Adoption - reasons for the Court's decision
Before : |
Sir Michael Birt, Commissioner, and Jurats Blampied and Thomas |
Between |
Minister for Health and Social Services |
Applicant |
And |
(1) A (the Mother) (2) B (the Father) (3) Mollie (through her Guardian Susan Clarke) (4) C (the maternal Uncle) (5) D (partner of C) |
Respondents |
Between |
E (the paternal Grandmother) |
Applicant |
And |
(1) Minister for Health and Social Services (2) A (the Mother) (3) B (the Father) (4) Mollie (through her Guardian Susan Clarke) (5) C (the Maternal Uncle) (6) D (partner of C) |
Respondents |
IN THE MATTER OF MOLLIE (FREE FOR ADOPTION ORDER)
AND IN THE MATTER OF THE ADOPTION (JERSEY) LAW 1961
Advocate P. F. Byrne for the Minister.
Advocate A. T. H. English for First Respondent.
Advocate C. G. Hillier for the Second Respondent.
Advocate B. J. Corbett for the Third Respondent.
Advocate E. L. Wakeling for the Fourth and Fifth Respondents.
Advocate C. R. Dûtot for the Applicant in the second application.
judgment
the COMMISSIONER:
1. This is an application by the Minister for an order freeing Mollie (not her real name) who is approaching the age of 3 for adoption pursuant to Article 12(1)(a) of the Adoption (Jersey) Law 1961 ("the 1961 Law"). The second matter is an application for a contact order by Mollie's paternal grandmother ("the paternal grandmother"). The parties have agreed that the latter application should be adjourned on the basis of continued contact until at least February 2019 and accordingly we did not hear that application. However, the relationship between the paternal grandmother and Mollie is an important matter in relation to the Minister's application and accordingly we allowed Advocate Dûtot and the paternal grandmother to remain throughout the hearing and to play an active role notwithstanding that the paternal grandmother is not technically a party to the Minister's application.
2. Mollie has lived with the Fourth and Fifth Respondents ("the carers" and separately "the maternal uncle" and "the maternal uncle's partner") since February 2017. A final care order was made on 16th October, 2017. All the parties are agreed that Mollie should remain in the care of the carers. The only dispute concerns the legal basis of such residence. The Minister, supported by the carers, seeks a freeing order with the intention that Mollie should then be adopted by the carers. The guardian, supported by the parents, submits that the appropriate order is a residence order with conditions.
3. Accordingly the dispute falls within a fairly narrow compass but the decision is important for Mollie's future.
4. Following the conclusion of the hearing, the Court announced its decision to grant a freeing order. What follows constitutes our reasons for reaching that decision.
5. The full background is set out in the judgment of the Court dated 16th October 2017 when it made the final care order. Drawing substantially on that judgment, we can summarise the position as follows.
6. The First and Second Respondents ('the parents', 'the mother' and 'the father') were very young at the time of Mollie's birth, the mother being 16 and the father being 19. The father has a diagnosis of autistic spectrum disorder and has difficulty in managing his own behaviour and responses. Prior to the birth, there were concerns about the mother's young age, the ability of both parents to provide consistent and safe care, and domestic violence and conflict within their relationship. Following discharge from hospital, the parents and Mollie went to live at the paternal grandmother's home, with the grandmother taking time off work and providing support and assistance to them.
7. The paternal grandmother reported that the parents were not prioritising the child's routine, were coming home between 8 and 10 in the evening with the child, that the child experienced disrupted and unsettled routines of feeding and sleeping, dictated according to what the parents were doing at the time. The parents consistently and repeatedly failed to prioritise the care of Mollie over their own relationship and needs. The placement broke down and Mollie was subsequently placed with her paternal uncle and his partner while ongoing assessments were undertaken of the parents' capacity to care for the child.
8. During this second placement, the Minister's concerns were not allayed and the parents continued to make decisions which were not in the best interests of the child, while making it difficult for the Minister to gain access to the child for the purposes of assessment.
9. On 1st February 2017, the mother withdrew her consent to the placement with the paternal uncle and called the child back into her care. This precipitated an application by the Minister for an emergency protection order, which was not successful. Although there is no judgment of the Court, it is clear that in the view of the Court the child's immediate safety did not justify such a draconian and extremely harsh measure. The maternal uncle had provided undertakings to the Court to assist in Mollie's care and, shortly after that hearing, Mollie was placed with the carers by agreement of the mother, with both parents going to live under the same roof, caring for Mollie under the supervision of the carers.
10. That arrangement broke down on 28th February, 2017, when, following an argument between the maternal uncle and the father, the father was asked to leave the home. The argument concerned the father's purported lack of effort to seek employment, to provide proactive care for Mollie and to respect house rules. The mother followed the father from the maternal uncle's address, and despite his efforts to get her to return, she failed to do so. She effectively abandoned Mollie who remained in the care of the carers.
11. The Minister was granted an interim care order on 1st March, 2017 with a care plan for Mollie to remain in the care of the carers while assessments of the parents were conducted.
12. It is clear that between then and the making of the final care order in October 2017, the relationship between the carers and the parents was not easy. In May 2017, the carers said that they would like to take Mollie on holiday to France, for which she would need a passport. Despite this trip being over a bank holiday weekend and not impacting on contact, the mother declined to sign the passport forms.
13. At a contact session on 12th June 2017, the father was asleep on and off for about an hour of the contact, and did not engage at all. When challenged, he shouted in an aggressive tone in the presence of Mollie, who became distressed.
14. In addition to the issues over contact, a real concern was the family discord caused by the parents to the detriment of Mollie. On 27th June, 2017, the parents indicated that they no longer wanted the carers to look after Mollie. This followed a pattern in which they portrayed each family member in an initially positive light to professionals (at times when they wished to utilize them as alternative carers), only to subsequently make claims that they are poor or unsafe carers once those carers failed to accede to the parents' wishes and needs. In this way, they had sought in turn to undermine the role of the paternal grandmother, the paternal uncle and his partner and then the carers. At a care planning meeting on 27th June 2017, the parents were aggressive and hostile towards the maternal uncle and his partner, which the latter found intimidating, making it difficult for them to share views and information about Mollie. The conflict so created meant that Mollie's interests were lost. It became necessary for the Children's Service to separate the family members at future care planning meetings.
15. As already stated, the matter came before the Court for a final hearing on 16th October at which time the Court made a final care order. Both the mother and the father initially contested the Minister's application but, after hearing the evidence of the social worker they conceded that the threshold test was met (without any specific admissions) and agreed to a care order and to the Minister's care plan. That care plan envisaged Mollie being placed permanently with the carers and, after a period of assessment, for a decision to be taken as to whether Mollie's best interests lay in her being adopted by the carers or by a residence order being made in their favour.
16. Mollie has remained living with the carers and it is accepted by all parties that she is thriving under their care.
17. Contact sessions were organised for the parents between the final hearing and the end of December 2017 but they only attended three. In December the Children's Service established that the parents had separated shortly after the final hearing.
18. The mother did not engage with the Children's Service between November 2017 and June 2018 and accordingly did not see Mollie during that period, although monthly contact sessions continued to be offered to her. She did see Mollie at contact sessions in June, July and August 2018. However, she moved to live in the United Kingdom in early September 2018 and has not seen Mollie since then.
