Jersey Unreported Judgments

[2010]JRC019

royal court

(Samedi Division)

26^th January 2010

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Tibbo and Morgan.

 

IN THE MATTER OF F AND G (NO 2)

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

Advocate S. E, Fitz for the Mother.

Advocate V. Myerson for the Father.

Advocate M. J. Haines for the Guardian ad Litem.

judgment

the bailiff:

1.        This is an application by the Minister of Health and Social Services for an order freeing F, a boy aged six, and G, a girl aged five, for adoption pursuant to Article 12 of the Adoption (Jersey) Law 1961 ("the 1961 Law").  The Court granted the application following the hearing on 22nd January and we now give our reasons.

2.        The background to the case is fully described in the Court's judgment dated 1st December, 2009, In the matter of F and G [2009] JRC 236 ("the care judgment") giving the Court's reasons for having granted the application of the Minister for a full care order in respect of the children.  

3.        The care plans produced by the Minister for the application for a care order envisaged an immediate application for an order freeing the children for adoption.  That application was due to be heard on 10th December, 2009, but, just before the hearing, the father, who had played no part in the care application, instructed an Advocate and said that he wished to participate in the proceedings for a freeing order.  With considerable reluctance the Court adjourned the application for the freeing order so that the father's Advocate might take full instructions and assessments could be carried out on the father's current state of health.

4.        The mother is appealing against the care judgment and her appeal is due to come before the Court of Appeal on 12th February.  She has made it clear that she will also be appealing the Court's decision to grant a freeing order and it is clearly important that both matters are dealt with at the same time before the Court of Appeal.  Accordingly we are preparing this judgment as a matter of urgency.  The reader is therefore referred to the care judgment for the facts of the case.

Freeing Order

5.        Article 3 of the 1961 Law provides as follows:-

"In reaching any decision relating to the adoption of Infants the court ... 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"

6.        Article 12 provides that the Court may only make an order freeing a child for adoption if each parent consents but also provides that the court may dispense with such consent if satisfied that the parent is withholding his or her agreement unreasonably.

7.        Having had an opportunity of considering the matter, the father has now consented to F and G being freed for adoption but the mother does not consent.

8.        In those circumstances it is well established that the court has to consider two matters:-

(i)        Is the making of a freeing order in the best interests of the children?;

(ii)       If so, is the mother's consent being unreasonably withheld?

9.        It has been emphasised by the English Court of Appeal in re D (a Minor) (Adoption: Freeing Order) [1991] 1 FLR 48 (dealing with the equivalent English legislation) that these are two quite separate matters and that the welfare of the child must be considered first and separately from the question of whether the parent is unreasonably withholding consent, not least because the test under the two matters is not the same.

10.      We consider first the question of whether it is in the best interests of F and G to be adopted.  It is the unanimous view of Dr Williams, Ms Jemma Waugh and Ms Jane King that it is.  Ms Waugh is the social worker from the Children's Service who had responsibility for the children at the time of the care application and Ms King is the social worker who has taken over responsibility for them more recently.  Importantly, the Guardian is also of the view that adoption is in the best interests of the children.  Their reasons are all broadly similar.

11.      They state that these children need stability and certainty in their young lives.  The present situation has gone on too long and it is clear from Ms King's evidence that F in particular is becoming somewhat distressed and confused at the continuing uncertainty.

12.      It is the view of the Children's Service and the Guardian that there is no realistic possibility of the children returning to the care of their mother in the foreseeable future.  The reasons for removing the children into care still remain and it is considered that the children would be at risk of suffering significant harm if they were returned to her care.  Furthermore, there is little likelihood of the mother being able to change her ways.  She has had the support of the Children's Service for some 18 years without any noticeable effect on her parenting abilities.  Furthermore, the report from Ms Sarah Reeves (referred to in paragraph 69 of the care judgment) suggested that any possibility of change would be a slow process.  The children's need for stability and certainty is, however, immediate.

