Jersey Unreported Judgments

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

[2014]JRC144

Royal Court

(Samedi)

18 July 2014

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF ALAN (CARE ORDER)

Advocate D. C. Robinson for the Minister.

Advocate E. L. Wakeling for the First and Second Respondents.

Ms E. Fernandes (the Guardian)

judgment

the deputy bailiff:

1.        This judgment arises out of a reassessment of the parents at Orchard House following the Court's judgment handed down on 12^th December, 2013, and reported at In the matter of L (Care order) [2013] JRC 252A.  We do not set out all the material facts again, and this judgment should be read in conjunction with the earlier decision. 

2.        Following delivery of the judgment in December 2013, the parents were assessed again at Orchard House during the period 8^th January, 2014, to 19^th February, 2014.  They and Alan (L) (this is not his real name but has been given to him by the Court for the sake of convenient law reporting) were at Orchard House for some six weeks.  At the time of the final hearing, the Court had available to it the first placement report dated 28^th January, 2014, and the final placement report of 26^th February, 2014, alongside some weekly progress summaries.  We heard evidence from Ms Nancy Sullivan, a qualified social worker employed at Orchard House, and from Dr Freda Gardner, who gave evidence before us on the earlier occasion in December.  We also heard from the social worker in Jersey, Ms Allison Tandy, and from the guardian.  At the conclusion of the hearing, we gave our decision that the Minister's application for a final care order and a freeing order would be granted, and the reasoned decision was reserved.  This judgment contains our reasons. 

3.        We noted that when the family arrived at Orchard House on 8^th January, 2014, they were the subject of an initial assessment.  Alan was described as a happy contented little boy, with social emotional development assessed as normal, and he demonstrated behaviour entirely normal for a child of his age. 

4.        It was agreed that the parents would be subject to one to one monitoring during the daytime with a member of staff in the room.  At night, it was agreed that the family would be monitored on a one to one basis in the room when Alan was awake.  It was agreed that the father would not carry the boy at any time and he would only hold the boy if already seated.  The parents would have two hours "time out" without the boy each week.  Whenever the parents left Orchard House with the boy, they were accompanied by staff. 

5.        By 20^th January, it was agreed that daytime monitoring would in the main continue to be one to one, and that staff would only intervene if the boy was unsafe or distressed.  However, the family would have two hours family time daily, an hour in the morning and an hour in the afternoon, when they could spend time in the room at Orchard House described as the snug, without any staff being present.  During these times, the family would be observed on a one to one basis via CCTV.  Family time was extended on 22^nd January to one and a half hours twice daily, and it was agreed that this time could be spent in any room of the house, including the garden.  Two days later, night time monitoring was reduced to monitoring via CCTV, and family time was increased to two hours twice daily without staff in the room.  The parents were told they had to be up and ready to start the day by 7:30am, and they would be prompted at 7:45am if they were not up.  We noted that the same day, there was some concern that the boy was not receiving adequate fluid throughout the day, and it was agreed that staff would prompt the parents if he had not been offered a drink for a period of more than two hours. 

6.        There were two weekly progress meetings and two mid-week reviews in January with the parents who were invited to contribute, which they did, to discussions around the areas of concerns raised during the previous week and the areas in which they had made progress. In addition, the parents received immediate oral feedback and were shown CCTV footage to support observations of their parenting. 

7.        We have gone into this detail because when we indicated at paragraph 36 of our judgment last December that what was needed was a fresh, uncluttered look at the parenting skills of these parents, banishing any preconceived ideas which might have emerged from the Jersey professionals' consideration of the matter, this seems to us to be precisely what has taken place.  We think that the staff have conducted a review as requested. 

8.        In the first placement report dated 28^th January, the boy is described as "a happy, sociable baby who smiles readily and babbles frequently.  He uses single words, 'mama, dada and uh-oh'.  [He] takes an interest in other people and children, and his [sic] been observed to initiate a game of 'peepo'.  [He] crawls quickly and confidently.  He is able to pull himself to a standing position, cruises the furniture and manoeuvres himself confidently.  [He] knows parts of his body and touches these when they are named.  He also copies actions, such as putting his hands on his head or clapping.  He is able to feed himself with his hands and a spoon.  He is also able to hold his beaker and drink from it independently."

