Jersey Unreported Judgments

Care order - reasons for granting application of final care order and freeing order.

[2015]JRC234

Royal Court

(Samedi)

19 November 2015

Before     :

Sir Michael Birt, Commissioner, and Jurats Marett-Crosby and Thomas

 

IN THE MATTER OF BARBARA (FINAL CARE ORDER AND FREEING ORDER)

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

Advocate R. E. Colley for the Minister.

Advocate S. E. Fitz for the First Respondent.

Advocate C. G. Hillier for the Second Respondent.

Advocate T. V. R. Hanson for the Third Respondent.

judgment

the commissioner:

1.        This is an application by the Minister in relation to Barbara (this is not her real name), who is aged eighteen months.  The Minister applies for a full care order and an order freeing Barbara for adoption.  At the conclusion of the hearing, the Court granted the application.  We now give our reasons. 

Background

2.        The background is set out very fully in the judgment of the Court dated 27th April 2015, In the matter of Barbara (Care order) [2015] JRC 082 ("the April judgment").  The reader is referred to the April judgment for the factual background and we propose to give only a brief summary in order to avoid unnecessary repetition.  

3.        Barbara is the only child of the First Respondent ("the mother") and the Second Respondent ("the father") and both hold parental responsibility.  The mother has enduring health and substance misuse issues.  There have been frequent admissions to Orchard House.  She accepted at the time of the April judgment that she was not able to care for Barbara.  Her goal was to get well enough to care for Barbara and in the meantime, she wanted the child to live with Mr and Mrs E.  Mrs E is the mother's sister. 

4.        The father has a long history of substance misuse and concomitant offending.  He has 23 convictions for 128 offences which include seven offences against the person from 2007 - 2014.  At the time of the April judgment, the report from the Drug and Alcohol Service described the father as presenting as "an inarticulate and socially inept individual with few meaningful social relationships and interests" but confirmed that the father had made a concerted effort to be abstinent from alcohol.  At the time of the April judgment, the father sought a residence order in his favour with a managed and phased transfer of Barbara's care to him.  If the Court felt unable to make such an order, he supported Barbara being cared for by Mr and Mrs E. 

5.        The mother's pregnancy was complicated by her mental ill health and use of medications prescribed by her attending psychiatrist.  After her birth, Barbara was taken into the Special Care Baby Unit due to difficulties with her breathing and feeding.  She was nevertheless discharged home to the care of the mother. 

6.        There then followed a chaotic period with the mother, clearly unable to cope, placing Barbara with various members of her family.  The social worker in the Children's Service responsible for Barbara at the time calculated some 17 moves in all, involving the maternal grandmother, the maternal great-grandmother, a paternal aunt, and a maternal great-aunt.  On 24^th August, 2014, the mother placed Barbara with Mr and Mrs E. 

7.        The matter first came before this Court on 2^nd September, 2014, when the Minister applied for an interim care order.  His proposal was that Barbara be placed with foster carers for the reasons set out at paragraph 7 of the April judgment.  Advocate Fitz, for the mother, submitted at that hearing that it would be preferable for Barbara to be cared for in the interim by the maternal grandmother.  The Court was persuaded by the submissions of Advocate Fitz and concluded that Barbara should remain in the family under the care of the maternal grandmother whilst assessments were carried out.  It therefore adjourned the Minister's application in order to enable the Minister to reconsider the care plan. 

8.        The maternal grandmother then withdrew from consideration as an interim or long-term carer in order it seems to avoid the potential damage that could be done to the family by an enquiry into an allegation of historic sex abuse made against the maternal grandfather.  The matter came back before the Court on 17^th September and proceeded at that stage by agreement.  It was agreed that Barbara should remain living with her aunt, Mrs E, under an interim care order in favour of the Minister.  Mrs E had agreed to reduce her working hours so as to become the child's primary carer.  Mr and Mrs E also put themselves forward as long-term carers for the child for which a connected person's assessment would need to be carried out.  The Court approved the proposals and made an interim care order. 

9.        On 23^rd October, 2014, Barbara was admitted into hospital for a period of assessment due to concerns about her faltering growth, her general presentation and the impact upon her of being exposed to multiple care providers (meaning Mr E, Mrs E, the mother, the father and the maternal grandmother, if not other members of the family).  

