Citation no. (2000) 2150
Judgment: approved by the Court for handing down
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
OFFICE OF CARE AND PROTECTION
IN THE MATTER OF THE ADOPTION ORDER (NORTHERN IRELAND) 1987
CRAIGAVON AND BANBRIDGE COMMUNITY
HEALTH AND SOCIAL SERVICES TRUST
IN THE MATTER OF THE CHILDREN (NORTHERN IRELAND) ORDER 1995 and
IN THE MATTER OF THE ADOPTION ORDER (NORTHERN IRELAND) 1987
SOUTH AND EAST BELFAST HEALTH AND SOCIAL SERVICES TRUST
KF and VB
These applications concern two children, namely LF born on 5 October 1997 and ELF born on 18 March 1999. The first application by the Craigavon and Banbridge Community Health and Social Services Trust (“Craigavon Trust”) is for an order freeing LF for adoption without parental agreement pursuant to Article 18 of the Adoption (Northern Ireland) Order 1987 (“the 1987 Order”). The second matter arises out of an application by the South and East Belfast Health and Social Services Trust (“the South and East Trust) seeking a Care Order under Article 50 of the Children (Northern Ireland) Order 1995 (hereinafter called “the 1995 Order”) in relation to ELF and in addition an application under Article 18 of the 1987 Order freeing ELF for adoption without parental agreement.
In the case of ELF, the respondent to the application for the Care Order is JKF (Called KF in the title to the proceedings. The names KF and JKF are thus used interchangeably in this judgment.) who is the mother of ELF, and VB, the putative father of ELF. JKF is the sole respondent to the application under Article 18 of the 1987 Order in the case of ELF. VB has brought an application in respect of ELF for a Residence Order under Article 8 of the 1995 Order. JKF is the sole respondent in the application by Craigavon Trust. If either of the Trusts is successful in their applications, both JKF and VB apply for a Contact Order pursuant to Article 8 of the 1995 Order in respect of the relevant children in each case.
The statutory provisions governing applications for adoptions and applications to free for adoption are to be found in the 1987 Order.
Article 9 sets out the duty to promote the welfare of the child as follows:
“In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall:
(a)have regard to all the circumstances, full consideration being given to
(i)the need to be satisfied that adoption, or adoption by a particular person or persons will be in the best interests of the child; and
(ii)the need to safeguard and promote the welfare of the child throughout his childhood; and
(iii)the importance of providing the child with a stable and harmonious home; and
(b)so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them having regard to his age and understanding.”
Article 16 states where relevant:-
“1(1)An Adoption Order shall not be made unless -
(a)the child is free for adoption by virtue of an order made in Northern Ireland under Article 17(1) or 18(1) …; or
(b)in the case of each parent or guardian of the child the court is satisfied that –
(i)he freely, and with full understanding of what is involved, agrees –
(aa)either generally in respect of the adoption of the child or only in respect of the child by a specified person, and
(ab)either unconditionally or subject only to a condition with respect for their religious persuasion which a child has to be brought up, to the making of an Adoption Order; or
(ii)his agreement to the making of the Adoption Order should be dispensed with on the grounds specified in paragraph 2.
2.The grounds mentioned in paragraph (1)(b)(ii) are that the parent or guardian –
(b)is withholding his agreement unreasonably;
The freeing of a child for adoption without parental agreement is dealt with in Article 18 which insofar as is relevant is as follows:
“(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 has 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.”
Article 3 of the Children (Northern Ireland) Order 1995 provides that where a court determines any question with respect to the upbringing of a child “child’s welfare shall be the court’s paramount consideration”. Article 8(3) defines for the purpose of that Order “family proceedings” as including any proceedings under the Adoption Order.
In either freeing or adoption proceedings, the court has the power to dispense with the parent’s agreement to adoption on one or more of the six specified grounds set out in Article 16(2) of the 1987 Order. The ground relied on by the Trust in this case is that the parent is withholding her agreement unreasonably. Dispensing with agreement to adoption involves the court on a two-stage process:
(1) Is adoption in the best interests of the child?
(2) If so, is a ground or grounds of dispensation proved on the balance of probabilities?
These two stages are separate and must be considered by the court in this sequence. The consideration of whether parental consent should be dispensed with must be undertaken and decided at the time when the freeing for Adoption Order is made.
If I come to the conclusion that adoption is in the best interests of the child, I must turn then to consider whether or not the Trust has satisfied me that JKF is withholding her agreement unreasonably. The leading authority on the meaning of the ground and the test that the court should apply is the House of Lord’s decision in Re W (an infant) (1971) 2 AER 49. During the course of the leading opinion, Lord Hailsham described the test in this way:
“… The test is reasonableness and nothing else. It is not culpability. It is not indifference. It is not failure to discharge parental duties. It is reasonableness and reasonableness in the context of the totality of the circumstances. But, although welfare per se is not the test, the fact that a reasonable parent does pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor. It is relevant in all cases if and to the extent that a reasonable parent must take it into account. It is decisive in those cases where a reasonable parent must so regard it.”
In Re C (a minor) (Adoption: parental agreement: contact) (1993) 2 FLR 260 the court suggested that the test may be approached by the judge asking himself whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent. That is an approach that has received further judicial approval most recently in Re F (Adoption: Freeing Order) 2000 2 FLR 505. I believe this reflects what the author of Hershman McFarlane, Children Law and Practice Section H at paragraph 127 describes as the “discernible move within the decisions of the appellate courts towards greater emphasis on the welfare of the child as a factor in decisions relating to the parent’s reasonableness”. In recognising this however, I observe the cautionary note sounded in Re H and Re W (Adoption: parental agreement) (1983) 4 FLR 614 that short of amending legislation or further consideration in the House of Lords, there must be a limit to this shift. Accordingly I do not regard the decisions in Re C or Re F to be a departure from Lord Hailsham’s test in Re W and must be read in that light.
I have found assistance in this case in a number of authorities and in particular Re C and L in the Court of Appeal in Northern Ireland (unreported 8 February 2000), and an unreported decision of Higgins J in Re W (unreported 13 December 1992). In addition the principles dealing with these applications are set out helpfully in Hershman McFarlane, Children Law and Practice, Section H at paragraph 124. I consider that this author accurately sets out the principal components of the test of unreasonableness as follows:
1. The reasonableness of the parent’s refusal to consent is to be judged as at the date of the hearing.
2. The judge must take account of all the circumstances of the case.
3. Whilst the welfare of the child must be taken into account it is not the sole or necessarily paramount criterion.
4. The test is an objective test – could a reasonable parent in the position of this parent withhold consent.
5. The test is reasonableness and not anything else.
6. The court must be wary not to substitute its own view for that of the reasonable parent.
7. There is a band of differing reasons, each of which may be reasonable in any given case.
The above mentioned principles govern the freeing applications referable to both children. LF is already subject to a Care Order made under Article 50 of the 1995 Order on 25 June 1998. The South and East Belfast Health and Social Services Trust seek a similar order in the case of ELF. Under Article 50 of the 1995 Order, a Care Order may be made only if the court is satisfied:
(a) that the child concerned is suffering or is likely to suffer significant harm; and
(b) that the harm or likelihood of harm is attributable to –
(i) the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
(ii) the child’s being beyond parental control.
On granting the application of any authority or authorised person, the court will make an order placing the child with respect to whom the application is made in the care of a designated authority or putting him under the supervision of a designated authority. A Care Order therefore cannot be made unless the threshold criteria have been satisfied.
If the threshold criteria are satisfied, the court must then consider whether an order should be granted and if so what type of order, using the principle that the child’s welfare is the paramount consideration (see Article 3(1) of the 1995 Order), having regard to the matters set out in the statutory welfare checklist at Article 3(3) of the 1995 Order. The court must not make any order unless it considers that doing so would be better for the child than making no order at all (see Article 3(5) of the 1995 Order). I also note that before making a Care Order with respect to any child, the court must consider the arrangements which the local authority has made or proposes to make for affording any person contact with a child who is in the care of the local authority and invite the parties to comment on those arrangements. The court will also scrutinise the relevant authority care plan for the child.
