Jersey Unreported Judgments

[2004]JCA197

COURT OF APPEAL

 

 

 

                                                            12^th November, 2004.

 

 

 

 

 

Appeal by the Appellants against the Order of the Royal Court of 15th July, 2004, committing their five children to the care of the Respondent Committee.

 

Advocate V. Stone for the APPELLANTS.

Crown Advocate S. Sharpe for the RESPONDENT.

 

judgment

 

ROKISON JA:

1.        This is an appeal from a decision of the Royal Court dated 15 July 2004, whereby, for the reasons stated in a judgment delivered on 13 August 2004, the Royal Court confirmed an order committing T, L, C, Ca and Th, the children of Mr and Mrs S to the care of the Health and Social Services Committee, Jersey, pursuant to Article 28(1)(b) of the Children (Jersey) Law, 1969.

2.        At the end of a long and careful judgment, the Deputy Bailiff, sitting with Jurats Le Brocq and Georgelin, stated that the Court had reached the reluctant but clear conclusion that for the reasons given the recommendation of the Children's Service to commit the children to care was correct, and that the children's best interests would be served by making the order sought.

The Facts

3.        T is aged 7½, L 6, C and Ca, who are twins, are 5 and Th is aged 3½.  They have been in the care of Social Services since February of this year.  T, L, C and Ca are currently residing in two residential units staffed by dedicated teams.  Th is with a foster carer with whom he was placed when the children were taken into care in February. 

4.        The application for the present order was made so that long term plans for the children could be progressed and with a view to their possible adoption. 

5.        Mrs S has an older daughter from a previous marriage who is aged 15 and currently resides at a Children's Residential Centre.

6.        Mr and Mrs S both suffer from learning disability.  According to a recent report from a consultant psychologist, Mr Berry, which was put before the Court by agreement between the parties, the father has an IQ of 64 and a reading age of 9.3 years and the mother an IQ of 66 and a reading age of 8.2 years.

7.        As recited in the judgment of the Royal Court, the Social Services in Jersey have been involved with the family for a number of years.  Both the Children's Service (which, as the name suggests, primarily looks to the needs of the children) and the Community Network Team (which looks primarily at the needs of the adult parents) have given considerable support, which has increased as the family has grown.

8.        The details are fully summarised in the Judgment of the Royal Court, but included - the allocation of a child care officer of the Children's Service since 1992, the allocation of separate social workers from the Special Needs Division of the Community Network Team for the mother and father, regular visits from a family support worker from the Children's Service and monthly visits from their health visitor. 

9.        Notwithstanding this apparent support, the concerns of the agencies and of the Children's Service in particular, increased.  The sad history is fully set out in the affidavit of Mrs Irene Hansford, a Child Care Officer of the Health and Social Services Committee, who exhibited a considerable volume of contemporaneous records, including minutes of Children's Service meetings relating to the children since 1998, "Contact Sheets" since July 2003, medical records, attendance records and notes from nurseries and schools and the like, the production of which had been ordered by the Royal Court at a Directions Hearing on 14 May 2004. 

10.      The causes for concern were summarised in the formal application by the Children's Service dated 11 May 2004, prepared by Mrs Hansford, as follows:

"Causes for Concern

a.     As early as 1998, resources that were provided to the family and had been agreed, failed as the family did not comply with the arrangements.

b.    Since March 1999 concerns have regularly been expressed by all the agencies involved, with regard to the children's poor presentation, under stimulation and the inadequacy of their general safety and basic care.  Weekly support given to the family, from the Family Centre, the Children's Service Nursery, and the support workers has not been able to improve the home situation in any consistent way.

c.     Information received from School and Nursery have reported that the children have presented often unwashed and wearing soiled clothes, regularly infested with nits, and often smelling of stale urine or body odour.  Their clothes have not always been of a suitable fit.

d.     Reports have been received from health professionals, that Medical appointments have not always been kept for the children.

e.     It has been observed by the agencies involved with the family, that the children's behaviour in the family home is regularly out of control, with no clear consistent boundaries given by the parents.  It has also been observed that mixed or unclear messages are often given; there is a lack of stimulation, and lack of consistent daily routines.  The use of inappropriate language in front of, and to the children, by the parents has been witnessed.  Even Th at his young age has been observed using inappropriate language and in the right context.

f.      It has been regularly observed and addressed with Mr and Mrs S, by Social Services, that there has been a lack of appropriate toys in the house for the children, not always adequate healthy food, lack of bedding on the children's beds, piles of unclean clothes, and serious lack of hygiene in the kitchen, bathroom and toilet.

g.     Attempts have been made by Mr and Mrs S to improve the situation but they appear to have difficulty in sustaining these changes. 

