BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of C (Care order) [2013] JRC 044 (26 February 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_044.html Cite as: [2013] JRC 44, [2013] JRC 044 |
||
[New search] [Help]
Care order - approval by the Court of care plan and making of final care order.
|
Before : |
J. A. Clyde-Smith, Commissioner, and Jurats Le Cornu and Milner. |
|
Between |
The Minister for Health and Social Services |
Applicant |
|
And |
(1) A (the mother) |
First Respondent |
|
And |
(2) C (the child) (acting through her guardian Ms Eleanor Green) |
Second Respondent |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF C (CARE ORDER)
Advocate D. C. Robinson for the Applicant.
Advocate M. J. Haines for the First Respondent.
Advocate R. E. Colley for the Second Respondent.
judgment
the commissioner:
1. On 14th December, 2012, the Court granted the applicant ("the Minister") a final care order in respect of the second respondent ("the child") who is aged 6.
2. The first respondent ("the mother") agreed with the Minister and the guardian that a care order should be made but did not accept that part of the care plan which sought permanence by way of an adoptive placement and which, following the evidence of the experts, provided for direct contact between the mother and the child to terminate over three sessions pending an application for a freeing for adoption order.
3. On 25th June, 2012, the Court had found, and the parties had agreed, that the threshold criteria as set out in Article 24(2) of the Children (Jersey) Law 2002 ("the Children Law") had been met and adjourned the welfare stage of the process to the three days commencing 30th August, 2012. The mother applied successfully to further adjourn the welfare stage to the hearing on the three days commencing 12th December, 2012.
4. No written judgment was issued on 25th June, 2012, but suffice it to say that as a consequence of the mother's heroin dependence over the previous eight years, the child had suffered emotional abuse and neglect. She had been the subject of intervention by the Children's Service since birth, with a supervision order being granted in 2007 and periods in respite foster care when the mother was unable to care for her.
5. On 14th December, 2011, when an interim care order was first granted to the Minister, the child was placed with foster carers at the request of the mother, who was unable to cope with her difficult and sometimes violent behaviour. Her placement then changed some three times before her current therapeutic placement in the UK which commenced on 21st July, 2012, and where she is progressing well.
6. The Court ordered a psychological report on the mother and the child by Dr Hessel Willemsen and an Attachment Needs Assessment by Mr Paul Eggett, both of whom gave evidence.
7. Dr Willemsen advised in his report of 11th May, 2012, that the child had been exposed to a great deal of aggression, volatility, chaos, neglect and emotional deprivation and that her emotional development had been damaged to the point that she has an avoidant attachment organisation. She was in need of immediate therapeutic care and a stable upbringing.
8. The mother, he advised, presented with a complex set of mental and behavioural problems. She was known to have been addicted to Class A drugs for nearly all her adulthood. She also used Benzodiazephines and cannabis. She frequently attempted to detox but relapsed frequently too. She was considered to be a poly-psychoactive substance user. There were frequent entries in the GP notes of depression and anxiety and one entry of obsessive-compulsive disorder. There was a multitude of overdoses and self-harm reported in the medical notes. She reportedly suffered from suicidal ideation. He had diagnosed her with a prominent trait of emotionally unstable personality disorder type borderline (ICD - 10).
9. Her borderline personality disorder included many of the symptoms described in his interview with her and in the medical notes:-
".....unstable interpersonal relationships, impulsivity observed through self-harm, anorexia, threats or self-injuring behaviour, affective instability ((excessive) anxiety and depression are frequently reported), anger management problems in her relationship with her mother, professionals and [the child]."
10. He said the mother would need a therapeutic programme that would cover a period of at least two years:-
"She will have to reduce her methadone prescriptions and benzodiazephine prescriptions. She will have to engage adequately with her Dialectical Behaviour Therapy. She will have to engage and not cancel appointments. She will have to continue her engagement with the alcohol and drug services as well as her engagement with children's services.....
I think that there is a risk that there might be further relapses, perhaps not just or necessarily regarding the use of drugs but more importantly regarding her ability to look after [the child]. Looking after [the child] will invariably cause distress and affect [the mother's] state of mind."
