Jersey Unreported Judgments

Care proceedings - application for a final care order and a free for adoption order.

[2013]JRC041

Royal Court

(Family)

22 February 2013

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Marett-Crosby and Blampied.

 

IN THE MATTER OF A (CARE PROCEEDINGS)

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

Advocate S. L. Brace for the Applicant.

Advocate C. R. G. Davies for the First Respondent.

Advocate C. Hall for the Second Respondent.

Advocate B. J. Corbett for the Third Respondent.

judgment

the commissioner:

1.        On 11^th January, 2013, following a four day hearing, the Court granted the applicant ("the Minister") a final care order in respect of A ("the child") who at the time of the hearing was just short of her first birthday and freed her for adoption. 

2.        It was agreed by the parties that the threshold criteria were met in this case and a signed agreed threshold findings document was filed with the Court.  The main issue was the Minister's plan to have the child freed for adoption, which the guardian for the child and the father supported, but which the mother opposed. 

History

3.        The mother was only sixteen when the child was born; the father was eighteen.  They are not married, and therefore the father does not have parental responsibility for the child.  Both parents had difficult childhoods themselves (the mother is, of course, still a child), with periods spent in care.  Significant concerns arose for the safety and welfare of the unborn child, which stemmed largely from the conduct of the parents.  Those concerns related to the mother's neglect of her ante-natal care and failure to prioritise the health needs of her unborn baby, compounded by the failure of the mother and father to accept or appreciate the concerns held, and to work with professionals to address the issues that arose.  When they did attend, or interact with professionals, they presented as hostile, aggressive and unwilling to work with the recommendations given.  As a consequence, the Minister applied for and was granted an interim care order on 10^th February, 2012, five days after the child's birth. 

4.        Following the child's birth and the mother's discharge from hospital, the child was placed with both the mother and father at Serendipity Residential Assessment Centre in Devon.  The placement was for an initial period of twelve weeks, but it was extended on a number of occasions to a total of six months.  At each extension neither parent was deemed by Serendipity to be able to care for the child in the community. 

5.        In May 2012 the parents were assessed by Mrs Arabella Whitehead, a clinical psychologist, who found that despite significant concerns before the birth of the child, the parents had demonstrated that they could gain the necessary skills of basic parenting, although there were some concerns about their ability to sustain these and to be consistent.  A significant risk to the child, she found, arose from the parents' relationship difficulties.  Psychometric assessments of the mother showed that she was functioning at the sixth percentile, in the borderline to low average range of intelligence in relation to her verbal abilities and as such care would need to be taken to ensure that she understood information and that she may require information to be presented both visually and verbally.  She did not present as being overly anxious or prone to depression.  Assessments of the father showed that his general verbal abilities fell within the average range, equal to or better than 42% of people his age, and that as such, he was unlikely to have difficulties with comprehension of new information.  There were no symptoms of depression. 

6.        In their final report of the 20^th September, 2012, Serendipity referred to the parents' "frequently chaotic relationship" which "served as a significant distraction from their parenting responsibilities and resulted in [the child] being frequently exposed to unpredictable and hostile parental dynamics."  An early improvement in their relationship dynamics and ability to focus upon the child's needs had led to them being placed at Koru House (a unit within Serendipity) which allowed them increased independence, but this unfortunately led to a deterioration in their relationship and in their parenting capacity due to the reduction in the support and monitoring available to the family in the long-term placement setting. 

7.        There were concerns regarding the mother's ability to work openly and honestly with the professionals and her emotional health during the latter stages.  The relationship between the mother and father deteriorated to such an extent that on 17^th August, 2012, they informed Serendipity staff that they wished to separate.  The mother informed Serendipity that she wanted to leave the father to parent the child as a single carer.  Serendipity supported this arrangement, as the father had appeared to mature in attitude and behaviour as the placement progressed, but it soon became evident that his preoccupation with his relationship difficulties with the mother, his separation from her and his fears over becoming a single father overwhelmed him.  Even when separated, Serendipity reported them as remaining emotionally entwined and dependent upon one another, continuing to require high levels of staff intervention and support in order to manage issues regarding their separation. 

8.        Serendipity concluded:-

"[The father] and [the mother's] love for their daughter was evident throughout their placement at Serendipity and their commitment to her has allowed them to take great strides in addressing behaviours and lifestyle choices which would have been unsuitable for [the child] and/or placed her at risk.  However, the couple's emotional immaturity, compounded by their own parenting and attachment experiences, has rendered them unable to organise and manage their emotions and behaviours in order to consistently prioritise [the child's] needs above their own."

9.        Serendipity was therefore unable to recommend that either parent, together or separately, was able to parent the child in the short, medium or long term.  It had reached this conclusion in respect of the mother earlier than the father.  Whilst her basic physical care of the child was deemed good enough, the mother was "not able to care for [the child] as a sole parent, due to the significant concerns around her ability to recognise the impact of her own behaviours along with her dishonesty with professionals". 

10.      Serendipity advised that both parents would benefit from therapeutic intervention to help them understand the impact of their own histories on their transition into adulthood and future parenting. 

11.      The child was returned to Jersey on 29^th August, 2012, and placed with foster carers.  Serendipity's final report, which was very comprehensive, took some time to prepare and whilst the Children's Service was aware of their final recommendation, it was decided that a further opportunity should be given for the child to be looked after by the mother.  On 17^th October, 2012, the child was therefore placed with the mother in a mother-baby foster placement, which had been established for the first time in Jersey.  The purpose of the placement was to enable the mother and the child to live together whilst a parenting assessment was undertaken by the Children's Service.  The mother was to be the primary carer for the child, and the role of the foster carer and the family support worker, was to observe, support and nurture the mother in her parenting of the child.  This was to ensure that the child was safe-guarded, but it also provided the mother with the best opportunity to demonstrate her capacity to care for the child. 

