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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of OO (Care order) [2023] JRC 174 (25 September 2023) URL: http://www.bailii.org/je/cases/UR/2023/2023_174.html Cite as: [2023] JRC 174 |
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Before : |
A. R. Binnington, Esq., Commissioner, and Jurats Dulake and Opfermann |
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Between |
The Minister for Children and Education |
Applicant |
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And |
(1) The Mother (2) OO (through her legal representative Advocate Heidi Heath) |
Respondents |
IN THE MATTER OF OO (THE CHILD)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate P. F. Byrne for the Minister.
The First Respondent did not appear and was not represented.
Advocate H. J. Heath for the Second Respondent.
judgment
the COMMISSIONER:
1. On 18 April 2023 we gave judgment with short reasons in relation to an application by the Minister for Children and Education ("the Minister") in respect of OO for a Care Order under Article 24 of the Children (Jersey) Law 2002 ("the Law"). The Minister was seeking a Final Care Order. The following are our detailed reasons for the Order that we made.
2. OO is the daughter of the First Respondent, who abandoned OO and her two half-siblings to the care of OO's stepfather, in or about March 2022. OO's father, who lives in Country A has no involvement in OO's life. OO's two half-siblings have been the subject of an application in separate proceedings which were heard in the same week as this application.
3. Advocate Byrne appeared for the Minister and Advocate Heath for OO. OO's mother did not appear and was not represented, having been contacted on behalf of the Jersey Children Service in her home country but not wishing to engage in these proceedings.
4. The Threshold Document was not contested by the Stepfather or the Guardian, nor was the Care Plan in relation to the Final Order.
5. On 29 November 2021, OO, together with her half-sister and half-brother, who are the subject of a separate application, (together "the Children"), were made subject to Child Protection Plans, as a result of concerns as to the health of both parents, with whom they were living at the time. The Mother had made allegations of emotional abuse against the Stepfather. The Mother subsequently abandoned the family, without notice, and is currently residing in her home country of Country A.
6. Between March 2022 and 18 August 2022, OO, along with her half-siblings, was in the sole care of the Stepfather. During this time the Stepfather's mental health was deteriorating and in August 2022 third parties raised concerns with the police and the Childrens Social Care Service. As a result of observations of the Stepfather's behaviour, the Minister applied for, and was granted ex parte on 18 August 2022, an Emergency Protection Order and the Children were removed to foster care.
7. At a hearing on 26 August 2022, the Court made an Interim Care Order in respect of OO, and a Supervision Order in respect of her half-siblings. The Supervision Order was made on the basis that the Stepfather had commenced a period of medicinal treatment for his mental health, and it was envisaged that after six weeks he would be able to resume care of the Children. The Children were to remain in foster care following the voluntary agreement by the Stepfather.
8. Following the making of the order of 26 August 2022, the professionals involved became concerned at aspects of the Stepfather's appearance, the appropriateness of his conversations with the Children and his own reporting that he had ceased taking prescribed medication and was instead taking co-codamol. At the Stepfather's request, contact with the Children was reduced to one hour twice a week as the Stepfather was finding any longer period unmanageable.
9. Following a request from the court, the Stepfather was examined by Dr Jacek Krysztofiak, a consultant psychiatrist, on 11 October 2022. The stepfather was diagnosed with Bipolar Affective Disorder type 2, for which he was prescribed Aripiprazole as a mood stabiliser. Dr Krystofiak noted in his report that the Stepfather was in partial remission of his symptoms but remained vulnerable to relapse.
10. Over a period, a marked improvement in the Stepfather's presentation became apparent and the Minister felt able to plan a reunification of the two younger children with their father. That subsequently took place with no reported concerns. A social worker in Country A, instructed on behalf of the Childrens Service, sought to engage with the Mother to confirm her wishes in respect of the Children. The Mother was ambiguous about her plans for the Children, suggesting that they might live in Country A on a trial basis, but without expressing any firm intention for them to do so. It was apparent from the visit that the Mother might herself be suffering from mental health issues.
11. We note that the making of a Care or Supervision Order involves a two-stage process and requires the Minister first to establish, on a balance of probabilities, that the threshold criteria as set out in Article 24(2) of the Law are made out. The threshold findings provide the factual basis for determination of the appropriate orders to make within the care proceedings.
12. A Care or Supervision Order may only be made where the Court is satisfied that the child concerned is suffering, or is likely to suffer, significant harm and that the harm is attributable to the care given to the child, or likely to be given to the child, if the order were not made, not being care that it would be reasonable to expect a parent to give (see Article 24(2)(a) and (b)(i)). The two limbs are thus alternatives, and it is not necessary for the Court to find both past harm and likelihood of future harm to satisfy itself that the threshold has been met.
13. In the present case, the Minister's position was that, at the relevant date, OO had suffered significant harm as a result of the care provided or likely to be provided to her, not being what it would be reasonable to expect a parent to give. The details of the harm were set out in the Minister's Threshold Document.
