Jersey Unreported Judgments

Care Order - application by the Minister for a final care order and free for adoption order.

[2013]JRC234

Royal Court

(Family)

25 November 2013

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Marett-Crosby and Blampied.

 

Advocate S. L. Brace for the Applicant.

Advocate A. T. H. English for the First Respondent.

Advocate C. R. Dutôt for the Second Respondent.

Advocate V. S. Milner for the Third Respondent.

judgment

the commissioner:

1.        This is an application by the Minister for a final care order in respect of M ("the child"), who is now aged 2, and for an order that he be freed for adoption.  The application is supported by the Guardian, but opposed by the first respondent ("the mother") and the third respondent ("the father"). 

2.        It was agreed by the parties that the threshold criteria had been met but there were nevertheless a number of alleged incidents which were disputed and upon which the Court was invited to make findings of fact.  During the course of the hearing, and after the expert evidence had been heard in part, there was a material change in the position of the mother, in that she accepted a number of the findings put forward by the Minister which she had hitherto disputed. 

3.        We set out the history of the matter as presented to us by the Minister. 

Background

4.        The mother (who is 39) and father (who is 46) are Polish, originating from neighbouring villages in Poland and both have children there.  The father has seven children (some now of age) who are cared for by his former wife and the mother has three children who are cared for by her husband (from whom she is separated) and by her mother.  Both parents came to Jersey some ten years ago for economic reasons (the mother with her husband who has since returned to Poland) and have been in a relationship for around seven years. 

5.        The mother gave birth to the child earlier than planned on her own at home without any assistance in 2011.  The father was away in France at the time, returning four days after the child's birth.  He arranged for the mother and child to be taken to the General Hospital and both were found to be well. 

6.        The mother had not accessed ante-natal care in Jersey (the agencies here being wholly unaware of the pregnancy) but claimed to have attended a doctor in Poland on visits there.  She has been unable to produce any written evidence of any consultations with a doctor in Poland (because she said she was told she had to attend there personally in order to obtain the same) and the Children's Service were unable, through the relevant Polish agencies, to locate the doctor whose name she had given them.  She would not appear to have consulted any doctor in Jersey during the period of her pregnancy, even though it would seem clear that she had access to a doctor here. 

7.        On an unannounced visit by the health visitor on 11^th October, 2011, there was a question as to whether the mother had been drinking alcohol, which she denied.  The home conditions (a bedsit) were described as poor, cramped and damp. 

8.        On a home visit on 14^th October, 2011, the health visitor was again concerned that the mother appeared to be under the influence of alcohol, which the mother put down to medication she was taking.  The mother was reported as being unreceptive to advice offered by the health visitor.  The mother missed two follow up appointments with the paediatrician in November 2011 and February 2012. 

9.        On 12^th December, 2011, the health visitor noted that the mother had a bruised leg and black eye, which she said was caused by a fall.  The child was feeding well, with consistent weight gain (upon which we comment later) but slow progress with regard to his responses to stimulus was noted. 

10.      On 13^th August, 2012, neighbours telephoned the police to report an argument between the mother and father.  The father had been holding a Stanley knife that he had been fixing a satellite dish with whilst shouting at the mother.  The mother did not wish to make a formal complaint and no further action was taken by the police. 

11.      On 23^rd September, 2012, neighbours again called the police as the result of an argument that was taking place between the mother and father who was shouting and the child crying.  The police officers who attended found the mother intoxicated lying on the bed with the child, with a ripped top and a fresh graze to her left elbow.  There was a smashed mobile on the floor. 

12.      According to the statement of PC Ptaszynska, the mother told her when outside the building and away from the father:-

"Things like this happen very often, he beats me regularly, there is something wrong with him, he has lots of problems but he is very good father and a good man, he did not hit me today and nothing happened, I don't want him to get arrested because he would lose his job and then we will be in troubles, I won't make any complaint because nothing happened."

13.      It was explained to the mother that the father had been arrested for common assault but she was being ambivalent as to what had really occurred, answering most questions in the negative but then saying something completely opposite.  The officer felt she was hesitating to tell the truth.  Quoting from PC Ptaszynska's statement:-

"When I asked [the mother] question: "Has he ever used weapons or objects to hurt you?" she said "Yes, a knife, you should know about it, the police was there." She then went quiet and did not want to say anything about it.  I asked [the mother] a question: "Has he ever threatened to kill you?",  She said "Yes, all the time".  I asked her then: "Has he ever attempted to strangle, choke, suffocate or drown you?" to which she said "Yes, he strangled me today, I will probably have some bruises tomorrow."

14.      The mother refused to make any sort of complaint against the father but according to the statement then said:-

"To be honest I would like to leave Jersey, but he said he would kill me.  He has so many problems in Poland, he is very stressed.  He is so good father, but I can't stand when he calls me fucking whore and that he will rip my fucking head off."

The statement goes on:-

"[The mother] became very emotional and was saying that [the father] told her on another occasion that he doesn't care if he became the second RZESZOWSKI but he will kill her.  She also stated that she is going to defend herself if he will attack her in the future and she does not care what will happen."

She refused any attempt of approaching the services that were offered to her.  As a consequence of that incident, the father was remanded in custody.  He pleaded guilty to common assault and on 5th October, 2012, was sentenced to 2 weeks' imprisonment.  

15.      On 26^th September, 2012, when the child was 1, the new health visitor, Mrs Jennifer Querns, found that the child's weight plotted mid 0.4^th centile to 2^nd centile on the World Health Organisations Standard Growth Chart.  The centile charts indicate a child's size compared with children of the same age and maturity who have shown optimum growth; the chart also shows how quickly a child is growing.  The centile lines on the charts show the expected rates of weights and heights; each describes the number of children expected to be below that line.  Therefore, in the child's case, being predominantly below the 2^nd centile put him in a category of 2% of the children expected to be below the 2^nd centile.  To put this into context, half of all children will lie between the 25^th and 75^th centile. 

16.      From the child's past weight assessments, Mrs Querns could see that he had been born on this centile (in other words, he was born constitutionally small) and that this weight had been maintained; he had not dropped centiles over his first year of life.  She was concerned, however, at his weight, his diet (which she advised was not age appropriate) and his environment. 

17.      On 27^th September, 2012, the police interpreter, who had been calling the mother to establish her welfare and offer any support she may need in the absence of the father, found the mother to be extremely intoxicated to the extent that she was incoherent; she could hear the child in the background crying.  The Children's Service attended the home address with the police and found the mother intoxicated whilst caring for the child.  The force medical examiner, Dr Martin Barrett, confirmed that she was not fit to care for the child.  The mother refused to cooperate in finding alternative care arrangements and consequently, the child was placed in foster care overnight, using police powers of protection.  The mother was charged with child neglect in relation to this incident, but the charge was not pursued as a consequence of the father's arrest three days earlier.  The child was returned to her the next day after Dr Barrett had confirmed that her condition was much improved. 

18.      On the 28^th September, 2012, the mother entered into an agreement with the Children's Service that, inter alia, she would not drink alcohol whilst the child was in her care. 

19.      On 29^th September, 2012, on an unannounced visit by the Children's Service and the police, the mother was thought to be under the influence of alcohol, which she denied.  No evidence of alcohol was found within the property.  

20.      On the 11^th October, 2012, at the request of Mrs Querns, the child was assessed by Dr Lawrenson, a Consultant Paediatrician, in the Robin Ward at the General Hospital, to determine whether he had any underlying medical conditions.  He assessed the child's growth as being normal and that he did not have any underlying medical conditions.  He felt that although he was a small child, this was most likely a family trait.  He did not feel that the child's growth demonstrated failure to thrive as he had always plotted on the 0.4^th (bottom) centile since birth. 

21.      On 29^th October, 2012, following an initial child protection conference, the child's name was placed on the Child Protection Register under the category of neglect.  A Child Protection Plan was formulated and on 1^st November, 2012, a second agreement was completed between the Children's Service and the mother and father, following recommendations from that conference, which stated inter alia that neither parent would drink alcohol whilst caring for the child. 

22.      In the very early hours of the 6^th December, 2012, the neighbours again called the police as the result of a further disturbance.  The police attended and found the mother intoxicated and the father with visible scratches to his face, which he stated were caused by the mother.  She was arrested and whilst in custody made a counter allegation that she had been acting in self-defence against the father who she alleged was going to punch her.  Neither party wished to make a formal complaint and no further action was taken by the police.  The child had witnessed the argument.  Photographs taken by the police show deep scratches to both sides of the father's face.  There was a photograph of the child sitting on the father's lap which Dr Bryn Williams, a Child Psychologist, commented upon in his final report in this way:-

"There was photographic evidence of [the child] sitting on his father's lap and subjectively this was a very distressing picture to see [the child] looking almost haunted whilst his father sat there with blood on his face as a result of having been scratched by [the mother]."

23.      On 9^th December, 2012, the father was arrested for driving a vehicle whilst under the influence of alcohol.  He refused to provide a sample and was kept in custody overnight.  Although it was not explored with the father in evidence, we think it relevant to note the extremely abusive conduct of the father as reported by the police, giving, we feel, some clue as to how he might be prone to act when heavily intoxicated. 

24.      On 10^th December, 2012, the father, having returned from custody was refused access to the family home by the mother, who he thought had been drinking.  He returned to the home on 11^th December, 2012, and found her intoxicated whilst caring for the child.  According to his statement to the police, whilst he was calling the police, she left the home.  PC Carvalho found the mother lying in the field immediately opposite the house.  She stood up on his approach and smelt strongly of intoxicating liquor even from a distance of approximately 2 metres.  Her eyes were bloodshot and she was unsteady on her feet.  She was arrested on suspicion of neglect to the child due to her intoxicated state.  She was placed on bail to live at a different address whilst the father cared for the child.  He found it difficult to cope and on the 11^th January, 2013, the mother was allowed to return to the home.  

25.      The mother was acquitted of neglect on 25^th March, 2013, on her evidence, supported, as we understand it, by the father who completely changed his position, saying that when she left the home she was not intoxicated but had consumed vodka between leaving the home and being found by the police in the field, so that the child had not been in her care whilst she was intoxicated.  

26.      The father said in evidence before this Court that he had attended at the Police Station to retract his statement some days after the incident but there was no evidence of this until the mother's trial, some three months after the incident.  He did not tell the social worker of his change of position.  

27.      On 13^th December, 2012, after a weekend of what Mrs Querns described as chaos, arguments, domestic abuse and alcohol misuse in the household, she found the child to be extremely passive, quoting from her statement:-

"He slumped on the knee of a practitioner in the room with me, if she lifted his arm it flopped back into place, he was not asleep but was consciously watching his father as he walked around the room."

28.      On 3^rd January, 2013, the mother and father were given notice by their landlord, C, to quit their accommodation by 12^th January, 2013, as a consequence of their conduct in disturbing the other tenants and because the rent had not been paid for three weeks.  The mother and father were encouraged by the Children's Service to contact the Population Office so as to obtain their residency qualifications and housing. 

29.      On an unannounced home visit on 12^th January, 2013, at 7:00pm, the mother and the father and the child were found sat in darkness because the electricity had been switched off by C.  A Children's Service charity paid the arrears of rent and the C agreed that they could stay until alternative accommodation had been found.  

30.      On 15^th January, 2013, after what Mrs Querns described as a number of chaotic incidents in the home across Christmas which the child had been witness to, he presented as "extremely passive" with little babble and no use of words. 

31.      On 13^th February, 2013, the mother was observed by the Children's Service to have two black eyes and a swollen nose, which she stated happened whilst she was helping her brother-in-law carry a mattress down some stairs, which hit her in the face.  She denied domestic violence but agreed to speak with the Women's Refuge; however she did not engage with any of the support offered. 

32.      On 14^th February, 2013, Mrs Querns emailed Mrs Jane Bennett of the Children's Service in these terms:-

"I feel that I need to clearly state that this child needs to be removed from the family home. 

He is not safe in this environment and he has given up eating. 

The chronology is horrendous, the child protection plan is not effecting any change. 

If anything were to happen to this child the serious care review would clearly show that he was not adequately protected by the supportive services. 

I have never in my health visiting days seen such a neglected child and I have serious concerns for his well-being."

33.      On 16^th February, 2013, neighbours again called the police.  According to the police log, the argument started because the mother kept talking on the phone with her son in Poland and the father had tried to stop her.  The child was present at the time of the incident.  

