Free for adoption order - reasons for the decision of the court on 7th November 2017
Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Olsen and Sparrow |
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Between |
The 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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And |
Joel (acting through his guardian Elsa Fernandes) |
Third Respondent |
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IN THE MATTER OF JOEL (FREE FOR ADOPTION ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate C. R. Davies for the Minister.
Advocate N. S. H. Benest for the First Respondent.
Advocate B. J. Corbett for the Second Respondent.
Advocate R. S. Tremoceiro for the Third Respondent.
judgment
the COMMISSIONER:
1. On 7th November 2017, the Court made a care order placing the third respondent ("the child"), then aged 19 months, in the care of the Minister and freed the child for adoption. We now set out our reasons.
2. There was no issue over the threshold criteria under Article 24(2) of the Children (Jersey) Law 2002 ("the Children Law") being met or over the long-term placement of the child with his maternal step grandfather and his wife, who for convenience we will refer to as "the maternal grandparents". Neither the first respondent ("the mother") nor the second respondent ("the father") was in a position to parent the child in the short to medium term. The issue was whether that placement with the maternal grandparents should be secured by way of a residence order in their favour, as contended for by the father, or by a freeing order (following a care order), as it was the maternal grandparents' wish to make the child a permanent member of their family through adoption.
3. The Court heard evidence from the social worker, Ms Jana Dulakova, the father and the guardian. The judgment of Le Cocq, Deputy Bailiff of 22nd June, 2016, (unpublished) explaining the reasons for the granting of an interim care order on the 20th May 2016 sets out the background to the case to that point.
4. The Children's Service had intervened to protect the child from exposure to domestic abuse between the mother and the father, whose relationship subsequently ended, and from their inability to prioritise the child's needs over their own. There were two incidents which took place on 18th and 19th May, 2016, in the presence of the child and social workers that prompted the application for an interim care order. The evidence of Miss Christine Papworth, the family support worker, was summarised in paragraph 5 of that judgment, and for ease of reading, we set it out again, adopting the Deputy Bailiff's wording:-
a) On 18th May 2016 at 3.00 p.m. Miss Papworth had collected and accompanied the mother and the child to an appointment. On return to the residence, at approximately 4.45 p.m., they were confronted by the father who was coming down the stairs shouting verbal abuse towards the mother. His presence had been unanticipated because the mother had believed the father to be in the United Kingdom studying for his examinations.
b) The mother's immediate response to this incident was to tell Miss Papworth that they should leave the building and Miss Papworth placed the child on the back seat of the car in his car seat. The mother sat in the front of the car but they were pursued out of the building by the father who continued to shout abuse at the mother some of which was shouted directly into her face.
c) Amongst the abuse were accusations that the mother was an unfit parent, threats to get the baby taken away from her and the insistence directed towards Miss Papworth that the mother had been lying about what she was doing in caring for the child. There were shouted allegations by the father that the mother was a drug user and was promiscuous. He complained repeatedly that the mother was 'not being nice to me' and that he had suicidal thoughts. He also accused her of leaving him without any money.
d) The father's behaviour was abusive and threatening and Miss Papworth found it frightening. All of this continued in close proximity to the child. The father refused to believe that the mother had been with Miss Papworth throughout the afternoon and he roughly snatched the mother's phone from her pocket and ran to check her messages.
e) The mother was sobbing and was denying repeatedly that she had done any of the things that the father was accusing her of. She tried to approach him physically to hug him but was rejected. It was only when Miss Papworth said that she needed to call the duty social worker that both the father and the mother together asked her not to and said that 'everything was ok'.
f) Miss Papworth had then explained that she was concerned about leaving the child with them whilst they were still arguing but at that point the father went to the back of Miss Papworth's car and removed the child from the car in his car seat and placed the car seat on the pavement saying that Miss Papworth 'was not going to take the baby anywhere'. The father left the child on the pavement for several minutes. A threat was made that the parents would remove the child so that he could not be found but after some further time matters appeared to calm down. The police arrived on the scene and although the mother was initially adamant that she wanted the father to stay with her overnight, and appeared not to understand the concerns that the professionals had about the child's wellbeing, eventually agreed that the father should stay with his uncle overnight and they would meet again in the morning. She was advised to call the police if the father came to the flat.