The statutory checklist at Article 3(3) to assist the court in determining what is for the child’s welfare is as follows:
“(3)In the circumstances mentioned in paragraph (4) a court shall have regard in particular to –
(a)the ascertainable wishes and feelings of the child concerned (considering in the light of his age and understanding);
(b)his physical, emotional and educational needs;
(c)the likely effect on him of any change in his circumstances;
(d)his age, sex, background and any characteristics of his which the court considers relevant;
(e)any harm which he has suffered or is at risk of suffering;
(f)how capable of meeting his needs is each of his parents and any other person in relation to whom the court considers the question to be relevant;
(g)the range of powers available to the court under this order in the proceedings in question.”
My attention has also been drawn in this context to Re M (a minor) (Care Order: threshold conditions) (1994) 2 FLR where the House of Lords held that where, at the date of disposal, interim protective arrangements had been continuously in place, the relevant date was the date upon which the local authority initiated protective proceedings. An Emergency Protection Order was obtained in the case of ELF on 19 March 1999.
Re D (simultaneous applications for Care Order and Freeing Order) (1999) 2 FLR 49 is authority for the proposition that where a court is considering an application for a Care Order together with an application for a Freeing Order (as is the case with ELF), the application for the Care Order is the primary application. It is a wrong approach to decide the freeing application first, in which the child’s interests will not be the paramount consideration. That would compromise the application of the paramountcy principle in a subsequent consideration of the care application. I shall therefore consider the care application first in the instance of ELF.
VB has, as noted above, applied for a Residence Order under Article 8 of the 1995 Order with reference to ELF and a Contact Order. In considering the application for a Residence Order under Article 8 of the 1995 Order, the court is initially governed by the general provisions of Article 3 of the Order. In the first place, the child’s welfare shall be the court’s paramount consideration. This rule has its roots in the practice of the Court of Chancery and decisions in legislation have only served to strengthen and develop it as a principle. In considering a not dissimilar provision in Section 1 of the Guardianship of Infants Act 1925, namely that “the courts will regard the welfare of the infant as the first and paramount consideration”, Lord MacDermott defined that phrase in the “Spanish boy” case (1970) AC 668 page 710 as follows:
“Reading these words in their ordinary significance and relating them to the various classes of proceedings which this section has already mentioned it seems to me that they must mean more than the child’s welfare is to be treated as a top item or a list of items relevant to the matters in question. I think they connote a process whereby, when all the relevant facts, relationships, claims, wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term is now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.”
The Order also provides a statutory checklist at Article 3(3) to assist the court in determining what is for the child’s welfare and I have already set out the contents of Article 3(3) with reference to the Care Order application. I must consider this welfare checklist when considering whether to make an Article 8 order. I must also remind myself in this context that when considering whether or not to make one or more orders under the 1995 Order with respect to a child, the court shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all. VB has been refused an application for parental responsibility by Higgins J.
Article 8 of the 1995 Order defines a Contact Order as –
“Contact Order means an order requiring the person with whom a child lives or is to live to allow the child to visit or stay with the person named in the order or for that person and the child otherwise to have contact with each other.”
I must also bear in mind the correct approach to follow in determining the respective claims of a natural parent and a third party to care for a child. These have been laid down in decisions such as Re D (Care: natural parent presumption) (1999) 1 FLR 134 and Re W (a minor) (Residence Order) (1993) 2 FLR 625 (and the cases referred to therein). The correct approach is to consider the natural parent as potential carer first and not simply to balance the respective merits and demerits of the competing households. Nonetheless the strength of the supposition in favour of the natural parent may be countered by other factors especially the length of time that the child has been with other carers. I have considered Re P (Section 91(14) (Guidelines) (Resident and Religious Heritage) (1999) 2 FLR 573 where the Court of Appeal stressed that on a variation application, the status quo has real validity and the question to be answered is why the child should be moved.
Very properly, given the facts of this case, counsel did not invoke to any material degree the European Convention on Human Rights. As the Master of the Rolls has made clear in Daniels v Walker (Practice note) 2000 1 WLR 1382 at page 1387, it would be disappointing if the European Convention on Human Rights were to be routinely paraded in cases of this nature as makeweight points or if they were to be in every case extensive citation of authorities from the European Court of Human Rights particularly where reliance is placed on cases pre‑dating the 1987 and 1995 legislation. This theme has been reiterated in Re F (Care proceedings: contact) reported in Family Law, October 2000 at page 708. Nonetheless I have considered whether any such issues do arise. In particular I must consider whether or not pursuant to Article 8 of the European Convention on Human Rights a granting of a Care Order in the case of ELF and the granting of a Freeing Order in both cases and finally removal of contact is liable to interfere with a parent’s family life and requires justification with regard to the best interests of the child. I have to consider in the freeing applications whether the child’s freeing for adoption without the consent of JKF and VB constitutes interference with their right to respect for family life which is disproportionate to the best interests of the child. I am satisfied that domestic authorities enjoy a wide margin of appreciation with regard to the circumstances in which they can overrule a parent’s objections to adoption. Ursula Kilkelly (the Child and European Convention on Human Rights), has dealt with this matter at page 298 of the first edition:
“Although Article 8.2 requires that such measures have a legitimate purpose, it is arguable that only reasons relevant to the child’s welfare, and not the wishes of the adoptive parents for example, may justify an interference with family life. In this regard as long as the overriding objective is to protect the rights, welfare and interests of the child concerned, then the particular basis for making an Adoption Order will fall within the discretion of the State. Moreover the national authorities enjoy discretion as to what aspects of the child’s welfare – financial, emotional or physical – they choose to emphasise in finding the Adoption Order necessary and it is also a matter of domestic law whether the child’s best interests are paramount or merely of ‘special importance’ in such matters.”
I should also say that, although the matter is not yet perhaps beyond plausible dispute, I am prepared in this instance to adopt the principle that the presumption in favour of family life has now been extended finally to unmarried fathers and their children in light of the decision in Soderback- v Sweden, judgment of 28 October 1998 BCHR. So far as the contact issues are concerned, again the rights of JKF and VB require to be considered under Article 8. However, once again the State does enjoy a wide margin of appreciation in determining the proportionality of measures taken in the child’s best interest. In essence, consideration of what is in the best interests of the child is in every case of crucial importance in this area. (Csee L v Finland 2000 2 FLR 118, ECHR and Scott v UK (2000) 1 FLR 958.) Accordingly I have taken into account the European Convention on Human Rights in arriving at this decision and it has informed the conclusions which I have reached and to which I advert subsequently in this judgment.
Before turning to the factual matters in this case, I must remind myself of the burden of proof which is applied by all courts in cases concerning the welfare of children, namely that of proof on the balance of probabilities (the civil standard). I outlined the principles governing this aspect in Re W v KS and Foyle Health and Social Services Trust (unreported June 1999). At page 19 of my judgment I said:
“In Re H and others (minors) (Sexual abuse: standard of proof) (1996) 1 AER page 1, the House of Lords defined the balance of probabilities that applies to children’s cases in the leading speech of Lord Nichols:
‘The balance of probabilities standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the courts will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities.’
Thereafter when dealing with the Care Order application I must consider the two-stage approach suggested by Butler-Sloss LJ in Re H; Re K (minors) (Child abuse: evidence) (1989) 2 AER 313 at 325:
‘The judge evaluates the evidence adduced both as to facts already in existence and frequently expert opinion as to future advantages and the risks of possible decisions as to the child’s future. At the second stage upon the evidence provided to the court the judge exercises a discretion with a test of the welfare of the child paramount and weighs in the balance all the relevant factors and assesses the relevant weight of advantages and risks to a child of each of the possible courses of action … he has to assess the risks and, if there is a real possibility that the child would be at risk, he will take steps to safeguard the child.’
Thus at the first stage, the balance of probabilities is a standard which must be applied to the determination of the facts to be found. It is the party who relies on the allegations of any form of harm to a child to establish the facts of past harm on the balance of probabilities. At the second stage, the court is involved in the assessment of possibilities, not probabilities, based upon the facts found to have been proved. The assessment of risk of future harm cannot be based upon mere suspicion of past harm but only upon facts which have been established to the requisite standard. In Re H and others, mentioned above, the House of Lords concluded that whilst the balance of probabilities standard applies to consideration of each element of the threshold criteria for the making of a Care Order, when considering the likelihood of harm, the court is evaluating whether it is proved that there is a real possibility that the child must suffer significant harm. Having heard and considered the evidence, and decided on disputed questions of relevant fact upon the balance of probability, the court must reach a decision on how highly it evaluates a risk of significant harm befalling the child, always remembering that the burden of proof is upon the person asserting the harm.”