12.      The placement started well, and it is clear to us that the foster carer was very supportive.  However, when "the honeymoon was over", as Miss Sarah Jenner, the allocated social worker within the Children's Service for the child, put it, matters began to deteriorate, culminating in the decision being taken by the mother on 6^th November, 2012, that she could no longer care for the child and that she wished to place her for adoption.  The mother left the placement that day returning to the father and leaving the child with the foster carer.  

13.      Both parents attended the LAC review on 10^th December, 2012, when the plan to have the child adopted was discussed and agreed by them.  Miss Jenner commended both parents for the contribution they then made to the adoption plans, for example, by buying the memory box and placing photos in it.  However, on 2^nd January, 2013, some five days before the final hearing, the mother informed the Children's Service that she would be contesting the plan for the child to be adopted.  She informed Miss Jenner that she wanted the child to see that she had fought for her. 

Evidence

14.      The Court received comprehensive reports and heard evidence from Miss Jenner, Dr Bryn Williams, a clinical psychologist, Mrs Whitehead, Miss Lucy Hextall of Serendipity and the guardian, Ms Elsa Fernandes.  The Court also heard evidence from Mrs Sarah Michael, a senior social worker at the fostering and adoption team.  The mother and the father did not give evidence. 

15.      Dr Williams was instructed in September 2012 after the child's return from Serendipity.  In his interim report of 1^st October, 2012, he observed that babies and young children at risk of harm are known to have better psychological outcomes if they are able to secure and maintain a safe attachment relationship with a "safe adult" before the age of twelve months (citing Gerhardt T 2004; Schore, 2010; Ward, Brown & Westlake, 2012).  Therefore the child's best interests were likely to be best served by making long-term decisions about her future within this timescale.  The child was running out of time to have the best opportunities in her early life.  He supported the mother-baby placement, which he described as "a very exciting and innovative intervention".  He cautioned over it being a short-term placement if it were to go well; given the mother's age and history, as well as her social and familial isolation, she may, he said, require a longer term foster placement with the child.  He stressed the importance of parallel planning in order to protect the child's future, although given Serendipity's conclusion that the child could not be permanently cared for by the mother, the rationale for conducting a further assessment had not been readily explained in the care plan.  In any event he thought it might be a benefit to consider the mother's learning abilities and problem solving skills as part of his assessment, and he anticipated working with an educational psychologist to explore this. 

16.      By the time of his final report of 19^th November, 2012, the mother had left the mother-baby foster placement, resumed her relationship with the father and consented to the child being adopted.  Dr Williams made this observation at paragraph 5.17:-

"Following the breakdown of the foster placement in early November 2012 I was left wondering whether [the mother's] fragmented way of interacting with the world that was confusing, chaotic, inconsistent and, for others, dishonest, manipulative and attention-seeking was for her the only way she knew how to survive.  My own experience of what [the mother] projected onto other people, including myself, in terms of her inconsistency, her desire to put right the wrongs in her family, at the same time as attempting to love a baby were all confused and chaotic.  As I came to terms with recognising how difficult it would be for either [the mother] or [the father] to meet [the child's] needs in the short term I became much more concerned and preoccupied with how [the mother's] own personality and identity was being formed during this critically important time in her early development.  My concern was that she was rehearsing and repeating extremely dysfunctional ways of interacting with other people, all of which probably related to finding who she was and in acceptance that she was not a bad person.  The highly ambivalent and often dismissive attachment behaviours appeared entirely consistent with her experience of being parented by her own mother.  This was being re-enacted and yet re-enacted without resolution."

17.      Whilst the mother was capable of taking care of the child's basic needs, he had noted in his observations "a remarkable absence of reciprocal shared attention, affection and warmth between [the child] and her mother".  He was particularly concerned about the lack of inter-subjectivity between them.  This, he explained, is a reciprocal process and it was relevant that the child did not appear to experience this inter-subjectivity with the mother. 

18.      The child was developing and performing within normal limits and was within the average range of all of the indicators he applied, but her experience had been mitigated by the support and monitoring by the statutory agencies, particularly whilst at Serendipity. 

19.      It was essential, in his view, for the mother to engage in therapeutic work to address her own needs but this could not be achieved within the timescales appropriate for the child.  This therapeutic work for the mother would take some two years, in his view.  It would require commitment and hard work on her part and a great deal of resources.  This journey was there for her to take a year ago, but insufficient change had taken place.  He advised that the research provided by Ward et al, 2012, suggested that children whose parents had had intervention for a period of six months and who are unable to demonstrate a shift into subjective and safe relationship with their children, place their children at very high risk of long-term adjustment difficulties, inconsistent parenting and family breakdown. 

20.      He did not recommend any further inquiry or assessment to be made in respect of either the child or the mother.  The child was now nearly a year and the window of opportunity had gone.  The priority now was to prepare the child for permanency outside her family as soon as possible. 

