Jersey Unreported Judgments

Care order - application by the Minister for full care order and freeing for adoption order.

[2014]JRC218

Royal Court

(Samedi)

11 November 2014

Before     :		W.J. Bailhache, Esq., Deputy Bailiff, and Jurats Milner and Olsen
Between	Minister for Health and Social Services		Applicant
	A (the Mother)		First Respondent
And	B (the Father)		Second Respondent
And	Leo (through Eleanor Green, his guardian)		Third Respondent

IN THE MATTER OF LEO (CARE ORDER).

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

Advocate D. C. Robinson for the Applicant.

Advocate D. A. Corbel for the First Respondent.

Advocate C. G. Hillier for the Second Respondent.

Advocate R. E. Colley for the Third Respondent.

judgment

the deputy bailiff:

1.        This is an application by the Minister for a full care order and freeing order in relation to Leo, who is 10 months old.  An interim care order was made by this Court on 31^st January this year (In the mater of Leo (Care order) [2014] JRC 030A).  It is noteworthy that at that time the Court directed that a residential family assessment should be made at Orchard House in Somerset enabling the ability of the parents to look after the child to be thoroughly tested.  The Court in its remarks at that time said:-

"We've noted that Ms Isaac the social worker agreed immediately on behalf of the Minister that the Children's Services are not at all closed to the idea that the long-term care of this child might rest with the parents but she says very fairly and in our view appropriately, that the next 12 weeks will be critical for the purposes of considering whether that is a possible long-term outcome.  One can't really take a longer-term view than the 12 weeks assessment at the moment.  Those weeks are crucial." 

2.        One might have expected the parents to have been influenced by those remarks.  Unfortunately, however, although the assessment commenced on 10^th February, the parents made a decision with legal advice to terminate the assessment on 19^th February.  This resulted in the Minister having to change her plan to facilitate a community based assessment.  This involved instructing Dr Briggs the forensic clinical psychologist to consider, inter alia, the ability of the Father to protect the child from the risks posed by the Mother and the ability of both parents to provide a safe environment for him.  As part of the community based assessment, a parenting assessment was undertaken and completed on 7^th July this year by the social worker Diane Burgess.  This included an assessment of the ability of the Father to parent the child with the support of his wider family. 

3.        These reports are relevant not only to the question of threshold, because they go to whether or not there is the likelihood of the child suffering significant harm if in the care of his parents, but of course they also go to the effectiveness and reliability of the care plan. 

4.        The Children's Service has had a significant involvement with the Mother and with her children since the birth of her first child some years ago.  Leo is her ninth child.  The eldest three siblings are subject to care orders and live in residential care.  The fourth and fifth oldest siblings are placed under a residence order with their paternal grandparents.  The three youngest siblings have been freed for adoption and are living with their adoptive parents. 

5.        The papers from each of those sets of proceedings have been introduced into the current proceedings.  Indeed the Minister contends that there has already been a high level of assessment in this case and that no further assessment is necessary.  It seems to us that in those circumstances we need to articulate three points:-

(i)     The fact of the Royal Court findings in the case of other children of the Mother does not in any sense alter the burden of proof in relation to the present case.  That burden rests upon the Minister. 

(ii)    As between the Minister and the Mother, the findings the Court has made so far are binding.  They cannot be reopened.  Furthermore, because they cannot be reopened by the Mother, they cannot either be challenged by the Father.  The Court approaches the instant case upon the basis that all findings of fact made hitherto which were necessary for the purposes of the conclusions which the Court then reached continued to apply. 

(iii)   Nonetheless, the fact that the Mother's care has been found to have caused or been likely to cause her other children to suffer significant harm does not mean that the Court must conclude the same to be true in respect of Leo.  This is for a number of reasons - first of all, the Mother may have herself made improvements in her ability to care for children since the last judicial decision in this respect.  It is theoretically possible that her emotional response to Leo is not the same as her emotional response to her other children.  Secondly, the overall circumstances which affected the Court's judgment previously no longer apply.  We have to make a fresh appraisal of the Mother's relationship with the Father, because that is different from the Mother's relationship with the fathers of her other children.  We do not start from the premise that the Mother's care having been found to be insufficient to prevent her children from being at risk of significant harm in respect of her eight older children necessarily means that it will have the same impact in relation to Leo. 

 Threshold

6.        The Minister contends that Leo is likely to suffer significant harm in four respects - physical harm, neglect, emotional abuse and the harm arising from the Mother's inability to protect her children from adults who might be a risk to them.  It is contended that the Mother is unable to change sufficiently in order to care for her child, and that for his safety he should not be returned to the care of his parents and he should be freed for adoption. 

7.        The Mother invites the Court to make a full care order but to reject the care plan, and accepts that threshold is passed. 

8.        The Father asserts that the Minister's care plan is resisted and the application for a freeing order is opposed.  In his skeleton argument, he concludes that "Leo should be placed with his father under a care order."

