E and M, Re [2001] NIFam 2
(02 February 2001)
Neutral
Citation no. [2001] NIFam 2
Ref:
HIGF3274
Judgment:
approved by the Court for handing down
Delivered:
02.02.2001
(subject to
editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
________
RE: E and M (Applications to Free for Adoption)
(1999/3F and 4F)
________
HIGGINS J
These are applications to free for adoption without parental agreement the two
children of Mrs McA and Mr S who have never married. E was born on 5 December
1994 and M was born on 22 October 1996. The applicants are North and West
Belfast Health and Social Services Trust who apply for the Court to dispense
with the agreement of Mrs McA and Mr S to the adoption of their children on the
ground that their agreement is unreasonably withheld. The Adoption (NI)
Order 1987 (the Adoption Order) has been amended in several important respects
and new Articles or paragraphs substituted by Schedule 9 to the Children (NI)
Order 1995 (the Children Order). In this judgment the Adoption Order is
referred to in its amended or substituted form.
Article 18 of the Adoption (NI) Order 1987 states:
"18.-(1)
Where, on an application by an adoption agency, an authorised court is
satisfied in the case of each parent or guardian of a child, that his agreement
to the making of an adoption order should be dispensed with on a ground
specified in Article 16(2)
the
court shall make an order declaring the child free for adoption.
(2)
No application shall be made under paragraph (1) unless -
(a)
the child is in the care of the adoption agency; and
(b)
the child is already placed for adoption or the court is satisfied that it is
likely that the child will be placed for adoption.
(2A)
For the purposes of paragraph (2) a child is in the care of an adoption agency
if the adoption agency is a Board or HSS Trust and he is in its care.
(3)
Paragraphs (3) and (5) to (7) of Article 17 shall apply to an order made by a
court under paragraph (1) as they apply to an order made by a court under
Article 17(1)."
Article
17(3) of the Adoption (NI) Order states:
"On
the making of an order under paragraph (1), parental responsibility for the
child is given to the adoption agency, and paragraphs (2) to (4) of Article 12
shall apply as if the order were an adoption order and the agency were the
adopters."
Prior to the implementation of the Children Order an unmarried father was not a
parent for the purposes of the Adoption Order and his agreement to either the
adoption of his child or the freeing of the child for adoption was not required
under that Order or dispensed with by the Court. The grounds upon which a
Court can dispense with the agreement of a parent are set out in Article 16(2)
of the Adoption Order as amended:
"(2)
The grounds mentioned in paragraph (1)(b)(ii) are that the parent or guardian -
(a)
cannot be found or is incapable of giving agreement;
(b)
is withholding his agreement unreasonably;
(c)
has persistently failed without reasonable cause to discharge his parental
responsibility for the child;
(d)
has abandoned or neglected the child;
(e)
has persistently ill-treated the child;
(f)
has seriously ill-treated the child (subject to paragraph (4))."
Article 2(2) of
the Adoption Order as amended now defines a parent as follows:
"'Parent'
means in relation to a child any parent who has parental responsibility for the
child under the Children (NI) Order 1995."
"Parent
responsibility" (and Parent Responsibility Order) have the same meaning as
in the Children Order. Article 5 of the Children Order provides that
where a mother and father were married to each other at the time of the birth
of the child each shall have parental responsibility for the child. Where
the mother and father were not married to each other at the time of birth the
mother only shall have parental responsibility. The father shall not have
parental responsibility unless he acquires it either by order of the Court
under Article 7(1)(a) of the Children Order or by agreement with the
mother. An agreement with the mother must be in the form prescribed and
recorded in the manner prescribed by the Children (Parental Responsibility
Agreement) Regulations (NI) 1996 (SI No. 455/1996). On 22 February 1999
Mrs McA Mr S entered into a Parental Responsibility Agreement, on the
prescribed form. This was duly recorded before the Master and by the
agreement, Mr S required parental responsibility for E and M. Article 6
of the Children Order defines 'parental responsibility' as all the
"rights, duties, powers, responsibilities and authority which by law a
parent of a child has in relation to the child and his property".
Thus Mr S is a parent (as he has parental responsibility) for the purposes of
the Adoption Order and Article 18 and as such his agreement to the making of an
order must either be obtained or dispensed with on one of the grounds set out
in Article 16(2). This does not mean that unmarried fathers either with or
without parental responsibility are now to be treated as parents for all legal
purposes. However for the purposes of this judgment I may for ease of
reference refer to Mrs McA and Mr S as the parents of the two children
concerned.
Mrs McA married RMcA and they had five children. Later they separated in
1993. Fit Person Orders under the Children and Young Persons Act 1968
were made in respect of all five children in 1989 and following a decision in
1994 they remained in care thereafter. The reasons put forward for this
were Mrs McA's misuse of alcohol, her style of parenting including severe
discipline of the children and relationship problem Mr S with Mr McA. Mr
McA died on 13 July 1996. Mrs McA commenced a relationship with Mr S who
is 13 years her junior. They commenced cohabitations in 1994.
Shortly after E was born. Social Services had been made aware of Mrs
McA's pregnancy and in view of the history of Mrs McA's parenting abilities
consideration was given to the strategy which Social Services should
adopt. As summarised by the Guardian Ad Litem several supportive services
were offered including a family support worker, childminder, parental
assessment and advice at Whiterock Family Centre and Shankill Resource Centre
as well as advice to Mrs McA by a playgroup leader.
Prior to the birth of E a Child Protection Case Conference was held on 28
September 1994. It was decided to place the child's name on the Child
Protection Register under category of 'neglect'. The conference
recommended that the parents attended Whiterock Family Centre for assessment of
their relationship and parenting abilities. Both parents attended the
Family Centre. The conference also recommended that after the baby was
born the family should either undergo a six week assessment at Thorndale Family
Centre or remain at home with support and monitoring. After E was born
Social Services decided that she and her parents could go home which she did on
9 December 1994, with support and monitoring to take place. Thereafter a
pattern began to emerge the father worked long hours and often at weekends
and the mother had difficulty in coping on her own and complained about his
lack of support and assistance. The relationship between them was not
very stable. There were reports of rows and domestic violence and damage
to the home and its contents. The police were called to the home
occasionally and there were allegations that Mrs McA was drinking at times when
Mr S was working. Social Services. appear to have formed the view
that the father was largely responsible for the domestic violence, and the
damage and the police being called. It was never satisfactorily proved
independently of the couple who was responsible for the situation in the home.
However having heard both Mrs McA and Mr S give evidence I was not satisfied
that the view formed by Social Services was the correct one on all
occasions. Mr S is a shrewd laid back person with a firm view, not
untypical in this jurisdiction, that it was his responsibility to work and earn
money and Mrs McA's responsibility to look after the home and the
children. To that extent he gave little support to Mrs McA to cope with
the home and the children. When she gave evidence there were occasional
glimpses of her volatility and I could well understand the situation portrayed
by Mr S (though not all the time) that she would lose her temper with him and
he would retreat until she had calmed down. This probably infuriated her
more. She was not the only one annoyed by this casual approach that
everything would work itself out. Social Services were demanding of him
and he would determine he would do things his own way and in his own
time. He failed or refused to understand Social Services concerns and was
probably unaware of Mrs McA's drinking or the extent of it and her problems
with the children of her marriage. To a certain point his attitude to
Social Services was reluctant tolerance and often indifference. His
relationship with the social worker on the ground was poor. He probably
treated her demands in the same way as he treated Mrs McA's volatility.
He was not impressed with lectures on child psychology or how to rear
children. He appears to have a strong personality that was not swayed by
the Social Services articulated views about his children. I suspect this
rebuff in return infuriated Social Services who were determined from the outset
that what they perceived to have occurred with Mrs McA's children from her
marriage was not going to happen to her children by Mr S. The failure of
Social Services and Mr S to engage with each other and understand their
respective points of view as well as Social Services view (wrongly in my
opinion) that he was largely responsible for domestic violence and damage and
the volatile relationship between the couple were contributory factors to
events as they subsequently occurred. Throughout this period there were
regular Child Protection Care Conferences. At one of these on 5 December
1995 Mrs McA expressed concern that E had "headbanged", that is
struck a wall or an object with her head on a number of occasions. On 22
October 1996 M was born. This was alleged to have increased the pressure
on Mrs McA who felt she had little support from Mr S in caring for two small
children. However it would appear that she was occasionally drinking to
excess after M's birth. Reports began to emerge of Mrs McA's rough
handling of E and of shouting at her. It was the view of Social Services
that while Mrs McA was able to cope with and care appropriately for small
babies, once they became toddlers and began to assert themselves she lacked the
skills to deal with this new situation and its demands. There were no
concerns about her physical care of the children nor was there any doubt about
her love for them. Concerns appeared to centre on her reaction, largely
irritation, to what would be considered normal behaviour for a young
child. It was felt that this was what had occurred with her other
children by her marriage and led to them being taken into care. A
determination to avoid a repetition of what Social Services considered to be
her parenting deficiencies became evident and was the driving force behind
events as they unfolded. The tempo of Social Services involvement with
and guidance of the family to their way of thinking increased from the early
summer of 1997. At a Child Protection Case Conference Review on 25 June
1997 it was decided that E and M would remain on the Child Protection Register,
the potential risk being neglect. In the case of E it was decided that
she was at risk of "emotional abuse". This is a term often used
by social workers. It can cover a multitude of situations. Where it
is used the circumstances which justify it require to be clearly set out and
capable of clear definition. At this Review it was also decided that the
Children's Resource Team commence a six week assessment of E's emotional needs
and Mrs McA's parenting capacity and also to attempt to undertake a
psychological assessment of E. It was also decided that alternative
options to E remaining at home would be identified. I am satisfied that
Mrs McA was only allowed to take E home on sufferance and that in view of
Social Services concerns about Mrs McA's parenting style alternative care for E
was always in the background. From an early stage that alternative care
was identified as adoption, but not openly recorded as such, yet it remained
the objective to which Social Services strove and which often guided their
decisions. The impression that Social Services decided at an early stage
that E (and if necessary M) should be adopted was never removed. By
August 1997 the social worker in charge was reporting that the attempts to
assess the mother's parenting capacity and to carry out a psychological
assessment of E had not met with success. Mrs McA was stating that she
saw no need for this and was not accepting that E was at risk of emotional
damage as a result of her parenting. At a review held on 13 August 1997
the social worker reported that without a psychological assessment of E it was
impossible to fully gauge the impact of Mrs McA's behaviour towards E.
Mrs McA had attended some sessions at the Children's Resource Centre. The
minutes of this meeting disclose that the concerns about Mrs McA included
that she seemed to find little positive to say about her feelings towards E;
that she was very directional towards E who was acting as a normal two year
old; inconsistent interaction by Mrs McA with E; that her expectations of E
were too high for her age and that while there were times she demonstrated some
warmth with E she was also observed to be rough in her handling of her.
The Review recommended that an application be made for interim care order in
respect of E and for a direction regarding psychological assessment with E to
remain with her parents pending the outcome of the application to the court and
for the social worker in charge to liaise with the Children's Resource Team in
relation to the psychological assessment if directed by the Court. It
also directed that the next review be carried out in February 1998. On an
application for a care order under Article 50 of the Children (NI) Order 1995 a
Court may, under Article 57, make an interim care order if the court is satisfied
that there are reasonable grounds for believing that the child is suffering or
is likely to suffer significant harm. Under Article 57(6) where a Court
makes an interim care order it may give such directions as it considers
appropriate with regard to the medical, psychiatric examination or other
assessment of the child. A clear need for such an examination or
assessment of the child requires to be demonstrated before it should be
directed by a Court. The Review did not consider or identify the alleged
significant harm which E was suffering or was likely to suffer. In the
absence of such significant harm a decision to seek an interim care order for
the purpose of securing a direction by the Court that E undergo a psychological
assessment was unwarranted. The Children Order does not permit such use
of Article 57(6) to secure an assessment of a child in the absence of parental
agreement. When an application is made for a care order the C2
application and any report filed in support of such an application should clearly
identify the type of significant harm which it is alleged the child is
suffering or is at risk of suffering. This is necessary not only to
enable the Court to determine whether or not there are reasonable grounds for
believing that the threshold criteria have been met, but also (if so satisfied
about the criteria) to determine whether or not it is appropriate to direct the
type of assessment contemplated by Article 57(6).
Social Services were also attempting to engage Mr S in a psychological
assessment. He had attended one session at the Children's Resource Team
but declined to attend further as he did not consider it necessary. On 5
November 1997 he agreed to attend a psychologist but would not guarantee his
attendance because of his substantial work commitment.
On 10 November 1997 the Trust applied for a care order. The application
form C2 did not set out the reasons why the care order was sought but stated
baldly "see social worker's report" (I have already commented in other
cases that this practice should cease as it is of no assistance to the
Court). The case was listed for 4 December 1997 and the social worker
report is entitled "Report for Court 4 December 1997". In this
report the entire history of Mrs McA, her marriage, her children by that
marriage and the history of her relationship with Mr S and the circumstances of
E and M, as understood by Social Services, is set out.
It identified the emotional abuse which Mrs McA's children by her marriage
experienced as
1)
a parent relationship which was characterised by poor communication, frequent
rows with verbal and physical abuse and alcohol abuse;
2)
Mrs McA feeling pressurised as the main carer with very little support from her
husband in parenting the children and no other social supports;
3)
the parents' inability to consistently manage the children's behaviour;
4)
their difficulty in expressing affection and meeting the children's emotional
needs;
5)
Mrs McA's personal history where she was physically abused as a child;
6)
Mrs McA's volatile personality and unpredictable temper which could be
triggered by events unrelated to the children but led to her physically
punishing them.
