High Court of Justice in Northern Ireland Family Division Decisions

Neutral Citation no. [2001] NIFam 2

Ref:    

HIGF3274

 

 

 

Judgment: approved by the Court for handing down

Delivered:

02.02.2001

(subject to editorial corrections)

 

 

   

                                                               

 

      IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND FAMILY DIVISION ________ RE: E and M (Applications to Free for Adoption) (1999/3F and 4F) ________

HIGGINS J

            These are applications to free for adoption without parental agreement the two children of Mrs McA and Mr S who have never married.  E was born on 5 December 1994 and M was born on 22 October 1996.  The applicants are North and West Belfast Health and Social Services Trust who apply for the Court to dispense with the agreement of Mrs McA and Mr S to the adoption of their children on the ground that their agreement is unreasonably withheld.  The Adoption (NI) Order 1987 (the Adoption Order) has been amended in several important respects and new Articles or paragraphs substituted by Schedule 9 to the Children (NI) Order 1995 (the Children Order).  In this judgment the Adoption Order is referred to in its amended or substituted form.

            Article 18 of the Adoption (NI) Order 1987 states:

"18.-(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.

(2A)    For the purposes of paragraph (2) a child is in the care of an adoption agency if the adoption agency is a Board or HSS Trust and he is in its care.

(3)       Paragraphs (3) and (5) to (7) of Article 17 shall apply to an order made by a court under paragraph (1) as they apply to an order made by a court under Article 17(1)."

Article 17(3) of the Adoption (NI) Order states:

"On the making of an order under paragraph (1), parental responsibility for the child is given to the adoption agency, and paragraphs (2) to (4) of Article 12 shall apply as if the order were an adoption order and the agency were the adopters."

 

            Prior to the implementation of the Children Order an unmarried father was not a parent for the purposes of the Adoption Order and his agreement to either the adoption of his child or the freeing of the child for adoption was not required under that Order or dispensed with by the Court.  The grounds upon which a Court can dispense with the agreement of a parent are set out in Article 16(2) of the Adoption Order as amended:

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

(a)       cannot be found or is incapable of giving agreement;

(b)      is withholding his agreement unreasonably;

(c)       has persistently failed without reasonable cause to discharge his parental responsibility for the child;

(d)      has abandoned or neglected the child;

(e)       has persistently ill-treated the child;

(f)       has seriously ill-treated the child (subject to paragraph (4))."

 

Article 2(2) of the Adoption Order as amended now defines a parent as follows:

"'Parent' means in relation to a child any parent who has parental responsibility for the child under the Children (NI) Order 1995."

 

"Parent responsibility" (and Parent Responsibility Order) have the same meaning as in the Children Order.  Article 5 of the Children Order provides that where a mother and father were married to each other at the time of the birth of the child each shall have parental responsibility for the child.  Where the mother and father were not married to each other at the time of birth the mother only shall have parental responsibility.  The father shall not have parental responsibility unless he acquires it either by order of the Court under Article 7(1)(a) of the Children Order or by agreement with the mother.  An agreement with the mother must be in the form prescribed and recorded in the manner prescribed by the Children (Parental Responsibility Agreement) Regulations (NI) 1996 (SI No. 455/1996).  On 22 February 1999 Mrs McA Mr S entered into a Parental Responsibility Agreement, on the prescribed form.  This was duly recorded before the Master and by the agreement, Mr S required parental responsibility for E and M.  Article 6 of the Children Order defines 'parental responsibility' as all the "rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".  Thus Mr S is a parent (as he has parental responsibility) for the purposes of the Adoption Order and Article 18 and as such his agreement to the making of an order must either be obtained or dispensed with on one of the grounds set out in Article 16(2).  This does not mean that unmarried fathers either with or without parental responsibility are now to be treated as parents for all legal purposes.  However for the purposes of this judgment I may for ease of reference refer to Mrs McA and Mr S as the parents of the two children concerned.

            Mrs McA married RMcA and they had five children.  Later they separated in 1993.  Fit Person Orders under the Children and Young Persons Act 1968 were made in respect of all five children in 1989 and following a decision in 1994 they remained in care thereafter.  The reasons put forward for this were Mrs McA's misuse of alcohol, her style of parenting including severe discipline of the children and relationship problem Mr S with Mr McA.  Mr McA died on 13 July 1996.  Mrs McA commenced a relationship with Mr S who is 13 years her junior.  They commenced cohabitations in 1994.  Shortly after E was born.  Social Services had been made aware of Mrs McA's pregnancy and in view of the history of Mrs McA's parenting abilities consideration was given to the strategy which Social Services should adopt.  As summarised by the Guardian Ad Litem several supportive services were offered including a family support worker, childminder, parental assessment and advice at Whiterock Family Centre and Shankill Resource Centre as well as advice to Mrs McA by a playgroup leader.

            Prior to the birth of E a Child Protection Case Conference was held on 28 September 1994.  It was decided to place the child's name on the Child Protection Register under category of 'neglect'.  The conference recommended that the parents attended Whiterock Family Centre for assessment of their relationship and parenting abilities.  Both parents attended the Family Centre.  The conference also recommended that after the baby was born the family should either undergo a six week assessment at Thorndale Family Centre or remain at home with support and monitoring.  After E was born Social Services decided that she and her parents could go home which she did on 9 December 1994, with support and monitoring to take place.  Thereafter a pattern began to emerge – the father worked long hours and often at weekends and the mother had difficulty in coping on her own and complained about his lack of support and assistance.  The relationship between them was not very stable.  There were reports of rows and domestic violence and damage to the home and its contents.  The police were called to the home occasionally and there were allegations that Mrs McA was drinking at times when Mr S was working.  Social Services.  appear to have formed the view that the father was largely responsible for the domestic violence, and the damage and the police being called.  It was never satisfactorily proved independently of the couple who was responsible for the situation in the home.  However having heard both Mrs McA and Mr S give evidence I was not satisfied that the view formed by Social Services was the correct one on all occasions.  Mr S is a shrewd laid back person with a firm view, not untypical in this jurisdiction, that it was his responsibility to work and earn money and Mrs McA's responsibility to look after the home and the children.  To that extent he gave little support to Mrs McA to cope with the home and the children.  When she gave evidence there were occasional glimpses of her volatility and I could well understand the situation portrayed by Mr S (though not all the time) that she would lose her temper with him and he would retreat until she had calmed down.  This probably infuriated her more.  She was not the only one annoyed by this casual approach that everything would work itself out.  Social Services were demanding of him and he would determine he would do things his own way and in his own time.  He failed or refused to understand Social Services concerns and was probably unaware of Mrs McA's drinking or the extent of it and her problems with the children of her marriage.  To a certain point his attitude to Social Services was reluctant tolerance and often indifference.  His relationship with the social worker on the ground was poor.  He probably treated her demands in the same way as he treated Mrs McA's volatility.  He was not impressed with lectures on child psychology or how to rear children.  He appears to have a strong personality that was not swayed by the Social Services articulated views about his children.  I suspect this rebuff in return infuriated Social Services who were determined from the outset that what they perceived to have occurred with Mrs McA's children from her marriage was not going to happen to her children by Mr S.  The failure of Social Services and Mr S to engage with each other and understand their respective points of view as well as Social Services view (wrongly in my opinion) that he was largely responsible for domestic violence and damage and the volatile relationship between the couple were contributory factors to events as they subsequently occurred.  Throughout this period there were regular Child Protection Care Conferences.  At one of these on 5 December 1995 Mrs McA expressed concern that E had "headbanged", that is struck a wall or an object with her head on a number of occasions.  On 22 October 1996 M was born.  This was alleged to have increased the pressure on Mrs McA who felt she had little support from Mr S in caring for two small children.  However it would appear that she was occasionally drinking to excess after M's birth.  Reports began to emerge of Mrs McA's rough handling of E and of shouting at her.  It was the view of Social Services that while Mrs McA was able to cope with and care appropriately for small babies, once they became toddlers and began to assert themselves she lacked the skills to deal with this new situation and its demands.  There were no concerns about her physical care of the children nor was there any doubt about her love for them.  Concerns appeared to centre on her reaction, largely irritation, to what would be considered normal behaviour for a young child.  It was felt that this was what had occurred with her other children by her marriage and led to them being taken into care.  A determination to avoid a repetition of what Social Services considered to be her parenting deficiencies became evident and was the driving force behind events as they unfolded.  The tempo of Social Services involvement with and guidance of the family to their way of thinking increased from the early summer of 1997.  At a Child Protection Case Conference Review on 25 June 1997 it was decided that E and M would remain on the Child Protection Register, the potential risk being neglect.  In the case of E it was decided that she was at risk of "emotional abuse".  This is a term often used by social workers.  It can cover a multitude of situations.  Where it is used the circumstances which justify it require to be clearly set out and capable of clear definition.  At this Review it was also decided that the Children's Resource Team commence a six week assessment of E's emotional needs and Mrs McA's parenting capacity and also to attempt to undertake a psychological assessment of E.  It was also decided that alternative options to E remaining at home would be identified.  I am satisfied that Mrs McA was only allowed to take E home on sufferance and that in view of Social Services concerns about Mrs McA's parenting style alternative care for E was always in the background.  From an early stage that alternative care was identified as adoption, but not openly recorded as such, yet it remained the objective to which Social Services strove and which often guided their decisions.  The impression that Social Services decided at an early stage that E (and if necessary M) should be adopted was never removed.  By August 1997 the social worker in charge was reporting that the attempts to assess the mother's parenting capacity and to carry out a psychological assessment of E had not met with success.  Mrs McA was stating that she saw no need for this and was not accepting that E was at risk of emotional damage as a result of her parenting.  At a review held on 13 August 1997 the social worker reported that without a psychological assessment of E it was impossible to fully gauge the impact of Mrs McA's behaviour towards E.  Mrs McA had attended some sessions at the Children's Resource Centre.  The minutes of this meeting disclose that the concerns about Mrs McA included – that she seemed to find little positive to say about her feelings towards E; that she was very directional towards E who was acting as a normal two year old; inconsistent interaction by Mrs McA with E; that her expectations of E were too high for her age and that while there were times she demonstrated some warmth with E she was also observed to be rough in her handling of her.  The Review recommended that an application be made for interim care order in respect of E and for a direction regarding psychological assessment with E to remain with her parents pending the outcome of the application to the court and for the social worker in charge to liaise with the Children's Resource Team in relation to the psychological assessment if directed by the Court.  It also directed that the next review be carried out in February 1998.  On an application for a care order under Article 50 of the Children (NI) Order 1995 a Court may, under Article 57, make an interim care order if the court is satisfied that there are reasonable grounds for believing that the child is suffering or is likely to suffer significant harm.  Under Article 57(6) where a Court makes an interim care order  it may give such directions as it considers appropriate with regard to the medical, psychiatric examination or other assessment of the child.  A clear need for such an examination or assessment of the child requires to be demonstrated before it should be directed by a Court.  The Review did not consider or identify the alleged significant harm which E was suffering or was likely to suffer.  In the absence of such significant harm a decision to seek an interim care order for the purpose of securing a direction by the Court that E undergo a psychological assessment was unwarranted.  The Children Order does not permit such use of Article 57(6) to secure an assessment of a child in the absence of parental agreement.  When an application is made for a care order the C2 application and any report filed in support of such an application should clearly identify the type of significant harm which it is alleged the child is suffering or is at risk of suffering.  This is necessary not only to enable the Court to determine whether or not there are reasonable grounds for believing that the threshold criteria have been met, but also (if so satisfied about the criteria) to determine whether or not it is appropriate to direct the type of assessment contemplated by Article 57(6).

            Social Services were also attempting to engage Mr S in a psychological assessment.  He had attended one session at the Children's Resource Team but declined to attend further as he did not consider it necessary.  On 5 November 1997 he agreed to attend a psychologist but would not guarantee his attendance because of his substantial work commitment.

            On 10 November 1997 the Trust applied for a care order.  The application form C2 did not set out the reasons why the care order was sought but stated baldly "see social worker's report" (I have already commented in other cases that this practice should cease as it is of no assistance to the Court).  The case was listed for 4 December 1997 and the social worker report is entitled "Report for Court 4 December 1997".  In this report the entire history of Mrs McA, her marriage, her children by that marriage and the history of her relationship with Mr S and the circumstances of E and M, as understood by Social Services, is set out.

            It identified the emotional abuse which Mrs McA's children by her marriage experienced as –

1)         a parent relationship which was characterised by poor communication, frequent rows with verbal and physical abuse and alcohol abuse;

2)         Mrs McA feeling pressurised as the main carer with very little support from her husband in parenting the children and no other social supports;

3)         the parents' inability to consistently manage the children's behaviour;

4)         their difficulty in expressing affection and meeting the children's emotional needs;

5)         Mrs McA's personal history where she was physically abused as a child;

6)         Mrs McA's volatile personality and unpredictable temper which could be triggered by events unrelated to the children but led to her physically punishing them.

7)         Mrs McA's difficulty in coping when under pressure.

8)         Mrs McA's automatic response of the use of violence with her children and her beliefs that this was necessary.

