Jersey Unreported Judgments

Care proceedings - reasons for the orders made.

[2023]JRC170

Royal Court

(Samedi)

20 September 2023

IN THE MATTER OF QQ (CARE PROCEEDINGS)(ASSISTED BY LAURA CARDINAL IN HER CAPACITY AS GUARDIAN)

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

Advocate J. A. E. Kerley for the Applicant.

Advocate A. E. Binnie for the First and Second Respondents.

Advocate C. G. Hillier for the Guardian.

judgment

the deputy bailiff:

1.        On 4 September 2023, we made various orders in this case.  We now give our reasons for so doing. 

2.        By way of background, the Mother is [age redacted], the Father is [age redacted] and has parental responsibility for the Child, who was four and a half months old at the date of the hearing.

3.        On 9 June 2023, the Royal Court, differently constituted, granted the Minister's application for an Interim Care Order in respect of the Child and has subsequently given reasons for that decision.  It is not necessary for us to repeat those reasons.  The Court found that threshold was satisfied for the purpose of making an Interim Care Order under Article 24 of the Children (Jersey) Law 2002 ("the Law") and went on to find that it was in the best interests of the Child and indeed her parents to make the orders sought by the Minister.  The Court heard evidence from the social worker and the Guardian, but not the parents who did not give evidence on the application.

4.        The Court also considered the care plan presented by the Minister.  The following paragraphs of the Court's judgment are of significance:

"17. There was some discussion of the care plan which primarily provides for the attendance of the parents with the Child at a centre for assessment in the UK which was described to us.  The parents would be observed together with the Child but they would receive support as to how to meet the Child's needs.  It is only if there were concerns that staff would intervene.  [Redacted] would visit them once per week and would help them get settled.  She hoped that with support the parents would be able to safely parent the Child.

.....

26.  As we have said, the care plan proposes that the Child is placed with her parents at a centre in the United Kingdom for monitoring and support whilst further assessment is undertaken.  We agree that this is entirely appropriate and indeed we hope that this family will go from strength to strength and on their return to Jersey be able to continue to bring up the Child."

5.        Subsequently, the parents and the Child began residing at the residential unit in question, ("the Unit") since 13 June 2023.  The parents have made some progress but perhaps not the progress which could have been made had they, the Father in particular, been prepared to attend all the sessions (more of which below) that they ought to have attended, and the Child had been put in a better routine in accordance with a "re-set plan" prepared by the Unit dated 7 August 2023.  This re-set plan was agreed with the parents and was necessary because the Mother fell pregnant whilst in the Unit in July and that pregnancy was subsequently terminated on 6 August 2023.  This was a difficult and traumatic experience for both parents, the Mother in particular.  Accordingly, it was initially proposed that the placement at the Unit should be extended by two weeks and at the hearing G, the social worker assessor based in the Unit, who gave evidence, stated that it would have been preferable for the extension to be one of four weeks.  This was understandable in the context, as explored in more detail below. 

6.        On 14 August, the Minister notified the parents of the standard monthly renewal of the Interim Care Order under Article 30(3)(b) of the Law.  By reply, the parents indicated that they objected to renewal - no reasons were given for the objection, and when the Interim Care Order was renewed on 23 August 2023 the Court directed that the parties should, within seven days, attend upon the Bailiff's Judicial Secretary to fix a date to consider the further renewal of the Interim Care Order.  This hearing was fixed for 4 September 2023 and it is plain from the weekly summary notes prepared by the Unit that from at least 24 August 2023 the parents have not been fully focused on the work that they should have been doing at the Unit, but on preparation for the Court hearing in the belief that the Interim Care Order might be discharged and they may be returning home to Jersey on 5 or 6 September.  This was unfortunate.  Another unfortunate aspect of the case is that on 21 August 2023 the social worker assessor, G, who gave evidence together with two managers of the Unit, wrote a joint letter to the law firms representing the Mother and Father respectively, highlighting their concerns about "the possible blurring of boundaries between [the parents] and their Legal Representatives".  They went on to say that while they accepted and "promoted" that the parents were entitled to speak to their lawyers, and that it is important for them to have access to legal advice, "doing so early morning, or late at night is questionable, along with the parents having these calls prior to sessions, resulting in them being late or sessions potentially missed".  Further, it was recorded that three sessions had been missed owing to advice that the Father received from his lawyers and this had led to a "level of resistance from the parents in effectively cooperating with the staff".