11. In his view, the mother posed a risk to the emotional development of the child. The risk he said was twofold. On the one hand the mother used drugs which led to chaotic first years of the child's life and which resulted in neglect. The second risk is that of emotional abuse where the mother is unable to address her own distress and struggles with the child. The evidence he said was clearly reported and observable in the child's behaviour. This level of risk was much more difficult to manage:-
"It is in my view important that [the mother] will begin to understand how she has contributed to the damage observable in [the child]. Frequently she has sought the reasons in the child and presented her with a great deal of aggression. Not unsurprisingly [the child] took a parenting role - she began caring for her distressed mother while at other times attacking her for her absence and not attending to her needs...
As [the child] grows older I consider that the child will become more withdrawn into herself should the mother not be able to make herself emotionally available to [the child]. At the moment I consider that risk to be high."
12. The complicated, attacking and angry behaviour of the child had developed, he said, as a result of the parenting she received from the mother, which had caused her a great deal of emotional damage and from which she had been traumatized. The child could easily develop into a "narcissistically disturbed child that remains cut-off from the people around her".
13. Dr Willemsen described the mother's own difficult childhood:-
"The relationship with her mother seemed complex ... but what is evident is that there is trans-generational transmission of maternal trauma. [The mother] said that she had been angry with her mother and hit and pushed her, similar to the behaviour which [the child] exhibits to her mother. Both [the child] and [the mother] do not feel contained by their mother. [The mother] does not seem able to understand why [the child] is so full of hatred .... I would say that [the child] is angry because [the mother] struggled to attend to her daughter's emotional needs."
14. Dr Willemsen said this in relation to the child's method of coping with her distress:-
"In view of her avoidant behaviour it becomes important to look at [the child's] manner of dealing with her feelings of distress caused by the literal and emotionally absent mother. She becomes controlling so as not to become vulnerable to being let down and disappointed. She also scratches herself until she bleeds, i.e. there are first signs of self-harming as a way of dealing with distress. An important coping mechanism though is [the child's] ability to cut herself off from her emotions, to not feel her distress, to dissociate painful feelings. I think that [the mother] has similar mechanisms of dealing with distress which stops her from attuning to [the child's] distress."
15. Dr Willemsen was concerned that the mother could not deal with the child's emotional needs in the child's timescales. The child's developmental and emotional needs were imminent and could not wait for one or two years. She needed a sustained period of specialised input to deal with her emotional needs. The disadvantage of living away from her mother was that she would be deprived of that relationship but the advantage of an adoption or foster placement is that she could build a secure attachment. He considered that the child may first need to be in an interim placement to consider whether an adoption could prove successful. In evidence (when the child had been in her current therapeutic placement for some five months) he was clear that adoption was her best option.
16. In his report of 2nd July 2012 Mr Eggett, an attachment specialist, assessed both the mother and the child as possessing insecure attachment organisations: avoidant attachment organisation in respect of the child and angry dismissive attachment organisation in respect of the mother. Given the severity of the child's attachment difficulties which he detailed, he had grave concerns should she be returned to the mother's care. In relation to Dr Willemsen's projected treatment schedule for the mother extending for at least two years, he said this:-
"In my opinion, [the child] lacks the emotional strength to function in her mother's care for such a lengthy period. I would be very cautious regarding such an arrangement were there a high likelihood of treatment efficacy. Sadly, on the basis of past experience, there is a probability that [the mother] will either relapse or fail to effectively engage in therapy, or both. In my opinion, such a failure would be calamitous for [the child] were she living in her mother's care."
17. He supported the care plan that the child be afforded permanence by way of an adoptive placement should she be unable to return to the mother:-
"Her deleterious early life experiences are documented in the papers before the Court and I would strongly recommend, in the light of these egregious occurrences, that she requires a stable home environment which provides opportunities to enhance her understandings of what is appropriate and inappropriate by the application of consistent and firm boundaries, clear routines and unconditional love."
18. In his opinion, considerable effort should be focused on identifying suitable adopters at the earliest opportunity in order that the child can be shown that possibility of permanence is realistic and achievable.
19. Mr Haines, on behalf of the mother, was not able to challenge the diagnoses of the experts and in the light of the moving evidence of Mr Matthew Davies, the social worker allocated to the child, and the guardian, as to how the child had progressed in her current therapeutic placement (notwithstanding the unfortunate number of changes prior to that placement commencing) it was not surprising that the mother agreed that it was necessary for that placement to continue. The mother agreed that for that purpose a care order was necessary. She did not agree that adoption was in the child's interests. Once the therapeutic work had been completed with the child in her current placement and the mother's own therapeutic work had reached a satisfactory stage the child could return to her care in Jersey. This, she said, offered the child certainty going forward.
