Adoption - reasons for freeing the child for adoption
Before : |
J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Ronge and Pitman |
Between |
Minister for Health and Social Services |
Applicant |
And |
A (the Mother) |
First Respondent |
And |
B (the Father) |
Second Respondent |
IN THE MATTER OF BILLY (FREED FOR ADOPTION)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW, 2002
Advocate H. J. Heath for the Minister.
Advocate R. S. Tremoceiro for the First Respondent.
Advocate M. R. Godden for the Second Respondent.
judgment
the COMMISSIONER:
1. On 19th June 2019, the Court granted the Minister a final care order in respect of Billy (not his real name), then aged six months ("the Child"), and freed him for adoption. This was the second child of the first respondent ("the mother") and the second respondent ("the father") to be removed from their care and freed for adoption. At the time of the hearing, the mother was expecting their third child, due to be born in October, 2019.
2. The circumstances in which the first child was freed for adoption is set out in the Court's judgment of 16th May, 2018 (In the matter of Olly (Free for adoption order) [2018] JRC 091). The mother was then aged 20 and the father 22, and they had disengaged from the process. In June 2017, they had attended a residential assessment at a Centre in England with the first child. The father's assessment was suspended by the Centre on 25th July 2017, and terminated due to ongoing concerns around the parents' relationship, his aggressive behaviour towards staff and his inability to prioritise the first child's needs. Quoting from the Centre's first report at page 18:-
"... the instability of [the mother and the father's] relationship has dominated this period of assessment, with bickering and arguments presenting as a common feature. The toxic nature of their relationship, and the repeated ending and reconciling of their relationship created a highly unstable and inconsistent environment for [the child] to grow and develop, and indeed impacted on the emotional presentation and capability of them as parents.'
3. The mother's assessment continued until 29th August, 2017, when the Centre recommended that the first child be placed with alternative carers in the long term. The conclusion reached by the Centre at paragraph 85 was that neither parent was able to prioritise the first child's needs above their own, and if the first child was returned to their care in the community, the Centre was of the opinion that he would be placed at significant risk of harm.
4. A psychological assessment of the parents had been commissioned from Dr Elizabeth Gillett, and it is helpful to set out a summary of her opinion dated the 20th October, 2017, contained between paragraphs 13 and 19 of the judgment of the 16th May 2018:-
"13 The report from the psychologist, Dr Elizabeth Gillett, was both thorough and comprehensive. She assessed the father as experiencing 'variable and unpredictable moods' and being subject to 'manic episodes of an expansive and hostile nature' during which he 'may explode into uncontrollable rages, unleashing torrents of abuse and contempt on others'. His behaviour was in line with that of someone suffering an anti-social personality disorder.
14 Dr Gillett reported that the mother has a likely 'diminished capacity for pleasure, preoccupation with lessened energy and inadequacy, pessimism, a loss of confidence, feelings of worthlessness, resentment and fears that she may vent her anger and thereby lose the little security she possesses'. She said that the mother 'demonstrates a markedly deflated sense of self-worth and her expectation of failure and humiliation constrain all of her efforts to function without support; moreover she feels that others have either depreciated or disapproved of her occasional attempts at authority therefore reducing the likelihood of such attempts in the future'.
15 In the view of Dr Gillett, the mother has a theoretically naïve understanding of domestic abuse and a lack of insight into relationship dynamics and interpersonal functioning She said that the mother is 'likely to be highly vulnerable to controlling, possessive and domestically abusive partners, who superficially meet her emotional needs, but she lacks insight into the wider impact of these on her own development, the health and sustainability of the relationship and indeed the impact on others.'
16 Dr Gillett concluded that 'I am strongly of the view that [the father] and [the mother] together and/or alone represent a significant risk to [the first child]. There is clear evidence that both have significant psychological difficulties that are in my view contra-indicators to their ability to parent any child at this time and for the foreseeable future.'
17 Quoting from paragraph 8.6.3 to 8.6.5 of her report:-
'8.6.3 [The first child] in particular would be at high risk of emotional abuse and neglect, via number of mechanisms including witnessing hostility and aggression between his parents; a lack of recognition and prioritisation of his emotional and practical needs; poor stimulation and lack of supervision; exposure to extreme behaviour by his parents, the absence of appropriate levels of attachments and inter-subjectivity with a primary attachment figure; and a chaotic lifestyle increasing risks of instability, insecurity and exposure to indirect risks such as homelessness, poverty, risky adults and environmental hazards.
8.6.4 Indirect exposure to other risks would also likely be enhanced including physical abuse, owing to behavioural excesses and angry/aggressive behaviour within the household, and sexual abuse, given unusual, if not well-documented sexual boundaries/abuse in [the father's] family of origin and [the mother's] vulnerability to sexually inappropriate behaviour/abuse.
8.6.5 At this time I cannot envision a circumstance that would manage or lower the risk to [the first child] if he were in [the father's] and/or [the mother's] care.'
18 In terms of the parents' ability to change and their motivation to do so, she said this at paragraphs 8.8.1and 8.8.2:-
'8.8.1 On the basis of this assessment, with the caveat of its limitations, I am of the view that [the father] and [the mother] are highly unlikely to be able or motivated to change their behaviour or way of thinking in order to prioritise [the first child's] needs within his timescales, if at all. The assessment opportunities given to date have been extensive and have not evidenced any potential for change with a clear priority from both [the father] and [the mother] towards the maintenance of their relationship owing to their co-dependency; with this, if anything increasing over time rather than being reflected upon and rebalanced in light of the consequences of their actions.
