High Court of Justice in Northern Ireland Family Division Decisions

1. These applications concern two children, namely LF born on 5 October 1997 and ELF born on 18 March 1999. The first application by the Craigavon and Banbridge Community Health and Social Services Trust (“Craigavon Trust”) is for an order freeing LF for adoption without parental agreement pursuant to Article 18 of the Adoption (Northern Ireland) Order 1987 (“the 1987 Order”). The second matter arises out of an application by the South and East Belfast Health and Social Services Trust (“the South and East Trust) seeking a Care Order under Article 50 of the Children (Northern Ireland) Order 1995 (hereinafter called “the 1995 Order”) in relation to ELF and in addition an application under Article 18 of the 1987 Order freeing ELF for adoption without parental agreement.

2. In the case of ELF, the respondent to the application for the Care Order is JKF (Called KF in the title to the proceedings. The names KF and JKF are thus used interchangeably in this judgment.) who is the mother of ELF, and VB, the putative father of ELF. JKF is the sole respondent to the application under Article 18 of the 1987 Order in the case of ELF. VB has brought an application in respect of ELF for a Residence Order under Article 8 of the 1995 Order. JKF is the sole respondent in the application by Craigavon Trust. If either of the Trusts is successful in their applications, both JKF and VB apply for a Contact Order pursuant to Article 8 of the 1995 Order in respect of the relevant children in each case.

3. The statutory provisions governing applications for adoptions and applications to free for adoption are to be found in the 1987 Order.

4. Article 9 sets out the duty to promote the welfare of the child as follows:

5. Article 16 states where relevant:-

6. The freeing of a child for adoption without parental agreement is dealt with in Article 18 which insofar as is relevant is as follows:

7. Article 3 of the Children (Northern Ireland) Order 1995 provides that where a court determines any question with respect to the upbringing of a child “child’s welfare shall be the court’s paramount consideration”. Article 8(3) defines for the purpose of that Order “family proceedings” as including any proceedings under the Adoption Order.

8. In either freeing or adoption proceedings, the court has the power to dispense with the parent’s agreement to adoption on one or more of the six specified grounds set out in Article 16(2) of the 1987 Order. The ground relied on by the Trust in this case is that the parent is withholding her agreement unreasonably. Dispensing with agreement to adoption involves the court on a two-stage process:

9. These two stages are separate and must be considered by the court in this sequence. The consideration of whether parental consent should be dispensed with must be undertaken and decided at the time when the freeing for Adoption Order is made.

10. If I come to the conclusion that adoption is in the best interests of the child, I must turn then to consider whether or not the Trust has satisfied me that JKF is withholding her agreement unreasonably. The leading authority on the meaning of the ground and the test that the court should apply is the House of Lord’s decision in Re W (an infant) (1971) 2 AER 49. During the course of the leading opinion, Lord Hailsham described the test in this way:

11. I have found assistance in this case in a number of authorities and in particular Re C and L in the Court of Appeal in Northern Ireland (unreported 8 February 2000), and an unreported decision of Higgins J in Re W (unreported 13 December  1992). In addition the principles dealing with these applications are set out helpfully in Hershman McFarlane, Children Law and Practice, Section H at paragraph 124. I consider that this author accurately sets out the principal components of the test of unreasonableness as follows:

12. The above mentioned principles govern the freeing applications referable to both children. LF is already subject to a Care Order made under Article 50 of the 1995 Order on 25 June 1998. The South and East Belfast Health and Social Services Trust seek a similar order in the case of ELF. Under Article 50 of the 1995 Order, a Care Order may be made only if the court is satisfied:

13. On granting the application of any authority or authorised person, the court will make an order placing the child with respect to whom the application is made in the care of a designated authority or putting him under the supervision of a designated authority. A Care Order therefore cannot be made unless the threshold criteria have been satisfied.

