[2002] NIFam 26

Ref:

GILC3763

 

 

 

Judgment: approved by the Court for handing down

Delivered:

14/10/02

(subject to editorial corrections)

 

 


 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

FAMILY DIVISION

_______

IN THE MATTER OF J (CARE ORDER: ADOPTION AGENCIES: ADJOURNMENT: ADOPTION AGENCIES REGULATIONS) (NORTHERN IRELAND) 1989)

________

GILLEN J

JUDGMENT

[1]    I direct that there should be no identification of the name of the child, the name of either parent, or anything else that may lead to the identification of this family.

[2]    The applicant in this case is a Community Health and Social Services Trust which I do not propose to identify ("the Trust"). The child who is the subject of two applications by the Trust is named J and was born on 22 day of December 2001. N and K are the respective mother and father of this child. Whilst the couple are unmarried, they entered into a parental agreement on 4 March 2002 and accordingly both have parental responsibility for J. In the first instance the Trust seeks a Care Order under Article 50 of the Children (Northern Ireland) Order 1995 (hereinafter called "the 1995 Order") and, if successful, thereafter seeks an order pursuant to Article 18 of the 1987 Adoption (Northern Ireland) Order ("the 1987 Order") freeing J for adoption without parent agreement.

Background

[3]    N is the mother of another child namely M who was the subject of a Care Order on 6 July 2000 and thereafter a Freeing for Adoption Order on 25 June 2001. The child was then adopted on 20 November 2001. I have read the judgment of His Honour Judge Burgess in relation to that case. In the course of that judgment the Judge did criticise the Trust (which is the same Trust as the present applicant) in the following terms:

"The court is slow to criticise representatives who have a clear dedication to the well-being of children generally and I am sure to M in this case. However I believe that for such permanency to have settled in the minds of the Trust's representatives at this early stage, flying in the face of the wishes of N, was wrong, hasty and has caused great difficulty in seeking a proper resolution in this case."

[4]    Judge Burgess was dealing only with the question of the threshold criteria which he held to have been satisfied in the case of M. McLaughlin J entered a judgment in June 2001 refusing an application to discharge the Care Order in the case of M and made an order freeing the child for adoption.

[5]    The judgments in the cases to which I have adverted dealing with M outline a poignant and unhappy history. This melancholy legacy inevitably impacted upon the birth of J and no gift of insight was required to see that N's immediate prospects of caring for J were somewhat remote. Accordingly it came as no surprise to me at the start of this case when counsel on behalf of N, namely Ms Dinsmore QC and counsel on behalf of the Trust, namely Ms Hunt furnished me with a statement of threshold criteria which had been agreed between them with respect to J. I have read the papers in this case and have carefully listened to the evidence given before me by Ms R, the Social Worker from the relevant Childcare Team, Ms M, the Senior Social Worker with the relevant Childcare Team, Mr D, the Principal Officer with the Trust and Ms H another Social Worker with the Trust. In addition I have read the reports and heard the evidence of Paul Quinn, Consultant Clinical Psychologist with reference to N (and as I will shortly indicate K). He concluded in his report of 24 June 2002:

"N was the victim of extremely destructive and abusive experiences as a child which have had a marked and negative impact on her personality and social development. As a consequence of this there is evidence that she has experienced major difficulties in terms of her mental health and ability to establish and maintain interpersonal relationships. Overall she should be regarded as a victim of these circumstances and as such I have considerable empathy with her plight. As such it has always been my hope that she would be able to engage in appropriate specialist medical health services both pharmacological and psychotherapeutic which would help her cope with these problems and break destructive cycles which have developed in her life. However and perhaps not surprisingly these very difficulties have prevented her being able to avail of such services. Despite this empathy and understanding I am still of the opinion that her considerable difficulties are such that she would be unable to offer an acceptable level of care to her children where she to be their sole carer. In addition to this and based on my individual assessment of Mr K I believe that if anything he is likely to further compound her difficulties. As such I do not believe he is able to compensate for N's problems and thereby increase the likelihood of her being able to jointly care for her son J with him. Given N's age I feel that it is imperative that she continues to be encouraged to engage in specialist therapeutic services such as those made available to her within the Trust area in the past through attendance at specialist psychiatric and psychological services. This should be so even though benefits from attendance at these could not guarantee to significantly alter her circumstances, particularly in the timescale required for her to resume the care of her son J."

[6]    In light of this, I have read and entirely agree with the threshold criteria which has been put before me as agreed criteria in the case of N. They coincide precisely with my own assessment of the case. I therefore find the threshold criteria to have been proved in the case of N and I append those findings to this judgment marked "N1".

[7]    K (and for that matter N) did not give evidence before me. He did not agree the threshold criteria had been satisfied in his case. In a helpful prepared argument the Trust put before me the proposed statement of facts in relation to the threshold criteria in relation to K. The witnesses I have earlier mentioned all gave evidence in relation to K as did Mr Quinn.