14. We were referred to In the Matter of C [2009] JLR 353 in which it was held that the relevant date for determining whether the threshold criteria are met is the time that protective measures were first put in place and not the date of the final hearing. The Minister's position was that in this case the relevant date is 18 August 2022, being the date that the Children were subject to an Emergency Protection Order. The Court is entitled to consider matters before the date of the application in order to assess at the relevant date whether the Children were likely to suffer significant harm in the future (see In the Matter of D (Care Order) [2013] JRC 104).
15. Although there is English authority to the effect that where a parent concedes sufficiently to satisfy the threshold criteria and the order sought it may not be necessary to proceed with a long trial, the Royal Court has held, in In the Matter of the T Children [2009] JRC 231 that the English authorities do not justify "a departure from the rule that sufficient evidence should be adduced before any order under Article 24 could be made... The requirement to be satisfied [that the threshold is met] places a duty on the Court to make such inquiries as to the evidence as are appropriate to the case to reach that state of satisfaction".
16. If the Court is satisfied that the threshold is met, it must then go on to consider what order, if any, should be made. In that respect the applicable principles are set out at paragraph 8 of the Jersey Court of Appeal's judgment in Re F and G (No.2 ) [2010] JCA 051 as follows:
17. In relation to the child's welfare being paramount the Royal Court (W J Bailhache, QC, Deputy Bailiff) stated in In the Matter of D (Care Order) [2013] JRC 104 (at paragraph 17):
18. In relation to delay the Minister submitted that there was no reason why there should be any more delay and any delay in finalising a decision for OO would be prejudicial to her welfare.
19. The welfare checklist at Article 2(3) of the Law provides that the Court shall have particular regard to:
20. Article 2(5) of the Law provides that the court has a positive duty to apply the "non-intervention principle" and not to make an order unless it considers it to be in the interests of the child to do so. The Minister submitted that this was not a case in which the non-intervention principle could apply.
21. Before making a Care Order with respect to any child, the Court shall both consider the arrangements which the Minister has made, or proposes to make, for affording any person contact with the child and shall invite the parties to the proceedings to comment on those arrangements (Article 27(11)(a) and (b) of the Law).
22. The final step in relation to the Care Order application is for the court to consider the Care Plan to ensure it is in the child's best interests.
23. We had before us expert reports from a clinical psychologist, Dr James Murray, a forensic clinical psychologist, Dr David Briggs, and a consultant psychiatrist, Dr Tanya Engelbrecht. The Court had the benefit of seeing the minutes of a meeting which had taken place in February 2023 between the three experts and the Child's Guardian, Elsa Fernandes. The minutes demonstrated a broad measure of agreement in relation to the Stepfather's ability to care for the Children, his mental condition and his response to treatment. The focus of the discussion was however directed more to the Stepfather's ability to care for OO's half-siblings given that it was not regarded as realistic that the Stepfather would be in a position to care for all three children on his own and in any event this was not an outcome that OO wanted. It was however noted that OO's mental health was somewhat fragile and that she would benefit from a continuation of a foster care placement, if possible, with carers with some level of skill in supporting teenagers having mental health difficulties.
24. We heard evidence from OO's social worker, Dr Murray and OO's Guardian, Ms Elsa Fernandes.
25. Dr Murray expressed the view that OO had experienced loss and harm as a result of a number of recent life events which had negatively affected her mental health to a significant extent. Her relationship with the Stepfather and her mother was characterised by insecurity, anxiety and insufficient trust. Advocate Heath put to Dr Murray that OO had experienced difficulties in communicating with her social worker in relation to emotional issues and had felt that she was not being listened to. She said that she had also expressed concern at changes in the allocated social worker which resulted in the new social worker not having the necessary background information, requiring her to provide this information again. Dr Murray said that it was not uncommon to hear from a young person that they were experiencing difficulties in their relationship with their social worker and this was particularly difficult where they were in residential accommodation, where there was no person in the position of a parent, unlike a foster placement. He said that if the relationship was not going well, it was important to look at the reasons why and to see whether they could be remedied. He said that trying to avoid changes in the allocated social worker was important as well as ensuring that any new social worker had full details of the child's background.
26. The Guardian described OO as being shy and choosing who she speaks to carefully, but also said that when she does engage she is a polite, considerate, caring, funny, articulate and intelligent young person. She did however point out that she could also present as sullen, self-critical and not feeling that she had anything to offer anyone, suffering with low mood during the course of the proceedings. An incident that had occurred earlier in her childhood had significantly affected her mental health and caused her continuing difficulties in sleeping. She was being supported by CAMHS with therapy and had been prescribed medication for her low mood and medication to help her sleep. She described OO as a young person who wanted to be looked after and to please people, but who at the same time felt she was a burden to those around her.
27. The Guardian stated in her written report that initially OO appeared to have been settled in her foster placement, but had subsequently started to struggle with her mental health and had felt that her placement was now too noisy, with other teenagers who were going through their own issues. She had at times refused to return to the placement and had been requesting to move from the placement since the end of 2022. At the time of writing her report OO had expressed concern to the Guardian that the Care Plan stated that she would move to a new placement within eight weeks of a Care Order being granted, but had been concerned that this was too long a time for her to wait as she feared that her current placement was breaking down. Somewhat to the Guardian's surprise, she only learnt shortly before the hearing that OO had in fact been removed from the foster care placement and placed in a residential placement, albeit on a temporary basis whilst a suitable foster carer was sought.