14. If the threshold criteria are satisfied, the court must then consider whether an order should be granted and if so what type of order, using the principle that the child’s welfare is the paramount consideration (see Article 3(1) of the 1995 Order), having regard to the matters set out in the statutory welfare checklist at Article 3(3) of the 1995 Order. The court must not make any order unless it considers that doing so would be better for the child than making no order at all (see Article 3(5) of the 1995 Order). I also note that before making a Care Order with respect to any child, the court must consider the arrangements which the local authority has made or proposes to make for affording any person contact with a child who is in the care of the local authority and invite the parties to comment on those arrangements. The court will also scrutinise the relevant authority care plan for the child.

15. The statutory checklist at Article 3(3) to assist the court in determining what is for the child’s welfare is as follows:

16. My attention has also been drawn in this context to Re M (a minor) (Care Order: threshold conditions) (1994) 2 FLR where the House of Lords held that where, at the date of disposal, interim protective arrangements had been continuously in place, the relevant date was the date upon which the local authority initiated protective proceedings. An Emergency Protection Order was obtained in the case of ELF on 19 March 1999.

17. VB has, as noted above, applied for a Residence Order under Article 8 of the 1995 Order with reference to ELF and a Contact Order. In considering the application for a Residence Order under Article 8 of the 1995 Order, the court is initially governed by the general provisions of Article 3 of the Order. In the first place, the child’s welfare shall be the court’s paramount consideration. This rule has its roots in the practice of the Court of Chancery and decisions in legislation have only served to strengthen and develop it as a principle. In considering a not dissimilar provision in Section 1 of the Guardianship of Infants Act 1925, namely that “the courts will regard the welfare of the infant as the first and paramount consideration”, Lord MacDermott defined that phrase in the “Spanish boy” case (1970) AC 668 page 710 as follows:

18. The Order also provides a statutory checklist at Article 3(3) to assist the court in determining what is for the child’s welfare and I have already set out the contents of Article 3(3) with reference to the Care Order application. I must consider this welfare checklist when considering whether to make an Article 8 order. I must also remind myself in this context that when considering whether or not to make one or more orders under the 1995 Order with respect to a child, the court shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all. VB has been refused an application for parental responsibility by Higgins J.

19. Article 8 of the 1995 Order defines a Contact Order as –

20. I must also bear in mind the correct approach to follow in determining the respective claims of a natural parent and a third party to care for a child. These have been laid down in decisions such as Re D (Care: natural parent presumption) (1999) 1 FLR 134 and Re W (a minor) (Residence Order) (1993) 2 FLR 625 (and the cases referred to therein). The correct approach is to consider the natural parent as potential carer first and not simply to balance the respective merits and demerits of the competing households. Nonetheless the strength of the supposition in favour of the natural parent may be countered by other factors especially the length of time that the child has been with other carers. I have considered Re P (Section 91(14) (Guidelines) (Resident and Religious Heritage) (1999) 2 FLR 573 where the Court of Appeal stressed that on a variation application, the status quo has real validity and the question to be answered is why the child should be moved.

21. Very properly, given the facts of this case, counsel did not invoke to any material degree the European Convention on Human Rights. As the Master of the Rolls has made clear in Daniels v Walker (Practice note) 2000 1 WLR 1382 at page 1387, it would be disappointing if the European Convention on Human Rights were to be routinely paraded in cases of this nature as makeweight points or if they were to be in every case extensive citation of authorities from the European Court of Human Rights particularly where reliance is placed on cases pre-dating the 1987 and 1995 legislation. This theme has been reiterated in Re F (Care proceedings: contact) reported in Family Law, October 2000 at page 708. Nonetheless I have considered whether any such issues do arise. In particular I must consider whether or not pursuant to Article 8 of the European Convention on Human Rights a granting of a Care Order in the case of ELF and the granting of a Freeing Order in both cases and finally removal of contact is liable to interfere with a parent’s family life and requires justification with regard to the best interests of the child. I have to consider in the freeing applications whether the child’s freeing for adoption without the consent of JKF and VB constitutes interference with their right to respect for family life which is disproportionate to the best interests of the child. I am satisfied that domestic authorities enjoy a wide margin of appreciation with regard to the circumstances in which they can overrule a parent’s objections to adoption. Ursula Kilkelly (the Child and European Convention on Human Rights), has dealt with this matter at page 298 of the first edition:

