High Court of Justice in Northern Ireland Family Division Decisions

Background

"[32] The capability of either parent in meeting this child's needs is a matter that has concerned me greatly. It is my view that neither parent is capable of meeting this child's needs. The history of domestic violence and the attitude of both parents towards it has troubled me greatly. The father has a history of criminal convictions dating from his early teens, including convictions for armed robbery and assault. Despite the evidence of a number of incidents of domestic violence eg. 23 January 2003 when G reported that J was wrecking the flat, 2 July 2003 when she reported that J in a drunken state had slapped her face and her interview with the guardian ad litem on 23 November 2004 when she advised that she was fearful of him finding out that she had rung the police on a number of occasions, she remains in my opinion inappropriately protective of J in the realm of domestic violence. She has repeatedly failed to make a complaint to the police despite referrals to them, and she told the guardian ad litem that she does not perceive J as presenting a risk to the children. When the guardian ad litem raised the inconsistency of this statement with the police record of her telephoning them, G replied "I hope J is not going to read that". I believe this woman is fearful of J knowing that there was a record of her having called the police. There is also evidence that J has attacked a mental health worker on 28 January 2003 at Railway Road and an assault on a social worker and senior social worker in October 2001. Domestic violence, and the prospect of domestic violence, is frightening to children and this also has an adverse effect upon their emotional development. At the moment I remain unsatisfied that either of these parents has the capacity to deal with this problem or to have a sufficient insight into the dangers of domestic violence. J's failure to come to grips with this as a concept, and G's inconsistent attitude to the threat that he presents because she is neither consistent nor honest about the level of risk all serve to prevent them having the capacity to care for this boy."

"Having spoken to her and having read her mental health background including notes and records of her admissions to psychiatric units, he concluded that she demonstrated some limited but significant insight and reflective thought regarding the extent to which deficits and shortcomings on her own part had contributed to her present difficulties and their possible implications for both her own and her children's safety and well-being in the immediate future. She was at that time, in December 2004, still taking valium and prozac for her depression and obtaining counselling for her feelings over the past. She claims she had not taken alcohol for 4 or 5 years. Dr Bownes concluded that the nature and severity of the specific mental health difficulty she had displayed over the years had warranted treatment with anxiolytic and anti-depressant medication in both out-patients and in-patients settings in the attempt to ameliorate her distress and to assist her ability to cope with stressful and demanding situations. Ominously he recorded that the pattern and characteristics of the symptoms and behaviours demonstrated in recent times by G had followed a relapsing and remitting pattern and have shown a marked re-activity to external events including particularly inter-personal relationship difficulties in the marital and familial context.

(b) G clearly had a very disturbed background both in her early childhood and early adolescent years with difficulties emanating from parental disharmony, poor relationship with her mother, her mother's apparent abusive behaviour and harsh disciplining and a feeling of not being loved or wanted in absence of ongoing non-judgemental family support. Dr Bownes concluded that individuals with personality based difficulties of this nature typically report mood swings, difficulty dealing or coping with negative emotional states such as anger, boredom or frustration, feelings of low self-worth, ineffectiveness, powerlessness and lack of confidence. They often demonstrated a limited ability to cope with life's adversities, poor tolerance of stress or difficult or demanding situations, engagement in dramatic attention seeking behaviours and they often fail to take advantage of new and beneficial opportunities. In addition they generally fear being alone and abandoned in life and as a result they often enter relationships characterised by subordination of their own needs to those of their partner, compliance with their partner's wishes, tolerance of difficult, demanding or unreasonable behaviour on the part of their partner (including significant levels of violence) unwillingness to make demands on their partner and a limited capacity to make decisions without the partner's advice and reassurance. My reading of G was that this was a classic illustration of this kind of personality.

(c) It was Dr Bownes conclusion that G currently fulfilled the diagnostic criteria for dysthmia which is a condition often associated with personality based deficits and deficiencies. He recorded that such patients experience a state of chronic anxiety and depression that shows a marked re-activity to external events and stresses albeit not so severe as to threaten the life of the individual. Most of the time sufferers feel tired and depressed. In his opinion because of cumulative and interactional effects of her personality based deficits and deficiencies, and her dysthmic symptomatology, coupled with her limited opportunity to date to effectively and comprehensively address through therapy the psychological sequelae of her reported aversive childhood experiences, G was likely to have considerable difficulty in maintaining her current relatively stable state of mental health. Further she would have difficulty determining her lifestyle, prioritising the needs of any child in her care over her own needs and appraising and formulating strategies to cope with difficult and demanding situations independent of a significant level of support by the statutory and voluntary services for the foreseeable future.

