DCFS v DE, NE and H and T and J - Judgment

¶ The judgment in this matter is being distributed on a strict understanding that in any report no person other than the attorneys (and any other person identified by name in the judgment itself) may be identified by name or location and in particular the anonymity of the child and the adult members of their family must be strictly preserved. This matter is not one of the cases in which the orders made within the public law proceedings will result with a child being removed from person(s) who have parental responsibility and being placed outside of the family. 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 FAMILY DIVISION CAUSE NO. FAM 237 OF 2010 5 BETWEEN: DEPARTMENT OF CHILDREN AND FAMILY SERVICES 6 7 8 AND DE 9 10 AND NE 11 12 AND 13 14 H & T & J 15 (by Mrs. Maggie McCormac, their Guardian ad Litem) APPLICANT 1st RESPONDENT 2nd RESPONDENT Appearances: Ms. Tonicia Williams of the Attorney General’s Chambers for the Applicant Mr. Daniel Altneu of Samson and McGrath for the 1st Respondent Mrs. Karin Thompson for the 2nd Respondent Guardian ad litem in person Before: Hon. Justice Richard Williams Heard: 1 March 2016 Draft Judgment Circulated: 2 March 2016 Judgment Delivered: 7 March 2016 HEADNOTE Children Law (2012 Revision) ("the Law") - Unopposed care order – Duty of Court to Investigate the facts prior to making an unopposed care order - Application pursuant to s.35(6)(b) for leave to remove a child in care from the Cayman Islands to attend residential treatment facility in Florida - Duty of Department and Children and Family Services to promote contact between a child in their care and the child’s parents pursuant to s.36 of the Law. JUDGMENT Introduction

¶ [1] Having regard to the need for there to be prompt reasons for my decision, I feel it appropriate to deliver an Ex Tempore Judgment. A transcript of the Judgment will be provided to the parties. The Parties and the Applications

¶ [2] The Department of Children and Family Services ("the DCFS") applies for a care order pursuant to s.33 the Children Law (2012 Revision) ("the Law") in relation to a female 12-year-old child, born on 11 April 2003. I shall refer to her as T in this Judgment. T has three siblings, namely H, a 16 year old girl born on 18 May 1999, J, a 5 year old boy born on 5 May 2010 and R, a girl born on 10 October 2015.

¶ [3] The Court has not been asked to make findings on any disputed issues of fact. No party wishes to give oral evidence, submitting that the documentary evidence is sufficient. Accordingly, I am giving this Judgment without the case having been fully opened to me, without having heard any evidence, but having read all the papers and hearing submissions made this morning.

¶ [4] T's mother, DE, was born in Honduras on 27 August 1980 and is 35 years old. Her father, NE, was born in the Cayman Islands on 21 December 1950 and is 65 years of age. I shall refer to DE as “the mother” and NE as “the father” in this Judgment.

¶ [5] T and her siblings (except for R) had been the subject of long-running public and private law proceedings. The substantive public law hearing was spread over seventeen days. An extremely detailed written ruling was handed down on 26 October 2015. The content of that judgment as it relates to T is relevant and, although I have regard to it when reaching my decision today, I do not intend to repeat that detail herein. The Parties’ Positions

¶ [6] The DCFS’ application for a care order in relation to T and, if a care order is made, their application under s.35(6)(b) of the Law to remove T from the Cayman Islands to attend the named treatment facility in Florida are supported by the Guardian ad litem and not opposed by the mother and the father. The Court’s Duty to Investigate

¶ [7] The law that I am principally concerned with is contained in s.3 and s.33 of the Law. I have carefully considered the Agreed Statement of Facts submitted this morning. Although the parties all accept that the threshold criteria is met with respect to T and invite the Court to make a care order in relation to T, I must be satisfied that the threshold set out by s.33(2) of the Law is satisfied before I make any order. If I am satisfied, I must then go on to consider s.3 of the Law, the welfare checklist at s.3(3) of the Law and the no order principle at s.3(5) of the Law.