10.      On 30^th October, 2014, Diane Burgess (who had become the allocated social worker on 2^nd October) informed Mrs E that on Barbara's discharge from hospital, she would be placed in foster care.  She explained in a letter dated 30^th October that, in the view of the Children's Service, the child's needs could not be met in the current family placement because it did not give the child the stability and consistency she needed to thrive and develop.  In response to this, Mrs E saw no point in continuing with the connected person's assessment on herself and her husband that they were part way through. 

11.      Mr and Mrs E were subsequently joined to the proceedings as fourth respondents on 16^th February, 2015, and what was intended to be the final hearing took place on the four days commencing 2^nd March, 2015.  It was that hearing which led to the April judgment. 

12.      None of the parties disputed before the Court in the March hearing that the threshold criteria under Article 24(2) of the Children (Jersey) Law 2002 ("the 2002 Law") were met.  Having considered the evidence the Court agreed.  At paragraph 24 of the April judgment, it said that the risk of neglect and emotional harm to Barbara could be summarised as arising out of the following:-

(i)        Misuse by both parents of drugs and/or alcohol. 

(ii)       Domestic violence on the part of the father. 

(iii)      Inability of both parents to prioritise their child's needs above their own. 

(iv)      The inconsistency of a primary carer, with the mother moving and removing the child to and from various members of the family. 

(v)       The mother's mental health issues.  

13.      The Court therefore went on to consider the welfare stage and the welfare checklist under Article 2(3) of the 2002 Law.  The Minister submitted that none of the mother, the father or Mr and Mrs E was capable of meeting Barbara's needs; hence the care plan provided for a final care order coupled with an order that she be freed for adoption. 

14.      Having considered the evidence in some detail, the Court agreed that neither the father nor the mother was capable of meeting Barbara's needs within her timescales. 

15.      The Court then went on to consider at some length the position in relation to Mr and Mrs E. it reminded itself of the fact that adoption was a policy of last resort and should only be made when nothing else would do.  It concluded that the assessment of Mr and Mrs E as potential carers should be completed and that there were reasonable prospects of that assessment being successful.  It did not therefore agree with the care plan and adjourned the Minister's application, inviting him to reconsider his care plan.  It therefore adjourned the matter without making a final care order or any order freeing Barbara for adoption.  It continued the interim care order and Barbara remained with the foster carers with whom she had been living since November 2014. 

Events since the April judgment

16.      The Minister very properly did reconsider the care plan and looked into the question of whether Barbara could be placed with Mr and Mrs E under a care order.  To assist with this investigation, the Court ordered the preparation of various reports.  Dr David Briggs produced a psychological report dated 8^th June, 2015, on Mr and Mrs E and a further report dated 9^th June, 2015, in respect of whether there was a risk of sexual harm caused by the maternal grandfather.  In respect of the latter, he concluded that he was unable to determine whether there was a risk. 

17.      Dr Bryn Williams prepared a psychological report dated 11^th June on the child.  Both Dr Briggs and Dr Williams raised the question as to whether Barbara's failure to thrive as normal could have an organic reason rather than just being attributable to poor parenting.  It was agreed therefore that an expert from the UK should be appointed to consider this aspect and Dr Knight-Jones subsequently prepared a report dated 26^th August, 2015, together with an addendum dated 5^th September and a second addendum dated 8^th September.  The problems identified are that Barbara continues to have feeding difficulties.  She eats very little solid food with the result that the majority of her calorie intake has to come from fortified formulae milk.  If she is unsettled, unwell or out of routine, her appetite will wane and she will reduce the already limited amount of solid food which she consumes.  She is a small child whose lack of weight growth is of concern.  In effect she remains developmentally delayed.  Dr Knight-Jones concluded at paragraph 345 of her report:-

"... with regard to causation of the problems I have listed [above], I would say that the possibilities are

(a) partial Foetal Alcohol Syndrome; (b) a genetic condition or syndrome as yet undiagnosed, possibly Russell Silver; (c) the result of multiple adverse factors including parental intelligence below average though within normal range, exposure in utero to psychotropic medication; possible exposure in utero to excessive alcohol, multiple care-taking in her early months."

18.      In terms of what Barbara required of carers in the future, Dr Knight-Jones said at para 353:-

"In my opinion, despite her good progress recently, Barbara should be regarded as a child with special needs, though it is not possible to be specific as to their severity or even their nature. At present she needs a parent who can be patient in encouraging her to eat sufficient amounts of a range of foods, and able to take the advice on this from the speech therapist and dietician. I am unable to say whether this will be a long term need throughout childhood but this is quite possible."

