Neutral Citation no. [2001] NIFam 4
Ref:     
GILF3361

 
Judgment: approved by the Court for handing down
Delivered:
09.03.2001
(subject to editorial corrections)

 

 

 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
 ________  
 
FAMILY DIVISION
 
 _____ ___

RE: T (A CHILD) (ARTICLE 16(1)(b)(i) ADOPTION (NORTHERN IRELAND) ORDER 1987 AND THE INHERENT JURISDICTION OF THE COURT)
 
 ________ 
 
GILLEN J
 
Background facts
            T is currently 5 years of age, having been born on 14 January 1996.  The respondents in this matter are B, the child’s mother and R, the child’s father.  The applicant in the case is Armagh and Dungannon Health and Social Services Trust (“the Trust”).  The Trust has been involved with T and her mother since January 1997.  The subsequent history depicted in various reports put forward by the Trust witnesses and by the Guardian Ad Litem is a sad tale of parental neglect and deprivation.  T has four siblings and two half siblings who are aged between 3 years and 16 years.  A number of incidents recorded in the reports are as follows:
(a)        31 March 1998 B left the children, including T alone for 3 hours.  An out of hours social worker recorded there was no food, clothes were strewn around the house, there were no bedclothes, faeces were on the floor and a smell of urine was in the home.
(b)       From 31 March 1998 until 12 April 1998 B allegedly left the children with their father R and could not be contacted.
(c)        In April 1998 a social worker involved with the family was concerned about B abusing alcohol and leaving T and another child in the care of a 14 year old or in the care of an inappropriate childminder.
(d)       25 June 1998 police were allegedly called to the family home and found T alone and distressed in an upstairs room.  At this time, allegedly, B was drinking in a local pub and could not be contacted.
(e)        The child had been admitted to emergency foster care on 25 January 1998 and although B was given regular contact within the foster home, the visiting pattern was allegedly inconsistent and there were reports of T’s increasing distress, aggressive and self-harming behaviour within the foster placement.  T’s name was placed on the Trust child protection register under the category “physical neglect”.  A comprehensive child protection assessment was commenced with B in September 1998, but her participation was erratic and her contact with her daughter inconsistent.  T’s behaviour within the foster home became increasingly a matter of concern and she was referred to the child and family clinic in January 1999.  At an LAC review on 11 February 1999 the Trust care plan in respect of T changed a placement with a paternal aunt.  B opposed the plan and the Trust at that stage was concerned that if T returned to her mother’s territory she would be likely to suffer significant harm.  In light of the proposed care plan, the Trust applied for and obtained an interim care order with reference to T on 14 April 1999.  A series of interim care orders were made between 14 April 1999 and 31 May 2000 when eventually a full care order was made.  B had been strongly opposed to the Trust recommendation of adoption for T until 30 March 2000 and 11 April 2000 when she stated she was consenting to a care order in respect of T and her adoption.  On 9 May 2000 a form of consent to adoption was signed by B.  Included in the consent is the stipulation that the consent is conditional upon the child being raised in the Roman Catholic faith.
            The child currently resides with foster parents, Mr and Mrs B.  She has been there since 23 April 1999 having been formally with other placements.  In her previous placement the Trust record that she engaged in self-harm, was occasionally aggressive and had irregular eating habits.  (She has been in foster since 25 June 1998).  Prior to being placed with Mr and Mrs B in April 1999 there were thus behavioural and emotional indicators that she found changes in her circumstances and erratic contact patterns with her mother difficult to deal with.  The Guardian Ad Litem records that similar to any child of her age she needs physical and emotional nurturing in a stable, consistent environment where she can make the secure and permanent attachment which have been absent in her life prior to her placement with Mr and Mrs B.  The Trust has submitted a care plan for T, that is one of adoption outside her family.  The southern area adoption panel met on 9 March 2000 and recommended T as suitable for adoption.  B has not availed of contact with her daughter since 29 March 2000 when she failed to attend a scheduled contact without explanation.  She thereafter indicated to the Trust through her legal representatives that given the care plan of adoption she had no wish to have further contact with T.  Accordingly given T’s age and past history there is an increasing need for stability and security in her life.  At her young age she has had various disruptions and interruptions in her life and there is now the prospect of her enjoying permanency through adoption which could offer the optimum conditions she will need in her life in the future.  Needless to say, this is only the evidence before me at this stage of these proceedings and it may be subject to challenge or change as time progresses.  No application is before me as yet for this child to be freed for adoption and I keep an entirely open mind as to the prospects of success of such an application if and when such a matter is brought before this court.  The relevance of the background material I have set out at this stage is therefore considered only in the context of the present application where it is unchallenged.  Mr and Mrs B, the current foster carers, are Protestants and attend the local Presbyterian church.  T is included in the membership of that congregation.  It is relevant to note that during the period that she resided with her mother she was not raised as a Roman Catholic, but rather in the Protestant tradition in common with her older siblings.  The four other siblings have been raised in the Protestant tradition and continue to be so in the care of her father the second named respondent.  From her arrival in Northern Ireland 1987 until 1998, the Trust alleged that B herself attended worship in the Church of Ireland and sent her older children to the local primary school which she characterised as a “Protestant” school.  B did not resume her practice of the Roman Catholic faith until 1998, allegedly.  It is also alleged by the Trust that T was placed in a Protestant placement in July 1998 and that B did not register any objection to the placement.  It is the Trust case that during 1999 B resumed her attendance at the Church of Ireland and in May 1999 indicated her agreement to the child being raised within the Protestant community.  By April 2000 however when B was appraised of the care plan she had reverted to her desire to have the child raised in the Roman Catholic tradition.
The legal background
1.         The Adoption (Northern Ireland) Order 1987 (“the 1987 Order”) Article 16 records:
“(1)      An adoption order shall not be made unless –
(a)        …
 