g) On 19th May 2016, Miss Papworth visited the mother again this time in the company of Sabrina Charpentier ("Miss Charpentier") who is a social worker. The visit had been scheduled for 9.30 a.m. but the mother had not been contactable by phone and they were only able to gain access to the property at 10.30 a.m.
h) On entering the property the father was present and he was holding the child who was crying and waiting for his bottle. The father appeared to be in pyjamas and was wearing no shoes and socks and the mother said that he had just woken up. It appeared to Miss Papworth that the father had spent the night at the flat although he denied this.
i) Both the father and the mother insisted that they spend the next few days together as a couple and the father became argumentative when Miss Charpentier explained that the Children's Service would require the mother to sign an agreement to move the child to a place of safety, either at the Women's Refuge or the mother's father's house. The father became increasingly agitated and once the child had finished his bottle he moved to the door of the room holding the child on his shoulder. He told Miss Papworth that he no longer wanted to be in a relationship with the mother but then moved back to sit next to her and kissed her on the shoulder. He again complained about the mother not being nice to him and laid the blame for his behaviour at her door. She appeared to agree.
j) The mother was highly reluctant to look at any agreement concerning her residence and became defensive, accusing Miss Charpentier and Miss Papworth of laughing at her when she was feeding the child. Both the mother and the father refused to sign any agreement.
k) The father then became threatening towards Miss Charpentier, calling her names and telling her to "fuck off out of this flat". Throughout the encounter the father had the child in his arms or over his shoulder and the mother did not make any efforts to take the baby from him.
5. There was evidence before that Court of previous domestic abuse, in particular an incident on a train in the United Kingdom in 2015, when the father struck the mother on the leg, causing her to cry out in pain. She was five months pregnant at the time, and the father subsequently pleaded guilty to assault, and received a 12-month probation order.
6. On 3rd September, 2016, a report was completed by Dr Mair Edwards, a clinical psychologist, in respect of the mother and the father. Dr Edwards stated that both parents were able to meet the child's practical needs, but their ability to do so, and to offer the child the safe and secure emotional environment he will need, was poor. Until the mother successfully separated from the father and prioritised the child's needs, she would not be able to concentrate fully on parenting the child. In Dr Edwards' opinion, the mother would always prioritise the father's wishes ahead of her own and the child's needs and was also likely to return to the father or find a partner with similar characteristics.
7. In Dr Edwards' opinion, the father's lack of emotional regulation skills meant that despite knowing the impact, he was unable/unwilling to moderate his own behaviours and at that moment, the only important thing to him was to meet his own needs and wishes. In his opinion, the father's attachment difficulties, and the impact this had on all aspects of his relationship functioning, made it highly unlikely that he would be able to make the necessary changes to parent the child or any other child effectively and safely in the long term.
8. The father continued to display aggressive and abusive behaviour: -
(i) On 20th May, 2016, following the making of the interim care order, the child was placed in the care of the mother, to reside with the maternal grandparents.
(ii) On 14th July, 2016 the Court excluded the father from the maternal grandparents' residence, pursuant to Article 31(4) of the Children Law and attached a power of arrest to that exclusion requirement.
(iii) On 12th September, 2016, the father was verbally aggressive on the telephone with the maternal grandmother and she reported further harassment and verbally abusive behaviour from him on 13th October 2016
(iv) On 17th October 2016, the maternal grandparents made the decision to end the child's placement at their home, due to the father's threatening and abusive behaviour towards them, which included him making allegations of physical abuse by them of their own two children, then aged 7 and 5. The mother and the child moved to the Women's Refuge.
(v) On 26th May, 2017, the father sent this message to the maternal grandfather:-
"Hopefully after all this there will only be residual hatred. I hope you understand the things that both me and [the mother] were going through especially with her addiction, it wasn't easy and I should of reacted on occasions in different ways and I'm very sorry for that, but I do only want the best for her and [the child] so future should be brighter."
The maternal grandfather did not reply to this, but then received this further message from the father:-
"Look lad, this can be easy or difficult, it's about [the child] and [the mother] not your stupid grudge, don't get me wrong I pretty much would love to come and see you, getting people to spy on me in court. Pathetic, your doing us a favour being a legendary carer for your amazing grandson, so we gonna forget and be civil please? CBA [can't be arsed] going through all this again man, up to you."
(vi) On 23rd January, 2017, the child was removed from the mother's care and placed in foster care because of the risk presented by the father, and he was placed back with the maternal grandparents on 8th May, 2017, at their request, where he remains.