22. I should also say that, although the matter is not yet perhaps beyond plausible dispute, I am prepared in this instance to adopt the principle that the presumption in favour of family life has now been extended finally to unmarried fathers and their children in light of the decision in Soderback- v Sweden , judgment of 28 October 1998 BCHR. So far as the contact issues are concerned, again the rights of JKF and VB require to be considered under Article 8. However, once again the State does enjoy a wide margin of appreciation in determining the proportionality of measures taken in the child’s best interest. In essence, consideration of what is in the best interests of the child is in every case of crucial importance in this area. (Csee L v Finland 2000 2 FLR 118, ECHR and Scott v UK (2000) 1 FLR 958.) Accordingly I have taken into account the European Convention on Human Rights in arriving at this decision and it has informed the conclusions which I have reached and to which I advert subsequently in this judgment.

23. Before turning to the factual matters in this case, I must remind myself of the burden of proof which is applied by all courts in cases concerning the welfare of children, namely that of proof on the balance of probabilities (the civil standard). I outlined the principles governing this aspect in Re W v KS and Foyle Health and Social Services Trust (unreported June 1999). At page 19 of my judgment I said:

24. Thereafter when dealing with the Care Order application I must consider the two-stage approach suggested by Butler-Sloss LJ in Re H; Re K (minors) (Child abuse: evidence) (1989) 2 AER 313 at 325:

25. Thus at the first stage, the balance of probabilities is a standard which must be applied to the determination of the facts to be found. It is the party who relies on the allegations of any form of harm to a child to establish the facts of past harm on the balance of probabilities. At the second stage, the court is involved in the assessment of possibilities, not probabilities, based upon the facts found to have been proved. The assessment of risk of future harm cannot be based upon mere suspicion of past harm but only upon facts which have been established to the requisite standard. In Re H and others , mentioned above, the House of Lords concluded that whilst the balance of probabilities standard applies to consideration of each element of the threshold criteria for the making of a Care Order, when considering the likelihood of harm, the court is evaluating whether it is proved that there is a real possibility that the child must suffer significant harm. Having heard and considered the evidence, and decided on disputed questions of relevant fact upon the balance of probability, the court must reach a decision on how highly it evaluates a risk of significant harm befalling the child, always remembering that the burden of proof is upon the person asserting the harm.”

26. I turn now to consider the findings that I have made in this case.

27. This ties in with the detailed analysis of her background outlined to me by Ms McConkey, a social worker of the After Care Team, and contained in her reports. It is clear from these that even throughout her first training school order in Rathgael between 1992 and 1995, JKF was already involved in numerous incidents of absconding, sniffing glue, self injury, frequently cutting her wrists and arms. She overdosed on tablets several occasions requiring admissions to the Ulster Hospital, Dundonald. Regretfully this pattern continued. Dr Lynch records her having a long history of drug abuse, alcohol abuse and solvent abuse from an early age. Various attempts to get her to address her drug habit in the past had been unsuccessful. Dr Lynch concluded:

28. Dr Lynch concluded his observations as follows:

29. I consider that this assessment is both informed and accurate. It was underlined and corroborated by the evidence of:

30. Regretfully this reflects the opinion formed by Dr Loughery, consultant psychiatrist, and recorded in the report to Ms Mildred Hollywood on 17 June 1998 and which was before me. In the course of that report Dr Loughery recorded:

31. This is precisely the pattern that has been observed by Dr Lynch and Dr Best and is clearly not abating as the years have gone on.

