Care proceedings - application for a care order and a freeing order.
Before : |
Sir William Bailhache, Bailiff, and Jurats Crill and Austin-Vautier. |
Between |
Minister of Health & Social Services |
Applicant |
And |
A (the Mother) |
First Respondent |
And |
B (the Father of Spencer) |
Second Respondent |
And |
Spencer and Jay (acting through their guardian Sue Clark) |
Fourth Respondent
|
And |
C (the Father of Jay) |
Fourth Respondent |
IN THE MATTER OF SPENCER AND JAY (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate J. A. E. Kerley for the Minister.
Advocate B. J. Corbett for the Mother.
Advocate C. R. G. Davies for the Second Respondent
Advocate C. Hall for the Fourth Respondent
Advocate C. R. Dutôt for the Children
judgment
the bailiff:
1. Spencer (not his real name), is an 11 year old boy whose parents are the First and Second Respondents. Jay (not his real name), is a 3 years old boy whose parents are the First and Fourth Respondents. The Minister applied under the Children (Jersey) Law 2002 (the "Law") for a Care Order and Freeing Order in respect of Jay and the Minister supported an application by the Second Respondent for a Residence Order in respect of Spencer. Indeed all parties supported the latter application. The application for a Care and Freeing Order in respect of Jay was originally supported by all parties except the Mother, who agreed the Care Order but not the Freeing Order. At the hearing of this matter which took place on 24th and 25th June, the Mother changed her position, and consented to the Freeing Order. The Court concluded that threshold was passed and that the Minister's application in respect of Jay for Care Order and a Freeing Order should be granted, and that decision was announced with reasons reserved. The Court also made the Residence Order in respect of Spencer, as agreed. Reasons were reserved and this judgment contains those reasons.
2. There is no dispute about threshold. The Minister's threshold document indicated that sadly the children were likely to suffer significant physical and emotional harm as a result of the Mother's long-standing dependence on substances and alcohol. Her alcohol consumption has been very high. In October 2018, Spencer described an incident in 2017 when he put his brother to bed as his Mother was under the influence of alcohol and he could not wake her. Spencer told the social worker that he thought she was dead. He also reported to her that in October 2018 he had taken twenty-five empty wine bottles to the bottle bank. The Mother has had a long-term history of substance misuse, addiction and dependency on alcohol since she was 17. This has had a bearing on all aspects of her emotional, interpersonal and parenting functioning. Spencer has been placed on the child protection register four times previously and Jay twice. Dr van Rooyen, the professional psychologist giving expert evidence before us, told us that in her view Spencer's educational functioning has been negatively impacted by his levels of anxiety and anger directly related to concerns associated with his Mother's alcohol misuse. Jay also has been struggling not least because he has not been able to get out for activities with other children. The Mother has had difficulty in attending toddler groups with Jay, albeit she did complete a parenting course in September 2017.
3. As we say, threshold was not denied and we were satisfied that both children have had and were likely to have their health and development significantly harmed by the addictions which have afflicted the Mother.
4. There is no doubt, according to Dr van Rooyen, that the Mother was capable of giving positive parenting but it was the inconsistency in doing so that caused the particular problem. When Dr van Rooyen saw Spencer at school, he had nothing positive to say about her. Dr van Rooyen considered that the Mother's own attachment problems affected her ability to empathise with the children and she did not realise the effect that her substance and alcohol abuse had upon Spencer in particular. He was likely to see it like this: if by her conduct she was indicating a wish to terminate her own life, it meant that she did not want him. In her view, the Mother needed to have six months' total abstinence before she could engage in special therapy and during that six months she would require an enormous amount of support. The emotional distress needed to be dealt with if the therapy was to be effective. There must be full commitment and full engagement. After three months of therapy, then that might be translated into day-to-day living. The whole process of making any improvement would take at least twelve months. In Dr van Rooyen's view, it is not that the Mother does not want to get past her difficulties but there were many factors in her life that were likely to trip her up because her issues had not previously been addressed. The pattern of reliance on substances and alcohol would be repeated if these issues were not addressed. The Mother's history over at least the last eight years showed that there had been a series of false starts, of promising beginnings followed by relapses. The most recent example was the Mother's admission to a residential rehabilitation centre on 17th May, 2019, to participate in the twelve week residential programme only to end that programme on 27th May, 2019.
5. Spencer has been in the care of the Second Respondent since November 2018. He has thrived with him, and his developmental needs have been well met. He is doing well in school and no needs have been identified for him since he has been in his father's care. The Minister's proposal is that he will remain in his Father's care for the rest of his minority, and that a Residence Order should therefore be made.
6. As to contact between Spencer and his Mother, this was something which could be left to the Father and Mother to determine between them. Spencer is currently having supervised contact with both his Mother and his brother. The Mother will continue to share parental responsibility for Spencer with the Second Respondent, although the latter, through the Residence Order, will have a final say about the living arrangements for Spencer. The recommendation to the Second Respondent was that contact between Spencer and his Mother should be supervised by the Second Respondent until the Mother has addressed her issues. It was noted that the Second Respondent intended to take advice from the different agencies working with Spencer from time to time, including the Children's Service if appropriate.