7)
Mrs McA's difficulty in coping when under pressure.
8)
Mrs McA's automatic response of the use of violence with her children and her
beliefs that this was necessary.
9)
Mrs McA's lack of understanding of child development.
It
makes clear that Social Services were concerned to "prevent E and M
suffering from either the emotional or physical abuse their half-siblings
experienced" and to that end sought to engage their parents in addressing
their concerns as highlighted in the Report. The Report comments that Mr
S had consistently disengaged from contact with Social Services regarding his
children, whereas Mrs McA exhibited a desire to continue to care for her
children. The children were physically well cared for by her. It
goes on to state that she "never intentionally caused harm to any of her
children and therefore has difficulty in understanding or accepting Social
Service's assessment of concern." Later it comments that "she
does however love her children and there appears to be an attachment to
her. It would also appear that she genuinely does not understand the
changing needs of her children".
The
report recites that at the Review held on 13 August 1997 it was recognised that
it was essential for this programme of work to be completed including "the
possible additional psychological assessment of Mrs McA". The
grounds for believing that the threshold criteria set out in Article 50(2) of
the Children Order were met are stated as "Mrs McA's past history of
parenting and the present concerns indicated in this reporting regarding the
emotional development of E". It goes on to state that
"assessment of E would establish whether or not she is presently or likely
to suffer significant emotional harm. It would provide information on
whether or not Mrs McA has the capacity to change and if so, how this can be
best effected."
It states that "an assessment [of Mrs McA] is required to establish
whether Mrs McA has the capacity to meet E's emotional needs. Mr S has
shown that he takes little or no responsibility for the care of E. He is
unsupportive to [sic] Mrs McA and his violence to Mrs McA could potentially be
harmful to E. While Mr S would be invited to be included in such an
assessment he has already refused to be involved and has little input in the
case of E".
Later the report states: "there is insufficient evidence regarding
significant harm to the child to justify an order to remove E from the care of
her mother" and goes on to state that an Interim Care Order "would
give parental responsibility to Social Services in order to direct an
assessment of E and her mother is completed without E being removed from the
care of her mother". Finally under the Heading Child's Welfare in
Paramount the report states:
"The
child's welfare is the paramount consideration in making a recommendation to
the Court. In order to make an informed decision regarding the best
interests of the child, a full assessment of E and her mother is
required. To date, Mrs McA has not been prepared to engage consistently
in this work . I would therefore recommend that an Interim Care Order for
a period of 8 weeks be granted in order to give Social Services parental
responsibility for ES [sic] to achieve a psychological assessment of E and
assessment of Mrs McA's ability to parent her without significant harm to the
child. An Interim Care Order would allow E to remain in the care of her
mother while the work with the family is progressed."
Regardless
of the merits of this case for the making of a care order there are a number of
matters about this application and the report in support of it which give rise
to concern that the purpose of the Children Order is not fully
appreciated. While every person or organisation would wish to safeguard
the interests of children, the Children Order has made significant changes to
the law to enable such safeguards to be achieved. Part IV of the Children
Order makes provision for support for children in need and their
families. Article 18 of the Order imposes a general duty on authorities
(which includes Trust's) to safeguard and promote the welfare of children and
so far as is consistent with that duty, promote the upbringing of such children
by their families by providing services appropriate to the needs of the
children. The paramountcy principle, that the child's welfare shall be
the paramount consideration, applies only to a Court which is determining any
question with respect to the upbringing of a child see Article 3. A
care order should only be sought where there are grounds for believing that a
child is suffering significant harm or is likely to suffer significant
harm. Where an application for a care order is adjourned a court may make
an interim care order (or interim supervision order) where it is satisfied that
there are reasonable grounds for believing the child is suffering significant
harm or is likely to suffer such harm. It is not appropriate to request a
Court to make an interim care order (rather than a care order) or an interim
supervision order for the purpose of transferring parental responsibility to a
Trust in order to achieve an assessment of a child or a parent or both.
The Order establishes clearly the circumstances in which the Court may direct
an assessment of a child. In some circumstances the assessment of a child
and parent may be directed by the Court but the criteria for such a direction
are restricted see Homefirst Community Health and Social Services Trust
v- EH Re AH (A1/2000/OCP) (as yet unreported) and the cases referred to
therein.
It would appear that at that time the case being made by the Trust was not that
E had or was suffering significant harm but that she was likely to, based on
the understanding as to why Mrs McA's five other children came into care.
The significant harm alleged appears to be emotional harm which might result
from her mother's parenting style. Such cases are (as indeed this case
was) based on theories of a child psychology and psychological evidence.
Whether the theories are challenged or not the outcome is often dependent on
the interpretation of such evidence. They are difficult cases. It
is important that applications under the Children Order are heard in the Court
which is most appropriate for the nature and type of case involved. The
Allocation of Proceedings Order provides criteria for the transfer of cases
from one Court to another. The Family Care Centre is a specialised Court
established to hear care proceedings and should hear the more difficult and important
applications under the Children Order (the Care Centre can transfer to the High
Court cases which it considers should be heard at that level of Court).
Applications for care orders based on alleged emotional harm involving
psychological evidence and theory are worthy of transfer to the Family Care
Centre (if not to the High Court). The Family Division in England Wales
have expressed similar views.
When the application came before the Family Proceedings Court on 4 December
1997 the Trust applied and was granted leave to amend their application for a
care order, to an application for an interim supervision order. The
criteria for making a supervision order (or an interim supervision order) is
the same as for a care or interim care order.
It appears that on 4 December 1997 a Direction Hearing under Rule 15 of the
Magistrates Courts (Children (NI) Order 1995) Rules (NI) 1996 took place.
The Court made an interim supervision order in respect of E and various
directions were given. These included that a report in respect of Mrs McA
be prepared by Dr Philip Pollock, a Consultant Adult Psychologist, and that a
report be prepared by the Children's Resource Team, both reports to be filed
with the Court by 6 January 1998. It would appear from the Court
documentation that the applicant Trust, supported by the Guardian Ad Litem,
requested the Family Proceedings Court to give directions pursuant to Schedule
3 paragraph 3(1)(c) to the Children Order, that both parents attend the Children's
Resource Team on the Shankill Road. Paragraph 3(1)(c) of Schedule 3 does
not empower a court to direct that parents should attend for assessment or
examination by psychiatrists or psychologists or other such qualified
persons. It empowers a Court to include in the supervision order a
requirement that a responsible person (which can include a parent) comply with
directions given by the supervisor to attend either with or without the child
for the purpose of partaking in specified activities, with the consent of the
responsible person. Activities, which is not defined, does not include
assessment by psychiatrists or psychologists or other such qualified
persons. Under Article 57(6) of the Children Order, a Court may when
making an interim supervision order give directions with regard to the medical
or psychiatric or other assessment of a child. No directions under
Article 57(6) appear in the Court documentation. In certain circumstances
an assessment of a child may include an assessment of the parents also, but it
is difficult to envisage circumstances in which directions under Article 57(6)
could refer to the adults alone. The purpose of a direction hearing is to
give directions as to the conduct of the proceedings in particular to timetable
the proceedings, not, with certain exception to which I have referred to direct
examination and assessments of any party, including the child or to direct a
party's proofs. These are matters for the parties to either agree or
engage in unilaterally, but should not be the subject of Court
directions. It was suggested to the Court by the Guardian Ad Litem that
if the requisite consent was not forthcoming for a requirement under Schedule 3
paragraph 3(1)(c), that the Court may consider making an interim care order instead.
I do not consider such an approach would be helpful to a Court or appropriate
in deciding whether or not to make an interim supervision order. The
consent of a responsible adult should be freely and genuinely given and
co-operation which is extracted in this way is unlikely in the long term to be
beneficial.
Mr S did not keep an appointment with Dr Pollock scheduled for 10 December
1997. He said this was due to work commitments. As directed by the
Court Mrs McA attended the Children's Resource Team for assessment on three
occasions 12 December, 15 December and 22 December 1997. The assessment
was carried out by Mrs Alcorn who envisaged weekly sessions for 3-6
months. However subsequent events prevented this. During the course
of these sessions Mrs Alcorn consulted with Dr Pollock and with Dr Donnelly a
clinical psychologist attached to the Children's Resource Team. At the
end of the three sessions she reported to the social worker in charge and
consulted Dr Donnelly and Dr Pollock. Then she reported to the
Court. Mr S did not attend the sessions which caused Mrs McA some
concern. At the outset of the first session Mrs McA said the only reason
she was attending the Children's Resource Team was because the Court had
directed her attendance. The first session was used to explain what was
proposed and the following two sessions to observe Mrs McA's ability to meet
E's emotional needs and to assess her interaction with E and her management of
E's behaviour. The plan included observation/assessment of child
attachment to parent(s). E was present on each occasion. She noted
little physical affection between mother and child, that there was some
"rough handling" by the mother and difficulty in dealing with the
child's tantrums.
In
her progress report to the Court dated 5 January 1998 Mrs Alcorn concluded
"From
observation Mrs McA seems to find it difficult to concentrate on more than one
task at a time, her mood fluctuates and she can be easily distracted. She
has a reasonable attachment to E but seems unable to express warmth she seems
unable to recognise patterns of behaviour and her own behaviour can be
inconsistent with loss of control in times of stress."
Mrs
McA saw Dr Pollock on four occasions and his report is dated 5 January
1998. Mrs McA had attended Dr Pollock prior to the Court proceedings of 4
December 1997 as part of the Children's Resource Team work. In addition
to speaking to her he had access to all the documents and reports held by
Social Services about Mrs McA and all of her children. He found her to
have an IQ on the Wechsler scale of 74 from which he concluded that she
"demonstrates a lack of cognitive complexity which greatly affects her
ability to tolerate the cognitive demands when experiencing stress".
She feels overwhelmed by the demands of a number of problems at one time and
becomes frustrated and anxious: she deals with this often by opting out.
At other times she manages the problem forcefully which he found evident in her
displaced physical or forceful management of her children. This he found
due essentially to her lack of cognitive resources in problem solving.
Her poor intellectual ability, forceful style of child management and
difficulties tolerating stressful experiences blended to produce an unhelpful
pattern of parental behaviour. His opinion was that her parenting style
was an unfortunate product of her personality and personal history and not
gratuitous aggression towards her children. He described her attachment
to the children as well-meaning but inconsistent behaviourally. This
inconsistency breeds a sense of confusion about limits and boundaries for the
children, with little interest at times and forceful management at
others. This he concluded was "essentially detrimental to the development
of emotional well-being in the children. Her non-contingent and brusque
management of the children is of most concern." His opinion was that
"she does not show sufficient indications of parenting her present
children in a qualitively different or better fashion than her previous
children. Her capability to change her style of parenting is very limited
and intensive [work] in the past has not produced any adequate long-term
change." He did not consider she would be able to absorb principles
of good child management and apply them consistently. His general
conclusion was that the issue was not Mrs McA's willingness to provide care for
her children but her capacity to do so over the years when the children would
develop. He identified the main area of risk as emotional dysfunction for
the children if Mrs McA provided the style of parenting which he
identified. He concluded that "it would be most beneficial in the
long term for Mrs McA to remain in contact with the children
but placement to
be elsewhere."
This report was a critical and crucial evaluation of Mrs McA, her parenting
style and her relationship with her children which was based on interviews with
her and all the Social Services documentation and written in the acknowledged
context of ongoing care proceedings and subsequently presented to the Court in
support of them.
Both Dr Pollock's report and Mrs Alcorn's report were provided to the social
worker in charge of the case. She in turn wrote a report for the Court
dated 13 January 1998 which was based to some extent on these two
reports. I have some reservation about the propriety of that course of
action when the reports were directed by the Court to be prepared for the Court
and lodged on a certain date.
On 6 January 1998 the Trust applied for a care order in respect of Mr S citing
as the reason that
"On
4 December 1997 an Interim Supervision Order was granted in respect of E S with
directions for Mrs McA and Mr S to undertake an assessment regarding their
parenting, including a psychological assessment. Concerns had become
evident that Mrs McA pattern of parenting her older children were being
repeated and if these remained unchanged, could cause harm to her younger
children. The psychological assessment has been completed and indicates
that Mrs McA is unable to change her parenting style. Based on this
assessment and the known history, it is therefore the opinion of the
professionals involved that this pattern will continue and M is therefore
likely to suffer significant harm if he remains in his mother's care. Mr
S has repeatedly not participated in any work with Social Services."
