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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of D (Care Order) [2013] JRC 104 (29 May 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_104.html Cite as: [2013] JRC 104 |
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Care Order - application for an interim care order.
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Nicolle. |
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Between |
Minister for Health and Social Services |
Representor |
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And |
A (the Mother) |
First Respondent |
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And |
B (the Father) |
Second Respondent |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF D (CARE ORDER)
Advocate S. M. Roberts for the Minister.
Advocate A. T. H. English for the First Respondent.
Advocate P. G. Nicholls for the Second Respondent.
Mrs Jane Ferguson as Guardian ad Litem.
judgment
the deputy bailiff:
1. This is an application by the Minister for an interim care order in respect of D (the child) who will be 4 in August this year, and is the daughter of the mother and the father. The parents are not married, and the father does not currently have parental responsibility, but he has issued private law proceedings for parental responsibility and contact and the Court joined him early on to the present proceedings. The private law proceedings have been adjourned by consent by Act of Court dated 27th March, 2013.
2. The application was brought by the Minister on 30th April this year with a request for an urgent hearing. On 2nd May, the Court received an application by the mother for an adjournment which was granted, undertakings being given to the Court by the mother as will be set out below. The matter was relisted for 8th May, but on that date the Minister applied for a further adjournment until 20th May. This was granted, by consent, the undertakings of the mother being renewed. The same day, the Court gave sundry other directions.
3. The application for the interim care order was thus heard before us on 20th May when Ms Rachel Stroyan, a social worker employed in the Children's Service, gave evidence on oath. No other party sought to adduce evidence before us.
4. The application was brought by the Minister pursuant to Article 30 of the Children (Jersey) Law 2002 ("the Law") which is in these terms:-
5. The circumstances mentioned in Article 24(2) are these:-
6. No question of the child being beyond parental control arises in this case. The Minister's contention is that there are reasonable grounds for thinking that the child is suffering or is likely to suffer significant harm and that that 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 is not made, falling short of what it would be reasonable to expect a parent to give.
7. These are civil proceedings and the Minister must prove her case on the balance of probabilities. It is noteworthy that for the purposes of an interim care order, the Minister has only to establish that there are "reasonable grounds" for believing that the circumstances of Article 24(2) exist in order for the threshold to be passed such that the jurisdiction in the Court to make an interim care or supervision order arises.
8. The test was considered in In the matter of P [2009] JRC 206A where the Royal Court said this:-
9. Advocate English emphasised to us that the cases which were put before the Royal Court on that occasion were largely pre-1998 cases, which was significant because the direct impact of the European Convention on Human Rights had not been considered. In particular he noted that the case of Yousef-v-Netherlands [2002] 3 FCR 577 had not been cited to the Court. His main contention was that the interim order is not an impartial order and the threshold is higher than is indicated in Re P.
10. Briefly stated, the facts in the Yousef case were that the father had met a Netherlands national with whom he formed a relationship although they were not married nor were they living together at the time a child was born to them. Subsequently the father did move in with the mother and the child and lived with them for approximately a year before he moved to the Middle East where he stayed for two and a half years. During that period he exercised letter contact only. It appears that he did not have any legal guardianship rights and when the mother in that case contracted a terminal illness, she made a will in which she expressed the wish that after her death her brother should have guardianship of her daughter. Dutch proceedings concerned whether there should be an order which permitted the father to "recognise" their child. Ultimately this request of the father was denied, after balancing the interests of the applicant with those of the child. Before the European Court of Human Rights, the father alleged a violation by the Netherlands of his right to respect for private and family life under Article 8 of the European Convention.
11. We set out those facts because they are different from those which apply in this case and one must recognise that dicta of the European Court of course refer to the factual circumstances which arose in the particular case before that Court. Nonetheless the views of the Court are of importance in our own, slightly different, processes.