34.      On the 18^th February, 2013, Dr Timothy Malpas, a Consultant Paediatrician, saw the child with the mother and father at the request of Mrs Querns.   The father (who did the talking) described the child's diet, which sounded adequate to Dr Malpas, and said that developmentally the child crawled at 11 months, walked at 15 months and was able to scribble using both hands equally.  The father described how he would be able to use ten words with meaning.  Quoting from Dr Malpas's report:-

"During the consultation he appeared alert, was quite playful, but his vocalisations appeared to consist of high-pitched screeching.  Certainly there was no evidence of him using any language to make his needs clear.  The interaction with his father was quite playful in nature with [the child] seeming to interact well.  When examined, he was very quiet and passive on the examination couch which would be unusual for a child of his age...... Clearly there are concerns about his weight gain which is barely satisfactory on the 2nd centile..

I am concerned that his developmental progress is not as advanced as is described by his father."

35.      On 14^th March, 2013, the police were called twice to the home, once by the neighbours and once by the landlord's girlfriend.  On both occasions, the mother was not present when the police arrived and according to the father had been drinking.  The evidence of the landlord, whose accommodation is below that of the mother and father, was that he heard an argument that was progressively getting worse and that approximately between 10:00pm and 10:15pm, he heard a loud banging coming from their room, as if something had fallen to the floor.  He was extremely concerned and ran up to their room.  Opening the door he saw the mother and father physically fighting on the floor.  The child was in his cot, crying.  He was extremely worried and (not speaking English) asked his girlfriend to telephone the police. 

36.      On 15^th March, 2012, the mother informed the Children's Service that the father had assaulted her the night before, and showed a mark next to her right eye, that she stated was where the father had punched her.  After very considerable resistance but following information that C would be evicting them, she did agree to move with the child to the Women's Refuge. 

37.      Information was received by the Children's Service on 18^th March, 2013, from the Women's Refuge that the mother had been in contact with the father over the weekend and indicated to them that she intended to resume her relationship with him, which was against the Women's Refuge rules of residence.  The mother admitted to the Children's Service being in contact with him, but confirmed that she had no intention of resuming the relationship.  

38.      On 19^th March, 2013, the mother was informed that the Children's Service would be seeking an interim care order and that was granted on 27^th March, 2013.  In the first care plan, it was noted that the mother had stated that she had no intention of resuming her relationship with the father at that time, but it was made clear that if such relationship did resume, then the child would be removed from her care. 

39.      On 20^th March, 2013, Mrs Querns emailed the Children's Service in some detail over the child's health and development and how the parents were failing to meet the Child Protection Plan.  She said that his development matches that of a child of around 9 months to 1 year (he was then 18 months) and concluded that she would like to see the child removed from his parents' care to enable the assessment of his parents' abilities and motivation to care for him appropriately whilst the child was in a place of safety. 

40.      Dr Malpas saw the child again on 9^th April, 2013, in the presence of the mother.  The focus of the consultation was around the child's growth and development.  Dr Malpas asked the mother (through the Big Word Telephone Translation Service) what was happening with regard to social services and was concerned with her reply "They are trying to find a problem and there is no problem at all."  His conclusions and opinions in his report were as follows:-

"In summary, [the child] is a child whose overall growth is adequate, but the Health Visitor has documented a pattern whereby he gains weight for brief periods and then has spells of losing weight, although the overall trend is along the 2nd centile. 

His development is appropriate from a gross motor perspective, but I am concerned about his language development which from observation is not in keeping with the history provided by his parents. 

[The child] is being currently brought up in an environment which contains significant domestic violence which he witnesses.  He presents as withdrawn, quiet and rather passive infant.  These would be typical appearances for a child of [the child's] age in an environment of neglect."

41.      In her detailed JCPC case conference report of 17^th April, 2013, Mrs Querns expressed her professional opinion that the child had experienced actual emotional harm which had been demonstrated in his emotional responses.  He was experiencing neglect that occurs with two parents who misuse alcohol and are domestically abusive to each other and that he was at risk of long term cognitive development delay as things stood at that time. 

42.      On 16^th May, 2013, the Women's Refuge advised that, pursuant to their policy limiting stays to ten weeks, the mother would need to vacate.  The mother did not access the key worker at the Women's Refuge and in their view simply used it as "roof over her head" being out of the Refuge from early morning until around 7:00pm.  She was not seen to use the facilities of the playroom at the Women's Refuge.  It was not known where she and the child went during the day.  When asked about the status of her relationship with the father, she apparently stated that it was too early for her to decide, "Not yes" "Not no". 

43.      At a care planning meeting held on 17^th May, 2013, the mother advised that she had found a property to move to, but this was found by the Children's Service to be empty and without the basic essentials to meet the child's needs.  

44.      On 23^rd May, 2013, the Guardian informed the Children's Service following a meeting with the father, that he had "confirmed his understanding that he and [the mother] were only separated as a couple because of the Court Order.  He stated it is the couple's intention to resume a relationship and live together as a family.  He believes these are [the mother's] wishes too and whilst he has not spoken to her recently because of the Court Order, he would like to be back together as soon as possible."  During the meeting he apparently told the Guardian that he did not accept that there was any physical violence, stating that he had never hit the mother and he did not think the arguments had any impact on the child's emotional wellbeing. 

45.      On 24^th May, 2013, the Children's Service visited a "shared house" (shared with two unidentified men) to which the mother proposed to move and which was found to be unacceptable.  At a meeting with the Children's Service, the mother accepted that domestic violence would influence a child, but maintained that the child had never had any harm inflicted upon him.  She said there had only been verbal altercations and never instances of physical violence.  When asked about the status of her relationship with the father, she said they were not currently in a relationship as a consequence of the interim care order but that if there was no order in place, she would meet with the father for the child's sake, as the child and the father were very fond of each other. 

46.      In the light of the evidence, the Children's Service were very concerned that the mother was continuing to minimise the domestic violence to which the child had been exposed and lacked insight into the impact of that exposure upon the child.  They were not satisfied that the mother and father would adhere to the expectation that the relationship would not resume, and concluded that the only way that the child could be kept safe was by being taken into foster care. 

47.      The child was placed with foster carers on the 24^th May, 2013.  They noticed a bruise on the child's right upper leg.  The initial view of Dr Barrett was that this injury had been caused by a 2 centimetre wide hard edged object, up to and probably before 18 hours previously.  The mother and father were arrested on suspicion of grave and criminal assault.  The father was under the influence of drink and deemed unfit to interview.  In her interview with the police, the mother stated that the child ran and fell into the open bottom drawer of a chest of drawers as she was packing to leave the Women's Refuge.  In the view of the police, the mother's account was potentially credible, and no criminal proceedings were brought.  

Schedule of findings

48.      It is appropriate at this stage for us to go through the Schedule of Findings setting out those facts which the Minister asked us to find proved (which are underlined) and recording where facts are agreed and our findings.  The standard of proof to be applied in relation to the schedule of findings is the balance of probabilities (see Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35). 

49.      The Court heard evidence in this respect from the parents, from the landlord, C, from the first social worker, Mrs Jane Bennett, from the second social worker, Miss Jade Allchin (who became the allocated social worker on 9^th May, 2013), from Detective Constable Sykes, from Police Constable Piskorz, from Mrs Querns (the health visitor from 26^th September, 2012, to 17^th April, 2013), from Dr Barrett and from Dr Malpas. 

Proposed finding 1

50.      On 13^th September, 2011, [the child] was born by way of a home delivery with no assistance or medical support.  [The mother] was on her own at the time of [the child's] birth.  [The mother] did not present [the child] to the Jersey General Hospital until 17^th September, 2011.  [The mother] has not provided a letter as directed by the Court on 19^th August, 2013, to confirm her position that she received antenatal care in Poland.         

This was agreed by the parents and we so find. 

Proposed finding 2

51.      On occasions [the mother] has been reported to be intoxicated whilst caring for [the child].  For example:-

(i)        On 23^rd September, 2012, the police found [the mother] in bed with [the child].  She was said to be drunk. 

The Minister accepts that although [the mother] had consumed alcohol the police considered her fit to resume sole care of [the child]. 

This was agreed by the father and (during the course of the hearing) the mother.  The Court finds that on 23^rd September, 2012, the police did find the mother in bed with the child, having consumed alcohol, but not to a degree that she was unfit to have sole care of the child. 

(ii)       On 27^th September, 2012, the police reported that [the mother] was intoxicated while caring for [the child].  [The mother] was assessed by the Forensic Medical Examiner and it was confirmed that [the mother] was not fit to care for a child due to her being intoxicated.  [The child] was made subject of a PPO and placed in emergency foster care overnight.  The father was in prison at this time. 

The mother disagreed with this finding saying that she was not drunk; whilst she had consumed alcohol she was not out of control.  Her position however became clearer whilst she gave evidence.  She used the word "drunk" to mean where a person had consumed alcohol to the point that they were no longer in control.  Whereas "intoxicated" meant someone who had consumed alcohol but was still in control.  She accepted that on 27^th September, 2012, she was intoxicated and although she was not drunk, she conceded that she was incapable of being fully in charge of the child.  That concession makes it unnecessary for us to go into any further detail in relation to the evidence other than to say that we accepted the evidence both of Dr Barrett and Detective Constable Sykes that she was intoxicated through alcohol and not fit to care for the child.  It transpired during cross examination of Dr Barrett that he had administered the breathalyser test to the mother which had proved negative, but there was a considerable time lapse between the time when that test was taken (sometime after 18:05) and the last time that the mother would have consumed alcohol (which would have been before 16:30 when the police first arrived at the home). 

Proposed finding 3

52.      Despite signing a written agreement on 1^st November, 2012, not to drink alcohol whilst [the child] was in their care, there have been numerous reports from professionals that the parents have consumed alcohol.  

This was agreed by the parents and we find that there were numerous occasions when the parents had consumed alcohol whilst the child was in their care. 

(i)        On 6^th December, 2012, a police referral was received in relation to a domestic violence incident on 5^th December.  [The mother] was reported to be intoxicated at the time of the incident. 

The Court is asked to find that:-

(a)       [The child] was in the joint care of the parents at the time of the domestic violence incident; and

(b)       [The] mother was intoxicated at the time of the incident. 

This was agreed by the father and by the mother but the latter on the basis that she was not caring for the child at the time of the incident.  The mother accepted in evidence that she was "drunk" on this occasion (using her definition) and that "it was not good to be drunk in front of the child".  The parents and the child lived in a one roomed bedsit and we find that the child was in their joint care when this violent incident took place and at a time when the mother was intoxicated through alcohol. 

(ii)       On 9^th December, 2012, [the father] was arrested for driving a vehicle while under the influence of alcohol. 

This was agreed by the parents and is a matter of record.  As mentioned above, we also note from the police records the extremely abusive conduct of the father on this occasion. 

(iii)      On 11^th December, 2012, [the father] returned to the family home and stated that he had found [the mother] to be intoxicated while caring for [the child].  [The mother] was located by the police outside the premises in an intoxicated state but did not have [the child] with her. 

The Court is asked to find that:-

(a)       [The father] misled the police with regard to the care arrangements for [the child]; and

(b)       [the mother] was intoxicated notwithstanding that she didn't have [the child] in her care at that time. 

There is no issue as to the police being called by the father and attending at the home at around 12:15.  Shortly thereafter the mother was found lying in a field intoxicated (which she accepts); indeed, so intoxicated that intoxicating liquor could be smelt at a distance of some 2 metres.  The father made a detailed written statement which is consistent on its face.  The mother told the police that she was sober when the father returned to the home.  The father, she said, started shouting so she left the home, purchased a small bottle of alcohol which she consumed and went to the field to rest.  She was examined by Dr Sarah Kennea between 14:20 and 14:57 that day, who noted the following findings:-

"1.       Her breath smelt strongly of alcohol.

2.        There was evidence of self-neglect notably an unkempt appearance and severely decayed teeth.

3.        Her speech was slurred.

4.        Her manner was disinhibited.  During the examination she raised her voice in apparent anger to me then shortly afterwards was laughing then crying.  This 'lability of mood' can be a feature of intoxication with alcohol.

5.        Injected conjunctiva.

6.        Horizontal gaze nystagmus."

Dr Kennea found her motor functions impaired.  Initially, the mother told Dr Kennea that she had not drunk any alcohol but when offered the opportunity to take a voluntary blood test refused.  When informed of the mother's version of the events, Dr Kennea said this in her report:-

"Evidence that would point against that being a true version of events would be:-

1.        Some of the physical findings such as injected conjunctiva and horizontal gaze nystagmus I would not expect following the alleged small dose of alcohol ingested a short while ago.

2.        The degree of intoxication seen demonstrated by the effect on her emotional state and the degree of motor impairment.

Also of concern to me was her apparent lack of concern about her situation, the seriousness of the allegations and the lack of concern about the child.  Not once during the examination did she ask about the whereabouts or wellbeing of her baby".

Dr Kennea concluded:-

"I would have grave concerns about this woman's ability to attend to the needs of a baby and would also have grave concerns about the current physical and emotional welfare of that baby.  This would be the case unless I could be provided with signification evidence to the contrary."