9)         Mrs McA's lack of understanding of child development.

It makes clear that Social Services were concerned to "prevent E and M suffering from either the emotional or physical abuse their half-siblings experienced" and to that end sought to engage their parents in addressing their concerns as highlighted in the Report.  The Report comments that Mr S had consistently disengaged from contact with Social Services regarding his children, whereas Mrs McA exhibited a desire to continue to care for her children.  The children were physically well cared for by her.  It goes on to state that she "never intentionally caused harm to any of her children and therefore has difficulty in understanding or accepting Social Service's assessment of concern."  Later it comments that "she does however love her children and there appears to be an attachment to her.  It would also appear that she genuinely does not understand the changing needs of her children".

The report recites that at the Review held on 13 August 1997 it was recognised that it was essential for this programme of work to be completed including "the possible additional psychological assessment of Mrs McA".  The grounds for believing that the threshold criteria set out in Article 50(2) of the Children Order were met are stated as "Mrs McA's past history of parenting and the present concerns indicated in this reporting regarding the emotional development of E".  It goes on to state that "assessment of E would establish whether or not she is presently or likely to suffer significant emotional harm.  It would provide information on whether or not Mrs McA has the capacity to change and if so, how this can be best effected."

            It states that "an assessment [of Mrs McA] is required to establish whether Mrs McA has the capacity to meet E's emotional needs.  Mr S has shown that he takes little or no responsibility for the care of E.  He is unsupportive to [sic] Mrs McA and his violence to Mrs McA could potentially be harmful to E.  While Mr S would be invited to be included in such an assessment he has already refused to be involved and has little input in the case of E". 

            Later the report states: "there is insufficient evidence regarding significant harm to the child to justify an order to remove E from the care of her mother" and goes on to state that an Interim Care Order "would give parental responsibility to Social Services in order to direct an assessment of E and her mother is completed without E being removed from the care of her mother".  Finally under the Heading – Child's Welfare in Paramount – the report states:

"The child's welfare is the paramount consideration in making a recommendation to the Court.  In order to make an informed decision regarding the best interests of the child, a full assessment of E and her mother is required.  To date, Mrs McA has not been prepared to engage consistently in this work .  I would therefore recommend that an Interim Care Order for a period of 8 weeks be granted in order to give Social Services parental responsibility for ES [sic] to achieve a psychological assessment of E and assessment of Mrs McA's ability to parent her without significant harm to the child.  An Interim Care Order would allow E to remain in the care of her mother while the work with the family is progressed."

 

Regardless of the merits of this case for the making of a care order there are a number of matters about this application and the report in support of it which give rise to concern that the purpose of the Children Order is not fully appreciated.  While every person or organisation would wish to safeguard the interests of children, the Children Order has made significant changes to the law to enable such safeguards to be achieved.  Part IV of the Children Order makes provision for support for children in need and their families.  Article 18 of the Order imposes a general duty on authorities (which includes Trust's) to safeguard and promote the welfare of children and so far as is consistent with that duty, promote the upbringing of such children by their families by providing services appropriate to the needs of the children.  The paramountcy principle, that the child's welfare shall be the paramount consideration, applies only to a Court which is determining any question with respect to the upbringing of a child – see Article 3.  A care order should only be sought where there are grounds for believing that a child is suffering significant harm or is likely to suffer significant harm.  Where an application for a care order is adjourned a court may make an interim care order (or interim supervision order) where it is satisfied that there are reasonable grounds for believing the child is suffering significant harm or is likely to suffer such harm.  It is not appropriate to request a Court to make an interim care order (rather than a care order) or an interim supervision order for the purpose of transferring parental responsibility to a Trust in order to achieve an assessment of a child or a parent or both.  The Order establishes clearly the circumstances in which the Court may direct an assessment of a child.  In some circumstances the assessment of a child and parent may be directed by the Court but the criteria for such a direction are restricted – see Homefirst Community Health and Social Services Trust –v- EH Re AH (A1/2000/OCP) (as yet unreported) and the cases referred to therein.

            It would appear that at that time the case being made by the Trust was not that E had or was suffering significant harm but that she was likely to, based on the understanding as to why Mrs McA's five other children came into care.  The significant harm alleged appears to be emotional harm which might result from her mother's parenting style.  Such cases are (as indeed this case was) based on theories of a child psychology and psychological evidence.  Whether the theories are challenged or not the outcome is often dependent on the interpretation of such evidence.  They are difficult cases.  It is important that applications under the Children Order are heard in the Court which is most appropriate for the nature and type of case involved.  The Allocation of Proceedings Order provides criteria for the transfer of cases from one Court to another.  The Family Care Centre is a specialised Court established to hear care proceedings and should hear the more difficult and important applications under the Children Order (the Care Centre can transfer to the High Court cases which it considers should be heard at that level of Court).  Applications for care orders based on alleged emotional harm involving psychological evidence and theory are worthy of transfer to the Family Care Centre (if not to the High Court).  The Family Division in England Wales have expressed similar views.

            When the application came before the Family Proceedings Court on 4 December 1997 the Trust applied and was granted leave to amend their application for a care order, to an application for an interim supervision order.  The criteria for making a supervision order (or an interim supervision order) is the same as for a care or interim care order.

            It appears that on 4 December 1997 a Direction Hearing under Rule 15 of the Magistrates Courts (Children (NI) Order 1995) Rules (NI) 1996 took place.  The Court made an interim supervision order in respect of E and various directions were given.  These included that a report in respect of Mrs McA be prepared by Dr Philip Pollock, a Consultant Adult Psychologist, and that a report be prepared by the Children's Resource Team, both reports to be filed with the Court by 6 January 1998.  It would appear from the Court documentation that the applicant Trust, supported by the Guardian Ad Litem, requested the Family Proceedings Court to give directions pursuant to Schedule 3 paragraph 3(1)(c) to the Children Order, that both parents attend the Children's Resource Team on the Shankill Road.  Paragraph 3(1)(c) of Schedule 3 does not empower a court to direct that parents should attend for assessment or examination by psychiatrists or psychologists or other such qualified persons.  It empowers a Court to include in the supervision order a requirement that a responsible person (which can include a parent) comply with directions given by the supervisor to attend either with or without the child for the purpose of partaking in specified activities, with the consent of the responsible person.  Activities, which is not defined, does not include assessment by psychiatrists or psychologists or other such qualified persons.  Under Article 57(6) of the Children Order, a Court may when making an interim supervision order give directions with regard to the medical or psychiatric or other assessment of a child.  No directions under Article 57(6) appear in the Court documentation.  In certain circumstances an assessment of a child may include an assessment of the parents also, but it is difficult to envisage circumstances in which directions under Article 57(6) could refer to the adults alone.  The purpose of a direction hearing is to give directions as to the conduct of the proceedings in particular to timetable the proceedings, not, with certain exception to which I have referred to direct examination and assessments of any party, including the child or to direct a party's proofs.  These are matters for the parties to either agree or engage in unilaterally, but should not be the subject of Court directions.  It was suggested to the Court by the Guardian Ad Litem that if the requisite consent was not forthcoming for a requirement under Schedule 3 paragraph 3(1)(c), that the Court may consider making an interim care order instead.  I do not consider such an approach would be helpful to a Court or appropriate in deciding whether or not to make an interim supervision order.  The consent of a responsible adult should be freely and genuinely given and co-operation which is extracted in this way is unlikely in the long term to be beneficial.

            Mr S did not keep an appointment with Dr Pollock scheduled for 10 December 1997.  He said this was due to work commitments.  As directed by the Court Mrs McA attended the Children's Resource Team for assessment on three occasions – 12 December, 15 December and 22 December 1997.  The assessment was carried out by Mrs Alcorn who envisaged weekly sessions for 3-6 months.  However subsequent events prevented this.  During the course of these sessions Mrs Alcorn consulted with Dr Pollock and with Dr Donnelly a clinical psychologist attached to the Children's Resource Team.  At the end of the three sessions she reported to the social worker in charge and consulted Dr Donnelly and Dr Pollock.  Then she reported to the Court.  Mr S did not attend the sessions which caused Mrs McA some concern.  At the outset of the first session Mrs McA said the only reason she was attending the Children's Resource Team was because the Court had directed her attendance.  The first session was used to explain what was proposed and the following two sessions to observe Mrs McA's ability to meet E's emotional needs and to assess her interaction with E and her management of E's behaviour.  The plan included observation/assessment of child – attachment to parent(s).  E was present on each occasion.  She noted little physical affection between mother and child, that there was some "rough handling" by the mother and difficulty in dealing with the child's tantrums.

In her progress report to the Court dated 5 January 1998 Mrs Alcorn concluded –

"From observation Mrs McA seems to find it difficult to concentrate on more than one task at a time, her mood fluctuates and she can be easily distracted.  She has a reasonable attachment to E but seems unable to express warmth she seems unable to recognise patterns of behaviour and her own behaviour can be inconsistent with loss of control in times of stress."

Mrs McA saw Dr Pollock on four occasions and his report is dated 5 January 1998.  Mrs McA had attended Dr Pollock prior to the Court proceedings of 4 December 1997 as part of the Children's Resource Team work.  In addition to speaking to her he had access to all the documents and reports held by Social Services about Mrs McA and all of her children.  He found her to have an IQ on the Wechsler scale of 74 from which he concluded that she "demonstrates a lack of cognitive complexity which greatly affects her ability to tolerate the cognitive demands when experiencing stress".  She feels overwhelmed by the demands of a number of problems at one time and becomes frustrated and anxious: she deals with this often by opting out.  At other times she manages the problem forcefully which he found evident in her displaced physical or forceful management of her children.  This he found due essentially to her lack of cognitive resources in problem solving.  Her poor intellectual ability, forceful style of child management and difficulties tolerating stressful experiences blended to produce an unhelpful pattern of parental behaviour.  His opinion was that her parenting style was an unfortunate product of her personality and personal history and not gratuitous aggression towards her children.  He described her attachment to the children as well-meaning but inconsistent behaviourally.  This inconsistency breeds a sense of confusion about limits and boundaries for the children, with little interest at times and forceful management at others.  This  he concluded was "essentially detrimental to the development of emotional well-being in the children.  Her non-contingent and brusque management of the children is of most concern."  His opinion was that "she does not show sufficient indications of parenting her present children in a qualitively different or better fashion than her previous children.  Her capability to change her style of parenting is very limited and intensive [work] in the past has not produced any adequate long-term change."  He did not consider she would be able to absorb principles of good child management and apply them consistently.  His general conclusion was that the issue was not Mrs McA's willingness to provide care for her children but her capacity to do so over the years when the children would develop.  He identified the main area of risk as emotional dysfunction for the children if Mrs McA provided the style of parenting which he identified.  He concluded that "it would be most beneficial in the long term for Mrs McA to remain in contact with the children … but placement to be elsewhere."

            This report was a critical and crucial evaluation of Mrs McA, her parenting style and her relationship with her children which was based on interviews with her and all the Social Services documentation and written in the acknowledged context of ongoing care proceedings and subsequently presented to the Court in support of them.

            Both Dr Pollock's report and Mrs Alcorn's report were provided to the social worker in charge of the case.  She in turn wrote a report for the Court dated 13 January 1998 which was based to some extent on these two reports.  I have some reservation about the propriety of that course of action when the reports were directed by the Court to be prepared for the Court and lodged on a certain date.

            On 6 January 1998 the Trust applied for a care order in respect of Mr S citing as the reason that –

"On 4 December 1997 an Interim Supervision Order was granted in respect of E S with directions for Mrs McA and Mr S to undertake an assessment regarding their parenting, including a psychological assessment.  Concerns had become evident that Mrs McA pattern of parenting her older children were being repeated and if these remained unchanged, could cause harm to her younger children.  The psychological assessment has been completed and indicates that Mrs McA is unable to change her parenting style.  Based on this assessment and the known history, it is therefore the opinion of the professionals involved that this pattern will continue and M is therefore likely to suffer significant harm if he remains in his mother's care.  Mr S has repeatedly not participated in any work with Social Services."

