Jersey Unreported Judgments

Care proceedings - reasons of the Court for the making of a care order and freeing for adoption order.

[2018]JRC066

Royal Court

(Samedi)

28 March 2018

Before     :		Sir William Bailhache, Bailiff, and Jurats Olsen and Christensen.
Between	Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	Erin (acting through her Guardian Eleanor Green)		Second Respondent

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

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

Advocate P. F. Byrne for the Applicant.

Advocate C. R. G. Davies for Second Respondent.

Advocate B. J. Corbett appeared as amicus curiae.

judgment

the bailiff:

1.        The child was born in November 2017 at the General Hospital.  She is believed to be the mother's fifth living child.  Two of the mother's children live with their father in Jersey under a residence order.  Charlie, aged 2, was adopted following proceedings in 2016 - see In the matter of Charlie (care order and freeing for adoption order) [2016] JRC 191. This judgment contains the reasons of the Court for making a care order and freeing order in respect of the child, which it did on 22^nd March, 2018.

2.        The child's putative father is unknown.  The mother has refused to disclose his identity because, she says, he does not like social workers.  The child was made the subject of an interim care order on 6^th December, 2017.  Although the care plan contained provision for regular contact, which was duly arranged, the mother attended on only four occasions for an aggregate of 90 minutes, and latterly has refused to attend.  She has not taken part in any formal meetings relating to the child's care, nor has she engaged in these proceedings in any way.

Capacity and absence

3.        The mother, who originates from abroad, has been living in the Island in excess of ten years.  English is not her first language, and the child was removed from her at birth.  This application for a full care order and a freeing order comes within three to four months of the proceedings having started, and within a similar period from the date of birth.  The mother did not come to court for the hearing and accordingly the Court investigated her capacity and state of understanding in relation to these proceedings.  We heard evidence from Ms Liz Auld, a clinician employed by the Minister for Health and Social Services for the last ten years.  She told us that she had seen the mother on 8^th December, 2017 with Dr Garcia Alcaraz, a consultant psychiatrist, in order to assess her capacity.  They found no evidence of any mood or thought disorder.  The mother denied any thoughts of self-harm or harm to others.  She demonstrated capacity to make choices about her treatment and care, and had already packed her bags from the maternity hospital as she was keen to return to the accommodation which she occupied.  Those examining her were concerned about psychological damage which she might have sustained in the past, but were satisfied about her capacity to make choices.  Ms Auld told us that she saw the mother again on 15^th December.  There was no change from the position on 8^th December, and the mother declined to meet the psychiatric services again and she was discharged from the mental health team as a result.  She showed no sign of depression or anxiety, although she was evasive and did not answer questions about her baby.  Ms Auld told us that she spoke in January with the manager of the accommodation where the mother is staying, who told her that he was confident that the mother was engaging with the staff working in that accommodation.  In answer to questions from the Court, Ms Auld said that the assessment questions were in English but she was entirely satisfied that the mother understood them.  They were not complex questions and related to issues like the mother's safety.  She did not think there was any particular problem with the fact that the mother clearly comes from a non-western culture.  That was the same when she was last examined in 2016 although on that occasion there was an interpreter.  Ms Auld told us there was no indication of post-natal depression.  There are concerns that the mother is a vulnerable adult, but there is no issue as to her capacity. The Court accepted that conclusion which was also consistent with the other evidence we heard.

4.        Advocate Corbett, the amicus, sent an email to the Bailiff's Judicial Secretary among others on 14^th March.  In it she said this:-

"I confirm that I visited [the mother] this afternoon.  [X] was present.  She told me that two men had given her a letter (service by the Viscount's officers) which she had read.  I gave her the [ ] translation of the letter which Patrick sent to me earlier today. [The mother] told me that she knew that there was a court hearing to make decisions about [the child]. She told me that she didn't want to go to court and wanted me to tell the court what she wanted to happen.

[The mother] was able to tell me that [the child] was with P (the foster carer) and she wanted her to go to live with another family.  I asked if she wanted me to tell the court that she agreed to [the child] going to live with a new family, for her to be adopted.  [The mother] said that she agreed to [the child] going to another family and to being adopted.  I reminded her that Jade (the social worker) had told her that [the child] might be able to live with [Charlie] and [the mother] said again, that she would like that.

I asked again if she would come to court and she said no. I asked what she wanted me to tell the judge. She said that [the child] was to go to a new family.  She said that she missed her but wanted her to go to a new family.  [The mother] told me that she is not allowed any more contact with [the child] and is not asking for any.  She has said goodbye to her. 

On the basis of my meeting I am very clear that [the mother] understands what is happening and that she consents to [the child] being freed for adoption."

5.        We were informed by Ms Allchin that she had explained in detail to the mother what these proceedings were about and that the mother had said on more than one occasion that she had no wish to attend court.  Ms Allchin confirmed that the mother was aware of the court hearing on 22^nd March, and indeed that she had telephoned her that morning to remind her of the hearing and to ask again whether the mother would be attending.  The mother indicated that she would not.