32. Finally in this context, I have read the reports of Angela Lynn of 18 May 1998 and 16 May 1999 as well as having the benefit of her evidence before me. She is a clinical nurse manager at the Young People’s Centre in Belfast, is a registered mental nurse and has twenty-three years’ experience in psychiatric nursing. She has spent fifteen years with emotionally and mentally ill adolescents. She has had considerable experience of JKF from 1996 when she was initially referred to the Young People’s Centre which is the only place in Northern Ireland caring for psychiatric and mentally disturbed adolescents. She saw her again when she was referred in March 1998 at a time when LF was five months old. Ms Lynn recorded at that stage that JKF was vulnerable and misusing chemicals ie damp start, glue, cannabis, valium, painkillers and perhaps others. She had been sniffing solvents since she was twelve years old. Her prediction, having seen her over this lengthy period of time, is that she will require psychiatric services for the rest of her life. She described her as one of the most disturbed young people she has ever come across. She describes her as “unpredictable and a danger to herself and others ... unfortunately there are not appropriate services to treat individuals like K in Northern Ireland. Adult psychiatrists will consider her to be classed as a personality disorder and deem her to be untreatable ... She will continue to be unpredictable and be a danger to herself and others”. In cross-examination she said that whilst JKF will say that she means to change and will perhaps mean this, she simply does not realise how difficult it is to care for a child. The problem is that she cannot even attend to her own needs and keep herself safe much less be able to look after her children in the opinion of Ms Lynn. She shared the view of Dr Lynch.

33. In essence the picture emerged that although intellectually quite bright, JKF is emotionally very immature and requires to be looked after herself never having been properly parented. She is and remains an extremely vulnerable woman.

34. Other evidence before me in this case further serves to convince me that these conclusions are well founded. I consider it neither productive nor beneficial to the welfare or health of any party in this case for me to outline every incident that has fuelled my conviction in this regard. I have read carefully the various reports in this matter and heard a number of witnesses. In particular:

35. In addition I also heard the evidence of JKF and VB.

36. So far as LF is concerned, I am satisfied that it is appropriate in her case to make an order freeing her for adoption without parental agreement pursuant to Article 18 of the Adoption (Northern Ireland) Order 1987. I am of this view for the following reasons:

37. It is clear from the evidence of Ms Hollywood that during the period in PACT JKF was at times quite unable to care for LF. An illustration of this is on 8 January 1998 staff at PACT were awakened by the sound of LF crying. When staff entered JKF’s unit, they found her sitting at the end of her bed looking at LF who was lying on the bed crying. JKF had cut herself and was unable to care for the child. Staff fed and settled the child and remained with LF. The child was on the Child Protection Register. From late January onwards, there is a litany of incidents involving JKF sniffing lighter fuel engaging in self abuse to the point where PACT felt unable to assist her further. Her behaviour was clearly incompatible not only with remaining in the placement at PACT but, in my view, with looking after a young child. It was inevitable that a Care Order required to be made in respect of this child in the course of 1998. JKF was not capable of making constructive use of the supports that were offered to her and indeed after LF’s admission to care there was a marked deterioration in her situation with a nomadic lifestyle, recurrent incidents of self harm, solvent and illicit drug misuse and an erratic uptake of contact with the child.

38. My attention was drawn by the guardian ad litem to a DHSS Northern Ireland circular in May 1999 which identifies the benefits of adoption namely:

39. I am satisfied that rehabilitation has been ruled out for JKF in this case and that it is very unlikely she would ever be in a position to safeguard and promote the welfare of LF throughout her childhood. Her last contact with the child was 24 June 1999. There has been no direct contact since then. She has told me in evidence that she does not wish to have anymore contact with LF but that she cannot give her consent because she considers that the child would not like this when she has grown up. Originally in September 1998 she had agreed to the child being adopted as long as the child remained with the McNs. Indeed JKF signed a Form 10 and LF’s birth certificate on the understanding that Mr & Mrs McN, LF’s foster carers, were to be assessed as adopters of the child. When Mr & Mrs McN withdrew their application to adopt LF, JKF then withdrew her consent to the child’s adoption. Eventually when she met Ms Hollywood on 13 October 2000 in hospital she indicated that she regarded LF as different to ELF largely due to the manner of the conception, but that she could not bring herself to consent to the adoption for the same reason that she gave to me.

