Sir Michael Birt, Kt., Bailiff, and Jurats Nicolle and Blampied
Minister for Health and Social Services
A (the mother)
F (the father)
Samuel (the child, acting through his Guardian, Eleanor Green)
IN THE MATTER OF SAMUEL (CARE ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate D. A. Corbel for the Minister.
Advocate E. A. Wakeling for the First Respondent.
Advocate L. V. Marks for the Second Respondent.
Advocate R. E. Colley for the Third Respondent.
1. This is an application for a final care order in respect of the third respondent Samuel (this is not his real name), who is a boy aged just over 1 year, together with an order freeing him for adoption.
2. The first respondent ("the mother") and the second respondent ("the father") did not dispute that a care order should be made and that the requirements for such an order were met. However they opposed the granting of a freeing order.
3. Following the conclusion of the hearing, the Court granted the orders sought by the Minister and we now give our reasons.
4. The mother is 26. She has endured an extremely difficult background but has a deep seated heroin dependency with associated criminal behaviour. Up until the end of 2012, she had fifteen convictions for fifty-five offences, thirty five of which were for drug related larceny. Her first child was born in 2006. Her drug related and chaotic lifestyle resulted in that child being placed in the care of the mother's aunt in September 2006, where the child has remained ever since.
5. On 11th July, 2014, following a three day hearing, the Court made an order freeing her second child Mia, (not her real name) who was then two, for adoption following the making of a full care order.
6. At that time the mother was expecting Samuel of whom the father is the father. She was serving a prison sentence of 6 months for larceny and breach of probation and was due to be released on 23rd September, 2013. However, earlier in September she gave birth to Samuel. The Minister was granted an interim care order on 10th October, 2013, and the judgment of the Court on that date (unpublished) recalls the following as to the circumstances giving rise to that application:-
"She was in prison at the time under a prison sentence but Samuel came on early and although she was due to be released on the 23rd September she was taken to hospital earlier in September and gave birth to Samuel All was well for a while as she looked after him in hospital and the father....... visited. However, on the 25th September she left hospital in order to go and look at some potential accommodation. Unfortunately she did not return or make contact with the hospital or the Children's Service and they were unable to contact her. She didn't ring to enquire about Samuel who remained in hospital. As a result, faced with this situation, on 26th September Samuel was placed in foster care and he has remained there since then. Contact with the mother was re-established on 27th September. She said she had not returned to hospital because she had been drunk. Subsequently there was consultation by the Alcohol and Drug Service with the mother and they established that she had been taking Subutex as well as Methadone, the latter being prescribed for her but the former not; and she also admitted to drinking one litre of vodka on one day and half a litre on one or two other days. It was also established that she had gone to stay with a person who is well known to the Children's Service in her own right and who is heavily ensconced in the Jersey drug scene. The social worker met with the mother and the father on 2nd October and at that time arrangements were made for supervised contact five times per week for one hour. Unfortunately the mother and the father failed to attend the first session and we have been informed today that in fact there has only been one contact session, which was yesterday."
7. The Court was satisfied - and the mother accepted - that the threshold for making an interim care order was met and the Court duly made such an order on 10th October.
8. Samuel remained in foster care following the interim care order. We shall refer to the reports from the experts shortly, but it is clear that, following the making of the interim care order, the mother and the father made enormous efforts to overcome their drug dependency and to show that they were capable of putting Samuel's needs ahead of their own, so as to provide 'good enough' parenting for him.
9. Their efforts were so successful that the Children's Service, after carrying out various assessments, decided that, in view of the positive change demonstrated by the parents, Samuel should be rehabilitated into their care with a package of support. This was duly agreed by all the agencies and Samuel went to live with his parents on 14th May, 2014. Extensive support and visits were put in place.
10. So far as the Children's Service were concerned, all appeared to be going well until 13th June when the mother failed to attend a meeting. The father subsequently confirmed that she had failed to return home since the previous evening. The mother did attend a meeting with the social worker later that day and was reported to be in an intoxicated state.
11. On 15th June, a care planning meeting was held and it was agreed that the Minister would be seeking to place Samuel back into foster care on the grounds that the mother had suffered a relapse and was leaving Samuel in the father's care for long periods. On the 17th June, an agreement was entered into with the father whereby he agreed not to leave Samuel in the sole care of the mother due to his disclosure that she was often staying out all night, was using 'legal highs' and was suspected of alcohol use as well.
12. On 19th June, the father further disclosed to the social worker and the guardian that he believed the mother to have resumed the use of drugs and that he had noticed a general change in her behaviour. As a result, he agreed to stay at his parents' home with Samuel and not to allow the mother to have contact with Samuel. A hearing was fixed for 24th June to hear the Minister's application and agreement was reached that, on the basis that the father had agreed to stay at his parents' home with Samuel, the Minister would not remove Samuel into foster care pending the hearing on 24th June.
13. Unfortunately, in the early hours of 23rd June, the father left Samuel asleep in his grandparents' care in order to go and visit the mother. He explained in his statement that the mother had telephoned. They had argued a bit but agreed that they wanted to sort things out. She had asked him to come over to see her at their flat and he decided to go.
14. Unfortunately, he did not return to get Samuel up in the morning nor could he be contacted on his telephone. His whereabouts were simply unknown. The Children's Service had attended on a routine visit on the morning of 23rd June and noted that the father appeared to have abandoned Samuel with his grandparents. Efforts were made to contact the father but without success and accordingly, at about 2:30pm, the decision was reached to take Samuel back into foster care. Unfortunately it was not possible to place him back with his previous foster carers and he was therefore placed with new foster carers, with whom he remains. It is clear that by this time both parents had reverted to drug and alcohol use. However, both attended the Alcohol and Drug Service on 27th June. They admitted having used heroin, with the father admitting using two bags per day for the last two days and the mother admitting using two £50 bags per day for approximately the last week. They subsequently attended a meeting with the Children's Service on 30th June and repeated that admission.