8.8.2 Psychologically both [the father] and [the mother] are preoccupied with their own emotional needs and ensuring these are met to the best of their ability. Until such time as this changes I do not see any potential for change within either [the father's] or [the mother's] parenting capacity; not least their emotional responsiveness, ability to attach and their ability to empathise and consider [the first child's] needs independently of their own.'
19 Finally, she said at 8.9.1:-
'8.9.1 In my view there is no psychological assistance or treatment that would enable [the father] and [the mother] to be in a position to offer care to [the child] especially being mindful of his timeframe and need for a permanent primary attachment figure at the earliest opportunity. Research highlights that permanent placement beyond an infant's first birthday starts to significantly increase the risk of attachment difficulties and restrict the changes and therefore from [the first child's] perspective time is of the essence.'"
5. The Court went on to say this at paragraphs 39 and 40:-
39 In her report, Dr Gillett recommended that the parents seek a referral to psychiatry in their own right with a view to undertaking a diagnostic assessment with regard to personality difficulties and to explore long term psychological treatment options, even if the threshold for diagnosis is not met. Her concern, which was shared by the Court, the Children's Service and the guardian, was to assist the parents, using her words 'to find a pathway to improve their own life chances and wellbeing and the possibility of developing more appropriate parenting capacity in the future'. She set out a number of interventions which could assist them.
40 It was recognised that help of this kind could not be imposed upon the parents; they must positively wish to engage with it. ..."
Since the Court's judgment of the 16th May 2018, the parents have not engaged in any of the psychological support recommended by Dr Gillett.
6. Shortly after the first child was freed for adoption, namely 16th April 2018, the mother became pregnant with the Child. The Child was born in 2018 and was by agreement placed with foster carers, where he remained. The parents had supervised contact three times a week.
7. For the purposes of these proceedings, a further psychological report on the parents was commissioned, at their request from another psychologist Dr Celest Van Rooyen, whose report was dated 16th April 2019. The Court also had reports from the social worker and the guardian, and heard evidence from Dr Van Rooyen, the social worker, the family support worker and the mother.
8. In the opinion of the social worker, who had built up a good relationship with the mother, the Child would be at risk of disorganised neglect if placed in the care of the parents. They lacked the capacity of parents to meet the needs of the Child due to being preoccupied with their own needs or feelings, as evidenced during the proceedings in respect of the first child, which continued through during the period of the assessment for the Child. The social worker acknowledged that the parents now had a more stable lifestyle, in that the father had been in employment for over a year, and they had remained in stable accommodation, but that said, much of the conversation during contact with the Child focused on accommodation, employment and financial difficulties, distracting them from focusing on the Child, and meeting his needs.
9. The father had made decisions during the period of assessment, which had not prioritised the needs of the Child, for example, by resigning from his employment, for reasons which were not clear, an impulsive decision which would have resulted in the couple being without abode or adequate funding. On advice he was able to retain that employment.
10. The mother had initially concealed her pregnancy with the third child, for fear that it would adversely affect the assessment in respect of the Child, but in the view of the social worker, the pregnancy demonstrated the lack of commitment by the mother and father to prioritise the needs of the Child; a pregnancy which impacted upon the contact arrangements and further challenged the parents' ability to care for and prioritise the needs of the Child. The father, in particular, presented with a "them and us" attitude with the agencies, with his focus being on the "battle against the professionals".
11. There was an altercation between the parents during contact in St Helier on 8th February 2019, which resulted in a member of staff having to intervene to take charge of the Child's pram and after which contact in the community was stopped. There was a further incident on 15th February 2019, when the Child was exposed to conflict between the parents and a family member.
12. Advice as to how to handle and meet the Child's safety needs had to be given repeatedly at the contact sessions. By way of example, the parents consistently failed to properly support the Child's head and were seen to forcefully pass the Child to one another. Whilst they could carry out tasks such as feeding, changing or winding the Child, they would not interact consistently with the Child whilst carrying out these tasks and had unrealistic expectations for a child his age.
13. The parents were given the opportunity to work with a health visitor to expand their knowledge of child development and health needs, but refused to complete this work, for no reason other than that the health visitor "grated" on them. A bespoke "Babysteps" programme was offered to the parents prior to the birth of the Child to develop their knowledge of baby care development, but they did not attend the initial appointment, and did not respond to messages in respect of the programme.
14. The mother had one assessment session with Jersey Talking Therapy following the freeing for adoption of the first child, but she did not continue to engage, as she said she was under stress with the pregnancy with the Child, and with the many appointments she had to attend. The father was offered the opportunity to work with a care leader's advocate from Barnardo's but stated he did not feel he needed this support.
15. The possibility of seeking emotional support was explored with the parents on 10th April 2019, but both advised that they did not need this help. The mother apparently said that "Once Court is over, she will lock herself away".
16. Whilst the parents attended contact consistently during December, 2018 and January and February 2019, in March and April, 2019 contact sessions were increasingly cancelled because the parents did not attend. The last contact session attended by the father was on 15th May 2019, and by the mother on 24th May 2019.
17. There was a lack of appropriate family support network with the mother being physically assaulted by her own mother shortly before the birth of the Child, and on 16th November 2018, the father was involved in an altercation with his mother, which exposed the mother and the unborn Child to aggression within the home.
18. In summary, the social worker said the parents did not have the capacity to consistently meet the needs of the Child. There were a number of patterns and themes which mirrored those in the assessments of the first child, and this despite the support of professionals. In her view the parents would not be able to sustain the appropriate changes needed for the Child to thrive in their care within the Child's timescales.
