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[2011]JRC014
royal court
(Samedi Division)
18th January 2011
Before : |
J. A. Clyde-Smith, Esq, and Jurats Liddiard and Marett-Crosby. |
Between |
The Minister for Health and Social Services |
Applicant |
And |
(1) Miss X |
|
|
(2) H (through guardian Tracy Goode) |
Respondents |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF H.
Advocate D. Robinson for the Minister.
Advocate B. Corbett for the Second Respondent.
Advocate P. Landick for the First Respondent.
judgment
the commissioner:
1. On 8th December 2010 the Court granted the Minister a care order in respect of H ("the child") and freed H for adoption.
2. The child was born in Jersey in 2010 and is the eighth child of Miss X ("the mother"). The mother is described by the guardian as a vulnerable woman who has had a horrendous upbringing, marred by neglect and emotional, physical and sexual abuse. She was herself one of eight children, all of whom were placed into care.
3. All seven of the mother's other children were themselves placed into care in 2009. The mother became pregnant with the child shortly after the close of those proceedings. She concealed her pregnancy from the authorities.
4. The child was discharged directly from the maternity hospital to foster carers. On 30th April 2010 the Minister was granted an interim care order and at the same time the Court made the child a party to the proceedings, appointed the guardian and ordered a psychological report on the mother. The Court noted that if the psychologist recommended that the mother attend a residential unit with the child, then the Minister would agree to a residential assessment being directed pursuant to Article 30(4) of the Children (Jersey) Law 2002 ("the Children Law").
5. In its report of 23rd June 2010 Dr David Briggs, a clinical psychologist, did not support a residential assessment. Following a contested hearing, the Court refused the mother's application for a residential assessment for the reasons set out in its judgment of 15th July 2010 ([2010] JRC 130A).
6. At that contested hearing the mother, who had previously refused to name the father of the child, named Mr P as the father and on 15th July 2010 the Court ordered DNA testing to be undertaken in order to determine the paternity of the child. The results of those tests were received on 14th October 2010 and they evidenced that Mr P was not the father of the child. The mother reported that she did not know who the father was, but there was a very slim chance that it could be her current partner, Mr R.
7. On 9th November 2010 the adoption panel recommended that it was in the child's best interest to be placed permanently away from the mother. The panel also considered the viability assessment of an anonymous member of the mother's family but found against this person due to the risks posed to the child's long-term stability and welfare.
8. On 15th November 2010 the Court ordered further DNA testing to be undertaken to determine whether or not Mr R was the biological father of the child. The results of those tests evidenced that he was not the father.
9. At the hearing on 8th December 2010 the mother did not oppose the granting of a care order, but did oppose an order freeing the child for adoption.
Mother's absence from hearing
10. The mother was not present for the hearing. Mr Landick informed us that he had spoken to her the day before and she had confirmed her instructions. She had been assisted in this matter by Mrs Ros Byrne-Shaw, Co-Ordinator of the Self Advocacy Project, who was present in Court and who explained that the mother felt penalised for everything that had happened in the past and was inconsolably upset at the prospect of losing her child. She had veered between attending and not attending but in any event felt that her presence would not affect the outcome. The Court was satisfied that the mother had received reasonable notice of the hearing and had given instructions to Mr Landick who was present to represent her. Having regard to the provisions of Rule 17 of the Children Rules 2005, the Court ordered that the case proceed in her absence.
Threshold criteria
11. Under the provisions of Article 24(2) of the Children Law, the Court may only make a care 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 her if the order were not made, not being what it would be reasonable to expect a parent to give her.
12. These proceedings are brought on the basis that the child is likely to suffer significant harm due to the care likely to be given to the child by the mother if no order was made.
13. The Minister relied principally on the mother's lack of parenting skills as evidenced by the care proceedings in relation to her other seven children. In two judgments dated 6th February 2009 ([2009] JRC 017) and 6th April 2009 ([2009] JRC 067), the Court found the threshold criteria met in relation to all seven children:-
(i) In respect of three of them that the mother had failed to protect them from sexual harm;
(ii) In respect of all of the children had caused them physical harm, had neglected them, had parented them in an emotionally abusive way and had failed to protect them from the physical and emotional harm caused to them or witnessed by them as a result of her parenting.
14. In the statement of 5th January 2009 in relation to the four younger children, the mother accepted and acknowledged the conclusions of the clinical psychologist, Dr Miriam Silver, a senior consultant clinical psychologist practising in England, as follows:-
"(1) She could not look back over the past and consider how she would wish it to be different in order to ensure she did not pass on the negative behaviours that she has learnt from her experience of being parented to her children through her parenting.
(2) She has a mild learning disability and a lack of positive experiences of being parented that make it hard for her to learn new skills and parent differently to how she was brought up.
