Jersey Unreported Judgments

[2004]JRC079

royal court

(Samedi Division)

 

4^th May 2004

 

 

 

 

Application by the Health & Social Services Committee for the permission of the Court for the child, O, to leave the jurisdiction with his natural father ("the father")

 

 

Advocate Mrs. S. Sharpe for the Health & Social Services Committee;

Advocate D Hopwood for the mother;

Advocate K Berry for the father.

 

 

judgment

DEPUTY bailiff:

1.        This is an application by the Health & Social Services Committee ("the Committee") seeking the permission of the Court for the child O to leave the jurisdiction with his natural father ("the father").  The need for the consent of the Court arises because, on 13^th February 2004, when renewing an Interim Order committing O to the care of the Committee, the Court, at the request of the mother, ordered that the Committee should not cause or permit O to leave the jurisdiction without further order of the Court.

The background

2.        The mother is aged 22.  She spent most of her childhood in the care of the Children's Service.  Sadly she had little stability during that time.  The Court was informed she had moved between some 32 different foster homes during her life.  In November 1999 she gave birth to her first child C when she was 18.  She resided at La Chasse Centre with C.  There were concerns about her ability to provide the necessary level of parenting for C and in July 2000, C was committed to the care of the Committee and placed with long term carers.  Eventually C was freed for adoption by order of the Royal Court made on 4^th July 2002. 

3.        Meanwhile the mother had given birth on 17^th January 2001 to a second son, B.  B's father was not C's father.  Again the mother resided at La Chasse Centre with B and, initially, B's father.  However, difficulties were again encountered.  The Children's Service concluded that, by reason of the mother's inability to provide proper parenting and to put her child's needs before her own, an Interim Care Order should be sought committing the care of B to the Committee.  Such an Order was obtained on 25^th April 2001.  Attempts were made to rehabilitate the mother with her son but these failed.  B was placed with long term foster carers in May 2001.  On 4^th July 2002 the Court heard an application to free B for adoption.  That application was opposed by the mother but the Court concluded that her consent should be dispensed with on the ground that she was withholding it unreasonably.  We have read the judgment in that case together with the reports supporting the applications for care orders in respect of C and B.

4.        In 2001 the mother began a relationship with the father in this case.  Their child O was born on 21^st September 2003.  In view of the problems with the mother's first two children, the Children's Service carried out a lengthy unborn risk assessment before O's birth.  The Court has been provided with the reports prepared for that assessment.  There was considerable discussion with the mother and the father about the concerns of the Children's Service as a result of the experience in relation to the mother's first two children.  These concerns were summarised in the report as being a refusal to feed; refusal to get out of bed and attend to the babies in the mornings, sometimes as late as 1.00 p.m; calling the babies names and shouting and screaming at them; the mother's volatile nature and refusal to accept services or advice, the amount of time that the babies came in and out of care; and the refusal to give medication as advised.  The decision of the Children's Service was that, although the expected child should be placed on the Child Protection Register, there was reason to hope that things had improved, particularly because of the support which the father could give.  Accordingly the decision was reached that a package of care should be arranged so that the mother and father could care for their baby in the community.

5.        As we have said, O was born on 21^st September 2003.  By then the father's 13-year son D from his previous marriage had come to live with the parties.  It would seem that for the first two weeks or so, all was well.  However difficulties then arose.  The relationship between the mother and father broke down and the mother decided to leave the home which they shared together towards the end of October in order to go and live with a friend of hers, Miss L.  On 22^nd October the Children's Service called an emergency Child Protection meeting following a number of concerns which had been expressed by various professional workers about the situation.  These were summarised in a report dated 30^th October by Ms Carole Rowe, Senior Practitioner, as being that the couple's relationship had deteriorated; the mother was staying out all day and often into the evening until 1.00 a.m. with O; the mother's care of O had been affected by her relationship problems and she was showing little insight into this; it was noted that the mother needed to be prompted several times to attend to O's needs - feeding, changing; the mother was using abusive language when referring to O; the mother was showing unrealistic expectations of O's behaviour.  For example, she had recently said that O was over 4/5 weeks old because when she told him to stop doing something, he stopped. 

6.        The Children's Service attended the home of Miss L and understood that the mother and O could only remain with her for two weeks.  A further case conference was held on 29^th October and a plan of support was put before the mother, namely that she should go and stay at the Causeway Project with O; that she be referred to the Psychology Department for a psychological assessment; that an extensive programme of support be designed to ensure O's safety and wellbeing whilst the mother and O were at the Causeway Project; that a risk assessment be completed; and that the situation be reviewed on a weekly basis.  At that time the mother did not wish to move to Causeway as it would mean that her friends could not visit her.  Furthermore she said that she would not co-operate with a psychological assessment.  In the light of these difficulties the Committee applied for and was granted an Interim Care Order by this Court on 31^st October 2003 pursuant to Article 28 Children (Jersey) Law 1969. 

