Before : |
J. A. Clyde-Smith, Commissioner, and Jurats Clapham and Marett-Crosby. |
Between |
The Minister for Health and Social Services |
Applicant |
And |
D (the mother) |
First Respondent |
And |
A, B and C, (acting through their Guardian ad litem Eleanor Green) |
Second Respondents |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF A, B AND C (CARE PROCEEDINGS)
Advocate S. L. Brace for the Applicant.
Advocate B. J. Corbett for the Second Respondents.
Advocate R. E. Colley, Amicus.
judgment
the commissioner:
1. On 6th August, 2012, the Court made care and freeing for adoption orders in respect of the second respondents ("the children").
2. The Court heard evidence from Matthew Davies, the social worker, Sarah Michael, the senior social worker within the Fostering & Adoption Team and the guardian, Eleanor Green.
3. The two older children were made the subject of interim care orders on 2nd September, 2005, as a consequence of the mother's dependency on alcohol; on a number of occasions she had been found drunk and incapable of caring for them. However, the mother successfully underwent a supported detox programme and demonstrated her commitment to change and to work with the Children's Service, sufficient to be allowed to resume their full time care and for those care proceedings to be allowed to lapse.
4. There was no further involvement of the Children's Service until 30th April, 2010, when there followed a total of six referrals focusing on concerns for the mother's mental health in the context of the forthcoming birth of the youngest child. Notwithstanding a referral from the maternity service two days after the birth (26th February, 2011), the mother was discharged from the maternity hospital but as the result of further concerns over her mental health was subsequently re-admitted with the youngest child while the two older children were cared for by a neighbour.
5. At a care meeting on 14th March, 2011, the mother was described by health professionals as recovering and responding to antidepressants and starting to meet the youngest child's needs, but with need for support. Accordingly the mother agreed to move with the youngest child into the supportive environment of the Women's Refuge, where the two older children joined her. The mother was then allocated States accommodation for her and the children but made extremely limited progress in preparing for the move. In the meantime, as a result of a number of concerns expressed by the staff at the Women's Refuge in relation to her care of the youngest child and following a significant deterioration in her presentation, all three children were placed by the mother in to the voluntary care of the Minister on 26th May, 2011. They have remained with their foster placement continuously since.
6. Following further reports of strange and bizarre behaviour and with her attendance at contact deteriorating, the mother was seen by Dr Gavin Hendricks, consultant psychiatrist with Adult Mental Health Services on the 31st August, 2011. In his report, he described her as charming and engaging, and although he appreciated that on occasions the way that the mother communicated could be interpreted as bizarre, it was not. He described her as spontaneous, appropriate and most comfortable presenting herself within the context of her native culture, which is Portuguese. She was neither objectively nor subjectively depressed and did not display "any neurovegetative features of a mood disturbance". He was careful to exclude any reference to self-harm, ideation and/or intent. He advised that she was not psychotic, not deluded, not paranoid, not hallucinating and there was "no symptomatology of formal thought disorder". She was fully orientated for person, time and place and her short-term memory and long-term memory were intact. He thought she might perhaps be intellectually challenged and although there were no records of any formal cognitive testing, it was not something that he would recommend. She did not need psychotropic medication and was discharged from the Acute Psychiatric Service that day.
7. By way of illustration of her conduct at a supervised contact session on 3rd September, the mother drew a picture of the youngest child with horns, which she shared with the two older children, informing them that their sister was a devil. She had on an earlier occasion attempted to baptise the child in the toilet area, an incident which was clearly upsetting for the two older children. She was also heard to tell the two older children a story in which two boys were placed in a freezer and when asked what happened to the boys she told them that they had died.
8. Interim care orders were granted on 25th November, 2011. The Court directed preparation of a psychiatric report and cognitive assessments, but the mother failed to attend the planned appointments. She failed to attend appointments on 18th January, 2012, 27th January, 2012, 31st January, 2012, 10th February, 2012, 10th April, 2012, 11th April, 2012, and 13th April, 2012.
9. On 4th December, 2011, the mother was arrested for an alleged grave and criminal assault in which she had attempted to assault a former partner with a screwdriver in the presence of police officers. The former partner did not wish to pursue the complaint and the mother was not charged.
10. On 16th January, 2012, the primary school expressed concerns for the mother's welfare and well-being. Adult Mental Health Services consequently undertook a mental health needs assessment, but this did not result in admittance to hospital or support within the wider community on the basis that although her presentation was odd, it was not psychotic and it was not therefore possible to compulsorily detain her.
11. The mother's conduct at supervised contact sessions remained a concern, as she would speak and laugh to herself and routinely ignored the children in favour of undertaking individual activities. She threatened to physically harm members of the Children's Service and presented as verbally aggressive when appropriately challenged regarding her behaviour.
