Care order - application by the Minister to revoke the freeing order and to take the child into his care under a final care order.
T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Crill and Blampied
Minister for Health and Social Services
A (the mother)
IN THE MATTER OF THOMAS (CARE ORDER)
AND IN THE MATTER OF THE ADOPTION (JERSEY) LAW 1961
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate P. F. Byrne for the Applicant.
Advocate C. Hall for the Respondent.
Advocate C. R. G. Davies for Thomas (the child).
Ms Elsa Fernandes as Guardian.
the deputy bailiff:
1. On the 8th October, 2014, the Court made an order ("the freeing order") freeing Thomas (this is not his real name) ("the child") for adoption.
2. On the 6th March, 2018, this Court made an order revoking the freeing order and, simultaneously, granting to the Minister a full care order pursuant to Article 24 of the Children (Jersey) Law 2002 ("the Children Law").
3. In brief the position is that the child suffers from autism and this has given rise to a significant impediment in finding adoptive parents for him. Because of this situation the Minister applies to revoke the freeing order and to take the child into his care under a final care order.
4. As this is, so it appears to us, the first time that such an application has been made in Jersey we will refer to the legal principles involved.
5. On the making of a freeing order the Minister becomes the sole holder of parental responsibility as if he were an adopter and any care order in existence prior to that time is extinguished.
6. Article 12(5) of the Adoption (Jersey) Law 1961 ("the Adoption Law") provides:
"On the making of an order under this Article parental responsibility for the child is given to the Minister and Article 20(2) applies as if the order were an adoption order and the Minister was the adopter."
7. Article 20(2) of the Adoption Law provides:
"Where an adoption order is made:
(a) the following are extinguished:
(i) the parental responsibility which any person has for the child immediately before the making of the order,
(ii) any order under the Children (Jersey) Law 2002 unless the Court directs otherwise, and
(b) the adopter shall have parental responsibility for the adopted child."
8. The parents' interest in the child does not end, however, as Article 12A of the Adoption Law provides that the Minister shall inform the parent whether or not the child has been adopted. Article 12B of the Adoption Law provides, under sub-paragraph (i), as follows:
"Where at any time more than twelve months after the making of an order under Article 12 of this Law (an "Article 12 order") if the child:
(a) has not been adopted; and
(b) does not have his or her home with a person with whom he or she has been placed for adoption, his or her former parent may apply to the Court for an order revoking the Article 12 order on the ground that he or she wishes to resume parental responsibility."
9. Article 12B(3) provides that the revocation of an Article 12 order operates to extinguish the parental responsibility given to the Minister and to give parental responsibility amongst other things to the child's mother. Article 12B(iv) makes it clear that a revocation does not revive any order previously made under the Children Law.
10. Somewhat curiously the Adoption Law does not provide for an application for a revocation of a freeing order to be made by the Minister. Although Article 3 of the Adoption Law provides that in reaching any decision relating to the adoption of the child the paramount consideration of the Court, the Minister and the Adoption service must be that child's welfare throughout his or her life, there is no statutory mechanism by which the Minister can, in pursuing that welfare, decide that a freeing order should be revoked and make an application to the Court to that end.
11. This is not dissimilar to the position that is obtained in the United Kingdom under the Adoption Act of 1976 and children who were freed for adoption but were not thereafter adopted became referred to, informally, as 'statutory orphans'.
12. Absent a statutory basis the Minister applies under the inherent jurisdiction of the Court to revoke the freeing order.
13. Were that order to be granted and for it to stand alone the effect would be that the child would be returned to the parental responsibility of his mother. In this case such an outcome is neither practical nor desirable.
14. The mother did not oppose the original freeing for adoption order and makes no claim to have the child returned to her parental responsibility.
15. The statutory position in the United Kingdom is now different but the courts there have previously considered the difficulty produced when a child is freed to adoption but adoption has proved impossible.
