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High Court of Justice in Northern Ireland Family Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Family Division Decisions >> G and RE: S (Care Order. Freeing Without Consent. Contact) [2001] NIFam 14 (31 May 2001)
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Cite as: [2001] NIFam 14
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- The reasonableness of the parents refusal to consent is to be judged as at the date of hearing.
- The judge must take account of all the circumstances of the case.
- Whilst the welfare of the child must be taken into account it is not the sole or necessarily paramount criterion.
- The test is an objective test – could a reasonable parent in the position of this parent withhold consent.
- The test is reasonableness and nothing else.
- The court must be wary not to substitute its own view for that of the reasonable parent.
- There is a band of differing reasons, each of which may be reasonable in any given case.
| [2001] NIFam 14 | Ref: | GILF3434 |
| Judgment: approved by the Court for handing down | Delivered: | 31.05.2001 |
| (subject to editorial corrections) |
GILLEN J
I have prepared this judgment in an anonymised form and nothing must be published which might reveal the identification of the children involved in this case.
G was born on 14 February 1997. S was born on 4 May 1999. H is the mother of both children. M is the natural father of G. He has indicated that he wishes to consent to the orders now being sought by the Causeway Health and Social Services Trust being made. However, he does not have any parental responsibility in these matters and accordingly his consent is not required for the freeing orders if they are to be made. He has been informed as to the hearing and afforded an opportunity to give his views. J is the natural father of S. He does not have parental responsibility either. His whereabouts are not known despite all reasonable attempts having being made to contact him. It is clear that he never sought to enjoy any family life with S after her birth. In this matter the application by the Causeway Health and Social Services Trust ("the Trust") is for a care order in the case of each child under Article 50 of the Children (Northern Ireland) Order 1995 (hereinafter "the 1995 Order") and thereafter in if a care order is made, for an order freeing both children for adoption without parental consent pursuant to Article 18 of the Adoption (Northern Ireland) Order 1987 ("the 1987 Order"). Finally, H seeks an increase in the contact which she is presently being afforded. I have arrived at the conclusion earlier in these proceedings that in view of H's mental capacity it was appropriate that the Official Solicitor should be appointed as Guardian Ad Litem on her behalf and accordingly Ms McCormick instructed by the Official Solicitor acted on her behalf in this hearing
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."
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 now 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 to be made. If I make a care order in either or both of these cases and then move on to consider the question of freeing and I conclude that adoption is in the best interests of the children I must then turn to consider in each case whether or not the Trust has satisfied me that the parent H is withholding her consent unreasonably. The leading authority on the meaning of this ground and the test that the court should apply is the 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 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 the court of Appeal both in Re F (adoption: freeing order) 2000 2 FLR 505 and in Re B-M (a child) (adoption parental agreement) (2001) 1 FCR 1. 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;
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. In this case G was placed in voluntary care on 27 July 1998 (and has remained in care thereafter) and S was placed in care on 10 May 1999.
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 G and 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 both children.
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 both of these children 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 recognise that an appropriate balance must be struck between the interests of a child remaining in public care and those of the parents in being united with the child. Proportionality must be applied when considering an application for a care order and I have applied the principle set out in this context by Hale LJ in Re C and B (Care Order: Future Harm) 2001 1 FLR 611 when she said:-
"The principle has to be that the local authority works to support and eventually reunite the family, unless the risks are so high that the child's welfare requires alternative family care …Intervention in the family must be proportionate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child and their family is only justified by the overriding necessity of the interests of the child."
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.
I reiterate the position so far as the natural fathers are concerned. Neither has parental responsibility and neither has had a parental responsibility agreement drawn up involving them. Consequently there is no need to dispense with their consent. Nonetheless I must be satisfied (and in this case I am so satisfied) that neither of the fathers has any intention of applying for a parental responsibility order or a residence order or that such application would likely be refused is made. Re H (a child) (adoption; disclosure), Re G (a child) (adoption: disclosure) The Times January 5th 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 canvassassed and he should be given the opportunity to indicate whether he wished to be heard. In this case as I have indicated the views of M, the natural father of G, have been obtained. So far as J, the natural father of S is concerned, I am satisfied that attempts have been made to afford him such an opportunity without success. In any event I am not satisfied that he had engaged in family life with this child and I do not consider therefore that any further steps need to be taken.