[There is then a reference to 3 child protection investigated incidents occurring during 2003 and reference to the moves in the family residence which it is not necessary to set out.]

11.      With regard to the immediate history leading to the application, on 18 September 2003 a Child Protection Case Conference was convened, attended by representatives of the agencies and both parents following informal meetings in July.  At the meeting it was decided that the children should be placed on the Child Protection Register under the category of "neglect" and that Core Assessments should be undertaken in relation to all 5 children.  Meetings of the Core Group were held in October and December 2003 and January 2004.  On 20 January 2004, the parents were warned that, unless they started to work with the different agencies, the children could end up being taken into care.

12.      On 2 February 2004 the Children's Service received a report from Ms Sandra Jones, the family support worker, of her visit to the family home that morning.  Her note of the visit is set out in the Royal Court's Judgment.  It paints a depressing picture of extreme neglect and reports Mrs S as saying that she had had enough, and was sick of tidying up after the children.  On the same day, Mrs Hansford received a telephone call from the Manager of the nursery school reporting an incident witnessed by the Nursery officer responsible for picking up the children and taking them to school, who reported that T had barricaded himself, C and L, together with the family dog, in the bedroom and that Mrs S had commented that she had had enough of T.

13.      Following these incidents, and what was described as a "crisis" after the temporary separation of Mr and Mrs S, the Children's Services decided to admit the children to care in accordance with their statutory duty under Article 82(1) of the Children (Jersey) Law 1969, together with Mrs S, if she would agree.  The parents' respective social workers then visited the parents individually.  Mrs S ran off before Mrs Hansford could explain the plan fully, and later attended the A & E Department at the Hospital as a result of her emotional state.  Mr S gave to his social worker, Mr Heston, written consent to the children being taken into voluntary care.

14.      On 5 February 2004, a Child Protection Care Conference was held at which an Analysis of the Core Assessments was discussed.  The conclusion of this Analysis is set out in the Judgment and is worth repeating here:   

 "The situation for the children has gradually become more serious, and the support that has been put in over the past 4½ years has yielded no improvement.  As the children have grown older, so the risks have increased and because there are no boundaries in place for them, they are taking more and more control of the day to day situations and taking less notice of their parents.  In September 2003 Jennie and Neil were advised that if the situation for their children did not improve, serious decisions would be made about whether the children could continue to live with them, or whether they should be cared for elsewhere permanently.  This information has been regularly made since that date.  In view of the situation five months on, my recommendation has to be that a full care order is applied for and permanency proceedings are commenced."

15.      On 14 May 2004 the Royal Court made an interim care order which was not opposed by the parents, but they made it clear that they would resist a full care order if application for such an order were made.

16.      The Health and Social Services Committee applied for permanent care orders under Article 27 of the Children (Jersey) Law 1969, the application was opposed by Mr and Mrs S, and the matter came before the Royal Court on 14 July 2004. The order was made, on the basis of the Royal Court's conclusion that the children were in need of care, protection and control within the meaning of Article 27 of the 1969 Law.

The Law

17.      In its Judgment the Royal Court summarised the Case for the Committee and the Case for the Parents in considerable detail before turning to the Law and reaching its decision.

18.      So far as the Law is concerned, it is common ground before the Royal Court and before us, that under Article 28 of the Children (Jersey) Law 1969, the Court may commit the care of a child to any fit person if satisfied that the child is in need of care, protection or control as defined in Article 27 which provides:

"(1)     A child is in need of care, protection or control within the meaning of this Law if he is under the age of 17 years and:- (a) any of the conditions mentioned in paragraph (2) of this Article is satisfied with respect to him, and he is not receiving such care, protection and guidance as a good parent may reasonably be expected to give; or (b) he is beyond the control of his parent or guardian.

(2)       The conditions referred to in sub-paragraph (a) of paragraph (1) of this Article are that:- ... (b) the lack of care, protection or guidance is likely to cause him any unnecessary suffering or seriously to affect his health or proper development ...".