21.      Dr Williams was further instructed to advise on whether the mother was psychologically able to give her consent to a freeing for adoption order.  He met with her on 31^st December ,2012.  She accepted that she had been unable to care for the child or to demonstrate to the social worker that she had the capacity to change her behaviour within the timescales that were necessary for the child.  She also recognised that her relationship with the father, which she suggested was temporary, created a "huge barrier" for both her and them as a couple to be considered appropriate to care for the child.  She told Dr Williams that she had a lot of issues with the Children's Service, which she felt had let her down.  She described to him how as a child she had been physically assaulted by her own mother and that when her father had seen bruising on her body and contacted the police, social services did not act to protect her.  While she recognised that she had agreed to the care order and to the child being adopted, she was so angry she felt she had to contest the adoption order.  As Dr Williams observed, this would, of course, result in the child remaining permanently in the care of the very people the mother said she could not trust.  In his view, she found it extremely difficult to separate her own emotional experiences of loss, pain, anger and distress caused by her mother, father and social workers, from the cognitive need to ensure that her daughter had a positive future.  She had experienced a destructive and painful childhood.  She placed the blame for this on her mother, but also holds others responsible, particularly the social workers.  This created an intellectual dilemma for her as she knows at "a thinking or cognitive" level that she cannot care for the child and yet she finds it hard to contemplate social workers acting in either her or the child's best interests. 

22.      He advised that the mother had capacity to consent to the adoption, but that her ability to place the needs of the child above those of her own was impaired.  She was not in a position to make an indefinite commitment to the child being parented by others and she expressed the view to him that adopting the child in Jersey would be difficult, because she and the father knew so many people.  This led Dr Williams to have some anxiety about an on island adoption, as he thought there was a risk of the mother undermining the placement. 

23.      In cross-examination, Dr Williams accepted that his assessment of the mother had not been fully completed, but this was because she had left the mother-baby foster placement.  She had, as he put it, walked out saying "I am not going to do this".  It was her decision, and it brought the matter to a head.  There may not, therefore, have been a full assessment of the support available to the mother. 

24.      As initially recommended, he had an educational psychologist lined up so that he could cover every aspect but in his view, the mother's limited IQ would not have made any difference to his assessment.  An educational psychologist "would have given us another pair of spectacles as to why she struggles" but he did not feel that her understanding of language was a barrier or that her lack of high-school education was relevant - the vast majority of the world's population, he said, have no high-school education.  None of this was sufficient to alter his view. 

25.      Dr Williams accepted that being under supervision or observation either in Serendipity or in the mother-baby placement could be stressful and that particular circumstances (such as unhelpful family intervention or court hearings) could increase that stress, but it was clear to him that both the Serendipity placement and in particular the mother-baby placement had started well.  The foster carer, in particular, had been nurturing and most supportive, but when "the chips were down", the mother went to the father; she did not stay to look after the child.  When stressed, her parenting goes. 

26.      Dr Williams was referred to the report of Mrs Whitehead of 28^th May, 2012, in which she said at paragraph 50 that the child was then at the beginning of the most critical period for the development of secure attachment relationships and that "the first 36 months will be the most crucial in terms of meeting these needs."  He agreed with this, but reiterated his view that it would take some two years for the mother to address her issues, that she had a long hill to climb and would have to be committed.  She had not shown that commitment in the first twelve months of the child's life and he would not be prepared to take the risk, which in his opinion was too great. 

27.      Dr Williams was taken through the mother's final statement and the reasons she put forward for being given another opportunity to parent the child (as summarised below) but none of it caused him to alter his advice to the Court.  

28.      Mrs Whitehead told us that at her first meeting with the mother in May 2012, she was very dismissive and really struggled to engage, wanting to gloss over any difficulties, but at the second meeting she became more open and "apparently" honest.  In view of her low average range of intelligence in relation to her verbal abilities, information would need to be given to her in manageable chunks and readily understood but in her experience Serendipity (which she knew well) would tailor the information to the needs of the person being assessed. 

29.      She stressed the significance of the first three years of a child's life and how missed or unsettled attachment relationships can have consequences that go through to adolescence and adult life, with a possibility of history repeating itself.  The sooner the child had a permanent placement the better.  Time was of the essence.  She would now be attaching to the foster carers and any delay meant another period for her to re-establish her attachment.  If the mother were to have the child's care, then we must be confident that there would be longevity in the relationship; otherwise we were missing an opportunity.  

30.      She was not in favour of any further assessments of the mother or the child.  The mother clearly had issues which had impacted upon her ability to parent, which it would be helpful for her to address, but it was clear to Mrs Whitehead that this could not be achieved in the child's timescales. 

31.      She did not think that an educational psychologist would have reached any different conclusions to those that she had reached.  Typically, they use similar tools and assessments and their training is similar. 

32.      Miss Lucy Hextall, a social worker and assessment manager at Serendipity and co-author of its report, explained that on average assessments at Serendipity are for three months, which included not only an assessment of parenting ability but also an element of teaching.  In this case, the assessment had been extended to six months.  Parents are observed physically and through CCTV and as time progresses, given more freedom. 

33.      Two forms of records are kept, firstly, an observation log of basic skills (typically nappy changing, bottle feeding, sterilising, road safety and cooking), which were assessed as to quality, responsiveness and safety.  In this respect, the parents scored well, achieving over 80% in each category.  Secondly, more general relationship issues and comment would be entered into a "chronology" which comprises an in-depth narrative. 

34.      Serendipity recognised that these were young new parents and appropriate aids were used from which it was clear that they could learn when engaged.  Serendipity had to do a lot around the relationship between the mother and the father, who appeared preoccupied with their arguments.  They depended upon each other and were so enmeshed in their own dynamics that they could not prioritise the child. 

35.      Koru House was separate from the main unit - a thirty second walk away - where parents could live more independently, although still under CCTV and audio monitoring.  The parents were moved there to see if they could sustain what they had learnt, but in fact they struggled.  In due course, as set out above, the mother decided that she wanted to leave Serendipity without the child.  Overall, they had significant concerns over the honesty of the mother and her ability to parent the child - hence their recommendations. 

36.      In her evidence, Miss Jenner took the Court through the history as summarised above.  She had completed her own parenting assessment of the mother on 5^th December, 2012.  The key areas of concern, by way of summary, were:-

(i)        The nature of the parent-child relationship. 

