Jersey Unreported Judgments

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

[2017]JRC084

Royal Court

(Family)

8 June 2017

Before     :		W. J. Bailhache, Esq., and Jurats Liston and Ramsden
Between	Minister for Health and Social Services		Applicant
And	B (the mother)		First Respondent
And	Nicole (through her Guardian ad Litem Sue Clark)		Second Respondent
And	A (the grandmother)		Third Respondent

IN THE MATTER OF NICOLE (CARE ORDER AND FREEING FOR ADOPTION ORDER)

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

Advocate H. J. Heath for the Minister.

Advocate A. T. H. English for the Mother.

Advocate B. J. Corbett for the Child.

Advocate R. S. Tremoceiro for the Grandmother

judgment

the bailiff:

Factual background

1.        Nicole was born in 2015 and is now therefore a few months short of her second birthday.  The first respondent ("the mother"), who is aged 19 is her mother.  Nicole's father has played no part in these proceedings and does not have parental responsibility.  The third respondent is Nicole's maternal grandmother. 

2.        The mother herself was a looked after child from the age of 12, and has experienced multiple foster placements and carers.  Concerns emerged shortly after Nicole's birth in relation to her care, and on 23^rd July, 2015, she was placed in foster care with the mother's agreement. 

3.        On 4^th September, 2015, the Royal Court made an interim care order.  The care plan lodged by the Minister at that time envisaged that Nicole and her mother should be placed in a parent and child foster placement with a view to a parenting assessment being carried out.  This was unsuccessful and the mother left the placement in November 2015, Nicole remaining in foster care since that time, save as set out below.  A psychological report by Dr Mair Edwards dated 3^rd December, 2015, was not positive from the mother's point of view, and a viability assessment was made of the grandmother, who is aged 42 and lives in the UK with her husband and their four year old son, as a connected person carer for Nicole.  The viability assessment was not positive in so far as concerns the grandmother, but on appeal to the Court of Appeal the Royal Court's order denying the grandmother a further connected person's assessment was overturned for the reasons set out in its judgment of 12^th July, 2016, and reported at In the matter of Nicole (Care proceedings) [2016] JCA 120.  In the latter six months of 2016, it appeared that a more positive report on the feasibility of the grandmother becoming Nicole's carer was received, and arrangements were made for Nicole to be placed with her grandmother outside the Island.  This received the approval of this Court on 16^th November, 2016.  The Minister had hoped that the Court might make a residence order in favour of the grandmother coupled with a supervision order in favour of the Minister.  However, during the Guardian's visit to see the child at the grandmother's home on 12^th April, the grandmother informed the Guardian that she was unable to care for Nicole.  Accordingly the Minister subsequently caused the return of Nicole to Jersey where she has been placed with her previous foster carers, and where she currently remains.  There is supervised contact between the mother and Nicole which takes place on a two weekly basis. 

4.        On 27^th April, 2017, the Minister filed a revised care plan and statement confirming the proposal to place Nicole under a care order with the intention of seeking a freeing for adoption order, and on 2^nd May the grandmother filed an application to withdraw her application for a residence order and her status as a party to the proceedings.  

The parties' positions

5.        The Minister proposes that Nicole be made subject to a care order and that the Court should go on to make an order freeing her for adoption. 

6.        The mother, who with the Court's consent did not attend the final hearing the Court noting that she had notice of it and being satisfied it was in Nicole's best interests to proceed, says that she loves her daughter and wishes to be reunited with her in the future.  Ideally she would like Nicole to be returned to her care and for long-term fostering to be explored with a view to rehabilitation between mother and child in the future.  However, she indicated that she has considered the impact that any further delay may have on Nicole and in those circumstances does not wish to contest the Minister's application for a final care order, with a care plan for freeing for adoption.  Indeed, she has signed form 6 which gives that consent. 

7.        The grandmother has stated she is no longer in a position to care for Nicole and has withdrawn her application for a residence order and made the application to be discharged as a party from the proceedings. 