12. In fact the European Court found that there had been no violation of the Article 8 Rights because there had been a proper balancing of the interests of the father in having his paternity recognised as against the rights of the child under Article 8. The Court found that it was primarily for the national authorities to interpret and apply the national law, and that the interference with the biological father's rights was in accordance with that law. It noted that the child's rights were the paramount consideration which would prevail in any necessary balancing of interests. It is clear from the summary of the relevant domestic law that the European Court of Human Rights noted that "recognition" of a child under the national law was a significant step because the man who had recognised the child could apply to a district court for guardianship of the child. Under the amended legislation, a man seeking to recognise his child should either obtain the written permission of the mother or the position of the regional court.
13. It seems to us to be clear from a review of the Yousef decision that the European Court of Human Rights acknowledged that the decisions of the domestic courts had the impact that there was no legal family tie between the father and the child, notwithstanding the undisputed fact that he was her natural father, and it was noted that the domestic courts had accepted that the father had the intention of disputing his daughter's family situation because, through recognition of his paternity, he might have his daughter live with him instead of with her legal family.
14. It is against that background that the Court said this:-
15. Much of this language is reflected in the relevant provisions under the Law. Indeed, Article 2(1) of the Law requires the Court to have as its paramount consideration the welfare of the child and the requirement that the Court address the welfare checklist before making an interim care order or interim supervision order also emphasises this point as well.
16. Although Hampshire County Council-v-S (supra) was decided prior to the passage of the Human Rights Act 1998, and although the more recent cases do not appear to have been cited to the Royal Court in In the matter of P, we do not consider the Court's review of the principles to be incorrect, although we do wish to add a few words of our own in this connection.
17. It is clear that once the threshold has been passed (are there reasonable grounds to believe the Article 24(2) circumstances exist with respect to the child?) the Court still has an exercise to be completed before resolving on the order which it should make. It must consider whether it is better to make an order than to make no order at all. It must consider the welfare checklist. If it decides that an order needs to be made, it must reach that decision proportionately having regard to all Convention rights, not least because the Court itself is a Convention compliant body pursuant to the Human Rights (Jersey) Law 2000. It is well established that the Court makes the least intrusive order that can be justified, having regard to such findings as it has made.
18. We agree with the statements in the cases that on an application for an interim care order, evidence should be restricted to those issues which are essential for such an order, and the Court should be careful first of all not to make any findings of fact which might prejudice the final hearing, where the threshold test is not the same and secondly the Court should ensure that the interim care application should not become a dress rehearsal for the final hearing. Nonetheless, that does not, or should not, inhibit evidence being given which is relevant to the matters which the Court has to decide on an interim care application. In many cases, the evidence of the social worker is sufficient for the threshold to be passed on an interim care application, but neither the parties nor the Court should be beguiled into thinking that that will always be so. The social worker's evidence is subject to cross examination, as it was before us, and if it were ever to be the case that cross examination had rocked the evidence to its core, there would no longer be reasonable grounds for the Court to conclude that there was a risk of significant harm such that the remaining provisions of Article 24(2) had been met. Similarly, if it should turn out that a material fact could be established by evidence which negated or undermined the evidence produced by the Minister, that may well go to whether or not reasonable grounds existed which would justify an interim care order. Furthermore, other evidence may be valuable to the Court, depending on the circumstances in each case, when considering the "no order" principle and the welfare check list even at the interim stage. It is important in our view that Hampshire County Council-v-S and Re P are read in this context.
19. In the present case, neither the mother nor the father called evidence before us. The cross examination by counsel for the mother was entirely within the limits of what was relevant for the purposes of the decision which the Court had to make as to whether the threshold for an interim care order had been passed. If it were to be the case that this cross examination arose from the mother's insistence that the social worker's evidence be tested so as to identify whether the threshold had been passed or whether it was necessary or proportionate to make an interim care order or indeed any order, that would seem to us to be completely unobjectionable. We would not regard that as casting the mother in any negative light at all, and we would certainly not accept the contention that, by testing whether the social worker's evidence was sufficient to justify a conclusion that threshold had been passed, the mother had somehow or other showed herself to be antithetical or hostile to or unco-operative with the Children's Service and not to have the best interests of her child at heart.