20. Even if the Court agreed that adoption should be the primary aim, Mr Haines submitted that it was important for there to be a "Plan B" to allow the child in due course to be returned to the care of the mother. For that purpose, it was necessary for direct contact between the mother and the child to be continued, contrary to the advice of the experts. Mr Haines put forward a number of reasons for direct contact continuing including the following:-
(i) The mother had parental responsibility.
(ii) The current placement was temporary and there were uncertainties about finding a suitable adoptive placement.
(iii) The child had earlier stated that she wished to be returned to the care of her mother.
(iv) It would enable re-integration to take place.
(v) It was normal for contact to be maintained pending a freeing for adoption order and the proposal to end such contact now was radical.
(vi) Harm had been done to the child over the number of placements that were made between the interim care order and her moving to her current therapeutic placement, in which time there had been consistent contact between the mother and child. Stopping contact now would add to that harm.
(vii) There was a recognition from experts that there had been some good parenting of the child.
(viii) The progress the mother was making.
(ix) Changing the child's care routine would create more uncertainty.
21. Ordinarily, one might expect direct contact to continue pending an application for a freeing for adoption order, but in this case, the evidence of Mr Davies was that direct contact, (which takes place every six weeks in the UK, together with one telephone call made by the foster carers to the mother every week when the child is invited to speak to her), was painful and traumatic for the child, as she struggles with the many emotions she feels in anticipation of, during and following contact. Direct contact was "a recurrent anchor for [the child] to that of her parented experiences in [the mother's] care which prevented the child from emotionally moving forward" keeping the question "When am I going back to live with Mummy?" alive. The issue was therefore referred to Dr Willemsen and Mr Eggett for their guidance.
22. Dr Willemsen and Mr Eggett met on 5th December, 2012, and agreed that direct contact should be brought to a close, although they differed as to whether this should be over two or three sessions, and this so that the child's life with the mother could be rounded off in a planned and proper way. In Dr Willemsen's view, the contact sessions were quite disturbing for the child and it was in her interest to say goodbye and work towards adoption. Direct contact created uncertainty for her, which was unhelpful. He was also concerned about the quality of the contact and the struggles of the mother to be with and to deal with the child. Therefore it was right to say to the child that we are going forward towards adoption so that she can be freed from that contact and start her life story work. In Mr Eggett's view, there was no evidence that direct contact was a benefit to the child. Mr Davies struggled to make it tolerable for the child, but it was difficult to avoid the conclusion that it was not helpful.
23. Both Mr Davies and the guardian accepted that advice and agreed that ongoing direct contact was detrimental to the child. Both were clear that what the child needed was certainty. She knew that the foster placement was temporary and despite her loyalty to the mother the visits re-awakened in her the traumas of the past. She needed to know that she was not going back but was moving forward to a "for ever" adoptive family.
24. Mr Haines pointed to the progress that the mother had made with her drug addiction. In his first report of 12th April, 2012, (when the mother was seeking an increase in the level of contact) Mr Michael Gafoor, director of the Alcohol and Drugs Service, said that the mother had ceased using street drugs and no longer socialised with drug-using acquaintances. Overall, he supported her application for increased contact, provided she continued to avail herself of treatment and ongoing drug monitoring. In his second report of 8th November, 2012, he said that notwithstanding episodes of binge drinking which involved the intervention of the police, the mother had made progress. She had tested negative for street drugs, kept most of her appointments and extricated herself from the local drugs scene. She appeared to have greater insight into her difficulties, and in his view, her current use of alcohol and drugs should not be a barrier to her being able to effectively care for the child.
25. These reports were put by Mr Haines to Dr Willemsen in cross examination as evidence that there was no bar to the mother caring for the child. In Dr Willemsen's view, the reports were very short and did not address the mother's psychological issues or consider the child's interests. It was important that the mother was drugs free, but he noted the reference in the second report to the mother taking an overdose following a visit to the child and to the binge drinking sessions.
26. We heard evidence from Mrs Lorna Easdon of the Alcohol and Drugs Service, who was currently working with the mother on her addiction to opiates, diazepam (valium) and cannabis. In relation to opiates, she was currently on a dose of 45ml of methadone and had remained static since the programme started in August 2010. Its reduction would be driven by clinical considerations with the intention of taking one step at a time. Dr Bailey had placed her on a reduced dosage of diazepam, which started at 30mg and is currently 6mg and reducing. She said that on presentation the mother was compliant, attending appointments, was calm as well as being rational and reflective. There appeared to be a great deal of insight on her part as to her previous use of drugs and her relationship with the child.
