High Court of Justice in Northern Ireland Family Division Decisions

Neutral Citation no. [2001] NIFam 21

Ref:    

GILF3493

 

 

 

Judgment: approved by the Court for handing down

Delivered:

25.09.2001

(subject to editorial corrections)

 

 

   

 

 

  IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND    ________   FAMILY DIVISION    _______   RE: DJ and D (FREEING ORDER)    ________  

GILLEN J

 

            I have prepared this judgment in an anonymised form.  Nothing must be published which might lead, either directly or indirectly, to the identification of the children or the parties involved in this case.

            Before the court is an application by a Health and Social Services Trust which I do not propose to name and which I shall refer to as "the Trust".  The application by the Trust is for an order freeing two children for adoption without parental consent pursuant to Article 18 of the Adoption (Northern Ireland) Order 1987 ("the 1987 Order").  The children are twins, namely DJ a boy and D a girl both having been born on 15 April 1999.  Ms R is the birth mother, born 19 January 1966.  A is the father, born on 8 March 1967.  The parents are unmarried and A does not have parental responsibility for children pursuant to Article 7 of the 1995 Order.  Neither child has ever been in their parents care.  They are the subject of a care order made on 16 November 1999 and are thus in the care of the applicant Trust.  Since their birth they have resided in two foster placements.  The current fostering placement is of a short-term nature and neither child will be remaining in their present foster home irrespective of the outcome of this case.

Sadly R's background illustrates a repeating cycle of maladaptive behaviour punctuated by incidents of alcohol abuse, domestic violence and rejection of proffered professional help.  Her current relationship with A seems to have commenced sometime in and around 1998 but the chaos of that relationship was mirrored by an earlier relationship between R and a Mr M.

            I make brief reference to that earlier relationship simply to illustrate the pattern of R's life over many years.  It seems that there were five children of the relationship between R and M.  The dates of birth of these children were 15 April 1987, 11 February 1988, 30 July 1990, 15 July 1991 and 8 September 1993.  EMcC, a senior social worker from the Trust, provided evidence of the history of that relationship.  It followed a volatile course embracing excessive drinking and domestic violence.  It first came under the notice of social workers in 1991 and from August 1994 until their separation in February 1998 there were a large number of incidents where these two parents regularly whilst under the influence of alcohol, exhibited violence towards each other, to the police and on two occasions towards social workers who were assaulted.  The end result was that the five children became the subject of deemed care orders on 12 October 1995.  Various attempts during that relationship by R to address the problem of alcohol proved to be of no avail.  It is of relevance to note:

(a)        In August 1994 R was referred to a community addictions team but was not willing to attend meetings.

(b)       In May of 1995 the family were referred to Knocknashinna Family Centre where it was decided that an assessment was dependent on R attending in-patient treatment for alcohol addiction.  She initially agreed to enter Ward 15 of the Downshire Hospital and then failed to present herself for admission in early October 1995.  It would seem after the children were received into care R admitted herself to Cuan Mhuire (an alcohol addiction unit) based in Newry but discharged herself after two days.

(c)        In January 1996 she attended Shaftesbury Square Hospital in respect of her alcohol problems and was discharged after failing to attend for two appointments.

(d)       In May 1997 she attended a four week period of in-patient treatment for alcohol addiction.  However, she quickly resumed drinking after discharge from hospital and did not avail of regular counselling or support from the addiction team.

            This sorry pattern of domestic violence, alcohol abuse and rejection of help has surfaced in her new relationship with A.

(a)        Domestic Violence

            There is clearly a history of domestic violence between A and R.  Some examples will suffice;

(i)        The reports of the Family Centre social workers Ms D and Ms S completed on 10 May 2000 include reference to an interview with R and A in the following terms:

"(R) and (A) stated that during the course of their relationship there had been two incidents of domestic violence.  In relation to the first incident R was kicked about the body and face by A while she was on the ground.  Although A stated that he felt guilty about the assault, he appeared to distance himself from the extent of the injuries he inflicted on R.  He claims some of injuries had accidentally occurred when R had attempted to pull him off another man with whom he was fighting.  R disputed that the injuries were accidental but tended to minimise A's responsibility for the violence by stating that she had provoked him."

 

In cross-examination A said that 'he vaguely remembered kicking her',  but accepted that he had kicked her about the body and face.  That same report of 10 May 2000 referred to a second incident in the following terms:

"The couple both stated that the second incident of domestic violence occurred because M (R's estranged husband) was present and that alcohol had been taken by all concerned.  This incident was particularly concerning given that R was pregnant with the twins on this occasion and believes that she threatened to miscarry as a result of the assault.  The couple gave differing accounts of the violence.  A claimed that he pushed R and accidentally fell on her stomach.  R was adamant that she was deliberately punched in the stomach and that A was fully aware that she was pregnant."

