Jersey Unreported Judgments

[2009]JRC017

royal court

(Family Division)

6^th February 2009

Before     :

F. C. Hamon, Esq., O.B.E., Commissioner and Jurats Bullen and King.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF A, B, C (THE OLDER CHILDREN), D, E, F AND G (THE YOUNGER CHILDREN).

Advocate E. L. Hollywood for the Minister for Health and Social Services.

Advocate C. Hall for the First Respondent.

Advocate D. M. Cadin for the Third Respondent.

Advocate E. J. Le Guillou for the Fourth and Fifth Respondents.

Advocate S. A. Pearmain for the Guardian.

judgment

the commissioner:

1.        This case, one of two concerning Miss X, began in March of last year.  We have, since that time, received copious professional reports and heard both oral and documentary evidence on numerous occasions.

2.        By way of background, X has 7 children, the three eldest children from Y, who was sentenced to a prison term of 4½ years as a result of sexual offences committed prior to his marriage with X.  She changed her name by deed poll on 3^rd June, 2003.  X is the surname of X's former foster carer, but Mr X, in the reports that we have studied with some care, is alleged to be a sexual abuser.  By 2003 X had formed a relationship with Z and then had four children.  Z has, after a series of DNA tests, been shown to be the father of these four younger children (D, EL, F and G), who are the subject of these proceedings.

3.        We have an expert clinical psychology report (one of many reports that we have studied) from Dr Miriam Silver made on 6^th June, 2008, where we use her words (and she is talking of all of the children):-

"Although I felt that X loves her children, and does not have any intent to do them harm, it would be my opinion that she has clearly failed to recognise their needs beyond basic physical care.  The level of supervision she provides is low, her expectations of autonomy from the children are overly high, and she does not understand the meaning of their behaviour.  I believe that she does not have the capacity to provide appropriate boundaries and empathy to the children, and in fact responds in a very negative way to their emotional needs.

X also models very disturbed behaviour.  At times she is evidently very chaotic and emotionally un-contained and this is inevitably having a negative effect on the children.  Her strong need to shock and promote sympathy in others lead her to behave in ways that are highly dysfunctional, and there was a flavour of this evident in several inappropriate comments made with incongruous affect during the interview.

Overall, X maintained the position that she cannot see any faults in herself as a parent and I felt that she almost totally lacked reflective capacity.  She had no ability to look back over the past and consider how she wished it would be different in order to ensure that she does not pass on the negative behaviours that she has learnt from her experience of being parented to her children through her parenting.  She fails to recognise the risk that others present, particularly the risk of sexual abuse but also of emotional harm.

If would be my view that these deficits have been apparent for at least 10 years, and the fact that they remain despite the massive amount of practical support and intervention that has been provided to the family gives a very negative prognosis in terms of her capacity to change."

4.        On 9^th February, 2008, Z and X separated (Z had maintained a separate address during their relationship).  It is clear from the reports that we have read that X and Z cannot care for the four younger children.  The parties accept certain numbered paragraphs in the report of Miss Phillipa Dwyer, the Guardian ad litem of the four youngest children.  The two eldest of the four younger children (D and E) are, in the words of Miss Dwyer:-

"Currently living in Jersey with their paternal grandparents Mr and Mrs D and have since being placed there on 8^th February, 2008, have good attachments to their paternal grandparents who had also cared for them regularly since their births."

5.        We are asked, in relation to the four younger children, for a full care order so that the youngest can be placed for adoption (X does not agree to this course) and we also have to face the difficult problem of access to the children who are asked to remain with Mr and Mrs D.

A full care order for the two eldest children

6.        We have already expressed our concerns about Mr and Mrs D who are aged 61 and 66.  In the kinship report, Mr D is (or was) a smoker and Mrs D (who is older) suffers from diabetes, high blood pressure and high cholesterol.  We heard during the course of the hearing that Mr D has given up smoking and Mrs D has adapted her diet and has done all that she can to improve her health.  We naturally have to have regard to Article 2 of the Children (Jersey) Law 2002 which stated at Article 2(1)(a):-

"When the court determines any question with respect to-

(a) the upbringing of a child; or

...

the child's welfare shall be the court's paramount consideration."

7.        We have, of course, read all the reports most carefully.  In the addendum to the kinship care assessment report dated 16^th January 2009, the author states:-

"However on balancing the constraints and positive factors I would concur with the recommendations of the original kinship report that the placement appears able to meet the children's needs at this time but may require close support and monitoring to maintain viability."

