High Court of Justice in Northern Ireland Family Division Decisions

Care orders were made in respect of J and C at Ballymena Family Proceedings Court under Article 50 of the Children (Northern Ireland) Order 1995 on 26 April 2004. The Trust applied for the care orders.

The application is brought under Article 18 of the Adoption (NI) Order 1987. The court has to be satisfied in the case of each parent of the child that his or her agreement to the making of an adoption order should be dispensed with on a ground specified in Article 16(2). The relevant ground in this application is that the parent is withholding agreement unreasonably. Ms JB, a field worker with Antrim Social Services, gave evidence to the court. She relied on and adopted her report and notes of interviews. Ms H, adoption support manager of the Trust also gave evidence. The report of Professor Tresiliotis was agreed. T and the mother of D, her partner, gave evidence for the respondent. Where their evidence differed from the evidence of T or the mother of D, I preferred the evidence of Ms JB and Ms H.

Background

A. Scotland until July 2002

On 18 December 2001 a professional planning meeting was held. The health visitor suggested that there might be attachment issues in relation to C. It was noted that T held C at a distance and while she could be affectionate towards J, had not been observed to be affectionate towards C. T herself said that she had no bond with C, it is recorded. In January 2002 a risk assessment was to be carried out but T moved with J and C into an area under the control of another group of social workers.

The following areas of concern were recorded:

T's parenting capacity and the level of her positive parenting of J and C resulted in them being unable to experience a secure, stable and responsive relationship with her. There was little evidence of routine, boundaries or guidance to assist the children to regulate their own emotions and behaviour. There was little regard for safety in the home and no recognition of hazardous objects for the children. T would not engage sufficiently to assess this or identify appropriate supports, although it was recognised that she might be suffering from experience of loss and trauma from her past.

It was noted that in February 2002 J had 4 or 5 nail marks on her forehead and upper neck, a burn mark on her right hand and a bite mark on her right arm and C had 3 nail marks on her eyebrows. The health visitor called on 27 February 2002 at T's home at 1.15pm, found J in the hall, C on the sofa and T in bed. Both children were said to be wearing their pyjamas and having dirty nappies. On 13 March 2002 the health visitor found T in her nightwear at 1.15pm. The house was described as chaotic and very dirty. On 5 May 2002 the health visitor noted a bottle of vodka ice and a bottle of vodka by a chair and 5 ashtrays.

Her mental health, that is to say, her depression was a problem in her life in Scotland and has remained a problem.

B. Northern Ireland until April 2003

Social workers highlighted concerns regarding hygiene and safety within the home. T reported threats of intimidation from the local community accusing her of prostitution. These allegations were also made anonymously in Scotland. Shots from an airgun were fired at her home on 28 October 2002.

On 29 October she and the children moved to Mill House Hostel, Ballymena because of the intimidation. The Trust received reports from staff at the hostel regarding T's care of the children. The staff reported that they had to constantly remind T to feed J and C regularly and not to leave them unattended. It was claimed that she had to be wakened while the children were in the room. On 8 November 2002 staff contacted the Trust's Out of Hours Service. They stated that T had gone to a party with another resident to Ballymoney and failed to make adequate arrangements for the children to be cared for. Allegations were made by residents of the hostel akin to the anonymous allegations made in Scotland. On 12 November 2002 the Trust applied for ex parte Emergency Protection Orders in respect of J and C as T had left Scotland at a similar stage. The grounds were that J and C needed an immediate improvement in care.

She said in evidence that she thought she had not done a bad job, bringing up her children in the hostel to which she had been forced to go through intimidation. She explained to the court in some detail the incident when she left the children in the hostel and went out for the evening. She said that she did not get on very well with other residents of the hostel. One of them threatened her quite a lot. She stated in her affidavit that she found the allegations made by residents of the hostel hurtful and malicious. These were similar to the allegations made in Scotland, namely that she was a prostitute. She said in evidence that she was disgusted by them and was disgusted by the life led by prostitutes. I cannot rely on her evidence. But I am not prepared to take these allegations about her personal life into account.

From 14 May 2003 until the Care Hearing on 26 April 2004

The Care Hearing on 26 April 2004

On the basis of her lack of cooperation with the assessment, the Trust decided that it was not in C's best interest to be returned to her birth mother. An assessment was made of family members, namely, T's sister and brother-in-law. The Registration Panel in Scotland decided that this couple could not provide care for J and C.