¶ [8] Section 33(2) of the Law provides: “A court may only make a care order or supervision order if it is satisfied – (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to- (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect the parent to give to him; or (ii) the child’s being beyond parental control.”

¶ [9] This means that the Court must conclude, upon considering all of the relevant facts, that the preconditions in (a) and (b) are satisfied. As stated by Wall J. in Re G (A minor) (Care Proceedings) [1994] 2 FLR 69 this section means that the Court has to be satisfied by evidence that the significant harm suffered by the relevant child is attributable to the care, or absence of care, given to the child by the parent(s) against whom the order is sought. In this context the phrase “attributable” should be given its normal meaning and does not mean merely capable of being attributed to the parent.

¶ [10] As highlighted by me in DCFS v SH & WH Cause No. FAM 88 of 2013, the nature of the Court’s investigation will depend on the facts of the particular case before it. With this in mind Wall J. stated: "If, for example, the parties agreed not only that a care order is appropriate, but are also agreed on the factual substratum underlying the fulfilment of a threshold criteria, then the investigation may properly be limited to a perusal of documentation and approval of an agreed order (see Devon County Council v S [1992] 2 FLR 244). In that case there was a finding of fact by justices that the child, who was the subject of the agreed care order, had been sexually abused by the father, and agreement had been reached between the parties on every aspect of the child's management. Thorpe J was in these circumstances critical of justices who investigated the case unnecessarily, and interfered with a proposed agreed order without alerting the parties to their intention so to do. He held that since the terms of the proposed order were agreed between the parties there was no issue in dispute for the justices to determine. At [1992] 2 FLR 247 he says this: "First, and foremost, whilst undoubtedly there is an overriding duty in the court to investigate proposals advanced by the parties, even where those proposals are fully agreed, the profundity of that investigation must reflect the reality that there is a consensus amongst the parties to the litigation particularly when the parties include a public authority with statutory duties and the Guardian ad litem on behalf of the child."