(ii)       The mother's capacity to prioritise the child's needs and welfare over all else. 

(iii)      The mother's relationship with the father. 

(iv)      The mother's maturity and psychological functioning. 

(v)       The mother's capacity to work openly and honestly with professionals. 

(vi)      The mother's capacity to promote and sustain change. 

It is a detailed and balanced document in which she concludes that the mother does not have the capacity to care for the child at this time or within the child's timescales, that it is in the child's best interests to be placed for adoption as quickly as possible to ensure no avoidable delay for the child at this crucial time of her life and that she strongly recommended the mother to accept therapeutic intervention and support to address her emotional and psychological needs to benefit her own welfare now and into the future. 

37.      We noted these observations under the heading "Overview of the parent/child relationship":-

"Since leaving the mother baby placement [the mother] has shown minimal interest in the welfare of her daughter.  With the exception of her first day away from [the child] [the mother] has made no contact with Children's Service or the foster carer to directly enquiry about how [the child] is doing.  This shift in position appears to have coincided with [the mother's] shift of preoccupation to [the father] and having her needs met by this relationship, rather than seeking this through her relationship with [the child]. 

[The mother's] approach to contact with [the child] has reverted to that observed prior to their placement, in which [the mother] showed poor commitment to and interest in seeing her daughter.  The impression given to professionals is that [the mother] is ensuring she ticks a box to say she has had contact with [the child], rather than having a maternal drive and wants to spend time with her daughter who she only has twice weekly contact with.  [The mother] is often ready to end the contact before the scheduled end, though presents this as a benefit to professionals who she knows are busy."

38.      In her final report, she summarised the steps taken to assess the viability of family members to act as long-term carers for the child.  Without setting out those steps in this judgment it is clear that no one on either side is either suitable or has come forward for consideration. 

39.      In her final statement, the mother refers to her building relationship with her father.  Apart from the fact that he has a conviction for a serious sexual offence against a child, he has only seen the child three times since September 2012 and has never contacted the Children's Service about her.  In the view of Miss Jenner, he is not a devoted grandfather and his own family in any event have priority.  She had asked him for assistance as to the support the family could offer the mother without success. 

40.      At the placement breakdown meeting held at the Children's Service on 7^th November, 2012, at which the mother had been understandably very emotional, she confirmed that she had made the very difficult decision that she could no longer care for the child, as she did not feel that she was able to give everything that the child needed.  It was therefore in the child's interests to be placed for adoption.  The purpose of the meeting was therefore to conclude the mother-baby placement and to plan forward for the child's adoption.  She informed Miss Jenner that she wished to address her issues with CAMHS.  Miss Jenner therefore referred her to CAMHS who met with the mother on 9^th November, 2012, for an initial assessment.  She was offered a further appointment the following week, but did not attend.  She did arrive unannounced, explaining that her non-attendance was due to the anti-depression pills she had been taking and she was given another appointment which again she did not attend.  On 2^nd January, 2013, she apparently contacted CAMHS again for an appointment, but Miss Jenner said she had to doubt her motivation, given these imminent proceedings.  She pointed out that the mother had been offered an appointment with CAMHS to address her issues during the course of her pregnancy, but had declined any support from them. 

41.      The guardian fully supported the plan for the child to be freed for adoption.  All of the assessments and support that could have been offered to the parents had been offered, but the child could not continue to be kept waiting for the sake of her parents.  Bearing in mind the advice of Dr Williams about the window of opportunity for the child to form secure attachments, she felt it was essential that there should be no delay in putting the care plan into effect. 

42.      On receiving the mother's final statement, in which she said she could no longer support adoption, the guardian had met with the mother, who she felt knew deep down that it was best for the child to be adopted but she wanted the child to know that she had fought for her, unlike her own mother. 

43.      The guardian had spoken to the maternal grandmother, who said that she did not wish to be involved, as she had her own difficulties to contend with.  She had seen the paternal grandparents, who were dismissive.  At her first meeting with the maternal grandfather, he said he would assist her in exploring the extent to which the family could provide support for the mother, but at the second meeting he declined to engage at all.  She was satisfied that the Children's Service had explored all avenues as far as kinship placements were concerned and agreed that there were no other family members who had a meaningful connection with the child with whom she could be placed permanently. 

44.      Finally, the Court heard evidence from Mrs Michael, as to the way the adoption process worked and the role of the Jersey Adoption Permanence Panel.  The fostering and adoption team assessed and prepared adopters in Jersey of whom there was no shortage.  The mother and father had contributed to the process in respect of the child, in order to assist them in finding the perfect match.  A "best interests" decision had already been made and they had four matches for the child, two of whom were really strong.  She was very confident that they could match the child and move forward straight away.  If a freeing order was made, they would try and get before the Panel meeting in February so that an introduction plan could be drawn up and implemented.  The introduction would not be lengthy for a child of this age but as they were very experienced in doing this and knowing what worked, having placed some 20 children in the last four years. 

45.      Having been born in Jersey, it was the team's view that the child should be placed here, unless there was a very good reason not to do so (i.e. a risk of violence or because of complex or special needs).  Once the decision to adopt was made by the Court, she found most parents accepted it and usually cooperated in making it work.  She did not think that these parents posed a risk but in any event any risks of an on-island placement were something that they were more than able to manage. 

The law

46.      The Minister was seeking two orders in respect of the child - firstly a final care order pursuant to Article 24 of the Children (Jersey) Law 2002 ("the Children Law") and secondly an order pursuant to Article 12 of the Adoption (Jersey) Law 1961 ("the Adoption Law"), declaring the child free for adoption.  It was held in the case of In the matter of the T Children [2009] JRC 231 that when the Court is considering parallel applications for a care order and a freeing order it may consider the evidence in the round, rather than dealing with the respective applications separately, and we adopted that approach. 