The Decision of the Royal Court

19.      So far as the decision of the Royal Court is concerned, there is little purpose in our reciting the whole of the relevant part of the long Judgment, but we think it right to refer to paragraph 49 in which the Court set out its approach in the following terms:

"To remove children from the care of their parents with a view to their possible adoption is a drastic step to take.  Mrs. Hansford made it clear in evidence that the Children's Service regards such a step as very much a policy of last resort and it is not a step to be taken lightly.  We entirely agree.  Before making a care order, the Court has to be satisfied not only that the statutory requirements set out in the 1969 Law are satisfied but also that there is no better alternative and that the making of such an order is in the best interests of the children.  It can perhaps be summarized in the expression to which Advocate Stone referred us, namely that the Court should not make an order committing the care of children to the Committee unless doing so is better for the children than making no order.  We would be inclined to amend that expression to read 'clearly better'." 

20.      No criticism is made of this approach which this Court fully endorses.

21.      In relation to the evidence of Mrs Hansford, who gave oral evidence before the Court to supplement her affidavits, the Court expressed the view that she was "a reliable and measured witness whose concern was solely as to what was in the best interests of the children".  The Court also referred to the voluminous contemporaneous records and concluded that these amounted to "a compelling case", the essential nature of which the Court had no hesitation in accepting.

22.      Paragraph 50 of the Judgment concludes: 

"It [the Court] finds that the children have been neglected to a serious degree, not through any want of love and affection on the part of the parents nor by any deliberation on their part, but by reason of their inability to exercise the requisite level of parenting skills."

23.      The Court paid due regard to the evidence of the parents and acknowledged that they had a genuine perception that the input of the Social Services had not always been as constructive or as helpful as it might have been.  But, as the Court rightly pointed out, its task was to decide whether the statutory requirements had been fulfilled and whether it was in the best interests of the children to make the care order requested.  In this context, the Court concluded: "even if some of the parents' perceptions are objectively justified, we are quite satisfied that these children are in need of care, protection and control and that the relevant parenting cannot be provided by the parents even with the support of the Children's Service and other agencies".

24.      In referring to the evidence of the consultant psychologist, Mr Berry, to whose report we have already referred above, the Court rightly observed that the issue which the Court had to consider was not whether all parents with a degree of learning difficulty possessed by Mr and Mrs S would necessarily be unable to provide appropriate parenting, but "whether these particular parents are incapable of providing a level of parenting which will provide the necessary care, protection and control of their children".  The Court doubted whether Mr Berry, who based his opinion on 2 meetings with each parent outside the family environment and without any discussion with any of the social workers involved, was able to help to any material degree.  This Court would further observe that Mr Berry's conclusion that in his opinion "Mr and Mrs S have the ability to parent their children at an adequate level with the practical and enabling professional support to which they are entitled at whatever level that has to be to manage 5 children" begs a substantial question as to what degree of support might be necessary and what facilities are available beyond the considerable support which Mr and Mrs S have been given over recent years.

25.      As the Court stated in paragraph 55 of its Judgment: 

"We have carefully considered whether the necessary level of care, protection and guidance could be provided by the parents with an appropriate degree of support from the Children's Service and other agencies.  But we find ourselves agreeing with the Children's Service that this is not a reasonable prospect.  The various  agencies have put an enormous effort into supporting the family over a number of years and this has not been successful". 

26.      In paragraph 56 of its Judgment, the Royal Court expressed itself to be satisfied that the statutory requirements of Article 27(1)(a) and Article 27(2)(b) as set out in paragraph 18 above were satisfied; and that, although not strictly necessary for its decision, Article 27(1)(b) was also satisfied in that the children were beyond the control of their parents.

27.      We conclude our reference to the Judgment by quoting from paragraph 57: 

"Having concluded that the statutory criteria are satisfied, we have then gone on to consider whether it is in the children's best interests to make an order committing them to the care of the Committee.  On the one hand, it is clear to us that the children's well-being and development has been seriously adversely affected by the lack of parental care, protection and guidance.  The improvement in their general development since February 2004, when they were taken into voluntary care, is striking and compelling.  As against that, the making of a care order will seriously affect their relationship with their parents.  Their future, if a care order is made, is to an extent uncertain because it will ultimately depend upon whether they are adopted and, if so, whether their adoptive parents prove to be satisfactory.  One should not under-estimate the importance of the parental bond to the emotional well-being of children."

28.      In paragraph 58, the Court expressed its reluctant but clear conclusion that it was in the best interests of the children that it should make the order sought.

The Role of the Court of Appeal

29.      Before dealing with the further evidence which has been adduced before this Court, and with the grounds of appeal and submissions made in support, it is appropriate to consider the role of an appellate court in this type of case.