40. I have no doubt, therefore, that in all these circumstances the adoption is in the interests of the child.

41. I then turn to consider whether or not JKF is withholding her agreement to a Freeing Order unreasonably. My views are as follows:

42. In all the circumstances, therefore, I make an order freeing LF for adoption.

43. I now turn to consider the case of ELF. As I have indicated earlier in my judgment, I must first decide whether or not it is appropriate to make a Care Order in her case. The issues to be determined are as follows:

44. Counsel on behalf of the South and East Trust has argued that this child is suffering significant harm in light of the evidence of Dr Gaston. Dr Gaston is a consultant paediatrician. He had furnished a report along with Dr Martin on 23 March 2000. His training over a number of years had involved viewing children affected by solvent abuse. He had seen ELF from an early stage. He records:

45. In evidence before me he regarded the lack of development in motor skills as major delays. The child was in fact suffering from a general delay in development. He had seen her again on 14 September 2000 and again recorded the general delay. At seventeen months she was roaming without intent and clearly there had been developmental delay. In his opinion the long-term outlook for this child was guarded albeit she had made some progress. His expectation was that the child would plateau at an early stage. Her skills would probably not advance beyond pre-school level. She requires special schooling, supervision with dressing, she is not likely to hold down a job or a household and will require supervision.

46. Turning to the causes of this condition, his experience in working with mothers who had abused solvents was that this was the very kind of diagnosis that occurs if solvents are abused during pregnancy. This is unfortunately one of the sequelae of abuse of solvents by mothers. He accepted in cross-examination that this condition can be caused by genetic pre-disposal and the condition is possibly genetic. However, he felt that, having witnessed this pattern in the past, it was more likely that the cause was solvent abuse rather than genetic causes. He agreed that there was virtually no literature on this and research was at an early stage. He could not say for certain that the child’s condition was due to her mother’s solvent abuse, but he felt this was more likely than not.

47. In cross-examination by Miss McConnell he accepted that the prognosis he had given was probably the worst one and that the best prognosis that could be given was that there would be mild general delay. In other words she could possibly attend mainstream school, form friends and be trusted to go out on her own. However, in his opinion although this was possible it was quite unlikely. In either event, appropriate and informed care is pivotal to her development. In essence this is a child who requires a placement where she will benefit from someone who will quietly and consistently play with her and carry out the necessary routine measures to maximise her development. He emphasised that this has to be done in the early stages because if this child misses her time for development then it will be gone for ever. It is imperative that she have consistent, quiet and steady care in order to maximise her development. The parenting required is at a very basic level, but must be regular and consistent.

48. As I have already indicated in this judgment, it is for the party who relies on the allegations of any form of harm to a child to establish on the balance of probabilities that this child has suffered harm because of her mother. I am not satisfied that this heavy onus has been established insofar as the Trust submit that this child has suffered harm because of the mother’s abuse of solvents. I consider it would be an extremely heavy burden for JKF to have to bear for the rest of her life if I were to make such a finding. I wish to make it clear that I am not satisfied to the level of proof required.

49. In this context I have considered Re H and R (Child sexual abuse: standard of proof) (1996) 1 FLR 80. The House of Lords concluded in this case that whilst unproved allegations of maltreatment could not form the basis for a finding by the court that either limb of Section 31(2)(a) of the Children Act 1989 was established, it was, however, open to a court to conclude that there was a real possibility that the child would suffer harm in the future although harm in the past had not been established. There would be cases where, although the alleged maltreatment was not proved, the evidence did establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child was yet suffering significant harm, on the basis of such facts as were proved there was a likelihood that he would do so in the future. I find the evidence of Dr Gaston extremely helpful in assisting me to come to the conclusion, which I now make, that this child is likely to suffer significant harm unless a Care Order is made. Inter alia JKF was warned by Dr Forbes of the dangers of her behaviour in her pregnancy but continued to use solvents nevertheless. Indeed she refused to address the issues regarding harm to the unborn child. I have no doubt that the history that has been unfolded to me of solvent abuse, drug abuse, alcohol abuse and self harm carried out by JKF is not only clear evidence that she will be completely incapable of giving this child the necessary care and attention without which her development will be permanently vitally retarded, but that in the wake of such behaviour it is highly likely that this child will in fact suffer irreparable damage. I am satisfied that the likelihood of harm, therefore, is attributable to the care likely to be given to her by JKF and which is not what it would be reasonable to expect a parent to give the child. I am satisfied that this is the position at the relevant time, namely the date when the Trust sought the Emergency Protection Order ie when the relevant authority initiated procedures. In any event I consider that this continues to be the situation.