(d) In his opinion G remains poorly equipped psychologically to cope with both the vicissitudes of life, interpersonal relationship conflict resolution regarding her husband and meeting the physical and emotional needs of a young child such as T.

(e) Her prospective well-being and ability to cope with the rigors and demands of domesticity and child care will be contingent upon the continued remission of her husband's mental health difficulties, avoidance of alcohol and his preparedness to support her unequivocally across a range of practical and emotional demands.

(f) Dr Bownes concluded that in his opinion before any serious consideration could be given to permitting T to return to G and J, G would need to be engaged in a structured, co-ordinated professionally delivered programme of work with a positive and sustained outcome across a range of relevant factors – the essential component parts of such a programme being set out by him in eight paragraphs. These included:

(i) Ongoing contact with the local mental health services to provide advice.

(ii) Advice and guidance regarding structuring her day.

(iii) Robust strategies for coping with negative emotional states without undue reliance upon J.

(iv) Grief work aimed at helping her to come to terms with the death of her mother before progressing on to -

(h) Developing a shared understanding of the precise nature of and psychological effects of her aversive childhood experiences.

(i) Therapy aimed at exploring the links between her past experiences and her current personality based deficits and deficiencies.

(j) Further exploratory work to ensure that psychologically distressing symptomatology such as intrusive imagery from her past dramatic experiences are fully resolved and are not likely to re-emerge and inhibit her ability to care for young children.

(k) Advice and instruction regarding the potentially deleterious effects that mental health symptoms of the nature that she has evinced over the years have on the mental well-being and functioning of young children.

[5] Sadly Dr Bownes recorded that the records show that G has on several occasions in the past been non-compliant of instructions regarding both her physical and mental well-being from both a responsible psychiatrist and her GP and she has been offered and declined therapeutic interventions aimed at addressing a range of difficulties.

[6] In evidence before me Dr Bownes developed a number of these matters. The following emerged from his examination-in-chief and cross-examination:

(a) Whilst she is a woman of average intelligence who was clinically stable when he last examined her, her progress depends very much on J's improvement. She is heavily reliant on him. If he suffered a major relapse, G would be in considerable difficulties. Illustrations of this in the past were that when she was in Gransha Hospital, G tried to harm herself and she became acutely distressed with a severe adverse reaction.

(b) Her track record is simply not good. Although in the past she has attended for therapy, she has a great number of non-attendances. Her ability to engage in the past has been poor and her track record is therefore not helpful in optimism for the future. For the work which is outlined to be successful, she would need to engage and work hard at things. It is a very full programme. Six months might give some indication if she is going to make any progress but Dr Bownes could not say that he was optimistic about the chance of success. The overall work would take a very long time indeed and it could be between 2 and 4 years before she was able to come to terms with her past. Laying to rest the psychiatric past could take a very long time indeed. As recently as August/November 2004, when she had been offered therapy she only attended 4 out of 12 sessions, albeit during that period her mother did die.

[7] Dr Bownes also had reported on J on 1 December 2004 together with an addendum of 7 December 2004. It was also pessimistic. From the reports the following matters emerged:

(a) J has evinced psychotic episodes over a number of years of a nature and severity to warrant significant periods of treatment with mood stabilising and anti-psychotic medication in both in-patient and out-patient settings and under the auspices of the Mental Health (Northern Ireland) Order 1986. The notes and records from Gransha Hospital in particular indicate that a drug/alcohol induced psychosis is the most probable diagnosis in his case. He has demonstrated a reliance upon mood altering substances – particularly alcohol and cannabis in the attempt to manage his feelings and cope with stressful and demanding situations. This all gives Dr Bownes considerable cause for concern.