19. Dr Van Rooyen explained in her report that both parents had experienced disruptive formative years, which had been characterised by "losses, separations, unmet needs/neglect, developmental arrest and chronic and isolated trauma associated with extensive childhood maltreatment and abuse in all its forms." For both of them "the developmental arrest had been associated with impoverished attachment experiences, dysfunctional mother/child relationships, extremely disturbed family relationships as well as rejection feelings and experiences." Neither had been willing or able to make any clear acknowledgement of concerns which would provide the foundation to begin the process of improvement. Instead, "they continue to invest in defensive structures associated with the now, minimising of concerns and externalising of blame."
20. That said, she advised that there were no indications of either parent presenting with a psychological disorder or defined personality disorder. Whilst there had been an improved overall functioning over the last few months, there had been a long-standing history of instability of mood, periods of affective instability and post-trauma reactions associated with unresolved issues from their past, which have not been addressed. Quoting from paragraph 2.2 of her report:-
"2.2 It was assessed that the couple are united in their relationship, are strongly attached and have a determination to remain a couple, which is despite underlying insecurities, apparent underlying distrust and [the father] 'easily influenced' against [the mother]. When considering the similarities of their formative years associated with emotional deprivation, losses, trauma and sense of rejection, this young couple have established a co-dependent relationship, where [the father] has a need to be needed, while [the mother] has a need to be accepted and looked after. It is this dynamic, which underlies their need to prioritise the needs of each other, which has been prioritised over and above the contact needs of their infant.
2.3 The nature of their relationship is such that they prioritise their relationship and need to support each other, over and above the needs and best interest of their infant. This had been noted during the assessment when [the first child] had been in their care and the pattern has remained the same at the current time in relation to [the Child]. [The father] made it clear he chooses not to attend contact with [the Child] on the occasions [the mother] is too unwell to attend, stating 'I won't go if she is ill, I want to look after my wife'. Similarly, according to [the father] when he oversleeps or [the mother] is unable to wake up, she tends to stay at home with him and misses some of the contact visits.
2.4 The parents have not prioritised their health needs which does not only leave them vulnerable for increased health concerns, but this has already interfered with the needs and best interests of their infant and his need for contact with them."
21. There had been some improvement in their current emotional and relationship functioning, but Dr Van Rooyen advised that they continued to struggle to cope with the demands, responsibilities and expectations placed upon them. Quoting from paragraph 1.9:-
"1.9 Both are neglecting their health needs; they have struggled to fully commit to contact with [the Child] and both remain resistant and defended to acknowledge concerns and as such resist seeking professional support in the face of their limitations and unresolved issues from their past. The couple had not in any way taken responsibility to prevent a further pregnancy, with [the father] informing the pregnancy was not planned and [the mother] not feeling able to acknowledge the pregnancy. With the parents struggling to take responsibility with their health needs, unable to prioritise contact visits with [the Child] and [the father] making it clear his priority is to support [the mother] over and above his Child, it is considered having the needs of two vulnerable infants to take into account would be a considerable, if not unrealistic challenge, for the parents."
22. Due to the parents not having any appropriate parenting template of their own, they would need to be guided and taught each step of the way, but they needed to be receptive to advice and guidance and to work constructively with the Children's Service. It was imperative, Dr Van Rooyen advised, for them to be significantly less defended, and consistently open to consider areas of concern and limitations.
23. Whilst there were no clear personality disorder traits, both parents were assessed to have underlying maladaptive personality features associated with vulnerability to stress, which has the potential to play a role in undermining emotional stability, and ability to cope with demands and responsibilities set for them. They have unresolved issues in their lives, and continue to present with unmet needs, and when their needs clash with the needs of a child in their care, they would struggle to prioritise the needs of that child. For the risk to be reduced, Dr Van Rooyen advised that the parents needed to begin a process of psychological growth, and change in order to become emotionally self-reliant. To be in a position to provide good enough care for the Child, now and in the longer term, they would need to address these issues and in essence, get to a point of acknowledging their limitations and areas of concern, so that they are open to begin to make changes and adjustments in the interests of their children. It was crucial for them to work honestly and openly with the child care professionals and to lower their defences. It is only with such acknowledgements that the appropriate support, advice and guidance could be offered. As they are currently resistant and defended in the face of concerns, she advised that they are not "therapy ready" to begin to address unresolved issues, and the impact of dramatic events in their lives. Quoting from paragraph 6.4:-
"6.4 ..... This work would however be essential for them to be in a position to achieve emotional self-reliance, to reduce vulnerability to stress and prioritise the needs of a child in their care over and above their needs and feelings in a consistent way, especially when their needs clash with the needs of a child in their care.
6.5 At this moment in time, [the father] and [the mother] do not present as being able and motivated to address such deficiencies, as they do not accept there are any concerns. As such, they do not have the commitment, parenting or emotional capacity to prioritise [the Child's] needs within his timescales without a very high level of support and therapeutic intervention. With the couple expecting a third child, the level of stress having two infants under the age of two would be beyond their emotional and practical ability at this stage."
24. Although they were not currently open to recognise the need to make psychological changes and growth, they would benefit from initial counselling support "to include a clear psycho-educational dimension", which would enable them to begin to understand the links from their childhood experiences and how they impact on past and current psychological functioning. They would also need to be taught skills to improve their general coping capacity that would assist in day to day functioning. The more in-depth therapeutic work, such as cognitive analytic therapy ("CAT") would aim to assist the parents achieve more substantial change in emotional, social and relationship functioning.
25. Both parents had been assessed as having borderline/below average intellectual functioning levels. This meant that whilst they have the capacity to learn new information and to engage in a teaching and therapeutic situation, they would require additional time and a slower tempo of work to compensate for their cognitive limitations.
