Jersey Unreported Judgments

Care Order - reasons for granting application for freeing for adoption.

[2012]JRC226

Royal Court

(Family)

3 December 2012

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Le Breton and Milner

 

IN THE MATTER OF F (CARE ORDER)

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

Advocate C. R. G. Davies for the Applicant.

Advocate C. Hall for the Mother.

The Father represented himself.

Advocate H. J. Heath for the Child.

judgment

the commissioner:

1.        On 7^th November, 2012, the Court granted the application of the applicant ("the Minister") to free F ("the child") for adoption and we now expand upon the reasons given orally at the hearing. 

2.        A final care order in respect of the child was made on 10^th July, 2012, for reasons which are set out in the judgment of the Court dated 3^rd October, 2012, (JRC 173).  Originally the application for a freeing order was going to be heard at the same time as the application for a care order but it was agreed that the application for the freeing order should be made at a slightly later hearing, as a consequence of the mother's specific needs as described in that judgment which needs to be read in conjunction with this judgment. 

3.        At the hearing in July, the Court (similarly constituted) heard evidence from Dr Bryn Williams, a child psychologist, Dr David Briggs, an adult psychologist, Dr Amitta Shah, an adult psychologist and Anthony Williams, a social care consultant inter alia.  A key finding of the Court is set out at paragraph 48:-

"What Miss Hall was unable to challenge was the evidence from the experts, which the Court accepted, that as a consequence of the mother's learning difficulties and autism, she lacked the capacity to parent the child and if the child were to live with her, the intensity of supervision that would be required would amount to surrogate parenting. It is one thing to support a parent and quite another to take over the parental role altogether."

In terms of the mother's capacity to change, the Court said this at paragraph 50:-

"As against that, the Court had the clear evidence of the experts that there was no point in further assessments, as the mother did not have the capacity to change, certainly within the child's timescale; any improvements would be superficial.  The evidence of Dr Shah was particularly compelling in this respect.  As Miss Davies put it, this case had been assessed to the full."

4.        The child has been with his current foster carers since 22^nd February, 2012.  They have put their names forward as prospective adopters and have been approved as such at the meeting of the Adoption and Permanence Panel held on 9^th October, 2012.  The Minister proposed that the child be placed with his current foster carers in an adoptive placement that is expected to last throughout his childhood and adulthood until such time as he would wish to live independently. 

5.        It is clear from the evidence that we heard from the child's social worker, Miss Jade Allchin and from the reports of Dr Bryn Williams dated 8^th September, 2012, and the guardian dated 1^st November, 2012, (from whom we also heard evidence) that the child is fully settled with the foster carers with whom he has developed a secure attachment and where he is thriving. 

Application for a stay

6.        At the outset of the hearing, Miss Hall, for the mother, applied for the application for a freeing order to be stayed.  As described in paragraph 5 of the judgment of 3^rd October, 2012, the mother had been assessed in June 2011 as having learning difficulties with an IQ of 65.  The concern then was whether the mother had capacity to instruct lawyers and she was referred to Dr Amitta Shah who advised that she did have capacity to instruct lawyers and to conduct the proceedings.  That assessment was not challenged and the hearing proceeded on the basis that the mother did have capacity and indeed she gave evidence to the Court. 

7.        Following that hearing, Miss Hall felt that some progress had been made in the mother accepting the findings of the Court and the reality that the child would not be returning to her.  In recent meetings however it was clear that she did not accept this.  Miss Hall was concerned that she was unable to get instructions from the mother and she was not sure that Dr Shah was correct in her assessment. 

8.        The mother maintains her belief that she is not autistic.  Although she might be open to the idea of the possibility, no one had explained autism to her.  Miss Hall expressed some disappointment with the involvement of adult social services in this respect.  In her view, the mother did not understand what the Court was here to decide.  The mother did not wish to give evidence before the Court but had prepared a written statement which she apparently felt would be sufficient to persuade the Court against freeing the child for adoption. 

9.        A further report had been commissioned from Dr Shah as to whether the mother was capable of giving her agreement to a freeing order.  In her report of 1^st November,2012, she advised that on the basis of her overall understanding of the mother (and without conducting a further interview), she had no reason to suggest that she lacked capacity and she therefore concluded that the mother was capable of giving her agreement to a freeing order.  Whether her reluctance to giving her agreement was reasonable in the best interests of the child was a matter for the Court. 

