Jersey Unreported Judgments

Care proceedings - application by the Minister for a freeing for adoption order.

[2016]JRC089

Royal Court

(Family)

21 April 2016

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats Liston and Grime
Between	The Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	Ruby (the child)		Second Respondent

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF RUBY (FREEING FOR ADOPTION ORDER)

Advocate C. Hall for the Minister.

Advocate N. S. H. Benest for the Second Respondent.

Advocate L. J. Glynn as Amicus curiae.

judgment

the commissioner:

1.        The Minister applied for a final care order in respect of the second respondent, Ruby ("the child") (this is not her real name) and for an order freeing her for adoption. 

2.        The child was removed from the care of the first respondent ("the mother") to foster carers the day after her birth by way of an emergency protection order granted by the Deputy Bailiff, for the reasons set out in his judgment of 28^th September, 2015, (In the matter of Ruby (Emergency protection order) [2015] JRC 197).  Quoting from paragraphs 20 and 21 of that judgment:-

"20     I have not set out in full the evidence given by Ms Owens and there is a significant amount of detail in both the chronology and in her statement which I have not thought necessary to refer to in this judgment.  Suffice to say that in my judgment it would be very dangerous indeed to allow the Child to return with the Mother into her home environment.  The environment itself is dangerous and unhygienic and the Mother cannot look after herself, nor would be able to offer the Child the care that it would need to thrive.

21       By reason of the mental challenges that she faces and learning difficulties the Mother has shown herself to be incapable of looking after herself adequately during the pregnancy.  There were concerns that her failure to eat meant that she was malnourished and she smoked heavily.  She only kept appointments when reminded numerous times by her own mother who took responsibility for ensuring that she attended.  Without that support the Mother was wholly incapable of consistently keeping appointments.  Whilst the Mother's love for the Child is unquestioned, there is no more reason to assume that she would be in a position to look after a vulnerable child than she was able to look after herself."

3.        On 7^th October, 2015, the Court granted the Minister an interim care order, noting that apart from registering the child's birth, the mother had not attended any contact sessions with the child; indeed, she had not seen the child at all since her birth.  Sadly, that remains the case today.  The Court described the mother as a highly vulnerable individual, susceptible to exploitation, financially, sexually and emotionally.  It seemed that she was not capable of looking after herself, let alone a young child. 

4.        The mother has two older children who live with her parents, the maternal grandparents, although her son Tyler (this is not his real name) is now in a foster placement. 

5.        The child's putative father is B, who has reported significant alcohol issues and who has not engaged with the Children's Service or any other agency.  He does not have parental responsibility and has not seen the child, or made any attempt to do so.  His whereabouts are unknown. 

6.        The mother has also refused to engage with the Children's Service or any other agencies, in particular the Adult Mental Health Services, who have had a historic involvement with her.  Regular visits were made to try and establish contact and to support the mother with her health needs.  Rebecca Lowe, of the Clinical Practitioner Learning Disability Nurse Team, provided this report:-

"I became involved with [the mother] last year when I was asked to meet her at the harbour following an incident in the UK where two gentlemen left her in a car park and Social Services notified the police.  [The mother] was questioned by customs and had her personal belongings checked.  [The mother] proceeded to run away from me following this and would not accept further support despite several attempts and welfare visits accompanied by Zoe Frankum.

I became involved again following the information from Maternity that [the mother] was pregnant.  I worked with all agencies involved to try and get [the mother] to engage and offer her any kind of support she requested.  This has proven to be very difficult only having engaged on three occasions despite daily visits to her home Liberation Court and one visit to the hospital in which both [the mother] and her partner became verbally aggressive towards me requesting that I left.  [The mother] would not engage whatsoever in the presence of her partner.

The Learning Disability Service have provided daily visits to the flat in which she has never answered the door despite hearing noises from inside the flat on occasions.  This was reduced to every other day following a SSN Risk meeting with Adult Social work team.

In my professional opinion, [the mother] presents with a Mild/Moderate learning disability.  She appears to have capacity to make decisions, however no formal capacity assessment has been undertaken due to lack of engagement.  [The mother] engages very well without the presence of her partner and was happy to accept food parcels from the Learning Disability service prior to the birth of her baby.  It has been very difficult to monitor her mental and physical health due to lack of engagement.  She is diagnosed with epilepsy but is non-compliant with her prescribed medication and it is not known if she takes it or not as this is prescribed by her GP, with whom she has a good relationship with.

[The mother] has had a history of psychosis having confirmed that she can experience auditory hallucinations occasionally and explained that this does not affect her and she is able to 'block this out'.  Her recent admission to Orchard House did not highlight the presence of psychotic phenomena, despite close observation.