We are aware that the mother was subsequently acquitted of child neglect, the father changing his position and supporting her version of events, but having heard the parents in evidence, we find:-

(a) That the father did not mislead the police as to the care arrangements on the 11^th December, 2012, and

(b) That the mother was intoxicated through alcohol and in sole care of the child when the father returned to the home that morning. 

(iv)      On 1^st September, 2013, [the mother] attended the Police Station reporting that [the father] had turned up at her house, he was drunk and had refused to leave.  The police attended [the mother's] home and found [the father] in [the mother's] bedroom asleep in her bed.  [The father] was roused and was given a lawful order to leave by the police.  He was told that should he come back he would be arrested for refusing to obey.  The police officer that attended reported that she could smell intoxicants on [the father's] breath, his eyes were bloodshot, his speech slurred, and he stumbled when he walked after being asked to leave.  

This was agreed by the parents.  The father explained the circumstances which had led to him consume alcohol and the steps subsequently taken with the assistance of Mr Gafoor of the Alcohol and Drugs Service to remain abstinent.  We find that on 1^st September, 2013, the father did attend at the mother's home under the influence of alcohol and refused to leave.  We further find that she did report this to the police who removed him from her home. 

Proposed finding 4

53.      On 12^th January, 2013, the Children's Service found [the mother], [the father] and [the child] sat in darkness at home.  Their electric had been switched off by their landlord as they had not moved out in accordance with their eviction notice.  

This is agreed by the parents and we so find. 

Proposed finding 5

54.      Numerous concerns regarding [the child's] developmental progress have been reported by the professionals.  For example:-

(i)        When [the child] was 18 months old, [the child's] Health Visitor assessed [the child's] development as being comparable to a 9 month to one year child. 

(ii)       Dr Malpas reported that [the child's] weight gain was barely satisfactory on the 2nd centile and he was concerned about [the child's] developmental progress.  

(iii)      On 18^th February, 2013, Dr Malpas reviewed [the child] and reported that [the child] presents as withdrawn, quiet and rather passive infant and that these would be typical appearances for a child of [the child's] age in an environment of neglect. 

The parents agreed that these professionals had expressed these views in relation to the child but they did not necessarily agree that this painted a true picture.  The mother pointed out that notwithstanding Mrs Querns' concern over weight, it had always been in proportion to the child's height but she did accept that the child might have suffered emotional harm which had arrested his speech development - a possibility that deeply hurt her.  She stated that usually the child presented as lively and active in her care.  The father went further saying that the child was always happy, particularly when with the father.  In his view, the child became quiet after he had been placed in foster care.  For our part, we can accept that there were times when the child would be happy, particularly perhaps during recreational time with the father (in respect of which there is positive evidence), but overall, we accept the views of the professionals, all of whom in our view gave evidence in a very measured way as to the harmful effects of the parents' conduct on the child, and upon which we comment further below. 

Proposed finding 6

55.      [The child's] parents fail to prioritise [the child's] needs above their own.  For example:-

(i)        [The mother] and [the father] failed to adhere to the written agreements in place. 

This was agreed by the parents and we so find.

(ii)       [The mother] and [the father] continued to place [the child] in danger due to their respective behaviour. 

This was agreed by the parents and we so find. 

(iii)      [The mother] and [the father] continually minimised concerns expressed by professionals in relation to alcohol misuse and domestic violence and they did not recognise how their behaviour as parents had a detrimental effect on [the child's] development. 

This was agreed by the parents and we so find.  Both parents commented that they did now recognise the danger and impact of their behaviour on the child and we return to this below. 

Proposed finding 7

56.      [The child] has been exposed to domestic abuse between his parents.  Reported incidents are as follows:-

(i)        On 13^th August, 2012, neighbours had telephoned the police to report an argument between [the father] and [the mother].  [The father] was holding a Stanley knife that he had been fixing a satellite dish with while shouting at [the mother]. 

This was agreed by the parents and we so find. 

(ii)       On 23^rd September, 2012, the police attended and found [the mother] with a ripped top.  [The mother] indicated that this was caused by [the father]. 

This was agreed by the parents.  The father commented that there had been an argument whereby the mother had attempted to leave the home.  He had grabbed her top in an attempt to stop her which had caused it to rip.  We do not accept that explanation. 

(iii)      On 23^rd September, 2012, [the mother] made allegations to the police that [the father] had made threats to kill her, had tried to strangle her and that [the father] boasted that he wanted to be the next Victoria Crescent murderer. 

This was agreed by the mother (during the course of the hearing).  However, she commented that she did not believe that the father meant what he said.  The father disagreed.  He accepted that an argument had taken place and that he might have said similar words, but it was a slip of the tongue and said in anger.  It was not said in the suggested serious context.  He firmly denied making comments about becoming "the next Victoria Crescent murderer".  We find that these allegations are true and that both parents are minimising what was a serious assault by the father upon the mother and the use of language that was both threatening and aggressive.  The context was indeed serious. 

(iv)      [The father] received a 2 week prison sentence for common assault on [the mother]. 

This was agreed by the parents and is a matter of record. 

(v)       On 6^th December, 2012, a police referral was received in relation to a domestic violence incident on 5^th December.  Injuries were noted on [the father's] face and [the mother] reported that [the father] had hit her and she had acted in self-defence.  [The mother] was intoxicated at the time.  [The child] witnessed the argument. 

This is the same incident as referred to in paragraph 52(a) above.  This was agreed by the mother (during the course of the hearing) save that she said the child was asleep and by the father.  In the Schedule the mother said she had scratched the father in self-defence.  In evidence she sought to diminish the father's conduct by saying he had not attacked her.  The father said that the mother was intoxicated but denied that he was in any way violent towards her.  He accepted that he may have said something to make her angry and provoke her to scratch him, but denies that her scratching him was in any way necessary to defend herself.  We find that the mother did scratch the father in self-defence as she had originally alleged and that the child was present.  We cannot say that he was awake but bearing in mind the violence involved in the incident we think it likely. 

(vi)      On 16^th February, 2013, neighbours contacted the police following a domestic incident [the child] was present during the argument. 

The father agreed that an argument had taken place; the mother did not.  We find that there was such an argument sufficiently serious to cause the neighbours to call the police and that the child was present. 

(vii)     On 15^th March, 2013, [the mother] informed the Children's Service and police officer that [the father] had assaulted her the night before.  [The mother] showed a red mark near her eye and said this was where [the father] had punched her.  [The mother] stated that [the child] was awake at the time of the incident. 

In the Schedule the mother agreed but the father did not.  He accepted that an argument had taken place when the child was present but strongly disagreed that he had punched the mother.  In evidence, the mother retracted this accusation, saying that the father had not hit her - she said she was trying to leave the room and was scratched possibly by his finger or his ring, which might not have been deliberate on his part.  We find that an assault had taken place in the manner originally alleged by the mother the day after the incident when the child was awake. 

(viii)    On 19^th March, 2013, the parents' landlord informed the Children's Service he had found [the mother] and [the father] physically fighting on the floor and [the child] screaming on the bed. 

Whilst this was reported to the Children's Service on the 19^th March, it relates to the second incident on the 14^th March, 2013.  The mother commented that whilst an argument had taken place there was no physical fighting and that the landlord was not present.  The father strongly denied that this had taken place and was confused as to how the landlord would have been able to see this.  The Court was invited by Advocate English and Advocate Milner to find that the evidence of the landlord, C, was unreliable given the inconsistencies between the information he gave to the Children's Service on 19^th March, 2013, the contents of his written statement and the evidence given to the Court.  The Court in fact found C a very reliable witness, the inconsistencies being attributable in our view to the interpreter (we think his brother) who had also been a witness to the conduct of the parents, so that through the process of interpretation the Children's Service received information from both the landlord and his brother.  We find that C was alerted to a violent argument and opened the door to find the parents fighting on the floor and the child crying. 

(ix)      Despite agreeing not to have contact with [the father] in the presence of [the child], on 4^th June, 2013, neighbours reported to the Children's Service that they had regularly seen [the father] and [the mother] together and at times together with [the child] at [the mother's] new address. 

Both parents disagreed.  This proposed finding is premised on hearsay evidence, which it was not possible to explore in any detail and we did not think it appropriate therefore to make any findings in respect of it.  However we share the concern of the Children's Service that the mother and father are likely to have met during this period. 

(x)       At the time of the parents' arrest on 27^th May, 2013, the police had to gain entry to [the mother's] accommodation using RAM due to [the mother] not answering the door.  The police found [the mother] and [the father] together at [the mother's] address.  [The father] was found to be under the influence of alcohol and deemed not fit for interview. 

Both parents agreed and we so find. 

(xi)      Information received from the Polish authorities suggests that there is an active National Arrest Warrant in force in respect of [the father] in relation to offences committed in Poland, including domestic violence offences. 

The mother was unable to comment on this, but the father disagreed.  He accepted that there had been an argument between him and his two daughters when visiting Poland when the police were called but denied any violence and stated that there was no further action taken by the police in relation to this incident.  We note that in his Final Position Statement he said he recalled an incident with his former wife, not his daughters, following which he was arrested.  He accepted in evidence that the record from the UK central authority for the exchange of criminal records issued on the 28^th September, 2012, had the correct name, date of birth and address and that he was in Poland during the time given for the offences, namely between 1^st September, 2009, and 8^th January, 2010.  When pressed on his explanation as to the argument with his two daughters, he said it was they who had called the police but he said they had been drinking.  The argument he said started with the elder daughter, who had gone out late with the younger daughter, who was under age, which he suspected was happening regularly and which was of concern to him.  He failed when pressed by the Court to explain why the police had been called.  An email of 8^th March, 2013, from the police liaison officer to the United Kingdom at the Polish Embassy confirms the father as being wanted in Poland under a national arrest warrant for (articles from Polish Penal Code):-

"Art 207 - physical and mental abuse to person/persons being in close relationship (family members - adults and juveniles) - punishable by imprisonment from 3 months to 5 years.

Art 209 - alimonies evasion - punishable by five or limitation of freedom or imprisonment up to 2 years;

Art 216 - Insulting another person - punishable by fine or limitation of freedom;

Art 217 - violation of personal immunity (causing injuries to another person by beating) - punishable by fine or limitation of freedom or imprisonment up to 1 year".

It is not clear to us whether these are further offences for which the father is wanted for trial in addition to those which are set out in the record and of which it would appear the father was convicted (the Minister accepts in his absence) on 29^th September, 2011, but either way, we conclude that this incident with his daughters did involve violence on his part and that this is another example of the father diminishing his involvement in violence. 

(xii)     [The mother] and [the father] minimise the incidents of domestic violence and the impact of the domestic violence on [the child]. 

The parents agreed and we so find.  We also find that the parents continue to minimise these incidents upon which we comment below. 

Proposed finding 8

57.      On 24^th May, 2013, on the day that [the child] was placed in foster care the foster carer noticed what appeared to be an old bruise above [the child's] right knee whilst changing his nappy.  [The child's] parents were arrested on suspicion of grave and criminal assault to a child and child neglect having been found together at [the mother's] address but were subsequently released without charge. 

The Court is asked to find that:-

(i)        The injury was sustained when [the child] was in his mother's care under an interim care order. 

(ii)       [The mother] did not seek any medical attention for [the child] nor did she report the injury to the Children's Service or to the Women's Refuge; and

(iii)      The mother] provided differing accounts of the cause of the injury and Dr Barrett has expressed the view that he finds it difficult to accept either of the explanations.  

The father has no personal knowledge of this as the child was living with the mother at the Women's Refuge at the time.  The mother agreed that the injury had been sustained when the child was in her care and that she did not seek any medical attention or report it to the Children's Service or the Women's Refuge.  In her view, her accounts were not inconsistent with each other.  Whilst we note Dr Barrett's views, he was unable to say that it was not accidental and we find that we cannot draw any conclusions from this evidence. 

58.      At the conclusion of this exercise it can be seen that in the main we have accepted the evidence of the witnesses put forward by the Minister and that we found the evidence of the parents unreliable. 

Further Evidence

Mrs Jane Long

59.      Having dealt with the fact finding aspect of the case, we now move on to the evidence more generally, and take first that of Mrs Jane Long, the specialist nurse for looked after children, who first had contact with the child on 18^th April, 2013, when her first impressions were that he appeared very pale and small for his chronological age - 19 months at that time.  He had been referred to the Speech and Language Therapy Department who assessed him on 4^th July, 2013, and confirmed that his language skills were delayed for his age.  She advised that he had made significant progress since entering into foster care with steady weight increase and good growth pattern.  She was confident that he was now thriving.  His speech was progressing and he was eating and sleeping well.  Although progress had been made, there continued to be delay and therefore appropriate professional support needs to continue, but she said this in conclusion:-

"[The child's] general presentation has improved, he no longer appears pale and unanimated.  His face has become expressive demonstrating more of his personality, wants and needs.  He has colour in his cheeks and I have often observed him laughing and smiling during my contacts with him, his facial appearance has had the most significant change.  I recall [the child] being a quiet watchful child with little expression before his placement in foster care."