20. We also wish to add this. We think Advocate English in this case was correct to identify that a distinction between this and many other cases is that the mother currently has care of the child. The care plan of the Minister, if an interim care order were to be granted, involves the removal of the child from the mother into the hands of foster parents, with daily contact between the mother and the child between Monday and Friday for perhaps an hour and a half each day on a supervised basis. That is a change in the status quo and wherever there is a proposal to remove a child from his or her parent, it is inevitable that the Court has to balance the harm to which the child is potentially exposed by leaving the child with the parent against the harm potentially to be caused by removing him or her from the parent. These are sometimes difficult if not indeed marginal decisions which no court can expect to get right all the time, because none of us has a crystal ball which enables us to foretell the future. All that one can do is make a realistic assessment of risk, having regard to the evidence which has been heard.
21. Advocate English submitted that the threshold test was not passed on a number of grounds. One of these was that the date on which the application was made was the relevant date for the purposes of assessing whether the threshold test had been passed, and, in this case the application being made on 30th April, the position at that date was that the former boyfriend was in custody, and the child was therefore not likely to suffer any significant harm on account of his treatment of the mother. For the purposes of this submission, reliance was placed on Re M (A Minor)(Care Order:-Threshold Conditions) [1994] 2 FCR 871, where, at page 879 Lord McKay, with whom their Lordships all agreed said this:-
22. The case of Re M has been considered in the Royal Court on a number of occasions. The case concerned the proper construction of Section 31 of the Children Act 1989 and its application to the facts of that particular case which were that on 12th October, 1991, the father murdered the mother at her home in the presence of all four children. As a result, emergency proceedings were taken to protect the children and a residence order in respect of three of them was granted to a Mrs W with whom they had lived ever since. One child, M, was placed with a short-term foster mother, and subsequently went to stay with Mrs W who subsequently made an application for a residence order, whereas the local authority considered that it was right that a care order be made with a view to placement outside the family. Although the judge made the care order at first instance, the Court of Appeal held that the terms of Section 31 of the 1989 Act were such that the court could only make a care order if it was satisfied that the child "is suffering" or "is likely to suffer" significant harm, the use of the present tense making it clear that the harm must be being suffered at the relevant time which was the date on which the court was deciding whether or not to make a care order. The decision of the House of Lords was that the opening words of Section 31 linked the making of an order by the court very closely with the date of the application to the court and that Section 31(2), which stipulated the conditions which have to be satisfied before a care order or a supervision order might be made, linked back to the date of the application. At page 871, a fuller quote from Lord McKay's judgment is as follows:-
23. The terms of Section 31(1) and (2) are so closely similar to the terms of Article 24(1) and (2) that the decision of the House of Lords in Re M is of great assistance in construing the relevant provisions of our statute. Re M has been applied on a number of occasions in this court. In addition, it seems to us to be clear that Articles 24(1) and (2) are setting out the jurisdiction of the court to make a care order or a supervision order and it is obvious that they need to be construed by having regard to the purposes for which this jurisdiction has been created. Its purpose is to protect children. Re M concerned a case where the harm to the child existed at the time of the original application but that harm may not have existed at final disposal. The jurisdiction to make a care order arose because the proceedings were a continuous set of proceedings. Similarly, here we have a continuing set of proceedings. It would be absurd if the court had no jurisdiction to make a care order or a supervision order in circumstances in which a week before the date of the application by the Minister the child was suffering serious harm but was no longer suffering that harm at the date of the application because there had been some supervening event which was of a temporary nature such that the harm was likely to be suffered again at some future date if the court were to make no order. Suppose, for example, the father violently assaulted the child on day one and then left on a business trip for Australia. While he was away, the Minister brought the proceedings for a care order. On his return, the father contended that at the date the Minister brought her application, he was in Australia and the child was not suffering significant harm, nor indeed likely to suffer significant harm because he was so far away. It could not seriously be contended in those circumstances that the court could not have regard to what might happen when he returned. In order to assess whether the child "is likely to suffer" significant harm, the court reviews what is happening or what has happened in order to assess the likelihood of it happening again. It is absolutely clear both on precedents previously in this court and as a matter of logic and principle that the court is entitled to look at the position before the date on which the application was made in order to assess at the relevant date, namely the initiation of proceedings, whether the child is likely to suffer significant harm in the future.