47.      The principles to be applied when determining a care order are well established and were authoritatively stated in the Court of Appeal decision of Re F and G (No. 2) [2010] JCA 051 at paragraphs 5 - 8.  We applied those principles in our approach to the threshold and welfare stages in this case.  The parties had agreed that the threshold criteria had been met even if the mother and father did not agree with every aspect of the case put forward by the Minister, but even so the Court had to make its own determination.  In the light of the agreement reached, we were however able to conduct a more limited investigation (see Devon County Council-v-S [1992] 2 WLR 273). 

48.      We have summarised the evidence above.  In our view, it is not necessary for the purposes of this judgment to set that evidence out in detail because we agreed with the parties that the threshold criteria had been met namely, that at the time of the interim care order in February 2012 (the relevant date), the child was likely to suffer significant harm attributable to the care likely to be given to the child if a care order was not made not being what it would be reasonable to expect a parent to give the child.  The Court therefore had jurisdiction. 

49.      The care plan which we had scrutinised provided for the child to be freed for adoption and in considering whether adoption is in the child's best interests, 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 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."

50.      Article 12 of the Adoption Law provides that the Court can only make an order freeing a child for adoption with the unconditional consent of each parent, failing which the Court must be satisfied that the parents' consent should be dispensed with one of the grounds 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."

51.      Article 1(1) of the Adoption Law defines a parent "as any parent who has parental responsibility for the child" and therefore we were concerned in this case only with the consent of the mother. 

52.      Under Article 12(3) the mother's agreement to the making of an order cannot be dispensed with unless the child is already placed for adoption or the Court is satisfied that it is likely that the child will be placed for adoption.  We were satisfied from the evidence of Mrs Michael that the latter was the position. 

53.      Under Article 12(6), before making an order, the Court must satisfy itself in relation to the mother that she had been given the opportunity of making, if she so wishes, a declaration that she prefers not to be involved in the future questions concerning the adoption of the child.  In this case, the mother confirmed that she did not wish to make such a declaration.  

54.      Article 12(7) provides that the Court must, in the case of the father, be satisfied that he does not intend to apply within the next six months for a parental responsibility order or a residence order and the father gave us that confirmation. 

55.      In the absence of the mother's consent, F and G (No. 2) (paragraphs 74 and 75) held that the Court must consider two matters:-

(i)        Is the making of a freeing order in the best interests of the child; and

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

56.      When considering whether a parent is withholding consent unreasonably, the Court should apply the test set out in Re JS and BS [2005] JRC 108, which can be summarised as follows:-

(i)        A parent may be acting unreasonably even if there is no element of culpability or reprehensible conduct in her decision to withhold consent;

(ii)       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;

(iii)      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. 

(iv)      The Court is not entitled to simply substitute its own view of reasonableness for that of the parent. 

57.      This test was adopted in F and G (No 2), the Court of Appeal approving the dicta of the 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".  (paragraph 80)

The mother's case

58.      The mother applied for the Minister's application for a care order and a freeing order to be adjourned for between eight to twelve weeks (during which the interim care order would be extended) to enable the following further assessments to be undertaken:-

(i)        A further psychological assessment of the mother by Dr Williams or, if he should be unavailable, an alternative child or family psychologist jointly appointed by the parties, that assessment to include inter alia an assessment of the therapy that should be undertaken by the mother and the timeframe for that therapy and to further consider the attachment between the mother and the child. 

(ii)       An assessment of the mother by an educational psychologist to be jointly appointed by the parties. 

(iii)      A review of the Serendipity assessment on "the papers" by an alternative assessment centre, to be jointly appointed. 

(iv)      An assessment by the Minister of the extended family support available to the mother should she care for the child. 

59.      Miss Davies submitted that these proceedings had not yet reached the end of the line.  It was not yet "game over".  Not everything had been done to ensure the best outcome for the child, namely that she be brought up by the mother.  In this context, she said:-

(i)        There was no evidence that the child had suffered actual significant harm whilst in the mother's care and there was no suggestion that the child had since birth been the victim of neglect or physical abuse. 

(ii)       There was no evidence that the mother had a psychiatric illness, addiction or other intractable problem that is incapable of being addressed and which could prevent her from parenting the child - indeed, all of the experts agreed that she could be able in the future to parent a child, once her issues had been addressed. 

(iii)      The child has been in the mother's care since birth with only two short periods in foster care without her, during which regular good quality contact had been maintained and there was evidence of significant warmth and attachment between the mother and the child. 

(iv)      It was clear and undisputed that the mother had shown good enough skills in her day to day parenting of the child; in fact, the standard of her basic parenting skills were found by Serendipity to be good. 

(v)       There was evidence that the mother, having overcome her distress at the breakdown of the mother-baby placement, will now take active steps to address the difficulties that had been identified in terms of her own emotional wellbeing. 

(vi)      The final assessments in this case including the parenting and psychological assessments were concluded at a time when the mother was greatly distressed immediately following the breakdown in the placement. 

(vii)     The pressure of extended intensive assessment at Serendipity in England and the mother-baby placement in Jersey took their toll on the mother as did the physical complications that have affected her since the child's birth and for which she is still receiving treatment. 

60.      In her final statement, the mother accepted that she could not take care of the child at the moment, but she felt she could turn her life around given time.  The issue was therefore one of timescales.  She said that the Children's Service had not had a chance to properly take into account the following:-

(i)        She had continued to build on her relationship with her father, her grandparents and a family friend.  She believed that they would continue to support her emotionally and with practical things. 