Dr David Briggs

60.      Dr Briggs, an Adult Psychologist, believed that the mother, who was now abstinent from alcohol, had under-estimated the likelihood of her lapsing towards alcohol misuse in the future.  He believed her to present a significant risk of relapse and that risk management in this case should assume the potential for lapse.  Her motivation to change is externally driven and a product of her current circumstance.  He was unsure if she would maintain a focus on addressing her difficulties in the long term and whether she would continue to put effort into controlling her behaviour once the spotlight of these proceedings are removed from her.  He recommended a number of interventions over the next nine to twelve months but the prognosis was uncertain in his mind, given the mother's somewhat defensive, poorly insightful position.  He said there was a history of rule breaking and poor cooperation with authorities on her part, which urges caution as to prognosis. 

61.      He suspected that there would be times when the mother would achieve adequate and indeed quality care of the child, but the risk was that on occasions when issues overwhelmed her, particularly when she misuses alcohol, that the care of the child, particularly her affording him safe emotional and psychological care, would dip below acceptable standards.  The risk of intimate partner violence in its broadest sense was also exacerbated by alcohol misuse.  In his view, she has some understanding of the nature of domestic violence and the negative consequences for a child exposed to it, but he believes she minimises the history of domestic violence and its relevance. 

62.      In terms of her relationship with the father, she had told Dr Briggs that she was motivated to separate from him, so as to prioritise the child's needs but that being said, in his view she still had strong positive feelings towards the father and he believed that the strong ties between them will persist.  She could be described as contemplating a process of separation from the father that was far from complete.  He would be unsurprised if they were to resume their relationship at some point in the future, particularly once the spotlight of these proceedings had been removed.  Quoting from his report:-

"The combination of [the mother] and [the father] when in drink is toxic, one which has the potential to generate aggression and hostility at times, and which generates the risk of intimate partner violence.  This exposes [the child] to a risk of harm from exposure to such."

63.      Turning to the father, Dr Briggs had significant concerns that he minimised the mother's use of alcohol and was overly optimistic as to his ability to remain abstinent and/or to understand those situations which could trigger a lapse into significant alcohol use on his part in the future. 

64.      When asked what period of abstinence would be required before the likelihood of any lapse becomes minimal, Dr Briggs made this comment:-

"Having responded to those questions above it might be helpful were I to summarise my position vis-à-vis [the father's] use of alcohol.  I believe that when he is intoxicated [the father] has the potential to act with aggression and violence towards [the mother] and can behave irresponsibly.  In the past alcohol has been a significant feature of this man's social life.  He remains a sociable person and my impression is that of an extrovert, gregarious and outgoing man.  Were he to sustain a lifestyle which features significant drinking this would divert scarce resources from the family home and I am mindful that the couple faced eviction historically due to the non-payment of rent.  It would be best for [the father] if he could abstain from alcohol and demonstrate at least for the next 12 months that the intentions he states whilst under the spotlight of these proceedings to remain alcohol free will be maintained.  I worry that the combination of [the father] and [the mother], and the respective concerns of them both having capacity to evidence instability when in drink, is a very worrying issue for this young boy, and one which raises significant concerns for [the father] and [the mother's] parenting of him."

65.      In relation to the current relationship between the mother and father, Dr Briggs said this:-

"I have concerns that [the father] has minimised aspects of intimate partner violence within the relationship to [the mother].  This may reflect a more general issue with denial and minimisation.  For example, I worry that [the father] may have minimised concerns of intimate partner relationship within his relationship to the mother of his seven elder children.  I am also concerned that he has minimised concerns in respect of [the mother]. He has accused her of telling lies in respect of alleged incidents of intimate partner violence.  When I reflect on his comments at interview I found some to lack credibility; e.g. When he says he has never seen [the mother] drunk and that he has only ever seen her drink two single measures of spirit when in his company.  When challenged with the evidence of the police doctor who had examined [the mother] in the incident last year again he seemed to minimise and deflect this."

66.      There is no sophisticated device instrument or protocol, he said, for making robust predictions about relationships but in his view, the father appeared  enmeshed emotionally with the mother and he would be unsurprised were they to resume significant contact once final determinations have been made in this case.  He recommended that the father continue to attend the domestic violence programme (ADAPT) he has just begun and to receive the support of the Alcohol and Drugs Service, together with further counselling.  As to his motivation to engage in any of this work, Dr Briggs reiterated that once decisions were made in this case and once professional surveillance and oversight lessened, his motivation may lessen.  Other priorities, such as employment may assume a priority and the fairest comment to make at this stage was that his capacity and willingness to engage in any work longer term is uncertain. 

67.      In evidence, and under cross-examination, Dr Briggs noted the mother's reluctance when he met her to be critical of the father and minimising the incidents.  For example, she only volunteered to him one incident in which the police had to be called by the neighbours.  He questioned the honesty of the father as set out in the comment above, and was concerned at the impact of two people minimising issues.  He accepted that the mother had changed with the spotlight upon her living separately from the father and being abstinent from alcohol, but he said the depth of her insight was questionable, and without insight once the spotlight was moved from her, there was a significant likelihood of her lapsing back.  Time was needed to show that the mother could stay away from the father, remain abstinent from drink and respond to therapy, but that would take a about a year.  The difficulty was that the child needed certainty now. 

68.      He was conscious of an emotional warmth between the father and the child which was different in quality to that between the mother and the child, but the question was what the father was like when either drinking or irritated.  One had to be careful about assuming that a programme such ADAPT would address inter-partner violence.  The history of violence here is long-standing and there may well be a need for further top up work.  Early reports from the course were "equivocal".  Group and individual work would take over a year, at which point further assessment would be required before the father could have a substantial involvement in the child's care. 

69.      He realised that the mother had an intellectual understanding of some of what she needs to do in order to parent, but she was a mother who didn't navigate her emotions well.  He was suspicious as to her upbringing (over which she had been reticent) and how able she is to resonate deeply and in a sustained way with the child.  There was no question of learning difficulties or of her being "slow" or "stupid" so that when you asked questions about the child's needs she was able to answer.  It was a question of how she behaved and will behave in the future or what will happen if she gets the child back.  The problem was whether both parents could change and demonstrate change within the child's timescales. 

70.      During his cross-examination by Advocate English, Dr Briggs was informed that having listened to the advice of the experts, the mother did now accept that she had drunk to excess, had minimised the domestic violence and was now aware of the impact of this upon the child.  She had been too scared to admit any of this in case she lost the child.  Dr Briggs accepted that this was a step in the right direction, but he said you had to interpret her behaviour in the context of the proceedings.  She had heard the evidence and understood what was happening and therefore was this "too little too late"?  Had there been a fundamental change?  This came back, in his view, to the need to demonstrate that change over time and whether that would be within the child's timescales. 

71.      He could not reassure the Court that the relationship was over.  They both showed to him that they loved each other and that there were positives in the relationship.  He had the clinical impression that it was a significant relationship with a collusive nature to it.  He would not be surprised if they got back together as that is what they needed as individuals.  Even if sincere now, what, he asked, was the reality of the mother as a sole carer with limited social support - who would she go to but the father?  But the focus had to be on the child and whilst she may have started to change, the issue was whether she would sustain that change.  The return of the child to the mother would be to experiment with his life. 

72.      Dr Briggs accepted that adoption was irretrievable, but he said the focus had to be on the child and the management of the risks - sadly risk management could not be guaranteed within the child's timescales in his view. 

Dr Bryn Williams

73.      In his report, Dr Williams advised that the mother had minimised the impact of the parents' excessive alcohol use which had led to episodes of domestic violence whereas the father had been very open about the mistakes he had made.  At 18 months the developmental checks suggested that the child was performing at the level of a 9 month old in respect of motor and language skills which was consistent with his own psychological assessment undertaken through observation and through interviewing the parents and foster carers.  It was evident, he said, that there had been an exponential improvement in the child's development skills since he left his mother's care in late May 2013.  The child then presented with chaotic attachment behaviours.  His affect appeared flat.  He showed little curiosity and his developmental skills were delayed. 

74.      The evidence of the observations and parenting assessment of the mother suggested that whilst she had the cognitive skills to understand how to care for a child, some of her behaviours were atypical.  For example, while responding to the child's interest in play activities, she struggled to provide him with opportunities to stimulate him and also struggled to take on board the advice given to her by professionals.  The observation material suggested there was quite a marked difficulty in the child's attunement with his mother and it would be reasonable to conclude that they do not share a strong inter-subjective relationship. 

75.      The child's experience of being with the father appeared more joyful and it was evident that they enjoyed a warm relationship.  It was difficult to assess the extent to which the father had been able to promote his son's development, but he suggested the Court would wish to bear in mind the evidence with respect to the father's responsibility "for terrorising his son as a result of domestic violence within the home".   The psychological evidence was fairly unequivocal, he said, in suggesting that children who are exposed to inadequate parenting experiences characterised by neglect and, in particular, exposure to domestic violence are at a risk of significant developmental difficulties (Hughes, 2009; Howe, 2005; Bentovim et al, 2009' Jones, 2010 Schore, 2010; Perry & Szalavitz, 2008).

76.      Dr Williams advised that it was important to recognise from a developmental perspective that children acquire language skills through play and verbal interaction with their primary carers, and the timeline suggested that the child's ability to explore his world and develop coincided with the time that he left his mother's care.  It was his psychological opinion that having watched the child's development over the summer of 2013, he was concerned that his development had been severely compromised by his home environment and that his emotional and attachment difficulties were environmentally determined.  The reparative care experiences provided by the foster carers had led to a quite remarkable and rapid advance in his physical self-regulatory and developmental skills.  The descriptions of a pale, passive and haunted child that were evident in the early part of 2013 were no longer relevant.  He appeared bright, curious, active, playful, mischievous and a delightful little boy.  He needed an environment that was free from violence and provided a good enough level of stimulation, routine and care delivered through relationships that were reliable and responsive to his needs. 

77.      It was evident, he said, from his observations as well as the contact records that the child did not experience the mother as a responsive attachment figure although there was evidence that this had improved over the summer months of 2013.  It was of concern to Dr Williams that the mother demonstrated little insight into the difficulties with the relationship with the child and not only minimises the risks associated with her drinking and his exposure to violence but also struggles to be intentional in her role as his mother.  This lack of reflective capacity in the mother he said, despite her having the cognitive strengths in her parenting, increases the risk that she would find it difficult to change.  Using the algorithm of risk described by Aldgate et al. (2006) it was his opinion that based on this analysis the risks associated with the child returning to the mother remain high:-

"The relationship between her and [the father] remains confused and the future of their relationship uncertain.  There are risks associated with [the mother's] ability to work openly and effectively with professionals alongside the risks associated with her drinking behaviour and her role in the violence within the family.  There are also concerns about her capacity to take on board the concerns about the relationship with [the child]."

78.      His experience of the child's relationship with the father was characterised by greater connectivity and reciprocal interaction - the child had a selective awareness of his father.  It was important to recognise, he said, that the father demonstrated greater insight into the child's behaviour although he recognised this was measured.  His capacity to be an effective parent had, however, been compromised by his alcohol misuse.  Given the developmental trauma evident in the child's history, he was somewhat reluctant to recommend that the child be returned to the father's care. 

79.      Based on his experience of working with the parents, he was extremely concerned about the ambivalence that they had towards one another and agreed with Dr Briggs that their relationship carried high risks for the child.  If the Court were to determine that the risks for the child returning to his family were beyond the threshold of significant harm, he would want to see him placed in a long term stable home environment where he was able to continue the progress he is currently making.  Given his age, consideration should be given to whether he would be placed within a permanent kinship placement or placed in an arrangement outside the family through adoption (Schofield & Beek 2010).  Based on his assessment of the child during the summer of 2013, on balance it was his psychological opinion that the child would be at greater risk of returning to his parents' care than being placed in a safe permanent and adequate parenting experience elsewhere. 

80.      In evidence, Dr Williams advised that domestic violence was the most toxic form of abuse and even with a child under three, exposure to it can have a really detrimental effect on the development of the cortex.  The parenting by these parents became toxic when alcohol became involved.  The mother had parented before and had demonstrated competence at one level, but there seemed to be a barrier between her and the child which there was not with the father.  Her interaction with the child was quite low; described by Dr Williams as grey or flat. 

81.      An important risk factor is the parents' ability to be really open and the mother scored very low on this.  In his view, she lacked reflective capacity to reflect on what went wrong.  He had a strong impression that the parents were a couple and were not dealing with this in a transparent way. 