¶ [11] In DCFS v SH & WH I stated that the approach of Thorpe J., which was adopted by Wall J, makes it clear that the Court has an overriding duty, even if agreement is reached, to investigate the material placed before it before making a care order under s.33. The making of such orders is not a rubber stamping exercise. 1 Background 2 12. The historical background can be found in my detailed October 2015 Judgment. 3 At the hearing I made an unopposed supervision order for one year in relation to 4 T naming, with its consent, the DCFS as the supervisor. I was satisfied that the 5 input of the DCFS under a supervision order was required having regard to T’s 6 physical and emotional needs, her age and the harm which she had suffered and 7 was at risk of suffering. I was satisfied that such an order was necessary when 8 considering the capability of the parents to best meet her needs. With great 9 insight, the Guardian expressed her view that this family would need substantial 10 assistance moving forward and that the supervision order was an important part of 11 that supportive infrastructure. 13 13. During the hearing, on 4 August 2015, the Court was made aware that T had 14 again harmed herself by taking a further overdose on 16 July 2015, as well as 15 cutting herself. The Court is aware that Dr. Hawkins indicated that T had told her 16 that she was stressed as a result of the environment in each parent’s property and, 17 as a consequence, upon her release from hospital she by agreement resided with 18 her paternal aunt, AM. On 4 August 2015, as a consequence of the developments, 19 directions were given about the filing of evidence and further submissions. In the 20 meantime all the parties agreed that T should remain with AM, and that an interim 21 residence order be made in favour of AM. The father’s residence order in relation 22 to T was suspended and the interim supervision order extended. I ordered that T’s 23 contact with her parents would be supervised, but that could be varied if the DCFS, in consultation with the Guardian, felt it appropriate. Both the DCFS and the Guardian supported this approach to the interim contact. In my October 2015 ruling I found that the arrangements put in place in August should remain until further order. At that time I agreed with the recommendation of the DCFS and the Guardian that orders requiring T to attend for assessment with a psychiatrist and/or a psychologist should not be made as it may be counter-productive for her welfare if forced upon her. I left it at the discretion of the DCFS, in consultation with the Guardian, to work with T to get her to voluntarily attend for such treatment. Sadly, after the parties had closed their cases and prior to the October ruling being delivered, there were further concerning developments in relation to T. On 7 August 2015 AM outlined in a statement or report that T had been cutting herself on the previous day. On 1 September 2015 T consumed a quantity of ganja laced brownies and she was suspended for three days from school. Due to T’s disruptive behaviour AM informed the DCFS on 7 September 2015 that she was unable to continue with her care and T was placed at the Francis Bodden Children Home ("FBCH") on 9 September 2015. It appears that she had been diagnosed as suffering from depression and was placed on antidepressant medication in July 2015. The prescription was increased in late August 2015 and then an additional drug was added in December 2015 due to her use of cannabis. T had self-harmed herself twice, resulting in her being placed on the Mental Health Ward at the hospital. Prior to delivering that Judgment I was informed that the DCFS had recently filed an application for a care order in relation to T. For reasons set out in my October 2015 Judgment, the parties had difficulty finding a mutually convenient date to list the application before 28 October 2015. As a consequence, I made it clear in my October Judgment that the orders then made in relation to T were based on the evidence then before me and did not take into account later events. The orders in the judgment were subject to any changed arrangements that the DCFS had put in place since the hearing and I stated that the status quo that had emerged from DCFS’ recent arrangements should remain in place until the interim care order hearing listed for 28 October 2015. I indicated that a fuller review of the welfare checklist in relation to s.10 orders for T would be left to the upcoming hearing. In my October 2015 Judgment I found that there was: "an abundance of evidence that H and T have suffered significant harm as a result of the care provided to them." and explained therein why I had reached that conclusion. I found that: "In relation to the mother’s parenting of H and T there is evidence, which I accept, of lack of routines and unsettling house moves dictated by her relationships." I accepted: "the evidence of the mother influencing the girls so that they are not forthright with professionals in this case and influencing T to remove items from the father's property and report to her about what is happening there." I found that this had caused emotional harm to T. I was deeply concerned about the nature of the abusive relationship she had with her partner and opined that she was: "unable to recognise the real risk factors that exist for the children and even for herself" and that there was "a real likelihood of the children suffering harm in these circumstances."

¶ [17] I also noted that the mother was unable to heed the advice given by Mrs. Shultz, the Psychiatrist, that each parent should not undermine the other parent, but seek to collaborate. I found that she tried to undermine the placement at the father's by continually questioning T. There were other concerns outlined in the October 2015 Judgment which I need not set out herein. I am satisfied that the s.33(2) threshold is met not only on the basis of the submitted Agreed Statement of Facts, but also because of my additional findings set out in the October Judgment.

¶ [18] At the hearing on 28 October 2015 I carefully considered the Care Plan, the contents of the application form and a report filed by the Guardian. I reiterated that T has suffered harm due to the care given by the parents below the level that one would ordinarily expect. I also found that the threshold criteria had: “clearly been met” and that “the concerns had increased after the breakdown of the placement with her paternal aunt and the recent events.” I found that she could not live with either of the parents at that time and the placement at FBCH was in her best interests, as commended under the Interim Care Plan. I made an eight-week interim care order in place of the supervision order. I dismissed the interim residence order that had been made in favour of AM. I ordered that there should be contact supervised by DCFS which the DCFS could vary to unsupervised after consultation with the Guardian.

¶ [19] The report dated 26 February 2016 prepared by the allocated Social Worker, Denise Benjamin, contains updated information about T’s circumstances. Mrs. Benjamin states that T is: “in need of considerable care and protection” and that “dysfunctional family relationships within the family have had a tremendous strain on T.”

¶ [20] The findings made in relation to the threshold criteria in my October 2015 Judgment remain, and if anything, the recent developments have greatly fortified my view that the threshold criteria is now met.