15. Since then, Samuel has remained with the foster carers except that there was one period of respite for their holiday, when he was placed with other foster carers. He has, in his short life, therefore been looked after by three different sets of carers (including the parents), with a fourth if one counts the respite carers. The evidence suggests that he has been harmed by this instability. His current foster mother, who is very experienced, describes him as being an extremely challenging child at present. He is wary of food not being provided consistently and routinely. He gorges himself to the point of sickness and then becomes very distressed when food has run out. Similarly, he appears wary of falling asleep to the point of being very distressed at bed and nap times. Similarly, he is very distressed when put in his pushchair.
16. Since Samuel was placed back in foster care, arrangements have been made for contact to take place weekly. Unfortunately the parents' attendance has been poor. Of the thirteen contacts offered between 30th June and 29th September, they have attended only four, with two being cancelled by the Children's Service due to the parents' late arrival. There was no contact from the relapse on 23rd June until 21st July, although three contact sessions had been arranged prior to 21st July but the parents had not attended.
17. The Children's Service has now concluded that adoption is the only course available for Samuel in a timescale which meets his needs and accordingly the Minister now applies for a full care order together with an order freeing Samuel for adoption.
18. Before turning to summarise the key evidence, we would add that, following the order freeing her for adoption in July 2014, Mia was placed with prospective adopters. Sadly, that placement has broken down and Mia is back in foster care awaiting a new placement. Not surprisingly, that has upset the mother greatly and has reinforced her wish not to see Samuel also freed for adoption.
19. Miss Owens is the social worker with the Children's Service allocated to Samuel. She was however not the social worker during most of the events in question having only been allocated in August 2014. Nevertheless she is familiar with the file. The Court received from her a detailed report setting out the history of the matter and the reasons why the Children's Service have concluded that adoption is now the best answer. She also gave brief oral evidence in chief and was cross examined on behalf of the other parties.
20. She accepted that the parents loved their child and wished to care for him. Her report explains how, given their deep seated and long standing drug dependency, they had both made remarkable progress in the period from October 2013, when the interim care order was made, to May 2014, when the decision was taken to place Samuel back in their care with a view to long-term rehabilitation. She said that all concerned were very hopeful at that stage.
21. Sadly, both parents had shown an inability to place Samuel's welfare over their own. Faced with the stress and the strain of looking after a young child, the mother had relapsed and had returned to the use of drugs and alcohol. The father had been honest with the Children's Service in informing them of the mother's relapse and had agreed that he would continue to look after Samuel. Given the mother's relapse, he agreed to move to live with his parents with Samuel but he had nevertheless left Samuel alone in their care. Whilst this had been in the early hours of the morning, he had not returned the next day and could not be contacted.
22. Since then, the parents had shown poor attendance at contact sessions having missed many of them and having attended late for others. She referred in particular to the last of the weekly contact sessions fixed before the hearing before the Court. This was a chance for them to show the Court and the Children's Service that they could put Samuel's interests first and attend a meeting on time. Yet they failed to do so. As a result no contact had taken place.
23. The Children's Service had come to the reluctant conclusion that adoption was the best way forward for Samuel. The parents had shown that, despite the progress which they had made, they were unable to place Samuel's needs above their own very strong and individual needs.
24. Miss Owens was asked about the prospects for adoption, particularly in view of the fact that the placement for Mia had broken down. She said that it was most unfortunate that that had occurred, although Mia was a challenging little girl who struggled to let people care for her. Nevertheless, over the last five years, thirty five children had been adopted in Jersey and there had only been one breakdown of any placement, which was that of Mia. The Children's Service had done some preliminary work in relation to Samuel in case the Court should make a freeing order. They had three possible sets of adopters on their list of which one was a particularly strong match. She was confident that there were good prospects of a successful adoption and she anticipated that, if all went well, an introduction to potential adopters could begin in the latter part of January 2015.
25. In her report, she had seemed to indicate that Samuel's unusual behaviour in relation to food, the fact that he did not find comfort in sleep and appeared wary of falling asleep so that he became very distressed at bedtime, and his distress when put in his chair was attributable to his care in these respects being deficient during the period of rehabilitation with the parents. However, she accepted in evidence that none of the contemporaneous contact logs suggested any deficiency in this respect on the part of the parents and that it was more likely that it was a reaction to repeated changes in his placements, although a medical reason for his being sick when eating could not be ruled out.
26. At the beginning of the hearing the Court was shown a letter dated 7th October, 2014, from Dr Pandian at the General Hospital which stated that the mother was pregnant and had been unwell with hyperemesis, which had caused her to be unable to attend any of her appointments with Social Services for the past few weeks. It also stated that the mother was contemplating termination of the pregnancy. The mother confirmed in her statement of 11th November that she had now had that termination. She had done this because she wished to focus her whole attention on Samuel. It was put to Miss Owens that this was an explanation for the mother's non-attendance at contact sessions with Samuel. Miss Owens responded that the mother had never told anyone that this was the reason and the illness did not appear to cover the whole period when the mother had failed to attend. She did however accept that it appeared to explain some of the non-attendances.
