Adoption - application by the Minister for a free for adoption order.
Before : |
Sir William Bailhache, Baillif, and Jurats Grime and Ronge |
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Between |
Minister for Health and Social Services |
Representor |
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IN THE MATTER OF JENSON
AND IN THE MATTER OF THE ADOPTION (JERSEY) LAW 1961
Advocate P. F. Byrne for the Minister.
Advocate C. Hall (in her capacity as Amicus Curiae).
Ms Eleanor Green as Guardian.
judgment
the bailiff:
1. At 5:40am on Sunday 18th March, 2018, a young baby boy was found abandoned at the General Hospital. Despite enquiries being made by the States of Jersey Police and a good deal of publicity which the Court recalls itself, including public appeals from the police and staff from Health and Social Services, all efforts to track down the child's parents have proved unsuccessful. His birth was registered, and he was taken into the care of the current foster carers six days after his birth.
2. The Minister now applies for a Freeing Order under Article 12 of the Adoption (Jersey) Law 1961 (the "Law"). The effect of the Law is that, if we were to make a freeing order today, parental responsibility vests in the Minister and the mother loses her parental responsibility. She is not present to give her consent to the making of the freeing order and the Court's jurisdiction to make it, therefore, arises in this case because it is alleged by the Minister that the mother has, for the purposes of Article 13(2) of the Law, abandoned the infant. The Court is satisfied that the child has been abandoned by being taken to the hospital, therefore, it has the jurisdiction to make the freeing order, if it is appropriate to do so.
3. We have noted that, as set out by the Social Worker in her statement before us, the child has been gaining weight; he is developing in line with other babies of his age, he was given optimum care whilst in the hospital and since then has been cared for with love and care by his foster parents who went to see him in the hospital as well. It appears that positive attachments have been made. Clearly the child is of an age where he cannot express himself very directly, but we take as a given that he would want to have permanency and stability with his carers in the future. He is healthy and there are no concerns, following health screening, that he has been exposed to substances or stress in utero that can impact on a child's development. He is observed to be a calm and settled baby. There is no evidence of any hereditary conditions that may impact upon him. He was left by persons unknown in the General Hospital, a place of safety, wrapped in a towel and the umbilical cord was still attached. We take it as axiomatic that the birth mother must have been in some stress in the months leading up to the birth; she may still be under such stress now and, clearly, she has not handled the care for the child as one might wish, but in case he should ever read this decision, we add that she has, at least, demonstrated love and care for him by not exposing him to substances or stress in utero and, although the circumstances of his delivery to hospital are unknown, at least he was wrapped in a towel to keep him warm and he was delivered to a place of safety.
4. The difficult question for the Court today is whether the order should be made freeing him for adoption so soon after the birth. The terms of the Law provide that a mother cannot consent to a freeing order within six weeks of the birth and that is a recognition by the legislature that giving birth is stressful and that, maybe, the decision making process which a mother would go through might not be as good or as permanent as one would wish if she were to take a decision during those first six weeks - and this is an application made only seven weeks afterwards. The Court accepts that for all practical purposes the effect of making the order today is to extinguish the mother's rights - we do not think, although there has not been full argument on it, but we do not think that the terms of the Law really allow for the mother to come back after the freeing order is made and seek that the freeing order be set aside, unless it falls within the 12 month rule which appears at Article 15 of the Law; so in other words, if no adoption were actually to be made in the 12 months, then the mother has a statutory right to come back, but otherwise, it seems to us, that no such right exists. And that being so, the effect of making the order today is final as far as the mother's rights are concerned, and it would depend, if there were to be an order releasing the freeing order, reversing the freeing order, it would depend on the Minister making an application to the Court for that purpose. That emphasises the importance of the decision being taken today. We accept that, in principle, Advocate Hall is right, as she appears as Amicus, she is right to say that the Minister's decision not to refer the matter back to Court, if the mother does come forward at this stage, would be susceptible to Judicial review, but that is unlikely to be a swift process and it certainly is unlikely to work in the child's best interests.
5. We mention the question of the child's best interests because we have to remind ourselves that it is his best interests which are the paramount factor; it is not a question of the interest of the foster or any adoptive parents' views and feelings - we completely understand that if we were not to make the order today they would be upset but that is not what is in issue. Equally it is not the mother's personal feelings which are in issue; the only question is what is in the child's interests.
6. 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 overriding 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.
7. We apply that test today. We do not know if the mother will or will not make her identity public. Her conduct so far suggests she will not. If she were to come forward to claim her son, she will have to do so soon. Having regard to all the different possibilities, we think it is in the child's best interests that the Order should be made today to free him for adoption. That is not to say that, if the mother were to come forward at this stage, the Minister should treat the freeing order as conclusive. Certainly if the mother comes forward in short order, then in our view, the Minister should think very carefully about whether to come back to this Court and seek an order which sets the freeing order aside. Naturally, the Minister will want to make a number of enquiries as to the mother's state of health, her fitness, at that stage, but we emphasise that the Minister should not be closed to it if the mother should turn up and show interest again in this child. But, as we say on balance, we think the position is that it is better in the child's interests to allow him to develop and cement the attachments with his foster parents. If the mother does not come forward in the near future, she is liable to be too late to persuade the Minister to reopen the matter.