13.      In her evidence, Ms King emphasised that, although there was a presumption that every effort should be made to place children in care back with their birth parents, this was not a realistic prospect in this case.  The children's needs and interests had to be placed first and they could not wait any longer for their parents to change.  In this connection she referred to guidance on adoption issued to English local authorities (Local Authority Circular LAC (19.8 20)) and in particular to paragraphs 7 and 8, the relevant parts of which read as follows:-

"7. Where a child is in the care of a Local Authority, the Children Act 1989 places a duty on them to make all reasonable efforts to rehabilitate the child with his or her family whenever possible, unless it is clear that the child can no longer live with his family or that the Authority has sufficient evidence to suggest that further attempts at rehabilitation are unlikely to succeed.  In this context, there is a common perception among too many in the field that efforts to rehabilitate a child should be constrained by no timetable; that every effort should be made and all possibilities exhausted to try to secure the return of the child to his family - no matter how long it might take.

8. Such a perception lacks proper balance.  Time is not on the side of the child. ... a stage is reached in many cases however, when it is apparent that rehabilitation is unlikely to be successful... Where it is clear that they can no longer live with their birth family, decisions about placing children with permanent families should be made as a matter of priority.  Managers should therefore include effective measures to monitor progress of these cases, ensuring that they are formally reviewed at regular intervals to prevent a child drifting in the care system." (Original emphasis)

14.      If the children cannot be returned to the care of their mother, the only alternative to adoption is long term foster care.  Ms King summarised in paragraphs 11 - 20 of her report dated 19th January, 2010, why adoption was preferable to foster care.  These views were endorsed by the Guardian in her latest report dated 30th November, 2009.  In short, foster care means that the children continue to be in the care of the Minister and there would therefore be continued involvement of the Children's Service which would have responsibility for all major decisions; there would be no parents who would legally, emotionally and permanently take on the children's care and therefore no permanency of family life.  The nature of long term fostering and the ultimate lack of legal permanency would make it more likely that there would be a breakdown in the placement than if there were adoption, where the children would become in law the children of the adopted parents, would have the same surname, and would not stand out as still being subject to the attention of the Children's Service.  Furthermore, if long term foster care were put in place, there would probably be ongoing contact with the mother and the father and it was clear that this was not straightforward at present.  Adoption would provide the security and permanency which long term foster care could not.  In this respect, Ms King again quoted from the Local Authority Circular and in particular paragraph 5 which stated:-

"Adoption continues to provide an important service for children, offering a positive and beneficial outcome.  Research shows that generally adopted children make very good progress through their childhood and into adulthood compared with children brought up by their own parents and do considerably better than children who have remained in the care system throughout most of their childhood.  Adoption provides children with a unique opportunity for a fresh start as permanent members of new families, enjoying a sense of security and well-being so far denied them in their young lives".

15.      On behalf of the mother, Advocate Fitz argued that adoption would not be in the best interests of the children.  The mother did not consider that the children were at risk of any harm if they returned to live with her; on the contrary she believed that it was in their best interests to do so.  She loved her children and they loved her.  Even if the children could not return to her at this stage, long term fostering was preferable to adoption.  This would enable contact between the children and, not only the mother but also the extended family, to continue.  This would keep open the prospect of a return to live with her in due course.  It would also mean that, unlike adoption, the relationship between the children and the mother and the extended family would not be severed.  Jersey was a small place and, if there were an adoption, the children might become upset if they bumped into the mother but could not stay with her.  The children had expressed a wish on many occasions to return to the mother's home.  She also believed that in due course F would tell people the truth about what the father had said to him (in terms of telling lies and being naughty) and he would feel guilty that his lies had led to the adoption.  Once he told the truth, it would be too late for the family to be reunited.

16.      The Court accepts without reservation that the mother loves her children.  However, we also have no doubt that the children's best interests would be served by freeing them for adoption.  Our reasons are essentially those put forward by Dr Williams, Ms Waugh and Ms King as well as the Guardian, who is of course responsible for looking at matters purely from the point of view of the children.  In briefest outline we would summarise our reasons as follows:-

(i)        We found in the care judgment that the children would be at risk of significant harm if they were returned to their mother's care.  We accept the evidence on behalf of the Minister that there is no realistic prospect of the children being returned to live with their mother at present or in the foreseeable future.