27. Mr Haines also produced a letter from the Psychological Assessment and Therapy Service of 15th November, 2012, which recorded that the mother had attended an appointment and it had been agreed that she would attend the emotional coping skills course which will start in 2013 and she would be referred back to the Dialectical Behaviour Therapy Team - she had previously been unable to complete that course due to cannabis use. She informed them that her goal was to manage her emotions better. Quoting from the second paragraph of the letter:-
".... Your score of 44 on the BDI-1 indicates a severe depression with a full range of symptoms. Grieving for the loss of [the child] is undoubtedly a part of this. You have a past history of an eating disorder, but this is not an issue currently. You did take an overdose after seeing [the child] in July this year but were found quickly and taken to hospital. You report that you have trouble managing your feelings about this situation and although you have given up your negative coping mechanisms you have nothing really to replace them with."
28. The mother, Mr Haines submitted, had been committed and consistent in her approach to contact with the child. There had been an MIM assessment by NSPCC in February 2012, which he said was encouraging and if contact had not been beneficial, the Minister would have intervened to curtail it long ago. We accept that there were some positives in the NSPCC report, but we noted this concern:-
"Mum was unable to take control and allowed [the child] to do things her own way. The importance of being able to be in control as a parent means that the child feels secure and is given structure in their life. When this doesn't happen the child takes control and [the child] demonstrated this. Mum appeared happy for this."
They recommended that the child needed to learn that she does not have to be in control if the mother is going to parent effectively; a somewhat curious comment in relation to a girl then aged 5.
29. Mr Haines referred to statistics taken from "Adoption Facts and Figures" which showed that in the UK, 71% of children between the ages of 1 and 4 achieved adoption, reducing to 24% for children between 5 and 9. He referred us to the risk assessment that had been prepared in July 2012, for the purpose of finding the UK therapeutic placement for the child and questioned how many prospective adopters would be keen to take on a child with the challenging behavioural difficulties she was displaying then. In his view, the prospects of adoption were low. If the desirable qualities of the prospective adopters recommended by Mr Eggett in his report were to be required, then he said there was no realistic prospect of adoption.
30. Mr Davies disagreed with that pessimistic assessment. In his view, the child had moved on very significantly from July 2012 and he was confident and optimistic that she would be adopted. Mr Eggett agreed that at age 6 the pool would be narrowed and there was no guarantee that adoption would be achieved, but he was firm in the view that adoption was the best option for her. Dr Willemsen said that he would have been more worried about the prospect for adoption last July 2012, when her behaviour was an issue, but she had made substantial progress and again, although there was no guarantee, he supported the plan for adoption.
31. The guardian too was optimistic. The child had managed the move to the current therapeutic placement well, which was a good sign, and she had made great progress there. Despite the problems, she described her now as funny, bright and endearing. In her view, the Adoption and Fostering Team in Jersey, where there were (then) no children awaiting adoption, was very imaginative and had a good record for finding good matches. The guardian could not emphasise to us enough how the child could not wait for the mother. The state of limbo that she was in was intolerable as she needed certainty now.
32. It was the case that the child had expressed the wish to return to the care of the mother. Dr Willemsen explained that avoidance was only one part of her psychological makeup. There was an inevitable ambivalence in that whilst part of her would wish to reject her mother, the other part of her was loyal and wished to go back to her care. She was highly attuned to the mother and knew that this is what her mother would want her to say. She would find it difficult to express her feelings on this matter.
33. Mr Eggett, whilst acknowledging that the wishes and feelings of children should always be listened to and taken into account, said that in view of her age it was unrealistic to expect the child to have the cognitive capacity to fully anticipate the consequences of such a momentous change to her life as that which adoption would likely bring. In his interview with her, she was ambiguous when he encouraged her to share her wishes as to the future, but conceptualisation of possibilities outside her direct experience was problematic.
34. The foster carers had noted that the child had at times said "I want to stay here" and quickly added "and with Mummy". They felt that she is conflicted and finds it hard to express what she feels without guilt, which is understandable. In the guardian's view, the child's world has changed and she has little or no certainty about her future and it would be strange if she did not express confusion and ambivalence.