6.        Having regard to all this information, the Court is satisfied that the mother is aware of the proceedings but has decided not to attend of her own free will.  In the circumstances, pursuant to Rule 17(1) of the Children Rules 2005, the Court directed that it would continue with the hearing notwithstanding the absence of the mother because that was clearly in the best interests of the child.  We were satisfied that despite the fact that the mother comes from a different culture and has an imperfect command of the English language and is to be treated as a vulnerable adult, nonetheless she has capacity, understood what was taking place in court and had made her own decision not to attend.

Threshold

7.        We heard evidence from Ms Jade Allchin, the social worker and from the Guardian.  A lengthy threshold document, not agreed between the parties, was submitted by the Minister who has contended that the threshold criteria are met because the child is likely to suffer significant physical and/or emotional harm as a result of the care provided, or likely to be provided to her by the mother falling short of that which it would be reasonable to expect a mother to provide.  The grounds which we find established are these:-

(i)        The mother lacks insight or is in denial of the child's medical needs.  The mother presented late in her pregnancy and only sought confirmation of her condition under the encouragement of staff at her residence.  We are satisfied that the mother was aware of her obstetric history and the known risks associated with gestational diabetes linked with problems such as pre-eclampsia and having a large baby, which in a small number of pregnancies can lead to the death of the baby before or during birth.  Furthermore, the mother communicated to staff at the house where she was living that she wished to terminate the pregnancy.

(ii)       The mother has not made and will not make provision for the care of the child.  She does not intend to care for the child and is unwilling to provide details of those who she has proposed to be the child's carer, preventing any assessment of them.  The evidence of lack of willingness to care for the child has been given by the social worker Ms Allchin, who has been told by the mother that that is her [the mother's] position.  Although the mother made it plain that she wanted her parents, who reportedly live abroad, to be the carers for the child, she has refused to provide any information about them, and simply refuses to communicate when she is told that her parents could not look after the child without assessment.

(iii)      The mother does not want to care for the child and has in effect abandoned it.  She has had a minimal amount of contact sessions and on 10^th January, 2018, she requested that no further contact takes place with the child.  She has also said that she wishes the child to be cared for by other parents.

8.        These particulars are confirmed by an email sent by the amicus to Advocate Byrne on behalf of the Minister on 14^th March, 2018 set out in paragraph 4 above.

9.        In the circumstances the Court is satisfied that threshold has been passed.  We are satisfied that what Advocate Corbett has been told by the mother represents a genuine expression of her wishes.  In reaching this conclusion, we have also had regard to the care proceedings in relation to Charlie, the child's older sister, which took place only some 18 months ago.  We have noted that in relation to Charlie, the Court accepted the evidence of the Guardian who said that she "had rarely worked with a parent who showed such resistance to engaging with the Services whilst simultaneously showing signs of engagement and achievement at contact sessions.  The mother had not addressed her own vulnerabilities, which arguably caused harm to her previous children, and must therefore pose a greater risk of harm to the child who has no father to provide a safety net.  There was serious concerns about the mother's ability to function consistently and safely.  The unknowns were vast, due to her failure to engage in any meaningful way with or without the parameters of legal orders." 

10.      The earlier proceedings satisfy us that the mother well knew what these proceedings were about and that is also borne out by the evidence of Ms Allchin.

11.      We are also very conscious of the evidence given by Ms Allchin as to contact.  We were told that for the first couple of weeks, the mother did not engage in contact at all.  She was offered contact three times a week for 1 hour for each contact period, but she has only seen the child four times in all.  Furthermore she did not use her entire allotment of time, often handing the baby back to Ms Allchin after ten minutes or so.  In Ms Allchin's view she did not want to have an attachment to the child, probably to protect herself and Ms Allchin saw no observable bond between them.  We were told that the mother had made no effort from August last year to look for other accommodation, notwithstanding that she knew there could be no babies or children living in the accommodation she had.  This evidence of self-protection is also borne out by the evidence of the Guardian who was also the guardian of Charlie.  In the previous proceedings, the mother had a good deal of contact with Charlie up to the moment of the freeing order, and showed some good parenting skills.  The Guardian told us that she thought the mother was a woman who loved her children and that she had deliberately given the baby something which no one could regard as a proper name because she did not want to identify with the baby in any meaningful sense.  In our view this is very likely to be so, and supports the view that this mother, who is as we say a vulnerable adult, was seeking to protect herself.  It is very sad, but that is the position and she cannot be blamed for it.

Disposal

12.      The Minister's care plan provides for freeing for adoption and indeed the Minister has made an application that the child be freed for adoption, that having been recommended on 20^th February, 2018, by the Adoption and Permanence Panel, the recommendation being endorsed on behalf of the Minister by the agency decision maker.  In the matter of the T Children [2009] JRC 231, the Court noted that when it was considering parallel applications for a care order and a freeing order, it could consider the evidence in the round rather than dealing with the respective applications separately, and we adopt that approach in this case.