Both the Trust and Social Services in Scotland were seeking placements for the children with a view to commencing proceedings for the children to be freed for adoption. C's needs were currently being met by a short-term foster carer.

There had been no physical contact between T and C from 8 April 2003 until 28 August 2003. Tickets which were sent by recorded delivery to T to attend the LAC Review on 14 May 2003 were not used and she declined to attend on 3 July 2003. When she left Northern Ireland on 9 April 2003 she said that she would return on a weekly basis to see the children but she did not do so. She did not see C again until 23 March 2004 although she was offered the opportunity to see her. When she did see her she behaved in such a way that Ms JB decided direct contact was not in C's interests. Ms JB's record of her behaviour justified that decision. Her decision not to travel over to see C (or J) was not caused by financial problems. The Trust made available financial assistance for travel and accommodation.

C needed to have regular contact with her half-sister, J, to promote their relationship. An adoption placement separate from her half-sister would meet her needs and monthly face to face contact would be arranged.

T's views were constantly sought by social workers, it was stated. She maintained that she believed that she had been providing adequate care and protection to the children and was not prepared to agree with the Trust's plan. C had been in her current placement with her sister J since October 2003 and it was hoped that she would remain there until foster carers approved as potential adoptive carers had been secured. There were no plans for reunification with T as she had not shown any commitment to a process to assess her capacity to change and provide better parenting. T would be informed of all decisions and recommendations made in respect of C and invited to play a role in all LAC Reviews, it was recorded.

Much of the background material in his report can be found earlier in this judgment. But, in addition, he referred to the fact that when they were first taken into care, they were separated because of J's highly challenging and demanding behaviour which required very individualised care. C, though appearing equally needy, presented herself as placid, very passive and undemanding. After a number of moves resulting from J's disturbing behaviour, J and C were now with short-term foster carers.

He met with the various foster-carers and the social workers and visited J and C. He commented that J's intense rivalry with C dominated the session. In his view the placement together appeared to be very largely at the expense of C.

He concluded that these were two very needy children who had a very neglectful and emotionally abusive early life. As a result they had failed to develop secure attachments to a parental figure. C appeared to have experienced an even worse quality of care from her mother than J. He recommended the splitting of the two siblings. At her age there should be no difficulty in identifying a suitable family for C.

Long-term foster care was too unpredictable and did not provide the legality, the full physical and emotional security, and the sense of belonging that go with adoption. To deprive J and C of the benefits that go with adoption would be neglectful. Generous contact would have to be allowed between the siblings until such time as they were able to express their own wishes about frequency and duration.

T said she was still on anti-depressants having taken them from the age of 11, and had recently been prescribed Valium as her nerves had been bad. There had been bother with the police as a neighbour was a violent alcoholic and was always trying to start fights with her or D. T said that she had produced a sword to this person about two months previously and was being charged with possession of an offensive weapon. She gave the name of her solicitor and gave permission to speak to local police. Between the age of 12-16 D had been involved in vandalism. He had worked for a year as a tray- washer for Asda.

T visits her mother and father once a fortnight. She goes for walks with her pup for a couple of hours during the day, goes to bingo once a month and visits D's parents once every 3-4 weeks for a drink. T and D drink sparingly and do not take any drugs other than those prescribed (for T).

Ms JB and the senior social worker had asked to see T in her home surroundings but she refused. She said that she was applying for a transfer. She said that her life was more active now. She and D shared the housework. They did have rows but there had never been violence. T said that her medication made her feel drowsy and she would sleep in the mornings. They said they were planning to get married on 2 December.

They were given information about J and C. T was advised of difficulties with J. She said that Social Services held responsibility for this and that J would be fine if she came back to her. She said that she would like to have more contact.

She was asked what was her understanding as to why the children were taken into care. She said that she did not understand what happened. She had been suicidal and had manic depression at the time and did not remember much about what happened. She said that all the residents of the hostel turned against her when the children were taken into care.

She informed Ms JB that in her teenage years she had self-harmed by cutting, burning herself and pulling out her hair and eyelashes. The last time she had done this was about a year previously. She was not close to either of her parents whom she saw about once a fortnight. She said that she had an A level and was a fully qualified caterer. She feels in much better heart now.