¶ [21] Mrs. Benjamin informed the Court that T remains at FBCH. She has regular weekly supervised contact with her mother, J and her baby sister. There have been recent problems with contact with the father, but I am today told that the last contact visit was positive and hopefully that can be developed.

¶ [22] Unfortunately reports received from FBCH\(^1\) highlight that over the past two months T’s behaviour has become erratic, unpredictable and has deteriorated. She has been unsettled and required constant staff intervention. The letters from her school dated 2 December 2015 and 1 February 2016 detail some of their concerns about T’s conduct. Troubling examples of T’s behaviour include: (i) her leaving school without permission on 27 November 2015; (ii) her being found smoking marijuana in a bathroom in her school on 1 December 2015 and her admission to the School Counsellor that she felt that she was addicted to marijuana; (iii) her three-day exclusion from school, commencing on 4 December 2015, for persistent gross defiance and using illicit substances. When marijuana was found in a school bag, she was confrontational and disrespectful to staff using expletives; (iv) her disruptive behaviour at the school which delayed the start of several examinations. The school report reflected that she was belligerent when given simple instructions and that her poor behaviour was escalating; (v) her presentation as being much older than she is and her flirtatious behaviour with boys; \footnotetext{1 Monthly reports from September 2015 to December 2015 inclusive are attached to the Social Worker’s report.} (vi) staff at FBCH finding marijuana in her room on 22 December 2015, and a few days later the apparatus for drug use were found hidden in her room; (vii) her absconding from FBCH with two other residents on 2 January 2016; (viii) her refusal to attend school classes on 4 and 5 January 2016, coupled with defiance and disrespect to staff at the FBCH; (ix) her disclosure to the Social Worker and the School Counsellor that she had had sex with a male and that she was requesting to be placed on birth control. Her refusal to be cooperative to Family Support Unit Officers who were seeking the identity and age of the male person; (x) her refusal to attend her scheduled counselling session with Dr. Burrowes at the Wellness Center on 8 January 2016. This is an ongoing refusal as she says she does not feel comfortable talking to Dr. Burrowes or trust anyone to share her feelings; (xi) her erratic and oppositional behaviour when refusing to go into the office of Dr. McGill in early January 2016; (xii) her refusal to take medication during the last week of January 2016, coupled with a developing dependency on alcohol; (xiii) her three exclusions from school between January and February 2016, two of which were for gross or persistent defiance and the other for the use of illicit substances; and (xiv) her refusal to have contact with her father at the scheduled times.

¶ [23] Mrs. Benjamin highlighted concerns about T’s difficulties in understanding intellectual task demands. She informed the Court that T’s cognitive ability is within the extreme low range of intellectual functioning and better overall thinking and T’s reasoning abilities exceed those of approximately 2% of children her age. She feels that T is struggling with aggression and that it is essential that the adults reinforce effective problem-solving and conflict resolution skills. Importantly she states: “It is imperative that the parents do not undermine one another but rather collaborate with consistent parenting of T.”

¶ [24] Mrs. Benjamin states that: “T is an emotionally fragile young girl who has impaired judgment and has developed substance dependence. She struggles emotionally as she has an unhealthy attachment with the parents and is manipulative. T repeatedly stated that she is tired of living at FBCH and wants to leave. She is still at level one after four months which is an indication of her non-compliance and assimilation to the group norms. She requires psychiatric intervention that is not available at her current placement despite their therapeutic model.”

