Before : |
Sir Michael Birt, sitting as a Single Judge |
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Between |
A (the mother) |
Applicant |
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And |
Minister for Health & Social Services |
First Respondent |
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B (the father) |
Second Respondent |
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C |
Third Respondent |
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D |
Fourth Respondent |
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Morgan (acting through his guardian ad Litem) |
Fifth Respondent |
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IN THE MATTER OF MORGAN (CARE ORDER/FREEING FOR ADOPTION ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate R. S. Tremoceiro for the Applicant.
judgment
BIRT JA:
1. On 11th December 2017 the Royal Court (Commissioner Clyde-Smith with Jurats Crill and Thomas) made a final care order in respect of the Fifth Respondent ("the child") and further made an order freeing the child for adoption having dispensed with the consent of the Applicant ("the mother") and the Second Respondent ("the father"). The reasons for the decision were contained in a judgment ("the judgment") issued on 19th January 2018 (In the matter of Morgan (Care order) [2018] JRC 017)..
2. The mother now wishes to appeal against the care order and the freeing for adoption order ("the freeing order"). She is supported by the Third and Fourth Respondents ("the grandparents"). Rule 24(3) of the Children Rules 2005 provides that a notice of appeal in relation to proceedings under the Children (Jersey) Law 2002 ("the Children Law") must be brought within 10 days of the giving of reasons by the Court for the decision against which the appeal is brought. It follows that the notice of appeal in respect of the care order should have been filed on or before 29th January. As the mother only applied to file the notice of appeal on 20th March, it follows that she is some seven weeks out of time.
3. The mother also wishes to appeal against the freeing order. This is not covered by the Children Law and accordingly the period for appealing is governed by Rule 3 of the Court of Appeal (Civil) Rules 1964, which provides for a period of 28 days from the order complained of. Strictly speaking, that means the time for appealing in this case ran from 11th December with the consequence that the applicant is some two and a half months out of time. However, I suspect that, if asked, the Royal Court would have extended the time for appealing so as not to start running until the delivery of the reasoned judgment. That was delivered on 19th January with the result that the 28 day period would expire on 16th February. Even on that basis, the mother is over a month out of time.
4. Furthermore, pursuant to Article 12(5) of the Adoption (Jersey) Law 1961, when read with Article 20(2) of the same Law, the care order is discharged upon the making of a freeing order. This is therefore in reality an appeal against the freeing order and the timescales are therefore those set out at paragraph 3 above.
5. On the application being referred to me, I indicated that I would deal with the matter on the papers but invited written submissions from any party who wished to do so. I have considered those which I have received.
6. The history of this matter is set out in detail in the judgment. In very briefest outline, the child was aged 14 months at the time of the hearing in November and is therefore now aged approximately 18 months. The mother became pregnant with the child at the age of 15. The pregnancy was planned by her and the father, who was then aged 17. At the time of the hearing, the mother was 17 and the father 19.
7. An initial assessment undertaken by the Children's Service highlighted that the mother was an emotionally vulnerable and uncontained young person, who had previously self-harmed and had accessed support from the Child and Adolescent Mental Health Service (CAMHS). The father also had complex needs.
8. The child, not yet born, was made subject of a Child Protection Plan with the concerns of the Minister relating to the mental wellbeing of the mother and, to a lesser extent, the father, the parents' capacity to regulate and contain their emotions, domestic violence and conflict in the parents' relationship and the absence of suitable extended family support.
9. Following the child's birth, it was agreed that he would reside at the home of the maternal grandparents in the care of the mother, with the maternal grandfather (the maternal grandmother working full-time) acting as a supportive and protective factor in the relationship between the parents.
10. Subsequently, concerns arose as set out in the judgment, and on 28th February 2017, an interim care order was made by the Court following an application by the Minister. The care plan was for the mother and the child to attend a residential assessment centre in the UK commencing 10th April 2017 and in the meantime the child was placed with foster carers.
11. The visit of the mother and the child to the assessment centre in the UK was not a success. Paragraph 15 of the judgment sets out an extract from the written assessment of the assessment centre which was that the mother was not able to meet the child's needs due to her own unmet needs. It was decided that the placement could not continue. Following his return to Jersey on 28th April 2017, the child was placed back with local foster carers where he remained at the time of the final hearing in November.
12. Reports were obtained from, amongst others, Mr Martin Wynne, an independent social worker and Dr Celeste Van Rooyen, a chartered clinical psychologist.