19. Mollie has seen the father once a month for a period of 45 minutes which is supervised and takes place in the community. Mollie also has monthly contact with her paternal family; this includes in particular the paternal grandmother but also the paternal uncle and his partner together with their young child ("the paternal uncle's family"). This contact has been unsupervised.
20. On 14th May, 2018 the Minister issued a representation seeking an order freeing Mollie for adoption with the objective of her subsequently being adopted by the carers. In July 2018, the parents both indicated to the guardian that they would be seeking to have Mollie returned to their (individual) care. The father has in fact never issued such an application but the mother filed an application on 25th July, 2018 seeking a discharge of the final care order (failing which an order for contact) and, in the meantime, asking for an up to date psychological assessment of her parenting capacity. The Court agreed to this and Dr Celest Van Rooyen (who had prepared a report for the final care hearing) was again instructed. As a result of the mother's application, the Court ordered an adjournment of the hearing of the Minister's representation which had been fixed for 7th August.
21. Dr Van Rooyen filed her further report on 5th September. It was not supportive of the mother's ability to care for Mollie. The mother has not proceeded with her application to discharge the care order and it was formally dismissed on the first day of the hearing on 12th November.
22. Accordingly, as stated at paragraph 1 above, what came before the Court was the Minister's application for a freeing order. The Minister, supported by the carers, considers that it is in Mollie's best interests to be adopted by the carers. However, the guardian, supported by the parents, is of the view that it is not necessary for there to be a freeing order and that the appropriate order is a residence order with conditions intended to ensure that the parents do not de-stabilise the placement with the carers. All parties are agreed that Mollie should remain in the care of the carers.
23. The terms of the order suggested by the guardian (adjusted to reflect the terminology of this judgment) were as follows:-
"1. Mollie shall reside with the Fourth and Fifth Respondents by way of a joint residence order pursuant to Article 10 of the Children (Jersey) Law 2002 ("the Law").
2. The residence order in paragraph 1 above shall be extended until Mollie's 18th birthday pursuant to Article 11(6) of the Law.
3. The Fourth and Fifth Respondents shall be entitled to exercise parental responsibility in respect of Mollie to the exclusion of any other person with parental responsibility for her. For the avoidance of doubt this means that the Fourth and Fifth Respondents will not need to consult with anyone else who has parental responsibility for Mollie in respect of any decisions made in respect of her upbringing, including but not limited to; education, medical matters, religion or lifestyle.
4. The Fourth and Fifth Respondents have leave to change Mollie's surname pursuant to Article 14(1)(a) of the Law.
5. The Fourth and Fifth Respondents shall be permitted to obtain a passport for Mollie without the consent of anyone else who has parental responsibility for her and neither the First nor the Second Respondent shall have any veto to the issuing of such passport.
6. The Fourth and Fifth Respondents shall, pursuant to Articles 14(1)(b) and 14(3) of the Law have leave to remove Mollie from Jersey without the written consent of any other person with parental responsibility for her save that, if a permanent relocation is proposed, the Fourth and Fifth Respondents shall inform those people with parental responsibility of the fact of the relocation and the proposed jurisdiction.
7. Pursuant to Article 66(8) neither the First nor the Second Respondent shall make any application under the Law for any order relating to Mollie without leave of the Court. If any such application for leave is made, it shall be made to the Royal Court (copied to JFCAS) and no notice of the application should be given to the Fourth or Fifth Respondents without leave of the Court.
8. The Fourth and Fifth Respondents shall allow Mollie reasonable contact with her maternal and paternal birth family members. This contact to be agreed and in the absence of agreement determined with the assistance of the Minister or JFCAS."
24. As with all decisions in relation to a child, the welfare of the child is the paramount consideration. Thus the key test in deciding whether or not to make a freeing order is whether it is in the best interests of the child - see Article 3 of the 1961 Law and Re F & G (No.2) [2010] JCA 051 at para 74.
25. When considering the welfare of a child the Court is guided by Article 2(3) of the Children (Jersey) Law 2002 ("the 2002 Law") which provides that the Court shall have regard in particular to:-
"(a) the ascertainable wishes and feelings of a child concerned (considered in the light of a child's age and understanding);
(b) the child's physical, emotional and educational needs;
(c) the likely effect on the child of any change in his or her circumstances;
(d) the child's age, sex, background and any characteristics of the child which the Court considers relevant;
(e) any harm which the child has suffered or is at risk of suffering;
(f) how capable each of the child's parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting the child's needs; and
(g) the range of powers available to the Court under this Law in the proceedings in question."
26. The approach in relation to adoption has been elaborated in a number of cases. The leading case in England is Re B - S (Children) [2013] EWCA Civ 1146. The effect of that decision is in our judgment accurately set out in this jurisdiction in a judgment of Commissioner Clyde-Smith in In the matter of M (Care order) [2013] JRC 234 at paras 169 - 74 which contain a detailed summary of the principles to be extracted from Re B - S, which we have carefully considered and applied.
27. A shorter summary of the position is to be found in the judgment of the Court in In the matter of Joel (Free for Adoption Order) [2018] JRC 035 at paras 31 - 34, which we set out for convenience:-
"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'."
28. We mention in passing that the reference on line 2 of para 32 of Re Joel ought to be to the Court of Appeal rather than the Supreme Court and the reference on line 3 of paragraph 34 should be to Re B - S rather than to Re B. However, nothing turns on that.
29. As the guardian is suggesting a residence order which would have the effect of restricting the powers and rights of the parents pursuant to their parental responsibility, we were referred to judicial authority which suggests that this is permissible.
30. B -v- RP [2000] EWCA Civ 341 is an unusual case in that the father, with whom the child already lived and who had parental responsibility, sought an adoption order which was opposed by the guardian of the child. In passing, Hale LJ said this at paras 24 - 27:-
"24. A residence order will also give the father the right take Amy out of the United Kingdom for up to a month...although in practice it is extremely unlikely that he would be guilty of any offence under section 1 of the Child Abduction Act 1984 if he took her abroad for longer. The court could make a specific issue order giving him power to take her abroad, either for holidays, as the Official Solicitor suggests, or for any purpose. I do not see why he should be subject to any restrictions at all, unless the mother has re-entered Amy's life and he has reason to suppose that she would object.
25. That is on the positive side of the coin, giving the father more than he would otherwise have. The other side of the coin is that it is possible to restrict the mother's power to take particular steps in meeting her parental responsibility without the consent of the court. Those steps might be contacting Amy, taking part in her education or religion, making any decision about her medical or dental treatment or health care, and vetoing the issue of a passport...
26. Also on the negative side of the coin, the mother can be prohibited under section 91(14) of the Children Act 1989 from making any application under the Act without the leave of the court. This could be limited to applications under section 8 (that is for contact, residence, specific issue or prohibited steps orders) but section 91(14) is not so limited and I see no reason why the court's order should be so limited. The object is not to take away or impair the mother's right of access to the court. It is to ensure that the stability and security of the home which the father enjoys with Amy is not put at risk unless there is good reason for the mother's application. The court can provide that an application is to be made to a High Court Judge (so that the Judge can have access to the file and to this judgment) and in the first instance without notice to the father. It may be appropriate to provide that notice should be given to the Official Solicitor, so that he can ensure that the court is alive to the reasons for the order and the need for caution before the father is brought into the case. Such an order would be the best protection to offer the child in this situation.