¶ [25] Dr. McGill, Psychiatrist, has prepared a report dated 19 January 2016. She first saw T in 2011 and has since seen her on a number of occasions. She shares the concerns of the psychologist, Mrs. Schultz, which were referred to in the October 2015 Judgment. Dr. McGill has expressed concern that T exhibits self-destructive behaviour which is spiraling out of control and which will deteriorate further in her adolescent years. She stated that T is: "oppositional and could deteriorate into a conduct disorder without intensive intervention." She went on to report that T: "requires a secure residential treatment setting suitable for dual diagnosis adolescents. The facility must offer intensive psychotherapeutic intervention with behavioural measures while allowing her to continue her schoolwork." As there is no such facility available in the Cayman Islands Dr. McGill has recommended and referred T to L.A. which is: "an intensive residential treatment and partial hospitalization (facility) for youths with psychiatric, emotional and substance abuse diagnoses." Her recommendation is that T attends as an inpatient and she has told the professionals that this may have to be for a period of up to three years. Dr. Burrowes, in her letter exhibited to the Social Worker's Report, indicates that she supports the recommendations, which includes treatment overseas.

¶ [26] Dr. McGill’s recommendation was considered at a case conference on 15 January 2016 which included all the relevant professionals and the parents. The parents gave verbal and written consent for the application process to commence. The parents both consent to T remaining at FBCH until the arrangements are put in place for her to attend the facility in Florida. T’s willingness to be placed at the Florida facility has not been consistent and as the Social Worker today terms it she “flip flops.” The latest report she has from the FBCH is that T is refusing to participate in some activities and that T is telling people that this is because she is going to Florida. T has indicated to the Social Worker she no longer wishes to stay at the FBCH. T indicates that she still wishes to have contact with the parents and her siblings.

¶ [27] I have carefully considered the Care Plan submitted by the DCFS in support of the application for a final care order. It highlights that she would remain at FBCH until funding approval and admittance to the Florida facility is obtained. During that period she will continue to receive behavioural and emotional intervention and will be encouraged to attend counselling. It is hoped that the arrangements can be put in place within two months and that the duration of the placement will depend on T’s overall adjustment and willingness to comply with the group norms and expectations. I have been told that there is a 90% probability of funding being obtained at the meeting to be held later this month. I have also been told that the facility, which the DCFS feel is the appropriate placement, appear to feel that T would be an appropriate person to attend there and benefit from their input.

¶ [28] I asked Mrs. Benjamin today what would happen if the funding was not available and she could not attend the Florida facility. She indicated that it is likely that T would leave FBCH. She said that the only other option may be for T to be placed "on lock down" at the Bonaventure Home. I can indicate that if such a placement was sought in the Care Plan today I would not approve the Care Plan and I would not make a care order. Such a placement would not be appropriate and would not meet this child's needs. I also do not feel that T's educational needs can be met at the school here. It is important that she attends a facility which can intertwine therapeutic assistance with what may be viewed as day-to-day educational needs. No such establishment to meet T's unique needs is available in the Cayman Islands at this time. I have no issue with a copy of transcript of this Ex Tempore Judgment being shown to the relevant funding panel when funding is being considered for this placement. I also have no issue with this Judgment and the other Judgments delivered in the Public Law Proceedings being provided to the facility.

¶ [29] The Care Plan indicates that although contact will be supervised at this time: "Contact between T and her parents and significant family members will be encouraged and maintained." There will be regular reviews with the parents and the Social Worker will keep relevant persons and agencies informed of the developments in the case. I am satisfied that it would be in T's best interest to approve the Care Plan. The Threshold Criteria

¶ [30] I have considered carefully the threshold statement submitted on behalf of the DCFS dated 29 February 2016.

¶ [31] In relation to the threshold criteria, as stated in *DCFS v SH & WH*, it is right that the burden of proof rests upon the applicant DCFS on the balance of probabilities. The test of likelihood of harm is not that it should be more likely than not, but that there should be a real possibility, a possibility that cannot be sensibly ignored. The facts set out herein and in my October 2015 Judgment, coupled with the psychiatric evidence are quite sufficient to support a finding that the threshold criteria in substance has been made out of actual likelihood of significant harm to T. The Welfare Checklist

¶ [32] I have considered the welfare checklist set out at s.3(3) of the Law. Over the past few months T has expressed differing views about her future. She has not indicated that she does not wish there to be a care order. She has been inconsistent in relation to her wishes about attending the facility in Florida, but there exists a recognition from T that she has outgrown the current placement and that she would benefit from her attendance.

