Ref: GILC5486
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
________
IN THE MATTER OF G AND A (CARE ORDER: FREEING ORDER:
PARENTS WITH A LEARNING DISABILITY)
________
GILLEN J
[1]
Nothing in this case should be reported which would
serve to identify the children who are the subject of this matter or their
family.
[2]
In this case a Health and Social Services Trust
which I do not propose to name ("the Trust") seeks two orders in
relation to two children whom I shall identify as G (now 2 years of age) and A
(now one year old). P and T are the respective mother and father of these
children and I shall give the letter "X" to identify the family name.
In the first instance the Trust seeks a Care Order pursuant to Article 50 of the
Children Order (NI) 1995 ("the 1995 Order") and in the second place,
if I grant the application under the 1995 Order ,a Freeing Order pursuant to
Article 18 of the Adoption Order (NI) 1987 ("the 1987 Order").
Parental consent is withheld in the latter instance.
Background
[3]
The general background in this case, much of
which is undisputed, was set out in the bundles bundle . I can summarise the
position as follows:
P was born in
1972. T was born in 1976. Dr McPherson, Consultant Psychiatrist, has advised
the guardian ad litem that both have a severe mental handicap and that this is
not a factor that is amenable to change. P's father was murdered in 1972. She
was raised solely thereafter by her mother who found her daughter increasingly
difficult to manage once she entered her teenage years. In the main this was
due to P spending long periods away from home and her involvement with Y who
was violent and abusive. During September 1991 when she was 19 years of age she
was referred to Social Services by the RUC due to her injuries following a
physical assault by her then partner Y. Social Services found it difficult to
maintain contact with her due to her transitory lifestyle and failure to attend
appointments with her social worker. In 1992 a rift occurred between P and her
family arising out of the murder of her brother which led to her being warned
by the police about the risks to her own life. Notwithstanding this she
apparently continued to keep in contact with her boyfriend and despite police
advice moved about in the area close to the district where she was under
threat. On 6 January 1993 at a multidisciplinary case conference it was agreed
that the grounds existed for her admission to hospital for assessment under the
provisions of the Mental Health (NI) Order 1986. The grounds were her severe
mental handicap and her inappropriate behaviour in the context of what appeared
to be a real threat to her life and her continued agitation and aggression.
Whilst in a hostel she had threatened to kill herself or harm her baby. After
the birth of the first child S, she was discharged back to Muckamore Abbey
Hospital in February 1993. The baby was made a ward of court, placed with
foster parents and subsequently adopted. She remained under the care of mental
health experts until her discharge into the community again in 1997. During her
time in Muckamore Abbey she formed a relationship with T and became engaged to
him during 1997. After her discharge from the hospital she missed him a great
deal and found the move very unsettling and difficult. There were several areas
in which she perceived that she had suffered losses in that she found the
environment more restrictive with less freedom together with a feeling that she
had fewer friends than she had enjoyed in hospital. Despite daily phone calls
and visits every 3 or 4 weeks with T, she continued to miss him. Her mood
remained low and in November 1997 she threatened self harm. Consequently she
returned to Muckamore Abbey Hospital. In September 1998 the Mental Health
Review Tribunal discharged her from guardianship and she remained in Muckamore
as a voluntary patient. There followed a lengthy period of planning and
preparation for a joint community discharge. Considerable work was undertaken
with P and T to address issues identified by the multidisciplinary team to
enable a successful discharge. This involved both individual and joint work.
Work continued with Relate on relationship issues and incentive plans. Efforts
were made to identify and agree with P and T suitable models of accommodation
and support for discharge. Throughout her time in Muckamore Abbey Hospital, P
had no contact with her mother. This relationship was re-established in
September 2003 when P asked for support with her forthcoming birth. After their
discharge from Muckamore Abbey Hospital in 2000, P and T moved to DPR, a
supported living project for people with learning difficulties. Over the years
they had consistently expressed a desire to have a child. In late 2001/2002
they became increasingly adamant that they wished to proceed with having a
baby. In February 2002 they agreed to take a virtual baby as more frequently
used with teenagers to give them insight into caring for a baby. When they went
to collect the baby they decided to take a baby each. After two days the babies
were returned although they should have been kept for a week. Staff at DPR
project observed that they had not supported each other at the time.
[4]
The Trust was informed of P's pregnancy in April
2003 and commenced multi-agency preparations in order to provide a support
package to the couple when their baby was born. Prior to G's birth a support
package was developed between social services and DPR with Mr and Mrs X's
involvement to ensure they were supported in caring for G. This support package
consisted of midwifery, Surestart and health visiting provision. Staff at DPR
were given their role as supporters and monitors of Mr and Mrs X's childcare
and their links with social services were established. T's background information
was made available by Mr SC social worker. The Trust case however was that once
G was born, Mr and Mrs X's attitude was that they did not need professionals in
their lives. Difficulties with regards to their cooperation and ability to take
advice, in the opinion of the Trust, placed G in a situation where her needs
were not being adequately met and an Emergency Protection Order was sought and
granted on 12 December 2004 with subsequent Interim Care Orders with G being
placed in foster care. The events that led up to that included the following:
(a) In June 2003
(prior to the marriage of the couple on 25 June 2003), at an initial child
protection case conference it was decided that the unborn baby's name would be
added to the Child Protection Register on the category "potential
neglect" upon its birth. The Family Centre work was commenced to assess
the couple's parenting abilities. On 12 August 2003 during the course of a
professional discussion at Knocknashinna Family Centre a plan was established in
order to design the work in a "user friendly way". Dr McPherson,
Consultant Psychiatrist, Muckamore Hospital gave advice regarding Mr and Mrs
X's learning styles and invited Family Centre staff to contact hospital staff
to gain an insight into how to pace the work and access appropriate resource
material. Dr McPherson agreed to discuss this with Mr and Mrs X and get their
permission. In October 2003 a social worker from the Trust met with Surestart
staff to coordinate support available to Mr and Mrs X. A health visitor, a
midwife from Surestart and a social worker provided training to DPR staff to
support the couple whilst ensuring that they were the main carers for the
infant. At that stage Mr and Mrs X seemed to be engaging well.
(b) On 25 November
2003 G was born.
(c) On 2 December
2003, Mrs X and G were discharged from hospital and the Trust alleged that Mrs
X had become very preoccupied with her discharge and was unwilling to remain in
hospital as had been planned for 10 days to establish a feeding routine. It was
the Trust case that this was yet another instance of Mrs X refusing to
cooperate with Trust and to avail of assistance. On 3 December 2003 family and
childcare together with a maternity social worker visited Mr and Mrs X's flat
and reminded the couple of the need to have their parenting of G monitored. Mr
X allegedly became angry and said he would be "taking them out of
here" and at one point Mrs X asked could she go and live with her mother.
Mrs W, P's mother, requested two members of DPR staff to make visits to the
couple's home to avoid any misunderstanding. At this point DPR staff were
reporting their concerns about gaining access to Mr and Mrs X's flat to monitor
G's feeding. DPR project management expressed their anxieties to the Trust about
managing the child's care if access was denied.
(d) On 9 December
2003 DPR staff reported to a Trust social worker that Mrs X had been asleep on
the settee in her flat with G in her arms at 1.00am. Previously that evening
DPR staff had observed Mr and Mrs X with G in a bar in the local town. DPR
staff challenged Mr and Mrs X on the appropriateness of this situation but the
couple reported they had not been drinking.
(e) On 10 December
2003 a core group meeting of the Trust was held when concern was expressed
about Mr X's statement that he would "take them out of there". DPR
staff expressed concern about G's slow feeding even though different sized
teats had been tried. The group felt that health professionals and Mrs W may
have been giving contradictory advice. The monitoring of feeds was not always
possible as Mr and Mrs X would not contact DPR staff prior to feeds and
monitoring sheets were not filled in by Mr and Mrs X despite requests to do so.
The group on that occasion discussed the possible merits of a feeding
assessment for G in hospital if this situation did not improve. Issues were
addressed with Mr and Mrs X regarding monitoring, feeding and supervision of G.
The couple stated that they did not agree with social services and asked
"why is it always about G?" and why did social services not
"butt their noses out". The Trust case was that this was a further
example of Mr and Mrs X exhibiting antagonism towards social services and
refusing to accept any help or assistance with G. On 10 December 2003, Dr Small
a General Practitioner was contacted by Mrs X at 5.35pm requesting an
appointment as she felt G was constipated. Advice was given to Mrs X and to DPR
via a follow-up telephone call from Dr Small. Later that evening Mr and Mrs X
arrived in a distressed state at the DPR with G wrapped in a blanket stating
that during a telephone call Mrs W had stated that Mr X "was in and out of
bars all day and every day and sleeping all the time". Mrs X complained
that her whole family had disowned her because of this. The following day DPR
staff arrived at Mr and Mrs X's flat to support them in carrying out Dr Small's
advice regarding G's constipation. However they found the sterilizer was dirty
with "murky whitish" water in it. When this was pointed out to Mrs X,
she stated it was "okay". DPR project staff intervened and cleaned
both the bottles and sterilizer unit.
(f) On 11 December
2003 DPR reported that Mr and Mrs X were not working as a team and Mrs X had
stated Mr X was "no help". Arguments had ensued between the couple
but were defused by DPR staff. Mrs W arrived during a DPR staff visit and
another argument started between her and Mr X. Social services were contacted
by DPR staff and social workers arrived. Concern was raised over G's slow
weight gain and the possibility of a feeding assessment was discussed.
Following this on 12 December 2003 a health visitor advised that the child
should be seen by Dr Small. Mr and Mrs X, G and Mrs W attended the surgery but
Mrs W refused to allow the child to be registered with that doctor as she felt
the registration form had not been adequately explained to Mr and Mrs X. As a
result of concerns regarding G's slow weight gain and Mrs X's previous
telephone call to Dr Small, the couple were offered temporary registration by
Dr Small to allow G to be examined. Mrs W refused that and no examination was
performed. So concerned was Dr Small that she contacted social services. DPR
staff on that occasion observed Mr and Mrs X on their return from the surgery
placing G in Mrs W's car and taking with them a bag a clothes. When asked where
they were going they stated "Belfast" and left with the Mrs W.
Accordingly this triggered an Emergency Protection Order application and a
Recovery Order which was sought and granted in respect of G at Newtownards
Court. Unknown to the Trust, the child was in fact taken to the Mater Hospital.
There the Accident and Emergency doctor was suspicious on speaking to Mrs W as
he felt G's parents "were in the background". He contacted Dr Small
for background information and was advised to arrange for G to be taken to the
Royal Belfast Hospital for Sick Children. Two social workers attended at the
hospital and on explaining their Emergency Protection Order and Recovery Order
application they were both physically assaulted by Mrs X and verbally
threatened by Mr X. One of those witnesses Ms McE gave evidence before me and I
believed her account of what happened. The child was removed to foster care the
next day by the social worker without incident.
(g) On 15 December
2003 the Emergency Protection Order was renewed at the Family Proceedings
Court.
(h) On 22 December
2003 at a LAC review, it was decided that G's care plan would be for her to
remain in foster care and the Trust would make further applications for Interim
Care Orders to facilitate a specialist residential assessment of Mr and Mrs X's
ability to adequately care for G.
(i) On 22 December
2003 an Interim Care Order was granted in respect of G at the Family
Proceedings Court. Supervised contact was agreed on a daily basis for one hour.
(j) On 13 January
2004 a First Review Child Protection Case Conference was held and it was
decided that G's name was to be retained on the Child Protection Register.
(k) On 10 March
2004 the family commenced a parenting assessment in the Family Care Unit
Peterborough, England with fortnightly visits by the Trust and adult services
social worker. The Trust had chosen this facility as better able to facilitate
a couple with learning disabilities than anywhere else in Northern Ireland.
That assessment became a matter of some controversy during the course of this
case and I will refer further to it during the course of my analysis of the
witnesses in this case. It was the Trust case that the Peterborough unit recommended
G's removal due to a deterioration in the assessment on 8 June 2004 and on 10
June 2004 G was removed from the Family Care Unit and returned to foster
carers. I reiterate however that this conclusion is a matter of some dispute in
this case.
(l) Between July
and October 2004, subsequent to the receipt of the report from Peterborough and
a report from Dr Roy Bailie, Clinical Psychologist who assessed the couple (and
which is referred to in detail in my analysis of the witnesses who came before me),
the Trust sought to source a service which would provide the 24 hour cover to
parents and child and which had been recommended in the course of these
reports. It was the Trust evidence that an extensive search was carried out
throughout the United Kingdom and leading authorities on special parenting were
contacted. However it was found that no such service was available.
(m) On 20
September 2004 an initial child protection case conference was convened in
respect of A. A decision was made that Mr and Mrs X's unborn baby (Mrs X was
then pregnant) would have its name placed on the Child Protection Register at
birth under the category of "potential neglect". The Trust would make
an application to the Family Proceedings Court to place the child in foster
care until decisions regarding longer term plans could be made.
(n) On 6 October
2004 at a LAC review dealing with G, Mr and Mrs were informed of the decision
to change G's care plan to permanency via adoption.
(o) On 13 November
2004 A was born.
(p) On 18 November
2004 an Interim Care Order was granted in respect of A and the child was
removed from the Royal Victoria Hospital to join her sister in foster care.
(q) On 25 November
2004 the Trust permanency panel endorsed G and A's care plans to be permanency
via adoption.
(r) 10 December
2004 at A's LAC review the Trust proposed a care plan of permanency via
adoption and this was explained according to the Trust to Mr and Mrs X.
I pause to observe
that this cluster of events from September 2004 was the matter of dispute
during the course of this case on the basis that the Trust had breached
regulations governing the conduct and sequence of such a procedure and I shall
turn to it in some more detail when analysing the evidence of the witnesses.
(s) On 2 March
2005 a court granted the Trust's application to have G and A's blood taken to
allow screening. Mr and Mrs X had refused to allow their blood to be screened.
On 22 March 2005 blood samples taken from G and her sister A did permit
screening to take place by Dr Fiona Stewart. These bloods were subsequently
forwarded to Signature Genetic in the USA to have a fine definition screen
which it was hoped would ascertain the likelihood of G and A having an
inherited learning disability. I pause to observe that a final report from Dr
Stewart on this matter concluded that whilst there was no obvious genetic
abnormality identified in either of the children, this result did not exclude
the possibility of their having learning problems and especially whilst they
are young their developments need to be carefully assessed. Subsequently it has
now been discovered that G does suffer from a learning disability.
(t) On 24 March
2005 the Joint Adoption Panel endorsed the Trust's care plan. The panel
concluded that it was in accord with the Trust proposal that adoption was in G
and A's best interests.
(u) On 28 April
2005 the Operations Manager from the Trust was advised by the Chairperson of
the Adoption Panel that the panel recommended that adoption was in the best
interests of G and A.
(v) On 1 June 2005
at a LAC review it was discussed with Mr and Mrs X and Mrs W that the adoption
panel had endorsed the Trust's proposal that G and A's needs would be best met
by permanency via adoption and that applications were to be brought pursuant to
Article 18 of the 1987 Order to free them for adoption.
(w) On 5 July 2005
the Trust decision-maker in this matter, a principal social worker, wrote to Mr
and Mrs X informing them of this decision.
(x) On 20 July
2005 the Guardian ad Litem Ms Brenda Sheeran reported to the Trust that during
a conversation with Family Care in Peterborough, Ms Jinks had informed her that
they might revise their previous findings in relation to their assessment of Mr
and Mrs X. This was apparently due to Mr X being on medication during his time
in the Family Care which may have compromised his parenting capacity and
therefore the assessment. Ms Jinks felt that basically the couple had done
little wrong in the assessment. I observe at this stage however that I was
subsequently provided with a copy medical report from Dr Curran who was
satisfied that the medication given to Mr X would have had no such impact on
him.
(y) On 1 August
2005 Patricia Donnelly, Consultant Clinical Psychologist, produced a report
outlining an assessment of G and A under joint instruction by the solicitors on
behalf of the Guardian ad Litem and the Trust's solicitors. I shall deal with
this report in the course of my analysis of the evidence given before me.
(z) On 19 August
2005 there was a meeting convened between the decision-maker in the Trust, Ms B
(social worker with the Trust and whose evidence I shall analyse ), ED (senior
practitioner in the Trust) and Ms McE (social worker whose evidence I shall
also analyse) to discuss information provided by the Guardian ad Litem
regarding her conversation with Ms Jinks of Family Care in Peterborough. The
decision was taken that no further assessments of Mr and Mrs X would be
necessary.
(aa) On 24 August
2005 Ms B and Ms McE met with Mr and Mrs X and Mrs X's mother to discuss their
children and the Trust position in light of the report from Mrs Donnelly. Ms B
explained that as this new information had been made available this would be
placed before the adoption panel for further consideration. According to the
Trust Ms X stated according to the Trust that in spite of Mrs Donnelly's report
neither she nor Mr X or her children had learning disabilities. (This refrain
echoed similar comments made to Dr Bailie).
(bb) 8 September
2005 the Joint Adoption Panel considered the additional information from
Patricia Donnelly and the Family Care Unit and re-endorsed the Trust's proposal
that adoption was in G and A's best interest. On 8 September 2005 G was
assessed at Down Lisburn Trust Child Assessment Clinic and it was calculated
that G was functioning at 14 months rather than her chronological age of 21
months.