50. Apart from the evidence of Dr Gaston in this regard, which in itself would be sufficient for me to come to this conclusion, there has been a litany of events unfolded to me concerning her behaviour which would independently draw me to the same conclusion. Without going into all the details of all the evidence which I have heard and considered, the following matters illustrate the overall pattern:

51. On the basis of these extracts and the overall evidence given by Ms McConkey, Ms McConkey concluded that rehabilitation would take a very long time indeed for KF and that essentially she was not able to look after herself. She was not remotely ready to care for her child. In cross-examination she accepted that VB in her opinion had been a bad influence on KF and in fact she had only detected drink on a couple of occasions. Whilst she denied sniffing gas in the hospital incident, this of course is only one of a plethora of incidents where she has been found to be sniffing gas. There were periods when she did settle down for example when she first went to the Regina Coeli Hostel. I have no doubt that it was a very difficult emotional period for KF to have her baby taken away at birth in the case of ELF, already having seen LF taken away. Nonetheless I reject the case put to Miss McConkey that KF has never been given the chance to show that she can care for ELF or the chance to get her back. Miss McConkey’s view is that she has had a great deal of time to think over her behaviour and that her irresponsible activities have continued unabated. I recognise that this behaviour may well be beyond her control because of her background but, for whatever the cause, she has rejected opportunity after opportunity to obtain self help and has resorted to the various abuses that I have outlined. There has been, and continues to be fatal divergence between the rhetoric that KF uses to describe her good intentions and the approach that in practice she adopts. An unstable dynamic drives her actions and unhappily all too often has frustrated the attempts of those who have sought to assist her. It would be perilously easy to accept her current undertakings and intentions for the future. Sadly they assume that which he needs to prove namely that she has either the capacity or the will to redress her past. All of this serves to persuade me that this child is likely to suffer significant harm which in itself is attributable to the care not being given to the child which would be reasonable to expect a parent to give her.

52. I was further fuelled in this conviction by the reports and evidence of Cliona McBreen. She was a social worker of the South and East Trust and was an eminently qualified social worker. She produced six reports in all together with a statement of facts. She was party to the applicant’s Trust care plan in respect of ELF and which I have scrutinised and approve. A comprehensive assessment of KF’s lifestyle and ability to provide care and protection for ELF was completed prior to rehabilitation being considered. This included:

53. However, subsequent to the commencement of the process of comprehensive assessment, the pattern of KF’s behaviour in the past resurfaced. The incidents recorded by Ms McBreen, and which I accept as factually proved to a sufficient level, were as follows:

54. This behaviour continued against a background where she was rebuffing efforts to engage her in an assessment of her ability to care for ELF. A report of Miss McNeil mentioned above is revealing. Inter alia, she records that whilst KF is knowledgeable about the aspects of the physical care of a young baby ie feeding routines, bottle making, etc she seemed “confused and unclear about the emotional needs of a child as it grows and develops”. It is telling that she records of the session on 11 June 1999:

55. I share entirely the views of Miss McNeil who concluded at the end of these sessions:

56. Herein lies the essence of the problem. ELF is a little girl who needs a great deal of informed and well directed care and attention if she is to maximise her potential. KF is simply unable to grasp this or to so discipline her own behaviour that she can deal with this need.

57. Dr Hedley from the Craigavon Psychiatric Unit on 14 January 2000 summed the matter up well:

58. She is currently in St Luke’s Psychiatric Hospital where she is detained under the Mental Health Act (Northern Ireland) 1986. She has predominantly resided in St Luke’s since 21 December 1999. During July and early August 2000 she lived in a friend’s house in Portadown before being allocated a Housing Executive house. Within a week of moving to her house at 51 Glanroy Avenue, Portadown she was re-admitted to psychiatric hospital. Although she may soon be released, the view of Dr Best is that the previous pattern will re-assert itself.