9.        It would seem to follow therefore that the Father also accepts that threshold is passed. 

10.      Indeed Advocate Robinson asserted in opening that all counsel agreed that threshold was passed and no-one gainsaid him.  It follows that although the Court has a duty to investigate whether it is satisfied that the threshold criteria have been met, the nature of that investigation should reflect the fact that there is consensus amongst the parties, especially where that consensus includes the Minister and the child's guardian - see Devon County Council v S [1992] 2 WLR 273, and In the matter of the T Children [2009] JRC 231.  The Court has no doubt that threshold is passed, as will be apparent from all that follows.  Similarly the Court has considered the "no-order" principle, and is satisfied that, having regard to the threshold findings, it would be quite wrong to leave Leo in the care of his parents.  Again, the reasons for this conclusion are apparent from the discussion which follows. 

Previous proceedings

11.      As indicated at paragraph 5 above, the findings of the Court in previous proceedings are binding as between the Minister and the mother and cannot be reopened.  Furthermore the Court has agreed in the instant case that the background documentation which was before the Court in the earlier proceedings can be released into these proceedings.  It is appropriate to note this starting point for the purposes of the assessment we now have to make. 

12.      In connection with the Minister's application for a care order in respect of Finley, Amy, Bella and Toby, there was an agreed statement of facts, signed by the Advocates for the Minister, the guardian for those children (not Ms Green) and the advocates for the First Respondent and for the Father.  Both the First Respondent and the Father recognised the shortcomings in the care which they had provided to the children.  The confirmations given by the Father of those children are not relevant for present purposes, but the First Respondent's acceptance included an acknowledgement of these conclusions:-

(i)     She could not look back over the past and consider how she would wish it to be different in order to ensure that she did not pass on to her children the negative behaviours which she learnt from her experience of being parented. 

(ii)    She has a mild learning disability and a lack of positive experiences of being parented that make it hard for her to learn new skills and parent differently from the way in which she was brought up. 

(iii)   She has lacked insight into her children and has failed to recognise that they were showing signs of disturbance. 

(iv)   She has not recognised that her children have needs beyond basic physical care of being fed and clothed and having somewhere to sleep. 

(v)    She did not recognise potential risks to her children in terms of her relationships with certain "risky adults". 

13.      It is clear from the judgment of this Court on 6^th February, 2009, in relation to the Minister's application for a care order in respect of the four younger children out of then seven that the Court accepted the expert reports put before it.  One of the expert reports was from the clinical psychologist Dr Miriam Silver, which was made on 6^th June, 2008, and in its material parts is in these terms:-

"Although I felt that [A] loves her children and does not have any intent to do them harm, it would be my opinion that she has clearly failed to recognise their needs beyond basic physical care.  The level of supervision she provides is low, her expectations of autonomy from the children are overly high, and she does not understand the meaning of their behaviour.  I believe that she does not have the capacity to provide appropriate boundaries and empathy to the children and in fact responds in a very negative way to their emotional needs. 

[A] also models very disturbed behaviour.  At times she is evidently very chaotic and emotionally uncontained and this is inevitably having a negative effect on the children.  Her strong need to shock and to promote sympathy in others lead her to behave in ways that are highly dysfunctional, and there was a flavour of this evident in several inappropriate comments made with incongruous effect during the interview. 

Overall [A] maintained the position that she cannot see any faults in herself as a parent and I felt that she almost totally lacked reflective capacity.  She had no ability to look back over the past and consider how she wished it would be different in order to ensure that she does not pass on the negative behaviours that she has learnt from her experience of being parented to her children through her parenting.  She fails to recognise the risk that others present, particularly the risk of sexual abuse but also emotional harm. 

It would be my view that these deficits have been apparent for at least 10 years and the fact that they remain despite the massive amount of practical support and intervention that has been provided to the family gives a very negative prognosis in terms of her capacity to change."

14.      In July 2010, this Court was considering an application by the Minister for a care order in respect of the 8^th child of the First Respondent.  The decision is reported at In the matter of X [2010] JRC 130A.  One change in the First Respondent's circumstances since the earlier proceedings is apparent from the Court's judgment, namely that she suffered from epilepsy, controlled by medicine which she stopped taking during her pregnancy.  She also gave evidence before that Court that she has been diagnosed with a brain tumour, which would only be operated upon if it became worse. 

15.      The Court in that case received evidence from the jointly appointed clinical psychologist Dr David Briggs, who also gave evidence before us.  A summary of his report and evidence can be found at paragraphs 13-22 of the Court's judgment in that case and we adopt that summary.  The Court resolved not to make any directions for a residential assessment, and, differently constituted, went on to consider the Minister's application in January 2011 when the Court granted a care order and freed the child for adoption.  Once again the Court gave a summary of the evidence of Dr Briggs, which is to be found at paragraphs 18-22 of the Court's judgment in In the matter of X [2011] JRC 014. 

16.      The report of the guardian, Ms Tracey Goode, in the case before the Royal Court in 2011 contained this assessment: 

"10.2   There is no question that [the First Respondent] is a vulnerable woman and has had a horrendous upbringing, marred by neglect, emotional, physical and sexual abuse and I do sympathise with this woman's plight.  However my primary focus must be the interests and welfare of the child and an overriding consideration that the child does not repeat the experience of the mother's past or that of her siblings. 

10.3    Throughout my meetings and interviews with [the First Respondent] she has continually repeated to me that she should not be judged on the past and that "the past is in the past" and she does not understand why "it is being brought up".