I turn now to consider the findings that I have made in this case.
1. The report of Dr J Lynch MB MRC SYCH, consultant psychiatrist, dated 14 June 1999 was agreed in this case without the need to call him as was the report of Dr Loughrey, consultant psychiatrist, dated 17 June 1998. In this context I also had the benefit of the evidence of Angela Lynn, a registered mental nurse with fifteen years experience of emotionally and mentally ill adolescents, and who was the clinical nurse manager at the Young People’s Centre in Belfast. JKF had been referred to the Young People’s Centre whilst residing with Parent and Children Together (PACT) project and commenced day patient treatment there on 27 March 1998. Ms Lynn thereafter had close contact with JKF up until April 1999. I find the cumulative weight of this evidence to be very impressive and persuasive. These views were underlined by my observations of JKF when she gave evidence before me. Clearly she has had an extremely disturbed background which I believe lies at the core of her current problems. Dr Lynch records at page 1 of his report:
“K was reluctant to tell me any details of her family structure or of her childhood. She told me that both her parents were still alive but that she had no contact with either of them for some years. She tells me she last lived with the family at about the age of five. She also tells me she has ten siblings but that ‘I don’t know half of them’. She felt unable to describe her family life in any detail. However, from the reports available to me I understand she has a history of sexual abuse perpetrated by K’s father on her and other siblings and that her mother put K and her other siblings into care at the age of approximately nine because she had difficulties in managing the children. Following this K had a succession of foster care placements interspersed with periods in children’s homes. The longest foster placements were approximately a year and they mainly seemed to breakdown because the foster parents had difficulty in managing K’s difficult behaviour. In 1992 she was the subject of a training school order and was placed in Rathgael for approximately five years.”
This ties in with the detailed analysis of her background outlined to me by Ms McConkey, a social worker of the After Care Team, and contained in her reports. It is clear from these that even throughout her first training school order in Rathgael between 1992 and 1995, JKF was already involved in numerous incidents of absconding, sniffing glue, self injury, frequently cutting her wrists and arms. She overdosed on tablets several occasions requiring admissions to the Ulster Hospital, Dundonald. Regretfully this pattern continued. Dr Lynch records her having a long history of drug abuse, alcohol abuse and solvent abuse from an early age. Various attempts to get her to address her drug habit in the past had been unsuccessful. Dr Lynch concluded:
“In an adult psychiatric setting K would tend to be seen as a personality disorder. Personality disorder is a name given to a spectrum of developmental conditions which give rise to deeply ingrained and enduring behaviour patterns. … It is impossible however to view K’s presentation in isolation from a consideration of her childhood and adolescent experiences and perhaps a more humane and useful, in terms of understanding her presentation, diagnosis is that of attachment disorder. This is a diagnosis more frequently made in child psychiatry where there are marked abnormalities seen in social relationships associated with emotional disturbance. These disorders usually arise as a consequence of the failure of the key relationship which generally forms between a parental figure and the child. It is easy to see that this is the case with K. She had an abusive childhood and was subjected to neglect. She undoubtedly sees her mother giving her into care as a rejection and this is reflected in her inability to make any kind of long-term relationships with the various professionals who have attempted to provide stability for her since. Undoubtedly she rejects them before they have chance to reject her. The various numbers of placements she has been through in childhood and adolescents have only contributed to the instability. … She is extremely impulsive and this leads to the recurrent attempts at self harm and to temptation to indulge in solvent or drug abuse offering immediate gratification.”
Dr Lynch concluded his observations as follows:
“K undoubtedly cares about her nine-week-old baby. It is however difficult to see how she can be a parent at present, without ever having been properly parented herself. What K really needs is some kind of long-term placement in a therapeutic community, a resource that we do not have available in Northern Ireland. The Young People’s Centre has made admirable attempts to help K. Unfortunately adult psychiatry has probably little to offer apart from providing short admissions in the future to guarantee her safety at times when it is deemed necessary. It is difficult to be sure as time goes on to what extent K may emotionally develop, but it is hard to envisage any dramatic improvement in the near future.”
I consider that this assessment is both informed and accurate. It was underlined and corroborated by the evidence of:
(a) Dr Best, who is a consultant psychiatrist at St Luke’s Hospital since 1990. He has been dealing with JKF since December 1999. She has been detained under the Mental Health Order since 13 August 2000 and is in one of the intensive care wards, which is a seventeen-bed unit for those in danger of harming others or harming themselves. She is therefore currently a detained patient. Dr Best, favouring the view that JKF does not suffer from mental illness but rather from a mental disorder which amounts to an unstable personality disorder, has gradually weaned her off her medication for several weeks now. He considers that her self injurious behaviour is a long-term feature and is common to people who have been abused in childhood. During the period she has been in hospital he has noted that her mood can change from being pleasantly affable to extremely aggressive behaviour. She has issued threats to staff to harm them and has required physical restraint. He believes this behaviour was not psychotically driven but is a product of her personality disorder. She has clearly not complied with the advice she has been given or the assistance proffered. Shortly he feels he will no longer be able to detain her and it is his belief that she intends to leave the area where therapeutic assistance would be available and take up residence in Bangor where there would appear to be no support agency. It is his belief that she will revert to the use of alcohol, solvent abuse and quickly return to a social crisis with acts of self harm requiring re-admission. He foresees her future as one of periodic re-admissions to psychiatric units. His hope is that over a period of time she may mature and eventually accept the advice that has been offered to her. He indicated in cross-examination that he has seen people ten years down the line who have improved from such a condition but in his view this will not occur in her case in the near future because she is simply not willing to engage with the help that is offered. He concluded by saying that he agreed with Dr Lynch’s report and shares the conclusion of the guardian ad litem that she is unlikely to mature sufficiently to be able to parent these children.
Regretfully this reflects the opinion formed by Dr Loughery, consultant psychiatrist, and recorded in the report to Ms Mildred Hollywood on 17 June 1998 and which was before me. In the course of that report Dr Loughery recorded:
“The diagnosis is of personality disorder with depressive features. She alleges abuse in the past. It would be envisaged that treatment with her would mainly involve a psychotherapeutic approach aimed at helping her to come to terms with her experiences in the past and her responsibilities in life. An approach of this type requires engagement by the patient, and so far this has been very difficult for a number of reasons. First, K has moved from address to address. Second, she has been reluctant to talk about these difficulties and certainly has not discussed them consistently. Thirdly, she is behaving in such a way, such as taking overdoses, cutting herself and simulating overdose and suicidal thinking that makes therapeutic engagement virtually impossible.”
This is precisely the pattern that has been observed by Dr Lynch and Dr Best and is clearly not abating as the years have gone on.
Finally in this context, I have read the reports of Angela Lynn of 18 May 1998 and 16 May 1999 as well as having the benefit of her evidence before me. She is a clinical nurse manager at the Young People’s Centre in Belfast, is a registered mental nurse and has twenty-three years’ experience in psychiatric nursing. She has spent fifteen years with emotionally and mentally ill adolescents. She has had considerable experience of JKF from 1996 when she was initially referred to the Young People’s Centre which is the only place in Northern Ireland caring for psychiatric and mentally disturbed adolescents. She saw her again when she was referred in March 1998 at a time when LF was five months old. Ms Lynn recorded at that stage that JKF was vulnerable and misusing chemicals ie damp start, glue, cannabis, valium, painkillers and perhaps others. She had been sniffing solvents since she was twelve years old. Her prediction, having seen her over this lengthy period of time, is that she will require psychiatric services for the rest of her life. She described her as one of the most disturbed young people she has ever come across. She describes her as “unpredictable and a danger to herself and others … unfortunately there are not appropriate services to treat individuals like K in Northern Ireland. Adult psychiatrists will consider her to be classed as a personality disorder and deem her to be untreatable … She will continue to be unpredictable and be a danger to herself and others”. In cross-examination she said that whilst JKF will say that she means to change and will perhaps mean this, she simply does not realise how difficult it is to care for a child. The problem is that she cannot even attend to her own needs and keep herself safe much less be able to look after her children in the opinion of Ms Lynn. She shared the view of Dr Lynch.