We have carefully studied the kinship report which states at one point:

"Mr and Mrs D are open about the fact that they have few friends to call upon in relation to the needs of the children, stating this leads them to rely more on their family members and professionals around them."

There then follows a chart detailing who and how they can find support at all times.  We were informed that a planned respite programme to assist Z and X has been put in force.  There will, of course, be monitoring of the arrangements both ongoing and on a formalised basis every 6 months.

8.        In the light of the reports we have no hesitation in making the full care order requested and the children shall live with Mr and Mrs D.  We also make a full care order for the youngest four children.

9.        We heard much argument about access, from all counsel, that is access by Z and X.   We have reached a firm decision in regard to Z and we have no objection to him having supervised access to his children, initially twice a week.  The case of X is far more difficult.  We appreciate that Article 27(11) of the Children (Jersey) Law 2002 says that:-

"Before making a care order with respect to any child the court shall-

(a) consider the arrangements which the Minister has made, or proposes to make, for affording any person contact with a child to whom this Article applies; and

(b) invite the parties to the proceedings to comment on those arrangements."

Advocate Hall has said all that needs to be said on this matter.  We note particularly, as she has reminded us, that Dr Miriam Silver says in her report: "I would consider it suitable for X to have supervised access with (the two eldest children) around once per fortnight."  Having listened most carefully to all the arguments of counsel, and particularly to Miss Waugh, we are of the opinion that the gradual reduction of visits as envisaged by the Minister with the objective of quality visits four times a year is sufficient.  When Dr Silver made her views known the situation was different to what it is today and we have heard evidence as to how SL has behaved in her visits to the children.  We had listened carefully to counsel and we felt it necessary to give instructions to Advocate Hollywood as to what the parents were to do to improve themselves.  However, on retiring, we read the care plan and found this: "If X and Z consider they require additional services in the future, Children's Services will endeavour to provide information and refer them to the relevant agencies whenever appropriate."  We also heard from Advocate Pearmain (for the Guardian) who said that the contact should be a quality experience to help the children foster a sense of identity.

10.      We have therefore rescinded that instruction and, despite Advocate Cadin's protestations, we have declined to defer making this order.  We now turn to the youngest children, F and G.

11.      We have an application from the Minister for Health and Social Services under Articles 12(1)(b) and 13(2)(b) of the Adoption (Jersey) Law 1961 for an order that these children be made free for adoption.  Z has consented, X has not.  We have to bear in mind very carefully the provisions of Article 3 of the Adoption Law:-

"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."

12.      We have to ask ourselves whether the adoption is in the best interests of the child and is X unreasonable in withholding her consent.  To be fair to X she has written to say that she will "rest on the wisdom of the Court."

13.      In the matter of JS and BS [2005] JRC 108, the learned Deputy Bailiff cited the judgment of Lord Denning MR in Re L (1962) 106 Sol Jo 611 where he said:-

"But I must say that in considering whether she is reasonable or unreasonable we must take into account the welfare of the child.  A reasonable mother surely gives great weight to what is better for the child.  Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent.  We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case."

We are not going to say more than that.  We have carefully read the copious reports of all the experts.  We have no hesitation in freeing these two children for adoption.  Potentially adoptive parents have been located on Jersey and in the Isle of Man.  This Court would recommend that, if at all possible, the children should be placed together.  In so doing we note Miss Dwyer's recommendation that:-

"the two children be placed for adoption as soon as possible but consideration must also be given to the possible difficulties in finding the right adoptive placement for them together and whether their individual needs deserve greater consideration and possibly outweigh the need to place them together.  If in the near future (no longer than two months time) it becomes more apparent that placing them together is difficult to achieve, that consideration be given to opening up the search for appropriate adopters who are also off Island as it is my opinion that the need to find adopters as soon as possible outweighs these children's needs to be brought up in an environment of Island life."

We therefore free the two children for adoption and dispense with the mother's consent thereto. 

14.      We would heartily commend Mr and Mrs D on their courage and compassion in taking on their new role.  All counsel are to be congratulated on the support that they have given to their clients throughout these hearings in this most difficult and sad case.

Authorities

Children (Jersey) Law 2002.

Adoption (Jersey) Law 1961.

In the matter of JS and BS [2005] JRC 108.

Re L (1962) 106 Sol Jo 611.