10.      When pressed as to the purpose of the stay, Miss Hall suggested that it would be for another expert to assess the mother's capacity, which she said would lead to a lengthy delay. 

11.      We refused the application for a stay for the following reasons:-

(i)        The only expert evidence was that of Dr Shah, which was that the mother did have capacity to instruct lawyers and to agree to a freeing order. 

(ii)       The Court was determining a question that related to the child's upbringing and therefore, pursuant to Article 2(1) of the Children Law, his welfare was the Court's paramount concern.  The task of explaining autism to the mother was for those who advised her or were involved in her care, but the lack of such an explanation could not be a ground for delaying this application.  

(iii)      Miss Hall agreed that none of the experts involved would regard a delay as being in the child's best interests and Article 2(2) of the Children (Jersey) Law 2005 ("the Children Law") required us to have regard to the general principle that any delay in determining this question was likely to prejudice the welfare of the child.  

(iv)      Miss Hall confirmed that nothing had happened since the assessment by Dr Shah on 6^th September, 2011, to suggest that there had been any deterioration in the mother's capacity - on the contrary, in the view of Miss Hall, there had been an improvement as a consequence of her separation from the father, her finding employment and having supported accommodation at Strathmoore, which provides high support, medium-term accommodation for homeless adults. 

(v)       The statement provided by the mother, being in English, had clearly been prepared with, we assume, assistance from a support worker at Strathmoore, but even so, it demonstrated an understanding of the purpose of the hearing, namely whether or not the child should be freed for adoption. 

(vi)      Miss Hall told us she had been able to conduct the care proceedings because the mother's position in opposing the care order was clear.  The mother's opposition to the freeing order was equally clear, in our view, and Miss Hall confirmed that if no stay was granted she would be able in accordance with her professional duties to represent the mother in opposing that order.  

(vii)     One of the grounds for dispensing with the mother's consent under Article 13(2)(a) was that she was "incapable of giving agreement".  Accordingly, even if another expert were to advise and the Court were to accept that the mother no longer had capacity, then she would be incapable of giving her agreement to a freeing order and her consent could be dispensed with on that ground. 

Legal principles and application to the facts

12.      The starting point is Article 3 of the Adoption (Jersey) Law 1961 ("the Adoption Law") which is in the following terms:-

"Duty to promote welfare of infant

In reaching any decision relating to the adoption of infants the Court or the Minister shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the infant throughout the infant's childhood, and shall, so far as practicable, ascertain the wishes and feelings of the infant regarding the decision and give due consideration to them, having regard to the infant's age and understanding."

13.      The Minister's application is made under Article 12 of the Adoption Law.  Article 12(1) states that where, on an application by the Minister, the court is satisfied that each parent of the infant agrees to the making of an adoption order or that the person's agreement to the making of an order should be dispensed with on a ground specified in Article 13(2), the Court shall (our emphasis) make an order declaring the child free for adoption.  Under Article 12(2) the Minister can only make the application either with the consent of a parent or guardian or where the Minister is applying for dispensation under Article 12(1)(b) which was the position here. 

14.      The interpretation section of the Adoption Law at Article 1 defines "parent" as "in relation to an infant any person who has parental responsibility for the infant under the Children (Jersey) Law 2002".  The father (the second respondent) does not have parental responsibility for the child and is therefore not a "parent" for the purpose of Article 12.  However, Article 12(7) of the Adoption Law provides that before making an order, the Court shall satisfy itself that the father has no intention of applying within the next six months for parental responsibility or a residence order or if he did make any such application, it would be likely to be refused.  The father declined to give evidence but it was clear from his submissions to us that he had no such intention.  He supported the making of a freeing order and his sole concern was to have direct contact with the child post adoption.  However, he has showed little commitment to the child and has not engaged fully with the assessments directed by the Court.  The last time he saw the child was on 17^th February, 2012.  The Court was of the view therefore that even if he did apply for parental responsibility, or a residence order, it would, in the circumstances of this case, be likely to be refused. 