 

            In cross-examination A accepted that R had to attend hospital as a result of this attack and his explanation was that it was done in the course of a drunken rage.

            The report ominously includes the following paragraphs:

"A and R demonstrated some insight into the possible emotional impact of domestic violence in children.  R would appear to be basing this on comments made by her older children (following their admission to care) in relation to the way the violence was caused and how this impacted on their ability to concentrate in school.  The couple showed no insight into the possible physical risks posed to children."

 

(2)        Although in evidence R insisted before me that she had only been assaulted twice by A, I observed in the course of the evidence of Ms D and in the course of her report of 20 September 1999 that R had given a different account to her on the occasion of that report.  The following extracts are relevant:

"Liaison with RUC, Ballynahinch and Downpatrick has established that officers attended a domestic violence incident at A/R's home on 1 September 1999.  R had requested their assistance as she stated she was afraid of her boyfriend.  R was taken to her sister's home by RUC personnel.  RUC records indicate that both A and R had consumed alcohol."

 

            Later the report records:

"R further stated that A had a violent temper which he found difficult to control and that on several recent occasions he had physically abused her and she felt she had to contact police to secure her own safety."

 

            During the course of that interview A denied all R's claims although of course he has now admitted in court that he did violently abuse her.

(3)        Evidence was called before me by Constable CD who is a member of the Regional Traffic Branch.  She recalled in detail an incident that had occurred on 25 February 2001.  I should say at the outset that I found this police officer to be a very convincing witness who gave her evidence in a measured and considered fashion.  I accept in its entirety the evidence that she gave before me.  I shall return to her evidence in the context of alcohol abuse, but it is also of relevance in the context of domestic abuse.  She recorded how on that evening police had detained A on suspicion of driving with excess alcohol and that on this occasion R had been his passenger.  Constable D's evidence was that R was heavily intoxicated, very unsteady on her feet and smelt of intoxicating liquor.  Initially she was aggressive to the police but subsequently, on being driven back to Banbridge RUC station, she not only apologised for her behaviour but began to relate to Constable D about her life and how she had a drink problem which resulted in her losing children to social services.  Constable D recalled her saying "that she was in big trouble with A because she had been the one who had wanted to go to Dromore that evening drinking, that he would kill her when they get home" and she implied that this was a regular occurrence.  In the police station R again started to tell Constable D how A was going to give her a hiding when they got home indicating that this was a regular occurrence between them when both had been drinking.  So concerned was Constable D that she gave R documents and advice on victim support and how to deal with violence in the home.  Before me R denied any such conversation.  Having watched both witnesses carefully in this regard, I am satisfied that R was deliberately untruthful to me and that she was attempting to conceal the extent of domestic violence which has occurred in this relationship.  I also carefully observed A when giving evidence before me, and in confining the domestic violence of two incidents, I also found him to be singularly unreliable in this regard.  It is my conclusion that domestic violence has been an unpleasant and regular feature of this relationship.

(4)        I find further evidence of the prevalence of domestic violence in this relationship in the record of Ms O, senior social worker with Newcastle Community Services.  She records an interview of 28 November 2000 with A and R.  In the course of that record she records:

"I advised both R and A that the purpose of the referral meeting was to consider how the couples lifestyle had changed since February 2000 and their commitment/motivation to care for the children.  Both R and A agreed that their situation had not changed since February – both continued to abuse alcohol and A advised that there continued to be a strong potential for violence in their relationship."

 

            I believe this highlights the thread of violence with permeates this whole relationship.

            It may well be, as R admitted to the Guardian Ad Litem in the course of interview in July 2001, that she plays a role in this violence by provoking A but that provides absolutely no excuse or justification for domestic violence occurring.  The Guardian Ad Litem has helpfully provided me with a series of references to the dangers of children being exposed to domestic violence.  I have had the opportunity to read these references together with a wealth of other literature on domestic violence.  It is clear beyond peradventure that empirical and academic research has proved that children exposed to domestic violence are at an increased risk for maladaptation.  It places children at risk of significant harm on a number of levels which include:

(a)        The domestic violence perpetrator may also be directly, physically or sexually abusive to the child.  This may be due to a direct assault or as a result of trying to protect the mother.

(b)       Witnessing violence perpetrated against their mother may have an abusive and detrimental impact on children's development.  Children can develop inappropriate maturity and sense of responsibility which can inhibit their ability to develop at an appropriate level.

(c)        The perpetrator may abuse the child as part of their violence against their partner.

