Care order - granting of a final care order..
Before : |
J. A. Clyde-Smith, Commissioner, and Jurats Morgan and Milner. |
Between |
The Minister for Health and Social Services |
Applicant |
And |
(1) A (The Mother) |
First Respondent |
And |
(2) H (The Child) |
Second Respondent |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF H (CARE ORDER)
Advocate C. Hall for the Applicant.
Advocate J. R. Giovannoni for the First Respondent.
Advocate H. J. Heath for the Second Respondent.
judgment
the commissioner:
1. On 11th July, 2013, following a three day hearing, the Court granted the applicant ("the Minister") a final care order in respect of the second respondent H ("the child") who is nearly 2 years of age and freed her for adoption. The application was opposed by the first respondent ("the mother"). We now set out our reasons.
2. The Court heard evidence from the adult psychologist, Dr Joshua Carritt-Baker, the mother's key worker at the Alcohol and Drugs Service, Mrs Susan Terry, the social worker, Ms Rosena Connor, the mother and the guardian, B. Although the application was opposed, there was little dispute as to the material facts.
3. The mother, (who is 25), has endured an extraordinarily difficult childhood and has a history of drug abuse, commencing at the age of 11 and culminating with heroin dependence and associated criminal offending. Up until the end of last year, she had fifteen convictions for 55 offences, 35 of these being for drug related larceny.
4. The mother's first child, C, was born in 2006. The mother's failure to engage with the relevant agencies and her return to heroin use resulted in his being placed in the care of the mother's aunt on 22nd September, 2006, where he has remained ever since. On 27th April, 2007, the mother was sentenced to some 35 weeks imprisonment for possession of drugs, larceny and breach of a previous probation order. She was released on 5th September, 2007. On 7th September, 2007, the Court granted the Minister an interim care order and gave the aunt leave to apply for a residence order in respect of C, which was granted to her on 24th June, 2008.
5. On 21st December, 2010, the mother was admitted to Plemont Ward after attending Accident and Emergency following a near fatal accidental overdose on Fentanyl. It was during this stay in hospital that she discovered that she was pregnant with the child. The father, E, has a history of criminal convictions, of substance misuse and heavy drinking. He does not have parental responsibility for the child and has taken no interest in the child's life.
6. The child was born in July 2011 at 36 weeks' gestation by emergency caesarean section, following a diagnosis of foetal heart distress and meconium stained liquor. She was 2.2kgs when born. The diagnosis for the low birth weight was possibly due to Hepatitis C exposure. Following the birth, concerns were raised by SCBU as to the mother's presentation and increasing absences. On 18th August, 2011, she was discharged with the child and moved to a flat at D, where she was assigned a key worker for help and support.
7. The staff at D became concerned at the number of people going back and forth from the flat (something which had apparently been a concern when the mother previously lived there with C), many of whom were suspected to have involvement in drugs. Indeed, two used needles and a cooking-up spoon were found in a black bin bag, which had come from the mother's flat. The mother denied any drug use at that time (a denial which was supported by a negative drug test) and said it must have been one of her friends who had used the toilet and later tried to dispose of the items. She was able to explain one or two of the visitors as not being involved in drugs, but accepted in cross-examination that many of them were inappropriate and that she had been warned by the staff at D that if she did not stop seeing them, she would be evicted. She did then comply with that ultimatum.
8. When the child was six months old, a core assessment was carried out. As Mr Giovannoni pointed out that contained many positive aspects, including that the mother had a warm, affectionate relationship with the child, and demonstrated that she could emotionally provide all the child's needs at that stage of her development. She was, of course, living in the supportive environment of D and the assessment notes her need to remain substance free if she was to continue to be able to care for the child effectively. In that context, it asked her to consider that many of her friendships tended to be with people associated with the drug community which could have a significant impact upon her capacity to remain drug free. The need to continue to work with the Alcohol and Drugs Service was stressed, as was the need to attend all appointments made by the professionals involved.
9. A risk assessment was undertaken in May 2012, when the child was ten months old. That concluded that whilst the child received a high level of good care from the mother and that the mother could meet a lot of what the child needs, there was evidence to suggest that the mother's continued association with particular individuals was having a negative impact upon her own capacity to abstain from substance misuse. In the opinion of Miss Jayne Isaac, the designated social worker at the time, the child remained at risk of significant harm whilst the mother continued to come into daily contact with inappropriate, substance using and violent adults.
10. Whilst the mother completed a MIM assessment in June 2012, she would frequently either miss appointments with professionals or arrive very late. A pre-proceedings review meeting was held on 1st August, 2012, which the mother did not attend. At that time, she informed the Children's Service that she had commenced a relationship with F, a heroin addict, and who is the father of the child she is now expecting this coming September.
11. In September 2012 the mother moved with the child from D to a flat in St Clements provided by the Housing Department. On 25th September, 2012, the mother was bound over for 6 months for shop larceny. A child protection agreement was drawn up and signed by the mother on 1st October, 2012. It was clear that this plan was not adhered to as set out in the social worker's letter of 14th November, 2012, complaining that she had not attended any appointments, had not given access to her flat to enable the home situation to be monitored and had not attended any of the Alcohol and Drug sessions which had been planned. As a consequence, she was warned that the Children's Service would be seeking legal advice as to how to protect the child.
12. Over Christmas 2012, the mother had C to stay with her and the child and this by agreement with the aunt. After a home visit on 24th December, 2012, and the signing of a child protection plan for that holiday period, the social worker had no immediate concerns for their welfare.