One further matter falls to be considered in the context of this case. Evidence has been given before me and which I accept, from Dr Oliver Shanks, consultant psychiatrist that H does not have the capacity to give valid consent to an adoption order of H's consent. The question therefore arises to whether or not in these circumstances she can withhold her consent unreasonably. In Re D (an infant) (adoption: parents consent) (1997) AC 602 a case heard before the advent of the Children Act 1989, and in the context of views then pertaining concerning homosexuality (which probably will not have such a bearing on the outcome of a similar case today), Lord Wilberforce expounded a principle which I believe still holds good. At page 625G-H:
"What, in my understanding, is required is for the court to ask whether the decision, actually made by the father in his individual circumstances, is, by an objective standard, reasonable or unreasonable. This involves considering how a father in the circumstances of the actual father, but (hypothetically) endowed with a mind and temperament capable of making reasonable decisions, would approach a complex question involving a judgment as to the present and as to the future and the probable impact of these on a child. To say all this is no doubt excessively refined and judicial decisions are made by a simpler process than this: but when we are faced with differing decisions, it is difficult to avoid some such analysis. Accordingly it seems to me therefore that it is on this basis that has to be considered whether or not H is withholding her agreement unreasonably. Within the context of the principles I have set out above."
I am confirmed in my views on this by the decision of the Court of Appeal in Re C (unreported: 18 June 1993).
I am also satisfied that in any event the proper constitution of Article 16 of the 1987 Order is that the court must investigate whether where consent has been given, it has been fully and freely given or whether the parent has a full understanding of what is involved in adoption. In other words the question of her capability only arises if consent has purportedly been given. Whereas in this case, consent has not been given and thus the ground to be relied on by the Trust under Article 6 of the 1987 Order is that the respondent is unreasonably withholding her agreement (see Re L (a minor) (Adoption Parental Agreement) (1987) 1 FLR 400.
I turn then to the factual considerations and findings against this background of governing legal principles. I shall deal with both children together because, although I have considered each separately, the factual findings I have made are common to both. I have heard the evidence and read the reports of Dr K N McCartney, Dr Oliver Shanks and Dr F Leddy. In addition I have heard the evidence of Sarah Granlees, senior social worker with the Trust and who co-signed the reports of Feeney Moore dated 3 January 2001, 11 January 2001 and an undated report of 1 May 2001. I also heard the evidence of Ms Feeney Moore and Ms Alison Cooke. Finally I heard the evidence of the Guardian Ad Litem Theresa Fallon. I have read all the other statements and reports in the bundles helpfully provided to me and in particular I record that I have read the statements of SM and H. Neither of these two persons gave evidence before and in light of that I have given particular attention to these statements so as to ensure no point on their behalf is overlooked.
I have come to the conclusion that the threshold conditions for making a care order in the case of each of these children have been satisfied and have a factual base. The following are, inter alia, the range of facts which I have found to be satisfied to the appropriate standard in this case:
(1) I am satisfied that H only has the capacity to think of the implications with regard to herself and not with regard to her children or family. I accept the view of Dr Shanks that in terms of the Mental Health (Northern Ireland) Order 1986 H suffers from severe mental handicap. Her finances are managed by the Office of Care and Protection. She is very easily influenced. It was the view of Dr Shanks and Dr Leddy, shared also by Dr McCartney, that whilst she can acquire parenting skills, she cannot acquire the consistency of approach in applying them which is so vital to the welfare of children. Dr Shanks tellingly recorded that she would have difficulty foreseeing the implications of looking after children full time. This was also the on the ground experience of Sarah Granlees. Historically H has a record of being unable to put the needs of the children above her own on a consistent basis and has difficulty protecting the children when her own desires or needs conflict with them. These frailties are not of her own making. The parenting she received as a young girl was poor and she was reared in a quite chaotic home without adequate routine, hygiene or cleanliness. Nonetheless I found it chilling to hear the unchallenged assertion that in May 1998, she had been observed one evening walking along the cliff walk with a young man. She had left G asleep and unsupervised in her buggy at the top of the cliff path and then went on to the rocks below with this man. Shortly thereafter when H and G were visited by the care worker at 10.30 pm, neither was at home. They were found with a gang of people from the town, known for alcohol, insolvent abuse and stealing cars. At this time H stated she had a new boyfriend, a man known to the RUC for car theft. With the arrival of this new relationship, she began to reject and resent the package of care provided and was often abusive to care workers. Thus represents a classic set of circumstances where unhappily she was unable