Thus
when the case came back before the Family Proceedings Court there were two
applications one for a supervision order in respect of E and a care order in
respect of M. The social worker in charge of the case provided a detailed
report (undated) for the hearing on 13 January 1998 which make clear that the
Trust were seeking care orders in respect of both children. In this
report the social worker referred to the purpose of the psychological
assessment of Dr Pollock "to give information regarding Mrs McA's
ability to effect any changes required in her parenting and to establish if she
could meet E's emotional needs." She stated that Dr Pollock's
assessment indicates that Mrs McA does not have the ability to change her
parenting style and that the inconsistencies in her care cannot adequately meet
her children's needs and is likely to result in significant harm to the
child." At best that is an overstatement of what Dr Pollock said in
his report to the Court. Later she stated that it is "the
recommendation of both Dr Pollock and Mrs P Donnelly (psychologist) who has
been consulted following Dr Pollock's assessment, that as Mrs McA is unable to
make the changes required, further assessment at the Children's Resource Team
would not achieve anything positive. Social Services would also be
concerned that this would cause further delay which is not in E and M's best
interests". In relation to M she comments that there is no direct
evidence that he has suffered significant harm to date but that as with E,
Social Services have concerns that he is likely to suffer emotional damage as a
result of Mrs McA's parenting. In her summary she acknowledged that Mrs
McA was well intentioned towards her children and that she had feelings of love
for them and a desire to care for them. However she was left to care for
them on her own and was unable to meet their emotional needs. She stated
that "her volatile personality and unpredictable temper could place the
children at risk of physical harm
It is the view of the professionals
involved that Mrs McA's parenting style and Mr S's lack of support and violent
behaviour places both E and Mr S [sic] in a situation where they are likely to
suffer significant emotional and physical harm." In her conclusion
and recommendations she states that the threshold criteria are met by (i) Mrs
McA's past history of parenting; (ii) her inability to change; and (iii) the
present concerns indicated in this report. In outlining the welfare
checklist regarding E she states that a change of circumstances for E's care
would be recommended. "While E appears to have an attachment to her
mother the quality of this attachment is unclear. Whilst in the short
term removal from her mother is likely to be distressing for E, she is young
enough to be able to make new attachments
As Mrs McA's parenting style
is fixed, an arrangement which offers security and permanency to E would be in
her best interests. Long term foster care is one option but the issue of
adoption needs to be given careful consideration. Additional
psychological assessment of E's attachment to her mother would need to be
undertaken in relation to this option".
Later in a separate paragraph she states that "reports from Dr Pollock
(Adult Psychologist) and Mrs P Donnelly (Child Psychologist) would indicate
that E is likely to suffer significant emotional harm as a result of the care
given to her by her parents". Furthermore Mr S's violence towards
Mrs McA is potentially harmful to the child. Later when referring to the
care order sought she stated that "Social Services believe that there is
sufficient evidence to show that Mrs McA's parenting is likely to cause
significant emotional harm to E S [sic]. Her parenting coupled with Mr
S's level of violence adds to the risk of emotional harm and potentially to E's
physical safety. Opportunities for change have not been taken by Mr S and
psychological assessment of Mrs McA indicates that she does not have the
ability to change. In order to prevent E from being harmed, a removal
from her parents' care would be necessary". Finally she recommends
to the Court that a care order be made "on the basis that the parenting E
is receiving is likely to cause her significant harm, to her emotional
psychological and possibly her physical well being. This would allow E to
be removed from her parents' care and placed in short term foster care until
decisions are made for her long term future". Similar views are
expressed in respect of M. Attached to the report was a care plan for
each child. In the event of a care order being granted the care plan
provided for a planned move to foster care for E and for frequent and regular
contact with her parents, in the short term at least twice weekly with a
regular review of frequency. Further assessment of the attachment of E
and her mother would determine the level of contact in the long term. For
M weekly contact was envisaged.
On 6 January 1998 Mrs McA sustained a fracture to her right wrist in an
accident. This restricted her ability to care for the children and Social
Services provided assistance. Respite care was proposed but was rejected
aggressively by Mr S. This resistance by Mr S to Social Services
intervention and his opinion that none was required was not untypical of his
attitude from the outset until mid January 1998.
The cases came before the Family Proceedings Court on 13 January 1998. In
addition to the reports of the social worker in charge, Dr Pollock and Mrs
Alcorn, the Court was supplied with a report dated 7 January 1998 from Mrs P
Donnelly a consultant clinical psychologist, attached to the Children's Resource
Team. Mrs Donnelly had been involved with the family through the
Children's Resource Team for some time. Mrs Donnelly was asked by Social
Services to comment on the probability of future psychological risk to E S
[sic] while in her mother's care. To facilitate this she met with the
social workers and the Guardian Ad Litem and had access to the reports of Dr
Pollock and Mrs Alcorn which were directed by the Court. She referred to
Mrs McA's five other children who were "removed from their mother's care
because of emotional abuse and neglect. All five children are now
exhibiting significant levels of disturbance in their behaviour and emotional
relationship and all have continued to have a poor relationship with their
mother". These children were the subject of Fit Person Orders in
1989 and had been in care of one form or another over the preceding eight years
when this report was written. The precise reason for their being taken
into care (as opposed to what was put forward) is not clear. In one
report it is suggested that Mrs McA had left the matrimonial home due to Mr
McA's violence and behaviour and that it was during this period that the 'Fit
Person Orders' were made. On 31 October 1989 each of the five children
was ordered to be removed to Adelaide Park Children Home due to lack of care,
protection and guidance and on 5 December 1989 each was committed to the care
of the Eastern Health and Social Services Board on the application of the
NSPCC. They were aged between 3 years and 12 years at the time.
In an assessment of E carried out on 8 October 1997 Mrs Donnelly concluded she
was a "child of average development who had established emotional
attachments to her mother and her brother
but did not exhibit significant
levels of emotional disturbance." This was still her opinion on 7
January 1998. She then wrote:
"5.
In the light of Dr Pollock's assessment as well as the considerable input given
over many years by Social Services to support and improve Irene's parenting
skills, it no longer appears realistic to expect that this will improve in the
future. I do not, however, believe Mrs McA's poor parenting and its
detrimental effects upon her children to be maliciously intended but to be
largely outside her control. It appears to be the case that as her
children grow and make more complex demands upon her, the additional stresses
further exacerbate the poor parenting.
6.
Whilst no significant emotional disturbance has yet been detected for E (or her
brother M) one must anticipate that it is unlikely to remain so and that the
probability of significant harm to their emotional and social well being in the
future is high. This pattern mirrors that described for the older McA
children which resulted in them developing highly distributed behaviours and
difficulties in placement
Placement of children at the earliest
age, prior to the development of such behavioural patterns improves the long
term prospects for the children."
Mrs
Donnelly then recommended that the Court make a care order in respect of E and
M and that they be placed together. She further recommended that contact
be maintained between the children and Mrs McA at regular intervals and that
"all further assessments and attempts to maintain the family as a unit
cease as it is highly disruptive and creates unrealistic expectations".
In her report to the Court for 13 January 1998 the Guardian Ad Litem
recommended to the Court that a care order should be made in the case of
E. Although her inquiries in relation to M had not yet been completed she
considered the concerns which applied to E applied equally to M. She
identified the overall plan for E to be either long term foster care or
adoption with no prospect of rehabilitation with her parents. She
referred to the reports of Dr Pollock and Mrs Donnelly as indicating that it
was likely that E would suffer significant harm if alternative care was not
provided and that Dr Pollock's opinion was that Mrs McA's parenting style was
"not open to change".
By the time of the hearing on 13 January 1998 the injury to Mrs McA had a
significant impact on the situation. At the hearing Mr S, who at that
stage was a putative father without parental responsibility (in law), requested
that an assessment of his sole capacity to care for the children be carried
out. It was agreed that this would be carried out by Dr Pollock who would
report to the Court at the next hearing. Directions were given by the
Court that the assessment take place and that a preliminary report be filed
with the Court by 3 February 1998. Interim care orders in respect of both
children were made on consent until 10 February 1998 and the children were to
remain at home.
Dr Pollock's preliminary report took the form of a letter dated 3 February 1998
to the social worker in charge of the case. Dr Pollock interviewed Mr S
who co-operated with the evaluation. He found that Mr S's personal
history did not indicate any factors which impinged on his potential ability to
provide sufficient care for his children. Mr S was able to articulate the
important issues in childcare and it was clear to Dr Pollock that he had given
a great deal of thought to those issues and he presented himself well. He
was willing to disengage from employment and denote himself to the role of
carer. He denied Mrs McA's allegations of violence by him towards her and
Dr Pollock noted this remained a questionable area. In his conclusions Dr
Pollock identified what he described as difficulties should Mr S be granted
full responsibility for the children. These were (i) his little
experience of day to day prolonged childcare and questioned its
feasibility on a practical level; (ii) such a role reversal would be difficult
to monitor and would likely revert to Mrs McA as main carer. He concluded
that Mr S's motivation and abilities to provide care for the children required
extensive and prolonged examination and testing at a practical level.
Meanwhile following the making of the interim care order on 13 January
arrangements were made for the care of the children at home with Mr S
continuing to work night shifts. By 15 January the social worker in
charge was not satisfied with Mr S's arrangements and commitments to the
children and she removed the children to foster care. Precisely what
precipitated this other than the list of concerns expressed by the social
worker in her report to the court for 10 February 1998, was never fully
resolved. The report states that Social Services believed the children
were at risk but the significant harm to which they were at risk was not
identified. Mr S felt the social worker was pressuring him unnecessarily
and he be came angry. He made a remark about taking the children to
Dublin where they would be beyond the reach of Social Services. This was
clearly a facetious remark, but the suggestion that it motivated what later
occurred or was seized upon for the purpose was never fully rebutted.
Once the children were in foster care it was decreed that contact between the
children and their parents should be once weekly for one hour. According
to the social worker's report for the hearing on 10 February the initial
planning was for a high level of contact in familiar circumstances.
However Mrs Donnelly advised that contact on a weekly basis in a neutral
environment would help E adjust, settle and understand better the
"managements being made". In the scheme of things this was a
highly significant decision to which I will return later in this
judgment. Contact on this basis not surprisingly became a further source
of friction between the parents and Social Services and had a tendency to
affect the relationship not just between the parents and Social Services but
between the parents themselves, as well as between the children and the
parents. To move from living together as a family unit to contact for one
hour often supervised in the artificial surroundings of a room in a Social
Services centre is a very difficult transition: such contact is an exacting
exercise for parents and children alike (and probably for social workers as
well) and difficult to sustain over months or years. There is an
impression (from those difficult cases which come to Court) that it contributes
little to the maintenance of the relationship between parents and children and
appears often to further its breakdown. The nature, frequency and
duration of contact after a child comes into care is a very difficult and
sensitive issue which may have lasting effects on the development of a
difficult case thereafter.
This
case was originally fixed for hearing in September 1999 and was then adjourned
until after the social worker in charge had given birth to her first
child. Following consultations in August 1999 directions were given that
all contacts between the parents and the children be carefully monitored and
all events recorded. In the outcome this assumed an importance well
beyond its direct relevance to the issues in the case. It would be an
exceptional case in which the nature of contact post an interim care order or a
full care order, would be of meaningful significance in or determinative of the
ultimate decision for the future upbringing of a child. Such evidence may
occasionally provide some confirmation of other evidence but a too - detailed
monitoring system (sometimes and not without justification referred to in this
case as nit-picking) may provide little evidence of real significance.
The rooms in various centres set aside for contact are often brightly painted
and appropriately furnished. But such surroundings cannot overcome the
artificial nature of the whole proceedings. I have often wondered whether
and how a more imaginative form of maintaining contact between parents and
children might be achieved. The making of an interim care order or a full
care order does not signal the end to rehabilitation and a return home, and the
principles enshrined in the Children Order, whereby the family unit should be
supported and maintained still apply, except in those cases where
rehabilitation in some form can never be contemplated.
The report of the social worker in charge for the Court hearing on 10 February
1998, set out in detail what had occurred according to Social Services.
It further reiterated the case being made by Social Services in support of a
full care order.
The
report also contains a summary of the case being made by Social Services at
that time. It states:
"It
is the view of Social Services that a return home to Mrs McA and Mr S is likely
to cause significant harm to the children and would therefore not be in the
best interests of either child. This is based on historical and current
concerns regarding both Mrs McA and Mr Ss' parenting."
It
then refers to Mrs McA and comments at paragraph 5:
"Assessments
completed by Dr P Pollock and Mrs P Donnelly indicate that McA despite being
well-intentioned towards her children, does not have the capacity to change her
parenting style and the likelihood of her children suffering significant harm
is high."
In
relation to Mr S it comments that his role in parenting the children is
limited, he had failed to engage with Social Services, not supported Mrs McA
and refers to his violence towards Mrs McA and his possession of pornographic
material. Significantly at paragraph 2 it states:
"There
is no evidence of an attachment between E and M with Mr S."
It then comments
that:
"It
is the view of Social Services that Mrs McA's parenting style and her inability
to change this, coupled with Mr S's lack of support and violence places both E
and M in a situation where they are likely to suffer significant emotional and
physical harm."
The grounds for
believing that the children were suffering or were likely to suffer significant
harm and that the harm would be attributable to the care given to the children
are "Mrs McA's part history of parenting, her inability to change this and
the concerns "outlined in the report. The report also states that
the reports from Dr Pollock and Mrs Donnelly would indicate that the children
were likely to suffer emotional harm as a result of the care given to them by
their parents. In relation to E the report comments that the quality of
her attachment to her mother is unclear and that she is young enough to be able
to make new attachments and that the issue of adoption needs to be given
careful consideration. [In the light of those comments, placed before a
Family Proceedings Court in February 1998, claims by social workers that
adoption had not been decided upon were disingenuous to say the least.]
The Care Plans for each child attached to these reports ruled out
rehabilitation of the children to their parents. The long term options
for both were identified as foster care or adoption. In the case of E
it was stated that further psychological assessment in relation to the quality
of her attachment to her mother would be required in order to make the most
appropriate plans for her future. In the event this psychological
assessment never took place.
