Care proceedings – application by the Minister for a freeing for
adoption order.
[2016]JRC089
Royal Court
(Family)
21 April 2016
Before :
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J. A. Clyde-Smith, Esq., Commissioner, and Jurats
Liston and Grime
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Between
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The Minister for Health and Social Services
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Applicant
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And
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A (the mother)
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First Respondent
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And
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Ruby (the child)
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Second Respondent
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IN THE MATTER OF THE CHILDREN (JERSEY)
LAW 2002
AND IN THE MATTER OF RUBY (FREEING FOR ADOPTION
ORDER)
Advocate C. Hall for the Minister.
Advocate N. S. H. Benest for the Second
Respondent.
Advocate L. J. Glynn as Amicus curiae.
judgment
the commissioner:
1.
The
Minister applied for a final care order in respect of the second respondent,
Ruby (“the child”) (this is not her real name) and for an order
freeing her for adoption.
2.
The child
was removed from the care of the first respondent (“the mother”) to
foster carers the day after her birth by way of an emergency protection order
granted by the Deputy Bailiff, for the reasons set out in his judgment of 28th
September, 2015, (In the matter of Ruby (Emergency protection order) [2015]
JRC 197). Quoting from paragraphs
20 and 21 of that judgment:-
“20 I have not set out in full the evidence
given by Ms Owens and there is a significant amount of detail in both the
chronology and in her statement which I have not thought necessary to refer to
in this judgment. Suffice to say
that in my judgment it would be very dangerous indeed to allow the Child to
return with the Mother into her home environment. The environment itself is dangerous and
unhygienic and the Mother cannot look after herself, nor would be able to offer
the Child the care that it would need to thrive.
21 By
reason of the mental challenges that she faces and learning difficulties the
Mother has shown herself to be incapable of looking after herself adequately
during the pregnancy. There were
concerns that her failure to eat meant that she was malnourished and she smoked
heavily. She only kept appointments
when reminded numerous times by her own mother who took responsibility for
ensuring that she attended. Without
that support the Mother was wholly incapable of consistently keeping
appointments. Whilst the
Mother’s love for the Child is unquestioned, there is no more reason to
assume that she would be in a position to look after a vulnerable child than
she was able to look after herself.”
3.
On 7th
October, 2015, the Court granted the Minister an interim care order, noting
that apart from registering the child’s birth, the mother had not
attended any contact sessions with the child; indeed, she had not seen the
child at all since her birth.
Sadly, that remains the case today.
The Court described the mother as a highly vulnerable individual,
susceptible to exploitation, financially, sexually and emotionally. It seemed that she was not capable of
looking after herself, let alone a young child.
4.
The mother
has two older children who live with her parents, the maternal grandparents,
although her son Tyler (this is not his real name) is now in a foster
placement.
5.
The
child’s putative father is B, who has reported significant alcohol issues
and who has not engaged with the Children’s Service or any other
agency. He does not have parental
responsibility and has not seen the child, or made any attempt to do so. His whereabouts are unknown.
6.
The mother
has also refused to engage with the Children’s Service or any other
agencies, in particular the Adult Mental Health Services, who have had a
historic involvement with her.
Regular visits were made to try and establish contact and to support the
mother with her health needs.
Rebecca Lowe, of the Clinical Practitioner Learning Disability Nurse
Team, provided this report:-
“I became involved with
[the mother] last year when I was asked to meet her at the harbour following an
incident in the UK where two gentlemen left her in a car park and Social
Services notified the police. [The
mother] was questioned by customs and had her personal belongings checked. [The mother] proceeded to run away from
me following this and would not accept further support despite several attempts
and welfare visits accompanied by Zoe Frankum.
I became involved again
following the information from Maternity that [the mother] was pregnant. I worked with all agencies involved to
try and get [the mother] to engage and offer her any kind of support she requested. This has proven to be very difficult
only having engaged on three occasions despite daily visits to her home
Liberation Court and one visit to the hospital in which both [the mother] and
her partner became verbally aggressive towards me requesting that I left. [The mother] would not engage whatsoever
in the presence of her partner.
The Learning Disability Service
have provided daily visits to the flat in which she has never answered the door
despite hearing noises from inside the flat on occasions. This was reduced to every other day
following a SSN Risk meeting with Adult Social work team.
In my professional opinion,
[the mother] presents with a Mild/Moderate learning disability. She appears to have capacity to make
decisions, however no formal capacity assessment has been undertaken due to
lack of engagement. [The mother]
engages very well without the presence of her partner and was happy to accept
food parcels from the Learning Disability service prior to the birth of her
baby. It has been very difficult to
monitor her mental and physical health due to lack of engagement. She is diagnosed with epilepsy but is
non-compliant with her prescribed medication and it is not known if she takes
it or not as this is prescribed by her GP, with whom she has a good
relationship with.