[8]    Before turning to them I should record that at the outset of this hearing, an application was made by counsel on behalf of K, namely Mr Long QC who appeared with Ms Robinson, to adjourn the case to permit him to be assessed further as a carer for J with extended family support in London. Counsel frankly admitted that these instructions had only been given to him at the very last minute but nonetheless he asked that the case be taken out for that purpose. It was unclear how long this further assessment would take but obviously it could not have taken less than a number of weeks. The Trust and the Guardian ad Litem opposed such an application on the basis that this was far too late in the day to make such a proposal and that he had been afforded ample opportunity in the past to avail of such a possibility. It was submitted, and I found as a fact, that as early as 7 March 2002, both N and K had been asked to provide the Trust with information on any relative who might be interested in providing care to J. They were both told that upon receipt of this information Children Services would immediately make contact as part of preliminary discussions to determine if any family could potentially look after J. At that stage he refused to supply any names or contact addresses but agreed to provide such information to the Trust within two weeks of 7 March 2002. This was not done. On 10 April 2002 the Trust again asked K about anyone within his natural family who would be willing to offer a home for J should this be required. He indicated at that stage that they had all said no to date adding that whilst there may be some others that might show an interest he felt that this was highly unlikely. During the course of his interview with Mr Quinn on 24 June 2002 no such suggestion as that now tendered to the court was made in any meaningful way. I also find as a fact that he had had no contact with his son J at all since June 2002 when he had gone to England. Social Services have made several attempts to try and contact him during that time including contact through N. He had simply not made himself available despite being well aware that a LAC review was to occur of great importance in June of 2002. In terms he had chosen to do absolutely nothing about this matter until this eleventh hour despite his knowledge that the case had been fixed for a substantial period of time. Re G (Children) (Adoption Proceedings: Representation of Parents) [2001] 1 FCR 353 is ample authority for the proposition that in public law cases where the outcome advocated by the local authority and the guardian was a permanent loss of the children to their natural parents, it is important that if at all possible the parents have equality of representation and the sense that they have had a full and sympathetic hearing even if they are unsuccessful. On the other hand, Re P [2001] 1 FLR 781 is authority for the proposition that the court is entitled to refuse an adjournment where a legitimate and proportionate reason justifying such an adjournment is a delay to the resolution of the care hearing where that person has been given ample opportunity in the past. In Re B and T (Care Proceedings: Legal Representation) [2001] 1 FLR 485 the court refused an adjournment when parents dismissed their legal representatives on the first day. The court held that the parents had had skilled legal advice in the preparation of their case and that whilst there was a duty to the parents there was also a duty to the child who was entitled to an early determination of his future. Accordingly in this case I consider that ample opportunity had been afforded to K in the past to take the steps which he was now proposing at the eleventh hour and therefore I refuse the application to adjourn for this purpose.

[9]    I have also come to the conclusion that this child will be at significant risk of harm if he was either in the sole or joint care of K and that the threshold criteria are fulfilled in his case. In coming to this conclusion I reiterate that he did not give evidence before me and to that extent most of the evidence I heard from the witnesses mentioned above was unchallenged. Accordingly I have concluded;

[10]    K has engaged in repeated acts of domestic violence against N. In the first place he has admitted this in his statement of 10 September 2002 where at paragraph 6 he states;

"I admit there has been violence between N and I, which I honestly regret. We would both push and shove one another and slam doors and scream and shout and be generally aggressive towards one another. This was destructive and should have signalled the end of our relationship as soon as it started."

[11]    At paragraph 5 he stated;

"I accept with the deepest regret that I have been aggressive towards N. My patience has been tested to the limit, between these proceedings and our domestic situation. I could not cope with N's depression and I did find our living conditions very trying."

[12]    He also admitted to Mr Quinn in his report of 24 June 2002 at page 17 that during the course of arguments and rows between himself and N he had struck her. He added this was usually only extended to his punching her on the arm and he denied that he would in his own words "do her any more damage". I believe that he is a violent intemperate man. N, when she spoke to Mr Quinn, claimed that their home situation could be extremely chaotic and fraught at times and she described being frightened of him. She claimed that this was not only because of actual physical violence which he had perpetrated against her, including thumping her in the arm and kicking her on the leg but also holding his hands around her neck and threatening to strangle her. She claimed he was a Jekyl and Hyde type character who would be very understanding one moment and very angry and aggressive at another. She declared she was frightened of him and feared his assaults on her might escalate. I have decided that her account carries the stamp of truth given the corroborative drift of the surrounding evidence.

[13]    I accept entirely the evidence of Mr Quinn that domestic violence is well documented as a cause of increasing the likelihood of children, witnessing such violence, becoming themselves aggressors and the chance of this happening increases greatly with male children. It also causes anxiety, a feeling of powerlessness within the child (and the victim) and it diminishes the ability of parents to deal with the needs of children in such an environment.

[14]    I share also the views of Mr Quinn that K has exhibited a low tolerance within relationships and becomes aggressive and violent. He has a very limited appreciation of the danger of this and he has a tendency to blame others and this becomes a constant theme with him. Mr Quinn has said in the absence of his ability to accept responsibility, it is unlikely he will change. These violent relationships tend to be repetitive. I regard his propensity for engaging in violence as a very important factor indeed in concluding that this child is at risk of significant harm with him. I accept Mr Quinn's view that K attempts to compensate for his difficulties by controlling or over-controlling his relationships and where this appears to fail, to resort to methods such as threats and physical violence. These tendencies are likely to be more pronounced under situations of stress.

