High Court of Justice in Northern Ireland Family Division Decisions

Neutral Citation no. [2001] NIFam 13

Ref:    

GILF3428

 

 

 

Judgment: approved by the Court for handing down

Delivered:

23.05.2001

(subject to editorial corrections)

 

 

   

                                                               

 

 

  IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   FAMILY DIVISION    _______  

IN THE MATTER OF J AND S (CARE ORDER): FREEING WITHOUT CONSENT

 

 _______  

GILLEN J

 

            J was born on 31 May 1999.  S was born on 23 July 2000.  A and J J are the respective mother and father of these children.  The applicant in each case is Foyle Health and Social Services Trust (hereinafter called "the Trust").  In the case of J the application by the Trust is for an order freeing J for adoption without parental consent pursuant to Article 18 of the Adoption (Northern Ireland) Order 1987 ("the 1987 Order").  In the case of S, the application by the Trust is for a care order under Article 50 of the Children (Northern Ireland) Order 1995 (hereinafter "the 1995 Order") and thereafter an application under Article 18 of the 1987 Order freeing S for adoption without parental agreement.

The law governing these applications

            Under Article 50 of the 1995 Order, on the application of any authority or authorised person the court may make an order placing a child with respect to whom the application is made in the care of an designated authority.  A court may only make such a care order if it is satisfied that the child concerned is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.  Whether or not the court does or does not make a care order depends upon a two stage process.  First, the court must consider whether or not the criteria for making a care order has been satisfied ie. the threshold criteria and secondly, in the light of the care plan and after consideration of the matters contained in the welfare checklist in Article 3(3) of the 1995 Order, whether it is proper to make a care order.

            The statutory provisions governing applications for adoptions and applications to free for adoption are to be found in the Adoption Order (Northern Ireland) 1987 (hereinafter called "the 1987 Order").  Article 9 sets out the duty to promote the welfare of the child as follows:

"In deciding any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall:

 

(a)        Have regard to all the circumstances, full consideration being given to;

 

(i)          the need to be satisfied that adoption or adoption by a particular person or persons will be in the best interests of the child; and

 

(ii)         the need to safeguard and promote the welfare of the child throughout his childhood; and

 

(iii)        the importance of providing the child with a stable and harmonious home; and

 

(b)       So far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them having regard to his age and understanding."

 

Article 16 states where relevant:

 

"1(1)    An Adoption Order shall not be made unless –

 

(a)        The child is freed for adoption by virtue of an order made in Northern Ireland under Article 17(1) or 18(1) …. or

 

(b)       In the case of each parent or guardian of the child the court is satisfied that –

 

(i)        he freely, and with full understanding of what is involved, agrees –

 

(aa)      either generally in respect of the adoption of the child or only in respect of the child by a specified person, and

 

(ab)     either unconditionally or subject only to a condition with respect for the religious persuasion in which a child has to be brought up, to the making of an Adoption Order; or

 

(ii)       his agreement to the making of Adoption Order should be dispensed with on the grounds specified in paragraph 2.

 

(2)        The grounds mentioned in the paragraph (1)(b)(ii) are that the parent or guardian –

 

..

 

(b)       is withholding his agreement unreasonably."

 

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

(1)        Where, on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an adoption order should be dispensed with on a ground specified in Article 16(2), the court shall make an order declaring the child free for adoption.

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

(a)        The child is in the care of the adoption agency; and

(b)       The child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption.

            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.

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

(1)        Is adoption in the best interests of the child?

(2)        If so, is a ground or grounds of dispensation proved on the balance of probabilities?

            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.  In the case of J if I come to the conclusion that adoption is in the best interests of the child, or in the case of S if I make a care order and then move on to consider the question of freeing and I conclude that adoption is in the best interests of S, I must then turn to consider in each case whether or not the Trust has satisfied me that the parent A is withholding her consent unreasonably.  The leading authority on the meaning of the ground and the test that the court should apply is a House of Lords 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:

"The test is reasonableness and nothing else.  It is not culpability.  It is not indifference.  It is not failure to discharge parental duties.  It is reasonableness and reasonableness in the context the totality of the circumstances.  But although welfare per se is not the test, the fact that a reasonable parent does not pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor.  It is relevant in all cases if and to the extent that a reasonable parent must take into account.  It is decisive in those cases where a reasonable parent must so regard it."