9. The father's conduct when having contact with the child, supervised by the Children's Service, was such that it gave rise to a risk assessment on 5th January, 2017, for which the father attended only one out of three sessions, which concluded that the father was a high risk to the child, and that future contact sessions should be supervised by two members of the Children's Service staff.
10. On 12th April, 2017, Dr Edwards completed an addendum to her report, in which she observed a marked deterioration in the mother's mental health and psychological functioning. The mother had not fully engaged with her previous recommendations, or did not engage with the recommendations that she then made.
11. In the same addendum report, Dr Edwards said this in relation to the father:-
"4.5.1 There have been no significant changes in [the father's] presentation. Although calmer in this assessment meeting as compared to the one held in July 2016 his attitudes towards professionals and people in authority have deteriorated, and his grandiose feelings of entitlement have increased. In simple terms, [the father] does not accept that the rules of society apply to him and his narcissistic personality traits appears to becoming more solidly formed. [The father] believes himself to be extra-ordinary and therefore deserving of differential treatment. The emails sent to the Social Workers, and his reported verbal aggression to professionals, indicate that [the father] continues to present with an inability to regulate his emotional responses and lacks respect for others. [The father's] difficulties are therefore personality/trait based, rather than state based.
4.5.2 [The father] continues to misuse and is dependent on cannabis. He is also likely to continue to misuse other substances albeit may not be dependent on them."
12. An example of the emails sent by the father to the social workers is this e-mail of 16th November, 2016, to the social worker, Ms Sabrina Charpentier:-
"Afternoon Miss Thing,
I don't know how you expect me to print a boarding pass or who I'm flying with haha, 190+ quid? What a waste of the tax payers money Sabrina, disappointing. Send me a boarding passes, you must login to the site booked from and check me in and send my boarding passes to my email address, don't worry it's not your fault your insolence. And I will have you removed from your position in due course I actually promise. Abuse of power and malpractice, destroying families for fun your disgusting and do not deserve to work with families because you purport the worst outcomes imaginable. Justice will be served regarding you and your work ethics, go back to school and focus on bringing families together. You have removed the ability for us to be a family with threats to removing [the child] from [the mother's] care, that is sickening, if you could understand that I absolutely HATE you and the way you have been with me you would see that the only reasons we are still in this mess is because YOU are a disgusting human being who deserves no more than your own children (if somebody actually touched you) being taken away.
Grow up and think about the effects your decisions have on the diverse families living under your command and in our country!
Take a leaf of advice from your future leader Marine Le Pen & develop some decent moral code!
Terrible regards"
13. The threatening e-mails from the father to the social workers resulted in a request for all communications to be routed via the father's legal representative.
14. On 11th May, 2017, the mother self-referred to a residential rehabilitation centre, stating that this would help her with her cannabis addition as well as detachment from the father. She planned to stay there for twelve weeks, but she discharged herself on 31st May 2017.
15. On 13th September 2017, she was discharged from the Drug and Alcohol Service for failing to attend her last five sessions. It would seem that the relationship between the father and the mother terminated at the beginning of August 2017.
16. In her position statement, the mother agreed that the child should remain with the maternal grandparents within the short and medium term, potentially longer. Whilst the maternal grandfather was not her biological father who was never married to her mother, thus not her stepfather, she had always thought of him as her father. She was extremely grateful to the maternal grandparents for their care of the child and had great confidence that the child would continue to flourish in their care. She could see that whilst he had been living with them he was doing really well. She wanted to continue having contact with the child. She and the maternal grandfather had managed that aspect of their relationship well, and the child knew that his main carer was the maternal grandfather. She understood that if the child was adopted by the maternal grandparents, then she would lose parental responsibility and all that went with that, but she remained confident that the maternal grandparents would always act in the child's best interests, and she had no worries in that regard. She acknowledged that she needed to work on herself and until she had made substantial progress, she was not best placed to provide full-time care for the child or to protect him properly. She said this at paragraphs 10 -13:-
"10 My relationship with [the father] terminated at the beginning of August 2017. I no longer have any contact with him. I realise that I have said similar things in the past and yet gone back to him, but this time it is finished and that is final. I accept that I have lied in the past about my relationship with [the father]. Looking back I just could not see the hold that he had over me, the dynamic in our relationship or the risks that he posed to me and to [the child].
