Care proceedings - application by the Minister for a freeing for adoption order.
Before : |
Sir William Bailhache, Bailiff, and Jurats Nicolle and Sparrow. |
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Between |
Minister for Health and Social Services |
Applicant |
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And |
A (the mother) |
First Respondent |
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And |
B (the father) |
Second Respondent |
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IN THE MATTER OF MARIA (CARE PROCEEDINGS - FREEING FOR ADOPTION ORDER)
AND IN THE MATTER OF THE ADOPTION (JERSEY) LAW 1961
Advocate H. J. Heath for the Minister.
Advocate C. G. Hillier for the First Respondent.
Ms Susan Clark, Guardian.
judgment
the bailiff:
1. The Court sat on 11th August to receive a freeing application by the Minister relating to Maria, ("the child"), a child aged a year and ten months. The child had been made the subject of a final care order in 2016, following the grant of an interim care order in 2015. She is the second child of the First Respondent ("the mother"), the mother's first child presently living with her maternal grandparents under the auspices of a residence order granted on 26th January, 2011, following a history of her exposure to domestic violence. The child's father is the Second Respondent. He is without parental responsibility, having determined not to pursue his application for the same. He did not attend the hearing and the Court was willing to proceed in his absence in the best interests of the child.
2. In its judgment dated 22nd May, 2017 (In the matter of Maria (Care order) [2017] JRC 072), the Court gave reasons for its making of a final care order and approval of the care plan. It is not necessary to repeat all that material here. However we have noted in particular the evidence of Dr Briggs that parenting by the mother along with the father was simply not viable, and as to her ability to parent the child alone, there would be ongoing concerns. He described it as a "significant experiment" and he noted her failure to cooperate or engage with professional assistance over her substance misuse and interventions targeted at her understanding and dealing with intimate partner violence. As a result, the risks posed to the child included:-
(i) Exposure to intimate partner violence and hence harm to the child's psychological and emotional well-being and long-term development as well as the possibility of actually being hurt in the cross-fire of violence.
(ii) The possibility of physically abusive parenting practices due to the mother's intoxication, particularly if later in life the mother was presented with oppositional or challenging and defiant behaviour, from the child.
(iii) An unsustained attuned attention to the child's emotional and psychological needs.
(iv) Exposure to substance misuse.
(v) Exposure to substance misusing associates of the mother.
3. Dr Briggs believed the mother's difficulties were complex and required intervention with sophisticated psychotherapy, but the timescales for that were likely to be medium to long-term rather than short-term. It is tragic but in his view the mother was trapped in a web of personality and emotional difficulties, impoverished social support, a weak infrastructure to support her parenting and a vulnerability to substance misuse.
4. The Court approved the care plan which had placed the child with her paternal aunt and her aunt's partner. The child had been in that foster placement with those carers since 9th February, 2016, and the Minister's care plan did not include a return home for Maria to the care of either parent. Both parents were aware that the care plan for the child was ultimately that of adoption.
5. There were two reasons why the Minister did not proceed with the freeing application in 2016 at the time of the final care order application. The carers had two specific issues which inhibited their application for adoption, firstly that of finances and secondly a concern that if the Court decided not to return the child to her parents, the parents would find it very difficult to move on and the carers were troubled by the prospect of harassment and risks to their family. For that reason the Minister proceeded with the final care order application leaving the child in a foster placement with the carers, but on the basis that there would be a freeing application twelve months later.
6. At the time of the hearing in October 2016 the Minister's final care plan, which was endorsed by the Guardian, was not opposed by either parent and the Court made the final care order and approved the plan. The only issue at the hearing of the Minister's application for a final care order concerned contact between the mother and the child. The mother wanted the contact sessions to continue permanently, but the care plan provided for contact three times a week to be reduced to one contact in each of the last three months of 2016, and one contact in each of the months of March, June and September 2017 with a closed adoption thereafter. That was the subject of discussion between the Guardian and the parents overnight at the final care order application hearing, and a revised care plan which allowed for more gradual reduction in contact between the mother and the child was agreed. The Court's judgment In the matter of Maria (Care order) [2017] JRC 072 set this out:-
"The issue of contact post-adoption would be a matter for the Court at that stage, but the Minister gave notice that he would be seeking a closed adoption.
In order to ease the pressure upon the paternal aunt and by way of support for the child's placement with her, both the mother and father volunteered an undertaking that they would not contact or attempt to contact the paternal aunt and her partner, either directly or indirectly except through the Minister.
The Court joined with Advocate Byrne in commending the mother and father on the way they had managed to put the child's interests first in what must have been very distressing circumstances for them, and the Court commended their counsel, who had clearly been very helpful in the process."