In essence the picture emerged that although intellectually quite bright, JKF is emotionally very immature and requires to be looked after herself never having been properly parented. She is and remains an extremely vulnerable woman.
Other evidence before me in this case further serves to convince me that these conclusions are well founded. I consider it neither productive nor beneficial to the welfare or health of any party in this case for me to outline every incident that has fuelled my conviction in this regard. I have read carefully the various reports in this matter and heard a number of witnesses. In particular:
(a) The medical reports and witnesses hereinbefore referred to.
(b) A number of reports by Ms Mildred Hollywood, who gave evidence before me.
(c) A report by Miss Marion Doyle, dated 20 March 1998.
(d) Reports by Miss Erica Gray, dated 24 March 1998 and 18 May 1998.
(e) Ms Lynn as mentioned above.
(f) Dr Shepherd, who issued two reports and who gave evidence before me.
(g) The report of Dr Loughery of 17 June 1998.
(h) The report of Dr Headley of 14 January 2000.
(i) Miss Ethel McNeil, Family Centre social worker.
(j) Report of and the evidence of Cliona McBreen.
(k) Ms Nuala Power, who is employed by PACT project and who also prepared a report before me.
(l) Ms McConkey, a social worker in the After Care Team who prepared two reports and who also gave evidence before me.
(m) Dr Gaston, a consultant paediatrician, who prepared a report and who also gave evidence before me.
(n) Dr Best to whom I have already referred.
(o) The guardian ad litem, Miss O’Kane.
In addition I also heard the evidence of JKF and VB.
So far as LF is concerned, I am satisfied that it is appropriate in her case to make an order freeing her for adoption without parental agreement pursuant to Article 18 of the Adoption (Northern Ireland) Order 1987. I am of this view for the following reasons:
1. I am satisfied that pursuant to Article 9 of the 1987 Order, adoption is in the best interests of this child given the need to safeguard and promote her welfare throughout her childhood and the importance of providing her with a stable and harmonious home. LF was in her mother’s care for the first four months of her life predominantly within the supervised residential Parents and Children Together, Barnardos facility in Belfast. She was first accommodated at her mother’s request in foster care on 27 January 1998. The Craigavon Trust obtained an Emergency Protection Order on 28 January 1998 as JKF was not deemed fit to resume her care on the grounds that she had been sniffing lighter fuel and inflicted cuts to her arms. LF has remained in care ever since. During the period that JKF was at PACT (between 20 October 1997 to 21 January 1998), serious concerns had emerged in relation to her ability to parent LF and her ability to take care of herself both physically and emotionally. I am satisfied having heard the evidence of Ms Hollywood that there were genuine concerns about LF’s weight gain and episodes of vomiting and diarrhoea. She was hospitalised between 2 December 1997 to 11 December 1997 in the Royal Belfast Hospital for Sick Children where a reflux problem was diagnosed. She was further hospitalised between 12 December 1997 to 17 December 1997. Dr Shepherd gave evidence before me that in his opinion the child’s poor weight gain was exacerbated by her mother’s lack of mothering skills and inability to ensure that LF was getting adequate amounts of milk. He could find no organic reason for her failure to thrive. During the time the child was in foster care and thereafter I am satisfied that the child had a better weight gain and that this was sustained after 27 January 1998 when she was taken into foster care. Whilst Dr Shepherd accepted that there may have been more than one cause for her failure to thrive eg the diarrhoea may have been unconnected with any lack of mothering skills, I am satisfied that the material improvement in this child’s welfare after being removed from JKF’s care illustrates the need to safeguard her throughout her childhood. The helpful report of the guardian ad litem records:
“L blossomed while in the care of Mr & Mrs McN. A consistent routine, stable environment and high levels of stimulation enabled L to achieve her developmental milestones. … LF moved to her current placement on 28 June 1999 following a very successful transition from Mr & Mrs McN’s care. L presents an engaging, confident and sociable child who has transferred her attachments to Mr & Mrs C. LF has a well established routine that continues to meet age appropriate milestones.”
It is clear from the evidence of Ms Hollywood that during the period in PACT JKF was at times quite unable to care for LF. An illustration of this is on 8 January 1998 staff at PACT were awakened by the sound of LF crying. When staff entered JKF’s unit, they found her sitting at the end of her bed looking at LF who was lying on the bed crying. JKF had cut herself and was unable to care for the child. Staff fed and settled the child and remained with LF. The child was on the Child Protection Register. From late January onwards, there is a litany of incidents involving JKF sniffing lighter fuel engaging in self abuse to the point where PACT felt unable to assist her further. Her behaviour was clearly incompatible not only with remaining in the placement at PACT but, in my view, with looking after a young child. It was inevitable that a Care Order required to be made in respect of this child in the course of 1998. JKF was not capable of making constructive use of the supports that were offered to her and indeed after LF’s admission to care there was a marked deterioration in her situation with a nomadic lifestyle, recurrent incidents of self harm, solvent and illicit drug misuse and an erratic uptake of contact with the child.
My attention was drawn by the guardian ad litem to a DHSS Northern Ireland circular in May 1999 which identifies the benefits of adoption namely:
“The importance of family life to a child cannot be overstated. It is the fundamental right of every child to belong to a family and this principle underpins the United Nations Convention on the rights of the child which United Kingdom ratified in 1991. Where, for whatever reason, children cannot live with their families, society has a duty to provide them with a fresh start and, where appropriate, a permanent alternative home. Adoption is the means of giving children an opportunity to experience positive family relationships.
Adoption continues to provide an important service for children, offering a positive and beneficial outcome. Research shows that adopted children generally make very good progress compared with similar children who are brought up by their parents. Adopted children do considerably better than children who have remained in the care system throughout most of their childhood. Adoption provides children with a unique opportunity to become permanent members of new families enjoying a sense of security and well-being previously denied to them.”
I am satisfied that rehabilitation has been ruled out for JKF in this case and that it is very unlikely she would ever be in a position to safeguard and promote the welfare of LF throughout her childhood. Her last contact with the child was 24 June 1999. There has been no direct contact since then. She has told me in evidence that she does not wish to have anymore contact with LF but that she cannot give her consent because she considers that the child would not like this when she has grown up. Originally in September 1998 she had agreed to the child being adopted as long as the child remained with the McNs. Indeed JKF signed a Form 10 and LF’s birth certificate on the understanding that Mr & Mrs McN, LF’s foster carers, were to be assessed as adopters of the child. When Mr & Mrs McN withdrew their application to adopt LF, JKF then withdrew her consent to the child’s adoption. Eventually when she met Ms Hollywood on 13 October 2000 in hospital she indicated that she regarded LF as different to ELF largely due to the manner of the conception, but that she could not bring herself to consent to the adoption for the same reason that she gave to me.
I have no doubt, therefore, that in all these circumstances the adoption is in the interests of the child.
I then turn to consider whether or not JKF is withholding her agreement to a Freeing Order unreasonably. My views are as follows:
1. In judging this matter as at the date of this hearing, I am satisfied that the refusal to consent is unreasonable. I have taken account of all the circumstances of the case that I have mentioned above which I do not find it necessary to reiterate here. The welfare of the child is not the sole or necessarily paramount criterion at this stage, but nonetheless I take it into account as one factor. It is my view that the welfare of the child will benefit from adoption and accordingly that is another factor which persuades me that the withholding of consent is unreasonable. The test is an objective one and I have concluded that a reasonable parent in the position of JKF would not withhold consent. I must be wary not to substitute my own view for that of the reasonable parent and I have been careful to avoid this. I recognise that there may be a band of differing reasons each of which may be reasonable in any given case. I consider however that in this case, even allowing for such a band, there is no reasonable basis here for withholding consent to the adoption given the background circumstances I have already set out together with her stated intention not to have further contact with LF.
2. No application can be made under Article 18 unless the child is in the care of the adoption agency (which is the case in this instance) and the court is satisfied that it is likely that the child will be placed for adoption (in this case with Mr & Mrs C). I accept the evidence that has been put before me that Mr & Mrs C are committed to providing LF with a secure loving home and will assist her reach her potential. I accept the evidence of the guardian that they present as a child-focused couple who have a realistic understanding of LF’s background. I am, therefore, satisfied that it is likely that this child will be adopted.