26. In evidence, Dr Van Rooyen explained that the length of this initial assessment would depend on their motivation, but on average, some twelve weeks would be needed for this work to reach a stage where there was a good indication that they could engage with the therapy which is a much harder concept, and which would take longer - at least twelve months. It is long-term and slow work which would be tough and involve analysing layers of difficulties. There was no other way to achieve capacity for stability which was fundamental for child care. The issues they faced were multi-faceted. The father's lack of trust was the biggest issue for him at the moment, as it would interfere with any therapy. There was a fundamental lack of trust underlying everything. Therapy was not like medicine - you must engage wholeheartedly. Separation from the father was not the answer. The mother needs a high level of support full time (24/7), in effect co-parenting, to ensure the needs of the Child were consistently met. When able to demonstrate emotional and relationship stability, that could be reduced to a package of family support, but a very clear routine would need to have been established before. In her view, co-parenting was not sustainable for the Children's Service, or indeed for the family.
27. The Court found the evidence of Dr Van Rooyen realistic, clear and fair. She had given credit to the parents where due.
28. The family support worker, who attended the contact sessions, explained how the parents needed constant reminders as to what was safe or unsafe in the handling of the Child, for example, the need to support his head. The parents would tend to talk to each other about their own issues, not involving the Child or looking at him. They had to be prompted repeatedly to focus on the Child. She described the relationship between the parents as very passionate, and that they relied on each other emotionally, but there were regular arguments between them that went beyond mere banter, and when they had to be reminded to keep the noise down and to calm down.
29. That said, counsel for the respondents took the family support worker through a number of the very comprehensive contact logs, and she accepted that there were some contacts that went well. Usually, the mother would arrive first, followed by the father, who would sit in a corner without greeting the Child. It would seem that it was not until the contact on 10th April, 2019 that the father first sat on the floor to play with the Child. Contacts, in her view, tended to be more positive when the mother attended alone. In her opinion, the mother would not be able to safely care for the Child full time on her own.
30. The family support worker was very grounded in the evidence that she gave, and the Court was impressed by the very comprehensive nature of the contact logs, which provided very helpful evidence for the experts, and indeed for the Court.
31. The mother had filed a detailed statement dated 3rd January 2019, responding to the statement of the social worker dated 11th December 2018, and this for the purposes of the hearing on 15th January, 2019 when an interim care order was made in favour of the Minister. She also filed a position statement dated 8th May 2019.
32. In summary, she stressed how much more stable her relationship with the father had become. The father was in full employment and their accommodation was stable. They had developed a strategy to avoid arguments arising between them, to the point that they argued less. If an argument arose when the Child was in her care, she would tell the father to leave, so that she could look after the Child. They had an argument two weeks prior to the hearing, when she asked the father to leave, which he did for a period of an hour, and when he returned he apologised and all was calm.
33. The mother did not agree that the Child would be at risk of significant harm in their care, and that they could not prioritise the Child's needs. She was willing to work intensively with the Children's Service. She had a good relationship with the social worker and was willing to undertake all the therapy and psycho-education recommended by Dr Van Rooyen. She said it was in the Child's interests for the therapeutic interventions to be allowed to have a positive effect.
34. She explained that she had a difficult relationship with her own mother, who had learning difficulties, and whose habit of repeating herself was trying. She now accepted her mother's difficulties and since February 2019 they have had a good relationship. She described her father as her "rock", and indeed both her parents supported as much as they could. They would often help financially for food and she would stay with them when she was not well.
35. She explained that she had attended the assessment at Jersey Talking Therapies, but she was then six months pregnant with the Child and struggling to keep up with appointments relating to the pregnancy, and so was not able to take up further appointments offered.
36. She accepted that there were occasions in supervised contact when she did not support the Child's head properly, but he was holding his head by himself now, and only needed support when feeding or bathing. She described the feedback from the family support worker as helpful, fair and balanced, and she accepted that she did struggle with caring for the Child and needed to be shown practically what to do.
37. She had no GP at the moment, because of a debt of £100 owed to the medial practice relating to the first child, which they currently had no means to pay. Social Security did not pay the full amount of the rent due on their accommodation and in addition to the usual expenditure, they were paying off the insurance and MOT on the father's motor cycle, which he needed in order to get to work. It was not possible for her to access Talking Therapies without a GP.
38. In terms of the therapy recommended by Dr Van Rooyen, she agreed that there were things in the past that were too painful to talk about, and that she did minimise past concerns. She had been sexually abused when aged 10 and 11, but had now made an appointment for counselling at Dewberry House to help her with the trauma resulting from that abuse. Dr Van Rooyen accepted that this was a positive step.
39. In terms of support, she had a friend (aged 21) who is training to be a social worker who said she would support her in caring for the Child, even if she had to come round in the early hours of the morning. The friend's aunt and brother had also offered support.
40. The mother wanted a supervision order, with the Child under her care at home with her or alternatively to be given more time in order to show that she can properly parent the Child. Under cross-examination, she accepted that she smoked with one £6 packet lasting two weeks. She agreed she could give up smoking in order to pay off the GP's account. She was asked why the father needed a motor cycle, and responded that the cost was cheaper than a bus pass, and that in any event, the last bus home from his work was too late. This was a matter, she said, for the father to decide.
41. The mother acknowledged that the therapy would get harder until it gets better, but she said she could cope with this and the care of the Child, as he would be a positive influence to focus upon, and who would take away her bad thoughts. All parents, she said, struggle and it was all about making the Child her main priority and focus. It may take a week or so in order to get the Child into a good overnight routine, as she had never had his care overnight, but once that routine was established, he would be easier to manage.