to put the needs of her child above her own. She was thus insufficiently committed to afford safety to this child on a consistent basis. A further incident occurred in the wake of this relationship (which was a fairly short-lived one) on 15 May 1998. His mother informed the social workers Mrs Cooke and Miss Patterson that H had disclosed to her father she was going to throw herself off a cliff. A search for H and G commenced involving the RUC. The search continued throughout the night. Happily H and G returned home safe and well at 10.00 am the next morning when H admitted that she had been staying with her boyfriend. However it transpired that G had spent at least 20 hours in her buggy and had been given only a few biscuits and juice during that time. H was unable to acknowledge the seriousness of her actions and said she was "fed up looking after G" and "needed a break". Another woman took G for the weekend allowing H to have time out which she gratefully accepted. From May 1998 onwards she resented supports offered to her and returned to live in the chaos at home in Ballymoney (where standards of hygiene and domesticity were thoroughly unacceptable) rather than accept the package of care which was being afforded to her at that time. During the course of June 1998 she coupled her reluctance to return to Portstewart where she was being afforded assistance and support, with a deterioration in her contact with G. Her commitment and motivation towards G deteriorated rapidly. An example of this is that she had arranged to look after G from 10.30 am until 5.00 pm on 10 July 1998 but simply did not turn up, choosing rather to spend the day with her current boyfriend. In July 1998 she agreed that the child should be placed in short-term foster care. Once this step had been taken her commitment to contact was again inconsistent despite efforts to try and increase its frequency on the part of the Social Services. A learning disability team and a child care team monitored and assessed H continually. Regretfully her boyfriend seemed to take precedence. Social Services then explored the option of supported housing to try and persuade H to leave Ballymoney where there were grave concerns concerning the standard of hygiene and the child's safety during any contact that was taking place. The next step was that Social Services involved Brooke Green Family Centre who became involved in assessing H's parenting skills and began working with H and G in March 1999. She attended only two out seven planned sessions. Evidence from this centre was to the effect was that there was a lack of attachment between G and H and an apparent inability on H's part to promote such attachment was observed. Further arranged sessions met the same fate. The Family Centre concluded at this time that H had not demonstrated a commitment to attending appointments and they had concerns regarding her ability to recognise dangerous situations for G. Her detachment from G at an emotional level, and her lack of play skills appropriate to G's age and developmental state were matters that merited adverse comment.
S was born 4 May 1999 and placed with short-term foster carers from hospital. S's alleged birth father never had any contact with Social Services despite efforts to discuss the proposed plan for S. Interestingly about this time H did not have a boyfriend and became highly motivated and committed to contact with both H and G. This is a crucial aspect of this whole picture. When her own needs, and in particular that of a relationship with a boyfriend, are not in conflict with the children, she does provide certain commitment to them. This has been the pattern of her approach to them. The difficulty is, as Dr Leddy pointed out, children need consistency. Mothers need to be flexible and to learn all the time. It is not enough that a mother such as H can be taught skills. She must be able to engage the child emotionally on a consistent and regular basis if the child is to acquire that sense of trust and security so vital to emotional development in a child's life. It is this factor that H is unable to provide for either of these children and which in my view constitutes a grave risk of significant harm to them now and in the future.
Unhappily with a short time of S's birth, more evidence appeared that H has become locked into a repeated cycle of maladaptive behaviour. Social Services files recorded a marked deterioration in her enthusiasm to complete parenting tasks from July 1999. Characteristically, this deterioration coincided with H's new relationship with SW. Contact levels started to reduce in July and in August social workers recorded that H attended six contact sessions with S out of a possible nineteen. Not surprisingly a record of a significant interview on 14 September 1999 recorded:
"Noted that S does not respond to H as someone special."
By November 1999 contact between H and S had greatly reduced. There was no contact at all between 25 October to 8 November 1999. File records indicate that the maternal grandmother tried to encourage contact but was often unaware of where H was. The pattern so evident with G was now recurring with S. By March 2000 Social Service records were recording that both S and G were reluctant to go to H. By April 2000 S had been placed with respective adoptive parents and contact had now reduced to two times yearly. Dr Leddy summed up the overall situation when she recorded:
"It is likely that S regards H as a benign adult."
Adding:
"In my opinion there is no evidence of an attachment relationship between S and her mother."
The more recent description of S's progress indicate that she has formed secure attachment relationships within the "current carers household".