(b)       In the case of each parent or guardian of the child the court is satisfied that –
 
(i)         he freely, and with full understanding of what is involved, agrees –
 
(aa)      either generally in respect of the adoption of the child or only in respect of the adoption of the child by a specified person; and
 
(ab)      either unconditionally or subject only to a condition with respect to the religious persuasion in which the child is to be brought up, 
 
            to the making of an adoption order.”
 
            As yet there is no application before me to free this child for the purposes of adoption or for adoption.  Accordingly Mr Toner QC who acts on behalf of the applicant Trust conceded the proper place to determine all matters arising out of Article 16(1)(b)(i) of the 1987 Act is when that application is before me.  Accordingly I make no determination of that issue at this stage.
2.         Article 52(6) of the Children (Northern Ireland) Order 1995 states:
“(6)       While a care order is in force with respect to a child, the authority designated by the order shall not –
 
              (a)      cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made; or
 
              (b)      have the right –
 
              (i)       to consent or refuse to consent to the making of an application with respect to the child under Article 17 of the Adoption Order;
 
              (ii)      to agree or refuse to agree to the making of an adoption order, or an order under Article 57 of that order, with respect to the child; or
 
              (iii)    to appoint a guardian for the child.”
 
            Article 52(6)(a) is the immediate problem which confronts the Trust and which it submits needs to be dealt with at this stage.  Whilst the Trust entertains some doubts as to the sincerity of B’s desire to have the child brought up as a Roman Catholic, for the purposes of this application Mr Toner was prepared to accept that on the probabilities, given the current religious persuasion of B and the fact that the child would have been in her care but for the care order, the child therefore would have been brought up as a Roman Catholic at this time if the order had not been made.  It should be recorded however that the father of this child does not favour her being brought up as a Roman Catholic.  Mr Toner in terms asks the court to sanction the maintenance of the status quo pending a hearing of a freeing application which will be mounted in the relatively near future.  In short the Trust submits that under the terms of 52(6) the Trust shall not cause T to be brought up other than as a Roman Catholic, but to effect this circumstance, it would be necessary to remove the child from her present foster carers with all the attendant damage that that might be occasioned to this child.  I heard evidence from Ms Benson, social worker from the Trust, who described the background of the child as I have indicated above.  She concluded that if the child is moved yet again there is a danger of irreparable damage and physical harm to her.  The witness told me that she had raised the possibility of the child being brought up a Roman Catholic whilst with her present foster carers.  However they had formed the opinion that this simply was not possible, given their own religious commitments and the logistics of attempting to educate, school and raise a small child in a different religious persuasion from that of her foster carers.  In short to educate the child as a Roman Catholic she would have to be taken from the present carers and a different set of carers sought.  The Trust has indicated that they have explained to B that she can withdraw her consent at any time and that she will again be offered adoption counselling to make plain the whole matter to her.  The Trust has also undertaken to continue to review the whole situation with the mother’s views in mind, although realistically it is not anticipated that it would be in a position to accommodate the mother’s wishes on religion whilst protecting the welfare of the child.
3.         The court must bear in mind Article 3(1) of the 1995 Order which states:
“Where a court determines any question with respect to –
 