 

Thus when the case came back before the Family Proceedings Court there were two applications – one for a supervision order in respect of E and a care order in respect of M.  The social worker in charge of the case provided a detailed report (undated) for the hearing on 13 January 1998 which make clear that the Trust were seeking care orders in respect of both children.  In this report the social worker referred to the purpose of the psychological assessment of Dr Pollock – "to give information regarding Mrs McA's ability to effect any changes required in her parenting and to establish if she could meet E's emotional needs."  She stated that Dr Pollock's assessment indicates that Mrs McA does not have the ability to change her parenting style and that the inconsistencies in her care cannot adequately meet her children's needs and is likely to result in significant harm to the child."  At best that is an overstatement of what Dr Pollock said in his report to the Court.  Later she stated that it is "the recommendation of both Dr Pollock and Mrs P Donnelly (psychologist) who has been consulted following Dr Pollock's assessment, that as Mrs McA is unable to make the changes required, further assessment at the Children's Resource Team would not achieve anything positive.  Social Services would also be concerned that this would cause further delay which is not in E and M's best interests".  In relation to M she comments that there is no direct evidence that he has suffered significant harm to date but that as with E, Social Services have concerns that he is likely to suffer emotional damage as a result of Mrs McA's parenting.  In her summary she acknowledged that Mrs McA was well intentioned towards her children and that she had feelings of love for them and a desire to care for them.  However she was left to care for them on her own and was unable to meet their emotional needs.  She stated that "her volatile personality and unpredictable temper could place the children at risk of physical harm …  It is the view of the professionals involved that Mrs McA's parenting style and Mr S's lack of support and violent behaviour places both E and Mr S [sic] in a situation where they are likely to suffer significant emotional and physical harm."  In her conclusion and recommendations she states that the threshold criteria are met by (i) Mrs McA's past history of parenting; (ii) her inability to change; and (iii) the present concerns indicated in this report.  In outlining the welfare checklist regarding E she states that a change of circumstances for E's care would be recommended.  "While E appears to have an attachment to her mother the quality of this attachment is unclear.  Whilst in the short term removal from her mother is likely to be distressing for E, she is young enough to be able to make new attachments…  As Mrs McA's parenting style is fixed, an arrangement which offers security and permanency to E would be in her best interests.  Long term foster care is one option but the issue of adoption needs to be given careful consideration.  Additional psychological assessment of E's attachment to her mother would need to be undertaken in relation to this option".

            Later in a separate paragraph she states that "reports from Dr Pollock (Adult Psychologist) and Mrs P Donnelly (Child Psychologist) would indicate that E is likely to suffer significant emotional harm as a result of the care given to her by her parents".  Furthermore Mr S's violence towards Mrs McA is potentially harmful to the child.  Later when referring to the care order sought she stated that "Social Services believe that there is sufficient evidence to show that Mrs McA's parenting is likely to cause significant emotional harm to E S [sic].  Her parenting coupled with Mr S's level of violence adds to the risk of emotional harm and potentially to E's physical safety.  Opportunities for change have not been taken by Mr S and psychological assessment of Mrs McA indicates that she does not have the ability to change.  In order to prevent E from being harmed, a removal from her parents' care would be necessary".  Finally she recommends to the Court that a care order be made "on the basis that the parenting E is receiving is likely to cause her significant harm, to her emotional psychological and possibly her physical well being.  This would allow E to be removed from her parents' care and placed in short term foster care until decisions are made for her long term future".  Similar views are expressed in respect of M.  Attached to the report was a care plan for each child.  In the event of a care order being granted the care plan provided for a planned move to foster care for E and for frequent and regular contact with her parents, in the short term at least twice weekly with a regular review of frequency.  Further assessment of the attachment of E and her mother would determine the level of contact in the long term.  For M weekly contact was envisaged.

            On 6 January 1998 Mrs McA sustained a fracture to her right wrist in an accident.  This restricted her ability to care for the children and Social Services provided assistance.  Respite care was proposed but was rejected aggressively by Mr S.  This resistance by Mr S to Social Services intervention and his opinion that none was required was not untypical of his attitude from the outset until mid January 1998.

            The cases came before the Family Proceedings Court on 13 January 1998.  In addition to the reports of the social worker in charge, Dr Pollock and Mrs Alcorn, the Court was supplied with a report dated 7 January 1998 from Mrs P Donnelly a consultant clinical psychologist, attached to the Children's Resource Team.  Mrs Donnelly had been involved with the family through the Children's Resource Team for some time.  Mrs Donnelly was asked by Social Services to comment on the probability of future psychological risk to E S [sic] while in her mother's care.  To facilitate this she met with the social workers and the Guardian Ad Litem and had access to the reports of Dr Pollock and Mrs Alcorn which were directed by the Court.  She referred to Mrs McA's five other children who were "removed from their mother's care because of emotional abuse and neglect.  All five children are now exhibiting significant levels of disturbance in their behaviour and emotional relationship and all have continued to have a poor relationship with their mother".  These children were the subject of Fit Person Orders in 1989 and had been in care of one form or another over the preceding eight years when this report was written.  The precise reason for their being taken into care (as opposed to what was put forward) is not clear.  In one report it is suggested that Mrs McA had left the matrimonial home due to Mr McA's violence and behaviour and that it was during this period that the 'Fit Person Orders' were made.  On 31 October 1989 each of the five children was ordered to be removed to Adelaide Park Children Home due to lack of care, protection and guidance and on 5 December 1989 each was committed to the care of the Eastern Health and Social Services Board on the application of the NSPCC.  They were aged between 3 years and 12 years at the time.

            In an assessment of E carried out on 8 October 1997 Mrs Donnelly concluded she was a "child of average development who had established emotional attachments to her mother and her brother … but did not exhibit significant levels of emotional disturbance."  This was still her opinion on 7 January 1998.  She then wrote:

"5.       In the light of Dr Pollock's assessment as well as the considerable input given over many years by Social Services to support and improve Irene's parenting skills, it no longer appears realistic to expect that this will improve in the future.  I do not, however, believe Mrs McA's poor parenting and its detrimental effects upon her children to be maliciously intended but to be largely outside her control.  It appears to be the case that as her children grow and make more complex demands upon her, the additional stresses further exacerbate the poor parenting.

6.         Whilst no significant emotional disturbance has yet been detected for E (or her brother M) one must anticipate that it is unlikely to remain so and that the probability of significant harm to their emotional and social well being in the future is high.  This pattern mirrors that described for the older McA children which resulted in them developing highly distributed behaviours and difficulties in placement …   Placement of children at the earliest age, prior to the development of such behavioural patterns improves the long term prospects for the children."

 

Mrs Donnelly then recommended that the Court make a care order in respect of E and M and that they be placed together.  She further recommended that contact be maintained between the children and Mrs McA at regular intervals and that "all further assessments and attempts to maintain the family as a unit cease as it is highly disruptive and creates unrealistic expectations".

            In her report to the Court for 13 January 1998 the Guardian Ad Litem recommended to the Court that a care order should be made in the case of E.  Although her inquiries in relation to M had not yet been completed she considered the concerns which applied to E applied equally to M.  She identified the overall plan for E to be either long term foster care or adoption with no prospect of rehabilitation with her parents.  She referred to the reports of Dr Pollock and Mrs Donnelly as indicating that it was likely that E would suffer significant harm if alternative care was not provided and that Dr Pollock's opinion was that Mrs McA's parenting style was "not open to change".

            By the time of the hearing on 13 January 1998 the injury to Mrs McA had a significant impact on the situation.  At the hearing Mr S, who at that stage was a putative father without parental responsibility (in law), requested that an assessment of his sole capacity to care for the children be carried out.  It was agreed that this would be carried out by Dr Pollock who would report to the Court at the next hearing.  Directions were given by the Court that the assessment take place and that a preliminary report be filed with the Court by 3 February 1998.  Interim care orders in respect of both children were made on consent until 10 February 1998 and the children were to remain at home.

            Dr Pollock's preliminary report took the form of a letter dated 3 February 1998 to the social worker in charge of the case.  Dr Pollock interviewed Mr S who co-operated with the evaluation.  He found that Mr S's personal history did not indicate any factors which impinged on his potential ability to provide sufficient care for his children.  Mr S was able to articulate the important issues in childcare and it was clear to Dr Pollock that he had given a great deal of thought to those issues and he presented himself well.  He was willing to disengage from employment and denote himself to the role of carer.  He denied Mrs McA's allegations of violence by him towards her and Dr Pollock noted this remained a questionable area.  In his conclusions Dr Pollock identified what he described as difficulties should Mr S be granted full responsibility for the children.  These were – (i) his little experience of day to day prolonged childcare  and questioned its feasibility on a practical level; (ii) such a role reversal would be difficult to monitor and would likely revert to Mrs McA as main carer.  He concluded that Mr S's motivation and abilities to provide care for the children required extensive and prolonged examination and testing at a practical level.  Meanwhile following the making of the interim care order on 13 January arrangements were made for the care of the children at home with Mr S continuing to work night shifts.  By 15 January the social worker in charge was not satisfied with Mr S's arrangements and commitments to the children and she removed the children to foster care.  Precisely what precipitated this other than the list of concerns expressed by the social worker in her report to the court for 10 February 1998, was never fully resolved.  The report states that Social Services believed the children were at risk but the significant harm to which they were at risk was not identified.  Mr S felt the social worker was pressuring him unnecessarily and he be came angry.  He made a remark about taking the children to Dublin where they would be beyond the reach of Social Services.  This was clearly a facetious remark, but the suggestion that it motivated what later occurred or was seized upon for the purpose was never fully rebutted.  Once the children were in foster care it was decreed that contact between the children and their parents should be once weekly for one hour.  According to the social worker's report for the hearing on 10 February the initial planning was for a high level of contact in familiar circumstances.  However Mrs Donnelly advised that contact on a weekly basis in a neutral environment would help E adjust, settle and understand better the "managements being made".  In the scheme of things this was a highly significant decision to which I will return later in this judgment.  Contact on this basis not surprisingly became a further source of friction between the parents and Social Services and had a tendency to affect the relationship not just between the parents and Social Services but between the parents themselves, as well as between the children and the parents.  To move from living together as a family unit to contact for one hour often supervised in the artificial surroundings of a room in a Social Services centre is a very difficult transition: such contact is an exacting exercise for parents and children alike (and probably for social workers as well) and difficult to sustain over months or years.  There is an impression (from those difficult cases which come to Court) that it contributes little to the maintenance of the relationship between parents and children and appears often to further its breakdown.  The nature, frequency and duration of contact after a child comes into care is a very difficult and sensitive issue which may have lasting effects on the development of a difficult case thereafter.

This case was originally fixed for hearing in September 1999 and was then adjourned until after the social worker in charge had given birth to her first child.  Following consultations in August 1999 directions were given that all contacts between the parents and the children be carefully monitored and all events recorded.  In the outcome this assumed an importance well beyond its direct relevance to the issues in the case.  It would be an exceptional case in which the nature of contact post an interim care order or a full care order, would be of meaningful significance in or determinative of the ultimate decision for the future upbringing of a child.  Such evidence may occasionally provide some confirmation of other evidence but a too - detailed monitoring system (sometimes and not without justification referred to in this case as nit-picking) may provide little evidence of real significance.  The rooms in various centres set aside for contact are often brightly painted and appropriately furnished.  But such surroundings cannot overcome the artificial nature of the whole proceedings.  I have often wondered whether and how a more imaginative form of maintaining contact between parents and children might be achieved.  The making of an interim care order or a full care order does not signal the end to rehabilitation and a return home, and the principles enshrined in the Children Order, whereby the family unit should be supported and maintained still apply, except in those cases where rehabilitation in some form can never be contemplated. 

            The report of the social worker in charge for the Court hearing on 10 February 1998, set out in detail what had occurred according to Social Services.  It further reiterated the case being made by Social Services in support of a full care order.  

The report also contains a summary of the case being made by Social Services at that time.  It states:

"It is the view of Social Services that a return home to Mrs McA and Mr S is likely to cause significant harm to the children and would therefore not be in the best interests of either child.  This is based on historical and current concerns regarding both Mrs McA and Mr Ss' parenting."

 

It then refers to Mrs McA and comments at paragraph 5:

"Assessments completed by Dr P Pollock and Mrs P Donnelly indicate that McA despite being well-intentioned towards her children, does not have the capacity to change her parenting style and the likelihood of her children suffering significant harm is high."

 

In relation to Mr S it comments that his role in parenting the children is limited, he had failed to engage with Social Services, not supported Mrs McA and refers to his violence towards Mrs McA and his possession of pornographic material.  Significantly at paragraph 2 it states:

"There is no evidence of an attachment between E and M with Mr S."

 

It then comments that:

 

"It is the view of Social Services that Mrs McA's parenting style and her inability to change this, coupled with Mr S's lack of support and violence places both E and M in a situation where they are likely to suffer significant emotional and physical harm."

 

The grounds for believing that the children were suffering or were likely to suffer significant harm and that the harm would be attributable to the care given to the children are "Mrs McA's part history of parenting, her inability to change this and the concerns "outlined in the report.  The report also states that the reports from Dr Pollock and Mrs Donnelly would indicate that the children were likely to suffer emotional harm as a result of the care given to them by their parents.  In relation to E the report comments that the quality of her attachment to her mother is unclear and that she is young enough to be able to make new attachments and that the issue of adoption needs to be given careful consideration.  [In the light of those comments, placed before a Family Proceedings Court in February 1998, claims by social workers that adoption had not been decided upon were disingenuous to say the least.]  The Care Plans for each child attached to these reports ruled out rehabilitation of the children to their parents.  The long term options for both were identified as foster care or adoption.  In the case of E it was stated that further psychological assessment in relation to the quality of her attachment to her mother would be required in order to make the most appropriate plans for her future. In the event this psychological assessment never took place.