In all the circumstances, therefore, I make an order freeing LF for adoption.
I now turn to consider the case of ELF. As I have indicated earlier in my judgment, I must first decide whether or not it is appropriate to make a Care Order in her case. The issues to be determined are as follows:
1. Is ELF suffering or likely to suffer significant harm?
Counsel on behalf of the South and East Trust has argued that this child is suffering significant harm in light of the evidence of Dr Gaston. Dr Gaston is a consultant paediatrician. He had furnished a report along with Dr Martin on 23 March 2000. His training over a number of years had involved viewing children affected by solvent abuse. He had seen ELF from an early stage. He records:
“Concerns emerge as early as six weeks. E was not smiling until about ten weeks of age. … She also had a history of reflux and was using Carobel. Her feeding continues to cause concern in that she is slow to tolerate lumps. … On the developmental side she is only sitting at ten months but makes no attempt to explore her surroundings. She does not reach out to objects. It is only recently that she has changed position in her cot.”
In evidence before me he regarded the lack of development in motor skills as major delays. The child was in fact suffering from a general delay in development. He had seen her again on 14 September 2000 and again recorded the general delay. At seventeen months she was roaming without intent and clearly there had been developmental delay. In his opinion the long-term outlook for this child was guarded albeit she had made some progress. His expectation was that the child would plateau at an early stage. Her skills would probably not advance beyond pre-school level. She requires special schooling, supervision with dressing, she is not likely to hold down a job or a household and will require supervision.
Turning to the causes of this condition, his experience in working with mothers who had abused solvents was that this was the very kind of diagnosis that occurs if solvents are abused during pregnancy. This is unfortunately one of the sequelae of abuse of solvents by mothers. He accepted in cross-examination that this condition can be caused by genetic pre-disposal and the condition is possibly genetic. However, he felt that, having witnessed this pattern in the past, it was more likely that the cause was solvent abuse rather than genetic causes. He agreed that there was virtually no literature on this and research was at an early stage. He could not say for certain that the child’s condition was due to her mother’s solvent abuse, but he felt this was more likely than not.
In cross-examination by Miss McConnell he accepted that the prognosis he had given was probably the worst one and that the best prognosis that could be given was that there would be mild general delay. In other words she could possibly attend mainstream school, form friends and be trusted to go out on her own. However, in his opinion although this was possible it was quite unlikely. In either event, appropriate and informed care is pivotal to her development. In essence this is a child who requires a placement where she will benefit from someone who will quietly and consistently play with her and carry out the necessary routine measures to maximise her development. He emphasised that this has to be done in the early stages because if this child misses her time for development then it will be gone for ever. It is imperative that she have consistent, quiet and steady care in order to maximise her development. The parenting required is at a very basic level, but must be regular and consistent.
As I have already indicated in this judgment, it is for the party who relies on the allegations of any form of harm to a child to establish on the balance of probabilities that this child has suffered harm because of her mother. I am not satisfied that this heavy onus has been established insofar as the Trust submit that this child has suffered harm because of the mother’s abuse of solvents. I consider it would be an extremely heavy burden for JKF to have to bear for the rest of her life if I were to make such a finding. I wish to make it clear that I am not satisfied to the level of proof required.
In this context I have considered Re H and R (Child sexual abuse: standard of proof) (1996) 1 FLR 80. The House of Lords concluded in this case that whilst unproved allegations of maltreatment could not form the basis for a finding by the court that either limb of Section 31(2)(a) of the Children Act 1989 was established, it was, however, open to a court to conclude that there was a real possibility that the child would suffer harm in the future although harm in the past had not been established. There would be cases where, although the alleged maltreatment was not proved, the evidence did establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child was yet suffering significant harm, on the basis of such facts as were proved there was a likelihood that he would do so in the future. I find the evidence of Dr Gaston extremely helpful in assisting me to come to the conclusion, which I now make, that this child is likely to suffer significant harm unless a Care Order is made. Inter alia JKF was warned by Dr Forbes of the dangers of her behaviour in her pregnancy but continued to use solvents nevertheless. Indeed she refused to address the issues regarding harm to the unborn child. I have no doubt that the history that has been unfolded to me of solvent abuse, drug abuse, alcohol abuse and self harm carried out by JKF is not only clear evidence that she will be completely incapable of giving this child the necessary care and attention without which her development will be permanently vitally retarded, but that in the wake of such behaviour it is highly likely that this child will in fact suffer irreparable damage. I am satisfied that the likelihood of harm, therefore, is attributable to the care likely to be given to her by JKF and which is not what it would be reasonable to expect a parent to give the child. I am satisfied that this is the position at the relevant time, namely the date when the Trust sought the Emergency Protection Order ie when the relevant authority initiated procedures. In any event I consider that this continues to be the situation.
Apart from the evidence of Dr Gaston in this regard, which in itself would be sufficient for me to come to this conclusion, there has been a litany of events unfolded to me concerning her behaviour which would independently draw me to the same conclusion. Without going into all the details of all the evidence which I have heard and considered, the following matters illustrate the overall pattern:
1. I have already adverted to the concerns that arose about the care given to LF in light of the evidence of Dr Shepherd. This coupled with the concerns expressed by Dr Gaston fuels my conviction that this child, ELF, is likely to suffer harm.
2. Elizabeth McConkey, who was a social worker in the After Care Team employed by South East Belfast Trust, and Nuala Power, a social worker employed by Barnardos in the PACT project, gave evidence of various incidents leading up to and since the granting of the Emergency Protection Order on 28 January 1998. Subsequent to LF’s placement in care, JKF’s behaviour and emotional stability deteriorated. Her drug and alcohol misuse and self injury recommenced. She was referred to the After Care Team on 29 June 1998 when she was residing in Verner Street Night Shelter. While resident there she met Mr VB and this short relationship resulted in the pregnancy which led to ELF’s birth on 18 March 1999. Her history of self harm, abuse of drugs and solvents, the previous concerns concerning LF and her evident inability to care for the newborn baby all led to an application for an Emergency Protection Order in March 1999 for the protection of EF. The child was placed in foster care in Bangor. I was impressed by the evidence of Ms McConkey and Ms Power and despite some of the denials by JKF in her affidavits and suggestions to them in cross-examination, I am persuaded that both gave accurate and truthful evidence. The incidents they recorded included:
(a) Ms Nuala Power, a key worker with PACT, contacted Ms Hollywood on 28 January 1998. She informed Ms Hollywood that JKF had experienced a very traumatic evening. JKF had sniffed lighter fuel during the early hours of the evening and was feeling very high. Staff had remained with JKF throughout her withdrawal period and when they felt she was reasonably settled they left her for a short period. However when staff returned to JKF they discovered she had severely cut her left arm with a razor blade – there were two very deep lacerations and numerous superficial cuts. JKF initially refused to be seen by a GP or attend Casualty. However, several hours later she decided she would go to hospital and Ms Power accompanied her. Upon her return to PACT she awoke early in the morning on 28 January 1998 and immediately requested that LF be returned to her care. Staff at PACT very firmly believed JKF was in no fit position to be able to take on the care of LF. JKF was unable to communicate with staff and sat with her head down and was totally unresponsive to any input from anyone.
(b) On 20 July 1998 JKF was offered accommodation with Lee Hestia Association at Empire Parade. Staff agreed to offer intensive support initially to help her. This placement failed very quickly. JKF continued to abuse alcohol and aerosols and was causing a disturbance in the neighbourhood. During the visits of Miss McConkey to JKF she made no attempt to hide empty canisters of butane gas.
(c) On 5 August 1998 Dr Forbes was contacted by Mr Henry Barry, senior social worker, due to concerns re drug and alcohol abuse. Dr Forbes expressed concern concerning the harm that KF may be causing to her unborn child. Dr Forbes agreed to attempt to form an admission to psychiatric care at the Mater Hospital. There she was seen by Dr McCauley and admitted to taking five Kapak tablets that day and several unidentified tablets the day before. She also admitted to taking an ‘E’ tab, alcohol and butane gas while living at Empire Parade. She believed she may have been unconscious for thirty hours. She would not address the issues regarding the harm to her unborn child.