Following a SSN Risk meeting on 29/9/15, it was agreed the current level of attempted engagement cannot continue - with [the mother] disengaging this is a disproportionate use of resources, and could actually be seen as harassment.  I agreed to do conjoined visits every other day however despite seeing [the mother] around town she will not answer her door or engage with the Learning Disability team in anyway."

7.        The mother suffered from an episode of psychosis following the birth of her second child which was managed by medication and on 9^th July, 2015, was admitted to Orchard House under Article 6 of the Mental Health (Jersey) Law 1969 to enable her mental health to be assessed.  There was found to be no evidence of mental disorder and she was discharged.  She flatly refused any support and stated a desire to be left alone.  She has refused any further visits or welfare checks. 

8.        As the social worker, Zoe Frankum says, it is important to separate the mother's cognitive ability as a result of her learning difficulties and her capacity to make informed choices.  An assessment would help in understanding her cognitive processing ability and how best to communicate effectively with her, but for that to be done, requires her cooperation which has not been forthcoming.  What can be said is that she has learning difficulties and is and remains vulnerable. 

9.        In the circumstances, Advocate Glynn was appointed amicus curiae, but she has not been able to meet with the mother to discuss the orders being sought.  The guardian, Eleanor Green, has managed to speak to her briefly on the doorstep.  She described the mother as dishevelled and confused and she felt the mother did not have any real understanding of the issues the guardian was trying to explain to her.  

Threshold

10.      The child was not suffering actual harm at the relevant date, i.e. the date the emergency protection order was granted, as she was removed from the care of the mother effectively from birth.  Pursuant to Article 24(2) of the Children (Jersey) Law 2002, the issue is whether the child would be likely to suffer significant harm as a result of the care likely to be provided to her by the mother, if no order is made, being what it might be reasonable to expect a parent to give. 

11.      The risks of neglect and emotional harm are set out in the threshold document and were summarised by the Deputy Bailiff in his judgment of 28^th September, 2015, (In the matter of Ruby (Care order) [2015] JRC 235.  We heard evidence from the social worker, Ceri Owens, and from the guardian and taking into account the reports and documentary evidence filed before us, we had no doubt, as submitted by the Minister and agreed by the guardian and the amicus curiae, that the child would be at serious risk of significant harm if returned to the care of the mother.  We therefore found the threshold criteria met and that we had jurisdiction. 

Care and freeing orders

12.      We considered the evidence on this in the round, following In the matter of T Children [2009] JRC 231 and guided by the principles set out in the Court of Appeal judgment in Re F & G (No 2) [2010] JCA 051 in relation to the welfare test and in relation to freeing for adoption.  We also took into account the principles set out in the case of In the matter of M (Care Order) [2013] JRC 234 and the need to construe the Adoption (Jersey) Law 1961 ("the Adoption Law") in the light of Article 8 of the European Convention on Human Rights - in other words, the need for proportionality in any order we made.  The aim should be to re-unite the family when the circumstances enable that.  Cutting off all contact in the relationship between a mother and a child is only justified by the overriding necessity of the interests of the child - in other words, where nothing else will do. 

13.      We were assisted by an analysis of the welfare checklist and the options available to the Court by both the social worker, Ceri Owens, and the guardian and two principal points emerged:-

(i)        The evidence shows that sadly this is not a case where the mother will ever be in a position to provide good enough care for the child, should she ever decide to engage.  We are not in a situation where, for example, her parenting could be improved by abstaining from substance misuse or attending recommended courses.  The likelihood was that the mother would always need significant support to manage her own issues, let alone take care of a child. 

(ii)       Although the child was taken off the mother shortly after birth, she had abandoned the child from that point, despite all the efforts made to arrange contact between them.  The mother had not seen or asked to see the child since. 

14.      Fortunately for the child, and the mother, the child's maternal aunt had stepped forward after the maternal grandparents had withdrawn their own application for understandable reasons.  The maternal aunt had been positively assessed as an adopter.  She has her own daughter who is aged 8 and intended ceasing work until the child was of school age, so that she could fully focus on them both, in particular during the period of transition. 

15.      Of the options available to the Court, no order was out of the question, as that would leave the child under the sole parental control of the mother and a supervision order would be equally unsuitable for the same reason.  The choice was between a residence order in favour of the maternal aunt or adoption. 

16.      The discussions in relation to a residence order had been informed to some extent by the experience of the maternal grandparents looking after the older two children, with the mother still having a role as a mother; something she struggles to fulfil, and which had caused the older children confusion.  It is witnessing that experience that made the maternal aunt clear that she wished to adopt.  