10.4    Research tells us that the rates of re-abuse of children by their parents are generally reported to be high despite professional interventions in terms of inter-generational repetition of abuse.  "Approximately one third of abused children go on to become an abuser of their own children, while one third of abused parents will abuse their child, a further one third remain vulnerable to repeating abusive care." (Reder, Duncan and Lucey 2010).

...

10.6    ... Dr Miriam Silver, psychologist, in her report dated 06.06.10 states the following:

"[The First Respondent's] own needs are so great and her level of insight into the children's needs so minimal that she is unable to prioritise the children's needs above her own.  She does not recognise potential risk to the children and continues to prioritise her relationships with risky adults over the safety needs of the children."  She further goes on to say "it would be my professional opinion having completed this assessment that [the First Respondent] is not capable at present or in the foreseeable future of being the primary carer of any of the children."  She goes on to say that [the First Respondent] has no insight into any risk [A] could present to the children and has therefore done nothing to protect the children from such risk and it is my assertion that she is unable to sever contact from him due to the perceived support she feels he gives her. 

...

10.10     It is my view from the abundant amount of evidence and assessments in relation to [the First Respondent] she would need to undergo a great deal of work in relation to herself and her parenting.  Dr Miriam Silver states: 

"It would be my view that [the First Respondent] would require a number of steps to be put in place before the quality of her parenting could improve.  This would begin with her extracting herself from the hold of [A] which I am uncertain she is motivated to do or capable of achieving.  She would then need to acknowledge the extent of her own needs and work these through in individual therapy, which again does not seem to be a step she is motivated to take.  Such therapy would be of the type used with people with personality disorders subsequent to childhood abuse, such as cognitive analytic therapy, and will take weekly sessions for a minimum of two years.  This time scale might be further extended if it takes [the First Respondent] longer to engage in therapy due to a lack of trust in others and also by the fact that therapy often proceeds more slowly with people who have a learning disability.  Subsequent to such individual therapy [the First Respondent] would need to acknowledge the short-comings of the parenting that she has provided and engaged in parenting training in order to improve this over a period of six months".  I feel the likelihood of engagement is very low and the timescales of potential change exceeds that which would be required by a child to continue to have [the First Respondent] as a significant carer in their lives." 

...

10.12      Hence at a minimum, there is at least a further four years work that [the First Respondent] needs to undertake before there could be any consideration of her parenting any future children. 

...

10.15      In relation to [the Second Respondent], if the DNA test proved positive and he is the father, I would have concerns should he be considered as a possible carer for [the eighth child] in that in interview he has stated he would not leave [the First Respondent] in order to look after a child and I feel this would place [the eighth child] at risk in that he may not fully understand the previous concerns in relation to [the First Respondent] and her ability to care for her children.  In addition [the Second Respondent] stated that if he could not look after [the eighth child] with [the First Respondent] then he would want the child to be considered to be looked after by his wife.  Again, this process I do not think has been thought through.  In addition, it was reported to me by Greg McDonald that when [the Second Respondent] went for a final contact with [the eighth child] on 29^th October 2010, at [the First Respondent's] request, he showed little interest in her." 

17.      The evidence we have heard directly in this case needs to be considered against the background of the material cited in paragraphs 12 to 16 above. 

Applicant's contentions

18.      The Minister relied heavily on the documentation which had been provided in earlier proceedings, some of which is referred to above.  In a nutshell, the Minister's contention was that the Court was faced with a mother who had been proved to be unable to defend her children from the risk of significant harm in the past, and there was no reason to anticipate that there would be any change in relation to the child who is the subject of the present application.  Indeed such evidence as there was pointed to a continuation of problems.  In particular the Minister relied upon:-

(i)     The fact that the parents had not completed the 12 week residential family assessment. 

(ii)    The fact that the Children's Service had completed a comprehensive parenting assessment, notwithstanding the failure of the parents to see through the residential assessment at Orchard House; and the parenting assessment completed locally on 7^th July did not assist the parents. 

(iii)   The opinion of the social workers Diane Burgess and Jane Isaac that the parents could not safely care for the child during his minority. 

(iv)   The advice of Dr Briggs who did not consider that the child would be protected from significant harm if left in the care of either or both the First and Second Respondents. 

(v)    The report of the guardian, as an expert in her own right, who supported the Minister's application. 

19.      The Minister invited the Court to apply the principles set out at paragraph 8 of the judgment of the Court of Appeal in Re F and G (No. 2) [2010] JCA 05 in relation to the welfare stage.  This we have done.  The Minister's case was that the child's welfare is the paramount consideration, and that the timetable for any improvement in the ability of the parents to care for Leo is outside the timetable for Leo's best interests.  Thus a delay in determining any question with regard to his upbringing is likely to prejudice his welfare.  He will benefit from consistent care giving from carers who are able to prioritise his needs above their own, and although some months of delay could be accommodated before new permanent carers are found for him, the delay which could be managed for that purpose is not nearly long enough to present an adequate timetable for any further assessment of Leo's parents.  The Minister's stance, reflected in the care plan, was that it was in Leo's best interests to be freed for adoption, with new adoptive parents found for him as soon as possible to enable him to commence the new bonding process that would be necessary to ensure that he had a secure attachment to them.  Accordingly, the care plan proposes that contact should be gradually reduced to monthly contact pending adoption, at which point there would be annual letterbox contact. 

