Jersey Unreported Judgments

 

[2011]JRC092B

Royal Court

(Family)

3^rd May, 2011

Before     :

Sir Philip Bailhache, Kt., Commissioner and Jurats Fisher and Crill

 

IN THE MATTER OF THE ADOPTION (JERSEY) LAW 1961

AND IN THE MATTER OF E

MS appeared in person.

PS appeared in person.

Eleanor Green appeared as Guardian ad Litem.

judgment

the commissioner:

1.        This is an application by PS, to adopt a female child E who was born in 2001. Ordinarily the application would not require a special hearing nor a written judgment from this Court.  The unusual circumstances are that PS is in a same sex relationship with his partner MS and the application must be considered against the background of Article 11(3) of the Adoption (Jersey) Law 1961.  That paragraph provides:-

"An adoption order shall not be made in respect of a female infant in favour of a sole applicant who is male, unless the Court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order".  

2.        On 3^rd March, 2009, the Court delivered a judgment in relation to a different application by these two men to adopt twins then aged nine.  The Court heard argument from a Crown Advocate as amicus curiae and expressed its views on the statutory provision which we have just cited.  We would neither add nor subtract anything from those views and this judgment should be regarded in a sense as supplemental to the judgment given in 2009.  

3.        While we have reservations as to whether this statutory provision is any longer appropriate or indeed lawful, having regard to the European Convention on Human Rights, we have nonetheless applied our minds to the question whether there are special circumstances justifying the making of an adoption order in this case.  

4.        The Court has heard evidence from PS and MS as to the progress made with the twins, whom they adopted in 2009.  It is a heart warming story.  There is little doubt that the assessment in 2009 of Mrs Jane Whittaker, a senior officer in the Probation Service and guardian ad litem to the children, was prescient and accurate.  Mrs Whittaker stated:-

"If I, or any other professional in this type of work, were to devise a list of the ideal parenting qualities needed to cope with C and D's complex needs PS and MS would probably meet every point.  They have been rigorously assessed for their suitability to care for the children and all the workers with whom I have had contact for this report consider the level of care they provide is first class.  These qualities will help them meet the challenges ahead and will help them get through changing times as the children grow up and experience the different needs of teenage years.  On the basis of all the information available to me I have no doubt that they will meet these demands." 

5.        The Court has had the benefit of a full report from Mrs Eleanor Green, the guardian ad litem of E, which echoes much of what was said by Mrs Whittaker in 2009.  So far as E is concerned she is a child who was freed for adoption in November 2009, at the same time she was made the subject of a care order.  She has been in foster care for some time and was placed with PS and MS in May 2010.  She has learning difficulties but is broadly aware of the adoption process.  She told the guardian ad litem that she was happy in her placement with MS and PS and that she would like to stay there, although she would like to see her natural mother if her mother were well enough. 

6.        We heard evidence of contact which has been made very recently between the mother and E in her new environment and we are assured that the relationship between the birth mother of E and the applicant and his partner is extremely good.  

7.        E has health problems in the sense that she was thought to have a benign form of epilepsy. Evidence given by PS, however, indicated that following further tests which had been carried out at a hospital in the United Kingdom, it seemed that her problems were related not to epilepsy but to a form of difficulty in the transfer of glucose in the brain.  Different medication has now been given to the child and she appears to have benefited very greatly from that change.  

8.        PS and MS have recently moved to England and all three children in their care attend the same primary school.  All appear to relate well to each other.  PS is working at the school in a voluntary capacity and all the children are pleased to see him in that environment.  According to the guardian ad litem, E was observed to be very affectionate with PS and MS.  Whereas her emotional development was previously very stunted, E now sparkles, according to her social worker and according to the guardian ad litem, in her new environment.  

9.        As to whether there are special circumstances justifying the Court in displacing the statutory presumption set out in Article 11(3) of the 1961 Law, we conclude that the answer is in the affirmative.  Our reasons can be summarised as follows:-

(i)        If the rationale for the statutory provision in question is the risk that a male applicant might abuse a female child, that factor does not arise here.  PS is in a stable same-sex relationship and we are satisfied that neither he nor his partner poses any threat at all in that respect;

(ii)       E is now nine years old.  She has had a troubled background and has faced severe emotional stress during her short life.  She has also experienced medical problems.  She is a child who would not be easy to place with prospective adopters.  It is clear from the report and from the evidence that the last year in the care of PS and his partner has been a time of unprecedented stability and happiness for her; and

(iii)      As mentioned in our earlier judgment, the parenting abilities of PS and his partner MS are exceptional.  We repeat paragraph 22 of our 2009 judgment which is as applicable to E as it was to the twins subject to the earlier application.  

"The parenting abilities of PS (and his partner MS) appear to be exceptional.  Since taking the children into his home, PS has given up his job in the finance industry in order to devote his time to them.  He has become a volunteer helper at the children's school and is highly regarded there.  He impressed us with having a perceptive and realistic approach to the task of bringing up children.  He sets fair and appropriate boundaries so that the children know what is acceptable behaviour and what is unacceptable.  The children have ceased to be aggressive and have begun to develop into outward going and happy individuals, confident in the stable and loving environment in which they now live.  PS is aware that his homosexuality, and his relationship with MS, may give rise to difficulties for the children as they grow older and he has thought of strategies to cope with that.  Both he and his partner come from large families, both of which are supportive of them.  They have close friends who are heterosexuals.  There are female members of the extended family and friends who are able and willing to discuss with C any matters which require a female confidante".  

10.      For all these reasons we are satisfied that there are special circumstances why the application of PS should succeed.  We have no doubt that it is in the best interests of E that she should be adopted by the applicant PS.  

11.      We turn next to the application by MS for a residence order under Article 10 of the Children (Jersey) Law 2002, in respect of E.  The 1961 Law does not currently permit a same-sex couple to adopt a child but MS wishes nonetheless to have some legal responsibility for E's care and upbringing.  The twins to whom we referred earlier in this judgment are the subject of a residence order made by this Court in favour of MS.  It is logical and in the best interests of E that this application should be granted and we so order.  

Authorities

Adoption (Jersey) Law 1961.

European Convention on Human Rights.

Children (Jersey) Law 2002.