(cc) On 21
September 2005 Mr and Mrs X were informed of the Adoption Panel's
recommendation by Ms B and Ms McE.
(dd) On 23
September 2005 Mr C the Trust decision-maker wrote to Mr and Mrs X explaining
that the Trust remained of the view that adoption was in their children's best
interests. On 28 September 2005 hand Ms McE hand delivered the agency
decision-maker's letter to Mr and Mrs X.
(ee) It was the
Trust's case that consideration was given to the maternal grandmother Mrs W in
this case to care for A full-time. However this woman made it clear that she
was unable to make such a commitment and could not identify any extended family
member available to do so.
Preliminary
Matters
[5]
Learning Disability
In this case both
respondents suffer from a serious learning disability. In the course of the
case I had the benefit of reading the following documentation dealing with
mental health and learning disability:
(a) Review of
Mental Health and Learning Disability (Northern Ireland) "Equal Lives:
Review of Policy and Services for People with a Learning Disability in Northern
Ireland" September 2005.
(b) "Parents
with Learning Difficulties: Child Protection and the Courts". This is a
report to the Nuffield Foundation on grant No SPF/00151/G written by Tim Booth
and Wendy Booth.
(c) A number of
very informative documents headed "Supported Parenting for Mothers and
Fathers with Learning Difficulties" helpfully supplied to me by a witness
from Mencap. This witness had been present throughout the hearing to assist the
respondents in the understanding of this case. She also gave evidence in
general terms about the role of Mencap and whilst there is no need for me to
refer further to her evidence the Court was very grateful for her input into
this case.
(d) "Finding
the Right Support" from Bristol University's Norah Fry Research Centre
funded and published by the Baring Foundation 2006.This was a research paper
based on web based questionnaires, telephone interviews and site visits. It
includes experience and responses from Northern Ireland. It also includes
examination of cases where some learning disabled children were parented by
learning disabled parents. I postponed judgment in this case for some time to
allow the parties to consider this report which I learned was due to be
published in May 2006. All the parties to this case made written submissions to
me on this important document after the case had finished. A reading of these
documents leads me to set out a number of matters which I feel must be taken
into account by courts when determining cases such as this involving parents
with a learning disability particularly where they parent children who also
have a learning disability.
(1) An increasing
number of adults with learning difficulties are becoming parents. The Baring
Foundation report records that whilst there are no precise figures on the
number of parents with learning difficulties in the population, the most recent
statistics come from the First National Survey of Adults with Learning
Difficulties in England, where one in fifteen of the adults interviewed had
children. Whatever the figure it is generally recognised that their number is
steadily rising and that they represent a sizable population whose special
needs require to be adequately addressed. The Baring Foundation report refers
to national policy in England and Scotland committing government to
"supporting parents with learning disabilities in order to help them,
wherever possible, to ensure their children gain maximum life chance
benefits." Nonetheless the courts must be aware that surveys show that
parents with learning disabilities are apparently more likely than other
parents to have their children removed them and permanently placed outside the
family home. In multidisciplinary jurisdiction such as the Family Division, it
is important that the court is aware of such reports at least for the purposes
of comment. It is important to appreciate these currents because the Children
Order (Northern Ireland) 1995 places an emphasis on supporting the family so
that children can remain with them and obligations under disability
discrimination legislation make public services accessible to disabled people
(including parents with learning difficulties). Moreover the advent of the
Human Rights Act 1998 plays an important role in highlighting the need to
ensure the rights of such parents under Articles 6 and 8 of the European
Convention of Human Rights and Fundamental Freedoms ("the
Convention").
(2) People with a
learning disability are individuals first and foremost and each has a right to
be treated as an equal citizen. Government policy emphasises the importance of
people with a learning disability being supported to be fully engaged playing a
role in civic society and their ability to exercise their rights and
responsibilities needs to be strengthened. They are valued citizens and must be
enabled to use mainstream services and be fully included in the life of the
community as far as possible. The courts must reflect this and recognise their
need for individual support and the necessity to remove barriers to inclusion
that create disadvantage and discrimination. To that extent courts must take
all steps possible to ensure that people with a learning disability are able to
actively participate in decisions affecting their lives. They must be supported
in ways that take account of their individual needs and to help them to be as
independent as possible.
(3) It is
important that a court approaches these cases with a recognition of the
possible barriers to the provision of appropriate support to parents including
negative or stereotypical attitudes about parents with learning difficulties
possibly on the part of staff in some Trusts or services. An extract from the
Baring Foundation report provides a cautionary warning:
"For
example, it was felt that some staff in services whose primary focus was not
learning difficulties (eg in children and family teams) did not fully
understand the impact of having learning difficulties on individual parents'
lives; had fixed ideas about what would happen to the children of parents with
learning difficulties and wanted an outcome that did not involve any risks
(which might mean them being placed away from their family); expected parents
with learning difficulties to be `perfect parents' and had extremely high
expectations of them. Different professionals often had different concepts of
parenting against which parents were assessed. Parents' disengagement with
services, because they felt that staff had a negative view of them and `wanted
to take their children away' was also an issue, as were referrals to support
services which were too late to be of optimum use to the family often because
workers lacked awareness of parents' learning difficulties or because parents
had not previously been known to services".
(4) This court
fully accepts that parents with learning difficulties can often be "good
enough" parents when provided with the ongoing emotional and practical
support they need. The concept of "parenting with support" must
underpin the way in which the courts and professionals approach wherever possible
parents with learning difficulties. The extended family can be a valuable
source of support to parents and their children and the courts must anxiously
scrutinize the possibilities of assistance from the extended family. Moreover
the court must also view multi-agency working as critical if parents are to be
supported effectively. Courts should carefully examine the approach of Trusts
to ensure this is being done in appropriate cases. In particular judges must
make absolutely certain that parents with learning difficulties are not at risk
of having their parental responsibilities terminated on the basis of evidence
that would not hold up against normal parents. Their competences must not be
judged against stricter criteria or harsher standards than other parents.
Courts must be acutely aware of the distinction between direct and indirect
discrimination and how this might be relevant to the treatment of parents with
learning difficulties in care proceedings. In particular careful consideration
must be given to the assessment phase by a Trust and in the application of the
threshold test.
(5) Parents must
be advised by social workers about their legal rights, where to obtain advice,
how to find a solicitor and what help might be available to them once a
decision has been taken to pursue a care application. Too narrow a focus must
not be placed exclusively on the child's welfare with an accompanying failure
to address parents' needs arising from their disability which might impact
adversely on their parenting capacity. Parents with learning disabilities
should be advised of the possibility of using an advocate during their case eg
from the Trust itself or from Mencap and clear explanations and easy to
understand information about the process and the roles of the different
professionals involved must be disclosed to them periodically. Written
information should be provided to such parents to enable them to consider these
matters at leisure and with their advocate or advisers. Moreover Trusts should
give careful consideration to providing child protection training to staff
working in services for adults with learning disabilities. Similarly those in
children's services need training about adults with learning disabilities. In
other words there is a strong case to be made for new guidelines to be drawn up
for such services working together with a joint training programme. I endorse
entirely the views of the Guardian ad Litem in this case when she responded to
the "Finding the Right Support" paper by stating:
"As
far as I am aware there are no `family teams' in the Trusts designated to
support parents with a learning disability. In my opinion this would be a
positive development. The research also suggests that a learning disability
specialist could be designated to work within family and childcare teams and a
child protection specialist could be designated to work within learning
disability teams. If such professionals were to be placed in the Trusts in
Northern Ireland they could be involved in drawing up a protocol for joint
working, developing guidelines, developing expertise in research, awareness of
resources and stimulating positive practice. They could also assist in
developing a province-wide forum that could build links between the Trusts, the
voluntary sector and the national and international learning disability
community."
(6) The court must
also take steps to ensure there are no barriers to justice within the process
itself. Judges and magistrates must recognise that parents with learning
disabilities need extra time with solicitors so that everything can be
carefully explained to them. Advocates can play a vital role in supporting
parents with learning difficulties particularly when they are involved in child
protection or judicial processes. In the current case, the court periodically
stopped (approximately after each hour), to allow the Mencap representative to
explain to the parents what was happening and to ensure that an appropriate
attention span was not being exceeded. The process necessarily has to be slowed
down to give such parents a better chance to understand and participate. This
approach should be echoed throughout the whole system including LAC reviews.
All parts of the Family justice system should take care as to the language and
vocabulary that is utilised. In this case I was concerned that some of the
letters written by the Trust may not have been understood by these parents
although it was clear to me that exhortations had been given to the parents to
obtain the assistance of their solicitors (which in fact was done). In terms
therefore the courts must be careful to ensure that the supposed inability of
parents to change might itself be an artefact of professionals ineffectiveness
in engaging with the parents in appropriate terms. Courts must not rush to
judge, but must gather all the evidence within a reasonable time before making
a determination. Steps must be taken to ensure that parents have a meaningful
and informed access to reports, time to discuss the reports and an opportunity
to put forward their own views. Not only should the hearing involve special
measures, including a break in sessions, but it might also include permission
that parents need not enter the court until they are required if they so wish.
Moreover the judges should be scrupulous to ensure that an opportunity is given
to parents with learning disabilities to indicate to the court that something
is occurring which is beyond their comprehension and that measures must be
taken to deal with that. Steps should also be taken throughout the process to
ensure that parents with learning disabilities are not overwhelmed by
unnecessarily large numbers of persons being present at meetings or hearings .
(7) Children of
parents with learning difficulties often do not enter the child protection
system as the result of abuse by their parents. More regularly the prevailing
concerns centre on a perceived risk of neglect, both as the result of the
parents' intellectual impairments, and the impact of the social and economic
deprivation commonly faced by adults with learning difficulties. It is in this
context that a shift must be made from the old assumption that adults with
learning difficulties could not parent to a process of questioning why
appropriate levels of support are not provided to them so that they can parent
successfully and why their children should often be taken into care. At its
simplest, this means a court carefully inquiring as to what support is needed
to enable parents to show whether or not they can become good enough parents
rather than automatically assuming that they are destined to fail. The concept
of "parenting with support" must move from the margins to the
mainstream in court determinations.
(8) Courts must
ensure that careful consideration is given to ensuring that any decision or
judgment is fully explained to such parents .In this case I caused a copy of
the judgment to be provided to the parties at least one day before I handed it
down to facilitate it being explained in detail before the attendance at court
where confusion and consternation could be caused by a lengthy judgment being
read which the parents could not follow at the time .
In considering
this case, and the rights of the parents under Articles 6 and 8 of the EC, I
have endeavoured to follow these principles.
WITNESSES
Ms B
[6]
This witness was the Assistant Principal Social
Worker with the Trust. She had been promoted to this position in 2003 upon the
promotion of Mr McC who had formerly been in that position.
[7]
In the course of her reports to the court, examination
in chief and cross-examination the following points emerged:
(1) The LAC of
6 October 2004. This was chaired by this witness and this was the occasion
where the Trust took the decision to change its plan to one of permanency
outside the family for G. This LAC had occurred in the aftermath of the report
from Peterborough. Ms B indicated that she was aware of a conflict arising on
the one hand from the reports from Peterborough which seemed to suggest that
the couple had had to be removed from the assessment in June 2004 and on the
other hand the reports that came through to the Guardian ad Litem to the effect
that Ms Jinks who was in charge of the report at Peterborough now felt that a
24 hour/7 day per week service for Mr and Mrs X could be sustained.
(2) During the
course of the summer of 2004 Ms McE a social worker with the Trust had been
attempting to find suitable accommodation for G and the forthcoming child with
her parents. The essential problem that arose was that accommodation had to be
found for these parents who were suffering from a disability but who also
needed to have assistance in looking after their children. A facility at
Camphill in Northern Ireland declined the possibility. The second possibility
was now Prospect. The Trust had consulted with Mr Bothwell from Prospect
whose evidence I shall later analyse. At this time the couple were living at
DRP, the mother was pregnant, and disagreements were clearly surfacing with the
personnel at DRP. Mr X felt that DRP were infringing his privacy. The task
facing the Trust therefore was whether a facility could obtained to provide 24
hour service/7 days a week ("24/7"), whether the increased
supervision necessary after leaving the supervision currently provided at DRP
could be found, and whether such increased supervision was now feasible given
the difficulties that had been thrown up at DRP. The essential dilemma was that
whilst the couple wished to remain independent, much of their independence had
to be sacrificed if they were to live in a family unit together with the
children. There already had been a great deal of difficulty with DRP staff
gaining access to the home as a product of this conflict.
(3) The witness
accepted that Prospect still felt there was a possibility that the matter could
be accommodated albeit that this was a new venture in Northern Ireland. There
was no precedent for 24 hour care for parents themselves who are under
disability and who needed great help with children. In terms it required staff
who not only had a high level of knowledge of disability with adults, but also
childcare. The witness illustrated the difficulty by indicating that they were
currently providing 24 hour care for a young person of 16 who had a disability
of this kind. The practical problems of getting 24 /7 cover even on a
short-term basis was proving extremely complex even in circumstances where this
young man, unlike P and T, worked with staff and was cooperative. The witness's
evidence was that the Trust simply could not do it long-term because the cover
required was not obtainable. Overnight stays, holiday cover, weekend cover were
all proving insuperable. For this couple it would require a rota of at least
four people to cover the 168 hours per week given that individual social
workers only work 37½ hours per week.
(4) Ms B in any
event indicated that the physical implausibility of being able to obtain that
staff was overwhelmed by other issues. In the first place, there was a lack of
consistent engagement between the couple and professionals. Although from time
to time they did make efforts, for example with Mrs McE, when conflict arose,
the relationship broke down and this therefore made it very difficult to bring
people on board who would carry out work with them. Secondly there would be difficulty
in any event in the conflict between the two disciplines ie adult disability
working for the adults and childcare for the children. Inevitably conflict
would arise between the two disciplines. Thirdly, the concern was that children
would form attachments with such permanent social workers. If conflict arose
between the carers and the parents the children would become confused.
(5) The witness
emphasised that when rehabilitation is not a possibility, the Trust inevitably
looks to the family network to see if they can fill the gap. In this case the
Trust had made inquiries of Mrs W, the mother of P to see if she could assist
but Mrs W made it clear that the level of care required could not be provided
by her.
(6) The witness
also contacted another Trust in Northern Ireland which, it had been suggested
through counsel on behalf of the respondents in the course of the hearing,
could have provided such round the clock service. Having spoken to the Director
of Childcare Services and the Assistant Director of Adult Disability Services,
it was made clear that this Trust was not only unable to meet this request but
was unaware of any such services in existence throughout the UK.
(7) During the
course of this hearing, by a document dated 21 January 2006, the parents signed
an undertaking drawn up by their own solicitor as to their future behaviour in
relation to cooperation with the Trust. The document reads as follows where
relevant and having been anonymised by me:
"P
and T (the parents) are the natural parents of G and A (the children) presently
in foster care and in respect of whom interim Care Orders have been made on the
application the Trust.
The parents are anxious and highly motivated to have the opportunity to
demonstrate that, with appropriate assistance, they are capable of parenting
the children.
In order that the parents may be given such an opportunity they solemnly
undertake as follows:
1.
they acknowledge and accept that in the past they have not at times fully
cooperated with social workers and other staff, whether in Northern Ireland or
in Peterborough nor have they fully accepted and acted on advice given in
relation to parenting and other matters;
2.
they will, if given the opportunity, use their very best efforts to
conscientiously accept, obey and act upon directions and advice given by or on
behalf of the Trust, its servants and agents and all personnel who have lawful
authority to give directions and advice;
3.
they will, to the best of their ability, fully co-operate and behave in a
friendly way avoiding arguments and controversy and any unseemly behaviour
which could affect relationships with staff;
4.
if given such an opportunity to prove their parenting abilities, the parents
accept and acknowledge that deliberate or persistent breaches of these
undertakings may lead to the suspension of any arrangements put in place to
enable the parents to demonstrate and prove their parenting abilities;
5.
the parents acknowledge that the terms of these undertakings have been fully
explained to them by their legal advisors and that they fully understand the
meaning and import of them."
[8]
The witness had considered this undertaking with
her senior social worker but indicated her position had not been changed. Her
evidence was she had looked at a number of contact sheets prior to coming to
court in light of this new document and had formed the opinion that the
attitude of the parents in fact had not changed in substance notwithstanding
the undertaking. She gave three instances:
(a) In recent days
but subsequent to the undertaking the Trust had wished to reduce, for a period
of 6 weeks, contact between the parents and G by ½ hour/1 hour to facilitate
the child attending some play and development sessions. Currently contact is 3
times per week for a total of 7 hours being split between a 3 hour session and
two 2 hour sessions. The parents had refused to accommodate this insisting that
the contact must continue as directed.
(b) A second
instance arose when a Child Healthcare Assistant had suffered a severe migraine
headache and wished to reduce a contact session from 2 hours to 1 hour. Mrs X
had shouted at the worker and refused to reduce the hours even though the
worker was physically sick.
(c) More recently,
in the last week, they had lost a travel warrant and had become very angry with
social workers when reimbursement for the money they had expended on travel was
not forthwith made available to them.
It was the
evidence of this witness that these 3 instances indicated that there had been
no improvement whatsoever in the measure of cooperation which was required in
this case.