11 It is hard for me to contemplate not being [the child's] mum in the future. However, whatever happens, I want what is best for [the child]. If the Court decides that adoption by [the maternal grandparents] is the right route for [the child] I will give my consent. However if the Court feels that [the child] can be adequately protected in his placement with [the maternal grandparents] under a Residence Order (which I understand would give [the maternal grandparents] parental responsibility) then I could at least stay being a mum to [the child] with parental responsibility for him. That would give me the possibility of [the child] being returned to my care if appropriate.
12 I do not talk of a possible return of [the child] to my care lightly or flippantly. If it were ever to happen, I know that I would need to prove myself as safe for [the child] first, and that there would need to be a slow period of rehabilitation. I must stress that I am not trying to undermine [the child's] placement with [the maternal grandparents] which is currently the best place for him.
13 I therefore rest on the wisdom of the Court as to which legal order is made and I will respect the Court's decision in this respect."
17. The father accepted that he was not in a position to be the child's main carer, but he did not accept that he was a danger to the child. He said the problems that there had been at contact were around his relationship with the social workers and not the child. He was not in a position to be the child's main carer because he was working full time in the United Kingdon and did not have accommodation or facilities to care for him. Also, he thought that the child should remain living in Jersey. Ideally, he would like the child to live with the mother, but if that was not going to be possible, he agreed to the child living with the maternal grandparents, who would care for him well, and the child would be able to see the mother, which he thought was important for him. He did not agree to the child being adopted unless it was an open adoption, which would allow the child to maintain a relationship with him. If that was not possible, then he would prefer that the child live with the maternal grandparents under a residence order.
18. In evidence, he explained that he was unstable a year ago, and the issues around his relationship with the mother had gone away. He said that the maternal grandparents were giving the child excellent care which he could not fault in any way, and he would not undermine that placement.
19. He accepted that his relationship with the mother had not been good, and that it was a bad environment for the child. He said he should have acted differently. He blamed the social workers who were trying to break up his relationship with the mother. In his words "They just wanted us separated" and he and the mother were "ducking and diving" to stay in that relationship.
20. He admitted making a false allegation that the maternal grandparents had physically abused their own children, but said that at the time he had acted impulsively and out of spite. He apologised, and said they had no cause to be wary of him now.
21. Under a residence order, he would retain parental responsibility and made it clear that he would want to be consulted and have a say in the child's upbringing. If in time he was in a better position or circumstances changed, the child could come to him, and he wanted that possibility left open. He said it was not fair for him to give up his rights. It was his son, and he could not sit back and forget about him. He didn't want to lose the ability to being the child's father.
22. The law in relation to the matters before the Court is now well settled, and it is not necessary to set it out at any length.
23. The applicable principles when determining a care order application were authoritatively stated in this jurisdiction by the Court of Appeal In the matter of F and G (No 2) [2010] JCA 051 and helpful guidance given at paragraphs 5 and 6 of that judgment.
24. The relevant date was 20th May 2016, when proceedings were issued by the Minister, and the evidence before the Court (which has only been summarised above) was such as to satisfy us without further inquiry that the threshold had been met, as agreed by the parties, namely that at that date, the child was suffering or was likely to suffer significant harm attributable to the care given to the child or likely to be given to the child if no care order was made, not being what it would be reasonable to expect a parent to give the child. The Court therefore had jurisdiction.
25. In terms of what orders we could make, the applicable principles are set out in paragraph 8 of In the matter of F and G as follows:-
"8. For this purpose it is well established that:-
(i) The child's welfare is the paramount consideration (Article 2(1) 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)).
(iii) The Court must have regard to the seven matters ("the welfare checklist") 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 (Article 2(5)).
(v) Before making a care order the Court must scrutinise the care plan prepared by the Minister for the child including scrutiny of the Minister's proposals for contact and invite the parties to comment on them (Article 27(11))."
26. The care plan of the Minister, supported by the guardian, was for the child to have permanency with the maternal grandparents through adoption, and for the child to be freed for that purpose. The mother and father agreed with that placement and the real choice before the Court, therefore, was between making a residence order or approving the care plan for adoption, for which a care order and a freeing order would follow.