9.        Slightly worryingly, the report of 28^th January noted that "It has been observed more recently that [he] is beginning to look to staff for interaction.  This has been closely monitored and a repeat baseline assessment in respect of [him] has been requested to ensure that he continues to progress in his development".  It was the view of Miss Sullivan that he was not receiving the level of stimulation from his parents that he had received previously from his foster parents, and that was the reason he went to the staff who paid attention to him. 

10.      We do not think it is necessary for the purpose of this judgment to go into every single event or issue raised at Orchard House.  Some of the events seem to us to fall into the category of being the kind of accident which happens in every child's growing up - as, for example, when the boy banged his chin on the cot, as a result of which he sustained a bruise.  There were, however, more worrying events.  One illustration was on 2^nd February when the family was in the snug.  The boy pulled himself up to standing, using a chair, and neither parent monitored him sufficiently.  It is clear that the mother saw him by the chair and she looked away back towards the television, on which the father was also concentrating. Immediately thereafter the boy pulled the chair down on himself, and bumped his head.  This was described as a "preventable near miss" and we have to say that on each of the occasions that we saw the video clip of the incident, it was sufficient to cause us to wince.  The final placement report shows that the parents found it difficult to transfer any learning from this incident to new and similarly unsafe situations.  On 13^th February, the boy was lifting the table flap of the foldable table, and on 14^th February, when he pushed the highchair, he was not moved away from the hazards and the staff had to intervene to stop him from getting hurt.  On 19^th February, when only the father was present with him, the boy crawled towards a low level table and pulled a jug of cold water onto himself.  The parents asked the staff to ask other parents not to leave things on the lower tables but the reality is that neither parent had spotted the potential hazard and moved it out of the boy's reach.  It could have been hot water, or hot tea rather than a jug of cold water.  In her earlier report to us in December, Dr Gardner had indicated that in her view the mother was simply not capable of translating what she had learned from particular experiences into an anticipation of the risks of what might happen in slightly different circumstances, and that view was borne out by the evidence which we both saw and heard about and which we have just described. 

11.      We saw a video clip of the parents with their son on 4^th February.  The mother was in charge of the boy who had been put in his playpen.  The father went out for a cigarette.  The boy started coughing and it was clear that the mother did not think about giving him a drink and she needed to be prompted to do so.  Later in that clip, she left the room and the father was in charge.  He talked to the boy a lot in the sense of using his name regularly, but said nothing else and the boy became fractious.  The father just sat there calling his name.  Eventually he picked him up, but the boy continued crying, and the father put him back in his playpen, which he was unable to do entirely safely, and the boy was dropped a distance of some 7cm, falling back against the playpen bars and banging his head. 

12.      This was an illuminating clip.  It showed both parents to be unable to provide the stimulation which the boy needed as a result of which he started throwing toys out of his playpen in frustration.  They clearly loved him, but were not able to stimulate him. 

13.      What became even more worrying was that over the period of the assessment the parents obviously found it more and more difficult to cope.  They became physically very tired, and they relied on coping strategies which involved time out from the boy and a cigarette.  Their tiredness was such that increasingly it became obvious that they could not wake up in the mornings when the boy was awake, and their late start put timings out for the entire day.  We should say immediately that it is not as if the boy was waking early.  He was tending to wake up at about 7:30am, which seems to us to be as much as any parent could expect of a 13 month old child - but the parents could not wake up at the same time or even for up to half an hour after that. 