(ii)       She had been in touch with her leaving care social workers in England and in Jersey and they had been helping her to sort out practical issues as a care leaver, including her accommodation and getting a driving licence. 

(iii)      She had made contact with CAMHS and had arranged an appointment for 14^th January, 2013. 

(iv)      She had been attending the hospital to sort out the medical problems that she had had since the child's birth.  These problems had caused her a lot of pain and she did not think that this had helped her in either of the placements. 

(v)       She had been back to see her GP to get additional support. 

(vi)      She had been in touch with The Bridge so that she can do parenting courses that will help her provide the best care she can for the child as she grows older.  

(vii)     Whilst she had stayed in contact with the father, they did not intend to live together or try to parent the child together.  It had been difficult for her to pull away from him completely whilst this had been going on and only they knew what each other were going through.  But she did not believe that they had a long term relationship as boyfriend/girlfriend.  She thought that they had both learned from their time at Serendipity and she hoped that the father would always have contact with the child. 

61.      The mother wrote us a letter during the hearing (rather than give evidence) in which she described in touching terms the difficulties she had experienced in her life.  She placed particular reliance on the support her father was now giving her and she asked for a final chance of proving that she could be a good mother and that she had the necessary support. 

62.      She produced a letter from her father dated 2^nd January, 2013, addressed "To whom it may concern" in which he described her difficult start to life due to her mother's erratic care.  He felt that the Children's Service, both in Jersey and in England, could have done more to help the mother but that with the support of the Children's Service, and himself, she would turn out to be a great mother to the child. 

63.      The Court, Miss Davies submitted, was left with questions that needed to be answered.  It was clear that there was more work to be done:-

(i)        There was inconsistency between Dr Williams' advice that there was a lack of inter-subjectivity between the mother and the child and the observation logs maintained by Serendipity, showing that her basic care of the child and in particular her responsiveness was good.  There were over 1,000 observations over the time that she was at Serendipity, in respect of which she scored over 80%.  There was also inconsistency with the observations logs maintained by the foster carer in the mother-baby placement, which contained very positive statements about the relationship between the mother and the child, certainly in the earlier part of the placement. 

(ii)       The psychological assessment by Dr Williams had not been completed.  Dr Williams had not seen, for example, the medical notes of the mother as ordered by the Court on 1^st November, 2012.  Could they be relevant, she asked?  A letter was placed before the Court from the mother's GP, Dr Overton, confirming that he had referred the mother to CAMHS in October 2012 (but without sufficient information to enable CAMHS to take the matter forward) and stating that the mother had long-standing problems with stress related illness and depression for which she had received medication. 

(iii)      There was no report from an educational psychologist, although one had been identified.  If it was thought relevant for Dr Williams to consult with an educational psychologist at the time of his interim report, surely it was relevant now?

(iv)      There had been no real assessment of the family support that might be available to the mother and in particular, no inquiry into the help that her father could provide. 

(v)       Dr Williams had relied on limited observations of the mother with her child during the mother-baby placement when the mother may have been stressed, and that would have affected the way she responded. 

(vi)      Whilst conceding that the mother had not engaged to date with her own needs, there was no real knowledge of what therapy she needed, or how long it would take.  We needed that knowledge.  How could we be sure that the mother and child could not be placed together in a therapeutic placement, without the father but with him retaining a connection with the child?

(vii)     The mother would be eighteen in April, but there was no information before the Court on the housing and other benefits that might be available to her and how those might be used to arrange a placement with her and the child together. 

(viii)    A desk top revision of the work of Serendipity could be easily arranged. 

(ix)      Miss Davies was concerned at the length of time that the mother had been at Serendipity and the pressure she would have been placed under with constant monitoring, which might have undermined her confidence.  The Children's Service could not itself have been happy with Serendipity or they would not have arranged the mother-baby placement in Jersey.  When she left that placement, she was exhausted. 

64.      The adjournment being sought by the mother was, Miss Davies argued, the kind of planned and purposeful delay referred to by the House of Lords in the case of Re S (Minors)(Care Order: Implementation of Care Plan [2002] UKHL 10, where Lord Nichollls said this at paragraph 95:-

"[95] In this context there are sometimes uncertainties whose nature is such that they are suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application.  The uncertainty may be of such a character that it can, and should, be resolved so far as possible before the court proceeds to make the care order.  Then, a limited period of 'planned and purposeful' delay can readily be justified as the sensible and practical way to deal with an existing problem."

65.      Miss Davies also relied on the English Court of Appeal decision in D MCG-v-Neath Talbot County Borough Council [2010] EWCA Civ 821, where the judge at first instance had refused an adjournment sought by the mother in order to obtain a specialist assessment of her parenting despite evidence from a psychologist that she recommended such an assessment and that the mother had been prejudiced by the lack of it.  Refusing the adjournment, the judge went on to make care and placement orders.  It was held, allowing the appeal, that so drastic a step as adoption should be undertaken only when all other avenues towards rehabilitation had reasonably been explored.  Wilson LJ said this at paragraph 21:-

The fact is that the care plans for the girls were not just that they should remain in permanent care but that they should be severed from the mother both legally and factually.  In explaining our almost consensual disposal of the proposed appeal we see no need to cite authority for the proposition that so drastic a step should be undertaken only when all avenues towards rehabilitation have reasonably been explored."

66.      Turning to the issue of the mother's withholding of consent to a freeing order, it was difficult, said Miss Davies, to say that she was withholding it unreasonably in the light of the uncertainties referred to above; the mother could not be satisfied that the child could not be rehabilitated to her care and therefore her decision to withhold her consent fell within the bound of possible reasonable decisions, which the Court should not seek to replace with its own judgment. 