12. As a consequence of the effect of her behaviour on the children, supervised contact was reduced on 6th February, 2012, to one hour on recurrent Mondays and Wednesdays and that reduction was endorsed by the Court on 27th February, 2012, when the Minister was given authority to suspend contact should that be necessary. The mother did not attend contact on 9th March, 16th March, and 23rd March, 2012, and in the light of her poor attendance and the poor quality of the contact, it was felt appropriate by the Minister to suspend contact on 30th March, 2012.
13. Since 30th March, 2012, the mother has routinely ignored consistent efforts by the Children's Service to engage her. On 15th April, 2012, the mother was arrested for being drunk and disorderly and failed to attend a parish hall inquiry.
14. The children have been made parties to the proceedings and the Court appointed Miss Colley as amicus in order to assist the Court ensure that the mother's interests were represented at the hearing. The mother had failed to respond to Miss Colley's attempts to engage her in these proceedings. A letter to her from the Minister setting out the orders that would be sought was handed to her personally at the last contact session she attended on 2nd March, 2012, and she signed a copy acknowledging receipt. In particular, she was advised that the Minister would be seeking an order for the children to be adopted and of the potential consequences of failing to engage in the proceedings.
15. The mother has given conflicting information as to who may have fathered the children and paternity has yet to be determined. A former partner who had been named by the mother as the father of the youngest child has been ruled out following DNA testing. There was no father therefore with parental responsibility.
16. Mr Paul Eggert, a cognitive behavioural therapist, in his report of 26th April, 2012, recommended that consideration be given to the two older children being placed for adoption jointly, with C being placed separately, principally to avoid A being propelled back into a quasi adult role that he had often adopted whilst the children lived with their mother. Sarah Michael was confident that they would be able to match adopters for the older two children and C in Jersey and will facilitate and promote sibling contact.
17. The two older children have been assessed by Jasmine Murray, a chartered psychologist. A presents at a level of general cognitive function which falls within the low average classification range. B has learning difficulties at a more significant level, presenting an overall level of cognitive function which falls within the extremely low classification range.
18. The guardian told us that the children were settled and happy with foster carers and although the future caused some anxiety for the older two children, they had clear, age appropriate understanding of the proceedings. She described them as delightful, quirky children who have a great sense of fun. A's feelings about the current circumstances are understandably mixed. He does not particularly want to return to his mother's care but the thought of a future without her caused him some anxiety. He appears to have emotionally divorced himself from thinking about her to any great degree. He wants to make connections and have a "forever" family so that he would know where he would live permanently. He wanted the Court to know that it was really important for him that he stays at the same school and said how sad he was that it was not proposed that he and B be living with C.
19. Gathering B's wishes and feelings was slightly more complicated, because his learning difficulties meant his comprehension of abstract or complex issues is hard to assess. His reaction appeared to depend very much on what A said but he too wanted a "forever" family. The guardian informed us that B understands that he is unlikely to live with his mother again.
20. C was too young to articulate her wishes and feelings verbally but the guardian observed her on several occasions with her foster carers to be content, happy and relaxed. She displays age appropriate behaviour.
21. When the guardian had managed to speak to the mother she told her that she did not wish to meet with her. She was satisfied that every effort had been made by the Minister to involve the mother in the process and that appropriate advice had been given to her.
22. Sarah Michael explained the process for assessing prospective adopters, matching adopters with children, and making adoptive placements, which includes careful introductions as well as provision of intensive support for those placements. A Permanence Report had been presented to the Adoption and Permanence Panel on 12th June, 2012, and subject to the outcome of the Court hearing, it recommended adoption as the preferred Permanence Plan for all three children.
23. The mother did not attend the hearing and the Court proceeded in her absence, being satisfied pursuant to Rule 17(3) and (4) of the Children Rules 2005 that she had received reasonable notice of the date of the hearing and that in any event, the circumstances of the case justified proceeding in her absence.
24. Although there were two applications before us, namely for a care order and a freeing order, we considered the evidence in the round, rather than dealing with the respective applications separately following In the matter of the T Children [2009] JRC 231. We followed the principles laid down in by the Court of Appeal in Re F & G (No. 2) [2010] JCA 051 at paragraphs 5 - 8 and were satisfied that the threshold criteria had been met, namely that at the time of the first intervention on 26th May, 2011, the children were suffering significant harm attributable to the care being given to them by the mother not being what it would be reasonable to expect a parent to give the children. Furthermore, in the light of the developments since then, we were satisfied that the children were likely to suffer significant harm if they were returned to the care of the mother, who had effectively abandoned them.
25. In terms of the welfare checklist, we have already referred to the wishes of the children to the extent ascertainable and we considered the remaining matters listed assisted by the report of the guardian, but of those, the most relevant was the clear inability or unwillingness of the mother to meet the children's needs. As the guardian said in her report, the needs of these children cannot be met by their mother who has severely and persistently neglected them in the past and has now completely absented herself from their care. There is no other adult in the family network who is willing or able to look after them.