7. There was further recommendation from the Minister that Spencer should ideally have direct contact with Jay, but the latter's need for permanence may override that. There was a substantial risk of placement breakdown for Jay if direct contact took place, and therefore the Minister's recommendation for sibling contact was that it should take place by letterbox once a year.
8. The Court has given careful consideration to this. We accept that ideally sibling contact would be in their best interests in principle, but we consider the risks to Jay from such contact are too high at present. For these reasons, we agree the Minister's proposal in relation to sibling contact.
9. We were invited to send a letter to Spencer to explain our thinking in relation to the arrangements for Jay as well as our thinking in relation to Spencer's conduct in explaining to social services the difficulties that his Mother is experiencing. We agree that might be helpful and will do that.
10. Jay was born in November 2015 with neonatal abstinence syndrome - the Mother self-reported that she was withdrawing from Suboxone. He was required to be kept in hospital for at least a month after his birth, and was in pain at birth requiring a period of intensive care thereafter.
11. Dr van Rooyen said that Jays' experience to date was unsatisfactory. He did not cry when he was needy, showing also an inability to be full from eating. He has no concept about how to regulate his eating process. When a child has avoidant or withdrawn responses that tends to indicate that attachment is not secure, because the child is not confident that his needs will be met. Despite this, Jay has a strong bond with his Mother. Since he had been placed with foster carers in November 2018, he had become less obsessed with food and he now looks to them to ensure his needs will be met. Dr van Rooyen described him as emotionally on hold, and it was unlikely that he would have a secure attachment to his foster parents. At the date of the hearing, he expected to go home to his Mother, and his approach would be that as she was apparently looking better, he should be going back to her. Dr van Rooyen expressed the view that he would have to cope with two losses if a Care Order were made and he was freed for adoption. It was very much a case of how he will be managed. It would take him a long while to settle, and the change would certainly define the rest of his life.
12. Dr Englebrecht is the consultant psychiatrist attached to the Alcohol and Drug Service and Adult Mental Health Service. She told us that as of October 2018, the Mother disclosed she was drinking four bottles of wine a day. In March 2019, the Mother was admitted to the General Hospital having taken an overdose of antidepressants. It looked intentional. Her last contact with the Mother had been on 13th May when the Mother told the Key Worker that she was intending to attend the residential rehabilitation centre.
13. The Mother has a long history of concerns being expressed, intentions for change being formed, efforts being made followed by relapse. Dr Englebrecht supported the Minister's application for a Care Order and a Freeing Order. In her view the prognosis for change, having regard to all the information provided, was poor and rehabilitation was unlikely to be successful.
14. The Mother did not give evidence before us. However, she was present throughout the entire hearing, despite being very naturally upset and affected by everything that was said. Through her counsel, she accepted that threshold had been passed and that a Care Order ought to be made in respect of Jay. She expressed an intention to carry on in her efforts to escape addiction and alcohol dependence and she accepted that her endeavours would, if successful, achieve that success outside the timescales which affected Jay.
15. Although initially the Mother was against the possibility of a Freeing Order, Advocate Corbett told us in summing up that the Mother now accepted that she should not put obstacles in Jays' way to prevent him developing a good life, and accordingly she would consent to a Freeing Order if the Court thought that was appropriate. She did not wish to give him up and she wanted him to know that that was her position.
16. We have the greatest sympathy for the predicament in which the Mother finds herself. As is so often the position in cases like this one, it is not her fault that she is in the position she is. She has had her own problems since being a young person and these have resulted in her having the dependencies which she now has. We accept that she wishes to rid herself of those dependencies and we very much hope that she will be able to do so. On the other hand, however, we accept the expert evidence put before us that it will take at least twelve months and probably longer before we will know if she has been successful in that respect. These next twelve months are vital for Jay. He needs to have a fresh start because we cannot be satisfied on the balance of probability that the Mother will be successful in overcoming her difficulties during the present period, much though we hope she will be. We would like to commend her for her bravery and for putting her children first in these very difficult proceedings for her.
17. The Fourth Respondent has also consented to the Care Order and Freeing Order being made. At the time these proceedings started he did not have Parental Responsibility for Jay. He does not have a direct relationship with Jay either but he submitted to us a moving final statement, and he hoped that what he has written should be made available to Jay when he is eighteen. He thought that a goodbye session with Jay would be good for his life history and, although he was in prison at present, the Fourth Respondent intended to make a bail application in order that a goodbye contact session could be held. In the circumstances, although it was largely theoretical, given the order which we were going to make, we granted the Fourth Respondent Parental Responsibility in respect of Jay, and noted his consent to the Care Order and the Freeing Order.
18. Threshold having been passed, we have had regard to the questions required of us under the Law. The first such question is whether no order is a possibility, upon the basis that one should strive to make no order unless making no order is worse than making a particular order. We are completely satisfied that no order would be inappropriate in this case. The Mother desperately needs attention for her problems, and it is not fair to either of the children that they should be left with the risk of suffering significant harm because the Court makes no order to the contrary.