(b) Consideration of the medical evidence in the case indicates that the relapsing and remitting pattern of mental health difficulties that J has evinced over the years has been characterised by acute relapse at times of general psychosocial stress or demand and sudden intense relapse at times when illicit mood altering substances are abused. He has also manifested a lack of insight to the deleterious nature of drugs and alcohol, failure to adhere to advices and guidance regarding taking medication or engaging with services, a transitory lifestyle and loss of contact with prospective social support.

(c) Whilst it was to be acknowledged that J was now in a quiescent phase of his previously documented mental health problems, and needed to be given credit for remaining compliant with his medication and links with Alcoholics Anonymous, nonetheless Dr Bownes did not consider that his presentation was indicative of a permanent amelioration of psychopathology to the extent that he could consistently and successfully assume the care of a young child, cope with the emotional rigours and demands of such an undertaking and prioritise the child's needs over his own in all circumstances for the immediate future.

(d) Although the risk of relapse to a state of mental health was reduced given his current compliance, Dr Bownes felt there remained considerable residual deficits and deficiencies within J's character which would be an impediment to his ability to care for his children and which could still induce a relapse to a state of significant mental ill-health. These factors included:

(i) His egocentricity, suspiciousness and "victim stance".

(ii) Limited ability to grasp concepts, critically appraise situations and information and take into account the needs of others as well as himself.

(c) The absence of skills to facilitate instruction and to take on board new, stimulating, social and educational opportunities for any children in his care.

(d) Lack of prior experience of parenting children.

(e) Limited conceptualisation of the changing physical, emotional and social needs of young children.

(f) Limited awareness of his own and his wife's positive and negative qualities and how these could assist or confine working as partners in the delivery of care to young children.

(h) Insufficiently robust and untested strategies for dealing with stressful and demanding situations.

[8] Dr Bownes concluded that these deficiencies would result in sub-optimal delivery of care to any child that J would have substantive responsibility for and could in themselves facilitate a relapse to the state of mental ill-health. It was Dr Bownes view that the considerable responsibility of child care would in all probability induce relapse in his case. In terms Dr Bownes found it difficult to cogently recommend a way forward in his case. Though he would benefit from therapeutic interventions which would assist maintenance of his current state of well-being, there could be no guarantee that in so doing his competency to parent in all circumstances would be greatly enhanced. Dr Bownes concluded that with or without therapeutic interventions J would require at least a further 12 months of a remitted state before the moderate to long term outlook could even be postulated. He concluded ominously "Clearly such a timescale is liable to outrun that which is acceptable in meeting the needs of his children".

[9] Dr Bownes also gave evidence before me about J. During the course of examination-in-chief and cross-examination the following matter has emerged in addition:

Dr Bownes thought it inappropriate that contact should currently be of a direct nature between J and the children. Before any direct contact could even be contemplated, he would need to be fully engaged with all services available to him. It was imperative that he take absolutely no alcohol or mood altering drugs which would befuddle his thinking. He agreed with Dr Hughes that random testing is absolutely necessary. He agreed with Dr Hughes (see reference to her evidence later in this judgment) that six months documented proof of abstinence would be necessary before one could even start and that would need corroboration from various independent sources such as AA, Addiction Unit etc. A period of three months could indicate things were going well but this would not arrest the personality based deficiencies that are still problematic. His current persecution views suggest that he is unlikely to consistently engage with appropriate services. Whilst he does have the capacity and ability to abstain, the notes and records over the past ten years indicate that the likelihood is poor. Dr Bownes felt there was only a 30/40% chance that he is going to be abstinent of drink and drugs for even one year. The prospects of success are therefore low. Dr Bownes felt any recovery could take a long time."