8.        The Guardian supports the Minister's application for a care order and for an order freeing Nicole for adoption. 

Threshold

9.        The Minister's threshold document suggests that Nicole is at risk of suffering significant emotional harm and neglect, or would be so at risk if returned to the care of her mother.  This is said to be the result of:

(i)        The mother's own unaddressed mental health difficulties;

(ii)       Expert opinion that the mother will not be able to engage in therapy to address those difficulties until she has matured for a further period of two or three years;

(iii)      The mother's immaturity and inability to care for Nicole, noting that she is not helped by the father's similar immaturity and inability;

(iv)      The mother's lack of insight to parent Nicole safely and to take on board the parenting advice given to her; and

(v)       The mother's inability to place Nicole's needs over her own. 

Decision on threshold

10.      The evidence before us supports the Minister's submitted threshold document.  In her first report Dr Mair Edwards says this:-

"5.2.1 From the assessment it is my opinion that [the Mother] has longstanding emotional and behavioural difficulties, which stem from her experiences as a child resulting in the formation of insecure attachment strategies, but which manifest as anxiety, depression/low mood, and associated inter-personal difficulties and hyper-sensitivity. [The Mother's] emotional regulation is not well developed, making her present as emotionally immature and making her vulnerable to impulsive behaviours.  She acknowledged that how she behaves is highly reliant on her mood and 'what kind of day it is'. 

5.2.2 Due to her difficulties in recognising her emotional states she has a tendency towards somatisation (ie presenting emotional distress in physical form).  Her ability to think clearly, and problem solve effectively is hampered by her low mood but also maladaptive core beliefs which trigger unhelpful cognitions about herself, the world and the future.

...

5.3.1 [The Mother's] attachment strategies will impact on her ability to form a secure attachment to her baby - particularly as the baby will be making demands on her, rather than meeting her emotional needs.  Whilst [the Mother] will be seeking unconditional love from her baby, she will instead need to prioritise her baby's needs ahead of her and 'give out' unconditional love. When [the Mother's] needs are not met by her baby this will trigger the feelings of rejection previously experienced with her own mother. Additionally the low mood is likely to increase irritability and lack of patience, and in conjunction with her emotional regulation difficulties and emotional immaturity, may lead to punitive parenting behaviours (eg pinching, prodding), avoidance (eg not attending to the baby when she needs feeding or changing) or if frustrated lead to impulsive aggressive behaviours (eg throwing an object, swearing at the baby).

...

5.8.1 In my opinion, [the Mother] does pose a risk to Nicole, as her emotional regulation is not currently stable enough to ensure that she does not behave impulsively. The main risks of physical harm would be associated with Nicole being extremely demanding (eg when teething or has colic and cannot be placated or comforted) when the risk of [the Mother] becoming emotionally dysregulated and lashing out would increase.

5.8.2 The only way this risk could be managed would be through [the Mother] having 24 hour access to almost immediate support, so that Nicole could be removed from her care until [the Mother] had time to compose and reregulate herself. However, this would not assist [the Mother] to learn competence in managing her daughter's demands and to be able to contain her own frustration, and is likely to have a negative impact on her self-image and feeling of self-efficacy as a mother. 

...

5.9.2 In my opinion [the Mother] would require ongoing support for the foreseeable future as she presents as highly vulnerable."

11.      By the time of the next report from Dr Mair Edwards in February 2016, the mother had made some progress, but Dr Edwards, when answering the question whether the mother would be able to understand Nicole's needs and meet them said this:-

"6.1.1 Theoretically, [the Mother] understands what is required of her as a parent, and clearly has the capacity to read and learn about child development and parenting - although struggled to recall what she had recently read.  However, from the assessment overall, it is my opinion that [the Mother] could be taught these aspects - provided she was willing to accept being tutored.