            The Guardian Ad Litem (then Mrs McBride) submitted a report dated 6 February 1998.  In it she highlights the concerns of Social Services and the allegations.  She referred to the assessments of Dr Pollock and Mrs Donnelly that Mrs McA's parenting was detrimental to the children's emotional development.  In relation to this she commented that "it is probable that the likelihood of E and M suffering significant harm is high".  This would appear to be the basis upon which she recommended that a care order be made.  On 10 February 1998  a further interim care order was made and the hearing fixed for 2 March 1998.  A further report was lodged with the court by the Trust but this did not add anything of significance to what had already been submitted.  The case was contested and both Mrs McA and Mr S gave evidence.  A care order was made.  The grounds upon which it was made were listed as –

-            the risk of ongoing domestic violence between the parents;

-            Mrs McA is of such low IQ that she is incapable of caring for the children as they grow [up];

-            Mr S's ability and motivation to care for the children is highly questionable;

-            E is displaying sexualised behaviour which can only arise from exposure to inappropriate conduct within the home setting;

-            the concerns of the professionals are not shared by the parents and in the event of the children being returned home the parents would not co-operate with social services in the future;

-            the history of Mrs McA's five elder children and her own history of abuse call into question her ability to properly parent any child.

Article 50 of the Children Order provides that a court may only make 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 the child.  The type of harm referred to and which must be significant is ill-treatment (which includes sexual abuse and forms of ill-treatment which are not physical) or the impairment of physical or mental health or the impairment of physical, intellectual, emotional, social or behavioural development.  The case made by the Trust, through the reports submitted, was that the children were suffering or were likely to suffer emotional harm.  It is not clear what was meant by that label.  I assume it was intended to mean the impairment of emotional development. Before making a care order a court is required to be satisfied that harm which is significant is being suffered or is likely to be suffered.  Thus there must be evidence before the court which leads the court to be so satisfied.  In cases of ill-treatment the evidence of the harm alleged can be easily identified.  In cases of the alleged impairment of physical or mental health or, for example, the impairment of emotional or social development it may be less identifiable and may depend upon the evidence of psychologists.  Many if not most of these cases are sufficiently complex to justify transfer to the Family Care Centre, the court specially created for care order applications, or further transfer.  Allegations of sexual abuse or serious physical ill-treatment also qualify for transfer to the Family Care Centre (or further) but for different reasons.  In making a care order in respect of a child the court should record the type of significant harm which it is satisfied the child has suffered or is likely to suffer.  In the record of this case there is no finding of significant harm (its nature or type) about which the court was satisfied these children were suffering or were likely to suffer. More significantly the harm which was alleged by the Trust is not recorded and most of the matters recorded do not qualify as matters of harm which the children were suffering or were likely to suffer.  For example, the concerns expressed by social workers (or others) are not evidence of significant harm nor is failure of the parents to co-operate with Social Services.  This is not to say that a care order was not justified in the circumstances of this case at that time.  No appeal against the making of the care order was lodged.

            On 19 November 1998 Mr S lodged an application under Article 53 of the Children Order in the Family Proceeding Court for contact with his children to be defined.  On 26 January 1999 this application was transferred to the High Court to be consolidated with the originating summonses to free both children for adoption without parental agreement, which were lodged in the High Court on 25 January 1999.  Amended summons and Statements of Fact in support thereof were lodged in the High Court on 4 August 1999.  Mrs McA and Mr S also apply for a contact order under Article 53.

            Between the granting of the care orders and the lodgement of the originating summons to free for adoption a number of developments occurred.  Some of these are set out in the comprehensive report dated 20 October 1998 to the Adoption Panel and the reports dated 20 January 1999 submitted in support of the originating summons to free the children for adoption.  The possibility of Mr S alone caring for the children appears to have been dismissed, as this would, in the view of those concerned require extensive and prolonged examination which would be difficult to monitor.  No reasons in support of this opinion were offered.  Counsel on behalf of Mr S posed the question – why was he dismissed as a sole carer in this way.  The children were initially placed with experienced foster carers Mr and Mrs McC, but this placement was unsuccessful.  On 4 April 1998 the children were placed with alternative foster carers with whom they remain.  A good relationship developed between the children and these foster carers.  At a later date the foster carers expressed a more than casual interest in becoming prospective adoptive parents of the children but they withdrew their interest around Christmas 1999.  Thus alternative prospective adoptive parents have been sought and the present foster carers are expected to withdraw as carers.  Late in the hearing the Guardian Ad Litem informed the court that the Trust had made her aware that should a freeing order not be granted that this would place the Trust in grave circumstances as there are no persons willing to act as foster carers in the Trust's area.  This is not a factor which this court can take into consideration in these proceedings to free for adoptions; indeed it is doubtful whether such a matter should ever have been mentioned in the proceedings.  The Trust sought care orders in respect of both children which were granted and parental responsibility passed to them (jointly with the parents) and Article 27 and Part IV of the Children Order requires a Trust to provide maintenance and accommodation for children in their care.  While securing permanent arrangements for the upbringing of children in care (known colloquially as permanency) is appropriate in some cases, there is no requirement or onus on a Trust to apply for an order freeing for adoption, all children committed to their care.  It is only those children for whom adoption is best and whose parents agree to the adoption or whose agreement can lawfully be dispensed with, who should be adopted.  This is what the legislation requires and any other approach would be what Lord Templeman in Re K 1998 described as "social engineering" .  The decision as to which cases are appropriate for an application to free for adoption is sometimes a fine one and the timing of that decision may be crucial.  Both the decision and the timing of the decision may be relevant and significant in the ultimate decision of the court on an application to free for adoption without parental agreement.

            Following the making of the care orders a Case Discussion took place on 12 May 1998.  This involved the Children Resource Team and the Clinical Psychologist.  This according to the Adoption Panel report was held to consider the outcome of the range of assessments and observations made on the relationship between E and her mother and the implications for future care arrangements.  The documentation records the opinion of both the psychologist and the Children Resource Team was:

1.         That E's attachment to her mother is an insecure/anxious attachment.

2.         Continuing contact with her mother will probably be damaging to E as she becomes older.

3.         It is more likely than less likely that E will be able to transfer attachment, but the time factor is of great importance.

4.         Adoption would provide E with permanent and secure attachment.

            Consultation with the Trust's legal department took place on 16 June and 7 July 1998.  At a Looked After Children's Review held in July in respect of both children, it was agreed that adoption, as opposed to long term foster care would be in the best interests of both children.  The report to the adoption panel noted that both parents were opposed to adoption.  The Adoption Panel gave their approval for an application to be made to the court and subsequently an originating summons in respect of each child together with reports was filed with the court on 25 January 1999.

            Following the making of the care order several matters of significance occurred.  Contact between the children and their parents was initially established on two occasions per week at the foster parents home.  On the advice of the clinical psychologist Mrs Patricia Donnelly this was reduced to once per week and to be held at what was described as a "neutral setting".  Subsequently contact was reduced to once per fortnight and the parents were told to seek legal advice regarding a contact order.  Article 53 of the Children Order imposes an obligation on a Trust to provide parents with reasonable contact with their children, who are in care.  Once reasonable contact arrangements have been established, they cannot be altered unilaterally by a Trust without an order of the court under one of the provisions of Article 53.

            The earlier reports to the court, upon which the care orders were made, stated that further psychological assessment in relation to the quality of E's attachment of her mother, would be required in order to determine the most appropriate plans for her future.  No such assessment took place.  This was a deliberate decision which was made after the granting of the care orders.  It requires some consideration.  Significantly the Adoption Panel were denied the benefit of that assessment as was the LAC Review held in July 1998.  The Case Discussion on 11 May 1998 was held to consider the outcome of the range of assessments and observations made on the relationship between E and her mother and the implication for future care arrangements.  It was the applicants case in these proceedings, voiced by the social worker and senior social worker in charge of the case, that an open mind was retained at all times on the question of adoption or foster care.  The history of this case would suggest otherwise and I remain unpersuaded that an open mind was genuinely retained though it may have been expressed in writing in reports (or verbally).  In this regard the history of this case and the decision not to assess further the relationship between E and her mother is significant.

            In 1997 the social worker in charge of the case referred E and her mother to the Children's Resource Team Children's Psychologist (Dr P Donnelly) for assessment.  This assessment was to establish her developmental needs, nature of attachments and management by her mother.  Dr Donnelly reported in October 1997 that "emotional development is within the normal range for her age in that E shows signs of attachment to her mother".  In her opinion she stated that "E is a child of average development who has developed strong attachment to her mother and younger brother.  It is also reported that she is attached to her father…..  There are no clear signs of emotional disturbance and it is difficult to determine whether the quality of her attachment is of an insecure or anxious type".  She recommended that Mrs McA be investigated further by Dr Pollock, Clinical Psychologist.  In January 1998 she was asked to comment further on the probability of future psychological risk to E while in her mother's care.  To facilitate this she read reports by Dr Pollock and by Mrs Alcorn and also spoke with the social worker and the Guardian Ad Litem.  Why Dr Donnelly, a witness on behalf of the applicant, should speak to the Guardian Ad Litem in order to comment on the risks to E was never satisfactorily explained.  In the light of her perusal and conversations she stated in her report dated 7 January 1998:

"Whilst no significant emotional disturbance has yet been detected for E (or M) one must anticipate that it is unlikely to remain so and that the probability of significant harm to their emotional social well-being is high. ….  Placement of children at the earliest age, prior to the development of such behavioural patterns improves the long term prospects of the children."

 

She recommended, as I have stated, that a care order he made in respect of both children and that contact be maintained with Mrs McA at a regular interval and designed to be minimally intrusive to the children's development.  She also recommended that all further assessments and attempts to maintain the family as a unit should cease.  Her conclusion and recommendations were influenced by what Dr Pollock had written.  In her evidence she identified the harm to which the children might be exposed as "emotional abuse".  The chances of the mother being able to change her parenting style were such that the risk for the children in the future were considerable.  Much of the evidence by all the Trust's witnesses on the question of future risk was based on the experiences with Mrs McA's other children by her marriage to Mr McA.  Dr Donnelly stated said that "attachments" form the building blocks for emotional and social relationships in life.  She identified the first attachment as vital to a child and after the child reaches the age of three or four years the attachment is less vital.  The ability to form attachment is important as it will assist in determining whether a child who is to be adopted will form attachments to adoptive parents.

            At the consultation with the Trust's legal advisers on 16 June 1998 four issues were considered.  The notes disclose the following -

1.         Rehabilitation – there is no plan to return the children to the care of their mother.

2.         Quality of attachment to mother and benefit of ongoing access. 

The attachment of E to her mother has been assessed as being anxious/insecure and ongoing contact with her mother could prove to be detrimental to both children as they grow up.  (see attached minutes of discussion 12 May 1998) [my underlining].  [No such assessment had taken place though a decision was made that the attachment was anxious/insecure].

3.         Adoption would provide stability at a higher level than fostering for the children.  The commitment of foster parents to the children they care for is generally not as strong as the commitment of adopters.  There is a higher rate of breakdown in fostering.

4.         State care of children has been shown not to provide a healthy upbringing for children and in meeting their needs.  Therefore their needs can best be met by adoption.  The value of adoption is that it takes children out of the care system.  Where children of such a young age are not to return home adoption where feasible is in their best interests. [my underlining].

[I comment that this does not represent the current state of the law under the Adoption (Northern Ireland) Order 1987 and is a grave misstatement of the law on adoption without parental agreement and the proper approach to that difficult issue.]

            In response to this the Trust social worker team were advised that in regard to access or contact, consideration would be given by the court to the extent to which the parents had been encouraged to attend access and how fruitful it was to the child.  As the present weekly frequency of access was considered not to be in the children's best interests the issue of reducing contact should be kept separate from the adoption issue and the parents advised of their rights to seek a contact order.  The recommendations made included that a LAC review will be held to make a decision that adoption is in the best interests of the children and that if Mrs McA withholds consent the matter should be brought to the Adoption Panel.  {My underlining].

            The Case Discussion on 12 May 1998 was attended by Melanie Wolfenden a Clinical Psychologist attached to the Children's Resource Team from 1997.  Following the Case Discussion she was requested to consider a number of questions relating to the arrangements for the long term care of E and M.  She had access  to all the papers and reports  including those of Dr Pollock and Mrs Donnelly and also undertook observations of the children.  Mrs Wolfenden's report dated 18 January 1999 was co-signed by Mrs Donnelly.  In relation to E she concluded that "she forms relationships easily with both adults and children and has a strong and secure attachment to her younger brother and currently has a moderate attachment to her mother (in strength).  She is also attached positively to her current foster family".  She also found that E required consistent management set within predictable routines and clear rules to moderate her behaviour.  In relation to M she found that he had no behavioural difficulties as a child and that his strongest attachment was to his sister E.  She considered both children should be placed together.  She reviewed the access records provided by the social worker and found a clear pattern emerged.  This was that Mrs McA interacted constructively with M and E but less frequently with E.  She noted that disagreements between the parents at access had a detrimental effect on the quality of the access.  The conclusion reached was that access was a positive experience for the children at present and sufficiently so to continue at the present and at the present level.  It was recommended that no adjustment in contact should be made until the long term managements for the children became clear.  On the question of rehabilitation the report states:

"(a)      Return to one or both parents.  At present this does not appear to be an option being considered, therefore we will not be commenting on it.  It has previously been assessed as not being in the long term interests of either child." [My underlining].