59. I am, therefore, completely satisfied that the threshold criteria under Article 50 of the 1995 Order are satisfied.

60. I must now turn to consider whether an order should be granted and if so what type of order using the principle that the child’s welfare is at paramount consideration pursuant to Article 3(1) of the 1995. I must also have regard to the statutory welfare checklist at Article 3(3) of that order. I must not make any such order unless I consider that doing so would be better for this child than making no order at all. I have considered the arrangements which are to be made for affording any person contact with the child (and which I shall deal with in rather more detail in the contact aspect of this case) and I have also scrutinised the care plan.

61. It is my view that urgent steps must be taken in order to ensure the welfare of this dependent child who has benefited so much from the consistent high quality care which has been given to her by her foster carers in a stable nurturing environment. I share entirely the view of the guardian ad litem that in order for this child to sustain positive attachment formation and achieve her developmental potential it is imperative that permanency plans are progressed promptly. Applying the welfare checklist I have concluded as follows:

62. Before coming to an opinion on the application for a Care Order by the Trust, I must now consider the application for a Residence Order by VB, the father of this child. In considering this application I remind myself of the general provisions of Article 3 of the order placing the child’s welfare as the court’s paramount consideration, the statutory checklist to which I have already adverted to assist me in determining what is for the child’s welfare and all the other legal principles that I have earlier set out. I have read the affidavits of VB and have also heard his evidence before me.

63. I have also heard the evidence of and read the report of Miss McBreen , social worker, who carried out an assessment of VB in response to this application for the Residence Order. This assessment was carried out between 20 July 2000 and 2 August 2000. A number of matters are relevant to VB’s application and these include:

64. A substantial part of the exchange with Miss McBreen concerned an analysis of his ability to understand the needs of the child, his ability to manage the child and his understanding of her developmental needs. I think VB found this questioning difficult and at times incomprehensible. I think it would be unfair to criticise him for this because he is not a professional social worker. On the other hand my impression of him and his understanding of the needs of this child coincide precisely with the conclusions drawn by Miss McBreen. In particular she noted:

65. I find this particularly worrying when I consider it against the background of the paramountcy of the welfare of this child. He is unrealistic about the network of support that is available to him and both his previous and current lifestyle raise great concerns with me as to his ability to bestow on this child the care and attention that her special requirements demand. I consider that he has a very limited insight indeed into the specialist needs associated with the developmental delay of this child. I have no doubt that VB is well intentioned in this application and that he genuinely cares for the welfare of this little girl. Regretfully good intentions are but one factor in considering the paramountcy of the welfare of this child. It is my view, therefore, that he is not capable of meeting the needs of ELF.

66. I have considered the welfare checklist again set out in Article 3(3) of the 1995 Order and, in relation to the application of VB, I have gone through each them. My conclusions about 3(3)(a), (b), (c), (d) are precisely the same as in the case of ELF. I consider that the child would be at risk of suffering harm if a Residence Order was made in favour of VB because of his lack of insight into her condition, and, given his previous behaviour and pattern of living, I do not believe he will provide the stability and permanency that this child requires. As I have indicated, I do not consider that he is capable of meeting her needs. I have considered the range of powers available to me. My conclusion is that a Care Order is the appropriate order to be made in this case and accordingly I so do and dismiss the application of VB for a Residence Order.

67. I now turn to the application by the South and East Trust for an order freeing ELF for adoption. The issues are as follows:

68. I come now to consider whether or not the South and East Trust has satisfied me that JKF is withholding her agreement unreasonably. I remind myself of the principles set out in Re W , Re C , and Re F to which I have already adverted earlier in this judgment and also to the principles already referred to in Hershman McFarlane at Section H, paragraph 124. Accordingly:

69. I have recognised that although the Trust’s justification for taking adoption proceedings is that it is in the child’s interests, a parent who disagrees with the Trust’s view is not necessarily being unreasonable. The statute requires proof of withholding of consent which is unreasonable. It is not sufficient to prove that a reasonable parent would consent.