27. What does that leave? It leaves the mother with the remnants of parental responsibility which would only come into play if something very serious happened in the father's life, in which case it is by no means obvious that it would be in Amy's best interests for her mother to be deprived of any role."
31. In In the matter of T [2011] JRC 133, this Court (Sir Philip Bailhache, Commissioner presiding) held that the Court has similar powers to those envisaged by Hale LJ. At para 6, the Court said:-
"All the parties also agree that the appropriate order for the Court to make is a residence order in favour of the foster carers. An adoption order has been considered but the foster carers, with whom T now has a close and warm relationship, do not wish to adopt T for reasons which include the effect upon their own daughter's rights of succession. Their stance seems to us entirely understandable. It is perhaps regrettable that the Court is not able to make what in England would be called a "special guardianship order" which confers rather more extensive powers upon the special guardian than are possessed by persons in whose favour a residence order has been made. Nonetheless we think that it is possible by the means of conditions attached to the residence order to achieve something close to the same end."
32. The Court went on to impose conditions about education, attendance at church and granting of contact and also to make an order under Article 66(8) of the 2002 Law prohibiting the mother from bringing any application in relation to T without the leave of a judge of the Royal Court.
33. None of the parties suggested that it was not possible to impose conditions on a residence order as suggested by the guardian or alternatively achieving the same end by the use of a residence order combined with a prohibited steps order and/or a specific issue order; and accordingly we proceed on the basis that the Court could make a suitable order in order to achieve the restrictions suggested by the guardian. Our only reservation relates to condition 4 concerning a change of Mollie's surname. We think that, having regard to the terms of Article 14(1) and (3) of the 2002 Law, the permission to cause a child to be known by a new surname must be in relation to a specific surname. Had we granted a residence order, we would therefore have amended condition 4 to refer to the surname of the maternal uncle or the maternal uncle's partner.
34. As mentioned earlier, Dr Van Rooyen was the jointly instructed clinical psychologist. She had prepared a report for the final hearing in the care proceedings in October 2017. She was re-instructed when the mother applied in July 2018 to discharge the care order. The primary focus of her report was the mother's parenting capacity, but she was also requested to assess the family dynamics particularly in relation to the issue of contact. She saw the parties both alone and in the company of Mollie over three days in August 2018 and issued her report on 5th September 2018. She also gave oral evidence to the Court.
35. As previously stated, she concluded that the mother was not able to take on the primary parenting role within Mollie's timescales. She was strongly supportive of the placement with the carers. Mollie had a secure primary attachment with the carers and they provided stability, consistency of care and met Mollie's needs for consistent emotional availability together with reliable and safe parenting. However, she also believed continuing contact with the birth family would be in Mollie's best interests. Given the history of distrust and difficulty, she recommended a process of therapeutic mediation to facilitate the restoration of trust and continuing contact.
36. She reported that, at the time she interviewed them in August, the carers were in favour of a closed adoption, i.e. one in which there would be no continuing contact with the birth family. Dr Van Rooyen said she could understand why they felt that way. In the early months after Mollie was first placed with them, family members had thrown abuse at the carers and constantly criticised their parenting care. There had been continual conflict and in-fighting between the family members. The carers felt vilified, criticised and then ostracised by the broader family on both the maternal and paternal sides, when all they had ever wanted to do was to provide Mollie with a secure base and a caring home. Following the care hearing they did not have direct contact with the paternal family (or the mother) and contact sessions were arranged by the Children's Service.
37. The carers told Dr Van Rooyen that they did not feel a residence order would be a workable solution because of ongoing problems with the family dynamics. They believed the family members would simply keep returning to the courts if they were unhappy about something or when something did not suit them. For example, the father had over a short span of time changed his position on a number of occasions and, while he currently supported Mollie remaining in their care, they believed that this could change at any time. The same was true in relation to the mother and she had of course applied to discharge the care order.
38. As to the paternal grandmother, it is clear that Dr Van Rooyen was much impressed by her. The paternal grandmother told her that it would be ridiculous for Mollie to be removed from the carers when she was clearly settled and secure there. However, she felt it would be wrong for there to be a closed adoption and for Mollie to be deprived of contact with her paternal family. She herself had a close relationship with Mollie and would have no problem in working with the carers. She did not really know them but supported the concept of therapeutic mediation with a view to facilitating contact. The father was now living with her. Whilst aware that the father had strong negative views and feelings in respect of the carers and that the father struggled to trust people, she felt that he had grown up a lot over the past 9 months and he was not as aggressive as he had been in the past. She felt that all concerned needed to put the past behind them and begin to communicate and work in Mollie's best interests.
39. When interviewed by Dr Van Rooyen, the father said that, as he was no longer in a relationship with the mother, which had been identified as the problem, he believed he could have Mollie in his care. Later in the interview he said that he supported the mother's application to discharge the care order and after further discussion said that if he had to pick between the carers and the mother to have the care of Mollie, he would pick the mother. As to contact, he told Dr Van Rooyen that he thought he and the mother should each see Mollie three times a week. After questioning by Dr Van Rooyen as to how this would impact upon such a young child, he reduced this to once a week for each of him and the mother with other family members seeing Mollie alternate weeks
40. A useful summary of the key findings of Dr Van Rooyen's report is to be found in the following two paragraphs of that report:-
"3.10 With regard to the wider family dynamic, it is clear various family members had their own agendas and this has at times interfered with Mollie's fundamental need for security and stability, especially when considering the disruptions, losses and separations within her very short life. Mollie's paramount need is for a predictably secure and settled life, where she is not exposed to further losses, separations, breakdown of attachments and ever increasing introduction of new persons and/or professionals, who by their nature would then disappear from her life. She would benefit from having loving family members in her life, but would need to be protected from family conflicts and negativity directed to her primary carers.
...
3.12 The maternal aunt and uncle hold the belief that the only way they are able to protect Mollie and themselves from negativity and instability is to withdraw and sever ties with the extended maternal and paternal families. They are clearly coming from a position of having felt deeply troubled and emotionally wounded by the negativity directed at them, by the parents and the extended maternal and paternal family members. The carers have selflessly committed to protect and care for this young child and have invested in providing for all her needs. They have also re-structured their lives to provide a stable, loving and secure home for her. As such, their commitment could not be faulted. However, it would be essential for them to consider the importance for Mollie having the extended family in her life, should this not be undermining of the carers or the placement. It is certainly the case that having this placement undermined, after all the losses and separations thus far in her life, would be detrimental for Mollie and have far reaching consequences for her capacity to attach in future relationships."