7. That then is the background to the application by the Minister for the freeing application which this Court heard on 11th August. At that time, the mother's position statement made it plain that she fully accepted the need for the child to have a stable and permanent home, and that although she would have liked that home to be with her, she accepted that this was not possible. She wanted the best for the child and she thought that included the possibility of an on-going relationship with her and the child's maternal family. Although she accepted that contact would be determined by the adoptive parents, with the child's needs and wishes as the determining factor, she thought that a closed adoption order would not be satisfactory as it would rule out the possibility of the child having contact with her in the future, and that this would be unhelpful to the child because of the positive nature of the contact which she and the child enjoyed, as disclosed in the contact logs.
8. The argument therefore before us was not about whether a freeing order should be made, but as to the nature of any adoption order, and whether it should be closed or open.
9. At the hearing, the Court heard from Mr Jonathan Collins, the social worker involved with the child up until June 2017. He confirmed that the Children's Service considered a closed adoption was appropriate, with no contact with either parent, as this would be in the child's best interests. He thought that it optimised her opportunities for a settled and stable placement. He feared that if there were not a closed adoption, the mother would not acknowledge what had actually taken place and would find it impossible to relinquish her motherly role. That would be likely to have a negative emotional impact upon the child in terms of her identity - who was her real mother, if in fact there were two mothers for her; and it would undermine the child's ability to be part of her new family, especially as she grew older. Mr Collins also drew our attention to the impact on the prospective adoptive parents, who wanted the child to be safe within their family, with whom she has lived since February 2016. They are concerned that regular contact will have a disintegrating effect upon their family. They had informed him that they understood the mother's position and would not stand in the way of future contact, but only if it were in the child's best interests. Mr Collins was clear that it was not in the child's best interests for her to be adopted off-island. She has spent the vast majority of her life with her present carers, with whom she has developed a good attachment. He was also confident that despite the fact that the potential adoptive mother was the father's sister, the carers would be well aware of family occasions when the father might be present, and that they would avoid them.
10. The views which Mr Collins had expressed were given to us notwithstanding that he accepted there was a bond between the mother and the child; and notwithstanding that the child sees her older half-sister on her mother's side occasionally, and her maternal grandparents. All that was positive for the child, as far as he was concerned. Nonetheless, it was in the child's best interests in his view that contact with the mother should stop.
11. We also heard from Ms Rebecca Shepherd who made a visit to the home of the carers on 26th June, formally to introduce herself as the child's new social worker. She told us that the paternal aunt indicated to her that she had received a call from an unknown mobile phone number on 21st June, and had called back on that number, without knowing who had telephoned her. When she did so, the mother answered, and during a brief conversation, the paternal aunt said that the mother had been threatening to take her own life. The contact between the mother and the paternal aunt had been in breach of the undertaking given to the Court.
12. Ms Sheppard also told us that on 1st August, she was informed that the mother had changed her position in respect of the impending adoption hearing, and would now be seeking adoption off-island for the child, to ensure her safety. This change of position was a result of the allegation by the mother that the father had made threats to her and threats to harm the child. The social worker had seen the father who was in custody at HM Prison. He had denied the assault on the mother and he said that he had not threatened the child and would not do so. In Ms Shepherd's view, there was no evidence of threats which had been made against the child by the father, and she had no evidence that he would be a risk to the child. In addition, the paternal aunt has made it clear that she does not want her brother making contact with her and will telephone the police if he did. In her view, the mother should not continue to have contact with the child because of the unpredictability of where she was in her life and the child's need for stability in her placement - and in particular having regard to the fact that this was a family placement.
13. We heard from the mother who gave evidence. She confirmed that the father had told her that as she no longer wanted to be with him, he would kill her and he would take the child from her at any cost. He has told her that he would always be able to see the child, because the child was living with his sister. She emphasised that when the father threatened to do something, it was a real threat. She did not trust the paternal aunt to keep the father away and in her view it was never a good idea to put the child with the sister of the man who had been so violent to her. She was frightened for her own and for the child's welfare.
14. She told us that she had never threatened to take her own life, but she agreed she had had a hysterical telephone call with the paternal aunt, which followed the aunt telling her that the child was now calling the aunt "mummy". She agreed that as a result of her hysterical reaction, the aunt cut off the call.
15. She agreed that she had sent a text message to the paternal aunt on 27th June in which she said:-
"Tell police I have just spoken to my mum and [my elder daughter]! You are not having my [the child]. Tell the truth about what your brother truly did and is!!!!! This is beyond unfair! You and B won! You took all I had away just like B! My family prefers you! I have lost everything and my babies because of him. HIV attempted murder all lies thank you C got my baby tell the truth about him"
16. The mother expressed regret for her actions in sending that text message and said she was under great stress at the time. She was expecting to be referred to experts but that had not happened and her coping skills were not good.