[The mother] has had a history
of psychosis having confirmed that she can experience auditory hallucinations
occasionally and explained that this does not affect her and she is able to
‘block this out’. Her
recent admission to Orchard House did not highlight the presence of psychotic
phenomena, despite close observation.
Following a SSN Risk meeting on
29/9/15, it was agreed the current level of attempted engagement cannot
continue – with [the mother] disengaging this is a disproportionate use
of resources, and could actually be seen as harassment. I agreed to do conjoined visits every
other day however despite seeing [the mother] around town she will not answer
her door or engage with the Learning Disability team in anyway.”
7.
The mother
suffered from an episode of psychosis following the birth of her second child
which was managed by medication and on 9th July, 2015, was admitted
to Orchard House under Article 6 of the Mental Health (Jersey) Law 1969
to enable her mental health to be assessed. There was found to be no evidence of
mental disorder and she was discharged.
She flatly refused any support and stated a desire to be left
alone. She has refused any further
visits or welfare checks.
8.
As the
social worker, Zoe Frankum says, it is important to separate the mother’s
cognitive ability as a result of her learning difficulties and her capacity to
make informed choices. An
assessment would help in understanding her cognitive processing ability and how
best to communicate effectively with her, but for that to be done, requires her
cooperation which has not been forthcoming. What can be said is that she has
learning difficulties and is and remains vulnerable.
9.
In the
circumstances, Advocate Glynn was appointed amicus
curiae, but she has not been able to meet with the mother to discuss the
orders being sought. The guardian,
Eleanor Green, has managed to speak to her briefly on the doorstep. She described the mother as dishevelled
and confused and she felt the mother did not have any real understanding of the
issues the guardian was trying to explain to her.
Threshold
10. The child was not suffering actual harm at the
relevant date, i.e. the date the emergency protection order was granted, as she
was removed from the care of the mother effectively from birth. Pursuant to Article 24(2) of the Children
(Jersey) Law 2002, the issue is whether the child would be likely to suffer
significant harm as a result of the care likely to be provided to her by the mother,
if no order is made, being what it might be reasonable to expect a parent to
give.
11. The risks of neglect and emotional harm are set
out in the threshold document and were summarised by the Deputy Bailiff in his
judgment of 28th September, 2015, (In the matter of Ruby (Care
order) [2015] JRC 235. We heard
evidence from the social worker, Ceri Owens, and from the guardian and taking
into account the reports and documentary evidence filed before us, we had no
doubt, as submitted by the Minister and agreed by the guardian and the amicus curiae, that the child would be
at serious risk of significant harm if returned to the care of the mother. We therefore found the threshold
criteria met and that we had jurisdiction.
Care and freeing orders
12. We considered the evidence on this in the
round, following In the matter of T Children [2009] JRC 231 and guided
by the principles set out in the Court of Appeal judgment in Re F & G
(No 2) [2010] JCA 051 in relation to the welfare test and in relation to
freeing for adoption. We also took
into account the principles set out in the case of In the matter of M (Care
Order) [2013] JRC 234 and the need to construe the Adoption (Jersey) Law
1961 (“the Adoption Law”) in the light of Article 8 of the
European Convention on Human Rights – in other words, the need for
proportionality in any order we made.
The aim should be to re-unite the family when the circumstances enable
that. Cutting off all contact in
the relationship between a mother and a child is only justified by the
overriding necessity of the interests of the child – in other words,
where nothing else will do.
13. We were assisted by an analysis of the welfare
checklist and the options available to the Court by both the social worker,
Ceri Owens, and the guardian and two principal points emerged:-
(i)
The
evidence shows that sadly this is not a case where the mother will ever be in a
position to provide good enough care for the child, should she ever decide to
engage. We are not in a situation
where, for example, her parenting could be improved by abstaining from
substance misuse or attending recommended courses. The likelihood was that the mother would
always need significant support to manage her own issues, let alone take care
of a child.
(ii) Although the child was taken off the mother
shortly after birth, she had abandoned the child from that point, despite all
the efforts made to arrange contact between them. The mother had not seen or asked to see
the child since.
14. Fortunately for the child, and the mother, the
child’s maternal aunt had stepped forward after the maternal grandparents
had withdrawn their own application for understandable reasons. The maternal aunt had been positively
assessed as an adopter. She has her
own daughter who is aged 8 and intended ceasing work until the child was of
school age, so that she could fully focus on them both, in particular during
the period of transition.
15. Of the options available to the Court, no order
was out of the question, as that would leave the child under the sole parental
control of the mother and a supervision order would be equally unsuitable for
the same reason. The choice was
between a residence order in favour of the maternal aunt or adoption.
16. The discussions in relation to a residence
order had been informed to some extent by the experience of the maternal
grandparents looking after the older two children, with the mother still having
a role as a mother; something she struggles to fulfil, and which had caused the
older children confusion. It is
witnessing that experience that made the maternal aunt clear that she wished to
adopt.