13. On 8th January, 2013, the health visitor informed the Children's Service that all appointments from 27th December, 2012, had failed. She was concerned. On 18th January, 2013, the Children's Service was informed that the police were looking for the mother, who was suspected of stealing alcohol with F. On 21st January, 2013, the mother attended a core group meeting, admitted to stealing alcohol to sell for drugs and admitted to using illicit drugs. She agreed to an assessment with Dr Williams (which was never undertaken). On 23rd January, 2013, the mother was arrested and spent a night in custody; the child being looked after by the aunt for that night. On 24th January, 2013, the mother appeared in Court and was released on bail.
14. On 28th January, 2013, the mother informed the Probation Officer during a probation appointment that she could not care for the child whilst trying to come off drugs and the Children's Service therefore explored with family members whether any of them would be willing to care for the child.
15. On 29th January, 2013, the police sought to arrest the mother for breaching her bail conditions diverting her Subutex and larceny. She went missing with the child in a bid to avoid the police and was not located until 31st January, 2013, when she was taken into custody.
16. On 31st January, 2013, the mother was arrested by the police and entered into a voluntary agreement for the child to be placed in foster care as there were no other suitable options available. In a telephone call with the social worker on 1st February, 2013, the mother confirmed that she was pregnant and stated that she needed help to stay off "using". She admitted using illicit Subutex.
17. The mother failed to attend contact sessions with the child and to attend the Court on 8th February when an interim care order was granted and directions given.
18. On 22nd February, 2013, the Children's Service wrote to the mother in the following terms:-
"I am writing to you because I am so concerned that you have not attended any meetings set out by the Children's Service.
These meetings have consistently been set up to promote contact between you and [the child], however because you have not attended any of the meetings [the child] has now not seen you for a total of 22 days.
You did see [the child] briefly on the 05.02.2013 (17 days ago) but this was in a meeting and was not the quality contact [the child] deserves.
For your information, you failed meetings on the:-
06.02.2013 - Contact Meeting.
08.02.2013 - Court and contact meeting.
13.02.2013 - Review Conference and contact meeting.
15.02.2013 - Contact Meeting.
18.02.2013 - Contact Meeting.
20.02.2013 - Looked After Children's review.
I am very concerned that you have not grasped the enormity of this situation and that you have made the choice not to see [the child].
I will continue to telephone you and to ask the professionals working with you to continue to encourage you to attend meetings with the Children's Service, however this really must come from you [the mother] and you really should show your commitment to [the child] by attending meetings to arrange contact."
19. In his report of 16th April, 2013, Dr Gafoor of the Alcohol and Drugs Service stated that he "eventually" interviewed the mother on 25th March and 10th April, 2013, after she had failed to keep three earlier appointments. She tested positive for prescribed methadone, Subutex and an amphetamine type "legal high" named methiopropamine, also branded as "blow", the latter, in his view, presenting a serious risk to her unborn child. Despite the full range of treatment options, spells of imprisonment and a near fatal overdose, the mother, he said, had been unable to conquer her substance misuse and remained ensconced in the local illegal drugs scene, continuing to engage in illicit and risk taking behaviours. He did not consider her suitable for unsupervised contact with her children, given her poor treatment compliance and chaotic lifestyle.
20. On 21st February, 2013, the mother was sentenced to 12 months' probation as a result of larceny offences when she was stealing alcohol in order to sell it to obtain money to buy illicit drugs. The offences were committed between 9th November, 2012, and 22nd January, 2013. On 24th May, 2013, she was sentenced to a total of 6 months' imprisonment, 3 months for further larceny offences, committed before 3rd May, 2013, and 3 months, consecutive, for the breach of the Probation Order. She is due to be released on 23rd September, 2013.
21. The Minister applied for a final care order and an order freeing the Child for adoption. The Court determined the two applications before it in the round following In the matter of the T Children [2009] JRC 231. The mother's position was that the child should be returned to her care under a supervision order to take effect from her release from prison. Alternatively, the Court should make a care order with a view to a phased reunification of the child with the mother. The application for a freeing order should be dismissed. The mother accepted that the second part of the threshold was met, namely that 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.
22. For the reasons set out below, there were real difficulties with the orders sought by the mother and in reality, what she was seeking was an adjournment of the matter so as to give her a chance to demonstrate that she could change within the timescales of the child.
23. Dr Carritt-Baker carried out a cognitive assessment of the mother and she exhibited quite low functioning across most areas. Given her presentation at interview (undertaken over two days) he was somewhat surprised that the results were as low as they were, which he said might have been attributable to a number of factors, namely her pregnancy, she was quite depressed, she was being maintained on prescription opioids which have a direct effect on thinking and information processing and the assessment was quite stressful and draining and she may have found it difficult to engage properly and sustain attention. He thought her actual abilities were somewhat higher than the results showed and it was reasonable to say that her abilities fell mainly in the bottom 10% of the population with some areas of ability above this. He did not think it likely that her parenting capability was greatly impaired by her cognitive functioning.
24. Her use of substances makes it more difficult, he said, to sufficiently separate the adverse effects of the substances used and to be able to say that she exhibits a behaviour pattern which achieves the threshold for a diagnosis of a specific personality disorder. A combination of various mental issues with substance issues can mean that a person appears to have underlying personality problems but it is later found that a significant part of those difficulties diminishes once they have successfully addressed the substance misuse. Substance use may mimic personality disorder. Overall, the most likely scenario he advised was that the opiate/opioid use continues to present something of a direct barrier to parenting in the medium term. It seemed that there had probably been an on-going interaction between her substance use and all of the other factors that are likely to interfere with successful parenting, such as depression and other mental health problems, relationship functioning and lifestyle and associates. These remained quite complex problems for the mother.