"[33] Dr Bownes' view is that G remains poorly equipped psychologically to cope with the vicissitudes of life, interpersonal relationship conflict resolution regarding her husband and meeting the physical and emotional needs of a young child such as T. I share that view entirely. In truth I accept that her prospective well-being is contingent upon the continued remission of her husband's mental health difficulties, avoidance of alcohol and his preparedness to support her unequivocally across a range of practical and emotional demands. She needs to become engaged in the work outlined by Dr Bownes, which will take a substantial period of time. She has on several occasions in the past been non-compliant with services which have been provided to her and declined therapeutic interventions. As recently as August/November 2004, when she had been offered therapy she only attended four out of twelve sessions. This simply does not augur well for the future. Dr Bownes was pessimistic about J's prospects for change. He also has a history of relapsing and remitting pattern of mental health difficulties over the years. He has manifested a lack of insight to the deleterious nature of drugs and alcohol and has failed to adhere to advices and guidance proffered by a plethora of services afforded to him. With or without therapeutic interventions, J would require at least a further twelve months of a remitted state before any realistic appraisal in the future could even be postulated. Mr Hinds indicated that it would be twelve months before one could be better able to say if he has continued to make progress, and thereafter further work could bring the whole process to between two and five years. It is common case from the evidence of the experts including Dr Ann Marie Hughes that his adherence to treatment has at best been ambivalent. As recently as December 2004 he was involved in a drunken incident in a public house. I agree with the guardian ad litem's conclusions that 'the longevity of his difficulties increases the degree of chronicity.'"

The Mother's Case

(i) That the mother was not unreasonably withholding her consent under Article 16 of the 1987 Order largely because since the care order was made on 15 March 2005 it was submitted that she had been afforded no further assessments by the applicant Trust despite the fact that she had made significant changes in her life. In particular it was asserted that the failure to afford the respondent mother any opportunities for assessment prevented her from demonstrating her ability to parent her son successfully.

(ii) Attention was drawn to the report from Dr Bownes which recommended educational and therapeutic work to be completed.

(iii) The Trust had failed to sufficiently keep abreast of the positive developments in her life.

(iv) It was asserted that if the court considered that an order for the freeing of the child for adoption was appropriate, then the respondent mother believed that due to the family placement of the child post adoption contact ought to be at least four times per year and not twice per year as asserted by the Trust.

The Father's Case

(i) The father was opposed to T being freed for adoption. It was his view that it was not in the child's best interests and that he was not withholding his consent unreasonably.

(ii) It was his view that long-term foster care would provide the current carers with more pro-active Trust supports than anything that might be provided to them by the Trust post adoption approach.

(iii) He emphasised that this was a family placement and that since the current carers live adjacent to his mother in one household and a married sibling in another, T was inevitably going to be aware that the respondents were his birth parents. He urged that a long-term view be taken and that the change of legal and familial status caused by adoption risked in the particular circumstances of the family placement, causing confusion and conflicting loyalties for T.

(iv) If the child was to be freed for adoption, since this was a family placement within the father's locality, it was unreal to confine direct contact to only twice per year. He asserted that as time went on T would inevitably see more of him and it was better therefore to have this organised as direct contact on a formal basis so that his primary carers were fully involved and could control the situation. He asserted that he was never any threat in reality to the placement and could be safely afforded greater direct contact.

(v) It was submitted on his behalf that his lifestyle had become much more placid and stable since the care order was made. Although he had an extensive criminal record, his last offence was on 9 April 2004, he had abstained from alcohol since the time of the care order and from drug misuse since July 2005, he regularly attended with AA and with Darren Askin of the alcohol and drugs Service. He denied there had been any incidents of domestic violence.

(vi) It was argued on his behalf that there was inordinate delay between the care order being made and the freeing application commencing one year later on 5 April 2006. He also asserted that this Trust had failed to make available to him in a timely fashion notes/minutes of the LAC Review of 18 January 2006, the same not having been made available until July 2006.

The Trust Case

(i) At the time of the granting of the care order, the care plan for T was permanency with a preferred option of adoption by his paternal aunt and uncle, the present carers. The view was taken that the child should be brought up together with his sister S who had been adopted by these carers.

(ii) Since the granting of the care order it was contended that J had made some little progress in his life but that these changes had been insufficient and were punctuated with a number of regressive and backward tendencies.

(iii) That this couple were still strongly connected in a relationship. G was unable to care for herself, let alone any child placed in her care. She would be unable to prioritise the child's needs above those of J. She was unable to deal appropriately with the stresses of life and continued to require professional assistance. There had been no evidence of sufficient change that would ameliorate the concerns expressed by the Trust and that would indicate that G was able to provide appropriate care for T with or separate from J.

(iv) It was asserted on behalf of the Trust that adoption offered the child the only chance of security and settled plans for the future.

