Jersey Unreported Judgments

[2010]JCA051

COURT OF APPEAL

10^th March 2010

Before     :

The Hon. Michael Beloff, Q.C., President; Dame Heather Steel, Q.C., and; M. S. Jones, Esq., Q.C..

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 president:

Introduction

1.        This is the judgment of the Court.  There are before the Court appeals by the mother, the Appellant, of two children, to whom we shall refer as F and G, against two decisions of the Royal Court: first, that a full care order be made in respect of the two children ("the first decision") dated 1^st December 2009; second, an order freeing the two children for adoption ("the second decision") dated 26^th January 2010. F is a boy now aged 7 and G is a girl who was 4 at the time of the hearing before the Royal Court but is now 5.  The two decisions were made, as we have noted at para 68 below, on separate occasions, for reasons for which the Royal Court was not responsible: but they were interrelated, and we shall consider them together.

2.        On any view this is an agonising case.  The end result of the two decisions is that a mother, who, it was and is accepted, loves and is loved by her two children, may be deprived of all but letterbox contact with them during their years up to adulthood.  The Royal Court was acutely conscious, as are we, of the importance of the matter to the parties involved, but bore in mind, as do we, that the lodestone of legal principle embedded in Jersey law which guides us is that the paramount interest is the welfare of the children.  But we also bear in mind that "the intervention of the state into matters of family life may often call for immense caution and restraint" Lancashire County Council v B [2000] 2 AC 147 per Lord Clyde at p. 170.

Background

3.        The background is fully set out in the First Decision and we gratefully note the Bailiff's summary:-

"2.      The mother has two sons, A and B, by a previous relationship.  They are now aged 19 and 18 respectively.  Owing to concerns about the mother's parenting skills and suspected physical abuse of one of the boys, fit person orders in favour of the Education Committee were made in respect of both boys on 31st January, 1992, which remained in force until the boys became of age.  Shortly after the making of the order, they were placed by the Children's Service back in the care of their mother at La Chasse House, a residential centre administered by the Committee, but not long afterwards A was returned to foster care.  B and the mother moved to independent accommodation.

3.        In January 1996 the mother met the father and they married in May 1996.  A moved back to live with them.  However, difficulties continued despite support from the Children's Service and in September 2000 both children were moved to live with the mother's mother ("the grandmother").  They have remained with her since.  For a long period there was no contact, but, being of age, they now see the mother when they wish.

4.        F was born in February 2003.  Because of the history of concerns regarding the mother's ability to care for A and B, an assessment was carried out by the Children's Service but it was felt that, although each of them had weaknesses in their individual parenting capacities, the mother and the father appeared to complement each other in meeting F's needs.  It was noted however that the father would continue to provide the main care for F and he was asked not to seek employment outside the family home as there remained concerns regarding the mother's ability to meet F's needs were the situation to change.

5.        G was born in November 2004.  On 31st August, 2006, the father left the matrimonial home and the parties have lived apart since then.  The relationship between the father and the mother has become extremely hostile with allegation and counter allegation about their conduct towards the children being made on a regular basis.  The Children's Service has been actively involved for a considerable period and there had been the occasional report suggesting that the mother was using excessive force towards the children but there was no satisfactory evidence of this.  We make no finding on this aspect and ignore it for the purposes of our decision.

6.        On 19th November, 2007, F was seen to have various areas of bruising to his face.  We shall refer to this incident in more detail later in this judgment.  As a result the children's names were placed on the Child Protection Register under the category of 'At Risk of Physical Injury'.  It was agreed that the grandmother would move in to the matrimonial home to live with the mother and children until the police investigation, which had commenced as a result of the bruises, was complete.  It was also agreed that the father's contact would revert to being at Milli's.

7.        In the following period there were repeated allegations by the mother and the grandmother that the father had abused one or more of the children although it was felt that these were highly unlikely to be true as, apart from one unsupervised contact, the only other contact between the father and the children had been at Milli's.  There was considerable concern that the allegations were causing the children emotional damage.  On 21st January, 2008, a child protection conference was held and it was decided that the children's names should also be put under the category of 'emotional abuse' on the Child Protection Register.

8.        In the next few months, the Children's Service continued to have concerns about the emotional well-being of the children and we shall refer to some of the evidence on this aspect later in this judgment.

9.        On 11th May, 2008, the police were contacted following a bruise being noted on F's left cheek.  F alleged that his mother had struck him.  Following this incident the children were placed temporarily with the grandmother.  Arrangements were made that there would be two supervised contacts per week between the children and the mother and that the father's contact would continue to be at Milli's once a week.

10.      On 1st August, 2008, following an application by the Minister, this Court made an interim care order in respect of F and G.  The plan at that stage was for the children to remain with the grandmother under the interim care order.  However, on 8th August the grandmother contacted the police and the Children's Service saying she had noticed a large bruise on the inside of G's bottom towards her anus.  G had apparently said that her father had done that by putting his finger up her bottom.  Medical examination suggested that the bruise was a non-accidental injury, possibly from sustained pressure, maybe an adult's thumb.  However the age of the injury suggested that it could not have been the father as the father had not had contact during the relevant period.  A decision was then made by the Children's Service to admit the children to emergency foster care because of concerns that the grandmother had caused the injury with a view to blaming the father.  After a short emergency placement with foster carers followed by a short period in a residential unit, the children were placed with foster carers on 29th August, 2008. They have remained there since then.

11.      There has been regular supervised contact between the mother and the children and there has also been contact with the father although this has been more irregular and has broken down more recently."

4.        The Minister of Health and Social Services ("the Minister") applied for a full care order on the basis that the children had suffered and were at risk of suffering physical harm and emotional harm which amounts to significant harm.  It is the making of that order pursuant to that application which is one subject of this appeal.

The Law

5.        Article 24 of the Children (Jersey) Law 2002 ("the 2002 law"), in material part provides:-

"(2) The court may only make a care order or supervision order if it is satisfied:-

that the child concerned is suffering or is likely to suffer, significant harm; and

that the harm, or likelihood of harm is attributable to:-

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

the child's being beyond parental control.

......

(6) In this Article

"harm" means ill-treatment or the impairment of health or development;

"development" means physical, intellectual, emotional, social or behavioural development;

"health" means physical or mental health; and

"ill-treatment" includes sexual abuse and forms of ill treatment which are not physical.

(7) Where the question of whether harm suffered by a child is significant turns on the child's health or development, his or her health or development shall be compared with that which could be expected of a similar child." (Emphasis supplied)

6.        It is well established that:-

(i)        Satisfaction of the threshold conditions in Article 24(2) is a necessary but not a sufficient basis for the making of a care order.  Re M (A Minor) Care Holder: Threshold Conditions [1994] 2 FLR 577 at p.583.

(ii)       The threshold conditions have to be satisfied at the date of the application, but the Court is not precluded from taking account of all relevant circumstances which exist at the date of the hearing (ditto).

(iii)      The two elements of the threshold conditions are alternative ("is suffering" as contrasted with "is likely to suffer"). (Given that it is the future with which a Court must be concerned, it may seem odd that the first element is in the legislation at all, other than as a reminder of the need to bear the past and present in mind when considering the future: but it is there, and both the Royal Court and we must take it into account).

(iv)      The first aspect requires proof [of past harm] on the balance of probabilities.  Re H (Minor) [Sexual Abuse Standard of Proof] [1996] AC 563, In Re B (Children) (Care Proceedings) Standard of Proof [2009] AC 11.  Re S-B (Children Care Proceedings: Standard of Proof ("SB") P [2010] 2 WLR 238[8].

(v)       The second aspect requires an assessment of a real possibility of future harm, Re (H) Minor Sexual Abuse: (Standard of Proof) [1996] AC 563: i.e. "a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (Lord Nicholls at p.585E).  Re S-B Children (Care Proceedings: Standard of Proof) [8].

(vi)      For the purposes of assessing the risk of future harm, the Court may only have regard to proved facts as distinct from unproven allegations (ditto Re O.N. [2003] 1 FLR 1169 at 1174) [74].  Re S-B [8].

(vii)     Ill treatment is not confined to physical ill-treatment.

(viii)    The concept of "forms of ill treatment which are not physical" has not been explored in the jurisprudence.  In the document "Working Together to Safeguard Children" which was prepared by HM Government in the United Kingdom as a guide to inter-agency working to safeguard and promote the welfare of children, there is a useful explanation of emotional abuse (in context a synonym):-

"Emotional Abuse

1.31    Emotional abuse is the persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child's emotional development.  It may involve conveying to children that they are worthless or unloved, inadequate or valued only in so far as they meet the needs of another person.  It may feature age or developmentally inappropriate expectations being imposed on children.  These may include interactions that are beyond the child's developmental capability, as well as over protection and limitation of exploration and learning, or preventing the child participating in normal social interaction.  It may involve seeing or hearing the ill treatment of another.  It may involve serious bullying, causing children frequently to feel frightened or in danger, or the exploitation or corruption of children.  Some level of emotional abuse is involved in all types of maltreatment of a child, though it may occur alone."

(ix)      The harm contributed by either form of ill treatment has to be "significant".  Harm which does not satisfy this criterion cannot meet the threshold.  To put it another way the law tolerates natural parents causing harm to their children as long as it is not significant.   In Humberside County Council-v-B [1993] 1 FLR 257, Booth J said this:-

"Significant harm was defined by Miss Black, in accordance with dictionary definitions, first as being harm that the court should consider was either considerable or noteworthy or important.  Then she expressed it as harm which the court should take into account in considering a child's future.  I think that is a very apt and helpful submission."

We agree, as far as it goes.  But, as Ward LJ said in MA & Ors v City and County of Swansea [2009] EWCA Civ 853:-

"We have to wait for 15 years after the commencement of the Act to find the first really considered attempt to explore the concept of significant harm".

He endorsed the following passage from the judgment of Hedley J in Re (L) Care Threshold Criteria [2007] 1 FLR 2050 at [50]-[51]:-

50.      What about the Court's approach, in the light of all that, to the issue of significant harm?  In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy.  Basically it is the tradition of the United Kingdom, recognised in law, that children are best brought up within natural families.  Lord Templeman, in Re: KD (a minor ward) (termination of access) [1988] 1 AC 806, at page 812 said this:

"The best person to bring up a child is the natural parent.  It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger.  Public authorities cannot improve on nature."

There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point.  It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it.  It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability.  These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting.  In any event, it simply could not be done.

51.      That is not, however, to say that the State has no role, as the Children Act 1989 fully demonstrates.  Nevertheless, that Act, wide ranging through the court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe.  Its essence, in Part III of the Act, is the concept of working in partnership with families who have children in need.  Only exceptionally should the State intervene with compulsive powers and then only when a Court is satisfied that the significant harm criteria in Section 31(2) is made out.  Such an approach is clearly consistent with Article 8 of the European Convention on Human Rights.  Article 8(1) declares a right of privacy of family life but it is not an unqualified right.  Article 8(2) specifies circumstances in which the State may lawfully infringe that right.  In my judgment Article 8(2) and Section 31(2) contemplate the exceptional rather than the commonplace.  It would be unwise to a degree to attempt an all embracing definition of significant harm.  One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.  Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it."

We find that too a helpful definition, because it reminds us not to fall into the trap of concluding that merely because children might be better off away from their natural parents an order of the kind made is warranted.  More is required to justify severance of such familial links.