15.      Under Article 12(3), no agreement can be dispensed with unless the child is already placed for adoption or the Court is satisfied that it is likely that the infant will be placed for adoption.  In this case, the Court was satisfied that the child had been placed for adoption with the foster carers. 

16.      The mother, as the child's natural mother, does have parental responsibility for him.  As she did not consent to a freeing order, the Court had to be satisfied that her agreement could be dispensed with on one of the grounds specified in Article 13(2).  

17.      Under the provisions of Article 13(2) of the Adoption Law, the agreement of the mother can be dispensed with on the following grounds:-

"(2)     The grounds mentioned in paragraph (1)(b)(ii) are that the parent or guardian -

(a) cannot be found or is incapable of giving agreement;

(b) is withholding his or her agreement unreasonably;

(c) has persistently failed without reasonable cause to exercise his or her rights, duties, obligations and liabilities as a parent or guardian in respect of the infant;

(d) has abandoned or neglected the infant;

(e) subject to paragraph (4) has persistently ill-treated the infant;

(f) has seriously ill-treated the infant;

(g) is incapable of caring for the infant or is of such habits or mode of life as to be unfit to have the care of the infant."

18.      The Minister relied primarily on the grounds specified in Article 13(2)(b), namely that the mother was withholding her consent unreasonably.  Guidance in this respect has been provided by the Court of Appeal in the case of In the matter of F and G No 2 [2010] JCA 051 where at paragraphs 80 and 81 the Hon Michael Beloff QC, President, said this:-

"80.    The Royal Court turned next to consider whether the mother was withholding her consent unreasonably (the father having consented).  It relied on the explanation of this test as described by this Court at paragraphs 26-29 of Re JS and BS [2005] JRC 108 and it applied the principles there set out.  In particular as it noted, the test is an objective one.  A reasonable parent will give great weight to what is best for the child (see the observations of Lord Denning MR in Re L [1962] 106 LOS JO 611 approved in Re W [1971] 2 All ER 49) but a Court must be careful not simply to substitute its own opinion for that of the parent.  As the Royal Court put it: -

'The question is whether the parental refusal comes within the band of possible reasonable decisions, not whether it is right or mistaken.  There is a band of decisions within which no court should seek to replace the individual's judgment with its own." [para 18]'

81.      Helpful in this context are the observations of Steyn and Hoffmann LLJ in Re C (A Minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR at 272 as to the test: -

'Whether, having regard to the evidence and applying the current values of our society, the advantages for adoption of the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents.  The reasonable parent is only a piece of machinery invented to provide the answer to this question."

19.      As stated in Re JS and BS the Court has to ask itself two questions:-

(i)        Is it satisfied that adoption would be in the interests of the child?

(ii)       Is it satisfied that the mother is withholding her consent to freeing for adoption unreasonably?

20.      Taking the first question, we were satisfied that adoption would be in the best interests of the child.  The Court had found in the care proceedings that the mother was not capable of parenting the child and he had now settled with and was thriving under the care of the foster carers who had been approved as prospective adopters.  In addition to the evidence of Miss Allchin, we heard the evidence of the guardian, who described his progress in his current placement as spectacular.  Quoting from paragraph 9.2 of her report:-

"[The child] is displaying significant and healthy attachment behaviours towards his carers and family members and he appears extremely comfortable and happy in all activities with them.  [The child] has progressed in all areas of his development.  [The child] now displays discriminating behaviour towards strangers and visitors which was not evident when I met him a year ago."

The guardian therefore supported the child being freed for adoption. 

21.      Dr Williams, in his report of 28^th September, 2012, observed that from a psychological perspective the child had continued to make very positive progress, with his language development being nothing short of formidable.  Overall, he observed a familiar warmth and intimacy between the child and his foster parents, consistent with the observations of both Miss Allchin and the guardian and he strongly advocated that the child should not be removed from a family that had claimed him, and that loved him; he is clearly part of them and would experience a significant loss if he was removed from them. 