16. In Re G (A Minor) (Adoption: Freeing Order)  2 All ER 534, a decision of the House of Lords, Lord Browne-Wilkinson said this:
"In my judgment, therefore, the position is as follows. Where a freeing order has been made under Section 18 of the 1976 Act but at the end of one year thereafter it is clear that no adoption is likely to take place within a short period, the freeing order may be revoked so as to restore the parent to his or her normal rights and to ensure the child does not remain in an adoption limbo. Even if the former parent is not, at the date of revocation, fit to have sole and unfettered responsibility, the Court has jurisdiction to make the order provided that the welfare of the child can be protected whether by making the revocation of the freeing order conditional upon such consequential orders are appropriate under the 1989 Act or under its inherent jurisdiction or in some other way."
17. The case in question involved the refusal by the lower courts to revoke a freeing order because to have done so would have discharged the child's care to an inappropriate carer which the lower court felt that it had no means to prevent. Lord Browne-Wilkinson also said this:
"The point which seems to have weighed with the Court of Appeal is that, if the 1976 Act is looked at in isolation, revocation of a freeing order can only operate so as to vest sole and unfettered parental responsibility in the former parent; revocation vests parental responsibility in the parent, extinguishes the parental responsibility vested by the freeing order in the local authority and does not revive the care order which was enforced before the freeing order was made....
But the 1976 Act does not exist in isolation. It is a code regulating adoption which takes effect in the context of the wider legislation regulating children, viz formally the Children Act 1975 are now the 1989 Act. Section 20 of the 1976 Act, in regulating adoption, provides for the undoing of the steps which have been taken towards the pending adoption which has subsequently failed to materialise. It restores the status quo ante, save that the care order in force at the date of the freeing order is not revived. The failure to revive the care order is explicable since, in the changed circumstances giving rise to the revocation of the freeing order, it may well not be right for the child to revert automatically to the care of the local authority: the parent obtaining the revocation order may be fully competent to have sole parental responsibility. The fact that the pre-existing care order does not automatically revive does not, as the Court of Appeal thought, indicate that the 'philosophy behind Section 20 remains a rejection of public law intervention'..... The 1976 Act does not purport to limit in any way the powers under the 1989 Act. If, as a result or as a condition of revocation, it is appropriate that the powers under the 1989 Act should be exercised there is nothing in the 1976 Act to exclude them. In my judgment, there is no lacuna in the 1976 Act: it operates alongside and as part of a general legislation regulating powers over children. I can see no reason why the provisions of the 1976 Act have to be read as a self-sufficient code for all purposes: the powers conferred in relation to adoption by the 1976 Act can, if necessary, be used in conjunction with and supplemented by the powers of the 1989 Act."
18. As to the matter of the Court's inherent jurisdiction to revoke the freeing order, in Re J (Freeing for Adoption)  2 Flr 58 Black J said this:
"The inherent jurisdiction has long been recognised as available to assist where other provisions are not sufficient to secure the welfare of the child. In A v Liverpool City Council  AC 363.... Lord Wilberforce said...:
"In some instances, there may be an area of concern to which the powers of the local authority limited as they are by statute do not extend. Sometimes the local authority itself may invite the supplementary assistance of the Court. Then the wardship may be continued with a view to action by the Court. The Court's general inherent power is always available to fill gaps or to supplement the powers of the local authority: what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion within the field committed by statute to the local authority..."
19. Black J went on to say:
"In view of the existence of Section 20 of the Adoption Act 1976, I have approached the exercise of the Court's inherent jurisdiction cautiously. However, in my judgment, in the particular circumstances of this case, J's interests would be likely to be harmed if there were no power to revoke the freeing order made in relation to him. This cannot realistically be done without reliance on the inherent jurisdiction. There is presently no applicant entitled to apply under Section 20.... and the reality is that no application is ever likely to be made, even once M becomes so entitled. The freeing provisions are designed to facilitate the placing and adoption of children so that their welfare can be secured. Parliament cannot, in my view, have intended that the statutory provision should work so as to cause harm to children when plans have changed and in my judgment it is open to me to exercise the inherent jurisdiction to supplement the statutory powers and thereby protect J."