(x)       The range of facts which may properly be taken into account in determining whether the threshold conditions are met is infinite. In Re H (Child Sexual Abuse; Standard of Proof) [1996] ALL ER 1 Lord Nicholls of Birkenhead said of the threshold criteria at page 21:-

"The facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults.  They include threats, and abnormal behaviour by a child and unsatisfactory parental responses to complaints or allegations.  And facts which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm.  The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issues." (Emphasis added)"

7.        If the threshold criteria are not satisfied, the Court will make no order.  If they are satisfied, the Court must then consider whether such an order should be made.

8.        For this purpose it is well established that:-

(i)        The child's welfare is the paramount consideration (Article 2(1) the 2002 law).

(ii)       Any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of the child (Article 2(2)) (ditto).

(iii)      The Court must have regard to the seven matters ("the welfare checklist") set out in Article 2(3) (ditto).

(iv)      The Court must not make an order unless it considers that doing so would be better for the child than making no order (Article 2(5)) (ditto).

(v)       Before making a care order the Court must scrutinise the care plan prepared by the Minister for the child. Before making a care order the Court must scrutinise the proposals for contact in the care plan and invite the parties to comment on them (Article 27(11)) (ditto).

9.        It is notable that, with one exception, the mother does not suggest that the Royal Court approached the application otherwise than in accordance with the principles applicable at both stages of the assessment.

The Evidence

10.      The Royal Court received a number of reports including three reports from Ms Jemma Waugh, the social worker from the Children's Service with primary responsibility for this case, a parenting and risk assessment from Dr Bryn Williams, a neuro-psychological assessment of the mother by Ms Julie Moignard, a psychological report on the mother by Ms Sarah Reeves and a report from the guardian.  It has also received affidavits from the mother and grandmother and has heard oral evidence from Ms Waugh, Dr Williams, the mother and the guardian.  The reports and affidavits are in the bundles before us and we have read them.  We have also read the transcripts of the oral evidence. From our own reading we consider that the summaries of the Royal Court accurately convey the gist of that evidence.

11.      Ms Jemma Waugh was appointed as the childcare worker within the Children's Service with responsibility for this family in November 2007. She has prepared three reports.  The first dealt with the regular interaction between the Children's Service and the family up until the application for an interim care order and was the report produced to the Royal Court when it made the interim care order in August 2008.  The second report deals with events since the making of the interim care order.  The third report was prepared in order to deal mainly with the incident of 18^th November 2007 said to evidence physical abuse of F by the mother.

12.      The Royal Court summarised the evidence of Ms Waugh as follows:-

"22.    Following the separation in August 2006, the children remained with the mother although they had contact with the father.  Divorce proceedings were instituted.  Subsequently, by consent, the Court granted a residence order to the mother with contact to the father.  The mother began to make allegations against the father.  On 20th July, 2007, she alleged that, after contact with the father, F had told her that the father had told him to be naughty with his mum so that he could go and live with his dad.  She also alleged that the father had smacked G causing bruises."

23.      After further allegations, the Children's Service carried out an initial assessment which concluded that there was a degree of animosity between the parents which, if not resolved, would be likely to cause emotional distress to the children.  Despite this, the allegations continued.  For example on 17th October, 2007, the mother expressed concerns that the father had been bathing the children when this was not required.  She was worried that he knew people that were in prison for taking indecent photographs of children and that he might allow a paedophile into the flat whilst the children were there.

24.      We turn next to the incident which has been referred to as the bath incident.  On 19th November, 2007, the father attended the Children's Service.  He said that, during unsupervised contact with F the day before, he had noticed bruising to the eye which F had told him that the mother had caused by hitting him.  The father also said that F had a bruise on his right cheek which had been caused when he had fallen on the steps of "Pound World" during the contact with the father.

25.      Following receipt of this information, Sarah Wakeham, Social Worker, visited F at home.  We have seen the report which she prepared at the time.  F told her that he had fallen in the bath.  He said that his mummy had been washing his hair and that he was not doing as he was told.  He said the water was going in his eyes and he had smacked his mummy on her arm.  He said that he then fell over and hit his head near the base of the bath near the plughole.  He said that the father had told him to tell lies about how it had happened.

26.      The mother's version was rather different.  She said that F had been standing outside the bath and that she was trying to wash his hair over the side of the bath.  She said he was messing around and not doing as he was told, he had got water in his eyes and had lashed out at her, hitting her hand away.  She said that she had fallen backwards and that, as she fell, the bath mat that they were both standing on had slipped away.  F had fallen to the floor and hit his head on the floor.

27.      The same day F was examined by Dr Holmes, the police surgeon and we have his report.  Dr Holmes noted three separate areas of bruising.  Firstly, there was bruising to the upper and lower left eyelid.  This appeared to be several days old, possibly 4-6 days old.  Secondly there was bruising on his right cheek.  This was more recent and was probably less than 36 hours old.  Thirdly there was a yellow fading bruise of fingertip size on the right cheek just below the second area.  This was probably at least 6 days old.  When F was asked what had caused these injuries, he said that he had fallen on the step at "Pound World"' the previous day, causing bruising to his right cheek.  When Dr Holmes asked him what had caused the injury to his left eye, the mother immediately interceded and gave her version about having fallen backward and slipping on a rug in the bathroom so that F had also fallen to the floor.  Dr Holmes expressed the opinion that there were three separate injuries which had occurred on three separate occasions, with the most likely cause being non-accidental in nature.  He was troubled by the mother's explanation as he could not understand how falling backwards would cause the injury to F's face and he also was worried about the explanation of falling at "Pound World" as he would have expected an abrasion of some degree if the injury had been caused by a fall onto a hard rough surface.

28.      On 22nd November, 2007, Dr Mark Jones, Consultant Paediatrician also examined F.  He agreed with Dr Holmes that there were three injuries and that these may be non-accidental in nature.  He was unable to explain the linear nature of the bruise to the left eye in the context of a fall onto the flat surface of the bathroom floor. 

29.      As a result of these events, the names of F and G were placed on the Child Protection Register under the category of "At Risk of Physical Injury".  It was also agreed that the grandmother would move in with the family until the police investigation was complete and that the father's contact would revert to being supervised at Milli's.

30.      A few days later the mother contacted the Children's Service to say that F had told her that the father had pushed him down the stairs at "Pound World".  When the social worker visited the home that evening, the mother told F to tell her what he had said earlier.  F repeated that the father had pushed him at "Pound World" and, when asked why he had not said this before, he said that he did not know.  On the 26th November the previous health visitor, Mrs Querns, informed Ms Waugh that she had written to the General Practitioner regarding the children because they were so pale.  She described the children as extremely well behaved, almost "too good!"  On 28th November, the father told Ms Waugh that F had told the father that if he F was naughty his mummy could make things happen and change the weather.  On 29th November the mother said that the grandmother had told her that F had said that the father had hit him on his feet, legs and hands and that if F told anyone "daddy would put his hands around his throat".

31.      On 4th December, a core group meeting was held.  Discussion took place as to the various allegations that had been made.  The Headmaster of F's school said that he felt it unlikely that F had the verbal skills to communicate all the allegations that the mother had made.

32.      On 5th December Ms Waugh visited the children at home.  The mother showed her where F had drawn on the walls.  F stood and looked up at the mother saying "Daddy told me to do it".  Ms Waugh felt that F appeared almost robotic and was expressionless.  On 10th December Ms Waugh visited the home and the grandmother told her that F had shouted in his sleep "Daddy don't hurt me" and had alleged that the father had punched him in the stomach.  Ms Waugh explained to the mother that she was concerned about the increasing allegations that she and the grandmother were making and how the dispute between her and the father might be impacting on the children.  The next day a professionals meeting was held.  Concerns were raised about the mother's inconsistent account of events.  Concern was raised regarding the emotional impact that this could have on the children.  The police reported that the evidence from their investigation led them to have grave concerns regarding the mother's ability to safely parent her children.  None of the evidence suggested that the father had caused the injuries to the children although, because both parents had been in contact with F on the relevant day, the injuries could not he attributed to a single person and therefore no further action could be taken.

33.      Contact with the father continued at Milli's but on 4th January, 2008, the co-ordinator at Milli's wrote to Ms Waugh to insist that the mother's continual criticisms and insinuations against the father must stop and she gave various examples of what had been occurring.

34.      On 5th January, 2008, the mother contacted the police.  She alleged that F had been pulling his penis back and forth and when asked why he had done it, he had told her that the father had told him to do it each day for exercise.  She also said that the grandmother had asked G if the father touched her "down below" and G had pointed to her vagina saying "Daddy touches me there when he takes me to the toilet".  The mother said that F was extremely distressed.  Discussion amongst the professionals took place following this allegation and it was noted that the father had only had one unsupervised contact since November.  On 12th January the mother again contacted the police and said that F had said that his father has pulled his pants down and touched his "ding dong" and hurt him.  At a subsequent visit to the home by the duty officer F appeared to be calm and relaxed.  The mother however repeated her concerns and said that if the social worker asked him about the "things in his head", she would see what the problem was.  The duty social worker felt that this would not be right whereupon the mother said that it was disgusting the way she was being treated.

35.      On 14th January, the social worker Sandra Jones visited the family home at the mother's request.  The mother said that she was unhappy that the father had been allowed to take G to the toilet unsupervised during contact.  The mother said that the grandmother had asked the children if the father had taken them to the toilet when she collected them.  F then stood in front of Miss Jones and told her that his daddy had put a snake in G's mouth.  He said it was a real snake but was not sure where or when this happened.  Miss Jones felt that F had been primed to give this information.  The mother then asked G to stop eating her meal so that Miss Jones could ask some questions.  The mother requested that G be medically examined to look for fingerprints internally.

36.      On 15th January the grandmother contacted Ms Waugh and said that G had told her that she had a snake in her mouth yesterday.  When the grandmother had asked her where she got the snake G had apparently said "Daddy had a snake, he told me I had to put the snake in my mouth, daddy took me to the toilet and he put a snake in my mouth".  She went on to say that daddy had the snake in his trousers.  The grandmother also said that F was always shouting in the night "leave me alone daddy, Daddy's coming".  As a result of this Ms Waugh contacted Milli's but was told that the father had not been out of their sight and none of them could remember him taking the children to the toilet.  The police did not feel it appropriate to interview the children regarding these allegations.  On 15th January, F told Ms Waugh when he was alone with her that the grandmother had told him that the father had put his snake in G's mouth and that G had been crying.  Ms Waugh was concerned that F was expressionless and showed no sign of emotion throughout the session when talking of the position between his mother and father.

37.      On 21st January a review child protection conference was held and concerns were raised that the children's emotional needs were not being met and that F in particular was becoming increasingly muddled.  It was agreed that the children's names would remain on the Child Protection Register under the category of "'Emotional Abuse".  It was also agreed that there would be two supervised contacts a week with the father in order to assess the quality of contact.  On 20th February Miss Jones collected the mother and the two children.  She said that the children looked a little anxious. they were both very still with their eyes wide.  The mother said that both children had been naughty.  G held Miss Jones' hand although the mother had asked her to hold hers.  The mother told F to hold her hand and used a sharp tone of voice.  F did as requested without question but did not look at the mother.  Miss Jones took the children to the park whilst the mother attended an appointment with the psychologist.  During the journey, F told Miss Jones that the mother was very angry with him although he could not explain why.  He appeared upset and repeatedly twisted his hands in his lap.  Miss Jones did not question him any further as he appeared to be becoming increasingly anxious.  He also said that his dad was inside his head telling him to be naughty.

38.      Two days later Miss Jones took F and the mother to a speech and language therapy session for children with delayed speech, which F has suffered from.  The mother told Miss Jones that F had something to say to her.  Miss Jones asked F what was worrying him and he said that he was naughty and that his daddy was inside his head.  Miss Jones noted that F appeared anxious and asked the mother for an example of what F had done.  The mother said that F had drawn on his homework.  The mother was quite short with the children telling them not to touch or squeeze cartons of drink which they had.