17. The mother emphasised that her contact with the child was very good. She described taking the child away from her as "cruel, archaic, terrible". She said she had been robbed of her daughter and did not understand why she was being adopted. She could not accept a closed adoption and said that the paternal aunt should have a residency order. She, the mother, had done nothing wrong.
18. As is apparent from this description of her evidence, the mother, completely understandably, was emotionally upset and she was not prepared to be cross-examined. In those circumstances Advocate Heath indicated a number of questions which she wanted to put to the mother and the Court put those questions to her. In response the mother told us that she did not understand why the paternal aunt should lie to the Minister about the alleged suicidal ideation. She agreed that at the present time she could not care for the child, but she thought that if she had the appropriate help which Dr Briggs had recommended, things might be different. There had been 13 suggestions of referral for psychiatric help, but these were unacknowledged and she felt she was being let down. She made the point that her parenting skills were never questioned - it was only the risk of significant harm to the child arising from the child's father and his treatment of the mother.
19. We heard also from the Guardian. In summary, she supported the Minister's application for a freeing order with a closed adoption to follow - that is to say, without contact in the future between the mother and the child. She made the general point that post-adoption contact is rare, although it could be helpful if the child in question had at the time of the adoption a fixed memory of the parent. Nonetheless one must be clear that the purpose of post-adoption contact was not to enable the birth parent to remain in place as the child's mother. If post-adoption contact was to be feasible, the birth parent must completely accept the change to status and loss of parental responsibility.
20. In the Guardian's view, the mother has not been able to move on from the Court's judgment making the final care order and approving the care plan in October 2016. She thought that to order post-adoption contact in this case would be to benefit the birth mother, and not the child and she told us that even now the child does not recognise the birth mother as her mother - she sees the paternal aunt as her mum.
21. On the question as to what explanation would be given to the child as she grew older, given that she would see her maternal grandparents and her half-sister, the Guardian thought that life story work would be needed but, as she put it, children have a way of understanding. The child was sufficiently young that she should not be a looked after child but she should have permanence, and have the opportunity to live her life free of state intervention. This placement would allow her to have contact with both sides of her family, which would be very important for her. The effect of a freeing order would bring an end to the birth mother's parental responsibility, and it also afforded a good moment to bring contact to an end too. In cross-examination she said that the birth mother would not in her view accept any change of status, and therefore contact would cause significant risks in the future. In terms of continuity of contact she asked how one explained to the child why she was taken from her mummy and daddy every three months and given to strangers. That would be extremely confusing.
22. We gave our decision on 11th August, which was to make the freeing order with a closed adoption and reasons reserved. We considered at that time with great care the submissions made by Advocate Hillier on behalf of the mother - her firm belief that contact should continue, albeit that belief was not supported by professionals, but it was clear from the contact logs that it had been good contact and beneficial. We noted his submission that the child loved the birth mother and the mother loved her. We considered his submission that ordering a continuation of contact was simply maintaining a relationship which already existed. He told us that it was for the child's benefit that she should be a part of her mother's life.
23. We regret that we did not find the mother to have been a reliable witness - we accepted, for example, that she probably did express suicidal thoughts in the telephone conversation with the paternal aunt in which the mother herself says that she became hysterical. When we described the mother as an unreliable witness we would like to make it plain that we do not consider her to be untruthful - it is more that she is worried about her own position, worried that the father might have more access than she will have, and worried in a general way for an uncertain future. In our view, it is completely understandable that she should get herself into the position where she believes passionately that what she is saying is right, albeit objectively it is not. We hope that when she has had the opportunity to consider carefully all the features of the case, she will see that the expression of a view that it would be better for the child to be adopted off-island emphasises how she has put her fears of contact between the father and the child above the best interests of the child - indeed, as is implicit, if not in some degrees explicit in the text message which she sent to the paternal aunt. It is irrational to think that it would be in the child's best interest to be off-island, away from carers who have looked after her for eighteen months, away from her entire family, away from cousins with whom she apparently gets on well in the home in which she lives.
24. In making our decision, we are charged to make an order which is in the best interests of the child. The fact that one can feel desperately sorry for the mother and the position in which she now finds herself is not relevant as a matter of law to the question which we have to decide, which is what order to make in the best interests of the child. As far as that question is concerned, all the professional advice is that it is in the best interests of the child that she should be freed for adoption and that this should be a closed adoption without any ongoing contact between the child and the mother, unless for some reason in the future, the adoptive parents consider that it would be in the child's bests interests that such contact takes place. We accept the advice of the professionals. We think that the mother has not moved on from the care order made last year. From her perspective, it is much to be regretted but there we are. The order that has been made is in our view undoubtedly in the best interests of the child.
Authorities