The Guardian Ad Litem (then Mrs McBride) submitted a report dated 6 February
1998. In it she highlights the concerns of Social Services and the
allegations. She referred to the assessments of Dr Pollock and Mrs
Donnelly that Mrs McA's parenting was detrimental to the children's emotional
development. In relation to this she commented that "it is probable
that the likelihood of E and M suffering significant harm is high".
This would appear to be the basis upon which she recommended that a care order
be made. On 10 February 1998 a further interim care order was made
and the hearing fixed for 2 March 1998. A further report was lodged with
the court by the Trust but this did not add anything of significance to what
had already been submitted. The case was contested and both Mrs McA and
Mr S gave evidence. A care order was made. The grounds upon which
it was made were listed as
-
the risk of ongoing domestic violence between the parents;
-
Mrs McA is of such low IQ that she is incapable of caring for the children as
they grow [up];
-
Mr S's ability and motivation to care for the children is highly questionable;
-
E is displaying sexualised behaviour which can only arise from exposure to
inappropriate conduct within the home setting;
-
the concerns of the professionals are not shared by the parents and in the
event of the children being returned home the parents would not co-operate with
social services in the future;
-
the history of Mrs McA's five elder children and her own history of abuse call
into question her ability to properly parent any child.
Article
50 of the Children Order provides that a court may only make a care order if it
is satisfied that the child concerned is suffering or is likely to suffer
significant harm and that the harm or likelihood of harm is attributable to the
care given to the child or likely to be given to the child. The type of
harm referred to and which must be significant is ill-treatment (which includes
sexual abuse and forms of ill-treatment which are not physical) or the
impairment of physical or mental health or the impairment of physical,
intellectual, emotional, social or behavioural development. The case made
by the Trust, through the reports submitted, was that the children were
suffering or were likely to suffer emotional harm. It is not clear what
was meant by that label. I assume it was intended to mean the impairment
of emotional development. Before making a care order a court is required to be
satisfied that harm which is significant is being suffered or is likely to be
suffered. Thus there must be evidence before the court which leads the
court to be so satisfied. In cases of ill-treatment the evidence of the
harm alleged can be easily identified. In cases of the alleged impairment
of physical or mental health or, for example, the impairment of emotional or
social development it may be less identifiable and may depend upon the evidence
of psychologists. Many if not most of these cases are sufficiently
complex to justify transfer to the Family Care Centre, the court specially
created for care order applications, or further transfer. Allegations of
sexual abuse or serious physical ill-treatment also qualify for transfer to the
Family Care Centre (or further) but for different reasons. In making a
care order in respect of a child the court should record the type of
significant harm which it is satisfied the child has suffered or is likely to
suffer. In the record of this case there is no finding of significant
harm (its nature or type) about which the court was satisfied these children
were suffering or were likely to suffer. More significantly the harm which was
alleged by the Trust is not recorded and most of the matters recorded do not
qualify as matters of harm which the children were suffering or were likely to
suffer. For example, the concerns expressed by social workers (or others)
are not evidence of significant harm nor is failure of the parents to
co-operate with Social Services. This is not to say that a care order was
not justified in the circumstances of this case at that time. No appeal
against the making of the care order was lodged.
On 19 November 1998 Mr S lodged an application under Article 53 of the Children
Order in the Family Proceeding Court for contact with his children to be
defined. On 26 January 1999 this application was transferred to the High
Court to be consolidated with the originating summonses to free both children
for adoption without parental agreement, which were lodged in the High Court on
25 January 1999. Amended summons and Statements of Fact in support
thereof were lodged in the High Court on 4 August 1999. Mrs McA and Mr S
also apply for a contact order under Article 53.
Between the granting of the care orders and the lodgement of the originating
summons to free for adoption a number of developments occurred. Some of
these are set out in the comprehensive report dated 20 October 1998 to the
Adoption Panel and the reports dated 20 January 1999 submitted in support of
the originating summons to free the children for adoption. The
possibility of Mr S alone caring for the children appears to have been
dismissed, as this would, in the view of those concerned require extensive and
prolonged examination which would be difficult to monitor. No reasons in
support of this opinion were offered. Counsel on behalf of Mr S posed the
question why was he dismissed as a sole carer in this way. The children
were initially placed with experienced foster carers Mr and Mrs McC, but this
placement was unsuccessful. On 4 April 1998 the children were placed with
alternative foster carers with whom they remain. A good relationship
developed between the children and these foster carers. At a later date
the foster carers expressed a more than casual interest in becoming prospective
adoptive parents of the children but they withdrew their interest around
Christmas 1999. Thus alternative prospective adoptive parents have been
sought and the present foster carers are expected to withdraw as carers.
Late in the hearing the Guardian Ad Litem informed the court that the Trust had
made her aware that should a freeing order not be granted that this would place
the Trust in grave circumstances as there are no persons willing to act as
foster carers in the Trust's area. This is not a factor which this court
can take into consideration in these proceedings to free for adoptions; indeed
it is doubtful whether such a matter should ever have been mentioned in the
proceedings. The Trust sought care orders in respect of both children
which were granted and parental responsibility passed to them (jointly with the
parents) and Article 27 and Part IV of the Children Order requires a Trust to
provide maintenance and accommodation for children in their care. While
securing permanent arrangements for the upbringing of children in care (known
colloquially as permanency) is appropriate in some cases, there is no
requirement or onus on a Trust to apply for an order freeing for adoption, all
children committed to their care. It is only those children for whom
adoption is best and whose parents agree to the adoption or whose agreement can
lawfully be dispensed with, who should be adopted. This is what the
legislation requires and any other approach would be what Lord Templeman in Re
K 1998 described as "social engineering" . The decision as
to which cases are appropriate for an application to free for adoption is
sometimes a fine one and the timing of that decision may be crucial. Both
the decision and the timing of the decision may be relevant and significant in
the ultimate decision of the court on an application to free for adoption
without parental agreement.
Following the making of the care orders a Case Discussion took place on 12 May
1998. This involved the Children Resource Team and the Clinical
Psychologist. This according to the Adoption Panel report was held to
consider the outcome of the range of assessments and observations made
on the relationship between E and her mother and the implications for future
care arrangements. The documentation records the opinion of both the
psychologist and the Children Resource Team was:
1.
That E's attachment to her mother is an insecure/anxious attachment.
2.
Continuing contact with her mother will probably be damaging to E as she
becomes older.
3.
It is more likely than less likely that E will be able to transfer attachment,
but the time factor is of great importance.
4.
Adoption would provide E with permanent and secure attachment.
Consultation with the Trust's legal department took place on 16 June and 7 July
1998. At a Looked After Children's Review held in July in respect of both
children, it was agreed that adoption, as opposed to long term foster care
would be in the best interests of both children. The report to the
adoption panel noted that both parents were opposed to adoption. The
Adoption Panel gave their approval for an application to be made to the court
and subsequently an originating summons in respect of each child together with
reports was filed with the court on 25 January 1999.
Following the making of the care order several matters of significance
occurred. Contact between the children and their parents was initially
established on two occasions per week at the foster parents home. On the
advice of the clinical psychologist Mrs Patricia Donnelly this was reduced to
once per week and to be held at what was described as a "neutral
setting". Subsequently contact was reduced to once per fortnight and
the parents were told to seek legal advice regarding a contact order.
Article 53 of the Children Order imposes an obligation on a Trust to provide
parents with reasonable contact with their children, who are in care.
Once reasonable contact arrangements have been established, they cannot be
altered unilaterally by a Trust without an order of the court under one of the
provisions of Article 53.
The earlier reports to the court, upon which the care orders were made, stated
that further psychological assessment in relation to the quality of E's
attachment of her mother, would be required in order to determine the most
appropriate plans for her future. No such assessment took place.
This was a deliberate decision which was made after the granting of the care
orders. It requires some consideration. Significantly the Adoption
Panel were denied the benefit of that assessment as was the LAC Review held in
July 1998. The Case Discussion on 11 May 1998 was held to consider the
outcome of the range of assessments and observations made on the relationship
between E and her mother and the implication for future care
arrangements. It was the applicants case in these proceedings, voiced by
the social worker and senior social worker in charge of the case, that an open
mind was retained at all times on the question of adoption or foster
care. The history of this case would suggest otherwise and I remain
unpersuaded that an open mind was genuinely retained though it may have been
expressed in writing in reports (or verbally). In this regard the history
of this case and the decision not to assess further the relationship between E
and her mother is significant.
In 1997 the social worker in charge of the case referred E and her mother to
the Children's Resource Team Children's Psychologist (Dr P Donnelly) for
assessment. This assessment was to establish her developmental needs, nature
of attachments and management by her mother. Dr Donnelly reported in
October 1997 that "emotional development is within the normal range for
her age in that E shows signs of attachment to her mother". In her
opinion she stated that "E is a child of average development who has
developed strong attachment to her mother and younger brother. It is also
reported that she is attached to her father
.. There are no clear signs
of emotional disturbance and it is difficult to determine whether the quality
of her attachment is of an insecure or anxious type". She recommended
that Mrs McA be investigated further by Dr Pollock, Clinical
Psychologist. In January 1998 she was asked to comment further on the
probability of future psychological risk to E while in her mother's care.
To facilitate this she read reports by Dr Pollock and by Mrs Alcorn and also
spoke with the social worker and the Guardian Ad Litem. Why Dr Donnelly,
a witness on behalf of the applicant, should speak to the Guardian Ad Litem in
order to comment on the risks to E was never satisfactorily explained. In
the light of her perusal and conversations she stated in her report dated 7
January 1998:
"Whilst
no significant emotional disturbance has yet been detected for E (or M) one
must anticipate that it is unlikely to remain so and that the probability of
significant harm to their emotional social well-being is high.
.
Placement of children at the earliest age, prior to the development of such
behavioural patterns improves the long term prospects of the children."
She
recommended, as I have stated, that a care order he made in respect of both
children and that contact be maintained with Mrs McA at a regular interval and
designed to be minimally intrusive to the children's development. She
also recommended that all further assessments and attempts to maintain the
family as a unit should cease. Her conclusion and recommendations were
influenced by what Dr Pollock had written. In her evidence she identified
the harm to which the children might be exposed as "emotional abuse".
The chances of the mother being able to change her parenting style were such
that the risk for the children in the future were considerable. Much of
the evidence by all the Trust's witnesses on the question of future risk was
based on the experiences with Mrs McA's other children by her marriage to Mr
McA. Dr Donnelly stated said that "attachments" form the
building blocks for emotional and social relationships in life. She
identified the first attachment as vital to a child and after the child reaches
the age of three or four years the attachment is less vital. The ability
to form attachment is important as it will assist in determining whether a
child who is to be adopted will form attachments to adoptive parents.
At the consultation with the Trust's legal advisers on 16 June 1998 four issues
were considered. The notes disclose the following -
1.
Rehabilitation there is no plan to return the children to the care of their
mother.
2.
Quality of attachment to mother and benefit of ongoing access.
The attachment of
E to her mother has been assessed as being anxious/insecure and ongoing
contact with her mother could prove to be detrimental to both children as they
grow up. (see attached minutes of discussion 12 May 1998) [my
underlining]. [No such assessment had taken place though a decision was
made that the attachment was anxious/insecure].
3.
Adoption would provide stability at a higher level than fostering for the
children. The commitment of foster parents to the children they care for
is generally not as strong as the commitment of adopters. There is a
higher rate of breakdown in fostering.
4.
State care of children has been shown not to provide a healthy upbringing
for children and in meeting their needs. Therefore their needs can best
be met by adoption. The value of adoption is that it takes children out
of the care system. Where children of such a young age are not to return
home adoption where feasible is in their best interests. [my underlining].
[I comment that
this does not represent the current state of the law under the Adoption
(Northern Ireland) Order 1987 and is a grave misstatement of the law on
adoption without parental agreement and the proper approach to that difficult
issue.]
In response to this the Trust social worker team were advised that in regard to
access or contact, consideration would be given by the court to the extent to
which the parents had been encouraged to attend access and how fruitful it was
to the child. As the present weekly frequency of access was considered
not to be in the children's best interests the issue of reducing contact should
be kept separate from the adoption issue and the parents advised of their
rights to seek a contact order. The recommendations made included that a
LAC review will be held to make a decision that adoption is in the best
interests of the children and that if Mrs McA withholds consent the matter
should be brought to the Adoption Panel. {My underlining].
The Case Discussion on 12 May 1998 was attended by Melanie Wolfenden a Clinical
Psychologist attached to the Children's Resource Team from 1997.
Following the Case Discussion she was requested to consider a number of
questions relating to the arrangements for the long term care of E and M.
She had access to all the papers and reports including those of Dr
Pollock and Mrs Donnelly and also undertook observations of the children.
Mrs Wolfenden's report dated 18 January 1999 was co-signed by Mrs Donnelly.
In relation to E she concluded that "she forms relationships easily with
both adults and children and has a strong and secure attachment to her younger
brother and currently has a moderate attachment to her mother (in
strength). She is also attached positively to her current foster
family". She also found that E required consistent management set
within predictable routines and clear rules to moderate her behaviour. In
relation to M she found that he had no behavioural difficulties as a child and
that his strongest attachment was to his sister E. She considered both
children should be placed together. She reviewed the access records
provided by the social worker and found a clear pattern emerged. This was
that Mrs McA interacted constructively with M and E but less frequently with
E. She noted that disagreements between the parents at access had a
detrimental effect on the quality of the access. The conclusion reached
was that access was a positive experience for the children at present and
sufficiently so to continue at the present and at the present level. It
was recommended that no adjustment in contact should be made until the long
term managements for the children became clear. On the question of
rehabilitation the report states:
"(a)
Return to one or both parents. At present this does not appear to be an
option being considered, therefore we will not be commenting on it. It
has previously been assessed as not being in the long term interests of
either child." [My underlining].