39.      On 11th March, a family support worker carried out some individual work with G and when the session came to an end, G started to cry and became increasingly upset saying she did not want to go home although in fact when she was returned to the mother she greeted her with a hug.

40.      On a visit on 19th March by Miss Jones to the family, G presented as quiet and subdued and the mother reported that G had helped herself to a tin of sweets and then dropped them.  G appeared a little confused and anxious by the mother's report of what had happened and remained on Miss Jones' knee seeking her reassurance.

41.      On 10th April Miss Jones visited the family home.  The children ran to greet her but the mother raised her voice telling the children to go back to their rooms.  G began to cry but did go into F's bedroom.  The mother told Miss Jones that she had the flu and that it was Miss Jones' fault.  She said that neither Miss Jones nor Ms Waugh were doing their jobs and they had allowed the father to get away with what she thought he had done to the children.  G continued to cry in the bedroom and the mother explained that the children had to stay in their bedrooms for the day otherwise they would catch her flu.  Eventually, after advice from Miss Jones, the mother agreed to let G out of her room, telling her that if she caught the flu she was not to complain.  G immediately went over to Miss Jones and sat on her lap.

42.      On 29th April Ms Waugh visited the mother and the children.  She saw F alone and he said that his father had been telling him to make a noise and get things to eat, "thieving".  Ms Waugh asked what the mother did if he took food without asking and F replied that she told him to get into his bedroom and to get the father out of his head.  He went on to explain that a thief was a very naughty thing and it made him sad when his daddy was in his head.  He told me that after he had done something naughty his daddy would laugh inside his head.  He said he could not hear him inside his head but he was inside his "ear wax".  Following this Ms Waugh had a consultation with Ms McGovern of CAMHS (Child and Adolescent Mental Health Service) about F's talk of the father being in his head.  Ms McGovern thought it more likely that F was reacting to his situation rather than having mental health problems.

43.      On 11th May, 2008, Ms Waugh was contacted by the police following a bruise being noted on F's left cheek while he was attending contact at Milli's.  She went to Milli's and asked F where he had got the bruise, which was on his left cheek bone, about an inch in length.  F replied that the mother had done it before breakfast.  He had been crying and she had smacked him ten times.  Ms Waugh considered that F presented as very natural in his response and not like he had been at times in the past when he had seemed quite wooden.  She took the children to the Public Protection Unit of the police where F was medically examined.  The doctor was of the opinion that the bruise was consistent with the explanation that had been given by F although this was not conclusive.  F appeared quite cheerful and indeed commented "I must remember to tell mummy what a lovely day we've had".  After discussion with the police, the decision was made that the children should not be returned home and it was agreed that they should be placed temporarily with the grandmother.  F was interviewed by the police the next day and repeated the same story that the mother had smacked him and caused the injury to his face. 

44.      On 13th May Ms Waugh met with the mother and grandmother along with her supervisor.  The grandmother said that her ex-husband had spoken to F on the telephone the night before and apparently F had told him that the father had caused him the injury whilst at Milli's but had told him to say that it was the mother.  The mother did not accept any responsibility for the injury although the grandmother did acknowledge that she believed the mother had caused significant physical injury to A in the past and accepted the concerns which the Children's Service had raised regarding the physical risk the mother posed to F and G.

45.      On 15th May the headmaster of F's school contacted Ms Waugh to say that the grandmother had been into the school with F and had said in front of the children that F had told her that everything he had told the police had been a lie and that the father had told him to do this ages ago.  The grandmother said that F had been extremely upset before school, although the headmaster said he could see no evidence of this and that F presented as happy and relaxed.

46.      Following these events the Children's Service decided to seek legal advice with a view to initiating care proceedings.  At the conference when this was discussed a police officer noted that the mother had told the police officer that F had caused the injury to his face himself because the father had told him to do so.  The deputy head teacher at the school had reported that F had told various staff members that it was the mother who had smacked him causing the injury.

47.      On 16th May Ms Waugh supervised contact between the mother and the children.  The mother repeatedly told the children to be careful on the mat so as not to slip.  F jumped across the mat and did slip whereupon the mother immediately shouted "Are you going to fall over and hurt yourself again and blame it onto mummy?"  F looked worried and went over to a chair, leaning face forward on it and crying.  G started crying as well.

48.      On 20th May the mother told Miss Jones that she had not hit F and that he had had a temper tantrum and hit himself.  She reiterated that he had nightmares about the father.  Shortly afterwards the children arrived for contact and greeted Miss Jones with a hug.  F did not hug the mother but G did.  The mother set out a large plastic games mat.  She was very firm about the rules and counted for the children.  Miss Jones suggested she allowed the children to count but the mother said that she was good at counting.  G became a little bored and threw the dice off the mat and the mother told her that if she did not keep it on the mat she could not continue to play.  F then accidentally threw the dice off the mat and the mother told him if he did it again he would not be able to play.  F became distressed and started crying and then turned away and sobbed.  The mother attempted to comfort him but he would not accept comfort.  For about five minutes he continued to cry.  He went into the toilet and was audibly crying.  The mother did not attempt to go to him but told Miss Jones that he was crying in the bathroom.  Miss Jones went to F and comforted him.

49.      On 22nd May there was further contact.  When F skipped forward on arrival the mother firmly told him he was not to run in the flat as it was dangerous.  F became quiet following this for the next few minutes.  F started showing Miss Jones his collection of DVDs and the mother appeared to become irritated, saying they were all in alphabetical order and it would take her over an hour to sort them out again.  The mother mentioned about five times that F had had a "'paddy" during a game of "snakes and ladders" the week before.  Whilst the mother was saying this F became quieter again.  When the children showed excitement at getting a toy out, the mother shouted "halt" telling them not to run.  At ten past four the mother told the children they could not get any more toys out as they would not have time to tidy them up before half past four when the contact finished.  The mother asked F to tidy his toys but did not comment when G started taking more toys out.  When the mother had again to ask F to put his toys away she said "Shall I speak in German?"  Miss Jones moved out of the way so that F could put his pencils back and the mother shouted at him saying he could have hurt Miss Jones' hand.  The mother told F to apologise which he did.  When the grandmother came to collect the children neither cuddled nor kissed the mother.

50.      On 3rd June Ms Waugh again supervised contact between the mother and the children.  The mother gave F a birthday card to write for his friend.  When he had written it the mother did not praise him but said his writing was as big as a "'double decker bus".  She corrected F's spelling of a word but mis-spelled it herself.  F said "Sorry" for getting it wrong.  F brought in a children's computer that sounded out letters.  The letter was 'U' and F said 'U' for 'Us', the mother said 'U' for 'Yourself'.  Whilst F was attempting to answer further questions the mother said you have only got 30 seconds not 30 hours.  Towards the end the mother became agitated saying they only had eight minutes.  She then said "Halt" followed by "You know what that means don't you?"

51.      Following the making of the interim care order on 1st August, the grandmother spoke to Ms Waugh on 8th August to say that she had contacted the police because when she had been bathing the children the previous night, F had said "Oh, he's done it again - he told me that I've got to still pull my winky, he said he loves me when he pulls my winky".  The grandmother said that F was referring to his last contact session with the father and that when she had asked him where Christine Papworth (the family support worker who supervised the contact) was at the time, F had said that she was in the cafe eating her lunch while he was in the sea with the father. 

52.      The grandmother said that on the same night, while she had been wiping G's bottom, G had told her that it hurt and she saw a large bruise on the inside of G's bottom towards her anus.  The grandmother said that G had told her that her father had done that "He put his fingers up my bottom and I said you leave me alone".

53.      As a result of this information Ms Waugh took G to the police where she was examined.  In the meantime Ms Waugh contacted Christine Papworth who told her that the father's last contact had been eleven days before and at no point had she left either child unsupervised with the father.  Whilst waiting for the police Ms Waugh chatted with F who said that the grandmother had said that he would go to jail if he told lies and that he had told lies about his mother and grandmother hurting him.  Ms Waugh asked F if he knew that G had a sore bottom and F said that he did.  He said that "Daddy did it".  Ms Waugh asked F how he knew that and he said that his grandmother had told him.  He went on to say that his grandmother had said that he might go into a children's home.

54.      When G went into the examination room she said "Nanny didn't do it, Daddy did!"'.  G was examined and the medical conclusion was that it looked like a non-accidental injury, possibly from sustained pressure, perhaps an adult's thumb.  The bruise was quite near her anus.  The doctors felt that the injury had probably occurred within the last three days plus or minus two days on either side.  The doctors and the police did not think that the children should be returned to their grandmother's care and the decision was then made to place the children into emergency foster care.  By 31st August they had been placed with their present foster carers.

55.      The second report of Ms Waugh deals in great detail with the occasions of contact between the children and the mother since the interim care order.  The report is lengthy and we do not think it necessary to recount the contents in any detail.  Suffice it to say that on many occasions one or both of the children were reduced to tears, the mother often spoke to them in a harsh tone, she set very rigid and unreasonable boundaries and there did not appear to be a great attachment with them in the sense that the children often looked to the supervisor for comfort rather than the mother.  However, it should be pointed out that on other occasions there was affection between the mother and her children and no-one doubts that she loves her children and they in turn love her.

56.      We propose simply to mention two occasions of contact in order to give a flavour of what has occurred.  On 26th August, 2008, G started at nursery.  Ms Waugh collected her afterwards for contact with the mother.  The mother did not greet the children warmly - she said "What are you - in the army?"' apparently because the children were a little noisy coming up the stairs.  Neither child was affectionate towards the mother or the grandmother who was also present.  The grandmother had brought the children magazines which they were keen to look at.  The mother pulled G onto her lap briefly and then said to F she had a "bone to pick with him".  He looked a little worried.  She then started talking about Mickey Mouse and Ms Waugh could not make any sense of it.  F climbed on a chair and the mother repeatedly told him to be careful in a "short" tone.  G came over to show Ms Waugh something and the mother stopped her, saying that she and Ms Waugh were talking.  G then sat next to the grandmother.  The mother told G in the living room not to run although she was not running at the time.  The mother gave the children a biscuit each and said to F "You go any slower F and you'll be here next week eating the same biscuit".  The mother picked up G and placed her on her lap.  She told G to "Stop jumping" although she was not jumping at the time.  G got down very quickly and did not show any affection to the mother.  G then trod on the mother's feet by accident. The mother made a fuss of it as if G had done it on purpose.  G went to a bedroom and then brought back some toys to show Ms Waugh, climbing onto her lap for some time with the toy.  F was attempting to put a CD on and the mother told him not to touch the CD player in a harsh tone.  F then got out his laptop although he avoided eye contact with the mother.  The mother attempted to help F with the laptop but Ms Waugh felt she took over and was answering the questions herself whilst he watched.  When the time came to leave both children went very quickly to the door.

57.      On 3rd March, 2009, Ms Jones collected F and G for contact with the mother.  Miss Jones allowed them to walk along a low wall, holding G's hand.  They both jumped off at the end of the wall.  The mother had been watching through her window and told F he should not have jumped off the wall as he nearly jumped into the road.  Miss Jones disagreed, noting it was perfectly safe and he had jumped onto the grass.  Towards the end of contact F started running around.  The mother told him not to run or he would not get a smartie.  F started crying and the mother repeated twice that she had told him not to run.  She raised her voice and told him to stop crying.  Miss Jones intervened and explained to F why the mother did not want him to run in the house.  The mother walked out to the car with the children, holding G's hand.  G tripped up and the mother shouted "Walk properly".