13. The final hearing took place over four days between 21st and 24th November 2017. It was agreed by all parties that the threshold criteria under Article 24(2) of the Children Law were met and the Court agreed that that was so as set out at paragraph 104 of the judgment. There was therefore jurisdiction to make a care order.
14. The Minister applied for a final care order together with a freeing order, having concluded that the appropriate course was for adoption. The child would remain in foster care until permanence could be found for him through an adoptive family. The maternal grandparents filed their own care plan and addendum which was summarised at paragraph 31 of the judgment as follows:-
"(i) The child would be placed with them permanently. They stressed that this was a permanent move, and not one which could be regarded as the return of the child to the mother's care by surreptitious means.
(ii) The child's re-introduction into their home would be planned, and carried out under the aegis of a care order in favour of the Minister, which would in time be replaced by a supervision order, and finally, a residence order.
(iii) The maternal grandmother would give up her work to become the child's full-time carer. The maternal grandfather would increase his hours at work in order to support the family.
(iv) The mother would move out of the family home to live with the maternal great-grandmother so that there was no confusion for the child as to who was his primary carer.
(v) They would commit to all of the work recommended by Dr Van Rooyen."
That plan was supported by the mother.
15. By the time it came to the closing addresses after the evidence had been heard, the grandparents' position had changed. Their advocate, supported by the advocates for the mother and the father, was seeking an adjournment, initially of two weeks. The reasons for this were summarised in the judgment as follows:-
"112. By the time it came to closing addresses, Advocate Hillier, supported by Advocate English for the father and Advocate Tremoceiro for the mother, sought an adjournment, initially of two weeks. The maternal grandparents, explained Advocate Hillier, had to balance the needs effectively between two children and had decided to choose the child against the mother. What was required, he said, was a properly thought out and resourced support package for the maternal grandparents under a care plan, the aim of which would be to place the child with them. They undertook to work with the experts and it would be the experts who would decide when the child could be placed with them, although that should be as soon as possible. Contact between the maternal grandparents and the child (then every six weeks with the mother present) should be increased immediately in what he described as a 'leap of faith' that the placement with the maternal grandparents would succeed. This was the child's one chance of remaining within his birth family.
113. That two week adjournment would be for the Minister to see how quickly a support package could be put in place. There was no elaboration by Advocate Hillier as to what that support package might comprise and the proposal left entirely in the air how long any inevitable further adjournment or adjournments would be."
16. The Minister and the Guardian submitted that this proposal for an adjournment completely ignored the child's timescales and indeed the expert advice.
17. For the reasons set out in the judgment, the Royal Court did not consider that the course proposed by the maternal grandparents would be in the child's best interests. It noted the evidence from both Mr Wynne and Dr Van Rooyen that the child needed to secure his primary attachment within six months. The course proposed by the grandparents, which was described as a 'leap of faith' even by their own advocate, would be likely to result in delay beyond that period whilst the child waited for the maternal grandfather to undertake the therapeutic work recommended, for reports to be commissioned and further hearings to take place, during all of which time he would be developing his attachment to the foster carers when he should be securing his permanent primary attachment.
18. The Court also said at paragraph 128:-
"128. In order for us to reject the Minister's care plan, we would have to have been persuaded to accept the premise underlying the plan put forward by Advocate Hillier and supported by Advocate Tremoceiro and Advocate English, that the child should indeed be placed with the maternal grandparents. That would entail the Court, in turn, rejecting the advice it had received from Dr Van Rooyen that before any such decision can be made, the maternal grandparents, and in particular the maternal grandfather, must have made sufficient progress with the therapeutic work recommended. It would be against the advice of Ms Sturgess, Mr Wynne and the guardian that in any event the child cannot be placed with the maternal grandparents because of the family dynamics and the risk of destabilisation by the mother."
19. In the circumstances the Court concluded that it was in the best interests of the child that he should be freed for adoption. The Court went on to consider the question of dispensing with the consent of the mother and the father (upon whom the Court had conferred parental responsibility). For the reasons set out in the judgment, the Court concluded that consent to freeing for adoption was being withheld unreasonably having regard to the clear interests of the child.
