High Court of Justice in Northern Ireland Family Division Decisions

Neutral Citation no. [2001] NIFam 20

Ref:    

HIGF3477

 

 

 

Judgment: approved by the Court for handing down

Delivered:

10.09.2001

(subject to editorial corrections)

 

 

   

 

 

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   FAMILY DIVISION  ________   RE: M    ________  

HIGGINS J

 

            This is an application to adopt twin girls A and JA who were born on 9 January 1987 and are now aged 14 years and 6 months.  They are the children of RA and EA who are now divorced.  EA suffers from schizophrenia and since 1992 has been a long term patient in hospital.  Both girls have moderate learning difficulties and the IQ and ability of children aged 4 or 5 years.  J suffers from epilepsy and on one occasion injured herself slightly with a razor.  They live on a day to day basis with little or no conception of the future.  They will require to be cared for throughout their lives.  They were freed for adoption on 25 November 1999 on the joint application of their father who consented to it and the South East Belfast Health and Social Services Trust.  The agreement of their mother was dispensed with by the court.  There were long delays in the proceedings to free for adoption.  Adoption had been sought many years earlier.

            The applicants are SM and RM with whom the girls J and A have resided since 9 February 1987, that is, almost from birth.  The girls regard Mr & Mrs M as their parents and they in turn look on them as their children.  There is no doubt about the love which Mr and Mrs M have for the girls, which is reciprocated, nor about the care they have been given in the M household over 14 years.

            The application to adopt was filed in the High Court on 11 October 2000.  The application is supported by the Trust and the reporting officer but not recommended by the Guardian Ad Litem.

            J and A have an older brother D who was born on 3 November 1983 and is now aged 17 years and 8 months.  On 25 May 1986 when he was 2½ years of age he was placed with the applicants and remained with them until 3 July 1998 when he went to live in Bawnmore Residential Home.  He has mild learning difficulties.

            In addition to providing foster care to the three children J, A and D, the applicants have provided foster care for many other children, believed to be around 40 in number.  It had been the intention of the applicants to adopt D as well.  However the relationship between D and Mrs M broke down as a result of which he left the placement in 1998.

            In January 2000 D made allegations to a senior social worker at the Young People's Centre in Belfast, that he had been abused by the applicants.  D had been referred to the Centre because of high levels of stress and occasional depression amongst other things.  He was being bullied by other children.  He is reported as having said that he did not get all the bruises on the back of his head as a baby.  The allegations were reported to the police and D subsequently made a written statement of complaint during a joint protocol interview.  His complaints were specific, but no dates were given for the alleged incidents.  They were seen in the context of D not doing things the right way for Mr and Mr M.  It was thought the allegations related to a period when he was 8 to 11 years of age.  The allegations related to D only and he made no allegations relating to J and A.  A thorough investigation was carried out by the police and the Trust and a file was sent to the DPP who directed that no prosecution take place.  Mr and Mrs M were interviewed by the police and denied all his allegations, as they did before this court during the hearing.  Some of D's allegations could be described as bizarre.  He alleged that Mrs M caused a wound to his head which she herself then stitched.  D bore several scars which were unexplained but no sign that he had been stitched.  Mrs M said he arrived with scars when he was placed with them aged 2½ in 1986.  There was no medical confirmation of this suggestion.  D has given several accounts of his allegations which contain some inconsistencies.  However he has maintained that the core features of his allegations are true.  These matters apart the Guardian Ad Litem could find no reason to disbelieve him nor could the social work team responsible for him. 

            Needless to say these allegations gave rise to grave concerns within the Trust.  In addition J and A alleged that D had on one occasion abused them.  On 21 June 2000 the Trust convened a planning meeting of all the relevant professionals to consider the case.  They concluded that D's allegations could not be discounted.  However there was a clear consensus that J and A should remain with Mr and Mrs M.  The meeting discussed whether they should remain in foster care or be adopted.  The advantage of supervision by the Trust through foster care was debated at length.  It is clear that there were differing views about whether or not the adoption of the girls should proceed.  The predominant, though not unanimous view, was that adoption should proceed for several reasons.  It was felt that visits by social workers to the home within the statutory framework were unnecessary and likely to cause continued conflict with Mr and Mrs M.  Mr and Mrs M were more likely to collaborate with Social Services if they were parents rather than foster parents, given their longstanding wish to adopt and the sense of uncertainty and powerlessness they felt as foster carers.  While the meeting concluded that adoption should be pursued this was to be discussed further with two senior Trust personnel.  After the complaints were made the question of adoption was put 'on hold'.  The case was referred back to the Adoption Panel who met on 24 August 2000.  They were provided with a report by the Trust which referred at length to the meeting on 21 June 2000.