25. The mother maintained to him that her current relationship was different to previous ones and that her substance use had been rather more regulated, albeit under her own control. If these things are the case, then he advised that at least to some reasonable degree it may represent the beginnings of the process of stabilisation that can occur as people move to the stages of early adulthood. This can be a fairly slow but nonetheless very real process whereby significant adolescent and early adulthood problems are seen to resolve quite considerably through a combination of spontaneous remission due to general development and professional input. The difficulty was that the mother had a chaotic lifestyle, even quite recently, and it was not really possible to say that the process of stabilisation had progressed very far; it may have done, but he would really want to see a period of sustained engagement with services with the mother not being in prison in order to have a clearer picture of that.
26. It was difficult, he advised, to be clear about the rank ordering, but the main issues would seem to be:-
(i) Substance use,
(ii) the social behavioural and other factors directly associated with substance use and the obtaining of substances, and
(iii) mental health and other relationship functioning issues.
27. Being intoxicated is an evident and direct impediment to parenting, but, as the mother indicated to him, it is often the associated factors that mean that parenting becomes impossible; acquiring money through criminality; the associations and lifestyle issues that go with "street" drug use (including legal drugs obtained through illicit means).
28. The problems experienced by the mother were likely to require quite a complex package of parallel treatment for substance use and psychological issues. He gave an overview of the kind of interventions that might be relevant for addressing her psychological issues but no specific proposals were put forward; that would clearly require further assessment. She would need, he said, to engage in such interventions. Anyone who requires this sort of extensive multi-disciplinary treatment is, he said, unlikely to have a high capacity to engage, simply because of the problems that require treatment. Currently, the mother had been unable to sustain abstinence - that is often the case until people are engaged in the right treatment package. Overall, he described her capacity to engage as perhaps moderate. The prognosis for change could only be described as moderate at this stage; there is evidence of spontaneous early adulthood changes that may form the basis for successful therapeutic interventions but there is also evidence of significant on-going problems. The problems experienced by the mother posed multiple risks to the child. They are, he said, perhaps primarily a risk of physical and emotional neglect as well as risk of exposure to physical harm from others.
29. As to her motivation, he advised that her general psychological profile was likely to interfere with her ability to work with professionals. Whatever level of motivation she has, it is currently far from clear that it will be sufficient to overcome the barriers that seem to exist in relation to her engaging with therapeutic and other services (once she is released from prison). There is, then, likely to be some on-going and serious divide between her expressed motivation and her actual ability to change.
30. In terms of the period of abstinence from drug use required before lapses became minimal, he advised that six months of regulated prescription use and abstinence would be regarded as a minimum but realistically, twelve to eighteen months would be required to be confident that changes are likely to be sustained over the time frame relevant to raising children.
31. He observed contact between the mother and the child in prison and this had been positive; the child had seemingly maintained a reasonable bond with the mother, despite the long break in contact and there was a fairly constant stream of verbal and pseudo-verbal interaction between the child and the mother, who seemed to be genuinely attuned to her needs. These were all indicators of the continuation of some real degree of attachment relationship between them. However, he said that if the mother continues as she has in the past, then the child is likely to be seriously harmed in a number of ways, one of which will involve attachment. It is probably the wider exposure to emotional and physical threats that would do the real harm. Developmental needs are likely to be significantly neglected if the mother is unable to sustain a significant period of improved functioning and engage in appropriate treatment and interventions.
32. In evidence, Dr Carritt-Baker said that he did not think "on the balance of probabilities" that the mother would engage with the necessary interventions. It was a "tall order" he said for her to turn her life around. There was a medium risk of her returning to her previous lifestyle; the serious issues in her life making substance abuse more likely. There was only a low chance of her changing spontaneously. Her capacity to engage was low to moderate at best, and the risk of disengagement moderate to high.
33. It was difficult for him to comment on whether F was a supportive factor without assessing him, but in the absence of an assessment, he represented a risk factor; it would be better for her to have a relationship with someone not involved in the drug scene. The birth of the new child would inevitably delay any intensive psychological therapy that the mother may require.
34. He agreed that it was very important for the child to have a permanent placement and that it would be wrong for the child to be placed back with the mother. The choice, he felt, was between long-term foster care and adoption. Adoption does not resolve all of the issues and one of the benefits of long-term fostering was that people liked to remain part of the biological family. He fully understood the benefits of adoption, which was clearly attractive.
35. It was put to him in cross-examination that the mother had already experienced a period of stability in prison. He said that in prison there were limited options for her; the need was to see what happened when she was released. It was suggested to him that there would be a better picture for the Court three months after her release. He accepted that the Court might have more information at that stage, but was not convinced that it would have a better picture of the overall situation.
36. Mrs Terry is a psychiatric nurse employed at the Alcohol and Drugs Service and has been a key worker for the mother for some three years. The mother, she said, has a long history of dependency on opiates and excessive drinking and more recently, poly drug use (i.e. where the mother is not dependent on any one drug) and she finds it difficult to organise appointments and often misses them; falling out of any treatment. They have tried to help her by finding convenient times, phoning her to remind her and accompanying her to appointments. The concern she felt is that nothing has changed in the mother's social situation. In order to succeed, she needs to change her lifestyle, breaking away from people that she knows and who are involved in the drugs culture, moving on to other relationships. Mrs Terry had seen the mother with other drug users within the last year and had received reports from another key worker to the same effect.
37. Following the move from D to a flat in St Clement provided by the Housing Department in September 2012 the mother disengaged from Alcohol and Drugs and had been erratic ever since. Mrs Terry was not confident about the relationship with F, which she said was not helpful.
38. The mother was generally able to self-detox but found it difficult maintaining abstinence, and to stay with any treatment strategy. Two users together do not provide the best outcomes. She described the prospects of the mother moving away from her present lifestyle as "None".