24. The evidence before us was that the child generally lived with her mother, although others have been concerned with her care from time to time. At the date upon which this application was made, the child was residing with her first cousin once removed on the paternal side of her family. She had resided with that cousin since 19th April, following an incident of domestic violence which occurred on 18th April, details of which appear below. It became apparent by 2nd May that the child's cousin was no longer able to keep the child with her, and the adjournment of the Minister's application on that day arose because the mother had found accommodation at the Women's Refuge, which was suitable for both her and her child. In granting the mother's application on that day for an adjournment, the Court received undertakings from the mother that she would observe a curfew between 7pm and 7am, that she would inform the Children's Service immediately if she chose to reside anywhere other than the Refuge, that she would not contact persons deemed inappropriate by the Children's Service, including one of her friends in particular, that she would abstain from alcohol completely and that she would accept any visit from the Children's Service to the Women's Refuge in order that the Children's Service might satisfy itself that all was well with the first respondent and the child. It is clear from the evidence we have heard that the child's cousin has from time to time had the care of the child, although never for very extended periods. It is clear also that the father had the care of the child briefly for a period in April 2012 at a time when the Children's Service understood the mother to have taken an overdose.
25. Mrs Stroyan's evidence was that the mother had not had sole care of the child. That was relied upon for the purposes of a contention that there had been an inconsistency in care provided to the child, who desperately needed a predictable secure environment. It may be that there is an issue for trial as to the extent to which the mother has exercised care of the child over the course of her life so far. For the purposes of today's hearing, we have approached the matter on the basis that the mother has mostly had care of her child, and that it would be a change in the status quo for the child to be removed from her care.
26. Nonetheless the main area of concern expressed by the social worker seemed to us to relate to allegations of domestic violence. Here it was not contended that either the mother or the father or anyone else has been guilty of physical violence towards the child to date, but it was contended that there was a serious risk of domestic violence which might involve the child directly at some future date, and there was also concern that the child probably was suffering from the emotional effect of domestic violence already. We should note, however, that as at the present date the evidence of an adverse effect on the child from any domestic violence which has been directly or indirectly experienced appears to be uncertain. She is, we are told, avoidant and reticent around men, and she has apparently commented to her cousin and to nursery workers that another child's computer was not smashed by their daddy, from which one infers that there may be a suggestion that she is conditioned to male violence around her. These are worrying features of the reports. On the other hand, we do not have any child psychological evidence which would assist us, and we are left with the third hand hearsay reports which have been presented by Mrs Stroyan. That is enough for the purposes of reaching a conclusion on the balance of probabilities that the child may have suffered or is likely to suffer significant emotional harm from the domestic violence which she may have witnessed. It is in this respect a relatively low threshold which has to be passed.
27. Whether the child has actually witnessed domestic violence is at this stage a little unclear. It is said to us by Mrs Stroyan - and this was not really contested in cross examination - that there have been some twenty-eight incidents of domestic violence during the child's short lifetime so far. Since October 2009 there have been twenty-eight domestic reports involving the mother in domestic incidents with partners. Since April 2012 there have been eighteen protection notices specifically relating to the child - in other words eighteen reported incidents where the child has been present or involved or where there has been concern for her.
28. The incident which it seems triggered the Minister's application took place on 19th April, 2013, when the mother's former boyfriend (with whom she commenced a relationship after her relationship with the father had ended) turned up in a drunken condition at the premises which she occupied with her daughter at 10:30 at night, and caused the mother significant injuries. We were told that the mother was emotionally traumatised by the assault, evidenced by her uncontrolled screaming and shouting at the time of the arrival of the police. The child apparently slept through this incident but it is clear that the mother sustained injury which would have to be explained to the child the following day.
29. In November 2012 there had been a further incident when the former boyfriend had assaulted the mother. On this occasion, the child was not present in the flat when the assault took place, but she would have returned home later to find significant damage had been caused to the home, and presumably some explanation had to be given to her. Mrs Stroyan gave evidence before us that the incidents of domestic violence were not necessarily incidents for which the mother had no responsibility. She described how she, Mrs Stroyan, personally had witnessed an incident in the park in April 2012 when the mother and the father had a vicious verbal argument, initiated by the mother when the father was returning the child to her. The child was described as "frozen" while her parents were arguing, yet the parents did not seem to appreciate the effect of the argument upon their daughter. All that they could see was the reaction of the other.