58.      On 10th June, 2009, the mother told Ms Waugh that F had attempted to "choke her" during contact and that he had put his hands round her throat and said "I hate you mummy".  The mother alleged that F had been told by the father to do this and stated that somebody should find out from F who had been saying things to him.

59.      In summary, Ms Waugh stated that the Children's Service were of the view that the children had suffered and were at risk of suffering significant harm by reference to the physical abuse as instanced by the bath incident and the incident of 11th May, 2008, and emotional harm as a result of the deficiencies in the mother's parenting.

60.      Ms Waugh says that the mother has a very rigid and regimented style of parenting.  She sets illogical and unnecessary boundaries.  She often speaks to the children in a harsh tone and she tends to shame them by putting them down.  A simple example she gave in oral evidence was where the children run upstairs excitedly to greet her but because she does not want them to run on the stairs, because she is frightened of them falling over, she will make them go back down to the bottom and be rather harsh about it.  It totally deflates them and they lose all that feeling of joy that they initially had in seeing her.  There was a lack of empathy.  She did not build up the children's self esteem.

61.      As a result of this the children had suffered emotional harm.  The children were over compliant in that they always did as instructed without question.  This was not normal.  They were expressionless and watchful, as if not sure what response they were going to get from the mother and fearful of the consequences of doing the wrong thing.  In addition the false allegations made by the mother and grandmother were damaging to the children.  They were becoming very confused as to what was reality and what was not.  The fact that F was saying that his father was in his head suggested that he was extremely confused and was suffering emotionally.  The shaming would lead to a lowering of self esteem.  The children would tend to think that they were naughty and blame themselves for what was happening.

62.      She said that children need to see their main carers as safe and trustworthy.  That did not appear to be the position here.  The expectation would be that a child of G's age in particular would revert continuously to her main carer i.e. her mother, but G did not do that.  She tended to revert to other adults rather than her mother which suggested that she did not see her mother as a secure base.  Ms Waugh was concerned about the level of attachment between the children and the mother.  She was concerned about the overall position.  There was a risk of the physical violence becoming more prevalent as the children got older and more challenging and there was the lack of empathy from the mother.  Her constant putting down of them was very deflating for them.  When it was suggested to her that this was perhaps simply a case of a parent who was slightly stricter than others Ms Waugh was adamant that one had to look at the whole package, as she put it.  It was the lack of warmth, lack of empathy, the lack of reflection and the risk of physical harm.  Furthermore, the rules and boundaries which the mother imposed were not always rational because the mother herself was not always rational.

63.      Ms Waugh felt that there was no reasonable prospect of change.  The mother's difficulties were significant and had not changed over the last eighteen years or so.  Furthermore, as the children got older she would find it more difficult to reason with them and to manage their behaviour without resorting to physical chastisement.  The Children's Service had been working with her on and off for eighteen years but she was not willing to accept that she needed to make any changes or that there was anything wrong with her parenting.

64.      The Children's Service believed that to leave these children with the mother would run a serious risk of physical or emotional damage beyond that which had already been suffered.  She said that, since they had been in foster care, the children had improved considerably.  They were now more like normal children with more normal emotions and without the frozen, watchful and over compliant behaviour which had been the case whilst they were in the care of the mother.  The fact that F had not heard the father in his head since being taken into foster care was a strong indication that this had been caused by what his mother and grandmother were saying to him and that he was now less anxious.

65.      The reports dealt with the father's position.  We can be brief as it is accepted by all parties that he is not in a position to care for these children.  The father appears to be suffering from depression and has withdrawn from proceedings.  It transpires that he has not opened his post box for a very considerable period with the result that mail is not received by him.  Contact had become somewhat unreliable, with the father sometimes not turning up for contact visits and there has been no contact now for some time."  (Our emphasis)

13.      The Royal Court also dealt with Ms Waugh's oral evidence.  It records:-

"66.    In cross examination Advocate Fitz put it to Ms Waugh that many of the incidents relied upon in the threshold document were extremely minor and could not possibly give rise to any emotional harm on the part of the children.  Ms Waugh contended that one had to look at the overall position.  She accepted that F was a bright child who had done well at school despite the perceived difficulties in the mother's parenting, although both F and G had been very delayed in the development of their speech.  When pressed by Miss Fitz as to whether this was not simply a case of the mother applying reasonable but proper strictness, Ms Waugh insisted that it went further than this.  It was a combination of matters such as the shaming, the lack of reparation (i.e. putting things right after the shaming), the rigidity, the lack of allowing them to explore, the physical fear of chastisement and the fact that they were not able to play and experience joy with their mother.  She was pressed on the alleged over-compliance.  It was put to her that this was simply an example of children who were well behaved.  Ms Waugh insisted that all the professionals were worried about the children's over compliant behaviour.  She said that if children were frightened or not sure about the response which they were going to get from a care giver, they often waited to see what happened before they acted.  Putting it together with the worries about physical chastisement and the very rigid parenting, Ms Waugh's view was that the children were frightened of what the response of the mother might be, frightened that they might be severely punished, sent to their room for ages or hit and that was why they were doing exactly what they were told.  The Children's Service were of the view that a continuation of the sort of incidents which had happened would cause long term damage to the children.  She accepted that the constantly supervised contact which had been taking place since the children were taken into care could be extremely stressful for any parent and was not a natural situation.  Nevertheless the Children's Service had tried to support the mother as much as possible and the contact had taken place in the family home so that they were in familiar surroundings.  She also accepted that the children did not always appear as frozen or watchful but this had been the case more frequently than not.

67.      When asked by the Court to summarise why she considered the harm suffered by the children to be significant, she pointed first to the physical injuries to F and considered that the risk of that continuing if the children were returned to the mother was extremely high because of the mother's lack of coping mechanisms and her lack of emotional insight into the children and into what their needs were.  She said that she had worked with lots of families and she was quite taken aback by the children's presentation when she met them and saw their interactions at home.  She was worried about how they were very watchful and frozen.  She said that the putting down, the shaming and the not allowing the children to do things had continued even during contact sessions when one might have expected the mother to be pulling out all the stops to do the best she could.  Ms Waugh would be very worried that the level of care when there was nobody else around would be much less adequate.  Ultimately she believed that the mother unfortunately did not have the skills and the coping mechanisms to manage the rearing of a child."

14.      The Royal Court received two psychological reports on the mother which were not disputed. We have read them.  The neuro-psychological report of Ms Julie Moignard in March 2008 shows that the mother has considerable learning difficulties.  Her overall IQ is 66, which is in the extremely low range.  Her overall thinking and reasoning abilities exceed those of approximately 1% of adults of her age.  She is likely to experience great difficulty in keeping up with her peers in a wide variety of situations that require age-appropriate thinking and reasoning abilities.

15.      Ms Sarah Reeves prepared a psychological report on the mother in January 2009.  She had available to her all the details of this case then in existence.  The Royal Court summarised the view which she expressed as follows:-

"(i) The mother's overall cognitive ability was in the extremely low range.  In terms of personality characteristics, she showed a marked tendency either to be unaware of or to deny any difficulties which she might have.  She had a tendency to exaggerate her own intellectual abilities and her ability to think about things from others' perspectives was limited.

(ii) Her intellectual abilities meant that her capacity to reason with others was limited and therefore she might become frustrated where reasoning with others was required.  It was also likely that one strategy she had of managing this deficit, particularly in relation to her children, was to set rigid rules for her children which might make her appear to be controlling.

(iii) She might find it hard to recognise the impact that she herself had on others and accordingly reading others' emotional state might present a challenge to her.

(iv) It was difficult for her to ask for help and she was likely to feel patronised when help was offered.

(v) Despite these limitations, she displayed an awareness of children's need for physical love and activity and appeared to strive to meet those needs.

(vi) It was not possible to provide any intervention which would have any marked impact on her learning difficulties.  However, this did not mean that it was not possible for her to learn new skills; it was just that new skills would take longer for her to acquire and were probably best approached from a hands-on perspective, i.e. practical parenting support and working with her and her children might enable her to improve her understanding of her children's needs and develop new strategies for managing the children.  This would have to be an ongoing process as the children's needs would change as they got older."

16.      Dr Bryn Williams, a psychologist with CAMHS and a specialist in psychological assessments relating to children, was jointly instructed by all the parties to prepare a report.  For that purpose he saw the children with the foster carers and also observed them on two occasions with each of their mother and father.  He also interviewed many of those involved in this case and read the notes of all the contact visits with the mother and father.  He specifically had regard to the Good Practice Guidance on working with parents with a learning disability published in 2006 by the Department of Health in England.  

17.      The Royal Court summarised the conclusions of his detailed reports and oral evidence as follows:-

"71.    He accepted without reservation that the mother loved her children and wished to do the best for them.  He said he could not fault the commitment and determination she had shown him in attempting to demonstrate her capacity to meet the needs of the children.  However his conclusion was that they had both suffered significant harm and would be at risk of suffering significant harm if they were returned to the care of their mother.

72.      He explained that emotional development was achieved through attuned parenting and safe parenting.  Where there was an inadequate level of parenting it could have an impact on the child's emotional development.  Such impact could manifest itself in very passive and withdrawn behaviour.  According to the reports from those who had seen the children at the time, they were very withdrawn and compliant prior to the interim care order.  In relation to F, for example, his relationship with his mother had been characterised by violence, lack of attunement and unacceptably high levels of shaming, all of which Dr Williams considered to be emotionally abusive and not in F's best interests.  The over controlling and functional style of the mother's parenting had had a detrimental impact upon F's early development.  The chronology of the twice weekly contact visits showed that over and over again the mother shamed the children about doing wrong without thereafter repairing the position.  The children were hyper vigilant and very concerned about their mother's reaction if they did anything wrong.  It was damaging for anyone to live in a prolonged state of anxiety and the passivity and the over compliance which the children were showing before they were taken into care was classic of a child who had been exposed to a high level of anxiety and has shut down.  The evidence of that anxiety was present in both children, particularly in relation to F.  In his opinion these levels of anxiety were attributable to the parenting that the children had been receiving.  The physical abuse was a concern but even if that had not been present, he would have concluded that they were suffering harm through the damage to their emotional development.  The children had not been developing adequately but the evidence now was that in foster care, they were developing more normally.  He was also concerned about the inappropriate attachment boundaries of both children in that they attached themselves too quickly to other adults rather than their mother.

73.      He said that he had considered very anxiously whether the harm and likelihood of harm was such that the children could not remain with their mother.  However, he concluded from the fact that the mother had had assistance from the Children's Service for some 18 years and that the psychological reports suggested that she would find it challenging to change, that re-instatement of the children to the mother would be detrimental to their intellectual, social and mental well-being.  When asked specifically by the Court why he felt that the harm which the children either had suffered or were likely to suffer was significant to the extent that the State should intervene, he replied that the physical abuse concerned him but he was perhaps even more concerned about their emotional development.  He explained that those who had not had an adequate level of emotional parenting often displayed great problems when they got to the age of 17 or 18 and there was strong academic evidence that parenting that was not good enough could lead to these kinds of difficulties.  In his opinion, if the children were to be returned to the mother, there was a real risk of this sort of outcome.  The change in them since the move to the foster carers was significant and he felt that the risks were such that the State should properly intervene, although this was not a decision that he had come to easily because of his recognition of the love which the mother had for her children and the fact that her learning difficulties undoubtedly contributed to the problems.