7.        Following the Order, the mother agreed, somewhat reluctantly, to move to Causeway with O for a period of assessment.  The father had regular access to O.  The results of the assessment were considered by the Children's Service and are set out in the report from the Child Care Officer with responsibility for O, Mrs Vicky Larbalestier, dated 26^th March 2004, prepared for these proceedings.  We do not propose to set it out in any detail but in essence the Service was of the view that the mother was not caring adequately for O.  She had been heard to swear at him and threaten to kick him, she was in a low mood and unco-operative (she had refused to attend for psychological assessment as requested), she had not bonded with O as she had avoided doing so in case O was removed from her and she appeared to be unable to care for O full-time and frequently sought periods of respite.  Mrs Larbalestier concluded that the mother would be unable to care for O until she had managed to come to terms with the feelings and issues that she had regarding her own childhood.  In the light of the assessment, a Post Core Assessment Review (a multi-disciplinary meeting) was held on 18^th December 2003 which agreed with Mrs Larbalestier's recommendation that O should be placed in the care of the father.  This was effected immediately and, since then, O has been in the care of the father. 

8.        The father is not residentially qualified for housing purposes and therefore resides in a very expensive one-bedroomed flat.  He works as a painter and decorator.  O is looked after during the day by a foster carer so that the father may continue to work.  The father looks after O from after work until the following morning and also on Sundays (he works on Saturdays).  The mother has supervised access to O three times a week for two hours.  Initially this access took place at the home of Miss L but more recently has taken place at Grands Vaux Community Centre.  The access appears to work well. 

9.        The father originates from Wales.  He came to Jersey some four years ago following the breakdown of his marriage.  His ex-wife and two children still reside there, as do his parents and brothers and sisters.  The father wishes to return with O to live in Wales.  The Children's Service supports this proposal and has concluded that it is in the best interests of O provided that the father obtains a Residence Order from the Welsh Courts immediately following his return.  Once this is done - so that the legal position of the father is established - the Interim Care Order in favour of the Committee will be allowed to lapse.  A Residence Order, while establishing the legal position of the father, would not of course diminish the legal position of the mother.  She would retain all her rights as mother and would be able to apply for access and, if appropriate, a Residence Order. 

10.      As we mentioned earlier, the Court became involved because, at the request of the mother, the Court imposed a restriction on the ability of the Committee to let O leave the jurisdiction.  Thereafter the parties entered discussions, the result of which was that on 8^th April 2004 the mother and the father, with the assistance of the Children's Service and their legal advisers, signed an agreement to the effect that O should go to live in Wales with his father subject to provisions for access which were spelt out in detail in the agreement.  The access involved visits for the mother both in Jersey and in Wales which would be funded for at least twelve months by the Children's Service.  Following this agreement the matter was listed for hearing before this Court in order for the Court to approve the proposed arrangement and grant its consent.  However at that hearing, the mother's advocate informed the Court that the mother had changed her mind and no longer agreed to O moving to Wales with the father.  The case was accordingly adjourned so that the Court might receive evidence and the parties' submissions on whether it should allow the move to proceed.  That hearing took place over the course of 15^th, 16^th and 20^th April.  At the conclusion of the hearing the Court announced that it agreed with the decision of the Committee that O should be allowed to move to Wales with his father.  We now give our reasons for that decision.

The Committee's case

11.      The Committee, through the Children's Service, is clear in its view that it is in O's best interests that he should live with his father and that his father should be permitted to return to Wales.  The views of the Children's Service are set in the various reports which we have seen.  Furthermore Mrs Larbalestier has given evidence before us and was cross-examined very thoroughly by Mr Hopwood on behalf of the mother.  In essence, the reasons for the Committee's decision can be simply stated.  It asserts that there are serious concerns about the mother's ability to provide proper parenting to her child.  While she no doubt wishes to be a good and effective mother to her child, the Children's Service considers that she is not capable of doing so at this stage.  All the evidence to date suggests that, although she may be able to cope well with access for a couple of hours, she is unable to deal with the pressures of looking after a baby for lengthy periods with all the difficulties that that can involve.  The Children's Service does not believe that she can achieve this in the near future and would therefore not be willing to place O with the mother at this stage. 

12.      Conversely, the father's care of O has been praised by all those concerned.  None of the care or health workers who have come into contact with him has expressed any concern about his parenting skills.  The experienced day foster carer has praised the father's care of O as did the hospital authorities during O's short stay there following an attack of bronchiolitis.    These various reports confirm Mrs Larbalestier's own observations of the father's abilities as a parent. 