30. This was an occasion which would seem to justify the conclusion that the relationship between the mother and the father is seriously dysfunctional. Indeed, the evidence of the social worker was that the mother has shown a tendency to involve herself in relationships with men who treat her with violence, and in the course of those relationships she makes a number of bad judgment calls which potentially have an effect on her daughter. Pointing to the detailed chronology attached to her witness statement, Mrs Stroyan gave evidence of her real fear that if the child were to be returned to her mother there was a serious risk of her being caused significant harm both physically when any further incidents of domestic violence took place and emotionally to the extent that she either sees her mother being assaulted or sees the effects of such assaults after the event.
31. The other area of concern raised with us by Mrs Stroyan was that the mother had regularly showed an inappropriate use of alcohol, leaving her unfit to take proper decisions in the care of her child. The evidence for this was denied by the mother, and appears to rest on hearsay evidence provided to the Children's Service by the child's cousin and by others.
32. Putting all of this together, Mrs Stroyan gave evidence that she was concerned that the child was likely to suffer significant harm if she remained in the care of her mother, and accordingly she added that if an interim care order were made, the care plan involved the removal of the child from her mother to be placed with the foster parents who already had a family with some children of about this child's age.
33. In what was, at times, a quite hostile cross examination, Advocate English extracted from Mrs Stroyan some concessions - that there is in fact no hard evidence that the child has witnessed any violence; that what was said about potential drug use on the part of the mother comes from what her former boyfriend had to say when questioned by the police (although Mrs Stroyan thought that she had smelt cannabis at the mother's flat on one occasion); that it was the police who had provided information to the Children's Service that one of the mother's friends was a high risk domestic violence perpetrator; that there was no independent evidence of the child's normalisation to violence, which was simply the social worker's assessment; and indeed that much of the difficulties painted by Mrs Stroyan were not in fact evidenced by anything other than hearsay.
34. We recognise that frequently in these cases, particularly at the time of an application for an interim care order, the evidence put before the Court is hearsay evidence, and the Minister is frequently reliant on indicators and collateral evidence to support the contention that the Article 30 criteria are met. This does not necessarily mean that the Minister's application does not pass the relevant threshold, which only requires that the Court is satisfied on the balance of probabilities that reasonable grounds exist for concluding the Article 24(2) circumstances exist. In this case, there is no doubt that there have been incidents of domestic violence involving the mother and her former boyfriend. There does not appear to be any dispute that there have been in the past some incidents of domestic violence between the mother and the father. There seems to be no doubt that there has been some significant damage to property in which the mother lives with her daughter.
35. The mother's former boyfriend is currently on remand in La Moye prison awaiting sentence. It is unclear whether he will be in custody for a lengthy period. Clearly, for as long as he is in prison, the risk of domestic violence between him and the mother involving the child is remote, but as and when he were to be released, that risk becomes rather greater.
36. We do not really consider that the child is likely, on the balance of probabilities, to suffer significant physical harm if she continues to live with her mother. Notwithstanding the incidents of domestic violence which have taken place so far, there is no evidence of any domestic violence being perpetrated on the child in her nearly four years of life so far. Advocate Roberts suggests that as the child gets older, she is more likely to become involved in incidents of domestic violence. That may or may not be so, but we do not think that it is so at the moment, and therefore we cannot say that the threshold has passed in relation to any current fears that if the child remains with her mother she will be likely to suffer significant physical harm.
37. However we do think that there are reasonable grounds for thinking that she may have suffered or is likely to suffer significant emotional harm arising out of the violence in her mother's different relationships. For that reason, we think that the threshold is passed.
38. We have gone on to consider whether it is better to make no order in this case than to make any other form of order. We do not think that this is an appropriate case in which to make no order. In our view, given that we are satisfied that there are reasonable grounds for thinking that the child has suffered significant emotional harm so far, it would be desirable that a psychological report on the child is available, which may lead to other orders being made in the future for her benefit.
