F and G

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: The Bailiff
• Judgment Date: 01 December 2009
• Neutral Citation: [2009] JRC 236
• Date: 01 December 2009

[2009] JRC 236

ROYAL COURT

(Samedi Division)

Before:

M. C. St. J. Birt, Esq., Bailiff, and Jurats Tibbo and Morgan.

In the Matter of F and G

Advocate E. L. Hollywood for the Minister of Health and Social Services.

Advocate S. E. Fitz for the mother.

Advocate E. M. Layzell for the Guardian ad Litem.

Authorities

Children (Jersey) Law 2002.

Humberside County Council -v- B [1993] 1 FLR 257.

re H (Child Sexual Abuse; Standard of Proof) [1996] ALL ER 1.

re M (a Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.

The Bailiff

1 This is an application by the Minister of Health and Social Services for a full care order in respect of two children to whom we shall refer as F and G. F is a boy aged 6 and G is a girl who was 4 at the time of the hearing but has now turned 5. Their mother (“the mother”) opposed the application; the father (“the father”) opted to take no part in the proceedings. Following the hearing, the Court decided to grant a full care order and we now give our reasons.

Background

2 The mother has two sons, A and B, by a previous relationship. They are now aged 19 and 18 respectively. Owing to concerns about the mother's parenting skills and suspected physical abuse of one of the boys, fit person orders in favour of the Education Committee were made in respect of both boys on 31st January, 1992, which remained in force until the boys became of age. Shortly after the making of the order, they were placed by the Children's Service back in the care of their mother at La Chasse House, a residential centre administered by the Committee, but not long afterwards A was returned to foster care. B and the mother moved to independent accommodation.

3 In January 1996 the mother met the father and they married in May 1996. A moved back to live with them. However, difficulties continued despite support from the Children's Service and in September 2000 both children were moved to live with the mother's mother (“the grandmother”). They have remained with her since. For a long period there was no contact, but, being of age, they now see the mother when they wish.

4 F was born in February 2003. Because of the history of concerns regarding the mother's ability to care for A and B, an assessment was carried out by the Children's Service but it was felt that, although each of them had weaknesses in their individual parenting capacities, the mother and the father appeared to complement each other in meeting F's needs. It was noted however that the father would continue to provide the main care for F and he was asked not to seek employment outside the family home as there remained concerns regarding the mother's ability to meet F's needs were the situation to change.

5 G was born in November 2004. On 31st August, 2006, the father left the matrimonial home and the parties have lived apart since then. The relationship between the father and the mother has become extremely hostile with allegation and counter allegation about their conduct towards the children being made on a regular basis. The Children's Service has been actively involved for a considerable period and there had been the occasional report suggesting that the mother was using excessive force towards the children but there was no satisfactory evidence of this. We make no finding on this aspect and ignore it for the purposes of our decision.

6 On 19th November, 2007, F was seen to have various areas of bruising to his face. We shall refer to this incident in more detail later in this judgment. As a result the children's names were placed on the Child Protection Register under the category of ‘At Risk of Physical Injury’. It was agreed that the grandmother would move in to the matrimonial home to live with the mother and children until the police investigation, which had commenced as a result of the bruises, was complete. It was also agreed that the father's contact would revert to being at Milli's.

7 In the following period there were repeated allegations by the mother and the grandmother that the father had abused one or more of the children although it was felt that these were highly unlikely to be true as, apart from one unsupervised contact, the only other contact between the father and the children had been at Milli's. There was considerable concern that the allegations were causing the children emotional damage. On 21st January, 2008, a child protection conference was held and it was decided that the children's names should also be put under the category of ‘emotional abuse’ on the Child Protection Register.

8 In the next few months, the Children's Service continued to have concerns about the emotional well-being of the children and we shall refer to some of the evidence on this aspect later in this judgment.

9 On 11th May, 2008, the police were contacted following a bruise being noted on F's left cheek. F alleged that his mother had struck him. Following this incident the children were placed temporarily with the grandmother. Arrangements were made that there would be two supervised contacts per week between the children and the mother and that the father's contact would continue to be at Milli's once a week.

10 On 1st August, 2008, following an application by the Minister, this Court made an interim care order in respect of F and G. The plan at that stage was for the children to remain with the grandmother under the interim care order. However, on 8th August the grandmother contacted the police and the Children's Service saying she had noticed a large bruise on the inside of G's bottom towards her anus. G had apparently said that her father had done that by putting his finger up her bottom. Medical examination suggested that the bruise was a non-accidental injury, possibly from sustained pressure, maybe an adult's thumb. However the age of the injury suggested that it could not have been the father as the father had not had contact during the relevant period. A decision was then made by the Children's Service to admit the children to emergency foster care because of concerns that the grandmother had caused the injury with a view to blaming the father. After a short emergency placement with foster carers followed by a short period in a residential unit, the children were placed with foster carers on 29th August, 2008. They have remained there since then.

11 There has been regular supervised contact between the mother and the children and there has also been contact with the father although this has been more irregular and has broken down more recently.

12 The Minister now applies for a full care order on the basis that the children have suffered and are at risk of suffering physical harm and emotional harm which amounts to significant harm. At the time of making the interim care order, the Court ordered that a member of the Probation Department should be appointed as Guardian ad Litem of the children and Mrs Janette Urquhart has been appointed to that rôle.

The Law

13 Before turning to consider the evidence, we should remind ourselves of the applicable law. For the State to intervene in family life by removing a child from the care of his or her parent(s) is a grave step. It cannot be done just because it is considered that the child's welfare would be better served by being looked after by someone else. There is a threshold which must be achieved before such intervention may take place. This threshold is contained in Article 24 of the Children (Jersey) Law 2002, the relevant provisions of which provide:-

“(2) The court may only make a care order or supervision order if it is satisfied:-

that the child concerned is suffering or is likely to suffer, significant harm; and

that the harm, or likelihood of 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 what it would be reasonable to expect a parent to give the child, or

the child's being beyond parental control.

……

(6) In this Article

“harm” means ill-treatment or the impairment of health or development;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill treatment which are not physical.

(7) Where the question of whether harm suffered by a child is significant turns on the child's health or development, his or her health or development shall be compared with that which could be expected of a similar child.”

14 As can be seen “ill treatment” includes forms of ill treatment which are not physical. This includes emotional abuse. There is no definition of this term in the Law but some assistance as to what is included in the expression is to be found in the document “Working Together to Safeguard Children” which was prepared by HM Government in the United Kingdom as a guide to inter-agency working to safeguard and promote the welfare of children. The document has the following to say about emotional abuse:-

“ Emotional Abuse

1.31 Emotional abuse is the persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child's emotional development. It may involve conveying to children that they are worthless or unloved, inadequate or valued only in so far as they meet the needs of another person. It may feature age or developmentally inappropriate expectations being imposed on children. These may include interactions that are beyond the child's developmental capability, as well as over protection and limitation of exploration and learning, or preventing the child participating in normal social interaction. It may involve seeing or hearing the ill treatment of another. It may involve serious bullying, causing children frequently to feel frightened or in danger, or the exploitation or corruption of children....