39. The mother was currently on a prescribed dose of 20 mls of methadone a day. What the unborn child required was a stable supply. Any sudden drop would cause the unborn child to suffer and could lead to a miscarriage. The mother had, however, chosen to reduce methadone intake by 1 mls per week (which is subject to review in case she encounters difficulties) but even so, the child will be born methadone dependent albeit at a relatively low level.
40. The mother had not maintained abstinence from drugs before save when pregnant, turning to drug use after each birth. They had advised that the mother attend Silkworth Lodge; a residential course which was itself demanding. It was not possible, however, to take a child there.
41. Ms Connor had been the designated social worker from 19th March, 2013, and had therefore relied to a great extent on the reports prepared by the previous social worker, Ms Tanja Tinari and the documentation held by the Children's Service.
42. The care plan dated 4th February, 2013, prepared for the interim care order proposed that the child remain in foster care whilst assessments were undertaken and the mother given the opportunity to engage with drug treatment and to remain abstinent from drugs. The mother had instead severed all contact with the child, being concerned with her own needs over those of the child, and continued with her drugs use and associated criminal activity. As a consequence, the care plan was changed on 16th May, 2013, seeking permanency for the child in an adoptive placement.
43. There had been some support for the mother from her family, but not when she was "using" and therefore that support had been inconsistent. She had an elderly grandmother (aged 79/80) and an aunt in Jersey (who cares for C), together with a brother (18) and a sister (16). Her mother and half-sister lived in Madeira and her father in the UK. The aunt and grandmother had been approached but could not help with the child and no one else in the family had come forward.
44. In her view and that of the Children's Service, adoption was in the child's best interests as it achieved permanence and stability. She needed to belong to a family, something which long-term foster care could not provide. The adoptive parents would take ownership of her. There were currently two sets of prospective adoptive parents and matching was due to take place the following week. Introductions could commence in late August or September of this year. Contact with the mother would be reduced over some seven weeks, with three more direct contacts ending with a last goodbye contact. Consideration was still being given as to whether the child should have on-going contact with C; in particular, they had to assess the possibility of the placement being identified through such contact and undermined.
45. Ms Connor maintained that the child had suffered actual significant harm. Reliance was placed upon two incidents, described in paragraphs 61 and 62 of Ms Tinari's report of 4th February, 2013. The first incident took place at a core group meeting in January 2012 when the mother became aggressive and angry and was shouting while holding the child in her arms. As Mr Giovannoni pointed out, the core assessment, when describing the same incident, noted that the child continued to feed from her bottle "without any evident distress". The second incident was on 16th November, 2012, during a home visit by Miss Tinari with the police when the child mirrored the mother's behaviour by shouting at Miss Tinari in "babble" and pointing her finger at her while the mother was shouting. At paragraph 52, Miss Tinari also says she observed some very concerning behaviours being displayed by the child such as uncontrollable screaming for no reason, screaming if the child deems a person to be shouting at the mother, throwing objects across a room and a visible fear of the mother leaving her, which raises some initial concern with her with regard to attachment.
46. The foster carer had informed the guardian that there were many concerning aspects of the child's presentation when first placed in her care. She would seek attention from any adult and would put out her arms to be picked up by anyone she met; she would scream for attention and continue screaming for long periods (at times for up to an hour); she would eat anything and everything and would not stop when she had eaten enough. The child would search under the sofa for fluff from the carpet and would then attempt to eat it. She appeared to have little or no experience of playing with toys or interacting with other children. She was not using words but would scream to gain attention. She has since settled well and was making good progress.
47. It was put to Ms Connor in cross-examination that the mother had had too many social workers over too short a period of time and that this had contributed to a downward spiral last year. The designated social worker from May to August 2011 was Ms Alison Tandy. She was replaced by Miss Isaac between August 2011 and August 2012 when she went on long-term sick leave. Mrs Irene Hansford, the senior social worker, stepped in between August and October 2012, when Ms Tinari became the designated social worker. She stayed until February 2013 when she took maternity leave. Ms Connor responded that you cannot attribute the mother's downward spiral to the changes in the social workers. It was the mother who would not engage with them; the support was there consistently for her. She, Miss Tinari and Mrs Hansford were all part of the same child team. They were aware of the mother's cognitive difficulties and that is why Mrs Terry, who was her key worker for some three years, was chosen to take the lead in contacting her.
48. In her view there had been no real improvement in respect of the issues identified in the core assessment carried out when the child was six months old living with the mother in D; indeed, events mirrored those in respect of C. The issues are the same for both children. The current engagement is due to the mother being in prison where there are limited options for her. If released, Ms Connor believed the same issues would arise.
49. The mother described how Miss Isaac became her social worker soon after she moved to D. At first it took time for her to get used to her, but in time they engaged well (as confirmed by Miss Isaac). She had her mobile and direct line and often phoned. Their meetings were reduced as she engaged more. In due course, Miss Isaac became ill and was replaced by Mrs Hansford, who the mother said she did not get on with. She felt Mrs Hansford was critical of her for the lack of things in the flat at St Clement, which she had moved into in September 2012. She did not like it there. They were old flats, damp and cold with no double-glazing. She did not want to go there. Because of her change of address, her health visitor also changed and the new health visitor in St Clement was not very good. At times the new social worker, Miss Tinari, would turn up at her flat in St Clement unannounced, but she was unable to hear her as there were two front doors with a large space between them and no door bell. She said she did engage with the Children's Service after the child's birth, turning up to important meetings, but admitted that she started to disengage towards June or July 2012.
