The Proposition
By this time, Senator Perchard had resigned as Health Minister on 15 April, 2009 and by the time of the debate, Deputy Anne Pryke had taken over as Health Minister.
The substance of the Deputy's proposition was
"(a) to request the Minister for Health and Social Services to take the necessary steps to ensure that the X children are moved as soon as possible to the United Kingdom placements that have been identified as suitable for them; and "
"(b) to request the Minister for Treasury and Resources to assess whether the funding required for these placements can be identified through the reprioritisation of existing heads of expenditure and, if not, to further request the Minister to bring forward for approval a request under Article 11(8) of the Public Finances (Jersey) Law 2005 for the necessary additional funding to meet the cost of these payments in 2009 in view of their urgency and to then make appropriate provision in future Annual Business Plans to meet the on-going annual cost. "
Le Claire's proposition addressed the failings of the system in 1999 when the case began, and went on to look at the failings of the Ministerial decisions against a UK placement.
The proposition noted that:
"The children who are the subject of this proposition are currently in the care of the Minister. All the professionals involved in their care in Jersey, and experts from England who have assessed them, have expressed the view that their needs will best be met by specialist therapeutic residential placements in England. This is also the view expressed by the Royal Court on 27th April 2009. "
"Care proceedings were first instituted in 1999 in respect of these children because there were real concerns that their parents could not care for them. The system failed the children in the essential period 1999–2000 and thereafter. It then took some 9 years for the children to be taken into care, by which time the children had suffered years of abuse and neglect. A Serious Case Review has now been instituted in response to allegations of multiagency failures by the States of Jersey. They now rank as the most damaged children in Jersey and also in the top tier of all such children in England. "
"The children have been neglected to a significant degree over the whole of their lives, their birth family not being able to care for them properly, largely due to problems in their parents’ own backgrounds. In addition to chronic neglect over many years the children have suffered sexual abuse to a quite horrific extent. This abuse is likely to have been committed by different adults at different times. "
"Despite the overwhelming view that the children need to be placed in the UK placements, on 19th December 2008, the Minister for Health and Social Services (through delegated powers to his Chief Officer Mike Pollard), decided not to place the children in the UK, but to pursue a Jersey option of hastily arranged units, using staff from existing residential children’s homes in Jersey, and redeploying a child psychologist from CAMHS to train staff and develop the units. "
"The independent experts (Dr. Silver, the clinical child psychologist who prepared the substantive report on the children, and the children’s guardian) are firmly of the view that the proposed new units will not be able to meet the children’s needs within timescales suitable for their recovery. Such units will take at least 18 months to 2 years to be sufficiently established to treat children as damaged as these, and probably not even then. "
"It is presently unclear exactly what the costs of the proposed Jersey provision will be. The information provided is incomplete, and does not include the cost of education, which is borne by another budget. There will be very significant manpower implications, and more psychologists and residential children’s home workers will need to be recruited and trained. "
"The decision of the Minister on 19th December 2008 not to agree to the placement of the children in the UK was subject to an application for judicial review. This application was dismissed by the Royal Court on 12th March, with reasons provided in a judgment handed down on 26th March 2009. That decision was appealed, and on 8th April 2009 the Court of Appeal overturned the decision of the Royal Court and quashed the decision of the Minister. "
"It is difficult to understand why no applications were made to the Treasury for funding before 19th December or at any time thereafter. If they were, when were they? And why was the funding not approved?"
"Why was a managed option within the system that had failed them so badly believed to be sufficient, when it is recognised that within the whole of the UK there are only a handful of units available to handle children subject to this level of abuse and so badly damaged?"
"Why did Jersey believe it could manage when the independent expert identified the children as being as badly abused as the top 3-5 children out of 650 children in her care for the whole of Northamptonshire? "
"Why then, when it is recognised that unless these children receive immediate care of the highest quality are we still waiting for a Ministerial decision?"