14.      It was not only the parents who found things increasingly difficult over the period of the assessment.  The boy was subject to an infant-toddler social and emotional assessment (ITSEA), which is an empirically validated clinical tool developed to assess social-emotional and behaviour problems as well as delays or deficits in the acquisition of competencies.  Behaviours represented on the ITSEA include both (1) those behaviours that are otherwise part of typical development, but become problems when exhibited either in excess or too infrequently and (2) infrequently occurring problem behaviours that represent deviation from a normative developmental course.  As there were no infrequently incurring problem behaviours, the boy was only assessed under the first of these behaviour patterns.  The assessment is designed for children of twelve months upwards, and therefore the boy is only just on the cusp of administration of this measure, but it was an informative tool tracking change over the boy's period at Orchard House.  It demonstrated that his different scores between 15^th and 28^th January showed a reduction in activity and impulsivity, and an increase in depression/withdrawal and negative emotionality.  He was less inclined to imitate or to play, and more inclined to sleep.  In Dr Gardner's view, the inconsistent stimulation indicated that development would be slowed, and might even become abnormal. 

15.      The evidence before us was that stress levels over the course of the assessment increased for the mother, which was likely to lead to increased difficulties in coping and lowered mood. 

16.      Staff at Orchard House reported that over the whole assessment, the parents were incredibly enthusiastic.  They realised that there would be challenges in communal living but generally they rose to them.  There was no doubt at all about the emotional warmth and love which the parents have not only for each other but also for the boy.  They were and are committed to him.  They have done their best to stimulate him, and sometimes showed that ability, but not consistently.  Despite the fresh look, the view of the Orchard House experts was that the parents were not able to look after the boy properly and not able to provide "good enough" parenting.  Their experience was that the co-parenting, on which the parents relied, worked sometimes but not always.  The pressure of providing 24 hour care became increasingly exhausting for them and caused stress and, in Dr Gardner's view, over the years, the demands would increase and they would not be able to meet them.  She was asked if they became overwhelmed from the problems of looking after the boy and she thought that that was an appropriate description.  They could not provide fluids sufficiently, nor provide him with medication when he needed it on time, nor with adequate stimulation.  When they became overwhelmed, maintaining "Team C" was very difficult for them.  In Dr Gardner's view, one simply could not make good the deficits of an inability to focus on more than one thing at a time - which is why support for their physical disabilities could cope with that gap, but no support provided by the state could come sufficiently close to dealing with the unknown problems which are unforeseeable - the result of what she called the "concrete thinking" which the mother had as a result of her psychological problems. 

17.      This has been an extremely distressing case.  We see so often in this Court the product of a lack of love and care during a child's upbringing.  Here we have a couple who clearly love their child deeply and who have engaged to their utmost in order to demonstrate that they might be capable of looking after him - but nonetheless the professionals are clear that they are not so capable, and with the greatest reluctance, the Court shares that view.  We have asked ourselves whether we might expect the state to provide some level of support which would cope with the deficiencies that there are, but we accept Dr Gardner's view that it is not in the child's best interests that he would have to get used to a number of different care givers - it would not be good enough for different carers to fill the gap which is created by his need for one set of competent permanent carers.  We were satisfied that it is not a question of resources, and no amount of resources could make this solution best for the boy. 

18.      Applying the welfare test as we are required to do, the boy of course is too young for us to know his wishes but we can assume that he would want to be brought up in a family which shows the love and care and which provides him with the emotional and physical stimulations which he needs in a safe environment.  We think that there is a significant risk of physical harm, demonstrated by the chair and water incidents we have described when one or both parents were present but not able to protect him.  We think there is a genuine problem in his emotional stimulation, and if no care order is made, we think that there will be significant problems in providing him with the guidance and boundaries that he will need to emerge from childhood into being a young adult. 

19.      When we say that we have reached this conclusion reluctantly, we emphasise that we have done so in what we are sure are the child's best interests.  We recognise and appreciate the parents' love for him, and we recognise that fighting for him, as they have, was the right thing to do.  If ever he should read this judgment, he should recognise that the orders which have been made do not reflect any criticism of his parents for lack of love or for indifference but do reflect that the force of circumstances affecting them is such that they cannot provide the care for him which a child ought to have without being exposed to serious risks of significant harm. 

20.      In reaching the conclusion that we have, we also want to emphasise that we do not regard it as the fault of either parent that they are in this position.  We hope very much that they will recognise it is not each other's fault, and there is no blame to be attached to either of them. 

