[2010]JRC006
royal court
(Samedi Division)
14th January 2010
Before : |
W. J. Bailhache, Esq., Deputy Bailiff, and Jurats Tibbo and Kerley. |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF A
Advocate E. L. Hollywood for the Minister of Health and Social Services.
Advocate E. J. Le Guillou for the Mother.
Advocate N. S. H. Benest for the Grandfather.
Advocate A. J. Clarke for the Guardian.
judgment
the deputy bailiff:
1. A was born in 2008. The identity of the father is unknown. At 9 days old, the Minister for Health and Social Services applied for an interim care order pursuant to Article 24 of the Children (Jersey) Law 2002 ("the 2002 Law"), the grounds for which were the behaviour of the first respondent, the mother, during her pregnancy and during the two weeks after birth. The Minister contended that there was reasonable cause to believe that A was likely to suffer significant harm by her mother if an order were not made. Following a contested hearing, the Court granted the interim care order on 30th June, 2008, following which A was placed into foster care. The interim care order has been renewed every four weeks since 30th June, 2008, in accordance with Article 30(3) of the 2002 Law.
2. A was represented in Court by Advocate Clarke who was working in tandem with the Guardian, Ms Jane Whittaker, both of whom were appointed under Article 75 of the 2002 Law.
3. There were before us three applications:-
(i) An application by the Minister for a full care order under Article 24(2) of the 2002 Law;
(ii) An application by the mother's father, A's grandfather ("the grandfather") for a residence order in respect of A and;
(iii) If the application for a full care order was successful, an application by the Minister for a freeing order pursuant to the Adoption (Jersey) Law 1961 ("the 1961 Law").
The Full Care Order and Residence Order Applications
4. While a residence order and a supervision order might have been a possible combination, it was quite clear that the residence order was essentially an alternative to the full care order, and it is therefore convenient in this judgment to take the two applications together. In relation to the application for a full care order, the Court has had to consider first whether the threshold criteria were met. If they were met, it would be convenient, at the point of considering the welfare test, then to consider the application for a residence order which, notwithstanding the meeting of the threshold criteria, was a possible option for the Court. The facts with which we will deal shortly demonstrate why this is so.
5. Article 24 of the 2002 Law in its material provisions lays down:-
"24 Care and Supervision Orders
(1) The Court may, on the application of the Minister, make:-
(a) A Care Order placing the child with respect to whom the application is made in the care of the Minister; or
(b) A Supervision Order putting the child under the supervision of the Minister or of a Probation Officer.
(2) The Court may only make a Care Order or Supervision Order if it 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 the child if the Order were not made, not being what it would be reasonable to expect a parent to give the child, or;
(ii) The child's being beyond parental control."
6. Advocate Hollywood, for the Minister, rightly submitted that there were two separate elements to the threshold criteria:-
(i) The existence of, or the likelihood of "significant harm", and;
(ii) The causation of that harm being attributable to one of the two reasons in Article 24(2)(b).
Procedural Issues
7. In the light of the comments later in this judgment about the relevant date, it is right to track the progress of the applications in this case so far. As has been indicated, the application was made when A was 9 days old, for an interim care order. The Court then ordered that contact should take place at the grandmother's house five times per week for such period and in such manner as the Children's Service should direct. One month later the contact provisions were reduced to three times a week for a period of one hour or such other period as the Children's Service might think appropriate, the location to be determined by the Children's Service. The Court authorised the Children's Service to obtain a specialist assessment on the mother in order to access the impact of the mother's personality disorder on her parenting capacity. A guardian and local counsel for the child were appointed. In September 2008, the Court ordered that a preliminary psychiatric report regarding the mother's competence to instruct lawyers be prepared. In October the Court sat to consider the report and to note that the mother had the mental capacity to give instructions to lawyers and to manage her property and affairs. It also made various orders with a view to investigating paternity, although these investigations proved unsuccessful. On 12th December, 2008, the Court granted an application from the grandfather that he be joined in the proceedings, and noted that a kinship evaluation was to be prepared. On 24th June, 2009, the Court sat to consider the Minister's application for a curator to be appointed to represent the interests of the mother in the light of the medical evidence then available. The Court declined to appoint a Curator but directed that an expert to be agreed by the parties should prepare an additional psychiatric assessment on the mother for the purpose of the ongoing care proceedings, and directed that records in respect of the mother and held by the Jersey Health and Social Services, the Cygnet Hospital and/or her General Practitioner should be disclosed to the appointed experts undertaking Court directed reports. Counsel were directed to fix a date for the hearing in order to resolve the issue of capacity once the psychiatric report had been received. A further psychiatric assessment of the mother was to be undertaken by joint instruction, as ordered by the Court on 14th October, 2009. On 22nd October, 2009, the Court granted leave to the grandfather to make an application for a residence order, directed an independent parenting assessment should be undertaken upon the grandfather by joint instruction and refused permission for a parenting assessment to be undertaken upon the mother. The Court noted that the hearing of the Minister's application for a final care order had been fixed for 5 days commencing 14th December, and, if the final care order were made, for a possible order freeing A for adoption. It was noted that the application of the grandfather for a residence order would be heard at the same time. In refusing the application on behalf of the mother for a parenting assessment by a psychologist on the mother's ability to parent A, the Court said this:-
"We will summarise our reasons [for refusing the application] as follows. Firstly this case has already taken far too long. We understand why, because of the difficulties over the mother's mental state and there has been a desire by all parties to ensure that she can participate as far as possible in any decision which might have such far reaching implications for her. Nevertheless the delay of a further four months in the life of a young child is likely to be damaging. We think this matter can proceed without injustice to the mother. We remind ourselves the importance of proceeding in children's cases with the minimum of delay".