13.      The father's accommodation in Jersey is expensive and unsatisfactory.  It is not large enough for his son D to have remained with him and accordingly D has had to return to Wales to live with his mother.  The father wishes to return to live in Wales.  The plan is that, initially, he should live with one of his sisters, Rebekah and her children.  He would then seek accommodation from the local housing authority with a view to D and his sister J being able to live with or come for staying access (as the case may be) with their father.  The father's intention is initially not to work and to live on benefits whilst O is very young.  Mrs Larbalestier has spoken to the local authority in the area and has confirmed that the father would be able to apply for housing without any difficulty and would also be eligible for benefits.  Mrs Larbalestier has visited Wales in order to interview various members of the father's family.   She saw the sister with whom he will live and the father's parents.  She found them to be very supportive of the father's plans and positively looking forward to his arrival with O and to giving him support thereafter.  The father will therefore have a supportive family to help him look after O as necessary.  It is Mrs Larbalestier's professional judgment that O's best interests would be served by living with his father in Wales rather than by remaining in Jersey. 

14.      Mrs Larbalestier was questioned in some detail about the events leading up to the decision to move care of O to the father in December.  We do not need to go into the detail of each of these matters.  It was put in particular to Mrs Larbalestier that, because of her long history with the Children's Service, there are tensions between the mother and members of the Service so that she could not be natural with her son because she felt that she was under the microscope all of the time and that members of the Service were waiting for her to fail.  Mrs Larbalestier accepted that there were difficulties in this respect although she herself had not had any involvement with the mother prior to 2002 and therefore came without any historical connection.  However the Service had done all that it could to try and assist the mother to look after her child in the community and the placement at Causeway had been arranged with the intention of enabling the mother to show that she could place O's interests ahead of her own.  They were conscious that she would need some respite from looking after O and this was built in with the various periods of access with the father.  However it became clear that the mother was seeking a greater degree of respite than had been provided with the result that the father and others found themselves looking after O at additional times.  Although acknowledging the point that the mother may have felt under pressure, the fact remained that the Causeway stay had been her opportunity to show that she had changed.   Despite this she did not bond with O and, for example, did not feed him as he lay in her arms (essential for bonding purposes) but 'prop-fed' him i.e. fed him without holding him.  Mrs Larbalestier made the point that the mother was good at talking about parenting and had good knowledge but could not always put that knowledge into practice.

15.      Mr Hopwood also put to Mrs Larbalestier that there were concerns over the character of the father which had not been investigated properly.  Thus he suggested that the father was unable properly to control D because of feelings of guilt and had not reprimanded him for kicking a 5-year old at Grands Vaux, after the 5-year old had kicked him, that he had behaved inadequately and irresponsibly in relation to the bronchiolitis attack, that he had a temper and that he had assaulted the mother on one occasion and that he had fire-bombed the workshop of his ex-wife's boyfriend.  Mrs Larbalestier did not accept that there were concerns.  As to the first allegation, she had not heard of the alleged kicking incident prior to it being brought up by the mother in Court but she had witnessed the relationship with D whilst he had been over.  In her opinion the problem lay in the attitude of the mother towards D in that she had been quite verbally abusive to him and he had responded as a teenager might.   The father was caught in the middle.  She did not have any concerns as to D's character, the father's ability to handle D or D's attitude towards O. 

16.      As to the second allegation, she was aware of the incident and had indeed been present when the doctor examined O.  The doctor had explained that it was difficult to treat at home and that very often hospital was the consequence.  She felt that the father had given the prescribed treatment and had reacted very properly by taking the child to hospital when the condition worsened.  She saw no grounds for criticism. 

17.      As to the allegation of temper, she was aware that, at the time of temporary separation between the parties some time ago, the mother had alleged an assault on the part of the father and had made a complaint to the police.  She had however not proceeded with this and there had been no further allegation of any form of temper or violence since then.

18.      Finally, in relation to the alleged fire-bombing, she had asked for police checks to be carried out on the father and the members of his family.  She had specifically briefed the Child Protection Team of the States of Jersey Police as to the reason for the request and had alerted them to the allegation of the wife that the father had admitted fire-bombing premises and that there was a warrant out for his arrest.  The police checks had come back entirely clear both on the father and his family and she took it from this that the allegations were not correct. 

19.      She was pressed on whether it would not be possible to defer a departure for Wales so that, although O would continue to live in Jersey with the father for the time being, access could be increased with a view to establishing whether the mother would be able to cope with longer periods of exposure to the pressures of looking after the child.  Were that to be successful the child could eventually be given back to the care of the mother.  Mrs Larbalestier's response was that, however much one might sympathise with the mother, the prospects of her being in a position to provide full time adequate parenting of O in the near term were small.  O needed stability.  This was offered by the father and it was entirely reasonable for the father to wish to look after O in Wales where he could obtain better accommodation and would have the support of his extended family.  It would not be in O's best interests to have a prolonged period of instability with no one knowing who would ultimately have the care of O. 