At
page 16 of the report the psychologists stated:
"V.
Both children show evidence of moderate attachment to their natural mother
Irene McA, and generally positive experience from continuing regular access to
her. There is no evidence of significant attachment from either child to their
father, but neither positive or negative effects of access. Therefore
there is likely future benefit from long term access. Although there is a
diversity of evidence for and against long term access to birth parents within
the literature as it is at present, the balance is tipped slightly in favour of
continuing access where the attachments already exist."
On
the basis of these findings the psychologists (Miss Wolfenden and Dr Donnelly)
concluded that the "children were likely to benefit from long term contact
with their mother and there to be neutral effects from long term contact with
their father
. If a decision is taken to free the children for adoption
it would be preferable for some level of long term access to continue according
to the children's needs and wishes". The report concludes at page 18
with the following opinion and recommendation:
"It
is acknowledged in writing the following opinion and recommendation that there
are complex issues to be addressed and a balance of needs to be considered.
What is therefore outlined is the least worst option in difficult circumstances
-
both children be placed together;
-
as the priority of need is for stability, continuity and commitment to their
care this is best served by the children being freed for adoption;
-
in recognition of the benefits of access to their natural mother that an open
adoption arrangement be sought;
-
in the absence of an open adoption that the children cease contact with their
natural parents as fostering placement would be a less satisfactory option in
meeting the children's needs."
Open
adoption requires not just the agreement and co-operation of natural parents
but also the agreement and commitment of the prospective adoptive
parents. The concept of open adoption is relatively recent in Northern
Ireland and is not catered for in the adoption legislative framework of the
Adoption Order 1987. Neither parent was in agreement with this recommendation
for their children.
It is clear that this report had a significant effect on the case then being
prepared by the Trust on the application to free for adoption. The
originating summons is dated 25 January 1999 and requests the court to dispense
with the agreement of the parents to the adoption of E and M on the ground that
they are unreasonably withholding their agreement. There is nothing in
the evidence to suggest that the parents were ever asked to agree to open
adoption before the lodging of the application or before they gave evidence in
court.
The Case Discussion on 12 May 1998 concluded that the attachment between E and
her mother was an anxious and insecure one. This was not the conclusion
of any professional assessment carried out prior to that meeting. Miss
Wolfenden attended this meeting. In the light of her report one could not
conclude that this was a view which she either shared or expressed or could
have expressed at that time. She had just been assigned to the case to do
the work which culminated in the report dated 18 January 1999 and co-signed by
Mrs Donnelly her supervisor. Significantly the conclusions of this
meeting on 12 May 1998 informed the thinking and decisions of the
subsequent LAC Review, the legal consultations, the Adoption Panel, the social
work team and the Trust.
The receipt of this report by the social worker team of the Trust led to the
senior social worker and social worker referring the issue to Dr Pollock.
He replied by letter dated 19 February 1999 and marked confidential. This
letter states
"I
have been asked by Jackie Wardlow (Social Worker) and yourself to provide an
opinion regarding Mrs McA and M S's potential to be positively involved in post
adoption contact with their children E and M and to comment upon Mr S's
potential to act as a principal parent for the children if this option was
proposed to the Court. As you are aware I have provided a psychological
report on both individuals in the past. I will confine my opinion to my
observations previously and to recent records of contact provided to me by
yourselves.
I
would contend, based on a reading of the various contact sessions and my
knowledge of both individuals, that neither Mrs McA or Mr S would be capable of
sustaining a positive quality of contact with their children and that given the
psychological profile for each of them and their interaction as a couple, they
would be likely to engage in behaviour which could be detrimental to the
ongoing development and placement of the children, particularly E. I
would be most concerned that post-adoption contact would result in intentional
or incidental sabotage of the children's placements in adoptive care.
As
I have stated in my previous assessment of Mr S, I would have serious
reservations regarding his motivation and capacity to provide adequate
parenting for the children with Mr S McA in a lesser role. I am informed
that Mr S has been provided opportunities to forward himself seriously as a
principal parent for the children and has consistently failed to do so
satisfactorily. I have no positive evidence that would encourage me to
alter my opinion that Mr S is not capable of fulfilling the main role of parent
for the named children."
Armed
with this letter from Dr Pollock the Trust social worker requested Miss
Wolfenden and Dr Donnelly to reconsider the view expressed in their report
dated 18 January 1999. They did so in a report dated 24 February 1999 in
the following terms:
"Following
Dr Pollock's opinion that Mrs McA and Mr S 'would not be capable of "sustaining"
a positive quality of contact with their children', it is one opinion that the
hazards in continuing contact are therefore likely to outweigh any benefits to
be gained by the children from continuing access for their long term
care.
. Whilst in the family it is recognised that satisfactory
contact has been established during the part few months, disagreements between
Mrs McA and Mr S as well as a reversion to poorer quality contact as
predicted by Dr Pollock would be detrimental to both children, particularly
E who has already shown herself to be sensitive to witnessing such
behaviour. In addition to the direct hazards outlined, there are
potential secondary effects of a destabilisation of placement which are likely
to occur. It is our opinion that the strength of attachment to either
parent by either child is insufficiently strong to warrant the exposure
to the psychological risks predicted by Dr Pollock should contact
continue. It is therefore our revised opinion that no contact with
natural parents following adoption should be agreed." [My
underlining].
Both
psychologists then stated that closed adoption was their preferred
recommendation.
It is not usual for applications to free children for adoption to be brought
where there is an attachment between children and their parents and meaningful
contact between them. If contact post adoption is to continue it requires
the type of co-operation and relationships to which I have referred. The
report of Miss Wolfenden and Dr Donnelly dated 24 February 1999 represented a
very substantial change of mind by them. It was based entirely on Dr
Pollocks' single comment which they were careful to set out. Thus the
parents attitude at and towards contact became the subject of intense scrutiny
by the social work team. In addition views expressed by Dr Pollock and
the about turn by Miss Wolfenden and Dr Donnelly became the subject of vigorous
examination by counsel on behalf of the parents to which I will refer later in
this judgment.
Mr S made a written statement dated 11 August 1999 in which he indicated that
he wished to be considered as a full-time carer of his children. The
senior social worker requested Dr Donnelly to consider and comment on the
likely impact on either or both children of the assessment process required and
the impact of possible delay. Dr Donnelly replied on 20 August 1999 and
after commenting on the attachments of the parents to each other, the possible
nature of an assessment and potential disruption for the children stated:
"In
summary therefore I believe that Mr S's request for assessment as the carer for
his children needs to be balanced against the undoubted impact this will have
on the children and the likelihood that he will comply any better than on
previous attempts to engage him in such a process."
It is a fact that Mr S has never been assessed as a sole carer for his
children. Dr Pollock carried out a psychological profile of him on the
basis that he and Mrs McA remained a couple. That is no longer the
case. He told Dr Pollock he would give up his job and become the
children's carer but Dr Pollock rejected this suggestion because he considered
that the domestic situation would revert to Mrs McA resuming the role as carer
of the children. There was no evidence that this would be the case other
than Dr Pollock's opinion on it. It was never tested. In August
1999 he offered himself as a sole full-time carer and this was never tested
either. It was not the case that Mr S lacked the capacity to act as carer
of his children rather that his motivation to do so was doubted given his lack
of involvement with the children when he and Mrs McA were a couple. Then
his attitude was I work and provide financially for the family and their
mother cares for the children a not uncommon situation. When asked what
difference there was between Mr S and a working man who is widowed and left
with two children to raise, Dr Pollock replied 'Not a great deal'. Why Mr
S required to be assessed in the first instance was never satisfactorily
explained. It was Dr Pollock's evidence that when he interviewed Mr S he
presented himself thoughtfully and responded appropriately on issues relating
to child care.
Essentially the case against this couple was that the mother's style of
parenting and management of her children was inappropriate and that the father
had not cared for the children in the past and remained untested. Dr
Pollock's opinion was that Mrs McA's low reaction threshold when stressed
caused her to adopt a forceful parenting style when under stress. As her
children would grow older and make more demands on her so the stress levels
would increase and exacerbate her poor parenting style. Dr Pollock did
not observe her with her children nor did he see the children at any
stage. However he identified the main area of risk to the children as
potential emotional dysfunction in the future if Mrs McA continued to provide
the same presenting style. Dr Donnelly carried out an assessment on E and
her mother in September 1997 and reported that at that time there were no clear
signs of emotional disturbance in E. It is significant that at that time
Dr Donnelly was requested to consider, inter alia, the nature of her attachment
to her mother. She commented that it was difficult to determine whether
the quality of that attachment was of an insecure or anxious type. When
Dr Pollock reported that Mrs McA's psychological assessment indicated that she
was unlikely to be able to change her reaction to E's future increasing
demands, Dr Donnelly was asked to comment on the probability of future
psychological risk to E while remaining in her mother's care. On 7
January 1998 Dr Donnelly reported that while no emotional disturbance had been
detected for E or M "one must anticipate that it is unlikely to remain so
and that the probability of significant harm to their emotional and social
well-being in the future is high". It is clear that the social work
team had no confidence in Mrs McA or Mr S. They reviewed her as
responsible for her other children being taken into care and for damage caused
to them. The social worker and senior social worker were determined, at a
very early stage that this pattern as they saw it, was not going to be repeated
for E and M and they were from an early stage, probably in 1997, set upon
a course which would lead to the adoption of these children. Hence the
significance of the social worker requesting Dr Donnelly to consider the nature
of E's attachments in 1997. The social work team were also convinced that
the domestic incidents referred to including the alleged violence, within the
home was substantially the responsibility of Mr S.
In their report dated 18 January 1999 Dr Donnelly and Miss Wolfenden did not
comment on the return of the children to one or both parents. They were
firmly of the opinion that both children should remain together and supported
the application that both children be freed for adoption.
Professor Tresiliotis was engaged by the applicant Trust to advise and
report. In all he provided four reports 19 August 1999, 4 November
1999, 30 November 1999 and 5 February 2000. In his report of 19 August
1999 he set out the findings of research by himself and others about the
relative merits of adoption over long term foster care or a residence
order. I will return to this later. In his second report he dealt
again with the issue of adoption and long term fostering as well as post freeing
and post adoption contact. In that report he concluded that adoption was
preferable to long term foster care. He recognised that a case could be
made for the status quo but considered it would be a lesser form of permanence
for the children in the long run. He recommended that neither parent
should have face to face post adoption contact and gave his reasons for
that. In his report dated 30 November 1999 Professor Tresiliotis
commented on the reports of Dr Fitzpatrick and Mr Quinn (not called to give
evidence) filed on behalf of the respondent parents. In addition he
provided a risk analysis in relation to two potential scenarios
1. if the children are not freed for adoption and 2. if the
children are freed for adoption, the effect of post freeing and post-adoption
contact. The risk analysis if the children are not freed for adoption, is
a detailed study based on alleged facts which in the papers supplied to
Professor Tresiliotis, not all of which have been shown to be correct.
For example there is no reliable evidence that E is afraid of her father and
too much emphasis is placed on Mr S's alleged violence in the home.
Whilst this risk analysis is of some assistance it has to be considered against
the facts which are proved or accepted. Professor Tresiliotis' final
report dated 5 February 2000 was a comment on post adoption contact based on
further information made available to him from Social Services. This
information related to details of contact visits between the parents and the children
over a period of time and which showed a strengthened relationship between the
children and their parents. In commenting on post adoption contact he
stated
"What
I have said would suggest that post adoption contact might prove hazardous to
the placement. At the same time the cessation of contact now that the
relationship between the children and their parents has somewhat been
strengthened because of the contact visits, it could create uncertainty and
anxieties, especially in E, with the danger of a breakdown in the adoption
arrangements."
Professor
Tresiliotis reported on the papers supplied to him. He did not speak to
or observe the parents or the children. In his evidence he stated that
there is a meaningful relationship between E and her mother but not a strong
one - there are attachments with some positive benefits. However he also
considered E felt insecure due to her mother's relationship with her
father. In relation to M he felt the consistency of contact visits had
helped Mr S establish a relationship with M to the extent that M recognises him
as his father. He also stated that the children have a relationship with
their foster carers and that it would be almost abusive of the children to
remove them from their care. He agreed with Mr Ferriss QC that adoption
by persons other than the present foster carers would be a double blow to the
children. He considered their relationship with their present foster
carers to be more meaningful than their relationship with their parents, but
acknowledged that the relationship between E and her mother was a stronger
relationship than that with her father. During cross-examination by Mrs
Quinn BL for the father, he stated that contact has strengthened the
relationship between parent and child to the point that an adoption might be
threatened by future contact. This is an indication of the extent of the
relationship between the parents and the children. Nevertheless he was
disturbed by the reports about the relationship between the parents, their
conduct at contact and the effect of both on the children. If the
children were not freed for adoption he thought the frequency and duration of
future contact should depend on the reaction of the children to contact.