27. Under Article 1 of the Children Law, a residence order is defined as meaning "an order settling the arrangements to be made as to the person with whom a child is to live". Article 13(2) provides that "where the Court makes a residence order in favour of any person who is not the parent or guardian of the child concerned, that person shall have parental responsibility for the child while the residence order remains in force." Under Article 13(3) such a person cannot consent or refuse to consent to the making of a freeing or adoption order.
28. Article 14 provides as follows:-
"(1) Where a residence order is in force with respect to a child, no person may -
(a) cause the child to be known by a new surname; or
(b) remove the child from Jersey,
without either the written consent of every person who has parental responsibility for the child or the leave of the Court.
(2) Paragraph (1)(b) does not prevent the removal of a child, for a period of less than 1 month, by the person in whose favour the residence order is made.
(3) In making a residence order with respect to a child, the Court may grant leave required by paragraph (1)(b) either generally or for specified purposes."
29. Thus, if the Court were to make a residence order in favour of the maternal grandparents, although the child would live with them, they would share parental responsibility with the mother and father. "Parental responsibility" is defined under Article 1 of the Children Law as meaning "all the rights, duties, powers, responsibilities and authority which the father of a legitimate child has in relation to the child and the child's property."
30. Under Article 12(5) of the Adoption (Jersey) Law 1961 ("the Adoption Law"), on the making of a freeing order the parents lose their parental responsibilities in favour of the Minister, and, of course, on the making of an adoption order, all ties are severed. In this case, that severance will have less impact upon the mother, because the adoption is proposed to be within her family, but it applies fully to the father. He does not give his consent to the child being freed for adoption; the mother rests on the wisdom of the Court.
31. In the case of In the matter of M (Care Order) [2013] JRC 234, the Court considered the matter of non-consensual adoption and applied the principles established by the Supreme Court in Re B (A Child) [2013] UKSC 33, and by the English Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146. Although the statute in Jersey with regard to adoption is now significantly different to that in England and Wales, In the matter of M confirms that the court should only make an order seeking to sever the relationship between a parent and a child where it is necessary, within the meaning of the European Convention to do so in order to protect the interests of the child.
32. At paragraph 170 of In the matter of M, the Court considers the issue of "non-consensual" adoption and refers to paragraph 22 of the Supreme Court judgment that says this:-
"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; see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215."
33. In the matter of M further endorsed three important points emphasised in Re B:-
(i) The 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 the Court must be satisfied that there is no practical way of the authorities providing the requisite assistance and support, and judges must explore rigorously whether a local authority is seeking a "placement order" because resource issues make it unwilling to provide the necessary support.
34. In the matter of M also confirms that in every case where the Court is being asked to approve a care plan for adoption without parental consent, the following guidance set out by the Court of Appeal in Re B should be applied:-
(i) the need for proper evidence from the local authority and the guardian which addresses all the options which are realistically possible and contains an analysis of the arguments for and against each option; and
(ii) an adequately reasoned judgment which includes a 'global holistic evaluation of all the options'.
35. In considering whether adoption is in the child's best interests, the Court must consider the provisions of Article 3 of the Adoption Law which requires the Court to have regard to:-
"... all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the infant throughout the infant's childhood, and shall, so far as practicable, ascertain the wishes and feelings of the infant regarding the decision and give due consideration to them, having regard to the infant's age and understanding'. 'Infant' means a person under the age of majority."
36. In In re F (Care order) [2013] (1) JLR 244, the Court (at para 40) suggested this was akin to Article 2(1) of the Children Law where the welfare of the child is the Court's paramount consideration.
37. The issue arose in the course of the hearing as to whether, even if it was minded to do so, the Court should make a residence order in favour of the maternal grandparents, who were not before the Court, and whose views on the matter had not been specifically canvassed. Common sense would dictate that before ordering that a child should live with a person, that person should have agreed to such an order being made and to taking on the important responsibilities that go with it. Whilst the child was already living with the maternal grandparents and they wanted him to continue doing so, they had not been asked whether they consented to such an order and it was not known what, if any, legal advice they may have received in relation to such an order.
38. During an adjournment Mr Andrew Kean, a senior practitioner in the Fostering and Adoption Team at the Children's Service, was able to discuss the matter with them, and their response was contained in his e-mail of 6th November, 2017 as follows:-
"[The maternal grandparents] just contacted as they were very concerned about the request to consider a residence order by the Court.