13.      The Minister's case is that the mother has in fact consented to an adoption order being made, and if the Court is so satisfied, the Minister is minded to withdraw the application for a care order.  In our judgment there is no unequivocal evidence of the mother's consent to the adoption.  We recognise that Advocate Corbett has reported faithfully on what she has been told and we have taken that into account as part of the overall evidence in the case, but we do not consider that it is safe to proceed upon the basis that the mother has consented unconditionally to the child being freed for adoption even though there is a good prima facia case that she has so consented.  The safer course in our view is to proceed on the basis that we need to consider whether a care order should be made in favour of the Minister and whether the care plan and freeing for adoption can then be approved.

14.      We take first the question of whether the Court should make a final care order.  The application for a final care order is supported by the Guardian, who points out that the mother has parental responsibility but refuses to exercise it.  It follows that this is not a case where no order would be appropriate.  Similarly, a supervision order is clearly inappropriate because there is no one to supervise in their care of the child.  As the Guardian put it in her conclusions, the only option which gives the child the chance of a normal family life is adoption.

15.      In the circumstances, we agree that a full care order should be made in favour of the Minister.

16.      We now turn to the question of freeing for adoption which is the proposed care plan.  As has been said in previous cases, an order freeing a child for adoption on a non-consensual basis is an extreme order to make. Different phraseology has been used in the different cases, but we think it is sufficient to approach the issue on the basis that we must be satisfied that a freeing order is in the best interests of the child, is proportionate to the problems which have to be addressed, and is necessary as a solution to those problems.  To look at the matter in this way is to meet the necessary tests under the European Convention and gives proper weight to the paramountcy principle.

17.      In the matter of M [2013] JRC 234, the Court endorsed three important points of principle:-

(i)        The child's interests, which of course the Court must consider, include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the over-riding requirements of the child's welfare make that impossible.

(ii)       The Court must consider all other options before coming to a decision.

(iii)      Before making an adoption order, the Court must be satisfied that there is no other practical way of the authorities providing the requisite assistance and support.  The judge should explore rigorously whether, in seeking a care order and freeing order, the Minister is making that application only because he is unwilling to provide the resources for otherwise necessary support.

18.      We adopt those tests.  The evidence before us is that no other option but adoption is available.  The mother cannot realistically be considered as a carer; no other carers have been advanced for consideration; and long term care by the Minister would be unacceptable.

19.      We indicated earlier that we do not think that we can treat the mother as having given unequivocal consent.  The language of Article 12(1)(a) of the Adoption (Jersey) Law 1961 ("the Adoption Law") requires that the Court is satisfied that the parent "freely and with full understanding of what is involved agrees generally and unconditionally to the making of an adoption order". That test is nearly passed in this case, but the lurking question is whether there is unconditional agreement to the making of the order.  It is because we have had slight reservations about that, that the care plan is considered to be the safest route with the Court then going on to consider the freeing application. 

20.      Under Article 13(2) of the Adoption Law, the Court can make an order dispensing with the parent's consent if, inter alia, satisfied that the parent is withholding his or her consent unreasonably; or has abandoned or neglected the infant.  In relation to the latter, we take the view that on the balance of probabilities, the mother has abandoned the child.  We also take the view that in withholding her agreement (which for these purposes needs to be general and unconditional), if she has, the mother would be withholding it unreasonably.  The reason we reach that conclusion is that the mother must be taken to accept that any child of this age would want to be brought up as part of a forever family, something that the mother was not prepared to offer her.

21.      Article 12(7) of the Adoption Law requires that the Court satisfy itself in relation to any person claiming to be the father that that person has no intention within the next six months of requesting registration as the child's father under Article 56 of the Marriage and Civil Status (Jersey) Law 2001, or applying for an order under Article 5 or Article 10 of the Children (Jersey) Law 2002; or if such an application were made, it would be likely to be refused.  The circumstances facing us here are that we do not know who the father is, and no one has made any claim to be the father.  Article 12(7) of the Adoption Law does not therefore prevent us from making a freeing order because no claim to paternity has been made.

22.      In the circumstances, to the extent that the mother has not given unconditional consent, we consider that her consent can be dispensed with, on the two grounds, under Article 13(2) as mentioned in paragraph 20 above.  Accordingly we make the freeing order requested by the Minister.

23.      Finally, it is a pleasure in the light of critical comments made sometimes by the Court of the Children Service to be able to pay tribute to the work of Ms Allchin the social worker in this case.  The Guardian and Advocate Byrne did so as well.  It appears to us that Ms Allchin has acted appropriately and conscientiously, going out of her way to attempt to ensure the mother's engagement with Children's Services and the Court process and to keep her informed about procedures which, despite her experience with Charlie and her 10 year residence in the Island, may in this (to her) foreign country have seemed challenging and confusing, and we commend her for it.

Authorities

In the matter of Charlie (care order and freeing for adoption order) [2016] JRC 191. 

Children Rules 2005. 

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

In the matter of M [2013] JRC 234. 

Adoption (Jersey) Law 1961. 

Marriage and Civil Status (Jersey) Law 2001. 

Children (Jersey) Law 2002.