67.      Finally, it could not be said that the mother was incapable of caring for the child for the purposes of Article 13(2)(g) of the Adoption Law, bearing in mind the clear evidence of Serendipity that her basic care of the child was good. 

Decision

68.      It was not in dispute that the mother loves the child and was capable of providing for the child's basic care (albeit that her capability had been assessed in circumstances where she had support).  It was, as Dr Williams pointed out at paragraph 8.8 of his final report, the mother's belief and feelings in this respect that were compromised by her preoccupation with her own unmet needs and probably as a result of her own immaturity as a very young person faced with the responsibility of being a mother.  It was also accepted that given time to address her issues she might be able to provide good enough parenting at some stage in the future.  The issue was whether this could be achieved within the child's timescales. 

69.      The mother acknowledged that she could not take care of the child now and that she had not to date started to address her own complex needs (apart from making the recent appointment with CAMHS), needs which, Miss Davies accepted, could not be resolved simply.  Dr Williams advised that it would take at least two years, assuming commitment on her part, to address these issues and Mrs Whitehead did not demur from that.  

70.      The conduct of the mother during the pregnancy was such as to justify the imposition of an interim care order shortly after her birth and the child had been safeguarded by the Children's Service ever since.  Every effort had been made to enable her to be safely parented by her birth parents, starting with Serendipity where the assessment was extended beyond the usual three months to some six months.  Towards the end of that assessment, the mother had decided to leave the care of the child to the father, only for him to be overwhelmed by the responsibility of it.  The child had then been given a further opportunity, notwithstanding the recommendation of Serendipity that the mother could not care for the child in the short, medium or long term, to be rehabilitated with the mother by the creation for the first time in the Island of a mother-baby foster placement.  Although we did not hear evidence from the foster carer, we were impressed from what we read by the very supportive and nurturing role she appeared to play in trying to make that placement successful.  In the end the mother decided to walk away, leaving the child with the foster carer and returning to the father. 

71.      We did not see any inconsistency as between the observations by Dr Williams of the lack of inter-subjectivity between the mother and the child, shared by Miss Jenner, and the good scores in the observation logs maintained by Serendipity and the positive comments in the observation logs maintained by the foster carer in the mother-baby foster placement.  The observation logs maintained by Serendipity were concerned with the basic care of a baby (bottle feeding, changing nappies etc.) and that is not enough.  The observation logs maintained by the foster carer reflected the encouragement given by the foster carer to the mother, it being borne in mind that each log was countersigned by the mother.  These logs in our view show the foster carer was doing everything she reasonably could to encourage and support the mother in trying to make this placement work.  It is the placement diary maintained by the foster carer that is more revealing and from which one can track the deterioration. 

72.      Whilst we can appreciate that being under observation could be stressful at first, Miss Hextall said that in her experience, after a short while, parents at Serendipity forgot about the CCTV and audio monitoring and settled down.  The mother had more than enough time to settle into the mother-baby foster placement and made no complaint of which we are aware about the environment there and the attitude of the foster carer, which as we have said appears to have been most welcoming and supportive.  We do not accept, therefore, that the observations made by Dr Williams as to the lack of inter-subjectivity, can be put down to stress.  We noted in this respect this entry in the placement diary of the foster carer for 1^st November, 2012:-

"Bryn [Dr Williams] observing at 3.30 p.m. - Wow [the mother] can really perform in front of an audience."

73.      With respect to the mother's medical problems, she produced three copy letters showing appointments at hospitals in Devon and Jersey, but no medical report had been produced.  Her GP Dr Overton in his letter referred to above mentioned stress related illness but made no reference to any such medical problems.  We were prepared to accept that the mother felt pain from time to time but in our view there was no evidence to indicate that her ability to care for the child had been impaired in any material way or that the assessments had been undermined by any such medical problems. 

74.      It is true that the child was developing normally but this was attributable to the actions of the Children's Service who had safeguarded her from birth.  If left to the sole care of the mother we had no doubt that (consistent with our findings on the threshold criteria) the child would have been likely to have suffered significant harm.  

75.      As for further assessments of any support that might be available from the family we concluded that the Children's Service had made every reasonable effort to assess the same.  The mother's father had not been co-operative either with Miss Jenner or the guardian and we accepted Miss Jenner's evidence that, quite apart from the serious issue of his conviction, he had not shown himself to be a devoted grandfather. 

76.      Both Dr Williams and Mrs Whitehead stressed the importance of the child being able to secure and maintain a safe attachment relationship with a safe adult as soon as possible.  Mrs Whitehead advised that the most significant period is the first three years "with the nature of the relationship starting to become apparent within the first six to twelve months, although the relationship continues and develops throughout the lifespan".  Dr Williams agreed with this but advised that the child's best interests were likely to be best served by making long-term decisions about her future within the timescale of twelve months.  Both experts advised that time for the child was of the essence.  

77.      As mentioned previously Dr Williams had further advised that research provided by Ward et al, 2012 highlighted the risk for young children after the age of six months where the parents have demonstrated a lack of ability to change:-

"This research suggests that children whose parents have had intervention for a period of six months and who are unable to demonstrate a shift into an inter-subjective and safe relationship with children place the children at very high risk of long-term adjustment difficulties, inconsistent parenting and family breakdown."