30.      In reviewing a decision of the Royal Court which essentially depends upon the exercise of a judicial discretion, it is not the function of the Court of Appeal to review the facts and reach its own conclusion based on the exercise of its own discretion.  It should only interfere with the decision of the Royal Court if it is concluded that this decision was either wrong in law, or wrong in principle, or was plainly wrong.

31.      In the specific context of cases such as that now before this Court, we think it is worth citing part of the speech of Lord Fraser of Tullybelton in expressing the unanimous judgment of the English House of Lords in G-v-G [1985] FLR 894:    

"I entirely reject the contention that appeals in custody cases, or in other cases concerning the welfare of children, are subject to special rules of their own.  The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware.  The main reason is that in most of these cases there is no right answer.  All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.  It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed.  The limited role of the Court of Appeal in such cases was explained by Cumming-Bruce LJ in Clarke-Hunt v Newcombe (1983) 4 FLR 482, where he said, at p. 486:      

'There was not really a right solution; there were two alternative wrong solutions.  The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter.  Whether I would have decided it the same way if I had been in the position of the trial judge I do not know.  I might have taken the same course as the judge and I might not, but I was never in that situation.  I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer?  I emphasize the word "Plainly".  In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.'

That passage, with which I respectfully agree, seems to me exactly in line with the conclusion of Sir John Arnold P in the present case, which I have already quoted.  The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong.  In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Sattherthwaite) v Sattherthwaite [1948] 1 All ER 343 apply.  My attention was called to that case by my noble and learned friend Lord Bridge of Harwich, after the hearing in this appeal. That was an appeal against an order for maintenance payable to a divorced wife.  Asquith LJ said, at p. 345:

'It is, of course, not enough for the wife to establish that this court might, or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.'

I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty."

32.      Lord Fraser's speech was cited and the principles stated applied in this Court in the case of Laugee-v-Laugee (née Joshi) [1990] JLR 236.  In delivering the judgment of the Court, Machin JA said at page 244: 

"We have included this long and authoritative passage within our judgment because we were not referred to this authority by either advocate who appeared before us and it seems to us, therefore, to be necessary that the relevant principles should be re-stated, since in our view they clearly apply equally to the exercise by this court of its function in reviewing the discretion of an inferior Jersey tribunal."

33.      We venture to add that these principles particularly apply in a case in this jurisdiction which raises what are essentially social rather than legal problems and where the Royal Court has the benefit of the local knowledge and experience of its lay members, the Jurats.

The New Evidence

34.      We first of all consider the new evidence that has been put before this Court on behalf of the Appellants without objection from the Respondent, and which has been dealt with to some extent by further evidence from the Respondent.

35.      This consists first of 2 letters dated 7 September 2004 from Ms Mary Assumpta Finn, Team Manager in Community Support Services - one written to Mr S and one to Mrs S concerning complaints which each of the parents had raised against their respective social workers, Mr Paul Heston and Ms Lynn Blade. 

36.      In these letters Ms Finn expressed the view that there appeared to have been no assessment as to the level of support which each of the parents would have required to be an adequate parent, and concluded (without any specificity) that Mr Heston's "empathy" clearly fell short of what any parents with special needs should expect.  In each case, she offered an apology stating that the complaint had been "partially upheld".

37.      In response to a letter dated 6 October 2004 from Advocate Stone asking further specific questions and seeking clarification, Ms Finn swore an affidavit, and an affidavit was sworn by her Service Manager, Mr Christopher Dunne, from which it appeared that Ms Finn had only recently been appointed as Team Manager for the Community Support Services for Special Needs and had exceeded her authority in writing the letters without reference to Mr Dunne.  Ms Finn admits in her further affidavit that not only did she not submit her findings to Mr Dunne before writing to Mr and Mrs S, but she did not make contact with the Children's Service, and that in consequence, in carrying out her investigation, there were "errors in the process".   She confirms in her affidavit that both Mr Heston and Ms Blade were qualified social workers with considerable experience of working with people with learning disabilities (a point confirmed with relevant details by Mr Dunne).

38.      Mr Dunne's affidavit not only deals with the complaints of Mr and Mrs S in considerably more detail, but also makes the point that, in relation to Ms Finn's evidence of the lack of any previous comprehensive assessment, the initial investigation by Ms Finn only reviewed information kept on the Community Network Team files (a team which offers support to both Mr and Mrs S as adults in their own right) but the Children's Service files, which Ms Finn did not review, hold the comprehensive assessment information of the whole family, details of the direct support provided regarding the welfare of the children and joint work carried out between the Children's and Special Needs Service working with the family as a whole.