50. She said she had last taken heroin some three years ago before the conception of the child. She had come out of prison clean in around December 2010 (she had been imprisoned twice in 2010 for larceny offences) and had overdosed on Fentanyl. It was then that she found that she was pregnant with the child. She first took Subutex obtained illicitly some three months after the child had been born. She sought help from the Alcohol and Drug Service and she was prescribed Subutex for three months or so, but then taken off Subutex and put on Methadone. The pharmacist had received calls that she was diverting Subutex, which she denied. They would then get her to place it in her mouth in front of them and watch it dissolve which it would do in 30 seconds or so. She described how she could detox herself and be clean for a little while.
51. The Alcohol and Drug Service had recommended her Silkworth Lodge, which would have meant her missing Christmas. She was having C and wanted to be with the children over the Christmas period. She had been offered the Silkworth Lodge in the past but you had to be clean before starting. On one occasion, just after the child had been taken off her, she had taken a legal high known as "blow".
52. Her Methadone treatment was now going well. As Methadone has no "blocker", she had been tempted in the past to use illicit drugs on top but this had not taken place in prison. She was reducing her 20 mls prescribed Methadone by 1 mls a week for the sake of the new baby and it would be down to some 6 mls at the time of the birth. After the birth the Methadone would either be reduced or increased, whatever was required to stabilise her. She wanted to carry on for the sake of the child and the new baby. She felt committed and ready to do this. Every time she had detoxed before, she would have cravings for drugs and would think about them constantly. She does not have those cravings now and does not think about drugs. She feels different this time.
53. Some of the people who had been visiting her at D had been friends not involved in the drugs culture. One, for example, was her godfather who was visiting but she did stop those who were involved in the drugs culture from coming to the flat when told to do so and has not associated with any of them for a long time.
54. She had a good relationship with F - the best she had ever been in. She gets on well with his family, who are close and nice. She moved in with him after the child had been taken from her on the 31st January, 2013, and started to go and meet his family regularly. They got on well. Before that, she had only met them "every so often". His family were really happy about the new baby - it was their first grandchild. He lives in a one bedroomed flat in St Helier, rented privately, and is looking for a two-bedroomed flat for after her release. He has a drugs conviction last year for importing a wrap of MDMA for which he received 200 hours' community service. He is currently unemployed but is looking for work. He is a heroin addict who relapsed before she started a relationship with him. He is on a Methadone programme of 40 mls a day.
55. Over the last Christmas period she had spent money on food, essentials and Christmas presents for the children and therefore stole to get money for drugs. She continued stealing to buy drugs when on probation. Even when on prescribed Methadone, any letter from the Children's Service or the lawyers or any bad news would make her want "to use".
56. She knew on 29th January, 2013, that the police were looking for her - Ms Tinari had told her. She knew that she would be arrested and she wanted time with the child before she was taken off her, as she knew her own family could not help. She went to a friend's house with a change of clothes, toys and food. She was taking only a small amount of illicit Subutex then. Once the child was taken off her, she did not engage. She thought she was going to jail and only saw the child twice as she found it really hard. The child had always been with her and it was really hard to see her and say goodbye. She thought she would never get her back and did not want to speak or see anyone. She found it hard to go out and speak to the Children's Service or to her lawyer. She did not answer her phone.
57. It was in May 2013 when she received a letter indicating that the Children's Service were looking to have the child adopted that she decided to engage and contact her lawyer. She then failed to attend Court due to a very powerful kidney infection and was then imprisoned. Her release date is 23rd September, 2013. The new baby is due on 3rd October, 2013. It was hard having the two children over Christmas as she was not used to it but she loved it. She admitted she struggled for money, but they managed. She will cope with the child and the new baby. She has F and her brother and sister, grandmother and aunt in Jersey to support her. She thinks she would cope well. If she struggles, she has F there to help and his family. The child is close to F and he loves her.
58. When asked about the likelihood of a relapse, she said she felt really committed and would do everything "even if it means sitting through therapy" - she will engage as all she wants is to have her children with her.
59. In cross-examination, she accepted that her engagement with the Alcohol and Drug Service had been poor, that she had not abstained from drugs for any length of time and needed psychological input. She said she had managed to care for the child even when under the influence of drugs. At St Clement, she had been "using" most of the time. That is why the Children's Service found it difficult to gain access - she didn't want them in. She would not use drugs in front of the child, but would go to the bathroom. She accepted that if she did relapse, she was likely to re-offend and that the drug culture often involves violence. For example, on 20th November, 2012, she admitted telling the police that her window had been broken, she thought over an old drugs debt of £170.
60. When referred to a log of 17th October, 2012, kept by Miss Tinari, that she had seen the mother and F who had appeared unkempt, she accepted that they were both "using" then. When asked why she had not relied on family support before, she said it was because she had relapsed and was on drugs and was ashamed - she didn't want them to know.
61. She did not want the child adopted and would not consent to her adoption. When she had had C, she was only 17 and had agreed to him residing with her aunt. A long time had elapsed and having the child had changed her a lot. She wanted the chance to be a better mother if she can be. She wanted to be given a chance - a last chance. It was better for her to address the issues now as she might be back here again with the new baby. She wanted to do this not just for the child, but for all of them. She would not consent to a freeing order. She wished she had realised sooner that it would come to this. She wished she could have stepped up earlier. She did not but she was stepping up now. No one had explained to her that the child could be adopted. She didn't feel people in the Court could comment on her relationship with the child because none of us had seen them together. The only person who could comment was Miss Isaac, who had been her social worker for a long time and knew how she was with the child. Ms Connor had not seen them together and the guardian had seen them together only briefly - how could they comment she asked?