26. We were troubled by the apparent contradiction between the behaviour of the mother on the one hand and the psychiatric advice that she was not suffering from any mental illness on the other but it was the children who were our paramount concern, not the mother, and we had to act in their interests in the very sad situation in which they found themselves.
27. We scrutinised and approved the care plan and arrangements for contact, which were that there should be no direct contact between the children and their mother but that only letterbox contact would be offered.
28. Article 12 of the Adoption (Jersey) Law 1961 ("the Adoption Law") provides that the Court can only make an order freeing a child for adoption with the consent of each parent (in this case the mother) and failing that, the Court must be satisfied that the parents' consent should be dispensed with on a ground specified in Article 13(2), namely that the parent:-
"(a) Cannot be found or is incapable of giving agreement;
(b) Is withholding his or her consent unreasonably;
(c) Has persistently failed without reasonable cause to exercise his or her rights, duties, obligations and liabilities as a parent or guardian in respect of the infant:
(d) Has abandoned or neglected the infant;
(e) ...has persistently ill-treated the infant and because of that ill-treatment or for other reasons, the rehabilitation of the infant ... is unlikely).
(f) Has seriously ill-treated the infant;
(g) Is incapable of caring for the infant or is of such habits and mode of life as to be unfit to have care of the infant."
29. F & G (No 2) is authority (at paragraphs 74 and 75) for the proposition that the Court should consider two matters, firstly is the making of a freeing order in the best interests of the child and if so, is the parents' consent being unreasonably withheld? In considering the children's best interests, the Court must have regard to the provisions of Article 3 of the Adoption Law which 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 infant throughout the infant's childhood, and shall, so far as practical, 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."
30. We have referred to the wishes of the children as far as they could be ascertained above. Mr Eggert, in his report, concluded that he had "no difficulty in strongly recommending adoption as the most likely mechanism to bringing about a stable, loving and safe permanency for the three children". Both the social worker and the guardian are satisfied that the return of the children to their mother is not possible and we accepted the Minister's submission that the children's welfare would be best safeguarded and promoted by being freed for adoption because it would enable them to be placed with new legal parents (a "forever" family) as opposed to spending their childhoods in the care of the State.
31. Although the mother's views about adoption were not known, she has persistently stated that she wished the children to be returned to her and we therefore assumed that she did not consent to them being freed for adoption. When considering whether a parent is withholding consent unreasonably, the Court should apply the test described in Re JS and BS [2005] JRC 108, which in essence can be summarised as:-
"a) A parent may be acting unreasonably even if there is no element of culpability or reprehensible conduct in his decision to withhold consent;
b) The test is an objective one, made in light of all the circumstances and although the welfare of the child is not the sole consideration it is a fact of great importance;
c) Reasonableness is not failure to discharge parental duties, but although welfare is not the test, the fact that a reasonable parent does pay regard to the welfare of his child must enter into the question of reasonableness, and is decisive in cases where a reasonable parent would take the child's welfare into account.
d) The court is not entitled to simply substitute its own view of reasonableness for that of the parent."
32. This test was adopted in F and G (No 2) the Court of Appeal approving the dicta of the Royal Court in the case at first instance:-
"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."
33. There is no reasonable prospect of the children returning to the mother's care and therefore if freeing orders are not granted, they will remain in the long-term care of the State with none of the security afforded by adoption. For this reason we concluded that the mother's refusal to consent does not fall within the band of reasonable decisions. We also concluded that the mother's consent can be dispensed with on two other grounds specified in Article 13(2), namely that she has persistently failed without reasonable cause to exercise her rights, duties, obligations and liabilities as a parent (Article 13(2)(c)) and that she is incapable of caring for the children and is of such habits and mode of life as to be unfit to have the care of the children (Article 13(2)(g)).
34. Although the mother had effectively abandoned the children, we were conscious of the enormity to her of freeing the children for adoption and took into account her Article 8 Convention rights to respect for her private and family life. However we noted that where the rights of both the mother and the children are at stake, the rights of the children must be paramount (see Yousef-v-The Netherlands [2003] 1 FLR). We had no doubt that it was in the interests of the children for them to be freed for adoption.
35. In conclusion, we therefore made care orders in respect of the children in favour of the Minister, dispensed with the consent of the mother to adoption under Article 13(1)(b)(2) on the grounds set out in Article 13(2)(b), (c) and (g) of the Adoption Law and made an order declaring the children free for adoption under Article 12 of the Adoption Law. We also gave other ancillary directions.
Authorities
Children Rules 2005.
In the matter of the T Children [2009] JRC 231.
Re F & G (No. 2) [2010] JCA 051.
Adoption (Jersey) Law 1961.
Yousef-v-The Netherlands [2003] 1 FLR.