Dr
Geraldine Fitzpatrick is a Consultant Psychiatrist at St George's Hospital in
London. She was requested to report on the family by N Shannon & Co
former solicitors on behalf of Mr S and did so in November 1999. She did
not consult with the parents or children but reported on the documentation supplied
to her. She was not called by either respondent to give evidence but was
called by the applicant Trust who supplied her with information from recent
contacts. Part of the information supplied to her was that Dr Donnelly
the Psychologist had reported that E's attachment to her mother was
"insecure/anxious". Based on the documentation provided to her
and in answer to questions posed in her letter of instruction she stated
"The
documents described aspects of Mrs McA's 'good enough parenting' but also
concerns about poor hygiene, inadequate supervision, exposure to domestic
violence, expose to harsh and inconsistent limit setting, exposure to a failure
to recognise age appropriate behaviour in a young child. E is also
described as head-banging and throwing herself against furniture. This
environment together with the described behaviour indicate that it is highly
likely that this child suffered emotional abuse whilst in the care of her
mother/parents. Such children do not develop a secure attachment to
their parents. In my opinion E has an insecure, ambivalent attachment to
her mother." [My underlining]
In
her evidence she revised her assessment of the attachment to a "disordered
attachment". She also commented on Mrs McA's background as being insecure
within her own family and stated that it is well known that persons like her
have difficulty parenting children. She had no doubt from what she had
read that E's attachment to her mother was insecure. In answer to Mr
Ferriss QC she categorised E's attachment as "borderline ambivalent
attachment" and as "disordered attachment" but accepted that E
shows some features of positive attachment to her mother.
In relation to M she concluded that he had experienced attachment to his mother
but given his age his primary attachment would be to the person meeting his
daily needs. For children his age she usually recommends adoption.
Dr Fitzpatrick's views based on research which considered the outcome of foster
placements and adoptive placements, was that adoption is the preferred choice
for young children. It is the least disruptive. In the
circumstances of this case and on the basis that the children's needs are
paramount she was unable to recommend post adoption contact and she was adamant
about that. She stated further than in England and Wales direct contact
between children and their natural parents is not recommended for children
under 5 years of age. She also commented that it was unusual to recommend
long term foster care. She stated there was no evidence of any
significant attachment between the father and either child, but there were
positive signs in recent contact with their father. It was clear from her
evidence that her opinions were all based on the premise that the child's needs
are paramount in any decision making process. She was also of the view
that whilst the children may gain some benefit from direct contact with their
mother in the long term, this should not be the deciding factor in any future
care plans and that arrangements for future contact should only be considered
within the context of the final care plan. I assume the reference to the
final care plan was a reference to the decision whether or not the children
would be freed for adoption.
In the summer and autumn of 1999 there was a flurry of requests to various
personnel to comment on the reports or statements made by others involved in
the case. One aspect of this to which I have already referred was the
heightened observation and reporting on contact visits. Another was a
request to Dr Donnelly to comment on various matters following consultation
between some Trust personnel and witnesses with senior counsel on behalf of the
applicant. These requests were made by way of letters dated 28 September
1999 and 19 October 1999 to Mrs Donnelly.
The
letter dated 28 September 1999 stated:
"We
refer to the above matter and would thank you for facilitating the Consultation
on 27th instant. In essence we write to confirm the position
in relation to your Reports as directed by Mr S Dinsmore QC:-
a.
A Report detailing the potential of the adverse effect that an Assessment of Mr
S could have on the children, especially in light of Dr Pollock's comments that
Mr S's motivation and abilities to provide care require extensive and prolonged
examination and testing at a practical level. Such Report not to be
commenced until we are in receipt of Dr Pollock's Report as outlined
above. We have arranged a further Consultation with Dr Pollock on 30th
instant to qualify this exercise.
b.
A Report commenting on the Expert Evidence/Reports of Mr Quinn and Dr Geraldine
Fitzpatrick Consultant Child & Adolescent Psychiatrist who has a close
liaison with Social Services Departments in London. Obviously we will
seek leave of the Court to commission these comments and this will be attended
to at the next review.
c.
An Addendum Report, (to that Report dated 20th August 1999) to
clarify the issue and meaning of attachment within the context of this
case. We also enclose herewith updated contact Records pertaining to the
period between January and August 1999 and would ask you to forward any
comments which you may wish to make.
Thanking
you in anticipation of your assistance herein."
The letter dated 19 October 1999 stated:
"We
refer to the above matter and to our correspondence dated 28th
September 1999 requesting Reports and would advise as follows in respect of
same.
1.
Report detailed at point a:- we have on even date consulted with Dr Pollock who
has now been requested to prepare his Report. Please note that same will
be issued to you as soon as is possible to allow for completion to your own
Report.
2.
Report detailed at point b. can not be completed until we have sight of
Reports of Mr Quinn and Dr Fitzpatrick which are still presently outstanding.
3.
Report detailed at point c, should deal with the following issues:-
·
The nature and strength of the attachment between Mr S McA, Mr S and each of
their 2 children E and M
·
The nature of the contact since the children have been placed in foster
care. Specific emphasis should be placed on the quality of the contact
which exists between both parents and their children, the level of such contact
and its effect on the welfare of both children. We would also ask you to
consider the ability of both parents to co-operate with the Trust and the
children's placement and their ability to sustain and meet the needs of both
children in the future.
We
enclose herewith a schedule of documentation which may be of assistance in your
preparation of this Report.
Thanking
you in anticipation of your assistance herein."
Dr
Pollock was asked to clarify his original report of 3 February 1999 on the basis
that Mr S wished to be considered as a sole carer. In his February report
he stated that "Mr S's motivation and abilities to provide this care
require extensive and prolonged examination and testing at a practical
level". It is important to remember that the children were not taken
into care because he lacked the capacity to parent them to the standards set by
the social work team. Dr Pollock commented that an assessment of Mr S
would need to comprise:
(a)
a residential assessment within a relatively controlled environment;
(b)
a residential assessment in a less controlled environment;
(c)
continuing work on a regular basis with the Family Care Centre.
and
that prior to these assessments contact between the children and their father
would need to be substantially increased. In addition he was to clarify
his February 1999 in which he stated that "it would be most beneficial in
the long term for Mrs McA to remain in contact with the children in whatever
form decided by the court, but placement to be elsewhere in this
case". He stated that the benefit was considered to be for Mrs McA
and not the children at that time and referred to a number of features of
contact which caused him (in February 1999) concern to the extent that he queried
their capabilities to sustain a positive quality of contact with the
children. This opinion was based on his knowledge of the parents at that
time and the content of the contact sessions. In cross-examination by Mr
Ferriss he was less dogmatic about what he meant in his February 1999 letter
and eventually his evidence was that contact was beneficial for both children
and Mrs McA. In cross-examination by Mrs Quinn he stated that his views
expressed at pages 2 and 3 of his October 1999 letter to the Trust solicitors
were based solely on the contact records provided to him which he assumed was
the totality of contacts and records. He was then taken through the
contact records for the contacts referred to at page 3 of his October letter
and it was demonstrated by Mrs Quinn that the views expressed by Dr Pollock
were not borne out by the detail in the contact records (and the case being
made on the contact issue was substantially undermined) and he acknowledged
that the references to negative matters only (and not the positive factors
which were present) did not give a balanced picture of the contact
situation. In his clarification letter of October 1999 Dr Pollock
referred to being asked to clarify his statement at paragraph 2 of his report
dated 19 February 1999. I think this must be a mistake for his comment at
page 3 of his report dated 5 January 1998. Whether he was referring to
contact being beneficial for the mother or the child or both has to be
considered in the context of that report which was supporting the removal of
the children from her care and providing information about the children's
future. Having heard his evidence and explanation about this and
considered the reports in context I think it is more likely he had the children
and their mother in mind when he wrote that contact would be beneficial.
I do not accept that it related to Mrs McA alone. It was never
satisfactorily explained why this statement required clarification in the first
place unless it provided an opportunity to re- state the case which was then
being made.
This letter from Dr Pollock dated 21 October 1999 was then forwarded to Dr
Donnelly who was asked to comment on a number of issues. These were
1.
the meaning of attachment;
2.
the nature and quality of the contact;
Her
report dated 28 October 1999 contains a lengthy dissertation on the theory of
attachment in children. On the question of contact she stated that it was
difficult to determine if the children gain any benefit from it. She said
that the contact reports suggested that Mrs McA was generally able to comply
with the contact parameters but that M S was more erratic in doing so.
She considered the attachment of the children to their parents had changed over
the past two years. E's attachment to her mother was described as being
then "moderately to mildly strong but continues to be of an ambivalent
nature". Her weak attachment to her father had not changed. In
relation to E's ability to form attachments she stated significantly
"the development of these attachments demonstrates E S's capacity to form
such relationships when once an appropriate adult is available".
When cross-examined about this by Mrs Quinn, Dr Donnelly was unable to explain
either satisfactorily or at all what she meant by this. In the context of
this case it seems to refer to the capacity for attachment necessary for
adoption. M's attachment to his father was described as weak and to his
mother as not yet formed. She reported that Mrs McA's co-operation with
Social Services was good and that she consistently complied with all
arrangements. She considered she would be able to sustain her commitment
to contact in the short to medium term but felt her long term commitment would
be dependent on other factors in her life which are prone to disruption.
She considered M S's level of co-operation with Social Services unlikely to
improve and more likely to deteriorate particularly if unsupervised contact
were to occur. She then commented on Dr Pollock's opinion as to the level
of assessment which would be necessary to gauge Mr S's capacity to care for the
children. She described it as an arduous assessment process with which I
would agree and why it required to be so was never satisfactorily explained.
She ruled it out as too disruptive for the children. The impression that
the assessment level was set so high as to lead to such disruption for the
children was never dispelled from the case. I have set out the progress
of this case from 1997 in some detail as it shows how the situation evolved and
changed with the passage of time and in response to other developments.
It can be seen that all the expert witnesses called on behalf of the Trust were
of the opinion that these children should be adopted. Some had the
opportunity to report following direct contact with the parents or the
children, others reported on the papers provided to them. Some depended
on the assessments or conclusions of others for the opinions which they
expressed. In some instances the validity of the early assessments or
conclusions was crucial. An instance of this was the conclusion that E's
attachment to her mother was of the anxious/insecure type. Initially
adoption with contact was proposed because of the relationship and attachment
between E and her mother. This was abandoned because of the potential
difficulties with post adoption contact in favour of adoption and no contact or
indirect contact only. In order to attempt to demonstrate that this was
the route to follow a major exercise was mounted to observe, assess and report
on the contacts which the parents had with their children. Every negative
matter which arose at contact was seized upon. Some were justified, many
others appeared petty and nit-picking, as I observed earlier. I
considered those contacts carefully. I was not persuaded to draw the same
view or inference from these as did social workers and other witnesses
from them. Undoubtedly there were difficulties and on occasions the
parents or one of them was at fault. Contact in such circumstances for
parents is a difficult issue and in ways it was surprising how well these
parents, in the light of what was written about them, struck at it. I
think even the social workers were surprised at their commitment. Mr S
was able to build a relationship through contacts with his son M. Both
parents have maintained a relationship through supervised contact for over two
years. The main difficulties with contact have been the occasional
argument between the parents and one incident apart, there is little to suggest
that these have caused any harm to the children.
After the children were taken into care they went to live with foster
carers. This was not a happy placement for them and in April 1998 they
moved to new foster carers with whom they have remained to the date of
hearing. This has been a most successful placement. The foster
carers are an excellent couple in their fifties. The children in
particular E formed an attachment to them and they to the children. The
foster carers were described as committed to the children so much so, that
early on they indicated that they might be interested in adopting them.
Sadly, and for good personal reasons, they withdrew that indication in January
1999 and the same time indicated that they could not provide indefinite foster
care. This was unfortunate because the parents had a reasonable
relationship with the foster carers. Mr Ferriss QC in his closing
submissions argued, with much justification, that the children should have been
moved at that stage. This would have presented Mrs McA with an
opportunity to continue contact with the children at a time when the children
would have been living with foster carers who might have become prospective
adoptive parents, content to continue the contact arrangements. The
present position is that a couple have been identified who might be suitable
but the recommendation would be for very limited indirect contact.
Whatever be the outcome the children will require to leave their present foster
carers.
Since the making of the interim care order both parents have been committed to
maintaining contact with the children. I have already commented on what
was written about contact by Dr Donnelly, Miss Wolfenden and Dr Pollock.
On 5 February 2000 shortly before the case Professor Tresiliotis was asked to
comment on the question of contact. He wrote:
"
the cessation of contact now that the relationship between the children and
their parents has somewhat been strengthened because of the contact visits; it
could create uncertainty and anxieties, especially in E, with the danger of a
breakdown in the adoption arrangements. As already said such anxieties
and uncertainties increase when the children have to separate simultaneously
from foster carers and also parents."
In cross-examination Professor Tresiliotis went so far as to say that it would
be traumatic for the children to separate from the present foster carers and
also from their parents. Mrs McNamee accepted that if the relationship
between the children and their parents was worth preserving and maintaining
then that would point towards foster care as the appropriate outcome rather
than adoption. However, foster care is not without problems due to the
shortage or lack of foster carers in the applicant Trust's area. This was
reported by the Trust through the Guardian Ad Litem. This is not a factor
which should be relied on in an application to free for adoption without
parental agreement and has no bearing on the outcome of this application.
In any event the Trust should not be confined to their own area for foster
placements in an area the size of Northern Ireland.