(3) She has lacked insight into her children and has failed to recognise that they were showing signs of disturbance.
(4) She hadn't recognised that children have needs beyond the basic physical care of being fed and clothed and having somewhere to sleep.
(5) She did not recognise potential risks to her children, in terms of her relationships with certain "risky adults"".
15. In her evidence in the proceedings in relation to the elder children ([2009] JRC 067), Dr Silver told the Court that they were in the top five of the vulnerable 650 children that she looked after. The judgment of the Court refers to her opinion in relation to all seven children in which she said this:-
"Sadly, Miss X has minimal understanding that the children have any needs beyond being fed and clothed and having somewhere to sleep, and even these basic needs have not always been met (though Miss X denies this). She has no understanding of the importance of feeling valued, understand (sic) and nurtured by a parent, as she has not experienced this herself. Similarly, she has very little empathy for her children and can be critical, rejecting and dismissive towards them. Even when the children clearly express distress or disclose abuse she is not able to respond appropriately ... I would conclude that Miss X is not able to understand or meet the needs of a child sufficiently to be the carer of any child."
16. Having reviewed the deficits in the mother's ability to care for her children, Dr Silver concluded:-
"It would be my view that these deficits have been apparent for at least ten years and that the fact that they remain despite the massive amount of practical support and intervention that has been provided to the family gives a very negative prognosis in terms of her capacity to change."
17. As Mr Robinson pointed out, the fact that the mother's parenting skills had been found so deficient so recently does not automatically mean that the child should be removed from her care, hence the commission of a psychologist's report from Dr Briggs.
18. Dr Briggs set out in his report the reasons put forward by the mother for her being able to care for the child, and her understanding of the reasons for her previous children being taken into care. In his view, there was no intellectual reason why her parenting capacity could not be improved, given appropriate skills, training and with opportunities for the over-learning of new skills and reminders of those skills already attained. Her capacity to improve her parenting skills would be influenced however by her psychological functioning and character, as well as the infrastructure which supports her:-
"Miss X has an unfortunate heritage. She describes being exposed to neglectful parenting and to an impoverished maternal role model for the first two years of her life. Thereafter she was exposed to two years of institutional care within a children's home. This was not the best start in life. Whilst she reports having achieved a period of stability in her pre-adolescent years i.e. in the care of Mr & Mrs D and with the primary carer being the foster "mother", that relationship was reported to have turned in her early adolescence. Miss X described the foster mother as having been unresponsive and relatively emotionally unavailable in her adolescence. Again the quality of the maternal role model she was exposed to therefore at a fairly crucial stage in her development was poor.
I have noted Miss X's reports of having been sexually abused in adolescence by the male foster carer. Again this calls into question the quality of family life she was exposed to and not least in terms of her exposure to distorted boundaries, the emotional burden she carried given her victimisation, and the secrecy and negative feelings which will have been associated with that abuse."
19. In terms of the mother's ability to fulfil the child's or any future biological child's needs now, he expressed the following opinion;-
"I believe the various comments I have made above raise significant concerns as to Miss X's ability to meet H's residence needs. I have concerns about her ability to protect H from harm presented by others, including sexual harm. I have concerns that her parenting capacity is compromised and that her ability to empathise with H, to anticipate, respond to and maintain H's needs is compromised. I believe Miss X's capacity for change within a timescale that meets H's needs is weak. I believe the infrastructure which would support her parenting of H is uncertain (I note that Miss X is unemployed, she has neglected her health, she has relatively few effective informal social supports, and the likely progression of her current intimate relationship is uncertain).
It would seem to me to be a considerable experiment in the life of a very young child were we to place H in her mother's care."
20. With these comments in mind, he believed the risks to the child in being placed in the care of the mother to be as follows:-
"a. The risk of neglectful parenting, particularly the risk of Miss X being inattentive to H's emotional and psychological needs as the child matures and develops. I would anticipate there would be periods of 'good enough' physical care of the child though on occasions this may slip were Miss X to have other priorities.
b. I believe there is a risk that Miss X would fail to protect H from harm, particularly that which may be presented by any adult who is motivated to exploit Miss X's vulnerabilities and those of H. As stated there are particular concerns to Miss X's ability to offer protection from sexual harm.
c. I believe that Miss X herself would offer an impoverished model of care giving to any child and could expose a child to uncertainty and instability.
The most effective way of managing the risks in this case is for H not to be placed in her mother's care. I am mindful that it is of extreme importance that decisions are made as to H's future as soon as possible, and that she is placed in a secure, stable and loving home where her long term wellbeing is secured. Ideally this should be achieved within a matter of weeks rather than months.
I do not advocate any package of therapy, support, counselling, skills training or the like in Miss X's case as I believe the timescales for such are not in H's interests. Furthermore the likely prognosis is uncertain."