It soon became clear in this case that the evidence on the threshold criteria was really unassailable and I note that Ms McCormick who appeared on behalf of H instructed by the Official Solicitor, records in her helpful closing submissions that the evidence in regard to the threshold criteria was not challenged in the case. I have no hesitation in concluding that the threshold criteria have been satisfied in each of these cases.
The real thrust of the case made by the Official Solicitor on behalf of H lay in the challenge to the care plan which seeks to secure permanence through adoption. Her case can be summarised as follows:
(a) H had now formed a more stable relationship with SM than had previously been the case in her past relationships. It was accepted that this relationship did seem to have lasted somewhat longer than historically had been the case.
(b) In light of this, it was urged that assessment of this relationship should now be carried out, that thereafter the emphasis be placed on increased contact with substantial Social Services input and that, if these two stages were successful, they would trigger something in the nature of residential assessment with the children.
(c) The possibility of this new relationship forming a basis for rehabilitation with the children had surfaced at a looked after children review on 31 January 2001. The case was made in cross-examination that the LAC chairperson, Mrs Frances, had really formed the view that it was too late for this new relationship to produce stability for the children. The evidence was that although SM appeared at the LAC review, once it was ascertained that H had not appraised him in an informed way of the background to the children and the circumstances, he was not permitted to enter the LAC meeting.
In short the case was made that the Trust failed to afford H and her new partner SM an opportunity to engage in rehabilitation and that they approached the relationship with a closed mind. Counsel submitted that in these circumstances H could maintain a bona fide and reasonable sense of injustice. This whole argument was based on the postulate (which I reject) that the failure to provide a further assessment was inherently unfair. It is my view that the Trust acted entirely appropriately in this matter and I reject the criticisms made of the Trust workers for the following reasons:
(a) I consider that a further assessment along the lines suggested by counsel would have been contrary to the overall best interests of the child taking a wide and long term, as well as a short term view of the those interests. Such an assessment was not necessary to enable this court to discharge its function properly of deciding whether or not to accede to the Trust's application for a care order (see Re C (interim care order: residential assessment) HL (1997) 1 FLR 1.
(b) I consider it would have been quite unreasonable in light of the previous assessments over the previous two years to expect the Trust to repeat the whole process again. Indeed it is my view that the Trust in this case was a pattern of patience almost to a fault with H. I share entirely the view of the Guardian Ad Litem that proceedings similar to those now before the court could well have been merited a substantial time before they were in fact brought. Ample opportunity for residential assessment in the past had been afforded to H (with G in a supported environment with Mrs M in June/July 1998 and with S in a supported environment either with Mrs M or within her area in Ballymoney).
(c) The expert evidence before me was to the effect that H simply cannot acquire the consistency of approach in applying parenting skills which is so vital to the welfare of children. I refer to the opinions of Dr Shanks already set out by me in this judgment.
(d) The unchallenged evidence was that the assessment now suggested would have involved a very lengthy process. Terms of at least one year and probably longer were canvassed before this court. HMSO (Protecting Children) 1988 sets out a principle which well merits repeating:
"Children cannot indefinitely wait for parents to change. There is much evidence of the damaging effects on children being allowed to drift in local authority care without the appropriate attention being given to planning their future."
The continued uncertainty cannot be in the interests of these children, particularly where the success of rehabilitation seems so remote. Already these children have been exposed to changes in placement (G to 5 and S to 2) The weight to be attached to the strong supposition that is in the interests of children to be brought up by their natural parents must depend on and yield to the circumstances of the particular case. The longer the length of time the child has been with a non-parent the less potent the supposition.
(e) I was unimpressed by the case mounted on behalf of the new partner SM. He was not known to the children and indeed they have never met him. His efforts to put himself forward in a meaningful and informed fashion were singularly lacking in commitment and endeavour. I saw nothing in his statement or in the evidence before me about him that persuaded me that he had the capacity to positively affect or generate that lack of motivation and commitment which had characterised H's historical behaviour.
In short I observed nothing in the late onset of this relationship which would persuade me that these children, if returned to the care of H and her partner, would not continue to be exposed to a world characterised by unpredictable danger and which singularly lacked the safety and security to grow and develop which they so desperately need.