I initially informed them what a RO would mean in terms of sharing PR with [the maternal grandparents] and how they would need to work alongside and consult with the birth parents, although they would hold PR themselves. [The maternal grandparents] were clear to me that this is not something they would consider for the following reasons:
They could not work alongside the birth father, they deem him of not good character, adding he has caused them as a family multiple problems.
They would not be willing to supervise any contact with the birth father. They do not believe that any direct contact is in [the child's] best interests, adding [the child's] birth father would not be a good influence on him.
[The child's] father has perpetrated domestic violence, is known to have been violent to others and is of anti-social character and anti-authoritarian.
They do not believe it is in [the child's] best interests in terms of his identity, he needs to know who (h)is main carers are, be able to call them mummy and daddy, be secure and development (sic) a good attachment.
They do not think it is in [the child's] interests that the RO would be open to challenge from the birth parent/s at a later date, again for the reasons above. They would not agree to an RO at all on this basis. There also is no policy in respect of ROs where the State would provide financial assistance to [the maternal grandparents] if the RO was challenged by the parents and they did not agree.
The impact on their own children if [the child] were to be removed at the later date would be massive and this is not a risk they wish to take.
Above all they want to provide [the child] with a stable, secure and loving childhood where he is cared for by parents who will provide for all his needs. In terms of maintaining a relationship with [the mother] this is very important to [the maternal grandparents]. Exactly 'what their story' will be in terms of [the child's] life journey when he is older would be decided by them as adoptive parents. The Adoption Team will be on hand with advice if necessary in the future."
39. Advocate Benest, for the mother, informed us that the mother understood this e-mail from the maternal grandparents, as she did not feel that she could trust the father not to interfere at some stage.
40. Advocate Corbett, for the father, pointed out that despite these clear views, the maternal grandparents had not had the benefit of legal advice, in particular on whether conditions could be imposed by the Court which would safeguard the maternal grandparents and the child from undue interference on the part of the father. She did not provide a draft of the sort of conditions she was proposing the Court should make but she suggested, for example, that an order could be made under Article 66(8) of the Children Law, which is in these terms:-
"On disposing of any application for an order under this Law, the Court may (whether or not it makes any other order in response to the application) order that no application for an order under this Law of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the Court."
41. It was pointed out that the maternal grandparents would inevitably be involved in any application for leave to bring proceedings by the father. Indeed, having parental responsibility under a residence order, they would be a required respondent to any such application, to which Advocate Corbett suggested that the Court could direct that they should not be made respondents to any such application, pursuant to Rule 11(6) of the Children Rules 2005, so that they would not be aware of any such application for leave, and thus undisturbed by it unless leave was granted.
42. Alternatively, Advocate Corbett canvassed the possibility of the maternal grandparents being given a residence order which would secure the position of the child with them, leaving it to them to make their own application for adoption in due course.
43. Freeing for adoption was not without risk, said Advocate Corbett. There was a possibility that, despite being approved as kinship carers, the maternal grandparents would not pass the more stringent test for adoption, in which case the child might not be placed with them at all, but with complete strangers. Advocate Davies said the risk was extremely low. Both parents had nothing but praise for their care of the child, and they had been approved as connected persons. Something quite unexpected would have to come out of the woodwork that was so bad that they would not be able to care for the child at all.
44. Ultimately, Advocate Corbett submitted that the case should be adjourned so that the maternal grandparents could get legal advice on the issue of a residence order, as they had not been told by Mr Kean of the possibility of using conditions to control interference by the father. Without that, she said it was unsafe for the Court to proceed.
45. Having promoted the use of Article 66(8), Advocate Corbett produced no authority to guide the Court on its possible application. There is authority, namely the case of In the matter of T [2010] JRC 126, that such an order can be made where the welfare of the child requires it, although such orders should be used with great care and sparingly, and should be the exception not the rule. That authority was not before the Court at the hearing.
46. Advocate Davies, for the Minister, submitted that there was no precedent for parental responsibility being retained by a parent but effectively suspended in the way envisaged by Advocate Corbett, and, if it was suspended, that would equate to adoption, which would make a freeing order the right order to make in any event. The real point, she said, was that the father wanted to retain parental responsibility solely to hold open the door for the possibility of his parenting the child. There was no timescale to this. Furthermore, the father clearly had every intention of using parental responsibility if he retained it, as the mother feared.