(ii)       The choice is therefore between long term foster care and adoption.  We agree that adoption is preferable for these children.

(iii)      Long term fostering would mean that the children remained in care with the continued involvement of the Children's Service.  There would be continued uncertainty and confusion on their part as to where their future lay.  They would no doubt continue to have contact with their mother and would be pulled in different directions.  It is clear from the evidence of Ms King that the present uncertain situation is causing distress and confusion to F and will be likely to do so in G's, also as she gets older.

(iv)      Conversely, following adoption, the children would have all the benefits of a permanent placement with new legal parents, who would have responsibility for all matters concerning their welfare.  The children would not be "in care" and would not perceive themselves as being different from their contemporaries.  They need the opportunity to form long term relationships and the sooner this is done the better because experience shows that the earlier such relationships are formed, the better.

17.      Article 3 of the 1961 Law requires us to consider the wishes and feelings of the children having regard to their age and understanding.  This aspect is considered in the Guardian's supplementary report.  We think that G is too young to understand the situation.  As to F, he is somewhat confused.  At times he expresses a wish to stay with his mother, at other times he expresses an interest in a "forever family".  We agree that the evidence in relation to the contact visits suggests that the bond between the children and the mother is not particularly strong and overall, we do not think, that, having regard to their age and level of understanding, we can ascertain clearly or place much weight upon the children's views.

Withholding of consent

18.      We turn next to consider whether the mother is withholding her consent unreasonably.  The explanation of this test was described at paragraphs 26 - 29 of Re JS and BS [2005] JRC 108 and we apply the principles there set out.  In particular, the test is an objective one.  A reasonable parent will give great weight to what is best for the child (see the observations of Lord Denning MR in re L (1962) 106 LOS JO 611 approved in re W (1971) 2 All ER 49) but the Court must be careful not simply to substitute its own opinion for that of the parent.  The question is whether the parental refusal comes within the band of possible reasonable decisions, not whether it is right or mistaken.  There is a band of decisions within which no court should seek to replace the individual's judgment with its own.

19.      We have considered carefully the contents of the mother's affidavit as to why she is unable to consent as well as the matters put forward by Advocate Fitz, including the logs of a number of recent occasions of contact between the mother and the children.  However, we find that, albeit that she is quite understandably refusing consent because she cannot bear the thought of losing the children, the mother is withholding such consent unreasonably.  We would summarise our reasons as follows:-

(i)        As stated above, the best interests of F and G would clearly be served by freeing them for adoption.  That is a weighty matter for any parent to consider.

(ii)       For the reasons we have given, there is no reasonable prospect of the children being returned to the care of their mother.  If a freeing order were refused, the children would remain in the care of the Minister pursuant to the care order and the Minister has made it plain that she will not allow the children to be returned to the mother because of the risk of significant harm.  Accordingly the children would have to be put in long term foster care.

(iii)      For the reasons already given, this would be a highly undesirable outcome from the children's perspective.  It would lead to continuing uncertainty and tension with a lack of clarity as to who was ultimately responsible for the children and it would inhibit the forming of safe and secure attachments which are so essential to children's welfare.  The fact that this would be the consequence of the mother withholding her consent strongly supports the contention that such consent is being withheld unreasonably.

(iv)      All the evidence suggests that these children should be provided with a safe and permanent home at the earliest opportunity.  Continued delay and uncertainty is likely to be damaging and indeed there is already evidence that F is being affected.  The withholding of consent will prolong the uncertainty and again a reasonable parent would not wish this for the children.

20.      In all the circumstances, whilst fully understanding why the mother cannot bring herself to consent and acknowledging the anguish which our decision will cause, we find that she is withholding her consent unreasonably.

21.      We bear in mind the provisions of Article 12(3), which provide that the parents' consent shall not be dispensed with unless the court is satisfied that it is likely that the infant will be placed for adoption.  On this aspect we have heard evidence from Ms Waugh and Ms King.  There are two families which have been identified who are willing to accept more than one child and children of this age.  We are satisfied from the evidence placed before us that it is likely that the children will be placed for adoption within the reasonably near future.