The evidence of Ms JB

T had not the capacity to meet C's needs and little capacity to change. A move from her current placement would have a devastating effect on C who had little, if any, knowledge of her birth mother. When she had had face to face contact with J and C she struggled, because J demanded attention and T did not show commitment to contact.

She was not aware of any reason why T should not have travelled from Scotland for contact meetings up to April 2004. In February 2004 she gave as a reason that she was having work done on her house. In March 2004 she supervised contact between T and the children. On arrival at the Family Centre T said: "No social service building is nice with youse in it." T asked the children to tell the social worker that they wanted to come with her, that the social worker was a bad man and would not let them live with her and repeated this several times. She kept saying that social workers were bad people (in front of the children). This part of her evidence was given by referring to a report of 23 March 2004.

The Trust had provided T with photographs of the children and she was told of their well-being during visits to her and in telephone calls on several occasions throughout the year 2004-2005. Ms JB would be concerned in case T said something to C which undermined C.

Before meeting C's father the Trust had been unable to obtain his address from T because she said that he had asked her not to give it. An advertisement was placed in the town where he lived and as a result of a telephone call she and the senior social worker met with him. They had his daughter's address (by another woman) but he did not contact them so as to have annual contact with the Trust about C.

In cross-examination on behalf of the guardian ad litem she said that the Family Proceedings Court had held that the threshold criteria were met. A care plan was devised (and approved by the Court). Placement with dual-approved carers was secured. That couple hope to adopt C but will care for her in any event.

As to the delay in 2004 and 2005 recommendation for adoption of C was made by the Adoption Panel in June 2004: see LAC Reviews of 28 August 2003, 18 November 2003, 3 March 2004 (when the Adoption Panel was approached). The decision-maker for the Trust wrote to T telling her of the decision. Between July 2004-January 2005 a Statement of Facts was drawn up, preparation for the application was made in the light of judgments from the courts and to ensure that the human rights of mother and child were respected.

Explicit reference was not made to Article 8 of the Convention as would be the case now. But reference was made to T's human rights explicitly in the LAC Review of 10 May 2005.

After contact had been refused by order of the court in April 2004 T did not apply for contact. At one stage she indicated that she would seek a discharge of the care order but she did not do so.

In cross-examination on behalf of T Ms BS said that a decision to apply for a freeing order was taken on 17 August 2004. Proceedings were drafted in December. The Statement of Facts was agreed and signed in January 2005. The decision in AR v Homefirst Community Trust was published in February 2005. But for awaiting the decision in the case of AR proceedings would have been issued in January 2005. Proceedings were issued in September. The Trust was not relying on the argument that C's attachment to her carers in the period of "delay" was a ground for granting a freeing order. T was not able to provide suitable care for her children.

Delay had occurred as child care staff had been awaiting a letter from the Adoption Panel decision-maker so as to deliver it to T. The Trust had previously visited T in an attempt to explore her circumstances and had done so on several occasions in 2005. Mr Breslin wrote to T on 18 July 2005. The only indication of any change in the circumstances of T was that she had been in a relationship for a year. That was reported in a positive way. Her relationship with her parents was not problem free. Her father had been an alcoholic when younger and her mother could not care for her. She had a very negative relationship with her brother-in-law. She was on ongoing medication for depression. The Trust did not think that she could cope. Opportunities had been offered to her which she did not take. She had a transient lifestyle before meeting D. D's family was an unknown factor. Information about her health was sought and obtained from her GP. T complained of harrassment of social services.

Ms J B accepted that before T left Scotland for Northern Ireland the health visitor had accepted that at one stage J was "thriving" in T's care, that marks seen on the children in Scotland were not pursued, that T claimed that the children were well-cared for in Antrim. She was in denial about concerns which the Trust had about hygiene and safety. Alcohol use was not a difficulty in Northern Ireland.

After the removal of her children on 12 November 2002 contact records as between T and them were relatively good. In April 2003 she was intimidated out of her home in Antrim and went to Mill House Hostel. She advised the Trust that she wished to get married. She later said that she was forced into that situation. Had Ms J B learnt that T was looking after her sister's child in Scotland in 2005 she would have been forced to inform Scottish social workers, given the concerns about the care of her own children.