[9]
The witness highlighted the apparent conflict in
information that had emanated from the Peterborough assessment between March
and June 2004. It was the Trust conclusion that when Peterborough first gave
the assessment, the records did not seem to tally with the conclusions reached.
It seemed clear from the records at Peterborough that there were occasions when
the assessment was breaking down and was clearly going to end. This seemed to
contrast with the recommendation that the children could be returned on a basis
of 24/7 care . Information also came from the unit through the Guardian ad
Litem to the effect that the assessment need not have ended. It was the Trust's
view that these comments did not reflect what had actually happened during the
course of the assessment and that Peterborough were now more positive than had
formerly been the case. However the witness emphasised that the Trust had not
ruled out 24/7 care at that time and had made extensive efforts to ascertain if
it was possible throughout the UK. I observe at this stage that the Trust
failure to find such a facility echoed the opinion of all the other relevant
witnesses in this case, including the evidence from Prospect in England, that
such a facility does not exist to provide the dual assistance which was
required for both parents and children with learning disabilities. I am
satisfied that Ms McE did make the following approaches for the Trust.
(a) Aidan Murray,
Assistant Director of another Board who was unable to provide suggestions.
(b) Camphill at
Glencraig where visits were made. On 6 August 2004 they stated that they felt
that they were unable to provide the lifelong commitment that the family
require.
(c) Sue McGraw
considered to be an expert in this field based in Truro in Scotland indicated
that only referrals in that area would be considered.
(d) Tim and Wendy
Booth again considered to be experts in the area.
(e) Sue Collins
who felt that the family needed local services and to uproot them would be
difficult.
(f) Dr Roy Bailie
(see his evidence hereafter).
(g) Challenge who
have no facilities for children.
(h) Gabriel
Abraham who had been involved in a project which had closed in 2002 due to lack
of funding.
(i) St Michael's
Fellowship, London.
(j) Positive
Futures.
(k) Mencap .
(l) Mervyn
Bothwell from Prospect. This is a Christian charity and a voluntary
organisation which works with people with learning disabilities. Mr Bothwell
undertook to look at the situation.
[10]
In dealing with these matters the Ms B stated
that this was a clear indication of how the Trust had considered in great
detail the right to family life of Mr and Mrs X and had given every opportunity
to them to live as a family. Not only had they sent them to Peterborough
because PACT and Thorndale in Northern Ireland did not have input from learning
disability teams for assessments, and employed the services of an adult
disability social worker but they had made the inquiries throughout the United
Kingdom. Ms McE had spent the summer looking at these possibilities. In
considering this evidence and that of the other social workers I was
particularly conscious of the risks to which I have adverted at pages 11 and 12
of this judgment but I was fully satisfied that no stricter criteria had been
applied here than would have been the case for parents without a learning
disability. On the contrary I was convinced that this was a witness committed
to a team effort to find a solution for them if at all possible .
Ms LM
[11]
This is a senior worker in the Adoption and
Permanency Services with this Trust. She is in regular contact with the
Chairperson of the Joint Adoption Panels and she recalled a number of
conversations concerning a placement for G and A. It is the aim of the Trust to
place the two of them together if they are freed for adoption. In the course of
her evidence, the following matters emerged:
(1) There are
difficulties in placing these two children. The reasons are:
(a) G has delay in
her development and there is potential in the case of A.
(b) The birth
parents are opposed to adoption.
(c) G does require
to be constantly watched and she has no sense of danger or how she could hurt
herself or her sister.
(d) All couples
applying to adopt are made aware of the associated risks. There has been a
couple identified in this instance from a private agency and they have been made
fully aware of the difficulties. This couple have shown great interest in
adopting these two children and the Trust is convinced that they have
potential. They are already approved adopters.
(e) This witness
started working to find a placement for these two children after the
decision-maker from the Trust reaffirmed the decision to apply to the court in
order to free these children for adoption in September 2005. The original
decision had of course been taken in March 2005. Regular meetings had taken place
about the children and the process. Prior to October 2005 there were no
specific couples they had in mind but a vigorous search for such appropriate
couples commenced only in September 2005. There were no couples on the Trust
list who would meet the needs of these children and hence a private agency was
pursued. Already this couple have shown such interest that additional
information for them has been supplied from key people such as the general
practitioner, and the learning disability officers. They are also seeking out
training for such children.
(f) This witness
had experience of placing children over 20 years experience including those
with extra needs e.g. children suffering from foetal alcohol abuse and even
children where there were concerns but no positive diagnosis. In her experience
breakdown after placing such children is very small. She did recall breakdowns
occurring in one year but in that year one of the children was much older than
these children and had been subjected to serious sexual abuse and attachment
difficulties. It was her experience that adopters prepared to take on such
children were very committed and hence the breakdown was very small.
(g) In terms of
post adoption contact this couple would work towards such contact although at
the moment the parents are totally opposed to adoption. Hopefully the birth
parents would agree to take some counselling. Birth counselling still remains
available to them and indeed this witness has a worker in mind who could engage
them. Post adoption contact was hoped to be in the range of once/twice per year
on a direct basis provided the parents showed the ability to overcome their
opposition and promote the placement. Needless to say if they undermined or
sabotaged the placement that would be disastrous.
I found this a
very impressive witness and at the end of her evidence I was satisfied that it
was likely these children would be placed for adoption if I made the decision
to free them for adoption.
Ms J
[12]
This witness was a support worker for Mr X given
his learning disability. She described how despite seven years in a hospital
ward in Muckamore, he had made progress in terms of practical skills since
coming back into the community. He had made however less progress when
difficult situations had arisen which he had not encountered. Mr Edmondson, who
appeared on behalf of Mr and Mrs X with Mr Donaldson, took this witness through
T's progress from 1996 outlining a series of reports which had referred to his
gathering independence over the years. Problems had arisen when it was made
clear in November 2002 that the couple were considering having a child. The
witness said this was an issue of concern given the historical information
about how this couple coped with difficulties. They were told that they would
require a high level of support and that the probable outcome of them having a
child would be that a care order would be sought by the Trust. The couple were
very angry about this and their co-operation diminished even further with the
Trust social workers after this information had been communicated.
[13]
Dealing with the possibility of 24/7 support for
those with learning disabilities (both parents and children) this witness
indicated that she was unaware of any such facility being available. She did
refer to Prospects as an alternative and the discussions that took place with
Mr Bothwell from that project. When the matter had been raised with Mr
Bothwell he had thought that the difficulties of inappropriate accommodation
were surmountable though there would be more significant difficulties with
staff working with children and this couple. Prospects had experience of
providing assistance into the home for people with learning difficulties but
not with their children. Nonetheless at that stage when they spoke to Prospects
Mr Bothwell had been optimistic that they could look at the issue. She
described Prospects as a voluntary organisation with a Christian ethic who
provide services to people with learning difficulties. They provide support
services. A small house in a residential unit is the normal approach.
[14]
This witness gave evidence that Mr X has a
learning disability. He receives services because of this. However in October
2003 when this witness visited him he said that Mrs W had told him he did not
have a disability and did not need medication. It was clear to the witness that
T and P take a lot of advice from Mrs W and that she seriously impacted upon
their beliefs.
[15]
Turning to the period when T and P were with DRP,
the witness indicated that on 30 October 2005 they left this project because
they felt vulnerable about their safety. Part of the agreement of the tenancy
with the DRP was that they would accept support of the staff. They had in fact
refused offers of practical support in breach of the tenancy agreement. They
moved to the town nearby and agreed to accept help which was offered in the
form of a package set up by the Trust. When the package was not in place Mrs W
provided support. The move had been contrary to the advice of the Trust. The
couple entered the Prospects Project and enjoyed 21 hours of support. This was
in the form of emotional support and guidance and help with correspondence, and
emergency services. They declined support on financial matters though Mrs W
offered help in this area. The maximum they would accept was the 21 hours.
Initially they did have problems in this community largely due to a drinking
den nearby. Over three to four weeks there were three incidents when Mrs X was
assaulted by some other women. Prospects felt it was not safe for them to
remain. They were offered alternative property in another area nearby.
[16]
During the period with Prospects, the project
informed the Trust that there were difficulties supporting them because they
presented with budgeting difficulties. More recently the couple had said that
they had not enough money for food or credit on their mobile. Mr X had
difficulties about alcohol and he was at times aggressive and threatening to
staff. The witness recorded that this was a similar pattern in Peterborough
where after settling in they tended to push boundaries and were not as
receptive as at the start. It was her view that even if they accepted court
sanctions initially, they would keep coming back to court.
[17]
Turning to the topic of Peterborough, this
witness said that Peterborough had some experience with people with learning
difficulty but she did not get the impression that they had worked with people
like T and P. Both she and the senior social worker offered to help with a
skilled worker to speak to Ms Jinks at Peterborough but this was refused by Ms
Jinks.
[18]
In cross-examination the witness was challenged
as to the accuracy of notes arising out of the LAC of October 2004 when the
decision had been taken to change the care plan to one of permanence. I pause
to observe at this stage that I have no doubt that the notes of this LAC were
inadequate and on the witness's own admission did not contain all the salient
points arising therefrom. If parents are to be fully involved in the process of
decision-making, not only must their views be catered for, but notes of such
meetings must be carefully and comprehensively kept so that they can be
circulated to all parties. This is particularly so in the case of parents with
learning disabilities who may wish time to reflect on what is being said at
those meetings, and have it explained to them. This can only be done if the
notes are comprehensive. A meeting of the professionals involved in this process
had met on 19 August 2004. The parents had not been invited to this meeting. I
fully accept that there may well be occasions when the parents cannot be
brought to such meetings particularly when confidentiality may be of the
essence. Nonetheless it is important that in the aftermath of such meetings,
particularly where parents have not been invited to them, they are circulated
with an appropriately worded note or record. This did not happen in this case.
Ms B assured me that new procedures have now been invoked which would ensure
that better note-taking takes place at LACs and also that parties will be
circulated with appropriate notes from professional meetings from which parents
are from time to time excluded. She did assure me however, and I accept, that
the contents of the professional meeting were discussed at the LAC of October
2004 and therefore I am convinced that in this particular instance the parents
did not suffer any prejudice. Looking at the matter in the round, I am
satisfied that the Article 6 and Article 8 rights of the couple under the
Convention were protected by the comprehensive discussion on 6 October 2004.
[19]
It was suggested by Mr Edmondson on behalf of the
parents, that decisions had been made at the meeting of 19 August 2004 which
represented a fait accompli for the subsequent LAC of October 2004.
Particularly he drew attention to a note of the meeting of August 2004 which
recorded that there had been an agreement to the effect that if Prospect proved
to be suitable, then there would be twin tracking approach. If however Prospect
proved not appropriate, then the Trust would move onto adoption. I accept the
view expressed by the witness that this was simply an instance where the
possible options were being looked at and agreed but that no decision had been
taken one way or another. I watched this witness carefully during the course of
her cross-examination and I was satisfied that she was telling the truth about
this matter. Having read the LAC notes, it seemed to me that all matters were
on the table for discussion and that there was nothing that led me to believe
that the Trust had approached this LAC with a closed mind. Moreover this had to
been seen as part of the overall process. This Trust had taken very considerable
steps to look at the possibility of rehabilitation. Not only had the Trust set
up and financed a trip to Peterborough in order to assess this couple, (having
decided that the normal assessment centres in Northern Ireland at PACT and
Thorndale were insufficient), but thereafter they had spared no effort to seek
out a facility anywhere in the UK which would meet the needs of the couple and
their children. I am satisfied therefore that standing back and looking at the
process as whole, the Trust had involved this couple in the decision-making
process on a thorough and ongoing basis. It is against that background that I
believe completely the evidence of Ms B that no decision had been made when the
professionals had been together in August and that they still approached the
LAC of October 2004 intent on listening to the views of the parents.
[20]
In relation to the child A, Mr Edmondson elicited
from the witness that the procedure for dealing with children leading up to the
matter being referred to an adoption panel was as follows. First, a proposal
for adoption is mooted at a LAC review. Thereafter the matter is considered by
a permanency panel who would take steps to check out that all the planning for
the child was appropriate. Next the matter is referred to the adoption panel
for a recommendation. It emerged however that in the case of A, whilst there
had been an initial case conference before the child was born on 20 September
2004 (A was born on 13 November 2004), the matter had been considered by the permanency
panel on 25 November 2004 before a LAC was held on 10 December 2004. The
question therefore again arose as to whether or not the parents had been
involved in the decision-making process sufficiently with reference to A.
Nonetheless once again I think it is necessary to stand back and look at this
matter in the round and at the process overall. There already had been lengthy
discussions about both children and the steps that could be taken to obviate
the difficulties. Historical concerns had been comprehensively considered and
assessed and the Trust has formed a clear view, having spoken not only to these
parents but the maternal grandmother, that it simply was not feasible to
rehabilitate the couple with either child much less both of them. Consequently
it is my view that whilst it would most certainly have been procedurally proper
and preferable that the LAC review of 10 December 2004 should have
occurred before the permanency panel, it did not prejudice the opportunity
given to these parents to involve themselves in the process and put their views
forward.
[21]
Counsel also raised the failure to advert to
Article 8 of the European Convention of Human Rights and Fundamental Freedoms.
Ms B conceded that it had not been specifically mentioned by name but the
process had most certainly addressed the rights of each of these children and
the parents to a family life. It was her view that throughout the whole process
the rights of the child and of the whole family have been fully explored and
identified albeit not specifically mentioned by name. The process in this case
of course pre-dated the decision of the Court of Appeal in AR v Homefirst
Trust and I accept the account of the witness that processes have now been
changed.
Dr Donnelly
[22]
Dr Donnelly is a Clinical Psychologist whose area
of expertise is in family and childcare. She prepared a report on 31 July 2005
having been jointly instructed by the guardian ad litem and the solicitors on
behalf of the Trust. Her assessment was of the relationship between the parents
and each of the children, the nature, quality and level of attachment between
each parent and each of the children, identification of the children's
attachment needs, an opinion as to positive and negative factors in relation to
the contact that each of the children had with each parent and to identify the
nature and quality of the inter-sibling bond and relationship that existed
between the children. In addition she was to make an assessment as to the
appropriateness of adoption as opposed to other care arrangements in meeting
each of the children's needs. If the children were to be freed for adoption,
she was to comment on the issue of future direct/in-direct post adoption
contact. In the course of her report, her examination in chief and her
cross-examination, the following matters emerged:
(1) It was clear
that this is a witness who had many years experience with children and
families. I found her a measured and reflective witness who had clearly
invested a great deal of informed thought into this case. In short I found her
an extremely impressive witness.
(2) She had
observed lengthy contact visits between G and A and their parents on two
occasions, observed both children in their placement with foster carers and
undertaken an interview with both parents in their own home. She had also
reviewed validated literature from peer reviewed sources in respect of factors
which influence child development and parenting and particularly in identifying
those factors most likely to affect vulnerability or resilience in children.
(3) In looking at
fostering and adoption in childhood , she recognised that it is undisputed that
a sense of permanency is essential for the healthy development of a child. For
most children this will be with their immediate or extended family of origin
but for a minority of children who cannot be rehabilitated at home or placed
with relatives, their needs for permanency must be met elsewhere. This may be
necessary to protect the child and facilitate long term development. Long term
fostering is the preferred option in some cases, for example, where the child
is clear he does not wish to be adopted, the child is strongly attached to his
foster carers for whom a move would not be in their best interests, the child
has a high level of continuous family involvement such as a strong attachment
to a parent or sibling and frequent contact, where there is some hope of
eventual rehabilitation to the birth parent, where the child, especially an
older child, and his carers wish to get to know each other better or in the
case of an older child where there is a real risk of placement breakdown. On
the other hand there is extensive opinion, based on research findings, that a
child's permanency needs can be best met through adoption should family
placement fail and rehabilitation of the child to the family of origin not be
viable. It has been identified that adoption:
(a) Provides a
permanent and secure arrangement outside public care.
(b) Facilitates
life-long commitment to the child as few adoptions break down.
(c) Is the most
"normal" circumstance outside the family of origin and reduces the
child's sense of difference.
(d) Has
significantly lower rates of maladjustment than those in long term foster care.
Moreover in
adulthood, adopted children have a stronger sense of self worth and function
more adequately at the personal, social and economic level than those fostered.
It was Dr Donnelly's view that in the absence of
rehabilitation to
the family, adoption was the best solution for the long term care of these
children. It would offer stability, security, life long commitment and the most
normal circumstance outside the family of origin for these children. Such a
lifelong commitment would be essential for a child with special needs such as
G. Her conclusion was strengthened by the fact that ,based on her view of
contact, she considered that G had a negligible attachment to either her mother
or her father and that A had not yet established any primary attachments.
(4) The witness
emphasised that Mr and Mrs X had many good points. These included:
(a) That they had
made a significant achievement in extricating themselves from the institution
at Muckamore and had been motivated to make progress thereafter. She
acknowledged that many of the contact sessions with the children had gone very
well having read the contact note.
(b) They were
learning and were making efforts to improve.
(c) They were
respectful of her when interviewing them. They appeared to like her.
(5) On the other
hand Dr Donnelly made it clear that she felt that the couple had been
respectful to her and liked her because she was asking their views. It was
clear to her than when the role changed ie when others were offering advice or
acting authoritatively, then there was a complete change in attitude.