21. Finally, in relation to the proposed residential assessment he advised as follows:-
"I do not support the notion of a residential assessment in this case. I say this because of the following:-
(a) It is only relatively recently that significant findings and decisions were made in respect of the older children.
(b) Miss X's behaviour in concealing the pregnancy with H, her reluctance to name the father, and the neglect of her health needs raise significant concerns as to whether she has changed fundamentally.
(c) The infrastructure that would support Miss X's parenting of any child i.e. beyond a residential assessment is uncertain and possibly impoverished.
(d) I believe Miss X's capacity for change is compromised. In part this is by virtue of her heritage. This includes her being neglected in infancy, exposed to institutional care in pre-school years, and once placed in foster care being subject to sexual maltreatment, alongside the relative neglect of her emotional and psychological needs by the foster 'mother' in adolescence.
(e) I have no quarrel with the notion that Miss X may be able to offer care to an infant child. I concede that within the confines of a residential assessment unit and under the special forms of structure and support available to her that she may evidence periods of good enough care of H. Further she may appear to be responsive to prompts and guidance thereby raising hopes that she may benefit from support and guidance across time. My concern however is that by its very nature a residential unit in its structure offers both explicit and implicit prompts and continual reminders of parenting responses. It is an environment which is free of the day to day pressures that a parent faces in their local community. Within such a setting Miss X would also be free from the distraction of her relationship with her current partner. In some ways this would present her with a period of respite and support from the uncertainties of her own life. However once removed from the residential setting Miss X's life would change and matters would be much more uncertain.
(f) As stated above I have significant concerns about Miss X's capacity to change within a timescale that matches H's needs. I anticipate that as H matures the nature of the demands that she places upon Miss X will change and much more sophisticated and higher levels of parenting skills will be required, something I fear which Miss X cannot provide.
I believe a residential assessment in this case will simply delay matters. I do not believe H should be placed in her mother's care. The issue of whether Miss X could attend to H's needs in the special environment of a residential assessment unit and respond to prompts given there as to the care of her infant daughter is significantly different to that of whether she will sustain full and proper care of her daughter across time. This is something which I fear she will be unable to do and for the various reasons outlined above.
Miss X's capacity for change is not within a timescale that is compatible with H's needs."
22. Thus, Dr Briggs concludes that the mother will not be able to change sufficiently within a time scale commensurate with the needs of the child.
23. That conclusion is shared by the social worker, Gregg McDonald and the guardian. Accordingly Mr Robinson submitted that the child is likely to suffer significant harm if placed in the care of the mother, namely harm from sexual abuse, physical abuse, neglect and emotional abuse. That submission is again supported by Mr McDonald and the guardian.
24. The Minister further relies on the mother's conduct during and after the pregnancy. The mother did not inform the authorities of her pregnancy or attend any ante-natal care. She informed the guardian that she did not do so because she had been told by a previous social worker that she would have any child removed. She also did not think that the pregnancy would go full term. As the guardian explains in her report, it is of concern that she appears to have had no understanding of the possible risks she would be exposing a baby in utero due to previous complications in her previous pregnancies and the effects this could have had on her unborn child. Her family history shows that all her previous babies had been at low birth weight. Her sixth child had severe heart problems due to complications in pregnancy, thought to be caused by the mother's life style.
25. She informed the guardian that she had stopped the medication for her epilepsy in or around October 2009, and continued to smoke 30 to 40 cigarettes a day. She refused to name the father of the child until the court hearing on 20th June 2010 and even then the two persons subsequently put forward have been discounted following DNA testing. This has resulted in a delay in these proceedings and has prevented essential health information being obtained in respect of the child.
26. Dr Briggs was not present in Court as none of the parties wished to put any questions to him. Evidence was heard from Mr McDonald and the guardian.
27. Having considered the extensive documentation and reports before the Court and the evidence of Mr McDonald and the guardian, the Court was satisfied on the balance of probabilities (see Re B (Children)(Care Proceedings:Standard of Proof) 2008 UKHL 35) that the threshold criteria had been met.
Welfare test
28. The Court then went on to consider whether an order should be made and if so what type of order. In determining these matters, the Court was reminded that it should and it did apply the principle that the child's welfare is paramount, apply the statutory welfare checklist, consider the no order principle, consider the issue of contact and scrutinise the care plan.
29. The care plan envisaged the Minister applying for a freeing order so that the child can be adopted. In the meantime, she would remain with her foster parents where she was well looked after. In his report, Mr McDonald helpfully rehearsed the welfare checklist which was of assistance to us. We were satisfied that the Children's Services had considered whether any members of the mother's family might be considered as a long-term carer. One person had been put forward anonymously, but as previously mentioned, the assessment was not supportive.
