Jersey Unreported Judgments

Care proceedings - reasons for granting an application for a freeing for adoption order.

[2014]JRC246

Royal Court

(Family)

10 December 2014

Before     :		J. A. Clyde-Smith, Esq, Commissioner and Jurats Clapham and Ramsden
Between	The Minister for Health and Social Services		Representor
And	A (the mother)		First Respondent
And	Amelia (the child)		Second Respondent

IN THE MATTER OF AMELIA (FREEING FOR ADOPTION ORDER)

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

Advocate S. L. Brace for the Representor.

Advocate P. G. Nicholls for the First Respondent.

Advocate C. R. G. Davies for the Second Respondent.

judgment

the commissioner:

1.        On 6^th November, 2014, the Court freed the second respondent ("Amelia" which is an assumed name), who is now aged sixteen, for adoption and we now set out our reasons. 

2.        Amelia is the only child of the first respondent ("A, the mother") and ("B, the father").  The father does not hold parental responsibility and has not had any contact with Amelia since she was received into the care of the Minister in November 2008.  The Minister has been unable to obtain his contact details. 

3.        Amelia was admitted into emergency foster care in November 2008 following allegations of sexual and physical abuse she had made against her father.  A final care order was made on 1^st April, 2010, (In the matter of K [2010] JRC 070A) with the consent of the mother, the Court finding that the threshold had been met on the basis that Amelia had suffered significant harm as a consequence of sexual and physical abuse at the hands of the father. 

4.        The care plan at that time was for a long-term foster carer to be found for Amelia, but the judgment of the Court noted that it was possible that a freeing for adoption application could follow subject to that being supported by Amelia. 

5.        Amelia has been placed with her long-term foster carer, C since 2011 and at her (Amelia's) instigation, has not had any contact with the mother since June 2012.  She has also chosen not to have contact with the mother's one year old son from a subsequent relationship, but she has maintained regular contact with her maternal aunt. 

6.        The placement with C, who has become a real mother to Amelia, has been very successful and in August 2013, they advised the Children's Service of their wish for C to adopt Amelia.  C has subsequently been assessed as a prospective adopter for Amelia and was approved by the Adoption and Permanence Panel on 20^th May, 2014. 

7.        C, who works in Jersey, is South African by origin with family living in South Africa, whom Amelia has visited with C on three or four occasions.  She has integrated well into C's family, and wanted now to be a part of it.  Having been unsettled and lacking confidence, she has now flourished, both in and out of school.  She wanted permanence and to cease to have the Children's Service involved in her life.  We had the pleasure of meeting her in chambers and could only describe her as delightful. 

8.        Both the social worker and the guardian have confirmed that Amelia had reflected very carefully on the proposed adoption, had given great consideration to it and were confident that it is what she wanted to do. 

9.        In January 2014, the mother indicated to the social worker that if Amelia wished to be adopted, she would give her consent.  However, on 10^th June, 2014, the mother informed the social worker that although she accepted that Amelia wanted to be adopted and she wanted Amelia to be happy, she could not go so far as to sign the requisite form.  The mother's position was put very well in her statement in this way:-

"4.       When I was first told about Amelia's wish to be adopted I was happy to agree to anything that made her happy.  I do want her to be happy even if she cannot be with me. 

5.        However when I have been asked to sign a form of consent I have had very great difficulties with this.  Emotionally I find it very hard to bring myself to sign the consent.  I simply cannot bear to make myself sign away a baby that I brought into this world.  Amelia is still my baby and it is because I still love her very much that I just cannot do it.  It is not that I am being difficult or objecting to Amelia's request but my heart will not let me sign. 

6.        I understand that because I cannot sign the form the Minister now has to ask the Court to make that decision for me and I rest on the decision of the Court."

The law

10.      When considering an application for a freeing for adoption order, Article 12 of the Adoption (Jersey) Law 1961 ("the Adoption Law") provides that where the Court is satisfied that each parent agrees to the making of an adoption order unconditionally, or that the parent's consent should be dispensed with on the grounds specified in Article 13(2), the Court shall make the order.  The Court may only dispense with the parent's consent if it is satisfied, pursuant to Article 13(2), that (in so far as is relevant here) the parent is withholding his or her consent unreasonably. 