(6) Dr Donnelly's
view was that these parents placed much more emphasis on the needs of G who was
the older and more difficult of the children. On three occasions during the first
contact session both parents had walked out of the room for different reasons
(getting food, going to the toilet, leaving out nappies, running after G, going
outside for a smoke break) leaving A unattended lying on the floor. When G's
behaviour was most active both parents were noted to attempt to work with her
and A was left sitting or lying by herself. This was but one illustration of Dr
Donnelly's conclusion that whilst this couple did not deliberately ignore A
they were at times so consumed by G's behaviour, which was certainly more
difficult, that they were unaware of what was happening with A. Dr Donnelly saw
this as an example of this couple being able to focus on one thing only and
failing to recognise that the other child requires attention. She concluded
that this couple are alert to dangers that they know about, but what profoundly
concerned her was that they are not pro-active. Whilst they are able to learn
from experience of what has happened to them, they are not able to think or act
ahead. Herein lies the real danger to the children in her opinion. In analysing
this evidence I reminded myself of the literature to which I have referred to
at pages 9-14 of this judgment but I was satisfied that this witness was
applying the appropriate criteria to this couple
(7) It was her
view that since G has clearly developmental delay, she is not only harder to
handle but requires active supervision to avoid danger to her or to the
environment. She agreed with the conclusions of SC, that G will undoubtedly
become even more challenging as she gets older. Dr Donnelly reported that
in her view with an older child with special needs, such as G, there would
likely be difficulties in managing the behaviour on an ongoing basis. In a
three hour contact period it was difficult for Mr and Mrs X to sustain safe
levels of attention. She made the obvious comment that these contact sessions
are hugely artificial and that the usual tasks of family living such as
cleaning, cooking, washing, shopping etc are absent which all have to be
managed in parallel with childcare demands. It was her view that Mr and
Mrs X could not carry out such parental responsibilities safely in the full
time care of their daughters however well motivated they might be.
(8) The records
available from social work contact and the family care unit in Peterborough
together with her own conclusions led Dr Donnelly to believe that Mr and Mrs X
would find it very difficult to accept advice on an ongoing basis particularly
as they see themselves as best placed to understand their daughters' needs.
This is more likely to increase the couple's stress levels to which they have
previously shown vulnerability. For the children, while they remain very young,
any attempt to provide 24 hour support would undoubtedly act to protect their
interests as long as they were not exposed to the conflict between their
parents and social support workers. However as they grow older these
relationships might be confusing and potentially undermine their confidence in
their parent's ability to care for them. It was Dr Donnelly's view in terms
that Mr and Mrs X would not accept the necessary level of support in any event.
(9) The witness
conceded that she would have recommended the Trust to at least test out the
couple with one child in June 2004 in the community. However with hindsight,
now that the children are older, it has become obvious that G has developmental
delay (which was not known in June 2004) and that there is an additional child
namely A, she believed that the "tipping point" has now arrived and
in her opinion they should not be given any further opportunity to be tested in
the community. She indicated that if she even felt there was a 25% chance of
success it would be worthwhile but it was not her view that that was the case.
[23]
In cross-examination when questioned about the
report from Peterborough of Ms Jinks, Dr Donnelly recorded that it was
concerning to her that despite the many observations and concerns expressed in
the progress reports from the family care unit at Peterborough, these did not
appear to be reflected in the final recommendations to the court. In particular
she pointed to the relevance of their observations from group work, one to one
work and from their supervision of childcare tasks where they had identified
difficulties for Mr and Mrs X accepting advice or interference in their lives
and their desire for independence. Her conclusion was that once all the threats
about the need for changed behaviour had been removed and the staff focus
relaxed, then the needs of this couple would prioritise themselves alongside a
renewed disengagement with staff. Dr Donnelly felt that this was inconsistent
with an expectation that Mr and Mrs X would accept the intrusion of 24 hour
support on a sustained basis as was recommended in the final report from the
family care unit at Peterborough. Whilst not criticising Ms Jinks, the witness
did make the point that she was not a learning disability professional and
often those who are not experienced in this area over-react to high motivation
.
Dr Roy Bailie
[24]
Dr Bailie is a Chartered Clinical Psychologist
and Child and Adolescent Forensic Psychologist. He has been in professional
practice for over 20 years.
[25]
I pause at this stage to comment that Dr Bailie
gave his evidence by way of live television link from a court in Milton Keynes.
Not only did this facilitate Dr Bailie, and enabled us to afford him a specific
window of opportunity to give evidence without having to travel to Northern
Ireland, but it saved a great deal of expense on the public purse and worked
extremely efficiency. I strongly encourage the use of live television link in
such circumstances and use of this method of giving evidence should become more
regular in the family proceedings courts.
[26]
In the course of a report dated 9 June 2004, his
examination in chief and cross-examination the following matters emerged:
(1) Dr Bailie had
been instructed by DRP to prepare a clinical psychology report on Mr and Mrs X.
He interviewed them at Marcus House which was at the family centre in
Peterborough.
(2) Although Mr X
asserted to Dr Bailie that he does not have a learning disability, tests on Mr
X reveals that he had an overall full scale IQ of 63. This places him in the
extremely low range of cognitive functioning when compared with his age group.
An estimated 99% of the general population would score higher on this index of
IQ. He has therefore a significant, consistent and extensive set of impairments
in his cognitive functioning. In particular he would have marked difficulties
in verbal and non-verbal reasoning and in prioritising and comprehending what
others say and mean. It was Dr Bailie's view that these intrinsic cognitive
difficulties present great difficulties if he was parenting on his own. Two
illustrations suffice. Ms Jinks, Case Work Manager to the family in the unit,
informed Dr Bailie that T was often pre-occupied with talking about violence,
and watches violent films and videos. Dr Bailie saw an instance of this when, during
the interview, he had commenced to swing G back and forth vigorously making
machine gun noises as he did saying G was "an M16" gun. He did not
appreciate that she should not be swung in this manner. He had to be asked to
give the child back by his wife. This incident left Dr Bailie questioning T's
awareness of G's safety needs and his role in protecting her. Secondly, Ms
Jinks told Dr Bailie that she had doubts about T's abilities. As an
example, she told him of one occasion when T had to be shown how to use a
thermometer to test for the safe temperature of the water, as he did not know
hold to tell it from using his elbow or hands. After T used the thermometer he
apparently got the idea of how to use it. However he thought and believed that
because the temperature of the water was now at a safe level, since he used the
thermometer, any future bath water would be at a safe temperature for G. This
difficulty is clearly compounded by the fact that T asserted that he did not
have a learning disability and did not consider he required help from the
services of the learning disability team.
(3) Mrs X had an
overall IQ score of 64. This score places here in the extremely low range of
cognitive functioning when compared with her age group. An estimated 99% of the
general population would score higher on this index of IQ. The main observation
made about this was that her results show she had a significant, consistent and
extensive set of impairments in her cognitive functioning. In particular she
would have marked difficulties in verbal and non-verbal reasoning, prioritising
and comprehending what others say and mean. Dr Bailie said that her parenting
difficulties would be compounded if her husband did not support her and she had
to do the majority of tasks herself.
(4) Dr Bailie
emphasised that at the time he prepared his report, the couple had only one
child, and he was unaware that that child had a learning disability.
(5) The results of
the psychological testing showed quite clearly to Dr Bailie that Mrs and Mrs X
would both be likely to need assistance in the parenting of G and any other
children they parent, both as infants and as they grow and develop and as their
emotional and cognitive needs become more complex. He went on to add in his
report:
"There
is also the possibility that, even though Mr and Mrs X are devoted and
loving parents, which I consider them to be, they run a small risk of
'unwitting neglect', of G, as they would for any other child they might
parent."
(6) Dr Bailie
dilated to a great extent on these comments in the course of his evidence. In
this context he made the following points:
(a) Whilst he
accepted that these parents could learn, they could not deal with
"figuring out" or anticipating new problems in the future. If
situations are replicated to that which they have been shown in the past, they
could handle the matter, but if a new situation arises, then the problems are
manifest. A real issue here is lack of insight. He emphasised that at times parents
have to think ahead rather than simply remember an experience that has happened
in the past. He illustrated this by saying that if they were in a restaurant,
they could well both go up to the counter to get food leaving a child alone
with hot liquid. He agreed with the examples given by Dr Donnelly of where they
could be so consumed with G, that they could leave the other child dangerously
unattended. A modelling approach on lessons given, could not possibly come up
with all the possible risks that occur in daily living. This is where the real
danger would lie.
(b) The fact that
they do care for the children sadly does not imply that they have sufficient
ability to provide the level of care required. Children make more cognitive
demands than they are able to meet. It was his view that there was a
significant risk of there being situations likely to arise where they could not
"figure out" the dangers. These concerns are strengthened by the fact
that G has a learning difficulty and that there are two children now involved.
It was his view that in the case of Mr and Mrs X, their background mental
history made the possibility of depression occurring with the extra demands. He
summarised this situation in para. 12.7 of his report by stating:
"However,
in my opinion, they would be inclined to fail in their ability to problem-solve
and assist their children in solving problems of everyday living for
themselves."
(c) Turing to the
question of practical assistance to help them to be considered "good
enough parents" he was unaware of any facility which could provide in
these circumstances 24 /7 assistance. He considered they would need
circumstances parallel to another family living with them whose purpose would
be to assist Mr and Mrs X. Over the last 20 years, he was unaware of any such
facility in England, Wales or Northern Ireland. Help from extended families can
at times help to provide solutions, but it was clear in this case that Mrs X's
mother was not available on a 24 /7 basis and there was no other extended
family to assist. Relying on professional help alone therefore makes the matter
much more difficult.
(d) Even if such
24 /7 help was available, it would need sustained compliance by Mr and Mrs X.
(e) Further, the
practicality of providing 24 /7 assistance had serious implications for
ordinary family life. Children must form an identify like other children and
with a large number of people running the household this would present great
difficulty and confusion.
(f) Dr Bailie
concluded that he agreed with Dr Donnelly that in the long terms difficulties
would also increase. He therefore adopted the view of Dr Donnelly that these
parents could not carry out tasks safely for these children.
[27]
I find Dr Bailie to be a very impressive witness
who had taken great care in the preparation of his report and evidence before
the court. He was clearly very troubled by the prospect of Mr and Mrs X caring
for these children and I was satisfied that he had taken everything into
account that could be said in their favour recognising the limitations under
which they have to live out their lives. His concerns about the safety of these
children have made3 a very material impact on my judgment when coupled with the
views of Dr Donnelly. As in the case of Dr Donnelly I considered the risks set
out in the literature previously mentioned in this judgment but I was satisfied
that this witness was not comparing this couple to the "perfect
couple" but was appropriately aware of the dangers they present to these
children .
Sandra Jinks
[28]
Ms Jinks was the Family Care Social Worker with
Peterborough Diocese Family Care known as Family Care. Family Care is a
voluntary organisation which provides self-contained accommodation at Marcus
House in Peterborough for young families with babies and toddlers or children
up to the age of 5 years who are at risk of neglect or abuse. Each flat is
equipped with internal telephone to enable residents and staff to liaise
speedily. Experienced staff train the residents in general parenting and
general life skills together with observing their abilities within these areas.
Each resident is expected to care for their own children with help, support and
advice from staff when needed.
[29]
The Trust in this case had contacted Peterborough
to consider engaging in an assessment of T and P. The witness indicated that an
effort is made to try and make it as close as possible to living in the
community. There is constant supervision initially but they hope to withdraw
that as time goes on. There is a 12 week assessment plan initially with full
supervision, then partial supervision and eventually hopefully minimal
supervision. The plan is to have a period of testing in the community with
intensive package of support to see if they can maintain the level of
parenting. The 12 week course is the usual length. "We usually make a
conclusion as to whether they can work with help in the community or if there
is no chance of this." She had come to Northern Ireland for a preliminary
meeting with T and P and having met them she felt that they could benefit from
this period in Peterborough. She was optimistic she could do something for
them. She had known about their previous history and felt they had done
remarkably well since coming out of the mental institution at Muckamore. She
described them as having "baggage from the past" and their aim was to
help.
[30]
The first review period was up until April 2004
having commenced on 8 March 2004. It concluded that in the main T and P
attended to the task of feeding G well and they were generally responsive to
G's needs. They were regarded as warm and loving parents with a close and
supportive relationship. They did note that P found it difficult at times
particularly if she did not agree or felt she had been criticised but after
having a bit of space to consider she usually re-engaged with staff and tried
hard to understand the topics which she generally did. T was also sensitive to
criticism but showed he could work his way through this with a sense of humour at
times. A number of problems had surfaced. T was going out with other residents
rather than working with staff at time when such work was planned and arranged.
On some evenings the parents' socialising with other residents became more
important than G's routine. T ceased taking his medication. They did not give
anything to G except her milk. It was felt necessary for P to focus more on G
when carrying out a childcare task and not to try to talk to the staff about
other issues. T's drinking and socialising with other residents became a
problem. They were a bit hit and miss in the weaning process. During this
period an incident did occur when the parents felt that G had a high
temperature. Staff discussed the matter and examined the child and felt there
was no need for her to go to hospital. The parents were advised to remove her
clothing and wash her down with a cool flannel. Both parents refused to follow
the staff's advice insisting there was something seriously wrong with G. Mr X
became verbally aggressive with the staff waving his arms around, saying
"It's our baby and we'll do what we think is right for her." The duty
officer had to be called to speak to both parents individually giving similar
advice to staff, again the advice being refused. They asked to leave Marcus
House demanding a taxi to go to the hospital. Staff advised that accident and
emergency department on a Saturday night at the hospital would not be a good
environment for G and insisted they went to a walk-in centre. The parents
finally agreed. Having seen a doctor there, he gave the same advice as staff.
It was subsequently explained to them that if this sort of incident happened
again then serious discussions would have to take place with social services
about the termination of the placement. In this context the witness indicated
that one of the themes of their stay is that they interpret advice as a
criticism. I note at this stage that this is a concern which has been raised by
the adult disability social worker with whom they work amongst others.
[31]
The next report from Ms Jinks was for the
assessment period April 2004 to 10 June 2004. This report had been made three
weeks after the assessment period had ended. This report evidenced in the main
good child care and focus with the parents working better with the staff. A
review meeting was held on 6 May 2004 when it was agreed that it was now time
to stand back slightly and assess Mr and Mrs X from a distance to see whether
both parents were able to keep G to her routine while simultaneously organising
and being in charge of their own activities and day. An extension of two weeks
was agreed to the finishing date of 24 May 2004 as it was felt that more time
would be needed to help Mr and Mrs X consolidate and absorb any new concerns that
might arise as a result of the new plan. There had been problems including T
having too much to drink and a concern that P needed to put G's needs before
her own by staying in the flat and caring for her. Once the extension was
given, the parents initially demonstrated a commitment to this plan and showed
their ability to follow it. However their own needs to go out into town daily
for increasing periods of time became the priority. The parents were taking G's
feeds out with them but occasional solid meals appear to have been missed. Both
parents were generally keeping to bathing G every other night but this was
getting later and later fitting in around their return from town. If T had a
drink then he would go to bed leaving P to care for G including carrying a
heavy bath. On other occasions P left him under the influence of alcohol caring
for G so that she could socialise. Staff's attempt to remind P and T of the
need to keep G to her routine were often met with hostility particularly from
T. The report stated at para. 8.36:
"(P)
showed she was skilful at manipulating staff's support and twisting around
different staff comments to suit themselves and to explain their actions.
Mr
and Mrs X were particularly angry and confrontational when Mr X was questioned
as to how much he had to drink on 15 May 2004 and whether he was capable of
caring for G. Both said they had G's best interest at heart but in fact neither
had, only staff.
Mr
X continued to stay in bed some mornings and would ignore both Mrs X's and staff
requests to get up and care for G and or help Mrs X. This was particularly
concerning considering Mrs X's pregnancy and ill health. The invasion of G's
space and the rough handling of G in the creche on 24 May 2004 by Mrs X
was something that staff had not witnessed from Mrs X before or since.
Mr
and Mrs X demonstrated their ability to behave in a deceptive and elusive way
as evidenced in many of the recordings and observations within the report dated
28 May 2004. Mr and Mrs X insisted that the DRP were totally responsible for
the fact that they had been telephoning them requesting more money. The more
DRP gave them the more they spent and then the more they demanded against
stressing to DRP that it would affect their assessment if they were seen to be out
of money.
This
situation became apparent to Family Care only after all supervision and
restrictions had been removed. This demonstrated that when left to their own
devices and if money was not a barrier, Mr and Mrs X would revert to the style
of behaviour and lifestyle, G would have to fit in around this, possibly
including staying up through the night and then sleeping through the morning,
going out in town, spending beyond their budget and visiting the pub/beer
gardens, park etc, throughout the afternoon and evening. Eating out,
socialising and spending money being the focus for each day.
The
only thing that could stop this spiral was the threat of losing G and Mrs X's
mother coming to the review meeting. This is a pattern that has presented
itself on various occasions throughout the assessment which must suggest that
neither parent has internalised G's need for stability, continuity, consistency
of care and a good childcare outline.