35. The principles to be applied were set out in the judgment of the Court of Appeal in the case of In the matter of F and G (No 2) [2010] JCA 051 at paragraph 8:-
36. Under Article 2(1)(a) of the Children Law, when the Court determines that in any question in respect of the upbringing of a child, the child's welfare shall be the Court's paramount consideration and under Article 2(2), in any such proceedings the Court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
37. The position in relation to delay was considered by Lord Nicholls of Birkenhead in the case of Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10, 1 FLR 815, where at paragraph 95 he said:-
38. In the context of the welfare checklist, we were concerned here with a child who had been emotionally damaged and traumatized by the care given to her by her mother, which had given rise to serious behavioural difficulties. She was diagnosed as having an avoidant attachment organisation and was in need of "immediate therapeutic care and a stable upbringing". She was now receiving that care which the mother accepted should continue.
39. The mother had complex mental and behavioural issues and a programme to meet her therapeutic needs would take at least two years assuming commitment on her part; her past and recent history did not inspire confidence in this respect. The mother accepted that the child could not be returned to her care now but once the child had completed her therapeutic care and the mother was sufficiently advanced in her programme of therapeutic work then she said the child could be returned to her care.
40. Whilst the mother understandably held out the hope that the child could one day be returned to her, a care plan based upon that hope did not offer the child the certainty she needed and deserved. Indeed it offered the opposite of certainty, leaving her in a state of limbo between a therapeutic placement she knew was temporary, further temporary foster placements and the possibility of returning to the care of the mother at some indeterminate time in the future, depending on the progress made by the mother in addressing her own complex issues, with all the trauma that such a prospect re-awakened in her. The mother's therapeutic programme would, according to Dr Willemsen, take "at least" two years.
41. The child would in effect be left waiting for the mother to change, giving rise to a delay in determining her future, contrary to the principle set out in Article 2(2) of the Children Law. She needed certainty now and that was best provided by the plan to seek permanence through an adoptive placement. As in all these cases there was no guarantee that an adoptive placement would be found, but of the options open to her the advice before us, which we accepted, was that this was the best. We therefore approved the care plan, which in our view was choate; there were no uncertainties of such a character that could be resolved before the care order was made by a limited period of planned and purposeful delay.
42. We took into account the natural ambivalence the child would have towards her mother and her understandable feelings of loyalty, but she was only 6 and, as Mr Eggett said, it was unrealistic to expect her to have the cognitive capacity to conceptualise possibilities outside her direct experience. To return to her mother now would be calamitous and waiting for the mother to change was not possible within the child's timescales.
43. The Court did not have before it an application for the child to be freed for adoption, but that was the Minister's plan, which we approved. As we said when making the care order, the search for an adoptive placement should start immediately and with energy and robust adoptive planning put in place. It is clear that the child has made great progress and we shared the optimism of Mr Davies and the guardian that caring adoptive parents could be found for her.
44. We rejected Mr Haines' submission that direct contact should continue pending a freeing for adoption application so as to provide a "Plan B" i.e. rehabilitation with the mother. In the light of the above, rehabilitation to the mother could not be an appropriate plan for this child, bearing in mind her timescales. It was clear from the evidence before us that whatever the quality of direct contact in the past, direct contact now was detrimental to the child's welfare, which was our paramount consideration. Both experts advised and Mr Davies and the guardian recommended that contact should end and we accepted their advice and recommendation.
45. In approving the care plan and the proposals for contact, we took into account the right of the mother under Article 8 of the European Convention of Human Rights to respect for her private and family life but the child's rights were also at stake and her rights had to be the paramount consideration (see Yousef-v-The Netherlands [2003] 1 FLR 210).
46. For all these reasons, we approved the care plan, made a final care order in favour of the Minister and confirmed that the Minister's proposals in relation to the termination of direct contact were reasonable.
47. There was some difference between the experts over whether direct contact should be terminated over three or two sessions, with Dr Willemsen favouring three and Mr Eggett two, for reasons which they expanded upon. The Minister had decided to accept the advice of Dr Willemsen in that respect and the Court had no issue with that.
48. Dr Willemsen strongly recommended letterbox contact thereafter. Mr Eggett was unable to see any potential benefit for the child in letterbox contact. The Minister also proposed to follow Dr Willemsen's advice in this respect, which again we had no issue with but it was a matter that may be the subject of further discussion with the experts.