20.      The father also gave evidence.   He told us how he came to Jersey following the break up of his marriage and began a relationship with the mother in 2002.  He worked as a painter and decorator.  He said that, for the first two weeks after O's birth, all went well; he and the mother worked well together as a team.  However, difficulties then arose.  There was tension between the mother and D; the father felt that the mother was abrupt and rude towards D.  The mother began to stay out late with O and when she did come home, she would no longer care for him as previously.  She began to put herself before her child.  The parties split up not long afterwards. 

21.      Since 18^th December 2003, he had had the care of O.  He had to continue working as he was not eligible for benefit or welfare and he had to live in expensive accommodation for non-residentially qualified persons. He saw to O's needs every morning before leaving him with the day carer at 8.45.  He would return to pick up O at about 4.45 and have him for the rest of the evening and all day Sundays. 

22.      He felt that it would be in the best interests of O if he were to return to Wales where he could offer a better quality of life.  He would look after him full time for the immediate future and would be eligible for benefit.  Most importantly he would have his extended family to provide support for both him and O.  In Jersey he was isolated in that there was no extended family on his side and the family of the mother were not in a position to help.  He accepted that the mother should have reasonable access.  When it was put to him that he was a man who enjoyed working and would find it very difficult to be a full time carer at home, he accepted that this would be a big change but he felt ready for it in view of his bond with O and his desire to provide him with a stable upbringing. 

23.      As to the specific criticisms made by the mother, he felt quite capable of saying no to D if that was necessary.  He had not seen D allegedly kick a 5-year old and denied that he had been told about it shortly thereafter.  If he had been, he would have had no hesitation in reprimanding D had he thought this appropriate.  Furthermore his ex-wife had never said anything to him to suggest that D had a tendency to hit other children.  As to the alleged fire-bombing incident, he admitted that, shortly after he had met the mother, he had told her that he had done this and that there was a warrant out for his arrest in the UK.  It was sheer bravado on his part; he felt pathetic telling her that his marriage had ended because of his wife's affair.  The story was however completely untrue.  He realised now that it was in very bad taste.  As to the alleged assault on the mother, he said that they had split up temporarily in 2002.  He had come back to their accommodation to find her going through his belongings.  She took his car key and refused to give it back to him.  He tried to get it off her and there was a struggle.  They fell against the wall.  At some stage during the struggle his hands were in the region of her neck but there was no attempt on his part to strangle her.  She had made a statement to the police and he had been interviewed but they had taken no action.  As to the occasion when O was taken to hospital with bronchiolitis, O had been under the weather and he had been giving him Calpol.  Mrs Larbalestier had visited at the time and did not suggest that his response was inadequate.  During the course of an access visit with the mother, a doctor had been called by the mother and had prescribed a medicine.  He had said that it might be bronchiolitis and that it might deteriorate so as to require hospital treatment.  He was given the prescription by Mrs Larbalestier.  He went and acquired it and treated O with the prescribed medicine.  However, as the doctor had envisaged might happen, O's condition had got worse and on 26^th December he had taken him to the Accident and Emergency Department for treatment.  O had been detained for several days.  He believed that he had acted responsibly throughout. 

24.      In summary he believed that he could provide a loving and stable home for O with the support of his extended family and sought the Court's agreement to what was proposed. 

The mother's evidence

25.      The mother essentially felt that she had not been given a fair opportunity to prove that she had changed and was now capable of looking after a young child.  The relationship with the father had broken up partly because of the disruptive influence of D and the father's failure to support her rather than D.  Although she had stayed out late with O, this had been at the house of her friend Miss L and O was therefore well cared for.  The relationship came to an end simply because of the fraught atmosphere at home and she spent time out of the home for that reason. 

26.      She felt that it was unreasonable to assess her abilities as a mother on the basis of her time at Causeway.  She had not wanted to go there.  She had a difficult relationship with the Children's Service because of her own long involvement with them in her childhood.  She felt oppressed by the rules and by the frequent visits of the Children's Service, health visitors and others all looking to see how she was behaving towards her child.  She could not be natural with O in the way that she could be when in the presence of others such as Miss L.  Furthermore she deliberately held back from bonding with O at that time because she thought that he would probably be taken away from her in any event and the pain would be so much harder to bear should that occur.  She felt that her past was being held against her and she was given very little respite from looking after O.  She had still not fully recovered from the birth and got tired easily.  She may also have been suffering from post natal depression.  She did not accept that it was fair and reasonable for O to be removed from her care on 18^th December and transferred to the care of the father.  She did not accept all the factual assertions made in Mrs Larbalestier's report in support of that decision. Nor did she accept that the father was as suitable a parent as the Children's Service seemed to think.  She made a number of criticisms of him.  The first was that he could not set boundaries and was unable to say no to D.  Thus, on one occasion, D had kicked a 5-year old child who had kicked him first.  Although the father had not been there at the time, she had told him when he came some ten minutes later but he did not do anything about it or reprimand D in any way. 