7.        We recite these remarks without making any findings adverse to the legal representatives concerned, only one of whom was in any event present at the hearing. 

8.        However, the further complaint was made that "frequent contact that [the Father] has with [the Mother's] legal representatives calls into question the validity of independent support available to [the Mother]".  We were unimpressed with the Father's evidence in this regard.  He said he thought there was nothing wrong with him being present and party to the Mother taking legal advice.  This is unfortunate in the context of allegations of controlling and coercive behaviour on the part of the Father and we encourage the Mother's legal representatives to ensure that conferences with her take place in the absence of the Father, and for both sets of legal advisers to endeavour to ensure that the advice they give, both in terms of its content and timing, does not conflict with the important work that needs to be at the Unit.  We repeat that we make these observations without intending to criticise the legal representatives in question as, apart from anything else, they have not had the opportunity to respond to these concerns in detail or, in one case, at all.

Application to discharge an Interim Care Order. 

9.        Pursuant to Article 30 of the Law, an Interim Care Order shall have effect for such periods as may be specified in the order but, in any event, shall cease to have effect on whichever of the following events first occurs, namely the expiry of eight weeks beginning with the date upon which the order is made or, if the order is the second or subsequent such order made with respect to the same child, the expiry in the period of four weeks beginning on the date on which the order was made or eight weeks beginning on the date upon which the first order is made, whichever is the latter.

10.      Accordingly, it is necessary for Interim Care Orders to be renewed, which the Court routinely does.  However, the use of the word "routinely" does not suggest that the Court does not examine with care each application to renew an Interim Care or Interim Supervision Order.  It does.  Such applications are now listed on a Wednesday morning, with the Court having the opportunity to consider each application in advance by reference to written submissions made on behalf of the Minister.  The Court will frequently make observations in order to ensure that the care proceedings are being prosecuted by the Minister with sufficient dispatch so that, if possible, the matter can be resolved without a final hearing or, if a final hearing is necessary, it takes place as soon as reasonably possible, it being accepted that in the majority of cases delay is inconsistent with the child's best interests.

11.      Interim care orders may be discharged under Article 33 of the Law on the application of a person with parental responsibility.  In this case, both persons with such responsibility made the application for the Interim Care Order to be discharged. 

12.      In the case of In the matter of C (Child Custody) [2012] JRC 112, the Royal Court, Commissioner Clyde-Smith presiding, held:

"12.      There is no specific guidance on the grounds for discharging a care order within the Children Law.  Miss Davies and Miss Colley submitted, and we agree, that in considering whether or not to discharge a care order, the Court has to have regard to the welfare checklist set out in article 2(3) of the Children Law.  That is supported by English case law.   In the case of In Re S (Discharge of care order) [1995] 2 FLR 639, the court stated (on page 5):-

           "The issue has to be determined by the court in accordance with s 1 of the Act, which by (s 1(1)) makes the child's welfare the court's paramount consideration, and (by s 1(3)) and (4)) makes it mandatory for the court to have particular regard to the child's wishes and needs, the likely effect on him of any change of circumstances, the capability of the parents to meet his needs, the range of powers available to the court, and, specifically:

(3) ...

           (e)   any harm which he has suffered or is at risk of suffering."

13.      Further, the court stated that:-

           "A court hearing an application under s 39 of the Act to discharge a care order made under s 31 is bound by s 1(3)(e) to have regard to ' ... any harm which [the child] has suffered or is at risk of suffering....'.  The risk to be considered is the risk current at the date of the discharge hearing .... In the majority of discharge applications the court is likely to be concerned with evidence of recent harm and appraisal of current risk, in which conclusions reached by an earlier tribunal as to past harm or past risk would be of marginal relevant and historical interest only."

14.      This test was affirmed in Re C (Care: Discharge of care order) [2009] EWCA Civ 955 [2010] 1 FLR 744 at paragraph 18:-

           "...the applicant for such an order must make out his case. It does not follow from that the test is simply a matter of listing potential benefits.  Welfare is a more complicated and rounded consideration than that.  I am quite satisfied that the judge is entitled to take into account the continuing effect, or in this case lack of effect, of the care order."

15.      The burden is on the applicant to show the reasons why the revocation of the order is warranted (as stated in MD and TD (Minors) (No 2) [1994] Fam Law 489)."