27. She was pressed in cross-examination on behalf of the parents as to whether it would not be best, given the shortness of the relapse in June and the progress which the parents had continued to make since then, to work towards rehabilitation with them once again. Miss Owens was of the clear view that that would not be in Samuel's best interests. Such a course would lead to considerable further delay. The mother had failed to attend with the psychological services until recently so they had been unable to prepare a report for the necessary course for her which had been recommended. This had now been done. Because of her cognitive faculties, the suggestion was that the course should be twenty-four half sessions, which would take approximately six months. Everyone was agreed that it would not be right to attempt to rehabilitate Samuel with the parents until this course had been undertaken. Allowing for assessments etc., this meant that realistically it would be six to nine months before any attempt at rehabilitation could be made. During this time, Samuel would have to remain with foster carers and he would then suffer the disruption of moving to his parents. If that were not to be successful, he would then move back to foster carers before presumably being placed for adoption at that stage. Samuel was clearly suffering emotional upset already as indicated by some of his challenging behaviour and he needed to have a permanent placement in a loving and secure environment as a matter of urgency. The risk was simply too high and she could not support it.
28. Dr Gafoor is the head of the Alcohol and Drug Service in Jersey and is an expert on substance misuse. He prepared a report on the mother in April 2013 in connection with the proceedings relating to Mia. At that time he reported somewhat pessimistically. He stated that the mother had a history of illicit drug use from the age of eleven culminating with heroin dependency and criminal offending. He said that despite the full range of treatment options, spells of imprisonment and a near fatal overdose, the mother had been unable to conquer her addiction. Her chaotic lifestyle and penchant for street drugs remained undiminished. She frequently missed appointments, turned up intoxicated in the company of male drug users and suffered a near fatal overdose. At that stage, Dr Gafoor reported that the mother required an extended period within a residential treatment facility as she lacked the personal and social resources to overcome her drug dependency within a community setting. He did not consider her a suitable candidate for unsupervised contact with her children given her poor treatment compliance and her chaotic lifestyle.
29. Dr Gafoor prepared reports on 10th February, 2014, in connection with these proceedings on both the mother and the father.
30. In relation to the mother, he stated that her use of drugs and chaotic lifestyle continued unabated until June 2013, when she was sentenced to imprisonment; furthermore, that following the birth of Samuel, she went missing for three days and had been on an alcohol binge and injected illicit subutex.
31. However, he said that she resumed treatment with methadone on 30th September and also commenced on anti-depressants. He said that since then, her progress had been remarkable; she had attended all of her appointments and tested negative for both illicit drugs and alcohol. She had engaged fully with agencies and professionals. He summarised it by saying:-
"By all accounts, the efforts [the mother] and her partner are making to overcome their substance misuse at present are something of a road to Damascus experience that appears to coincide with their recent involvement in the church."
He went on to provide a cautionary note that he was mindful of their poor compliance with treatment previously and lengthy history of substance misuse and accordingly he advised a further period of assessment and drug testing for six months in order to ensure that progress was maintained.
32. As to the father, Dr Gafoor reported that he started taking illegal drugs at 14 (being 31 at the time of the report) and had developed a heroin addiction by 15. Despite several prison sentences, he had been unable to break his addiction. By February 2013, when he self-referred to the Alcohol and Drug Service, he was injecting two to three bags of heroin a day into his groin since he could no longer access veins in his arms. He began a methadone programme shortly thereafter and has since remained in treatment. Until the birth of Samuel in September, his treatment compliance had been poor. He missed several appointments and continued to use street drugs on top of prescribed methadone.
33. However, Dr Gafoor reported that since then, he had demonstrated notable progress by attending all appointments and testing negative for illicit drugs on every occasion. At the father's request, his dose of methadone was being gradually reduced with the intention of coming off it altogether within a period of six months. The father had made positive lifestyle changes by avoiding old drug acquaintances and taking up jogging. He had become an active member of the Freedom of Life Church together with the mother and participated in various church activities. Mr Houlliebecq from the church and his key worker at his place of residence both confirmed his recent progress. Dr Gafoor therefore supported increased contact with Samuel but advised that the father should continue to have ongoing monitoring and drug testing over the next six months.
34. Dr Gafoor produced updated reports on both parents on 21st July, 2014, following the failed rehabilitation in June. In relation to the mother, he reported that progress had been maintained such that on 25th April, her prescription for methadone was ended. However, on 26th June, she had telephoned and sounded intoxicated. The next day she and the father attended. The mother admitted that she had been injecting two bags of heroin a day for a week. She had decided to go missing because it "all became too much". She recommenced treatment with an opiate substitute called suboxone and anti-depressant medication.
35. On 30th June, the mother had attended forty-five minutes late for an appointment at 3pm. She said that it was because a meeting with the Children's Service had overrun but it later transpired that that had finished at 1:25pm, allowing the couple enough time to attend the meeting. The mother also missed various appointments prior to the date of the report. Dr Gafoor summarised the position by saying that, after completing her methadone treatment in April, the mother had remained drug free for two months before returning to illicit drugs. However she had now recommenced the treatment with prescribed suboxone. Given recent events, he proposed to review her progress in six months and was unable to recommend any change in the current contact arrangements with Samuel until then.
36. His report on the father was generally to like effect. He reported that the father had maintained his progress in the early part of the year, so much so that on 7th April his methadone prescription had been reduced to forty-two milligrams. However, on 24th June the father missed an appointment for a new methadone prescription and the Alcohol and Drug Service was later informed that the father had gone missing. He contacted the Service by telephone on 26th June when his speech sounded slurred and attended with the mother on 27th June, when he admitted that he had been using heroin for the last few days. Between then and the production of the report, there had been some non-attendance or late attendance by the father which led Dr Gafoor to state that the father had failed to sustain the progress mentioned in his earlier report and that he proposed to review the position again in six months. In the meantime he was unable to recommend any changes to the current contact arrangements.
