[2011]JRC133
Royal Court
(Family)
8 July
2011
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Before :
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Sir Philip Bailhache, Kt., Commissioner, and
Jurats Morgan and Olsen.
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IN THE MATTER OF T
AND IN THE MATTER OF THE CHILDREN (JERSEY)
LAW 2002.
Advocate D. C. Robinson for the Minister.
Advocate V. Myerson for the Guardian.
Advocate C. L. Nicolle for the Mother.
judgment
the commissioner:
1.
This case
has had a chequered history but it is unnecessary, given the broad agreement
between the parties, to do more than summarise it very briefly. The child, to whom we shall refer as T,
is now aged 10 and is the daughter of a mother who suffers from Bipolar
Affective Disorder. This disorder
has wrought havoc to the early life of T who has been in and out of foster care
on too many occasions. Eventually
an application was made for an interim care order which was granted on 19th September, 2008. On 27th August, 2009, T was placed with
Mr and Mrs A, to whom we shall refer as “the foster carers”. During 2010 it appeared to the experts
that the mother’s problems had been sufficiently brought under control to
return T to her care. In August
2010, she returned to live with her mother and on 13th October, 2010, the Court
granted leave to the Minister to withdraw her application for a full care order
and the proceedings drew to a close.
2.
Sadly the
mother’s recovery was short-lived; she decided not to take her prescribed
medication with the result that, over the weekend of 13th and 14th
November, she became severely psychotic.
She destroyed many of T’s treasured belongings and removed her
mobile telephone to prevent T from making contact with any of those who had
been intended to constitute a safety net.
The mother had been singing loudly until the early hours of the morning
and behaving in a bizarre manner.
The mother told staff at her place of employment on Monday 15th
November that she had been practising witchcraft over the weekend and cleansing
her child of unnecessary sins.
There is no doubt that for T this short period was a very frightening
and, indeed, catastrophic experience.
She was immediately placed once more with her foster carers and the mother
was made the subject of an order under Article 7 of the Mental Health (Jersey) Law 1969 and admitted to St Saviour’s
Hospital. She remained a detained
patient until early January 2011.
3.
In
December 2010 supervised contact took place with the mother who had been
granted home leave. The contact was
supervised because T had said that she did not want to be left alone with her
as she did not feel safe. On 18th March, 2011,
the Minister applied for and was granted a fresh interim care order. A Guardian, Miss Leonora Green, was
appointed under Article 75(1)(b) of the Children (Jersey)
Law 2002 to which we shall refer as “the Law” and various
orders were made for reports from the experts to be brought up to date. In the meantime weekly supervised contact
between T and her mother was continuing.
The Court has seen the notes of these contact sessions recorded by Miss
Tracey Najib, the supervising social worker, and we think that they make
uncomfortable and indeed distressing reading. It is plain, with the benefit of
hindsight, that the sessions were of little or of no benefit to T.
4.
On 13th May, 2011,
the Guardian applied to the Court for a reduction in the frequency of
contact. This was initially opposed
by the Minister but an order was eventually made by consent, reducing the
frequency to once every six weeks, or so.
The Court also made orders with a view to bringing the matter on for an
earlier final hearing than had been envisaged. We are grateful for the efforts made by
all concerned to enable that early hearing to take place.
5.
Yesterday
it was agreed by all counsel that the threshold criteria for making an order
under Article 10 had been met. It
is nonetheless incumbent on the Court to make its own finding. We record that T has suffered emotional
harm from the parenting that she has received over many years. That emotional harm has resulted from
her mother’s illness, which has involved repeated instances of bizarre
and frightening behaviour, admissions to hospital, and the consequent inability
to give T the stability and security that she craves and needs. The relationship between T and her
mother has now collapsed to the extent that T has made it very clear that she
no longer wishes to see her. The
opinion of Dr Williams, Consultant Psychologist, is that T has been emotionally
damaged by her experiences and that she ought not to be returned to the care of
her mother. We agree. There are compelling reasons why T
should be removed permanently from the primary care of her mother.
6.
All the
parties also agree that the appropriate order for the Court to make is a
residence order in favour of the foster carers. An adoption order has been considered
but the foster carers, with whom T now has a close and warm relationship, do
not wish to adopt T for reasons which include the effect upon their own
daughter’s rights of succession.
Their stance seems to us entirely understandable. It is perhaps regrettable that the Court
is not able to make what in England
would be called a “special guardianship order” which confers rather
more extensive powers upon the special guardian than are possessed by persons
in whose favour a residence order has been made. Nonetheless we think that it is possible
by the means of conditions attached to the residence order to achieve something
close to the same end.
7.
We have
considered the “no order” principle and our overriding duty to do
what is in the best interests of the child. We have also taken into account the
welfare check list. We have no
doubt that T’s best interests are served by the making of a residence
order in favour of the foster carers.
T asked through her Guardian to see the members of the Court in private;
she is ten and we were satisfied that she was of sufficient maturity to express
her feelings to the Court and we agreed to that request. We saw T in chambers with her foster
carers. It was clear that T enjoyed
a warm and close relationship with them and that fact is also evidenced by all
the reports before us. T told us
that she did not want to return to live with her mother and that she wanted to
remain with her foster carers until she had grown up. We have taken those views into account
as well as all the submissions of counsel and the advice of the experts. We will, accordingly, with the agreement
of all the parties, make a residence order in favour of the foster carers who
may be taken to have applied for such an order subject to conditions to which
we will come in a moment.
8.