[15]    Examples abound in this case of the immanent presence in the life of K of his volatile and violent disposition. The raw material presented by Ms R concerning the events of December 2001 and January 2002 immediately before and immediately after the birth of J tell their own bleak story. By this time of course K and N had formed a relationship and the Trust were looking into the background of K. Opportunities at this stage were being afforded to both K and N to take up a placement in Thorndale Residential Family Centre for the purposes of assessment of their parenting skills. They had both been informed that if this failed the child J would be taken into foster care upon his birth. That decision was based on the limited information available on K and his lack of cooperation to allow Social Services to access his medical records and his refusal to submit a birth certificate. Concerns were already being raised at that stage regarding the level of aggression that he exhibited. On 19 December 2001 a social worker had called at their flat to collect them. In the course of that exchange K spoke at length about his anger and annoyance regarding Social Services' involvement. He expressed views to the effect that if the police were present and tried to take his child after birth he would take the gun from the police officer and shoot him or the police would have to shoot him through the head or knife him in the face. This violent imagery underlines his violent disposition. At this point K had leaned forward in this chair and pushed his finger into his forehead indicating where they would need to shoot him. The option of a placement in Thorndale Residential Family Centre was adamantly refused by him. On 20 December 2001 when again, in a telephone call, the possibility of a referral to Thorndale Residential Family Centre was discussed, he indicated neither he nor N would accept this. He was extremely angry and aggressive and used abusive language throughout the conversation regularly issuing threats that he would come personally to the Social Services Office and attack the Social Services Manager. When the social worker tried to reason with him he became even more annoyed and used expletives to the social worker. The child was born on 22 December 2001 and efforts were again made to refer the couple to Thorndale Residential Centre for 31 December 2001. On that date both parties angrily stated to Ms R at the Mid Ulster Hospital that they did not want to go to Thorndale. When K arrived at the Mid Ulster Hospital he was threatening, swearing and shouting in the hospital and pointing his finger very closely into the social worker's face. Although he then appeared to calm down, he shortly thereafter engaged in more explosive outbursts. The note of that attendance at the hospital by the social workers record;

"Throughout the afternoon the couple continued to argue and the social worker had to request the baby be taken to the nursery as K continued to shout and swear. In fact the baby stirred and began to cry. At one point K told social work staff he was going to go back to London and told the staff to deal with N as he had had enough. At that stage he left the hospital but was persuaded to return by N. At that stage he punched an empty bed in the ward and said he wanted to punch the wall."

[16]    It is not surprising that the outcome of this was that the social workers concluded that Thorndale was not now an option until further assessments were completed and more information was obtained on K. Social workers kept in contact with them but a particularly haunting picture emerged from an exchange on the telephone of 7 January 2002 when social workers telephoned K. The note of that telephone call records;

"When he answered the telephone Miss N was shouting loudly in the background. He was advised of the bus service times (for contact). He left the telephone to consult with N when the social worker requested to speak to her. He repeatedly said 'speak to her', the couple shouted and swore at each other. K returned to the telephone and stated `don't phone here any more, I don't want to know, keep my son' N then took the telephone and said `he is as mad as an animal, the way he treats me. What kind of a father would you make'. K continued shouting in the background. N stated `this is what I have to put up with all the time'."

[17]    But one more illustration of K's behaviour is found in the social worker's note of 11 March 2002 which records;

"It was very obvious to social worker that the atmosphere was very tense between N and K when J arrived for contact. K was very quiet and did not respond when social workers spoke to him. After a few minutes he became verbally aggressive and stated `there is one thing I want to say to you'. He got quite annoyed and pointed to social worker and spoke in a raised voice and expressed his annoyance about the decision made by Children Services to contact his ex-wife. He stated `if you do, I will leave N to bring up her son. I will stay in Northern Ireland and see MD (another social worker) personally'. Social worker commented that what he had said in relation to Mr D sounded like a threat. He replied `it is not a threat but a promise. You tell him if he speaks to my ex-wife again I will personally see him.' Social worker informed K that his behaviour was inappropriate in the presence of his son. He stated `I don't care'."

[18]    I am satisfied that K's lifestyle is characterised by quite unusually high levels of aggression and violence and he exhibits a dismal aptitude for change. I have no doubt that these are fractured foundations for sole care or shared care of his child. The valiant attempts by the social workers in this case to inject good sense have almost invariably been rebuffed in a welter of foul language and threats. I have seen not the slightest indication in any of the evidence before me of any propensity for change on the part of K or any vestige of insight. He seems completely unaware of the nature of the problem from which he suffers or, more importantly, of the damage that this could visit on his child.