The Guardian Ad Litem

Evidence

This witness was a social worker in the case. She had prepared a statement of facts for the hearing, had been involved in the care order proceedings and had updated her reports for the current proceedings. In the course of her reports, her examination-in-chief and her cross-examination the following matters emerged:

(i) She favoured adoption over long-term foster care for the following reason:

(a) adoption alone would provide the legal, physical and emotional security that this child required;

(b) only adoption would remove the significant intrusion of the Trust with monthly visits, twice yearly LAC reviews, the requirement for full Trust consent for school trips and sleepovers etc. These are matters which children find intrusive.

(ii) She found no demonstration of sufficient change in G's lifestyle since the care order was made in March 2005. She highlighted that the Trust had offered her opportunities to engage with help since that date but she had refused to do so. She highlighted that she had been invited to attend the local family centre to enable her to understand the needs and developments of the child, to enhance the contact with the child and to help her manage him. Two sessions had been offered and she had failed to avail of either. She drew my attention to a LAC review held at the Social Services office on 16 June 2005 which recorded:

"Ms Magill (family centre worker) reported that (G) was offered two appointments, however to date, has not availed of them. G stated that she could not attend due to sickness. The independent chairperson recommended that when G was ready to attend she should inform Ms McCarron social worker."

(a) On 3 February 2005 T was presented to the adoption panel;

(b) On 11 March 2005 the decision maker in the Trust concluded that an application should be made to free the child for adoption;

(c) On 15 March 2005 a care order was made;

(d) On 5 April 2006 an originating summons was issued on behalf of the Trust seeking to free the child for adoption.

The Trust acknowledged delay in this process on account of periods of sick leave, high work rate and change of personnel whilst at the same time emphasising that T was remaining in secure placement all the while.

Guardian Ad Litem

(i) The witness highlighted in her reports the previous concerns that existed about G's capacity to parent her daughter and her son T. These concerns had focused considerably on her relationship with J. The details of domestic violence which I had outlined in my previous judgment, abuse of alcohol and unpredictable behaviour of J featured strongly in her report. She reminded the court in her reports of G's pattern of minimising J's violence and drug and alcohol misuse, the risk that J presented to G with his history of violence, her prioritisation of J's needs over her own needs and S's in the past, her inability to objectively assess the risk that J's often predictable and potentially violent behaviour presented to children, her inability in the past to protect S from the risk of harm, her failure to cooperate with social services when she enabled J to have unauthorised contact with S and the impact upon the parenting of her children as a result of her own history of depression. The report also highlighted and reminded the court of J's history of alcohol and substance misuse (including cannabis, ecstasy, and speed), his mental health issues with drug induced psychosis and more recently a diagnosis of schizophrenia, his violent and aggressive behaviour and the domestic violence. This history highlighted in the guardian's mind the need to illustrate real evidence of change before rehabilitation could ever be considered.

"I do not consider that J's presentation at the current interview is indicative of a permanent amelioration of psychopathology to the extent that he could consistently and successfully assume the care of a young child, cope with the emotional rigours and demands of such an undertaking and prioritise the child's needs over his own in all the circumstances of the immediate future" and "the considerable responsibility of childcare would in all probability induce relapse in J's case."

(i) At one stage she had countenanced the possibility of the parents having contact 3/4 times per year. However she changed her mind and came round to the view that two times per year was sufficient once she had taken on board the views espoused by T's current carers and future prospective adopters. It was her views that G did present as a benign adult to T during contact but notwithstanding this the carers felt that T should have two formal contacts per year with G and that this was in line with the level of contact his sister S had with G. The carers' preferred option was influenced by the level of informal contact that was bound to occur in any event. G can visit her mother-in-law's home and see the children albeit briefly as regularly as once weekly in practice. In relation to J however the carers had expressed concern that at the beginning of the year J had begun to visit their home with, they believed, the intention of seeing T. The carers were not happy about this as they wish to keep their family home out of the arena where contact occurred and they saw his actions as a threat to their ability to provide a safe and harmonious home for T. It was the guardian's view that that as this was a family placement, and J does regularly visit the family, some form of formality would permit the carers to manage his attempts to see T in a more structured fashion. This was also the stated view of the carers. The guardian also emphasised that if contact was to work with J, he did need to engage in some work with the Trust so that he came to understand the purpose of contact in a post adoption situation. He had to come to appreciate that the purpose was not to foster a father/son relationship. If he refuses to cooperate with the Trust in this regard, then there is clearly going to be difficulty in continuing contact.