74.      In cross examination, he confirmed that he had only personally observed the children with the mother on two occasions and that he had placed great weight on the notes by the Children's Service concerning the contact with the mother since the interim care order.  He accepted that there were indeed examples of praising by the mother and it was not a case of only ever shaming them; but he said that the notes showed that the balance was wrong with little praise and considerable shaming.  It regularly led to the children being deflated.  He described a visit to the zoo with the mother and children where he had noted some of these aspects.  It was put to him that what was described as over compliance could simply be a question of children being well behaved.  Dr Williams pointed to the evidence that, since being in foster care they were behaving in a more normal manner from an emotional point of view.  He was asked by Advocate Fitz whether, if the Court did not find that the mother had been violent towards the children, this would affect his conclusion.  He replied that he was certainly very concerned about the physical violence but that he was more concerned about the requirement to meet the children's emotional needs."  (Our emphasis)

18.      Mrs Janette Urquhart is a social worker employed by the Probation Department since 2002.  She initially qualified as a child care social worker.  She first became involved with this family in October 2006 when she was appointed as Court Welfare Officer to prepare a report on the issues of residence and contact which were then being disputed in the divorce proceedings between the father and the mother.  She prepared a report in March 2007 which recommended that a residence order be made in favour of the mother.  This was in due course agreed to by the parties and an order to that effect was made.   On 1st August, 2008, she was appointed as Guardian ad Litem of the children in the present proceedings.

19.      Mrs Urquhart stated in the Royal Court that she had read all the papers in the case.  She also had five interviews with the mother on her own and five interviews with her at her home address, during which the children were present.  She made four visits to the home of the foster carers where she also saw the children.  She had, therefore, seen the children on nine separate occasions since August 2008 and she also had the opportunity to speak with the children on their own, once at the mother's home and once at that of the foster carers.

20.      Mrs Urquhart's report was dated 27th July, 2009.  In that report she considered each of the headings under the welfare checklist in relation to each child.  She concluded that the mother is not capable of meeting the children's needs and that the children have been subject to physical or emotional abuse whilst in her care.  She supported the making of a care order with a view to the children thereafter being freed for adoption.  (Our emphasis)

21.      Mrs Urquhart also gave oral evidence in elaboration of her report.  She said that in her opinion the mother's style of parenting was very rigid and very over controlling and while she loved and cared for the children and attended to their daily needs, she struggled with their emotional needs.  She explained that in 2007 she had recommended to the Court that the children should reside with the mother, but her experience since then was that the mother had no understanding of their emotional development and was not able to attend to that aspect.  She thought that the emotional harm that the children were suffering was very much to do with the lack of warmth, the lack of nurturing and the lack of attachment in terms of making them feel safe and secure and making them feel that they were able to develop their own identities.  She said that even if the physical abuse was taken out of the equation, her conclusions would not vary because the emotional harm the children were suffering was more detrimental to their ongoing development.  She also referred to G's random emotional attachments to various adults and the lack of strong emotional attachment to the mother, together with the watchfulness, which was evidence that they were waiting for a response from their mother whether that response was to shout or to tell them to go to their rooms or whatever it might be.  She also categorised some of the mother's behaviour as being somewhat bizarre in terms of her commands in German.  She noted how the children had thrived since they had been removed from the care of the mother and she considered that this was supportive of their having suffered emotional harm whilst in her care.  She had concluded that it would be detrimental to the children's development both in terms of possible physical abuse and ongoing emotional harm if they were to be returned to the mother's care.  (Our emphasis)

22.      Mrs Urquhart was cross examined by Advocate Fitz about the differences between her report of March 2007 and her present report.  The former had spoken very highly of the mother and had expressed confidence in her ability to look after the children.  It had spoken of her making exceptional progress in developing her skills for dealing with these emotional needs.  Mrs Urquhart's response was that three things had changed in the intervening period.  In the first place there had been the allegations and counter allegations between the parents, secondly there had been the allegations of physical abuse on the part of the mother and thirdly the mother's parenting ability had stayed static and not developed to meet the varying needs of the children as they have grown.

23.      In answer to a question from Advocate Hollywood, Mrs Urquhart said that she would be very concerned if the children were returned to the mother's care.  She thought that there was a risk of physical violence and there was also the ongoing emotional harm as a result of the mother's style of parenting.  She thought it would be very damaging for the children to return.  In answer to a question from the Court she said that she thought that, if they went back to the mother, it would be detrimental and would only get worse as they got older because their demands would become more challenging for the mother. (Our emphasis)

24.      On the other side of the evidential ledger the mother swore an affidavit and also gave oral evidence. 

25.      In her affidavit, the mother admitted that she was fearful of the children hurting themselves and often told them not to run, but this was for their own protection.  She did not accept that she shamed the children.  They knew that she was just joking when, for example, she told F that they would be here all week if he took so long with his biscuit or when she said that his writing was as big as a double-decker bus.  She did not think that the children were upset by such remarks. 

26.      The mother did not think that she was too strict.  She felt the children should be well behaved and she was concerned that their behaviour had deteriorated considerably since they had been in the care of the Children's Service.  She did not have a good relationship with Ms Waugh, who had threatened at an early stage to take away the children.  She accepted that she had made allegations of sexual and physical abuse against the father because this is what she believed to have occurred.  F was naughty because his father had told him to be naughty.  The Children's Service had not investigated these allegations properly.

27.      As to physical abuse she said in her affidavit, as recorded by the Royal Court:-

"As to the allegations of physical abuse against her, the bath incident of 19^th November 2007 had involved F trying to get out of the bath on his own despite her warning that he would slip.  He had ignored her and slipped as he had one leg out of the bath.  He fell forward and hit his eye on the side of the bath.  He did not hit his head on the floor.  F had accidentally tapped the mother as he fell and had then blamed her for his falling over.  She had later found out that the father had told F to be naughty and get out of the bath because F said to her "Daddy told me to get out of the bath on my own".  She had called the Children's Service because F had told her that the father had pushed him down the steps at "Pound World" and some of the bruises F had at the time were from being pushed by the father.  [para 78]

As to the May 2008 incident, she denied hitting F to cause the bruise on his cheek.  She thought that the father had told F to say that his mother had hit him in order to cover up a bruise which the father had given F at Milli's." [para 79]

28.      In her oral evidence, the mother said that, as requested by the Children's Service, she no longer talked to the children about their father although she had done so on one occasion when F had tried to strangle her and said that the father had told him to do it.  She accepted that she used expressions such as "Halt" but said that the children understood this and it did not upset them.  She repeated that she did not think she was unduly strict or shaming.  She was careful with the children in order to protect them from injury but she would allow them to run in a safe environment.  

29.      She felt that it was unfair to judge her solely by reference to the occasions of contact.  Supervision on such occasions made her feel nervous.  She believed that she could learn new skills and was willing to accept help in order to do so.

30.      As to physical abuse she said in oral evidence as recorded:-

"She said that she had only hit F twice and on each occasion this was simply a tap on the leg.  She was then asked about the bath incident.  She said that there were in fact two incidents.  In the first one F and G were in the bath and she told F to stay in the bath while she got G out.  She was just drying G and turned round to get F out when he fell on the floor, having got out on his own.  He slipped and got his bruises by falling on the floor.  She went on to say that there had been a second time when he had been in the bath and she had washed his hair and he was messing around when he slipped in the bath.  On that occasion he said "Daddy told me to be naughty with you all the time Mummy and he can put into care".  She strongly denied having hurt F on other occasions.  She accepted that she had made mistakes but denied that she had caused any harm to the children.  She said that she would be willing to accept help although she did not wish Ms Waugh in her house as she (Ms Waugh) had been guilty of blackmail." [para 82]

31.      The mother was cross examined in some detail by Advocate Layzell on behalf of the guardian about the inconsistencies in her evidence concerning the bath incident and the May 2008 incident but she maintained that she had not hit F on either occasion.  She also accepted that she and the grandmother had not spoken for about 20 years at some stage and that she had not initially known that the grandmother was looking after A and B, but she nevertheless would be happy for the children to stay with the grandmother one night a week if necessary.

32.      As the Royal Court put it:-

"In essence she denied having caused her children any physical or emotional harm and contended that their best interests would be served by returning to live with her.  She said that the grandmother would help out by having them to stay at weekends if necessary." [para 75]

Conclusions of the Royal Court

33.      The key conclusions of the Royal Court were that "on a balance of probabilities, the bruise to Fs left eye in November 2007 and the bruise to his left cheek in May 2008 were caused by the mother''. [para 95]  It made that finding "'having had the opportunity of seeing and hearing the mother give evidence''. (ditto)

34.      In relation to the first of those two incidents it set out its reasons at para 96:-

"(i) The matter came to the attention of the Children's Service because of a complaint by the father that F had told him that the bruise had been caused by his mother hitting him.  This was the day after the father had had contact during which he said that a bruise to the right cheek had been caused when F fell at "Pound World".  The Children's Service immediately sent Sarah Wakeham to see the mother and F and we have her contemporaneous notes.

(ii) The versions given by F and the mother to Miss Wakeham were very different.  F said that he had fallen in the bath.  He said that his mummy had been washing his hair and that he was not doing as he was told.  He said that the water was going in his eyes and he had smacked his mummy on her arm.  He said that he then fell over and hit his head near the base of the bath near the plug hole.  He showed Miss Wakeham where this was.  He said his father had told him to tell lies about how it had happened.  The mother, on the other hand, said that F had been standing outside the bath and that she was trying to wash his hair over the side of the bath.  She said he was messing around and not doing as he was told, he had got water in his eyes and had lashed out at her, hitting her hand away.  She said that she had fallen backwards and that, as she fell, the bath mat that they were both standing on had slipped away.  F had fallen to the floor and hit his head on the floor.

(iii) F was examined that same day by Dr Holmes.  He said that the bruising to the left eye appeared to be several days old, possibly four to six days old.  There was more recent bruising on the right cheek which was probably less than 36 hours old.  It seems likely that that was the "Pound World" injury.  Thirdly there was a yellow fading bruise of fingertip size on the right cheek just below the second injury but we have heard no evidence as to how that might have been caused.  That was probably at least six days old.  When Dr Holmes asked F about the cause of the injury to the left eye, the mother immediately intervened and gave her version, which was the same as that which she had given to Miss Wakeham earlier in the day.  Dr Holmes clearly had difficulty in understanding how the mother's version of events could have caused the injury to F's eye.  He said that in his opinion the most likely cause of the three injuries, which had clearly happened on three separate occasions, was that they were non accidental in nature.  Dr Jones saw F three days later.  He agreed with Dr Holmes as to the general nature of the injuries.  It is clear that he felt that the linear nature of the bruise to the left eye was inconsistent with a fall on the flat surface of the bathroom floor.  Thus both doctors had difficulty in reconciling the nature of this injury with the version of events given by the mother.

(iv) When she came to swear her affidavit for these proceedings, the mother gave a very different version of events.  This time she said that F slipped as he was getting out of the bath, having ignored the mother's warning that he should not, and he fell forwards and hit his eye on the side of the bath.  She said specifically that F did not hit his head on the floor.  She said that F had accidentally tapped her when he fell whereas previously she had said that he had tapped her because he was cross with her in relation to the washing of his hair.

(v) Finally, when she came to give evidence in Court, the mother sought to reconcile these different versions by saying that there had been two separate occasions, the first broadly consistent with what she had said in her affidavit and the second when F had slipped in the bath.  This was the first time that anyone had suggested that there had been two occasions when F had slipped in or near the bath.

(vi) In summary, there is clear evidence of injury, evidence that the most probable cause is non accidental, the mother has given different versions of events and her initial version is hard to reconcile with the nature of F's injury.  Given these matters, we have no doubt that the probable cause of the injury was that the mother lost her temper with F and struck him in the region of the left eye."

