Neutral Citation no. [2001] NIFam 7
Ref:     
GILF3389

 
Judgment: approved by the Court for handing down
Delivered:
24.03.2001
(subject to editorial corrections)

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
 ________ 
 
FAMILY DIVISION
 
 ________ 
 
RE: NI and NS (FREEING FOR ADOPTION WITHOUT PARENTAL CONSENT: CASE ORDER)
 
 ________ 
GILLEN J
 
            This is an application by the Sperrin Lakeland Health and Social Care Trust (“the Trust”) in respect of two children, namely, NI and NS.  In the case of NI the application is for an order freeing NI for adoption without parental consent, pursuant to Article 18 of the Adoption (Northern Ireland) Order 1987 (“the 1987 Order”).  The second matter arises out of an application by the same Trust seeking a care order under Article 50 of the Children (Northern Ireland) Order 1995 (hereinafter called “the 1995 Order”) in relation to NS.  J is the mother of both children.  C is the father of both children.  In the case of C on foot of a parental responsibility agreement, it is necessary for his consent, as well as that of J, to be dispensed with before a freeing order can be made in the case of NI.  In the case of NS, C has also been joined as a party to the proceedings.
            In both cases if the orders sought by the applicants are obtained, J and C seek contact orders in relation to both children in each instance.
            The statutory provisions governing applications to free for adoption are found in the 1987 Order.
            Article 9 sets out the duty to promote the welfare of the child as follows:
“In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall:
 
(a)        have regard to all the circumstances, full consideration being given to 
 
(i)        the need to be satisfied that adoption or adoption by a particular person or persons will be in the best interests of the child; and
 
(ii)       the need to safeguard and promote the welfare of the child throughout his childhood; and
 
(iii)      the importance of providing the child with a stable and harmonious home; and
 
(b)       so far as practicable, first ascertain the wishes and feelings the child regarding the decision and give due consideration to them having regard to his age and understanding.
 
The freeing of a child for adoption without parental consent is dealt with in Article 18 which insofar as it is relevant is as follows:
 
(1)        Where on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an adoption order should be dispensed with on a ground specified in Article 16(2) the court shall make an order declaring the child free for adoption.
 
(2)        No application shall be made under paragraph (1) unless –
 
(a)        The child is in the care of the adoption agency; and
 
(b)       The child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption.”
 
            Article 3 of the 1995 Order provides that where a court determines any question with respect to the upbringing of a child “the child’s welfare shall be the court’s paramount consideration”.  Article 8(3) defines for the purpose of that order “family proceedings” as including any proceedings under the adoption order.  
            In either freeing or adoption proceedings, the court has the power to dispense with the parents’ agreement to adoption on one or more of six specified grounds set out in Article 16(2) of the 1987 Order.  The relevant ground, and the ground relied on by the Trust in the case, is that the parent is, in each case, withholding her or his agreement unreasonably pursuant to Article 16(2)(b) of the Order.
            Dispensing with agreement to adoption involves the court in a two stage process:
(1)        Is adoption in the best interests of the child?
(2)        If so, is a ground or grounds of dispensation proved on the balance of probabilities.
            These two stages are separate and must be considered by the court in this sequence.  The consideration of whether parental consent should be dispensed with must be undertaken and decided at the time when the freeing for adoption order is made.
            If I come to the conclusion that adoption is in the best interests of the child, I must turn then to consider whether or not the Trusts have satisfied me that J and C, the parents of the child, are withholding their agreement unreasonably.  The leading authority on the meaning of the ground and the test that the court should apply is the House of Lords decision in Re W (an infant) (1971) 2 AER 49.  During the course of the leading opinion, Lord Hailsham described the test in this way:
“The test is reasonableness and nothing else.  It is not culpability.  It is not indifference.  It is not failure to discharge parental duties.  It is reasonableness and reasonableness in the context of the totality of the circumstances.  But, although welfare per se is not the test, the fact that a reasonable parent does pay regard to the welfare of his children must enter into the question of reasonableness as a relevant factor.  It is relevant in all cases if and to the extent that a reasonable parent must take it into account.  It is decisive in those cases where a reasonable parent must so regard it.”
 
            In Re LF (freeing for adoption without parental consent) and Re ELF (care order and freeing for adoption without parental consent) (Gillen J unreported) I have set out developments in the law since Re W on this matter.
“In Re C (a minor) (adoption): parental agreement: contact (1993) 2 FLR 260 the court suggested that the test may be approached by the judge asking himself whether having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appears sufficiently strong to justify overriding the views and interests of the objecting parent.  That is an approach that has received further judicial approval most recently in Re F (adoption: freeing order) 2000 2 FLR 505.”
 