22.      Turning to the second question, Miss Hall said that the mother strongly objected to adoption.  She does not want it and wants the opportunity to show that the child can be returned to her.  It was not unreasonable, she said, for the mother to withhold her agreement to a freeing order.  The mother wanted time to talk to the experts and through ongoing contact with the child, persuade them to change their minds.  The child would suffer no prejudice from the delay because he was currently well settled with the foster carers and that would not change in the foreseeable future.  In our view, it was not reasonable in the light of the expert evidence and the Court's findings at the care hearing for the mother to withhold her agreement for this purpose.  The expert evidence was clear that there would be no change within the child's timescale.  The mother was clinging to the sadly unrealistic hope that the child might be returned to her and we had the utmost sympathy for her in that respect but looking at the matter objectively we were satisfied that the mother was withholding her consent unreasonably. 

23.      Article 13(5) of the Adoption Law provides that where there has been a finding by a court of competent jurisdiction as to any of the grounds set out in paragraphs 13(2)(c), (d), (e), (f) or (g), in the course of earlier proceedings to which the parent was given an opportunity of being a party, that finding shall be sufficient but not conclusive evidence of those grounds.  In the light of the finding of the Court in the care proceedings, we were also satisfied pursuant to Article 13(3)(g) that the mother was incapable of caring for the child. 

24.      Before making an order, Article 12(6) of the Adoption Law requires the Court to be satisfied that the mother has been given an opportunity of making a declaration that she prefers not to be involved in future questions concerning the adoption of the child.  In view of the mother's opposition to a freeing order, Miss Hall had not had the opportunity of discussing this particular requirement with her, but it is clear from the evidence of Miss Allchin that the mother has had the opportunity of making such a declaration and that in any event, she would have no wish or desire to do so as it is clear that she does wish to be involved in future questions concerning the adoption of the child. 

25.      In the circumstances, returning to Article 12(1) of the Adoption Law, the Court was satisfied that the consent of the mother to the making of an adoption order should be dispensed with.  It took into account the mother's Article 8 Convention right to respect for her private and family life but as in the care hearing (see paragraph 57 of the judgement of the 3^rd October, 2012,) concluded that the rights of the child were paramount. It therefore made an order declaring the child free for adoption. 

Contact

26.      The issue of direct contact as between the mother and the child post adoption arises in this case and there is a difference between the experts as to the frequency of that contact.  It is proposed that this issue should be dealt with at the same time as the Court is invited to make an adoption order, so that the Court can if it is so minded either impose conditions in relation to contact on the making of that order under Article 16(3) of the Adoption Law or make a contact order under Article 10(1) of the Children Law.  The prospective adopters will of course be a party to those proceedings. 

27.      During the course of the hearing, the father filed an application for leave to make an application for post adoption contact under Article 10(2)(a)(ii) of the Children Law.  The mother had also filed such an application.  Leave is required, because as a consequence of the freeing order, neither parent now has parental responsibility. 

28.      The Court of Appeal in F and G at paragraph 89 regarded it as all but axiomatic that the father and mother should be granted leave.  In the interim, Article 20(2)(a)(ii) of the Adoption Law in conjunction with Article 12(5) provides that the making of a freeing order extinguishes the care order made in respect of the child, so that the provisions of Article 27 of the Children Law, which requires the Minister to allow reasonable contact between a parent and a child no longer applies and the Court has no power to make an order for contact under that article.  However, the Minister proposed that in the period between now and the adoption application, the current fortnightly contact between the mother and the child should reduce to monthly contact, starting at the end of November for a period of three months and reducing to six weekly contact for a further three months, when it will be reviewed.  It would be hoped that the adoption application would have been made well before then.  Those arrangements have now been confirmed in writing. 

29.      There was no application before us under Article 10 of the Children Law for contact in this interim period, but it was suggested by Miss Hall that we might at our own instance make an order under the terms of Article 10(2)(b) which provides that the Court can make an order even though no application is before it.  The guardian thought it might be helpful for these interim arrangements to be made the subject of an order but on consideration we thought it unwise and contrary to the child's interests to cast these arrangements in stone in this way.  There are no grounds for suggesting that the Minister will not honour the interim arrangements that have been now set out in writing but she rightly reserved to herself flexibility to act in the child's interests.  We therefore declined to make a contact order.  

Authorities

In the matter of F (Care Order) [2012] JRC 173.

Children (Jersey) Law 2005.

Adoption (Jersey) Law 1961.

In the matter of F and G No 2 [2010] JCA 051.