(d) On 11 August 1998 KF was offered accommodation in Regina Coeli Hostel, Glen Road. She found it difficult to settle in. On one occasion she turned up at the Young People’s Centre intoxicated. Staff were concerned and they took her to the Casualty Department within the Royal Victoria Hospital. She sniffed gas allegedly while in the waiting area. Contractors Bureau were contact due to the concerns of the medical staff.
(e) Following ELF’s birth an Emergency Protection Order was obtained on 19 March 1999.
On the basis of these extracts and the overall evidence given by Ms McConkey, Ms McConkey concluded that rehabilitation would take a very long time indeed for KF and that essentially she was not able to look after herself. She was not remotely ready to care for her child. In cross-examination she accepted that VB in her opinion had been a bad influence on KF and in fact she had only detected drink on a couple of occasions. Whilst she denied sniffing gas in the hospital incident, this of course is only one of a plethora of incidents where she has been found to be sniffing gas. There were periods when she did settle down for example when she first went to the Regina Coeli Hostel. I have no doubt that it was a very difficult emotional period for KF to have her baby taken away at birth in the case of ELF, already having seen LF taken away. Nonetheless I reject the case put to Miss McConkey that KF has never been given the chance to show that she can care for ELF or the chance to get her back. Miss McConkey’s view is that she has had a great deal of time to think over her behaviour and that her irresponsible activities have continued unabated. I recognise that this behaviour may well be beyond her control because of her background but, for whatever the cause, she has rejected opportunity after opportunity to obtain self help and has resorted to the various abuses that I have outlined. There has been, and continues to be fatal divergence between the rhetoric that KF uses to describe her good intentions and the approach that in practice she adopts. An unstable dynamic drives her actions and unhappily all too often has frustrated the attempts of those who have sought to assist her. It would be perilously easy to accept her current undertakings and intentions for the future. Sadly they assume that which he needs to prove namely that she has either the capacity or the will to redress her past. All of this serves to persuade me that this child is likely to suffer significant harm which in itself is attributable to the care not being given to the child which would be reasonable to expect a parent to give her.
I was further fuelled in this conviction by the reports and evidence of Cliona McBreen. She was a social worker of the South and East Trust and was an eminently qualified social worker. She produced six reports in all together with a statement of facts. She was party to the applicant’s Trust care plan in respect of ELF and which I have scrutinised and approve. A comprehensive assessment of KF’s lifestyle and ability to provide care and protection for ELF was completed prior to rehabilitation being considered. This included:
(i) A psychiatric assessment of KF.
(ii) An assessment of KF’s understanding of the needs of ELF by Beersbridge Family Centre. (I had the benefit of a report from Ethel McNeil a family centre social worker from the centre dated 17 May 1999.)
(iii) Therapeutic work at the Young People’s Centre with Ms A Lynn.
(iv) A referral to the Community Addiction Team to assess KF’s addictions.
(v) A commitment to regular contact with ELF.
However, subsequent to the commencement of the process of comprehensive assessment, the pattern of KF’s behaviour in the past resurfaced. The incidents recorded by Ms McBreen, and which I accept as factually proved to a sufficient level, were as follows:
(a) 5 May 1999 – KF attended the office of the applicant Trust and was verbally abusive to staff, giddy and unsteady on her feet. She refused to leave the building and when asked to do so she said she said she had taken an ecstasy tablet.
(b) 7 May 1999 – KF was verbally abusive to a social worker, kicked the door and attempted to break a window at the offices of the Trust. She said she had attempted to take an overdose.
(c) 14 May 1999 – KF attended the offices of the applicant Trust asking for money. She was abusive to staff, threw stones at the window and removed a fire extinguisher from the premises. The police were summoned.
(d) 15 May 1999 – KF contacts the Young People’s Centre stating she was going to commit suicide. On gaining entry to the unit she threatened staff and threatened to burn the building. She was arrested by police and seen at the A&E Department in the City Hospital.
(e) 14 June 1999 – she was verbally abusive and threatening towards a social worker at Beersbridge Family Centre and a decision was made to terminate her assessment.
(f) 21 June 1999 – KF attends at the offices of the applicant Trust, threatens a senior social worker with a milk bottle and subsequently left throwing the milk bottle smashing an office window.
(g) 28 July 1999 – KF admitted to Belfast City Hospital following an attempted overdose. She admitted consuming alcohol, cannabis and prescription medication.
(h) 31 July 1999 – KF causes further self injury to her arms and was expressing suicidal thoughts.
(i) 4 December 1999 – she was admitted to Craigavon Psychiatric Unit – she formally denied having inflicted serious injuries to her arm with scissors and a razor blade. She was discharged on 16 December 1999. She was re-admitted on 21 December 1999. She had been sniffing glue over the preceding weekend. She was talking about her “imaginary friend” who was like “the devil” and had encouraged her to burn her leg on a heater, get a rope and jump.
This behaviour continued against a background where she was rebuffing efforts to engage her in an assessment of her ability to care for ELF. A report of Miss McNeil mentioned above is revealing. Inter alia, she records that whilst KF is knowledgeable about the aspects of the physical care of a young baby ie feeding routines, bottle making, etc she seemed “confused and unclear about the emotional needs of a child as it grows and develops”. It is telling that she records of the session on 11 June 1999:
“I attempted to use this session to get K to identify her understanding of what E’s needs might be. It was impossible to meet the aims of this session as K was unwilling/unable to engage in the discussion.”
I share entirely the views of Miss McNeil who concluded at the end of these sessions:
“It would appear that her own needs are so vast that K is unable at present to prioritise E’s needs before her own. It would also appear that K has not insight into the purpose of the assessment and has openly stated that her only reason for attending is because she has been told by the court and her solicitor to do so. K is unable to foresee or anticipate any difficulties or problems she may have caring for E.”
Herein lies the essence of the problem. ELF is a little girl who needs a great deal of informed and well directed care and attention if she is to maximise her potential. KF is simply unable to grasp this or to so discipline her own behaviour that she can deal with this need.
Dr Hedley from the Craigavon Psychiatric Unit on 14 January 2000 summed the matter up well:
“She is unable currently to engage in any meaningful discussion about her life, her responsibilities, her relationship and in particular about the future welfare of her children. … At times she hallucinates often triggered by solvent abuse. She is unable to tolerate intrusion or any form of pressure and resorts to self harm”.
She is currently in St Luke’s Psychiatric Hospital where she is detained under the Mental Health Act (Northern Ireland) 1986. She has predominantly resided in St Luke’s since 21 December 1999. During July and early August 2000 she lived in a friend’s house in Portadown before being allocated a Housing Executive house. Within a week of moving to her house at 51 Glanroy Avenue, Portadown she was re‑admitted to psychiatric hospital. Although she may soon be released, the view of Dr Best is that the previous pattern will re-assert itself.
I am, therefore, completely satisfied that the threshold criteria under Article 50 of the 1995 Order are satisfied.
I must now turn to consider whether an order should be granted and if so what type of order using the principle that the child’s welfare is at paramount consideration pursuant to Article 3(1) of the 1995. I must also have regard to the statutory welfare checklist at Article 3(3) of that order. I must not make any such order unless I consider that doing so would be better for this child than making no order at all. I have considered the arrangements which are to be made for affording any person contact with the child (and which I shall deal with in rather more detail in the contact aspect of this case) and I have also scrutinised the care plan.
It is my view that urgent steps must be taken in order to ensure the welfare of this dependent child who has benefited so much from the consistent high quality care which has been given to her by her foster carers in a stable nurturing environment. I share entirely the view of the guardian ad litem that in order for this child to sustain positive attachment formation and achieve her developmental potential it is imperative that permanency plans are progressed promptly. Applying the welfare checklist I have concluded as follows:
(a) ELF is too young to appreciate her circumstances or articulate her views. She is dependent on the adults and professionals involved safeguarding her interests and promoting her welfare.
(b) As I have indicated above, Dr Gaston’s evidence makes it clear that she is a child requiring particular care and attention if she is to realise her potential. She suffers retarded overall development and this will impact on her emotional, physical and educational needs. It is particularly important, therefore, that with this child appropriate care be given to her.
(c) At the moment she is being cared for in an environment which is most conducive to her needs. Any change of circumstances which re-asserted the uncertainty and dangers of the past would have a very detrimental effect upon her. It is very important that delay is avoided in identifying and placing her with appropriate carers who will facilitate her maximum development.