82.      He felt confident to say that the child's exposure to this home environment had caused a lot of damage.  He referred to the child being "depressed" and as to having significant concern for his mental health.  He would be concerned about the child being returned to the mother's care and on the whole felt he was better off leaving the birth family.  There could be an argument about allowing more time, but taking into account the child's age and the parents' vulnerability, he would not sign up to this.  The child needed stability, safety and permanency. 

83.      Dr Williams accepted that adoption was not risk free but with adoption, the adoptive parents claimed the child and the Island had a very good adoptive support network. 

84.      He recognised that the father's relationship with the child was warm and connected.  The father responds to the child and there was a "tango" between them but the father's role was recreational.  However good, it was clear that in his parenting, the father lapsed and we can see what happened. 

85.      Dr Williams was pressed by Advocate Milner as to whether there was not some way other than adoption in order to preserve the good relationship that the father had with the child and the child's cultural ties.  Dr Williams agreed that further delay was not necessarily the end of the world, but it was a question of balancing the risks.  In the child's hierarchy of needs, safety and security were paramount.  If the parents can provide that, then that gives the best outcome.  Every child needs to have established a selective attachment by the age of three with a safe and permanent attachment figure who will be with that child at his or her most vulnerable moments - when frightened, hurt etc. but if that figure is the agent or cause of anxiety or fear, then we have a real problem.  The child cannot rely on that figure.  

86.      Dr Williams welcomed the mother's change of position during the course of the proceedings, but questioned whether making that change in October 2013 was at odds with the child's needs.  It was necessary, he said, to test out whether that change met the child's timescales, bearing in mind that his development had already been tampered with in a serious way.  The Court must be confident that if he returned to the mother's care there was no re-enactment of the risk described.  From what he knew, he could not be confident. 

87.      According to Advocate English, Dr Williams advised that absent the twin risks of alcohol and domestic abuse, the mother was able to provide good enough care.  We did not interpret his advice so simplistically but what was clear was that even with the mother's change of position during the hearing, he confirmed that his assessment of the risk remained the same. 

Mr Michael Gafoor

88.      Mr Gafoor, Director of the Alcohol and Drugs Service, said in his report of 20^th June, 2013, that the mother had tested negative for alcohol on the breathalyser when he had seen her and her liver function tests were normal.  He noted that similar tests in November 2011 (two months after the child's birth) had shown signs of increased alcohol intake.  She insisted to him that her use of alcohol had neither been excessive nor problematic.  She did not appear to him to be physically dependent on alcohol but it was clear that her use of alcohol was more than she cared to admit.  The interpreter had apparently noted that she smelt of alcohol at previous meetings.  In his view, she demonstrated little insight into the problems associated with her drinking and viewed alcohol as a legitimate way of coping with stress and anxiety.  Nevertheless, she was willing to commit to a six month period of abstinence with Antabuse and to avail herself of regular monitoring. 

89.      In his report of 17^th September, 2013, he confirmed that the mother had kept her appointments and there was no evidence that she had resumed drinking.  She continued to maintain that she did not have an alcohol problem.  He advised that the mother was unlikely to gain any therapeutic benefit from the relapse prevention programme, which is designed to help individuals identify and cope with high risk situations by employing stimulus control and urge management techniques.  Her motivation to stop drinking was driven largely by her desire to regain custody of the child, rather than genuine acknowledgement of her alcohol problem, which she continued to minimise, both in terms of the extent and negative consequences.  In his view, she should continue to attend the Alcohol and Drugs Service for a further six months in order to demonstrate that her abstinence from alcohol is enduring. 

90.      In his report of 14^th October, Mr Gafoor confirmed that the mother continued to be alcohol free.  He was able to explore more fully her insight into the difficulties associated with the use of alcohol and its impact upon the child.  The mother explained that she would only get back with the father if he can guarantee that he will be abstinent.  Whilst she accepted alcohol had caused arguments in their relationships, she did not regard him as a heavy drinker.  Asked how many times she had seen him intoxicated, after a long pause she replied "Maybe three times, but only in the company of friends."  She also claimed that she used to drink to cope with his behaviour, because he often gets argumentative under the influence of alcohol.  He concluded as follows:-

"Although [the mother] is currently abstinent, she maintains alcohol has neither been a major feature in the relationship with [the father] nor adversely affected her son's emotional and physical well-being.  By her own account, her use of alcohol was inextricably linked to [the father's] drinking.  My view is that the likelihood of relapse will be high if their relationship is reconciled."

91.      Turning to the father, in his report of 29^th July, 2013, Mr Gafoor said he found the father cooperative and forthcoming at interview, but he insisted he did not have an alcohol problem, and was only attending the Service to placate the Children's Service.  He did not assess him as being physically dependent on alcohol, but as someone who self-medicates with alcohol at times to cope with stressful situations.  He was willing to avail himself of monitoring and support with the Alcohol and Drugs Service for a further period of six months.  

92.      In his report of 4^th October, 2013, Mr Gafoor confirmed that the father attended all of his appointments.  There had, however, been a relapse in early September 2013 when the father admitted returning to daily drinking following eviction from his accommodation and as a result of being homeless turning up at the mother's flat, who then had to contact the police to remove him.  He had subsequently been admitted to the Shelter and had managed to detoxify himself.  On 16^th September, 2013, he had requested Antabuse (a drug he had previously declined) as he was finding it difficult to resist alcohol while staying at the Shelter.  Mr Gafoor concluded that taking into account his recent relapse, it was clear that the father's use of alcohol following abstinence quickly becomes problematical.  To his credit, the father was open and honest about his recent relapse and had requested help at the earliest opportunity.  He recommended a further period of six months for monitoring and support, to ensure that his abstinence from alcohol was long lasting.  The father was also to attend the Relapse Prevention programme in order to identify and cope with high risk situations by employing stimulus-control-urge management techniques.  

93.      In evidence, Mr Gafoor advised that the mother's blood pressure medication had no connection with whether she appeared intoxicated.  However, people with a lower tolerance to alcohol can become intoxicated on smaller amounts than those with a higher tolerance.  In his view, the mother did have a drink problem, although as recently as a week ago she still did not believe that she did.  She was only attending his Service to get the child back. 

94.      Antabuse had no effect on the mind or body, but if alcohol was taken, then the person would become very physically unwell, with headaches, palpitations and vomiting, even requiring admission to hospital.  It stayed in the system for some 48 hours.  It could be taken as long as necessary and had no known side effects. 

95.      Before addressing an alcohol problem it was necessary to acknowledge it.  It requires insight into the difficulty, and the mother had no insight.  The Relapse programme was for those who acknowledged the problem and who were motivated to change.  However, he said that external reasons, such as her desire to regain the child, could be an equally important driver to maintaining abstinence.  

96.      If the father did return to alcohol, his drinking would quickly become problematic, which was of concern in a parenting situation, but he did come across as someone who genuinely wanted to stop.  As he could not control his drinking for him it was a question of total abstinence.  A further six months abstinence would be positive for him in terms of parenting. 

97.      Advocate English informed Mr Gafoor that during the course of the hearing the mother had now accepted that she had an alcohol problem, which she had previously minimised.  She acknowledged that she had used alcohol as a coping mechanism and must now break this cycle of misuse.  Mr Gafoor was asked whether this now showed insight on her part.  He advised that insight could change and this would be a positive development.  Because her drinking appeared to be linked to the father, if one relapses, both will.  The risk of relapse is reduced if there was no relationship with the father, but it would be commensurately high if there was.  

Miss Jade Allchin

98.      Miss Allchin had been the allocated social worker with the Children's Service since 9^th May, 2013, taking over from Mrs Bennett.  She explained the circumstances leading up to the child being taken into care on 24^th May, 2013, the unsuitability of the proposed accommodation and the equivocal answers given by the mother about her relationship with the father.  The information provided by the Guardian in respect of the father's views about the relationship (an overriding concern for the Children's Service) in the context of the history of alcohol abuse and domestic violence led the Children's Service to conclude that the mother was unable to keep the child safe within the community. 

99.      On 15^th July, 2013, both parents had been referred to The Bridge with a request for each to be allocated a key worker to identify relevant courses or activities.  A parenting course "Growing Together" had been identified for the mother.  Attempts to contact the mother were unsuccessful and an appointment for 3^rd September, 2013, was missed, as it clashed with a contact session - however, she had not approached The Bridge to change the appointment.  The next available appointment was on 24^th September, 2013, only three weeks before the final hearing.  

100.   The father did not engage with The Bridge until September 2013, due to work commitments, attending the "Dads' Club" for the first time on 11^th September, 2013.  The father had, however, started the ADAPT course on 1^st August, 2013.  By 20^th September, he had completed seven out of 30 sessions.  An email from the course dated 20^th September, 2013, indicated that he was struggling with the structure and the language (although it transpired that the course director is Polish) concluding:-

"At present he is being allowed to continue on the programme, however he is being monitored closely as to his ability to assimilate the course material."

101.   Whilst acknowledging that the mother had attended every daily 2 hour contact session five times a week, shown that she could meet the child's basic needs, shown concern when the child was distressed and taken on board some practical advice, Miss Allchin listed a number of negatives arising out of the contact sessions centred on the mother's emotional interaction with the child or lack of it.  She agreed with Dr Williams that the mother showed a lack of inter-subjectivity.  This was in contrast to the father, where there was reciprocal physical affection. 

102.   From the mother's response to the Minister's threshold document, it seemed to Miss Allchin that she did not accept that the domestic incidents related to her alcohol misuse occurred, or she did not accept that they are relevant for determining whether the child is at risk of significant harm.  Either scenario was concerning to the Minister and in her view, increased the risks to the child.  It would have been helpful, she said, if the mother started work on the issue of domestic violence whilst she was at the Women's Refuge, but she failed to engage there at all.  They have a Polish key worker and the opportunity was there.  They are now six months down the line, and in her view her change of stance at the hearing was too little too late.  

103.   In her third statement and in evidence she considered the options available to the Court.  No order, a residence order and a supervision order where inappropriate in her view, as they would result in the care of the child returning to the mother, where he would be likely to suffer significant harm as he had before.  The Children's Service had tried unsuccessfully to safeguard the child under the child protection plan and returning the child to the mother would be a backward step.  The child would not be safe. 

104.   Long term foster care was not appropriate for a child this young.  It was for elder children with particular needs.  An interim care order for rehabilitation would give rise to a substantial delay of between 12 to 18 months with an uncertain outcome.  It would take the child beyond three.  It was in the child's interest, in her view, to have the security of new legal parents now.  

105.   In cross-examination by Advocate Milner, Miss Allchin accepted that the child had been removed into foster care without any prior notice being given to the mother (although she had been warned about the seriousness of the situation) and this would have seemed "brutal" to her; this was followed by her arrest in relation to the bruise discovered by the foster carers.  Miss Allchin agreed that she had not told the police about Mrs Querns' observation contained in her lengthy JCPC case reference report of 17^th April, 2013, (to be found in one paragraph on the sixth page out of a report of nine pages) that the child was prone to walk round the room he was in, climbing on furniture and getting into drawers and cupboards which Advocate Milner said would have been relevant to the police inquiry.  Advocate Milner suggested that the Children's Service were looking for problems with the parents' care of the child.  She pointed out that there had been a fluctuation in the child's weight whilst in the care of the foster carers, he was no longer attending nursery or groups as recommended by the Children's Service, had missed a medical appointment and had sustained minor injuries (skin bruises) and yet no one was criticising the care given to him by the foster carers.  Miss Allchin agreed that no placement was perfect but did not accept that the Children's Service were dealing with the parents in an uneven-handed manner. 

106.   With the issue of alcohol abuse being addressed by the parents, who are living apart and the child being in the care of the foster carers, Advocate Milner suggested that there was no safety reason preventing the father from continuing to see the child.  Miss Allchin accepted this but said that the child needed to move on to permanency and therefore his welfare dictated that the relationship with the father would have to end. 

107.   Miss Allchin confirmed that despite encouragement and prompting neither parent had put forward any family members who might be considered viable in caring for the child. 

The mother

108.   In her final statement, the mother agreed that the threshold criteria had been met, that the child had been subject to significant harm due to the relationship that she enjoyed with the father, which historically suffered from domestic violence and alcohol abuse by both of them.  She agreed that by her behaviour in the past she had not placed the child's needs over her own and this was something she deeply regretted.  However, she felt that the concerns of the past were no longer continuing and that she had made a number of improvements to ensure that the child would never be placed at risk of harm again.  Whilst she did not accept that she had misused alcohol to the level of being drunk, she did accept that on a number of occasions she had been under the influence of alcohol and therefore intoxicated.  These were occasions when she was not solely caring for the child and would use alcohol as a means of coping with times of stress in her relationship with the father. 