We turn to
the question of other necessary orders to protect the interests of T and to
ensure her future safety which has in recent months particularly, been severely
compromised. We do not criticise
any individual but we think it is necessary to state that there has been, over
many years, a collective failure in the Health and Social Services Department
to give proper weight to the need to keep T safe. Too much weight has been attributed to
the desire to maintain the relationship between T and her mother. That desire was understandable,
particularly because the mother was desperate to have T returned to her care
and she was and is, her illness apart, a loving parent. Nevertheless, the concentration on the
interests of the mother rather than the interests of T was in our judgment, mistaken. The question of contact between T and
her mother in the future has caused this Court, and all those involved in this
case, considerable heartache and anxiety.
We are not going to make any order in relation to contact but we think
that it is nonetheless desirable, in order to help the foster carers, to
express our views on the matter which are of course informed by the situation
as it currently exists. We
acknowledge that the situation may change and the foster carers, guided always
by the fostering and adoption team in the Health and Social Services
Department, may in the future consider that their approach should be
different. For the present,
however, the imperative is to ensure T’s safety and moreover, to make T
feel that she is safe. T’s
faith and trust in the adult community has been adversely affected and needs to
be restored. She is adamant at
present that she does not wish to see her mother. She is angry with her mother but she is
also embarrassed and frightened by her mother’s behaviour when her
mother’s mental illness is not under control. We think, and we believe that this is
also the view of Dr Williams, that there should be a reasonably substantial
breathing space during which no attempt at contact is made. During that time her relationship with
her foster carers can be strengthened and deepened. Such a breathing space might last until
Christmas 2011. Even then however,
we do not think that it is desirable to be too prescriptive about the possible
restoration of contact between T and her mother. Much will depend on the circumstances at
that time. We are content to leave
this to the good sense and judgement of the foster carers, guided, as we have
said, by Miss Sarah Michael, whose evidence greatly impressed us, and by others
in the fostering and adoption team.
We should not be taken to be endorsing that part of the care plan which
deals with contact. Miss Stark
emphasised that the intention was to ensure flexibility but we think that that
flexibility does not emerge from that part of the care plan.
9.
Two things
seem to us to be pre-requisites before contact can be restored. The first is that T’s mother is
able to demonstrate that she has fully accepted that her illness means that she
cannot act as a parent for T. She
will always be T’s mother but her illness prevents her from being her
parent. Her relationship with T
must in future be different; there can be no whispered invitations in corners
of the room to come back and live with her. That will be very difficult for the
mother but not impossible and we hope that, with help, she will be able to show
that she is no longer a threat to T.
10. The second pre-requisite is that T feels
comfortable and safe in seeing her mother again. We agree with Dr Williams that this can
only happen at T’s own pace; it may take a long time; it may not happen
until she is much older. Nothing,
however, must be allowed to threaten her safety and her sense of wellbeing in
the home of her foster carers.
11. To that end therefore we will make the
following orders:-
(i)
We make a
residence order pursuant to Article 10 of the Law in favour of the foster
carers. As recommended by the
Guardian, Miss Green, we make the residence order, subject to three
conditions:-
That the foster carers shall apply for T to
transfer to secondary school in September 2012;
(a) That T’s attendance at church will be at
the discretion of the foster carers;
(b) That prior to any direct contact taking place,
the foster carers shall obtain confirmation from a member of the mother’s
mental health team, that the mother is sufficiently well for such contact to
proceed.
We envisage that the fostering and adoption
team may also be able to inform the foster carers from their own enquiries that
the first pre-requisite to the restoration of contact which we have already
mentioned, has also been satisfied.
We have considered carefully the
suggestions that a supervision order or a family assistance order should be
made but we are not persuaded that either order would assist in the
circumstances. We wish to make it
clear that the foster carers now hold the responsibility for making all
important decisions relating to the upbringing of T. Counsel for the mother told us that the
mother trusts the foster carers and, subject to everything that we have already
said as to T’s safety and as to not forcing T into contact before she is
ready for it, we will leave the question of contact to the foster carers. We express the hope that the fostering
and adoption team, will remain closely involved with the foster carers for so
long as maybe necessary and that any necessary assistance will also be
forthcoming from the Child and Adult Mental Health Services.
(ii) We will make an order under Article 66(8) of
the Law prohibiting the mother from bringing any application under the Children
(Jersey) Law 2002 in relation to T without
the leave of a judge of the Royal
Court.
We have been referred to the judgment of this Court In the matter of
T [2010] JRC 126 where the
Deputy Bailiff considered authorities on comparable statutory provisions in England. Counsel for the Guardian referred us to
the same authorities. We accept
that orders of this kind should only rarely be made and that there is no
history of making applications under the Law. Nonetheless we accept the view of the
Guardian that this protection is necessary in this case. Too much emotional damage has already
been caused to T to contemplate the possibility that her equilibrium with the
foster carers might be upset by the knowledge that her mother was
inappropriately seeking some contact order or even a revocation of the
residence order.
(iii) We make a disclosure order pursuant to Rule 25
of the Children Rules 2005 and grant leave for copies of the statements
of Laura Stark and the reports of Julie Stacey, Leonora Green, Dr Harrison and
Dr Williams to be disclosed to the foster carers; we also grant leave for a
copy of the report of Dr Williams to be disclosed to Dr Posner, redacted in
relation to any references to T’s mother. We also direct that this judgment be made
available to the foster carers and we recommend that it is the first document
that they read.
12. Finally, we express our appreciation to
T’s mother for the cooperation that she has shown during this hearing in
seeking to protect the best interests of her daughter T. It will have been a difficult time for
her and the months ahead will probably be even more difficult. Nonetheless she has done what is in the
best interests of her daughter. We
also express our thanks to all those involved in what has been a very difficult
case.
Authorities
Mental Health (Jersey)
Law 1969.
Children (Jersey)
Law 2002.
Children Rules 2005.
In
the matter of T [2010] JRC 126.