 

            In Re C (a minor) (adoption: parental agreement: contact) (1993) 2 FLR 260 the court suggested that the test may be approached by the judge asking himself whether having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appears sufficiently strong to justify overriding the views and interests of the objecting parent.  That is an approach that has received further judicial approval in Re F (adoption: freeing order) 2000 2 FLR 505.  In addition the principles dealing with such 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 main components of the test of unreasonableness as follows;

1.         The reasonableness of the parents refusal to consent is to be judged as at the date of hearing.

2.         The judge must take account of all the circumstances of the case.

3.         Whilst the welfare of the child must be taken into account it is not the sole or necessarily paramount criterion.

4.         The test is an objective test – could a reasonable parent in the position of this parent withhold consent.

5.         The test is reasonableness and nothing else.

6.         The court must be wary not to substitute its own view for that of the reasonable parent.

7.         There is a band of differing reasons, each of which may be reasonable in any given case.

            I am also governed by the case of Re M (a minor) (care order: threshold conditions) 1994 2 FLR where the House of Lords has 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.

            Re D (simultaneous applications for care order and freeing order)(1999) 2 FLR 49 is authority for the proposition that where a court is considering, as it is in the case of S in this instance, an application for a care order together with an application for a freeing order, the application for the care order is the primary application.  It is a wrong approach to decide a freeing application first, in which the child's interests will not be the paramount consideration.  That would compromise the application of the paramountcy principle in a subsequent consideration of the care application.  I shall consider the care application first in the instance of S. 

            I have also considered whether or not pursuant to Article 8 of the European Convention on Human Rights a granting of a care order in the case of S and the granting of a freeing order in both cases is liable to interfere with the parent's family life and requires justification with regards to the best interests of the child.  Freeing applications also involve a consideration whether freeing the child for adoption without consent constitutes interference with the right to respect for family life which is disproportionate to the best interests of the child.  I am satisfied that the domestic authorities enjoy a wide margin of appreciation with regard to the circumstances in which they can overrule a parents objections to adoption.  I am also of the view that the presumption in favour of family life has now been extended to unmarried fathers and their children in light of the decision in Soderback –v- Sweden judgment of the 28 October 1998 ECHR.  Accordingly I intend to take into account the European Convention on Human Rights in arriving at the decisions in this case and that Convention has informed the conclusions which I have reached and to which I will subsequently advert in this judgment.

            Finally in the case of J J although he is the father of these children, it is common case by the Trust and by counsel acting on behalf of J J that whilst he has been joined as a party to the care proceedings as a respondent and appears to be a noticed party in the freeing applications he does not have parental responsibility.

            Under Schedule 9 Article 138(6) of the 1995 Order, parental responsibility and parent responsibility agreement have the same meaning under the Adoption (Northern Ireland) Order 1997 as in the Children (Northern Ireland) Order 1995.  "Parent" means, in relation to a child, any parent that has parental responsibility for the child under the Children (Northern Ireland) Order 1995.  It is clear in this case that J J does not have parental responsibility and he has no parental responsibility agreement drawn up involving him.  Consequently there is no need to dispense with his consent.  However Re H (a child) (adoption: disclosure), Re G (a child) (adoption: disclosure) the Times January 5 2001 is authority for the proposition that in an adoption application, even though the father may have no right to consent to or to refuse to consent to adoption or freeing for adoption under the terms of the order, nonetheless the position of the natural father should be considered, he must be informed of proceedings unless for good reason the court decided that it was not appropriate to do so, his views need to be canvassed and he should be given the opportunity to indicate whether he wished to be heard.  Accordingly he was legally represented at this case and I have taken into account his views and his statement.

            I turn then to the factual considerations and findings against this background of governing legal principles:

(1)        Re S

            I have read all the statement in the booklets before me including the statements of A and J J and I have also had the benefit of hearing evidence from Dr Connolly, Constable Fell, Detective Constable Patterson, Ms Devine, Senior Social Worker, Constable Kennedy and Dr Bones.  Finally I have heard the evidence of the Guardian Ad Litem.  (This also applies in the case of J to which I shall turn later).

            A gave evidence before me that she consented to the freeing of the children for adoption.  Although she thus gave her consent under oath to me in court, nonetheless I have been told by the parties that she has chosen not to perfect her consent by signing the originating summons for the order freeing the child for adoption with parental consent and which is required before an application under Article 17 of the Adoption Order can succeed.  Accordingly it is common case by all of the parties that if I make a care order thereafter this matter cannot proceed under Article 17 of the 1987 Order but must be treated as an application pursuant to Article 18 of the 1987 Order and therefore I so do.

