Jersey Unreported Judgments

Adoption - evidence of the Mother's consent

[2020]JRC187

Royal Court

(Family)

21 September 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Austin-Vautier and Averty

 

IN THE MATTER OF EE (FREED FOR ADOPTION)

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW, 2002

Advocate R. Tremoceiro for the Applicant.

Advocate C. Hall for the First Respondent.

Advocate H. J. Heath for the Second Respondent.

judgment

the COMMISSIONER:

1.        On 25^th August 2020, the Court granted the Minister a final order committing EE ("the Child"), aged four months, to the care of the Minister and freed him for adoption with the consent of his mother, ("the Mother").  An issue arose as to the evidence of the Mother's consent.  The child's putative father had denied paternity and declined to be involved in the proceedings.

2.        The Mother has two other children, neither of whom remain in her care, and has previously been found to lack the capacity to parent a child (see In the matter of Barbara (Care Order) [2015] JRC 082) as a consequence of her significant mental health issues (including suicidal ideation) which continue and which mean that she is not able to meet or prioritise the needs of a child.

3.        On 9^th April 2020, the Court granted the Minister an interim care order (In the matter of EE (Interim Care Order) [2020] JRC 085), the issue at that hearing being concerned with whether the child should be placed with foster carers or with the maternal grandmother, who had only put herself forward as a potential carer five days before the hearing and who had not therefore been assessed.  The Child was placed with foster carers on the basis that the assessment of the maternal grandmother would be expedited.

4.        On 30^th April 2020, the Court ordered a psychological and cognitive assessment to be undertaken of the Mother, together with a parenting assessment and drug hair strand testing.

5.        The evidence of the social worker, showed that:

(i)        On 13^th April 2020, the maternal grandmother withdrew from the assessment of her as a potential carer because of her other caring commitments.

(ii)       On 25^th May 2020, the Mother informed the social worker that she knew she could not look after the Child and did not want to put herself through the psychological and parenting assessments.  Advocate Hall subsequently confirmed the Mother's instructions to withdraw.

(iii)      The Mother's attendance at the contact sessions with the Child became increasingly erratic, despite encouragement and the offer of additional support, and at her request, she had a final "goodbye" contact with him on 24^th July 2020.

(iv)      On 14^th August 2020, Advocate Hall confirmed to the Court that the Mother would not be contesting the final hearing, the only issue being whether she would voluntarily give her consent to the Child being freed for adoption or whether she would wish to rest upon the wisdom of the Court.  Advocate Hall requested that the Mother be excused from attending the hearing, as she was currently in the United Kingdom staying with a friend, which had been beneficial for her mental health, and Advocate Hall and the Mother's mental health advocate considered returning to the Court for the hearing, which the Mother would find very difficult and felt unable to go through, would be detrimental to her mental health.  That application was granted and at the hearing on the 25^th August, 2020, the Court ordered that the proceedings should take place in the absence of the Mother, pursuant to Rule 17 of the Children Rules 2005. At the hearing Advocate Hall confirmed that the Mother consented to the Child being freed for adoption.

6.        The Court had no difficulty in agreeing with Advocate Hall and Advocate Heath, for the Child, that the threshold under Article 24(2) of the Children (Jersey) Law 2002 was met.  The Mother had withdrawn from her assessments and confirmed that she could not care for the Child and the putative father had declined any involvement in his care.  In these circumstances, the Court was satisfied that the Child was likely to suffer significant harm attributable to the care likely to be given to the Child if a care order was not made, not being what it would be reasonable to expect a parent to give the Child. 

7.        In terms of the welfare stage, the Court was guided by the principles set out in the Court of Appeal decision of Re F & G (No 2) [2010] JCA 051 at paragraph 8.  The guardian and the social worker in their reports took the Court through the options available for the Child.  They rightly, in our view, discounted the Child remaining in foster care on a permanent basis, as he needs and deserves permanence and a private family life without the intervention of the government.