I have set out the history of this family and the actions of the applicant at
some length because it is relevant to the two central issues which arise in any
application to free children for adoption without parental agreement. The
issues require to be considered in the light of that history and not divorced
from it and the decisions made based, where relevant, on that history and in
the circumstances as known at the time the decision is made.
The making of an adoption order is a very grave matter indeed. It is so
because of the nature and effect of the order. If gives parental
responsibility for the child to the adopters and operates to extinguish for all
time, parental responsibility which the child's natural parents have had since
birth see Article 12 of the Adoption (Northern Ireland) Order 1987.
'Parental responsibility' is defined as "all the rights, duties, powers,
responsibilities and authority which by law a parent of a child has in relation
to the child and his property" see Article 6(1) Children (Northern
Ireland) Order 1995. The important word is probably 'responsibility' for
parenthood brings with it responsibilities and duties and where parents fail in
their responsibility towards their children, then some other person or body has
to step in and assume responsibility. But 'parenthood' also involves ties
and relationships of natural love and affection, held by parents towards their
children and children towards their parents, even in adversity. To break
those ties is a grave matter. To do so against the wishes of the parent
who loves that child is more so. Applications to free for adoption
without parental agreement in cases in which parents have ill-treated or abused
their children in one form or another, will be clear or clearer and the
decision-making process less complex. Other cases in which such
allegations do not arise, may not be so straightforward and again there may be
others which lie somewhere in the spectrum, which are unclear or less clear.
An application to free a child for adoption without parental agreement gives
rise to two questions which in general terms may be stated as 1. is adoption
in the best interests of the child and 2. should the agreement of the parent be
dispensed with on one or more of the grounds set out in Article 16(2) of the
Adoption Order.
In relation to the first question the duty of the court is to promote the
welfare of the child. Article 9 of the Adoption Order states:-
"Duty
to promote welfare of child
9.
In deciding on any course of action in relation to the adoption of a child, a
court or adoption agency shall regard the welfare of the child as the most
important consideration and shall
(a)
have regard to all the circumstances, full consideration being given to
(i)
the need to be satisfied that adoption, or adoption by a particular person to
persons, will be in the best interests of the child; and
(ii)
the need to safeguard and promote the welfare of the child throughout his
childhood; and
(iii)
the importance of providing the child with a stable and harmonious home; and
(b)
so far as practicable, first ascertain the wishes and feelings of the child
regarding the decision and give due consideration to them, having regard to his
age and understanding."
Thus in deciding on any course of action the Court shall regard the welfare of
the child as the most important consideration. In addition the court must
have regard to all the circumstances and give full consideration to three
issues. These are the importance of providing the child with a stable
and harmonious home; the need to safeguard and promote the welfare of the child
throughout his childhood and more importantly the need to be satisfied that
adoption will be in the best interests of the particular child. The use
of the word 'satisfied' imports a standard of proof commensurate with the
issues raised. By contrast (of a limited nature) the Children Order
requires a court when determining any question relating to the upbringing of a
child to regard the welfare of the child as the paramount consideration.
The Adoption Order requires something less than the paramountcy principle
because there are wider issues involved in applications to adopt and also
because of the draconian nature of an adoption order and also its
finality. It was clear from the evidence of the social workers and on
occasions from what was written that they regarded their duties under the
Children Order to be driven by the paramountcy principle. The Children
Order is very clear the paramountcy principle applies to the court alone (and
to a Guardian Ad Litem appointed under the Children Order). The duty of
Social Services is enshrined in Article 18 and requires them to safeguard and
promote the welfare of children and so far as consistent with that duty to
promote the upbringing of such children by their families. Thus the duty
of Social Services is wider and family oriented. When an authority is
looking after a child either voluntarily or as a result of a care order their
duty is to safeguard and promote the welfare of the child see Article 26 of
the Children Order. In addition every authority looking after a child
shall provide him with accommodation and maintain him see Article 27(1).
Under Article 27(2) an authority fulfils its duty to provide the child with
accommodation and maintenance by
"(2)
An authority shall provide accommodation and maintenance for any child whom it
is looking after by
(a)
placing him (subject to paragraph (5) and any regulations made by the
Department) with
(i)
a family;
(ii)
a relative of his; or
(iii)
any other suitable person,
on
such terms as to payment by the authority and otherwise as the authority may
determine;
(b)
maintaining him in a home provided under Part VII;
(c)
maintaining him in a voluntary home;
(d)
maintaining him in a registered children's home;
(e)
maintaining him in a home or institution provided by a government department or
a prescribed public body; or
(f)
making such other arrangements as
(i)
seem appropriate to the authority; and
(ii)
comply with any regulations made by the Department."
Thus there are various options open to an authority looking after a child only
one of which is placing the child for adoption. Maintaining the child at
home is also an option, which was the initial option in this case and which
seems to have fallen by the wayside. During the course of the hearing the
court heard much about the concept of permanence or permanency and also about
Social Services policy for the care of children in the long term, in particular
for babies and children up to five years of age. Permanence is a word and
concept which requires to be used with caution. Far too often it is
employed as a pseudonym for adoption. So far as the courts and the
Adoption (Northern Ireland) Order 1987 are concerned there is and can be no
policy for children of any age. If parents agree to adoption of their
children, so be it (though that does not remove the obligation for the Court to
be satisfied that adoption is in the best interests of the child). If the
parents do not agree then each case requires to be considered on its merits and
parental agreement dispensed with, only in appropriate cases. Such
decisions cannot be driven by Social Services policy whether supported by
research or not. Parliament has set the provisions of the Adoption Order
1987 as the standard and the test and this requires to be adhered to.
Thus decisions made by social workers or teams of social workers which are
driven by policy decisions and the latest research, require to be considered
carefully by the courts. There can be no economic argument that it is
cheaper to have children adopted than kept in long term foster care nor should
deficiencies in residential homes or long term foster care be used as arguments
in favour of adoption against parental agreement. It was therefore with
very great concern that I read the comments made by the social worker at the
legal consultation on 12 June 1998, which I have already set out earlier in
this judgment. There can be no policy to take children out of the care
system by means of the Adoption Order. Each case requires to be
considered on its own merits. Children should only be removed from their
parents if the threshold criteria (significant harm or the risk of significant
harm) in Article 50 of the Children Order is satisfied and the court considers
that the making of such a care order would be better for the child than make no
order at all. It would be a sorry state of affairs if the care which
would be provided by the State is no better (or maybe worse) than the care
provided at home. If that is a risk and the comments made at the legal
consultation, to which I have referred, suggest it may be possible, then it
should be a factor borne in mind by those charged with the responsibility of
making care orders. It seems to give rise to the question will the
authorities do any better (or worse) than the parents? Where a child is
taken into care or looked after by a Trust, the Trust act "in loco
parentis". Under Article 27 of the Children Order, to which I have
referred, the Trust is required to provide appropriate accommodation and
maintenance for a child in care. The type of accommodation in which the
child may be placed is set out in Article 27 and includes a family and a
suitable person (referred to as an authority foster parent). Mr Ferriss
QC was critical of the extent of the research and carried out by Professor
Tresiliotis and others and the small number of placements concerned in the
research. That is a relevant factor but it does not diminish the
conclusions drawn for the placements concerned, and in that regard, shows what
may be described as a trend. It seems implicit in the research (albeit
limited) carried out, that foster placements may be deficient in providing
appropriate accommodation as an alternative to care at home. The comments
made by the social worker at the legal consultation, to which I have referred,
suggest that the social workers, if not the Trust, were of a similar view to
that expressed by Professor Tresiliotis (and supported by Dr
Fitzpatrick). If it be correct that there is such a deficiency then it is
a deficiency in a placement provided, organised and controlled by the
authorities. In determining whether or not to free a child for adoption
without parental agreement, should a court take into account, when choosing
between two such placement options, that one of these options provided by the
authorities is deficient and therefore promote the other, namely adoption,
which is to be ordered without parental agreement. I am not persuaded
that it would be just to parents (or in the best interests of children) to act
upon such a deficiency alleged or otherwise. For those reasons I do not
consider the views expressed by Professor Tresiliotis in his reports and
evidence, which emanate from his and others research, should be taken into
account on the issue whether adoption is in the best interests of a child who
is in foster care. I should add that, in this case, there has been
nothing but the highest praise for the foster parents with whom these children
have been placed.
This case has raised a number of matters about which I am concerned. It
was the Trust's case (and the evidence of the social worker and the senior
social worker) that an open mind was kept, on the question of the future of these
two children, until the decision was made in June 1998 that they should be
placed for adoption. I am not persuaded that this was so. The
social work team was of the view, firmly, that Mrs McA had damaged her children
by her marriage and there was a determination that she would not do the same to
E and M. Adoption was the plan for these children, probably from
1997. A determination (if not more) that these children should be
adopted, was evident. The care plan at the time of the interim care order
was that the children remain at home whilst other matters were
considered. I was not impressed with the way these children were removed
from their home and not returned after a short period. Mrs McA's broken
arm created a crisis which required to be dealt with. Mr S did not respond
appropriately. Once the matter came back to court he realised he had to
do something and he offered himself, not before time, as the carer. A
psychological profile by Dr Pollock was not what the situation required.
The children could have been returned to him and his care of the children
monitored. The only real criticisms made of Mr S, were his lack of
motivation and his attitude to social services. He is a laid back person
but he is no fool. He showed himself to be very articulate and intelligent
and understood the issues. I was not persuaded that he was the instigator
of all the domestic violence which may have occurred. He is the sort of
person who can walk away from situations. I have no doubt this type of
reaction by him infuriated Mrs McA (and indeed the social worker, who did not
have a good relationship with him). Mrs McA is very volatile and at times
an unstable person, which was evident on occasions when she gave her
evidence. I am not persuaded that M S was often physically violent towards
her. Undoubtedly there were rows and the police called, but of the two
she seemed the more likely to be violent. The social workers acceptance
that he was constantly violent towards her (based on what she told them)
undoubtedly led to his being to use his counsel Mrs Quinn's words, largely
"written off" by Social Services. I suspect they felt once a
care order or interim care order was made, that he would disappear from the
scene. Instead he offered himself as a carer and by June was actively, with
his solicitor, seeking more contact with his children. He has attended
most contacts with his children. He is criticised for leaving the room
for periods. I do not place the same weight on that. I think he
finds contact in the conditions imposed difficult to handle. He is
a complex person who can be very difficult and does not welcome interference
from any source, never mind Social Services. I am concerned that from
January 1998 his role as a potential sole carer was not fully considered.
When the care order was made, Social Services undertook to assess the
relationship (attachment) between Mrs McA and E. This was not carried
out. There was a meeting in May 1998 at which, according to the minutes,
it was concluded that the attachment between them was insecure and
anxious. How that decision was arrived at was not clear. Miss
Wolfenden had only recently been assigned to the case and would not have been
in a position to reach such a conclusion and so advise the others present at
the meeting. Those present at the meeting may have reached that
conclusion from such written material as may have been before them (as Miss
Wolfenden said she had done). If they did so this was not an assessment
or a sufficient assessment of the attachment between them which had been
envisaged earlier and reported upon and which was to be undertaken. If it
was reached on the papers why could that decision not have been arrived at
earlier. There was a suggestion that the attachment was affected by the
fact of separation and the nature of the contacts. However I was not
satisfied that this was sufficient justification for the conclusion. The
decision making process was to my mind unsatisfactory and none of the evidence
dispelled that view. This was a vital decision for these children and
their parents and the manner in which it was decided upon was never
satisfactorily explained. This decision underpinned the subsequent
decision making process, the submission to the Adoption Panel, the Adoption
Panel decision and the application to free E and M for adoption.
Contact
was originally set at two visits per week. Subsequently this was changed
by the Trust both as to the frequency per week and the venue. The
attitude of the social work team to the parents was "if you do not like
it, seek legal advice". This was contrary to the letter and the
spirit of the Children Order. Once reasonable contact has been
determined, it can only be altered by court order and not unilaterally by
social workers, except in emergency situations covered by Article 53(6).
The reduction in contact had the potential (whether by design or not) to break
or weaken the relationship between the parents and the children. I find
it difficult to understand how the decision to change the location to what was
described as a 'neutral' venue, could have anything but the potential to weaken
the relationship and may well have been so designed, given the speed at which,
following the move to the second foster carers, the decision was made that
these children should be adopted.
If
Miss Wolfenden did decide on the papers that the attachment/relationship was of
the anxious and insecure type the report submitted in January 1999 was not
entirely consistent with the decision apparently reached in May 1998. This
report was largely Miss Wolfenden's work, though co-signed by Dr
Donnelly. It created a significant difficulty for the Trust's application
to free the children for adoption without parental agreement. Rather than
accept the report for what it said the social work team embarked on a strategy
to undermine it and eventually cause the authors to change their mind. A
not dissimilar strategy was employed the following autumn in relation to the
contact issue. This whole process was far from satisfactory. Witnesses
were being asked to reconsider their views based on what some other witness had
now written or in one case clarified. That clarification was never
justified to my mind. A lot depended upon the views expressed by Dr
Pollock a highly qualified psychologist. A certain discomfiture was
evident. Whether this was due to the fact that he had also interviewed
two of Mrs McA's other children for the purpose of a criminal injury
application relating to their care at home, (which he properly brought to counsel's
attention) or the use to which his clarification letter and report of 21
October 1999 were put or the case generally, as it stood at the time of
hearing, was never resolved. It was probably a combination of all three,
in varying degrees. Whilst conditions in the McA/S household were far
from ideal, it was accepted that both parents loved their children and cared
for them. This was stated to be so particularly in the case of Mrs
McA. She was described as being particularly good with babies. The
problem as stated by the psychologists, which lay at the core of this case, was
that once the children became older, she lacked an appropriate management style
or technique to cope with them. It was the management style she employed
which was stated to be the cause of E's behavioural problems and it was alleged
that this would be replicated in time in M. She was said not to have the
ability to change that management style. It is not surprising that this
opinion, which the senior social worker accepted was theoretical to some
extent, was difficult for the parents to comprehend entirely to begin
with. This was the basis upon which rehabilitation to Mrs McA was
considered inappropriate and Mrs McA does not now seek it. This is not a
case of Mrs McA deliberately abusing E; this is something over which, because
of her personality and low IQ, she has no control.