A further criticism of the Trust was that the officers had been precipitative in closing down H's options in the course of 1999 and thereafter. In particular it was alleged that the children were referred to the Adoption Panel in March 2000 on foot of a consent which was secured in advance of psychiatric confirmation of capacity to give consent. It was submitted that the adoption panel were unaware of the incapacity of H and acted on the basis that she was consenting. It was argued that independent legal advice ought to have been afforded to H and that the applicant had a duty to alert the Official Solicitor to their plan to secure consent in writing on 21 January 2000. I reject these criticisms. As I have already indicated in this judgment, I believe this Trust were extraordinarily patient in affording opportunities for rehabilitation before the decision was taken that permanency was now the only option. On behalf of H throughout these proceedings the adult learning disability team have been advocating her special circumstances and wishes. They have been actively engaged in the assessments and the continuing need for assessment. By her own admission H had been making it clear to various persons that she was unsure as to her ability to cope with the children. She records in her own statement "I saw Dr McPherson and she asked me how I felt about the children being in care. I told her honestly that I was not sure if I could cope with G and a new born baby". In a report of 29 December 2000 Dr Kenny McCartney referred to the issue of H's consent in the following terms:
"I do believe that (H) does have the capacity to understand if explained in simple language to her, the nature and purpose of both fostering and adoption. I also believe that she understands the principal differences between both of these processes. She also understands in broad terms what would be the consequences, both for herself and for (G and S). I believe (H) does have the ability to make a free choice and has clearly shown this in interview."
That view was clearly altered in light of the reports of Dr Shanks subsequently, but I see nothing inappropriate in the approach that the Trust made given the information that was before them. In my opinion they were quite entitled to make the deductions that they did at that time. Moreover any event, the court has now approached this matter fully on the basis that H not got capacity to give valid consent to the adoption and the matter has been looked at de novo. No prejudice has accrued to her in the presentation of her case and I therefore reject the submission that she is entitled to harbour a sense of grievance or injustice.
In light of these findings, I have considered the matters contained in the welfare checklist in Article 3(3) of the 1995 Order and I briefly summarise my conclusions as follows:
(a) Both children are too young to take into account their wishes and feelings other than to say that both children clearly appear to be in the process of forming a positive attachment to their present carers.
(b) The physical education and emotional needs of G are such that she clearly requires to form an attachment to a consistent care giver. She now has an opportunity to find emotional security through appropriate attachment with her primary carers and this opportunity was simply not afforded with H. So far as S is concerned, at her tender age she clearly needs consistency of care, emotional warmth and response on this from committed carers. I do not believe that this available from H.
(c) I concur entirely with the view of the Guardian Ad Litem that the likely effect upon G of any change in her circumstances would be negative given the number of significant moves and placements that she has already incurred. I also share her the view that a change in her circumstances at this stage would result in immediate disruption and future uncertainty. S has been cared for by her current carers in excess of one year. I cannot believe that any change in the circumstances can have anything other than a negative effect upon her.
(d) There is nothing particularly significant about the age, sex or background of the children.
(e) I have already indicated that I consider that there is a continued likelihood of significant harm to each of these children should they return to H's care for the reasons I have already set out in this judgment.
(f) Again for the reasons which I have already adverted to in this judgment I am not satisfied that the parents of either of these children or any other person in relation to whom the court considers the question be relevant, are capable of meeting the needs of either of these children.
I have considered the care plan and the arrangements for contact for these children (to which I will refer later) and I am satisfied that it is appropriate that a care order be made in each case.
I turn now to the application to free these children for adoption. I have concluded that an order freeing both these children for adoption should be made and I have come to this conclusion for the following reasons:
(i) I have regarded the welfare of these children as the most important consideration in arriving at this conclusion. Based on the factual findings which I have already made, I have concluded that both these children were born into a life of chronic instability and exposure to a world characterised by unpredictable dangers and fears which would only serve to deny them the safety and security to grow and develop normally. Given this situation I am satisfied that an adoption would be in their best interests, in that it will serve to promote the welfare of these children throughout their childhood and the need to safeguard them. Adoption is crucial to provide these children with a stable and harmonious home. Given their present carers, I am satisfied that it is likely that they will be speedily placed for adoption.
(ii) In my opinion adoption in the case of these children is preferable to long term foster care since it will afford these children the emotional, psychological and legal permanence and security which they so badly need. Long term foster care by its very nature introduces an element of uncertainty into the future and where, as in this case, I see absolutely no possibility of rehabilitation with the birth parents, and where on the other hand I see evidence of a deep and responsible commitment on the part of the present carers who wish to adopt these children, then I have no hesitation in concluding that adoption is in the best interests of the welfare of these children. I make no apology for repeating the well trodden words of Ormrod LJ in Re H (1981) 3 FLR when he said:
"That answer is always the same – and it is always a good one – adoption gives us total security and makes a child part of our family and places us in parental control of the child; long term fostering leaves us exposed to changes of view of the local authority, it leaves us exposed to applications and so on by the natural parent. This is a perfectly sensible and reasonable approach: it is far from being an emotive one."