At page 16 of the report the psychologists stated:

"V.      Both children show evidence of moderate attachment to their natural mother Irene McA, and generally positive experience from continuing regular access to her. There is no evidence of significant attachment from either child to their father, but neither positive or negative effects of access.  Therefore there is likely future benefit from long term access.  Although there is a diversity of evidence for and against long term access to birth parents within the literature as it is at present, the balance is tipped slightly in favour of continuing access where the attachments already exist."

 

On the basis of these findings the psychologists (Miss Wolfenden and Dr Donnelly) concluded that the "children were likely to benefit from long term contact with their mother and there to be neutral effects from long term contact with their father….  If a decision is taken to free the children for adoption it would be preferable for some level of long term access to continue according to the children's needs and wishes".  The report concludes at page 18 with the following opinion and recommendation:

"It is acknowledged in writing the following opinion and recommendation that there are complex issues to be addressed and a balance of needs to be considered.  What is therefore outlined is the least worst option in difficult circumstances –

-         both children be placed together;

 

-         as the priority of need is for stability, continuity and commitment to their care this is best served by the children being freed for adoption;

 

-         in recognition of the benefits of access to their natural mother that an open adoption arrangement be sought;

 

-         in the absence of an open adoption that the children cease contact with their natural parents as fostering placement would be a less satisfactory option in meeting the children's needs."

 

Open adoption requires not just the agreement and co-operation of natural parents but also the agreement and commitment of the prospective adoptive parents.  The concept of open adoption is relatively recent in Northern Ireland and is not catered for in the adoption legislative framework of the Adoption Order 1987.  Neither parent was in agreement with this recommendation for their children.

            It is clear that this report had a significant effect on the case then being prepared by the Trust on the application to free for adoption.  The originating summons is dated 25 January 1999 and requests the court to dispense with the agreement of the parents to the adoption of E and M on the ground that they are unreasonably withholding their agreement.  There is nothing in the evidence to suggest that the parents were ever asked to agree to open adoption before the lodging of the application or before they gave evidence in court.

            The Case Discussion on 12 May 1998 concluded that the attachment between E and her mother was an anxious and insecure one.  This was not the conclusion of any professional assessment carried out prior to that meeting.  Miss Wolfenden attended this meeting.  In the light of her report one could not conclude that this was a view which she either shared or expressed or could have expressed at that time.  She had just been assigned to the case to do the work which culminated in the report dated 18 January 1999 and co-signed by Mrs Donnelly her supervisor.  Significantly the conclusions of this meeting on 12 May 1998 informed the  thinking and decisions of the subsequent LAC Review, the legal consultations, the Adoption Panel, the social work team and the Trust.

            The receipt of this report by the social worker team of the Trust led to the senior social worker and social worker referring the issue to Dr Pollock.  He replied by letter dated 19 February 1999 and marked confidential.  This letter states –

"I have been asked by Jackie Wardlow (Social Worker) and yourself to provide an opinion regarding Mrs McA and M S's potential to be positively involved in post adoption contact with their children E and M and to comment upon Mr S's potential to act as a principal parent for the children if this option was proposed to the Court.  As you are aware I have provided a psychological report on both individuals in the past.  I will confine my opinion to my observations previously and to recent records of contact provided to me by yourselves.

 

I would contend, based on a reading of the various contact sessions and my knowledge of both individuals, that neither Mrs McA or Mr S would be capable of sustaining a positive quality of contact with their children and that given the psychological profile for each of them and their interaction as a couple, they would be likely to engage in behaviour which could be detrimental to the ongoing development and placement of the children, particularly E.  I would be most concerned that post-adoption contact would result in intentional or incidental sabotage of the children's placements in adoptive care.

 

As I have stated in my previous assessment of Mr S, I would have serious reservations regarding his motivation and capacity to provide adequate parenting for the children with Mr S McA in a lesser role.  I am informed that Mr S has been provided opportunities to forward himself seriously as a principal parent for the children and has consistently failed to do so satisfactorily.  I have no positive evidence that would encourage me to alter my opinion that Mr S is not capable of fulfilling the main role of parent for the named children."

 

Armed with this letter from Dr Pollock the Trust social worker requested Miss Wolfenden and Dr Donnelly to reconsider the view expressed in their report dated 18 January 1999.  They did so in a report dated 24 February 1999 in the following terms:

"Following Dr Pollock's opinion that Mrs McA and Mr S 'would not be capable of "sustaining" a positive quality of contact with their children', it is one opinion that the hazards in continuing contact are therefore likely to outweigh any benefits to be gained by the children from continuing access for their long term care.  ….  Whilst in the family it is recognised that satisfactory contact has been established during the part few months, disagreements between Mrs McA and Mr S as well as a reversion to poorer quality contact as predicted by Dr Pollock would be detrimental to both children, particularly E who has already shown herself to be sensitive to witnessing such behaviour.  In addition to the direct hazards outlined, there are potential secondary effects of a destabilisation of placement which are likely to occur.  It is our opinion that the strength of attachment to either parent by either child is insufficiently strong to warrant the exposure to the psychological risks predicted by Dr Pollock should contact continue.  It is therefore our revised opinion that no contact with natural parents following adoption should be agreed."  [My underlining].

 

Both psychologists then stated that closed adoption was their preferred recommendation.

            It is not usual for applications to free children for adoption to be brought where there is an attachment between children and their parents and meaningful contact between them.  If contact post adoption is to continue it requires the type of co-operation and relationships to which I have referred.  The report of Miss Wolfenden and Dr Donnelly dated 24 February 1999 represented a very substantial change of mind by them.  It was based entirely on Dr Pollocks' single comment which they were careful to set out.  Thus the parents attitude at and towards contact became the subject of intense scrutiny by the social work team.  In addition views expressed by Dr Pollock and the about turn by Miss Wolfenden and Dr Donnelly became the subject of vigorous examination by counsel on behalf of the parents to which I will refer later in this judgment.

            Mr S made a written statement dated 11 August 1999 in which he indicated that he wished to be considered as a full-time carer of his children.  The senior social worker requested Dr Donnelly to consider and comment on the likely impact on either or both children of the assessment process required and the impact of possible delay.  Dr Donnelly replied on 20 August 1999 and after commenting on the attachments of the parents to each other, the possible nature of an assessment and potential disruption for the children stated:

"In summary therefore I believe that Mr S's request for assessment as the carer for his children needs to be balanced against the undoubted impact this will have on the children and the likelihood that he will comply any better than on previous attempts to engage him in such a process."

            It is a fact that Mr S has never been assessed as a sole carer for his children.  Dr Pollock carried out a psychological profile of him on the basis that he and Mrs McA remained a couple.  That is no longer the case.  He told Dr Pollock he would give up his job and become the children's carer but Dr Pollock rejected this suggestion because he considered that the domestic situation would revert to Mrs McA resuming the role as carer of the children.  There was no evidence that this would be the case other than Dr Pollock's opinion on it.  It was never tested.  In August 1999 he offered himself as a sole full-time carer and this was never tested either.  It was not the case that Mr S lacked the capacity to act as carer of his children rather that his motivation to do so was doubted given his lack of involvement with the children when he and Mrs McA were a couple.  Then his attitude was – I work and provide financially for the family and their mother cares for the children –a not uncommon situation.  When asked what difference there was between Mr S and a working man who is widowed and left with two children to raise, Dr Pollock replied 'Not a great deal'.  Why Mr S required to be assessed in the first instance was never satisfactorily explained.  It was Dr Pollock's evidence that when he interviewed Mr S he presented himself thoughtfully and responded appropriately on issues relating to child care.

            Essentially the case against this couple was that the mother's style of parenting and management of her children was inappropriate and that the father had not cared for the children in the past and remained untested.  Dr Pollock's opinion was that Mrs McA's low reaction threshold when stressed caused her to adopt a forceful parenting style when under stress.  As her children would grow older and make more demands on her so the stress levels would increase and exacerbate her poor parenting style.  Dr Pollock did not observe her with her children nor did he see the children at any stage.  However he identified the main area of risk to the children as potential emotional dysfunction in the future if Mrs McA continued to provide the same presenting style.  Dr Donnelly carried out an assessment on E and her mother in September 1997 and reported that at that time there were no clear signs of emotional disturbance in E.  It is significant that at that time Dr Donnelly was requested to consider, inter alia, the nature of her attachment to her mother.  She commented that it was difficult to determine whether the quality of that attachment was of an insecure or anxious type.  When Dr Pollock reported that Mrs McA's psychological assessment indicated that she was unlikely to be able to change her reaction to E's future increasing demands, Dr Donnelly was asked to comment on the probability of future psychological risk to E while remaining in her mother's care.  On 7 January 1998 Dr Donnelly reported that while no emotional disturbance had been detected for E or M "one must anticipate that it is unlikely to remain so and that the probability of significant harm to their emotional and social well-being in the future is high".  It is clear that the social work team had no confidence in Mrs McA or Mr S.  They reviewed her as responsible for her other children being taken into care and for damage caused to them.  The social worker and senior social worker were determined, at a very early stage that this pattern as they saw it, was not going to be repeated for E and M and they were from an  early stage, probably in 1997, set upon a course which would lead to the adoption of these children.  Hence the significance of the social worker requesting Dr Donnelly to consider the nature of E's attachments in 1997.  The social work team were also convinced that the domestic incidents referred to including the alleged violence, within the home was substantially the responsibility of Mr S.

            In their report dated 18 January 1999 Dr Donnelly and Miss Wolfenden did not comment on the return of the children to one or both parents.  They were firmly of the opinion that both children should remain together and supported the application that both children be freed for adoption.

            Professor Tresiliotis was engaged by the applicant Trust to advise and report.  In all he provided four reports – 19 August 1999, 4 November 1999, 30 November 1999 and 5 February 2000.  In his report of 19 August 1999 he set out the findings of research by himself and others about the relative merits of adoption over long term foster care or a residence order.  I will return to this later.  In his second report he dealt again with the issue of adoption and long term fostering as well as post freeing and post adoption contact.  In that report he concluded that adoption was preferable to long term foster care.  He recognised that a case could be made for the status quo but considered it would be a lesser form of permanence for the children in the long run.  He recommended that neither parent should have face to face post adoption contact and gave his reasons for that.  In his report dated 30 November 1999 Professor Tresiliotis commented on the reports of Dr Fitzpatrick and Mr Quinn (not called to give evidence) filed on behalf of the respondent parents.  In addition he provided a risk analysis in relation to two potential scenarios – 1. if the children are not freed for adoption and 2. if the children are freed for adoption, the effect of post freeing and post-adoption contact.  The risk analysis if the children are not freed for adoption, is a detailed study based on alleged facts which in the papers supplied to Professor Tresiliotis, not all of which have been shown to be correct.  For example there is no reliable evidence that E is afraid of her father and too much emphasis is placed on Mr S's alleged violence in the home.  Whilst this risk analysis is of some assistance it has to be considered against the facts which are proved or accepted.  Professor Tresiliotis' final report dated 5 February 2000 was a comment on post adoption contact based on further information made available to him from Social Services.  This information related to details of contact visits between the parents and the children over a period of time and which showed a strengthened relationship between the children and their parents.  In commenting on post adoption contact he stated –

"What I have said would suggest that post adoption contact might prove hazardous to the placement.  At the same time the cessation of contact now that the relationship between the children and their parents has somewhat been strengthened because of the contact visits, it could create uncertainty and anxieties, especially in E, with the danger of a breakdown in the adoption arrangements."

Professor Tresiliotis reported on the papers supplied to him.  He did not speak to or observe the parents or the children.  In his evidence he stated that there is a meaningful relationship between E and her mother but not a strong one - there are attachments with some positive benefits.  However he also considered E felt insecure due to her mother's relationship with her father.  In relation to M he felt the consistency of contact visits had helped Mr S establish a relationship with M to the extent that M recognises him as his father.  He also stated that the children have a relationship with their foster carers and that it would be almost abusive of the children to remove them from their care.  He agreed with Mr Ferriss QC that adoption by persons other than the present foster carers would be a double blow to the children.  He considered their relationship with their present foster carers to be more meaningful than their relationship with their parents, but acknowledged that the relationship between E and her mother was a stronger relationship than that with her father.  During cross-examination by Mrs Quinn BL for the father, he stated that contact has strengthened the relationship between parent and child to the point that an adoption might be threatened by future contact.  This is an indication of the extent of the relationship between the parents and the children.  Nevertheless he was disturbed by the reports about the relationship between the parents, their conduct at contact and the effect of both on the children.  If the children were not freed for adoption he thought the frequency and duration of future contact should depend on the reaction of the children to contact.