19. We are also satisfied that the Minister needs to have Parental Responsibility for the children and that a Supervision Order would be quite inadequate for their protection.
20. As far as Spencer is concerned, the application by the Second Respondent for a Residence Order in his favour is agreed by all parties. We are pleased to make that order. It is plain that whatever problems Spencer has had in the past, the move to the care of his father has been positive for him. He will need continuing support over the years to come, as will indeed his father, but we have no doubt that the Residence Order is in his best interests. Where possible it is desirable that a child be in the care of his natural parents or parent. All the information we have suggests that this is the best outcome for Spencer and we endorse it.
21. We turn next to Jay, and similarly have regard to the welfare test under Article 2 of the Law.
22. Jay is too young to be able to express his views, but we have no doubt that although there seems to be a strong bond between him and his Mother, he is young enough to be given the opportunity of a fresh start with a new 'forever' family. If he were old enough to express a view, we are sure that it would be that he should have a secure and permanent upbringing in a family with whom he can identify.
23. Jay is a physically healthy boy. He was born with neonatal abstinence syndrome but this does not appear to have impacted on his development. As to his emotional needs, he has been exposed to neglectful and abusive care for all of his life. So far, as the guardian put it to us, he has been protected from the full impact of this abuse on his emotional development. However a significant indicator of his emotional needs is that when placed in foster care, he needed to eat constantly and his life revolved around securing food for himself. The guardian told us that he would continue to eat despite being full, and this was endorsed by Dr van Rooyen. This is behaviour which the guardian associated with neglect. As to his educational needs, he attends nursery now and he has settled well and is able to engage, play and make friends. He will clearly benefit from having a stable education placement and a permanent and stable home.
24. It is likely that this will be distressing for Jay, and all the professionals agree that it needs careful planning. A change of placement from his foster carers to his prospective adoptive home will be a significant change and, as Dr van Rooyen said, will define his life.
25. We are in no doubt that neither the Mother nor the Fourth Respondent are capable of meeting Jays' needs. The Fourth Respondent has only met Jay two or three times, is currently in prison, and cannot be reliably available to Jay over the foreseeable future. The Mother, for all the reasons already given, is in serious need of psychological therapy and long-term abstinence from substance and alcohol. During his time in foster care, the risk of harm to Jay has been much reduced.
26. For all these reasons, we were satisfied that the Minister's application for a Care Order was well founded and ought to be granted.
27. The Minister's application in his Care Plan is the freeing of Jay for adoption. We reiterate what has been said so often in the past. An order freeing a child for adoption on a non-consensual basis is an extreme order to make and In the matter of M [2013] JRC 234, the court endorsed three important points of principle:-
(i) The child's interests, which of course the court must consider, include being brought up by the natural family, ideally by the natural parents or at least one of them, unless the overriding requirements of the child's welfare make that impossible;
(ii) The court must consider all other options before coming to a decision;
(iii) Before making a Freeing Order, the court must be satisfied that there is no other practical way of the authorities providing the requisite assistance and support. The court should explore rigorously whether, in seeking a Care Order and a Freeing Order, the Minister is making that application only because he is unwilling to provide the resources for otherwise necessary support.
28. Adopting those tests, the analysis we have to go through is whether there is any other practical alternative to a Freeing Order. In the case of Jay, there is no member of the Mother's family nor of the Fourth Respondent's family to have care of the child. The Fourth Respondent accepts that he cannot care for the child, as indeed does the Mother. We very much hope that she will take the opportunities now available to her to address the difficulties in her own life and it is very much in her interests that she does so; but even assuming she can, the likelihood of her being able to do so within a timeframe which works for Jay is regrettably too slim to be considered.
29. In circumstances where neither parent nor their families can look after Jay, what then are the options for him? They are either long-term fostering, placement in some organised care home or adoption. Even if the parents had not consented to the proposed order freeing for adoption, we would have considered that that was the right course to follow. The fact is that they have consented, and that issue does not arise, but we take the opportunity of saying we think it is the right conclusion.
30. Accordingly we gave judgment in favour of the Minister and made a Care Order in respect of Jay, approving the Care Plan and freeing him for adoption.
31. We gave thought to the question of whether there should be an open or closed adoption. We have reached the conclusion that we accept the Minister's proposals in that respect. There should be no contact with either parent unless his prospective adoptive parents agree; the critical point is that Jay should have a new forever family who will provide him with the long-term care, both physically and emotionally, that he will need. All efforts should be advanced to removing potential impediments to that placement.
32. We well understand that, particularly as he gets older, Jay may wish to know more about his birth parents and his sibling. Once again the key question for us is whether any arrangements made for contact with his sibling are likely to affect the placement in which he is put. We think the risks of that are too high and we endorse the Minister's submission that contact with Spencer should be limited to letterbox contact once a year. If in the fullness of time it becomes sensible for that to be revisited, then the adoptive parents may well do so, and will no doubt take all appropriate advice at that time.
33. Order accordingly.
Authorities
Children (Jersey) Law 2002.