13.      It follows that the applicant parents need to demonstrate why revocation of the Interim Care Order is in the best interests of the Child.  Such an exercise does not involve revisiting the question of threshold.  In Re TT (Discharge of Care Order) [2021] EWCA Civ 742 [M18-M ]. the Court of Appeal, at para 31, summarised the principles that apply on such an application as follows:

"(1) The decision must be made in accordance with s. 1 of the Act, by which the child's welfare is the court's paramount consideration. The welfare evaluation is at large and the relevant factors in the welfare checklist must be considered and given appropriate weight.

(2) Once the welfare evaluation has been carried out, the court will cross-check the outcome to ensure that it will be exercising its powers in such a way that any interference with Convention rights is necessary and proportionate.

(3) The applicant must make out a case for the discharge of the care order by bringing forward evidence to show that this would be in the interests of the child. The findings of fact that underpinned the making of the care order will be relevant to the court's assessment but the weight to be given to them will vary from case to case.

(4) The welfare evaluation is made at the time of the decision. The s. 31(2) threshold, applicable to the making of a care order, is of no relevance to an application for its discharge. The local authority does not have to re-prove the threshold and the applicant does not have to prove that it no longer applies.  Any questions of harm and risk of harm form part of the overall welfare evaluation.'"

[Our emphasis]

14.      Accordingly, the Minister does not need to re-prove threshold on such an application.  Further, the applicant parents must evidence why discharge is in the interests of the Child.  Generally, prior to the application, it is necessary for the applicant parents to file evidence and counsel on their behalf to file a skeleton argument.  Neither occurred in this case and in consequence neither the Minister nor the Court had any idea of the grounds for the application to discharge until the application was heard.  In future, such evidence and a skeleton argument should be filed well prior to the hearing in the usual way. 

15.      There was also a procedural issue as between the parties in respect of how such an application should be conducted.  It was suggested on behalf of the Minister that, as it was the parent's application, then they should make it and call evidence first.  It was also said that the renewal applications made by the Minister under Article 30 of the Law were simply case management matters and the burden for applying to discharge such an order fell squarely upon the applicants. 

16.      Counsel for the parents said that an Interim Care Order was a temporary order, the duration was fixed by statute at twenty-eight days; applications for a renewal should not be rubber stamped by the Court (with which we agree) and, accordingly, once the question of discharge was raised by the parents, the burden was on the Minister to satisfy the Court that the order ought to be renewed.

17.      In our view, though little authority on this issue was placed before us, the purpose of the Interim Care Order renewals, although substantive in effect, was procedural in nature and were designed to ensure that there was constant and effective Court supervision and case management of all care proceedings.  Having regard to the authorities referred to above, the evidential burden on an application to discharge a care order must lie on the applicants and it is for them to produce evidence to the effect that the Interim Care Order (noting that the question of threshold will not be revisited) is no longer in the interests of the child concerned.  Challenges to threshold findings must be dealt with by way of an appeal and not a re-hearing before the Royal Court.  We do not say that the parents assume a legal burden of persuading the Court that a care order should be discharged, as the Court must always be satisfied that it is in the interests of the child for an Interim Care Order to continue.  But certainly, in the context of this and any similar cases, it is for applicant parents to put evidence before the Court.

18.      As to the format of any such applications, we took the view that it was appropriate and necessary for the Minister to call her evidence first in order to set the scene, to address the extent to which there had been compliance with the care plan approved by the Court in June 2023, weekly summaries of the parents' and Child's progress in the Unit, the two review reports from G, dated 27 June and 10 August 2023 respectively, and a report from Dr Briggs, psychologist in respect of both parents, dated 30 August 2023.  Accordingly, it was appropriate to hear from the Minister's witnesses first and in that regard, we heard from G who was able to summarise the progress made to date and deal with any cross-examination on behalf of the parents prior to any evidence being called on their behalf. 

19.      As to the evidence that we heard, it can be taken shortly.  It was clear from G's second review report, which dealt from the period 28 June to 8 August 2023, that although both parents had made progress, there were still difficulties.  In particular, the Father was noted to dominate meetings and conversations and was angry with social care, leaving the Mother frequently unheard.  The level of the monitoring of the family had reduced from CCTV monitoring to visiting the family every fifteen minutes between 8am and 11pm and audio monitoring during the night.  The parents were permitted thirty minutes per day unsupervised leave of absence from the Unit which they had used so infrequently that that period had not been extended.  This was regarded as unfortunate. 