In August 2003 T was advised to link up with social services in Scotland. She was abusive to a social worker in Scotland as was her father and was barred from social services offices. The Trust had ruled out rehabilitation for T with J and C by July 2003 and considered adoption as the best plan. After it was decided that face to face contact would stop, she was offered telephone contact weekly. She did not do so weekly but she did make telephone contact.

The Trust asked Ms H to make available adoption counselling for T. Scottish Social Services have had staffing problems and their adoption services are not as developed as in Northern Ireland. She accepted that their contact with T was recent.

The carers of C have a new child, she stated, but C has more than enough attention. Extended family members and the carers' family have helped. There is no advantage to C to be in long term foster care. There is no advantage to have direct contact with T at this stage. Work will be undertaken to bring C to love and understand her mother. T has had a hard life but she has not made enough change to warrant investigation as a carer.

The evidence of Ms H

Ms H, the Adoption Support Manager, gave evidence adopting her report of September 2005. She spoke to T in Scotland on 11 March 2005 and again on 28 June 2005. T told her that the Trust had stolen her children from her, that there have never been concerns in Scotland about her care of the children. There was no acceptance by her that she was in any way responsible for the fact that they were taken into care. She was very negative about their foster placements, did not want strangers being called "daddy" or "mummy" by the children. The children had been brainwashed. She did not wish to meet their carers.

Mrs H was of the opinion that fact to face contact would not be constructive. One needs to have the mother's permission to attach to carers so that they have a sense of belonging and security. T is unable to give that permission.

It was of concern that despite the period of time since J and C lived with T, she appeared to have been unable to make any progress, either in acknowledging the serious concerns of the Trust regarding her children's' safety and her inability to protect them or in accepting her changed role.

She indicated her willingness to engage in independent adoption counselling and Ms H wrote to Social Services in Scotland. T had been in touch with them.

Mrs H did not believe that C would benefit in any way from the re-introduction of direct contact with T. It would seriously risk undermining the security of C's placement. The child's need for information about her mother could be met through a carefully monitored annual letterbox arrangement. Such an arrangement would protect C from unsuitable correspondence and provide support for T in preparing letters and other correspondence. One of the team members monitors and co-ordinates support services of this kind and there would be a counselling service for T locally as well.

The carers of C had not had an opportunity of meeting T and are open to the possibility of meeting and supportive of contact. They have photographs of T. She might be helped by a brief video recording of J and C.

She was cross-examined by Mr Long QC. Professor Tresiliotis had undertaken a review of his research. His views were the current views about adoption as opposed to long-term foster care. T did not see the importance of giving permission to the child to do well with carers. A lot of parents can put their child in front of themselves, others are resentful and hostile. There was potential for T to change her views about this. It had taken time for the support services in Scotland to play their part. A review of contact would be made. The potential for contact would always exist. As time passes and C understands her position, if all parties see it as in C's interests, they will be ready for direct contact.

In answer to Ms Walsh, for the respondent, she explained the set up as between the Trust and the Scottish social services in relation to adoption counselling. The delay in Scotland had been caused by the fact that they had not had an experienced social worker to work with T. The case had now been allocated to CW.

As for contact, J had become familiar with getting cards from T at Christmas and on her birthday. Contact by card with C was annual and the Trust preferred that this should not be at Christmas or on her birthday. Presents could be undermining if excessive. Much depends on how T accepts counselling. C's progress has been quite marked since she was separated from J. J has not progressed. She is a traumatised child and in need of individual therapy. If she makes progress the Trust's plan would be adoption for her. J was very attention seeking. The problems as between J and C were that J controlled C who allowed J to take over.

C lived with her mother for a very short time. Ms H would be fearful that C would be distressed by direct contact. They would be establishing direct contact from scratch, instead of indirect contact first of all. She did not think it would be of benefit to C at this time. It would be confusing. Her assessment was based on C, the carers and T. Life-story work, T's attitude, progress of time might lead to beneficial contact. It would be a benefit for C's carers to meet T. Preparatory work would be needed but it would be a positive step. T needed to understand the contribution which the carers were making. The carers would be able to talk to C about her mother.

The evidence of T

She agreed to have adoption counselling but social services in Scotland did not provide it. She thought that there was no need to go to LAC Reviews when she had no contact with her children. She was referring to the period after the Family Court Order of 26 April 2004. She came to an arrangement with social workers to bring to Scotland or post to her copies of the LAC reviews.