8. On 23rd November, the Court granted the application of the Minister for evidence by Dr. Wooley and by the mother to be adduced via video link. On 9th December, the Court sat to receive an application on behalf of the mother for a direction that she be permitted to attend the whole of the proceedings when the Minister's application for a full care order was made. This was based upon the submission that although the mother did have capacity to give instructions, counsel would be unable to confer with her in the confines of the Court. Furthermore it was at that stage unclear whether the mother would be able to see the Court as well as Dr. Wooley, who was to give evidence by video link. The Minister resisted the application. While acknowledging the mother's right to participate, the Minister contended that the European Convention on Human Rights 2000 did not require the mother's presence for the purposes of compliance with Article 6, that practical arrangements could be made for a break after evidence was taken from witnesses in order to ensure that the mother's Advocate could get instructions over the telephone, and that in the absence of any secure unit in Jersey and the risks posed to the health of the mother, members of the Court and members of the public in transit, it was inappropriate that the order be made as requested by the mother. The Court was not prepared to direct that the mother be brought to Jersey for the purposes of the hearing, nor was the Court prepared to acquiesce in any adjournment. It was considered that it should be possible to make administrative arrangements to break after each witness gave evidence so that counsel could take instructions from the mother, and indeed, broadly speaking, that was what took place.
9. It was in these circumstances that although the application for an interim care order was made when A was 9 days old, the application for a full care order was not made until the hearing commencing on 14th December, 2009. Much of the delay was in fact caused by the mental health of the mother, and by the need to ensure the Court was properly informed with psychological and psychiatric assessments upon her when the full care order application was heard.
10. Although five days were set aside for this hearing, it became clear that the process of ensuring that the mother had access by video link, and could give instructions to counsel after the evidence was taken would be time consuming. Some time was saved by the Court being able to take, by consent of all parties, the witness statements of witnesses filed in accordance with Rule 18 of the Children Rules 2005 as the evidence in chief of that witness, which was subsequently supplemented by a reduced amount of evidence led by the party calling the witness.
The Minister's Detailed Grounds
11. The Minster put the case for the full care order on this basis:-
(i) The mother suffered from on-going mental health issues and was detained at the Cygnet Hospital in the United Kingdom under the Mental Health Act 2007 with no release date as yet.
(ii) The mother had shown neglectful behaviour during the course of her pregnancy in a number of respects.
(iii) The mother had shown dangerous behaviour during her pregnancy and as a result had risked physical harm both to herself and to her unborn baby.
(iv) The mother exhibited anti-social behaviour in the period leading up to the interim care order.
(v) The mother had at the time up to the interim care order and since shown physical and verbal aggression to others posing a risk of harm to them. This included a real possibility of a risk of future physical harm to A.
(vi) The mother had abandoned A after 12 hours and failed to visit her in the SCB unit of the hospital. In addition she had failed fully to engage in contact for 9 months when she was taken into protective custody under the relevant Mental Health legislation.
(vii) The mother had been either unresponsive or aggressive in her dealings with professionals who were trying to help her, refusing to co-operate with the Children's Services, with the ante-natal services and the Police and others.
Assessment of Evidence on the Threshold Criteria
12. The Court heard medical evidence as to the mother's mental health from Dr. Dale Harrison and Dr. James Wooley. It is appropriate to say at the outset that there was no dispute of any significance between the different medical experts. The mother has been diagnosed as having a borderline personality disorder, the essence of which is that she has difficulty forming attachments with other people and dealing with emotional situations. The result is often an aggressive reaction to others and to herself. Borderline personality disorders are generally thought to be environmentally rather than genetically based - in other words, caused by experiences that the sufferer has undergone. In this case the mother had been a victim of sexual abuse in her childhood, and had had an unstable home environment, and in the opinion of Dr. Harrison, both of these would raise the potential for borderline personality disorder. In Dr. Harrison's opinion, the increased stress associated with becoming pregnant, the subsequent childbirth and the contact issues with her child put her under such pressure she was unable to cope. In his view, the mother also showed psychotic symptoms which would be likely to be exacerbated by her use of cannabis. In cross examination, Dr. Harrison agreed that a communication from the Children's Service shortly before A's birth that she might not be a sufficiently fit adult to take care of her baby would be likely to increase her stress levels enormously.
13. Dr. James Wooley is the consultant psychiatrist at the Priory Hospital in London. His report was dated 7th December, 2009, and dealt with the specific issues put to him on joint instructions as required by the Royal Court in its direction of 24th June, 2009. He agreed that the mother was suffering from a borderline personality disorder and from psychotic symptoms, although the latter had, with treatment, improved from those which had been noted in medical records earlier. The two medical conditions were not mutually exclusive, and could present significant diagnostic and management challenges. His evidence was of particular importance in relation to the timetable for improvement, he could not rule out the possibility that the mother might be in independent living within the next 12 months, depending upon the success of the treatment she was undergoing, but on the other hand it was not unusual to have treatment for these symptoms for many years. There was no way of telling at the moment for how long the borderline personality disorder would be at risk of causing the mother severe symptoms. A critical factor in her making progress was that the mother herself should recognise she had these problems and the extent of that recognition was currently unclear.