20.      In summary, the Minister's position was that Leo's welfare could only be safeguarded and promoted by his being freed for adoption because this would enable him to be placed with new legal parents in a stable environment as opposed to spending his childhood in the care of the Minister. 

21.      The First Respondent's contentions were that the Court should make a full care order but should reject the care plan currently proposed, and instead invite the Minister to formulate an alternative care plan which would lead to Leo being placed full time in his parents' care.  The First Respondent contended that this could be achieved by increased contact, leading to supervised contact, then overnight staying contact and then full residence.  Although the First Respondent accepted that she had a poor track record in parenting, she contended that the position was now quite different.  She had for the last three years been in a loving and stable relationship with the Second Respondent who had successfully parented his own children and was not said to pose any risk to children generally.  She contended that the parents had appropriately met all Leo's needs during contact sessions, and that he was happy and content in their care.  He should have the opportunity to be brought up with his own family, and, to the extent that the expert assessments pointed to a contrary conclusion, the Court was entitled to reject that opinion, and should ignore it.  The First Respondent contended that the present arrangements for Leo would have to change in any event, and therefore he faced a degree of upheaval when that change took place before permanence could be achieved.  A move into his parents' care would, it was said, be a move to close relatives with whom he had already bonded, and could be achieved under close supervision. 

22.      The Second Respondent's written contentions were framed slightly differently.  There was an equivocation about whether a final care order should be made, although when it came to oral argument, this was effectively conceded.  However it was contended in the skeleton argument that if the Minister's application for a care order were to be successful, the current plan should be rejected and the Court should direct the Minister to come up with a care plan which would enable Leo to be placed with his father under a care order.  The Second Respondent did not consider that any further assessments were necessary, and indeed asserted that the no delay principle meant that a final order should be made at the conclusion of these proceedings.  In particular the Second Respondent contended that while he did not accept that the risks identified by the Minister insofar as the Mother was concerned are in reality current risks, they could be managed and mitigated to a point where it is safe for the Minister to place Leo in the care of his father. 

The evidence before us

23.      The following witnesses gave evidence before this Court - the social workers Diane Burgess, who conducted the parenting assessment, and Jane Isaac; Dr David Briggs, the consultant psychologist; the First Respondent; the Second Respondent; and the guardian. 

24.      The parenting assessment was made by Ms Burgess to establish whether the Second Respondent could parent Leo as a single carer with family support, or could compensate for the First Respondent's "extensive parenting deficits" to ensure that he could provide the necessary care.  This parenting assessment was made necessary mostly because the parents have not stayed at Orchard House for the residential assessment that had been contemplated at the time the interim care order was made.  The circumstances around that Orchard House assessment were these.  On 10^th February, Leo was discharged from hospital and flown with his parents to Exeter for onward passage to Orchard House with his parents later that evening.  The following day a placement planning and care planning meeting was held, the purpose of which was to go through the terms of reference of the parenting assessment.  The First Respondent was upset throughout the meeting, and she advised the social workers that she would not be able to remain for numerous reasons to which we will shortly turn.  On 19^th February, the Second Respondent sought legal advice and informed the Children's Service that he and the First Respondent no longer wished to continue with the residential assessment.  They were both of the opinion that to do so would increase the First Respondent's stress levels further and could lead to a dangerous deterioration in her health, particularly with regard to her petit mal epilepsy.  The Orchard House family assessment summary refers to the First Respondent saying "we're going home today ... it means I can't hold him, I can't touch him or anything".  "There's no point in me being here, he might as well stay here on his own then".  The Second Respondent's responses to some of the First Respondent's comments are documented within the same summary where he referred to feeling "stuck in the middle... which I can't take".  He was quoted as saying "Leo came first however the First Respondent's health had to be there to look after Leo". 

25.      As a result of leaving Orchard House, Leo was placed into foster care on his return to the Island. 

26.      At the time of the Orchard House assessment, the First Respondent was thought to be suffering from petit mal epilepsy.  Subsequently, it has become clear that she periodically suffers from grand mal epilepsy, which is more serious.  She has reported that she has a tumour which is alleged to put pressure on the brain.  She says that she will need to have an operation to remove the tumour.  This could result in a loss of speech and the use of her left side and might leave her unable to walk, although before us she said that after a period during which she would have some disability, she expected to be entirely back to good health and without ongoing disability.  We record that we have not seen much by way of medical evidence which clarifies the position with any certainty.  We have seen a letter dated 9^th September from Dr Howard Gibson in which he confirms that the mother has poorly controlled epilepsy and is under investigation at University College London, and is required to take regular medication to reduce if possible the amount of seizures that she is experiencing.  Dr Gibson confirms that she currently requires to be cared for on a regular basis and should be accompanied when she travels to London for her appointments.  Dr Geoffrey Hamilton has signed a report in August confirming that the First Respondent suffers from epilepsy and that the seizures have now been diagnosed as grand mal seizures, each of which carries a significant risk (approximately 10%) of death.  In those circumstances, Dr Hamilton expressed the view that it was right and proper that her partner the Second Respondent supported her. 