[19]    K is clearly suspicious of the professional help which has been offered to him. He has rejected all overtures of assistance and has denied social workers access to information which they have quite properly sought to obtain about his background relationships and circumstances. He has adamantly refused to accept the previous and current concerns of the Trust and has illustrated that he is quite unable to put the needs and safety of his own child above his own volatile personality. Accordingly I have concluded that he is not able to provide an appropriate level of care and protection for J and the child would be at risk of significant harm if placed in his care either solely or with the assistance of others. His personality problems at the moment are such that direct or prolonged involvement by him in the life of this child would create a significant risk for J.

[20]    I have therefore no hesitation in concluding that in his case the threshold criteria are also satisfied.

[21]    Having concluded therefore that the threshold criteria have been satisfied, I must now move to consider whether it is proper to make a Care Order in the light of the care plan and after proper consideration matters contained in the welfare checklist in Article 3(3) of the Children (Northern Ireland) Order 1995. Many of the issues that I have already determined factually apply to the welfare checklist and I shall deal with the matter in brief;

(a) The ascertainable wishes and feelings of the child cannot be obtained because of his tender years.

(b) I am satisfied that his physical, emotional and educational needs quite clearly require a Care Order.

(c) I have no doubt that he is currently in good hands with foster carers and that the effect of a change on him in returning him to either his father or his mother would be detrimental to his best interests.

(d) He is very young at the moment and accordingly requires the security and permanence which is presently being afforded.

(e) As I have made clear I have no doubt from the evidence concerning both the father and the mother that this child is at significant risk of harm if returned to their care either individually or collectively.

(f) The mother has admitted that she is not capable of meeting this child's needs and I have concluded that the frailties in the character of the father prevent him meeting the child's needs. I am not satisfied that any other person can meet those needs and I have concluded that the efforts made by the Trust to look into possible alternatives have been comprehensive and full where sufficient information has been afforded to them.

(g) I do not consider that any other order would be suitable in this case and in particular I consider that a Supervision Order would be inadequate because the dangers presented by direct contact between these parents and this child are too great in the circumstances I have already outlined.

[22]    The care plan in this case is for permanence and adoption. I have concluded that this care plan should be approved by me. I have also come to the conclusion that a Care Order is a proportionate response to the legitimate aim of looking at the best interests of this child. I have taken into account the right to respect for private and family life on the part of these parents but I consider that the best interests of this child require that the order I have in mind be made. I have before making this Care Order considered the arrangements for contact and in view of the next matter which I am about to consider, namely the application to free this child for adoption, it is unnecessary that I should outline the conclusions I have arrived at about contact at this stage.

[23]    I now turn to consider the statutory provisions governing the application by the Trust to free this child for adoption as in the Adoption Order (Northern Ireland) 1987 (hereinafter called "the 1987 Order"). Article 9 sets out the duty to promote the welfare of the child as follows;

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

(a) Have regard to all the circumstances, full consideration being given to;

(1) 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

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

(3) 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."

[24]    Article 16 states where relevant;

"(1) An adoption order shall not be made unless 

(a) The child is freed 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

(1) 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 conditionally or subject only to a condition with respect for the religious persuasive in which a child has to be brought up, to the making of an adoption order; or

(2) His agreement to the making of an adoption order should be dispensed with on the grounds specified in paragraph 2.

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

(b) Is withholding his agreement unreasonably."

[25]    The freeing of a child for adoption without parental consent is dealt with in Article 18 which in so far as it 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 his agreement to the making of an adoption order should be dispensed with on the grounds specified in Article 16(2), the court shall make an order to 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."

[26]    I have been satisfied in this case that the child is in the care of the adoption agency and I have also been satisfied that it is likely the child will be placed for adoption if I make such an order freeing the child for adoption.

[27]    In either freeing or adoption proceedings, the court has the power to dispense with the parents' agreement to adoption on one or more of the six specified grounds set out in Article 16(2) of the 1987 Order. In this case the ground relied on by the Trust in each case is that the parent is withholding his or 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?

[28]    These two stages are separate and must be considered by the courts 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. The leading authority on the meaning of the ground and the test that the court should apply is the House of Lords decision in Re W (An Infant) [1971] 2 ER 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 not 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."

[29]    More recent authorities and in particular Re F (Adoption: Freeing Order) [2000] 2 FLR 505 have indicated 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. However the main components of the test of unreasonableness are still those applied in Re W and helpfully set out in Hershman & McFarlane "Children Law in Practice" Section H at paragraph 124 and I shall shortly return to these components when applying the test in this instance.

[30]    An issue that assumes some importance in this case was the extent to which the Trust had complied with the obligations under the Adoption Agencies Regulations (Northern Ireland) 1989 (hereinafter called "the Regulations").

[31]    Where relevant, the Regulations state as follows;

"9.-(1) Subject to paragraph (2), an adoption agency shall refer its proposal to place a particular child for adoption with a prospective adopter, which it considers may be appropriate, together with a written report containing its observations on the proposal and any information relevant to the proposed placement, to its Adoption Panel.

.