39.      The Court was also referred to a Report dated 19 October 2004 from Ms Sarah Michaels, the social worker allocated to assist Mr and Mrs S and provide continuity of support pending the investigation into their complaints against Mr Heston and Ms Blade, and who recommended, in relation to Mrs S a further assessment with regard to a number of specific issues and in the case of both parents a referral to occupational therapy to assess cognitive levels, ability to plan, daily living skills and highlight areas for future planning i.e. support.

40.      We consider the impact of the evidence of Ms Finn and Ms Michaels below in the context of the grounds of appeal.

41.      The Respondent put before the Court the further affidavit of Mrs Hansford, sworn on 1 November 2004, which appends up to date school reports on the progress of the children since being taken into care, and copy minutes of a Child in Care Review on 1 October 2004, both of which demonstrate significant continuing improvement in the behaviour and social development of the children.

42.      Her affidavit concludes:   

"I have never doubted that Mr and Mrs S love their children and they have not deliberately neglected them or treated them with cruelty.  However, love is not enough and Mr and Mrs S have demonstrated over the years, particularly as each new child was born, that they are not capable of meeting the multiple needs of the children.  Despite enormous input in the way of support to this family, the Children's Service failed to keep the family intact and despite the support, there was no real evidence of improvement and as the children grew older, so the risks increased.

I can only repeat my evidence before the Royal Court on 14th July 2004 and the contents of my two affidavits presented on that occasion.  It remains my opinion that it would not be in the children's interests either to remain subject to interim care orders or to be returned to their parents.  The former would mean an uncertain future and the latter would be returning the children to a situation which had been assessed as unsafe.  It is now time for an end to litigation and an opportunity for the Children's Service to commence permanent future planning for the welfare of these children."

43.      Although it may be said that Mrs Hansford is there expressing an opinion on a question which is ultimately for this Court, it is an opinion which in our view should carry considerable weight.

The Grounds of Appeal

44.      The Appellants came before this Court seeking the discharge of the permanent care orders in relation to all 5 children and seek the progressive return of the children to their care with the co-operation of the Respondent and other agencies.  Alternatively, they seek to have the case remitted to the Royal Court for re-consideration after a comprehensive assessment of Mr and Mrs S.

45.      Turning to the grounds of appeal, Advocate Stone for the Appellants puts forward 7 grounds which we shall deal with in order:

1   The Royal Court wrongly applied the Law to the facts in finding that the statutory requirements set out in Articles 27-31 of the Act were satisfied:  

On analysis, this is no more than an assertion that the Royal Court reached the wrong conclusions on the facts.

In effect, 5 points are made: 

(i)        that the Court was wrong to find that Article 27(1)(b) of the Act (that the children were beyond the control of their parents) was satisfied, since it was only at the end of its closing submission that the Respondent sought to rely on Article 27(1)(b), its case up to that point being solely advanced under Article 27(1)(a) and Article 27(2)(b);

(ii)       that in considering whether the Appellants were or were not providing such care, protection or guidance as a good parent may reasonably be expected to give, the Court should necessarily have compared the Appellants to parents with similar learning difficulties;

(iii)      that in any event the lack of care, protection or guidance was not likely to cause the children unnecessary suffering or seriously affect their health or proper development since the lack of care, protection or guidance could have been addressed and remedied;

(iv)      that the Royal Court failed to give sufficient weight to the ample evidence suggesting that the Appellants could look after their children at an adequate level if provided with the level of assistance required: this is an issue of resources and funding and children should not be removed from their parents on the basis that there is no funding available to provide such assistance as is necessary;

(v)       that for the Respondent to do so would infringe both the parents' and children's rights to respect for their family life in breach of Article 8 of the European Convention on Human Rights.

We reject this ground of appeal.

46.      As to (i) we consider that there was ample evidence upon which the Royal Court could conclude that the children were no longer in the control of their parents.  As the Respondent at all times made clear, the principal basis of its application was that the children were in need of care, protection and control because of the inability of Mr and Mrs S to meet those needs over a long period of time.  It must be inferred that if the children were indeed in need of care, protection and control, that the necessary control was lacking.  The Respondent's reliance on Article 27(1)(b) was part of what was described as an overall picture of neglect.  The Respondent rightly draws attention in its response to Mrs Hansford's evidence that "it is the combination of all the things that we have, that just don't seem to be being addressed no matter what support we put in". 