30. In terms of contact, the mother had chosen to end contact with the child because she had received advice that the child would not be rehabilitated into her care. The Minister proposed that if the child was adopted, then there would be annual letter-box contact with the mother, and potentially with the child's siblings.
31. Having found the threshold criteria met on the grounds of the mother's lack of parenting skills, making no order at all or making a supervision order would obviously not be in the child's interests. The Minister and the guardian firmly recommended a care order which the mother did not oppose. The Court therefore made a care order.
Freeing for adoption
32. The Minister applied for an order freeing the child for adoption under Article 12(1) of the Adoption (Jersey) Law 1961 ("the Adoption Law"). It is well established that there are two questions to be considered by the Court:-
(i) Is the adoption in the best interests of the child? If so, then
(ii) Is the natural mother unreasonable in withholding her consent? (See JS & BS [2005] JRC 108).
Best interests of the child
33. Article 3 of the Adoption Law requires the Court to have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout the child's childhood.
34. Both Mr McDonald and the guardian advised that the child needed permanency now. As the guardian said in her report, the child is forming a strong bond with her foster mother and the longer she remains there the stronger it will become and the harder it will be for her to leave that placement. As Mr McDonald advised, adoption would afford the child the opportunity to be claimed fully by parents who would legally, emotionally and permanently take on her care. Family life is extremely important for every child and it is her fundamental right to belong to a family.
35. On the other hand, if the child were to be fostered on a permanent basis, ongoing intervention would be required from the Children's Service, pursuant to the care order, and she would be subjected to regular "looked after child" reviews, statutory home checks and an allocated social worker. This would continue until she was eighteen and would be a constant reminder to her that her life is in part managed by the Children's Service. She would never feel a secure sense of belonging, in the true sense of the word, and it would single her out as different from other children. At the age of eighteen, her foster carers would have no legal duty to continue their relationship with her. Fostering would carry a sense of non permanency about her position as a foster child. Furthermore, the Children's Service would be under a duty to maintain contact between the child and the mother which could potentially destabilise the placement. We were informed that it is likely that the child would be adopted in January, and certainly before the end of March 2011. We were satisfied that adoption was in the best interests of the child.
Unreasonably withholding consent
36. We were referred to the decision of the Court in JS & BS in which various dicta contained within English authorities were accepted as an accurate statement of the law which must be applied in Jersey. In short, the test is an objective one as described by Lord Denning in Re L (1962) 106 SOL J611:-
"But I must say that in considering whether she is reasonable or unreasonable we must take into account the welfare of the child. A reasonable mother surely gives great weight to what is better for the child. Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent. We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case".
37. Mr Landick had done his best to take instructions in difficult circumstances. The mother felt she was being penalised for the past and not being given sufficient time to change. If the child were to remain in foster care, then she might be able to make the necessary changes. He suggested that rather than making a freeing order now the Court could choose an intermediary path which would allow the child to remain in foster care and in contact with the mother who would be given time to work with the authorities to a point at which she could assume her long term care. Mr Landick had in mind a time scale of some three years. We note that in paragraph 10.12 of her report, the guardian advised that a minimum of at least four years further work was required to be undertaken before there could be any consideration of the mother parenting any future children.
38. Such a course would be a considerable experiment (using Dr Briggs's words) in the life of the child. It would place the understandable needs of the mother to do all she can to keep the door open to her being able at sometime in the future to look after the child, above the needs of the child for permanency now. The prospects of the mother being able to change over a timescale of even four years were not, on the evidence, encouraging but in any event applying the paramountcy principle any change must be within the child's timescale not the mother's.
39. A further reason for the mother withholding consent which emerged in discussion is that she may not want the child to learn in the future that she had consented to an adoption. It enabled her to say to the child at some future date that while she had no option in the circumstances to accept that the child was placed in care, she had demonstrated her love and commitment to the child by not agreeing to adoption. In other words, she had done her best to fight for her.
40. If that does form part of the mother's thinking then in our view it arises out of her undoubted anguish of mind at the prospect of losing her child, but it does not take into account the welfare of the child and cannot objectively constitute a reasonable withholding of consent.
41. In the circumstances we were satisfied that the mother was unreasonably withholding her consent. Accordingly, we made an order freeing the child for adoption and noted that under the care plan it was recommended that there should be annual letterbox contact between the mother and the child and this as Mr McDonald cautioned us in order to meet the needs of the child and not of the mother or other relatives.
Authorities
Children (Jersey) Law 2002.
Minister for Health and Social Services v X [2010] JRC 130A.
Children Rules 2005.
In the matter of X [2009] JRC 017.
Re B (Children)(Care Proceedings:Standard of Proof) 2008 UKHL 35.
Adoption (Jersey) Law 1961.
Re L (1962) 106 SOL J611.