27.      Secondly she referred to the incident at Christmas concerning O's health.  O had come to her on an access visit.  He seemed to be under the weather and she had called the doctor.  The doctor had said that it might be bronchiolitis and had prescribed a medicine.  She criticised the father for not having called the doctor himself at an earlier stage. 

28.      Thirdly she raised concerns over the father's character.  She said that he had assaulted her on one occasion when they had broken up in the early part of their relationship.  She had made a complaint to the police although she had not proceeded with it.  Furthermore the father had told her that he had fire-bombed premises belonging to his wife's lover and that there was a warrant out for his arrest in the United Kingdom. 

29.      As to her own relationship with O, the access visits had gone extremely well both when they took place at the house of Miss L and more recently at the Grands Vaux Centre and she could not bear the thought of losing him.  She felt that, if he were to go to Wales with his father, she would in reality lose the bonding.  She could not afford to go to Wales herself and would have to rely on the Committee to fund her visits.  Even if the Committee were to do so, four visits a year would be insufficient to maintain a close relationship.  She desperately wanted to prove that she could look after her son.  She accepted that it would not be reasonable to return O to her at this stage and therefore she was not applying to lift the Interim Care Order in favour of the Committee.  However, she urged that O remain in Jersey with the father whilst increased access was allowed.  This would enable her to show that she could cope with O for longer periods than at present.  She would also like the access to be unsupervised so that she could be more natural in her relationship with O.  After a few months, she believed that she would show that she was capable of looking after O with the result that he could be returned to her care.  She accepted that she would need continued support and that it would be beneficial for her to attend parenting classes but she felt that, with this support, she was the correct person, as his mother, to look after O.  She realised now that she had to work with the Children's Service and she believed that she could do that although she hoped that they would understand that she had her way of doing things.  She felt that she had changed substantially in relation to her ability to look after her son.

30.      In short she felt it would be in O's long term interest to remain in Jersey with a view to her being able to show that she could look after him so that he could be returned to her care in due course.

Other material

31.      We were shown a letter from Mrs B Achler, O's daytime foster carer.  She was described by Mrs Larbalestier as a most experienced foster carer.  She spoke highly of the father's care.  She said that O always appeared to be clean, happy and content and was a well looked after and cared for little boy.  We also received a letter from the father's parents who confirmed their support for the father's proposed move to Wales and the fact that they looked forward to the opportunity of embracing O into the family unit.  We also received an affidavit from Rebekah, the sister of the father with whom he will live at first in Wales if he is given permission to go there.  She came to Jersey for the initial hearing (which was adjourned when the mother changed her mind concerning the agreement).  She confirmed that there was room available for the father and O to stay with her whilst they sought accommodation in Wales.  She spoke highly of the father's care of O and strongly supported his application to go and live in Wales. 

32.      We were also shown a letter from the father's ex-wife who spoke of the father's abilities as a father of their two children D and J (aged 11).  She said that he had been a loving and responsible father and she had no qualms about letting D come to live with him in Jersey.

33.      The mother produced an affidavit from Miss L and she was cross-examined thereon.   She is a friend of the mother and has a 3-year old child of her own.  She explained that the mother became a different person in the presence of a Children's Officer.  She became anxious and nervous.  When the mother and O had lived with her for about two weeks between leaving the matrimonial home and moving to Causeway, she felt that the mother provided very well for all of O's needs.  Furthermore she had seen the mother with O on access visits and believed that her relationship with O was improving all the time.  She felt that, given the opportunity, the mother could demonstrate that she was a good mother and could meet O's emotional and physical needs. 

34.      It was put to her that, when the mother had been staying with her, she had telephoned the Children's Service in order to say that she was feeling very stressed by the level of support that she had to give to the mother and to pass on her concern that the mother would need a lot of help and support in looking after O.  She stated that she could not recall this telephone call, but having seen and heard both Miss L and Mrs Larbalestier give evidence, we find that this telephone call did take place as asserted by Mrs Larbalestier.   It was also put to her that, some months ago she had met the father by chance in Woolworths and had said during a conversation between them that, when the mother and O had been staying with her, she had found herself forever having to change O's nappies and that the mother did not deserve to have O.  She denied saying this but the Court accepts the father's evidence that this conversation did take place as he alleges.  In any event Miss L acknowledged that it would be very important for the mother to receive advice and guidance from the Children's Services in dealing with an infant.  She pointed out that the mother was confused by receiving conflicting advice from different sources.  Miss L's mother also provided an affidavit to the effect that the mother had coped under pressure, that her relationship with O was going from strength to strength and that, given the opportunity, the mother would be able to show that she could fulfil O's emotional and physical needs. 