Adoption Panel functions

10.-(1) Subject to paragraphs (2) and (3), an Adoption Panel shall consider the case of every child, prospective adopter and proposed placement referred to it by an adoption agency and shall make one or more of the recommendations to the agency, as the case may be, as to

(a) Whether adoption is in the best interests of a child and, if the panel recommends that it is, whether an application under Article 17 or 18 (freeing child for adoption with or without parental agreement) should be made to free the child for adoption .

..

Adoption agency decisions and notifications

11.-(1) An adoption agency shall make a decision on a matter referred to in Regulation 10(1)(a) only after taking into account the recommendation of the Adoption Panel made by virtue of that regulation on such matters.

(2) As soon as possible after making such a decision the adoption agency shall, as the case may be, notify in writing

(a) The parents of the child, including the father of an illegitimate child where the agency considers this to be in the child's interests, or the guardian of the child, if their whereabouts are known to the agency, of its decision as to whether it considers adoption to be in the bests interests of the child;

(b) The persons to be notified under sub-paragraph (a), if it considers adoption to be in the best interests of the child, of its decision as to whether an application under Article 17 or 18 (freeing child for adoption with or without parental agreement) should be made to free the child for adoption;

(c) The prospective adopter of its decision as to whether it considers him to be suitable to be an adoptive parent; and

(d) The prospective adopter of his decision that he would be suitable as such for a particular child."

[32]    It was common case in this case that a Looked After Children review (hereinafter called "LAC") occurred on 13 June 2002. Subsequent to this the matter came before an Adoption Panel on 24 July 2002. The question arose as to whether or not, in breach of the regulations, the Trust had made a decision on the matter referred to in regulation 10(i)(a) before taking into account the recommendation of the Adoption Panel or whether it had simply referred a proposal to the Adoption Panel to place the child for adoption as set out in regulation 9(1).

[33]    It is clear that although the heading of the memorandum recording the LAC review of 13 June 2002 listed the senior social worker Ms M as having been present at that meeting, in fact she was not. I am satisfied that her name had been entered as a pure oversight by Mr D who was the principal officer and who was responsible for care planning in the case of this minor.

[34]    When Ms M gave evidence, she made it clear that she believed, despite not having been present at the LAC meeting on 13 June, that a decision had been made at that meeting that the child was to be freed for adoption. She did not accept that this was simply a proposal that he be adopted. Ms R, who was a social worker throughout the whole process during which the Trust dealt with J was present at the meeting and she indicated also that she felt a decision had been taken for permanency in respect of the child at that meeting.

[35]    This evidence was flatly contradicted by Mr D the principal officer who had chaired the LAC meeting. He was adamant that the LAC review simply resolved to propose to the Adoption Panel that adoption should be considered as in J's best interests. Two decisions were made at that review he claimed. First, that the Trust felt that rehabilitation between J and his parents was simply not possible within the timescale that was appropriate to J's needs. Secondly, there was a need to plan for alternative permanency in his future. The alternatives for permanent placement were then considered. Foster care seemed not in his best interests in the short or long term, there was no immediate family to look after him in the view of those present and therefore they looked at the potential for adoption. On foot of that they made a recommendation in the form of a proposal to the adoption agency. However he emphasises no final decision about adoption had been made.

[36]    I have come to the conclusion that Mr D's evidence is to be preferred in this instance. I have read the memorandum of the meeting of 13 June 2002 very carefully and it is quite clear from this that there is no hint whatsoever of a decision having been made. The terms of that memorandum are couched in terms that clearly indicate a proposal was being put forward to the adoption agency. Had a decision been made, that fact would undoubtedly have found its way into the memorandum. My attention was drawn to a statement in the care plan namely "If the Adoption Panel agrees that adoption is in J's best interest an application to free J for adoption will be made in September 2002". I do not believe that this reflects other than an earnest hope on the part of the Trust that the Adoption Panel would agree with the proposal. Mr D was quite clear in his evidence before me that no decision was being taken and I believed him when he told me this. The memorandum he made of the meeting was circulated to all the other parties and none of them disputed its contents. Sadly, as I will indicate later in this judgment, it is clear that the appropriate approach to procedures in this Trust require urgent reassessment. It was evident to me that neither Ms R nor Ms M were au fait with the regulations or guidelines governing the steps to be taken leading up to an application to free for adoption. I believe they may have been unaware of the significance of the difference between a proposal and a decision. I do not believe they literally meant a decision had been made because they were both well aware that the matter was to be referred to the Adoption Panel and however likely it may have been that the Panel would recommend adoption, no decision could possibly be taken until that step was over. At least in this area, I consider that Mr D was well aware of what the procedure was to be and followed it appropriately. I reject the proposition therefore that there has been any breach of Regulation 11(1).