62. In her report of 3rd July, 2013, the guardian said there was no evidence that the mother can maintain a commitment to remain on prescription Methadone for any period outside of the constraining environment provided in prison. The difficulties faced by her were compounded by her advanced pregnancy, a pregnancy which demonstrated her lack of planning and poor judgement. The child needed reliable parenting and a permanent placement while she is young enough to overcome early disruption. She recommended in her report that a full care order be made and the care plan approved. If the mother withheld her consent to the adoption, she recommended that the Court made a freeing order.
63. She told us that she was a strong advocate of meetings between the birth and adoptive parents so that the latter could have a sense of the person being described by the documents they would have read. Post adoption contact with the natural parents was possible if the natural parents supported the placement. It was not clear that this would be possible at this stage. She did not support the possibility of long-term fostering. That was suitable only for a much older child, who had a relationship with the natural family. A child aged two can more easily become established in a new family. Fostering was not in the child's interests.
64. She accepted in cross-examination that the contact between the mother and the child in prison which she had observed with Dr Carritt-Baker had gone well, but was not sure about the attachment. It was hard to know what the child expected of the mother who had not cared for her for some five months. She could not say whether the mother would be able to care for the child with support and treatment, as she could not say whether the mother would commit to the same - it would be a long and arduous process. It was necessary to see her out of the contained environment of the prison to see whether she really could commit; there was no period when she had done so since 2006. Since C, the same issues were repeating themselves - illegal drugs, larceny, prison - identical to the issues today.
65. It was not right to prolong the decision for the child. You need to look at the totality of the evidence, but the child could not be left not knowing her future. The mother had deprived her of all contact since 31st January, 2013, and could not even see that it was important to reassure her daughter that she was still there. Treatment had to be sought, not just offered. She did not get the impression from the mother that she was seeking her treatment - merely that she would go through with it if she had to. The guardian had looked at the history and all the help offered and said it was too late for the child. The Court had to be realistic.
66. There were no issues of the law to be applied in an application for a care order which is now well established and is summarised in the Court of Appeal judgment in the case of In the matter of F and G (No 2) [2010] JCA 051. We followed the principles as summarised by the Court of Appeal both in relation to the threshold and welfare stages.
67. In terms of the application to free the child for adoption, the mother did not consent, and the Court therefore had to be satisfied that her consent could be dispensed with on one of the grounds specified in Article 13(2) of the Adoption (Jersey) Law 1961 ("the Adoption Law"), namely that the mother:-
"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 persistantly ill-treated the infant;
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."
68. The Court of Appeal decision in F and G is once again the authority which sets out the twofold test to be applied when considering an application in the absence of parental consent, namely is the making of a freeing order in the best interests of the child and if so, is the parent's consent being unreasonably withheld? As to the latter, the Court of Appeal said this:-
"80. The Royal Court turned next to consider whether the mother was withholding her consent unreasonably (the father having consented). It relied on the explanation of this test as described by this Court at paragraphs 26-29 of Re JS and BS [2005] JRC 108 and it applied the principles there set out. In particular as it noted, the test is an objective one. A reasonable parent will give great weight to what is best for the child (see the observations of Lord Denning MR in re L (1962) 106 LOS JO 611 approved in re W (1971) 2 All Er 49) but a Court must be careful not simply to substitute its own opinion for that of the parent. As the Royal Court put it:-
'the question is whether the parental refusal comes within the band of possible reasonable decisions, not whether it is right or mistaken There is a band of decision within which no court should seek to replace the individual's judgment with its own.' [para 18]
81. Helpful in this context are the observations of Steyn and Hoffmann LLJ in Re C (A minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR at 272 as to the test:-
'Whether, having regard to the evidence and applying the current values of our society, the advantages for adoption on the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents. The reasonable parent is only a piece of machinery invented to provide the answer to this question."
69. As mentioned above, the mother's initial position was that the Court should return the child to her care under a supervision order which would take effect on her release from prison on 23rd September, 2013; that, Mr Giovannoni accepted, would entail an interim care order being imposed until that date.
70. A supervision order can be made in relation to a young child where the risk to the child can be met and the Children's Service and the parents can work together without the use of the more draconian care order. In the case of In the matter of O [2011] JRC 226, a supervision order was made in respect of a three year old child who had been living with the parents continuously for fourteen months, where the parents were implementing the parenting advice given to them by the Children's Service on a consistent basis and where the child was reported as thriving and being happy and content with her parents. The home conditions were clean and tidy and no drugs or drug paraphernalia had been observed during home visits.
71. In view of the mother's long history of drugs use, right up until or close to her recent imprisonment and her record of disengagement from the Children's Service and other agencies, such an order could not seriously be in contemplation in this case.
72. In terms of a care order, made with a view to a phased reunification of the child with her mother, this contemplated the Court imposing upon the Minister a different care plan to that which the Minister had put forward. That proposal ran across the division of responsibility between the Court and the Children's Service which is a cardinal principle of the Children Law (as with the Children Act 1989) as made clear by the House of Lords in Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815. Mr Giovannoni accepted in discussion that in reality what the mother was seeking was neither a supervision order nor a care order on this basis, but an adjournment of the Minister's application for a care order, together with the imposition of an interim care order under Article 30(1) of the Children Law. In his closing submission, he sought an adjournment on that basis for nine months. As Lord Nicholls said in Re S at paragraph 91:-
"An interim care order is 'holding' measure where time is needed before an application for a care order is ready for decision."
