly an element of welfare as the basis for the decision, although it is expressed in terms of understanding. We were informed that In the matter of Linda is going to appeal.
18. We also note that in the present case, in the Court's judgment of 16th November, 2018, Sir Michael Birt, Commissioner, having referred to In the matter of SS said this:
19. Relying upon the Royal Court's conclusions in paragraph 29 of the judgment of 16th November that Eleanor could not be taken to have a sufficient understanding for her lack of consent to be an impediment to her placement in Scotland, Advocate Tremoceiro submitted that that could now be revisited, and the evidence suggested she was no longer emotional and therefore her lack of consent was central to the Court's exercise of jurisdiction pursuant to Schedule 2 paragraph 4. The heart of the submission was that it was essential to focus on the child's understanding and not her welfare for the purposes of considering paragraph 4(2)(c)(i) of the Second Schedule. Any risk which the child faced, which of course would be directly relevant to welfare, could be taken into account to determine whether the child had a good understanding of that risk and that legitimately could bear upon as assessment of her understanding and thus the validity or otherwise of the lack of consent; but the focus was always on understanding and not on welfare.
20. It is often said when looking at previous decisions, that context is everything. In our view this is particularly the case with regard to the English decisions, which were put before us, where the context was whether or not the child in question had sufficient understanding to be able to instruct a solicitor. The analysis of what level of understanding was required has to be seen against the question of what the understanding was required for, namely the ability to instruct a solicitor in relation to the proceedings. Critically, the outcome of that analysis would not necessarily impact upon a decision on the child's welfare - he or she might have sufficient understanding to instruct a solicitor, give those instructions and yet nonetheless find himself or herself on the wrong end of the Court's decision, at least from the child's perspective. It may be that the level of understanding required to enable a child to give instructions to his or her lawyer is lower than the level of understanding required to give or withhold consent to a medical procedure or a placement off-island.
21. That context has to be compared with the context of the present submission. In this case, the understanding relates to the giving or withholding of consent rather than the ability to understand the proceedings sufficiently to give instructions to a solicitor. If Advocate Tremoceiro is right, then a child who understood what the issues were but unreasonably refused to consent even though it was in his or her best interests to do so would leave the Court without any power or jurisdiction to make an order approving a placement off-island which was in his best interests. Likewise, a child who understood the concept of living off-island would have a veto over that decision, as Sir Michael Birt powerfully observed in the extract quoted above.
22. Article 2(1) of the Law provides as follows:-
23. It follows that if Advocate Tremoceiro is right, then a court faced with whether to approve the placement of a child out of the Island would be obliged to decide that question without having regard to the paramount consideration, namely the child's welfare. In other words, Article 2(1) would have to be read subject to the provisions of paragraph 4(2)(c) of Schedule 2. It seems to us that in another case it may be necessary to consider two points in this connection. The first is that no such qualifying language appears in Article 2(1). The second is that such a conclusion might be thought to run contrary to a central thread which permeates the whole of the Law, which is designed to protect children who are vulnerable. The older the child, the more any court will respect the wishes which are expressed, but even with a child who is nearly at the age of majority, the Court will have regard to his or her vulnerability in deciding the extent to which reliance can be placed on the child's wishes. It could be said in support of that stance that this is why the wishes of older children are not the paramount consideration - the Court has regard to them (see Article 2(3)), but they are not the paramount consideration. The Law requires that the welfare of the child is fundamental to the Court's decision.
24. We think paragraph 4 of Schedule 2 is unhappily drafted, whatever its proper construction. The question for the Court on another occasion may well be whether the requirement in paragraph 4(2)(c)(i) of Schedule 2 that the child has "sufficient understanding to give or withhold his or her consent" assumes that the understanding be measured against the child's welfare. We accept that the terms of this paragraph in Schedule 2 are not satisfactory because there may well be cases where the child does have a full understanding of what it means to give or withhold consent, and at the same time acts unreasonably and against his or her best interests in withholding it. It is unclear if the Court is able to ignore the requirement for the child's consent on the basis that a full and sufficient understanding was overridden by welfare considerations.
25. We note that the provisions of paragraph 4 of Schedule 2 will come before the Court of Appeal shortly and we do not feel we have received sufficient argument on this point to express a view. It is not necessary to do so because in reaching the conclusion we have, namely to give the Minister an authority to place the child out of the jurisdiction, we have applied, with some reservations, the test which Advocate Tremoceiro put before us - in particular we have taken our assessment of risk into account to determine whether or not Eleanor has a sufficient understanding of that risk, and we have concluded that she does not. Whether that legal test is the right test to apply is left open for a decision by the Court of Appeal in another case. Had we merely applied the welfare test, we would have reached the same conclusion.
26. In the present case, the Court has reached the firm conclusion that Eleanor does not have a full understanding of the risks which she would face if she were to return to Jersey and, accordingly, does not have a full understanding of what it means to give or withhold consent. In reaching that conclusion, we have had regard to the following considerations:-
(i) The views expressed by the experts support the conclusion that Eleanor does not understand the nature and extent of the risks in which her conduct places her.
(ii) The guardian supports that view.
(iii) A review of the history of her conduct while she was living at Accommodation A also supports that view.
(iv) Although she may well be academically intelligent, we are not satisfied that Eleanor has at her present stage of development the emotional intelligence to understand the risks in question.
27. We are satisfied that the property in Scotland in which the Minister has placed Eleanor is an appropriate model. Dr Murray considers she is benefitting from her stay there, and while she understandably misses her mother and her friends, she likes the staff there and, as the guardian put it to us, right now it is doing its job.
28. Both parents have accepted that there would be significant risks if she were to return to Jersey at this stage, and both parents have given consent for her placement away from the Island - in the Mother's case, that consent was limited until the hearing fixed for January 2019.
29. In making our assessment, we have been much influenced by the fact that all the evidence suggests that there is nowhere currently safe for Eleanor in Jersey. Whilst the placement in Scotland may or may not be the right long-term placement for her - and we have noted that the Minister is adopting a twin-track approach to her long-term placement, namely either in Jersey or in the United Kingdom - the evidence suggests that there is currently no safe place for Eleanor in Jersey. Her safety is paramount, and it is our view of that risk which has led us to the conclusion that she does not at this stage have a sufficient understanding of what it means to give or withhold consent.
30. For these reasons, we have approved the proposed placement of Eleanor in Scotland until the close of the hearing fixed for January 2019.