            The minutes of the Adoption Panel meeting disclose that the Trust's view was that although the allegations made by D could not be substantiated it was considered that something had happened to him.  The allegations were believed to relate to a period when the applicants were greatly distressed at the abrupt and without notice removal of another child that they were looking after as foster carers.  While it had been a difficult judgment to pursue adoption the Trust stressed the deep commitment by Mr and Mrs M towards J and A with whom they have strong bonds and whom they undoubtedly love and who had achieved more with the girls than was thought possible initially.  Mrs Barbara Williams of the Trust's Adoption Team and who had been involved in the adoption proceedings from the outset agreed with the Trust's assessment and recommendation.  Various views were expressed at the Adoption Panel meeting after which it was recommended that the girls be adopted by Mr and Mrs M. 

            It is clear that this was a difficult recommendation and decision for all concerned.  It was made more difficult by the lack of clarity about whether anything, and if so what, had happened to D.  One interesting comment emerged – that by contrast with Mr and Mrs M, D had to some extent put the matter behind him and wished the Mr and Mrs M to know about his improved record of achievement.

            Mr and Mrs M have had a long and stable marriage.  They have provided a home for many disadvantaged children and have cared for many years for three children with learning difficulties.  In relation to all the children and their dealings with Trusts and Trust personnel, Mrs M has taken the lead.  She is articulate and knowledgeable about children's needs and what is in their best interests, and forceful in her expression of them.  She is confident of her own views and determined to achieve what she considers best for the children she has fostered, but usually in accordance with her views.  Mr M would incline to more diffidence, but supports his wife in everything she says and does and will express that view.  Mrs M's forceful determination and strong personality have inevitably led her into conflict with various social workers over the years.  Social workers are more accustomed to compliant foster carers, only two grateful for the advice of well qualified and experienced social workers.  Not so Mrs M, with the consequence that the removal of C, who had been placed with her for adoption, became a source of friction and conflict.  She became defensive and prickly, the more so when the allegations made by D were revealed.  These posed a great threat not only to her desire to adopt the girls but to their placement with her.  It was natural that she should become defensive, but it was more than that.  She sought to control the situation and the agenda.  Permitting contact by fax only was a small but revealing part of that.  The appointment of a Guardian Ad Litem in the adoption proceedings opened up another front which required to be resolutely defended.  However the independence of the Guardian Ad Litem made this a more difficult issue for her.  Regrettably, for Mrs M and ultimately some of the Trust personnel, this application descended into a "them and us" situation in which she perceived herself as pitted against the Guardian Ad Litem in her desire to adopt J and A.  Her defensiveness has made her guarded in what she says and caused her to note, for future use or whatever purpose, what others have said.  I have no doubt she told the Guardian Ad Litem on 9 May 2001 when she inquired whether there were any issues that Mrs M wished to raise with her, "to ask their solicitor".  I was equally dismayed to observe her taking notes during the evidence, particularly during the evidence of the Guardian Ad Litem with whom attempts to points-score, should not be thought necessary in adoption proceedings.  The Guardian Ad Litem is not a party to the proceedings as such and occupies a special role in any application under the Adoption Order.  It is always important to remember that adoption proceedings are principally about children and less about applicants and respondents.