Having concluded therefore that adoption is in the best interests of the child, I must consider whether parental consent should be dispensed with on the grounds of that Trust has satisfied me that the parent H is withholding her consent unreasonably in each case. I have concluded that H is withholding her consent unreasonably and I have come to this conclusion for the following reasons:
(1) Having regard to all the evidence which I have heard and which I have already commented on in the course of this judgment, and in applying the current values of our society, I believe that the advantages of adoption for the welfare of these children (to which I have already adverted) are sufficiently strong to justify overriding the views and interests of H.
(2) I have judged the reasonableness of her refusal to consent at the date of his hearing and it is at that stage that I have considered that H is withholding her consent unreasonably.
(3) I have taken into account all of the circumstances of the case and in particular the factual findings that I have set out in this judgment. These serve to persuade me that H is withholding her consent unreasonably.
(4) I have recognised that while the welfare of the child has been taken into account it is not the sole or necessary paramount criterion.
(5) I have applied an objective test. I have come to the conclusion that a reasonable parent in the position of H, given the factual findings that I have made, could not withhold consent.
(6) I recognise that the test is reasonableness and I have applied that criterion.
(7) I have been wary not to substitute my own view for that of the reasonable parent.
(8) I recognise that there is a band of differing reasons, each of which may be reasonable in any given case. In this case however I do not consider that there is any reason which would justify withholding consent to this adoption.
There is now good attachment with the present carers. Dr Leddy has indicated that in the case of G if this secure attachment was now to be broken in the short term the child will exhibit anxiety and regress babyhood. There would be short term damage and impact on her ability to learn. Dr Leddy emphasised that the child needs stability to embark on school life. Long term she felt that a break with the present carers would lead to an increase risk of anxiety and depression with difficulty investing in relationships with people who are meant to be forever. So far as S is concerned, Dr Leddy recorded that the child is in a good relationship with the present carers which gives her security to carry into her present relationships. There is no special relationship with H. Dr Leddy considers that the risk of damage to S's development far outweigh the benefits of improving the relationship as it now exists between H and S. She considered that S would become anxious, confused and would regress to a more baby-like behaviour if her current placement was changed. Already the insecurity of the child had been observed in her behaviour. The secure relationship with the present carers is absolutely vital to the development of this child. Consistency of approach is essential to the development for each of these children in the future. The facts as I have found them clearly militate against this happening if the children are not adopted and I consider that a reasonable parent would recognise this. In these circumstances I have no hesitation in making an overall conclusion that H is withholding her consent to adoption unreasonably.
There is an application before me by H that contact with the children be increased from its present level. I dismiss this application for the following reasons:
(i) I share the view of Dr Leddy that contact should continue at two times per annum. More frequent contact in the circumstances of my orders would I believe undermine the sense of stability which these orders are meant to create and would only cause confusion in the mind of the children. Although S is younger, I think it is important that contact remain at the same level to avoid sibling rivalry and misunderstandings if the two of them are not treated in the same way in the context of contact. Provided G and S and indeed H are supported by the adopted parents, and it is not seen to undermine their ability to grow increasingly secure within the present family, then contact in the immediate post adoptive period could be maintained at the current levels of twice per year. I share the view however of Dr Leddy that in the medium and longer term, contact may need to be altered to take account of the changing needs of G and S. To that extent the location of the contact may need to be varied or there may be periods when contact by letter may increase or the frequency of face to face contact diminish.
(ii) Turning to S, I again share the view of Dr Leddy that the current level of contact will enable S to develop a realistic understanding of the circumstances leading to a separation from H and will serve to reassure her that H loves her. This should enhance S's self esteem. This level of contact will also reassure S over time of H's well-being and provide her with an understanding of her personal history. On the other hand an increase in contact between S and H would not be in S's interest. It is unlikely to have any positive effects and would run the risk of confusing S regarding the nature or relationship and the stability of replacement with her current carers.
I therefore order that pending any application for adoption the persons with whom S and H live will permit H to have contact with each child twice per annum.