¶ [33] When I have regard to T’s wishes it is clear that she is a 12-year-old girl, but she does not possess sufficient maturity and insight that her wishes should be given precedence over the obvious need for her to receive the therapeutic input that would be offered under a care order and this placement. It is hoped that the much-needed assistance obtained from the Facility will address T’s deep rooted psychiatric and behavioral issues. It is also hoped that this will be even more achievable due to the support to the placement given by her parents. Although a care order is made it is not with the intention of T being adopted, it is with the intention of hoping that she as an individual will have all that she requires to become a productive member of society. It is done hoping that in the future she and her parents and siblings will have a positive relationship.

¶ [34] It is clear that her parents remain unable to meet T’s physical, educational and emotional needs. It is imperative that there be a care order to enable the DCFS to exercise parental responsibility. It is also imperative that T’s educational and emotional needs are met by her attendance at the therapeutic facility in Florida.

¶ [35] I have considered the effect on her of any change in her circumstances. The making of a care order, unlike in a case where the child is being immediately removed from the care of his parent, is not a change of circumstances in this case as she has been subject to a DCFS Interim Care Order since October and not resided at either parent’s homes since 9 September 2015. T is not expressing a wish to be in either parent’s household at this time. It is clear from the expert evidence that, even if it were against her current wishes, attendance at the facility in Florida is likely to have an extremely positive effect on her welfare in the medium and long-term.

¶ [36] I have had regard to T’s age and sex. Having regard to Dr. McGill’s evidence in paragraph 25 above it is vitally important that T, at the cusp of her adolescent years, receives the necessary therapeutic assistance which the proposed facility can provide without delay. I have regard to the fact that T is a female when ordering the placement at this facility. I have regard to the fact that she would be a Caymanian attending an American facility, but at the same time I have regard to the experience of the facility receiving students from all backgrounds, including from this country. I am told that there is a Caymanian child attending the facility at this time.

¶ [37] When dealing with the threshold criteria I have considered the harm that T has suffered and would still be at risk of suffering if she does not receive the care, attention and assistance that she requires and deserves.

¶ [38] I have considered whether her parents are able to meet her needs. I am satisfied that they are not. They do not have the professional training required to deal with her behavioural and health problems. If T were to remain in the jurisdiction there may be issues with the mother being able to consistently promote the efforts being made by the DCFS. Conclusions

¶ [39] Bearing in mind all the relevant factors set out in the welfare checklist s.3(3), and the threshold criteria having been met, I find that it is in T’s best interests for a full care order to be made and for her to be placed in accordance with the DCFS’ Care Plan. I am of the firm view that it would be in her best interests for her to promptly attend the therapeutic facility in Florida, United States. I recognise that T keeps changing her mind about whether she is willing to attend. All of the professionals, importantly including T’s Guardian, unanimously recommend the placement. As I have already stated, to their great credit, the parents are both supportive of the placement. Contact Between T and Her Parents

¶ [40] There is an obligation on the DCFS to promote contact between a child in its care and his parents. It is right that T have contact with her parents and siblings, although this contact must be supportive of the placement and in no way should it be permitted to undermine that placement. I am satisfied that the contact agreed by the parties as set out in the Care Plan is sufficient and appropriate but should be frequently reviewed. The Order

¶ [41] In light of my findings I make an unopposed consent order.

¶ [42] Accordingly I order: (i) that a Care Order be made to the DCFS in relation to T; (ii) that the DCFS is permitted to temporarily remove T from the Cayman Islands for the purpose of her attendance at the named therapeutic facility;² (iii) that the DCFS, if the facility agrees, will in writing provide the parents with reports from the facility on T’s progress; and (iv) that the DCFS immediately notifies of any significant changes in T’s circumstances. THE HON. MR. JUSTICE RICHARD WILLIAMS JUDGE OF THE GRAND COURT ² for reasons of anonymity the full details of the school have not been put in this judgment, but they should be set out in the order.