6.1.2 However, even with [the Mother's] significantly improved mental health, in this assessment, particularly when observing her with Nicole, it became clear that the attachment difficulties I identified in my first assessment are interfering with the mother - baby bond.  [The Mother] is not sensitive to Nicole's changing needs.  Nicole withdrew and avoided eye contact, which is likely to be perceived by Mother as rejecting behaviours.  If the patterns are repeated they will eventually develop into an anxious - avoidant attachment strategy pattern.

....

6.2.1 The information gathered in this additional assessment has confirmed my opinions in relation to the likely difficulties that [the Mother] would face if parenting Nicole on her own.  I am satisfied that [the Mother] has the ability to learn specific parenting skills and to apply those appropriately when she is in an emotionally stable mood.  However, even when on an even keel her sensitivity to Nicole's changing needs is poor, and she very quickly indicates irritation when Nicole makes increased, but normal, demands.  The overall impression therefore remains that [the Mother] does not at present have the necessary maturity to manage the emotional demands of parenting.

6.2.2   It remains my opinion that with maturity, and if having achieved some stability in her own life, [the Mother] will be able to parent to a good enough standard.  In my opinion this will not regretfully be within a time frame that is suitable for Nicole."

12.      The actual history of care of Nicole since shortly after her birth coupled with the psychological evidence from Dr Mair Edwards satisfies us that a threshold is passed and that there would be a real risk of significant emotional harm to Nicole if she were to be returned to her mother, and this as a result of her mother's inability to care appropriately for her.  We would like to emphasise that we do not say this to be in any sense critical of the mother.  Her present parenting difficulties reflect her own difficulties during her childhood.  This is something that may well correct itself completely on maturity, and certainly is more likely to do so with work on her part to understand the various things which have gone on in her life so far.  Dr Edwards suggested that the mother would benefit from continuing with the plan to engage with Jersey Talking Therapies in order to gain a better understanding of how her experiences have impacted on her behaviours and psychological functioning.  Dr Mair Edwards concluded her second report by saying that she was confident that the mother has the ability to benefit from therapy, albeit she might find it difficult to engage until she had matured further. 

13.      We think it is important to emphasise this hope for the future, because the mother's personal statement of her current position shows that she has Nicole's best interests at heart, which is a first step toward successful parenting if she were to have further children in the future.  Rightly, in accepting that threshold is passed and that Nicole should be freed for adoption, the mother has put aside her own feelings in the best interests of her child. 

The Welfare Test

14.      Having found that the threshold conditions of Article 24(2) of the Children (Jersey) Law 2002 (the "Children Law") are satisfied, we have gone on to consider whether any order should be made, and if so what that order should be.  As was said by Beloff J A in In the matter of F & G [2010] JCA 051 at paragraphs 7 and 8:-

"7.      If the threshold criteria are not satisfied, the Court will make no order.  If they are satisfied, the Court must then consider whether such an order should be made.

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 checklist") 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)."

15.      The final care plan filed on behalf of the Minister has been completed by the social worker Susan Fraser, and is dated 26^th April, 2017.  Ms Fraser notes that the original plan to have Nicole in the care of her maternal grandparents in no longer achievable, and the Minister's view as a result is that the contingency plan should be put in place and Nicole should be freed for adoption outside the family.  Ms Fraser opines that the decision should be taken promptly given Nicole's age, the fact that Nicole has already experienced three placements with different carers and the length of time of these proceedings already.  As she is only two, Nicole is young enough to experience the best possible opportunity of a successful transition to an adoptive family.  In the care plan, Ms Fraser contended that an order freeing Nicole for adoption should be made.  If it were made, then contact between the mother and Nicole would be reduced from two weekly contact to monthly contact, the August contact being the last direct contact as it would be probable that Nicole would be placed with an adoptive family after that.  It is proposed in the care plan that, after the farewell contact, direct contact between Nicole and her mother would discontinue, and there should be letterbox contact once annually without photographs.  It is not suggested there should be any contact either direct or indirect between Nicole and other family members, and indeed no letterbox contact between Nicole and either the maternal grandparents or her father. 