19.      Mr and Mrs E had always maintained that they wished to care for Barbara and that they could meet her needs.  However, after reading these various reports, they came to the painful but understandable conclusion that, due to Barbara's extensive needs, they would not be able to meet her needs whilst at the same time looking after their own children and fulfilling the other demands upon them.  Accordingly, on 11^th September, 2015, through their advocate, they withdrew from the proceedings, of which they had hitherto been the Fourth Respondents.  They are no longer putting themselves forward as being in a position to care for Barbara.  

The current position of the parties

20.      It is to be recalled that, at the time of the hearing which led to the April judgment, the Minister had concluded that there was no alternative to a final care order coupled with an order freeing Barbara for adoption.  Following the Court's decision in the April judgment, the Minister very properly pursued the alternative of exploring whether Barbara could be placed in the care of Mr and Mrs E under a care order.  However, following Mr and Mrs E's withdrawal, that option is no longer available.  In the circumstances, having considered all the evidence and reconsidered the position, the Minister maintains that Barbara needs permanence in early course and that there is no alternative to her being freed for adoption.  

21.      Neither the mother nor the father put in position statements or provided any evidence.  On the mother's behalf, Advocate Fitz confirmed that she continued to accept that she was not well enough to put herself forward as a carer for Barbara.  However, she did not consent to an order freeing Barbara for adoption and was horrified at the thought.  She had hoped some member of the family would be able to care for Barbara but accepted that no one was putting themselves forward at present.  She rested on the wisdom of the Court to do what was right in Barbara's best interests.  On her behalf, Advocate Fitz handed up photographs and various notes prepared by the mother which, as requested, we have carefully considered before coming to our decision. 

22.      Advocate Hillier stated that the father was in a similar position.  He did not consent to the making of a full care order or a freeing order.  In his view 'family is best'.  He wished Barbara to be placed in the care of some member of the family.  However he was not making any application himself.  He wished to maintain contact with Barbara. 

23.      In her report, the guardian concluded that a full care order and a freeing order were required in Barbara's best interests.  Barbara was now nearly eighteen months old and it would not be right to keep her waiting any longer for any further assessments.  She was a young baby with complex needs who urgently needed permanency in order to offer her long term security and stability.  She therefore concurred with the views of the Minister save in respect of the issue of contact, to which we shall return later. 

The law

(i) Care Order

24.      The law on this topic is well established.  The Court must first consider whether the Minister has established on the balance of probabilities that the threshold criteria set out in Article 24(2) are satisfied.  Only if they are may the Court go on to consider what order, if any, should be made.  In that respect the applicable principles were summarised by the Court of Appeal in Re F and G (No.2) [2010] JCA 051 where at paragraph 8 Beloff JA said:-

"For this purpose [i.e. whether an order should be made] it is well established that:-

(i) The child's welfare is the paramount consideration ...

(ii) Any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of the child ...

(iii) The Court must have regard to the seven matters ("the welfare check list") set out in Article 2(3) ...

(iv) The Court must not make an order unless it considers that doing so would be better for the child than making no order ...

(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 upon them."

(ii) Freeing for adoption

25.      On this aspect, as stated in Re JS and BS [2005] JRC 108, approved in Re F and G (No.2) at para 74, the Court has to ask itself two questions:-

(i)        Is it satisfied that adoption would be in the best interests of the child?

(ii)       If so, is it satisfied that the parents are withholding their consent to freeing for adoption unreasonably?

26.      An authoritative explanation of the word 'unreasonably' in this context is to be found in Re W [1971] 2 All ER 749.  The headnote 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 all 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 in that case 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 circumstances of the case."

28.      In Re F and G (No.2), Beloff JA at paragraph 81 quoted with approval the observations of Steyn and Hoffmann LLJ in Re C (a Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR at 272:-

"Whether, having regard to the evidence and applying the current values of our society, the advantages for adoption of the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents. The reasonable parent is only a piece of machinery invented to provide the answer to this question."

29.      In deciding whether to grant a freeing order, the Court must always bear in mind the drastic consequences of such an order and the fact that it should only be made where it is necessary to do so in order to protect the interests of the child.  In Re M [2013] JRC 234 the Court approved at paragraph 170 the following passage from the decision of the English Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 where at paragraph 22, the Court of Appeal said this in relation to the earlier decision of the Supreme Court in Re B (a child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911:-

"22. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption - care orders with a plan for adoption, placement orders and adoption orders - are 'a very extreme thing, a last resort', only to be made where 'nothing else will do', where 'no other course [is] possible in [the child's] interests', they are 'the most extreme option', a 'last resort - when all else fails', to be made 'only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do' ..."