[37]    However I consider there has been a clear breach of Regulation 11(2) in that it is openly admitted by Mr D that after the decision had been made by the Trust that freeing for adoption was to be pursued, it failed to notify in writing the parents of the child (or for that matter the prospective adopters). I am satisfied that the reason for this failure lies in the all too casual approach which has been adopted by this Trust to Regulations 9, 10 and 11. No more vivid or compelling example of this is found than in the manner in which the decision of the Trust under Regulation 11 was made. Mr D had not been present at the adoption agency meeting, but the result was verbally communicated to him by Ms R. There was not a written record of what the adoption panel had recommended at that stage. Mr D then discussed the matter with Ms R. He was uncertain as to whether or not Ms M had been present. The matter was not referred back to the LAC review of 13 June 2002 and neither Ms B nor Ms C who had been present at that meeting were contacted. The decision was then taken to engage the process of a freeing order. That decision was not minuted or recorded in any document. The parents were not invited to participate in the decision nor were they informed in writing thereafter that it had been taken. I share the view of the guardian ad litem Mr Maybin that an approach such as this potentially ignores the vital elements of partnership and participation which are so important in cases of this kind and which in most cases would not accord sufficient value and respect to the parents. I recognise that in this particular instance this casual approach was fuelled by the failure of the parents to turn up at the LAC review of 13 June 2002 despite being invited to do so coupled with the fact that there had been a general disinclination on the part of the parents to keep most appointments in the past. On this occasion K had gone to London at the very time when it must have been obvious to him that the professional agencies would wish to speak to him. Moreover it is clear from the LAC review of 7 March 2002 that at that early stage the Trust had made it clear to the parents that their plan was for a time limited assessment to see if J could return to their care and that if the assessment suggested he could not then the Trust would have to make alternative permanent plans. They would seek alternative permanent carers for J. The various possibilities of alternative care were explored with them at that stage but once again no material assistance was forthcoming. I have no doubt therefore that the decision made by the Trust post the Adoption Panel recommendation did not constitute any radical change of plan of which the parents were unaware or which would have caused them to take a different path from that which they have followed throughout these proceedings. They were told what had happened at the LAC review of 13 June 2002 a few days later and were therefore well aware what the recommendation to the adoption agency was to be. They took absolutely no step to challenge that recommendation or to change the mind of the Trust. It was argued before me by both Mr Long QC and Ms Dinsmore QC, that they should have been involved in the decision making process after the Adoption Panel had given its recommendation. I have no doubt that it is imperative that this Trust review its procedures in this area so as to ensure that not only are the regulatory steps observed but that a proper decision making forum is set up for a decision under Regulation 11 with appropriate records and memoranda together with appropriate involvement of the parents in the process. Indeed, whilst it was not argued before me, I pause to observe that Trusts should review all areas of decision making within child care procedures and proceedings in light of Article 8 of the ECHR (see para 38 below) including decisions about initiating care, adoption, freeing proceedings and perhaps even recommendations by adoption panels which are made without parental involvement notwithstanding those recommendations steer the Trust decision making on those issues. Any such area which effectively excludes parents from effective or any participation deserves scrutiny. However in this particular instance it seems to be that they had been afforded ample opportunity in the overall process to make their views heard and protect their interests.

[38]    Counsel also drew my attention to Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300. In that case, a Trust had been found in breach of its duty to comply with Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) by failing to involve parents in the decision making process to a degree sufficient to provide them with the proper protection of their interests. The court held that by failing to do so the local authority had acted unlawfully. Ms Hunt on behalf of the Trust, in the course of a well marshalled argument, drew my attention to a salient extract from the judgment of Holman J in Re M at page 1318(g);

"I turn however to the broader submissions based on the Human Rights Act 1998 and the European Convention on Human Rights. In R v The United Kingdom [1998] 2 FLR 445, the European Court of Human Rights rightly determined that, although there are no explicit procedural requirements within Article 8 of the Convention, the quality of a local authority's decision making process nevertheless itself engages Article 8. The court said at para 62 of its judgment:

`It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority's decision making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on the relevant considerations and is not one-sided and, hence, neither is nor appears to be arbitrary. Accordingly the court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all circumstances, is fair and affords due respect to the interests protected by Article 8.'

As a result of that reasoning the court went on to hold at para 63 that:

`The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision making process must therefore, in the court's view, be such as to secure that their views and interests are made known to and duly taken into account by the local authority and that they are able to exercise in due time any remedies available to them.'

In the second part of para 64 the court expressed its conclusion, and the relevant test, in a passage upon which all the advocates have relied before me:

`In the court's view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, that parents have been involved in the decision making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as `necessary' within the meaning of Article 8'."

[39]    I have also taken into account the following:

(a) There is no doubt that procedural implications implicit in the right to respect for family law are important and may potentially have far reaching consequences. Holman J said at page 1313 of Re M (supra):

"My consideration of this aspect of this case has emphasised to me what a heavy responsibility and wide discretion the Human Rights Act 1998 has placed upon a court in considering, after the event, the lawfulness of a decision making process such as this."

The principles set out in Re M have been approved by the House of Lords in Re S (minors) (care order: implementation of care plan); Re W (minors) (care order: adequacy of care plan) (2002) 1 FLR 815.

[40]    (b) Dame Elizabeth Butler-Sloss has recently reviewed the relevant case law in C v- Bury Metropolitan Borough Council (2002) EWHC 1438 (Fam), (2002) FLR (forthcoming) in the following terms:

"The approach of the court to a challenge to the procedures followed and the care plan adopted by the local authority which is being criticised has to be broader and more investigative than prior to the implementation of the Human Rights Act 1998 and the court must apply the requirement of Article 8(2) of the Convention."