Interim care orders were not intended to be used as a means by which the Court might continue to exercise a supervisory role over the Children's Service in cases in which it was in the best interests of the child that a care order should be made. Quoting from the headnote in Re S:-
"Some uncertainties relating to the details of the care plan were suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application; other uncertainties could and should be resolved before the court proceeded, during a limited period of 'planned and purposeful' delay. Frequently the uncertainties involved in a care plan could only be worked out after the making of an order. Despite all the inevitable uncertainties, when deciding to make a care order the court should normally have before it a care plan which was sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child in the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, would vary from case to case, but if the parents and the child's guardian were to have a fair and adequate opportunity to make representations to the court on whether a care order should be made; the care plan must be appropriately specific. The court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of over-zealous investigation into matters which were the responsibility of the local authority."
73. The mother had accepted that the Court had jurisdiction under the second part of the threshold test, namely that on the balance of probabilities, the child "is likely to suffer significant harm....attributable to the care likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child".
74. Mr Giovannoni rightly cautioned the Court as to the extent of the hearsay evidence before it. Ms Connor had only recently been appointed as the social worker to the mother and we did not hear evidence from the earlier social workers, in particular Miss Tinari.
75. Hearsay evidence is, of course, admissible under the Civil Evidence (Jersey) Law 2003 but the Court must assess with great care the weight which may attach to such evidence, taking into account the factors set out in Article 6 of that Law.
76. We did assess that evidence with great care, having regard to those factors, but in fact very little of the history of this matter as set out in Miss Tinari's report was challenged by the mother. She was very open and honest in her evidence, we found, and readily acknowledged historical and very recent drug use and her disengagement from the many agencies that were there to support her. Frankly, the evidence of significant future harm, in particular future emotional harm and neglect to the child (if the mother did not change) was overwhelming and in our view rightly conceded by the mother.
77. When it came to the issue of past harm, we had more difficulty. We were conscious of the positive evidence of the warm and loving relationship between the mother and the child, as recorded in the core assessment and as witnessed by Dr Carritt-Baker and the guardian at the contact session at the prison. There were the two incidents related by Miss Tinari in her statement (which the mother accepted had taken place) and the report of the foster carers, all of which indicated to us that the child had suffered harm, but without more, we were not satisfied that it was "significant" and therefore we did not find that part of the threshold test met. The mother clearly loves the child and provides for her basic care and needs. It is the emotional harm and neglect that the child would be subjected to by the mother's on-going drug-taking and associated lifestyle that would be significant. As Dr Carritt-Baker said at paragraph 8.84 and 85 of his report:-
"8.84 Lifestyle, in the broad sense, is likely to be of far more relevance than parenting style as such. Emotional neglect involves significant disturbances in attachment formation and organisation but it is not that that constitutes the serious harm in emotional neglect. The research is now quite clear that emotional abuse in general (and the witnessing of violence in particular) can be as serious as direct physical and sexual abuse in terms of causing childhood problems and later psychopathology. This is evidently not because of the attachment problems it gives rise to (because lots of people have insecure attachment formations) but because of the chronic trauma and other problems.
8.85 If A continues as she has in the past then [the child] is likely to be seriously harmed in a number of ways, one of which will involve attachment. However, it is probably the wider exposure to emotional (and physical) threats that would do the real harm and which would example [sic] predisposed to later personality and mental health problems."
78. Having jurisdiction pursuant to the second part of the threshold test (future harm), the Court moved on to consider the welfare stage. The key issue was the capability of the mother of meeting the child's needs. The mother accepted that if her drug taking and associated lifestyle continued, the child would be likely to suffer significant harm. She therefore had to change if she was to parent the child in the future. She wanted the chance, the last chance, to show that she could change.
79. The deep distress of the mother during the proceedings and when giving evidence was heart-rending and the natural instinct of the members of the Court was to do everything they could to give her that last chance. The Children Law, however, requires, rightly, that the child's welfare shall be of paramount consideration. Even so we strained to find a way of giving her that last chance that was consistent with the Child's welfare.
80. The evidence before the Court was singularly unhelpful. The mother had already lost one child to her drug taking, albeit (and fortunately for the mother) to another member of her family. One might have thought that that painful experience would have provided the mother with the motivation to ensure that history did not repeat itself. Notwithstanding this, she continued with her drug taking and associated lifestyle and became pregnant again. On this second occasion, despite the support (again) of D, the Children's Service, the Alcohol and Drug Service, the health visitor, her doctor and other professionals, she failed to change her lifestyle. We did not think that the changes in the social workers could in any way be blamed for this. Clearly it is desirable for there to be as much continuity as reasonably possible in the allocation of social workers but in running any service it was inevitable that there would be unavoidable changes as happened here through illness or pregnancy or for other reasons. It was for the mother to make the necessary changes and we agreed with Ms Connor that the support of the Children's Service was always there for her.
81. Even at the stage when the child had been removed from her care and an interim care order imposed, the care plan of 4th February, 2013, still gave her the opportunity to engage with drug treatment and remain abstinent in order for her to care for the child. If there was a last chance, then this was surely it, but she did not take that opportunity; indeed she did the very opposite, continuing with her drug taking and associated lifestyle and cutting off all contact with the child.
82. Now, from the secure environment of the prison where she is stabilised on a prescribed dose of Methadone, she asks for another chance. She says she is motivated to change and that this time it is different but it is clear that her motivation can only really be tested once she is released back into the community. Mrs Terry advised that it was not detoxing itself that was the difficult part of becoming abstinent. It is remaining abstinent and sticking with the treatment that is hard. The mother has failed to remain abstinent in the past, save when she was pregnant. After the birth of each child she reverted back to drug taking. On top of the hard task of remaining abstinent, she requires psychological therapy, which is in itself demanding. There is no programme actually identified and any certainty when such therapy could realistically start. On top of all this she will have a new baby to look after with all the stress that will undoubtedly bring.