42. If she had the care of the Child under a supervision order, she would expect the family support worker to come in at least daily, but not to be there full time. The social worker was recalled to give evidence as to the support the mother said her friend would give her. The social worker told us that the mother had not mentioned this to her before the hearing, but the friend would have to be assessed, as only credible and reliable people could assist in the Child's care.
43. The Court felt it was brave of the mother to give evidence. The Court found her to be composed, and to openly admit the mistakes that she had made in the past.
44. The mother had expressed the same views to the guardian, namely that she and the father were able to meet the Child's needs, and that he should be returned to their care. She did not agree with the parental assessment undertaken by the social worker. She was willing to work with the Children's Service, but told the guardian that she was not keen on having any therapy. However, she had latterly agreed for the social worker to make a referral to Talking Therapies on her behalf, for which she would need a GP.
45. Whilst the father had not refused outright to meet with the guardian, he had not taken up her offer on several occasions to meet with him. From her brief discussions with him during contact, it was clear that he did not share the concerns of the agencies, and believes there are no risks associated with their ability to parent the Child. He feels very let down by the Children's Service, who allowed him to remain in the care of his own parents for as long as he did, and had been returned to them when they had made no changes. By contrast, he and the mother had made changes, in that they got on much better, had a stable home and he has employment. He indicated that he was not open or willing to attend therapy as recommended either by Dr Gillett or by Dr Van Rooyen, in order to address his childhood trauma. He expressed the view that "the past needs to remain in the past". Again, at a recent meeting, he had reluctantly agreed that a referral could be made by the social worker to Talking Therapies.
46. The father had explained to the guardian that he had not attended contact on a regular basis after the first three months because he did not want to bond with the Child, as he knows that he will not be returning to their care, and he did not want to have to deal with the loss of him when the Court made a final decision. He told the guardian that this is the last child that the Children's Service are going to remove from him. When the Child's proceedings are over, he and the mother will be leaving the Island so that the baby the mother is currently carrying is not removed from them also.
47. The guardian had only been able to observe two of the contacts, as the parents had missed many of the contacts she had scheduled in her diary to observe. During the two contacts that she did attend, she observed the Child as not being as settled in contact with his parents as he was in the care of the foster carers, but having said that, and having been the guardian in relation to the first child, she could see there was more of a connection, especially between the mother and the Child, than she had with the first child. She observed the mother holding him in a loving and caring way, being able to smile and make eye contact with him. Both parents were able to praise the Child and comment on his achievements, but neither was consistent in their focus on him; that depended on what else was going on in their lives. In her view both parents had missed many opportunities to build an emotional connection with the Child, and vice versa.
48. The guardian helpfully went through the pros and cons of the various options open to the Court, to which we will come later. She accepted there had been some improvement in the relationship between the parents, with their being able to retain their accommodation and the father continuing to maintain his employment, but sadly, this was not enough. The parents had disagreed with the assessment of Dr Gillett, and therefore requested a different psychologist to undertake their assessment for these proceedings, and Dr Van Rooyen highlighted very similar concerns as had Dr Gillett, with regard to the parents' abilities. Whilst the parents cannot be held responsible for what happened to them in their own childhood, which has led them to become the parents they were to the first child and now to the Child, they can be held responsible for what action they choose to take, to ensure that history does not continue to repeat itself. The recommendations put forward have simply not been followed and both parents struggled to understand what is expected of them, or why there is concern about how they deal with issues.
49. The guardian reached this conclusion at paragraphs 7.15 and 9.1:-
"7.15 Children's Service records indicate that both parents were offered parenting support and advice before [the Child] was born. They were both also given the opportunity to demonstrate their parenting abilities and to improve on these during a ten week parenting assessment. They were offered contact three times a week for three hours. There have been a number of contacts missed by both parents. I accept that [the mother] has been unwell during some of the contact sessions, but on some sessions, the reason has been because she has a cold, hurt her elbow or lack of sleep. Whilst I do not mean to be over critical of [the mother] it has highlighted that her own needs continue to override meeting [the Child's] needs. I do believe that [the mother] has tried during this assessment period but I would not be fulfilling my duties as a Guardian if I did not highlight to the court that if [the Child] was in her full time care she would have been expected to ensure that his needs were met no matter how unwell or tired she felt. The reality is that on a daily basis parents will be unwell, stressed and tired but it does not mean that they do not attend to their children. [The father] has often not attended contact with no or very little explanation given. Both parents tell me that if [the Child] was in their full time care they would cope and would have support. I appreciate that in an ideal world [the father] and [the mother] would have the support of their family and friends if [the Child] was in their care. Sadly, I am left with the impressions that whilst both parents may say that this is the case there actually appears to be very little offered to them. I have to express sadness for [the Child] that neither parent appears to have made the most of this opportunity. It is fair to say that [the mother] has showed more commitment to this process by attending more contact sessions even when [the father] has not."
"9.1 The Children's Service involvement had been well documented in the reports before the Court and statements provided by [the social worker]. I share the concerns raised by [the social worker]. I do not doubt that [the father] and [the mother] love [the Child] and wish to have him return to their care, however, they have not been able to demonstrate that they can consistently place his needs before their own. All assessments have been undertaken, highlighting that neither parent has the ability to consistently meet [the Child's] needs. [The Child] has been in proceedings prior to his birth. He has a right to family life and permanency. Unfortunately this cannot be with his parents or extended family. The Minister's Care Plan is one for long term permanence through adoption outside of the birth family. Sadly, I feel I have no option but to support this plan."