(d)       Children can show anger/aggression towards one or both parents.

(e)        Children can feel guilty, blame themselves or feel depressed.

(f)        Children can develop fears, insecurity and low self-esteem.

(g)       Children can suffer emotional confusion which can result in a series of unfortunate sequelae both physical and emotional.

(h)       Indirectly as well as directly violence can affect children through their mother's heightened level of stress with the result that the mother is unable to respond to the child's needs which in turn may impact on the attachment process.

(i)        Recent research has indicated that children are affected as much by exposure to violence as being involved in it.  It has a serious adverse impact on the great majority of children who encounter it and the effects are usually both short and longer term.

            It is clear from the leading authority of Re L (Contact: Domestic Violence) & Others 2000 2 FLR 334 that the courts, the family lawyers, the relevant agencies and the public need to be more aware of the importance of the issue of domestic violence and the effect on the children of assaults, threats and verbal abuse of a parent.

            Once the court has found proved violence which is significant and relevant to the disposal of the case (which I have found in this instance) the court must not only consider the effects of the violence on the child, but should also consider the response of the perpetrator of the violence.  Violence to a partner involves a significant failure in parenting.  It represents both a failure to protect the child's care and a failure to protect the child emotionally.

            The cases made in this instance is that both parties, and in particular A, has recognised the effect of future violence, has considered his capacity to change and behave appropriately and has taken steps to deal with the problem.  The evidence of Dr W was called in aid of the parents' case.  He reported that A has attended him for a treatment plan to deal with anger management.  His conclusion was that he was likely to benefit from continuing to employ time to reflect when he considers he may be entering a potentially conflictual situation.  It was Dr W's view that total abstention from alcohol was a critical factor in A's ability to manage his problem.  However he considered its success was a long term issue and that alcohol remained a latent risk factor in the event of either party failing to remain abstinent.  He accepted that his interventions on three occasions were brief and that he himself was not going to participate in any of the future work.  Crucially however he considered that given the history of domestic violence, it would take at least a period of a year and probably one to two years before one could be confident that A had come to terms with his problem.  He had seen A on 20 November and 30 January 2001 which predated the incidents with Constable D.  As I have already outlined that incident seemed to suggest that domestic violence was still a problem feature of their relationship and gives me no confidence that even at the stage when his visits to Dr W had ended, A was coming to grips with this problem.  In short I remain unconvinced that A has sufficiently come to terms with the dangers of domestic violence and that even if he is seeking to grapple with the problem, it is going to take at best one/two years before one could be in anyway confident that that factor no longer presented a danger to these children both physically and emotionally.

(b)       Alcohol abuse

            It is quite clear, indeed it is admitted by the parties, that alcohol abuse can cause a substantial problem in the relationship between A and R.  R admitted to the guardian ad litem on 2 November 1999 that she had a drink problem.  Abuse of alcohol has indeed fuelled several of the breakdowns in the attempts to rehabilitate the couple with their children.  It was R's case that had DJ and D been discharged to their home from hospital in May 1999, she "then would not have had time to drink" adding that "she drinks out boredom".  (see guardian ad litem's Report of 8 November 1999).  This is a theme throughout the social service interchange with R.  K a community addiction nurse who had been assisting in the treatment of R, records in a report of 18 June 1999 that the couple were drinking whilst participating in the Thorndale assessment.  Both A and R must have known this would be detrimental to their case, yet neither felt any guilt, choosing rather to blame Social Services.  At the time R claimed she did not have a problem and had only availed of the service of K "on the advice of her solicitor and pressure from social services".  It is clear to me that when this woman is sober, she is a caring and capable mother.  To date however she has shown a complete lack of insight into the impact of alcohol on the relationship between her and her children.  When help has been offered, she has often attended smelling of alcohol and indeed on occasions, for example 4 November 1999, contact has been terminated because she has been smelling of alcohol.

            Having read the papers I share the view of the guardian ad litem that to date her insight into the impact of her ability to parent whilst under the influence of alcohol has been limited and unclear essentially due to her non-compliance with professionals. 

            I have had the benefit of reading in this case and in other cases the effect of excessive alcohol abuse on parenting ability.  In general, and in this case in particular, I am absolutely satisfied that the problem of alcohol does affect the parents emotional and behavioural responses in ways which would impact on their parenting capacity and is likely to have adverse consequences for the children particularly in this case given their tender years.