(a)        the upbringing of a child; or
 
(b)       the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.  “
 
4.         It seems to me that there is no conflict whatsoever between the obligation of the court to make the child’s welfare the court’s paramount consideration and the obligation on the authority under Article 52(6).  Under the latter, the obligation is on the authority to cause the child to be brought up in the same religious persuasion that he would have been if no order had been made.  It is a different matter for the court to decide if that should be done in light of the obligation under Article 3 where the test for the court is the welfare of the child.  I consider this proposition to be consistent with the European Convention on Human Rights and the Human Rights Act 1998.  On the one hand under Article 2 of the First Protocol of the European Convention on Human Rights, the State shall respect the rights of parents to ensure education and teaching and conformity with their own religion and philosophical convictions.  Parents must be involved in the decision-making process to a degree sufficient to provide them with the requisite protection of their interests.  If they are not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 of the Convention.  Article 6(1) affords the procedural safeguard of access to a court.  (See McMichael –v- UK 1995, 20 EHRR 205).  But equally so it is a legitimate aim to protect the interests of the child.  Children’s measures vary throughout Europe but consideration of what is in the best interests of the child is in any event of crucial importance.  The national authorities recognise the benefit of direct contact with all the persons concerned and the margin of appreciation will vary in the light of the nature of the issues and the seriousness of the interests at stake.  (See Johansen –v- Norway 1996, 23 EHRR 33). 
5.         Mr Toner urged on me that the court should, in instances such as this, exercise the inherent jurisdiction of the court.  In Re L (an infant) 1968 1 AER 28 at page 24G Lord Denning said:
“The inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways.  This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits…..  The general jurisdiction of the High Court as a superior court of record is, broadly speaking, unrestricted and unlimited in all matters of substantive law, both civil and criminal except insofar as that has been taken away in unequivocal terms by statutory enactment.”
 