50. The guardian could not support any delay to allow the parents to make the changes suggested by Dr Van Rooyen. Quoting from paragraph 9.2 of her report:-
"9.2....I cannot support this as this would cause delay for [the Child], there are no guarantees that [the father] and [the mother] will engage in the work that is being suggested. I have concerns that [the father] will not. The couple wish to remain as a couple and even if they decided to separate I would question [the mother's] ability to parent on her own. Added to this is the fact that they are expecting another child. All the information before the Court is that they are not able to parent one child let alone two. In my opinion it is too late for them to demonstrate that they can make the changes needed in [the Child's] timescales but that they still have time to demonstrate this for their current unborn child."
51. The guardian made this plea to the future:-
"9.3 I think it is fair to say that whilst proceedings were ongoing for the first child, [the father] and [the mother] had a lot of input from Children's Service, via the social worker or FSW but once proceedings were over they fell through the gap in support services and were left to their own devices until the previous social worker made the referral to MASH. In my professional opinion the same thing cannot be allowed to happen again to these parents and their unborn child. These were two young individuals who have been highly traumatised being asked to go and access therapy on their own. In a sense they were asked to open up a can of worms with no external support, therefore, I have to say that it is not surprising that they shied away from therapy. However, in my opinion this cannot continue. They cannot continue to have child after child removed from their care. This in itself is surely adding to their trauma and feelings of helplessness and loss. They need to be supported in being able to access the right therapeutic services in order to start the healing process, not only for themselves but for their future children. Dr Van Rooyen's assessment has highlighted work which the parents can undertake in order to make them therapy ready. The parents need to buy into this and Children's Service need to ensure that they support and provide the parents with every opportunity to engage with them and undertake the work needed before the birth of their next child."
52. It was put to the guardian by Advocate Tremoceiro that the mother had shown herself open to therapy, but the guardian explained that it was not just the step of initially engaging, but it was a question of her sustaining the therapy, and she was not at all confident that the mother would do so. Though she was more motivated than she was with the first child, other things would get in the way, and of course she was now pregnant again. Many steps had to be taken by her and the Child could not be held waiting. Therapy is not a quick process. She described the waiting time to obtain the services of Talking Therapies as "scandalous". Currently, it took two weeks to four months to get an initial assessment, and a further three to four months to fourteen months for actual services to be made available. There is no preferential treatment and the mother would need to have a GP before a referral could be made at all.
53. Article 24(2)(a) and (b)(i) of the Children (Jersey) Law 2002 ("the Children Law") confirms that a care order may only be made, where the court is satisfied that the child concerned is suffering, or is likely to suffer, significant harm and that the harm is attributable to the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give. The two limbs are alternatives and it is not necessary for the Court to find both past harm and likelihood of future harm to satisfy itself that threshold is met.
54. The applicable principles when determining a care order application were authoritatively stated in this jurisdiction by the Court of Appeal in Re F and G (No 2) [2010] JCA 051. The Court had regard to the guidance in paragraphs 5 and 6 of that judgment. If the threshold criteria are not satisfied, no care order may be made. The Court considered the application for a final care order and an order freeing for adoption in the round, following In the matter of the T Children [2009] JRC 231.
55. In this case it is the minister's position that at the relevant date, namely the 4th December 2018 when the Child was voluntarily accommodated under Article 17 of the Children Law, the Child was likely to suffer significant harm as a result of the care likely to be provided to him by the mother and the father if no order was made, not being what it would be reasonable to expect a parent to give.
56. The mother and the father agreed that the threshold was met, as did the guardian. The Court was satisfied that it was met, in essence and in summary because:-
(i) The parents had shown that they were not capable of parenting the first child safely, with the failure of the residential assessment, the first child being placed with foster carers and then being freed for adoption.
(ii) The therapeutic work required to make the necessary changes, as advised by Dr Gillett, had not been undertaken.
(iii) Both Dr Gillett and of Dr Van Rooyen, had assessed the parents as not being able to safely and consistently parent a child.
(iv) The parents had effectively acknowledged their inability to parent the Child on their own, by agreeing for him to be placed with foster carers shortly after his birth.
(v) The supervised contact sessions had demonstrated the parents' inability to parent the Child safely on their own, with constant reminders being required on basic issues, such as the need to support his head.
(vi) The parents' attendance at contact had become intermittent, and had recently stopped altogether.
57. Being satisfied that the threshold was met, the Court proceeded to consider what order, if any, should be made. The care plan was for a final care order in favour of the Minister and for the child to be freed for adoption. In that respect, the principles are set out at paragraph 8 of the judgment Re F and G (No 2) as follows:-
"For this purpose it is well established that:-
(i) The child's welfare is the paramount consideration (Article 2(1) of the Children Law).
(ii) Any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of the child (Article 2(2)).
(iii) The Court must have regard to the seven matters ('the welfare checklist') set out in Article 2(3).
(iv) The Court must not make an order unless it considers that doing so would be better for the child than making no order (Article 2(5)).
(v) Before making a care order the Court must scrutinise the care plan prepared by the Minister for the child including scrutiny of the Minister's proposals for contact, and invite the parties to comment on them (Article 27(11))."
58. Article 2(1) of the Children Law provides that when a court determines any question with respect to the upbringing of a child the child's welfare shall be the court's paramount consideration.