Family
Care were unaware that the DRP were 'topping up' Mr and Mrs X's weekly income
and had been to the value of £500 since the family arrived
"
[32]
As a result of this situation, Family Care
recommended starting the assessment again for consideration to be given to the
family remaining for the duration of Mrs X's pregnancy and until after the
birth of their baby. It was felt that Family Care would then be in a good
position to support and assess Mr and Mrs X in their parenting skills with two
children. This witness stressed that at the time that their reports had been
made, only one child was available and they were unaware that G suffers from a
learning disability. It was the witness's evidence that at a professional
meeting with Mr McConville, the Service Manger form the Trust and Ms McE,
G's, Social Worker, and Ms J, Mr X's adult Social Worker and staff from the
Family Care Unit in Peterborough, Mr McConville informed them that there were
court proceedings at that time (these were being heard by Mr Magill RM at the
Family proceedings court) and that the court was dealing with one child at a
time and so would not deal with both G and the new baby. Mr McConville had
informed Ms Jinks that the two week extension would not be increased and that
the court now needed some indication about assessment. Family Care informed the
meeting that in their opinion Mr and Mrs X could not consistently meet G's
needs without a high level of support that would need to be in place for the
foreseeable future.
[33]
The precise circumstances in which the assessment
thereafter terminated was somewhat confused. The evidence of Ms Jinks was that
events occurred on 7, 8, and 9 June 2004 which led to G's removal on 10 June
2004. This arose because in the early hours of 7 June 2004 Mr and Mrs X
considered that G was very hot. Staff gave various advices to her to cool the
child down eg take some of her clothes off and sponge her down but staff
recorded that they did not feel that either parent understood why certain
things required to be done with the child. The note of the incident records that
staff felt that if they had not been there G would have been taken to hospital
as both parents' anxieties were very high. The following day, after both
parents claimed they had been up all night, P rang staff to stay that T was in
bed and would not get up to help her with the child. Further advice was given
to P by staff to ensure the child was kept cool during this very hot period of
weather. The parents insisted however in the afternoon of 8 July of taking the
child to a doctor. Staff advised them to take plenty of water for the child and
to be careful about milk which would soon become unfit to drink in the heat.
They disappeared with the child for the rest of the day without making contact
with the centre. In the later evening Mrs W rang to inform them that the family
were at a hospital. When they did return in the evening, they again called
staff in the early hours of the morning when G was awake and fretful. The
parents were clearly very confused about what advice they had received from the
hospital and they were argumentative over the issue of medication being
dispensed despite staff assuring them on the matter. Clearly the parents were
stressed because staff were not totally agreeing with them over the child's
condition and medication requirements. Arguments continued that day with P
again refusing to accept staff advice. As a result of these incidents and
concerns Family Care informed social services and the family that they would
now be put back onto full supervision and only go out with an escort while the
situation and assessment could be considered. After due consideration and
discussions at senior levels, Family Care informed social services thereafter
that Mr and Mrs X's assessment would now be concluded and for arrangements to
be made in the planned way for the family to return to Northern Ireland. The
reason for this decision at that stage was that in Family Care's opinion they
now had enough advice from all of the assessment areas to be able to make
informed conclusions and recommendations. Arrangements were then made for the
return to Northern Ireland.
[34]
Ms Jinks gave evidence that it was her view at
that stage that they had not done "that much wrong" and at that time
she felt that the degree of supervision could be reviewed as time went on.
[35]
She had contacted the guardian ad litem on 21
June 2005 indicating that she felt it was now time to take the next step ie
testing in the community. With the benefit of hindsight at that stage she informed
the guardian ad litem that she thought the situation had not been as negative
as she had perceived at the time. Although the situation had presented a
picture of concern, in the cold light of day she felt that Mr and Mrs X had not
done much wrong . She thought at that stage that it was unfair to call it a
breakdown of the placement. She thought that essentially Family Care had done
as much as they could for Mr and Mrs X and that they had brought the placement
to an end as it needed to be tested in the community. In her view at that stage
if the parents were going to fail in the community it would soon be known. The
placement should be as normal as possible she felt with increasing contact
gradually, testing it out and building it up. At that stage she compared the
needs of Mr and Mrs X to physically disabled parents. She felt that Mr and Mrs
X did learn quickly and the issue with them was to reinforce the learning so
that it was maintained.
[36]
In evidence before me however, whilst reiterating,
that she did feel they could have been tested in the community with support, it
was now her view that the new information before her the learning disability
of G and the birth of the new child had caused the risk to go up considerably
and she did not believe that they should now be tested in the community. She
was also unaware of the psychological assessments that had taken place. It was
now her view that Mr and Mrs X would not be able to work with professionals and
with the two children.
[37]
In cross-examination by Ms McGrenera on behalf of
the guardian ad litem, her attention was drawn to the contents of Dr Baillie's
and Dr Donnelly's report as to the various frailties in the parental makeup.
She concluded that in her opinion whilst 24 hour full time supervision would be
laudable, she felt it was unachievable because in her experience such a
provision simply did not exist. She agreed with Dr Donnelly's conclusion that
these parents simply could not carry out parental responsibilities with full time
care of their children. She also accepted the conclusion of Dr Bailie that they
would fail in their ability to problem solve and have difficulty in taking on
new information especially with G in the new circumstances where this child had
no appreciation of danger.
[38]
I believe that Ms Jinks was a sincere and genuine
witness who was doing her best in the circumstances. I consider that she
genuinely did believe that with the information at hand in June 2004 testing
this couple in the community was a real option. Equally so, I consider that
once she was armed with the up to date information which she had not in her
possession at the time, her view has now changed. She is clearly of the view
that the risk had gone up considerably in her own words and that testing of
this couple in the community is no longer an option in view of the continuing
concerns voiced by such experts as Dr Bailie and Ms Donnelly.
SC
[39]
This witness was a social worker with the Trust
and in particular was an approved social worker under the Mental Health
(Northern Ireland) Order 1986. He had been employed as a social worker in the
learning disability programme since April 1996. He had been assigned to Mrs X
for ten years. He described how the Trust has a grading system depending on the
degree of care required. The highest grade was A which required daily or weekly
contact and a high degree of complexity and risk. P was regarded as being in
category A. There had been a complex liaison of support from social workers. He
described her own vulnerabilities which had been set out earlier in this
judgment. In terms she has a severe mental handicap. His report of September
2004 outlined in detail her previous history. He referred to the previous child
which she had given birth to in January 1993 who had been made a ward of court,
placed with foster parents and subsequently adopted. He highlighted also her
vulnerability in the community and illustrated this, for example, with
incidents in April 2002 when a male member of staff then providing services for
her had sexually abused her when she and T were living at DRP. That member of
staff had been suspended and subsequently dismissed. Moreover when living there
she had been assaulted by neighbours living in the opposite flat. Police intervention
had been required. This witness also accepted a number of strengths which she
had. Over the previous tea years he had seen his role as advising and
supporting her. He praised the efforts that she had successfully made to
reintegrate herself and her husband after their discharge from Muckamore
Hospital. He recorded how she took pride in keeping her house clean and tidy
and had substantial self-help skills. It was largely emotive support that she
received from him. She had shown determination to obtain gold medals in the
special Olympics and also some NVQ's. She had trained 3-4 hours per day daily
for the swimming Olympics. That revealed to him commitment, dedication and
consistency. However he recognised that if she likes the advice that she is given
she will follow it but if she does not like it then there is a real problem.
Relationships with social services had clearly deteriorated after November 2002
when concerns had been raised about their decision to have a baby. He described
the wheels of co-operation really falling off and how the couple looked
negatively at the working relationship. However that lack of co-operation was
also present in his view when working with the employees of the DRP. When Mr
and Mrs X had returned to Northern Ireland on 12 June 2004 after discharge from
Peterborough initially they were pleased to be back and were co-operative with
the staff from DRP. Staff noted however that they did not appear to have
realistic expectations for the future and were again, in my view characteristically
unhappy when advised that DRP project could not provide the intensive support
that would be required if G were to be returned to their care. A lack of
engagement according to the witness with structured support became quickly
apparent. They both declined to attend any form of day care. Practical support
was also rejected albeit they did avail of emotional support on a regular
basis. Relationships with staff in DRP deteriorated rapidly once Mr X was
advised not to visit a bungalow also supported by staff from DRP. This advice
was offered in an attempt to safeguard Mr X from placing himself in a situation
where he would be open to allegations should he continue to visit a vulnerable
female tenant in the bungalow without staff being present. Both Mr and Mrs X
continued to visit the bungalow in spite of the advice. On 25 June 2004, when
the witness had contacted Mrs X on her mobile phone in an attempt to re-arrange
a visit which she had not attended, she became very agitated and clearly stated
she did not wish for any further social work contact. Relationships with DRP
continued to deteriorate. Mr X became increasingly abusive and threatening to
staff. A decision was taken on 22 July 2004 to again suspend support services
and provide only weekly contact at the project's office. A care management
review was held on 29 July 2004 when Mr and Mrs X were asked to consider their
support needs which were offered at 25 hours support per week with two members
of staff. This was conditional upon their being able to accept such support
without further abusive or threatening behaviour. Mr and Mrs X met with the
general manager of DRP and the local management on 30 July 2004 but again
declined the offer of structured support. It had been explained to Mr and Mrs X
that their continued refusal of structured support could jeopardise their
placement in their flat. Following the rejection of support the general manager
again advised them verbally and in writing that they were in breach of their
agreement with DRP and their placement may have to be terminated. On 7
September 2004, they again continued to decline planned and structured support.
This resistance to advice, guidance and support sadly is a theme coursing
throughout the entire evidence in this case and I accept entirely the concerns
expressed by this witness. At times both parties can be very focused upon their
own needs and wishes which can lead to conflict and dispute with others. Where
there is conflict or disagreement P does not always deal with this appropriately.
She can quickly become extremely defensive, evasive, tearful or abusive and
threatening . The witness indicated that at times this can occur over a
sustained period and, if supported by Mr X or others, can prove to be very
difficult to resolve.
[40]
It was disappointing to hear this witness relate
that since 2003, P's mother whilst acting as a powerful advocate on behalf of
her daughter, has demonstrated an inability at times to understand her
daughter's limitations. She has stated she does not believe her daughter has a
learning disability and has rejected explanations in relation to Mrs X's lack
of insight into risky situations or relationships as being part of her learning
disability. Mr and Mrs X of course deny that they have a learning disability
which can create very real difficulties.
[41]
An illustration of the difficulties which arise
as a result of their refusal to accept this position (encouraged by Mrs W)
according to the witness arose when Mr and Mrs X were moved from the supported
project with DRP to being supported by Prospects in another town. At that stage
Mr and Mrs X had requested they be moved from their flat with DRP on the
grounds that they no longer felt comfortable living in that town and their
working relationships with staff in DRP were so difficult they no longer wished
to be supported by them. Despite repeated requests at that stage, Mr and Mrs X
would not allow social work reports to be submitted to the Housing Executive in
support of their housing application for a change of venue. Later in the
process they allowed a letter with only basic information to be submitted by Ms
J in August 2005. This lack of clarity within the Housing Executive did not
allow them to take into account Mr and Mrs X's vulnerabilities when offering
accommodation in the new town. Similarly, as both social workers were not able
to liaise with the Housing Executive due to the limitations imposed on their
involvement by Mr and Mrs X, an opportunity was lost which may have identified
potential difficulties with a flat opposite and allowed consideration of the
appropriateness of a move there. In the event a number of untoward incidents
occurred placing the couple in conflict with members of the local community. I
accepted the evidence of this witness in this regard and it illustrated to me
the danger that arises as a result of the intransigence of Mr and Mrs X
and their abject refusal to accept advice. It also illustrates their lack of
insight into the dangers that arise in community living. This witness
summarised the weaknesses exhibited by Mr and Mrs X as follows:
(a) Mrs X is
unaware of her own capabilities.
(b) She is
resistant to advice when it is not to her liking.
(c) She is very
focused on her own needs leading to conflict with others.
(d) She has great
difficulty with resolving conflict situations.
[42]
Turning to the Peterborough experience and
report, this witness made a number of points:
(a) Family Care in
Peterborough had not been prepared to accept his offer of information sharing.
(b) He felt that
Peterborough had perhaps failed to recognise that although Mr and Mrs X
initially tried their best to work and co-operate, over time, there is always
an escalating lack of co-operation and they become concerned about the
intrusion on their privacy. It was his view that their rejection of that level
of intrusion which was necessary leads to a level of expressed emotion and
conflict which is not good for children to witness. The degree of supervision
which this couple require in his view, the real difficulty as experienced by
Family Care in relation to Mr and Mrs X's failure to act upon advice and work
with staff echoes the large body of historical evidence of breakdown in working
relationships and failure to accept advice, support and guidance evident with
social workers and DRP.
(c) It was his
view that Peterborough failed to recognise that not only is there a problem
with the willingness of Mr and Mrs X to work with staff and act on advice, but
this reflects a significant loss in autonomy and privacy which they reject and
which has been evident throughout their period since discharge from Muckamore.
This evidence is a failure to prioritise G's needs above their own. Their great
desire to live independently in his view asking a great deal of them given this
background.
The witness
indicated that it was disappointing and in his view a significant oversight in
the process of information gathering for assessment that family care in
Peterborough had not accepted the offer of the background information on Mr and
Mrs X including that coming from DRP and social workers from adult services.
This would have enabled staff in Peterborough to gain a better cultural
understanding together with a better knowledge of the particular issues
involved in direct work with Mr and Mrs X.
[43]
This witness gave his evidence in an
unostentatious manner and struck me as a caring balanced care who had the best
interests of Mrs X at heart but who sadly felt constrained and duty bound to
draw her frailties to the attention of the court. I was satisfied that his
evidence was the product of independent thought and carefully considered.
Ms McE
[44]
This witness was a social worker with the Trust.
Both she and Ms B did have a background and some specific experience of working
with adults with learning disabilities and children's services. Essentially her
role was a key worker and case coordinator to the family. In the context of the
allegations made in this case it is also significant that she has a Masters Degree
in Equal Opportunities. I share the view of the Guardian ad Litem that such a
level of expertise in this witness would, in her experience, be rare in the
social work practice context in Northern Ireland. As a member of the family,
child and care team, she combined with the learning disability staff to discuss
the circumstances of Mr and Mrs X prior to the couple attempting to conceive
.Thereafter she was part of the family child and care team which managed this
case through multidisciplinary meetings such as core group meetings, child
protection case conferences and LAC reviews in order to provide services and
support for the couple and their baby in the community. Her evidence was
interrupted during its course for a period of a month (as was that of Mr Bothwell
the next witness) because I directed that further inquiries be made into the
possibility of 24 hour support on a 7 day week basis being afforded to this
couple. I regarded it as extremely important that the courts should have at its
disposal all possible evidence touching upon the provision of such services
here in Northern Ireland and in particular as would be available even in
England for this couple.
[45]
In the course of this witness's evidence in chief
and cross-examination the following matters emerged:
(1) Her evidence
touched on the LACs concerning G, A and the adoption panel recommendations
concerning A to which I have already adverted during the course of my analysis
of the evidence of Ms J found at pages 17-19 of this judgment. Her evidence
added nothing to the criticisms of the system that I found had then operated
within this Trust but did not change the overall view that I formed as to the
lack of prejudice to P and T of any potential breach of their Article 8 rights
under the Convention.
(2) This witness
emphasised the search that had gone on by this Trust for services that could be
provided 24 /7.
(3) She was
closely cross-examined as to correspondence passing between the Trust and Mr
Bothwell, the Locality Manager of Prospects. In view of my conclusion which I
shall advert to later in this judgment that Prospects could not realistically
have supported in 2004, and could not now support, this couple with two
children in view of the learning disabilities, the issues raised xxx certain of
their potency. However insofar as they may be relevant to the attitude of the
Trust in September 2004 to the potential for this couple being accommodated in
the community I shall touch upon the issues. It is clear that the Trust was
communicating with Prospects as to the possibilities of support being offered
to this family. A letter of 16 September 2004 from Mr Bothwell to this witness
was couched in the following terms:
"Further
to our telephone conversation previously this week I can confirm that on the
basis of information I have read so far there is nothing that has changed my
opinion that Prospects would not be able to support this family assuming that
appropriate staff can be recruited.
An
initial budget suggests that £879 per (adult) person would be required ie a
total weekly expenditure of £1,758. This cost to Social Services would be
reduced if supporting people's monies were received; also the budget reflects
24 hour support (includes sleep in staff) which may be reduced if the couple were
given some independence."
On that letter,
penned in handwriting, and dated 4 January 2006, was a further note from Mr
Bothwell which recorded as follows:
"Maria,
the thrust of what I was saying was that Prospects could, given the right
structures and resources, support this family based on the info I had. It was
in late 2005 that we began to support this couple* we would have issues and
concerns around supporting T and P now; to support the couple and
children would require a fresh review now.
Trust
this is helpful.
*
- Max of 21 hours per week budgeted".
[46]
Ms McE was closely cross-examined as to why she
had contacted Mr Bothwell in the wake of this hearing on 4 January 2006. I
watched her carefully during her cross-examination on this matter and I was
satisfied with her explanation that she had simply wanted to clarify what he
had meant. She had telephoned him on 4 January 2006 to ascertain this. Mr
Bothwell's evidence was that he was asked to remove the word "not"
and whilst Ms McE did not accept this, I am satisfied that whether this
happened or not was of no moment in the context of this case because I was
completely satisfied that she was simply trying to clarify the thrust of what
he had said.
[47]
On 11 October 2004 Mr Bothwell had again written
to Ms McE couched in the following terms:
"Following
our telephone conversation this morning I would like to clarify Prospects'
position re the X family.