27.      The evidence from Ms Burgess and others regarding the causes of the breakdown of the Orchard House placement recognised the stress under which the First Respondent, and therefore the Second Respondent were operating.  One of the causes of those stresses, as appeared from the evidence of the First and Second Respondents, was the existence of cameras at Orchard House, recording the activities of the First and Second Respondents and their relationship with their child.  It was said by the parents that these cameras were particularly worrying for the First Respondent because they reminded her of unhappy times in her childhood when she was the victim of sexual abuse, which, it was alleged, had been filmed.  It is hard for this Court to express a view on the accuracy or otherwise of these statements because the complaint of filming was not made at the time, nor indeed was there obviously any reference to the earlier filming of abuse of the First Respondent when she was a child, other than appears in more recent and not contemporaneous documents.  It does not seem to us to be necessary to resolve this issue in any event.  We accept that the First and Second Respondents were stressed when attending at Orchard House, and that they brought that assessment to an end as a result of the stress which they were experiencing.  The only conclusions which it seems safe to us to draw from this part of the evidence are that firstly the Respondents have not been able to establish any new information which would run contrary to the historical information which is before the Court, (and the Orchard House assessment was intended to provide them with an opportunity to obtain such evidence), and secondly, when it came to the particular stresses being suffered by the First Respondent at the time, the Second Respondent put her first, for reasons which we entirely understand, and returned with her to Jersey when an option would have been for him to remain at Orchard House alone with Leo and complete the assessment as a sole carer. 

28.      As a result of the failure of the Orchard House assessment programme, Ms Burgess carried out a full parenting assessment as we have indicated.  We do not think she was obliged to do that, but we note that it was completed, and that it was indeed a very full assessment.  The conclusion was that Leo could not be safely cared for throughout his minority by the Second Respondent and indeed that, based on the information set out in the assessment, the Second Respondent did not have the parenting capacity to be able to care for Leo whether alone or with the First Respondent.  The underlying rationale for that conclusion reflected the view of Ms Burgess that:-

(i)     The Second Respondent would make excuses for the First Respondent's behaviour, and would deflect blame onto the Children's Service for the care that the First Respondent was afforded as a child whilst in foster care.  Indeed the Second Respondent had for most of the time indicated that he did not consider that the First Respondent was any longer a risk to her children, and that the harm and neglect which her children had suffered in her care was a consequence of the influence of her then partner.  Ms Burgess considered that the Second Respondent underestimated the demands which the First Respondent placed upon him, and tended to minimise the role which he currently plays as her carer. 

(ii)    The senior social worker Ms Tanya Tinari was called to give evidence of a conversation between her and the Second Respondent in which she is said to have suggested that he should stay on at Orchard House even though the First Respondent wished to leave, but he was not willing to follow that course.  In examination in chief, Ms Tinari appeared to say that, but under cross examination from Advocate Hillier, she said that "I would be reluctant to say I suggested he stay at Orchard House alone.  I did not explain the possibility of returning later.  I did clearly explain to him the importance of the decision."

(iii)   The Second Respondent denied any such telephone conversation had taken place.  We make no findings on the point, as it is unnecessary to do so.  It seems to us to be perfectly obvious that it would have been open to the Second Respondent, had he so chosen, to ask to be assessed by Orchard House as a sole carer, and the fact is that he did not do so because he was understandably concerned about the health of his partner. 

29.      Ms Jane Isaac, also a social worker, gave evidence before us.  She told us that the Second Respondent provided more support to the First Respondent than her previous partners had done, and furthermore that she thought he was honest about his strengths and weaknesses.  He was clearly proud of his adult children.  She was not able to support the Second Respondent caring for Leo with the First Respondent and on cross examination by Advocate Colley, she said that she did not think that the Second Respondent would get much support from the First Respondent in relation to parenting - but on the other hand, the Second Respondent was adamant that he would not act as sole parent in the discussions which she had had with him. 

30.      Dr Briggs was clear in his opinion that the First Respondent needed to demonstrate an ability to change her behaviour.  It was not enough to pretend that all was well.  In his view, she played down her problems, minimising her difficulties, and was avoidant of any anxiety or mood issues.  He was pessimistic that she would ever seek out help, and he had not seen any evidence that the First Respondent was really engaging with her psychological difficulties.  She needed long-term psychotherapy and she had not had it. 

31.      As to the Second Respondent, Dr Briggs thought that he was simplistic about the risks which Leo would face.  The Father was continually saying that the professionals should be focused upon the future as this was a new child with new beginnings.  He underestimated, in Dr Briggs' view, the breadth and depth of the concerns which had been expressed.  In particular he had limited insight into the emotional harm which the doctor considered the children previously had suffered.  In the context of questions as to whether he accepted the children had suffered emotional harm, the Second Respondent's answers containing phrases like "probably" or "a bit" did not come close to an understanding of the really significant damage that had been done.  