Conclusions

(i) The delay between the obtaining of the care order and the decision to apply for an order to free this child was far too long and quite unjustified. The reasons put forward – lack of staffing, change of personnel and illness – may all have played a part, but the welfare of children cannot be allowed to drift purely because of personnel problems. It is very important that this Trust examine its approach and the delay engendered in this case at the highest level so as to ensure that in the future children are not similarly subjected to such delay. In the event no prejudice accrued to this child but children must not be exposed to such a risk.

(ii) Notwithstanding the concerns that I had expressly outlined in my earlier judgment concerning the failure of this Trust to ensure that minutes of LAC meetings were expeditiously transferred to parents, and the assurances that I was given that a new system was now in operation, once again there was a failure to provide these parents with minutes of the LAC meeting of January 2006 until July 2006. This is particularly disappointing in light of the comments which I had made in 2004. Such matters are of great importance in the necessity to involve parents fully in the decision making process within a reasonable period. Once again this is a matter that should be drawn to the attention at the highest level in this Trust. Steps need to be taken to ensure that such unacceptable practices are not becoming endemic in this Trust.

(iii) Social workers within this Trust need to be reminded that care orders should be regarded wherever possible as temporary matters and that rehabilitation of children with parents should be the aim wherever possible. To that end express reference should be made to this concept at each LAC review and notes properly made of this. Whilst I am satisfied from the evidence of Ms McCarron that this Trust had carefully considered rehabilitation after the care order, the notes and minutes were inadequate in recording this.

(i) The first matter in the chronological sequence of this case is the application by J under Article 53 of the 1995 Order to increase contact with T. I reject that application because I do not consider increased contact would be conducive to the welfare of this child set in the context of his current position with his carers. These carers need a firm measure of control over J's visits to T given the family placement and an increase in contact would erode that control to the detriment of T. I remain unpersuaded that J recognises the proper role of contact in the life of this boy Moreover for the reasons I shall subsequently set out in this judgment it would be inappropriate for T's future care arrangements. In considering this issue I have taken into account J's rights to a family life under the European Convention but in balancing them against the boy's rights to a family life I have determined no increase is merited.

(ii) I commence my deliberations on the Trust application by recognising the strength of the jurisprudence in the European Court of Human Rights ("ECHR") to the effect that it is a guiding principle that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permitted and its implementation should be consistent with the ultimate aim of reuniting parent and child. The minimum to be expected from the authorities in relation to parental rights of access is an examination of the family situation anew from time to time to see whether there had been any improvement. (See R v Finland (Application No 34141/96).

"69. Both the judge and the Court of Appeal cited the relevant statements giving guidance to courts in deciding the very difficult and anxious question whether a parent is unreasonably withholding agreement to the adoption of a child. The starting point is the speech of Lord Hailsham of St Marylebone LC in In re W (An Infant) [1971] AC 682, in which he dispelled the then prevalent idea that there had necessarily to be an element more than unreasonableness. He stated categorically, at p 699:

'…. the test is reasonableness and not anything else. It is not culpability. It is not indifference. It is not failure to discharge parental duties. It is reasonableness, and reasonableness in the context of the totality of the circumstances. But, although welfare per se is not the test, the fact that a reasonable parent does pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor. It is relevant in all cases if and to the extent that a reasonable parent would take it into account. It is decisive in those cases where a reasonable parent must so regard it.'

The mere fact that the proposed adoption would conduce to the welfare of the child is not of itself sufficient to establish unreasonableness on the part of the parent. Nevertheless, as Lord Denning MR said in In re L (An Infant) (1962) 106 SJ 611:

'A reasonable mother surely gives great weight to what is better for the child. Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent. We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case.'

There may be an amalgam of factors, possibly conflicting, which will vary from case to case and cannot profitably be placed in prescribed categories. In In re D (An Infant) (Adoption: Parent's Consent) [1977] AC 602, 625 Lord Wilberforce said, in the context of a father's withholding agreement to his child's adoption by the mother and stepfather:

'What, in my understanding, is required is for the court to ask whether the decision, actually made by the father in his individual circumstances, is, by an objective standard, reasonable or unreasonable. This involves considering how a father in the circumstances of the actual father, but (hypothetically) endowed with a mind and temperament capable of making reasonable decisions, would approach a complex question involving a judgment as to the present and as to the future and the probable impact of these upon a child.'