16.      The care plan was supported by Mrs Sue Clark, the Guardian.  She noted that Nicole is a happy and contented baby who is meeting all of her developmental milestones and there are no major concerns for her physical wellbeing.  At the age of 22 months, Nicole of course is too young to have any conscious understanding of her circumstances, and her wishes and feelings cannot therefore be significantly taken into account.  The Guardian says that she does not consider the mother is able to care for Nicole, the father has expressed no interest in putting himself forward to care for her, and a placement with the maternal grandparents ended by mutual consent.  In the circumstances the Guardian's conclusions are that:-

(i)        To make no order would be to place Nicole in the care of the mother which would expose her to the risk of significant harm and is therefore not an appropriate course of action; and

(ii)       A supervision order would not be appropriate because the Minister would not be able to exercise parental responsibility and in the Guardian's view the mother would be incapable of appropriately exercising such responsibility in Nicole's best interests as well.  In the circumstances the Guardian's view was that the only option available at this stage to meet Nicole's long term and holistic care needs is one of adoption. 

17.      The Minister brought to our attention that on 15^th May, 2017, the Children's Service received a telephone call from an individual who gave his name as Mr D, and who stated he was the biological father of the first respondent mother.  He stated that the last time he had seen her was when she was five years old and that he had been told by her mother and the mother's partner not to get in touch with his daughter.  He did have some communication with her briefly about twelve months earlier, but he stopped this as he claimed he was being threatened by a man.  Mr D indicated that he had heard about the current proceedings and he wanted to put things straight, to help the best he could, to help his child look after his granddaughter.  He alleged that he had been trying for a very long time to get hold of the Children's Service.  He also said that his sister, who lived in Jersey should contact the Children's Service as he has his own cleaning company, and was "up to his head with work".  Mr D stated that he had lived in the United Kingdom since 2005 but he provided only a house number and the name of the street on which he said he lived.  He could not provide other details with a more complete address.  He stated that his was a five bedroomed house and he lived there alone; he was single but had a baby boy who stayed at weekends.  He stated that he would look after his granddaughter and take time off work but when challenged by the Children's Service as to how this would fit in with a busy cleaning company he said his partner would help.  Asked to clarify who the partner was, given that he had said earlier that he was single, he stated that he had a partner whom he had brought from Madeira.  They are in a relationship but live in different addresses and the partner's son visits him at weekends. 

18.      Having drawn our attention, very properly, to this communication, the Minister contended that any further delay and assessments would not work to Nicole's benefit, and would prejudice her welfare.  Accordingly the Minister would be proceeding with his application for a care order and an order freeing Nicole for adoption. 

19.      Neither the mother nor the grandmother supported the approach which Mr D had made.  They had nothing good to say about him. 

20.      To the extent that this was an application by a non-party to join the proceedings and/or to be assessed as an alternative family carer for Nicole, the Court declines to proceed with it.  First of all no application has been made directly to us.  Secondly, the comments made to the Children's Service by Mr D are internally inconsistent.  Thirdly, although Mr D can be given credit for expressing the sentiment that he wishes to do the right thing, he has had nothing to do with his daughter for very many years - the grandmother contends it was since the mother attained the age of six months, albeit Mr D says it was when she was five - and in the circumstances the possibility of his becoming an alternative carer for Nicole would be a complete shot in the dark.  If it were unsuccessful, then Nicole would have lost what might be a critical year with an adoptive family.  Furthermore the relationship between Mr D and the Mother and grandmother is such that his caring of Nicole would almost certainly provide a background of contention and dispute in her young life, and work to her disadvantage.  The Court can see no benefit whatever in considering Mr D's situation any further. 

21.      Under Article 12 of the Adoption (Jersey) Law 1961 ("the Adoption Law"):-

"(1)     Where, on an application by the Minister, the Court is satisfied in the case of each parent or guardian of the child that -

(a)       the person freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order; or

(b)       the person's agreement to the making of an adoption order should be dispensed with on a ground specified in Article 13(2),

the Court shall make an order declaring the child free for adoption.