I believe this reflects what the author of Hershman McFarlane, Child Law and Practice Section H at paragraph 127 describes as the “discernible move within the decisions of the appellate courts towards greater emphasis on the welfare of the child as a factor and decisions relating to the parents reasonableness.”  In recognising this however, I observed the cautionary note sounded in Re H and Re W (adoption: parental agreement) (1983) 4 FLR 614 that short of amending legislation or further consideration in the House of Lords, there must be a limit to this shift.  Accordingly, I do not regard the decisions in Re C or Re F to be a departure from Lord Hailsham’s test in Re W and must be read in that light.  The matter has been further considered in Re B-M (a child) (adoption: parental agreement) 2001 1 ACR 1.  In that case the natural mother of a child appealed against a ruling that she had been unreasonably withholding her consent to her daughter’s adoption.  The mother lived in the USA with the girl’s natural father and US immigration rules would entitle her to bring the girl to live there.  The girl, now aged 12, wished to join or visit her family in the USA when she was grown up.  She had not lived with her mother since the age of 8 months and had been placed with her foster mother now applying to adopt her at the age of 15 months.  However the position of the US family was far from secure.  Although the mother had rights of residence there the father did not.  They both had a history of involvement with drugs and the father was unlikely to achieve resident status.  The girl’s understanding of the situation in the US was more imagined than experience.  Her mother had visited her only once since 1993.  At first instance the judge balanced these disadvantages of adoption which were regarded as speculative against the more clearly established benefits to the girl.  She felt that the benefits of formally securing her position in a placement that had already been shown to be stable pointed to adoption.  The Court of Appeal held that her decision was firmly within the ambit of the discretion given to the judge and should not be overturned on appeal.  Perhaps the significance of this case is that it underlines that the issue is whether the judge believes that the advantage of adoption to the child justify overriding the views of the objecting parents.  Whilst I therefore observe that Re B-M is now of the genre as Re C (supra) and Re EF (supra), I still must recognise that the 1987 Order does distinguish between the two issues of whether the adoption is the best outcome for the child and thereafter whether the parents objections can be overruled.  I therefore reiterate that I do not regard any of these decisions to constitute a departure from the test in Re W (supra).
The above mentioned principles have governed my approach to NI where there already is in force a care order from 13 December 1999.
In the case of NS, a care order is sought.  Under Article 50 of the 1995 Order, a care order may only be made if the court 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 a parent to give him; or
(ii)       the child being beyond parental control.  
On granting the application of any authority or authorised person, the court will make an order placing the child with respect to when the application is made in the care of a designated authority or putting him under the supervision of a designated authority.  A care order cannot therefore be made unless the threshold criteria have been satisfied.  If the threshold criteria are satisfied, the court must then consider whether an order should be granted, and if so, what type of order, using the principle that the child’s welfare is of paramount consideration (see Article 3(1) of the 1995 Order) having regard to the matter set out in the statutory welfare check list at Article 3(3) of the 1995 Order.  The court must not make any order unless it considers it doing so would be better for the child than to make no order at all (Article 3(5) of the 1995 Order).  I also note that before a care order with respect to any child is made the court must consider the arrangements which the local authority has made or proposes to make for affording any personal contact with a child who is in the care of the local authority and invites the parties to comment on those arrangements.  The court will also scrutinise the relevant authority care plan for the child.  
In Re M (a minor) (care order: threshold conditions) (1994) 2 FLR the House of Lords held that where at the date of disposal, interim protective arrangements had been continuously in place, the relevant date was the date upon which the local authority initiated protective proceedings.  In this case an emergency protection order was granted in the case of NS on 4 August 2000.
Turning to the facts relevant to NI, I have arrived at the following factual conclusions on the basis of the evidence before me:
1.         NI was born on 7 November 1998.  Care proceedings in respect to NI were initiated after Mrs K, health visitor, made an unplanned visit to J’s home on 25 January 1999.  She had made a statement in this case found in bundle 2 at page 24.  She adopted that statement and dilated upon it in evidence before me.  She weighed the child weekly and on this particular occasion she noticed that the child, when stripped to be weighed, displayed purple colour linear bruising across her thighs.  When Mrs K asked J the cause the marks, J seemed more intent on cleaning up a carpet and failed to make to any eye contact with Mrs K.  When pressed initially she said she did not know but thereafter said she had noticed something on her legs on Friday or Saturday, but no other explanation was forthcoming.  On further examination Mrs K noticed bruising above one of the child’s wrists and again no explanation was forthcoming from J.  When Mrs K was looking at the bruising above the wrists, J said to her “could you look at her thumbnail.  I think there is something wrong there”.  On examination Mrs K discovered that the left thumbnail was completely missing.  Mrs K in her wide experience over 13 years with children had never before seen a baby with the nail off in this manner.  The explanation given by J at this stage was that the baby probably caught her nail on the edge of the cot or blanket.  Mrs K was not persuaded because she could not see that this would cause a nail to be hurt so badly.
This issue was also addressed by Dr O’Donohue.  He was the consultant paediatrician who saw NI on 26 January 1999.  He records seeing the bruises and the missing thumbnail mentioned by Mrs K.  He also recorded that J subsequently told him that she had become frustrated with NI and had squeezed her legs.  She reiterated the case that the thumbnail had come loose after she had been cutting her nails.  Of the bruising and squeezing explanation Dr O’Donohue said “This would in its own right constitute an unusual amount of force for a parent to apply and none of the circumstances constitutes non-accidental injury …. I do not believe the squeezing is a necessary and adequate explanation for all the injuries.  There is not an adequate explanation for the missing thumbnail and this may also be a manifestation of non-accidental injury”.
            Dr O’Donohue dilated upon these matters before me and was cross-examined about them.  Dealing with the nail he was adamant that he could not believe that being caught on a blanket would have been sufficient cause for this nail to have come completely off.  He could understand a small area of the nail becoming separated in such circumstances, but never the whole nail.  So far as the marks on the thighs were concerned, he described these as being linear and it was his opinion that if they had been caused by squeezing it is more likely they would have been oval in shape and not rectangular as found.  He had an extensive experience of looking at incidents where squeezing had occasioned bruising and he did not consider that these marks were consistent with it.  He indicated that he did not believe these marks could have been caused without the mother knowing they were being caused, provided of course they were done in her presence.
            Finally in this regard I note the evidence of Mary Gormley, social worker, employed by the respondent.  In her 23 years experience with cases involving babies, she had never come across a case of a child loosing its nail in these circumstances.
            J did not give evidence before me on this matter, but I have had the opportunity to read the account of this incident which she gave in her affidavit of 5 July 2000.  At paragraph 4 she said:
“In the few days prior to 25 January 1999, instead of having a health visitor or social worker call, no-one called with me, and I found it difficult to manage NI who was approximately 10 weeks old.  I accept that NI did have bruising on her legs and missing thumbnail on that date.  I believe I caused the bruising to her legs accidentally when I was changing her nappy.  I also accidentally caught her thumbnail when I was trying to remove a rag nail.  Both these injuries were caused accidentally and I did not intend at any stage to cause any harm or pain to NI.”
 