Dr Geraldine Fitzpatrick is a Consultant Psychiatrist at St George's Hospital in London.  She was requested to report on the family by N Shannon & Co former solicitors on behalf of Mr S and did so in November 1999.  She did not consult with the parents or children but reported on the documentation supplied to her.  She was not called by either respondent to give evidence but was called by the applicant Trust who supplied her with information from recent contacts.  Part of the information supplied to her was that Dr Donnelly the Psychologist had reported that E's attachment to her mother was "insecure/anxious".  Based on the documentation provided to her and in answer to questions posed in her letter of instruction she stated –

"The documents described aspects of Mrs McA's 'good enough parenting' but also concerns about poor hygiene, inadequate supervision, exposure to domestic violence, expose to harsh and inconsistent limit setting, exposure to a failure to recognise age appropriate behaviour in a young child.  E is also described as head-banging and throwing herself against furniture.  This environment together with the described behaviour indicate that it is highly likely that this child suffered emotional abuse whilst in the care of her mother/parents.  Such children do not develop a secure attachment to their parents.  In my opinion E has an insecure, ambivalent attachment to her mother."  [My underlining]

In her evidence she revised her assessment of the attachment to a "disordered attachment".  She also commented on Mrs McA's background as being insecure within her own family and stated that it is well known that persons like her have difficulty parenting children.  She had no doubt from what she had read that E's attachment to her mother was insecure.  In answer to Mr Ferriss QC she categorised E's attachment as "borderline ambivalent attachment" and as "disordered attachment" but accepted that E shows some features of positive attachment to her mother.

            In relation to M she concluded that he had experienced attachment to his mother but given his age his primary attachment would be to the person meeting his daily needs.  For children his age she usually recommends adoption.  Dr Fitzpatrick's views based on research which considered the outcome of foster placements and adoptive placements, was that adoption is the preferred choice for young children.  It is the least disruptive.  In the circumstances of this case and on the basis that the children's needs are paramount she was unable to recommend post adoption contact and she was adamant about that.  She stated further than in England and Wales direct contact between children and their natural parents is not recommended for children under 5 years of age.  She also commented that it was unusual to recommend long term foster care.  She stated there was no evidence of any significant attachment between the father and either child, but there were positive signs in recent contact with their father.  It was clear from her evidence that her opinions were all based on the premise that the child's needs are paramount in any decision making process.  She was also of the view that whilst the children may gain some benefit from direct contact with their mother in the long term, this should not be the deciding factor in any future care plans and that arrangements for future contact should only be considered within the context of the final care plan.  I assume the reference to the final care plan was a reference to the decision whether or not the children would be freed for adoption.

            In the summer and autumn of 1999 there was a flurry of requests to various personnel to comment on the reports or statements made by others involved in the case.  One aspect of this to which I have already referred was the heightened observation and reporting on contact visits.  Another was a request to Dr Donnelly to comment on various matters following consultation between some Trust personnel and witnesses with senior counsel on behalf of the applicant.  These requests were made by way of letters dated 28 September 1999 and 19 October 1999 to Mrs Donnelly.

The letter dated 28 September 1999 stated:

"We refer to the above matter and would thank you for facilitating the Consultation on 27^th instant.  In essence we write to confirm the position in relation to your Reports as directed by Mr S Dinsmore QC:-

 

a.         A Report detailing the potential of the adverse effect that an Assessment of Mr S could have on the children, especially in light of Dr Pollock's comments that Mr S's motivation and abilities to provide care require extensive and prolonged examination and testing at a practical level.  Such Report not to be commenced until we are in receipt of Dr Pollock's Report as outlined above.  We have arranged a further Consultation with Dr Pollock on 30^th instant to qualify this exercise.

 

b.         A Report commenting on the Expert Evidence/Reports of Mr Quinn and Dr Geraldine Fitzpatrick – Consultant Child & Adolescent Psychiatrist who has a close liaison with Social Services Departments in London.  Obviously we will seek leave of the Court to commission these comments and this will be attended to at the next review.

 

c.         An Addendum Report, (to that Report dated 20^th August 1999) to clarify the issue and meaning of attachment within the context of this case.  We also enclose herewith updated contact Records pertaining to the period between January and August 1999 and would ask you to forward any comments which you may wish to make.

 

Thanking you in anticipation of your assistance herein."

 

            The letter dated 19 October 1999 stated:

 

"We refer to the above matter and to our correspondence dated 28^th September 1999 requesting Reports and would advise as follows in respect of same.

 

1.         Report detailed at point a:- we have on even date consulted with Dr Pollock who has now been requested to prepare his Report.  Please note that same will be issued to you as soon as is possible to allow for completion to your own Report.

 

2.         Report detailed at point b. – can not be completed until we have sight of Reports of Mr Quinn and Dr Fitzpatrick which are still presently outstanding.

 

3.         Report detailed at point c, should deal with the following issues:-

 

·        The nature and strength of the attachment between Mr S McA, Mr S and each of their 2 children E and M

·        The nature of the contact since the children have been placed in foster care.  Specific emphasis should be placed on the quality of the contact which exists between both parents and their children, the level of such contact and its effect on the welfare of both children.  We would also ask you to consider the ability of both parents to co-operate with the Trust and the children's placement and their ability to sustain and meet the needs of both children in the future.

 

We enclose herewith a schedule of documentation which may be of assistance in your preparation of this Report.

 

Thanking you in anticipation of your assistance herein."

 

Dr Pollock was asked to clarify his original report of 3 February 1999 on the basis that Mr S wished to be considered as a sole carer.  In his February report he stated that "Mr S's motivation and abilities to provide this care require extensive and prolonged examination and testing at a practical level".  It is important to remember that the children were not taken into care because he lacked the capacity to parent them to the standards set by the social work team.  Dr Pollock commented that an assessment of Mr S would need to comprise:

(a)        a residential assessment within a relatively controlled environment;

(b)       a residential assessment in a less controlled environment;

(c)        continuing work on a regular basis with the Family Care Centre.

and that prior to these assessments contact between the children and their father would need to be substantially increased.  In addition he was to clarify his February 1999 in which he stated that "it would be most beneficial in the long term for Mrs McA to remain in contact with the children in whatever form decided by the court, but placement to be elsewhere in this case".  He stated that the benefit was considered to be for Mrs McA and not the children at that time and referred to a number of features of contact which caused him (in February 1999) concern to the extent that he queried their capabilities to sustain a positive quality of contact with the children.  This opinion was based on his knowledge of the parents at that time and the content of the contact sessions.  In cross-examination by Mr Ferriss he was less dogmatic about what he meant in his February 1999 letter and eventually his evidence was that contact was beneficial for both children and Mrs McA.  In cross-examination by Mrs Quinn he stated that his views expressed at pages 2 and 3 of his October 1999 letter to the Trust solicitors were based solely on the contact records provided to him which he assumed was the totality of contacts and records.  He was then taken through the contact records for the contacts referred to at page 3 of his October letter and it was demonstrated by Mrs Quinn that the views expressed by Dr Pollock were not borne out by the detail in the contact records (and the case being made on the contact issue was substantially undermined) and he acknowledged that the references to negative matters only (and not the positive factors which were present) did not give a balanced picture of the contact situation.  In his clarification letter of October 1999 Dr Pollock referred to being asked to clarify his statement at paragraph 2 of his report dated 19 February 1999.  I think this must be a mistake for his comment at page 3 of his report dated 5 January 1998.  Whether he was referring to contact being beneficial for the mother or the child or both has to be considered in the context of that report which was supporting the removal of the children from her care and providing information about the children's future.  Having heard his evidence and explanation about this and considered the reports in context I think it is more likely he had the children and their mother in mind when he wrote that contact would be beneficial.  I do not accept that it related to Mrs McA alone.  It was never satisfactorily explained why this statement required clarification in the first place unless it provided an opportunity to re- state the case which was then being made. 

            This letter from Dr Pollock dated 21 October 1999 was then forwarded to Dr Donnelly who was asked to comment on a number of issues.  These were –

1.         the meaning of attachment;

2.         the nature and quality of the contact;

1. .         the capacity of either parent to co-operate with the Trust and to sustain long term contact;
2. .         the potential impact on the children of further assessment in the light of Dr Pollock's opinion on the nature of the assessment required.

Her report dated 28 October 1999 contains a lengthy dissertation on the theory of attachment in children.  On the question of contact she stated that it was difficult to determine if the children gain any benefit from it.  She said that the contact reports suggested that Mrs McA was generally able to comply with the contact parameters but that M S was more erratic in doing so.  She considered the attachment of the children to their parents had changed over the past two years.  E's attachment to her mother was described as being then "moderately to mildly strong but continues to be of an ambivalent nature".  Her weak attachment to her father had not changed.  In relation to E's ability to form attachments she stated significantly – "the development of these attachments demonstrates E S's capacity to form such relationships when once an appropriate adult is available".  When cross-examined about this by Mrs Quinn, Dr Donnelly was unable to explain either satisfactorily or at all what she meant by this.  In the context of this case it seems to refer to the capacity for attachment necessary for adoption.  M's attachment to his father was described as weak and to his mother as not yet formed.  She reported that Mrs McA's co-operation with Social Services was good and that she consistently complied with all arrangements.  She considered she would be able to sustain her commitment to contact in the short to medium term but felt her long term commitment would be dependent on other factors in her life which are prone to disruption.  She considered M S's level of co-operation with Social Services unlikely to improve and more likely to deteriorate particularly if unsupervised contact were to occur.  She then commented on Dr Pollock's opinion as to the level of assessment which would be necessary to gauge Mr S's capacity to care for the children.  She described it as an arduous assessment process with which I would agree and why it required to be so was never satisfactorily explained.  She ruled it out as too disruptive for the children.  The impression that the assessment level was set so high as to lead to such disruption for the children was never dispelled from the case.  I have set out the progress of this case from 1997 in some detail as it shows how the situation evolved and changed with the passage of time and in response to other developments.

            It can be seen that all the expert witnesses called on behalf of the Trust were of the opinion that these children should be adopted.  Some had the opportunity to report following direct contact with the parents or the children, others reported on the papers provided to them.  Some depended on the assessments or conclusions of others for the opinions which they expressed.  In some instances the validity of the early assessments or conclusions was crucial.  An instance of this was the conclusion that E's attachment to her mother was of the anxious/insecure type.  Initially adoption with contact was proposed because of the relationship and attachment between E and her mother.  This was abandoned because of the potential difficulties with post adoption contact in favour of adoption and no contact or indirect contact only.  In order to attempt to demonstrate that this was the route to follow a major exercise was mounted to observe, assess and report on the contacts which the parents had with their children.  Every negative matter which arose at contact was seized upon.  Some were justified, many others appeared petty and nit-picking, as I observed earlier.  I considered those contacts carefully.  I was not persuaded to draw the same view or inference from these as did  social workers and other witnesses from them.  Undoubtedly there were difficulties and on occasions the parents or one of them was at fault.  Contact in such circumstances for parents is a difficult issue and in ways it was surprising how well these parents, in the light of what was written about them, struck at it.  I think even the social workers were surprised at their commitment.  Mr S was able to build a relationship through contacts with his son M.  Both parents have maintained a relationship through supervised contact for over two years.  The main difficulties with contact have been the occasional argument between the parents and one incident apart, there is little to suggest that these have caused any harm to the children.

            After the children were taken into care they went to live with foster carers.  This was not a happy placement for them and in April 1998 they moved to new foster carers with whom they have remained to the date of hearing.  This has been a most successful placement.  The foster carers are an excellent couple in their fifties.  The children in particular E formed an attachment to them and they to the children.  The foster carers were described as committed to the children so much so, that early on they indicated that they might be interested in adopting them.  Sadly, and for good personal reasons, they withdrew that indication in January 1999 and the same time indicated that they could not provide indefinite foster care.  This was unfortunate because the parents had a reasonable relationship with the foster carers.  Mr Ferriss QC in his closing submissions argued, with much justification, that the children should have been moved at that stage.  This would have presented Mrs McA with an opportunity to continue contact with the children at a time when the children would have been living with foster carers who might have become prospective adoptive parents, content to continue the contact arrangements.  The present position is that a couple have been identified who might be suitable but the recommendation would be for very limited indirect contact.  Whatever be the outcome the children will require to leave their present foster carers. 

            Since the making of the interim care order both parents have been committed to maintaining contact with the children.  I have already commented on what was written about contact by Dr Donnelly, Miss Wolfenden and Dr Pollock.  On 5 February 2000 shortly before the case Professor Tresiliotis was asked to comment on the question of contact.  He wrote:

"… the cessation of contact now that the relationship between the children and their parents has somewhat been strengthened because of the contact visits; it could create uncertainty and anxieties, especially in E, with the danger of a breakdown in the adoption arrangements.  As already said such anxieties and uncertainties increase when the children have to separate simultaneously from foster carers and also parents."

 

            In cross-examination Professor Tresiliotis went so far as to say that it would be traumatic for the children to separate from the present foster carers and also from their parents.  Mrs McNamee accepted that if the relationship between the children and their parents was worth preserving and maintaining then that would point towards foster care as the appropriate outcome rather than adoption.  However, foster care is not without problems due to the shortage or lack of foster carers in the applicant Trust's area.  This was reported by the Trust through the Guardian Ad Litem.  This is not a factor which should be relied on in an application to free for adoption without parental agreement and has no bearing on the outcome of this application.  In any event the Trust should not be confined to their own area for foster placements in an area the size of Northern Ireland.