47.      As to (ii), whilst the Court should no doubt consider any physical or other handicap of the parents and how these might be overcome, the question remains, at the end of the day, whether the Appellants were or were not providing the care, protection and guidance which good parents may reasonably be expected to give.  As Advocate Stone accepted, this must be an objective test.

48.      As to (iii), the Royal Court was plainly not satisfied, and we are not satisfied, that the lack of care, protection and guidance demonstrated in this case could have been addressed and remedied.  It persisted notwithstanding strenuous efforts on the part of Social Services over several years - indeed, on the evidence before the Court, the situation continued to deteriorate rather than improve - resulting in the children's admission into voluntary care in February 2004.  Advocate Stone referred in her written submission to this Court to the conclusion of a meeting of child care professionals with the Manager of the Nursery in February 2002 which stated: " ... everyone acknowledged that J and N can undertake the necessary  parenting and welfare ..." but this conclusion is expressly subject to an important qualification " ... but they need constant support/reminders to sustain and professionals are not in a position to provide this".  She also referred to the evidence of Mrs Hansford, who stated " ... it demonstrates that they can provide their children with the right parenting ..." but Mrs Hansford added " ... over the years we have seen that it is not consistent".  She also relied on and appeared to accept the submission of the Respondent before the Royal Court that "in order to ensure the necessary level of parenting the support to be given by the Children's Service would have to include being present morning and evening every day.  That was not practicable".

49.      As to (iv), it is plain that the Respondent has not been motivated at any time by financial considerations.  The additional expense of taking the children into care has been considerable.  Figures are set out in the Respondent's response showing that whilst the Social Services were providing support for the family in the family environment, the average cost was £780 per week, but following the children's reception into care, this has increased to nearly £5,000 per week.  Quite apart from financial considerations, human resources available to Social Services are not limitless, and the evidence suggested that the level of assistance to enable the necessary care, protection and guidance to be provided in the family environment would have meant, in effect, that both children and parents would have been "taken into care".

50.      Lastly, we regard the suggestion that the decision to take the children into care in their own best interests in accordance with the provisions of the Jersey law, constituted a breach of the Human Rights Convention as misconceived.  Leaving aside the technical point that the European Human Rights Convention is not part of Jersey law, regard must be had to the human rights of the children to a "family life", and under Article 8.2 interference in the rights to respect for an individual's private and family life may be justified for the protection of the rights of others.

2    The Royal Court wrongly failed to consider alternatives to the making of a care order in relation to all 5 children, such as shared care with family members, or a care order in relation to some of the children only, or a temporary care order.

51.      As is stated in the Respondent's response, the Children's Service did consider the alternative of shared care, but no realistic or sufficient offer from other family members was forthcoming.  The offer by Mr S's mother to take one or possibly two of the children one night a week would clearly not have ameliorated the situation to a significant degree.  This Court was at one stage attracted by the possibility of limiting the care order to some of the children only, so that, perhaps, one or two of the children might return to their parents with or without the assistance of other family members, at least for a period of time to see how they would respond.  But, as the Respondent pointed out, the Committee had taken the children into care pursuant to its statutory duty, and all the children were suffering from an equivalent lack of parental care, protection and control. It may be that Mr and Mrs S would have been able to cope more adequately with a smaller family but, in the view of Social Services, to opt for one or other of the alternative solutions proposed by the Appellants would not only have involved making invidious choices between the children, but would have prolonged the uncertainty with no real prospect of success, while the prospect of finding suitable adoptive parents would inevitably decrease as the children get older.  As Advocate Sharpe put it in her oral submissions to this Court, it would be tragic if one or two returned and it did not work out so that they would be "back next week".

52.      This case is unfortunately not like the case of Re C & B [2001] 1 FLR 611 before the English Court of Appeal, where the obligation on the relevant authority to take time to explore other options was expressed to be "where there were no long standing problems of the sort which interfere with the capacity to provide adequate parenting".  In the view of this Court, this case is a prime example of a situation where a difficult choice had and has to be made.  The Royal Court did not have an easy task, as it accepted, and it had to determine what was the least unsatisfactory solution with the benefit of the expert opinions received.  This Court cannot say that the Royal Court's decision in this regard was wrong.