39. The choice then lies between making an interim care order and making an interim supervision order. There are of course many differences between the two, but they come into sharp focus in the present case because if a supervision order were to be imposed, the mother will have continuing care of the child, whereas if an interim care order is granted, it is absolutely clear that the care plan involves removing the child from her mother's care.
40. On 8th May, when the Minister applied for an adjournment, the Court was told that the Children's Service had ensured the safety of the child by regular discussions with the Women's Refuge and by checking up on the mother's performance. The Court was told that all was well.
41. Advocate English told us on that occasion that the mother wanted the adjournment so that her performance as a mother could be scrutinised. We were told that she had been attending at The Bridge and had self-referred to the Alcohol and Drugs unit. He made the point then, and repeated it before us at the more recent hearing, that the fact of the Minister's application for an adjournment showed that the underlying application was neither urgent nor serious. On 8th May, Mrs Ferguson, the Guardian, expressed serious concerns about the care which the child had received. She considered that neglect and emotional abuse was serious. She was not suggesting that the child should be taken away from her mother but she did think that an interim care order with care to the mother was an appropriate order. Before us at the more recent hearing, she indicated that she had changed her mind and she now supported the removal of the child from the mother's care, having negotiated with the Children's Service an increase in the number of contact days.
42. In cross examination, Mrs Stroyan was pressed on why there was a need for supervised contact, particularly in circumstances where the Minister had agreed on 8th May that there should in effect be twelve days unsupervised care of the child. It was not entirely clear to us from her answers why this was in the care plan.
43. We have also been told by Mrs Stroyan that it is obvious that the mother loves her little girl, and that her physical care of the child is good. According to the social worker, there is an attachment between mother and daughter, although the daughter has some anxiety. The social worker acknowledged that she was stepping outside her professional area in the sense that this was normally a matter for child psychologists, but, using her professional experience, she thought that the attachment between mother and daughter was not particularly strong, perhaps because the child was frequently looked after by others.
44. We have had regard to the welfare checklist under Article 3(3).
45. The child is too young to express a view but we have taken account of the fact that Mrs Stroyan says there is an attachment between mother and daughter, albeit in her view not a strong one.
46. We have taken account of the fact that the mother appears on the evidence to provide for the physical and educational needs of the child. As to whether she has provided adequately for the child's emotional needs, it seems to us that the current position is that the matter is uncertain. There is unquestionably a risk of damage to the child's emotional health from incidents such as that which occurred in the park in April 2012, and as a result of the incidents of domestic violence between the mother and either of her former partners.
47. We particularly take into account that the likely impact on removing the child from her mother's care is very significant.
48. We take into account at the age of just under four, the child is likely to be very dependent upon her mother.
49. We take into account the fact that the emotional harm which the child is at risk of suffering is potentially very significant. In this connection, the mother's associations and her relationships are a significant risk.
50. We think the mother is capable, subject to the risks posed by potential alcohol and/or drug abuse and violence in her relationships. We did not think that the presence of dirty linen on the floor of the Refuge when Mrs Stroyan attended recently, or the sight of the child climbing on a top bunk carry necessarily adverse connotations for the mother's capabilities.
51. This is a difficult case. We are conscious that we are asked to make an interim order in circumstances where we do not have the full range of hard evidence that would be available on the application for a final order. We have now to make an order which is proportionate having regard to the different factual possibilities which may emerge in the evidence on the final application, and that in the interim we must make an order which reflects the best balanced assessment of risk we can make on the evidence currently available.
52. Removing a child from the care of its parent is a very significant step for a court to take, even on an interim basis. In the case in the English Crown Court of Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, the court was concerned with a mother who had severe learning difficulties and was represented by the Official Solicitor, and a father who had partial but not global learning difficulties but whose ability to function in everyday life was affected. It became clear that the mother had suffered significant physical difficulties on a number of occasions attributed to domestic violence by the father. Following an allegation made by people at the children's school that the father had been seen whipping the children with a belt, the children were removed from the family home under an emergency protection order and placed with foster parents. The whipping with the belt was not established but at the hearing, the local authority sought care orders relying upon the impact of alleged domestic violence on the children, on the behaviour of the children and the general family dynamics during contact and on significant improvements experienced by the children at school since their removal, notwithstanding the local authorities' acknowledgement that both parents had had positive and loving relationships with their children.