8.        Whilst there were two members of the wider family (cousins) who had both been positively assessed as potential carers, neither were prepared to share parental responsibility with the Mother, and indeed, neither of them wished to stand in the way of the Child being adopted by the parents who had adopted the Child's half sister so that they could grow up within the same family.  These prospective adoptive parents were described by the social worker as financially stable, grounded, settled and extremely child focused.  The Child's half sister was reported as wanting a baby sibling, which would be "a dream come true for her".  The Adoption Panel understandably decided that the Child's placement with these prospective adoptive parents through adoption should be given priority.

9.        The parties and the guardian were in agreement, therefore, with the Minister's care plan for a final care order and for freeing the Child for adoption and the Court had no hesitation in agreeing. Having considered the principles set out in the case of In the matter of M [2013] JRC 234, the Court concluded that freeing the Child for adoption was both necessary and proportionate in order to protect the interests of the Child.  It was the only viable option.

The Mother's consent to the freeing order

10.      Advocate Hall informed the Court that she had been instructed by the Mother, an instruction confirmed by telephone that morning, that she consented to the Child being freed for adoption.  That gave rise to a concern on the part of the Court as to whether an oral instruction sufficed as evidence upon which the Court could properly rely. 

11.      Article (12)(1) of the Adoption (Jersey) Law 1961 ("the Adoption Law") provides as follows:

"12     Freeing child for adoption

(1)       When, on an application by the Minister, the Court is satisfied in the case of each parent or guardian of the child that -

(a)       the person freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order, or

(b)       the person's agreement to the making of an adoption order should be dispensed with on a ground specified in Article 13(2),

the Court shall make an order declaring the child free for adoption.

(2)       No application shall be made under paragraph (1) unless -

(a)       it is made with the consent of a parent or guardian of a child; or

(b)       the Minister is applying for dispensation under paragraph (1)(b) of the agreement of each parent or guardian of the child, and the child is in the care of the Minister."

12.      Pursuant to Article 12(5), the effect of freeing a child for adoption is to give the Minister sole parental responsibility for the child "as if the order were an adoption order and the Minister was the adopter".

13.      A freeing order under Article 12(1) therefore severs entirely the tie between the parent and the child and a decision by a parent to consent to such an order is a decision of the utmost importance, both to the parent and to the child.  It is understandable, therefore, that Article 12(1) requires the Court to be satisfied that the consent is given:

(i)        freely,

(ii)       with full understanding of what is involved,

(iii)      generally and unconditionally.

14.      Whilst the Court did not doubt that Advocate Hall had discussed the matter fully with the Mother and given her appropriate advice, an instruction given through an advocate in Court does not constitute evidence before the Court, and it was arguable, therefore, that the Court did not have evidence as to the Mother's consent before it.

15.      We noted that Article 12(1) refers to the mother agreeing to the making of "an adoption order" and not a freeing for adoption order under Article 12(1).  An adoption order is defined under Article 1(1) of the Adoption Law as being an order made under Article 10(1) which empowers the Court to make an order authorising an applicant to adopt a child.  This is relevant as it brings into play Article 14 of the Adoption Law which provides:

"14     Evidence of consent of parent or guardian

(1)       Where a parent or guardian of a child does not attend in the proceedings on an application for an adoption order for the purpose of giving his or her consent to the making of the order, a document signifying his or her consent to the making of such an order shall -

(a)       if the person in whose favour the order is to be made is named in the document or (where the identity of that person is not known to the consenting party) is distinguished therein in the prescribed manner; and

(b)       if the document is attested by a person of any such class as may be prescribed,

be admissible as evidence of that consent and of the signature of the document by the person by whom it is executed:

Provided that a document signifying the consent of the mother of a child shall not be admissible under this Article unless the child is at least 6 weeks old on the date of the execution of the document.

(2)       For the purposes of this Article, a document purporting to be attested in the manner provided by paragraph (1) shall be deemed to be so attested, and to be executed and attested on the date and at the place specified in the document, unless the contrary is proved."