41. In her oral evidence, Dr Van Rooyen essentially elaborated upon the contents of her report. She emphasised that the paramount need for Mollie was for the placement with the carers not to be destabilised and for her to be in a stable home free of conflict. However she was of the clear opinion that continued contact with the paternal family would be in Mollie's best interests. If she were to be deprived of such contact, it would not cause her emotional harm but it would be a significant loss to her and would affect her sense of identity. In her opinion, the paternal grandmother was genuine in her wish to support the placement and simply to play a grandmother's role in support of the carers. She also believed that the paternal grandmother would seek to ensure that the father continued to support the placement. Dr Van Rooyen maintained her recommendation that there should be therapeutic mediation in order to seek to overcome the family divisions which there had been in the past so as to facilitate successful contact. She felt that the paternal grandmother should be the leader on behalf of the paternal family in undertaking the mediation with the carers. She was confident the paternal grandmother would be able to reassure the carers that she would not destabilise the placement. She felt that, if the family members, particularly the paternal grandmother, were able to show they were working to support the placement rather than destabilise it, the carers would see the benefits of continued contact; but they had been traumatised by past events. Once their anxiety about destabilisation was reduced as a result of mediation, this would enable them to recognise the benefit of contact for Mollie. She said that the important contact was with the paternal family for the moment. The mother had a tendency to withdraw herself from Mollie which was not good. For her to have direct contact, she would need to have therapeutic treatment to address her tendency to appear and then disappear from Mollie's life.
42. As to the level of contact, it was not generally helpful to be prescriptive but she thought monthly contact, which would include the father, the paternal grandmother and the paternal uncle and his family, (with whom Mollie had a good relationship) would be about right. In her report she had indicated that, if there were an adoption, contact should be at a much lesser level, but we understood her oral evidence to be to the effect that there should be a reasonable level of contact with the paternal family no matter which order was made.
43. Dr Van Rooyen was not asked for her opinion on whether there should be an adoption or a residence order, although she did say that one of the difficulties with a residence order was that the carers would not feel so secure. When Advocate Corbett on behalf of the guardian suggested that, if this was in England, a special guardianship order would be the perfect order, Dr Van Rooyen agreed. The carers did however need to have legal protection so as to allay any anxiety on their part and assist the security and stability of the placement.
44. Ms Jade Allchin is the social worker in the Children's Service who has had responsibility for Mollie since April 2016. She filed a report and care plan dated 14th May, 2018, in support of the Minister's original application for a freeing order together with a supplemental report dated 25th October, 2018 which was prepared after receipt of Dr Van Rooyen's report.
45. In accordance with the guidance in Re M described above, her May report sets out a list of the pros and cons in relation to the various possible orders. Following receipt of Dr Van Rooyen's report, the October report considers a residence order as against a freeing order but does not consider the guardian's suggestion of a residence order with conditions because that had not been formulated at that stage, the guardian's report being dated 7th November, 2018. Ms Allchin therefore dealt with the guardian's proposal in her oral evidence.
46. Ms Allchin confirmed that the placement with the carers was working extremely well. Mollie was happy and thriving in their care.
47. She was supportive of the recommendation for mediation and remained of the view that a freeing order followed by adoption by the carers was the best course of action. Even with the restrictions recommended by the guardian, the residence order would mean that the parents retained parental responsibility and could cause difficulties in the future. Furthermore, Mollie needed parents as opposed to carers. This could only be achieved through adoption. The proposed residence order with conditions would in many ways amount to an adoption order under a different name but without the advantage of the carers becoming Mollie's parents. If they were to have children of their own, it would be unsettling for Mollie to be different. She would not be the child of the carers even though she was of her own volition calling them 'mummy' and 'daddy'.
48. She agreed that neither parent had done anything to undermine the placement in recent months, but they were unpredictable and might well bring applications in the future. This would be unsettling for the carers and the Court might grant leave for an application to be brought. If the carers were to feel insecure about the placement, this would be bad for Mollie. She agreed that a residence order was the least interventionist order but felt that it did not give absolute certainty to the placement and did not have the advantage of constituting the carers as Mollie's parents. The carers would know that there could be challenge to the placement if the Court granted leave to either parent to bring an application in the future.
49. As to the level of contact, she agreed that she originally envisaged very limited contact if there were an adoption order and that Dr Van Rooyen was now emphasising the importance of maintaining contact with the paternal family and the maternal family if this could be positive. She agreed that the paternal grandmother had an excellent relationship with Mollie and she hoped that mediation would enable family contact to be maintained after any adoption. She agreed that there had been no real problems with the monthly contact which was taking place at present. She emphasised that the carers had felt distraught by the attitude of the family in the past but they had agreed to the therapeutic mediation. She agreed that the paternal grandmother appeared to be genuine in her decision to support the placement and that Mollie enjoyed contact with the paternal grandmother and with the paternal uncle's family. She agreed it was good for Mollie to see them and that, if the mediation worked well, it would be beneficial for Mollie to continue to have contact with the paternal family.
50. Sarah Michaels is a senior social worker in the Fostering and Adoption Team in the Children's Service. She said that, although not as common as stranger adoptions, family adoptions were not unusual. She had had three or four in the last two years and all had been successful so far. The important thing was being open about the facts. In the case of a family adoption, you could not remove the birth family as they would always be part of the child's life. It was therefore important that the birth family was included. Feelings could get exacerbated during court proceedings but parties could move on after the court proceedings were ended.
51. She agreed that it would be important for Mollie to maintain contact with her birth family and this could be achieved if everyone worked together. The carers needed to embrace the birth family but Mollie needed the certainty of adoption. When she got older it would be more confusing for her to be placed under a residence order than adoption. She needed to be in a family with those who were her legal parents. She felt that the carers were open to contact and that they and the paternal grandmother could work together with the help of the mediation. She agreed that, if there were adoption, there was no mechanism to force the carers to give contact to the birth family but she felt that there had been a shift in their approach and they were committed to mediation. She felt that a residence order with conditions would risk undermining the placement. If one or other of the parents did well in the future, they might well apply to try and get Mollie back and this would be unsettling. She would have to be told at some stage that this might happen because of the need to be open about the position. She also repeated the point made by Ms Allchin that, if the carers were to have children, Mollie would be in a different position from them if there was a residence order.
52. The father filed a position statement dated 11th May 2018 in which he said that he felt he could be the principal carer for Mollie now that he had separated from the mother. This would be better than a closed adoption by the carers. He was by then living with the paternal grandmother where he has remained. He filed a second position statement on 20th July, 2018, in which he said that, although he wished Mollie to return to his care, he accepted that this was not possible at that time and that Mollie was settled and thriving in the care of the carers. However he wished to maintain a relationship with her and opposed a closed adoption.
53. At the hearing, he supported the position of the guardian, namely a residence order with conditions. He accepted that Mollie was thriving with the carers and agreed that it was not possible for her to live with him now. He said he would not destabilise the placement and had not done so for the last year. He did however wish to have contact and would be happy for this to take place with other members of his family, namely the paternal grandmother and the paternal uncle and his family. He said it was no longer his intention to try and provide a home for Mollie in due course. It seemed the carers might be worried that he would change his mind but he had not done anything to that effect in the last year, although he agreed he had said to Dr Van Rooyen in interview on 20th August 2018 that he believed he could have Mollie in his care.
54. The paternal grandmother produced two statements respectively 27th July 2018 and 23rd October 2018. She also gave evidence. She emphasised that she was fully supportive of the placement with the carers. Mollie had however lived with her in the early months of her life and they had developed a close relationship. She felt it would be beneficial for Mollie to continue to have contact with her. She wished simply to be a grandmother to Mollie, nothing more. She felt she could babysit or help with the school run if that were acceptable to the carers.