14. It is unnecessary to deal in any detail with the other allegations made by the Minister. It is clear from the medical evidence that at the date of the application for the interim care order, A was likely to suffer significant physical harm, neglect and emotional harm attributable to the likely care that would be given to by the mother, due to the mother's mental instability. The mother's mental health has led to her being sectioned under the Mental Health Act 2007, and it is quite unclear as to how soon any improvement, if any, in that mental health will become apparent. Most of the other matters for which the Minister contends appear to the Court to be symptoms of the mental instability as much as grounds which would independently justify the making of the orders sought, and the rest do not in the Court's view amount to matters which would justify the making of a full care order.
15. The Court was therefore satisfied on the evidence that the threshold criteria were met. All parties agreed that it was permissible in law to look at the mother's current state of health at the date of the hearing as a later event which could support the application of the Minister to the extent that that application was based on the mother's instability at the time that the application for an interim care order was made. This is on the basis that the "relevant date" at which the assessment as to whether the child "is suffering" significant harm is the date upon which the arrangements for the protection of A were first initiated by the Children's Service, when the Court granted the interim care order. Although the question of the relevant date was not therefore in issue in the proceedings before us, we think it would be desirable to say a little more about the law in this respect.
The Relevant Date
16. It was contended by all parties that by virtue of the language of Article 24(2) of the 2002 Law the threshold test "is suffering" relies upon a finding as to whether an event has happened in the past, and that the relevant date for determining whether the child "is suffering" significant harm is:-
(i) The time of the hearing for the application for the care order; or
(ii) The time when the Minister initiated the procedure for the protection of the child, provided those arrangements have been continuously in place until the time of the hearing. For this proposition, reliance was placed on Re M (a minor) (Care Order Threshold Conditions) (1994) 2 FLR 577, a decision of the House of Lords, in which consideration had to be given to statutory provisions under the Children Act 1989, which are substantially replicated by the 2002 Law.
All parties seemed to agree that the relevant date was the same whether the threshold test was that the child "is suffering" or "is likely to suffer" significant harm.
17. The facts of that case were that the Judge at first instance, Bracewell J, made a care order in respect of M, with a view to adoption outside the natural family. M's father had murdered M's mother in the presence of M and his three siblings when M was aged 4 months. The three siblings had subsequently been sent to live with their mother's cousin, and M had been placed in short-term foster care. The father was convicted of the murder and sentenced to life imprisonment with a recommendation for deportation.
18. It is interesting to note that the Judge, Bracewell J, dealt with the matter in a very common sense way, when she said:-
"I am satisfied that he [M] is suffering significant harm within the meaning of s31 (2)(a) in that he has suffered ill treatment by being permanently deprived of the love and care of his mother when she was murdered in his presence, and in the presence of his half brothers and sisters, in October 1991. I am also satisfied that under s31 (2)(b) the significant harm is attributable to the care given to the child by the father not being what it would be reasonable to expect a parent to give him, in that the father deprived the child, by his actions, of the care of a loving mother. I am also satisfied that if an order were not made the child would be likely to suffer significant harm in that he is a small child with special needs, has no permanent home, and the only person with parental responsibility is the father who is unable to exercise it appropriately or fully in that he is serving a life sentence with an order of deportation upon release".
In effect, what the judge was saying there was that an event had happened in the past, the consequence of which was that at the date upon which she had to consider whether she had jurisdiction to make a placement order (for these purposes equivalent to a care order under the 2002 Law), the child was suffering significant harm. Hence this application did fall within s 31(2) of the 1989 Act.
19. In the Court of Appeal, it was held that the relevant date for the purposes of determining whether the threshold criteria were met was the date upon which the case came before the Court for disposal, and as the Court found that at that date the criteria were not met, there was accordingly no jurisdiction to make a care order. The Court of Appeal substituted a residence order in favour of the mother's cousin. In setting aside the Judge's order upon the basis that the threshold criteria were not met upon the date when the case came before the Court for disposal, the Court of Appeal created a potential gap in the statutory arrangements for the protection of children. It was and is apparent that circumstances might exist which made an interim care order or an emergency protection order appropriate, and it would be a nonsense that a full care order could not subsequently be made simply because the circumstances which had led to the interim care order or the emergency protection order in the first place no longer existed as a result of the temporary arrangements which the Court had put in place. The father appealed to the House of Lords, and it is perhaps unsurprising in those circumstances that the House of Lords allowed the appeal and thereby ensured that the gap in the statutory protection of children was filled. As Lord Templeman said at page 589:-
"this preoccupation with the present tense involves the proposition that if a child suffers harm and is rescued by a local authority, a Care Order cannot be made in favour of the local authority because it can no longer be said that the child is suffering harm and if the parent who has caused the child harm is dead or in prison or disclaims any further interest it cannot be said that the child is likely to suffer harm. I cannot accept this approach. Restrictions on the right of a local authority to apply for a Care Order were imposed by s31 to prevent a local authority interfering too readily with the rights and responsibility of parents. A local authority cannot apply for a Care Order unless at the date of the application the child is suffering or is likely to suffer significant harm. Once the local authority has grounds for making an application, the Court has jurisdiction to grant that application. If between the date of the application and the date of the judgment of the Court, circumstances arise which make a Care Order unnecessary or undesirable, the local authority can withdraw its application for a Care Order or the Court can refuse to make a Care Order."
It is important to recognise before going on to look in more detail at the judgment of the House of Lords that the case concerned whether, under the Act, the Court had jurisdiction to make an order.