            I have come to the conclusion that the threshold conditions for making a care order in the case of this child have been satisfied and have a factual base.  The following are the range of facts which I find to be satisfied to the appropriate standard in this case:

1.         Both A and J J the parents of this child have engaged in incidents of domestic violence of a serious and potentially damaging nature.  Most of these have been visited upon A by J J and could have resulted in serious physical harm to A.  For example I am satisfied that there were incidents of strangulation on one occasion until A was unconscious and that A was struck in the stomach during her pregnancy by J J.  Independent evidence of the violence of J J has been observed by the police.  On 8 January 2001 the police witnessed J J threatening A with a knife and that matter is now the subject of police investigation.  The police record that on that occasion he shouted "I'll use it".  The police were obliged to draw a firearm and point it at J J and demand that he drop the knife.  On that occasion he had moved towards A holding her in front of him with his arm around her neck, his back to the wall and the knife at arms length.  He was hysterical and aggressive, banging his head against a wall with force.  On that occasion A refused to make a statement of complaint and was taken by the police to a woman's aid hostel.  This has been a pattern throughout the relationship where she has made allegations of violence against him which subsequently she has withdrawn.  Domestic violence officers from the RUC have visited her on a number of occasions.  There were countless examples of this in the case before me and I illustrate the type of offence by reference to a report from the RUC dated 19 July 2000 which records incidents involving A and J J as follows:

(a)        20^th September 1998 – Miss N alleges she was assaulted by J J.  There were no visible injuries.  J alleges A cut him with a knife.  He had a cut on his hand.  A requested to be taken away and was conveyed to the refuge in Derry.  Subsequently that night A alleged that she and her partner had an argument and she was frightened that J J would hit her.  Both parties were in a drunken state. 

(b)       26 January 2000 – A phoned the police three times alleging that she had been assaulted by J J.  On arrival she refused to let the police in.

(c)        6 February 2000 – A alleged to the police that she had been assaulted by J J.

I reiterate that this only a few of a large number of such incidents that have been outlined before me, including extremely serious allegations of sexual assault, including buggery by A against J J.  I am absolutely satisfied that there have been incidents of domestic violence of an extremely serious nature taking place in this relationship.  Research has shown that domestic violence places children at risk of harm on a number of levels.  First the domestic violence perpetrator may also be directly, physically or sexually abusive to the child.  Secondly, witnessing violence perpetrated against their mother may have an abusive and detrimental impact on a child's development.  Children can develop in appropriate maturity and sense of responsibility which can inhibit their ability to develop it at an appropriate level.  Thirdly, a perpetrator may abuse a child as part of the violence against their partner.  Fourth, children can feel guilty, blame themselves and feel depressed.  Fifth, children can develop fears, insecurity and low self esteem as a result of witnessing domestic violence.  Finally, children can suffer emotional confusion which can result in bedwetting, nightmares, sleeping or eating disturbances, self harm and weight loss.  I derive this information from research which has been helpfully drawn to my attention by Ms Devine and the Guardian Ad Litem.  Accordingly on this basis alone I have absolutely no doubt that this child is likely to suffer significant harm unless I make a care order.

2.         I am satisfied that there has been alcohol and possible drug misuse by both parents.  There have been earlier reports on A.  These include reports by a Community Addiction Unit in May 1995, April 1996, Foyle Leaving and After Care Team in May 1986, police reports of being called to Altnagelvin Hospital due to A and J J fighting when both parents had alcohol consumed and there had been numerous allegations of alcohol and drug misuse by both parents in relation to each other, for example, on 12 May 1999, 14 May 1999 and 8 January 2001.  This severe abuse of alcohol and possible drug misuse by both parties constitutes a risk of significant harm to this child now and in the future.

3.         A has found it impossible to separate herself from this violent relationship.  Separations have occurred on a regular and frequent basis but she returns to similar patterns of violence on each occasion.  This history of this relationship is such that I consider it carries grave risk of significant harm for this child now and in the future.  I see absolutely no prospect of sustained or meaningful change within this parental relationship and I fear that the pattern for the future will reflect the pattern of the past.  The work completed to date by the Trust in relation to both parents, despite their most earnest endeavours, does not indicate that a prognosis is favourable in relation to possible rehabilitation.  There has been little change in either parents circumstances as evidenced by these continued separations and reunions.  Such a setting most clearly does not provide for S the secure and predictable family environment which is so necessary to protect her from significant harm.  I have only to read the report of Dr Bownes on J J to recognise that he is engaged in a pattern of socially inappropriate and violent behaviour since his teenage years without apparent regard for the consequences for himself or other people.  He has significant personality problems with borderline and dyssocial personality traits.  He has admitted to engaging in a pathological pattern of drug and alcohol abuse since his early teenage years and I believe he does not have the appropriate judgment and control to alter his behaviour.  Neither J J nor A have demonstrated willingness to co-operate with officers of statutory organisations requiring to assist them in meeting the needs of this child.  Dr Bownes concludes:

"I would emphasis that personality problems of the nature described reflect intrinsic constitutional factors and developmental influences and are often extremely resistant to change."