70. The difficulty facing a court is obvious: it has to apply an objective standard of reasonableness, looking at the circumstances of the actual parent, but supposing this person to be endowed with a mind and temperament capable of making reasonable decisions. It was this difficulty which moved Steyn and Hoffmann LJJ to say, in their joint judgment in In re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR 260, 272:

'… making the freeing order, the judge had to decide that the mother was 'withholding her agreement unreasonably'. This question had to be answered according to an objective standard. In other words, it required the judge to assume that the mother was not, as she in fact was, a person of limited intelligence and inadequate grasp of the emotional and other needs of a lively little girl of 4. Instead she had to be assumed to be a woman with a full perception of her own deficiencies and an ability to evaluate dispassionately the evidence and opinion of the experts. She was also to be endowed with the intelligence and altruism needed to appreciate, if such were the case, that her child's welfare would be so much better served by adoption that her own maternal feelings should take second place.'

Such a paragon does not of course exist: she shares with the 'reasonable man' the quality of being, as Lord Radcliffe once said, an 'anthropomorphic conception of justice'. The law conjures the imaginary parent into existence to give expression to what it considers that justice requires as between the welfare of the child as perceived by the judge on the one hand and the legitimate views and interests of the natural parents on the other. The characteristics of the notional reasonable parent have been expounded on many occasions: see for example Lord Wilberforce in In re D (Adoption: Parent's Consent) [1977] AC 602, 625 ('endowed with a mind and temperament capable of making reasonable decisions'). The views of such a parent will not necessarily coincide with the judge's views as to what the child's welfare requires. As Lord Hailsham of St Marylebone LC said in In re W (An Infant) [1971] AC 682, 700:

'Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable.'

Furthermore, although the reasonable parent will give great weight to the welfare of the child, there are other interests of herself and her family which she may legitimately take into account. All this is well settled by authority. Nevertheless, for those who feel some embarrassment at having to consult the views of so improbable a legal fiction, we venture to observe that precisely the same question may be raised in a demythologised form 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 or parents. The reasonable parent is only a piece of machinery invented to provide the answer to this question."

In adopting that approach I recognise that the reasonableness of the parents' refusal to consent must be judged at the time of hearing and I am doing that. I have taken into account all the circumstances of the case. I have recognised that whilst the welfare of the child must be taken into account it is not the sole or necessarily paramount criterion. I have applied an objective test in the case of these parents. I have recognised that the test is reasonableness and nothing else. I have been wary not to substitute my own view for that of the reasonable parent. I recognise that there is a band of reasonable decisions each of which may be reasonable in any given case.

(1) It is my view that a reasonable parent would recognise that a child cannot wait indefinitely for parents to change. This child has been in the care of the prospective adopters since he was a few weeks old and time alone now demands that certainty be brought into his life. In my view a reasonable parent would recognise that too long has now lapsed for this child to wait any longer for them to bring about a change which has been so sadly lacking to date.

(2) The failure of either or both of these parents to sufficiently address their historical problems prevents them being in a position to provide a safe environment for this child. I am satisfied that the guardian ad litem is correct in opining that G elevates her relationship with J to a stage where she is unable to give that priority over the needs of T. I agree with the view of the guardian ad litem that her interdependence upon J prevents her being objective about the risks he presents and prevents her from prioritising the needs of T or any of her children above her need for an ongoing relationship with J. Her own emotional fragility and mental health issues when coupled with that dependence on J make her unable to provide a safe consistent caring home for T. I believe that a reasonable parent in her position would recognise this and would not withhold agreement to the child being freed for adoption. Similarly I consider that J has not yet sufficiently addressed his past history of alcohol and substance misuse, or his violent and aggressive behaviour which culminated in acts of domestic violence. Both J and G need to take the steps outlined by Dr Bownes and they have not yet adequately commenced that process of repair. Neither of them in view show a sufficient inclination to even begin the process much less have completed any material in-roads into it. The efforts made by J have been patchy and inconsistent. I believe that a parent in his position would recognise and would not withhold agreement to this child being freed for adoption.