37. As to more recent matters, Dr Gafoor reported that neither had tested positive for heroin since his July report, and the father had only missed two appointments. The mother had cancelled or missed some six out of ten appointments during that period.
38. A worrying aspect was that, although she had not tested positively for any other illicit drugs, the mother had tested positive on seven occasions for cannabis. This suggested that she was taking it on a regular basis and would involve her coming into contact with the illicit drug world in order to acquire the cannabis. The father had tested negative for cannabis except for two occasions, which had been the last two tests. Although less so than the mother, this was still a worry as it showed that he was in contact with the local illegal drug scene and also showed that during a period of stress, he was resorting to illegal drugs.
39. In summary, Dr Gafoor said that both parents had made excellent progress until the relapse in June and had since again made very positive progress. However, when asked to compare the position in May 2014 compared with now, he said that he would score the May position at eight out of ten, whereas he would currently score it only five out of ten. This was largely because of the positive tests for cannabis. If a person was unable to avoid taking illicit drugs even when under close observation and knowing that the Court would be taking such matters into account when deciding the future of their child, this was worrying. If ever they could have made the supreme effort to be entirely drug free, one would have thought it would be now; yet in the case of the mother, there was clearly some regular cannabis use. Having said that, there was no reason why they could not achieve the progress which they had made before the relapse in June but it would require much effort.
40. Mr Castleton and Dr Williams were asked to prepare a joint report. Mr Castleton is a chartered adult psychologist with a special expertise in substance misuse and Dr Williams is a consultant clinical child and adult psychologist. They prepared a detailed report dated 23rd February, 2014, and a helpful outline summary dated 21st February. We think it helpful to quote from the following passages from the outline summary:-
"1.1.3 It has been recognised by all of those involved in supporting the family that the parents have made good progress with service engagements and drug treatment and that above all they possess the skills to be very effective, warm and caring parents. From historical information, current reports and from our observational evidence, [the mother] and [the father] can at a 'cognitive' level meet their son's needs.
1.1.4 In contrast, [the mother's] and [the father's] somewhat chaotic and disorganised routine has been difficult to shift, which was illustrated by recent reports that they missed contact with Samuel twice in February 2014. It is particularly concerning that on one occasion this was a result of the parents having had too much to drink on the night before contact. It was also concerning that during observed contact, [the mother's] social anxiety appeared to compromise her parenting.
1.1.6 The risk for the parents is that their own unmet needs have the potential to see them return to self-destructive behaviours when they are faced with the full responsibility for parenting their child along with day-to-day stresses and the risk factors in their communities. Without substantial psychological change, it is our opinion that this remains a very high risk.
1.1.7 What is required above all else is for [the mother] and [the father] to make further progress to demonstrate that they have been able to address their history, to mature sufficiently, and through the strength that they find in their relationship, to prioritise the needs of their son over themselves. With respect to [the mother] this remains high risk.
1.1.8 In order to mitigate any risks in the parents, therefore, they would require additional support from highly specialist agencies in the island. This would include ongoing support from drug and alcohol services, and would be in addition to the psychological therapies that are being repeatedly recommended to enable [the mother] to address her individual needs, and to meet psychological issues that may emerge for [the father]. Both parents would benefit from attending activities and courses for young parents, this would be particularly important for [the father]. However this could be achieved by making a commitment to the work at the Bridge, and such groups that the parents attended at the Methodist church.
1.1.9 In the event that the Court decides that neither [the mother] or [the father] either collectively or individually, are able to meet Samuel's needs, nor that there is a safe family member able to care for him, it would be appropriate for Samuel to be considered for adoption."
41. Following the attempted rehabilitation and relapse in June, Dr Williams and Mr Castleton were asked to prepare an updated report, which they did on 14th August, 2014. They noted that although there had been progress, it appeared that despite high levels of support, when faced with demands of full-time childcare, the parents had struggled to maintain "good enough" standards and had reverted to a pattern of impulsive behaviour, including relapse in substance misuse. They endorsed the opinion of a psychologist in the earlier proceedings relating to Mia who had suggested that a period of six months of regulated prescription use or abstinence would be regarded as a minimum but that realistically twelve to eighteen months stability would be required to be confident that changes are likely to be sustained across the timeframe relevant to raising children. They concluded that the way the mother dealt with the world had been adversely affected by her background, emotional difficulties and lifestyle and that she had not been able to sustain appropriate strategies. This would not change until she completed the appropriate psychological treatment. Furthermore, the father had shown that, when tested, he was unable to put Samuel's needs above those of his relationship with the mother. They concluded their report as follows:-
"3.23 [The mother's and the father's] recent difficulties indicate that they have a long way to travel on the journey to sustained recovery, which will require further active engagement with services. Even if they demonstrate commitment to change, however, it is unlikely that this process could be completed within a timescale that is consistent with Samuel's need for a stable and secure future.
3.24 Consequently, it does not appear to be in Samuel's best interests for either parent to be assessed further either individually or as a couple to provide long term care for Samuel."
42. In his oral evidence, Mr Castleton maintained that view. He said that he would be concerned that, if Samuel were to be placed back with the parents, there would be repetition of the relapse which occurred in June. He emphasised that the parents had been given a high level of support and said that it was a pity if the father felt that the level of support was overwhelming. He was concerned about the continuing cannabis use and the continued difficulties of the parents in attending regularly and on time for contact sessions. He agreed that the mother had made significant progress but emphasised the importance of the psychological work which was required. This would entail a further period of delay for Samuel because it would not be right to attempt to rehabilitate Samuel with the parents until the mother had undertaken that work.