47. As the guardian said, in making a freeing order there was "no watertight guarantee" that the child would be adopted by the maternal grandparents, but she supported the Minister's care plan, as adoption would give him security and stability in the form of a permanent placement, where he can form and establish safe attachments. He has a right to family life and he cannot be kept waiting for his father.
48. There is never any guarantee in cases such as this, but in our view, the risk of the maternal grandparents not being assessed as suitable adopters for the child is very low. The child has found a home with the maternal grandparents and they want to make him a permanent member of their family. That, in our view, is where his best interests lie.
49. The suggestion of a residence order has been put forward by the father, for reasons which, we conclude, related entirely to him, and not to the child. He wants to retain parental responsibility so that the door can be left open for him to involve himself with the child's upbringing in the future, potentially to parent him at some indeterminate point. The child is to be kept waiting until that point arrives.
50. We had in mind:-
(i) the father's history of threatening, aggressive and abusive behaviour;
(ii) the analysis by Dr Edwards of his character; and
(iii) the strength of Dr Edwards' assessment that the father will not be able to parent the child even in the long term.
51. The very fact that Advocate Corbett was suggesting the use of Article 66(8) to control the father's interference in the placement is an acknowledgment that he is likely to do so, as feared by the mother, but fundamentally, it is a proposal put forward entirely in the interests of the father, to enable him to keep the door open to his future involvement, and not in the interests of the child.
52. We were assisted by an analysis of the pros and cons of the realistic options before us by Miss Dulakova and the guardian. This was clearly a case where an order had to be made to secure the child's placement in that, with no order, parental responsibility would rest with the mother and father, neither of whom were capable of parenting the child. The same point applies to a supervision order. The realistic options before us were the making of a residence order or the making of a care order followed by a freeing for adoption order. Taking first the making of a residence order in favour of the maternal grandparents, the pros would appear to be:-
(i) the child would remain in the care of the wider family;
(ii) the child would no longer be a looked after child;
(iii) the placement would be supported, certainly in the short term, by the mother and father; and
(iv) the child would continue to have regular contact with the mother and the father.
53. The cons would be as follows:-
(i) the maternal grandparents were vehemently opposed to a residence order in their favour which would be imposed against their will;
(ii) it would be open to the parents to challenge the residence order at any time in the future and so there would be no permanence for the child;
(iii) the combination of the order being imposed on the maternal grandparents against their will and of the father interfering in the child's life could de-stabilise the placement; and
(iv) the maternal grandparents are not prepared to have any dealings with the father and were opposed to the father having any kind of direct contact with the child. The maternal grandparents would be very likely therefore to become embroiled in applications for contact initiated by the father and any direct contact would have to be supervised, with the possibility of all the problems incurred to date with supervised contact.
54. Turning to the making of a freeing for adoption order (following a care order), the pros would appear to be as follows:-
(i) there is a high probability that the child would achieve permanence with the maternal grandparents, where he is already being well cared for; and
(ii) the child would remain part of the mother's wider family and could continue to have contact with her.
55. The cons would appear to be:-
(i) there was a risk of the maternal grandparents not passing the assessments for adoption, which might result in the child being adopted by strangers, although he would, through that process, still achieve permanence; and
(ii) the child's ties with his father would be severed and there was a low risk of the child's ties with the mother also being severed if he was adopted by strangers.
56. We have not put forward the request by Advocate Corbett for an adjournment as an option, because we rejected it for the following reasons:-
(i) The purpose of the delay was to enable the maternal grandparents to seek legal advice, but there was no evidence that they wanted legal advice and their reasons for rejecting a residence order were lucid and persuasive. Being sent off by the Court to get legal advice they had not requested when their views have been expressed clearly might imply to them that the Court was concerned about their stance in this matter. Raising such doubts was not in the interests of the child.
(ii) It would give rise to delay, which was not in the interests of the child's welfare. (Article 2(2) of the Children Law).
57. As the guardian said, consideration must always be given to any lesser order available to the Court, and a residence order was the lesser of the two orders that were before us for realistic consideration. The guardian was critical of the fact that the views of the maternal grandparents on a residence order had not been canvassed with them much earlier, and that they had not been given the option of obtaining legal advice, but despite this, her position had not changed. She supported the making of a freeing order.