8. Therefore we make the Freeing Order in question.
9. When the Court's decision was announced, Advocate Byrne on behalf of the Minister made the submission that the judgment of the Court should not be published and should merely go on file. The Court agreed that both he and Advocate Hall should have the ability to make submissions in writing which would be considered in the context of a decision as to whether or not to publish the judgment. The Guardian informed us in court that while she thought it was important that the name of the child should not be published, nor indeed the name of the foster parents, there might not be any particular objection to the publication of a redacted judgment.
10. Through Advocate Byrne, the Minister submitted that the potential harm to the baby by identifying him and his future family outweighed the likelihood of any benefit that identification of his mother might follow from publication. It was submitted, and the Court accepts, that the question of publication should be decided having regard to the paramountcy of the child's welfare. It was also submitted that some further redactions to the judgment could be made to reduce the possibility of any link between any particular child in Jersey and the baby who was left at the hospital. Those redactions have been made. It was further submitted that the uniqueness of the circumstances and the media attention the matter has already received will lead to actual identification of the child through his approximate age even if his birth date is not known. This, it was said, would provide a relatively easy means to piece together the jigsaw and draw a probable conclusion as to the identity of the child and his parents.
11. Advocate Hall referred us to Article 73(2) of the Children (Jersey) Law 2002 which is concerned with the publication of material likely to identify a child. It is worthy of note that that Article does not prevent the media publishing material concerning a child - what it prevents is the publication of material which identifies the child.
12. Advocate Hall also contended that we simply do not know what the mother's view would be as to whether she would wish the judgment to be published or not. It was said that the Court could have regard to the fact that the mother had decided to place the baby in a position of safety where the baby would inevitably be found, which indicates that she had already made her decision not to be further involved. We find that unconvincing. One of the reasons why the Adoption Law precludes any consent by a mother to adoption in the first six weeks of the child's life is because the mother's views at that time are regarded as not necessarily reliable.
13. The decision as to whether to publish or not is a public interest decision. The starting point is that judgments of the Court are published. That is a fundamental principle which exists to ensure that the community has confidence in the work of the courts. It means that no-one can say that there is secret justice. It means that the reasoning of the Courts is available to the public and in particular it means that lawyers can pick up on any points of law which are relevant and use the case as authority in the future.
14. That is only the starting point. It is well recognised that in some cases the Court sits in private and even where the judgment is published, it is not always necessary for the public to have all the details. Accordingly in some cases names are redacted and that is always true of children's cases, unless the Court orders otherwise. Sometimes the redactions are even more substantial, particularly in high profile cases where describing the full details of the case would stand a good chance of identifying those whose privacy is to be respected. The principle of open justice is such that there would have to be very convincing reasons why the judgment is not published, even if redacted.
15. In our view, the flaw in the submissions received from both counsel lies in the assumption that by the publication of the judgment, the identity of the child will be known. To reach that conclusion, counsel have emphasised that only one child has been left at the General Hospital in the past, for as long as one can remember, and that therefore everyone will know that this judgment affects that child. That no doubt is true; but it does not mean that when the child assumes his new identity from adoption, anyone will be able to link the name of the child with the baby who was left at the hospital. There will be no such link and the redactions which have already been made should ensure that. To the extent that it is said that the birth date of the child gives away his identity, that, if true at all, already is the case by virtue of the media publicity so far. In other words, it is not the publication of the judgment which causes that risk. Furthermore, this is the freeing for adoption stage and not the final adoption stage. At the time of the final adoption, no details will be published about the names of the adoptive parents, whoever they may be, nor will the child's name be published and at that time the Court will sit in private as is customary in adoption cases. We do not think there is any significant risk that publication of the judgment will identify the child.
16. On the other hand, the purpose of publication is to ensure that the mother is aware that her baby has been freed for adoption, and that, if she is to have any hope of reversing her previous decision not to have care of the child, she will need to take steps very soon indeed. Publication of the judgment and any publicity given to it through the media will play its part in ensuring that she is aware that that is the position. Without publication, she will not be so aware, and she will not have the opportunity which we have identified. In the balance therefore of what is in the baby's best interests, one has no damage on the one hand from publication and potential good on the other hand. In the circumstances in our view, the balance comes down firmly in favour of publication of the judgment.
Authorities
Adoption (Jersey) Law 1961.
In the matter of M [2013] JRC 234.
Children (Jersey) Law 2002.