22.      It is of course essential that the children are placed for adoption together and this is accepted by the Minister as well as being emphasised by the Guardian.  In all the circumstances, we concluded that we should make an order under Article 12(1) freeing F and G for adoption.

Contact

(i) The law

23.      Having reached this conclusion, we must next consider the question of contact.  On this aspect Advocate Hollywood asks us to pronounce upon the correct legal basis for ordering contact where a freeing order has been made.  In Re TS (No. 2) [2005] JRC 178, having made a freeing order, the court ordered contact under the powers conferred by Article 27 of the Children (Jersey) Law 2002 ("the 2002 Law").  Advocate Hollywood submits that, in doing so, the court fell into error.  In Re The T Children [2009] JRC 231, the court noted that the Minister considered Re TS to be erroneous but concluded that it was not necessary to decide the issue in that case. 

24.      It is clear that the court heard no argument on the point in re TS and simply assumed that Article 27 was the appropriate provision.  We have now received detailed submissions from Advocate Hollywood and these are supported by Mr Haines.  It is true that there has been no contrary argument but, as this is an important issue and we have reached a clear view that Article 27 is not the appropriate provision, we think it would be helpful to set out our views. 

25.      Article 27(1) enables the court to make orders for contact in relation to children who are in the care of the Minister.  Article 1(1) make it clear that any reference to a child being in the care of the Minister is a reference to a child who is in the Minister's care by virtue of a care order under Article 24(1)(a) or an interim care order under Article 30.  Thus Article 27 has no application to a child who is not the subject of a care order.

26.      Article 12(5) of the 1961 Law provides that on the making of a freeing order under Article 12 ".....parental responsibility for the infant is given to the Minister and Article 20(2) applies as if the order were an adoption order and the Minister was the adopter."

27.      Article 20(2) is in the following terms:-

"Where an adoption order is made:-

(a)the following are extinguished:-

(i)the parental responsibility which any person has for the infant immediately before the making of the order,

(ii)any order under the Children (Jersey) Law 2002 unless the court directs otherwise; and

(iii)...

(b)the adopter shall have parental responsibility for the adopted infant."

28.      The combined effect of these provisions is that, upon the making of a freeing order, the parental responsibility of the mother and/or father is extinguished, the Minister assumes parental responsibility and any order made under the 2002 Law is extinguished unless the court otherwise directs.  Thus, unless the court otherwise directs, any care order will be extinguished and any order for contact under Article 27 will also be extinguished.  Furthermore, because the children will no longer be in care, any jurisdiction to make an order under Article 27 will come to an end.  We accept therefore that Advocate Hollywood is correct in arguing that, subject to the qualification that the court may otherwise direct, the jurisdiction of the court to order contact pursuant to Article 27 comes to an end on the making of a freeing order.  We consider that this is not surprising.  Article 27 contains a presumption of reasonable contact between children and their parents whilst children are in care.  No doubt this is because there is often a possibility of the children being reunited with their families.  However, once a freeing order is made, the position changes.  Adoption is now the plan and the presumption of reasonable contact is inappropriate as it may well undermine the ability of the children to adapt to their prospective family and be contrary to their well-being and stability in their new placement.

29.      The question then arises of whether the court has any power to deal with questions of contact once a freeing order is made.  We agree with Advocate Hollywood that the answer is to be found in Article 10 of the 2002 Law.  The relevant part of Article 10 provides as follows:-

"(1) Subject to Article 11 and the following provisions of this Article, in any family proceedings in which a question arises with respect to the welfare of any child, the court may make the following orders with respect to a child:-

(a)a contact order

(b)...

(c)...

(d)...

(2) The court may make an Article 10 order:-

(a) on the application of any person who:-

(i) is entitled to apply for an Article 10 order with respect to the child, or

(ii) has obtained the leave of the court to make the application; or

(b) if it considers that the order should be made even though no such application has been made."

30.      Article 11(1) provides that the court may not make an Article 10 order, other than a residence order, with respect to a child who is in the care of the Minister but, as we have already discussed, any care order in respect of a child comes to an end when a freeing order is made and accordingly that child is no longer in the care of the Minister.  Article 11(1) does not therefore prevent the making of a contact order under Article 10(1) in respect of a child who has been freed for adoption.