            Prior to the implementation of the Children Order 1995 the exercise of the inherent jurisdiction of the High Court in respect of children was synonymous with wardship, because of the well defined machinery for its implementation and the automatic protection it provided.  Article 173(1) of the 1995 Order, places restrictions on the use of wardship jurisdiction and on the circumstances where the court shall exercise its inherent jurisdiction with reference to children.  Effectively this reflects the spirit of the order which is to set aside the former power of the court in wardship and to remove from the court any continuing control over children after the making of a care order unless or until a further application is made to the court.  Responsibility for the child now passes to the local authority in the wake of a care order.  Further arrangements for the child, by virtue of the care order, have effectively now been handed over to the local authority.  However this is not to suggest an abdication of responsibility by the court, but rather that it acts in accordance with the intention of the legislation.  Consequently under Article 173, inter alia a court shall not exercise its inherent jurisdiction in respect of children, so as to make a child who is a subject of a care order a ward of court.  Similarly under Article 173(d) the court shall not exercise its inherent jurisdiction for the purpose of conferring on any Board or Health and Social Services Trust power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.  Similarly, a court can not make a specific issue order where a child is in care pursuant to Article 9(1).  The end result is that there are now only a very limited number of areas where the use of the inherent jurisdiction can be introduced, particularly when a child is in care (as is the present instance).
            It seems to me however, that the present instance is a classic case where the court does have jurisdiction to make a declaration in the terms sought.  Undoubtedly Article 52(6) does define restrictions on parental responsibility by the Trust in the exercise of its powers under a care order, but that does not preclude the court exercising its own jurisdiction, guided as it must be by the paramountcy of the welfare of the child in certain areas.  It seems to me on the evidence that it would clearly be against this child’s welfare at this time to be taken away from the present foster carers.  The impact of such a move would be not only traumatic, but I suspect immutable.  Clearly it is incumbent on the Trust to keep this matter under constant review and to determine regularly whether or not steps cannot be taken to meet the obligations under 52(6) consistent with the welfare of the child.  I am satisfied that the present situation does not permit the wishes of the mother with reference to the religious upbringing of this child to be accommodated in the interests of the welfare of the child.  In doing so needless to say the court makes it absolutely clear that it makes no comparative analysis whatsoever of any religious denomination, persuasion or education.  The court readily recognises that the religious upbringing of a child may be an element of fundamental importance, but it must be seen nonetheless in the overall context of the general welfare of the child.  Ms McGaughey who acted on behalf of the Official Solicitor, helpfully drew my attention in the course of an admirably succinct and comprehensive argument to the judgment of Wilberforce J in Re E (An infant) (1963) 3 AER 874 at 879 where he said:
“These authorities establish the basis on which I deal with this case, namely that in wardship proceedings the paramount consideration is the welfare of the infant.  Welfare is not limited to material welfare.  The religious upbringing is an element of great importance.  An illegitimate child’s mother’s wishes are of great significance and must not be merely disregarded.  They must be very seriously regarded by the court.  The court will certainly not substitute its views for hers, but they must be considered with all matters bearing on the welfare of the child, both long term and immediate.  The court is not bound to give effect to them when satisfied that the child’s welfare requires otherwise and in giving effect to them the court has the power to do so in such a manner as it may consider to be in the child’s interest.”
 
            I endorse entirely the view urged on me by counsel that this is the test which has to be applied in the present instance.  It is inconceivable in my view that Parliament intended the Trust and the court should remain powerless under Article 52(6) even where to insist on the parents wishes would be patently detrimental to the welfare of the child.  On the unchallenged evidence before me at this time, to bring about the immediate removal of this child from her present foster carers in light of the history of displacement, behavioural dysfunction and trauma which this child has manifested in the past will potentially occasion in my view grave and substantial harm to the psychological well-being of this child now and in the future.  To upset the present arrangements into which she has now so successfully settled, would be contrary to the welfare of this child at the particular time that this application comes before me.  Quite clearly the Trust is restricted under Article 52(6) in what it can do in terms of this child’s religious upbringing.  The court is not similarly restricted in the exercise of its inherent jurisdiction.  Where the welfare of the child demands that the status quo be maintained then I am satisfied that the court has jurisdiction to step in and ensure there is no departure from the obligation placed on it under Article 3.
            Accordingly I shall make the following order:
“Pending further order of this court, the Armagh and Dungannon Health and Social Services Trust shall not be required to cause the child D to receive instruction in the Roman Catholic faith and shall not be required to cause the child to attend a Roman Catholic school.  All parties shall have liberty to apply.”
 
            I reiterate however that these are conclusions which I have reached on the evidence currently before me where the Trust witnesses have not been challenged and where the mother of this child has chosen not to appear, to give evidence or to be represented.  I recognise that if the Trust proceed to mount an application to free this child for adoption or for adoption new light may be thrown on these issues and a different conclusion may be countenanced.  Accordingly this decision places no unreasonable restraints on the hearing of further or other evidence on any such freeing for adoption or adoptions applications.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
 ________  
 
FAMILY DIVISION
 
 _____ ___

RE: T (A CHILD) (ARTICLE 16(1)(b)(i) ADOPTION (NORTHERN IRELAND) ORDER 1987 AND THE INHERENT JURISDICTION OF THE COURT)
 
 ________ 

J U D G M E N T
 
O F
 
GILLEN J
 
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