            The case argued before me on behalf of R, and the gravamen of her evidence before the court, is that her drinking habits are no longer as chaotic as before, that she has undergone advice and treatment from Dr MacF, that she is willing to engage with further work in regard to alcohol abuse and that any craving for alcohol can possibly be dealt with by the prescription of an anti-craving drug Nalorex.  I confess I am not persuaded that this woman is attuned to the notion of abstinence from alcohol despite her supportive words.  These promises to desist from alcohol and to avail of treatment have been made all too often in the past and on each occasion, with distressing inevitability, she has resorted again to alcohol.  I fear that her main motivation in abstaining from alcohol in this instance is the present court proceedings and if the legal imperative was to be removed then her motivation would diminish.  She admitted to me in court that she is still drinking, albeit she says at a lower level and not to the same extent as before.  Given the fact that she has not availed of opportunities offered to her to deal with her drinking problems since 1995, I think that this is inadequate preparation to deal with her current problem.  She was less than frank with Dr MacF whom she did not inform about the incident of her drinking in February of this year and about which I heard from Constable D.  As I have already found, I am satisfied that she was completely intoxicated on that occasion.  She had told Dr MacF that essentially she had abstained from drinking for that year.  It scarcely augurs well for her that she was less than frank with Dr MacF.  It was clear from the report of her general practitioner 3 September 2001, that although she indicated to him that she had ceased alcohol consumption, there was still alcohol detected in her system at that time.  Dr MacF conceded that in alcohol she has a potential to be a dangerous hazard to her two children.  He concluded that even if she were to engage in counselling and advice from her social worker and carry out the work that was necessary in order to achieve abstinence, this whole process would take up to 15 months even if things went well before one could draw any measure of confidence that she was in a position to parent the children without the attendant risks of alcohol.  Given that Dr MacF had been misled by R I am not convinced that that process has even started at this stage.  Indeed it is not without significance that as later as 21 August 2001 when she saw Dr MacF, she again led him to believe that she was completely off alcohol whereas quite clearly the general practitioner's examination and test four days earlier on 17 August manifested the contrary.  I therefore remain unpersuaded that a past life of chronic alcoholic instability is a thing of the past or that she has yet demonstrated that measure of constancy and determination which will herald a meaningful change in the dynamics of her relationship with alcohol.

(c)        Rejection of help

            I am satisfied that the Trust in this case has acted with commendable patience and earnest endeavour in affording to both R and A the opportunities to demonstrate that they are good enough parents.  Those efforts have been unavailing to date.  Children cannot indefinitely wait for parents to change and confronted with this spectacle of recalcitrant parents and suffering children, the court is under a duty to protect the latter.  A brief rehearsal of the salient opportunities for help afforded by the Trust, all of which have been spurned, between January 1999 and March 2000 (as contained in the evidence of Ms D, social worker from Ballynahinch) serves to illustrate the pattern already established in earlier years:

(1)        After the birth of the children, R indicated she was willing to attend Thorndale Assessment Centre and complete an eight to twelve week parental assessment.  I am told that these placements are difficult to secure.  On 11 May 1999 both R and A arrived late, they clearly had been drinking and so the meeting with them was postponed.  On 12 May 1999 they came back to take up residence, an alternative position having been found for them at very late notice.  In evidence before me the case was made that little warning had been given to them about this placement, that A had difficulty making farm arrangements and that at the last moment the children's arrival was postponed over the weekend until the beginning of the following week because of the lack of staff.  Whilst I appreciate that this sequence of events was unfortunate, nonetheless these were obstacles which determined and responsible parents would have overcome and would have prioritised the needs of the children.  On the contrary, the reaction of the parents was that they left Thorndale and did not return.  A failed to return to Thorndale the following day for a meeting and the placement was suspended.

(2)        Far from reflecting on the error of their ways, on 17 May 1999 R became abusive towards Ms D the social worker and made several threats stating that "she would do time for her".  The police were contacted but the threats were repeated.  On 19 May 1999 A came to the Ballynahinch office of the social services where he acknowledged that R had been drinking in Thorndale.  The following day both parties came to the Ballynahinch office where R became verbally aggressive and made threats against the senior social worker and Ms D.  It simply beggars belief that the offer of an assessment at Thorndale, with the prospect of rehabilitation with these children, should have elicited this response.

(3)        Notwithstanding this the Trust persisted.  It did not surprise me at all however that at the Looked After Children Review on 26 May 1999, in the wake of this behaviour, the Trust were driven to give consideration to a permanency option in the context of care planning for these children.  I am satisfied however that the Trust had not given up hope entirely of rehabilitation and clear evidence of this is to be found in their provision of a period of assessment with Knocknashinna Family Centre.  This centre facilitates persons on a day to day basis and provides services to explore the relationship of the parties and the children with attendant problems prior to any further residential assessment.  I am persuaded that this was a further genuine attempt on the part of the Trust to plan a way forward in relation to assessing the couple's ability to parent the children.  Once again it was spurned.  On 6 July 1999, despite the preparation that the Trust has made, R and A indicated that they could not agree to that work being carried out.  The Trust on 3 August 1999 facilitated a further meeting to re-establish involvement, but A did not attend and stated he did not wish to pursue this assessment.