In
order to support this family suitable housing would have to be identified and
appropriate staffing put in place. Whilst the former probably should not pose
major problems the latter would be more difficult as there would be concerns
about our ability to recruit, not just numbers, but also appropriately skilled
staff. To be able to commence to deliver a quality service to this family would
probably involve a period of months from now and there are no guarantees of
success vis a vis recruitment.
If
you and others feel that it would still be appropriate to support this family
in the knowledge of the above then please do contact me or if you wish to
provide support for T and P on their own, then again, please contact me."
[48]
It was the witness's evidence that before the
letter of 11 October 2004 arrived, a LAC meeting had taken place and the
decision was taken to change G's care plan to permanency via adoption.
[49]
This witness was cross-examined as to the
circumstances in which the couple had moved location from under the aegis of
DRP. There clearly had been problems with neighbours and allegations of abuse
of alcohol against these parents. Those matters in the reports that refer to
rumours, I dismissed entirely from my consideration. However it was clear that
there was a high level of conflict with the staff team in DRP and sadly I came
to the conclusion that the disputes with the staff were characteristic of the
inability of this couple to take advice, seeing advice as amounting to
criticism.
[50]
This witness, in cross-examination by Ms McGrenera
adumbrated the following concerns about 24 hour/7 day service:
(a) Whilst
initially there might be cooperation, she was satisfied that as it went on
these parents would find it increasingly difficult to tolerate that intrusion
and conflict with staff teams would clearly deteriorate to a point where it
would be no longer sustainable.
(b) These problems
would all be exacerbated if the grandmother withdrew assistance.
(c) There would be
a turnover of staff required to meet their needs in order to safeguard the
interests of these children and these parents could not cope with such staff.
(d) The Trust were
satisfied that there was simply no facility available to keep this family
together as a unit given the degree of extra services required.
(e) The witness
readily accepted the efforts this couple had made. They had been discharged
from Muckamore, had lived in the community, P had achieved gold medals for her
determination in industry and swimming, they had cooperated with Dr Bailie and
to some degree with Prospects. However she countered these points by pointing
out that though there might be periods of good cooperation, they fairly quickly
degenerated into conflict.
(f) This witness
was cross-examined closely about her knowledge of the research on persons with
learning disability. She was clearly not acquainted with these research
documents to any great degree, had not referred to them in her report and was
somewhat critical of the Booth report on the basis that she felt that Professor
Booth highlighted issues but did not provide specific solutions. Without being
unduly critical of Ms McE, I did feel at times that she did reflect the Baring
foundation concern that staff in services whose primary focus was not learning
difficulties may not fully understand the impact of having learning
difficulties on individual parent's lives. It is important that Trusts dealing
with parents with learning disabilities, make certain that those who are
dealing intimately with them, whilst not experts on learning disability, do have
at least a passing acquaintance with the main literature as it has developed.
Any defect in this regard however was in my view completely balanced by the
unstinting efforts made by this Trust to find appropriate accommodation for
this couple and I am satisfied that the complete lack of facilities available
or services at hand dilutes any problem caused by a lack of close awareness of
the literature in the case of this witness. In particular she had spoken to
Professor Booth who had told her that nothing was available 24/7 in his
opinion. She had also contacted the disability parents network as to the
availability of domiciliary services which clearly do not have the extent of
provision for those with learning disability that presently exist in England. In
particular this witness was closely cross-examined about the availability of 24
hour care for those with physical disability and I considered that there was
strength in her reply that in those cases there would be cooperation with those
providing the assistance whereas in this case there was a track record of lack
of cooperation, an inability to absorb advice, and a clear danger of conflict
in the presence of the children with the number of staff required coming and
going.
[51]
I conclude my assessment of this witness by
recording that whilst I consider that this Trust should review its training
policies in regard to parents with learning disabilities in line with my
suggestions at pages 9-14 of this judgment , this witness faced trenchant
cross-examination with fortitude . I was completely satisfied that she was not
only honest but sincere in all the efforts that she made to meet what was for
her a very difficult situation in dealing with these parents suffering from
learning disability to the extent that is apparent in this case. I do not
believe that she approached the matter with a closed mind as evidenced by the
extensive and wide-ranging efforts that were made to find
accommodation/facilities that would be able to provide the necessary services for
this couple.
Mr Bothwell
[52]
This witness is now the Assistant Director for
Prospects. This organisation provides support for adults with learning
disability internationally and throughout the UK. It ranges from services on a
24 hour/7 day per week basis to the kind of package support provided for this
couple. The 24 hour service would involve care around the clock unless they
were able to go to a day centre. They have a number of schemes where staff
sleep in or stay awake during the night or alternatively where somebody is
provided close by. This couple received their support. Prospects provided
staffing to go in to provide support them although they can do their own
cooking, washing, cleaning etc. The role of Prospects is to provide support in terms
of finance/housing/daytime care/budgeting/support and advice. A maximum of 21
hours per week funded by the Trust was available but only 13 is what Prospect
deliver because this is as much as this couple feel is needed.
[53]
He went on to add that if they were required to
provide support for the whole family including the children they would have to
do something completely different from what they do now. In other words they
would require skilled staff or qualified social working staff as opposed to
what they currently provide which is unskilled staff. He referred to the
exchange of correspondence to which I have already adverted in the evidence of
Ms McE and he found nothing sinister whatsoever about the telephone call which
had resulted in the memo written on the letter in January 2006.
[54]
Dealing with this couple, he sympathised with the
difficulty that they had in moving house. He recalled one occasion where they
had proved uncooperative with staff.
[55]
He was satisfied that Ms McE had been trying to
see if a package could be put together for this family. Originally Prospects
had indicated that they could do the whole package ie recruit and take on
childcare people as well as provide their own unskilled help for the adults.
However he made it absolutely clear that their position is now changed, and
that they could not commit to do that now. Their assistance is not provided
when children are involved. The maximum staffing they could provide would be 21
hours full-time. Dealing with his earlier correspondence of 11 October 2004, he
made it clear that he was saying that in theory it might work but it posed a
challenge which they had never faced before. At this point in his evidence he
referred to certain instances in Bridgewater in Somerset and Burnham on Sea
where there were a group of people with learning difficulties which he felt
might have 24 hour/7 day per week care.
[56]
At this point in his evidence I felt that he was
so unclear about what other provisions are provided in the rest of England that
I adjourned the matter in order for a fuller exploration to be made as to what
services Prospect provided elsewhere in the United Kingdom. It seemed logical
to me that if the kind of services required by this couple were provided in
England then there was little reason why they could not be provided in Northern
Ireland. Accordingly I adjourned his evidence so that further inquiries could
be made by himself, the other parties and indeed by the Guardian ad Litem
Agency.
[57]
When he returned some weeks later, he dealt with
two situations which had been earlier mentioned namely at Bridgewater and at
Burnham-on-Sea. It was quite clear that these two circumstances were different
from the present case. In the situation in Bridgewater, a mother of 30 with a
cognitive impairment with a boy of 6 with a learning disability lives in a two
bedroom self-contained flat. The mother has 20 hours support per week. Staff is
allocated to her. Prospects support her to be a parent and relate closely with
dedicated child support workers. There is in England a 24 hour family and
childcare facility for the mother to telephone and draw on for assistance in
England which does not exist in Northern Ireland. In the Burnham-on-Sea
example, the mother is 23 with a learning disability but the child involved is
above average intelligence. They live in self-contained flat. 30 hours staff
provision is at hand. This is a short-term arrangement and the child had
already started to parent the mother. The problem was however that the boy
started to bond with the Prospect carers and accordingly he is now going
forward for adoption. This contrasted with the situation in Bridgewater where
the mother was able to keep ahead of the child.
[58]
Mr Bothwell said there was clearly a difference
between these circumstances and the situation with P and T and the overall
situation in Northern Ireland. In particular he assumed that there was
cooperation from the parents in both the instances he described. He recorded
that whilst there were 25 staff with Prospects in Northern Ireland, two of them
have social work training. No one has childcare training.
[59]
I was satisfied that this witness had been unable
to provide facilities for the 24 hour care that would be necessary in this case
with a full team of adult workers for the parents and childcare workers for G
with her learning disability. I was also satisfied that there was no precedent
for such cover anywhere else in the United Kingdom.
P
[60]
In the course of a statement she had made for the
purpose of this hearing, her examination-in-chief in cross-examination the
following matters emerged in my view:
(i) This woman's
learning disability was evident throughout the course of her evidence. I
recognise that this mother has positive qualities and I could not fail to be
impressed by the manner in which she described how she had overcome a number of
difficulties in her life. I am satisfied that she is a loving mother who would
not wilfully cause any harm or distress to her children if she could avoid it.
She has a strong commitment to the children within her own limitations. She has
never, and would never, do anything deliberately to harm them.
(ii) Sadly however
the doubts I had harboured about her capacity to prevent harm being caused to
these children mounted as her evidence unfolded. She had no option but to admit
that she had had serious disagreements and problems with those who had
attempted to help her during the course of her life with the children. She
admitted not getting on well with the DRP staff, with the general practitioner
Dr Small, with the health visitor, and with social services in general. She
admitted failing to co-operate with social services because she did not trust
them particularly after she had been told that her children would be removed.
Although she indicated that her desire to have the children back would lead to
her co-operating with socials services in the future (and my attention was
drawn to the written undertaking she had given in this matter) I was left
bereft of any evidence whatsoever that this was likely to happen. Indeed her
description of the incident with the social worker W K, scarcely ten days after
the undertaking had been signed, where she had shouted at this young woman who
was clearly unwell and suffering from a migraine, made it clear to me that the
undertaking had not registered with any real significance. Her only answer was
that she was doing it for a bit of "craic". The same pattern emerged
when asked to explain why she had not stayed in hospital ten days after G was
born. Again the characteristic objection to authority or advice emerged despite
the evident risk to the child in leaving early from hospital.
(iii) She had no
answer or explanation for a number of concerning incidents that were put to
her. These included her denial that T had ever been drinking in Peterborough, ,
that T only exhibited the violence depicted on the videos when he was on his
own despite again clear evidence to the contrary, and that she had ever gone
off socialising and left G in the care of T when he had drink taken. A further
illustration of this was her denial of the incident of 9 December 2003 when
night staff at DRP had entered the couples flat at 1.00 am and found P and T
asleep on their two separate settees. P had G cradled in her arms. During the
evening Mr and Mrs X phoned to say they had to buy G food and were leaving the
flat. However Christine McClean from DRP observed them with G in a public house
approximately 30 minutes later. T sat at the bar with what appeared to be a
pint of beer with a pram and his wife beside. When contacted by telephone and
asked to return to the flat due to the inappropriateness of having G in a smoky
bar, T denied drinking and P stated that she had "only went in to use the
toilet". Later that day, when staff from DRP had persuaded the couple to
see a GP about the concerns of the child's poor feeding, T had been verbally
threatening to DRP staff on the way home stating he would report them and
contact a solicitor. These matters were put to the witness and it was clear to
me that she still did not see the serious import of them. Her response was that
Christine McClean was picking on the two of them and that it was the staff who
started the arguments. Similarly when confronted with her refusal to fix a time
to meet the health visitor, she said it was only a joke. The same pattern
emerged when she was questioned about the problems in Peterborough. She
justified T's failure to assist her and his persistent remaining in bed on the
basis that he had not been taking his medication notwithstanding the clear
evidence before me in court from Dr Curran's report that this had nothing to do
with his behaviour. It was another example of a failure to have insight into
the problems that confront them.
(iv) I was also
satisfied from her answers that Ms McC had clearly discussed with her the
question of the permanency panel and the prospect of adoption of A both before
and after the birth of this child. It had also been discussed at the first
court hearing shortly after A's birth when she had a lawyer representing her. I
got the clear impression that this woman did not genuinely believe that the
thrust of what the Trust had in mind for A had been kept from her and on a
number of occasions she indicated that she simply wasn't taking everything in
that was said to her.
[61]
In conclusion therefore I was left with a clear
impression that Dr Donnelly and Dr Bailie were completely correct in
opining that this couple simply do not have insight in dangers that would arise
for either or both of these children and that they have still a very clear
inbuilt rejection of and antagonisms to social services rendering advice to
them. I looked carefully for any sign of sincere change in attitude which would
herald a new start but sadly I could find none.
T
[62]
T also had made a statement in this case, gave
evidence and was cross-examined. It was clear from his evidence that the IQ
assessed by Dr Bailie played a very prominent feature in his life. Despite the
wealth of evidence of his excessive drinking at Peterborough and on other
occasions, he insisted that he never drank more than one or two pints of beer.
He was also adamant that he loved the children and I believed him when he said
this. Sadly however the capacity to care for these children was self-evidently
not there. He did admit that when he was in Peterborough he sometimes worked
with the services there and sometimes he did not. He argued that it would be different
if the children were returned to him but I saw no indication that would lead me
to conclude this was a realistic prospect. The problem that had been caused 10
days after the undertaking given to this court with the social workers et al
were yet further examples of where, even after a solemn undertaking had been
given to the court, he and his wife were simply unable to bring themselves to
co-operate. Sensitively, counsel did not take very much time cross-examining
this man, but his presence in the witness box albeit for a short time was
sufficient to underline the preliminary conclusions I had formed to the effect
that this man's capacity to look after these children is materially lacking.
Guardian ad
litem Ms Sheeran
[63]
The guardian ad litem had been appointed on 6
January 2004 and, having been unavailable due to illness for a period, had been
re-appointed on 17 January 2005. Her reports of 19 January 2004 and 19 December
2005 were before me. In addition, dealing with the issue of Prospects and Mr
Bothwell, she had made a further report of 16 March 2006 (with a preliminary
draft of 15 March 2006).
[64]
In the course of her reports, her examination in
chief and her cross-examination the following matters emerged:
(i) The guardian
recommended that the court grant the care orders and thereafter grant an order
freeing both children for adoption.
Contact
(ii) In terms of
contact post a freeing order and subsequently an adoption order, it was her
view that direct contact needed to be considered in the context of whether the
parents were in a position to support any placement. That decision about
contact should therefore be in her view a considered response. The adoptive
parents attitudes was also an important variable. It was her view that direct
contact 2/3 times per year was a reasonable aim but it would depend on the
ability of the birth parents to engage with counselling to promote the
placement. In her view it was too soon to make a judgment call on this matter.
She agreed that it was essential to select adopters who favoured post adoption
contact whilst at the same time recognising that too much contact was
de-stablishing for adopters.
The
respondents' undertaking to effect change
(iii) In the light
of the written undertaking given to the court, the guardian ad litem had met
with the respondents on 15 February 2006. It was still the guardian ad litem's
view that whilst initially they might be co-operative, she was not optimistic
that they could sustain this co-operation to ensure the emotional stability and
wellbeing of the children. It was her view that the learning disabilities, the
problems with cognitive functions, and the intellectual deficits all combined
with the personal histories to prevent them having developed the skills to co-operate
which are so necessary for the future welfare of the children.
The
consequences of the court refusing a freeing order
(iv) It was the
guardian's view that the result of this would be that the children would remain
in the care system (G already having been in the care system for two years and
A for one year). She had concerns whether in such circumstances a placement
could be found for both. In her view an adoptive placement for the children
together would be easier to find than fostering placements. In other words it
might not be possible to get long term foster placements together. The notion
of splitting the children was very unpalatable. They had never been apart and
they have a good relationship together. G is more significant to A than the
other way around. She fully endorsed Dr Donnelly's view that the children
should be placed together.
Further
opportunity to reassess the parents
(v) It was the
witness's view that the opportunity for reassessment should only be
countenanced if there was evidence of a clear change demonstrated in the
attitudes of this couple. It was her opinion that was not the situation.
Bringing the children back with the couple for reassessment would also result
in disruption of their current situation and further protraction of the case
which was not in their interests. It was her view that if there was further
breakdown, these children could not deal with such a situation and would be
emotionally damaged. Stability was now very important for them. Delay was not
in their interests.
The guardian ad
litem's experience
(vi) This guardian
said that she had 3 experiences of mothers with learning disability and
children. In the first case the placement had failed because of lack of support
for the mother. The second child had been cared for as a joint enterprise
between mother and grandmother but that had also broken down. In the third case
the child had lived independently with the mother and that had broken down with
very difficult consequences for the child. I pause to observe however that
courts should be slow to place too much reliance on the past histories of
parents with learning disability suffering difficulties with placements of
their children. Time has moved on and I believe that the system, including
social services and the courts, must be more receptive wherever possible to the
possibility of parents with learning difficulties maintaining their children
with them with appropriate care and help. Each case must stand on its own and I
therefore paid little attention to the history outlined by the guardian ad
litem of previous experiences. The guardian ad litem did draw my attention to
the review of mental health and learning disabilities in the document referred
to at paragraph 5(a) this judgment . Chapter 6 of that report dealing with
accommodation recorded that less than 3 percent of people with a learning
disability live with parties or spouse. The highest percentage live in a
nursing home. The review recognises that parenting is a growth area but did not
appear to set out many recommendations of how this is to dealt with. In terms
there are three sentences referring to parenting. Whilst I welcome references
to this report, I view it in the context of the gathering awareness of the
needs of parents with disability and an increasingly enlightened attitude
towards them.