43. Dr Williams also gave oral evidence and adhered to the recommendation in his report. He acknowledged the progress which the parents had made in early 2014 and he had had high hopes of the rehabilitation in May. The outcome had been extremely disappointing. The difficulty was that they simply could not put Samuel's welfare before their own needs. The mother was an extremely vulnerable woman and, under the pressure of parenting, had relapsed. This was when Samuel needed the father but, when the crisis came, he had placed his relationship with the mother before Samuel's needs by leaving him with the grandparents and not returning to look after him. It was not simply the taking of drugs which led to a view that the risk was too high; parents taking drugs could provide adequate parenting. It was the chaotic lifestyle which in the present case was associated with that. An unstable and unpredictable home can be extremely damaging psychologically to a young child. In particular, the expert evidence was that the first three years were absolutely critical. He agreed with the guardian that it was too late now to make another attempt at placing Samuel with the parents.
44. In cross examination by Advocate Marks on behalf of the father, he said that he understood why the father had gone to see the mother in the early hours of 23rd June, but the fact was that he had put the mother's needs before those of his baby. The father needed at that time to turn unconditionally to his son but he had not done so. Dr William's concern was that, when these parents went into crisis, their parenting became inadequate. The continued missed contact sessions were a worry and showed an ongoing chaotic nature to the life of the parents. He noted for example that neither parent had been present when he started to give his evidence, which was an indication of their inability to put their son's needs first. In his view there would be a very high risk involved in returning Samuel to the care of the parents because of the risk of further relapse.
45. Miss Tinari is a senior practitioner in the Permanent Placing team of the Children's Service. She was supervising the social worker who was responsible for Samuel at the time of the events in June. She was called to give brief evidence about the detail of the decision to take Samuel back into foster care on 23rd June.
46. She explained that all had appeared to be going well until 13th June when there was a normal review meeting which the father attended but the mother did not. The father disclosed that she had gone the day before. It then transpired that she had done this three times earlier, so this was the fourth occasion. It was then agreed that the father had to take responsibility for looking after Samuel.
47. As to the events on 23rd June, a routine visit had taken place in the morning. The grandparents told the social worker that the father had gone out in the early hours and had not returned. Efforts were made to contact the father on his telephone but there was no reply. A second visit was made later that day but he had still not returned and neither the Children's Service nor the grandparents could establish contact with him or the mother. The grandparents had always made it clear that they were not willing to be assessed as carers and in those circumstances there was no alternative but to take Samuel back into foster care.
48. When it was put to her that the father intended to come back, Miss Tinari asked rhetorically why he had not. He had not been there in the morning to give Samuel his breakfast and Samuel would have felt anxious that morning to wake up without either the father or the mother being there. He did not have a strong relationship with the grandparents. She conceded that it was common for a child to be left with grandparents but this was not a normal situation.
49. The guardian was entirely supportive of the move to rehabilitate Samuel with the parents in May 2014 in view of the progress which they had made since October 2013. Furthermore, like the other professionals in this case, she accepts that the parents both love Samuel and believe that they are capable of providing adequate parenting for him.
50. However, the guardian has reluctantly concluded that Samuel's welfare requires him to be freed for adoption immediately. When Samuel was placed with the parents in May, the stress of parenting caused them both ultimately to relapse into drug misuse, and Samuel had to be returned to foster care. Sadly, because the previous foster carers had by then taken on another commitment, Samuel had to be placed with new foster carers. No further attempt at rehabilitation could be made until the mother had undertaken the psychology work which the expert psychologists had all recommended. The mother had failed to engage with the psychology department promptly so that the necessary tests before work could commence had only just been undertaken. This had shown that the work could only be undertaken at a certain pace and accordingly the course would last at least six months. Allowing time for assessment at the end of the course, it might well be nearly nine months before a further attempt at rehabilitation could be made, even assuming the parents maintained their progress throughout that period.
51. In her opinion, Samuel simply could not wait that long. He had suffered emotionally as a result of the instability during his first year and the repeated changes in placement. He was now a very 'needy' child. Even someone as experienced as his current foster carer found him a challenging child who often became very distressed in relation to sleep and food and would also show extremes of inconsistency between anxiety when being separated from the foster carers and a willingness to go to any adult indiscriminately for affection. There was an urgent need for a permanent placement as soon as possible with people who would provide him with high quality, attachment-based reparative care. The fact that he was now a challenging child made the prospects of a successful rehabilitation with the parents even more difficult as the stress would be greater than previously.
52. She accepted that there would be some short term anxiety and distress for Samuel when he was placed with potential adopters, but in the long term adoption offered by far the best hope of a secure and loving environment in which he could grow safely. In her view, the prospects for a successful rehabilitation with the parents were less good now than in May 2014. The parents had not remained entirely free of drugs - albeit that they had been free of heroin since the relapse in June - and they had failed to attend contact sessions appropriately with many being missed either because they did not attend at all or because they attended too late.
53. In summary, she said the risk of waiting, with a view to a further attempt at rehabilitation, was simply too great. She agreed that adoption was not a panacea but Mia's case had been the only breakdown in the last five years. Samuel simply could not wait for the parents to resolve their difficulties without suffering further emotional harm.
54. Neither of the parents felt able to go into the witness box. However, they had both made position statements which we have considered carefully. They both emphasised how much they love Samuel and how they were determined to be good parents for him. They emphasised the efforts which they had made between October 2013 and May 2014 to overcome their respective drug dependencies and how overjoyed they had been when the Children's Service decided to place Samuel in their care with a view to rehabilitation. The mother said how bitterly she regretted her relapse. It had all become too much for her. But she was now back on track and was taking suboxone, which would prevent any relapse into heroin dependency. She had not been taking this or any other prescribed drug at the time of the relapse.