32.      Dr Briggs agreed that the Second Respondent would almost certainly protect Leo from predatory individuals and from people who might cause him significant social harm.  However, in his view, the Second Respondent did not appreciate with any real insight the sexual risks to which the children had previously been exposed, and therefore the extent of the concern which existed for Leo.  Dr Briggs thought that there were three factors in particular which indicated that the Second Respondent could not prioritise the needs of Leo over the needs of the First Respondent.  The first was the failure to stay in the residential assessment in the first place.  The second was the reduction in the frequency of contact - alleged by the parents to be in Leo's best interests - shortly before the hearing which was scheduled for June, though in fact postponed, and intended to be the final hearing for the Minister's care application.  Thirdly, the Second Respondent had missed contact sessions, which therefore did not prioritise the needs of the child.  In summary, Dr Briggs was clear that in his view the Second Respondent would not in fact protect Leo from the different risks posed to him by his mother and he concluded that it was not safe for Leo to be placed in either parents care, whether that be conjointly or in their sole care. 

33.      Both the First and Second Respondents made detailed statements which were in the Court papers and were taken as their evidence in chief.  In addition they both gave evidence before us, which, considering the stress and pressure which giving evidence always creates, particularly where there is something so inherently stressful as fighting for the care of your child is concerned, was particularly brave.  We thought that the First Respondent gave her evidence in an articulate and intelligent way.  She told us that she had been to see a psychologist on quite a few occasions, although this was a while ago.  She said she had changed since six years ago.  She considered that she was able to regulate her emotions and indeed she quite fairly made the point that under some quite difficult cross examination from Advocate Robinson, she had been able to keep herself well in check. 

34.      As to leaving Orchard House, she told us that the cameras were simply much too much for her.  They made her epilepsy worse and she considered that she was putting Leo's interest first by leaving the premises.  If her stress levels went up, she would be more likely to have an epileptic attack.  Furthermore she was not feeling very well at the time, as she had just had a hysterectomy.  The whole experience was just too much. 

35.      As far as the evidence of the Second Respondent is concerned, we noted that in his evidence in chief he confirmed that he was aware of the historic findings of the Court made as to sexual harm, physical abuse, neglect, emotional abuse and the failure to protect children.  He said that he was aware how serious those concerns were at that time.  He was clear that those issues were confined to the situation at that time and to the people in the First Respondent's life at that time.  He emphasised the notion that family was at the centre of his life, an important part of his sense of identity.  He pointed out that he had lived with the First Respondent since 2009, and he said he had seen changes in her every day.  He indicated that he and the First Respondent were capable to care for their son and they wanted to do good. 

36.      When he gave his evidence before us, he said that Leo was a happy child, normal for his age.  When he was asked about the decrease in contact arrangements prior to June this year, he said that it had been stressful for him and the First Respondent to pick Leo up, and the question had to be seen in the context that three months earlier he had lost his father and his sister-in-law, and that furthermore his mother had had a stroke.  All in all, in his view, contact sessions twice a week was healthier for them, and therefore for Leo.  The reduction in contact was therefore a decision taken in the best interests of their son. 

37.      When he was asked about his trip to Portugal in July this year, accompanied by the First Respondent, which lasted some three weeks, he said that he had to go to Portugal to assist his mother in connection with his father's estate.  There was a great deal of paperwork and he was busy non-stop whilst he was there.  He rejected the view that by going to Portugal for that period, he had somehow prioritised his own interests, and all those of the First Respondent, and all those of his mother, over those of Leo.  We accepted that explanation from him. 

38.      When he was asked about questions of future risk involving the First Respondent, he said that he personally could not see that there was going to be a risk, but it was difficult for him and the First Respondent to prove the position until Leo had come home and they had been able to demonstrate it. 

39.      Under cross examination from Mr Robinson, the Second Respondent said that as primary carer he would not have to go back to work, as he would be entitled to income support.  If necessary his children would babysit if he went out.  He intended to go out less often than he did at present, and would therefore reduce those occasions from once a week  to once a month. 

40.      When asked about Orchard House, he said it was like a prison.  They had told him that if he and the First Respondent went out for more than an hour, Orchard House would get the police to arrest him. 

41.      When asked by Advocate Colley about the frequency with which he saw his infant daughter from a previous relationship, he said that he saw her about once a week and that his former partner was entirely happy that he should see his daughter in his home, which represented a change from what Ms Burgess had reported.  In response to a later question, he said that he got to see his daughter when her mother wanted something, which happened perhaps once, twice or three times a month.  His response that he had earlier said that he would see his daughter once a week was put to him and he denied saying it was once a week - he said he saw his daughter once a month. 

42.      When pressed on the changes in the First Respondent over the last three years, he said that she now eats well, she does not drink anymore and does everything by the book.  He thought that perhaps his partner was better with babies than with older children but in any event he was sure that he could manage on his own. 

43.      Finally we heard from the guardian Ms Eleanor Green.  She said that Leo was a happy, settled baby with good attachment to his foster carers.  When the parents exercised contact with him, he remained happy and settled, and there was nothing negative in the contact sessions at all.  She did not think that Leo attached to the parents in the same way as he did to his foster parents, but given the frequency of contact that was unsurprising.  In her view it was difficult to assess future risk.  What the Court had was some hard evidence as to the risks which had come about from the First Respondent's parenting of her other children, and those risks were serious. 