35.      In relation to the second of those two incidents it set out in reasons in its conclusions at para 97:-

"i)       On that occasion a bruise to F's left cheek was noticed at Milli's and the police and Children's Service were called.  F said to Ms Waugh that his mother had caused the injury.  He repeated this when he was interviewed by the police the next day.

(ii)       The police doctor confirmed that the injury was consistent with F's explanation although this was not conclusive and clearly the injury could have been caused by some other person or in some other way.

(iii)      At a meeting the next day between the Children's Service and the mother and grandmother, the mother did not accept any responsibility for F's injury.  The grandmother said that her ex husband had spoken to F over the telephone the night before and F had apparently said that it was the father who had caused him the injury whilst at Milli's and had told him to say that it was the mother who had done it.  Ms Waugh explained that it was almost impossible for this to have happened as the father's contact at Milli's had been supervised; but the mother and grandmother did not accept this.

(iv)      At a child protection conference two days later, a police officer noted that the mother had told her that F had caused the injury to himself because the father had told him to do so.  This was the version which the mother repeated in her oral evidence before us.

(v)       We have no doubt on a balance of probabilities that this injury was caused by the mother.  We accept that F almost certainly exaggerated when he spoke of the number of blows the mother had inflicted but the fact remains that he said that she had caused the bruise, he appeared to be behaving naturally when he said this (rather than speaking in a robotic or expressionless form as on other occasions), and the mother has given inconsistent explanations, both of which seem highly unlikely, namely that the father managed to inflict the injury whilst at Milli's or that F inflicted the injuries on himself because his father had told him to do so."

36.      On "emotional harm" the Royal Court said:-

"We accept the evidence produced to us to the effect that, prior to the children being taken into care and placed with their foster carers, they were frozen, watchful and over compliant.  They were anxious as to how their mother would react to different situations.  In relation to F, we find that the fact that he was saying that he heard his father in his head telling him to be naughty was evidence of his confusion and anxiety and this also amounted to emotional harm.  Similarly, the children's ease of attachment to other adults and lack of attachment to the mother suggested that they were not being provided with that sense of safety and security which is so important to emotional development." (para 98)

As to the cause of the emotional harm suffered by the children, we have no doubt that it was attributable to their parenting.  We accept the evidence of the mother's rigid and regimented style of parenting, the frequency with which she spoke to them in a harsh tone and her tendency to shame them by putting them down.  Furthermore, the constant allegations (including those of sexual and physical abuse) against the father were very detrimental to the children's wellbeing and have led to considerable anxiety and confusion on their part". (para 99)

37.      On that basis the Royal Court said that it had:-

"little difficulty in concluding that these children have suffered harm and would be likely to suffer harm if returned to the care of their mother, and that the cause of this harm is the parenting which they have received from both parents''. (para 100)

38.      Importantly the Royal Court rejected the proposition that the emotional harm per se was significant so as to justify a care order (para 101). However it found that:-

''putting together both the physical and emotional harm which has been suffered, the level of harm suffered or is likely to be suffered is significant and the threshold is met'' (ditto), noting, however, that ''the issue which has caused us most difficulty in this case was whether the threshold test was met." (para 105)

39.      It set out its reasons as to satisfaction of the threshold in para 102:-

"(i)      We have found that on two occasions the mother used physical violence on F.  We have no doubt that G was aware of this.

(ii)       We accept that the level of watchfulness, hyper-vigilance, frozen behaviour and over compliance was a result of the fact that, amongst other matters, they did not know how the mother would react and feared the consequences, not just in terms of sharp language, shaming etc, but also in terms of physical abuse.  In our judgment, this is one of those cases envisaged by Lord Nicholls in the emphasised passage at paragraph 16 where individual incidents are minor but when everything is taken together, there is a likelihood of significant harm if the children are returned to the care of the mother.

(iii)      We accept the evidence that things are likely to get worse as the children get older.  They will become less malleable, the mother will be unable to change and will find it even more difficult to respond to their needs, which will in turn increase the emotional harm which they suffer by reference to inhibiting their natural development.

(iv)      The false allegations by the mother and grandmother have been very damaging.  We accept Miss Fitz's point that allegations are often made by one parent against another in private law proceedings but as Dr Williams said, the position is very different here where there is simply not the appropriate level of parenting to provide a secure base with at least one parent in order better to cope with the allegations and counter allegations.  The fact that F said that he was hearing his father in his head telling him to be naughty is strong evidence that he was seriously disturbed by the pressures upon him as a result of the allegations.  We note Miss Fitz's point that there may be less contact with the father in future as a result of his withdrawal from the situation; but one does not know how long that will continue.  More to the point, it was evident from the mother's evidence and from some of the things which she has said to the Children's Service that she still feels passionately that the father has abused the children and has been telling them to misbehave, so that he is the cause of much of the trouble.  We think she will be unable to restrain herself from making all sorts of allegations to the children about their father which will cause continued anxiety and distress to them.

(v)       All three of Ms Waugh, Dr Williams and the guardian expressed the opinion that the level of harm suffered or likely to be suffered if the children were returned to live with the mother was significant.  We fully appreciate that the decision on this issue is for us and not for them but nevertheless their views as experienced professionals in the field are entitled to be given due weight.  We note in particular the views of the guardian who has been appointed to look at matters solely from the point of view of the children's best interests and we note that she agrees that it would be very damaging for the children to return to the care of their mother.  We note also that she has reached this view despite the fact that, in 2007, she recommended that the children reside with the mother.

(vi)      Ultimately we accept the evidence that, no matter how much she loves her children and is trying to do her best for them, the parenting given by the mother has caused these children significant harm and if they were now to be returned to her, we have no doubt that the progress which they have made since being with the foster carers would rapidly disappear and they would return to being the watchful, frozen, anxiety ridden children who were seen prior to the interim care order.  We find that they would be likely to suffer significant harm if returned to her care."

40.      Recognizing that the satisfaction of the threshold was a necessary but not a sufficient justification for making a care order the Royal Court dealt with whether and, if so, what order should be made, at paras103-105.

41.      It bore in mind the "no order principle" and it considered carefully the welfare checklist in respect of each child, which was helpfully analysed in her report by the guardian in respect of each child.  It considered the care plan for each child, which envisaged the children being freed for adoption following the making of the care order and thereafter for the children to be adopted together as soon as this is achievable.  It noted that the care plan envisaged a rapid reduction in contact on the basis that the mother was not and would not be accepting of the decision and having regard to the evidence of Dr Williams and the guardian that continued contact with the mother would be detrimental to the children's interests if she was not accepting of the position and was seeking to influence them against committing to the adopting parents. [para103]

42.      It also bore in mind the "no delay principle", and noted that it was the opinion of all three of Ms Waugh, Dr Williams and the guardian that the children's best interests would be served by providing a new permanent family who could give them the security and stability which they need so much and that any delay in this process would be detrimental.  It considered carefully whether it would be preferable to continue the interim orders in the hope that intervention by the Children's Service could assist the mother to improve her parenting skills so as to provide the appropriate level of care.  However, it accepted that the Children's Service have been involved for some eighteen years or so and that the nature of the mother's learning difficulties makes it extremely difficult for her to change and concluded that even if she could achieve this, it would be a very slow process whereas the evidence was that this would be too late for these children.  In its emphatic and cogent words "They needed to have appropriate parenting now". [104]

43.      It summed up its views in this way:-

"the issue which caused us the most difficulty in this case was whether the threshold test was met.  But having concluded that it is, we have no hesitation in finding that the children's best interests would be served by making a full care order". [105] 

Pending an application to free the children for adoption, it did not think it would be in the children's interests to reduce contact with the mother and ruled that, unless or until that happens, contact should continue at its present level.

44.      Bearing all those factors in mind the Royal Court opined that it had:-

"no hesitation in finding that the children's best interests would be served by making a full care order''. (para 105)

Analysis

45.      Before us, the main assault, mounted with characteristic realism and restraint by Advocate Fitz, was on the Royal Court's conclusion that the threshold had been passed. Advocate Hollywood.  for the Minister, whose submissions lost none of their force for being succinct, defended the Royal Court's conclusion, albeit not accepting all its reasoning.  This Court was therefore confronted with a situation in which neither side accepted the Royal Court's analysis.

46.      It follows that the reasoning of the Royal Court required careful deconstruction.  We interpret it as follows:-

(i)        There was physical violence used on F by the mother on two occasions, causing physical harm (para 102(i)).

(ii)       G was aware of this (ditto).  (As to this, the mother agreed that G was in the bathroom at the time F sustained his injury on 17th November.  There was no actual evidence as to her whereabouts when F sustained his injury on May 2008, and it is not explained precisely on what basis G would have had such awareness.  It may be that the Royal Court reasoned that it was unlikely that the mother would not have had the two small children together on that occasion.)

(iii)      There was, however, no physical abuse of G. (There was no evidence of such, and the Royal Court would surely have made a finding had there been, and they did not.)

(iv)      There was emotional harm caused by the mother to both F and G (paras 98-99).

(v)       The physical harm of F did not itself amount to significant harm.  The Royal Court would surely have said if, in their view it did, and they did not.

(vi)      The emotional harm caused to F and G did not of itself amount to significant harm.  The Royal Court said expressly that it did not. (para 101)

(vii)     The physical harm together with the emotional harm suffered or likely to be suffered crossed the threshold of significant harm both as regards the past and the future. (para 101)

(viii)    In particular the situation in terms of significant harm to be suffered was likely to deteriorate as the children got older. (para 102 (iii))

47.      In respect of F, the reasoning is sufficient to establish that the threshold was reached.  In respect of G it is necessary to imply something into the Royal Court's judgment.   We so conclude because, given the absence of any finding by the Royal Court that G had suffered physical violence at the hands of the mother, coupled with the positive finding that the emotional harm G had suffered was not significant [para 101], the Royal Court must be taken as having found that the threshold, in terms of suffering past [which, we infer, embraced suffering present as required by the 2002 law], had not been satisfied in her case.

48.      Accordingly the threshold could only have been passed in G's case by consideration of the future.  As to that,  since the emotional harm she would suffer would not by itself pass the threshold (para 101), the Royal Court must have concluded that G too would suffer physical as well as emotional harm in the future, (although it does not say so expressly, and para 102 (iii) could be read as limited to future emotional abuse).  We are prepared to read the carefully compiled judgment in this way because:-

(i)        it would indeed be counter-intuitive for a court faced with past violence meted out to one child to ignore the real possibility of future violence to both;

(ii)       the evidence of the experts on this point, Dr Williams and Ms Waugh, which was not rejected, was to the effect that such a risk existed (see passages emphasised above), and the Royal Court diverged from the experts' conclusions only in their assessment of what harm was significant - a point to which we must perforce return.

(iii)      The Royal Court made an express finding that both children feared physical violence.

Appellate Functions

49.      We have to remind ourselves of the limits of our role as a Court of Appeal.  Firstly we can only set aside the Judgment of the Royal Court if "(i)t is concluded that this decision was either wrong in law or wrong in principle or was plainly wrong" (Mrs and Mrs S [2004] JCA 197 at para 30).  These basic rules are not modified simply because the case concerns the welfare of children: (ditto at paras 31 and 32, a classic passage in G-v-G [1985] FLR 894).

50.      Secondly, we have to bear in mind that the Royal Court had the advantage denied to us of seeing and hearing key witnesses, in particular the mother herself, which makes it difficult to impugn the Royal Court's factual findings where dependent on or informed by those advantages.  