3    The Royal Court wrongly placed too much weight on the evidence of Mrs Hansford.

53.      Insofar as the Appellants suggest that the Social Services should have provided more than one witness to give oral evidence, we disagree.  Mrs Hansford was in our view the appropriate witness, having been closely involved with the family over many years.  Furthermore, she produced a substantial body of documentary evidence upon which the Court could make its decision.  Advocate Stone criticised the fact that only the Analysis of the Core Assessment was produced rather than the whole document, and criticised the degree of detail in the Minutes of the Child in Care Review on 1 October 2004 (which were not, of course, before the Royal Court).  But in our view, it was perfectly reasonable and certainly not wrong for the Royal Court to place the reliance it did on Mrs Hansford's statements concerning the relevant facts and on the opinions which she expressed.  In our view there was more than sufficient evidence before the Court upon which it could make the decision it did.

4    The Royal Court wrongly failed to give weight to the detrimental effect the poor relationship between the Respondent and the Appellants over a number of years had on the parents' ability to care for their children.

54.      We do not accept that the evidence points to there having been a "poor relationship" between the Respondent and the Appellants over a number of years. 

55.      Inevitably, parents in the situation of Mr and Mrs S would suffer periods of frustration and distress, and it is understandable that they did so in particular when their children were taken into voluntary care in February 2004, and when relations with their individual social workers went through a difficult period, leading to the complaints to which we have referred.

56.      But in our view the evidence as a whole demonstrates what can only be described as "extraordinary" efforts on the part of those individuals from the Social Services who were concerned with the assistance to the parents as well as the care and protection of the children, and that on the whole relations between the parents and Social Services were good.

57.      Nor do we accept that the relationship between Mr and Mrs S and the Social Services did have a detrimental effect on the parents' ability to care for their children.  We accept that the personal relationship between the parents and those providing assistance from the Social Services is important, but, whilst we understand the real frustrations and indeed sadness of Mr and Mrs S who feel that they are being punished for something which is not their fault, we think it unfortunate that they or their advisers seek to place the blame for their short-comings on the professionals who have made such efforts over the years to help.  Their perception that from time to time what was being offered as help constituted interference and that they were not always treated with the respect they deserved, may be understandable, but this Court has reached the clear conclusion that the parents' inability to translate their undoubted love and affection for their children into adequate care, protection and control was in spite of, rather than because of, the involvement of Social Services.

5    The Royal Court wrongly failed to give weight to, or wrongly denied [sic] to make any findings as to, the Respondent's and other agencies' failure to properly or at all assess the difficulties and the needs of the Appellants, which failure translated into inadequate help being offered to the Appellants and further wrongly failed to find that had this failure not taken place, the Appellants' ability to care for their children would not have been questioned.

58.      Advocate Stone described this as the main ground of appeal. 

59.      The essence of the complaint is that, while the Children's Service may have assessed the needs of the children, as for example, by the Core Assessments carried out between September 2003 and February 2004, there was no comprehensive assessment carried out specifically in relation to Mr and Mrs S as parents - to assess their short-comings, the causes of those short-comings, and to develop a plan to deal with them.

60.      In this respect, Advocate Stone relied strongly on the statement by Ms Finn in her letters to Mr and Mrs S of 7 September 2004 that in both cases there appears to have been no assessment of their level of disability and the consequent level of support required.   The reference in Ms Finn's letter to the need for a Core Assessment is somewhat misleading.  As stated above, there was in this case a thorough Core Assessment dealing with the overall needs of the family as a whole, and that, as Mr Dunne states in his affidavit the Children's Service files which Ms Finn did not review held the comprehensive assessment information on the whole family, including details of the support provided to the parents in relation to the welfare of their children, and the joint work carried out between the Children's and Special Needs Services working with the family as a whole.

61.      Advocate Stone relied on what she suggested was a somewhat belated assessment carried out by Ms Sarah Michaels, but as Advocate Sharpe explained, this was produced not as a consequence of some appreciation that an assessment of Mr and Mrs S's short-comings and needs was overdue but as a routine when a new social worker was allocated.  It was, as Advocate Sharpe pointed out and as its content confirmed, an assessment of Mr and Mrs S's needs in their current state with their children in care, and not an assessment of their short-comings in parenting ability.

62.      Advocate Sharpe accepted that there is no single document which can be identified as being a comprehensive assessment of Mr and Mrs S's short-comings in parenting ability and what should be done to address them but, as she emphasised, Mrs S and subsequently Mr S have had the assistance and guidance of social workers for several years and the Children's Service has been involved with the family for several years.  As she submits, the most informative assessment must be that carried out in the home environment, advising and observing Mr and Mrs S's parenting abilities in practice (what she described as "hands on" experience of what the parents were capable of) and that such assessment was being carried out continually.