55. As to her failure to attend contact sessions with Samuel on a regular basis since June, she explained that she had become pregnant and was suffering from hyperemesis which made her feel so ill that she was not able to leave the house and attend contact or other meetings. She was in a better place than she had been before the relapse in June. She was not hanging around with drug users and was keeping clear of drugs and any people who took them. She wanted to do everything she could to get Samuel back.
56. The father explained how he had in fact been heroin free for over a year until the relapse in June 2014. He regretted leaving Samuel with his grandparents but had been asked by the mother to come over to see her at 1am in the morning. They were up all night talking and then fell asleep at their flat. They woke when the mother received a telephone call advising that Samuel had been taken into foster care. It was only at that stage that he relapsed and started to drink and take drugs. He accepted that he was not contactable and that he had not immediately contacted the Children's Service following the news that Samuel had been taken back into foster care. This was something he deeply regretted. The relapse had only lasted a few days and he had since then been drug free. He and the mother had since attempted to rebuild their lives, having contacted the Alcohol and Drug Service on 27th June. He accepted that they had missed a number of contact sessions with Samuel but this was due to the illness of the mother during her pregnancy because he felt he could not leave her when she was very ill at this time or following termination of the pregnancy.
57. Both parents accepted that the threshold requirement for a full care order existed and that a care order should be made but opposed a freeing order. They wished for Samuel to remain in foster care until he could again be rehabilitated into the care of the parents.
58. They were supported by Annette Syvret, Resettlement Project Worker, who confirmed that there had been no concerns over undesirable visitors to the parents' accommodation in recent times nor had there been any suspicion of illegal drug use. The parents seemed to be engaging with their treatment programme with the Alcohol and Drug Service, the mother was keeping the flat in good order and generally the mother seemed to be on a more even keel.
59. The parents also relied upon a letter from Mr Kevin Houillebecq of the Freedom for Life Ministries (FFLM), which is a local charity established in 2008. Mr Houillebecq is well known to the court as a former probation officer. He believed that the mother had changed and was determined to be able to provide a home for Samuel. He noted that the parents were now free from heroin. He firmly believed that, with the right support in place, along with the belief that she could regain full time care of her son, the mother could prove she could be a good and suitable parent. He acknowledged that she had missed various contact sessions but said that the mother had stated that her belief was that she would not be getting her son back and he felt that she was thereby protecting her own emotions from the pain of separation in due course. Mr Houillebecq strongly urged the Court to give her more time with a view to allowing her to work towards increased contact with Samuel and rehabilitation in due course.
60. On behalf of the father, Advocate Marks said that there was much to be said in his favour. He had been free of heroin since April 2013 apart from the relapse in June 2014, which had lasted only a few days. He had been honest with the Children's Service about the mother's relapse and had informed them what had occurred. It was accepted that he had left Samuel with the grandparents on 23rd June but he had felt under enormous pressure to help the mother. He knew that Samuel was safe with the grandparents and intended to return later that day. It was only on hearing that Samuel had been taken into foster care that he had relapsed into drug use and then only for a short while. Since then, he had maintained his progress in relation to overcoming his drug dependency. Samuel would be best off with his birth parents if possible and his best interests would be served by attempting a further rehabilitation in due course. The experts had accepted that the parents were capable of providing good enough care when free of drugs and they were determined to stay free of drugs in future.
61. Advocate Wakeling's submissions on behalf of the mother were to like effect. Adoption should be treated as a policy of last resort; an upbringing with the birth parents was normally preferable. In order for adoption to be permitted, it must be clear that the parents could not offer good enough parenting. It was submitted that that was not the case here. There had been a relapse in June but the parents had learned from this and had been free of heroin now for a considerable period. The mother was particularly upset at the failed adoption placement for Mia and was all the more determined not to allow another child of hers to be adopted. She was willing to undertake the psychological work and the parents felt that, following the conclusion of that work, they would be able to look after Samuel. To wait for a few months would not be against Samuel's best interests; on the contrary it was worth waiting in order to rehabilitate him with his birth parents.
62. The approach of the Court to the making of a care order is well established and is to be found in the judgment of the Court of Appeal in Re F and G (No 2)  JCA 051.
63. The Court must therefore first consider the threshold criteria contained in Article 24(2) of the Children (Jersey) Law 2002, namely that the child "... is suffering or is likely to suffer significant harm... attributable to the care given to the child or 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." Only if the threshold test is met may the Court go on to consider whether it is in the best interests of the child to make a care order.
64. All the parties were agreed that the threshold criteria are met in this case and there is an agreed threshold statement. We agree and accordingly move on to consider the welfare stage. In that context, we remind ourselves of paragraph 8 of F & G which states:-
"8. For this purpose it is well established that:-
(i) The child's welfare is the paramount consideration (Article 2(1) of the 2002 Law).
(ii) Any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of the child (Article 2(2)) (ditto).
(iii) The Court must have regard to the seven matters ("the welfare check list") set out in Article 2(3) (ditto).
(iv) The Court must not make an order unless it considers that doing so would be better for the child than making no order (Article 2(5)) (ditto).
(v) Before making a care order the Court must scrutinise the care plan prepared by the Minister for the child. Before making a care order the Court must scrutinise the proposals for contact in the care plan and invite the parties to comment on them Article 27(11) (ditto)."
65. At this stage, the Court must take into account that the care plan proposes freeing for adoption.
66. A combination of Article 12(1) and 13(2) of the Adoption (Jersey) Law 1961 ("the Adoption Law") means that a court can only make a freeing order without the consent of a parent if the parent's consent can be dispensed with on one of the following grounds, namely that the parent:-
"(a) cannot be found or is incapable of giving agreement;
(b) is withholding his or her agreement unreasonably;
(c) has persistently failing without reasonable cause to exercise his or her rights, duties, obligations and liabilities as a parent...in respect of the infant;
(d) has abandoned or neglected the infant;
(e) (subject to paragraph 4) has persisted ill-treated the infant;
(f) has seriously ill-treated the infant;
(g) is incapable of caring for the infant or is of such habits or mode of life as to be unfit to have the care of the infant."