20. The lead Judgement was given by Lord MacKay of Clashfern, the Lord Chancellor. Rejecting the views expressed by the Court of Appeal when considering the language "is suffering" in Section 31 of the 1989 Act, the counterpart to Article 24 of the 2002 Law, the Lord Chancellor said this:-
"In my opinion the opening words of s31 link the making of an Order by the Court very closely with the application to the Court by a local authority or authorised person. ... it is also clear that Parliament expected these cases to proceed with reasonable expedition and in particular I refer to s32 in which the hearing by the Court is not regarded only as taking place at the time when the applications are disposed of. Indeed I think there is much to be said for the view that the hearing that Parliament contemplated was one which extended from the time the jurisdiction of the Court is first invoked until the case is disposed of and that was required to be done in the light of the general principle that any delay in determining the question is likely to prejudice the welfare of the child. There is nothing in s31(2) which in my opinion requires that the conditions to be satisfied are disassociated from the time of the making of the application by the local authority. I would conclude that the natural construction of the conditions in s31(2) is that where, at the time the application is to be disposed of, there are in place arrangements for the protection of the child by the local authority on an Interim basis which protection has been continuously in place for some time, the relevant date with respect to which the Court must be satisfied is the date at which the local authority initiated the procedure for protection under the Act from which these arrangements followed. "
21. This does not mean however, that the Court is precluded from looking at the evidence which exists at the time the application for a full care order is made. The Lord Chancellor in his judgment went on to say this:-
"If after a local authority had initiated protective arrangements the need for these had terminated, because the child's welfare had been satisfactorily provided for otherwise, in any subsequent proceedings, it would not be possible to found jurisdiction on the situation at the time of initiation of these arrangements. It is permissible only to look back from the date of disposal to the date of initiation of protection as a result of which local authority arrangements had been continuously in place thereafter to the date of disposal.
It has to be borne in mind that this in no way precludes the Court from taking account at the date of the hearing of all relevant circumstances. The conditions in [sub section] (2) are in the nature of conditions conferring jurisdiction upon the Court to consider whether or not a Care Order or Supervision Order should be made. Conditions of that kind would in my view normally have to be satisfied at the date on which the Order was first applied for. It would in my opinion be odd if the jurisdiction of the Court to make an Order depended on how long the Court took before it finally disposed of the case."
22. Perhaps it was with this passage in mind, and in reliance on similar language to s32 which is to be found in Article 25 of the 2002 Law, that Advocate Hollywood submitted, for the Minister, that there was one continuing application under Article 24. This would also be consistent with Article 30. Thus, in this case it was said that at the hearing date in December 2009 the Court had to be presented with evidence as to whether the threshold test was passed in June 2008.
23. If that is the position in law, it would seem to follow that, especially where there is a lengthy period between the date of the interim care order and the application for a full care order, a good deal of evidence will be supplied to the Court which is:-
(i) stale in the sense that it is presented perhaps eighteen months after the events took place when the recollections of all parties are likely to be more suspect;
(ii) potentially no longer reflective of the actual circumstances relevant to the reality of the problem which the Court has to face.
Although the second of these consequences is unsatisfactory, it is not necessarily damaging, other than in the sense of being a waste of time for all concerned, because the Court could, if appropriate, use its discretion at the time of assessing the welfare test so as to resolve that no order, or a different order than that which at the earlier date might have been right, should be made.
24. However, in the interests of having the right evidence before the Court at the right time and of efficiency in the administration of justice, it appears to this Court that it may be appropriate to review whether this approach, as contended for by all parties, is required under our own legislation. In doing so, the Court needs to focus upon the importance of ascertaining and giving effect to the intentions of the States in passing the legislation, by construing the statute in accordance with its spirit, and not allowing that principle to be subverted by what Lord Templeman described in Re M as "the tyranny of language".
25. In the Court's view, the important principles are these:-
(i) The States cannot have intended that the Court would lose its jurisdiction to make an order under Article 24 simply because the circumstances, which did satisfy the threshold criteria at the time an interim care or emergency protection order was made, no longer applied as a result of that order; the loss of jurisdiction might arise, however, if it could be said that it was likely that even if no order was made, those circumstances would not arise again.
(ii) The States should be taken to have intended that the Court should not permit the Minister to interfere too readily with the rights and responsibilities of parents. Accordingly, it should only make the type of order referred to in Article 24 of the 2002 Law if, at the time of doing so, it was satisfied that the threshold test was met. The evidence to establish that the threshold test is met at that date may well include the evidence as to circumstances which existed at, and may have prompted, the interim care order, in the sense that it would be likely if the order were not made that those circumstances would arise again.
(iii) Insofar as interim care orders are concerned, Article 30 of the 2002 Law applies. Accordingly the Court's jurisdiction arises if it is satisfied there are reasonable grounds for believing that there are circumstances which exist and would fall within Article 24 (2). The States thus cannot have intended that, at the date of an interim care order being made, it was necessary to have a full evidential hearing, for the Court does not have to be satisfied at this stage that the circumstances do exist, merely that there are reasonable grounds for thinking they do.
26. These principles which could be applied to the construction of the 2002 Law are not wholly consistent with Re M although they are formulated by having close regard both to that case and its successor on the question of the relevant date, namely Re G (Care Proceedings: Threshold Conditions) (2001) EWCA Civ 968. We should make it plain that they do not form the basis on which we have approached this case as we have adopted the relevant date as all parties contended before us. The question is potentially too important for it to be resolved other than after full argument and the Court's comments in paragraphs 16 to 26 above are entirely obiter in this respect.