30.      Clyde-Smith Commissioner went on in Re M at paragraph 172 to endorse the view in Re B-S that there were three further important points:-

(i)        a child's interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible;

(ii)       the Court must consider all the options before coming to a decision; and

(iii)      before making an adoption order (or a freeing order) the Court must be satisfied that there is no practical way of the authorities providing the requisite assistance and support which would allow the child to remain within the family.  

31.      Finally we remind ourselves that it was confirmed in Re the T Children [2009] JRC 231 that, when the Court is considering parallel applications for a care order and a freeing order, the Court may consider the matter in the round rather than dealing with the respective applications separately. 

32.      We have applied all the above principles in coming to our decision. 

Discussion

33.      As well as the papers which were before the Court for the March hearing and the reports referred to earlier at paragraphs 16 and 17, the Court received detailed reports from Ms Burgess, the social worker in the Children's Service allocated to Barbara, and from the guardian.  The Court also heard oral evidence from Ms Burgess and the guardian. 

34.      Having considered all the material before us, we have sadly but clearly come to the conclusion that a care order coupled with a freeing order is required in Barbara's best interests.  Our reasons are as follows. 

35.      As stated earlier, before concluding that adoption is the best course, the Court must consider whether there is an alternative which meets Barbara's needs. 

36.      The first alternative would be to make no order.  In those circumstances parental responsibility would remain solely with the mother and father.  In circumstances where the Court has found that the threshold criteria are met (so that there would be a risk of significant harm), where the mother accepts that she is not in a position to care for Barbara, where the father has not on this occasion asserted that he is in a position to care for Barbara and where, for reasons with which we agree, the Court in the April judgment held that the father was not capable of meeting Barbara's needs within her timescales, this is not a viable alternative. 

37.      Similar concerns also rule out, in our judgment, a supervision order or a family assistance order.  Under both of these orders, the Minister would have no parental responsibility which would remain with the parents.  This would not offer adequate protection for Barbara. 

38.      The next alternative might be to make a care order but to place Barbara with a member of the extended family or in long-term foster care. 

39.      As to the former possibility, this was what the Court wished to be explored further following the April judgment, particularly in relation to Mr and Mrs E.  We respectfully agree that that was the correct course to take in April.  However, that has now been tried and, for entirely understandable reasons, Mr and Mrs E no longer put themselves forward as potential carers because of the likely pressures upon their family in the light of Barbara's special needs as disclosed by the various reports obtained since the April judgment.  That option is therefore no longer available. 

40.      At paragraphs 60-66 of her report, Ms Burgess considers the position of the maternal grandmother.  Ms Burgess also addressed this topic in her oral evidence.  As set out in the April judgment (summarised at paras 7 and 8 above), the initial plan in early September 2014 was for the maternal grandmother to look after Barbara.  However, she withdrew as a potential carer before 17^th September.  She has only had direct contact with Barbara on one occasion since Barbara was placed in foster care.  However she has maintained a strong interest in Barbara's welfare and has found it difficult to accept the lack of contact, which was the Minister's decision. 

41.      Following the withdrawal of Mr and Mrs E as potential carers, the maternal grandmother contacted the Children's Service in October to say that she wished to be assessed as a carer for Barbara.  She subsequently met with Ms Burgess and another member of the Children's Service on 9^th October, 2015.  It is clear that this was a very emotional meeting for the maternal grandmother and that she desperately wants Barbara to remain in the care of the family.  However, after a lengthy discussion in which she explained some of her other commitments (e.g. looking after one of her daughters who has special needs and lives with her, and the recent diagnosis of her mother with cancer), she said that she knew she was too old and could not manage Barbara's needs with all the other demands placed upon her by other family commitments.  She was very upset at the realisation of what this meant but did withdraw her earlier comment that she wanted to be assessed as a carer. 

42.      On the morning of the hearing, the maternal grandmother hand delivered a letter addressed to the Court in which she described some of her feelings and asked again to be assessed as a potential carer for Barbara.  She explained that, even if she did not pass assessment, she would at least have tried.  That letter was supplied to all the parties prior to the hearing. 