20. The approach of the Court of Appeal when hearing an appeal from a decision such as that of the Royal Court in this case is to be found In the matter of F and G (No 2) [2010] JCA 051. As set out at paragraph 49 of the judgment in that case, the Court can only intervene if it concludes that the decision is wrong in law or wrong in principle or was plainly wrong. The Court of Appeal referred in passing to the classic passage in G v G [1985] 2 All ER 225 at 228-230. To like effect was the observation of the Court of Appeal in E v Minister for Health and Social Services [2012] (2) JLR 446 where at paragraph 66 it quoted with approval the observation of Butler-Sloss LJ in Re M & R (Minors) (Sexual abuse: Expert evidence) [1996] 2 FLR at 201:-
"Once the judge has made a decision in a child case, it is not for the Court of Appeal to second-guess the judge, to trawl through the evidence on paper, to consider whether the judge has given sufficient weight to one matter or too great weight to another matter, nor to allow minor discrepancies to provide the opportunity for a rehearing of the facts and a fresh exercise of discretion. That is properly the function of the trial judge, who has been immersed in the case and has that unique opportunity, denied to the appellate court, of seeing and hearing the witnesses and gaining the feel of the case. It is the function of the appellate court to make sure that the judge has correctly directed himself to and applied the relevant law, has properly approached his task in deciding disputed facts and has not erred in principle. The appellate court then has to stand back and consider whether his decision is plainly wrong. If it is not, it is not for the appellate court to intervene."
21. The approach when considering an application for an extension of time was conveniently summarised by Beloff JA in Pitman v Jersey Evening Post [2013] (2) JLR 293. The power must be exercised to achieve justice and the factors which are normally taken into account in deciding whether to grant an extension of time for appealing are:-
(i) the length of the delay;
(ii) the reasons for the delay;
(iii) the chances of the appeal succeeding if time for appealing is extended; and
(iv) the degree of prejudice to the potential respondent if the application is granted.
22. In urging that the mother should be given an opportunity of putting her case to the Court of Appeal, Advocate Tremoceiro referred to an observation of mine In the matter of D (Care Order) [2014] JRC 134 at paragraph 15 which was in the following terms:-
"However, one has to have regard to the nature of the matter before the Court. Proceedings under the Children Law are concerned with the welfare of children. In such cases the Court is not concerned with vindication of a legal right but with what is the best thing to be done in the interests of the child or children in question. This is very fact specific and it would, in our judgment, usually be a very dangerous course to conclude, without hearing all the evidence, that an application is so hopeless that it should not be allowed to proceed. It follows that if the Minister wishes to strike out an application to discharge a care order, she will face an extremely high hurdle, as the effect of a strike out would be to prevent the child concerned from even arguing that the care order should be discharged."
However, as Advocate Tremoceiro very realistically conceded, that statement was made in the very different context of a strike out application. I am concerned here with an appeal after a full trial on the merits by the Royal Court. The principles applicable on such an application are those described at paragraphs 20 and 21 above and it is those principles which I must follow and apply.
23. I therefore turn to consider the four factors listed at paragraph 21 above.
24. As to (i), strictly speaking, the mother is two and a half months out of time. I am however content to consider the position merely since delivery of the reasoned judgment but even then, she is still over a month late, which is a not insignificant period of delay.
25. As to (ii), the applicant has sworn an affidavit. She explains that, because of her age, it has been hard for her to appreciate fully and immediately the long-term implications of all the proposals and decisions which have been made for the child. It has taken her the weeks since the Court's judgment was handed down to think it through, to look back on what was said at the hearing, and to reach the realisation that the decision was wrong and that she was the best person to look after the child and was now capable of doing so.
26. As to (iii), the notice of appeal raises two grounds as follows. The first is that there has been a change of circumstances since the judgment because the mother is now in a position to parent and care for the child. This would justify a different decision.
27. The second ground relied upon is that there is evidence from Alma Brambles, a physiotherapist who had contact with the mother and the child during their time at the assessment centre in the UK, which evidence was not known about at the time of the hearing.
28. The applicant expands upon these two grounds in her affidavit. As to the first ground she says as follows:-
"5. Over the weeks since the Court's decision I have thought about [the child] constantly, and the effect of the Court's decision that he is to be adopted and to grow up in a different family, not knowing me or anyone else in his natural family. I cannot accept this, or agree that this is the best thing for [the child]. I feel that, with some help, I am capable of being his mother, of looking after him well and providing for all his needs.
6. Since the Court's decision, I have changed a lot. This is a result of thinking so much about [the child] and the implications of the Court's decision, but also because I am growing up and learning from all that has happened to me. I was only 15 when I had [the child]. I am only 17 now, but I have grown up so much over the last year; I am not the same person who was assessed and found not to be capable of being his mother.