31.      The expression "family proceedings" is defined in Article 1(1) of the 2002 Law as meaning proceedings within the jurisdiction of the Family Division of the Royal Court and specified in Rule 3/1(2) of the Royal Court Rules 2004.  Rule 3/1(2)(d)(i) specifically refers to applications under the 1961 Law.  It follows that proceedings for a freeing order or an adoption order under the 1961 Law are "family proceedings" for the purpose of Article 10 and accordingly the court has jurisdiction to make an order for contact in such proceedings.

32.      Article 10 contains detailed revisions as to who has a right to make an application under Article 10.  It would seem that in general a father or mother would not have such a right after the making of a freeing order because their parental responsibility has been extinguished, although they may in some circumstances be able to bring themselves within one of the other provisions.  However, Article 10(2)(a)(ii) authorises the court to grant leave to a person to make an application for a contact order.  The considerations which the court should bear in mind when deciding whether to grant leave are set out in Article 10(6) but we would regard it as almost axiomatic that a father or mother should be granted leave to apply for contact where a freeing order has been made so that they can at least be heard on the issue.  Whether an order for contact should be made following the making of a freeing order is of course a different matter but it would seem quite wrong to prevent a father or mother from even applying for such contact.

33.      In summary, we agree that, unless the court specifically directs that the care order should continue upon the making of a freeing order, the jurisdiction to order contact under Article 27 comes to an end and is replaced by a jurisdiction under Article 10.  There is some significance in the difference because, unlike under Article 27, there is no specific presumption in Article 10 in favour of any contact.  On the contrary the court will be guided simply by the provisions of Article 2 and, in particular, Article 2(1) which provides that, when determining any question, the child's welfare shall be the court's paramount consideration.  In making any such decision the court must also have regard to the provisions of Article 3 of the 1961 Law set out at paragraph 5 above, which also refers to first consideration being given to the need to safeguard and promote the welfare of the infant.

34.      It would seem that on the making of an adoption order (as opposed to a freeing order) the court may deal with the question of contact and make such orders as it thinks fit either under Article 10 of the 2002 Law or under Article 16(3) of the 1961 Law, which enables the court to impose such terms and conditions as it may think fit when making an adoption order.

Application to the facts

35.      Accordingly we now turn to consider whether we should make an order under Article 10 of the 2002 Law for contact between the children and the mother and father respectively during the period of the freeing order.  First, we grant leave to both the mother and the father to make an application for contact.

36.      The Minister accepts that, until the decision of the Court of Appeal is known following the hearing on 12th February, there should be no change in the arrangements for contact between the mother and the children.  However, if the decision of this court were to be upheld by the Court of Appeal, the Children's Service proposes that personal contact should then be brought to an end.  It is proposed that there should be two more occasions of weekly contact followed by a gap of a fortnight before a further visit, with a final goodbye occasion of contact taking place not long thereafter.  Thus, it is proposed that contact should be brought to an end over a period of some 4 to 6 weeks and thereafter there would only be letterbox contact.  As to the father, there has been no direct contact for many months and it is proposed that there should simply be letterbox contact.

37.      The evidence from Ms Waugh, Ms King and Dr Williams was to the effect that contact between birth parents and children who are being placed for adoption can be detrimental where the birth parents do not accept or support the placement.  We accept that evidence.  In circumstances where children are being asked to form a new and permanent relationship with the proposed adopters, it is likely to be unsettling, confusing and conducive to failure if they continue to see their birth parents who are not supportive of what is being proposed and who wish the children to return to live with them.

38.      The evidence of Ms King was to the effect that this was the situation here.  The mother does not accept any responsibility for the children having been taken into care and strongly opposes the idea of adoption.  She wishes the children to be returned to her care.  She continues to believe that the father has been guilty of abuse of the children and that one day F will realise that he has been wrong about the "voices in his head" and that he will then feel very sorry and guilty for what has happened.  In these circumstances, says Ms King, it is highly likely that the mother will not be able to disguise her feelings from the children and will therefore make it much more difficult for them to move forward and commit to a relationship with the proposed adopters.  She stated that F, in particular, was finding the current uncertainty increasingly difficult and was often becoming distressed on occasions of contact.  He knew of the possibility of a "forever family" but was still seeing the mother twice a week.  As a result he did not know where his allegiance lay.