55. She was fully supportive of the recommendation for mediation. She felt that she did not really know the carers; she had not been involved in the issues between the parents and the carers. If they felt that she had been in any way critical of them, she wished to apologise as that was not her intention. She could understand that they may have felt criticised by the paternal family but hoped very much that mediation would resolve this.
56. As to the father, she said that he was in a much better position now that the parents had separated. Together, they had been an explosive combination but he was now a changed person. She said that the relationship between the father and the carers could easily improve with the assistance of mediation. The father had been living with her since March 2018 and had obeyed all her rules since then. She would use her influence over him if necessary to support the placement with the carers.
57. The carers provided a joint statement dated 6th November, 2018, and each of them also gave oral evidence. The main evidence was that of the maternal uncle with his partner giving comparatively short evidence to confirm her agreement with what he had said.
58. They were both firmly of the view that adoption was in the best interests of Mollie. The maternal uncle said that, even with the guardian's suggested conditions, a residence order did not give them or Mollie the security and stability which adoption would provide. It was perfectly possible that one or other of the parents could establish a new family in due course and apply at that stage for discharge of the residence order with the intention that Mollie should go and live with that new family. He asked rhetorically whether the Court could guarantee that it would not grant leave in such circumstances. If it did, this would lead to enormous instability and uncertainty for Mollie as well as for the carers. The mere possibility of it occurring would be constantly hanging over them and this would have an effect on them and, through them, Mollie.
59. A second reason for feeling strongly that adoption was the best course was that children liked to be normal and to have parents with whom they lived. Under a residence order, they would remain simply Mollie's carers. If they were to have children of their own, those children would be in a different position from Mollie and would not be her brothers and sisters. When Mollie became 18, there would be no continuing legal relationship between the carers and her.
60. Turning to the question of contact, he said they were 100% committed to mediation. They had met the proposed mediator and were very optimistic. He said that their views had changed as a result of sitting through the hearing. They had heard both Dr Van Rooyen and the paternal grandmother give evidence. They were now 100% determined to try and get agreed contact and understood that contact with the paternal family would be beneficial provided relationships were good. If there were an adoption, they did not think that the paternal grandmother would lose out. They would take decisions in Mollie's best interests even if such decisions did not suit them.
61. As to contact with the maternal family, he said that this would be easier to resolve. Although there have been difficulties with the mother in recent times, they shared happy memories of growing up together and this would be helpful in re-establishing relationships.
62. He said that they did not agree with the guardian's report when it referred to a 'lack of confidence' on their part. He pointed out that he had only met the guardian once, over a year ago before the main hearing. He had not seen her in connection with the current proceedings although he had spoken to her on the telephone in about July. He said that he did not know the paternal grandmother very well. The court hearing had changed their opinion and they realised that the paternal grandmother had a huge part to play in Mollie's life. Advocate Dûtot asked why, if they were so committed, they had not taken up a mediation session over the weekend before the Court hearing. The maternal uncle replied that they had not done so because it was just before the Court hearing and they wished to concentrate on that.
63. In answer to questions from Advocate Corbett on behalf of the guardian, he reiterated that they considered it important that they were Mollie's legal parents; otherwise she would have to explain to her classmates and friends that they were her carers, not her parents and this would continue throughout her childhood. He struggled to see how, looking back at 18, she would think that a residence order had been in her interests rather than adoption. He said that if an adoption order was not made, he and his partner would prefer the existing arrangement to continue as it would mean that they would continue to have the support of the Minister and other government agencies. If there was a residence order and an application by one or other of the parents was made, they would have to deal with it themselves and appoint their own lawyer. He re-iterated that they were 100% committed to Mollie maintaining the relationship with the paternal family for the next 16 years and beyond.
64. The maternal uncle's partner said that she shared the maternal uncle's opinion and in particular she had found the evidence in the present proceedings to be most helpful and informative. They had not known previously of the depth of the relationship between the paternal grandmother and Mollie. They saw the importance of it now and were committed to the mediation process to maintain it. The paternal grandmother did not need to worry and they wanted to build a relationship with her in the best interests of Mollie. She knew that it would not be in Mollie's best interests if they drew up the drawbridge if things got difficult in the future.
65. Mrs Sue Clarke was appointed as guardian of Mollie for the care proceeding and was re-appointed for the present proceedings. She prepared a report dated 7th November, 2018, and also gave oral evidence.
66. Her report was written on the basis that the carers were opposed to any continuing contact with the paternal family, which was what they said to her when she discussed matters with them, which appears to have been in July/August 2018. They also told her that, if adoption could not be proceeded with, they would prefer the care order to continue rather than a residence order. The guardian saw these two matters as an indication of an anxiety and overall lack of confidence in the carers which rather surprised her. She felt that they wanted to isolate themselves from both maternal and paternal family members as a means of gaining overall control and a sense of security. She felt that they were unable to view the potential of the positive outcomes of Mollie in retaining contact with wider family members.
67. The guardian felt it important that Mollie should maintain relations with the wider family and that this was best achieved by a residence order rather than by an adoption order, which would sever the legal relationships with the wider family. She felt that a residence order would more accurately reflect the reality of Mollie's placement and would enable her to continue to enjoy positive relationships with her wider family. A residence order would not undermine the relationship that Mollie has with her carers, whom she does indeed regard as her parents. The guardian was however aware of the concern and anxiety expressed by the carers with regard to a residence order and accordingly she had recommended a number of conditions (as summarised earlier in this judgment) which would address issues of parental responsibility, change of name, ability to take Mollie out of the jurisdiction and concerns regarding repeated returns to Court on the application of the parents.
68. As to contact, she supported Dr Van Rooyen's proposal for therapeutic mediation but felt strongly that this was not to determine if contact was appropriate. Her view was that ongoing contact between Mollie and her paternal family was in Mollie's best interests and that all parties should work to achieve that. Mediation was therefore to help achieve that rather than determine whether such contact was appropriate. She also recommended a supervision order for 12 months to ensure the assistance of the Children's Service for the initial period following the making of a residence order.
69. In her oral evidence, the guardian said that she had seen no sign of unpleasantness between the parents and the carers since the final care hearing. This might be because all the communications since the difficulties of the summer of 2017 had been carried out through the Children's Service. The other important change was that the parents had separated since the final care hearing. Theirs had been a toxic relationship which undoubtedly contributed to many of the difficulties. Contact with the wider family should be maintained and this pointed against adoption. She understood the argument about the difficulties of saying to Mollie that the carers were not her legal parents, particularly if they had children of their own in future, but it would be equally difficult to explain to her that it was necessary to sever the legal relationship with her birth parents even though she continued to see them. In the guardian's opinion, the order of a court should reflect as far as possible the actual circumstances in which a child found herself and Mollie's circumstances would be more accurately reflected by a residence order.
70. She said that she understood the maternal uncle's eloquent (as she put it) expression of his concerns in the witness box and why they would not be met by a residence order, but she did not agree. The suggested conditions on a residence order would prevent the parents from interfering with the placement even if, contrary to her expectation, they sought to do so. She agreed that the security of the placement was vital but considered that adoption was not necessary in order to achieve this.
71. She said that in England, the concept of a special guardianship order had been introduced. It was suitable for use where children were going to remain in foster care for a lengthy period or were placed within the wider family and there was no need for continued local authority involvement. She suggested that the protection given by the conditional residence order which she was suggesting would in fact be stronger than that conferred by a special guardianship order.