(4)        Still the Trust persisted in their efforts to afford the possibility of reconciliation.  On 12 August 1999 a further meeting was arranged in an attempt to advance the process of assessment and both R and A agreed to fully co-operate with the assessment process.  I should say that this assessment at Knocknashinna had arisen out a court direction on 10 July 1999 calculated to give the parties another chance to determine whether or not they could parent the children.  It is important therefore to appreciate that R and A must have realised at this time that the assessment at Knocknashinna, as a prerequisite for a placement at Thorndale Assessment Centre again, was happening not only at the behest of the Trust but also of the court.  Between 16 September 1999 and 5 October 1999 A and R attended regularly during this period although one session was stopped by the family centre as the family had breached the working agreement by arriving smelling of alcohol.  However between 5 October 1999 and 13 January 2000 they did not attend the family centre.  Although the interruption was attributed to R's work commitments she was unwilling to discuss alternative appointment times.  Part of the problem was attributed to the illness of A's mother and R's contact arrangements with her other five children in the Christmas period.  However an appointment on 13 January was cancelled by R due to A's work commitments.  On 19 January both stated that Thorndale "was no longer an option" for them notwithstanding their wish for the children to be returned to their care.  They clearly had not effected any change in their lifestyle and continued to raise obstacles to an assessment at Thorndale.  In terms, once again they were refusing to accept the very necessary assessment which would have been a prelude to any meaningful consideration of the children being returned to them.

(5)        It came as no surprise to me to hear evidence that by February 2000 the Trust had advised both R and A that the assessment was no longer able to be progressed and that the family centre service was consequently being withdrawn.  They had been offered a seven month period to demonstrate their change of attitude and behaviour whereas the usual assessment took only three months.

(6)        Far from having a corrective or salutary affect on R, this decision of the Trust seemed to occasion a deterioration in her behaviour.  A report from Ms D of 15 May 2000 records that on 4 February 2000 R left the family home stating she was going to live in England.  It is recorded that on 6 February 2000 R fell down a steep slope at her mother's home fracturing her ankle and reports indicated that she had been drinking at the time.  Ardglass police attended the home of her mother in the wake of a report that R had struck her across the face with a crutch.  The police attending stated that R had been drinking at the time of the incident.  On 3 March 2000 an outrageous incident occurred when R and A attended the Ballynahinch office of the Social Services unannounced but under the influence of alcohol.  R became verbally threatening towards a member of the staff indicating she was in possession of a handgun.  She threatened to "put a bullet through" the member of staff and demanded the Social Services return all her children to her.  On 19 March 2000 local police attended at the home of R and A in response to an allegation that R had been assaulted by A.  Police indicated that R had bruising to her face and that she had been drinking.  On 27 March 2000 the police received a call from R stating she had stabbed A although no evidence of such a crime was found.  R had been drinking alcohol at the time of the alleged incident.  In the wake of these incidents the Trust formally wrote to the couple informing them that contact with the children was to be suspended and an interim no contact order was obtained from the local court on 27 March 2000.

            I am absolutely satisfied that this evidence of Ms D discloses that ample opportunity has been afforded to A and R to avail of help and assistance over a very lengthy period of time and that the parties resolutely failed to avail of the help proffered.

            This sorry tale of false endeavours and refusal to accept help was then taken up in evidence before me by GMcC, another senior and experienced social worker employed with Newcastle Community Services.  The autumn of 2000 witnessed a resumption of the pattern.  In October 2000, at the request of R, the Trust again considered assessment.  On 17 October 2000 a social worker from the Trust met with R who stated she was no longer abusing alcohol and would attend the community addiction team.  It was made clear to R that the possibility of further work at Knocknashinna Family Centre would be discussed at a Looked After Child Review on 15 November 2000.  R attended an initial meeting with a member of the community addiction team on 2 November 2000 but she declined to avail of the in-patient alcohol abuse programme which was offered to her.  She presented at Newcastle Community Services on 3 November 2000 having consumed alcohol.  She failed to attend a pre-arranged meeting with a member of the community addiction team on 9 November 2000.  She was offered an appointment with Dr MacF which eventually was made for 20 February 2000.  In the meantime it was agreed at a Looked After Child Review on 15 November 2000 that R and A would be offered approximately three sessions at Knocknashinna Family Centre to consider their motivation and willingness to effect changes in respect of alcohol abuse and domestic violence.  On 28 November 2000 both R and A admitted to the social workers that they did not wish to proceed with the proposed referral meeting for the sessions at Knocknahinna Family Centre because there had been no change in their lives since their last contact with the centre in February 2000.