(2)       No application shall be made under paragraph (1) unless -

(a)       it is made with the consent of a parent or guardian of a child; or

(b)       the Minister is applying for dispensation under paragraph (1)(b) of the agreement of each parent or guardian of the child, and the child is in the care of the Minister.

(3)       No agreement required under paragraph (1)(a) shall be dispensed with under paragraph (1)(b) unless the child is already placed for adoption or the Court is satisfied that it is likely that the child will be placed for adoption.

...

(7)       Before making an order under this Article, in the case of a child whose father does not have parental responsibility for the child, the Court shall satisfy itself in relation to any person claiming to be the father that -

(a)       the person has no intention, within the next 6 months, of -

(i)        requesting registration as the child's father under Article 56 of the Marriage and Civil Status (Jersey) Law 2001, or

(ii)       applying for an order under Article 5 of the Children (Jersey) Law 2002 or a residence order under Article 10 of that Law; or

(b)       if the person did make an application referred to in sub-paragraph (a)(ii), it would be likely to be refused."

22.      In this case, the mother has signed the form giving her consent to the making of an order freeing Nicole for adoption.  She has been advised by Advocate English and her signature is witnessed by a different advocate in Messrs Viberts.  We are satisfied that she has signed the form freely and with a full understanding of what is involved, and that she agrees generally and unconditionally to the making of the adoption order.  

23.      We should add that even if we had not been so satisfied, we would have concluded that her agreement to the making of an adoption order should be dispensed with on the grounds set out in Article 13(2)(b) of the Adoption Law, namely that she was withholding her agreement unreasonably.  This conclusion is inevitable given her inability to care for Nicole, which she recognises, and the absence of any family member who might do so; coupled with our assessment of the relative merits of long term fostering, if that were to be available, as against placement with an adoptive family.  The interests of the child are paramount, and in our judgment there is no doubt at all that Nicole's best interests lie in her being freed for adoption. 

24.      Article 12(7) of the Adoption Law requires us to be satisfied that the father, who does not have parental responsibility for the child, either has no intention of applying for such responsibility or for a residence order under the Children Law, or if he does have such an intention it would be an application liable to be refused.  We are satisfied on both counts - the father has shown no interest in joining in the current proceedings and there is no basis for thinking that he has any intention of applying within the next six months for an order under Article 5 or a residence order under Article 10 of the Children Law; and what is more, even if he did make such an application, it would be likely to be refused.  His lack of interest in the child since her birth makes it highly unlikely that any such application would be successful. 

25.      For all these reasons the Court makes the care order in respect of Nicole in favour of the Minister and frees her for adoption. 

26.      Finally we turn to the application by the grandmother, which as we have said is in two parts.  First of all, the grandmother withdraws her application for a residence order.  To the extent that this needs the leave of the Court, it is given.  It is clearly not in the interests of Nicole that it should proceed, given that the three month placement with the grandmother itself broke down in April this year.  The grandmother's application for a residence order has therefore been withdrawn. 

27.      The grandmother also applied for an order discharging her from the proceedings.  We are not sure we understand why that should have been thought necessary.  These proceedings have come to a complete end, subject to any appeal, which, given consent from all parties, seems unlikely.  While we do not of course understand the grandmother's motives for making such an application, we will assume them to be based upon her acceptance that Nicole's adoption by a new family will be in her best interests and that the grandmother's continued participation is her life will therefore not be to her advantage.  The grandmother may of course write to the Minister in due course to seek indirect letter box contact with Nicole and, depending on what the grandmother might write in such letter or other communication, the Minister may see fit to keep those communications for Nicole and/or add them to her memory box.  At all events, that will be a matter for the Minister.  Given the fact that these proceedings are coming to an end, it seems to us that it makes no difference whether the grandmother is discharged from them as a party or not, but she has made the application and we grant it. 

Authorities

In the matter of Nicole (Care proceedings) [2016] JCA 120.

Children (Jersey) Law 2002.

In the matter of F & G [2010] JCA 051.

Adoption (Jersey) Law 1961.