            I have set out the history of this family and the actions of the applicant at some length because it is relevant to the two central issues which arise in any application to free children for adoption without parental agreement.  The issues require to be considered in the light of that history and not divorced from it and the decisions made based, where relevant, on that history and in the circumstances as known at the time the decision is made.

            The making of an adoption order is a very grave matter indeed.  It is so because of the nature and effect of the order.  If gives parental responsibility for the child to the adopters and operates to extinguish for all time, parental responsibility which the child's natural parents have had since birth – see Article 12 of the Adoption (Northern Ireland) Order 1987.  'Parental responsibility' is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property" – see Article 6(1) Children (Northern Ireland) Order 1995.  The important word is probably 'responsibility' for parenthood brings with it responsibilities and duties and where parents fail in their responsibility towards their children, then some other person or body has to step in and assume responsibility.  But 'parenthood' also involves ties and relationships of natural love and affection, held by parents towards their children and children towards their parents, even in adversity.  To break those ties is a grave matter.  To do so against the wishes of the parent who loves that child is more so.  Applications to free for adoption without parental agreement in cases in which parents have ill-treated or abused their children in one form or another, will be clear or clearer and the decision-making process less complex.  Other cases in which such allegations do not arise, may not be so straightforward and again there may be others which lie somewhere in the spectrum, which are unclear or less clear.

            An application to free a child for adoption without parental agreement gives rise to two questions which in general terms may be stated as – 1. is adoption in the best interests of the child and 2. should the agreement of the parent be dispensed with on one or more of the grounds set out in Article 16(2) of the Adoption Order.

            In relation to the first question the duty of the court is to promote the welfare of the child.  Article 9 of the Adoption Order states:-

"Duty to promote welfare of child

 

9.         In deciding on 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 to 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."

 

            Thus in deciding on any course of action the Court shall regard the welfare of the child as the most important consideration.  In addition the court must have regard to all the circumstances and give full consideration to three issues.  These are – the importance of providing the child with a stable and harmonious home; the need to safeguard and promote the welfare of the child throughout his childhood and more importantly the need to be satisfied that adoption will be in the best interests of the particular child.  The use of the word 'satisfied' imports a standard of proof commensurate with the issues raised.  By contrast (of a limited nature) the Children Order requires a court when determining any question relating to the upbringing of a child to regard the welfare of the child as the paramount consideration.  The Adoption Order requires something less than the paramountcy principle because there are wider issues involved in applications to adopt and also because of the draconian nature of an adoption order and also its finality.  It was clear from the evidence of the social workers and on occasions from what was written that they regarded their duties under the Children Order to be driven by the paramountcy principle.  The Children Order is very clear – the paramountcy principle applies to the court alone (and to a Guardian Ad Litem appointed under the Children Order).  The duty of Social Services is enshrined in Article 18 and requires them to safeguard and promote the welfare of children and so far as consistent with that duty to promote the upbringing of such children by their families.  Thus the duty of Social Services is wider and family oriented.  When an authority is looking after a child either voluntarily or as a result of a care order their duty is to safeguard and promote the welfare of the child – see Article 26 of the Children Order.  In addition every authority looking after a child shall provide him with accommodation and maintain him – see Article 27(1).  Under Article 27(2) an authority fulfils its duty to provide the child with accommodation and maintenance by –

"(2)      An authority shall provide accommodation and maintenance for any child whom it is looking after by –

 

(a)        placing him (subject to paragraph (5) and any regulations made by the Department) with –

 

(i)        a family;

 

(ii)       a relative of his; or

 

(iii)      any other suitable person,

 

on such terms as to payment by the authority and otherwise as the authority may determine;

 

(b)      maintaining him in a home provided under Part VII;

 

(c)      maintaining him in a voluntary home;

 

(d)      maintaining him in a registered children's home;

 

(e)      maintaining him in a home or institution provided by a government department or a prescribed public body; or

 

(f)       making such other arrangements as –

 

(i)        seem appropriate to the authority; and

 

(ii)       comply with any regulations made by the Department."

 

            Thus there are various options open to an authority looking after a child only one of which is placing the child for adoption.  Maintaining the child at home is also an option, which was the initial option in this case and which seems to have fallen by the wayside.  During the course of the hearing the court heard much about the concept of permanence or permanency and also about Social Services policy for the care of children in the long term, in particular for babies and children up to five years of age.  Permanence is a word and concept which requires to be used with caution.  Far too often it is employed as a pseudonym for adoption.  So far as the courts and the Adoption (Northern Ireland) Order 1987 are concerned there is and can be no policy for children of any age.  If parents agree to adoption of their children, so be it (though that does not remove the obligation for the Court to be satisfied that adoption is in the best interests of the child).  If the parents do not agree then each case requires to be considered on its merits and parental agreement dispensed with, only in appropriate cases.  Such decisions cannot be driven by Social Services policy whether supported by research or not.  Parliament has set the provisions of the Adoption Order 1987 as the standard and the test and this requires to be adhered to.  Thus decisions made by social workers or teams of social workers which are driven by policy decisions and the latest research, require to be considered carefully by the courts.  There can be no economic argument that it is cheaper to have children adopted than kept in long term foster care nor should deficiencies in residential homes or long term foster care be used as arguments in favour of adoption against parental agreement.  It was therefore with very great concern that I read the comments made by the social worker at the legal consultation on 12 June 1998, which I have already set out earlier in this judgment.  There can be no policy to take children out of the care system by means of the Adoption Order.  Each case requires to be considered on its own merits.  Children should only be removed from their parents if the threshold criteria (significant harm or the risk of significant harm) in Article 50 of the Children Order is satisfied and the court considers that the making of such a care order would be better for the child than make no order at all.  It would be a sorry state of affairs if the care which would be provided by the State is no better (or maybe worse) than the care provided at home.  If that is a risk and the comments made at the legal consultation, to which I have referred, suggest it may be possible, then it should be a factor borne in mind by those charged with the responsibility of making care orders.  It seems to give rise to the question – will the authorities do any better (or worse) than the parents?  Where a child is taken into care or looked after by a Trust, the Trust act "in loco parentis".  Under Article 27 of the Children Order, to which I have referred, the Trust is required to provide appropriate accommodation and maintenance for a child in care.  The type of accommodation in which the child may be placed is set out in Article 27 and includes a family and a suitable person (referred to as an authority foster parent).  Mr Ferriss QC was critical of the extent of the research and carried out by Professor Tresiliotis and others and the small number of placements concerned in the research.  That is a relevant factor but it does not diminish the conclusions drawn for the placements concerned, and in that regard, shows what may be described as a trend.  It seems implicit in the research (albeit limited) carried out, that foster placements may be deficient in providing appropriate accommodation as an alternative to care at home.  The comments made by the social worker at the legal consultation, to which I have referred, suggest that the social workers, if not the Trust, were of a similar view to that expressed by Professor Tresiliotis (and supported by Dr Fitzpatrick).  If it be correct that there is such a deficiency then it is a deficiency in a placement provided, organised and controlled by the authorities.  In determining whether or not to free a child for adoption without parental agreement, should a court take into account, when choosing between two such placement options, that one of these options provided by the authorities is deficient and therefore promote the other, namely adoption, which is to be ordered without parental agreement.  I am not persuaded that it would be just to parents (or in the best interests of children) to act upon such a deficiency alleged or otherwise.  For those reasons I do not consider the views expressed by Professor Tresiliotis in his reports and evidence, which emanate from his and others research, should be taken into account on the issue whether adoption is in the best interests of a child who is in foster care.  I should add that, in this case, there has been nothing but the highest praise for the foster parents with whom these children have been placed.

            This case has raised a number of matters about which I am concerned.  It was the Trust's case (and the evidence of the social worker and the senior social worker) that an open mind was kept, on the question of the future of these two children, until the decision was made in June 1998 that they should be placed for adoption.  I am not persuaded that this was so.  The social work team was of the view, firmly, that Mrs McA had damaged her children by her marriage and there was a determination that she would not do the same to E and M.  Adoption was the plan for these children, probably from 1997.  A determination (if not more) that these children should be adopted, was evident.  The care plan at the time of the interim care order was that the children remain at home whilst other matters were considered.  I was not impressed with the way these children were removed from their home and not returned after a short period.  Mrs McA's broken arm created a crisis which required to be dealt with.  Mr S did not respond appropriately.  Once the matter came back to court he realised he had to do something and he offered himself, not before time, as the carer.  A psychological profile by Dr Pollock was not what the situation required.  The children could have been returned to him and his care of the children monitored.  The only real criticisms made of Mr S, were his lack of motivation and his attitude to social services.  He is a laid back person but he is no fool.  He showed himself to be very articulate and intelligent and understood the issues.  I was not persuaded that he was the instigator of all the domestic violence which may have occurred.  He is the sort of person who can walk away from situations.  I have no doubt this type of reaction by him infuriated Mrs McA (and indeed the social worker, who did not have a good relationship with him).  Mrs McA is very volatile and at times an unstable person, which was evident on occasions when she gave her evidence.  I am not persuaded that M S was often physically violent towards her.  Undoubtedly there were rows and the police called, but of the two she seemed the more likely to be violent.  The social workers acceptance that he was constantly violent towards her (based on what she told them) undoubtedly led to his being to use his counsel Mrs Quinn's words, largely "written off" by Social Services.  I suspect they felt once a care order or interim care order was made, that he would disappear from the scene.  Instead he offered himself as a carer and by June was actively, with his solicitor, seeking more contact with his children.  He has attended most contacts with his children.  He is criticised for leaving the room for periods.  I do not place the same weight on that.  I think he finds contact  in the conditions imposed difficult to handle.  He is a complex person who can be very difficult and does not welcome interference from any source, never mind Social Services.  I am concerned that from January 1998 his role as a potential sole carer was not fully considered.

            When the care order was made, Social Services undertook to assess the relationship (attachment) between Mrs McA and E.  This was not carried out.  There was a meeting in May 1998 at which, according to the minutes, it was concluded that the attachment between them was insecure and anxious.  How that decision was arrived at was not clear.  Miss Wolfenden had only recently been assigned to the case and would not have been in a position to reach such a conclusion and so advise the others present at the meeting.  Those present at the meeting may have reached that conclusion from such written material as may have been before them (as Miss Wolfenden said she had done).  If they did so this was not an assessment or a sufficient assessment of the attachment between them which had been envisaged earlier and reported upon and which was to be undertaken.  If it was reached on the papers why could that decision not have been arrived at earlier.  There was a suggestion that the attachment was affected by the fact of separation and the nature of the contacts.  However I was not satisfied that this was sufficient justification for the conclusion.  The decision making process was to my mind unsatisfactory and none of the evidence dispelled that view.  This was a vital decision for these children and their parents and the manner in which it was decided upon was never satisfactorily explained.  This decision underpinned the subsequent decision making process, the submission to the Adoption Panel, the Adoption Panel decision and the application to free E and M for adoption.

Contact was originally set at two visits per week.  Subsequently this was changed by the Trust both as to the frequency per week and the venue.  The attitude of the social work team to the parents was "if you do not like it, seek legal advice".  This was contrary to the letter and the spirit of the Children Order.  Once reasonable contact has been determined, it can only be altered by court order and not unilaterally by social workers, except in emergency situations covered by Article 53(6).  The reduction in contact had the potential (whether by design or not) to break or weaken the relationship between the parents and the children.  I find it difficult to understand how the decision to change the location to what was described as a 'neutral' venue, could have anything but the potential to weaken the relationship and may well have been so designed, given the speed at which, following the move to the second foster carers, the decision was made that these children should be adopted.

If Miss Wolfenden did decide on the papers that the attachment/relationship was of the anxious and insecure type the report submitted in January 1999 was not entirely consistent with the decision apparently reached in May 1998.  This report was largely Miss Wolfenden's work, though co-signed by Dr Donnelly.  It created a significant difficulty for the Trust's application to free the children for adoption without parental agreement.  Rather than accept the report for what it said the social work team embarked on a strategy to undermine it and eventually cause the authors to change their mind.  A not dissimilar strategy was employed the following autumn in relation to the contact issue.  This whole process was far from satisfactory.  Witnesses were being asked to reconsider their views based on what some other witness had now written or in one case clarified.  That clarification was never justified to my mind.  A lot depended upon the views expressed by Dr Pollock a highly qualified psychologist.  A certain discomfiture was evident.  Whether this was due to the fact that he had also interviewed two of Mrs McA's other children for the purpose of a criminal injury application relating to their care at home, (which he properly brought to counsel's attention) or the use to which his clarification letter and report of 21 October 1999 were put or the case generally, as it stood at the time of hearing, was never resolved.  It was probably a combination of all three, in varying degrees.  Whilst conditions in the McA/S household were far from ideal, it was accepted that both parents loved their children and cared for them.  This was stated to be so particularly in the case of Mrs McA.  She was described as being particularly good with babies.  The problem as stated by the psychologists, which lay at the core of this case, was that once the children became older, she lacked an appropriate management style or technique to cope with them.  It was the management style she employed which was stated to be the cause of E's behavioural problems and it was alleged that this would be replicated in time in M.  She was said not to have the ability to change that management style.  It is not surprising that this opinion, which the senior social worker accepted was theoretical to some extent, was difficult for the parents to comprehend entirely to begin with.  This was the basis upon which rehabilitation to Mrs McA was considered inappropriate and Mrs McA does not now seek it.  This is not a case of Mrs McA deliberately abusing E; this is something over which, because of her personality and low IQ, she has no control.