The children do not belong to strangers, she said. The situation has changed. She has a long term relationship with a man which has lasted for two years. She gets a lot of support from his family. Her health is not too bad at the moment. She feels that she could cope with her children. She would undergo an assessment if it was carried out in Scotland. She said that the children should not have been split up or adopted. If C stayed in NI she would want direct contact with her. It would put her mind at ease if she met C's carers. Indirect contact once a year was not right.

In cross-examination on behalf of the Trust she said that she has no objection to an assessment now. She had suffered from manic depression which is now under control through medication. She is dyslexic. She has been living in the same house since 2004. It is not in a very nice area. A lot of repairs are needed to be done to her house. The Council are getting on to them now. She had been unwilling to have social workers at the house because she was uptight about repairs. She needs new ceilings, a new bathroom, new floorboards. The house is not really fit to live in. She is waiting for the Council to move her. She does not feel safe in her home. She was referred to paragraph 15 of her affidavit of 2 November 2005 in which she stated that she had a suitable home which she maintained in good condition. It was put to her that this was completely at variance with her evidence. She then walked out of court, saying something that I did not hear. I accepted and accept that she was ill. But she was also caught out by her contradictory statements. She returned to resume her evidence ten days later.

The reason for not marrying in December 2005 was financial, she said. There was an age difference of six years between her and D. He is currently 'on the sick'. He last had a job in June 2004. He suffers from clots in the stomach, constantly has to use the toilet. It was his option to fill in the form about police checks. He did not feel it right to disclose information to people whom he did not know. She explained to him that it was for C. She answered questions about his criminal record and her own. She said that D bottles things up, as she does and then explodes. The past is the past, she said. Neither of them works. She walks her two dogs. Every second Monday she goes to do her parents' shopping. She has not had a drink for four months because of the anti-depressant medicine. She plays dominoes at week-ends, visits D's parents every three to four weeks. She was referred to the affidavit of D's mother who had stated that she was willing to baby sit seven days a week.

She said that his mother has good days and bad days with arthritis. D's mother would have her as much as she could. She said she knew how to handle her sister's child who has ADH and stays with her once a month. She dismissed social worker involvement. She repeated that she did not believe the social workers' concerns about her treatment of her children.

C was always clean. Her nappy was taken off and a clean nappy put on. She said she wanted the name of the person who said that she shouted at J and threatened to give her away "to a bad man" as he was "getting done for slander". J's behavioural problems arose because she was being moved "from pillar to post". She told counsel that the Trust was destroying her children. She did not think that there was anything wrong with the card she sent to C at Christmas 2003. No one had ever offered to allow her to meet C's carers. When it was put to her that she had stated that she did not want to meet them, she said the opposite was the truth.

She referred to Manchester and said that she could not afford to return to Northern Ireland at that time. She told counsel not to repeat questions that she had answered and shortly afterwards left court but returned.

In answer to counsel for the guardian ad litem she said that she could not remember giving evidence at the care proceedings. Then she said a lady barrister cross-examined her and she walked out. She pointed to Mr Long's junior counsel. It was her belief that social services were brain-washing C. Everybody had misjudged herself. "If someone needs help, I help them." Social workers were nosy, back stabbers, saying one thing and doing another.

She referred to the social worker in Scotland to which she went after being in Manchester.

They did not like each other, she said. She said that she has got herself a house, a partner, a family, goes for walks, looks after her niece, is always doing something, tries to keep herself amused. She said that she did not know that she could make an application to the court about the care order or the No Contact Order. She could not think of any reason why she could not look after her children.

She said that she had agreed to adoption counselling so that it could be explained to her what happened on adoption and to give her help. She had got a letter the day before she gave evidence (on 3 March) to see a lady on the following Wednesday. Both children should be returned to her. She had a three bed roomed apartment flat. She would be willing to engage in an assessment as would her partner.

She was given an opportunity by the court to provide independent evidence of her assertion that she had an A level and was a fully qualified caterer. She failed to do so and her explanations for her inability to do so were feeble. I did not believe this evidence.

The evidence of D's mother

In cross-examination on behalf of the Trust she said that she had arthritis of the spine and all her joints but it did not affect her in looking after her granddaughter.