35.      The mother produced a short report dated 17^th February 2004 from Dr Blackwood, a consultant psychiatrist to whom she had been referred by her general practitioner.  His opinion is summarised in the following extract from his report:-

"She has quite significant sociopathic traits with her inability of accepting responsibility; tendency to blame others for her problems and it seems like an inability to learn from experience.  She regularly behaves outside normal social norms.  She appears to binge drink on alcohol but I could not get any clear idea of the amount that she takes. 

She has had offers of counselling from social workers involved in her care but from her account she has rejected that forcibly, I did not get the feeling that she was ready to change her personality at this time and is unlikely at the moment to benefit from any input from the Mental Health Services."

Her general practitioner sent a short letter saying that he had no immediate experience of the mother's parenting skills and would expect the Court to defer to a carefully considered opinion from the Children's Service who should be in a position to make an objective decision which he knew the Court would wish to be in the interests of the child solely, rather than its parents. 

36.      In September 2003, at the request of Mrs Larbalestier of the Children's Service, the mother was allocated an adult social worker from the Adult Social Services team.  This was intended to concentrate on the mother's welfare rather than that of O, which was the focus of the Children's Service attention.  The social worker allocated to the mother was Miss Amanda Fox and she has prepared a report of 14^th April.  She summarised the difficult background faced by the mother both in relation to her own history and in relation to the fact that her first two children were freed for adoption.  However she felt that the position was looking up and that the mother was making progress.  The final paragraph of her report concludes as follows:-

"It is my view that over the past few months, [the mother] has developed a bond with O and has made significant efforts to improve her situation.  I also feel that [the mother] needs ongoing therapeutic work and I would like to carry out some life-story work with her to help her to make sense of and understand her past.  I feel that with ongoing in-depth work, [the mother] may be able to find the tools to deal with stress better and she may be able to resolve some of her issues relating to rejection. [The mother] has shown a positive openness to doing this work with me and other professionals, but she does find it very difficult."

37.      Finally the Court had the benefit of a report from Mrs Ireland, a cognitive behaviour therapist in the Department of Clinical Psychology to whom the mother had been referred in December 2003 by Amanda Fox following the decision of the Children's Service to remove O into the care of the father.  Mrs Ireland spoke of the mother's animosity towards the Children's Service and her view of them as being meddlesome and interfering throughout her life.  She also stated that the mother remained angry with herself for not trying harder to keep her first two children, although she now conceded that the Children's Service were justified in their concerns over those two children.  As an aside, we should point out that the mother did oppose the freeing of B for adoption and she did therefore try very hard to keep B.  We would urge her not to be angry with herself on that score.  Mrs Ireland said that, in relation to O, the mother felt that he had been removed from her care with indecent haste and that the decision was based on her past rather than on her present.  The report added that there is a possibility that the mother suffered post-natal depression after O's birth.  The report concluded as follows:-

"Should the court rule in her favour, [the mother] is aware that the Children's Service would monitor her in order to satisfy them of her capabilities and O's safety.    I envisage that this could be a testing time for her given her strong feelings of animosity to some members of the Service.  In spite of this, she is aware of their concerns and understands that she will have to co-operate with them fully, if she is to care for her son. 

Since my initial assessment with [the mother], we have met for a further three sessions.  There appears to be a consistency in her desire to be a responsible and caring parent.  I am of the opinion that if O were to be placed in her care she would require full-time support from Social Services for some considerable time, which she fully appreciates.  I would also suggest that she would benefit from attendance at parenting classes."

Decision

38.      We begin by making two preliminary observations: the first is that O is in the care of the Committee and it is the Committee which therefore has full parental rights over O pursuant to Article 31(3) of the 1969 Law.  This means that the Committee has full power to decide with whom O lives.  The Court is not here acting as it does in custody disputes between parents where the Court decides which parent should have custody.  Unless or until the care order is revoked, it is the Committee which has the responsibility for O and the power to decide where he lives.  Mr Hopwood very realistically accepted that he was not suggesting that there was any prospect in the foreseeable future of the care order being revoked if O remained in Jersey.  The Court's involvement arises only because of the order of 13^th February 2004 that O should not leave the jurisdiction without further order of the Court.