58. In our view, it was not simply that, on balance, a freeing order was the better of the options before us. We concluded from our analysis of the realistic options before us that a freeing order was necessary, or in the Strasbourg sense, an imperative, as opposed to merely optional or reasonable or desirable, and this for the following reasons, in summary: -
(i) Neither the mother nor the father was capable of meeting the child's needs within his time scales.
(ii) The child had already found, in the maternal grandparents, a family who, the social worker said, loved him as their own and wanted him to be a permanent part of that family.
(iii) The maternal grandparents were part of the mother's wider family, and therefore ties between herself and the child would not be severed completely.
(iv) The father's proposal of a residence order had been put forward in his, not the child's, interests, so that he could keep open the door to his involvement with the child at some indeterminate point in the future.
(v) The father's proposal involved an undefined structure of conditions and orders surrounding the child's care designed to restrain him from interfering, none of which detracted from the essential point that a residence order was not a permanent order. The shadow of an application to discharge it would hang over his placement and all of this was for the sake of a father who had been assessed unable to parent the child long term.
59. When considering an application for a freeing for adoption order under Article 12 of the Adoption Law, if the Court is satisfied that each parent agrees to the making of an adoption order unconditionally, or that the parent's consent should be dispensed with on a ground specified in Article 13(2), the Court shall make the order. The Court may only dispense with a parent's consent if it is satisfied that the parent, in this case "is withholding his or her consent unreasonably".
60. The father is withholding his consent, and the mother, although resting on the wisdom of the Court, has not given her unconditional consent. Therefore, as stated in paragraph 74 and 75 of Re F and G, the Court must consider two matters:-
(i) Is the making of a freeing order in the best interests of the child; and
(ii) If so, is the parent's consent being unreasonably withheld.
61. We have already addressed the first question and were satisfied that the making of a freeing order was in the best interests of the child, but in relation to the issue of withholding the parent's consent, the test is an objective one, Quoting from paragraph 80 of the judgment in F and G:-
"80 The Royal Court turned next to consider whether the mother was withholding her consent unreasonably (the father having consented). It relied on the explanation of this test as described by this Court at paragraphs 26-29 of Re JS and BS [2005] JRC 108 and it applied the principles there set out. In particular as it noted, the test is an objective one. A reasonable parent will give great weight to what is best for the child (see the observations of Lord Denning MR IN Re L [1962] 106 LOS JO 611 approved in re W (1971) 1 All ER 49) but a Court must be careful not simply to substitute its own opinion for that of the parent. As the Royal Court put it:-
'The question is whether the parental refusal comes within the band of possible reasonable decisions, not whether it is right or mistaken. There is a band of decisions within which no court should seek to replace the individual's judgment with its own' [para 18]'
81 Helpful in this context are the observations of Steyn and Hoffman LLJ in Re C (A Minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR at 272 as to the test:-
'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.'
62. As Advocate Benest said, the mother had complex feelings. She understood at an intellectual level that the interests of the child had to be put first, but at the same time, she did not want to give up on him. Accordingly, she could not give her unconditional consent and rested on the wisdom of the Court.
63. We understood the mother's position, and how at an emotional level she could not bring herself to give her consent unconditionally, but objectively, it was clear that it was in the child's best interests to be freed for adoption, and accordingly, for the purposes of Article 13(2)(b) she was withholding her consent unreasonably.
64. Turning to the father, he was, as we have said, motivated by his own interests and not those of the child. He wanted the child to be deprived of the opportunity of permanency in the maternal grandparents' family, so that he could, at some indeterminate point in the future, become involved in his parenting, and this against the advice of Dr Edwards that he would not be able to parent the child long term. Objectively, this was not in the best interests of the child, and the father was withholding his consent unreasonably.
65. In conclusion, we made the following orders in this sequence: -
(i) Having approved the Minister's care plan and contact arrangements, we made a final care order placing the child in the care of the Minister.
(ii) Secondly, being satisfied that the child was likely to be placed for adoption, we freed the child for adoption, dispensing with the consent of the parents. We noted that the freeing order extinguished the parents' parental responsibility and also the care order.
Authorities
Children (Jersey) Law 2002.
In the matter of F and G [2010] JCA 051.
Adoption (Jersey) Law 1961.
In the matter of M (Care Order) [2013] JRC 234.
Re B (A Child) [2013] UKSC 33.
Re B-S (Children) [2013] EWCA Civ 1146.
In re F (Care Order) [2013] (1) JLR 244.
Children Rules 2005.