            Before coming to a conclusion on this matter, I must of course remind myself that the standard of proof which is applied by all courts in cases concerning the welfare of children is that of proof on the balance of probabilities (the civil standard).  In Re H & Others (Minors) (Sexual abuse: standard of proof) (1996) 1 AER at page 1, the House of Lords define the balance of probabilities that applies to children’s cases in the leading speech of Lord Nicholls:
“The balance of probabilities standards means that a court is satisfied in the event that occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities.  Deliberate physical injury is usually less likely than accidental physical injury.”
 
            It is also for the party who raises an allegation of any form of harm to a child to establish the facts of past harm on the balance of probabilities.
            Having considered all these matters I have concluded that this child was subjected to non-accidental injury whilst in the care of J and that J was responsible for these injuries to this child.  
2.         Having heard the evidence of Dr Caterin Gabriel, consultant clinical psychologist, having read and heard the evidence of Mary Gormley, social worker with the defendant Trust and having read J’s statements and affidavit together with all the other evidence in the case, I have come to the conclusion that Dr Gabriel is correct when she assesses J’s problems as follows in her report of 20 June 1999:
I have particular concerns surrounding her problem solving and planning abilities especially in unfamiliar situations and her ability to comprehend the implications and impact of her actions and decisions.  I would suggest therefore that J lacks some of the skills necessary to recognise and respond appropriately to the changing needs of her daughter and to create a balance between her own needs and those of her child.  It is likely that J would require an extremely high level of ongoing and intensive professional support, supervision and education in order to compensate for these deficiencies.”
 