109.   She did not believe that she had underestimated the likelihood of relapsing towards alcohol misuse in the future.  She said that she had remained abstinent from alcohol since 15^th March, 2013, (the significance of this date presumably being that this was when she moved to the Women's Refuge) and this had been confirmed by the hair strand test results.  That test in fact confirmed that from mid-February to mid-August 2013 there was no evidence of "frequent excessive alcohol consumption" on the part of the mother.  We note in that respect that the Court had ordered the hair strand test on 27^th March, 2013, but the mother did not supply a sample of her hair until 21^st August, 2013, some five months later.  In cross-examination over this, the mother said she had not been told by her lawyers of the order of the Court in March; she said she was only told in August, and provided the sample immediately.  It was put to her by Advocate Dutot that she had intentionally delayed the hair strand test so as to cover the period before mid-February 2013 when she knew she had been drinking and that she had cut her hair before giving the sample in the belief that this might restrict the time period covered by the results.  She denied this. 

110.   She was concerned that the experts had taken her comments about her relationship with the father out of context.  She may have made general observations about it being best for a child to be brought up by two parents, but she had no intention of resuming her relationship with the father, and this for the child's sake.  She did not accept Dr Williams' opinion that she lacked inter-subjectivity with the child, saying it was clear from the contact logs that she interacted with him well.  Nor did she agree that the child did not see her as a responsive attachment figure, or that she did not have reflective ability.  Up to the hearing she maintained that she did not have a drink problem, as she could choose to stop drinking whenever she desired, and only misused alcohol when experiencing difficulty with her relationship with the father.  Her commitment was evidenced by the way she had handled the father coming to her home under the influence of drink on 2^nd September, 2013.  She went to the police to have him removed, which showed that she did indeed have reflective capacity, not wishing to continue with her past behaviour. 

111.   She took issue with much of the final statement of Miss Allchin.  It was because of daily contact sessions that she had been unable to engage in the ADAPT course and at the Women's Refuge.  She had been unable to fully engage with The Bridge, as she had been told that the courses they offered would not be of assistance to her due to her difficulties with the English language.  

112.   It was incorrect for Miss Allchin to say that the child did not show affection towards her during contact and it was unfair for Miss Allchin to comment that her commitment to these proceedings and her cooperation with the Children's Service had been at a superficial level.  She did not agree with Miss Allchin's statement that she did not have the capacity and emotional intelligence to safely and with emotional warmth parent the child within his timescales.  It was clear from the contact logs, she said, that she was very affectionate towards the child and had made improvements over the summer and that she wished to strive to continue. 

113.   The mother was absolutely opposed to adoption and sought the return of the child to her care under a supervision order. 

114.   During the course of hearing the mother's position changed in that she told us in evidence that she now acknowledged that she had used alcohol in excess.  She had been ignorant as to the extent that her drinking had affected the child and now realised from listening to the experts that she had hurt him.  She was ashamed and could not forgive herself for what she had done to her son.  She had not been thinking clearly.  Under the influence of alcohol, she had not been fully aware of what she was doing and the effect on the child.  She now fully admitted using alcohol to a great extent but had not done so before as she was so scared she would lose the child.  Excessive drinking was connected to the situation in the home and her relationship with the father.  She agreed with Dr Briggs that she used alcohol as a coping mechanism.  The lack of money and comfort in the house always resulted in arguments, which developed into screaming and shouting.  She admitted that she did minimise violence and was not aware of the harm it was doing to the child.  She accepted that she had been attacked more than once.  She could not forgive herself for the damage that had been done to the child.  She is now very ashamed and realised that at the first sign of domestic violence she should have left and given the child safety. 

115.   She realised that the relationship with the father could not continue because it could put the child in great danger and because there would be a high possibility of more arguments which would have a bad effect on the child.  It would place him in a dangerous and unhealthy situation again.  Even if he wanted to resume the relationship, it would be impossible at the moment because it would be dangerous for the child.  The mother wrote a letter to the Court which was translated for us and which contained similar sentiments. 

116.   In terms of the history of her drinking, she said it had gradually increased over time but became excessive during June and July of last year.  She had drunk to excess at a wedding in Poland not long after the child's birth, which might explain the liver test results referred to by Mr Gafoor.  She had been abstinent since 12^th December, 2012, (as opposed to the 15^th March, 2013,) from which point she had not touched a drop.  She agreed that she had minimised the father's use of alcohol.  When he drank, he drank excessively.  

117.   Having started her evidence in this very open way, it was of concern to the Court that when questioned about the incidents set out in the schedule of findings, the mother once again appeared to minimise the violence:-

(i)        In relation to the incident on 14^th March, 2013, she said she could not recall fighting on the floor with the father as witnessed by C. 

(ii)       In relation to the incident on 23^rd September, 2012, she did not believe that the words used by the father were said in anger.  She could not now remember precisely what he said, but she may have added to it for effect.  Whilst she had accused the father of strangling her, he had in fact grabbed her blouse, which felt like pressure on her neck.  

(iii)      In relation to the incident on 5^th December, 2012, when she had scratched the father's face, she said that he was not trying to attack her.  She just wanted to leave the room.  It was an accident and she should have controlled herself. 

(iv)      In relation to the incident on 16^th February, 2013, there had been no screaming or shouting between the parents, only loud conversations, even though she accepted that the neighbours had called the police. 

(v)       In relation to the incident on 15^th March, 2013, the father had not hit her.  She said she was trying to leave the room when he turned and his finger (and perhaps his ring) scratched her and this might not have been deliberate.  She felt he did not mean to do it. 

(vi)      In relation to the black eye and bruising to her calf seen by the health visitor on 12^th December, 2011, and the two black eyes and swollen nose seen by Miss Bennett on 13^th February, 2013, neither had been caused by the father. 

118.   Indeed, the mother made the general statement in evidence that the father had never intentionally hit her.  She also confirmed that he had never physically abused the child. 

The father

119.   In his final position statement, the father agreed that the threshold had been met and that until changes were made, the child could not be said to be at no risk.  He realised that the child was at an important age but said he will shortly be in a position to be returned to the care of one of his parents.  His well-being could be safeguarded by the imposition of a care order, but on the basis of a care plan aimed at rehabilitation. 

120.   He confirmed that he had begun the ADAPT programme on 1^st August, 2013, which will continue for the next 22 weeks.  He remained committed to completing it.  He was currently attending the Alcohol and Drugs Service weekly.  After the incident on 2^nd September, 2013, Mr Gafoor had helped him to get a place at the Shelter and it was after moving to the Shelter that he realised he needed to undertake the Antabuse programme and that he needed help in achieving abstinence.  He was committed to the programme for the next six months. 

121.   He understood that it was in the interests of the child that, for the time being at least, the mother and he lived separately from each other and do not resume their relationship.  He did understand that there were concerns about them as a couple, but it remained his hope that one day in the future, the child would be able to live with both of his natural parents.  In the meantime, he understood that he needed to work with the Children's Service and other agencies in order to show that he was willing to change.  It was his aim to obtain an order for parental responsibility for the child. 

122.   Given that he was now forced to reside in the Shelter and could not provide accommodation for the child, he was supportive of the child being allowed to return to live with the mother, whilst maintaining his hope that they could one day all live together as a family. 

123.   He could not bear the thought of the child being adopted.  He accepted that both he and the mother had made mistakes in the past, which had put the child's well-being at risk, but they were both making important changes and he believed that the child would be able to be safe in their care.  Wherever the child lived, he would wish that his contact with him could become unsupervised, more often and for longer periods of time.  Notwithstanding these hopes, whilst they remained unrealistic and not considered to be in the child's best interests, he confirmed that he would work with the Children's Service in any way he was asked to in order to prevent the child remaining in foster care or being adopted.  

124.   The father described the circumstances under which he had attended at the mother's home on 2^nd September, 2013, under the influence of alcohol.  He had recently lost his job, which in consequence led to him being evicted from his flat.  He had been staying with friends as a short-term fix but their landlord would not allow them to have people staying for long periods of time.  He drank alcohol with these friends and from there went to see the mother to ask for some financial help.  This was the first time in months that he had drunk alcohol and he regretted allowing himself to do so, but he was feeling extremely low about his situation.  He had immediately sought the assistance of Mr Gafoor. 

125.   In evidence, the father explained that his contact with his younger children in Poland had diminished through the influence of their mother, who had set them against him and he did not want this to happen with the child.  He hadn't seen his younger Polish children since 2011.  His evidence in relation to his apparent record in Poland is summarised above.  The only thing he was aware of was alimony evasion, for which he had had to appear in court in Jersey, but he had never abused his former wife or his children.  

126.   The child, he said, had been due in late September/early October 2011 and they had planned the birth to take place in Poland; the Polish doctor having advised that they could travel to Poland 2 weeks before.  The mother had travelled to Poland alone two or three times by plane and two or three times by bus to see her doctor; he was sure that she had seen her doctor, as she phoned him after the appointments. 

127.   Although he had a full-time job at that time, he had taken 8 days leave to work for a colleague in St Malo and was surprised to find on his return that the child had been born.  Why he had not been phoned by the mother was not explored in evidence. 

128.   In terms of the child's development, the health visitor had mentioned his weight a few times, but the doctors had confirmed it was normal.  No one had advised him that the child's development was delayed.  As for his appearing passive, the father claimed that this was only when the child was in a strange place with strange people - at home, his behaviour changed. 

129.   As with the mother, it was of some concern to the Court that the father appeared to diminish both the abuse of alcohol and the domestic violence.  Whilst he agreed that he had abused alcohol and that both he and the mother had drunk excessively, he said that they always drank separately (as he thought was permitted under the agreement with the Children's Service) and not in the presence of the child. 

130.   He was not sure that he had been aggressive.  They had argued and shouted.  In an argument, he would walk around a lot, using hand gestures.  He talked loudly and that could have been interpreted by neighbours as shouting.  Neighbours who couldn't understand what was being said may have thought an argument was taking place.  He didn't, however, deny that there had been shouting and this in the child's presence, which he felt really bad about. 

131.   He agreed that he had pleaded guilty to common assault of the mother, but said it was never his intention to harm her; it was an accident.  He accepted that he may have used some of the words referred to at paragraphs 13 and 14 above, but they were only bad words and he didn't have the intention of doing any of these things.  They were words used in the heat of the moment with no real meaning. 

132.   In relation to the incident on 11^th December, 2012, he had falsely alleged that the mother was drunk in charge of the child because he was angry with her.  They had used the police to get at each other, and each had exaggerated the conduct of the other.  When he was angry, he acted on impulse without thinking it through. 

133.   In relation to the incident on 14^th March, 2013, he confirmed that the police log was accurate save in respect of his alleged assertion that the mother had been drunk.  He could not now say that she had been under the influence of drink.  As mentioned above he denied that they had been seen by C fighting on the floor. 

134.   He accepted that in early August 2013 he had told Dr Briggs that he would not relapse - that the child was the guarantee of this.  Yet, one month later, he had relapsed when he attended drunk at the mother's home.  He said this was just one incident and it wouldn't happen again, as he had now asked for help.  He did not want to drink for the rest of his life. 

135.   He accepted that on the advice of the experts, he had a year's worth of work to do.  He understood that this could leave the child in limbo for this period, but he wanted to bring up his child.  If he had the amenities, he would look after him now.  He wanted to raise him, not lose him.  He would support ongoing foster care rather than adoption so that he could continue to have direct contact with the child.  Letter box contact would be really bad for both him and the child.  He would do everything to maintain direct contact. 

The Guardian

136.   In her final position statement, the Guardian said how her own observations of the child and the mother before placement with the foster carers had concerned her greatly.  She saw them on two occasions and found the child's presentation to be muted, flat, and with little expression on his face.  He did not seem to understand how to play with toys offered to him and had little vocalisation apart from screeching noises. 

137.   She accepted that these observations could be argued to be the result of his being in an unfamiliar environment but they were consistent with the observations of the other professionals.  Since the child's reception into foster care, the picture has changed almost beyond recognition.  She has observed him on five occasions since his removal from the parents' care and has been struck each time by the differences.  He is playful, happy and curious and has shown the beginnings of attachment behaviours with his foster carers.   He is learning how to play, to smile, to laugh. 

138.   When inter-acting with his mother, the child's reactions had improved, although she remains concerned, as is Dr Williams, about the lack of selective attachment behaviours he displays towards her.  During the two occasions she observed them together, the child appeared to show little preference towards the mother over the other adults in the room.  There was little physical inter-action between them, other than functional touching, e.g. wiping his face, lifting him on to chairs etc.  The child's relationship with his father appeared warmer and more emotional.  He went to him for physical affection and chose to play with him over the other adults in the room.  On greeting the father, his face lit up in pleasure and recognition, something which she did not observe on his seeing his mother. 