            The Guardian Ad Litem appointed was, in accordance with the normal practice, the same Guardian Ad Litem who reported in the applications to free for adoption.  The allegations made by D created a major difficulty for the Guardian Ad Litem as they had for the Trust personnel and the Adoption Panel.  They also enlarged the scope of her inquiries and ultimately led her not to recommend that an adoption order be made in favour of the applicants.  Her principal reasons for reaching this conclusion were the unresolved allegations made by D and her judgment that, in the light of those allegations the Trust should retain parental responsibility for the children.  She is concerned that the girls would have no means of communicating any problems they may have had or may encounter, particularly in the light of Mrs M's reluctance to engage openly with Social Services.  She is also concerned about the ability of the applicants to work voluntarily with the Learning Disability Team.  She also raised concerns about the health of both Mr and Mrs M and also about Mrs M's ability to cope under stress.  Finally she expressed concern about the lack of contact between the girls and D and the failure of those concerned to establish a meaningful programme to bring this about.  The Guardian Ad Litem has carried out a very thorough and comprehensive investigation, which the Court has come to expect.  Her analysis of the position has been painstakingly researched and confirmed by the Trust's documentation to which she had access, or through her own interviews.  The reasoning behind her recommendation could not be faulted.  She was challenged about various matters and was able to demonstrate on each occasion the evidence or documentary evidence to support her views.  In her first report she drew attention to the allegations and sought direction from the Court as to the future conduct of the proceedings.  The allegations made by D created considerable problems for the Court.  Should this 17 year old boy with learning difficulties be called as a witness or joined as a party or be legally represented in the proceedings?  To have directed any one of those courses of action would have led to a trial within the adoption proceedings, of the truth or otherwise of D's allegations.  The Guardian Ad Litem felt this issue should not be left unresolved.  This might have been one way of resolving the issue.  However the DPP directed no prosecution and the investigation by the police and the Trust were inconclusive.  Having considered the documentary evidence available it was probable that a court trial of this issue in adoption proceedings, would be equally inconclusive.  Such a finding based on the standard of proof on the balance of probabilities would not have removed the issue from consideration by the court.  It would have reopened old wounds and would have had a devastating effect on the relationships between the principal parties.  There was probably little, if anything, to be gained by such an inquisition and much to lose.  D has put this matter behind him.  Any outcome would be damaging to him to a greater or lesser extent.  Therefore I ruled that he should not be joined as a party, nor called as a witness nor be legally represented in these proceedings.  On the other hand the Court requested that it should be made fully aware of the nature of his allegations and the investigation into them and this request has been complied with.

            In this application to adopt J and A two issues arise – (i) is adoption in their best interests and (ii) if so, should they be adopted by the applicants.  The application is supported by the Trust.  Under the Adoption Order only a Trust, exceptional circumstances apart, can place a child for adoption – see Article 11.  Thus Parliament has decreed that Trusts play an important initiating role in any such application.  A Trust can withdraw a placement.  The Trust can decide who should be put forward for adoption or not, though it is the Court's responsibility to decide whether or not an adoption order is made.  An adoption order gives parental responsibility for the child to the adopters and extinguishes any parental responsibility vested in any other person for example a parent or an organisation including a Trust – see Article 12.  Before an adoption order can be made, the child is required to live with the applicants for a specified period and the Court has to be satisfied that the Trust has had sufficient opportunity to see the child with the applicants together in the home environment – see Article 13.

            Under Article 9 the Court and the Trust are under a duty to regard the welfare of the child as the most important consideration.  The Court and the Trust are also under a duty to give due consideration to the wishes of children in the light of their understanding.  These children wish to remain with Mr and Mrs M, but I do not think they appreciate the significance of adoption per se.

            Under Article 66, as amended, the Court shall appoint a Guardian Ad Litem for the purposes of any application for adoption.  The Guardian Ad Litem is appointed in accordance with Adoption Rules and is under a duty to safeguard the interests of the child or children in the manner prescribed by the Rules.  The Adoption Rules also make provision as to the assistance which a Guardian Ad Litem may be required to give to the Court.  The duties of the Guardian Ad Litem are set out in Rules 6 and 18, the relevant ones in this case being Rules 18(b), (c), (d), (e) and (f).  These may be summarised as – to investigate all the circumstances relevant to any agreement to adoption, to investigate all matters alleged in the originating summons, the reporting officer's report and any statement of facts as well as any matter which the Guardian Ad Litem considers relevant to the making of an adoption order; to report in writing to the Court drawing attention to any matter which the Guardian considers may be of assistance to the Court, to advise on whether the child should be present and to perform such other duties as appear to the Guardian to be necessary or as the court may direct.  Thus the duties of a Guardian Ad Litem under the Adoption Order may be very wide ranging indeed and the Guardian Ad Litem in this case has fulfilled that duty, which is placed upon her, in an exemplary manner.  Outside the usual or obvious matters relevant to adoption, the Guardian Ad Litem acts under the direction of the Court to whom he or she reports, but the ultimate decision whether or not an adoption order should be granted rests with the Court, which will take account of the Guardian's views.