17. The benefit of adoption in favour of the maternal
aunt is that it would give the child permanence but within the same wider
family. It will be open adoption,
so that the mother would be able to enjoy contact with the child and see her
growing up. There was also the
practical advantage that adoption will assist the maternal aunt financially, as
she would get support from her employer (including adoption leave) whilst
serving out her notice and from Social Security.
18. As the amicus
curiae said, the child is entitled to stability and to a permanent home
where she understands her place within the family. Having regard to Article 3 of the
Adoption Law, we agreed with counsel that in the circumstances of this case,
adoption is both necessary and proportionate.
19. The mother is the only “parent” for
the purposes of the Adoption Law and the mother’s consent is required for
the child to be freed for adoption, unless consent can be dispensed with on any
one or more of the grounds set out in Article 13(2) (of the Adoption Law) which
is in these terms:-
“(2) The grounds …… are that the
parent or guardian –
(a) cannot
be found or is incapable of giving agreement;
(b) is
withholding his or her agreement unreasonably;
(c) has
persistently failed without reasonable cause to exercise his or her rights,
duties, obligations and liabilities as a parent or guardian in respect of the
infant;
(d) has
abandoned or neglected the infant;
(e) subject
to paragraph (4) has persistently ill-treated the infant;
(f) has
seriously ill-treated the infant;
(g) is
incapable of caring for the infant or is of such habits or mode of life as to
be unfit to have the care of the infant.”
20. In terms of withholding consent unreasonably,
the Court of Appeal decision in Re F & G is authority for the
proposition that the Court must ask itself two questions:-
(i)
Is the
making of a freeing order in the best interests of the child? We have already answered that in the
affirmative; and
(ii) Is the mother’s consent being
unreasonably withheld?
21. As made clear in Re F & G, the test
is an objective one. Withholding
consent causes delay and uncertainty, leaving the child in the care of the
Minister and depriving her of the opportunity of a permanent home. That is not reasonable and, assuming
capacity, we found that the mother was therefore withholding her consent
unreasonably.
22. However, the Court was on notice that there
were issues as to the capacity of the mother, which could not be resolved as a
consequence of her refusal to cooperate with the agencies in any way at
all. What we did know is that she
had learning difficulties and was vulnerable. The guardian, when she met her, felt
that the mother did not have any real understanding of the issues at stake.
23. That being the case, and for the avoidance of
any doubt, the Court also found that the mother’s consent could be
dispensed with on the ground that, although the child had been removed from the
mother at birth, the mother had since abandoned the child (Article 13(2) (d))
and, quite separately, that the mother was incapable of caring for the child
(Article 13(2) (g)).
24. An issue arose as to whether the mother had
been duly served with the Minister’s representation seeking a freeing
order. For reasons which were
unclear, the Minister had not sought leave to serve the representation on the
mother, but on the amicus curiae
instead. She, of course, did not
represent the mother.
Notwithstanding her complete lack of cooperation, there was a possibility
that the mother did not know that a freeing for adoption order was being sought
by the Minister.
25. Accordingly, the Court made a care order in
favour of the Minister, approving the care plan for adoption and contact
arrangements, which enabled the planned introduction of the child to the maternal
aunt from the foster carers to proceed without delay, but adjourned the
application for a freeing order so that the mother could be served both
directly (with a letter in appropriately clear and non-technical language
settled by counsel to be read to her by the Viscount if possible) and by way of
substituted service through the maternal grandparents, who she saw from time to
time, with a request that they also read the letter to her. Leave was also given for the content of
the covering letter to be shared with the tenant support worker of the home
where the mother lives and with the adult social worker, so that they could
also inform the mother of the application should the opportunity arise.
26. At the adjourned hearing, the Court was
satisfied that the mother had been duly served in the manner directed and that
every effort had been made to communicate to the mother the order being sought
by the Minister.
27. The mother did not appear and indeed, there had
been no response from her at all.
The child had by then been placed with the maternal aunt and had settled
well. Furthermore, we were told
that the mother had visited the child and the maternal aunt. This had gone well, the mother keeping
within appropriate boundaries. It
will be 13 weeks before the maternal aunt can apply to adopt the child and
whilst nothing is guaranteed, it seemed to the Court that the maternal aunt,
supported by the maternal grandparents and wider family, had stepped in, in
circumstances that must have been difficult for them, to care for the child and
provide her with permanence - permanence that would not deprive the mother of
all contact with the child. In the
circumstances, there could be no better outcome for the child and we therefore
freed her for adoption, being satisfied that all of the formalities required
under Article 12 of the Adoption Law had been complied with.
Authorities
In the matter of Ruby (Emergency
protection order) [2015] JRC 197.
Mental Health (Jersey) Law 1969.
Children (Jersey) Law 2002.
In the matter of Ruby (Care
order) [2015] JRC 235.
In the matter of T Children
[2009] JRC 231.
Re F & G (No 2) [2010]
JCA 051.
In the matter of M (Care Order)
[2013] JRC 234.
Adoption (Jersey) Law 1961.