In this case the Minister relies on (b) (that the parents are withholding their consent unreasonably) and (d) (that they have abandoned or neglected Samuel). We should say at once that we do not find (d) to be satisfied. We accordingly only consider the question of the unreasonable holding of consent.
67. It follows that, when considering whether to make a freeing option, the Court has to consider two matters:-
(i) Is the making of a freeing order in the best interests of the child?
(ii) Is the consent of each of the parents being withheld unreasonably?
68. We have been reminded of the exceptional nature of adoption and accordingly the making of a freeing order. In Re L (Care: Threshold Criteria)  1 FLR 2050, in a passage expressly approved by both Lord Wilson and Lady Hale in Re B  UKSC 33, Hedley J said:-
"Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting............."
69. In Re B (supra) Lord Wilson said this at paras 32-33:-
"32. Judge Cryan's care order in relation to Amelia with a view to her adoption represented an interference with the exercise by Amelia, by M and by F of their rights to respect for their family life. It was therefore lawful only if, within the meaning of Article 8 (2) of the Convention, it was not only in accordance with the law but also 'necessary' in a democratic society for the protection of the right of A to grow up free from harm. In Johansen v Norway (1996) 23 EHRR 33 the European Commission of Human Rights observed at para 83 that "the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportional to the legitimate aim pursued'.
33. In a number of its judgments the European Court of Human Rights... has spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. Only a year ago, in YC v United Kingdom (2012) 55 EHRR 967 it said at para 134:-
'134. The court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under Article 8 to insist that such ties be maintained'.
Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them."
70. The approach in adoption cases reflected by the above passages has been considered in Re M  JRC 234 at paras 169 - 174 and we have reminded ourselves of the guidance to be obtained from the judgment of Clyde-Smith, Commissioner in that case.
71. As to the question of whether consent is being held unreasonably, we would refer to the observations of this Court in Re JS and BS  JRC 108 at paras 26 - 28 as follows:-
"26. An authoritative explanation of the word 'unreasonably' in this context is to be found in Re W (1971) 2 All ER 49. The head note of that case reads:-
"In withholding his consent to the adoption of his child a parent may be acting unreasonably within the meaning of S5(1)(B) of the Adoption Act 1958 even if there is no element of culpability or reprehensible conduct in his decision to withhold consent. The test of whether the refusal to give consent is unreasonable is an objective one to be made in the light of the circumstances of the case and, although the welfare of the child is not the sole consideration, it is a fact of great importance."
27. The House of Lords approved a passage from the judgment of Lord Denning MR in Re L (1962) 106 Sol Jo 611 where he said:-
"But I must say that in considering whether she is reasonable or unreasonable we must take into account the welfare of the child. A reasonable mother surely gives great weight to what is better for the child. Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent. We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstance of the case."
Lord Hailsham LC summarised the position in Re W as follows at 55:-
"From this it is clear that the test is reasonableness and not anything else. It is not culpability. It is not indifference. It is not failure to discharge parental duties. It is reasonableness, and reasonableness in the context of the totality of the circumstances. But, although welfare per se is not the test, the fact that a reasonable parent does pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor. It is relevant in all cases if and to the extent that a reasonable parent would take it into account. It is decisive in those cases where a reasonable parent must so regard it."
28. Lord Hailsham went on to add this cautionary note at 56:-
"I only feel it necessary to add on this part of the case that I entirely agree with Russell LJ when he said in effect that it does not follow from the fact that the test is reasonableness that any court is entitled simply to substitute its own view for that of the parent. In my opinion, it should be extremely careful to guard against this error. Two reasonable parents can reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. The question in any given case is whether a parental veto comes within the band of possible reasonable decisions and not whether it is right or mistaken. Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with its own."
72. We unreservedly accept the evidence of all the witnesses that the parents love Samuel very much and wish to provide a home for him. We also acknowledge the gravity of freeing a child for adoption, which separates the child from the birth family. However, we have come to the clear conclusion that Samuel's welfare requires that we make a final care order together with an order freeing Samuel for adoption. We summarise our reasons in the following paragraphs.
73. Both parents have longstanding and deep-seated drug dependencies. It is notoriously difficult to overcome such dependencies and the road to rehabilitation is often not a smooth one. It is accepted by all before us that, when the parents relapse into drug taking, their lifestyle becomes chaotic and Samuel is highly likely to suffer significant harm whilst in their care at such times.
74. We acknowledge the exceptional progress which they made between the making of the interim care order in October 2013 and the decision to place Samuel with them in May 2014. It was indeed encouraging and persuaded the Children's Service and their various advisers that the risk of placing Samuel with them was worth taking. Unfortunately, it is clear that the pressure of parenting was too much for the mother who relapsed into drug and alcohol consumption. She was not there to look after Samuel. The father did not relapse at that stage but, when a choice had to be made between his relationship with the mother and Samuel's needs, he chose the former. We are willing to accept that he intended to return to look after Samuel on 23rd and that he did not himself relapse into the taking of drugs until after he learned that Samuel had been taken back into foster care. However, he had effectively abandoned Samuel. It has always been clear that the grandparents do not wish to act as carers to Samuel. The father was not there when Samuel woke up that morning and could not be contacted until after the decision to take Samuel back into foster care had been made in the early part of the afternoon. He had simply abandoned Samuel into the care of the grandparents and no-one could contact him. The Children's Service were clearly left with no alternative but to take Samuel back into foster care in the face of this apparent abandonment.