            I am of this view for the following reasons:
(a)        This was Dr Gabriel’s conclusion following her detailed assessment of J on two occasions in 1999.  In particular she indicated in evidence before me that she would be concerned that if a child was distressed, J would not know what to do.  She has a restricted level of intellectual ability and is functioning within the category of borderline intellectual ability.  Her level of emotional maturity is also restricted.  If J has a goal and knows that she is working towards it, then she can deal with the matter.  However if she is distracted then, without assistance, a major problem arises in looking after a child.
(b)       This is well illustrated in the report of Ms Gormley of 21 July 1999 found at bundle 2 page 16 onwards of the papers before me and in her evidence.  That assessment was based on 24 sessions where J had contact with NI.  In 18 of these sessions Ms Gormley undertook the assessment.  Ms Gormley noted:
(i)        Throughout the duration of the assessment there was significant evidence of J’s impatience with her daughter and the subsequent increase in sharp and derogatory language.  Towards the end of the assessment J’s use of swear words increased, although this was not directed at NI.  On 13 May 1999, for example, NI had a small spit and J responded harshly saying “I’ll not give you a bottle if you are going to be sick, I’ll starve you”.  On 15 June 1999 when NI had a small spit again, J responded loudly saying “Take her, she’s turning my stomach, she’s turning stomach.”  Dressing and undressing NI also caused J difficulty throughout the period of assessment.  Due in part to J’s own poor fine motor skills, on 12 April 1999, NI’s leg was slightly twisted under her while being changed and J appeared not to notice until this was pointed out.  At times when these difficulties arose, J laughed, apparently uncontrollably.  On 13 May 1999, NI started to kick when her nappy was removed and J said to her daughter “to stop it” and “stop messing” and then remarked to Miss Gormley “she’s doing that badness … she’s an awkward wean”.  Worryingly numerous critical comments were directed at NI during the course of eating and learning.  On two occasions J accused NI of hitting her.  A particular incident of this occurred on 15 July 1999.  On that session J was apparently giddy and volatile throughout the session.  She was very excitable and had been quite rough in her play with NI.  J was throwing NI into the air and NI’s arms were flailing about.  Suddenly J stopped abruptly and shouted “don’t hit your Mummy, stop that”.  At the same time J quickly raised her hand above N’s head – fingers straight up and palm facing the baby’s head.  Miss Gormley immediately began to try to calm J down and at this point had to instruct her to desist.  I found this particularly alarming in light of the previous history of non-accidental injury to this child.
            These are but a select few of a number of instances where her impatience and unpredictability created a matter of grave concern to Miss Gormley and emphasised to me the risks inherent on this mother/daughter relationship.  
(c)        Miss Gormley also noted that J’s confidence in carrying out basis tasks were low and although some improvements were noted throughout the sessions J continued to look for and require advice and direction throughout the assessment.  Of greatest concern to Miss Gormley was J’s tendency to laugh inappropriately at times when NI was in discomfort.  In particular on 22 April 1999 J started to laugh when NI showed signs of distress while having her clothes changed.  J persisted in changing the clothes even after Miss Gormley had asked her to stop.  Miss Gormley had to intervene to extract NI’s foot after it got caught in dungarees.  NI cried and whimpered throughout and J laughed throughout.  Again on 1 July 1999 J laughed after accidentally banging NI’s head of a cupboard door.  These are again but illustrations of numerous instances where I consider this child to be at risk if left unsupervised or unattended whilst in the care of J.  Whilst there was some evidence of learning and development in terms of physical contact with the child, and mother and daughter became more comfortable in the assessment, nonetheless the overall picture was one that alarmed me greatly.  In particular I entertain grave concerns about J’s losing control in a context where this child had already suffered non-accidental injuries of the type I have already outlined.  These gaps in her mental and emotional makeup are regretfully not filled or complemented by her relationship with C.  This is clear from the many reservations expressed by Miss Gormley and others concerning the relationship between J and C.  As I will indicate shortly, I consider that C’s level of motivation is highly questionable and he lacks appropriate problem solving skills necessary to supplement the deficiencies of J in caring for these children.  Having heard evidence from C and having viewed him carefully, I endorse entirely the view of Dr Gabriel that he fails to demonstrate an adequate level of emotional maturity and adaptive coping skills necessary to enable him to deal with the responsibilities and often unpredictable demands of parenthood.  The relationship of J and C is inherently unstable and unpredictable, with overtones of domestic violence, mutual impatience and intemperate outbursts.  
(d)       All of my views were heavily underlined by the evidence of Professor Tresilitotis.  He reported on this matter on 9 March 2000 and also give evidence before me.  His conclusion was that the risk factors to NI were such that in his opinion the scales should be heavily loaded against the return of this child NI to J or C.  He concluded, and I agree having heard the evidence of Miss Gormley, that there has been no improvement in the parenting skills of any material degree over the past two years with reference either to NI or for that matter NS to whom I shall subsequently return.  Both in terms of the danger of direct violence to the child or the child witnessing scenes of violence between the parents, there is ample scope for NI to suffer from exposure to such behaviour.  Despite J’s regular attendance at the assessments which was urged on me by Mr Ferriss QC as evidence of her motivation to change and to improve, the fact of the matter is that there has been no real evidence of practical change vis a vis NI.  