(d) She is now one year’s of age, female and has a background and characteristics which I have already outlined. The background of her parents (the father I shall deal with shortly) and the developmental problems that I have mentioned by way of characteristics are relevant.
(e) I have already indicated that she is at risk of suffering harm in the future.
(f) For the reasons I have given I do not consider her mother is capable of meeting this child’s needs. I of course have read her affidavit of 19 October 2000 and heard her evidence before me. Whilst she accepts that she is at the present moment unable to care for and protect herself, she indicates that it is her firm belief that she will be able change if ELF is returned to her. She wishes to be released from hospital with the potential to make a new start. She thinks that she will be able to live in Bangor on release from hospital and resume contact visits with ELF. Regretfully I take view that not only is she incapable at present of meeting the needs of this child, but that rehabilitation is not going to occur and that she will remain incapable of meeting the needs of this child. The father of this child is VB and for reasons which I will shortly outline, I also consider that he is not capable of meeting the needs of this child.
(g) I must consider the range of powers available to the court under the 1995 Order. I must also desist from making any order unless I consider that in doing so it will be better for the child.
Before coming to an opinion on the application for a Care Order by the Trust, I must now consider the application for a Residence Order by VB, the father of this child. In considering this application I remind myself of the general provisions of Article 3 of the order placing the child’s welfare as the court’s paramount consideration, the statutory checklist to which I have already adverted to assist me in determining what is for the child’s welfare and all the other legal principles that I have earlier set out. I have read the affidavits of VB and have also heard his evidence before me.
I have also heard the evidence of and read the report of Miss McBreen , social worker, who carried out an assessment of VB in response to this application for the Residence Order. This assessment was carried out between 20 July 2000 and 2 August 2000. A number of matters are relevant to VB’s application and these include:
(a) He is from a large family and in fact has two other children of his own. Although he describes his relationship with his parents as “normal”, he told Miss McBreen that he does not know the precise whereabouts of either of his parents although he has telephone contact with them. He recorded that his last meeting with his mother was April 2000 when she visited him in Magilligan Prison and he believes that his father is currently residing at the home of the mother of VB’s second child, Caolan, who was born on 10 August 1995. Telephone contact with his parents appears to be infrequent. So far as the relationship with his siblings is concerned, although he describes it as normal, his last contact with his sister was in 1996, with his brother Robert in 1994, his brother John in 1996 and his brother Seamus in 1995. In light of this I fail to see how VB asserted that all of his family members are supportive of his application and will offer him ongoing support. I consider this to be an unrealistic appreciation of the situation by him.
(b) Contact with his two older children, Cairan born on 20 September 1994 and Caolan has been limited. He told me that he has difficulty seeing them because they live in an estate where he is in fear of his life due to threats from a paramilitary organisation. He, therefore, has been unable to maintain much contact with the children. I was not satisfied that he had exhausted all avenues for making regular direct or even indirect contact with these children.
(c) He has spent significant periods of time in prison for offences of dishonesty. However, he claims that since his most recent discharge from prison in March 2000 he has not engaged in crime although he is the subject of a current charge of burglary. On the other hand he freely admitted to me that he regularly smokes cannabis and seemed to be blissfully unaware of the criminal nature of this activity.
(d) At the time that he discussed the matter with Miss McBreen he had recently engaged in a new relationship with a young lady who had apparently served a prison sentence in England from June until December 1999 for offences of dishonesty. His plans to cohabit with her and to involve her in the caring for ELF seem to have ended by the time he appeared before me. So far as accommodation is concerned he is apparently actively pursuing the tenancy of the flat and is on a priority list with the Housing Executive. He currently resides in a hostel.
A substantial part of the exchange with Miss McBreen concerned an analysis of his ability to understand the needs of the child, his ability to manage the child and his understanding of her developmental needs. I think VB found this questioning difficult and at times incomprehensible. I think it would be unfair to criticise him for this because he is not a professional social worker. On the other hand my impression of him and his understanding of the needs of this child coincide precisely with the conclusions drawn by Miss McBreen. In particular she noted:
(a) He found it difficult to discuss how he would ensure that the emotional needs of the child are met. Short of securing his own accommodation and stopping criminal activity, he had difficulty discussing the needs and benefits of establishing a routine for the child and how this would impact on his current lifestyle.
(b) His firm view is that the child should be cared by her natural family either by himself or, at that stage, JKF. Of prime importance, however, is that he does find it difficult to focus on ELF’s developmental needs and how these may differ from a child who does not require specialist care. Miss McBreen records:
“He presented as pre-occupied with the possible reasons for E exhibiting signs of developmental delay and stressed that no explanation could be derived from ‘his side of the family’. Mr B demonstrated limited understanding of how he could adequately care for a child with special needs.”
I find this particularly worrying when I consider it against the background of the paramountcy of the welfare of this child. He is unrealistic about the network of support that is available to him and both his previous and current lifestyle raise great concerns with me as to his ability to bestow on this child the care and attention that her special requirements demand. I consider that he has a very limited insight indeed into the specialist needs associated with the developmental delay of this child. I have no doubt that VB is well intentioned in this application and that he genuinely cares for the welfare of this little girl. Regretfully good intentions are but one factor in considering the paramountcy of the welfare of this child. It is my view, therefore, that he is not capable of meeting the needs of ELF.
I have considered the welfare checklist again set out in Article 3(3) of the 1995 Order and, in relation to the application of VB, I have gone through each them. My conclusions about 3(3)(a), (b), (c), (d) are precisely the same as in the case of ELF. I consider that the child would be at risk of suffering harm if a Residence Order was made in favour of VB because of his lack of insight into her condition, and, given his previous behaviour and pattern of living, I do not believe he will provide the stability and permanency that this child requires. As I have indicated, I do not consider that he is capable of meeting her needs. I have considered the range of powers available to me. My conclusion is that a Care Order is the appropriate order to be made in this case and accordingly I so do and dismiss the application of VB for a Residence Order.
I now turn to the application by the South and East Trust for an order freeing ELF for adoption. The issues are as follows:
1. First, I must consider Article 9 of the 1987 Order and consider whether or not adoption is in the best interests of the child. I remind myself of the DHSS Northern Ireland circular in May 1999 to which I have already adverted. I have also read again the helpful report of the guardian ad litem, Patricia O’Kane, on this matter together with all the other evidence before me and to which I have already adverted. I am of the opinion that adoption is in the best interests of this child. I am of this view for the following reasons:
(a) ELF is a child who has particular needs. She has benefited already from an excellent standard of care within her foster home and a range of therapeutic services are currently in place and, crucially, need to be kept in place in the future. A consistent and considered approach to this child’s further care is pivotal to her development. Only adoption in my opinion can provide this for her. JKF’s unstable lifestyle, recurrent episodes of self harm, solvent misuse and unwillingness or inability to engage in any meaningful level with the range of professionals who have afforded her the possibility of help, have all resulted in me concluding that rehabilitation for ELF to her is no longer an option. I share the view of Miss O’Kane that she is withdrawn from involvement with the childcare professionals and has become increasingly dependent on mental health services. The prognosis relating to her capacity to change with the provision of appropriate therapeutic services is extremely uncertain and I fear that the future will follow the pattern of the past. Her own needs and interests continue to take precedence and this cannot be in the best interests of the child. Similarly, I have already ruled that VB is, for different reasons, incapable of providing the necessary safeguards for this child or to promote her welfare. Neither JKF nor VB can provide this child with the stable and harmonious home that she badly needs. I, therefore, am fully satisfied that adoption is in the best interests of ELF. Long term foster care in this instance is more likely to bring about the need for further placements and where, as I have concluded, rehabilitation with her mother is highly unlikely, it would not afford the long term stability, security and permanency which adoption will provide and which is the key to ELF’s future welfare.
I come now to consider whether or not the South and East Trust has satisfied me that JKF is withholding her agreement unreasonably. I remind myself of the principles set out in Re W , Re C, and Re F to which I have already adverted earlier in this judgment and also to the principles already referred to in Hershman McFarlane at Section H, paragraph 124. Accordingly:
1. I have considered the parents’ refusal to consent at the date of the hearing.
2. I have looked at the reasonableness in the context of the totality of all the circumstances in this case.
3. I have taken into account the welfare of the child although I have not considered it as the sole or necessarily paramount criterion.
