The Children X Case: Some Background History
The case before the Royal Court today is about two children and the neglect of the States in respect of how to care for them. As the JEP reported earlier in June:
“Plaintiff Two, who is currently sectioned in a UK facility, and Plaintiff Three, who lives in a ‘highly supported’ environment, are suing the Health Minister for a total of £238 million in what is believed to be the largest personal injury claim in British legal history. The siblings claim that they will never recover from the abuse they sustained while living in the family home.
The Health Minister has accepted that the pair should have been placed into care sooner, but disputes the amount in damages the plaintiffs are seeking and instead believes a total of £14.5 million should be awarded.”
Before looking back to the origins of the case, for which publically available documentary evidence is sparse anyway, it is worth taking a look at the more immediate past, and in particular what happened around the end of 2008 and 2009, under the two Health Ministers at the time, Senator Ben Shenton and Senator Jim Perchard, and under the aegis of Chief Office Mike Pollard.
The Court Judgement is in the public domain for 27 March 2009 and paints a sorry picture in which considerations of finance seem to have played their part, and in which also too much optimism was placed on Jersey being able to supply similar support - and thereby also save money, even though that structure was not actually in place at the time. There also is an extraordinary matter of a Minister delegating a decision to his Chief Officer, and not as one might expect, an Assistant Minister.
The Ministers - and in particular the first Minister involved - as well as his Chief Officer and the other members of the top echelon making decisions do not, in my view, come out of this at all well, and the only person who seems to have had the children's welfare at heart in Social Services was Tony Le Sueur, whose work to try and secure a UK placement was dismissed in a manner that seems almost out of hand.
While this does not form the original grounds for the action being taken today, it almost certainly contributed to further delays in a proper placement, which must surely be taken into account today.
The History of the Matter
On 27th March 2009, the case was heard of The X Children (by their Guardian ad litem Advocate Timothy Hanson) and The Minister for Health and Social Services, who was Senator Jim Perchard. This was the history of events which was unfolded before the Court.
On 2nd October 2008 a meeting took place between Ms Jemma Waugh, a social worker who had recently taken over responsibility for the family, Mr Butterfield and Dr Bryn Williams, Consultant Clinical Psychologist, to discuss placement options for the X Children. The unanimous view of the group was that each child required a highly specialised therapeutic package of residential care that was not currently available in Jersey.
Although it is clear that the brakes were applied to the planning activities of the professional team in early November 2008, it is not easy to ascertain how or by whom that deceleration was directed. It seems that on 5th November 2008 the Head of the Children’s Service, Mr Anthony Le Sueur, was notified by e-mail from the Finance Director of the H&SS Department that:-
“the level of funding to place these children into a UK placement as is being proposed is not available”.
The Finance Director warned that the Department must live within the resources allocated to it, or risk breaching the Public Finances (Jersey) Law 2005.
On 7th November a meeting took place at which the Minister, then Senator Shenton, was informed that the money for the placements could not be found from within existing resources, but that the Department supported the move threatened by Mr Hanson to seek a Judicial Review of the decision not to provide resources for the placements. The minute records that the Minister was concerned that the court might have power to instruct an action that would lead to a major departmental overspend.
Efforts were subsequently made by Mr Hanson to meet the Minister in order to discuss the difficulties. On 13th November an application for Judicial Review was filed with the Bailiff’s Chambers. On 17th November Senator Shenton agreed to a meeting which was scheduled for the following day. A full note was prepared for him by Mr Hanson’s office. On 18th November the Minister cancelled the meeting.
On 20th November Mr Anthony Le Sueur filed a statement in the proceedings before the Family Division. Mr Le Sueur explained that, if the Children’s Service did not have sufficient funds available in their budget for particular placements (as was the case here) he would make a submission to the Health and Social Services Placement Panel. His submission would be accompanied by a business case. The Placement Panel, if minded to support it, would refer the submission on to the senior management team (“SMT”) consisting of the Chief Executive, Deputy Chief Executive, Executive Directors and Directorate Managers. If the decision was favourable, the Minister would be informed, and he would request the Treasury and Resources Minister to lodge a proposal before the States seeking additional funding.
It is important to note that the professional team (i.e. those working for and within the Children’s Service) remained convinced that the best and only suitable placements for the X Children lay outside the Island. A business case in support of that aim was developed and was to be considered by the Placement Panel on 15th December.
The Assistant Legal Adviser replied immediately to state that neither the Guardian nor his legal advisers were invited to attend the meeting of the Placement Panel. The opportunity given was only to make written representations. Mr Hanson’s firm protested, but to no avail
The meeting of the Placement Panel duly took place. Those present were Mr Richard Jouault (Deputy Chief Executive), Mrs Marnie Baudains (Directorate Manager for Social Services), Mr Ian Dyer (Directorate Manager for Mental Health Services), Dr Richard Lane (Medical Director), Ms Rose Naylor (Director of Nursing Governance), Mr John Cox (Service Manager, Adult Services), and Ms Sarah Purgal (Deputy Finance Director). Mr Anthony Le Sueur, Manager of the Childrens Service, made his presentation.
The recommendation of the business plan presented by Mr Le Sueur was that the only option able to meet the needs of the X Children within a reasonable time scale was that involving placements outside the Island.