83. The child is nearly two. She has been in foster care for five months and it is now suggested by the mother that she should remain in foster care for another nine months (albeit with increasing contact with the mother), which would make fourteen months in all. The period of nine months put forward by her does not tie in with the advice given by Dr Carritt-Baker. He advised that realistically twelve to eighteen months from the time of her release would be required to be confident that changes were likely to be sustained across the timeframe relevant to raising children and so after nine months there would inevitably be a further adjournment, even if the mother had remained abstinent and engaged with the services. These are extremely long timescales in the life of this young child. The delay could be described as purposeful in the sense that its purpose would be to see whether the mother could sustain the necessary changes but it could not be described as limited or planned. It would simply be a question of the child waiting to see whether the mother could sustain those changes, during which time (an exceptionally long time in her timescales) the child would be getting older and becoming more and more attached to her foster carers.
84. Furthermore, in considering any further delay the Court had to take into account Article 2(2) of the Children Law, which required it to have regard to the general principle that any delay in determining the question with the respect to the upbringing of a child was likely to prejudice the welfare of that child.
85. Dr Carritt-Baker and Mrs Terry gave us no cause to be optimistic as to the chances of the mother sustaining such changes and positively engaging in therapy. Dr Carritt-Baker acknowledged that what the mother said about this time being different may represent the beginnings of a process of stabilisation that can occur as people move through the stages of early adulthood. It was not possible to say that this process, if it was taking place, had progressed very far as he needed to see sustained engagement with services after her release from prison to have a clear picture of that. Nor were we confident that the mother was really seeking therapy; it was something she was prepared to go through for another chance.
86. In our view, a delay of the kind that would be necessary here could not be described as a limited period of planned and purposeful delay of the kind contemplated by the House of Lords in Re S; it would be nothing more than a gamble on the mother being able to sustain change and this against the odds.
87. The current care plan is choate and the application for a care order is ready for a decision. To accede to the mother's application for an adjournment would be to reject that care plan. Far from rejecting it, we approved the plan as the only proper way forward for this young child, given the advice we had received and the circumstances and history. To adjourn the application would therefore be to fall into the trap of using an interim care order as a means to exercise a supervisory role over the Children's Service in a case in which it is in the best interests of the Child that a care order be made. We therefore approved the care plan and the contact arrangements and made a final care order.
88. Turning to the application to free the Child for adoption, it will follow that having approved the care plan and having regard to the provisions of Article 3 of the Adoption Law, we concluded that making a freeing order was in her best interests. Although Dr Carritt-Baker had been open to the possibility of long-term foster caring, we agreed with the advice of Ms Connor and the guardian that long-term fostering is more suitable for an older child, who had established a relationship with his or her natural family. At the age of two, the child can be given permanency with a new family, who can take ownership of her.
89. Dr Carritt-Baker explained that with the development of a child's brain the first memories will, on average, be from the age of three or four; if adopted now, therefore, the child will have no memory of this early part of her life.
90. We concluded that the mother was unreasonably withholding her consent to the child being freed for adoption. When asked to address the question whether, if the Court approved the care plan, the mother would then consent to the child being freed, she responded, understandably at an emotional level, by saying that she simply wanted the child to remain with her and her family; she wanted a last chance to see if she could change. The test is, however, an objective one and looking at the matter objectively, it is simply not reasonable to put the child's life on hold whilst everyone waits another year or eighteen months (from the mother's release on September 23rd, 2013) to see if she can first make the changes and then sustain them, taking into account her history. The welfare of the child required that she should have permanency through adoption now and any reasonable parent would take that into account. The mother's refusal to give consent, viewed objectively, did not come within the band of possible reasonable decisions.
91. We also took the view that the mother's consent could be dispensed with under the second part of Article 13(2)(g) of the Adoption Law on the ground that she is of such habits and mode of life as to be unfit to have care of the child. We were not given any authority over the use of this ground in the past, but taking the wording of the law at face value, it was incontrovertible, in our view, that the mother's drug taking and associated lifestyle did make her unfit to have the care of the child. The mother had conceded as much by agreeing that the child would suffer significant harm if returned to her care unless she changed her drug taking habits and mode of life. The mother's plea was for a last chance to change those habits and mode of life.
92. The Minister submitted that the Court could also dispense with the mother's consent under Article 13(2)(c) namely on the ground that she had persistently failed without reasonable cause to exercise her rights, duties, obligations and liabilities as a parent in respect of the child. We did not have time at the hearing to consider this ground with counsel in more detail. We were concerned with whether this ground related not so much to the day to day care of the child but to the broader legal rights, duties, obligations and liabilities that vest in any person with parental responsibility. We did not have sufficient evidence to be satisfied that the mother had "persistently" failed in this respect and so we took the matter no further.
93. Pursuant to the provisions of Article 12(3) of the Adoption Law, we were satisfied from the evidence given by Ms Connor that the child was likely to be placed for adoption; indeed, it was likely to proceed by this autumn. In respect of Article 12(6), we were satisfied that the mother had been given an opportunity of making the declaration therein referred to. In relation to Article 12(7), we were satisfied that the father, who does not have parental responsibility, had no intention of applying in the next six months for parental responsibility or for a residence order and in any event, if he did make such an application, it would be likely to be refused, bearing in mind what we have learned of his character and his complete lack of involvement in the child's life.
94. For all these reasons, we granted the Minister's application for a final care order in respect of the child and freed the child for adoption.
Authorities
In the matter of the T Children [2009] JRC 231.
In the matter of F and G (No 2) [2010] JCA 051.
Adoption (Jersey) Law 1961.
In the matter of O [2011] JRC 226.
Children Act 1989.
Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815.
Civil Evidence (Jersey) Law 2003.