43.      We have carefully considered whether the case should be adjourned for such an assessment to be carried out.  However, we do not think that would be in Barbara's best interests.  We fully understand the maternal grandmother's desire to be considered but the experts advise - and we agree - that what Barbara needs is permanence in early course.  There has already been delay (albeit for the best of reasons) as a result of the April judgment.  Furthermore, any adjournment would be in circumstances where, given her past changes of mind and given her age and the other pressures upon her, it seems unlikely that the assessment would be positive.  No party actually applied for an adjournment but we nevertheless considered the point in the light of the maternal grandmother's heartfelt letter.  In the event of her meeting Barbara in later life, she would certainly be able to say that she had tried her best to keep Barbara in the family. 

44.      In summary therefore, there is no member of the family with whom Barbara could be placed.  Furthermore, we do not consider that long term foster care (whether or not in the hope that the mother or father might at some time in the future be able to resume her care) is a satisfactory solution.  It would prevent Barbara from having a new forever family and living a normal life free from supervision by the Children's Service.  As Ms Burgess said in evidence, it would be very unusual to conclude that long term foster care was appropriate for a child as young as Barbara. 

45.      Having considered the alternatives, we have come to the clear conclusion that a care order followed by a freeing order is the best course for Barbara.  It is well established that it is preferable for a child to be in a stable and secure environment, able to form strong bonds of attachment, at as earlier an age as possible.  Barbara is now nearly 18 months.  We agree with the Minister and the guardian that she needs as soon as possible to be placed with a permanent family with a view to growing up in safe and secure surroundings.  We bear in mind that adoption is a policy of last resort but, despite the Court doing its best to find an alternative in the April judgment; events have shown that there is in practice no satisfactory alternative. 

46.      Having concluded that freeing for adoption is in Barbara's best interests, we must go on to consider whether the consent of the mother and the father to a making of an adoption order should be dispensed with on the grounds that such consent is being withheld unreasonably.  

47.      As set out at paragraphs 26 and 27 above, when considering whether consent by a parent is being withheld unreasonably, the Court considers that a parent must give great weight to what is best for the child.  In the present case, neither the mother nor the father has put forward any alternative proposal.  They do not suggest that they can care for Barbara, nor is there any other member of the family who can do so.  If a freeing order were not to be made, the result would presumably be that, for the time being, Barbara would carry on in a state of some uncertainty under a care order.  The current foster carers are not available as long term foster carers and accordingly there would have to be some move elsewhere in any event.  Barbara would be prevented from forming permanent bonds of attachment at this important formative age. 

48.      Having regard to all the circumstances of the case, we consider that the withholding of consent by the mother and the father is unreasonable. 

49.      Article 12(3) provides that the Court shall not dispense with any consent unless the Court is satisfied that it is likely that the child will be placed for adoption.  We have heard evidence from Ms Burgess on this aspect.  She has explained that she has two approved potential adopters in Jersey although one of them lives too close to the parents to be considered.  She would begin the process of approaching such potential adopters immediately following the Court's decision.  There are apparently further potential adopters in the course of being approved at present.  If no adopters could be found in Jersey, the Minister would consider adoption in the UK or one of the other Crown dependencies.  Indeed, given the number of members of the extended family in Jersey and the fact that Barbara has a very noticeable birthmark such as to make her easily recognisable, the Minister considers that he may in any event conclude that adoption out of the Island is preferable, so as to enable Barbara and her new family to have an appropriate level of privacy and anonymity.  Barbara was young and was a particularly engaging young child who everyone related to very easily.  Although she had special needs (which would of course be disclosed to any potential adopter) the Children's Service was confident that adoptive parents would be found.  Having regard to her evidence, we find that Article 12(3) is satisfied in that it is likely that Barbara will be placed for adoption.  We therefore dispense with the need for the agreement of the mother and the father to the making of an adoption order. 

Contact until placement

50.      Ms Burgess was asked in evidence about possible timescales in the event of the Court granting a freeing order.  She said that the matching process would begin immediately after the Court's decision.  If all went as well as possible, she would hope that a proposal for specific adopters could be taken to the monthly meeting of the Adoption and Fostering Panel in January 2016.  Following that, introductions to the proposed adopters could begin in mid-February.  Assuming these went satisfactorily, placement with the family could take place by the end of February.  A placement had to continue for at least 13 weeks before an application for adoption could then be made.  She accepted that this was a best case scenario and that the timescale would be longer if, for example, there was delay in finding matching adopters who were willing to take Barbara with her special needs. 

51.      The mother and the father have each been having contact with Barbara once a week for two hours.  The Minister proposes at paragraph 72 of the Care Plan that, in the event of the Court granting a freeing order, contact would be subject to a phased reduction, with the final contact taking place on 15^th December, 2015, for the mother and 17^th December for the father. 