70. I have also taken into account the very helpful submissions made to me by Miss Morgan on behalf of JKF in this regard. Inter alia, she has urged:

71. It is my conclusion, however, that none of these points outweigh the strength of the medical evidence which points to a fairly uncertain future for JKF and indeed the likelihood that the pattern of the past will obtain in the future. Moreover, insight into her life history, her inability to engage in therapy and benefit from the professional assistance which has been afforded to her, coupled with her persistent solvent abuse and self harm are all matters which would dissuade a reasonable parent in the position of this parent from objectively withholding consent. I am therefore satisfied that JKF is withholding her consent unreasonably in all the circumstances.

72. I should add at this stage that I have also considered the issues that arise from the fact that it has not proved possible to place LF or ELF together. LF is now in a fully integrated family and I have no doubt that it is in her interests to continue with that present family. Her present carers, however, did not consider that they could adopt ELF as an additional child. Accordingly the original aim on the part of the Trusts to bring the children together has not proved possible. Sibling contact is certainly important but it must be qualified by the particular needs of ELF and the plans for her together with the fact that LF is in a fully integrated family situation. Plans have been drawn up for exchange of letters and photographs leading perhaps to direct contact in the future. Post adoption contact will be made on the basis of well established attachments and positive existing relationships. This position will be carefully monitored by the Trusts and accordingly I am satisfied that this is not a circumstance that would militate against a reasonable parent’s consent.

73. I am also persuaded that there is evidence before the court that it is likely that ELF will be placed for adoption. Given her specialist needs, a referral to the Family Care Society has been made. This is a registered adoption society from whom the Trust purchases services. They recruit and train adoptive parents for children who are difficult to place and who have special needs. ELF is apparently a priority now and the adoption agency have said that it is likely that a couple will be trained to meet her special needs. I am, therefore, satisfied that Article 18(2)(b) is satisfied. I therefore conclude that a Freeing Order in the terms sought by the South and East Trust must be granted.

74. Finally I turn to the applications for contact subsequent to the Freeing Orders. I have concluded that there should be no maternal contact with LF subsequent to the Freeing Order. I share the view expressed by Ms Hollywood that it is not in the best interests of this child to have direct contact thereafter. Her evidence was that such contact is liable to upset and confuse LF. The child has not known KF as her mother. The child is now progressing well and further contact is simply calculated to upset her and destabilise the placement. The history of the behaviour in the past of KF and the instability manifested through solvent abuse and alcohol is not conducive to a meaningful contact arrangement with this child. In any event it is not JKF’s wish to have further contact with her.

75. Both JKF and VB have also made applications for a Contact Order in light of the Freeing Order for adoption which I have made in the case of ELF.

76. My primary duty again is to ensure the welfare of the child as the most important consideration. I have listened carefully to the evidence in this matter and in particular the evidence of Miss McBreen. So far as KF is concerned, I share the views

77. Secondly, Miss McBreen considers that contact at this stage could prove disruptive to the placement. Had there been a significant relationship hitherto or had there been a sense of permanency in the relationship, that is a danger that might have been embraced. In this instance, however, I think it is absolutely vital that ELF develop a sense of permanency with her present placement. JKF’s behaviour is so challenging and unpredictable and her contact in the past so erratic and inconsistent that I have formed the view that further contact is likely to prove disruptive.

78. Thirdly, Miss McBreen is of the view that further maternal contact is likely to occasion confusion in the child. Given the lack of any significant relationship or bonding at the moment, and in light of the unpredictable and erratic behaviour of JKF, I also share the view that this child is likely to become confused and upset should there be further maternal contact. I have concluded, therefore, that consequent upon the Order freeing this child for adoption, there should be no further maternal contact.

79. The question then arises as to whether or not there should be paternal contact between VB and ELF consequent on the Order freeing this child for adoption. Again I have carefully considered the evidence in this matter and in particular the evidence of Miss McBreen. I have again concluded that I do not consider it would be in the interests of this child for there to be further paternal contact save for one opportunity for VB to make what Miss McBreen has described as “a final goodbye visit” and to make photographs available for the child’s life history. I have concluded that there should be no further paternal contact for the following reasons:

80. I have concluded, therefore, that once these Freeing Orders have been made, save for the possibility of a final visit of VB to ELF, there should be no further maternal or paternal contact by KF or VB.