She referred to D as nervous, suffering from colitis, losing quite a bit of weight. She heard T say that he was offered [the opportunity] to come over for the case. He would not leave his home town to go to Glasgow. When he and T are at cross-purposes he can get upset. He shouts. It is frustration. He does not know what is going on. Their marriage works quite well. They have problems with neighbours.

In answer to counsel for the guardian ad litem, she said that D wants a family, knows that T cannot [have children]. She thought that he would have difficulty in answering questions [in court].

The evidence of the guardian ad litem

He was referred by counsel for the Trust to a letter from SMcI to her advising her of the outcome of the care proceedings and suggesting that she should consult her solicitor if she had any query and to para. 2.7 of his own report of 27 January 2005.

He accepted Ms Walsh's suggestion that there may be a change in her lifestyle and that this is a positive development. She suggested to him that there had been a flurry of activity by social workers in the summer of 2005. He said that he had attended LAC Reviews and tried to get her views. She could have done more with Scottish Social Services. He agreed that when the case was transferred to Northern Ireland the Scots distanced themselves from it. Adoption counselling could have been quicker.

There was a difference between the two children, J and C. J had serious behavioural problems with tantrums and aggressive behaviour. These could be a combination of heredity, of moves between carers and the number of carers she had had. He questioned whether a reasonable parent would not challenge a care order or a No Contact Order. He thought T should have placed herself in Northern Ireland, placed herself as available for assessment and shown by her actions that she was willing to work with professionals.

Time was running out for C. Further delay and uncertainty for her were detrimental.

Written Submissions

A. On behalf of the Trust

Reference was made to Article 9 of the 1987 Order and to the Trust's Statement of Facts, (paras 81-84) for a summary of why the Trust says that adoption is in C's best interest. Reliance was placed on a passage in Professor Tresiliotis' report about his preferred solution for C's welfare.

As to whether T was unreasonably withholding her agreement to adoption, Re W [1971] AC 82 was cited and the well known passage in Lord Hailsham's judgment as to the appropriate test was set out. Lord Wilberforce expressed the test in a helpful passage in Re D (An infant) [1977] 1 All ER 145 which was also set out.

It was submitted that the court should ask itself whether T, in her individual circumstances, was by an objective standard, being reasonable or unreasonable in withholding her agreement to the adoption.

(1) The 1987 Order provides, inter alia:

"3.—(1)  Every Board shall establish and maintain within its area a service designed to meet the needs, in relation to adoption, of—

(a) children who have been or may be adopted;

(b) parents and guardians of such children; and

(c) persons who have adopted or may adopt a child,

and for that purpose shall provide the requisite facilities, or secure that they are provided by registered adoption societies.

(2)  The facilities to be provided as part of the service maintained under paragraph (1) include—

(a) temporary board and lodging where needed by pregnant women, mothers or children;

(b) arrangements for assessing children and prospective adopters, and placing children for adoption;

(c) counselling for persons with problems relating to adoption.

(3)  The service maintained by Boards under paragraph (1) may be collectively referred to as "the Adoption Service", and a Board or a registered adoption society may be referred to as an adoption agency.

9.    In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall—

(a) have regard to all the circumstances, full consideration being given to—

(i) the need to be satisfied that adoption, or adoption by a particular person or persons, will be in the best interests of the child; and

(ii) the need to safeguard and promote the welfare of the child throughout his childhood; and

(iii) the importance of providing the child with a stable and harmonious home; and

(b) so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.

16.—(1)  An adoption order shall not be made unless—

(a) the child is free for adoption by virtue of an order made in Northern Ireland under Article 17(1) or 18(1), made in England and Wales under section 18 of the Adoption Act 1976 (freeing children for adoption in England and Wales) or made in Scotland under section 18 of the Adoption (Scotland) Act 1978 (freeing children for adoption in Scotland); or

(b) in the case of each parent or guardian of the child the court is satisfied that—

(i) he freely, and with full understanding of what is involved, agrees—

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

(ab) either unconditionally or subject only to a condition with respect to the religious persuasion in which the child is to be brought up, to the making of an adoption order; or

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

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

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

(b) is withholding his agreement unreasonably;

(c) has persistently failed without reasonable cause to discharge the parental duties in relation to the child;

(d) has abandoned or neglected the child;

(e) has persistently ill-treated the child;

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

17.-(5)  Before making an order under paragraph (1), the court shall satisfy itself, in relation to each parent or guardian of the child who can be found, that he has been given an opportunity of making, if he so wishes, a declaration that he prefers not to be involved in future questions concerning the adoption of the child; and any such declaration shall be recorded by the court.