39.      The second observation is that it follows from this that the Court is not here to consider whether the Committee was right in December 2003 to move the care of O from the mother to the father.  The evidence before us ranged fairly widely because we wished to give the mother every opportunity of developing her case and because it was relevant for us to know the background in order to decide the limited issue before us.  In particular, the mother did not accept all the grounds stated by Mrs Larbalestier in her report in support of the decision of the Children's Service to remove O from the mother in December.  It is not necessary for us to resolve those differences.  Indeed, it would be unfair of us to do so as the hearing was not directed primarily towards that issue and the Committee in particular might well wish to bring further evidence to bear if that were the question at issue.  Nevertheless it would be right for us to say that we found Mrs Larbalestier to be an impressive witness whose sole concern was O's best interests and that, while making no finding in respect of the correctness of the Committee's decision to remove O to the father, we can well understand the concerns which led the Committee to conclude that that was the best course of action. 

40.      We have to deal with the situation as it is today.  O is in the care of the father and has been so since December.  The Children's Service has no concerns about the father's ability to satisfy the emotional and physical needs of O.  That is supported by others, including the experienced day foster carer who looks after O during the day and states that O is very well cared for.  Furthermore we have seen the father give evidence.  We accept that he is a loving father who has bonded strongly with his son and who will do all he can to provide emotionally and physically for his son.

41.      The mother has expressed several criticisms of the father, some of which were raised with Mrs Larbalestier during her evidence.  Like her, we do not consider that these allegations cause us to change our assessment of him.  As to the allegation that he could not control D, we accept that he was in a difficult situation and that the mother and D did not get on.  Mrs Larbalestier saw D in company with O as well as with the mother and father and we accept her evidence that D was essentially a normal teenager and that she had no concerns about his attitude towards O.  As to the allegation that D had kicked a 5-year old after the 5-year old had kicked him, it is clear that the father was not there at the time.  In the circumstances we do not feel able to draw any adverse conclusions from this particular incident.

42.      Secondly the mother criticised the father for not calling a doctor soon enough when O developed bronchiolitis at Christmas last year.  Mrs Larbalestier was questioned about this as she was present for some of the time.  She had no criticism to make of the father's conduct.  We accept her evidence and that of the father and find no grounds for criticism in relation to his care of O at the time. 

43.      Thirdly, the mother referred to the father's admission of fire-bombing and to the fact that he had assaulted her.  As to the former, the father admitted in evidence that he had told this story to the mother and that it was very foolish for him to have done so.  The police checks had been carried out and the Child Care Team of the States of Jersey Police were specifically made aware of this particular allegation.  The checks were satisfactory.  We accept that this incident never occurred and that it was simply a foolish story invented by the father in the early stages of his relationship with the mother.  As to the alleged assault, the father admits that there was a struggle and that, as a result, the mother made an allegation of assault against him to the police.  However this was not pursued and no charges were brought.  Even if the incident occurred, it seems to us to have been a comparably minor assault.  Subsequently, the parties were reconciled and no further allegation has been made against the father by the mother despite the fact that there were clearly very considerable tensions between them towards the end of the relationship.  We conclude that, wherever the truth may lie, this isolated incident does not affect our opinion of the father's suitability to look after O. 

44.      On the evidence, we are satisfied that Mrs Larbalestier's assessment of the father's skills as a parent should be accepted.  We think he is capable of providing a stable and loving home for O.  However the father believes that it is not right for him and O to remain in Jersey.  He is not residentially qualified.  He therefore lives in a one-bedroomed flat for a weekly rental of £229.  The limited accommodation has meant that D had to return to live with his mother in Wales.  The father has to work long hours in order to make ends meet and even so, on the figures given to us, it is very difficult for him to do so.  He has no family in Jersey.  The mother's family are not in a position to help.  He is therefore fairly isolated.  His life consists of work and looking after O on his own. 

45.      He therefore wishes to return to Wales.  There he will be able initially to live with his sister and he would then be able to obtain accommodation from the local authority which would be large enough for D and J to come and live or stay with him.  He will have the support of his extended family which includes his parents and a number of brothers and sisters.  He will be eligible for benefits and will therefore not work whilst O is very young.  We are quite satisfied that his reasons for wishing to return to Wales are genuine, reasonable and motivated entirely by a desire to do what is best for O and for himself.  There is no desire on his part to damage or interfere with the relationship between O and the mother.

46.      The mother argued strongly that such a move would spell the end of any opportunity for her to bond fully with O and for any chance which she may have of regaining care of O in due course.  She accepts that it would not be right to return the care of O to her at this stage.  However she urges that O and the father should remain in Jersey, that the amount of access should be increased substantially so as to increase her bond with O and enable her to show whether she is capable of looking after him for longer periods, that some unsupervised access should be allowed and that, in due course, should she prove capable, O should be given back into her care.