39.      The Guardian supports the view of the Children's Service.  She points out that it is widely accepted that direct contact between birth parents and children will only be successful if the birth parents support the adoption and also if the adopters can manage direct contact.  She said that it was also widely recognised that children needed a "settling in" period of about 6 months with the adoptive family before any kind of contact should be considered.  She agreed that in this case the mother would struggle to accept the adoption and contact would be likely to have a negative impact on the children forming new attachments within the adoptive family.  The matter had to be looked at entirely from the point of view of the children's welfare and in her opinion this would be best served by reducing and then extinguishing personal contact in accordance with the proposals of the Children's Service.

40.      Advocate Fitz conceded that the mother did not accept the decision to take the children into care or to place them for adoption but submitted that there was no evidence that she would undermine this decision.  On the contrary, the various observation logs which she had referred to the court showed that, despite her feelings, the mother was supportive of the foster parents during occasions of contact and worked with the Children's Service to comfort the children when they were distressed as contact visits came to an end.  She argued that it would be contrary to the children's best interests to sever the contact with their mother.  Furthermore, if difficulties in placing the children for adoption were to arise and it was desired to restart contact, this would be very disruptive for the children.  Accordingly, she submitted that personal contact should be maintained until any adoption application came before the court.

41.      We understand and sympathise with the mother's desire to maintain contact with the children.  However, no matter how much sympathy we may have for the mother's anguish, we have to look at this matter dispassionately from the point of view of the children's best interests.

42.      We agree with the views of the Children's Service and the Guardian.  Whilst we accept Miss Fitz's point that the mother has been supportive of the foster parents during recent contact visits, we think that the position will become even more difficult for her once a freeing order is made.  The mother feels strongly that the children should return to live with her and she is not supportive of adoption.  In our judgement, no matter how much she tries, she will not be able to disguise these feelings from the children and continued contact will therefore result in their being pulled in two directions, leading to uncertainty and distress on their part.  It will also make it more difficult for them to commit wholeheartedly to a relationship with the proposed adopters and will therefore increase the likelihood of a failure in that regard.  This would not be in their best interests.  We have no doubt that F and G need to be given time to form and commit to a relationship with their permanent family and this must be done in the absence of any restraining influence of the mother or the father.

43.      In the circumstances, we approve the proposal of the Minister for bringing personal contact to an end in the event of the Court of Appeal affirming this court's decision and we also approve the continuation of letterbox contact.

Conclusion

44.      For the reasons we have given, we granted the Minister's application and made orders freeing F and G for adoption.  The Minister and the Guardian are both firmly of the view that F and G must be adopted together by the same family and we strongly endorse that view.  As to the timetable, Ms Waugh explained that, should the Court of Appeal uphold our decision, it should be possible for the matching process to be completed and go before the Panel at either its April or May sitting, following which introduction to the prospective adopters could begin.

45.      We conclude by repeating that we appreciate the distress which our decision will cause to the mother and that we accept that she loves her children, as does the father.  As we stated when announcing our decision, we hope the Social Services Department will offer appropriate support to the mother during this difficult period for her.  We note also that the Children's Service originally anticipated the possibility of one occasion of personal contact per year between the mother and the children and no doubt this is a matter which can be considered, in conjunction with the proposed adopters, at the time of any application for an adoption order.

Authorities

Adoption (Jersey) Law 1961.

In the matter of F and G [2009] JRC 236.

Re D (a Minor) (Adoption: Freeing Order) [1991] 1 FLR 48.

Local Authority Circular LAC (19.8 20).

Re JS and BS [2005] JRC 108.

Re TS (No. 2) [2005] JRC 178.

Children (Jersey) Law 2002.

Re The T Children [2009] JRC 231.

Royal Court Rules 2004.