            The Trust was criticised in this case largely on the basis that they were not prepared to give yet further chances to the parties to change, to work with professionals in relation to all issues and to prove their further commitment.  In particular the case was made that both parents have been pleasant and courteous with DMcC, R has indicated a willingness to complete further work with Dr MacF and A has indicated he would carry out further work with anger management.  I reject entirely the criticism of the Trust in this context.  I consider that they have been a pattern of patience and a model of opportunity in their dealings with this couple.  There comes a point in every such case where a Trust must conclude that the quest for rehabilitation is hopeless.

            This conclusion achieves even greater potency upon consideration of the evidence of Dr C a consultant child and adolescent psychiatrist.  Her area of special interest included attachment disorders with a focus on infant psychiatry and early intervention.  Her evidence was that the development of an attachment relationship is at its height at the age of two having begun to develop from the age of six months onwards.  Children aged six months to four years are especially prone to difficulties with separation from those to whom they are attached.  The children in this case are now almost 2½ years of age and have lived with their present foster parents from the age of nine months.  Because of perfectly understandable circumstances, it will prove necessary to move them again irrespective of the decision of this court.  The attachment concept will inform the future lives of these children according to Dr C.  Secure attachment arises where the children are well looked after by good parents or primary carers.  As a result they will form trusting relationships, reach the height of their intellectual ability, develop a sense of self-worth and self-confidence and will deal with the common stresses of life in a mature and considered fashion.  On the other hand if they encounter insecure attachment or disordered attachment they are liable to develop psychiatric sequelae such as in depression, anorexia and alcohol abuse.  A template of their future is formed by the time they are four years of age.  Consequently Dr C expressed the view, which I share, that time is of the essence with these children.  Already there will be a fracturing of their current attachment and it is crucial to minimise such further breaks.  The danger is that these children will withdraw emotionally and respond to the pain of separation by erecting immutable emotional barriers.  For children of this age, a blood relationship means very little.  It is their carers to whom they attach themselves.  If these children are placed with parents who have relationship problems arising out of alcohol abuse and domestic violence, there is high risk of these children developing insecure attachments.  It was Dr C's view, which I share, that trauma, especially violence and extreme alcohol abuse, has a dramatic impact on smaller children and how they perceive relationships.

            I have come to the conclusion that these children cannot be exposed to the risk of further uncertain attachments or sacrificed to the vague possibility that, contrary to a pattern that had been set over a number of years, A and R will some how alter the dynamics of their lifestyle in the course of the next one to two years.  They have had ample opportunity to manifest evidence of this change in the past and, without exception, they have failed to do so.

            The case was made on their behalf that M, who had also exhibited a past pattern of domestic violence, and alcohol abuse, had now been sufficiently rehabilitated so that the Trust had approved the return of two of the five half siblings to his care with likely approval by the Trust for a residence application for the three remaining half siblings.  This argument fails to address the crucial difference in M's position namely that according to the evidence of the Trust, he had manifested over a lengthy period a proven ability to alter the dynamics of his lifestyle and to change.  Sadly the converse has been the position in the case of R and A. 

            I was also satisfied that the Trust have carried out their statutory duty to interview and assess other potential carers for the children including, an aunt namely Ms A.  I am persuaded that these enquiries were of no avail in producing any prospect of an alternative potential carer within the extended family or elsewhere.

 

The application to free for adoption without consent

            I turn now to apply these factual findings to the application of the Trust now before me:

(1)        I have been satisfied as to the pre-conditions necessary for the granting of an application under Article 18 of the 1987 Order namely that:

(a)        These children are in the care of the Trust pursuant to a care order made on 16 November 1999 by the Ards Family Proceedings Court.

(b)       Having heard the evidence GMcC the social worker, I am satisfied that there are two couples who are specific adoptive parents for the children if they are freed for adoption and that accordingly it is likely that these children will be placed for adoption.

(2)        I must then consider whether or not adoption is in the best interests of the children and then, if I am so satisfied, whether or not the mother of the children is unreasonably withholding her agreement to the adoption.  A is an unmarried father without parental responsibility for either child and although therefore I have taken into account his views, I am satisfied pursuant to Article 17(6) as applied to Article 18(3) that there he has no intention of applying for a parental responsibility order or residence order or that if he did make such an application it would likely be refused.

(3)        In deciding on the course of action in relation to this application, I have had regard to the welfare of the child as the most important consideration.