            In relation to NI I turn now to consider C.  I should say immediately that he was not there when NI suffered the non-accidental physical injuries to which I have earlier referred.  C however has in the past exhibited a complete lack of motivation in caring for NI and he lacks the appropriate problem solving skills as outlined by Dr Gabriel.  He has not availed of contact with NI at the Family Centre since 18 December 2000.  Even before this his attendance at scheduled sessions for assessment had been very unreliable and intermittent.  For example the report of Miss Gormley of 14 October 1999 recorded that out of the scheduled sessions, he attended 7 and did not attend 10.  On 4 other sessions when the child was brought to her parent’s flat, he arrived late on 3 occasions.  On the fourth occasion both J and C had slept in and were only aroused after a 15 minute waiting period.  On those occasions when they did appear, there was open hostility between them.  Miss Gormley observed a lack of bonding between C and NI which, in her opinion, pointed to a lack of security for NI within the family.  On those occasions when J had been harsh and impatient with NI, C failed to intervene on NI’s behalf.  For example, on an occasion on 7 October 1999 when J put her fist to NI’s face.  Understandably Miss Gormley recorded that J and C’s lack of understanding regarding how they were fighting and swearing at each other could impact adversely on NI.  C paid very little attention to NI on these occasions of his visits for assessment.  It was noteworthy that C did not address NI by her given name, he did not ask about his daughter on the occasions when he phoned to cancel his visits and generally displayed a lack of concern for the child’s physical and emotional care.  These assessments had occurred up until 7 October 1999.  A further period of assessment began 14 October 1999 until 9 December 1999.  A total of 18 opportunities for access between NI and her parents were provided.  C turned up on 5 occasions out of the possible 18.  In evidence before me he rendered various spurious excuses such as the necessity to collect his unemployment money as to why he did not attend.  I was left with a clear impression that he was devoid of real motivation.  Further attempts were made between the period 16 January 2001 and 26 February 2001 to afford supervised contact once a month for J.  The pattern as before continued.  On occasions he cancelled shortly before the visit was due to start without adequate reasons.  
            Accordingly I share the view of Professor Tresilitotis that C has not availed of the opportunities to access his child and when he has, much of the time has been spent not interacting with the child, but rather dealing with extraneous matters.  He displays a lack of ability to commit himself to the welfare of the child.  I recognise of course that he has intellectual problems and that at these assessments he was subjected to severe criticism by J.  However, this is a man who has had a great deal of assistance in the past, both from hospital, psychiatric help and social workers, particularly over the last two years to try to increase his parenting skills.  It seems to me that we have now reached a finite position where it has to be said that rehabilitation is no longer an option.
            I have concluded therefore that taking all these factors into account I have no doubt that adoption is in the best interests of this child and is necessary to promote the welfare of NI.  I have had full regard to all these circumstances including the need to be satisfied that adoption would be in the best interests of the child, the need to safeguard and promote the welfare of the child throughout her childhood and the importance of providing her with a stable and harmonious home.  The child is obviously too young to give her own opinion.  I am also satisfied that adoption is preferable to long term foster care in this instance.  Professor Tresiliotis concluded that adoption instead of long term foster care is the preferable option in this case.  It will provide NI with continuity of care, a secure base in life, permanence, a family to which she will legally and emotionally come to belong, and a psychological base in life.  He recorded that the research evidence suggest that unlike long term foster care, adoption can almost guarantee all these qualities.  For a child of NI’s age, there should also be no shortage of adopters and the chances of the adoption succeeding are very high indeed.  Already adopters have been identified for her.  There was clear evidence before me that she is to be placed for adoption.  She is already subject to an interim care order.  Rehabilitation does not seem to be an option in her case.  The danger of drift is very much alive in this case.  Professor Tresiliotis said that research shows that if a child is in care for over 2 years, there is scarcely any prospect of reunification with the parents.  Long term foster care can of course provide a good enough result but in his view the continued uncertainty of long term foster care as opposed to the certainty of adoption could serve to erode this child’s sense of security and of having a parent.  This child requires a stable secure sense of belonging.  The arguments for and against adoption in such circumstances are well known and I would repeat what MacDermott LJ (as he then was) said in Re MC (31 October 1997):
“Though the traditional view is that adoption is preferable to long term fostering, Dr Marriott and Mr Ferguson recognised that this is not a universal view and apparently there are differences of opinion within this Trust upon this issue.  The evidence which I have heard favours adoption in this case and no professional opinion was led to support the view that for this child in her situation long term fostering was a better option.  For my part, and in the absence of the evidence of the contrary I remain satisfied that the clear opinion is stated by Ormrod LJ in Re H (1981) 3 FLR 386 represents as good sense today as it did 16 years ago.  He said:
 