We think it is appropriate to add that a governing feature of the Lord Chancellor's judgment in Re M is the expectation that these cases would proceed with reasonable expedition. Experience shows, and this case is a good example of that, that with the best of intentions, that result is not always easy to achieve. Furthermore, although the jurisdiction to make an interim care order under Article 30 only arises where the Minister has made an application for a full care order or the Court has made a direction under Article 29(1), experience has shown that the Children's Service frequently operate a "twin track" approach during the continuance of an interim care order, especially to matters of contact, because child welfare officers are uncertain whether the end position will be a full care order or the return of the children or child to the home environment. This practice, while having a good deal of merit and practical common sense, is not obviously consistent with the structure of Article 30, but it does go to emphasise that there is a degree of artificiality to considering, on an application for a full care order, whether the threshold criteria were met some 12-18 months earlier. If there were to be a genuine challenge to the Court's jurisdiction to make an order until Article 24 or Article 30, it would seem very desirable that that challenge is made as soon as possible. If it is not made, then it ought to be achievable to save time at the hearing of the application for the full care order by putting evidence before the Court relevant to the circumstances at that date, which, as I have said above, may include historic evidence. But all this is for another day.
Welfare Test
27. The Court having been satisfied the threshold criteria are met, we then went on to consider whether an order should be made and if so what type of order. In particular this required consideration at this stage of the application by the grandfather for a residence order. If that were to be made, the full care order would not be open to the Court. If the residence order were not made, the Court would still have to consider whether the full care order should be made. In determining these matters, the Court had regard to the statutory welfare checklist and the "no order" principle order found in Article 2 of the 2002 Law.
The Grandfather's Application
28. When A was discharged from the Special Care Baby Unit it was into the care of foster carers following the making of the interim care order the preceding day. For the first month, the grandfather (with the mother) had contact with A, but this contact stopped, and the grandfather did not re-establish contact until some 4 months later, when contact was established for him on a fortnightly basis. The grandfather has not asked at any stage for increased contact.
29. The Children's Service had written to the grandfather to ask whether he wished to be assessed as a long term carer for A. He was sent a reminder on 18th August but nothing further was heard until late in the autumn when he indicated that he did wish to make an application for caring for his granddaughter in the long term. In the circumstances, the grandfather was added as a party to the proceedings on 12th December, 2008, and a direction was made by the Court for a full assessment of his suitability to care for A to be completed.
30. Evidence as to the grandfather's application was given by the grandfather himself, by Miss Justine Cook the social worker in this case, by Sarah Barracliffe, a social worker who made the kinship assessment and by Dr. Sarah Reeves, a consultant clinical psychologist employed in the States of Jersey Health and Social Services Department who made a psychological report upon the grandfather and who observed the grandfather's contact with A on 26th November, 2009.
31. The grandfather was aged 57 at the date of the hearing. He is currently a single man. He moved to Jersey when he was 14 years old and has remained here ever since. His parents are now deceased, and while he has two brothers and a sister, with whom he remains in occasional telephone contact with periodical visits, neither live in the Island. The grandfather is employed by the States and is described by his manager as hard working, reliable and conscientious. During the winter months he works from 6.45 am to 3.30 pm each day except for Friday when his day finishes at 1 pm. In the summer months, he starts an hour earlier, each day finishing at 2 pm, with Thursday and Friday being slightly earlier finishes.
32. The grandfather and his former wife had two daughters, both of whom were initially brought up by their mother on the breakdown of that marriage when the two daughters were aged 6 and 2 respectively. The elder of the two daughters is the mother of A, and she lived with her mother until she was aged 13, when she moved in with her father (the grandfather). It is clear that A's mother had a very stressful childhood for a number of reasons including undoubtedly the break-up of her parents' marriage, and the fact that she was sexually abused by her mother's partner at a very young age. It was clear from the material which was put before us and indeed from his own evidence that the grandfather considered that the Children's Service were very much to blame for the problems which the mother has faced during her lifetime. We do not need to make any finding in that respect for the purposes of the present applications, but we have noted them for the purposes of making an assessment as to whether it would be appropriate to make a residence order.
33. A key part of the grandfather's application is found in his evidence where he said that he did not want his grandchild to be brought up outside the family. He loved and wanted to care for his grandchild. His daughter had told him repeatedly that if she were unable to care for A, then she wanted him to do it for her. In turn, he had told his daughter on more than one occasion that if she is not well enough to be with A, he would not allow her to come near A. In terms of the practical arrangements, he thought it was likely that he would need to place A in day nursery care while he was at work. He had seen other people dropping their children at nursery at 7 a.m. and collecting them at the end of the afternoon. He thought he could adjust his hours so that A could be dropped at nursery before he started work and be collected after work. He had also said in his witness statement that he would look at reducing his hours and if necessary leaving his present employment and obtaining work elsewhere that had more favourable hours. In any event, he planned to retire at 60 whereupon he would be able to take a lump sum from the Public Employee's Contributory Pension which would provide him and A with financial security for a number of years, at least until his old age pension commenced when he was 65. When he came to give his evidence, the grandfather said that if a residence order were made, he would give up all his time to his grandchild. He confirmed that he would be prepared to give up his job and take early retirement. He also said that if he continued to work he would have help from his former wife and his younger daughter. He thought that might be necessary because he was not so stable financially at present, with a lot of bills to pay. In his evidence in chief, he indicated that although he had to start work early in the morning, the baby would still be asleep and he would be able to ask his former wife to come in early, maybe to stay overnight. In cross examination, he indicated that he would ask his younger daughter, who is aged approximately 20, if she would come in to his house in the evening, and look after the baby. That daughter would then be able to take the baby along to her mother, the baby's grandmother, from whom the grandfather would be able to collect the child when he finished work. When asked why his former wife and younger daughter had not given evidence on his behalf, he indicated that it was as a result of pressure from the Children's Service who had told his former wife that she would not be able to see her grandchild. However his former wife would come to Court if the Court asked her to come. She was not apparently able to be in Court that week as there was some crisis or other. He said he did not know what the crisis was and he could not make her come to Court.