53. The application for a care order was dismissed. Hedley J said this at page 2064:-
54. We think this reflects the background to the Law and the policy which underlies the Law in this Island. Re L is clearly a case which concerned an application for a final care order, but the considerations to which Hedley J referred are in our judgment just as appropriately considered when reviewing the application of the no order principle and the welfare test on an application for an interim order. The Court starts from the position that the best person to bring up a child is the natural parent. Once the threshold is passed on an interim care application that there are reasonable grounds for thinking the circumstances in Article 24(2) might exist, the Court has jurisdiction to make an interim order, the effect of which may mean that the Minister can remove the child from its parent. It is explicit in Article 2(3) that the Court must have regard in the application of the welfare checklist, among the other considerations, to the likely effect on the child of any change in his or her circumstances. This includes the dramatic effect of removing a child from his or her parent, particularly at the age that the child in this case has - old enough to have established an attachment, young enough to be confused and bewildered by any changes in her day to day living that removing her from her parent and placing her with strangers, albeit well-meaning strangers, would make. There are cases where it is obviously right that the interim care order should be made because the risk of harm, if not made and the child removed from the custody of the parent, was too great - but there will be other cases where the threshold for an interim order has been passed and there are reasonable grounds for thinking that significant harm has been suffered or is likely to be suffered, and yet that risk does not outweigh the risk of harm which removal from the care of the parent would cause, if that removal were not the final outcome.
55. Although it is sometimes described as a neutral act, it appears to us that the removal of a child from its parent will often not have that result in practice. It may be that ultimately, on the final care application, the making of the order and the care plan which envisages the removal of the child from the parent is the right course to follow, but at that stage the threshold criteria are different, and stricter because there needs to be more than just reasonable grounds for believing the Article 24(2) circumstances exist. Those circumstances must be established on the balance of probability, and, assuming they have been established, the Court then has, in our experience, a wide range of professional advice as to relevant factors which ought to be taken into consideration at the welfare stage. We do not doubt that there are many cases where it is appropriate, on an interim care order being made, for the child to be removed from his or her parent but in the instant case, by a majority, we are not satisfied that this is so. One Jurat considers that it would be right to make the interim care order on the basis of the current care plan, because that will provide the child with a safe secure environment with foster parents. The other Jurat, whose opinion I share, is of the view that while an interim care order would be ideal if the child remained in the care of the mother, the fact that the Minister is not proposing that course suggests that the risk involved in removing the child from her mother outweighs the risks at this stage of leaving her with her mother. We emphasise that that is the position on the evidence we have heard so far, and clearly that assessment might change if the threshold criteria are passed at the stage of the application for a final care order and there is then other evidence before us.
56. We do not think that no order is appropriate for the reasons we have given, and we therefore are minded to make a supervision order subject to receiving a number of undertakings from the mother. These undertakings are as follows:-
(i) To comply with paragraphs 1 and 2 of Schedule 3 of the Law;
(ii) Not to have contact with any persons reasonably deemed inappropriate by the Children's Service;
(iii) To abstain from alcohol completely;
(iv) To accept any visits from the Children's Service at her place of residence in order that the Children's Service may satisfy themselves that all is well between the mother and the child;
(v) To attend such parenting courses in Jersey as notified by the Children's Service;
(vi) To attend the Drug and Alcohol Service on a voluntary basis to obtain their advice and assistance so as to avoid drug and/or alcohol abuse.
57. In addition, the Court maintains the directions given on 8th May, and in particular the directions relating to the preparation of a psychological assessment of the child.
58. This is an interim order and therefore will continue initially for a period of eight weeks but thereafter in accordance with Article 30(3) of the Law. The parties have liberty to apply in relation to the order, and both the mother and the Minister have liberty to apply in relation to the mother's undertakings.
59. The mother has been asked to confirm that she is prepared to give these undertakings to the Court. If she is willing to give them, the Court will make a supervision order on these terms. If she is not willing to give them, then the assessment of risk on the application of the welfare test changes, and the Court will make an interim care order.