18.—(1)  Where, on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an adoption order should be dispensed with on a ground specified in Article 16(2) the court shall make an order declaring the child free for adoption.

(2)  No application shall be made under paragraph (1) unless—

(a) the child is in the care of the adoption agency; and

(b) the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption.

(3)  Paragraphs (3), (5) and (6) of Article 17 shall apply to an order made by a court under paragraph (1) as they apply to an order made by a court under Article 17(1)."

These proceedings are being disposed of in chambers in accordance with Article 66(1). A guardian ad litem has been appointed to safeguard the interests of C in accordance with Article 67.

(2) The 1995 Order provides in Part II:-

"3.—(1)  Where a court determines any question with respect to—

(a) the upbringing of a child; or

(b) the administration of a child's property or the application of any income arising from it,

the child's welfare shall be the court's paramount consideration.

(2)  In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3)  In the circumstances mentioned in paragraph (4), a court shall have regard in particular to—

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable of meeting his needs is each of his parents and any other person in relation to whom the court considers the question to be relevant;

(g) the range of powers available to the court under this Order in the proceedings in question.

(4)  The circumstances are that—

(a) the court is considering whether to make, vary or discharge an Article 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or

(b) the court is considering whether to make, vary or discharge an order under Part V.

(5)  Where a court is considering whether or not to make one or more orders under this Order with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

5.—(1)  Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.

(2)  Where a child's father and mother were not married to each other at the time of his birth—

(a) the mother shall have parental responsibility for the child;

(b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Order.

7.—(1)  Where a child's father and mother were not married to each other at the time of his birth—

(a) the court may, on the application of the father, order that he shall have parental responsibility for the child …"

In Part 3 the court is given the power to make a contact order in any family proceedings in which a question arises with respect to the welfare of a child: see Article 10(1)(b).

Care orders are governed by Part V of the 1995 Order which provides:

"50.—(1)  On the application of any authority or authorised person, the court may make an order—

(a) placing the child with respect to whom the application is made in the care of a designated authority; or

(b) putting him under the supervision of a designated authority.

(2)  A court may only make a care or a supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control.

(3)  Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. 

53.—(1)  Where a child is in the care of an authority, the authority shall (subject to the provisions of this Article) allow the child reasonable contact with—

(a) his parents;

(4)  On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in sub-paragraphs (a) to (d) of paragraph (1) and named in the order.

(9)  The court may vary or discharge any order made under this Article on the application of the authority, the child concerned or the person named in the order.

(11)  Before making a care order with respect to any child the court shall—

(a) consider the arrangements which the authority has made, or proposes to make, for affording any person contact with a child to whom this Article applies; and

(b) invite the parties to the proceedings to comment on those arrangements."

Article 58 provides for the discharge of a care order on the application of any person who has parental responsibility for the child and for an appeal against any decision of the court. Emergency protection orders are made under Article 63 of the 1995 Order.

Article 166 provides for an appeal from a care order made by a Family Proceedings Court.

(3) The Human Rights Act 1998 provides by section 1 and Schedule 1 incorporation of Articles of the European Convention on Human Rights including:-

"In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …"

"1. Everyone has the right to respect for his private and family life …

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Section 2(1) provides for the taking into account of any judgment of the European Court of Human Rights.

Some of the relevant facts arising from the statutory framework are:

She set up home in Antrim and social workers there became concerned about hygiene and safety levels in the home. She was intimidated and harrassed by local people who called her "prostitute" and "whore." She moved to a hostel in Ballymena. Staff at the hostel reported that they had to constantly remind T to feed the children regularly, not to have them unattended and to waken here while the children were awake in the room. There were also reports that she appeared to be operating as a prostitute.

The problems which led to the ex parte Emergency Orders of 12 November are set out at paragraphs [12] to [14] of this judgment and I adopt them here as part of the answer to the first issue. In my view these orders had to be made. I am not sitting on appeal from the Care Orders made on 26 April 2004. But I have set out at paragraphs [15] to [25] the matters which I have considered relevant to explain the discussions of 26 April 2004 which were rightly made, I am sure. I also adopt them.