 

            It is highly significant that A was undertaking assessment by Mr Philip Pollock (clinical psychologist) but did progress this.  She shows no inclination to change either.  Whilst some assessments demonstrate A appears to be more receptive to instruction and open to insight when separated from J J, the fact of the matter is that there is a controlling element to the relationship which does not auger will for the future stability.  It is inconceivable that this child could avoid significant harm in the future in the wake of such a relationship.

            I am therefore fully satisfied that the threshold criteria have been met.

            I then turn to consider whether or not, in the light of the care plan and after consideration of the welfare checklist in Article 3(3) if it is proper to make a care order.  I have read the care plan for this child which in effect is to pursue permanence through adoption.  The care plan had been for a time limited assessment with a view to rehabilitation, but given the experience that I have outlined, I readily recognise why the care plan was changed on 13 November 2000 to permanence through adoption.

            So far as the welfare checklist is concerned, my views are as follows:

(a)        S is too young to articulate her wishes and feelings.

(b)       Her physical, emotional and educational needs are such that because of her age she is totally dependent on her carers to meet these.  As a slow feeder she requires patience and time.  This child requires a warm and emotional secure stimulating environment.  She clearly does not get this with A and J J.

(c)        This child was removed from her mother very soon after birth.  She has been in the care of the Trust and with foster carers since July of 2000.  I am satisfied that if she was removed from this caring environment which she is presently in, and returned to this unstable relationship of A and J J, she would suffer significant harm.

(d)       I have considered her age, sex, background and her overall characteristics.

(e)        I am satisfied for the reasons I have outlined above, that she is at risk of suffering significant harm in the future.

(f)        For the reasons that are clear from my assessment of the domestic violence, aggression, drink and drug abuse, unstable behaviour, that neither of these parents is capable of meeting the needs of this child.  A simply cannot extract herself from this relationship and has shown no inclination to do so.  The children require stability and protection and I am not satisfied that A and J J either jointly or individually are in any position to provide this.

(g)       I have considered all the powers that are open to me under this order.  I have also considered under Article 3(5) the no order option.  It seems to me that a supervision order is impossible here given that in that case the child would remain at home under the care of a parent.  That is simply not acceptable in this instance.  The no order principle would allow this child to return to the care and A and J J.  That is also unacceptable.  In these circumstances I have no hesitation in concluding that a care order must be made in the case S.

            I then turn to the question of the application to free this child for adoption.  I have considered all the legal principles which I have earlier set out with reference to such an application.  The Trust submit that the court should exercise its power to dispense with the agreement to adoption on the ground that the parent A is withholding her agreement unreasonably.  Dispensing with agreement to adoption involves the court in a two stage process.  First, is adoption in the best interests of the child.  Secondly, if so, is a ground of dispensation proved on the balance of probabilities ie. is she withholding her agreement unreasonably.  The two stages are separate and must be considered by the court in this sequences.  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.  I have come to the conclusion that adoption is in the best interests of this child.  I have come to that conclusion because of the reasons which I have already set out with reference to the care order.  The domestic violence, the drug and alcohol misuse, the instability of the relationship, the failure to exhibit any possibility of meaningful change or rehabilitation and the danger of significant harm which clearly lurks in the future for this child all persuade me this child requires security and warmth in a permanent setting and that adoption is in the best interests of this child.  I am also satisfied that A's consent is being withheld unreasonably.  In the first place I am aware that she has indicated that she does consent to the child being adopted, but is refusing to sign the appropriate form because, according to what she has told the Trust, she does not wish there to be any evidence in writing that she has agreed to this. I think this recognises that she realises that adoption is the appropriate step to be taken in this case.  The criteria to be applied are as follows:

(a)        I have judged her refusal of consent as of the date of the hearing.

(b)       I have taken into account all the circumstances of the case as mentioned above.

(c)        I recognise that the welfare of the child must be taken into account although it is not the sole or necessarily paramount criterion at this stage.

(d)       I have applied an objective test.  Could a reasonable parent in the position of this parent withhold consent.