‘That answer to always the same – and it is always a good one – adoption gives us total security and makes a child part of our family and places us in parental control of the child; long term fostering leaves us exposed to changes of view of the local authority, it leaves us exposed to applications and so on by the natural parent.  This is a perfectly sensible and reasonable approach: it is far from being only an emotive one.’”
 
            My conclusion therefore is that adoption is in the best interests of the child.
            Next I must move to consider whether or not the Trust have satisfied me that J and C, the parents of the child, are withholding their agreement unreasonably.  I have already dealt with the authorities which govern the approach in this case.  In this instance I have decided that the advantages of the adoption for the welfare of the child are sufficiently strong to justify overriding the views of the objecting parent.  I have to consider what a hypothetical reasonable parent would do when deciding whether or not he or she would consent to NI being adopted.  Having looked at all the evidence which I have and in applying the current values of our society, the advantages of adoption to the welfare of this child must be sufficiently strong to justify overriding the views of the objecting parents.  The advantages are objectively so great and the capabilities of these parents to manage the care for this child are so poor, that I have concluded they are both unreasonably withholding their consent.  In arriving at this conclusion I have taken into account the following matters.  
(a)        The reasonableness of the refusal of J and C has been judged as at the date of the hearing.
(b)       I have taken into account all the circumstances of the case in particular those matters that I have outlined earlier in this judgment.
(c)        Whilst the welfare of the child has been taken into account I have not regarded it as the sole or necessary paramount criterion.
(d)       The test I have applied has been an objective one.  Could a reasonable parent in the position of J and/or C withhold consent?
(e)        The test I have applied is reasonableness and nothing else.
(f)        I have been wary not to substitute my own view for that of the reasonable parent.
(g)       I have taken into account the band of differing reasons which may be given for objecting, each of which may be reasonable in any given case.
            I have considered also the question of contact between J and NI and also between C and NI after the freeing order has been made.  The result of this order is that the care order of 16 December 1999 now ceases to have effect and parental responsibility now vests in the Adoption Agency which obtained the order ie. the Trust.  The court can of course make an order for contact under Article 8 at the same time as the freeing order is made.  However the court must bear in mind that there is a problem that if the court makes a contact order thereafter the Trust has no power to make an application in respect of that order.  It seems to me that there is merit in the suggestion in this case both by the Trust and by the Guardian Ad Litem (contained in an extremely helpful written submission by counsel acting on behalf of the Guardian Ad Litem) that the maximum degree of flexibility so necessary to contact pending the adoption application is obtained by making no order.  Endings are clearly very important in terms of the parental/child relationship but the degree of phasing may vary depending on whether or not adoption proceedings are mounted within a short time or a somewhat longer period. Flexibility is crucial.  If the Trust did not honour their indication to this court that they intended to permit phased, albeit reducing contact, then of course it would be open to either parent to bring an application pursuant to Article 10(2)(b) of the 1995 Order for leave to apply for an Article 8 order.  Accordingly it seems to me that in order to afford an appropriate opportunity to facilitate a shared saying goodbye to NI the no order principle should be invoked with reference to contact and maximum flexibility be therefore maintained.  I therefore make no order with reference to contact in relation to NI in respect of either parent.

NS
            I should say immediately that I have come to the conclusion that in this case I must grant the application of the Trust that I make an order placing this child in the care of the Trust under Article 50 of the 1995 Order.  I am satisfied that the threshold criteria have been satisfied.  The reasons I shall set out below.  Having been so satisfied I have considered whether an order should be granted and if so what type of order using the principle that the child’s welfare is of paramount consideration and having regard to the matter set out in the statutory welfare checklist at Article 3(3) of the 1995 Order as set out below.  I have concluded that it is better for this child that I should made such an order rather than make no order at all.  I have considered the arrangements which the Trust has made or proposes to make by way of a care plan for this child and I find it satisfactory.  As I will indicate below I have also considered the arrangements for affording any personal contact with this child and I have invited the parties to comment on those arrangements.  Finally I should add that I have considered that the relevant date in this case was when the Trust initiated protective proceedings by way of an emergency protection order on 4 August 2000.
            My reasons for these conclusions are as follows:
(1)        I have taken into account the non-accidental injury which was occasioned to N1 as part of my consideration of the issues as to whether NS is likely to suffer significant harm and that such harm would be attributable to the care likely to be given to him if the order were not made, that care not being what it would be reasonable to expect a parent to give him.  I have already outlined the details of that incident and the injuries to NI.  In this context I note that Miss Gormley in the course of her parenting assessment of J and C with reference to NS (contained in her report of 11 December 2000 referred to in booklet 4 page 123 onwards) addressed this very issue.  At page 167 she records:
“When addressing the reasons and purpose of this assessment with the couple I attempted to address the issue of the non-accidental injury inflicted on their daughter NI which led to her removal from J’s care.  Initially C blamed the lack of support at night for J when she was caring for NI.  He then added that he was also to blame for not being there …. J’s starting point was that she ‘supposed’ that she was ‘to blame’ for what happened to NI but later stated that what happened to NI was her ‘fault’.  Although it can be said that this is some indication of accepting responsibility there appears to be little insight on the part of either parent regarding the effect on NI … little insight either was shown with regard to what changes they would have to make in themselves.  For example, J appeared to feel that if she was shown how to cut the baby’s nails that would resolve the issue.  On 12 September 2000 when discussing the visit by the health visitors for the following day J said that the only thing that she was worried about was ‘cutting his nails’ and went on to say ‘I don’t want what happened NI to happen to NS’.  Unfortunately on 17 October 2000 J expressed a very worrying and forthright view when she stated, when reference was made to NI’s non-accidental injury ‘It wasn’t my fault’ and went on to ‘blame’ the ‘people in Sixmilecross’.  When asked for clarification J stated ‘because they made me angry’”. 
 