139.   The accounts of the events given by the mother and father were inconsistent and unreliable.  They minimised concerns when the reality is that the child has suffered harm through being exposed to violence, alcohol misuse and neglectful parenting.  Whilst the mother and father have given up alcohol, this change was arguably fairly superficial when considered holistically.  There was little evidence, in her view, of either parent having real insight into his needs.  The serious case review in relation to the Daniel Pelka case has been recently published and the following areas were highlighted:-

(i)        Multiple police call outs for domestic abuse incidents;

(ii)       Alcohol misuse;

(iii)      Weight loss in the child given a medical explanation, rather than neglect;

(iv)      Parents minimising domestic abuse;

(v)       A child with facial or other injuries;

(vi)      Mother with injuries; and

(vii)     Patchy engagement with services. 

Many of these factors had been present in the child's life whilst in the parents' care.  Whilst she was not comparing this case to that of Daniel Pelka, she outlined these points simply to emphasise that we minimise these issues at our peril:-

"There is real risk, real danger.  Children are harmed and killed in such environments and we, as professionals who are assessing protective capacity in parents must be prepared to "think the unthinkable" and make the hard choices when parents are not safe.  We must heed the evidence and what research tells us about the risk to [the child] when he is so young and so vulnerable."

140.   The child wants love, safety, security, food, play and consistent attention.  The wealth of evidence the Court had relating to the multi-agency concern about his growth and development whilst in his parents' care would strongly suggest that they did/could not provide him with this.  He is now getting it and the change in this child is wonderful to see.  Whilst the parents had made changes, she was wary about what we had been told by the experts about their capacity for sustaining this and her own observations echo those concerns.  She was uncertain that they had a real appreciation of their son's needs and their ability to provide for them.  He needed parents who can give him love and keep him safe in order to grow up to be a healthy, happy man.  She therefore recommended that the Court granted the Minister's application for a care order and for the child to be freed for adoption. 

141.   In evidence the Guardian considered the options available to the Court and produced an algorithm of risk which she had prepared.  No order or a residence order would not be safe.  A supervision order would also not be safe as the mother would have sole parental authority.  Who would be there to safeguard the child if the parents lapsed?  The same point applied, she said, if the child were to return to the mother's care now under a care order.  She would face the same challenges as before but there would be no one there to check.  It was sad but adoption was the least risky option for the child giving him the best chance of a good and healthy life.  His best interests in her opinion were secured by adoption. 

142.   In evidence, and having heard the parents give their own evidence, the Guardian remained cautious about their real understanding.  The mother still minimised the incidents when they were unpicked.  Intent from the child's point of view is not so important as what actually happens within the home.  It was not insightful, she said, for the parents to think that the father's words had no power or were not aggressive. 

143.   In May, 2013, when she checked with the Women's Refuge to find that the mother was not there during the day, she was very concerned, indeed "fearful" that the child was not safe; a child whose presentation really concerned her.  She was uncomfortable agreeing to a planned move from the Women's Refuge to a place where the child would be even less monitored than he was.  She very much supported the position to move the child into foster care. 

144.   Advocate Milner referred her to Miss Bennett's observation in the child protection conference of 9^th October, 2012, that she had observed a "fantastic" relationship between the father and the child.  The Guardian accepted that having fun was part of parenting and the father was good at having fun when he was himself feeling good, but it needed to be remembered that he was also responsible for traumatising the child.  The most important part of parenting was keeping a child safe.  It was understandable that the father wished to continue his relationship with the child, but it was not reasonable for the child to remain in foster care in order to have that. 

145.   The Guardian accepted that "good enough" parenting is what is required of parents and that the bar should not be set higher, but it was dangerous, she said, to imply that this sort of conduct happened frequently in families and was therefore acceptable.  It was not; just look, she said, at the effect on the child. 

146.   She thought that the father did care enormously for the child and finds the idea of his not being a parent horrific.  However, he had been trying for some four months of the child's life but look at the damage done in the other sixteen months.  Much reparative work was now necessary.  

147.   She was asked whether long term foster care had been considered in detail.  She said it had not because it was recognised in social services that leaving a small child in foster care for a long time was a bad idea.  There was clear research to the effect that little children need permanency as soon as possible.  She accepted that every support should be provided to enable a child to live with his or her natural parents and that adoption was a last resort. 

148.   She also accepted that the mother may have been deprived of an opportunity to prove herself by the child being taken into care in May of this year, but it was more important to keep the child safe.  Mr English referred her to Dr Williams' evidence that absent alcohol abuse and domestic violence, the mother could provide good enough care.  The Guardian responded that Dr Williams had also spoken of his concerns over the mother's lack of emotional tuning and that we should not cherry pick his evidence. 

149.   In terms of the child's wishes it was put to her by Advocate Milner that he loved his father and would wish to retain contact with him.  She said that what a child may want is not often what they need.  The child needed consistent love.  The foster carers were very good but he would not be claimed by them.  He needs a family. 

Threshold criteria

150.   Under the provisions of Article 24(2) of the Children (Jersey) Law 2002 ("the Children Law") the Court may only make a care order or supervision order if it 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 the child if the order were not made, not being what it would be reasonable to expect a parent to give the child, or

(ii)       the child's being beyond parental control."

151.   Article 24(6) provides:-

"In this Article -

"harm" means ill-treatment or the impairment of health or development;

"development" means physical, intellectual, emotional, social or behavioural development;

"health" means physical or mental health; and

"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical."

152.   Article 24(7) provides:-

"Where the question of whether harm suffered by the child is significant turns on the child's health or development, his or her health or development shall be compared with that which could be expected of a similar child."

153.   All of the parties agree that the threshold criteria has been met, the parents however on the basis that the child was suffering significant harm at the relevant date, namely 20^th March, 2013, when the Minister first filed her application for a care order and from which date protective measures have been continuously imposed (See In the matter of C [2009] JLR 353).  The parents do not agree that the child was likely to suffer significant harm in the future. 

154.   Even with consensus, the Court has a duty to investigate the parties' agreed terms but that investigation should reflect that consensus, especially if it includes the Minister and the Guardian (see Devon County Council v S [1992] 2 WLR 273). 

155.   In this case, the Court has heard a considerable amount of evidence and has been asked to make findings of fact.  In our view, there was no question that the harm suffered by the child was significant.  The professional who was closest to the child when he was in the care of his parents was Mrs Querns, the health visitor.  Much time at the hearing was taken examining the weight charts and much was made by the mother and the father of the fact that both consultants to whom Mrs Querns had referred the child assessed his growth as normal (Dr Malpas describing his weight as "barely satisfactory" for a child born that small).  It needs to be remembered that he was at or at times below the 2^nd centile which was at the very bottom of the chart.  It was not surprising that in the context of the suspected abuse of alcohol and domestic violence Mrs Querns was extremely worried and she was the one, unlike the consultants, who had greater knowledge of the home environment.  We were impressed by her evidence and her caring, professional but measured approach which made her email of 14^th February, 2012, even more remarkable, demonstrating just how concerned she was.  She told us that she had never written an email like that either before or after. 

156.   However, Dr Malpas was also concerned as to the child's development, which was not as advanced as the father had made out and indeed it was subsequently confirmed that his speech development was delayed.  Dr Malpas described the child as withdrawn, quiet and passive, which he said would be typical appearances for a child of this age in an environment of neglect, supporting the observations of Mrs Querns and the Guardian. 

157.   We quite accept that the child did not always present as such, and that there would have been happy times, especially when he was in recreational with his father.  We reject the father's assertion however in the schedule of findings that he was always happy, fit and well. 

158.   One has to contrast the very marked progress the child has made since being taken into the hands of foster carers, where he lives with their other children and where he is thriving. 

159.   We would, in passing, reject the submission made by Advocate Milner that there was a lack of sympathy at times for the parents, illustrated, she said, by the absence of any criticism of aspects of the care given by the foster carers (as detailed in paragraph 105 above).  There was a good explanation in our view for each of these points, which it is not necessary to go into for the purposes of this judgment, but it is all a question of context and in the context of a child's home environment with suspected alcohol abuse and domestic violence, the agencies were right to be very concerned as to the well-being of the child. 

160.   There were some twelve occasions when neighbours felt it necessary to call the police as a consequence of domestic incidents involving the parents; remarkable in itself.  We think the level of alarm or concern on the part of neighbours would have to be very considerable before they would go as far as calling the police and therefore that there would have been numerous other domestic incidents to which the child was exposed.  C's evidence was that their arguments took place frequently and there were many complaints about their conduct.  Dr Briggs said that the combination of the parents in drink was toxic and it was to that toxic environment that the parents exposed the child. 

161.   Mrs Querns has told us that research had shown that children living in bed-sit type of accommodation have poorer outcomes in their physical and emotional health and development.  The Children's Service were doing what they could to assist the parents in obtaining better accommodation but the toxic environment to which the child had been exposed and which had caused him significant harm was attributable, we find, to the parents alcohol abuse and domestic violence. 

162.   Mrs Querns said that at 18 months, the child was performing at the level of a 9 month old child, an assessment with which Dr Williams agreed.  Dr Williams went so far as to say that the child was "depressed" and he was clear in his opinion that the child's development had been severely compromised by his home environment and that his emotional and attachment difficulties were environmentally determined.  We accept that assessment. 

163.   We do not accept the parents' position in relation to what might be termed as future harm.  It is important to note that this part of the threshold test is premised upon the likelihood of significant harm as at the relevant date attributable to the care likely to be given to the child "if the order were not made".  If no order were made, the child would be at serious risk of returning to the same toxic environment in which he lived previously and which has caused him significant harm.  We find that at the relevant date the child would be likely to suffer significant harm attributable to the care likely to be given to the child if no order were made, not being what it would be reasonable to expect a parent to give the child. 

164.   Both aspects of the threshold test being met, we now turn to the welfare stage. 

Welfare stage

165.   The Court is considering parallel applications for a care order and a freeing order and has considered the evidence in the round, rather than dealing with them separately following In the matter of the T Children [2009] JRC 231.  

166.   In considering what order should be made, if any, the principles are set out in paragraph 8 of the judgment of the Court of Appeal in Re F & G (No. 2) [2010] JCA 051 as follows:-

"For this purpose it is well established that:-

(i)        The child's welfare is the paramount consideration (Article 2(1) the 2002 Law).

(ii)       Any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of the child (Article 2(2)).

(iii)      The Court must have regard to the seven matters ("the welfare checklist") set out in Article 2(3).

(iv)      The Court must not make an order unless it considers that doing so would be better for the child than making no order (Article 2(5)).

(v)       Before making a care order the Court must scrutinise the care plan prepared by the Minister for the child including scrutiny of the Minister's proposals for contact, and invite the parties to comment on them (Article 27(11))"

167.   We have applied these principles, but the central issue in this case is the proposal in the care plan that the child have permanency by way of adoption, pursuant to which there is an application for the child to be freed for that purpose.  This brings into play the Article 8 Convention rights of the parents and the child. 

168.   It is not suggested by either parent that the child should be returned to their care immediately.  We will look at the orders they seek in a moment, but they involve keeping the door open one way or another for the future rehabilitation of the child.  The Minister's plan, supported by the guardian, is for the child to have permanency now by way of adoption.  Pursuant to the provisions of the Human Rights (Jersey) 2000, the Children Law and the Adoption (Jersey) Law 1961 ("the Adoption Law") must now be construed and applied so as to comply with the Convention.  The Court cannot make any orders under either Law unless such orders are proportionate, bearing in mind the requirements of Article 8 of the Convention. 

169.   The application of the Convention and in particular Article 8 was considered recently by the Supreme Court in the case of Re B (a child) [2013] UKSC 33.  The facts in that case were complex but involved a child aged 2 who had been in foster care since birth and had not suffered any harm, who had a warm and loving relationship with both parents and where the threshold had not been crossed in the most extreme way.  The parents had shown 100% commitment to contact (1½ hours 5 days a week) the quality of which was appropriate  There were features however relative to the personalities of the parents and to the psychiatric conditions of the mother which raised a real possibility that, in their care, the child would suffer impairment of her emotional development.  There was nothing to suggest that, in principle, emotional harm was less serious than physical harm.  One particular feature of the case was the trial judge's conclusion that the characters of the parents disabled them from offering the elementary cooperation with professionals, which the child's safety in their home would require.  In upholding the trial judge's decision to make a care order and approve a care plan for adoption, it was held:-

"(6)     The grant of a care order with a view to adoption represented an interference with the exercise by the child and the parents of their rights to respect for their family life.  It was, therefore, lawful only if, within the meaning of Art 8(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention), it was not only in accordance with the law but also necessary in a democratic society for the protection of the right of the child to grow up free from harm."