(e)        I have applied the test of reasonableness.

(f)        I have been wary not to substitute my own view for that of the reasonable parent.

(g)       I recognise that there may be a band of differing reasons each of which may be reasonable in any given case, but in this instance I am satisfied that there is no reasonable explanation for refusing consent.

            I am satisfied in this case that the consent of the parent A is being unreasonably withheld and that having regard to the evidence and the current values of society the advantages of adoption are sufficiently strong to justify overriding her refusal to consent in the appropriate form.  In relation to J J, I have taken account of the views that he has expressed to the various statutory bodies and medical witnesses and to the court through his statements I am still satisfied that, applying the duty to promote the welfare of the child, adoption is in her best interests.  I am also satisfied that this child is in the care of an adoption agency (namely the Trust) and that evidence before me is that it is likely that this child will be placed for adoption.

            In those circumstances therefore I am satisfied that the agreement to the making of the adoption order should be dispensed with on the ground that the consent of the parent has been unreasonably withheld and I therefore order that S should be freed for adoption.

Re J

            Turning then to J, he is now almost 2 years of age.  He has been subject to a care order since 20 December 1999.  Apart from three weeks when he was with A during a Thorndale assessment he has been in foster care since discharge from hospital following birth.  I must therefore apply the same legal test in his case as I have in the case of S.  I under a duty again to promote the welfare of this child having regard to all the circumstances, and the need to be satisfied that adoption is in the best interests of the child, the need to safeguard and promote his welfare throughout childhood and the importance of providing him with a stable and harmonious home.  The same behavioural pattern obtained in his case as in the case of S.  The open and violent conflict between parties who are clearly locked into their own needs, the chronic dysfunction of the relationship, the drug and alcohol abuse, the repeating pattern of the behaviour, the failure to acknowledge problems by either J J or A and the abject failure to engage in any meaningful co-operation with Social Services (as evidenced by the numerous missed appointments) follow precisely the same pattern as in the case of S.  This child requires the stability and emotional security of a permanent setting away from A and J J.  I am satisfied that adoption is in this child's best interests and it is not in the child's best interest to wait in a short term foster placement whilst any further assessments are undertaken.  I have no doubt that permanency planning outside the birth family is the best option in this case.

            I must then turn to consider whether or not on the balance of probabilities a ground dispensing with the consent of A has been proved.  In terms having concluded that it is in the best interests of the child to be adopted I must now consider the question of A withholding her agreement.  In my opinion she is withholding that agreement unreasonably.  In coming to that conclusion I have taken into account:

(a)        The reasonableness of her refusal to consent judged as at the date of hearing.

(b)       I have taken into account all the circumstances of the case which I have outlined above.

(c)        I have recognised that the welfare of the child must be taken into account but it is not the sole or necessarily paramount criterion.

(d)       I have applied an objective test.  Could a reasonable parent in the position of A withhold consent in this instance.

(e)        I have applied a test of reasonableness.

(f)        I have been wary not to substitute my own view for that of the reasonable parent.

(g)       I have recognised that there may be a band of differing reasons each of which may be reasonable in any given case.

            I have taken into account as I have indicated in the case of S that A has under oath agreed to this child being freed for adoption but has refused to sign the necessary form on the basis that she does not want any written evidence of her agreement to the consent.  I think this is a further indication that she recognises that adoption is appropriate and that it is unreasonable to withhold consent.  It is my view that, as in the case of S, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of this child are sufficiently strong to justify overriding the views and interests of the objecting parent.  Although J J has not the status of parental responsibility, I have taken into account his views but I am still satisfied that adoption is still in the best interests of this child.  I believe that permanence will provide both of these children with a foundation to develop identity values in relationships and will give them both the best chance of growing as adults, secure in their identity and able to maintain close relationships.  Fostering lacks the element of permanence that is crucial to the well-being of both these children.  Adoption will provide both these children with legal, physical and emotional security which they badly need given their background.  Rehabilitation of the child with the parents is simply not an option.

            I am also satisfied that the child is in the care of an adoption agency (the Trust) and that there is evidence this child is likely to be placed for adoption.

            Accordingly it is my view that an order should be made freeing the child J for adoption and accordingly the court dispenses with the consent of A on the basis that her consent is being unreasonably withheld.


 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   FAMILY DIVISION    _______  

 

 

IN THE MATTER OF J AND S (CARE ORDER): FREEING WITHOUT CONSENT

 

 _______  

 

 

J U D G M E N T O F GILLEN J  ________