This alone would have persuaded me that there is a real risk that NS will be exposed to the same kind of injury/significant harm that was occasioned to NI.  That in itself would have been sufficient to persuade me of the risk of significant harm to NS.
2.         Before making this order I have taken into account, as I did in the case of NI, all of the evidence which has been before me both in statement form (including those of witnesses not called but agreed to be put in before me) and in the evidence outlined to me.  Insofar as I do not refer in this judgment to every piece of evidence that has been before me, that is simply to recognise the vast array of evidence to which the confines of this judgment does not permit full reference.
3.         I endorse entirely the view expressed by Miss Gormley concerning J and C in the context of NS found in her report of 11 December 2000 at page 123-176 of bundle 4 particularly as outlined at page 171 and thereafter.  In brief my conclusions are:
(a)        Neither J nor C have exhibited an ability to recognise and respond to the changing needs of this child.  For example, on 25 August it was noted that as NS cried J’s voice became louder and louder and her language deteriorated.  She paced the kitchen and living floor red in the face and getting more and more irritated with C who attempted to settle NI.  Her tone of voice was very harsh and loud to the point of shouting.  Throughout the assessment there was a great deal of evidence that J’s level of anxiety was raised by NS crying and this in turn affected her coping skills and her ability to respond appropriately to NS.  C consistently failed to react positively to make attempts to support J.  As I will mention below that disharmony between J and C is ever present and they spend so much time in dispute between themselves that one can readily question their ability to tend to their baby.  They appear to show no capacity whatsoever for understanding the possible impact on NS of their harsh and often cruel treatment of each other.  In addition, as I have mentioned in the case of NI, J has a preoccupation with cleaning and tidiness that takes precedence over NS’s needs.  She is task orientated and seems unable to cope with the stage of development when the natural untidiness of the child intervenes.  My fear is that this would lead to the irritation, frustration and impatience not only evident in her treatment of NI but which may well have contributed to the non-accidental injury of NI.  In terms the assessment programme between 17 August 2000 and 17 November 2000 revealed occasions when her ability to provide for NS was so poor that she required assistance from Miss Gormley.  As usual she blamed someone else, for example, C for her inability to cope.
4.         C completely lacks motivation vis a vis NS in any worthwhile sense.  Miss Gormley recorded “the level of C’s commitment to NS has been appalling”.  His interaction with the child has been infrequent and intermittent.  Without any good reason or explanation to me, it is clear that he regularly failed to attend assessment sessions or opportunities to access NS.  Out of 64 possible contacts up until 26 January 2001 with NS, C has missed 52.  Of the 12 that he attended, he was late on 9 out of the 12 occasions.  This is typical of the complete failure to recognise the needs of this child. 
5.         As I have indicated above, the disharmony between these two parties J and C carries with it a grave risk for the well being of NS.  Their relationship is volatile and violent.  This surfaced on a large number of occasions.  During these altercations both parents levelled the most dreadful allegations at each other and used loud and abusive language.  By way of illustration on 24 October 2000 in the presence of the child, there was physical violence between the two of them and on two occasions Miss Gormley had to place herself between J and C.  On this occasion C shouted at J that he would speak to a solicitor about getting J charged as a “child batterer” (in relation to NI) and that she was a “slut”.  J accused C of being a liar and a batterer of herself.  Such was the fury of J on this occasion that when she was leaving and was reminded that NS had an upcoming immunisation and that it was important to know if she would be attending for access the next day, she stated that she was not going to ”waste money” phoning, that she was “not going all the way to the phone box” and then said “fuck NS” followed by “he is going to be fucked up anyway”.  This is typical of the intemperate and violent language and irresponsible behaviour to which these parties are given in the presence of this child.  A further incident of the domestic violence which concerns me is that on 31 October J alleged that C had physically assaulted and raped her twice.  A police investigation was instigated and J obtained an interim non-molestation order in respect of C on 17 November 2000.  C has admitted to Miss Gormley, and indeed to me, that he did assault her on this occasion.  Following the alleged assault, Miss Gormley observed on J a very noticeable bald patch on the top of her head which J indicated was a result of C pulling her hair out.  Miss Gormley had previously noted that J had bruising to her nose, ear and legs.  I note that Miss Gormley has drawn attention to academic authorities which conclude that there is considerable evidence that adult parents who are violent towards each other are also at an increased risk of abusing their children.  The risk of child abuse has been shown to be between 3 and 9 times greater in homes where the adult partners hit each other.  I conclude that domestic violence could have a very significant impact on NS’s life and life experiences and that the upset and harm of domestic violence is yet another grave risk which this child is likely to suffer in the context of Article 50 in the absence of a care order.