Error of Law

51.      In respect of the first decision the only error of law said to be identified was that the Royal Court failed to apply the proper test to the finding of physical harm in respect of the first of the two incidents.  In respect of the second decision no error of law is alleged.

52.      We consider first the suggestion that the Royal Court misdirected itself as to the appropriate test.  It has been authoritatively stated by the House of Lords on two occasions, firstly in Re H (Minors) Sexual Abuse [1996] AC 563 and confirmed in In re SB [2010] 2 WLR 238 at para 8:-

"It is not enough that the Court suspects that a child may have suffered significant harm or that there was a real possibility that he did.  If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed."

53.      It is true that the Royal Court stated as to the November 2007 incident:-

"We have no doubt that the probable cause of the injury was that the mother lost her temper and struck him (para 96(vi)"

and as to the May 2008 incident:-

"We have no doubt on a balance of probabilities that this injury was caused by the mother" (para 97 (v)).

and that there is a linguistic tension between being in no doubt that something happened, and concluding that it was more probable than not that it did; but either state of mind would satisfy the relevant test;

Furthermore the Royal Court, in a prologue to those passages, said:-

"we find that, on a balance of probabilities, the bruise to F's left eye in November 2007 and the bruise to his left cheek in May 2008 were caused by the mother." 

and in an epilogue to those passages said:-

"we have found that on two occasions the mother used physical violence on F."

which satisfies the test too.  Elementarily a blow causing injury results in harm to the victim of the blow. (para 102)

54.      Ms Fitz's real challenge to the findings in respect of the first and second incidents - and it is her only challenge to the second incident - is that the evidence did not sustain the finding.  We have to be clear as to what is said to be lacking.  The injuries were clearly sustained by F.  The only controversy was as to their cause.  Ms Fitz's submission amounts to an invitation to us to review the evidence without the advantage enjoyed by the Court below, which was able to judge the credibility of the mother's explanation.

55.      We nonetheless have to consider carefully, given what is at stake, whether these findings of fact as to cause may, on the evidence, be plainly wrong.

56.      As to the first incident we have scrutinised all the documentation and the evidence given regarding this matter and have taken into account all the submissions made concerning this very important part of the case and we support the finding of the Royal Court as set out in full above that, on the balance of probabilities, the evidence before the Court established that F suffered physical harm at the hand of the mother in the form of at least one of the three injuries recorded as seen on 19^th November 2007.

57.      Our reasons, in summary, are as follows:-

(i)        The contemporary notes of Sarah Wakeham, Social Worker, record the father contacting the Children's Service.  During unsupervised contact on 18th November he had noticed bruising to both of F's eyes and reported that F had said that his mother had hit him and then put him to bed.  Father also said that F had a bruise on his left cheek which had been caused when F had fallen on the steps of Pound World during the contact.

(ii)       On 19th November, Sarah Wakeham and Linda Heins, Senior Practitioner, visited the home of the mother and the two children F and G.  F was noted to have two black marks under both eyes, a red/purple mark above his left eye on the eye lid and a bluey bruise on his right cheek.

(iii)      When asked "How did you hurt yourself?"  F said he had fallen over in Pound World with his Daddy, pointing to his right cheek which had a bluey type bruise to its centre.  He said he had hurt himself on the steps.

(iv)      When asked about his eye he said he had fallen in the bath.  He said his Mummy had been washing his hair and that he had fallen over and hit his head.  He was asked if he wanted to show the social worker where this happened and he confidently said yes, nodding his head.  The mother calmly told F that he could take Miss Wakeham to the bathroom, this was fine with her.  She did not present as anxious, she was very measured and calm, maintaining a friendly atmosphere.

(v)       F was asked to show what happened, and he indicated that he fell in the bath in the base near to the plug hole. 

(vi)      The mother came into the bathroom and indicated a fall on the floor near the side of the bath.  She described a fall to the floor by herself and the child, who had both slipped on the bathmat on which they were standing. She said this happened on Monday 12th November.

(vii)     The police surgeon, Dr Holmes, examined F the same day and photographs were taken.  Dr Holmes recorded reddened bruising to the outer aspect of the left upper eyelid, several days old,  fading yellowish bruising to the outer aspect of the left lower eyelid, several, possibly four to six days old. Bruising and swelling to the right cheek, probably less than thirty six hours old, below which there was a yellow fading bruise of fingertip size, probably at least six days old  His opinion was that the three separate injuries had occurred on three separate occasions and that the most likely cause was non-accidental.  The bruise to the left eye and right cheek were probably the result of punches and the fading fingertip bruises to the right cheek may well have been the result of a pinch from an adult finger and thumb or a poke from an extended adult finger. The mother described a fall to the floor in the bathroom by herself and F when she was washing his hair over the side of the bath  F gave the  explanation for the bruises as a fall at Pound World the previous day, then, when asked about the injury to his eye the mother immediately gave her account. The doctor found the bruising suspicious, and the mother's description of what happened to F's left eye, and the speed with which she interceded to stop F telling him what happened, very worrying. He had difficulty reconciling the injuries he noted with the explanations given.

(viii)    At this time, Jemma Waugh, Social Worker, became involved with the family. She was appointed childcare worker within the Children's Service with responsibility for this family.

(ix)      On 22nd November F was seen by Dr Mark Jones, Consultant Paediatrician.  He noted three areas of bruising as described by Dr Holmes and concluded that from the uncertainties in the explanations given and the presence of three bruises of different generations at least in part these may be non accidental.

(x)       For the Royal Court Care hearing the mother swore an affidavit giving a different explanation for the injury to F's eye describing a fall as he climbed out of the bath on his own and hit his eye on the side of the bath. (Paras 75 and 78 of the Judgment)

(xi)      In evidence, referred to in paragraph 82, she described two different occasions when F fell in the bathroom. First that he fell on the floor as he got out of the bath unaided, and another when he slipped in the bath.

(xii)     We make every allowance for the limitations suffered by the mother.  However, in our view the Royal Court were correct in concluding that her explanations for the injury to F's left eye were inconsistent, contradictory and not credible, and that the explanation given by F to his father when first asked is likely to be true.  This conclusion is strengthened by the medical and other evidence.

(xiii)    The Royal Court made no findings regarding the other injuries. There is no evidence to implicate the mother. The bruise to the right cheek, less than thirty six hours old, was said to be caused by a fall at Pound World. There is no information to contradict this, but regard must be given to the view of the doctor that the bruise was likely to be non accidental.  The yellow fading bruise, at least six days old, described by the doctor as an injury which may well be caused by a pinch from an adult finger and thumb or a poke from an adult extended finger is totally unexplained.

(xiv)    The conclusion of the Royal Court on the bruising round the left eye was reached after the court had heard and seen all the witnesses and carefully assessed all the material relevant to this important part of the case.  The decision made was supported by the evidence and this finding of physical harm was properly within the ambit of the Court's discretion.

58.      After the second incident we have carried out the same exercise as in relation to the first (see para 56 above) and again support the finding of the Royal Court despite the challenge made that:-

 "... ... in making that finding the Court failed to take account of the following:

(a) That F's account was grossly exaggerated suggesting he had been struck 10 times all over his body which resulted in one small bruise.

(b) That F was making various allegations at this time against his father nd grandmother, none of which were pursued.

(c) The medical evidence could not assist as to cause.

(d) There was insufficient evidence for a prosecution.

(e) F showed no fear of his mother indicating after a day at the police station and a meal out "I must remember to tell mummy what a lovely day we have had."

(f) At the time this allegation was made relations between the parents were fraught."

59.      Our reasons in summary are as follows:-

(i)        The Royal Court did not fail to take into account that F's account was exaggerated. At paragraph 97(v) of its Judgment, the Royal Court says, among other things, this:-

"We accept that F almost certainly exaggerated when he spoke of the number of blows the mother had inflicted but the fact remains that he said that she had caused the bruise, he appeared to be behaving naturally when he said this (rather than speaking in a robotic or expressionless form as on other occasions), and the mother has given inconsistent explanations, both of which seem highly unlikely, namely that the father managed to inflict the injury whilst at Milli's or that F inflicted the injuries on himself because his father had told him to do so."

It is clear, therefore that that the Royal Court regarded F's account as exaggerated, but truthful as to the bruise having been inflicted by the mother, acting deliberately.

(ii)        

(a)       The allegations referred to by the mother in her written contentions were spoken to in evidence by Ms Waugh. They were two in number. The first was made on 8^th June, about one month after the bruise episode. At that time, the children were in the care of the grandmother. At the end of contact with the father on that day, F told staff at Milli's that he did not want to go back to the grandmother's because she had been hitting him. The second allegation was reported to the police by the grandmother. She said that, when she was bathing the children on the evening of 7^th August, F had told her that, during contact (which had been ten days before), the father had either pulled his own penis or pulled F's penis whilst on the beach.

(b)       It is correct to say that neither of these allegations finds its way into the Royal Court's summary of its reasons for concluding that the bruise seen on F's cheek on 11th May had been caused by the mother. What the Court had to decide, however, was (i) whether or not the bruise was non-accidental and, if so, (ii) whether or not the mother had caused it. There was no suggestion in the evidence that the injury to F's face was anything other than non-accidental. As to who caused it, there were three candidates; the mother, the father and F. The Royal Court held that the mother caused the injury, regarding it as "highly unlikely" that it had been caused by the father or F, for the reasons set in paragraph (i) above. On the Royal Court's analysis, the fact that F made allegations about his grandmother and his father one month and three months later, respectively, and whether or not these allegations were pursued, were not considerations relevant to the determination of the questions which the Royal Court had to decide in respect of the 11^th May incident.

(iii)      It is incorrect to say that the Royal Court failed to take into account that the medical evidence could not assist as to cause. At paragraph 97(ii) of its Judgment, the Royal Court said this:-

"The police doctor confirmed that the injury was consistent with F's explanation although this was not conclusive and clearly the injury could have been caused by some other person or in some other way."

(iv)      The fact that the mother was not prosecuted in respect of the 11^th May incident had no bearing on what the Royal Court had to decide and it was right not to have given it any weight.

(v)       It is true that the evidence was that, after he had been to the police station and for a meal out, F said "I must remember to tell mummy what a lovely day we have had". That was said to Ms McNevin, a child care officer, who had taken the children out to eat. Ms McNevin did not testify, so there was no evidence about F's demeanour when he made that remark. According to Ms Waugh, however, F "seemed relaxed" at the contact centre when he told her that his mother had caused him an injury. It is clear, not only that the Royal Court took F's demeanour on 11^th May into account in determining whether it had been established that the mother had caused the bruising, but also that the evidence that "he appeared to be behaving naturally when he said this (rather than speaking in a robotic or expressionless form as on other occasion" impressed the Court as pointing towards his telling the truth on that occasion. (Para 97(v)) In our judgment, having regard to the whole evidence before the Royal Court, it cannot be said that it was "plainly wrong" to conclude that the mother had caused the injury.

(vi)      As we have noted in paragraph (ii)(b) of this Judgment, the Royal Court had to decide whether it was proved, on a balance of probabilities, that the mother caused the bruise to F's face. The nature of the relations between the parents could only have been relevant to explain the father's motivation for, as the mother alleged, telling F to inflict injury on himself, or to say that the mother had caused the bruise when, in fact, the father had done so. The Royal Court, however, was well aware that the father was motivated to make allegations against the mother. At paragraph 5 of its Judgment, the Court records that, since their separation in August 2006, the relationship between the parents had been "extremely hostile with allegation and counter allegation about their conduct towards the children being made on a regular basis". We reject the contention, therefore, that the Royal Court failed to take account of the nature of the relations between the parents.