34. When he was asked why there had been no contact for 4 months, he indicated that he had had practical problems with A's mother, who had been living with him; that no-one had sent him any letters; and that he was sometimes in a valley and had no signal to his mobile phone. But he also added that he had been unwell for some of that period and indeed had had 12 weeks off work in order to look after the mother. He confirmed that despite his distrust of the Children's Service, he would do anything they asked him to do, and he was prepared to go on a parenting course and to learn. He told the Court that he was more relaxed about the Children's Service now than he had been, although he did consider that the Children's Service had not approached his application in an impartial way, and intended him to fail.
35. The very full kinship assessment made by Miss Barrowcliffe confirmed that there is a presumption that a placement within the family is the most desirable option for children other than where there are clear risks which could not be properly managed. The kinship assessment recognised the research which showed that kinship care normally provided for the best outcomes for looked after children as opposed to adoption, fostering or residential care.
36. Nonetheless, Miss Barrowcliffe, having analysed the strengths and constraints within the assessment was not prepared to recommend the approval of the grandfather as a kinship carer for his grandchild. The main reasons for this were that in her view the provision of a shared care arrangement with other family members was deficient in thought and showed a lack of appreciation as to the level of commitment required. She thought there would be confusion around the actual logistics regarding how care was to be delivered to A. In particular Miss Barracliffe thought there was a lack of appreciation for the restriction on the child's future life which was an inevitable consequence of placing reliance upon the grandfather's younger daughter. She also thought that the grandfather prioritised the mother's needs over those of A, and that there was a limited understanding on the part of the grandfather as to how a child's developmental needs should be met. When she came in to give evidence before us, Miss Barracliffe said that the grandfather had said to her that it was not hard looking after a baby. Miss Barracliffe did not agree with this and thought the expression of such a view went both to the grandfather's ability to care for the child and to the risks which the child might face if he were the carer. Furthermore, she thought that heavy reliance upon the grandfather's younger daughter, who was in her view emotionally immature and who had volunteered out of a sense of duty and had not thought matters through in the long-term, would mean an obvious risk of lack of stability and structure for A.
37. The Court noted that the grandfather had appealed unsuccessfully against the kinship assessment.
38. The evidence of Dr. Reeves, the clinical psychologist supported the view that the grandfather had not clearly thought through how he would manage the parenting of A now and into the future. There was an assumption that things would work out alright and that between him, his former wife and his younger daughter, all would be well. In her view, the grandfather was not able to accept that there were difficulties or issues within his own life, and that it was unlikely that he would ask for help should difficulties arise either in his own life or within his relationship with A. In her view, he had been unable to reflect both on his own experiences of being parented or on his experiences of being a parent himself. There appeared to be little conscious learning from past experience, limited awareness of the importance of meeting a child's emotional needs, and limited understanding as to the severity of the mother's medical condition. In her view, it was unlikely that the grandfather would be able to provide any emotional protection for A, and taking all these matters into account, she was unable to recommend that the residence order should be granted.
39. Dr. Reeves said that she has witnessed the grandfather's contact with A, which she felt was flat and unemotional. This was her view both intuitively and as an expert. She particularly felt that at times of conflict, he would be liable to put the interests of the mother ahead of those of A.
40. The mother herself gave evidence by video link. Much of that evidence was directed at the evidence produced on behalf of the Minister which the Court views as symptoms of the problems with her mental health which the mother has had to endure. The mother made it plain in her evidence that if A was taken away from her, she wanted the grandfather to look after A. The guardian, Mrs Jane Whittaker also gave evidence before us. She has worked since 1987 as a Probation Officer and Court Welfare Officer either in Wales or in Jersey. Until 2000, she undertook both tasks alongside each other, but when CAFCASS was set up in 2000, she worked for that agency for two years exclusively undertaking family court work. Child Protection issues have always underpinned her work.
41. The guardian supported the Minister in the applications for a full care order and for a freeing order. She did not support the application by the grandfather for a residence order. In her view, there were various risks to which A would be exposed by her wider family. These included the fact that all of her grandmother's children have witnessed domestic violence between key adults at different times in their lives; the wider family history demonstrated a family in which boundaries were inconsistent and blurred, whether these be discipline boundaries or sexual boundaries; the comments in relation to the wider family, and in particular to the other children of the grandmother are particularly apposite, given the expressed view of the grandfather that A's wider family will be a source of support. In the guardian's view, there was a special problem that the grandfather had more of a focus upon the Children's Service and his criticisms of them in relation to his own children, and upon the mother as opposed to the best interests of A. In particular the guardian thought that the grandfather did not seem to realise that A would have other needs than merely the physical needs of food and shelter. In the guardian's view the relationship between A and the grandfather clearly existed but was not a strong one. She thought that there would be a risk of confusion for A if there was any continuing contact. Having sat in Court and listened to all the evidence which was given, the guardian told the Court that she had not heard anything which made her change her initial assessment.