The guardian's
meetings with Ms Jinks from Peterborough
(vii) The guardian
was in regular contact with Ms Jinks at Peterborough and received review
reports. Subsequent to the termination of the placement, she had a conversation
with Ms Jinks on 21 June 2005. It was Ms Jinks view that the respondent couple
should commence with 24/7 support which should be reviewed as time went on and
might be reduced as matters improved. At that stage however she was unaware
that G was herself suffering from learning disability. Ms Jinks had expressed a
view to her that matters were a little better than the couple had been given
credit for. The guardian cautioned however that it is easy for a person such as
Ms Jinks to identify with this couple and with hindsight one year later to say
things had "not been so bad". The cost of this exercise had been
£2,300 per week and therefore there was an expectation on the part of Ms Jinks
that the exercise would have been worth it. Whilst Ms Jinks had said it was
unfair to call the ending of the assessment a breakdown, it was the guardian's
clear view that this had occurred. This witness had been to Peterborough in
April 2004 and had seen the couple there. She had formed a clear opinion that
there were difficulties about lack of co-operation and that the couple had
rejected advice, been argumentative and had difficulties with childcare
routines. She recognised that coming from their background it was difficult for
them to re-adjust to institution life again. She recognised that Ms Jinks was
upbeat about how they had performed, and had thought that the centre having
done as much as it could, they should now be tested in the community. The
witness emphasised that she felt that because Ms Jinks had become close to the
couple, she had put the matter in more generous terms than was justified. The
guardian emphasised that whilst the couple had made progress, she shared the
view of Dr Bailie that there was a small but significant risk of unwitting
neglect occurring. G had been parented almost entirely by the system and no
harm had come to her. The difficulties for the couple and those who had tried
to help them have become a pattern and it was the witness's view that conflict
was likely to occur. Although Ms Jinks had indicated that it should be tested
in the community, she was unaware of any placement where there could be support
24 hours per day 7 days per week for both parents and children.
Discussions
with Mr Bothwell of Prospect
(viii) The witness
indicated that she had also read the correspondence from Mr Bothwell and had
the same concerns as Ms McEvoy about the ambiguity of its terms. When the
witness had spoken to Mr Bothwell on 31 May 2005, it did not appear to her to
be a pragmatic possibility for the couple and the children to be cared for by
Prospect. Mr Bothwell had expressed concern about the couple's ability to
sustain the assistance given. Subsequent to my adjourning the case on 24
February 2006 for further consideration of what was available to support the
parents with a learning disability from Prospect in England and Northern
Ireland, the guardian attended a meeting jointly with the Trust and Ms Roberts
a senior employee from Prospect in England. She discussed with Ms Roberts
two cases in England where Prospect had supported parents with a learning
disability. Ms Roberts had indicated that these two incidents were pragmatic
responses to emergency situations. They involved mothers with a mild learning
disability both of whom were co-operate and keen to receive support. In neither
case was 24 hour supervision provided nor was there any sharing of parental
responsibility for the child. One of the two children involved did not have a
learning disability and this placement broke down in distressing circumstances.
The other placement is still ongoing. It was the view of Ms Roberts that 24
hour help lines are essential ingredients. In England these are available with
Prospect's own national and local on-call service, helpline involving the
community learning disability team, childcare duty system, health visitor, 24
hours helpline and GP and national health service direct. An effective
multi-disciplinary team was also essential in her opinion as are experienced
immature learning disability staff trained in child protection. Ms Roberts had
indicated that whilst she would not rule out categorically ever supporting
another parent with a learning disability, she did not foresee a situation
where she would make a considered decision to set such a placement up. She
advised the complexity of the work meant that the level of commitment required
from staff was significant particularly from an organisation whose primary
focus is the adult. Mr Bothwell also confirmed the two cases that existed with
Prospect in England were emergency situations, that this was not a service that
Prospect's envisages developing and indeed he said that it was forbidden by
their constitution to become involved with children. Their future priorities
were likely to be resettlement, supported housing and the development of
respite care services for family carers. Prospect would also provide services
to Mr and Mrs X as individuals with a learning disability. In order to
protect their staff and avoid confusion over roles and responsibilities
Prospect staff would not be permitted to be in Mr and Mrs X's home whilst the
children were present. The witness then went on to make contact with Ms Groats,
the Operational Director of Prospects in England. She emphasised that Prospects
is an organisation for adults with a learning disability whose constitution
forbids them becoming involved with children. The organisation has no interest
in becoming involved in this area of work. Neither staff nor management have
experience, skills or qualifications to work with children. Ms Groats endorsed
the position of Mr Bothwell that learning disability staff would only be there
when the children were not.
[65]
The guardian ad litem had also consulted further
with the Trust. In relation to developing its own service on its own premises
the Trust were concerned that an approach to the Board would be required to
secure funding for staff team and premises. Likely costings had not been
detailed or their timescales indicated and it was the view of the person to
whom she spoke that this could take up to 18 months at a conservative estimate.
The Trust estimated that such an arrangement would require at least 182 hours
that is five full time staff and additional temporary cover if they were to provide
24/7 care for the children. The Trust had significant concerns in relation to
recruitment and retention of suitably qualified and experienced staff. In
particular such a level of support would depend on the couple's ability to
co-operate with services. Mr and Mrs X had been inconsistent in co-operating in
the past and they construe advice as criticism. It was felt by the Trust that
this level of help would be intrusive to the parents by impinging on issues of
privacy, choice, independence and self determination with the potential to
undermine their parenting role. The fact of the matter is that such a project
would mean the children being retained in the public are system with their
parents supported by multiple carers in a changing staff group. It was the view
of the Trust that this would lead to a lack of stability in the children's
lives, be detrimental to health attachments and impact on their long term
emotional wellbeing.
[66]
The guardian had then discussed the matter with
Mr and Mrs X. Mrs X had indicated that she wished to be able to use her
benefits to employ workers who would come into the house. This conscientious
guardian ad litem then spoke to a range of individuals in relation to the
possibility of direct payments. She contacted the Council for Independent
Living and ascertained that essential direct payments are a way for people with
disabilities (including learning disability and mental health issues) to access
monies the Trust would have spent on their support needs and to use the money
to buy in their own services. Having discussed the matter with SC (previous
witness) he had advised that to date neither of the potential funding Trusts
for Mr and Mrs X had been approached to provide this service nor, in his
experience, had it been provided to other like parents. He was concerned that
the 24 hour/7 day per week recommendation was a care need of the children and
as much to do with supervision as support. He did not think that direct
payments were ever formulated to deal with this aspect. In any event he felt
that the provision of 24 hour 7 day per week qualified learning disability and
social service staff would be extremely to find let alone fund. The witness
then spoke to Ms Birch, the Team Manager of Plymouth City Council Learning Disability,
Parenting Supporting Team, who confirmed they had previously considered the use
of direct payments but had focused on two difficulties. First , the
difficulties of recruiting and retaining workers training in learning
disability, child development and child protection she thought this was the
greatest challenge to be faced in this area of work particularly when the need
is assessed as being long term. Secondly, although equally importantly, she was
concerned about the potential position of staff employed by parents in this
arrangement. They would be in the family home as employees of the parents but
also have to carry out a monitoring and child protection role. In the view of
Ms Birch this shifted the dynamics of the relationship and was likely to impact
on the safety and wellbeing of the children. Ms Birch had advised that her team
are only able to offer a maximum of two hours twice weekly. She thought the
provision of 24 hour/7 day per week care for the children of learning disabled
parents was an impossible task and akin to institutional care. She said that
she had previous experience of putting two nannies into a family for six months
and stated she would not repeat this strategy as in her opinion it had
seriously undermined the child's attachment.
[67]
The guardian summed up her approach by making
three points:
(i) In her view
the recommendation to provide 24 hour/7 day per week long term support service
from staff qualified in both learning disability and child protection is
unachievable. The issues of staff recruitment and retention appear to be
endemic to the social work profession at this point in time and these
difficulties are exasperated by the dual training/experience requirement that
was stipulated by the family care in Peterborough and endorsed in expert
evidence. Such difficulties are like to lead to high staff turnover with
significant implications for the children's sense of stability and security and
thus jeopardise their ability to form health relationships that are the basis
of long term emotional development and wellbeing.
(ii) Mr and Mrs X
reject the need for parenting support and remain resistant to any perceived
interference in their lives or desire for independence. They do not appear to
have the capacity to enhance and sustain their ability to co-operate and work
with support services.
(iii) There are
concerns in relation to the impact of 24 hour/7 day care for these children.
The impact may be likened to being retained and raised within the public care
system. Multiple carers and a changing staff group would be supporting their
parents. This could lead to a lack of stability and security in the children's
lives and be detrimental through their ability to form healthy attachments with
all that means for their long term emotional wellbeing.
[68]
This witness distinguished between help for
people with physical disabilities and Mr and Mrs X. Those with physical
disabilities are able to co-operate, develop an emotional relationship with the
children and understand what is happening. In any event the idea of support
parenting for those with a physical disability is in its infancy and no
research yet has been entered into the long term arrangements for the children.
[69]
This witness was challenged by Mr Donaldson as to
an apparent discrepancy between her preliminary report of 15 March 2006 and her
report of 16 March. The early report had recorded her saying:
"However
if Mr and Mrs X were able to work co-operatively, openly and honestly with
social work staff, appropriate supports and monitoring arrangements could have
been put in place, the possibility of success would be enhanced if the need for
this level of support could be seen to diminish over time."
In her subsequent
report she said this did not appear in her final report and she indicated that
her final report was a product of her further consideration and final
conclusions. Her earlier statement had been set in a context were she did not
want to make recommendations about learning difficulties in general. She had
been commenting about the inadequacy of current piece-meal provision of
services and the need for a strategic vision to deliver high qualify effective
services in general terms to meet the needs of the growing numbers of children
whose parents have learning disabilities.
[70]
In the particular circumstances of Mr and Mrs X,
they had been provided with a version of 24 hour supervision with DRP and this
had clearly not worked. It was the witness's view that co-operation was a core
issue in this case and it clearly is not forthcoming in the case of Mr and Mrs
X. The witness was challenged over her statement that "this is one of the
most difficult cases I have had" and that "It was a finely balanced
decision." However she was adamant that she was clear in her
recommendation that these children should be taken into care and that a freeing
order should be made. Indeed subsequent to the written submissions in this case
having been put forward, the guardian ad litem caused me to reconvene an oral
hearing because she felt that the submissions from the respondents had
misinterpreted what she had said and she wished to make it abundantly clear
that her recommendation was unequivocal and firm.
[71]
I believe that this guardian ad litem has acted
extremely conscientiously throughout this case and her report is the product of
a great deal of industry and considerable thought. She has self-evidently
wrestled with the problems in this case and I am convinced that her
recommendation to this court is not only unequivocal but has been produced
after much angst over the plight of this couple and their children.
Conclusions
[72]
(i) I remind myself of what I said in Re T
(Freeing Without Consent: Refusal to Dispense with Agreement Over the Parent
NIFAM 6 (unreported, 11 February 2004):
"I
commence my deliberations on this issue by recognising the draconian nature of
the legislation which is now being invoked by the Trust. It is difficult to
imagine any piece of legislation potentially more invasive than that which
enables a court to break irrevocably the bond between parent and child and to
take steps irretrievably inconsistent with the aim of re-uniting natural parent
and child."
(ii) I recognise
that the mutual enjoyment by parent and child of each other's company
constitutes a fundamental element of family life and that domestic measures
hindering such an enjoyment amount to a interference with the right to such
protection by Article 8 of the European Convention of Human Rights and
Fundamental Freedoms ("the Convention"). I also recognise that taking
a child into care should normally be regarded as a temporary measure to be
discontinued as soon as circumstances permit and that any measures of
implementation of temporary care should be consistent with the ultimate aim of
re-uniting the natural parent and the child wherever possible.(see R v Finland
(App No 34141/96) ECHR).
(iii) I have
derived great assistance from three recent cases in the Court of Appeal in
Northern Ireland namely AR v Homefirst Community Trust [2005] NICA 8, Homefirst Community Health
and Social Services Trust and SN [2005] NICA 14, and Down Lisburn Health
and Social Services Trust and H and R (unreported, 22 November 2005). In AR
v Homefirst Community Trust Kerr LCJ stated in the course of the judgment
of the court:
"It
is unsurprising that research into the subject discloses that it is desirable
that permanent arrangements should be made for a child as soon as possible.
Uncertainty as to his future, even for a very young child, can be deeply
unsettling. Changes to daily routine will have an impact on a child's need to
feel secure as to who his carers are. It is not difficult to imagine how
disturbing it must be for a child to be taken from a caring environment and
placed with someone who is unfamiliar to him. It is therefore entirely proper
that this factor should have weighed heavily with the Trust and with the judge
in deciding what was best for J. But, as we have said, this factor must not be
isolated from other matters but should be taken into account in this difficult
decision. It is important also to recognise that the long term welfare of a
child can be affected by the knowledge that he is being taken from his natural
parents even if he discovers that this was against their will.
So,
while there may be many cases in which prompt decisions as to the placement of
children are warranted, this is not inevitably or invariably the best course
we consider that in the present case there were sound reasons to postpone the
decision as to where J should ultimately be placed. As the judge rightly
observed, it might be many years before Mrs R could finally demonstrate that
she had completely overcome her problems with alcohol and lack of insight but
it does not inevitably follow that no delay in deciding what should become of J
was warranted. There was already cause for optimism and with close supervision
of it at least distinctly possible that Mrs R would have been able to care for
her son
although a decision I J's future that would have allowed permanent
arrangements to be made was desirable. This did not, in our opinion, outweigh
the need to give Mrs R the chance to prove herself. Taking into account 'the
imperative demands' of the Convention in relation to her Article 8 rights, the
need to have matters settled for J should not have been allowed to predominate
to the extent that the mother's Convention rights could be disregarded."
At para. 90 the
LCJ continued:
"In
all the great volume of written material generated by the Trust in this case we
have been unable to find a single reference to Article 8. If the Trust had
addressed the issue of Mrs R's Convention rights (as certainly should have been
done) there would surely have been some mention of this in the papers. We are
driven to the conclusion that the Trust did not consider the question of the
appellant's Article 8 rights at any stage.
For the reasons that we have
already given, we have concluded that the appellant's Article 8 rights were
infringed. The Trust procedures were therefore not efficacious to protect her Convention
rights. Quite apart from the consideration, however, we consider that it is a
virtually impossible task to ensure protection of these rights without explicit
recognition that these rights were engaged. Where a decision maker has failed
to recognise that the Convention rights of those affected by the decision taken
are engaged, it will be difficult to establish that there has not been an
infringement of those rights. As this court recently said in Re Jennifer
Connor's Application [2004] NICA 45, such cases will be confined
to those where no outcome other than the course decided upon could be
contemplated."
[73]
Equally so, I recognise that Yousef v The Netherlands
[2003] 1 FLR 210 at 221, para. 73, the ECtHR stated:
"The
court reiterates that in judicial decisions were the rights under Article 8 (of
the European Convention) of parents and those of a child are at stake, the
child's rights must be the paramount consideration. If any balancing of
interest is necessary, the interest of the child must prevail."
[74]
Moreover, the decision in AR, has to be
considered in light of the recent House of Lords decision in R (On the
Application of Begum (by her litigation friend, Rahman) v Head Teacher and The
Governor of Denbight High School [2006] UKHL 15. In that case the issue was
whether a child, Shebina Begum, had been excluded from her school in breach of
Article 9 of the European Convention (ie the right to manifest her religion or
beliefs) because she had been refused permission to wear a long coat like
garment known as a jilhab. Overturning the decision of the Court of Appeal
which had upheld her right, the House of Lords considered that the approach of
that court was mistaken procedurally. The Court of Appeal had set down a
procedure that should have been adopted by the school in approaching the
decision-making process in order to afford due respect to the interests
safeguarded to the individual by Article 9 of the Convention. Lord Bingham of
Cornhill in Begum said at paragraph 29:
"The
focus at Strasbourg is not and never has been on whether a challenged decision
or action is a product of a defective decision-making process, but on whether,
in the case under consideration, the applicant's Convention rights have been
violated. In considering the exercise of discretion by a national authority,
the court may consider whether the applicant had a fair opportunity to put her
case and challenge an adverse decision
. . But the House has been referred to
no case in which the Strasbourg Court has found a violation of Convention
Rights on the strength of failure by a national authority to follow the sort of
reasoning process laid down by the Court of Appeal. This pragmatic approach is
fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is
acting in a way which is incompatible with the Convention Right, not relying on
a defective process of reasoning, and action may be brought under section 7(1)
only by a person who is a victim of an unlawful act".
At paragraph 31
Lord Bingham went on to say:
"I consider
that the Court of Appeal's approach would introduce a. 'a new formalism' and b.
'a recipe for judicialisation on an unprecedented scale'. The Court of Appeal
decision-making prescription will be admirable guidance to a lower court or legal
tribunal, but cannot be required of a Head Teacher and Governors, even with a
solicitor to help them. If, in such a case, it appears that such a body has
conscientiously paid attention to all human rights considerations, no doubt the
challenger's task will be harder. But what matters in any case is the practical
outcome, not the quality of the decision-making process that has led to
it".