The new housing to which she referred in January 2004 was, presumably, the accommodation which she refused to let Ms JB see because it was in such bad repair. Nothing had changed in her life. If it had, she had the opportunity to show it at the Family Proceedings Court. So far as I can tell she was legally represented when the threshold criteria was established to the satisfaction of the court. But it may be that she did not attend that hearing. She did give evidence on 26 April 2004 because she walked out of court during the course of cross-examination. The Care Order was made by a Resident Magistrate. There was a right of appeal to the County Court. There is no suggestion on her behalf that there should have been an appeal on the basis that an assessment should have been made by the Trust in November 2003 or for any other reason. In case there should be any doubt about it I am satisfied that T's views about the children were constantly sought by social workers: see paragraph [23] of this judgment. The problem was and remains that T has no insight into her lack of care of her children. At paragraph [15] of her affidavit of 2 November 2005 she stated:

"I accept that my parenting has had difficulties and problems. I have not always engaged as well as I should have with services that have been offered to me in the past."

Those who drafted the affidavit – and I make no criticism of them – could not have foreseen that in the witness-box she would reject any suggestion that her parenting had difficulties or problems or that she had not engaged as well as she should have with social services. She maintained the opposite position, blaming everyone but herself.

That he did not come to give evidence in this court, whether one accepts the explanations which were given or not, speaks for itself. His mother's health and her husband's health, the relationship between T and her parents and between T and her sister and brother-in-law show that T would have minimal support, if C was to go back to live with her mother in Scotland.

In my view there is no realistic prospect that T will be able to care for C in the short or medium term. C is now four and a half years old. I share Professor Tresiliotis' views about adoption as against long-term foster care. The carers of C are wholly suited to caring for C, according to the evidence before me. If I am entitled to dispense with the consent of T, I will order that T is freed for adoption by her present carers.

"It is clear that the test is unreasonableness and nothing 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 into account, and it is decisive in those cases where a reasonable parent must regard it so."

In Re D (an infant) [1977] 1 All ER 145 Lord Wilberforce expressed the test as follows:-

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

In Re C (a minor) (Adoption: Parental Agreement, Contact) [1993] 2 FLR 260 at 272 Steyn and Hoffman LJJ (as they then were) said this:-

"The characteristics of the notional responsible parent have been expounded on many occasions: see for example Lord Wilberforce in Re D (An Infant) (Adoption: Parents Consent) [1977] AC 602 at 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 Re W (An Infant) [1971] AC 682 at 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 invested to provided the answer to this question."

This has been praised by many: see, for example, Dame Elizabeth Butler-Sloss and Thorpe LJ in Re F [2002] 2 FLR 505.

The effect of Article 8 of the European Convention has been discussed in a number of case, not least in this jurisdiction in AR v Homefirst Trust [2005] NI in which Kerr LCJ said at [77] and [78]:-

"In KA v Finland 1 FLR 696, ECtHR held that mutual enjoyment by a parent and child of each other's company constitutes a fundamental element of family life. Interference with that fundamental element of family life will be a violation of Article 8 unless it is 'in accordance with the law', pursues an aim or aims that are legitimate under Article 8(2) and can be regarded as 'necessary in a democratic society'. The fact that a child could be placed in a more beneficial environment will not alone justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the 'necessity' for such an interference with the parents right under Article 8 of the Convention to enjoy a family life with their child.
The removal of a child from its parents is recognised in Strasburg jurisprudence and in domestic law as a draconian measure, to be undertaken only in the most compelling of circumstances. In particular the state authorities must explore alternative measures to avoid such a drastic course. Only where it can be demonstrated that no other option is feasible will such a choice be justified ….."

I have already indicated that I am satisfied that adoption is in the best interests of C. I need not repeat what I have already said at great length. I recognize that it is not the sole or paramount criterion under our legislation and that I must be objective in my approach. The test is that of the reasonable parent, not the view of the court. But I am certain that T is unreasonably withholding her consent for a number of reasons. What I now set out is not exhaustive. It would be hurtful to set out all the reasons. But I must set out some of them:-

I accept that the Trust can be justifiably criticized for delay, but I cannot accept that there has been any significant breach of T's Article 6 or Article 8 rights, despite the delay and "the flurry of activity".

I consider that the difference in approach to indirect contact as between T and J on the one hand and T and C on the other is sensible. This has been explained by the social workers involved with contact.