78.      Whilst Dr Williams acknowledged that his psychological assessment of the mother had changed its emphasis from rehabilitation to disposal (in our view inevitably) because of her decision to leave the mother-baby placement and agree to adoption, he was clear that the lack of access to her medical records and the lack of any input from an educational psychologist would not have altered his advice.  The fact of the matter is that all of the points raised by Miss Davies on behalf of the mother were put to the experts and (unlike the facts in D MCG-v-Neath) none of them advised that any further assessments should be carried out.  This was not a case of the Court refusing to order an assessment recommended by an expert.  Indeed the mother's parenting capability had been assessed more than fully.  All avenues towards rehabilitation had in our view been reasonably (arguably more than reasonably) explored.  

79.      The "context" to which Lord Nicholls was referring in the passage from Re S cited above was this:-

"[94]   More difficult, as a matter of legal principle, are cases where it is obvious that a care order is in the best interests of the child but the immediate way ahead thereafter is unsatisfactorily obscure.  These cases exemplify a problem, or a "tension", inherent in the scheme of the Children Act 1989.  What should the judge do when a care order is clearly in the best interests of the child but the judge does not approve of the care plan?  This judicial dilemma was described by Balcombe LJ in Re S and D (Children: Powers of Court) [1995] 2 FLR 456, 464, perhaps rather too bleakly, as the judge having to choose between the 'lesser of two evils'".  

80.      In our view, the way ahead for the child was not unsatisfactorily obscure.  In all care plans there are bound to be uncertainties, but as Lord Nicholls said at paragraph 99:-

"[99]   Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future.  The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the local authority can foresee what will be best for the child at that time.  This is necessarily so."

81.      The care plan for the child gives a clear picture of the way forward for the child, namely permanence through adoption.  The capability of the parents had been fully explored, as had the possibility of the wider family caring for the child.  All avenues had been explored.  There were no remaining uncertainties, which in our view needed to be resolved first.  Lord Nicholls gave examples of the sort of uncertainties whose nature is such that they are suitable for immediate resolution in whole or in part, as in the case of Re CH (Care or Interim Care Order) [1998] 1 FLR 402, where the judge had made a care order without hearing expert evidence on a disputed issue.  In this case we had heard expert evidence on the disputed issue namely the capability of the mother to care for the child within the child's timescales.  There were other cases, he said, on the other side of this "somewhat imprecise line" where uncertainties involved in the care plan would be worked out after a care order has been made and whilst the plan is being implemented.  There were no such uncertainties in this case. 

82.      The adjournment sought by the mother would not be "planned or purposeful".  Although the draft directions put forward by Miss Davies were skilfully formulated to give that impression, the Court would simply be procuring further advice and information about the mother that none of the experts said was necessary, when it was clear now that the mother could not change within the child's timescales.  It would be all about postponing the decision in order to more fully assess the mother's therapeutic needs and to give the mother yet another chance, contrary to the principle contained in Article 2(2) of the Children Law that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the welfare of the child.  It would be more than likely in our view that yet further applications for adjournments would follow.  To go down that road would be to jeopardise the window of opportunity now available to the child to secure and maintain a safe attachment relationship with a safe adult.  

83.      We concluded that the making of a final care order and freeing the child for adoption was in her best interests. 

84.      In terms of the mother's withholding of her consent, the issue was whether there was any merit in her application for an adjournment.  If there had been uncertainties whose nature was such that they were suitable for immediate resolution, then we could see that the decision to withhold her consent pending such uncertainties being resolved would have been reasonable.  However, the Court found that there were no such uncertainties.  The Court had to determine the child's future now and in the light of the evidence before the Court, refusing her consent, although understandable in emotional terms, was not objectively reasonable.  She would be condemning the child to living with foster carers for an indeterminate period of time whilst, as the guardian said, waiting for her mother to change.  We therefore concluded that she was withholding her consent unreasonably.  

85.      Furthermore, we were satisfied that the mother was incapable of caring for the child, pursuant to Article 13(2)(g) of the Adoption Law.  She herself had acknowledged in her final statement that this was presently the case, and she had demonstrated that by walking away from that responsibility.  We saw no reason to limit the meaning of "caring" in the context of this provision to the basic care of a child.  Basic care is not enough.  As the welfare checklist contained in Article 2(3) of the Children Law makes clear, a child's needs are both physical and emotional, and it is generally accepted that emotional harm can be just as harmful as physical harm.  In our view, therefore, the evidence was clear that the mother was not presently capable of caring for the physical and emotional needs of the child on a consistent basis, and would not become so within the child's timescales. 

86.      Accordingly for all these reasons, we approved the care plan, made a final care order and freed the child for adoption.  In doing so, we took into account the rights of the mother under Article 8 of the European Convention on Human Rights to respect for her private and family life but the child's rights were also at stake and her rights must be the paramount consideration (see Yousef-v-The Netherlands [2003] 1 FLR 210). 

87.      There were issues during the hearing as to the frequency of letterbox contact between the father and the child, but having heard the evidence of the experts, the father was able to accept the proposals contained in the care plan, namely that post adoption there should be annual letterbox contact. 

88.      Dr Williams had raised a concern as to whether it was in the child's interest to be adopted locally.  This was not a matter for the Court, but having heard the evidence of Mrs Michael, we had every confidence in the approach of the fostering and adoption team to this issue and in their ability to manage any of the risks involved in the adoption process. 

Authorities

Children (Jersey) Law 2002.

Adoption (Jersey) Law 1961.

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

Re F and G (No. 2) [2010] JCA 051.

Devon County Council-v-S [1992] 2 WLR 273.

Re JS and BS [2005] JRC 108.

Re S (Minors)(Care Order: Implementation of Care Plan [2002] UKHL 10.

D MCG-v-Neath Talbot County Borough Council [2010] EWCA Civ 821.

Re CH (Care or Interim Care Order) [1998] 1 FLR 402.

European Convention on Human Rights.

Yousef-v-The Netherlands [2003] 1 FLR 210.