[75]
Lord Hoffmann picked up the same theme when at
paragraph 68 he said:
"But
Article 9 is concerned with substance, not procedure. It confers no right to
have a decision made in any particular way. What matters is the result. Was the
right to manifest a religious belief restricted in a way which is not justified
under Article 9.2? The fact that the decision maker is allowed an area of
judgment in opposing requirements which may have the effect of restricting the
right does not entitle a court to say that a justifiable and proportionate
restriction should be struck down because the decision maker does not approach
the question in a structured way in which a judgment might have done. Head
Teachers and Governors cannot be expected to make such decisions with text
books on Human Rights law at their elbows. The most that can be said is that
the way in which the school approached the problem may help to persuade a judge
that its answers fell within the area of judgment accorded to it by law".
[76]
I therefore venture to suggest that the court
should not be too prescriptive as to the manner in which Article 8 Rights are
considered but rather the emphasis should be on whether or not, looking at the
process as a whole, the Article 8 Rights have been sufficiently addressed and
protected.
[77]
I refer again to the matters which I have set out
at pages 9 to 14 of this judgment concerning the approach of the court to
parents with learning disabilities. I have revisited these concerns several
times during my consideration of this case .
[78]
The making of a Care Order involves a two-stage
process. First, I must consider whether or not the criteria for making a Care
Order ("the threshold criteria") have been satisfied. In my view
there is a likelihood of both of these children suffering significant harm if
they remain in the care of their parents for the following reasons:
(i) I accept
entirely the evidence of Dr Donnelly and Dr Bailie which is to the effect that
there is a significant risk of unwitting neglect occurring to both of these
children because of their lack of insight into the dangers that exist for them.
They simply do not have the ability to think ahead rather than simply remember
an experience that has happened in the past. I found the illustrations given by
both these experts of dangers that could lie in the wake of these children to
be positively chilling. They are not alert to the dangers that exist in the
home and elsewhere for two such young children. They are unable to anticipate
the risks that lie in the wake of young children.
(ii) I believe
that in light of the dangers mentioned above, the learning disability evident
with G and the need for A's long-term welfare, it would be necessary to provide
services on a 24 hour basis, 7 days per week for this couple and their
children. I do not believe that support of any lesser degree could provide
sufficient protection for the dangers to these children. I have been persuaded
by the wealth of evidence in this matter, and the numerous attempts made by the
Trust to investigate the possibility of such provision, that it is not possible
in the Northern Ireland context to provide such support for this couple and
their children . The support necessary, therefore, to afford the necessary
protection for these children is manifestly not available.
(iii) Even if the
support to this degree was available, I am satisfied that Mr and Mrs X would
not co-operate or comply to the degree necessary. I share entirely the view of
the Guardian ad Litem that Mr and Mrs X reject the need for parenting support
and remain resistant to any perceived interference in their lives or desire for
independence. The very fact that they do not accept that they have a learning
disability is a crucial matter in itself. They do not appear to have the
capacity to enhance and sustain their ability to co-operate and work with
support services. There has been ample evidence of this during the course of
this case.
(iv) In any event,
I am certain that even if the support was available, and even if Mr and Mrs X
could learn to comply, the impact on these children of multiple carers and a
changing staff group supporting their parents, would also inevitably lead to a
lack of stability and security in the lives of these children and be
detrimental to their ability to form health attachments with their primary
carers.
[79]
In coming to these conclusions I am conscious of
the evidence given by Ms Jinks from Peterborough. I was not satisfied that her
evidence was sufficient to dissuade me from these conclusions and indeed on the
contrary her current belief is that whatever may have been the situation in the
past, there is now no possibility of 24 hours, 7 days per week care and she
does not believe that any purpose would be served by further testing in the
community. I found, however, much more impressive the evidence of Doctors
Bailie and Donnelly and the impressive evidence of the social workers, both
from the Family Care Unit and particularly the Learning Disability Unit who
have spent literally years working with this couple.
[80]
Having been satisfied, therefore, that the
threshold criteria is fulfilled for the reasons I have mentioned, I must then
ask whether the Care Order should be made in light of the Care Plan, the
Welfare Checklist in Article 3(3) of the 1995 Order, the No Order Principle
enshrined in Article 3(5) of the 1995 Order, together with consideration of the
range of possible orders including any order under Article 8 (Residence,
Contact and others orders with respect to children). The Care Plan in this case
is for adoption. I consider that this is an appropriate Care Plan and that only
adoption would meet the needs of these children. Turning to the Welfare
Checklist, the authorities make it clear that there is no need to slavishly
rehearse in the judgment every matter on the welfare checklist or to state the
weight that has to be attached to each provided ,as I have done in this case ,
the Court has considered them It is sufficient if the judge has regard to all
the factors and allocates to each of them such weight as he considers each
deserves. (See In re H and C Appeal against Residence Order (2005)
NICA 55, 15 December 2005.) I have considered each sub article of Article (3)
of the 1995 Order in relation to each child. Both children are too young for
this court to ascertain their wishes and feelings. However, bearing in mind
their physical and emotional educational needs, it is quite clear to me that
both of these children need carers who can understand and work with their needs
and deal appropriately with the range of professional support services that, in
particular, G will require and that A may come to share. A change in
circumstances from the present place where they are and rehabilitating the
children to Mr and Mrs X would require such an extensive package of monitoring
and supports to be in place that the present security and sense of attachment
which they have to their current carers would be endangered and lost. I
consider that these children are both at risk of suffering for the reasons I
have already set out when dealing with the threshold criteria. Neither of these
parents in my opinion is capable of meeting the needs of either of these
children individually or collectively. I have not the slightest doubt that both
these parents love these children dearly and have no intention of causing them
harm. They are caring and loving parents but unfortunately they simply do not
have the capacity to provide safety for them without the degree of help and
assistance which I feel they are unable to accept or comply with. It is clear
that the mother of Mrs X is not in a position to afford long term assistance to
them to the degree necessary. The history of their lack of co-operation with
social services, DRP, and Peterborough to some extent coupled with their desire
to have independence would prevent them being capable of meeting the needs of
these children. I have read the undertakings which they have given to the court
but their behaviour within ten days of that undertaking to another social
worker who had been unwell was indicative of the lack of real change that
exists. I am satisfied that there is no facility available which could provide
the degree of care necessary in Northern Ireland particularly bearing in mind
there is the dual factor of parents with a learning disability and at least one
child with such a disability. Sadly I believe that neither of these parents is
aware of their own lack of capacity and that they are focused on their own
needs which lends itself to conflict with those who attempt to give assistance.
The historical non-co-operation with professionals is therefore a key factor in
my conclusions. They simply cannot come to terms with the fact that whilst they
may wish to remain independent, much of their independence would be required to
be sacrificed if they were to live in a family unit with the children. The
intrusion on their privacy would inevitably lead to conflict which would be
detrimental to these children.
[81]
I have considered whether or not less draconian
powers which are available to me might not be utilised in this case. In
particular I have considered the possibility of a supervision order. Sadly I
have concluded that only the measure of parental responsibility which is vested
in the Trust with a care order would be sufficient to meet the needs of these
children. There is no presumption that I should not make an order unless I
consider that doing so would be better for the children than making no order at
all. However having considered Article 3(5) of the 1995 Order, I have come to
the conclusion that it would be better for these children to make a care order
than to make no order at all.
[82]
I have afforded these parents the opportunity to
address me on the question of contact pursuant to Article 53(11) and I shall
return to the subject later in this judgment .
[83]
I have considered the rights of these parents
under Article 6 and 8 of the Convention. I shall deal with their involvement in
the decision-making process in somewhat more detail later on in this judgment,
but I am satisfied at this stage that a care order would be a proportionate
response to a legitimate aim namely that of ensuring the well being of these
children.
[84]
I have therefore come to the conclusion that a
care order is an appropriate and proper order in each instance.
[85]
The statutory provisions governing applications
to free for adoption are to be found in the Adoption Order (Northern Ireland)
1987. Article 9 sets out the duty to promote the welfare of the child as
follows:
"In
deciding 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 person
will be in the best interests of the child;
(ii)
the need to safeguard and promote the welfare of the child throughout her
childhood; and
(iii)
the importance of providing the child with a stable and harmonious home."
[86]
In this case I have taken into account all the
circumstances that I have set out earlier. Neglect, even unwitting neglect, can
and is extremely serious. It can erode children's wellbeing at many levels as
the guardian ad litem has said, and have a very significant impact on their
life chances. It can also present seriously potential risks to children. The
lack of anticipatory ability and insight of this couple in this regard is
crucial. I can envisage numerous situations where dangers to these children
could lie in the wake of their lack of insight. It is impossible to predict
what future circumstances would hold and I do not consider it is feasible in
light of the expert evidence I have heard to train this couple to meet every
eventuality with these two children especially where one of them at least is
suffering from a learning disability herself. The balance between risks and
protective factors is different at different stages in children's lives and
risk is heightened for the younger more vulnerable children. As children get older
and push behavioural boundaries as Dr Donnelly has said, adults with a learning
disability may find the parenting task even harder due to the challenge of
trying to negotiate under stress. It is my view that only adoption can
safeguard and promote the welfare of these children throughout their childhood
and provide them with a stable and harmonious home. The family network cannot
fill the gap in this instance because Mrs W has made it clear that the level of
care could not be provided by her. As I have already indicated, there is no
facility available which could meet the deficits in this case. I have come to
the conclusion that the views of Dr Donnelly (expressed by me at page 25 of
this judgment) on adoption are correct and that the advantages of adoption to
these children far outweigh any possibilities of long term foster care.
[87]
Having come to the conclusion therefore that the
Trust have satisfied me on the balance of probabilities that Article 9 points towards
adoption, I then turn to the question of whether these respondents are
withholding their consent to adoption unreasonably. Both parents currently have
parental responsibility and therefore each of these is entitled to argue that
they wish to withhold their consent. The Trust must satisfy me that withholding
of their consent is unreasonable. The leading authority on the meaning of this
ground and the tests that the court should apply is to be found in Re W
(1971) 2 AER 49. During the course of the leading opinion, Lord Hailsham said:
"The
test is whether at the time of the hearing the consent is being withheld
unreasonably. As Lord Denning MR said in Re L;
'In
considering the matter I quite agree that
(i)
the question of whether she is unreasonably withholding her consent is to be
judged at the date of the hearing; and
(ii)
the welfare of the child is not the sole consideration; and
(iii)
the one question is whether she is unreasonably withholding her consent.
But
I must say that in considering whether she has been reasonable or unreasonable
we must take into account the welfare of the child. 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."
More recent
authorities including Re C (a minor) (adoption: parental agreement, contact)
(1993) 2 FLR 260 have suggested that the test may be approached 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
appears sufficiently strong to justify overriding the views and interests of
the objecting parent. (see also Down Lisburn Health and Social Services
Trust and H & R (supra) Nicholson LJ at page 30 et seq). I have
come to the conclusion in this instance that these parents are unreasonably
withholding their consent for the following reasons:
(i) By implication
it was argued on behalf of these parents that they embraced a legitimate sense
of grievance because they had not been sufficiently involved in the decision-making
process. I have already outlined the principles of law that govern
consideration of Article 8 under the Convention. As I have detailed at pages
22-24 of this judgment, I consider that this Trust did fail to follow the
proper procedure and that the LAC review of 10 December 2004 should have
occurred before the permanency panel met. Nonetheless, I am conscious that the
approach should not be a purely procedural one but that I must ask whether or
not the Convention rights of these applicants have been violated. There is no
doubt that there is a procedural right within Article 8 as evidenced in a
number of decisions in the European Court of Human Rights which include Elsholz
v Germany (2000) 2 FLR 486, Sahin v Germany; Sommerfeld v Germany;
Hoffman v Germany (2002) 1 FLR 119, Hoppe v Germany (2003) 1 FLR
284 and Sahin v Germany (2003) 2 FLR 671. Nonetheless I consider that
the decision-making process must be seen as a whole and the question asked
whether the parents had been involved in the decision-making process as a whole
to a degree sufficient to provide them with the requisite protection of their
interests. If they have not, there will have been a failure to respect their
family life and the interference resulting from the decision will not be capable
of being regarded as "necessary" within the meaning of Article 8.
(see Re M (care: challenging decisions by local authority) (2001) 2 FLR
1300). I have come to the conclusion for the reasons set out earlier in my
judgment that this couple have been given ample opportunity to make their views
clear both concerning G and A. In particular Mr and Mrs X knew from the
application for an emergency protection order in relation to A that the Trust
plan was permanency by way of adoption. They must also have been aware that
there was really no distinction between the arguments put forward for G being
put forward for adoption and the case being put forward for the adoption of A.
The circumstances were exactly the same and the reasoning virtually
indistinguishable. I believe that this is a case where no outcome other than
the course decided upon could have been contemplated in any event. (see AR v
Homefirst Community Trust (2005) NICA at para. 90).
(ii) I am
satisfied that this Trust has not stereotyped this couple and has approached
them as individuals. I reject entirely the suggestion that this Trust was
locked into or driven by stereotypical and negative perceptions of learning
disabled parents generally as charged by counsel on behalf of the respondents.
I am satisfied that the efforts made to find alternative facilities for this
couple were unstinting and comprehensive . The provision of learning disability
officers to assist this couple, the suggestion of advocates to represent them,
and the constant presence of their learning disability as an issue convinces me
that this Trust has measured up appropriately to the rigorous tests which I
have outlined the Trust should be subjected to when dealing with parents with
learning disability. I have borne carefully in mind the danger that higher
hurdles might have been set by this Trust than would otherwise have been the
case if this couple did not have a learning disability. I reject that
proposition. I am absolutely satisfied that every single avenue has been
explored by this Trust in order to ascertain some means of rehabilitating these
children with them. They have been represented by a solicitor throughout the
material part of these proceedings. I find no barrier set to impede them
achieving justice within the process. They have been identified as being
towards the more severe end of the spectrum of learning disability and have
been given appropriate assistance in my view. The evidence was that this Trust
has under its care a significant number of parents with various degrees of
learning disability and indeed these parents are either living with their
extended family where they are still in a position to care for their children
or are living semi-independently with a package of support. In other words this
Trust is no stranger to this difficult situation. I therefore reject the notion
that this couple have any legitimate sense of grievance in the way they have
been treated because of their learning disability.
(iii) I consider
that the reasonable parent would recognise that not only are there no
facilities available in Northern Ireland which could accommodate the 24 hour/7
day protection they need but that they are incapable of complying with such a
service even if it was available.
(iv) I consider
that reasonable parents would recognise that the impact upon these children,
particularly where one of them as a learning disability, of facing changing
staff with multiple carers in a situation where there were also carers dealing
with adults in the household would be gravely injurious to their welfare . I
share entirely the view of the guardian ad litem that this could lead to a lack
of stability and security in their lives and be detrimental to their ability to
form healthy attachments to primary carers. Confusion would be rife with them
particularly where, as I am certain the case would be, there was regular
conflict between Mr and Mrs X and the helpers/carers.
[88]
I am satisfied that freeing these children for
adoption would be a proportionate response to the legitimate aim of ensuring
their wellbeing in the future. I have therefore taken into account fully their
rights under Article 8 and Article 6 of the Convention. I believe there may
well have been a plausible argument that testing in the community could have
taken place at the termination of the Peterborough assessment as suggested by
Ms Jinks. But circumstances have now fundamentally changed. With the benefit of
hindsight everyone is now aware that G has a learning disability (which was not
known at that stage) and of course there is another child. I do not believe
that this would have changed matters in any way and with the events that have
thereafter unfolded I believe it would have been an exercise doomed to failure.
[89]
In particular in coming to this decision I am
conscious that the reasonableness of their refusal to consent is to be judged
at the time of the hearing and accordingly I am now doing so. I have taken into
account all the circumstances of the case which I have outlined. I recognise
that whilst the welfare of the children must be taken into account it is not
the sole or necessary paramount criterion. I have applied an objective test in
this case taking into account the subjective views of these parents and the
allegation that they have a justifiable sense of grievance. I consider the
approach of this Trust has been one of patient indulgence and unremitting
effort. 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 understand that the question in any case is whether a parental veto comes
within the band of reasonable decisions and not whether it is right or
mistaken. Not every reasonable exercise of judgment is right and not every
mistake in exercise of judgment is unreasonable. (see Re M (a minor)
1997 EWCA Civ 2766). However in this case I conclude that there is no
reasonable decision which would justify the withholding of consent.
[90]
I am satisfied in this case that the children are
in the care of the Adoption Agency being subject to a care order. I am also
satisfied that it is likely that these children will be placed for adoption
with their present carers. Both parents have been given an opportunity to make
the appropriate declaration pursuant to Article 17(5) of the 1987 Order.
[91]
I believe that the guardian ad litem has
approached the question of contact in the aftermath of the freeing application
and post adoption contact in the appropriate way. The right time to consider
what kind of contact natural parents are to have to children being adopted is
on the occasion adoption is under consideration (see Down Lisburn Health and
Social Services Trust and H & R (2005) NICA 47(2) Campbell LJ at para
22. However so far as contact in the interim between the freeing order and the
granting of the adoption order is concerned, I consider that the position must
be flexible depending on how the parents react to the order I have made. The
children must be provided with the opportunity to develop their capacity to
build attachments with their current carers without that placement being
undermined. Hopefully this can translate into direct contact 2 to 3 times per
year but I believe that the flexibility of the no order principle in this
regard is vital. Matters must be assessed as events unfold.
[92]
I therefore make an order freeing these two
children for adoption.
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