72. Although she understood that the carers had moved forward since they had spoken to her when she was preparing her report, she was concerned that they were not wholly convinced as to the need for contact with the paternal family. She was worried that they regarded mediation as being to decide whether contact should go ahead rather than accepting that contact should go ahead, with mediation merely assisting on how it should go ahead. She was struck by the fact that they had chosen not to meet with the mediator the weekend before the hearing. She was concerned that, following adoption, contact would be wholly in the hands of the carers. Indeed, if the Court decided that it was unable to impose the conditions on a residence order or that it should not do so, she was of the view that a residence order without conditions would still be preferable to adoption. It would be too interventionist to make an adoption order in circumstances where it was not necessary to sever the legal relationship with the birth parents and where it was in Mollie's interests that there be continued contact with the birth parents. Mollie was in a caring and loving environment with the carers and there was no reason to think that she would face any hurdles by not being the carers' child in law. In her opinion, there was no reason for the carers to fear that the paternal grandmother, the paternal uncle's family or the father would seek to undermine the placement.
73. We begin by saying that we were impressed by the evidence both of the carers and of the paternal grandmother and we accept that they are all entirely sincere in what they have said to us.
74. In respect of the carers, it is clear they have provided a loving and stable home where Mollie is thriving. All the parties agreed that this was so and that Mollie should remain in their care. More significantly for the particular decision we have to reach, we find that their views on the question of contact have changed since they spoke to the guardian in the summer for the purposes of her report. At that stage they preferred a closed adoption. The process of changing their views began with receipt of the report from Dr Van Rooyen, with its finding that continued contact with the paternal family (in particular) would be beneficial for Mollie and its recommendation for therapeutic mediation to help achieve this and to resolve difficulties of the past. Their views have further developed, as they both said, as a result of hearing the evidence in this case, particularly that of Dr Van Rooyen and, most significantly, of the paternal grandmother. We find that they are both genuine in saying that they now recognise the vital importance of maintaining contact between Mollie and the paternal family and are keen to attend the therapeutic mediation in order to achieve this. They have met with the proposed mediator and have been much encouraged by what she had said. We do not attribute any significance to their wish not to attend a session of mediation the weekend before this hearing. We can well understand the stress of such a hearing and how they would wish to concentrate on that so close to the hearing.
75. We were equally impressed by the paternal grandmother. Like Dr Van Rooyen and the guardian, we are completely satisfied that she only has Mollie's best interests at heart. She has no intention of seeking to undermine the placement and recognises that Mollie should remain in the care of the carers. Indeed, she went so far as to say it would be ridiculous for Mollie to live elsewhere. She has an established relationship with Mollie who knows her as 'nanny'. She simply wishes to be a grandmother and to maintain contact with Mollie which will be to Mollie's benefit and to give such other assistance to the carers as they are willing to accept. We accept that she too is genuine in her wish to see the therapeutic mediation succeed and that she will do all she can to ensure that any past misunderstandings with the carers are cleared up and not repeated.
76. As to the father, we accept his assertion that he has no intention at present of seeking to assume care of Mollie or of undermining the placement in any way. However, we think there is a real possibility of his changing his mind at some point in the future. In this connection we note the following:-
(i) In March 2018, he told Ms Allchin that he did not support Mollie remaining in the care of the carers.
(ii) In his statement of 15th May 2018 he said that his medium to long-term aim would be to have a home for Mollie and himself.
(iii) In his statement of 20th July 2018, he appeared to accept that Mollie was settled and thriving with the carers and a residence order in their favour should be made but indicated that he still wished Mollie to return to his care even though it was not possible at that time.
(iv) Despite this, during his interview with Dr Van Rooyen in late August 2018, he said that he would support the mother's application to discharge the contact order and that if, on the question of providing permanent care of Mollie, he had to choose between the carers and the mother, he would pick the mother. Elsewhere in his interview he said that, as he was no longer in a relationship with the mother, he believed he could have Mollie in his care at some point.
77. We make allowances for his autistic spectrum disorder and the difficulty he has in managing his own behaviour and responses but nevertheless it is clear that his acceptance of the current placement is of comparatively recent origin and that he may again change his mind in the future and wish Mollie to live with him. There is also a real possibility that, if there is a residence order, difficulties over contact may arise between him and the carers because of his difficulty in managing his behaviour, in which event he might well seek to bring an application in connection with contact.
78. The mother did not participate in the hearing and was represented by Advocate English. His instructions immediately before the hearing were that the mother was not asking for contact or a contact order at this time but did not believe that it was in Mollie's best interests that she be adopted. She felt that if the carers did not wish to have a residence order, the status quo of a final care order should be continued with Mollie remaining in the placement with of the carers. During the course of the hearing, she sent an email to her advocate who supplied it to the Court and we have read it carefully. In that email she accepts that Mollie will not be returning to her care. She reiterated that she did not wish to disturb Mollie's placement and would abide by the conditions suggested by the guardian in connection with the residence order.
79. We accept that this is her current intention; but again, we cannot ignore the fact that she opposed the placement with the carers until very shortly before the final care hearing and filed an application to discharge the care order and return Mollie to her care as recently as July 2018. This was only not proceeded with just before the hearing. In those circumstances we find that there is a real possibility that at some stage in the future the mother may have second thoughts and once again apply for Mollie to be returned to her care.
80. As set out in Re M and Re Joel (applying what was said in Re B-M), the Minister and the guardian should address all the options which are realistically possible and analyse the arguments for and against each option. That exercise was undertaken in the report of Ms Allchin dated 14th May 2018 but has not been repeated since the guardian came up with her detailed proposal for a residence order with conditions. Nevertheless, we consider that, during the course of the hearing, the pros and cons of each course of action have been thoroughly explored and we are in a position to summarise them in relation to the only two realistic options before us, namely a freeing order followed by adoption by the carers or a residence order with conditions as suggested by the guardian.
81. The pros in connection with a residence order with conditions would appear to be as follows:-
(i) It would reflect the actual position in that, although in the care of the carers, it was in Mollie's best interests to have contact with her birth family.
(ii) It had the best prospects of ensuring that such contact took place in that, with the leave of the Court, any member of the family could apply for a contact order if the carers did not agree to the requested level of contact.
(iii) It would not sever the legal relationship with the parents and the wider birth family in circumstances where this was not necessary and where there would be continued contact with the family.
(iv) Through use of the conditions, it would give primary parental responsibility to the carers whilst not excluding altogether the parental responsibility of the mother and the father.
(v) It would be the least interventionist of the two options.
82. The cons would be:-
(i) Notwithstanding the requirement for leave from the Court, there would be a real possibility of the birth family seeking to discharge the residence order at some point in the future. This would give rise to insecurity and uncertainty on the part of the carers which would be likely in turn to affect Mollie.
(ii) There is a real possibility of disagreement over the level of contact which, despite the requirement for leave from the Court, could result in further court proceedings to resolve such matters.
(iii) The carers do not wish there to be a residence order and, in the absence of a freeing order, would prefer the continuation of a care order.
(iv) The carers would not become the legal parents of Mollie and she would be in a different position from any future children of the carers.
83. In relation to a freeing order the pros would appear to be:-
(i) She would have a secure permanent placement in a home living with her legal parents.