            In addition I have had regard to all the circumstances with full consideration being given to:

(i)        The need to be satisfied that adoption would be in the best interests of the children; and

(ii)       The need to safeguard and promote the welfare of the children throughout their childhood; and

(iii)      The importance of providing the children with a stable and harmonious home.

            It has not been practicable to ascertain the wishes and feelings of the children regarding the decision having regard to their age and understanding.

            I have concluded in this case that adoption is in the best interests of each child.  For the reasons I have outlined above, I do not consider that rehabilitation of the children with their parents is either possible or feasible within a timescale that would prevent substantial damage accruing to these children.  I do not believe that either of these parties is attuned to changing their lifestyle adequately or at all so as to ensure the security, stability and safety of these children.  Apart from rehabilitation with their parents I have also considered whether or not adoption or long-term foster care is the better option in this instance.  Dr C's evidence was that the literature on the subject stresses the security of permanence and a sense of belonging which adoption affords and which in her opinion is an all important factor.  In essence her argument was that adoption provides the security of permanence which was absent from long-term foster care.  In her opinion children do best if adopted before six months as the attachment has not yet reached the growth spurt which develops between six months and four years.  She recorded that the literature states that success of adoption is inversely related to the age of the child.  Long term foster care she felt might be preferable in cases where the children were much older with strong emotional ties to their parents and where the children themselves might prefer long-term care rather than adoption.  GMcC the social worker really underlined Dr C's evidence and asserted that the disadvantages of long-term foster care include a higher risk of breakdown due to lack of a sense of permanence.  He accepted that there may be cases where adoption can be a disadvantage where the children are moved from a stable foster placement where contact with the birth family is lost and in some instances where issues of identity may cause difficulties as the children grow and leave their adoptive family.  He emphasised however that when considering adoption for children, two factors weigh heavily.  First, the age of the children where research indicates that placement breakdown is less than in long-term foster care for children under five years of age.  A second factor was the issue of attachment to the birth family which he stressed was lacking in this case.

            I have weighed up a number of leading authorities in which judges have commented on this vexed area.  My attention was drawn to the decisions of:

(a)        MacDermott LJ in Re JL 1993/8F-MACE1729/

(b)       MacDermott LJ in Re KLA (2000) (Northern Ireland 234).

(c)        The Court of Appeal in Northern Ireland in Re C & L (unreported 8 February 2000 – NICE3145).

(d)       Higgins J in Re S (2000/5F) (HIGF3289).

            I have also had the benefit of reading some of the literature in the matter including a paper entitled "Contrasting adoption, foster care and residential rearing" by Triseliotis and Hill which includes, inter alia the statement "while long-term foster care provides considerable satisfaction, its ambiguous status gives rise to an element of insecurity not found in adoption".

            It is my conclusion that in this area of child care, the results of decided cases are very often fact sensitive.  Precedent is a valuable stabilising influence in our legal system, but comparing the facts of and outcomes of cases in this area of the law can conceivably lead to a misuse of the only proper use of precedent viz, to identify the relevant principles to apply to the facts as found.  As MacDermott LJ said in Re JL:

"The welfare of a child is a wide concept.  Judicial dicta over the years have done much to describe it but not define it, because what is best for a child depends upon all the relevant facts of a particular case."

 

            In this instance I have concluded that the approach adopted by Dr C is broadly correct.  I have been persuaded that these children, because of their tender years, their lack of attachment to their birth parents and the crucial need for early permanent attachment require the security and permanence of adoption and that adoption is thus in the best interests of each of these children.

 

 

Is the mother withholding consent unreasonably

            Under Article 16 of the 1987 Order, an adoption order shall not be made in the case of each parent or guardian of the child unless the court is satisfied that:

(1)        He freely and with full understanding of what is involved, agrees –

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

(ab)     Either unconditionally or subject only to a condition with respect to their religious persuasion which the child has to be brought up,

to the making of an adoption order; or

(2)        His agreement to the making of the adoption order should be dispensed with on a ground specified in paragraph (2).

            The Trust submit in this case that the mother is withholding her consent unreasonably and that I should dispense with her agreement.

            The principles governing this area of the law have been set out in a number of cases and in particular by myself in Craigavon and Banbridge Community HSS Trust v JKF (17 November 2000 – GILC3283).  For ease of reference I shall briefly set out the principles:

(a)        Re W (An infant) (1971) AC 682 is a leading authority on the matter and emphasises that the test is reasonableness and nothing else.

(b)       It is clear that Article 9 does not apply to the court when considering whether or not to dispense with the parental agreement. 