            Mr and Mrs M are 55 years and 57 years of age respectively.  Mr M is no longer in employment.  Both have had health problems in recent years none of which in themselves would represent a bar to adoption, but they nonetheless are matters which must be taken into account.  Both have denied the allegations made by D.  Both accept that should an adoption order be made they would require help and guidance in the future and they do not envisage cutting their links with the Trust.  They are anxious to resume contact with D, but for the moment wish to respect J and A's wishes not to see D.  They see no reason why the girls should not have contact with their natural mother.  They wish to adopt J and A in order to provide them with security and a proper legal place within their family.  They accept that the girls will always need a level of protection and if the applicants are unable in later life to provide it, their own grown up children will do so.  In that sense this is a unique application, whereby the Court has to consider J and A's future not just until they are 18 years of age, but also throughout the rest of their lives.  It is likely that Social Services in one form or another will be involved with J and A for the remainder of their lives.  Mr and Mrs M have made a commitment to J and A over the last 14 years and are prepared to maintain that commitment long after they reach 18 years of age.  They have provided J and A with a good home, a good education and have stimulated their interests in many things and improved their skills.  Mrs M sets high standards and may not always be easy to please and sometimes too quick to take offence.  Her suggestion that the Guardian Ad Litem had made mistakes and adopted a negative attitude are without foundation.  She and her husband have had much to cope with over the last few years.  Despite the allegations and the investigations and being questioned by the police they have stuck to their commitment to J and A.  The consequences for the girls should they require to leave the applicants would be enormous.  Mr Howland, Acting Principal Social Worker in charge supported the application and said that if he felt the allegations made by D impacted on J and A's situation then his attitude would be different.  He said the relationship between Mr and Mrs M and the girls was a special one involving a deep sense of protection and commitment.

            The evidence and the documentary material has ranged over various matters.  I have mentioned but a few.  The Court has had the advantage of seeing and hearing Mr and Mrs M.  Ultimately the question is one of trust. Can the Court be satisfied on the balance of probation that Mr and Mrs M can be trusted to care for J and A in the future in the way in which, it is accepted, they have cared for them in the past.  I believe it can and the evidence of Mr Howland supports the Court in that view.  However there remain the legitimate concerns of the Guardian Ad Litem and the questions of contact between the girls and D and their natural mother.  Under Article 12(6) an adoption order may contain such terms and conditions as the Court  thinks fit.  There is no restriction on the terms and conditions which may be imposed and such would vary from case to case.  In considering whether and if so what terms and conditions should apply, the Court must and does act in a manner which it perceives to be in the best interests of the children.  The making of an adoption order is a hugely significant event in the life of any child.  The grant and transfer of parental responsibility has grave legal, practical and social implications.  It is irrevocable.  Where the child or children suffer from moderate learning disability the implications are so much greater.  It is a very relevant factor that these girls will never be able to communicate like average teenagers growing up.  It is important that if humanly possible, contact be restored with D and that they have contact with their mother.  The history of Mrs M's relationship with Social Services (and to a lesser extent with the Guardian Ad Litem ) justifies the Court in imposing terms and conditions in this instance.

            I will grant the applicants an adoption order in respect of JA and AA and direct the Registrar General to enter their names as JM and AM in the Adopted Children's Register in each case on condition:

(i)        that reasonable contact take place between JM and AM and DA;

(ii)       that the parents of JM and AM furnish to the nominated social worker for EA (the children's natural mother) up to date photographs of J and A and a letter containing details of their activities, interests and well-being once per year.  J and A should be encouraged to send letters or cards to EA at significant times, for example, EA's birthday and Christmas etc. together with any other documentary material which they wish EA to receive.  If J and A so wish there should be such other contact, direct or indirect, between them and EA as the nominated social worker for EA and the parents of J and A agree is appropriate;

(iii)      that JM and AM benefit from engagement with the Learning Disability Team of the South East Belfast Health and Social Services Trust and that their parents work with the Learning Disability Team for the benefit of their children J and A through their childhood;

(iv)      that, for the next two years the parents of JM and AM shall meet with Mr Howland Acting Principal Social Worker of South East Health and Social Services Trust or such other well qualified person nominated by the Trust at least once per year (or more frequently by agreement) to discuss the progress and well being of JM and AM.

(v)       That JM and AM, throughout the remainder of their childhood, shall meet alone with Mr Howland Acting Principal Social Worker of South East Belfast Health and Social Service Trust or such other well qualified person nominated by the Trust, accompanied by an appropriate third party, at least once per year and at a venue other than their home, to assess their progress well being, needs and concerns.

            I do not consider it appropriate to impose terms and conditions as to the contact which should take place between J, A and D.


 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   FAMILY DIVISION      ________       RE: M        ________

 

 

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