16.      Rule 6(4) of the Adoption Rules 1962 provides that a document signifying the consent of the parent for the purposes of making an adoption order for the purposes of Article 14 of the Adoption Law shall be in Form 6 and Article 6(5) sets out who may attest that document.  We will not set out the whole of Form 6, but paragraph 1 provides as follows:

"1.      I understand that the effect of an adoption order will be to deprive me permanently of my rights as a parent/guardian and to transfer them to the applicant(s) ... and in particular I understand that, if an order is made, I shall have no right to see or get in touch with the child or to have the child returned to me."

17.      Article 14 provides that a document duly executed by a parent not attending the proceedings is admissible as evidence of consent, but does not preclude other evidence being admitted.  In this case, the Court had no evidence before it other than the submission of Advocate Hall that the Mother had instructed her to consent.  A further concern was that the Court was on notice that, whilst no issue as to the capacity of the Mother to give her consent had been raised, she was suffering from mental ill health. 

18.      At the same time, the Court was very respectful of the fact that the Mother had put the interests of the Child first by giving her consent through Advocate Hall and was doing her best to assist in the process.  That said, the arguable lack of evidence as to all of the elements of her consent under Article 12(1)(a) gave rise to an element of uncertainty as to the reliability of a freeing for adoption order made by the Court, which was not in the Child's interests.  The possibility of delaying the proceedings so that a Form 6 could be produced and taken to the Mother in England for execution before a qualifying witness was canvassed, but that would lead to delay which would be likely to prejudice the Child's welfare, contrary to Article 2(2) of the Children Law.  Neither the Minister nor the guardian supported any delay in the proceedings.

19.      What the Court did have was cogent evidence that the Mother was incapable of caring for the Child, which under Article 13(2)(g) of the Adoption Law is one of the grounds upon which the Mother's consent can be dispensed with.  To the extent, therefore, that the evidence of the Mother's consent might be considered lacking, the Court could dispense with that consent, pursuant to Article 12(1)(b).

20.      The making of a freeing for adoption order was in the best interests of the Child for the reasons set out above and accordingly the Court made a final care order in favour of the Minister and then freed the Child for adoption, on the basis that the Mother consented pursuant to Article 12(1)(a) of the Adoption Law, but in the alternative and to the extent that evidence of her consent might be considered lacking, the Court dispensed with her consent pursuant to Article 12(1)(b) of the Adoption Law, on the grounds that she was incapable of caring for the Child, being one of the grounds mentioned in Article 13(2)(g) of the Adoption Law.

21.      All of the other requirements of the Adoption Law were met, but in particular:

(i)        Pursuant to Article 12(3), the Court was satisfied that it was likely that the Child would be adopted. Indeed, it was indicated by the social worker that the process of matching the Child with the prospective adoptive parents would start this October.

(ii)       Pursuant to Article 12(7) of the Adoption Law, there was no one claiming to be the Child's father.  The putative father had declined to be involved and the Court was satisfied that he had no intention of requesting registration as the Child's father, or of applying for parental responsibility or a residence order.

22.      As for contact between the Mother and the Child, the care plan provided for letterbox contact on a once annual basis, to be facilitated by the letterbox service provided by Fostering and Adoption.  Advocate Hall asked for two letters a year to be sent by the adoptive parents, which she said would help the Mother and give her reassurance as to the Child's ongoing welfare.  That was not supported by either the Minister or the guardian, and in any event the Court was not prepared to place any pressure upon the adoptive parents to provide additional contact in this way when they were not before the Court and when it would be a matter for them to consider as the Child's then parents - see In the Matter of F (Care Order) [2013] JRC 064 paragraphs 72-81.

Authorities

In the matter of Barbara (Care Order) [2015] JRC 082. 

In the matter of EE (Interim Care Order) [2020] JRC 085. 

Children Rules 2005. 

Children (Jersey) Law 2002. 

Re F & G (No 2) [2010] JCA 051. 

In the matter of M [2013] JRC 234. 

Adoption (Jersey) Law 1961. 

In the Matter of F (Care Order) [2013] JRC 064