6.         Both J and C completely failed to acknowledge their own difficulties and responsibilities or to demonstrate a willingness to change their own behaviour.  In terms whilst there may be a loving relationship at times between J (and indeed even C) and the children, it is not an unconditional love that is exhibited but one that always puts their own needs before those of the children.  It is this that I fear carries the sense of menace overhanging NS were he to remain in the care of J and C.  
7.         Miss Gormley carried out a further assessment of J and C between 16 January 2001 and 26 February 2001.  It was quite clear from her report that nothing had changed and that no lessons had been learnt in terms of parenting skills or improved behaviour on the part of either J or C.  I was satisfied that ample opportunity had been afforded to both J and C to demonstrate a change in their attitudes, behaviour pattern or caring skills.  This they had failed to do.  The essence of the matter is that neither J nor C have demonstrated an ability to make NS their first priority in a chaotic and conflict ridden life.  As a consequence, as Miss Gormley says, the bonding/attachment process has not been developed.  
            Having concluded therefore that the threshold criteria have been satisfied, I then consider whether an order should be granted and if so what type of order using the principle that the child’s welfare is of paramount consideration.  I have taken into account the statutory checklist at Article 3(3) of the 1995 Order.  A brief reference will suffice:
(a)        The child is too young to have ascertained his wishes or feelings.
(b)       His physical and emotional needs clearly are great given his age and the fact that neither J nor C are capable of meeting them.
(c)        To change this child’s circumstances by putting him in the care of J and C would in my opinion affect him detrimentally.
(d)       The fact that he is so young and vulnerable are matters which I consider to be relevant.
(e)        I consider he is at risk of suffering significant harm due to the factors which I have outlined above.
(f)        For the reasons I have outlined above I consider that neither of his parents are capable of meeting his needs.
(g)       I have considered the range of powers which are available to me under this order and I have also considered the no order principle.  For the reasons I have set out above I have concluded that a care order must be made and that no order or no other order will adequately protect this child from significant harm.  I have considered the care plan proposed by the Trust for NS.  An adoption panel has now considered his case and recommended adoption for him.  It is anticipated that freeing proceedings will be issued in respect of NS in due course.  Reunification with the parents is not anticipated.  It seems to me that this a proper and appropriate care plan.
            The last matter that I have to consider in the case of NS is the arrangements which the local authority has made or proposes to make for affording any personal contact with the child who is now to be in the care of the Trust.  I have also invited the parties to comment on those arrangements.  It seems to be common case that there should be no distinction between the contact that is to be afforded to J and C given the very young age of Ns.  This seems a sensible approach to me.  The Trust also proposed to afford contact on a phase reduced basis to fortnightly contact for each parent.  
            It seems to me that the Trust proposals freely given for such contact are more than adequate to meet their obligations and if they were to resile from contact along these lines then an appropriate application might be made.  In all the circumstances I consider that the no order principle should apply to this question of contact and accordingly I make no order with reference to contact in the circumstances with NS.  I emphasis however I have done this on the basis of the indications outlined by the Trust as to the nature of the contact that they propose.  Whilst the child remains in care.
            Finally the court would be anxious that the Trust will facilitate sibling contact both now and in the future.  Miss McGale, assistant principal social worker, gave evidence before me that it is the Trust’s aim to promote such contact.  Foster carers of NI are also to promote such contact although they have indicated they are not in a position to accept NS as an additional adopted child.  They have not yet lost sight of the possibility but they have had a difficult period and are concerned about the process overall.  NS is now in the care of short term carers.  The Trust have indicated that they will seek to place NS with respective adopters who will also encourage such inter sibling contact.  I would strongly encourage this proposal.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
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FAMILY DIVISION
 
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RE: NI and NS (FREEING FOR ADOPTION WITHOUT PARENTAL CONSENT: CASE ORDER)
 
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J U D G M E N T
O F
GILLEN J
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