60.      In this context we would note that a court of first instance cannot be expected to record every point made in submissions or criticised for not addressing every point.  It is of course important that it gives reasons to enable the appeal court to satisfy itself that the reasons are sound having regard to the supporting evidence and the logic of the reasoning process.

61.      In those circumstances we consider that the challenge to the two factual findings of physical ill-treatment must fail. 

62.      As to the challenge to the findings of emotional ill-treatment, there was consensus amongst the experts.  We have no basis for departing from their factual findings: again the Royal Court said and heard them under cross-examination and were well able to judge the credibility of their testimony in a manner which we cannot emulate.

63.      The Royal Court nonetheless rejected the assessment of the guardian and Dr Williams that the emotional harm was so significant as to justify a care order  para(101) but  it gave no reason at all for being "unable to accept that proposition".  It did not suggest, for example, that the experts had misunderstood the concept of significance: and, we repeat, it accepted the factual and opinion evidence of the experts as to what had, and what might, happen.

64.      The Minister submitted that the Royal Court should have travelled the distance with the experts and upheld their conclusion on the basis of those factual findings that the children would suffer significant emotional harm if they were returned to their mother.

65.      As to the relationship of Court and experts, we adopt what was said by Wall LJ, in Gateshead MBC-v-JM [2010] EWCA Civil 12 at [39]:-

(i)        Experts do not decide cases.  Judges do.  The expert's function is to advise the judge;

(ii)       The judge is fully entitled to accept or reject expert opinion;

(iii)      If the judge decides to reject an expert's advice, he or she;

(a)       must have a sound basis upon which to do so; and

(b)       must explain why the advice is being rejected.

(iv)      Similar considerations arise when a judge prefers one expert's evidence to that of another.  Judges must explain why they prefer the evidence of A to that of B.

66.      In the circumstances described, we are constrained to say that we find the rejection by the Royal Court of the experts' assessment not only unexplained, but inexplicable: and conclude that this is a case where the absence of reasoning in itself exposes an absence of reasons.  This is not, we of course accept, a case where the Royal Court erred in law.  Its understanding of the word "significant" was appropriate [see its Judgment para 15].  However, this is also not a case where, on this aspect, the Royal Court was exercising a discretion.  It was making a judgment or appreciation on the basis of evidence accepted by it and also by us which we are in as good a position as it to make.

67.      We cannot sensibly invite the Royal Court, even differently constituted, to revisit the issue.   We must, in our view, make our own assessment as to whether the threshold test has been met.  We, like Dr Williams, would place more weight on the pattern of emotional abuse than on two incidents of physical abuse. Indeed, we consider that, not least as to the future, it passes the threshold by itself.

68.      So in the final analysis, we reach the same conclusion as the Royal Court, albeit by a somewhat different route, that, whatever force each aspect of ill-treatment has by itself, together they satisfy the threshold test.

69.      It seems to us, as it seemed to the Royal Court, that if the threshold was passed, on the facts of this case, the conclusion that the Royal Court drew as to the appropriate order was irresistible for the reasons it gave, which we have set out above.  Ms Fitz, as we have already noted, stressed that Mrs Urquart had in a report in 2007 not only acquitted the mother of displaying poor parenting skills but had actually praised her.  (We note, en passant, that barely a few months later, the first (proven) incident of physical abuse of F occurred.)  But, in any event, Mrs Urquart was taxed with her change of perception between 2007 and 2009: explained it: and her explanation was accepted by the Royal Court, who saw and heard her.

70.      In the first decision the Royal Court recorded that 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 up to that time played no part in the care application, instructed an Advocate and said that he wished to participate in the proceedings for a freeing order.  Accordingly with considerable and understandable reluctance the Royal Court adjourned the application for the freeing order so that the father's Advocate might take full instructions and also that assessments could be carried out on the father's current state of health.

71.      In due course an application for a freeing order was made: and so we now turn to the second decision.

Freeing for Adoption: The Law

72.      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."

73.      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.

74.      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 child?

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

75.      It may seem at first blush that the two questions have to be treated separately because ordinarily if it is in the best interests of a child to be adopted, a parent's refusal of consent might by definition be seen as unreasonable, but that these are separate questions is enjoined by the legislative language; and vouched for by a long line of English authority consistently followed in the Jersey courts: (In the Matter of the T Children [2009] JRC 231 para 40) In Re C (A Minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR 260, Balcombe LJ explained that the first stage looks to the welfare of the child: the second protects the rights of the parent.  Inadequacies in parenting may not always (although they may sometimes) justify irrevocable termination of the natural parent's legal relationship with the child.

76.      The key conclusions of the Royal Court were:-

(i)        The choice lay among (a) a return of the children to the mother (b) fostering (c) adoption.

(ii)       A return of the children to the mother had to be rejected, not least because of the findings made in the first decision as to the risk of significant harm if the children were returned to their mother's care (para 16(i)).

(iii)      Adoption was preferable to fostering because it would give to the children all "the benefits of a permanent placement with new legal parents'' (para 16 (iii)).

(iv)      The reasons for its conclusion were set out at para 16.

(v)       The mother's refusal of consent was unreasonable; its reasons were summarised in para 19.

(vi)      Personal contact between children and mother should be brought to an end. Its reasons were summarised in para 42.

77.      The Royal Court considered first the question of whether it is in the best interests of F and G to be adopted.  The Royal Court recorded:-

"10.    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 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." 

Guidance on adoption issued to English local authorities (Local Authority Circular LAC (19.8 20)) reads 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"."

78.      The Royal Court accepted "without reservation that the mother loves her children" [para 16].  However, it also had no doubt that the children's best interests would be served by freeing them for adoption.  It summarised its 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 case, 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. [para 16]"

79.      As to the wishes and feelings of the children, having regard to their age and understanding, to which Article 3 of the 1961 Law required consideration to be given, the Royal Court stated:-

"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." [para 17]

Withholding of consent

80.      The Royal Court turned next to consider whether the mother was withholding her consent unreasonably (the father having consented).  It relied on the explanation of this test as described by this Court at paragraphs 26 - 29 of Re JS and BS [2005] JRC 108 and it applied the principles there set out.  In particular as it noted, 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 a Court must be careful not simply to substitute its own opinion for that of the parent.  As the Royal Court put it:-

"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." [para 18]

81.      Helpful in this context are the observations of Steyn and Hoffmann LLJ in Re C (A Minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR at 272 as to the test:-

"Whether, having regard to the evidence and applying the current values of our society, the advantages for adoption of the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents.  The reasonable parent is only a piece of machinery invented to provide the answer to this question."

82.      The Royal Court 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, they found 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.  They summarised their 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." [ para 19]

83.      In all the circumstances, whilst fully understanding why the mother cannot bring herself to consent and acknowledging the anguish which its decision would cause, the Royal Court found that she is withholding her consent unreasonably. [para 20]

84.      The provisions of Article 12(3) of the 1961 law 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 the Royal Court heard evidence from Ms Waugh and Ms King.  There are two families which have been identified as willing to accept more than one child and children of this age.  It was satisfied on the evidence placed before it that it is likely that the children will be placed for adoption within the reasonably near future.

85.      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, the Royal Court concluded that it should make an order under Article 12(1) freeing F and G for adoption [para 22].

Contact

(i) The law

86.      In the light of a dispute as to by reference to what provision the Court could deal with issues of contact, the Royal Court located its power to deal with questions of contact under Article 10 of the 2002 Law.  No-one challenged the correctness of this analysis, which we endorse.  Article 10 provides, so far as material, 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."

87.      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 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.

88.      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 had jurisdiction to make an order for contact in such proceedings.

89.      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) which we do not need to recite but the Royal Court correctly regarded it as all but 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.  

90.      There however 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 of the 2002 law 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, which also refers to first consideration being given to the need to safeguard and promote the welfare of the infant.

91.      It would also 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

92.      Accordingly the Royal Court considered whether it 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 and consistently with its identification of its powers, it granted leave to both the mother and the father to make an application for contact. [para 35]  In the event only the mother made such application

93.      The Royal Court continued:-

"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.  The Royal Court accepted 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. "

94.      In the circumstances, the Royal Court approved the proposal of the Minister for bringing personal contact to an end in the event of the Court of Appeal affirming the Royal Court's decision and also approved the continuation of letterbox contact.

95.      Advocate Fitz, while stressing the continued opposition of their mother to adoption, with her customary good sense recognised that, if the basis for the Royal Court's conclusion that the threshold of significant future harm had been passed with the consequence that the children should not be left in the care of the mother, was invulnerable, adoption would be preferable to long-term fostering because of considerations of certainty and stability for the children.

96.      So she concentrated her fire on whether the adoption should be closed (or semi closed) i.e. letterbox contact only, [subject always to the wishes of the adopters], or open.

97.      The main objections to open contact made on behalf of the Minister focussed on the potential disruption to the children if contact with the mother continued.  There were three possibilities:-

(i)        However well the mother behaved during periods of contact, the children would suffer a conflict of their loyalties.

(ii)       If the mother, with the best will in the world, was unable to conceal her opposition to the adopters, the detrimental position would be intensified.

(iii)      This would be a fortiori if the mother actually sought to be disruptive on occasion of contact.

98.      Ms Fitz said that there was no evidence that the mother would seek to disrupt the relationship of the children with the adopters and that she had not been in the past other than supportive of the foster parents.  However adoption would itself involve a different degree of separation from fostering (so that the past was not necessarily a guide to the future) and the unanimous view of the experts both in general (Ms Waugh, Ms King and Dr Williams) was that contact between natural parents and their adopted children can be detrimental if the birth parents do not accept the placement: [para 37] and, in particular, vis a vis the mother (Mr King).  This was an expert view, based, inter alia, on knowledge of the mother.  The Royal Court was entitled to accept it, and did.  We have no basis for rejecting it.

99.      For those reasons we dismiss the appeals.  As and when the Court makes adoption orders, there may, we understand, be a further opportunity for the mother to press her case for continued contact.

100.   It would be imprudent for us to encourage any optimism on her part: but the issue is not one of which we are presently seized.

Authorities

Lancashire County Council v B [2000] 2 AC 147.

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

Children (Jersey) Law 2002.

Re M (A Minor) Care Holder: Threshold Conditions [1994] 2 FLR 577.

Re H (Minor) [Sexual Abuse Standard of Proof] [1996] AC 563.

In Re B (Children) (Care Proceedings) Standard of Proof [2009] AC 11.

Re S-B (Children Care Proceedings: Standard of Proof ("SB") P [2010] 2 WLR 238[8].

Re (H) Minor Sexual Abuse: (Standard of Proof) [1996] AC 563.

Re O.N. [2003] 1 FLR 1169.

"Working Together to Safeguard Children" HM Government.

Humberside County Council-v-B [1993] 1 FLR 257.

Re (L) Care Threshold Criteria [2007] 1 FLR 2050.

Re H (Child Sexual Abuse; Standard of Proof) [1996] ALL ER 1.

Mrs and Mrs S [2004] JCA 197.

G-v-G [1985] FLR 894.

Re H (Minors) Sexual Abuse [1996] AC 563.

In re SB [2010] 2 WLR 238.

Gateshead MBC v JM [2010] EWCA Civil 12.

In the Matter of the T Children [2009] JRC 231.

In Re C (A Minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR 260.

In the Matter of F and G (No.2) [2010] JRC 019.

Local Authority Circular LAC (19.8 20).

Re JS and BS [2005] JRC 108.

re L (1962) 106 LOS JO 611.

re W (1971) 2 All ER 49.

Re C (A Minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR.

Royal Court Rules 2004.