(ii) In the event of the carers having further children, they would be her legal brothers and sisters and her legal position vis-à-vis the carers would be no different from them, unlike in the case of a residence order.
(iii) Parental responsibility would rest solely with the carers and there would be no risk of interference by the birth parents purporting to exercise their parental responsibility.
(iv) The placement would be secure and there would be no risk of further court proceedings, all questions of contact ultimately being determined by the carers as adoptive parents. It would bring an end to the uncertainty which has characterised Mollie's life so far.
(v) Mollie already calls the carers 'mummy' and 'daddy'. Adoption would therefore be consistent with her view of them.
(vi) On the basis of the carers' assertion to the Court, continuing contact with the birth family should be maintained. Pre and post adoption support would be available from the Fostering and Adoption Team.
84. The cons in respect of a freeing order would appear to be as follows:-
(i) It is a more interventionist order than a residence order.
(ii) It severs the legal relationship between Mollie and her birth family.
(iii) It will do so in circumstances where there would be a continuing relationship with the birth family and it may therefore be confusing for Mollie.
(iv) It would not reflect the actual position because Mollie would still be having contact with her birth parents. Adoption is more suitable where one is replacing the birth family by a new family.
(v) The question of continued contact with the birth family will be within the sole discretion of the carers. There is therefore a greater likelihood of such contact not in practice continuing despite their expressed intentions and the therapeutic mediation, given the difficulties of the past.
(vi) Even if contact is satisfactorily established, it would be lost or dramatically reduced if the carers chose to live in another jurisdiction.
85. We have carefully considered these matters together with the reports and all the evidence before us and we have come to the clear conclusion that a freeing order is the order best calculated to serve Mollie's best interests. We would summarise our reasons as follows:-
(i) We agree entirely with the evidence of Dr Van Rooyen (which was accepted by the Minister and the guardian) that the stability and security of the placement with the carers is paramount for Mollie's welfare. She is thriving in the placement and, after the chaos of her early childhood, she needs a secure placement in a loving home.
(ii) In our judgment, it is important not only that the placement is in fact secure but that the carers perceive it to be so. There is a risk that any feelings of insecurity or uncertainty on their part will be picked up by Mollie which would be to her detriment.
(iii) If there were a residence order, there is a real risk of one or other of the parents seeking to discharge it at some stage. Although the stance of both parents at the hearing was that they accepted the placement, we do not believe that this will necessarily remain their view. In the case of the father, as set out at para 76 above, in May and July 2018 he asserted that he would like Mollie to live with him and as recently as August, he stated that he thought it would be better for Mollie to live with the mother than with the carers. As to the mother, she has gone so far as to apply in July 2018 to discharge the care order and for Mollie to be returned to her care. It was only at the door of the court that she did not proceed with that application. We consider that, particularly if the situation of either of them were to improve significantly (perhaps establishing families of their own), there is a real risk that one or other will wish to discharge the residence order.
(iv) We appreciate that, pursuant to the conditions suggested by the guardian, the parent would need to obtain leave from the Court to bring such an application and that the application for leave would not need to be communicated to the carers. This would undoubtedly confer some protection. However, as the maternal uncle suggested in evidence, the Court cannot guarantee that it would not grant leave. If the circumstances of the applying parent had improved significantly, one can envisage that the Court, having regard to the Article 6 and Article 8 ECHR rights of the parent, might well be cautious about not even allowing the parent to bring an application to reunite Mollie with a birth parent. There would therefore remain the possibility of further proceedings involving the carers (and Mollie) which would pose a threat to the stability of the placement and cause much insecurity to Mollie even if the application was ultimately unsuccessful.
(v) Perhaps even more likely than an application to discharge the residence order would be an application by either parent in relation to contact with Mollie. In our view, it is by no means unlikely that, even assuming the carers agree to contact with the birth parents, one or other of the parents will find such contact to be insufficient given their volatile and inconsistent disposition. Although again the need to apply for leave from the Court would provide some protection, there would still be a risk of further proceedings involving the carers for the same reasons as mentioned in the previous sub-paragraph. Any further court proceedings involving the carers would, in our judgment, not be in Mollie's best interests.
(vi) We consider the point about the carers being Mollie's legal parents to be an important one. Given their ages (in their 20s) it is likely that the carers will in due course have children of their own. We think it would be undesirable for Mollie and not in her best interests if she were to be in a different position from those children, in that the carers would simply be her carers and not her parents whereas they would be the parents of their future children. Mollie would not be the sister of any such children. This would no doubt have to be explained to friends, school etc. and would constantly remind Mollie that she was not a legal member of the family; she simply resided there. We accept of course that she would not be in a wholly identical position in any event, in that she would be an adopted child whereas the others would be natural children. But this is a common situation and is a minor difference compared with that of not being a legal child of the persons in whose home you live. An adoption order would mean that the carers became her parents whereas a residence order would not.
(vii) Under the proposed conditions of a residence order, the parents in reality would be retaining parental responsibility in name only. It would have no substance. They would be unable to exercise any of the rights and responsibilities that normally go with parental responsibility. Yet the carers would not be her legal parents. Thus Mollie would not have any legal parent who could effectively exercise parental responsibility.
(viii) Advocate Corbett suggested at one stage that a freeing order would result in care resting solely with the Minister until an adoption order is made and that it could not be guaranteed that an adoption order in favour of the carers would in due course be made. We regarded this as a fanciful objection. The carers have been approved as adopters by the Fostering and Adoption Panel and Mollie has been living with them for nearly two years; this is not therefore the normal case where a placement has to take place with prospective adopters to see if all is satisfactory. We can see no conceivable reason why, if we make a freeing order, an adoption order should not follow in early course.
(ix) The above factors all point strongly in favour of a freeing order rather than a residence order with conditions. However, we accept the evidence of Dr Van Rooyen to the effect that, provided it can be achieved without conflict and negativity directed towards the carers, continued contact with the birth family will be in Mollie's best interests. Hence her recommendation for therapeutic mediation to facilitate such contact. We further accept that following adoption, decisions as to contact and the amount of any such contact will be entirely in the hands of the carers whereas, under a residence order, the Court will be able to determine questions of contact in the event of a dispute.
(x) We have considered carefully whether this outweighs the advantages of adoption and points in favour of a residence order with conditions. We find that it does not. As discussed above, we were impressed by the sincerity of the carers and the thought and attention which they have given to the views of Dr Van Rooyen (both in her report and in evidence) and the evidence of the paternal grandmother. In our judgment, they fully realise that it is in Mollie's best interest to have regular contact with her birth family and will do all they can to see that this happens. There is no evidence of any likelihood that they will move to live outside Jersey.
(xi) On behalf of the guardian, Advocate Corbett cited the observation of Hale LJ at para 14 of B -v- R P to the effect "An adoption order in a case like this is a loss to the child and not a gain" and submitted this was also the case here; Mollie would lose her birth parents without any gain.
(xii) We disagree. Hale LJ was careful to limit her remark to 'in a case like this'. The facts of that case were very different. The child already lived with the birth father under a residence order. He was already her legal parent. In that case adoption would result in a loss (a loss of parental responsibility by the mother) but no corresponding gain because the father was already her natural parent with parental responsibility and she lived with him. The present case is very different. Although adoption will result in the severing of the legal relationship with the parents, Mollie will gain a parental relationship with the carers and will thereafter be living in a secure and loving home with her legal parents. There will therefore be a substantial gain.