59. Yousef v The Netherlands [2003] 1 FLR 210 is authority for the proposition that where the Article 8 rights of parents and those of a child are at stake, the child's rights must be the paramount consideration. In In the matter of D (Care Order) [2013] JRC 104 the Court considered the application of Yousef when considering what order to grant. The Deputy Bailiff stated (paragraph 17):-
"It is clear that once the threshold has been passed ... the Court still has an exercise to be completed before resolving on the order which it should make. It must consider whether it is better to make an order than to make no order at all. It must reach that decision proportionately having regard to all Convention rights, not least because the Court itself is a Convention compliant body pursuant to the Human Rights (Jersey) Law 2000. It is well established that the Court makes the least intrusive order that can be justified, having regard to such findings as it has made,"
60. In this case, the mother, supported by the father, was seeking a supervision order or alternatively a delay to allow the proposed therapeutic interventions a chance to work. The position in relation to delay was considered by Lord Nicholls of Birkenhead in Re S (Minors) (Care Order: Implementation of Care Plan; Re W (Minors) (Care Order, Adequacy of Care Plan) [2002] UKHL 10, 1 FLR 815, who stated at paragraphs 95 and 100:-
"95 In this context there are sometimes uncertainties whose nature is such that they are suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application. The uncertainty may be of such a character that it can, and should, be resolved so far as possible before the court proceeds to make the care order. Then, a limited period of 'planned and purposeful' delay can readily be justified as the sensible and practical way to deal with an existing problem."
"100 One further general point may be noted. When postponing a decision on whether to make a care order a court will need to have in mind the general statutory principle that any delay in determining issues relating to a child's upbringing is likely to prejudice the child's welfare: s. 1(2) of the Children Act 1989".
61. The welfare checklist at Article 2(3) of the Children Law provides that the Court shall have particular regard to:
(i) the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding).
(ii) the child's physical, emotional and educational needs;
(iii) the likely effect on the child of any change in his or her circumstances;
(iv) the child's age, sex, background and any characteristics of the child which the Court considers relevant;
(v) any harm which the child has suffered or is at risk of suffering;
(vi) 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
(vii) the range of powers available to the Court under this Law in the proceedings in question.
62. The Child is too young to express any wishes or feelings, but as the guardian said he would be expected to wish to be loved and nurtured in a secure and safe family environment. The Child presented as fit and healthy, and meeting all expected development milestones for a baby of his age.
63. The Child had been looked after consistently by the same foster carers from birth. This was a short-term placement, and it was important that the inevitable change from those foster carers should be to a permanent placement to carers who could parent him safely and meet his needs.
64. Because the Child had been placed with those foster carers from birth, he had not suffered any harm, but as the Court had found, he would be at risk of suffering harm if given over to the care of the parents, who were not capable of meeting his needs without support that equated to co-parenting by the Minister.
65. The range of powers available to the Court comprised the making of no order, a supervision order, a residence order, a care order and a freeing order. The Court was assisted by both the social worker and the guardian in an analysis of the realistic options available to it.
66. The benefits of no order would be that the Child would be cared for by his parents, who alone would have parental responsibility. He would retain a sense of his identity and no longer be a looked after child.
67. The risks to the Child were that the assessments had indicated that neither parent was appropriately and consistently able to meet his needs. The Minister would have limited oversight and there was a limited amount of support that would be offered on a Child in Need basis.
68. In the circumstances, making no order was not appropriate and none of the parties suggested that it was.
69. The benefits of the supervision order were again that the Child would be cared for by his parents, who alone would have parental responsibility and would no longer be a looked after child. He would retain a sense of his identity and the Minister would have a duty to continue to provide the parents and the Child with support.
70. Again, the risks to the Child were that the assessments had indicated that neither parent was appropriately and consistently able to meet his needs, either together or alone. The Minister would have limited oversight and would be unable to provide the high level of monitoring and supervision equating to co-parenting needed to ensure that the Child was safe in the care of his parents. The father had not put himself forward as a sole carer, and in any event, had chosen not to bond with the Child, in order to prevent himself being hurt if the Child was not returned to the care of the parents. The assessments highlighted that the mother could not cope with parenting on her own.
71. A supervision order pre-supposed that the Child could be safely parented by one or both parents, without the Minister having to share parental responsibility. The evidence was that the parents were not capable either solely or jointly of safely parenting the child without support that equated to co-parenting and therefore a supervision order was not appropriate.
72. This was not an option, as no family members had been identified and assessed as suitable.
73. The benefit would be that the Child would remain with foster carers and not be exposed to any risk from the parents, who would continue to share parental responsibility with the Minister. The Minister would have a duty to support and review ongoing contact between the Child and his parents, and the Child would experience a safe placement, in which it would be expected that all of his needs would be met by approved carers.
74. The risks of such an order would be that the placement would not be permanent, as the foster carers could terminate it at any point. There could be a number of moves for the Child, who would remain a looked after child, impacting on his sense of identity and stability. Contact between the Child and his birth family might be limited, and there was a risk that his parents could undermine the placement through applications to discharge the care order. The foster carers would not hold parental responsibility and therefore decisions would still need to be made by the Minister.
75. The Court agreed with the social worker and the guardian that this was not an appropriate order for a child of this age, who should be offered permanence in his placement.
76. The benefits of such an order would be that the Child would be completely removed from the parents without any exposure to harm on their part, and would be provided with an appropriate family, who would be able to meet his needs throughout his life and keep him safe from harm. He would be provided with as normal a family life as possible, with adoptive parents who would advocate for him, and make decisions as any reasonable parent would. The birth parents would not be able to disrupt the placement.
77. Set against this, the Child would be legally separated from his birth family, with whom he would have a limited (letterbox) contact and would need to build bonds and relationships with strangers.