(c)        Re C (a minor) (adoption: parental agreement; contact) 1993 2 FLR 260 and Re F (adoption: freeing order) 2000 2 FLR 505 exhort the court to approach the matter by the judge asking himself whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent.  This reflects what the author of Hershman McFarlane, Children Law and Practice Section H at paragraph 127 describes as:

"The discernible move within the decisions of the appellate courts towards greater emphasis on the welfare of the child as a factor in decisions relating to the parents reasonableness."

 

            I have no doubt that the welfare of the child is an important factor which the reasonable parent will take into account, but I observe the cautionary note sounded in Re H and Re W (Adoption: parental agreement) 1983 4 FLR 614 at 624 that short of amending legislation for further consideration in the House of Lords, there must be limit to the shift.

(d)       I consider that a court is well guided if it follows the component parts of the test set out in Re W (supra) and I have done so in the following manner:

(a)        I have considered the reasonableness of the mother's refusal to consent as judged at the date of the hearing.

(b)       I have taken account of all the circumstances of the case and the factual findings that I have made above.

(c)        I have taken the welfare of the child into account but not as the sole or necessarily paramount criterion.  I have considered whether or not the advantages of adoption for the welfare of the children appears sufficiently strong to justify overriding the views and interests of the objecting parent. 

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

(e)        I have applied a test of reasonableness and not anything else.

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

(g)       I recognise that there is band of differing decisions, each of which may be reasonable in the given case.

            Having applied these tests, I have come to the conclusion that the hypothetical reasonable parent in the position of this mother being aware of the lengthy pattern of domestic violence, alcohol abuse and inability to reform or avail of assistance, would readily recognise that these children can no longer endure this ebb and flow of parental irresponsibility and uncertainty.  The hypothetical reasonable parent would recognise in my opinion the pressing need for permanence and stability which only a freeing for adoption order can afford these children.  I have concluded therefore that parental agreement is being unreasonably withheld in this instance.

            As a public authority I have of course been mindful of the Human Rights Act 1998 and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (The European Convention on Human Rights).  Under Article 8 of the Convention both the children and the parents have the right to respect for their family and private life.  If the State has interfered with that there are three requirements.  First, that it be in accordance with the law. Secondly, that it be for a legitimate aim (in this case of the protection of the welfare and interests of the children) and thirdly that "it is necessary in a democratic society".  (see Re C and B (children) (care order; future harm) (2000) 2 FCR 614 at 625.  Proportionality is the key.  I must ensure that any order I make is proportionate as a response to the risk presented.  In this context however I must be mindful of the admonition of the Court of Appeal in Re W and B; Re W (2001) UK HRR 928 where Hale LJ said at paragraph 55:

"In my view there is another way in which a public authority may act incompatibly with the Convention rights in a care case.  This is by failing to take adequate steps to secure for a child, who has been deprived of a life with his family of birth, a life with a new family who can become his new 'family for life' to make up for what he has lost.… the notion, .… can be readily inferred from the concept of positive obligations inherent in Article 8."

 

At paragraph 59 Hale LJ went on to say:

 

"Here we are discussing a person who has already been deprived of a large part, if not all of that family life which he is entitled to expect.  He is particularly vulnerable, partly because of the reasons which brought him into care and partly because of the risks inherent in the care experience.  Where the State has had to deprive someone of their family life, it seems to me that there is a corresponding positive obligation to take reasonable and appropriate steps to fill the gap."

 

            Whilst this was spoken in the context of a care application, nonetheless I think it has relevance in all applications touching upon the future of children.  I am satisfied that the order I am now making is a wholly proportionate response to the circumstances of this case given the factual conclusion I have made.

            I have therefore come to the conclusion that it is appropriate that in the case of each child I should accede to the application by the Trust and make an order freeing each child for adoption.

 

Contact

            It has been indicated to me by the Trust that if an order was made freeing these children for adoption, that pending adoption proceedings being concluded, the Trust intended to afford monthly contact to R and A and that they would facilitate contact between the D and DJ and their half siblings every three months.  It seems to me that these proposals have the merit of sound commonsense.  In the absence of an order they contain within them the flexibility which I think is crucial at this stage.  I am satisfied that the effect of the orders I have made to free these children for adoption effectively extinguishes the care orders and would have permitted the court to make contact orders under Article 10 of the Children (Northern Ireland) Order 1995 if the court was so minded.  I do not consider it appropriate to make such an order in either instance in light of the indications given by the Trust and the need to afford the Trust a flexibility in approach without immediate recourse to the court.

            Clearly the matter will be revisited if and when adoption proceedings are instituted.


 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND    ________   FAMILY DIVISION    _______   RE: DJ and D (FREEING ORDER)    ________

 

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