(xiii) The guardian also referred on a number of occasions to the fact that a residence order would be preferable because it was a less interventionist order than adoption. We agree that, as a general principle, the least interventionist order which will serve a child's best interests will be appropriate. However it has to be an order which is in the child's best interests. For the reasons we have given, we find that a freeing order followed by adoption is the order which will best serve Mollie's welfare. In those circumstances it would be quite wrong to make a residence order (which we do not believe would be in her best interests) simply because it is a less interventionist order.
(xiv) We have also reminded ourselves of the cautionary words about adoption set out in Re B-M as cited at para 32 in Re M (see para 27 above) and that the Court should only make an order seeking to sever the legal relationship between the child and the birth parents where it is 'necessary', within the meaning of the ECHR, to do so in order to protect the interests of the child. However, for the reasons given, we are satisfied that, notwithstanding the caution one should exercise before making a freeing order, it is clearly in Mollie's bests interests and necessary that we should do so on this occasion.
86. Article 12 read with Article 13(2) of the 1961 Law provides that the Court may only make an order freeing a child for adoption if each parent consents, but also provides that the Court may dispense with such consent if satisfied that the parent is withholding his or her agreement unreasonably.
87. The Court of Appeal elaborated on what was meant by withholding consent unreasonably in Re F & G (No. 2) (supra) at paras 80 - 81 in the following terms:-
"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) 2 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 Hoffmann 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.""
88. The observation of Lord Denning MR in Re L referred to in the above extract at para 80 of F & G was in the following terms:-
"I must say that in considering whether she is reasonable or unreasonable we must take into account the welfare of the child. A reasonable mother surely gives great weight to what is better for the child. Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent. We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case."
89. We also think it useful to quote more fully from the judgment of Steyn and Hoffmann LLJ in Re C, described as 'helpful' by the Court of Appeal in F & G. The passage at 272 reads as follows:-
"But in making the freeing order, the judge had to decide whether the mother was 'withholding her agreement unreasonably'. This question had to be answered accordingly to an objective standard. In other words, it required the judge to assume that the mother was not, as she in fact was, a person of limited intelligence and inadequate grasp of the emotional and other needs of a lively little girl of 4. Instead she had to be assumed to be a woman with a full perception of her own deficiencies and an ability to evaluate dispassionately the evidence and opinions of the experts. She was also to be endowed with the intelligence and altruism needed to appreciate, if such were the case, that her child's welfare would be so much better served by adoption that her own maternal feelings should take second place.
Such a paragon does not of course exist; she shares with the 'reasonable man' the quality of being, as Lord Radcliffe once said, an 'anthropomorphic conception of justice'. The law conjures the imaginary parent into existence to give expression to what it considers that justice requires as between the welfare of the child as perceived by the judge on the one hand and the legitimate views and interests of the natural parents on the other. The characteristics of the notional reasonable parent have been expounded on many occasions; see for example Lord Wilberforce in Re D (Adoption: Parent's Consent) [1977] AC 602 at p 625 ('endowed with the mind and temperament capable of making reasonable decisions'). The views of such a parent will not necessarily coincide with the judge's views as to what the child's welfare requires. As Lord Hailsham of St Marylebone LC said in Re W (An Infant) [1971] AC 682 at p700:-
"Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable."
Furthermore, although the reasonable parent will give great weight to the welfare of a child, there are other interests of herself and her family which she may legitimately take into account. All this is well settled by authority. Nevertheless, for those who feel some embarrassment at having to consult the views of so improbable a legal fiction, we venture to observe that precisely the same question may be raised in a demythologised form by the judge asking himself whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for 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." [Emphasis added]
90. We remind ourselves that we must be careful not simply to substitute our own opinion for that of the parents. The fact that we have concluded that it is in Mollie's best interests for there to be a freeing order followed by adoption does not of itself mean that the parents are being unreasonable in forming an opposite view and withholding their consent. In this respect, they are entitled to pray in aid the fact that the guardian is also in favour of a residence order with conditions rather than a freeing order.
91. Nevertheless, we have concluded that, to use the wording from Re C as approved by the Court of Appeal in F & G, the advantages of adoption for Mollie's welfare appear to us to be sufficiently strong to justify overriding the views and interests of the parents. In our judgment, to deprive Mollie of the opportunity, which adoption would give her, of living safely and securely in a loving home with her legal parents in circumstances where there is no possibility of continuing challenges to the placement, would be to act unreasonably.
92. In reaching this conclusion, we have given careful consideration to the fact that the guardian supported a residence order. However, the Court was unable to place the weight upon her views which it might normally have done for the following reasons:-
(i) In her evidence she placed repeated reliance on the fact that a residence order was a less interventionist order than a freeing order. It seems to us that at times she was placing a weight upon that principle which, as explained at para 85(xiii) above, we do not think it can properly bear.
(ii) Although she met the maternal uncle's partner (and indeed saw her with Mollie) in the summer of 2018 for the purposes of preparing her report, the guardian has not met the maternal uncle since before the final hearing in October 2017. She has only spoken to him on the telephone in July 2018. At the time when she spoke to the carers, they were against any continuing contact with the birth family. She has not spoken to them since they have seen Dr Van Rooyen's report. We think that she was perhaps viewing them through the prism of their views as expressed to her in the summer of 2018 rather than through the views which they expressed in Court after reading the report of Dr Van Rooyen, hearing her evidence and also hearing the evidence of the paternal grandmother.
(iii) Furthermore, when asked her view of the position if the Court were to hold that it did not have jurisdiction to impose the suggested conditions on a residence order (so that the choice lay between a simple residence order and a freeing order), she said that in those circumstances she would prefer a simple residence order. We have to say that we found this to be a surprising answer. With no conditions on the residence order, it would mean that the parents retain full parental responsibility jointly with the carers. This would be a recipe for continual dispute with frequent references back to the Court if matters could not be resolved. It would also mean that either parent would have the right to apply at any time for revocation of the residence order or for an order in respect of contact. We can readily envisage that occurring. We cannot conceive that this would be in Mollie's best interests and the guardian's answer to this question affected the weight which we felt we could place upon her views in this case.
93. We wish to emphasise that, in making these observations, we do not intend to be critical. The guardian has given very helpful and constructive evidence before this Court on this and on previous occasions and will no doubt do so again in the future. It is just that on this occasion we feel unable to place the weight upon her recommendation that we normally would have done.
94. For these reasons we consider the parents are withholding consent unreasonably and we dispense with their consent.
95. For all of these reasons, we made an order freeing Mollie for adoption and dispensing with the consent of each of the parents on the ground that such consent was being withheld unreasonably.
Authorities
Adoption (Jersey) Law 1961.
Re F & G (No.2) [2010] JCA 051.
Children (Jersey) Law 2002.
Re B - S (Children) [2013] EWCA Civ 1146.
In the matter of M (Care order) [2013] JRC 234.
In the matter of Joel (Free for Adoption Order) [2018] JRC 035.
In the matter of T [2011] JRC 133.
Re C (A Minor) (Adoption: Parental Agreement: Contract) [1993] 2 FLR