4. I have applied an objective test, namely could a reasonable parent in the position of this parent withhold consent.
5. I have recognised that the test is reasonableness and nothing else.
6. I have been wary not to substitute my own view for that of the reasonable parent.
7. I have borne in mind the caution stressed by Lord Hailsham in Re H at page 56 that:
“Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. The question in any given case is whether a parental veto comes within the band of possible reasonable decisions and not whether it is right or mistaken. Not every reasonable judgement is right and not every mistaken exercise of judgement is unreasonable. There is a band of decisions within which no court should seek to replace the individual judgement with its own.”
I have recognised that although the Trust’s justification for taking adoption proceedings is that it is in the child’s interests, a parent who disagrees with the Trust’s view is not necessarily being unreasonable. The statute requires proof of withholding of consent which is unreasonable. It is not sufficient to prove that a reasonable parent would consent.
I have also taken into account the very helpful submissions made to me by Miss Morgan on behalf of JKF in this regard. Inter alia, she has urged:
1. That rehabilitation should not be ruled out. She submits that although Dr Lynch does not give a good prognosis he cannot say that she will not develop and progress or that there is no possibility she will not calm down and mature.
2. She relies on the fact that no damage was occasioned to LF. She draws my attention to the report of Marion Doyle of 20 March 1998 who concluded that JKF’s whole energies and commitment were channelled into caring for LF since her awareness of her pregnancy whilst her own needs to a large extent were unmet. She claims that the difficulties really arose when her needs suffered and overwhelmed her although her first thoughts were again for LF’s safety. In this context Miss Morgan also draws my attention to the doubts about Dr Shepherd’s conclusions as to the reasons for ELF’s loss in weight gain. She points up the fact that JKF was misused by Mr Cook during 1999 and that his intervention was the catalyst for her various hospital attendances thereafter. All of this, Miss Morgan submits, points to a possibility of her rehabilitating herself in the light of her keenness now to provide help to her daughter. She specifically objects to the freeing application in addition on the basis that there is no established likelihood of a placement and the Trust case based on conjecture.
It is my conclusion, however, that none of these points outweigh the strength of the medical evidence which points to a fairly uncertain future for JKF and indeed the likelihood that the pattern of the past will obtain in the future. Moreover, insight into her life history, her inability to engage in therapy and benefit from the professional assistance which has been afforded to her, coupled with her persistent solvent abuse and self harm are all matters which would dissuade a reasonable parent in the position of this parent from objectively withholding consent. I am therefore satisfied that JKF is withholding her consent unreasonably in all the circumstances.
I should add at this stage that I have also considered the issues that arise from the fact that it has not proved possible to place LF or ELF together. LF is now in a fully integrated family and I have no doubt that it is in her interests to continue with that present family. Her present carers, however, did not consider that they could adopt ELF as an additional child. Accordingly the original aim on the part of the Trusts to bring the children together has not proved possible. Sibling contact is certainly important but it must be qualified by the particular needs of ELF and the plans for her together with the fact that LF is in a fully integrated family situation. Plans have been drawn up for exchange of letters and photographs leading perhaps to direct contact in the future. Post adoption contact will be made on the basis of well established attachments and positive existing relationships. This position will be carefully monitored by the Trusts and accordingly I am satisfied that this is not a circumstance that would militate against a reasonable parent’s consent.
I am also persuaded that there is evidence before the court that it is likely that ELF will be placed for adoption. Given her specialist needs, a referral to the Family Care Society has been made. This is a registered adoption society from whom the Trust purchases services. They recruit and train adoptive parents for children who are difficult to place and who have special needs. ELF is apparently a priority now and the adoption agency have said that it is likely that a couple will be trained to meet her special needs. I am, therefore, satisfied that Article 18(2)(b) is satisfied. I therefore conclude that a Freeing Order in the terms sought by the South and East Trust must be granted.
Finally I turn to the applications for contact subsequent to the Freeing Orders. I have concluded that there should be no maternal contact with LF subsequent to the Freeing Order. I share the view expressed by Ms Hollywood that it is not in the best interests of this child to have direct contact thereafter. Her evidence was that such contact is liable to upset and confuse LF. The child has not known KF as her mother. The child is now progressing well and further contact is simply calculated to upset her and destabilise the placement. The history of the behaviour in the past of KF and the instability manifested through solvent abuse and alcohol is not conducive to a meaningful contact arrangement with this child. In any event it is not JKF’s wish to have further contact with her.
Both JKF and VB have also made applications for a Contact Order in light of the Freeing Order for adoption which I have made in the case of ELF.
My primary duty again is to ensure the welfare of the child as the most important consideration. I have listened carefully to the evidence in this matter and in particular the evidence of Miss McBreen. So far as KF is concerned, I share the views
expressed by Miss McBreen in this regard. It is her view that it is not in the interests of this child that there should be post Freeing maternal contact. In the first place there is no existing relationship between KF and the child. ELF does not know her mother having been taken into care at a very early stage. Since August 1999 ELF has only made five visits to the child, each visit being facilitated by social workers. On none of these occasions did she commit herself to travel on her own. In terms her uptake of contact has been very poor. There has been no regular pattern of visits. The thinking behind contact had been to establish and develop a bond between mother and daughter. That bond has not developed. In particular on 1 August 2000, it was observed that the child clearly did not know her mother and certainly stuck close with her foster mother. It was evident that JKF enjoyed the visit but did not show any evident interest in a one on one interaction with the child. Subsequent to the visit on 1 August 2000, Miss McBreen had made arrangements for a further visit the following week. On the way back to Portadown however on that date JKF informed Miss McBreen that she would not be re-establishing contact. No attempt has been made to re-establish contact since then. Clearly, therefore, there is no existing relationship in being.
Secondly, Miss McBreen considers that contact at this stage could prove disruptive to the placement. Had there been a significant relationship hitherto or had there been a sense of permanency in the relationship, that is a danger that might have been embraced. In this instance, however, I think it is absolutely vital that ELF develop a sense of permanency with her present placement. JKF’s behaviour is so challenging and unpredictable and her contact in the past so erratic and inconsistent that I have formed the view that further contact is likely to prove disruptive.
Thirdly, Miss McBreen is of the view that further maternal contact is likely to occasion confusion in the child. Given the lack of any significant relationship or bonding at the moment, and in light of the unpredictable and erratic behaviour of JKF, I also share the view that this child is likely to become confused and upset should there be further maternal contact. I have concluded, therefore, that consequent upon the Order freeing this child for adoption, there should be no further maternal contact.
The question then arises as to whether or not there should be paternal contact between VB and ELF consequent on the Order freeing this child for adoption. Again I have carefully considered the evidence in this matter and in particular the evidence of Miss McBreen. I have again concluded that I do not consider it would be in the interests of this child for there to be further paternal contact save for one opportunity for VB to make what Miss McBreen has described as “a final goodbye visit” and to make photographs available for the child’s life history. I have concluded that there should be no further paternal contact for the following reasons:
1. There is no existing relationship or meaningful relationship between the child and VB. Where such a significant relationship did exist, then of course the court will always be wary of terminating such a contact. In the absence of any such relationship, I consider that it is not in the interests of the child to now commence contact.
2. Whilst VB’s previous offending would not in itself be sufficient to prevent further contact, the lifestyle he has adopted with regular periods of imprisonment coupled with his opposition to adoption of this child, persuades me that further contact will be a disruptive element in the search for a sense of permanency, stability and security in this little girl’s life.
I have concluded, therefore, that once these Freeing Orders have been made, save for the possibility of a final visit of VB to ELF, there should be no further maternal or paternal contact by KF or VB.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
OFFICE OF CARE AND PROTECTION
IN THE MATTER OF THE ADOPTION ORDER (NORTHERN IRELAND) 1987
CRAIGAVON AND BANBRIDGE COMMUNITY
HEALTH AND SOCIAL SERVICES TRUST
IN THE MATTER OF THE CHILDREN (NORTHERN IRELAND) ORDER 1995 and
IN THE MATTER OF THE ADOPTION ORDER (NORTHERN IRELAND) 1987
SOUTH AND EAST BELFAST HEALTH AND SOCIAL SERVICES TRUST
KF and VB