75. We accept that the relapse back into heroin dependency was short lived for both the father and the mother and that they sought assistance from the Alcohol and Drugs Service within a few days, being then placed back on methadone and suboxone programmes respectively. Nevertheless, the evidence before the Court, which we accept, is that the position of the parents in that respect is not as good now as it was in May 2014 before the failed attempt at rehabilitation. Thus Dr Gafoor placed them at 5/10 now as compared with 8/10 then. The main cause of the difference is the fact that the mother has regularly been taking cannabis and the father has tested positively on two occasions shortly before this hearing. The fact that, at this critical time when they must know that their future with Samuel is at stake and that they will be under observation, they have been unable to manage without illicit drugs, is a cause for concern.
76. There are other worrying signs that they are not in as good a position to look after Samuel now as they were in May. Thus:-
(i) They have failed to attend numerous contact sessions with Samuel. Again, given the fact that this hearing was due to take place, one would have thought that, if they were ever to be able to place Samuel's needs above their own, this would have been the time for it in order to ensure that the bond with him was maintained and that they were showing the Court that they could act responsibly. We accept that the mother was suffering illness whilst pregnant and this may explain some of the failures. The difficulty is that this was never communicated to the Children's Service so that they were completely unaware of the reason. Furthermore, this does not cover the entire period when contact sessions were missed, nor does it explain why the father was unable to attend contact sessions even when the mother could not.
(ii) The failure to attend contact sessions is particularly significant in relation to the last session just before the hearing. As Miss Owens said, one would have expected them to have attended this session of all sessions in order to show their desire to bond with Samuel and the importance they attached to contact with him; yet the contact session did not take place.
(iii) In this connection, the Court noted the observation of Dr Williams that the parents had failed to attend on time to hear the beginning of his evidence, despite the fact that this was fixed for 12 midday. The Court also noted the difficulty which the parties found in attending Court on time. On the first day the father did not attend at all because he was said to be unwell and the mother was late. On the second day, the father was a little late and the mother was later. On the third day they were late when the Court sat to hear Dr Williams' evidence as described.
(iv) The mother has failed to engage in a timely fashion with the psychological services, having missed a number of appointments for the necessary test, with the result that it has only just been carried out. This has led to a delay in the beginning of the psychological work which all the experts agree is necessary before any attempt at rehabilitation could even be contemplated.
77. The parents submit that, despite these concerns, the importance of Samuel remaining with his birth family if possible points in favour of a further attempt at rehabilitation being made under the auspices of a care order. The difficulty with this is that, for the reasons given above, the prospects of a successful rehabilitation are lower at present than they were in May and yet it failed at that time. Furthermore, it would lead to considerable delay. All the experts are agreed that the psychological work with the mother must be undertaken before any attempted rehabilitation and that will take some six months. Accordingly, any rehabilitation would not take place until after that period. Samuel would have to remain in foster care until then. This would delay the attachment process at a critical age when Samuel needs to form safe and secure bonds of affection and to be in a stable and secure environment.
78. It might possibly be open to a court to conclude that this was the appropriate course if the evidence disclosed great confidence that such rehabilitation would be successful. However, that is not the case here. For the reasons which we have already summarised, the evidence suggests that the prospects of a successful rehabilitation are lower at present than they were in May. We acknowledge that if the mother undertakes the psychological work and the parents remain drug free for a further six months, the prospects would improve but these aspects remain uncertain. A further factor is that, as discussed by the social worker and the guardian, Samuel is at present a challenging and needy child because of the instability which he has suffered. Thus the stress and strain for the parents would be greater now than in May, when he was not showing such symptoms of emotional harm. Yet, even in May, the pressure of parenting was such as to lead the mother to relapse and the father to put her needs above those of Samuel.
79. Ultimately, we must take note of the fact that there is a unanimity of view amongst the experts in this case. The social worker, the guardian, Mr Castleton and Dr Williams were all quite clear in their view that it was simply too big a risk with Samuel's welfare to defer matters to allow a further attempt at rehabilitation with the parents. The prospects were too uncertain and the damage of continuing delay for Samuel would be too great. We accept that evidence.
80. We acknowledge that adoption is not a panacea and that Samuel will suffer short term stress as a result of moving to a placement with prospective adopters. Nevertheless, for the reasons given by the experts, we agree that the overriding priority for Samuel is to provide him with a safe, secure, stable and loving environment and that this needs to be done very shortly to prevent further harm.
81. In the circumstances, we are in no doubt that Samuel's best interests would be served by the making of a freeing order.
82. The question then arises as to whether the parents are withholding their consent unreasonably. We have borne in mind the cautionary words of Lord Hailsham summarised at paragraph 71 above but in our judgment, it is so clearly in Samuel's best interests that an order be made freeing him for adoption that it is unreasonable for the parents to withhold their consent. As Lord Denning MR said in the passage also quoted at paragraph 71, a reasonable parent gives great weight to what is best for the child.
83. In summary, we are satisfied that the threshold test for making a care order is met and that it is in Samuel's best interests that we should do so. We therefore made a final care order. We also conclude that it is in Samuel's best interests for an order to be made freeing him for adoption and that the parents are withholding their consent to such an order unreasonably. We therefore made an order freeing him for adoption. We are satisfied, in accordance with Article 12(3) of the Adoption Law that it is likely that Samuel will be placed for adoption given Miss Owens' evidence as to the matching of prospective adopters which had already taken place.
Children (Jersey) Law 2002.
Adoption (Jersey) Law 1961.