Regardless of the changes of opinion about the attachment/relationship between these children and their parents, it is clear that as of now they do have a relationship with their parents and know them to be their parents.  Adoption with contact is not the case made by the Trust though adoption with satisfactory contact might have been an option the parents may well have approached less negatively.  Orders freeing children for adoption without parental agreement cannot be made with conditions, for example as to parental contact, attached.  The court has the power to make a contact order, but whether the contact would be acceptable to prospective adoptive is impossible to say.  It could not be ordered in advance.  Prospective adoptive parents who might accept contact conditions may never be found.  Indeed my experience is that prospective adoptive parents are very cautious about post adoption contact and usually decline to agree it and are probably advised not to agree to it, particularly in advance.  Thus the choice facing the court is freeing for adoption without direct contact or no order to free for adoption.  Direct contact is not favoured as it is stated, inter alia, the relationship/attachment between the children and their parents does not justify it.  What is the relationship/attachment between.  I consider it is sufficient and significant on both sides, the parents and the children's, for it not to be destroyed.  I consider greater weight is to be attached to the original views on that relationship as expressed by Dr Donnelly and Miss Wolfenden in January 1999 and others before that date.  I have not been impressed with the attempts to redefine, reduce or weaken that relationship since.

Article 9 of the Adoption Order enjoins the court to consider all the circumstances in the case, which I have done, whether mentioned in the course of this judgment or not.  In particular Article 9 requires the court to have regard to the need to safeguard and promote the welfare of the children throughout their childhood, that is until they are 18 years of age.  It also requires the court to have regard to the importance of providing the children with a stable and harmonious home.  Those are considerations that are relevant in every case in which children are taken into care and where adoption is considered.  Furthermore the court requires to be satisfied that adoption is in the best interests of both children.  Mrs Dinsmore in her well-marshalled closing submissions on behalf of the applicant (supported by an impressive skeleton argument) set out the reasons why the applicants state that rehabilitation with Mrs McA is not an option, which she does not seek.  Similarly she set out the views about Mr S, of which the principal concerns were his lack of motivation and poor relationship with Social Services.  I do not think his motivation is as poor as it has been alleged, despite the opportunities spurned in the past in different circumstances.  In my view he is entitled to a chance to prove his motivation and I do not consider the range of assessments required by Dr Pollock are necessary, though some assessment would be.

Is adoption in the best interests of these children?  A strong case can be made out for it.  However I have reservations about that.  Those reservations stem from the relationship/attachment between these children and their parents.  Professor Tresiliotis and Dr Fitzpatrick have expressed their views about this relationship, as have the two social workers primarily concerned.  I prefer the views expressed by Dr Donnelly and Miss Wolfenden in January 1999 and consider I am entitled in the circumstances to place greater weight and reliance on those views, than on views expressed later upon a request to reconsider.  Similarly Professor Tresiliotis and Dr Fitzpatrick, neither of whom interviewed or observed the children and their parents, carried out a 'paper exercise' on reports which included the revised views.  The whole process was unsatisfactory.  Is it to be concluded that it is in the best interests of two children that they should be freed for adoption in such circumstances?  The effect of an adoption order – the destruction of the parent/child relationship – has to be borne in mind.  Whilst the court must give first consideration to the welfare of the child, that is not the only consideration in adoption cases.  Some regard must be paid to the parental views and rights.  To conclude that freeing for adoption is in the best interests of a child, a court should be both legally and morally satisfied that what it is ordering is right.  I recognise that a strong case has been made that adoption would provide these children with a stable and harmonious home for the remainder of their childhood but I am not satisfied to the required standard in the final analysis, that adoption is in their best interests.  The application to free both children for adoption was supported by the Guardian Ad Litem.  The role of the Guardian Ad Litem in adoption proceedings is significantly different from the Guardian's role in 'specified proceedings' under the Children Order.  Her views were formed on the various reports submitted to the Court about which I have now expressed my views.  I have considered carefully her report and evidence, but it is for the Court to reach its own conclusion based on the evidence presented to the Court and any inferences to be drawn from it.

The relationship/attachment between E and her mother is the primary relationship the court has been concerned with, followed by that between M and his mother.  It is clear that the children should not be separated.  I note the improvement in the relationship between the children and their father.

In view of the strength of the case made by the applicants on this issue it is only appropriate that I go on to consider the second issue in an application to free for adoption without parental agreement, namely whether or not the court should dispose with the agreement of either or both parents to the making of an adoption order.  In this case the applicant states that the agreement of the parents should be dispensed with on the ground that it is being withheld unreasonably.

The statute requires proof that the withholding of agreement by a parent is unreasonable.  It is not sufficient to prove that a reasonable parent would agree.  The test may be put this way.  Has it been proved that the parents knowing all the facts are withholding their agreement unreasonably?  The law on the proper approach to this question is set out in the judgment of the late Mr Justice Higgins in Re: W (unreported) which was approved in the Court of Appeal in Northern Ireland (1993 4 NIJB 5).  This follows the decision in the House of Lords in the English case Re: W 1971 1 AC 682 and the reasoning of Lord Hailsham.  The test to be applied is often expressed in terms of the hypothetical reasonable parent.  Could a reasonable parent in the position of this parent withhold agreement.  It is well recognised that two reasonable parents could hold two opposing views, neither of which views could be said to be unreasonable.  Thus the band of decisions which can be adjudged to be unreasonable may be a narrow one.  However the ultimate test is one of unreasonableness judged against what a hypothetical reasonable parent would do.  It is not confined to wrongdoing or culpability but can include many more situations beyond blame-worthiness.  Lord Hailsham detailed a number of them including culpability, indifference, excessive lack of common sense and caprice.  The test is held to be an objective one and the court must guard against substituting its own view for that of a reasonable parent are relevant.  The factors to be taken into account by a reasonable parent will vary from case to case but a number of factors will arise in most cases.  For example a reasonable parent would consider the welfare of the child, and look at all the circumstances and apply the test to the circumstances as they exist at the date of hearing and not at any other time.  Other relevant factors include the prospect of rehabilitation, the level of contact if any, the nature and security of the present placement of the child.  The prospect of rehabilitation is relevant as the failure of a parent to seek rehabilitation.  The degree of responsibility for the current situation which is attributable to the parent would be relevant as would be the extent and regularity of contact.  The age of the child and the length of time he is in care as well as the length of time the  child has been cared for by the parent or not are relevant.  Those are factors which a reasonable parent would consider.  Often parents feel a sense of grievance against Social Services for the way they perceive they have been treated by them.  In some cases that sense of grievance may be justified.  But the sense of grievance itself is not a relevant factor, difficult as it may be for a reasonable parent to ignore it.  However the factors giving rise to that sense of grievance are relevant and would and should be taken into account by a reasonable parent.  An obvious relevant factor would be delay.  The longer the delay the more settled the child becomes elsewhere and the more apparent it becomes that the child's welfare may be harmed by any change in its circumstances.  The length of the delay may increase the weight to be attached by a reasonable parent, to the welfare of the child.  Similarly with the other factors which give rise to the sense of grievance.  Those events have happened and cannot be undone.  The welfare of the child is not the sole criteria.  It is one of the criteria if a reasonable parent would take it into account and the weight to be attached to welfare will depend on the weight which a reasonable parent would attach to it in the circumstances of the particular case.  In some cases it can be decisive.  It would be unusual if it played no part in a reasonable parent's deliberations.  A reasonable parent would balance all those factors giving such weight to them as the circumstances demand.  Ultimately the court has to ask does the respondent's decision to refuse agreement fall within the band of reasonable decisions which a parent in her section of society and in her particular circumstances might make – see the judgment of Hutton J (as he then was) in Re EB and Others 1985 5 NIJB 1 at 23.

The case of each parent has to be considered separately.  Whilst the welfare of the child is an importance factor it is equally relevant to consider the wording of the legislation.  The adoption legislation which preceded the Adoption Order 1987 was the Adoption Act 1967.  Section 5 empowered the court in certain circumstances to dispense with parental consent.  The grounds upon which consent could be dispensed with were similar to the present legislation.  However in Section 5(1) of the 1967 Act the following words appear –

"in considering whether the consent of any person should be dispensed with under this sub-section, the welfare of the infant shall be the paramount consideration."

 

            The 1987 Order does not re-enact those words.  Article 9 of the 1987 Order states that the welfare of the child is the primary consideration of the court when making any decision related to the adoption of a child.  However, it has never been held that Article 9 applies to the court  when considering whether or not to dispense with parental agreement.  However it is recognised that a reasonable parent would take the welfare of the child into account but the court in carrying out its task under Article 16(2) must bear in mind the historical development in the legislation and the omission to which I have referred.

            A parent faced with an application to free a child for adoption is faced with a choice to agree to adoption or to withhold agreement.  If agreement is withheld the parents decision will be judged against what the court considers a reasonable parent, with knowledge of all the circumstances, would decide.  Before dispensing with the need for a parent's agreement, the court requires to be satisfied that the parent is withholding agreement unreasonably.  In this case a reasonable parent would consider the question of rehabilitation, the reasons why the children are in care, the length of time they have been in care, their age, the requirement that they remain together, the security which adoption provides, the length of time the parents cared for them, and the contact the parents have had since the children were taken into care.  In the case of Mrs McA she is entitled to point to

            -           her view of the nature of her relationship with her children,

            -           the court's view of that relationship;

-           her acceptance that the children should not be rehabilitated to her;

-           her consistent attendance for contact and the nature of that contact;

-           the decision-making process of the Trust and the Trust's witnesses in particular about the nature of her relationship with E and the changes therein;

and to conclude in the light of all those matters that it is not in the children's best interests to be adopted and the ties of nature broken and to withhold agreement.

            In the case of Mr S he is entitled to point to

            -           his improved relationship with his children;

            -           his offer to care for the children;

            -           his attendance at contact with the children;

-           the decisions about the type of assessment he would have to undergo and the degree of risk thereby involved and the court's view of that;

            -           the decision-making process of the Trust and their witnesses;

and to conclude in the light of all those matters that it is not in the children's best interests to be adopted and the ties of nature broken and to withhold his agreement.

            Whether to dispense with parental agreement is always a difficult decision to make.  I have considered all the evidence (whether referred to in this judgment or not) and the views of the parents and the matters which I have mentioned above.  The decisions by the parents in this case do not, to my mind, lie outside that band of reasonable decisions which parents are entitled to make in respect of their children and which they have made in respect of these children.  I am not satisfied (as I require to be) that a reasonable parent endowed with a mind and temperament capable of making reasonable decisions and with knowledge of all the circumstances, would give their agreement.  Therefore I am not satisfied that these parents in withholding their agreement are doing so unreasonably, as that term is understood in law.

            Mr Quinn sought to rely on the European Convention on Human Rights and Article 8 therefore (not yet in force).  Article 8(1) guarantees the right to respect for private and family life and Article 8(2) declares that a public authority shall not interfere with the right to respect for family life except where it is necessary for the protection of health or morals or for the protection of the rights and freedom of others.  To declare these children free for adoption and to deny them and their parents direct contact with one another would (if applicable) breach the right to family life and would not be a justified interference by a public authority with that right.  Similarly with regard to Section 6 of the Human Rights Act 1998.

            Social workers have at times an onerous and thankless task.  They are often confronted by intractable cases and demanding parents who cause them great anxiety.  As Lord Nicholls said in Re H&R 1996 FLR sympathising with their plight, - "sometimes, whatever they do, they cannot do right".  I have no doubt they and the other witnesses on behalf of the applicants regard the conclusions they reached as being in the best interests of these children and have acted with the best motives.  I know they will be disappointed at the outcome of this case.  However the Adoption Order requires a court to be satisfied of various matters before declaring children free for adoption.  While it should never lose sight of the fact that there are two small children concerned (and it has not), if it is not so satisfied, for whatever reason, it must say so, despite advances in social work practice or child psychology.  I am not so satisfied in this case for the reasons stated above and therefore refuse the applications to free E and M for adoption.  I grant both parents a contact order in respect of each child.  I consider the parents should have contact with the children for two hours once per week.  Restoring contact to that level should be a gradual process over several months.  It should also be possible to work towards some unsupervised contact, particularly in the case of Mr S and on occasions to permit the venue to be varied. 

 


 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ________   FAMILY DIVISION ________         RE: E and M (Applications to Free for Adoption) (1999/3F and 4F)         ________       J U D G M E N T O F HIGGINS J    ________