42. The Court has no doubt that it would not be in A's best interests for it to make a residence order in favour of the grandfather. We have taken into account all the evidence which has been given to us, and in the reasons which we now give for this conclusion, we highlight only those which in our view are the most significant:-
(i) At least for the short-term, and we are unable to say for how long the short-term will last, the grandfather will be, in effect, the sole and single parent. It is certainly unclear that the mother will be available as an effective parental influence at any future stage. The Court is not satisfied that, taking into account the grandfather's age, he will be able to provide for the emotional development of his grandchild in the short and medium term.
(ii) The Court has the greatest respect for the grandfather's intentions and strong sense of family. We have no doubt at all that the grandfather has made this application firmly convinced that it is in A's best interests to be brought up with a member of the family. Nonetheless we are not satisfied that he is sufficiently aware of the difficulties of bringing up a small child, and we think that he would very quickly be found to be out of his depth. It is clear that he could not be expected to rely upon the Children's Service given the previous difficulties in their relationship. We took note of the fact that the evidence which he supplied showed no coherent detail in relation to the care plan for A, if the residence order were made. This supported the view that the conclusions of the kinship assessment were correct.
(iii) If there had been a wider family upon whom the grandfather could reliably call, the Court might have looked at the matter differently. However, in this case, he appeared to rely upon contributions of his former wife and his younger daughter, neither of whom were prepared to give evidence before us. In the case of the former wife, there is no evidence of any stability which she could bring to looking after the child, and although there was some suggestion that she might appear to give evidence, in fact she did not do so. As to his younger daughter, there were some concerns about her lifestyle and she is now of a relatively young age. The evidence before us was that she had pleaded guilty to three counts of assault. The fact that the grandfather indicated that his younger daughter had recently had threats following a terminated pregnancy was of great concern to the guardian because it was consistent with the exposure of the wider family to abuse which was shown historically from the papers. The Court did not feel able to rely upon the assurances given on her behalf.
(iv) Furthermore there was a lack of clarity about the grandfather's finances. He had made assumptions about benefits he might get, but he had not even troubled to find out the cost of nursery care, or to ask about potential changes to his rental.
43. For these reasons, notwithstanding the Court's respect for the grandfather and for the emotions which he feels, we do not feel that it is in the best interests of A to be made subject to a residence order in his favour.
44. Having had regard to the welfare test, the Court finds that it is appropriate and right to make a full care order in favour of the Minister. In particular in that connection, the Court has given special attention to the guardian's evidence that best practice in relation to young children is about seeking permanent plans for them as early as possible in their lives. The uncertainty over the mother's health does not coincide with A's needs. A does need to bond with someone who can be relied upon, and form an attachment soon.
The Freeing Application
45. I turn next to the freeing application of the Minister which is contested by both the mother and the grandfather.
46. As to the Law, the Court is charged by Article 3 of the 1961 Law as follows:-
"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".
47. Given A's age, it is clearly not possible to ascertain any wishes and feelings regarding the decision which now has to be made. However, the Court has of course paid careful attention to the views of the guardian who has been present to represent the interests of A.
48. The Court has had to ask itself two questions:-
(i) Is it satisfied that adoption would be in the best interests of A?
(ii) Given that the mother has not agreed to the freeing for adoption, can her agreement be dispensed with on one or more of the grounds specified in Article 13(2) of the 1961 Law?
49. As to the first of these questions, the Court notes:-
(i) A is a very young child who has not spent any significant time with the mother and has lived for the most part with the current foster carers. They will not be the long-term carers. It is important that an attachment is formed with parents who can offer permanence and stability. It is at the moment quite unclear whether, let alone when, the mother might be able ever to offer that. It would simply be unfair to deprive A of the ability of forming the attachments which all young children need.
(ii) The Court has resolved not to make a residence order in favour of the grandfather for the reasons given above. For the same reasons, it is clear that A will not form a sufficient attachment with him. The guardian considered that it would be confusing for A if the freeing order were made and there was continuing direct contact. The Court thinks that is right, and although that is in some senses a different issue, that conclusion demonstrates why the alternative to freeing for adoption, which would be long-term foster care coupled with some form of contact with her natural family, would not be in A's best interests.
(iii) Given that A will not be with the present foster carers indefinitely, it is a matter of some urgency that A is placed with long-term carers as soon as possible in order that the attachments can be formed to them. The best way of achieving this, in the Court's view, is to free her for adoption so that adoptive parents can be found quickly.
50. Counsel for the grandfather referred us to the need to have regard to Article 8 of the European Convention on Human Rights. Indeed we do pay regard to that Article. The Court has an obligation to do so pursuant to the Human Rights (Jersey) Law 2000, to ensure that in the decisions it reaches, it pays proper regard to the Convention rights of those affected by the decisions. We remind ourselves of Article 8 itself:-
"Right to Respect for Private and Family Life.
(i) Everyone has the right to respect for his private and family life, his home and his correspondence.
(ii) There shall be no interference by public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health of morals or for the protection of the rights and freedoms of others".
51. It is not just the rights of the mother or of the grandfather that need to be considered. The Court must also have regard to the Convention rights of A. Indeed, those rights have the priority consideration because the Court is so directed by Article 3 of the 1961 Law.