47.      We were impressed by the mother's stated determination to adapt and to be a good mother to O.  We have every sympathy with her and fully understand why she wishes O to remain in Jersey.  We make no criticism of her decision not to proceed with the agreement whereby she consented to O going to live in Wales.  But we have to consider what is in O's best interests.  His welfare has to take precedence over the wishes of his parents.  We are in no doubt that the opinion and reasoning of the Children's Service is correct and that it is in O's best interests to move with his father to Wales.  If the Court were to refuse consent, this would lead to a period of instability and uncertainty for O and the father as well as for the mother.  O and the father would have to continue living in Jersey in unsuitable conditions.  Assuming that the Children's Service would agree to increased access as requested by the mother, there would then be a fairly lengthy trial period during which this took place.  We are satisfied that there has to be considerable doubt as to whether, in the foreseeable future, the position would be reached where the Service would consider placing O with the mother rather than the father.  The psychiatric evidence was not encouraging about the mother's ability to change.  The evidence from the psychologist, Mrs Ireland and the adult social worker was more optimistic about the mother's desire to change but they both accepted, as did the mother herself, that she would need considerable ongoing support from the Children's Service and others and that the process would not be easy. 

48.      It follows that, if O and the father were to remain here, there is a real likelihood of a long period of uncertainty before it is known whether O could move to live with the mother.  It would be asking a great deal of the father for him to continue living in unsuitable accommodation separated from his other children and without the support of his extended family simply so that the mother might be given the opportunity of showing that she can cope with O.  Furthermore we consider that there is a considerable risk that the mother would not get to a position where the Service felt that it could return O into her care.  In that event there would have been a substantial period of uncertainty followed by, presumably, a decision at that stage for O and the father to move to Wales. 

49.      Mr Hopwood submitted that a period of a few months would be sufficient to establish whether the mother could succeed in proving herself.  Any period of instability and uncertainty would therefore be comparatively short.  He further submitted that such a period would enable the Children's Service to carry out more detailed enquiries into the position in Wales.  He contended that inadequate enquiries had been made into the prospects of accommodation, the type of accommodation which could be obtained, the level of income, D's character and whether the extended family would in reality give the level of support envisaged. 

50.      The Court questioned Mrs Larbalestier on whether the decision on a move to Wales had to be taken now.  Could the matter be deferred for a few months during which time the progress of the mother's bonding with and care of O could be monitored?  She was firmly of the view that it would not be in O's best interests for this to occur.  Having considered all the material before us, we agree with her.  In our judgment, whilst one can always envisage some further enquiries which could be made, sufficient investigation of the position in Wales has been undertaken by the Children's Service including a visit by Mrs Larbalestier, enquiries of the local authority and meetings with the father's parents and sister.  She also knows D.

51.      In our judgment, to refuse permission, even for a period of a few months, for the father to go with O to Wales, would not be in the best interests of O.  We agree with the Committee that the advantages of an extended family, contact with the father's other children, better accommodation and the ability of the father to stay at home during O's early years all points strongly in favour of a decision to allow O to go. We note the concern expressed on behalf of the mother as to whether the father would be able to adjust to staying at home given that he has always been a hardworking man, but we were impressed with his response to those questions and believe that he has thought the matter through and is willing to do this for his son at any rate until he goes to school.

52.      Conversely, to insist on O and the father remaining in Jersey would lead to a period of considerable uncertainty and instability which would not be in O's best interests.  Such a period might well be lengthy.  We think it unlikely that a period of a few months would resolve matters.  Whilst fully accepting the genuineness of the mother's wish to bond with and develop her ability to care for O, it is clear from the evidence we have heard that it is, to put it at its lowest, very uncertain as to whether the mother will be successful.   On any view she is not capable of doing it on her own and will need very considerable ongoing support from the Children's Service and others.  She has no extended family who are in a position to assist.  Balancing the two situations, we agree with the Committee's view that the balance comes down clearly in favour of permitting O to go to Wales with his father and allowing the Interim Care Order in favour of the Committee to lapse on condition that a Residence Order from the Welsh courts is obtained by the father.  Furthermore we agree that that decision shall be taken now.

53.      We emphasise that such a decision does not end the parental rights and responsibilities of the mother nor should it lead to the end of the relationship.  The agreement originally signed by the parties envisaged at least four occasions of staying access every year with the Committee funding the mother for the first year.  We urge all parties to continue with these arrangements as envisaged and that the mother should be encouraged and assisted by the Committee in regular access to O so that the bond between mother and son can be maintained and enhanced.   Furthermore we would urge that the first access visit should take place much sooner than that envisaged in the agreement, namely September 2004.  We think that that would be too long for the mother to have to wait.   Once a Residence Order is made and the Care Order is discharged, the mother will retain all rights as O's mother and will be able to apply to the Welsh courts on matters of access, residence etc should the need arise.

54.      For the reasons which we have given, we grant consent to the removal of O from the jurisdiction so that he may go to Wales with the father.

Aurthorities.

Children (Jersey) Law 1969