“After deliberation, and giving due regard to the needs of each individual child, the views expressed by professionals including the Guardian, the risks imposed by both alternatives, and the costs involved IT WAS RESOLVED that the Panel would make a recommendation to SMT that local provision be established for the 3 eldest children, it being determined that this is the most sustainable long term solution. “
On 16th December 2008 the SMT of twelve senior departmental officials convened under the chairmanship of Mr Pollard, Chief Executive. Mr Jouault, who had chaired the meeting of the Placement Panel on 15th December was amongst those present. The opening part of the minutes record:-
“The background of the case was summarised and the consideration of the most appropriate placement of the 3 older children from this family along with the outcome of the Placement Panel Meeting of 15th December 2008. One option recommended by the Guardian ad Litem, is the placement of each child for therapy in UK specialist centres.
This option would cost approximately £750,000 per annum, which, if paid for by HSSD, would represent a significant overspend for the Department. MP pointed that this would be an illegal action. The Royal Court has requested that HSSD agree an appropriately funded care plan for each child by Friday 19th December 2008. Failure to produce a plan which is acceptable to the court may lead to a Judicial Review.”
The meeting discussed the issues for thirty minutes (according to the minutes) and agreed with the conclusions of the Placement Panel.
Later the same day, 16th December 2008, the newly appointed Minister of Health and Social Services, Senator Perchard received a briefing from Mr Jouault on the outcome of the meeting of the Placement Panel which had been endorsed by the SMT. In the light of his impending departure from the Island on holiday, the Minister delegated his powers to make a final decision to Mr Pollard, the Chief Executive.
On 19th December Mr Pollard considered the whole matter in the exercise of the powers delegated by the Minister. His initial consideration involved a reading of the Ministers brief which included the relevant provisions of the Children Law, a letter from Mr Robert Tucker, an independent social work consultant dated 31st March 2008, the report of Dr Silver dated 6th June 2008, the report of Mr Butterfield dated 22nd July 2008, and the report of Ms Carol Milnes, chartered educational psychologist dated 3rd July 2008, together with other documents placed before the Placement Panel on 15th December.
Mr Pollard met with a number of officials during the morning and then retired to read or to re-read the report of the Guardian. Later that day the meeting reconvened, and Mr Pollard made his decision. The decision summary records the reasons for the decision as being:-
“After due consideration of all information and opinion outlined in the report and in particular the submission of the Guardian ad Litem, the Chief Officer supports the opinion that the development and provision of local services as recommended by the Placement Panel at its meeting of the 15th December 2008, is in the best long term interests of the family”.
The initial application by Mr Hanson was made on 25th November 2008 to the Bailiff sitting in Chambers. Notice of the application was given to the Minister. After an inter partes hearing the Bailiff adjourned the application to 23rd December 2008 on the ground that he was not satisfied that there had been a decision which was amendable to judicial review. He indicated that the Minister should make a definitive decision no later than 19th December 2008 in default of which he would be likely to assume that funding for placements in the United Kingdom had been refused, and proceed accordingly.
The Minister did make a definitive decision on 19th December refusing to approve the specialist residential placements for the children.
Mr Hanson submitted that the Minister, acting through Mr Pollard, had acted unfairly by excluding the Guardian and his legal adviser from the meeting on 19th December 2008 at which the decision was ultimately taken. Mr Pollard gave evidence that he did not want to be lobbied by the Guardian; he was prepared to take, and did take, the written representations of the Guardian into account but he was not willing to offer an oral hearing. He had many such difficult decisions to take, and it was not practical, in effect, to contemplate an oral quasi-judicial hearing on every such occasion.
If the court were being asked to determine whether or not the Guardian should have been permitted to attend the meeting of the Placement Panel on 15th December 2008, we should have been inclined to the view that he should. The Guardian is appointed to protect the interests of the children and the Minister has a duty under Article 19 to give due consideration to the Guardian’s views. The notice of a few hours given to the Guardian to make written representations was impossibly short and wholly inadequate.
There seems to be no good reason why the Guardian and his legal adviser should not have been permitted to articulate their views to the Panel as they considered the different available options. Indeed Mr Pollard told us that if the matter had been brought to his attention, he would have over-ruled objections from the Panel and permitted the Guardian to attend. We think that Mr Pollard was entirely right to make that concession.
This element of the Minister’s actions in relation to the decision making process did trouble us greatly. The Department was considering, in the context of how best to deal with the problems of the X Children, wider issues of child protection policy following a report dated June 2008 prepared by Mr William Andrew Williamson. A plan has been drawn up (“the Williamson Implementation Plan”) to implement a number of the report’s recommendations. A degree of unnecessary secrecy seems to have enveloped this plan, certainly prior to the decision of 19th December 2008. The minutes of the SMT meeting early on 19th December record:-
“MP [Mr Pollard] asked whether any of the professionals who had been asked to submit comment regarding the case were aware of the detail of the Williamson Implementation Plan particularly with regard to recommendations 7 and 8. It was confirmed that only the Minister, very senior members of the H&SS and independent experts such as Professor June Thoburn and Andrew Williamson himself had seen the report to date”.
Mr Pollard was cross examined as to why he had not taken greater note of the views of Dr Silver and the other professionals. He replied that he was “aware of a number of significant investments that were likely to be made in Children’s Services... The Andrew Williamson recommendations, which were known to me but were not known to either Dr Silver or to the professionals that you mentioned at the time. Those were pieces of important information that were kept very close to myself and a number of other very senior [officials]”.
We appreciate that the evolving plan to implement the Williamson Report constituted confidential information which it would not have been helpful to place in the public domain at that time. We see no reason, however, why the information could not have been shared in confidence with the Guardian and his legal adviser. It was important to the decision-making process in relation to which the guardian should have been permitted to contribute informed views. We considered whether we should strike down the decision of 19th December 2008 on this basis but have concluded on balance that it would not be in the interests of the X Children to do so for all the reasons that follow.
However, as we shall see, this was not the end of the matter, and Advocate Hanson was not minded to let the matter rest.