11.      "Parent" is defined under Article 1(1) of the Adoption Law as any parent who has parental responsibility for Amelia.  Thus, for the purposes of the application, it was only the mother's consent that the Court was concerned with.  However, under Article 12(6) of the Adoption Law, the Court had to be satisfied that the father did not intend to apply within the next six months for a parental responsibility order or a residence order, or if he did so, any such application would be likely to be refused.  The evidence was overwhelming in this regard.  He had had no contact with Amelia or made any inquiries about her since November 2008 and moreover, any application that he did bring would be futile in the light of the serious findings against him by the Court in April 2010. 

12.      With regard to the mother, in the absence of her consent, the Court of Appeal decision in Re F and G (No 2) [2010] JCA 051 (paragraphs 74 and 75) is authority for the proposition that the Court must consider two matters:-

(i)        Is the making of a freeing order in the best interests of the child? and if so

(ii)       Is the parent's consent being unreasonably withheld?

13.      The matter of non-consensual adoption was considered in the case of In the matter of M [2013] JRC 234, where the principles established by the Supreme Court in Re B (A Child) [2013] UKSC 33, and by the English Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146, were cited with approval.  Although the statute in Jersey with regard to adoption is now significantly different to that in England and Wales, the Court confirmed that in the case of a non-consensual adoption, it should only make an order seeking to sever the relationship between a parent and child where it is necessary within the meaning of the European Convention of Human Rights 2000 to do so in order to protect the interests of the child. 

14.      The Court of Appeal in Re B-S said that at paragraph 22:-

"The language used in Re B (A Child) is striking.  Different words and phrases are used, but the message is clear.  Orders contemplating non-consensual adoption - care orders with a plan for adoption, placement orders and adoption orders - are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort - when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short where nothing else will do"".

15.      Ultimately, the Court is concerned with whether an order freeing for adoption is proportionate, bearing in mind the requirements of Article 8 of the Convention and in a non-consensual case, it must be "necessary" in order to protect the interests of the child or in short, where nothing else would do.  However in the case before us the mother was not opposing an order freeing Amelia for adoption.  We were impressed by her honesty and demeanour in Court.  She clearly loves Amelia and did not want to stand in her way.  She wanted her to be happy even if she could not be with her, but she simply could not bring herself to sign the requisite form.  She therefore rested on the wisdom of the Court.  

16.      The overriding principle, as explained by Hale LJ, as she then was, in Re C and B [2011] 1 FLR 611 at paragraph 34, that it should be to re-unite the family, with all effort devoted to the end of rebuilding the family, carries significantly less force when dealing with a child of this age and maturity and when in reality, there cannot be any prospects of reunification.  Amelia is now sixteen and has had no contact with her mother for over two years.  She was absolutely clear as to her wish to be adopted and to become part of C's family.  

17.      Even so, in the circumstances of this case, and having considered all of the options very helpfully put forward by the social worker, with an analysis of arguments for and against each option, we had no doubt that an adoption order was both necessary and proportionate; thus satisfying the first part of the test in F and G (No 2). 

18.      The test for considering whether the mother is withholding her consent unreasonably is an objective one, as made clear in F and G (No 2) at paragraph 80; a reasonable parent would give great weight to what is best for the child.  As Advocate Davies, for Amelia, said, it is not unusual for a mother to be unable to bring herself to give formal consent - in effect signing away her child.  We feel we understand the mother's position at an emotional level and we hope Amelia will come to understand it in time, but objectively, there can be no question that for the purposes of Article 13(2) of the Adoption Law she was unreasonably withholding her consent. 

19.      We were satisfied that for the purposes of Article 12(3) of the Adoption Law, Amelia's adoption would immediately follow a freeing order, and we therefore freed her for adoption. 

Authorities

In the matter of K [2010] JRC 070A.

Adoption (Jersey) Law 1961.

Re F and G (No 2) [2010] JCA 051.

In the matter of M [2013] JRC 234.

Re B (A Child) [2013] UKSC 33.

Re B-S (Children) [2013] EWCA Civ 1146.

European Convention of Human Rights 2000.

Re C and B [2011] 1 FLR 611.