52. The Article 8 right is of course a qualified right. Interference with it by a public authority is legitimate if, as Baroness Hale put it in Re B (Care Proceedings) (Standard of Proof) (2008) 2 FLR 166 at paragraph 78:-
"... If it is "necessary in a democratic society" in order to protect the child's own rights, which in this context include the right to be protected from harm. But there has to be a pressing social need for the interference, the reasons for it have to be "relevant and sufficient" and the interference itself has to be proportionate to the need".
53. In this case, A is entitled to the best the Court and the Minister can do to provide a sound childhood, in terms of emotional and physical needs, as is reasonably possible in preparation for adulthood. The starting point in all these cases is a presumption that a child should be brought up by his or her natural parents. That presumption respects the rights of each member of the family. Here, however, that is impossible. No-one has contended that the mother could look after A, and the Court has concluded that it is not in A's best interests that a residence order should be made such that the grandfather might do so.
54. In those circumstances, the Court has no doubt that the freeing for adoption order is necessary and proportionate in A's best interests, and it has reached that conclusion, having considered carefully the welfare checklist set out in Article 2 of the 2002 Law, which affords good guidance for the purposes of Article 3 of the 1961 Law.
55. I turn next to the second question which we have had to consider. Article 12 of the 1961 Law provides that no order may be made by the Court freeing an infant for adoption unless either the parent or guardian of the infant agrees, or that agreement can be dispensed with on one or more of the grounds specified in Article 13(2). That paragraph is in these terms:-
"(2) The grounds [on which the parent or guardian's agreement may be dispensed with]... are that the parent or guardian -
(a) cannot be found or is incapable of giving agreement;
(b) is withholding his or her agreement unreasonably;
(c) has persistently failed without reasonable cause to exercise his or her rights, duties, obligations and liabilities as a parent or guardian in respect of the infant;
(d) has abandoned or neglected the infant;
(e) subject to paragraph (4) has persistently ill-treated the infant;
(f) has seriously ill-treated the infant;
(g) is incapable of caring for the infant or is of such habits or mode of life as to be unfit to have the care of the infant".
56. It is clear that sub paragraphs (a), (c), (e) and (f) cannot apply in this case. Although the Court was addressed by the Minister in the context of the claim for a full care order that the mother has abandoned A, we do not think that we should take that ground as established for the purposes of the freeing order. At the time of the mother leaving A in the Special Care Baby Unit, the mother was suffering from mental health problems which at the least would lead one to the conclusion that there was a doubt around her intention to abandon A if indeed abandonment is how it should be categorised.
57. One is left therefore with grounds (2)(b) and (2)(g). It was submitted by Advocate Le Guillou that although she had not been able to find any authority for the proposition, it seemed to her that paragraph (g) did apply in the sense that the mother was currently incapable of caring for the infant. In her view, that would be a gentler decision than a decision that she had withheld her agreement unreasonably. In our view it is clear that the mother is incapable of caring for the infant A. Indeed, as has been clear from the rest of this judgment, that fact inexorably follows from our findings in relation to the threshold criteria. In those circumstances, we agree that the mother's lack of agreement can and should be dispensed with under Article 13(2)(g) of the 1961 Law.
58. In the event that we had to determine the matter under Article 13(2)(b), we would have decided that her agreement could have been dispensed with under that sub paragraph as well. In reaching that conclusion, we would have had special regard to the judgment of Lord Denning in Re L, referred to at paragraph 41 of the judgment of the Royal Court dated 2nd December, 2009, in the matter of the T children. Lord Denning said:-
"In considering the matter I quite agree that: (a) The question whether she is unreasonably withholding her consent is to be judged at the date of the hearing; and (b) the welfare of the child is not the sole consideration; and (c) the one question is whether she is unreasonably withholding her consent. 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 unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case".
59. As the Court said in Re T, the Law clearly requires that the test is an objective one, which is what we have applied in this case. We have no doubt that the mother here suffers anguish at the thought of losing A, and we equally understand, of course, her desire to persuade the Court to make a residence order in favour of her father, which would give her a chance of establishing a relationship with her child at some future date, if her health improves. However the reasonable mother objectively gives great weight to what is best for the child, and as we have decided that it is in the best interests of the child that the full care order is made and that the child be freed for adoption, it seems to us to be objectively unreasonable to withhold consent to what is in A's best interests.
60. Accordingly, we make the freeing order sought by the Minister.
61. We heard some evidence as to contact, following the making of the freeing order. We think this is a matter which should be left with the Adoption Service and with the adoptive parents. There is clearly a need for any adoptive parents to be given the best possible circumstances for forming the long-term attachments which A will need. The Minister proposed letterbox contact, and this proposal was endorsed by the guardian, who was concerned that any more detailed contact arrangements between A and the grandfather might adversely affect the relationship between A and the new adoptive parents, especially so in the context of the grandfather's approach to the Children's Service. On balance, the Court considers the approach of the guardian to be correct and in those circumstances we make no further recommendations in relation to contact.
Authorities
Children (Jersey) Law 2002.
Adoption (Jersey) Law 1961.
European Convention on Human Rights 2000.
Children Rules 2005.
Mental Health Act 2007.
Re M (a minor) (Care Order Threshold Conditions) (1994) 2 FLR 577.
Children Act 1989.
Re G (Care Proceedings: Threshold Conditions) (2001) EWCA Civ 968.
Human Rights (Jersey) Law 2000.
Re B (Care Proceedings) (Standard of Proof) (2008) 2 FLR 166.