[41]    I have considered all the circumstances of this case. Time and time again throughout this process, these parents had failed to avail of the numerous opportunities afforded to them to involve themselves in the process. In the case of N, this had also been redolent of her approach in the case of M. Ms Hunt helpfully drew up for me an extremely thorough chronology of the numerous attempts between August 2001 and September 2002 highlighting the intensive efforts that were made to engage the parents and to afford an opportunity to participate in the process. Direct meetings, home visits, telephone calls and letters attempting to engage them were all spurned. Efforts included assistance with travel, bus times, and direct collection. The approach of the Trust was one of patient indulgence and unremitting effort. In many ways Schedule 1 and Schedule 2 which have been helpfully appended to Ms Hunt's skeleton argument are an eloquent testimony to the efforts made by this Trust. As I have indicated the parents, had indicated through their solicitor that they did not intend to attend the LAC review of 2002 and no further step was taken upon their being appraised of the outcome. Accordingly I have come to the conclusion, having regard to the particular circumstances of this case and the innumerable opportunities afforded to these parents to be involved in the decision making process as a whole, they had been given ample opportunity to protect their interests. It was further argued before me that as a result of the failure to invite them to the final decision making forum, the Trust was insufficiently aware that K and N had now broken up and that K therefore wished to be assessed as a sole carer in his own right. I do not accept that proposition. The Adoption Panel report, which has been disclosed to me, makes specific reference to the fact that N had informed the social workers that K had returned to London and that she did not wish to resume her relationship with him at that time. A note of 24 June 2002 recorded in that Adoption Panel reports as follows:

"Ms N attended contact on her own on Wednesday 19 June 2002. She advised K had returned to London as his mother was ill and she did not know when he would return. N also told social worker that she and K felt J was going to be adopted although they felt there was no point fighting for him and they believed they had to continue the procedures."

[42]    Further entries at 1 July 2002 and at page 49 of that report make it quite clear that both the Trust and the Panel were well aware that the relationship was allegedly over and that K was residing in London. I am satisfied therefore that both the Panel and the Trust were well aware of the changed circumstances and that this was taken into account. It is my conclusion that not only was this couple afforded ample opportunity to involve themselves in the process, but all the salient facts were known to the Adoption Panel at the time of its recommendation and to the Trust at the time the decision was made. Accordingly I do not believe that the failure to invite them to the Adoption Panel or the final decision making forum was unlawful and I do not believe that the action of the Trust constituted an unlawful act. In all the circumstances I consider that the decision making process has been conducted fairly so as to afford due respect to the interests of the parents' protected by Article 8 of the ECHR and the process has secured that their views and interests were made known and duly taken into account by the Trust. In those circumstances I do not believe that either parent is entitled to entertain a sense of injustice or grievance.

[43]    One final matter that distinguishes the present instance from Re M is that the decision in this case is not irreversible. The matter is now before me and I possess full powers to reverse the effect of the decision by the Trust to apply for these children to be freed for adoption.

[44]    However the particular facts of this case may make it the exception rather than the rule in future cases and Trusts must recognise that parents must be fully involved in decision making which will affect their family life.

[45]    It was submitted before me that Regulation 11(2) was to be regarded as mandatory rather than directory. I have read the decision of the Court of Appeal in Re T (a Minor) (Adoption: Parental Consent) [1986] 1 AER p817 which dealt with the comparable regulation in the Adoption Agency Regulations 1983. I adopt the reasoning of the court in that case which concluded that the regulation in question was to be regarded as directory rather than mandatory having regard to the effect on innocent third parties ie the child and the prospective adopters if non compliance was to vitiate the adoption. Secondly regard must be had to the child's welfare which was the prime consideration. Thirdly, regard must be also had to the fact that the rights of all the parties, including the mother and father in this instance, could be adequately protected by the court when hearing this present application. I do not believe that either the mother or the father have been prejudiced by such non-compliance as has occurred in this instance. Accordingly I do not consider that non-compliance should affect the validity of any order that I make. I wish to make it clear however that nothing which I have said in the course of this judgment is to indicate any view on my part that it is not necessary for the Trust to comply strictly with the letter of the regulations. I reiterate that this Trust must as a matter of absolute urgency review its guidelines to ensure that staff comply strictly with these regulations.

[46]    One other matter falls to be considered at this time. This is the role of the Guardian ad Litem in this case. The Guardian ad Litem did not refer to the breaches of the regulations by the Trust in the course of the Guardian ad Litem's report to this court. My attention was helpfully drawn to comments by Higgins J on the role of the Guardian ad Litem in Re M (unreported, delivered 10/12/01) (HIGF3477) and in Re HGH (Unreported. Ref HIGJ2689.T). There is no need for me to specifically review each point raised by the court in these two cases. However for the purposes of the matter now at issue, namely whether it was part of the role of the Guardian to ensure that the statutory regulations had been adhered to by the Trust, I make the following general comments about the role of the Guardian ad Litem;

(1) A Guardian ad Litem is not a party to the proceedings in the orthodox sense.