52.      In her evidence, Ms Burgess stated that it was normal to look for a period of no contact prior to introduction to proposed adopters so as to give space to a child to prepare for a move to a new family.  She accepted that the Children's Service would often recommend monthly contact until a new family was found, but in this case the Children's Service was recommending a reduction and cessation of contact in accordance with the Care Plan.  We would summarise the reasons which she gave for that decision as follows:-

(i)        It was not clear how the parents would react to any freeing order.  Thus on 22^nd May, 2015, the father said that he had been in the Royal Square and had been experiencing thoughts of dosing himself in petrol and setting light to himself.  On 27^th May he threatened to do this if Barbara was adopted and this was repeated on 9^th June.  On 1^st October he threatened to "do something" if the Minister's Care Plan was adopted.  Given these matters and the mother's mental state, it was not clear how they would react and, if they reacted badly, contact would not be beneficial for Barbara. 

(ii)       Given the Christmas break (the foster carers were taking a holiday), she was concerned that resumption of contact on a monthly basis after such a break might be disruptive for Barbara.  She was not convinced that it would be beneficial to Barbara and contact had to be purposeful for the benefit of the child.  She was concerned that it might be unsettling for Barbara to have contact which was intermittent in this way. 

(iii)      As a result of the various reports, the foster carers were now taking Barbara to a number of additional appointments in order to help address her delayed development and there was a limit at her age to how much one could demand of her. 

In summary, whilst accepting that there were arguments the other way, the Children's Service believed that the proposal to reduce and terminate contact prior to Christmas would be best for Barbara. 

53.      In her evidence, the guardian said that she understood the arguments put forward on behalf of the Minister.  However, she felt that it would be wrong to have such a fixed plan.  There was a real possibility that placement would take longer than was envisaged.  If this were to occur, there might well be quite a period between the end of contact with the parents in December and the beginning of any introduction to proposed adopters.  There was no reason why contact with the parents should not continue during this time.  The evidence was that contact had gone well.  She felt it would be preferable to see how contact went following the Court's decision and then take a decision as to any reduction or termination in the light of the circumstances then prevailing.  These would include how the parents had reacted to the decision, the other demands upon Barbara's time and the developing timescale in respect of any placement.  She felt that it was likely that monthly contact would be appropriate until shortly before any introduction to proposed adopters, assuming that contact continued to go satisfactorily.  She therefore suggested that it should be left to the discretion of the Minister without the fixed proposal anticipated in the Care Plan. 

54.      In our judgment, the views of the guardian on this aspect are to be preferred.  We understand the thinking behind the Minister's suggestion, but we do not think that monthly contact is likely of itself to place an undue burden on Barbara and the concern about how the parents will react to the Court's decision is as applicable to contact in November and December as to any contact which might take place thereafter.  We think that there is a real possibility of matters taking longer to progress than the best case scenario referred to by Ms Burgess and the Minister ought to keep open the possibility of continuing contact on, say, a monthly basis if that were the case. 

55.      Accordingly, we consider that the best course would be for the Minister to keep an open mind on contact and to continue it (or not) in his discretion having regard to the various factors such as developing timescales, the reaction of the parents, Barbara's reaction to contact etc. 

56.      Subject only to this point on contact, we approve the Minister's Care Plan. 

Summary

57.      In conclusion, we wish to say that we accept without reservation that both the mother and the father love Barbara.  They would wish to look after her if they possibly could and if that were not possible they would wish her to be brought up in the extended family.  The grandmother and Mr and Mrs E also love Barbara and do not wish to see her adopted out of the family.  However, for the reasons which we have given, it is not possible for her to be cared for by a member of the family.  In the circumstances, we have come to the clear conclusion that the best course for Barbara would be to free her for adoption and to dispense with the need for the parents' consent so as to give her the safe and secure environment she needs as soon as possible.  In the circumstances:-

(i)        We grant a final care order. 

(ii)       We grant an order freeing Barbara for adoption and we dispense with the requirement for the agreement of the mother and the father on the grounds that such agreement has been withheld unreasonably. 

Authorities

In the matter of Barbara (Care order) [2015] JRC 082.

Children (Jersey) Law 2002.

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

Re JS and BS [2005] JRC 108.

Re W [1971] 2 All ER 749.

Re L (1962) 106 Sol Jo 611.

Re C (a Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR.

Re M [2013] JRC 234.

Re B-S (Children) [2013] EWCA Civ 1146.

Re B (a child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911.

Re the T Children [2009] JRC 231.