28. An assessment undertaken by a social worker in Country A revealed that OO's mother was not seeking to care for her in Country A nor was she intending to return to Jersey to resume care of her. The Guardian informed the Court that OO had been clear throughout the proceedings that she wished to remain living in Jersey to finish her education and then to attend further education in Jersey to study business studies. She said that her school attendance had currently been poor which appeared to be the result of her not sleeping and therefore being too tired in the mornings to get up for school. OO had expressed to the Guardian her wish to be able to visit her mother and, more importantly, her maternal grandmother in Country A but felt that she would need to be accompanied on any visit as she feared that her mother would prevent her from returning to Jersey. In relation to OO's contact with the Stepfather and her half-siblings, it appeared that she had found the Stepfather's mental health difficulties too difficult to deal with initially, but as his mental health improved she had been making her own arrangements to have contact with him and her half-siblings. She had expressed to the Guardian that she wished to continue to have contact with her half-siblings and with the Stepfather and that she was capable of arranging this herself. Prior to the hearing, OO had expressed the view that she was in agreement with the Minister's Care Plan for a Care Order with her remaining in foster care, but reiterated her wish to move to a permanent foster carer where she was the only young person there.
29. The social worker's evidence was that OO's removal from the existing foster placement was a result of OO's wish to move and the foster parent giving notice. She said that a search was being made for appropriate foster carers but none were found to be a suitable match and accordingly OO had been placed in a residential placement on a temporary basis whilst the search continued. The difficulties that OO had experienced in relation to out of hours contact was put to the social worker and she explained the various ways in which this could be handled. She expressed the view that OO did not like to upset people and felt herself to be a burden and that this sometimes made it difficult for her to accept help.
30. OO attended the hearing and expressed the wish to speak to the Court directly. Given her age, the Court felt that it was appropriate to accede to her request and we therefore met with her in private. She impressed us as an intelligent, articulate and determined young person who ably expressed her views to us. She clearly had a sense of frustration in her dealings with social services and was particularly frustrated with changes in her allocated social worker leading her to have to explain her circumstances all over again to the replacement. She also expressed the view that she felt that she was not always being listened to. It was clear to us that if a suitable foster placement could be found, she is a young person who is likely to make every effort to succeed but that she would need an appropriate level of support in relation to her mental health difficulties and appropriate financial support in relation to her education. She also made clear to the court that she valued the relationship that she had with her half-siblings and her Stepfather and that she was capable of managing that relationship herself without outside intervention.
31. The Mother left OO in the care of the Stepfather in or about March 2022 without notice and returned to Country A. She made no plans for the Child or her half-siblings and did not notify the Children's Social Care Service. In so doing, she left the Child without a Parental Responsibility holder and at risk of deportation. The evidence of Dr Murray was that OO suffered emotional harm as a result of the Mother's departure, and it is clear that the Stepfather's mental health had deteriorated by August 2022 to the extent that he became incapable of looking after OO and her half-siblings. On 18 August 2022, when the Emergency Protection Order was made, social workers had to be accompanied by the Police when they visited the family home as they were concerned for their own safety given the Stepfather's erratic behaviour.
32. As a result of the evidence that we heard we had no doubt that the threshold test was met as at 18 August 2022.
33. OO has reached an age where it is appropriate to take into account her views, which she expressed very clearly to us, and we have done so.
34. We are satisfied that the application of the non-intervention principle is not appropriate given the lack of anyone in her life to exercise parental responsibility. We also recognise that OO is of an age where she needs some stability and certainty in her life and delaying any order would not be in her best interests.
35. Having considered the Child's welfare and the particular matters in the welfare check-list, there is no doubt that a final Care Order is appropriate.
36. In relation to the Care Plan, this envisaged that the Child would remain in a residential placement but only on a temporary basis whilst a long-term foster placement was sought. At the conclusion of the hearing, we urged the Minister to ensure that this was pursued as a matter of priority. It was clear that a placement with a suitable foster parent would make a significant difference to the Child's emotional welfare.
37. Advocate Heath, on behalf of the Child, reminded us that sometimes what may appear to be relatively minor initiatives can make a significant difference to a child's wellbeing and, with this in mind, we urged the Minister to ensure that steps were taken to address the communication difficulties to which we have referred, such as ensuring that new social workers and out of hours contacts are properly briefed as to OO's background, in the hope of avoiding the need for her to have to explain matters anew. We were made aware that there was to be a change in OO's allocated social worker and whilst we accept that staffing difficulties make such changes inevitable, albeit unwelcome, it is important to ensure that the transition is managed in such a way as to cause as little disruption as possible. There were a number of other matters that we suggested should be followed up, such as the possibility of arranging a visit by OO to her grandmother in Country A, funding for gym visits and dance lessons and continuing access to professional assistance in relation to her mental health issues. Whilst these may be matters of detail, we have little doubt that they would have a significant impact in relation to OO's well-being. Subject to those comments we approved the Minister's Care Plan.