21.      The Minister's care plan proposed at the hearing in November was maintained before us.  It envisages a final care order and the freeing of the child for adoption.  If that order were to be made, the parents would be advised when the child was placed with adopters and when the adoption order was made, but would not be told any information about the adopters to ensure that the child's potential for a secure and stable placement was not compromised.  It was not being proposed that they should be introduced to the adoptive parents.  As far as contact between the parents and the child post adoption is concerned, it was recommended that there should be annual letterbox contact, which would enable yearly updates to be shared and the boy to grow up with knowledge and insight into his birth family and identity.  It was envisaged that there would be one "goodbye contact" between the boy and his parents, at which photographs would be taken for his parents to keep as a memento.  The Children's Service were of the view that ending contact for the boy with his birth family prior to introductions to prospective adopters would be in his best interests, thus avoiding too many relationships (including birth family, foster family and adoptive family) which might cause confusion at a time when he needed stability.  A life story book would provide information to him about his birth family and a copy of that life story book would be provided to the birth parents. 

22.      When the parents left Orchard House, they were told that the professional recommendation was that they were unable to cope with the care of their son.  They knew that this assessment at Orchard House was, subject to the Court's review, likely to prove a "last chance saloon" for them, as the father expressed it.  When the family arrived in Jersey, they were accompanied to the Children's Service offices, where they said goodbye to their son as he was returned to his previous foster carer.  The report received from Ms Sullivan was that they managed this incredibly well.  They remained focussed on their child and ensured that he was not exposed to any emotional distress that they would have been feeling.  They continued to talk to and smile at him and kissed him goodbye before he left in the car. 

23.      In her evidence before us, Dr Gardner said that she would recommend no annual contact.  She thought it would be too painful for the parents, and she doubted whether they could easily cope in a way which was appropriate for their child.  She was however quick to add that she had not had that discussion with them, as it was not within her terms of reference.  She recognised that they had handled the goodbye to their son extremely well when he was returned to the foster parents. 

24.      The guardian supported the view of the professionals that the parents could not provide good enough parenting, but she added that if the parents could cope with contact post-adoption, she thought the Minister could consider it.  She emphasised of course that such a decision had to be led by the boy's needs, and not by the parents' needs. 

25.      We have approved the care plan.  We recognise how difficult this is going to be for the parents, and we think there may be some force in Dr Gardner's view that they would not be able to cope with any form of actual contact, other than letter box contact.  Nonetheless, the parents have expressed to us their wish to see the boy even if he is adopted, which of course they have resisted strongly.  In our view, this is a matter for the Minister.  The care plan does not envisage more than letter box contact, but in approving that, we hope that the Minister will nonetheless keep an open mind on the possibility of other contact, if in the view of the Children's Service, the parents are able to manage such contact without adverse consequences for their son.  His interests are paramount in that respect. 

26.      Under Article 12 of the Adoption (Jersey) Law 1961, as amended, the Court is not to make an order declaring an infant free for adoption unless either the parent or guardian freely and with full understanding of what is involved agrees to the making of the adoption order, or that person's agreement to the making of the order should be dispensed with on one of the grounds specified in Article 13(2) of that law.  Here the parents have not agreed and we have therefore have had to have regard to Article 13(2).  In considering whether the parents have been reasonable or unreasonable, we are required to take into account the welfare of the child.  Reasonable parents would give great weight to what is best for the child, and while recognising that anguish of mind, as Lord Denning put it in Re L (1962) 106 SOL GUL 611:-

"It is nonetheless unreasonable to withhold consent. The court is required to assess what is reasonable in all the circumstances of the case."

This is an approach which has been taken in the Royal Court on several previous occasions - see for example In the matter of JS and BS [2005] JRC 108. 

27.      Applying that test, this Court is satisfied that it is in the boy's interests to have permanent adoptive carers and it is therefore objectively unreasonable, even if completely understandable, that the parents withhold consent. 

28.      For all these reasons and with the greatest reluctance, we make the final care order and we free the child for adoption. 

Authorities

In the matter of L (Care order) [2013] JRC 252A.

Adoption (Jersey) Law 1961.

Re L (1962) 106 SOL GUL 611.

In the matter of JS and BS [2005] JRC 108.