Regardless
of the changes of opinion about the attachment/relationship between these
children and their parents, it is clear that as of now they do have a
relationship with their parents and know them to be their parents.
Adoption with contact is not the case made by the Trust though adoption with
satisfactory contact might have been an option the parents may well have
approached less negatively. Orders freeing children for adoption without
parental agreement cannot be made with conditions, for example as to parental
contact, attached. The court has the power to make a contact order, but
whether the contact would be acceptable to prospective adoptive is impossible
to say. It could not be ordered in advance. Prospective adoptive
parents who might accept contact conditions may never be found. Indeed my
experience is that prospective adoptive parents are very cautious about post
adoption contact and usually decline to agree it and are probably advised not
to agree to it, particularly in advance. Thus the choice facing the court
is freeing for adoption without direct contact or no order to free for
adoption. Direct contact is not favoured as it is stated, inter alia, the
relationship/attachment between the children and their parents does not justify
it. What is the relationship/attachment between. I consider it is
sufficient and significant on both sides, the parents and the children's, for
it not to be destroyed. I consider greater weight is to be attached to
the original views on that relationship as expressed by Dr Donnelly and Miss
Wolfenden in January 1999 and others before that date. I have not been
impressed with the attempts to redefine, reduce or weaken that relationship
since.
Article
9 of the Adoption Order enjoins the court to consider all the circumstances in
the case, which I have done, whether mentioned in the course of this judgment
or not. In particular Article 9 requires the court to have regard to the
need to safeguard and promote the welfare of the children throughout their
childhood, that is until they are 18 years of age. It also requires the
court to have regard to the importance of providing the children with a stable
and harmonious home. Those are considerations that are relevant in every
case in which children are taken into care and where adoption is
considered. Furthermore the court requires to be satisfied that adoption
is in the best interests of both children. Mrs Dinsmore in her
well-marshalled closing submissions on behalf of the applicant (supported by an
impressive skeleton argument) set out the reasons why the applicants state that
rehabilitation with Mrs McA is not an option, which she does not seek.
Similarly she set out the views about Mr S, of which the principal concerns
were his lack of motivation and poor relationship with Social Services. I
do not think his motivation is as poor as it has been alleged, despite the
opportunities spurned in the past in different circumstances. In my view
he is entitled to a chance to prove his motivation and I do not consider the
range of assessments required by Dr Pollock are necessary, though some
assessment would be.
Is
adoption in the best interests of these children? A strong case can be
made out for it. However I have reservations about that. Those
reservations stem from the relationship/attachment between these children and
their parents. Professor Tresiliotis and Dr Fitzpatrick have expressed
their views about this relationship, as have the two social workers primarily
concerned. I prefer the views expressed by Dr Donnelly and Miss Wolfenden
in January 1999 and consider I am entitled in the circumstances to place
greater weight and reliance on those views, than on views expressed later upon
a request to reconsider. Similarly Professor Tresiliotis and Dr
Fitzpatrick, neither of whom interviewed or observed the children and their
parents, carried out a 'paper exercise' on reports which included the revised
views. The whole process was unsatisfactory. Is it to be concluded
that it is in the best interests of two children that they should be freed for
adoption in such circumstances? The effect of an adoption order the
destruction of the parent/child relationship has to be borne in mind.
Whilst the court must give first consideration to the welfare of the child,
that is not the only consideration in adoption cases. Some regard must be
paid to the parental views and rights. To conclude that freeing for
adoption is in the best interests of a child, a court should be both legally
and morally satisfied that what it is ordering is right. I recognise that
a strong case has been made that adoption would provide these children with a
stable and harmonious home for the remainder of their childhood but I am not
satisfied to the required standard in the final analysis, that adoption is in
their best interests. The application to free both children for adoption
was supported by the Guardian Ad Litem. The role of the Guardian Ad Litem
in adoption proceedings is significantly different from the Guardian's role in
'specified proceedings' under the Children Order. Her views were formed
on the various reports submitted to the Court about which I have now expressed
my views. I have considered carefully her report and evidence, but it is
for the Court to reach its own conclusion based on the evidence presented to
the Court and any inferences to be drawn from it.
The
relationship/attachment between E and her mother is the primary relationship
the court has been concerned with, followed by that between M and his
mother. It is clear that the children should not be separated. I
note the improvement in the relationship between the children and their father.
In
view of the strength of the case made by the applicants on this issue it is
only appropriate that I go on to consider the second issue in an application to
free for adoption without parental agreement, namely whether or not the court
should dispose with the agreement of either or both parents to the making of an
adoption order. In this case the applicant states that the agreement of
the parents should be dispensed with on the ground that it is being withheld
unreasonably.
The
statute requires proof that the withholding of agreement by a parent is
unreasonable. It is not sufficient to prove that a reasonable parent
would agree. The test may be put this way. Has it been proved that
the parents knowing all the facts are withholding their agreement unreasonably?
The law on the proper approach to this question is set out in the judgment of
the late Mr Justice Higgins in Re: W (unreported) which was approved in
the Court of Appeal in Northern Ireland (1993 4 NIJB 5). This follows the
decision in the House of Lords in the English case Re: W 1971 1 AC 682
and the reasoning of Lord Hailsham. The test to be applied is often
expressed in terms of the hypothetical reasonable parent. Could a
reasonable parent in the position of this parent withhold agreement. It
is well recognised that two reasonable parents could hold two opposing views,
neither of which views could be said to be unreasonable. Thus the band of
decisions which can be adjudged to be unreasonable may be a narrow one.
However the ultimate test is one of unreasonableness judged against what
a hypothetical reasonable parent would do. It is not confined to
wrongdoing or culpability but can include many more situations beyond
blame-worthiness. Lord Hailsham detailed a number of them including
culpability, indifference, excessive lack of common sense and caprice.
The test is held to be an objective one and the court must guard against
substituting its own view for that of a reasonable parent are relevant.
The factors to be taken into account by a reasonable parent will vary from case
to case but a number of factors will arise in most cases. For example a
reasonable parent would consider the welfare of the child, and look at all the
circumstances and apply the test to the circumstances as they exist at the date
of hearing and not at any other time. Other relevant factors include the
prospect of rehabilitation, the level of contact if any, the nature and
security of the present placement of the child. The prospect of
rehabilitation is relevant as the failure of a parent to seek
rehabilitation. The degree of responsibility for the current situation
which is attributable to the parent would be relevant as would be the extent
and regularity of contact. The age of the child and the length of time he
is in care as well as the length of time the child has been cared for by
the parent or not are relevant. Those are factors which a reasonable
parent would consider. Often parents feel a sense of grievance against
Social Services for the way they perceive they have been treated by them.
In some cases that sense of grievance may be justified. But the sense of
grievance itself is not a relevant factor, difficult as it may be for a
reasonable parent to ignore it. However the factors giving rise to that
sense of grievance are relevant and would and should be taken into account by a
reasonable parent. An obvious relevant factor would be delay. The
longer the delay the more settled the child becomes elsewhere and the more
apparent it becomes that the child's welfare may be harmed by any change in its
circumstances. The length of the delay may increase the weight to be
attached by a reasonable parent, to the welfare of the child. Similarly
with the other factors which give rise to the sense of grievance. Those
events have happened and cannot be undone. The welfare of the child is
not the sole criteria. It is one of the criteria if a reasonable parent
would take it into account and the weight to be attached to welfare will depend
on the weight which a reasonable parent would attach to it in the circumstances
of the particular case. In some cases it can be decisive. It would
be unusual if it played no part in a reasonable parent's deliberations. A
reasonable parent would balance all those factors giving such weight to them as
the circumstances demand. Ultimately the court has to ask does the
respondent's decision to refuse agreement fall within the band of reasonable
decisions which a parent in her section of society and in her particular
circumstances might make see the judgment of Hutton J (as he then was) in Re
EB and Others 1985 5 NIJB 1 at 23.
The
case of each parent has to be considered separately. Whilst the welfare
of the child is an importance factor it is equally relevant to consider the
wording of the legislation. The adoption legislation which preceded the
Adoption Order 1987 was the Adoption Act 1967. Section 5 empowered the
court in certain circumstances to dispense with parental consent. The
grounds upon which consent could be dispensed with were similar to the present
legislation. However in Section 5(1) of the 1967 Act the following words
appear
"in
considering whether the consent of any person should be dispensed with under
this sub-section, the welfare of the infant shall be the paramount
consideration."
The 1987 Order does not re-enact those words. Article 9 of the 1987 Order
states that the welfare of the child is the primary consideration of the court
when making any decision related to the adoption of a child. However, it
has never been held that Article 9 applies to the court when considering
whether or not to dispense with parental agreement. However it is
recognised that a reasonable parent would take the welfare of the child into
account but the court in carrying out its task under Article 16(2) must bear in
mind the historical development in the legislation and the omission to which I
have referred.
A parent faced with an application to free a child for adoption is faced with a
choice to agree to adoption or to withhold agreement. If agreement is
withheld the parents decision will be judged against what the court considers a
reasonable parent, with knowledge of all the circumstances, would decide.
Before dispensing with the need for a parent's agreement, the court requires to
be satisfied that the parent is withholding agreement unreasonably. In
this case a reasonable parent would consider the question of rehabilitation,
the reasons why the children are in care, the length of time they have been in
care, their age, the requirement that they remain together, the security which
adoption provides, the length of time the parents cared for them, and the
contact the parents have had since the children were taken into care. In
the case of Mrs McA she is entitled to point to
- her view of the
nature of her relationship with her children,
- the court's view
of that relationship;
-
her acceptance that the children should not be rehabilitated to her;
-
her consistent attendance for contact and the nature of that contact;
-
the decision-making process of the Trust and the Trust's witnesses in
particular about the nature of her relationship with E and the changes therein;
and to conclude in
the light of all those matters that it is not in the children's best interests
to be adopted and the ties of nature broken and to withhold agreement.
In the case of Mr S he is entitled to point to
- his improved
relationship with his children;
- his offer to care
for the children;
- his attendance at
contact with the children;
-
the decisions about the type of assessment he would have to undergo and the
degree of risk thereby involved and the court's view of that;
- the
decision-making process of the Trust and their witnesses;
and to conclude in
the light of all those matters that it is not in the children's best interests
to be adopted and the ties of nature broken and to withhold his agreement.
Whether to dispense with parental agreement is always a difficult decision to
make. I have considered all the evidence (whether referred to in this
judgment or not) and the views of the parents and the matters which I have
mentioned above. The decisions by the parents in this case do not, to my
mind, lie outside that band of reasonable decisions which parents are entitled
to make in respect of their children and which they have made in respect of
these children. I am not satisfied (as I require to be) that a reasonable
parent endowed with a mind and temperament capable of making reasonable
decisions and with knowledge of all the circumstances, would give their
agreement. Therefore I am not satisfied that these parents in withholding
their agreement are doing so unreasonably, as that term is understood in law.
Mr Quinn sought to rely on the European Convention on Human Rights and Article
8 therefore (not yet in force). Article 8(1) guarantees the right to
respect for private and family life and Article 8(2) declares that a public
authority shall not interfere with the right to respect for family life except
where it is necessary for the protection of health or morals or for the
protection of the rights and freedom of others. To declare these children
free for adoption and to deny them and their parents direct contact with one
another would (if applicable) breach the right to family life and would not be
a justified interference by a public authority with that right. Similarly
with regard to Section 6 of the Human Rights Act 1998.
Social workers have at times an onerous and thankless task. They are
often confronted by intractable cases and demanding parents who cause them
great anxiety. As Lord Nicholls said in Re H&R 1996 FLR
sympathising with their plight, - "sometimes, whatever they do, they
cannot do right". I have no doubt they and the other witnesses on
behalf of the applicants regard the conclusions they reached as being in the
best interests of these children and have acted with the best motives. I
know they will be disappointed at the outcome of this case. However the
Adoption Order requires a court to be satisfied of various matters before
declaring children free for adoption. While it should never lose sight of
the fact that there are two small children concerned (and it has not), if it is
not so satisfied, for whatever reason, it must say so, despite advances in social
work practice or child psychology. I am not so satisfied in this case for
the reasons stated above and therefore refuse the applications to free E and M
for adoption. I grant both parents a contact order in respect of each
child. I consider the parents should have contact with the children for
two hours once per week. Restoring contact to that level should be a
gradual process over several months. It should also be possible to work
towards some unsupervised contact, particularly in the case of Mr S and on
occasions to permit the venue to be varied.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
FAMILY
DIVISION
________
RE:
E and M (Applications to Free for Adoption)
(1999/3F
and 4F)
________
J
U D G M E N T
O
F
HIGGINS
J
http://www.bailii.org/nie/cases/NIHC/Fam/2001/2.html