"The reality is that after years of Jersey management and care these children are worse off than when they were first brought to our attention as politicians by the Children’s Services in 1999. "
"Any Jersey system will take years to get into place with the properly resourced and trained staff. It may be that the Jersey unit in any event will never be fully equipped or funded to handle this level of abused children and we must acknowledge that there will be a risk to our own staff in exposing them to the level of caring that is required. It is likely that the staff themselves may become emotionally and psychologically affected "
The Debate
By the time of the debate, the Court of Appeal had met on 5th May 2009 to consider the Royal Court’s rejection of a judicial review of the decisions taken by the former Health Ministers, and the Court concluded: “these procedural flaws in the process resulted in unfairness and accordingly we quashed the decision”.
But before this, Senator Perchard had resigned on 15 April, 2009 and by the end of the month Anne Pryke had taken up the role of Health Minister.
A sea change had taken place in the States. Instead of a closed door, Deputy Le Claire now found support for his proposition.
Just before the proposition, on 12 May 2009, Senator Alan Breckon, Chairman, Health, Social Security and Housing Scrutiny Panel said:
“The sub-panel is supportive of providing funding for family X for the appropriate level of care and support in the United Kingdom and believes that the most transparent way is as contained in the projet of Deputy Paul Le Claire of St. Helier.”
Deputy Le Claire commented that:
“The part of my proposition in (b) makes the States decision to request the Minister for Treasury and Resources to bring forward a proposition, but most importantly it makes the States decision not an agreement behind closed doors or from emails, but it makes a decision to make appropriate provision in future Annual Business Plans to meet the ongoing annual costs and that would be a States decision”
This was significant because it would provide ongoing funding. And there was also a change of direction by the new Minister for Health, Anne Pryke who said:
“The most important thing is that I have made this decision regarding this Family X. They need to go to the U.K. for treatment. That is my priority. Not only for this year, but if I start a job then they need to make sure that they have proper funding for this year and for the following years”
This was indeed a change from the previous two health Ministers. Senator Shenton had rejected a UK placement, and his successor, Senator Perchard had also endorsed that position.
And Deputy Le Claire read out a letter from the children’s guardian:
““Dear States Member, Proposition. Deputy Paul Le Claire is bringing a proposition in respect of some very damaged and vulnerable children. I was appointed by the courts to act as their Guardian on 21st July 2008. My role in this respect being to safeguard their welfare and to instruct the lawyers acting for them in care proceedings. The plight of these children is desperate and any delay in them receiving the treatment they need will significantly reduce their prospects of a full recovery. I have read and endorsed the emails from Dr. Silver and Advocate Hanson which I understand you have already received. Please confirm my view that the identified residential therapeutic communities in the U.K. are the only places where the children can be treated in order to recover from the appalling abuse they have suffered. There is nothing yet available in Jersey that will meet their needs. Anything that may be created will be too late for these children. Please think carefully about these children when you are involved in the debates affecting their futures.”
And he commended Anne Pryke for the change of direction:
“Contrary to the assertion of Senator Perchard, the reason why we are in this position is because the Minister for Health and Social Services has made a fresh decision guided by direction under the judgment from the Royal Court and her decision has now been to place these children in the U.K. residential care that they need.”
Senator Paul Routier made a comment on how the structure of the system worked against Social Services, and this is something still true today:
“The hospital has grabbed funds away from Social Services and that is part of the problem. That is how we have got to where we are today because, unfortunately, there is a certain amount of money to go around and the hospital has grabbed the majority of the money and the Social Services side has been the Cinderella of that full service, which I think we should look to try and resolve at some stage.
On 13 May 2009, the proposition was debated. Both the Treasury Minister (Philip Ozouf) and Health Minister (Anne Pryke) were in favour. As Deputy Le Claire noted:
“The Minister for Treasury and Resources has already very kindly agreed to fund the money to get the children to the place that they need to go. The Minister for Health and Social Services has made a very good decision at an early stage, this will ensure that the request is made as a States decision to request the Minister for Treasury and Resources to provide in future annual business plans the ongoing annual cost and I make the proposition.”
The proposition was seconded by Constable John Refault and passed unanimously.
It was noteworthy that both the previous Health Ministers, Senators Shenton and Perchard (who had both opposed a UK placement both by Ministerial decision, and through the Courts had fought against it) absented themselves from this vote, so that they were recorded as “Not Present”, despite being present for the previous votes in the Chamber that morning and afterwards.
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