20. It seems to us that these principles apply to the Jersey statutory position and to the inherent jurisdiction of this Court in that regard.
21. If in our view it is right for the welfare of the child to revoke the freeing order then this Court has an inherent jurisdiction, on an application by the Minister, so to do.
22. Furthermore, as referred to Re G above, it is open to the Court, if the appropriate statutory criteria are met, to make any order that it could otherwise have done on an application by the Minister under the Children Law at the same time as exercising its inherent jurisdiction to revoke any freeing order.
23. Were it otherwise this would in our view perpetuate a position whereby the Court could not act in the best interests of a child in certain circumstances and we see no reason why we should be so constrained.
24. The Minister applies for a full care order to have effect immediately upon any revocation of the freeing order. The provisions relating to the making of a care order are well known and we do not need to set them out in this judgment. Suffice to say that the threshold statement, to which there was no challenge, provides as follows:
"1. The child is likely to suffer significant harm attributable to the fact the mother does not want to care for the child:
(a) The mother does not have any relationship with the child, she has not had contact with the child for over three years;
(b) The mother has not sought, nor wishes, to have any relationship with the child. The mother does not feel able to resume care of the child nor is she requesting direct contact at this time.
(c) The mother has not proposed or made arrangements for any alternative family placement for the child. There is no one identified within the child's biological family who have offered to be considered as long-term carers for the child. The child's father is unknown."
25. In this case the child has been in the care of the Minister for a significant period and had been freed for adoption, as we indicated, in 2014. It is clear when the freeing order was made that the Court anticipated that the child would be adopted in short order. In the judgment of the Court of the 3rd November, 2014, (In the matter of Thomas (Care order)  JRC 210) originally freeing the child for adoption Sir Michael Birt, Bailiff (as he then was) said this:
"We agree however with the guardian that, given Thomas' autism, adoption may not be wholly straightforward. We heard evidence from the social worker as to the prospects for adoption and it is clear that the Children's Service would consider adopters from the UK if local or Channel Island adopters cannot be found. The social worker has confirmed that, in the event that adopters cannot be found in twelve months, the mother will be informed and she will then be able to make steps to bring the matter before Court should she be so advised. The social worker made it clear that the Children's Service fully understands the need to progress the question for adoption vigorously and in early course."
26. In the context of those remarks, it is regrettable to say the least that it is only now that the Court is being asked to regularise the position where this child is concerned.
27. However, we heard evidence from the social worker in the case who has reviewed the file and we are satisfied that in this case very substantial efforts were made to find suitable adoptive parents for the child. This was to a great extent made difficult because of the child's autism.
28. In our view, however, the matter should have been returned before Court earlier than this so that the position with regard to the child could have been regularised and some form of permanency achieved. It does not seem right to the Court that more than three years have passed since that order was made, three times the statutory duration, before engagement with the Court. We do not say that there are not some cases in which such a delay might be seen to be appropriate but we nonetheless express our concern in this case.
29. That being said we are wholly satisfied that it is in the child's interest to exercise our inherent jurisdiction and revoke the freeing order.
30. We have heard from the guardian who is entirely supportive of this course and the mother has been represented before us and again there is no objection made. The mother accepts that she simply cannot offer what the child needs and therefore there is no objection made to a care order.
31. It seems to us the threshold is met in these circumstances, unusual as they are, and that for obvious reasons no order is not an option in this case.
32. This is an appropriate case for a full care order and accordingly we made that order.
Children (Jersey) Law 2002.
Adoption (Jersey) Law 1961.
Re G (A Minor) (Adoption: Freeing Order)  2 All ER 534.
Re J (Freeing for Adoption)  2 Flr 58.
In the matter of Thomas (Care order)  JRC 210.