78. Both the Minister and the guardian advocated freeing the Child for adoption, to which the parents were opposed. In the absence of parental consent the Court of Appeal in Re F and G (No 2) held (at paragraphs 74 and 75) that the Court must consider two matters:-
(i) Is the making of a freeing order in the best interests of the child? and
(ii) If so, is the parent's consent being unreasonably withheld?
79. The matter of non-consensual adoption received recent local judicial scrutiny In the Matter of M [2013] JRC 234 applying 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 child where it is necessary within the meaning of the European Convention to do so in order to protect the interests of the child.
80. At paragraph 170 of In the Matter of M the Court referred to paragraph 22 of the Court of Appeal judgment in Re B-S where Sir James Munby says this:-
"22. 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, 135, 145, 198, 215."
81. In the Matter of M at paragraph 172 endorsed three important points emphasised in Re B-S:-
(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.
82. In the Matter of M also confirms at paragraph 173 that in every case where the Court is being asked to approve a care plan for adoption without parental consent, the following requirements set out by the Court of Appeal in Re B-S 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".
83. In Re W (A Child) [2016] EWCA Civ 793 the Court cautioned at paragraph 68 against the use of the phrase "nothing else will do" without linking it to a thorough overall evaluation of the welfare of the child:-
"Since the phrase 'nothing else will do' was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child ... The phrase is meaningless, and potentially dangerous if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare. Used properly, as Baroness Hale explained, the phrase 'nothing else will do' is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime"
84. In considering whether adoption is in the Child's best interests, the paramount consideration of the Court must be the welfare of the Child throughout his or her life, pursuant to Article 3 of the Adoption (Jersey) Law 1961 ("the Adoption Law").
85. Advocate Tremoceiro submitted that the circumstances of the parents had improved and become more stable. He stressed the mother's regular attendance at the contact sessions over the period from the child's birth to the end of February 2019, which showed commitment on her part. She had given evidence well and deserved a chance. In his view, permanent removal was not the only option available to the Court and the child deserved a chance to be looked after by his parents.
86. Advocate Godden argued that the improvement in the circumstances of the parents was sufficient for them to meet his needs. No substance misuse was involved, and there was no domestic violence or abuse. Both parents had indicated a willingness to undertake the therapy advised.
87. The Court acknowledged the improvement in the circumstances of the parents, but in its view, this was not sufficient to outweigh the following:-
(i) Whilst the mother had shown commitment to the Child by attending the contact sessions regularly from the Child's birth to the end of February 2019, attendance became intermittent thereafter, and ceased altogether on her part on 24th May 2019. The father's last attendance at contact was on the 15th May 2019.
(ii) During the contact sessions that the parents did attend, the family support workers had to consistently remind both parents how to care for the child safely.
(iii) The advice of both Dr Gillett and Dr Van Rooyen was consistent, namely that the parents were unable to prioritise the interests of a child in their care, and Dr Van Rooyen had advised that if the Child were returned to the care of the parents, they would need support which equated to co-parenting. Co-parenting in this way was not a viable option for the Children's Service, let alone for the Child.
(iv) Whilst both parents had latterly indicated a willingness to undertake the therapeutic assessment recommended by Dr Van Rooyen, her opinion was that they were not therapy ready and for therapy to be effective, it had to be undertaken willingly. The trauma that both parents had suffered in their own lives would inevitably make this a difficult and lengthy exercise.
88. The reality of the submissions put forward on behalf of the parents was that there should, in effect, be two periods of delay, the first for an initial assessment to be carried out, to see if the parents could commit to long-term therapy. That initial assessment could take up to four months. If that was successful, and there were considerable doubt that it would be, there would then have to be a further delay for the long-term therapeutic work to be undertaken. It was not in the Child's interest to be kept waiting in this way for an exercise to be conducted, the outcome of which was speculative at best and open ended.
89. Having evaluated the options, the Court agreed with the Minister and the guardian that no course other than adoption was in the Child's interests. It was both necessary and proportionate.
90. Freeing the Child for adoption required the consent of the parents, both of whom had parental responsibility, unless that consent could be dispensed with on one of the grounds specified in Article 13(2) of the Adoption Law, namely, in this case, that the parents were withholding their consent unreasonably.
91. In considering whether the parents were withholding their consent unreasonably, F and G (No 2) confirmed that the test is an objective one and a reasonable parent will give great weight to what is best for the child. Quoting from paragraph 60:-
"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".
92. The parents were refusing consent on the same grounds as they opposed the freeing for adoption order, namely that delay to allow a therapeutic assessment and thereafter long-term therapy was an option and it was therefore reasonable for them to refuse consent. We had found that such a delay was not in the interests of the Child, and it followed that, objectively, the parents were withholding their consent unreasonably. We therefore dispensed with their consent.
93. The Court was satisfied that the other formalities required under the provisions of the Adoption Law had been met, and for all these reasons it approved the care plan and contact arrangements, made a final care order in favour of the Minister and freed the Child for adoption.
Authorities
In the matter of Olly (Free for adoption order) [2018] JRC 091.
Children (Jersey) Law 2002.
Re F and G (No 2) [2010] JCA 051.
In the matter of the T Children [2009] JRC 231.
Yousef v The Netherlands [2003] 1 FLR 210.
In the matter of D (Care Order) [2013] JRC 104.
Re S (Minors) (Care Order: Implementation of Care Plan; Re W (Minors) (Care Order, Adequacy of Care Plan) [2002] UKHL 10, 1 FLR 815.
In the Matter of M [2013] JRC 234.
Re B (A Child) [2013] UKSC 33.
Re B-S (Children) [2013] EWCA Civ 1146.
Re W (A Child) [2016] EWCA Civ 793.
Adoption (Jersey) Law 1961