44.      In her view, the First Respondent had had a number of good years more recently, but she had no children to add pressure during those years.  Furthermore there was no evidence of psychological change in her.  It might be said that it was just the fact of eight children which had caused her the difficulty in the past but in the guardian's view that was not correct.  There were reports of neglect when there were only three or even two children, and a study of the First Respondent's history demonstrated that the fact that she ultimately had eight children was not a reason for them suffering significant harm. 

45.      As to the reduction of contact in June this year, she agreed that the reduction in contact could theoretically be justified in terms of what was good for Leo, but that was not her view.  A parent might say that he wanted to be out every night, and then would be better for the purposes of exercising contact in the morning - but that would just be an excuse for that parent to do what he or she liked.  Furthermore babies have no sense of time and a reduction of contact three times a week to twice a week would not be noticed by Leo, and so could hardly be said to be a reduction which was in his best interests. 

46.      If the First Respondent did not accept that some of the previous risks had come to pass, which clearly she did not, then she has not accepted that her previous conduct occurred, and in the guardian's view she had not therefore moved on. 

47.      The guardian explained that she thought that the Second Respondent would find it difficult to mitigate any emotional harm which the First Respondent might inflict on Leo in the future.  Even if he was there 24/7, as had been the basis upon which the application was made, he would not be able to prevent the First Respondent from saying inappropriate things to her son, as was the history when one looked at what she had said to her other children.  There was the real risk of a cumulative drip feed of emotional unavailability, which would be extremely damaging.  Furthermore, although it seemed to be unfair to put the Second Respondent in the position of having to choose between his partner and his child, it was more unfair to the child to have him brought up in an abusive situation.  She considered that the care plan was thorough and appropriate and that it was simply too risky to leave Leo with his parents. 

48.      In cross examination she was asked whether she considered that the Second Respondent could be a "good enough" parent.  Her response was that he could, and indeed that he probably had been with his adult children - but that was with a different partner and not with the First Respondent.  In her view one could not get away from the problem that although the First Respondent was now in a good relationship as opposed to  the relationship she had been in with her previous partners, and although it appeared that her health might become manageable in the future, and the problems from having many children had disappeared because of the care orders made previously, nonetheless, her background and her psychological difficulties meant that there remained a significant likelihood of future harm, and the only safe course was to remove this child from his parents.  In cross examination by Advocate Corbel, she agreed that the bringing up of Leo within his birth family was a big benefit but it had to be placed against the risks involved.  The presence of the Second Respondent could cover physical neglect and might reduce the risk of physical abuse, but it could not prevent in her view emotional abuse. 

Discussion

49.      There is no doubt that the failure of the Orchard House residential assessment was extremely unfortunate.  It did not create terminal damage for the parents' defence of the Minister's application, but it did remove from them one possibility of establishing their capacity for good enough parenting of Leo, and, given the background in this case, it therefore becomes necessary that the Court looks at any other basis upon which that defence can be maintained.  There is no doubt that the Mother was under some stress in going there in the first place.  Leo had been delivered by caesarean section, and she had had a hysterectomy.  With the stress that was involved in the assessment as well, coupled with the existence of cameras which no doubt were in some respects  intrusive, this was always going to be a difficult time.  On the other hand, Orchard House is a supportive place, and there were just the two of them with their baby.  We record the failure of the Orchard House residential assessment only because that failure demonstrated how difficult it was in February of this year for the Father to put his son's interests ahead of the interests of the First Respondent, and because the Court has been deprived of what might have been a valuable tool in the assessment of the capacity of these parents to parent Leo together. 

50.      The evidence produced by the Minister and by the guardian created further difficulties for the First and Second Respondents to meet.  Not only was the case established from previous decisions that the First Respondent had not been able to protect her other children either from significant harm or the risk of significant harm, but the current information provided did not seem to indicate that any change in the First Respondent's overall approach had taken place.  Furthermore, the fresh evidence tended to suggest that the Second Respondent minimised the difficulties that existed.  That meant that the evidence which the First and Second Respondents gave themselves to this Court became critically important in our assessment as to whether the Minister had discharged the burden of proof requiring her to establish on the balance of probabilities that it would be unsafe to leave Leo with his parents. 

51.      We have no doubt that these parents honestly and genuinely believe that they would be able to offer Leo appropriate care and attention to keep him safe and to give him the love and care which they felt able to give him within their family.  We do not doubt that the Mother is capable of showing love in the relationship which she has with her child and we also think that they are to be commended in fighting for care of their child as they have, which of itself demonstrates love for him.  If ever Leo should read this judgment on his maturity as an adult, we hope that this is a positive feature which he can take from it. 

52.      One of the essential difficulties in this case is that once the parents agree, as they have, that the threshold is passed and that the child is likely to suffer significant harm if returned to the care of his parents, a difficult question for them to address is how a care plan which left that same child in the care of his parents would avoid that harm taking place.  The answer that was given to us in relation to this question was that the threshold criteria were based on past risks which have now been assuaged.  The First Respondent's personal circumstances are now very different, and the Second Respondent has a proven record in bringing up children.  Furthermore, the First Respondent would not have physical care without the Second Respondent, who would have 24/7 care of his child.  In that context, it was said that the Second Respondent would put Leo first - he had been very clear about this and he had been clear about the need to work with the expert. 