17.      The benefit of adoption in favour of the maternal aunt is that it would give the child permanence but within the same wider family.  It will be open adoption, so that the mother would be able to enjoy contact with the child and see her growing up.  There was also the practical advantage that adoption will assist the maternal aunt financially, as she would get support from her employer (including adoption leave) whilst serving out her notice and from Social Security. 

18.      As the amicus curiae said, the child is entitled to stability and to a permanent home where she understands her place within the family.  Having regard to Article 3 of the Adoption Law, we agreed with counsel that in the circumstances of this case, adoption is both necessary and proportionate. 

19.      The mother is the only "parent" for the purposes of the Adoption Law and the mother's consent is required for the child to be freed for adoption, unless consent can be dispensed with on any one or more of the grounds set out in Article 13(2) (of the Adoption Law) which is in these terms:-

"(2)     The grounds ...... are that the parent or guardian -

(a)       cannot be found or is incapable of giving agreement;

(b)       is withholding his or her agreement unreasonably;

(c)       has persistently failed without reasonable cause to exercise his or her rights, duties, obligations and liabilities as a parent or guardian in respect of the infant;

(d)       has abandoned or neglected the infant;

(e)       subject to paragraph (4) has persistently 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."

20.      In terms of withholding consent unreasonably, the Court of Appeal decision in Re F & G is authority for the proposition that the Court must ask itself two questions:-

(i)        Is the making of a freeing order in the best interests of the child?  We have already answered that in the affirmative; and

(ii)       Is the mother's consent being unreasonably withheld?

21.      As made clear in Re F & G, the test is an objective one.  Withholding consent causes delay and uncertainty, leaving the child in the care of the Minister and depriving her of the opportunity of a permanent home.  That is not reasonable and, assuming capacity, we found that the mother was therefore withholding her consent unreasonably. 

22.      However, the Court was on notice that there were issues as to the capacity of the mother, which could not be resolved as a consequence of her refusal to cooperate with the agencies in any way at all.  What we did know is that she had learning difficulties and was vulnerable.  The guardian, when she met her, felt that the mother did not have any real understanding of the issues at stake. 

23.      That being the case, and for the avoidance of any doubt, the Court also found that the mother's consent could be dispensed with on the ground that, although the child had been removed from the mother at birth, the mother had since abandoned the child (Article 13(2) (d)) and, quite separately, that the mother was incapable of caring for the child (Article 13(2) (g)). 

24.      An issue arose as to whether the mother had been duly served with the Minister's representation seeking a freeing order.  For reasons which were unclear, the Minister had not sought leave to serve the representation on the mother, but on the amicus curiae instead.  She, of course, did not represent the mother.  Notwithstanding her complete lack of cooperation, there was a possibility that the mother did not know that a freeing for adoption order was being sought by the Minister.  

25.      Accordingly, the Court made a care order in favour of the Minister, approving the care plan for adoption and contact arrangements, which enabled the planned introduction of the child to the maternal aunt from the foster carers to proceed without delay, but adjourned the application for a freeing order so that the mother could be served both directly (with a letter in appropriately clear and non-technical language settled by counsel to be read to her by the Viscount if possible) and by way of substituted service through the maternal grandparents, who she saw from time to time, with a request that they also read the letter to her.  Leave was also given for the content of the covering letter to be shared with the tenant support worker of the home where the mother lives and with the adult social worker, so that they could also inform the mother of the application should the opportunity arise. 

26.      At the adjourned hearing, the Court was satisfied that the mother had been duly served in the manner directed and that every effort had been made to communicate to the mother the order being sought by the Minister. 

27.      The mother did not appear and indeed, there had been no response from her at all.  The child had by then been placed with the maternal aunt and had settled well.  Furthermore, we were told that the mother had visited the child and the maternal aunt.  This had gone well, the mother keeping within appropriate boundaries.  It will be 13 weeks before the maternal aunt can apply to adopt the child and whilst nothing is guaranteed, it seemed to the Court that the maternal aunt, supported by the maternal grandparents and wider family, had stepped in, in circumstances that must have been difficult for them, to care for the child and provide her with permanence - permanence that would not deprive the mother of all contact with the child.  In the circumstances, there could be no better outcome for the child and we therefore freed her for adoption, being satisfied that all of the formalities required under Article 12 of the Adoption Law had been complied with. 

Authorities

In the matter of Ruby (Emergency protection order) [2015] JRC 197.

Mental Health (Jersey) Law 1969.

Children (Jersey) Law 2002.

In the matter of Ruby (Care order) [2015] JRC 235.

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

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

In the matter of M (Care Order) [2013] JRC 234.

Adoption (Jersey) Law 1961.