63.      As Mr Berry's Report illustrates, a psychological analysis carried out outside the family environment is not particularly helpful or informative. 

64.      Advocate Stone, relying on the House of Lords authority of Re S and Re W 2002 1 FLR 815 submitted that it would be a breach of Article 8 of the European Convention of Human Rights for an authority to seek or a court to grant an order for commitment of a child into care without having carried out the sort of assessment required by the English Children Act 1989, but again, quite apart from the question of the applicability of the terms of the Convention in Jersey in our view a sufficient assessment by the Social Services was made of the ability of the parents to fulfil their function as such.

6  The Royal Court wrongly failed to consider or give due weight to what practical/additional support the Appellants could be offered to assist in the care of the children.

65.      This ground does not in our view raise anything which we have not considered under the other grounds of appeal above.

7    The Royal Court failed to place sufficient weight on the evidence of Mr Berry.

66.      This is another matter with which we have already dealt to some extent.  Mr Berry made his report on the basis of 2 interviews with each parent - one jointly and one separately.  He did not see the parents in the family environment, he did not consult with Social Services, and although he records that he was provided with certain documents, it is not clear to what extent he studied those documents or was fully informed as to the family history.

67.      Mr Berry in his Report, states that it is focussed upon the apparent change in the ability of Mr and Mrs S to translate their love for their children into effective parenting at an acceptable level.  It is not abundantly clear whether Mr Berry is referring to an apparent deterioration or improvement in this respect.

68.      In particular, the Appellants point to Mr Berry's opinion expressed in his oral evidence before the Royal Court to the effect that, as children grow older, they develop their conceptual abilities and communication skills and there is a possibility that control of the children could get easier.  No doubt much will depend on the individual children, whom Mr Berry did not see, and on their ages, and one must bear in mind that in this case the Court is considering a family of children who are still very young.  As children grow up, their needs in terms of care, protection and control may change, but general experience would surely suggest that if children are assessed by professional social workers as being beyond their parents' control at the age of say, 6 or 7, it is perhaps not surprising that Mr Berry was not prepared to express in terms of "probability" the prospects of this situation improving as these children get older.

69.      Again, in this context, emphasis is placed by the Appellants on the short-comings of the advice and assistance they received, seeking, in effect, to put the blame for their short-comings on others.   But this Court is not concerned to judge the conduct of Social Services.  Our task is to consider whether the Royal Court was plainly wrong in its conclusion that the requirements of Articles 27 - 31 of the Children (Jersey) Law have been satisfied, and that in all the circumstances it was right to confirm the placing of these 5 children into care.

8    The Royal Court wrongly decided it was in the children's best interest that a care order be made in respect of the children and that the order of the Royal Court was wrong.

70.      This is, on analysis, what this appeal is all about.

Decision

71.      Having considered the evidence carefully and having considered the judgment of the Royal Court against the background of that evidence, this Court shares the reluctance expressed by the Royal Court, but is unable to conclude that its decision was wrong, let alone plainly wrong on the alleged or any grounds.

72.      For these reasons, this Court has no alternative but to dismiss the appeal, but in so doing we not only acknowledge our appreciation for the assistance which we have received from the Advocates on both sides, and in particular add our tribute to that of the Royal Court for the dedication and industry of Advocate Stone who said everything that could possibly be said on behalf of the parents, but we express our genuine sympathy to Mr and Mrs S for the sadness and disappointment which this decision, taken in what we perceive to be the best interests of their children, will no doubt cause to them.

THE PRESIDENT:  I agree and have nothing to add.

CLARKE JA:  I also agree.

Authorities

Children (Jersey) Law 1969.

Re TS, LS, CS, CaS, ThS.  [2004] JRC 141

Mayo Associates-v-Cantrade Private Bank Switzerland [1998] JLR 173.

R.S.C (1999) Order 59; Rule 10.

European Convention on Human Rights: Article 8.

Re S and Re W 2002 1 FLR 815

Re C & B [2001] 1 FLR 611

Laugee-v-Laugee (née Joshi) [1990] JLR 236.

Le Blancq and Le Blancq-v-Education Committee [1986] JLR 249.

Framework for Assessment of Children in Need and their Families (London: Stationery Office): Appendix D.

G-v-G [1985] FLR 894.