53.      As is the case in many of the applications of this kind brought by the Minister, these are very sad circumstances indeed.  However, we have no doubt that the threshold was passed in the sense that, if returned to his parents, Leo was likely to suffer emotional and physical harm, although not sexual harm or physical neglect.  We do not think that, try as she might, the First Respondent is able to confront her past, and we do not think that she can tackle the future safely.  Our assessment of her evidence was that for every difficulty that she had faced, there was an explanation which made the problem somebody else's fault.  We also did not think that the Second Respondent really appreciated the risks which leaving Leo with his mother would entail, nor did we think that he had given any serious thought to how practical arrangements were going to work if the parents had Leo living with them.  Part of this was down to the inconsistency in the approach of the First and Second Respondents to the present application.  On some occasions, the Second Respondent would indicate that he expected to care for Leo with the First Respondent.  On other occasions he emphasised - we think because he was told he had to do so - that he would put Leo first and that he would not put the First Respondent first.  At the end of the day, having regard to all of the evidence, we thought it was window dressing, perhaps even a deception, for the Second Respondent to say that he would have sole care of Leo.  It would be joint care.  Accordingly it was necessary to look at all the problems which the First Respondent had and in our judgment continues to have in assessing the likelihood of significant harm being caused in the future, and the assessment of the welfare test in that context. 

54.      We do not think that 24/7 care by the Father was realistic.  It was inconsistent with what the First Respondent said in any event - she thought that she would be assisting the Second Respondent because, for example, she would bath Leo - she knew the nursery rhymes, and she did know things about children.  We think probably she had the emphasis correct when she said that "[B] would be the main carer" - in other words she too would be a carer, but just not the main carer. 

55.      Even if we were wrong about that, the Second Respondent could not possibly be in two places at once.  The pressure under which he would be placed if he had to make a choice between his son and his partner would in our judgment be intolerable and we were not satisfied that he would exercise any choices from time to time in a way that put the interests of the child first.  We share the view of the guardian that this child would not be safe if left in the care of his parents. 

56.      Having applied the welfare test therefore, we are satisfied that the care plan of the Minister rightly rejects, by implication, the notion that Leo could be placed with his parents under a care order in favour of the Minister. 

57.      The care plan proposes that Leo should be freed for adoption.  Once one has reached the position that a care order is appropriate and that the child cannot remain with his parents; and once one has the position that there are no other members of the family who might have care of him, then the Minister is left with either long-term foster care, care in a residential institution or adoption.  Given the age of this child, understandably and rightly, no one contends that it is appropriate that he should be in some residential institution, and there are obvious drawbacks in identifying long-term foster care as appropriate, even it if were possible.  The adoption team has indicated clearly that there are good opportunities for finding some adoptive parents for Leo.  He is of an age where adoption is relatively easy, and already two or three potential adoptive parents have been identified.  With a new family, he can make a fresh start. 

58.      Article 12(1) of the Adoption (Jersey) Law 1961, empowers the Court to make an order freeing the child for adoption where the Court is satisfied in the case of each parent or guardian of the infant that the person freely, and with fully understanding of what is involved, agrees generally and unconditionally to the making of an adoption order; but this agreement can be dispensed with on a ground specified in Article 13(2) of the same legislation.  The grounds mentioned in Article 13(2) include inter alia that the parent is withholding his or her consent unreasonably. 

59.      Re F and G (No. 2) (supra) is authority for the proposition that the Court must consider in relation to the absence of parental consent whether the making of a freeing order is in the best interests of the child, and if so, whether the parents' consent is being unreasonably withheld.  As to Leo's best interests, first consideration is to be given to the need to safeguard and promote his welfare during his childhood, and, as far as practicable, to ascertain his wishes and feelings regarding the decision and give due consideration to them.  In our view, although Leo is only a young baby and it is has not been possible to ascertain his wishes and feelings, there is no doubt that he would want to express the view that if he could be brought up within a birth family who love him and can provide him with stable, secure and safe care, then that is what he would wish to achieve.  Here, the Court is not satisfied that the parents would provide him with stable, secure and safe care.  Accordingly it is in his best interests that the freeing order is made. 

60.      As to whether the parents are unreasonably withholding consent, an objective test has to be applied.  The Minister's submission is that there is no reasonable prospect of Leo being returned to his parents' care, and if a freeing order is not granted, he would therefore remain in the long-term care of the Minister with none of the security afforded by adoption.  We agree that the refusal to consent to Leo being adopted does not fall within the band of reasonable decisions open to a parent, because a reasonable parent would not deny their child the security of a legal family that adoption brings. 

61.      For these reasons, the Court is satisfied that it is right to make a freeing order under the Adoption (Jersey) Law 1961 and we make it accordingly. 

Authorities

In the matter of Leo (Care order) [2014] JRC 030A.

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

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

In the matter of X [2010] JRC 130A.

In the matter of X [2011] JRC 014.

Adoption (Jersey) Law 1961.

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