20.      It was accepted and agreed that both parents were able to meet the basic care needs of their daughter and they could safely handle her.  They also love their Child and want to care for her.  There were some concerns that there was insufficient stimulation of the Child and that she was not yet in a routine - going to sleep late at night and frequently not waking up until late morning.  The advice that the parents should set an alarm was either ignored or only agreed to very recently, notwithstanding that the advice was given in the re-start plan dated 7 August.  This led to the parents "usually running late and ..... presenting as agitated and unorganised".  They had missed a number of appointments.  They had missed sessions in relation to teething, childhood illnesses, childhood behaviour sessions and the Father had refused to attend or permit the Mother to attend internet safety workshops which dealt with matters such as grooming.  G said these issues were important and should be prioritised.  We agree.  These were all sessions in-house which it would have been easy for the parents to access.

21.      The parents had a poor working relationship with their social worker and G thought it was unlikely that the Father would work effectively with social care in the community - one of the options posited on behalf of the parents. 

22.      The last weekly log contained a not untypical entry on the 22 August 2023 which said "By 5.35pm, the couple went out to smoke and staff advised they had now missed two baby keywork sessions, missing one today at 5pm.  [The Mother] said "Well it's annoying as staff never come to find us".  Staff explained it was not their responsibility.  [The Father] looked at his planner on the phone and asked, "What does BKW even mean".  Staff explained this was baby keywork and both said they didn't know what it was.  Staff expressed if they did not understand what was on their planner, they need to ask staff.  Staff said they would try and reschedule the sessions."

23.      For such an entry to have been logged over two months into the placement was, in our view, unsatisfactory.  Bearing in mind the level of support that the parents are receiving at the Unit - which is far greater than they would receive in the community - it is their obligation to understand their timetables and attend the sessions arranged for them.

24.      We agree with G's conclusions that the parents should "refocus once more", follow the re-set plan and the guidance from staff in order to finish the assessment and "develop not only as young adults, but as parents who can offer [their daughter] the care and safeguarding she needs if she is to be in their care in the community".

25.      The Father gave evidence.  He thought that he and the Mother had built positive relationships with the professionals in the Unit and that they had attended as many sessions as they could.  He said that he and the Mother wished to leave the Unit and return to Jersey, particularly for the purposes of seeing their families with whom they were closely connected and two of whom were unwell.  He also said that he wanted to be able to meet the Child's needs and the Child was their number one priority.  He also said that they wanted to do the session work that was outstanding. 

26.      He said that he and the Mother would do anything for the Child.  He said that their failure to take the Child out for a walk was because they did not know the area where the Unit was situated nor did they find it comfortable exploring it. 

27.      In the circumstances we did not feel it necessary to hear from the Guardian.  Counsel for the Guardian said that as far as the Guardian was concerned it would be unsafe to discharge the Interim Care Order, the Child needed the continued protection of the Court and that the process of assessment should be completed, with a full report from the Unit to be prepared at the end of the assessment period. 

Decision

28.      We had no doubt that it would be wrong to discharge the Interim Care Order whilst the parents are still being assessed and assisted at the Unit.  There had not been a material change in the circumstances since the Interim Care Order was made and, in any event, it would, in our view, be contrary to the best interests of the Child to discharge the care order.  We were satisfied that it was in the interests of the Child to spend the next few weeks in the Unit with her parents for the reasons we have already explored.  Dr Briggs, in his psychological assessment of the parents, noted that the Father's history was "noteworthy for the intensity, chronicity and extent of the adverse childhood experiences he was exposed to", leaving him vulnerable to difficulties with "healthy interpersonal functioning".  The Mother was of "modest intellectual ability" and had a limited insight into the quality of the parenting she received as a child.  In his view, this case involved the "collision of two vulnerable parents" who might "slip towards periods of sub-optimal parenting" and "significant levels of professional oversight, surveyance and assistance will be required if we are to be reassured that their care of [the Child] in the future will be free of the risk of neglect".  These findings were not challenged and reinforce our view that it is, having regard to the welfare checklist in Article 2 of the Law, wholly in the best interests of the Child for the Interim Care Order to remain in place and the assessment process at the Unit to be completed.  As we said at the end of the hearing, we urge the parents to embrace the assistance that they are being offered at the Unit. 

Authorities

Children (Jersey) Law 2002. 

In the matter of C (Child Custody) [2012] JRC 112. 

Re TT (Discharge of Care Order) [2021] EWCA Civ 742.