7. Since the hearing I have continued taking my medication and my anxiety has greatly reduced. I have had no panic attacks or anxiety attacks for between 2 and 3 months, and I am capable of doing things which were previously beyond me, such as taking buses. Inside my home I now cook my own meals, do my own washing and keep my room tidy. Nobody smokes inside the house anymore and I am aiming to give up smoking entirely in time to have [the child] back. My social worker Lesley McCann is helping me with a view to securing a home of my own."
29. As to the second ground, she explains that, following a meeting between the grandfather and Miss Brambles, she telephoned Miss Brambles. Miss Brambles apparently said that, when she treated the child, she had not known that he had been in foster care before coming to the assessment unit; she had assumed he had been in the mother's care. She said that, had she known that the mother and child had been separated previously, she would have seen them more frequently. She told the mother that it was her opinion that, during the time she treated the child, his neck was improving and she said it was her opinion that the mother was doing really well during the period she was in the UK.
30. As to (iv), the mother's affidavit indicated that the child had not yet been placed with potential adopters. However, the Minister filed a statement to say that, after a period of introductions and transition, the child moved to live with his potential adoptive parents on 16th March and that all is going well so far.
31. My conclusion is that the application for an extension of time should be refused.
32. As to (i) and (ii), whilst I appreciate the mother's youth and the magnitude of the decision that her child should be freed for adoption, she was legally advised throughout and I do not consider that there is any powerful explanation for the failure to appeal in time. She knew the decision on 11th December and she knew of the reasons for that decision from the judgment issued on 19th January. I do not consider that she has provided a good reason for her failure to appeal within 28 days of the judgment.
33. As to (iii), I do not consider that there are any realistic prospects of success. The case before the Royal Court was fought on the basis that the mother accepted that she was not in a position to care for the child within his required timescales and the whole dispute was as to whether there should be a freeing order or whether the child should be placed with the grandparents. The mother now wishes to put forward a wholly different course of action, which is that the child should live with and be cared for by her. The only evidence she is able to put forward in support of this is her belief, as stated in her affidavit, that she has changed since the Court's decision and that she is now in a position to have care of the child. Whilst there can be no doubt about her love for her child and her wish to care for him, there is simply no basis in the material before me upon which the Court of Appeal could be invited realistically to overturn the careful judgment of the Royal Court. Furthermore, now that the child has been placed with potential adopters, the prospects of a successful appeal are even further reduced. In order to succeed, the mother would have to persuade the Court of Appeal to remove the child from the prospective adopters, where he could be expected to have begun to develop bonds of attachment, and place the child back with the mother, thereby delaying the whole process of the child settling in a stable placement.
34. The mother also relies upon new evidence which she wishes to adduce concerning the opinion of the physiotherapist at the assessment centre. I cannot accept that the evidence, even if known at the time of the hearing before the Royal Court, could possibly have made any difference nor do I consider that it could make any difference to the case which the mother now wishes to put forward to the effect that the child should come and live with her. The overall view of the assessment centre was very negative about the mother's ability to care for the child and the opinion of an individual physiotherapist could not outweigh that.
35. As to (iv), I consider that substantial prejudice to the welfare of the child would be likely to be caused if I were to extend time. The child has just been placed with the prospective adopters. If an extension of time were granted, the appeal could not realistically come on for hearing until the July sitting. This would mean that, for the period until then, the whole process would be thrown into uncertainty. In those circumstances the prospective adopters would undoubtedly find it hard to commit fully to the process of loving and bonding with the child for fear that he might be removed if the appeal were to be successful. In this respect I bear in mind Article 2(2) of the Children Law which provides that, in any proceedings in which any question with respect to the upbringing of a child arises, the Court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
36. Putting all these matters together, there are no valid grounds for extending the time for appeal. The application is therefore dismissed.
Authorities
In the matter of Morgan (Care order) [2018] JRC 017.
Children Rules 2005.
Children (Jersey) Law 2002.
Court of Appeal (Civil) Rules 1964.
Adoption (Jersey) Law 1961.
In the matter of F and G (No 2) [2010] JCA 051.
E v Minister for Health and Social Services [2012] (2) JLR 446.
M & R (Minors) (Sexual abuse: Expert evidence) [1996] 2 FLR.
Pitman v Jersey Evening Post [2013] (2) JLR 293.