(2) The appointment by the court of a Guardian ad Litem is governed by, in the first instance, Article 66(1) of the 1987 Act which states;

"(1) For the purpose of any application for an adoption order or an order freeing a child for adoption an authorised court shall appoint a guardian ad litem for the child concerned.

(2) The guardian ad litem

(a) shall be appointed in accordance with adoption rules; and

(b) shall be under a duty to safeguard the interests of the child in the prescribed manner."

[47]    The prescribed manner is that specified in the Adoption Rules (RSC Order 84 rr6 and 18, CCR rr5 and 17).

[48]    Order 84 rule 6(1) outlines the duties of the guardian ad litem and in particular Order 84 rule 6(2) states;

"(2) With a view to safeguarding the interests of the child before the court, the guardian ad litem shall, so far as is reasonably practicable

(a) investigate:

(i) the matters alleged in the originating summons, the report supplied by the applicant and, where appropriate, the statement of facts supplied under rule 4, and

(ii) any other matters which appear to him to be relevant to the making of an order freeing the child for adoption;

(b) advise whether, in his opinion, the child shall be present at the hearing of the application; and

(c) perform such other duties as appear to him to be necessary or as the court may direct."

[49]    I am satisfied that if the Guardian ad Litem is to fulfil his role to assist and advise the court about these matters, this must embrace an investigation to ensure that the statement of facts faithfully embraces an adherence to the statutory and regulatory obligations imposed on the Trust. It seems to me clearly a matter relevant to the making of the order that a Guardian should check to ensure that the statutory and regulatory obligations cast on the Trust have been complied with. The purpose of the statement of facts is to set out the facts upon which the applicant intends to rely for the purpose of satisfying the court that the agreement of the parent ought to be dispensed with on one or more of the grounds set out in Article 16(2). Failure to comply with the statutory and regulatory obligations may well be a highly relevant factor as to whether or not agreement is being unreasonably withheld.

[50]    I have concluded that the factual matters set out in the threshold criteria to which I have earlier referred are all circumstances which I must take into account in considering the duty imposed on me under Article 9 of the 1987 Order. Having taken these matters into account, I am satisfied that adoption by his present carers would be in this child's interests because he desperately needs the permanence and security which only adoption can afford him. I consider it is the only way in which he can avoid a life of chronic instability, parental violence and dispute and lack of proper care which would be his fate if he were returned to either both of these parents. The weight to be attached to the strong supposition that is in the interests of a child to be brought up by his natural parents must yield to the circumstances of the particular case and I have no doubt that in this case adoption will be in his best interests. He is too young to ascertain his proper wishes and feelings. I have also considered the arguments in favour of long term fostering. However I have rejected this possibility because of the very tender years of this child and the pressing need for a sense of permanency and security to be engendered in him as soon as possible.

{51] I then turn to Article 16 and the principles to which I have already adverted. I shall deal with these in turn;

(1) I have considered the reasonableness of the parents' refusal to consent at the date of this hearing.

(2) As I have indicated I have taken into account all the circumstances of the case. I include in this context the breach of the regulations by the Trust and the failure to invite them to the decision making forum after the Adoption Panel had recommended adoption.

(3) I recognise that the welfare of the child must be taken into account but it is not the sole or necessarily paramount criterion.

(4) I have imposed an objective test. The test is whether a reasonable parent in the position of each of these parents would withhold consent. I have read the statements made by each of the parents in this instance. I have taken into account as I have already stated the breaches outlined above by the Trust. Having done this, I am still satisfied that given the circumstances that obtained in this case, and in particular the parental instability, domestic violence, and abject failure to avail of assistance offered to them, no reasonable parent could entertain a sense of grievance or injustice and no reasonable parent would withhold consent to this freeing application. I have concluded that the breach of Regulation 11(2) and the other criticisms of practice I have made of the Trust are not sufficient to persuade me that it is reasonable to withhold agreement for the reasons already set out.

(5) I have imposed the test of reasonableness and nothing else.

(6) I have been wary not to substitute my own view for that of the reasonable parent. I have considered whether adoption is the right order for the child and thereafter I have looked at the question of the parents' reasonableness. I have been wary not to rely too heavily upon the views of the children's guardian but I have taken them into account in arriving at my decision. The guardian has recommended that the child be freed for adoption. I found the evidence of this witness to be careful, considered and most impressive.

(7) I have considered whether the proposed parental veto in this case comes within the band of possible reasonable decisions and not simply whether it is right or mistaken. However I have come to the conclusion that there is no realistic expectation that either parent could undertake the future care of this child given the circumstances that I have outlined. Rehabilitation is inconceivable in my view, and the child's security in the future demands that this order be made.

[52]    I am satisfied that both parents have been afforded the opportunity to make the appropriate declaration under Article 17(5) of the 1987 Order.

[53]    I have come to the conclusion therefore that in all these circumstances an order must be made freeing this child for adoption.

http://www.bailii.org/nie/cases/NIHC/Fam/2002/26.html