170.   In Re B-S (Children) [2013] EWCA Civ 1146, the English Court of Appeal expressed serious concerns and misgivings about how courts in England were approaching cases of what, for convenience, it called "non-consensual" as contrasted with "consensual" adoption; that is cases where a placement or adoption order is made without parental consent.  In the judgment of the court, Sir James Munby, President of the Family Division, started with Article 8 of the Convention:-

"18.    There is no need for us to go through the jurisprudence of the Strasbourg court.  The relevant passages from three key decisions, K and T v Finland (2001) 36 EHRR 255, R and H v United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236 and YC v United Kingdom (2012) 55 EHRR 967 are set out by the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911.  The overarching principle remains as explained by Hale LJ, as she then was, in Re C and B [2011] 1 FLR 611, para 34:

'Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end.  Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.'

To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 9677, para 134:

"family ties may only be severed in very exceptional circumstances and ... everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family.  It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.'

19.      In this connection it is to be remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trusy and another v H and another [2006] UKHL 36, para 34, that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.

20.      Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child "requires" this.  "Require" here has the Strasbourg meaning of necessary, "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable".  Re P (Placement Orders: Parental Consent [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120, 125.  This is a stringent and demanding test.

21.      Just how stringent and demanding has been spelt out very recently by the Supreme Court in In re B (A Child)(Care Proceedings : Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911.  The significance of Re B was rightly emphasised in two judgments of this court handed down on 30 July 2013: Re P (A Child) [2013] EWCA Civ 963, para 102 (Black LJ), and Re G (A Child) [2013] EWCA Civ 965, paras 29-31 (McFarlane LJ).  As Black LJ put it in Re P, Re B is a forceful reminder of just what is required.

22.      The language used in Re B is striking.  Different words and phrases are used, but the message is clear.  Orders contemplating non-consensual adoption - care orders with a plan for adoption, placement orders and adoption orders - are " a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort - when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 765, 77, 82, 104, 130, 135, 145, 198, 215."

171.   The statutory framework in England is now contained in the Adoption and Children Act 2002 under s.52(2) of which the court cannot dispense with a parent's consent unless the parent cannot be found, or lacks capacity to give consent, or the welfare of the child "requires" the consent to be dispensed with.  But as made clear above, the word "require" in that section has the Strasbourg meaning of "necessary" by which meaning this Court is bound, and it was agreed by all counsel that the principles set out above apply in this jurisdiction, so that the Court should only make an order seeking to sever the relationship between parent and child where it is necessary to do so in order to protect the interests of the child.  As Baroness Hale of Richmond said in Re B at paragraph 198:-

"[198]  Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.  In many cases, and particularly where the feared harm has not yet materialised and may never do, it will be necessary to explore and attempt alternative solutions.  As said in Re C and B (Care Order: Future Harm) at para [34]:

'Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end.  Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.'"

172.   Lord Munby, in Re B-S said that there were three important points emphasised in Re B as follows:-

"26.    First, (Re B paras 77, 104), although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible.

27.      Second (Re B Para 77) as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision.  As Lady Hale said (para 198) it is "necessary to explore and attempt alternative solutions".  What are those options? That will depend upon the circumstances of the particular cases.  They range, in principle, from the making of no order at one end of the spectrum to the making of an adoption order at the other.  In between, there may be orders providing for the return of the child to the parent's care with the support of a family assistance order or subject to a supervision order or a care order; or the child may be placed with relatives under a residence order or a special guardianship order or in a foster placement under a care order; or the child may be placed with someone else, again under a residence order or a special guardianship order or in a foster placement under a care order.  This is not an exhaustive list of the possibilities; wardship for example is another, as are placements in specialist residential or healthcare settings.  Yet it can be seen that the possible list of options is long.  We return to the implications of this below.

28.      Third (Re B para 105), the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer.  So "before making an adoption order ... the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support".  In this connection it is worth remembering what Hale LJ had said in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, para 28:

"It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work, as indeed the framers of the Children Act 1989 always hoped that it would be made to work.  The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully".

That was said in the context of supervision orders but the point is of wider application.

29.      It is the obligation of the local authority to make the order which the court has determined is proportionate work.  The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order.  Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking."

173.   The Court of Appeal then went on to criticise the recurrent inadequacy of the analysis and reasoning put forward in support of cases for adoption, both in the materials put before the English courts by the local authorities and guardians and also in many judgments.  This, it said, had to come to a halt.  Two things were essential where the court is being asked to approve a care plan for adoption and where it is being asked to make a non-consensual placement order or adoption order:-

"Adoption - essentials: (i) proper evidence

34.      First, there must be proper evidence both from the local authority and from the guardian.  The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.  As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1010, para 20, what is required is:

'evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.'

The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:

'An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options.'

McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:

'the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family.'

We agree with all of this.

35.      Too often this essential material is lacking.  As Black LJ said in Re V (Children) [2013] EWCA Civ 913, para 88:

'I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering ... It is not the first time that I have remarked on an absence of such material from the evidence, see Plymouth CC v G (children) [2010] EWCA Civ 1271.  Care should always be taken to address this question specifically in the evidence /reports and that this was not done here will not have assisted the judge in his determination of the issue.'

In the Plymouth case she had said this (Para 47):

'In some respects the reports of the guardian and social worker, and the social worker's statement, are very detailed, giving information about health and likes and dislikes, wishes and feelings.  However there is surprisingly little detail about the central issue of the type of placement that will best meet the children's needs ... In part, this may be an unfortunate by product of the entirely proper use, by both witnesses, of the checklist of factors and, in the case of the social worker's placement report, of the required pro forma.  However, the court requires not only a list of the factors that are relevant to the central decision but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children and a fully reasoned recommendation.'

36.      Black LJ has not altered the views that she expressed on these earlier occasions and the other members of the court agree with every word of them.  We draw attention in particular to the need for 'analysis of the pros and cons' and a 'fully reasoned recommendation'.  These are essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met.  We suggest that such an analysis is likely to be facilitated by the use -which we encourage - of the kind of 'balance sheet' first recommended by Thorpe LJ, albeit in a very different context, in Re A (Male Sterilisation [2000] 1 FLR 549, 560.

.....

Adoption - essentials: (ii) adequately reasoned judgments

41.      The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge.  We have already referred to Ryder LJ's criticism of the judge in Re S, K v the London Borough of Brent [2013] EWCA Civ 926.  That was on 29 July 2013.  The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

'the judge .... Failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments.  Putting it another way, she did not carry out a proportionality analysis.'

She added (para 124): 'there is little acknowledgment in the judge's judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case'.

42.      The judge must grapple with the factors at play in the particular case and, to use Black LJ's phrase (para 126), give 'proper focussed attention to the specifics."

43.      In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

'In most child care cases a choice will fall to be made between two or more options.  The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach .... Is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.'

We need not quote the next paragraph in McFarlane LJ's judgment, which explains in graphic compelling terms the potential danger of adopting a linear approach.

44.      We emphasise the words 'global, holistic evaluation'.  This point is crucial.  The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.  To quote McFarlane LJ again (para 54):

'What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.'

45.      McFarlane LJ added this important observation (para 53) which we respectfully endorse:

'a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is 'the most draconian option', yet does not engage with the very detail of that option which renders it 'draconian' cannot be a full or effective process of evaluation.  Since the phrase was first coined some years ago, judges now routinely make reference to the 'draconian' nature of permanent separation of parent and child and they frequently do so in the context of reference to 'proportionality'.  Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child's welfare in the particular case before the court.  If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.'

174.   In our view, this is valuable guidance which should be followed in this jurisdiction in every case where the Court is being asked to approve a care plan for adoption or make a freeing order without parental consent and counsel before us did not demur from that.  Counsel for the mother and father sought to criticise the evidence of Miss Allchin and the Guardian for failure to comply with this guidance, recent as it is.  Miss Allchin's final statement did provide a commentary on the options available to the Court, but it is fair to say that it was not presented as a balance sheet of pros and cons in the manner suggested in Re B-S.  The Guardian's final report merely listed the powers available to the Court before making her recommendation.  However, the pros and cons of the realistic options open to the Court were explored in evidence, assisted by the Guardian producing an algorithm of risk setting out the risk and protective factors which we found helpful, and we feel that we do have enough material upon which to carry out a proper balancing exercise.  

Analysis of the options

175.   We set out the pros and cons of the options available to the Court, at this stage whether in our view realistic or not, taking into account all of the evidence before us. 

No Order

176.   Pros:-

(i)        The child will return to the care of his mother. 

(ii)       The child will have continued contact with his father, as the parents may agree.

Cons:-

(i)        The Minister will cease to have parental responsibility and the ability to safeguard the child (without further application to the Court). 

(ii)       The child will be removed from the care of the foster carers, where he is safe and developing well. 

(iii)      The parents may relapse and/or resume their relationship exposing the child to the same domestic environment that has already caused him significant harm. 

Residence order

177.   In our view, such an order can only be made in favour of the mother, who has accommodation for the child; the father living in the Shelter.  The pros and cons will be the same as for "No order".

Supervision order

178.   Pros:-

(i)        The child will return to the care of his mother. 

(ii)       The child will have continued contact with his father, as the parents may agree. 

(iii)      The mother will have the benefit of the Children's Service's on-going involvement to the extent permitted under a supervision order. 

Cons:-

(i)        The Minister will cease to have parental responsibility and the ability to safeguard the child (without further application to the Court). 

(ii)       The child will be removed from the care of the foster carers, where he is safe and developing well. 

(iii)      The parents may relapse and/or resume their relationship exposing the child to the same domestic environment that has already caused him significant harm. 

(iv)      A supervision order is of limited duration. 

Adjournment with further interim care order with a view to rehabilitation

179.   Pros:-

(i)        The child will remain with the foster carers where he is safe and doing well. 

(ii)       The child will continue to have contact with the mother and father. 

(iii)      The door is kept open to rehabilitation at some future stage. 

(iv)      The parents can continue to demonstrate change through abstinence, remaining separate and continuing/undertaking relevant courses and therapeutic work. 

Cons:-

(i)        The case will be delayed and the child left in limbo. 

(ii)       The child needs permanency now. 

(iii)      The parents may not succeed in demonstrating sustained change in which event the child may lose the window of opportunity of establishing a selective attachment to a permanent carer before the age of three. 

(iv)      The child's attachment to the foster carers will continue to grow making any eventual change more disruptive for him. 

(v)       Depending on the length of the delay, the child may face a change of foster carers as the current placement is short term. 

Final care order on the basis of care plan

180.   Pros:-

(i)        The child will achieve permanency now. 

(ii)       The child will be safe from the risks to which he has been exposed when under parents' care and in general will have his hierarchical needs met. 

(iii)      There will be no delay in the proceedings. 

Cons:-

(i)        The child will be permanently severed from his natural family. 

(ii)       There is a risk that the adoption might not be successful. 

(iii)      The child will be removed from the care of the foster carers where he is developing well. 

181.   Having set out the pros and cons of the options, we next weigh up the risks to the child in being returned to the care of the mother in early course, as that may exclude a number of the options at the outset.  The father acknowledged that there could be no return to his care in the short term.  In fact neither counsel for the parents suggested rehabilitation in early course, implicitly accepting that the risks to the child were too high.  

182.   It is true that currently the two main factors that led to the toxic environment in which the child was raised are now under control, in that the parents are currently abstinent (albeit with the perhaps rather drastic intervention of Antabuse) and they are living separately (the father in the Shelter), but looking at it from the point of view of the child, we need to make the following observations:-

(i)        We found the evidence of both parents unreliable and therefore must treat with caution their declarations as to their future intentions. 

(ii)       Up until part way through the hearing, the mother has shown little insight and has minimised the risks associated with her drinking and the child's exposure to violence.  Even after her change in position during the hearing, when examined on the incidents that had taken place, she sought to diminish the seriousness of it.  

(iii)      As with Dr Briggs and Dr Williams, we do not think that the parents' relationship is over.  The father was open as to his wish to return to the mother, but says he respects her decision that that is not possible, certainly at the moment.  The mother is less open, stating that it is in the child's interests that she does not recommence the relationship with the father.  In evidence they both sought to protect the other by diminishing the seriousness of their conduct.  What is clear to us is that the parents are separate now because they are under the spotlight of these proceedings, but once that spotlight is off them, we think it more likely than not that their relationship will resume. 

(iv)      Their drinking problems are serious; so serious that it led to multiple calls to the police by the neighbours and the mother having to be moved to the Women's Refuge in order to safeguard the child.  Life will continue to present them with stressful situations and we feel we have to be realistic about their ability to remain abstinent once out of the spotlight.  We accept Dr Brigg's advice in relation to the mother that risk management should assume the potential for relapse and that we should be cautious as to prognosis.  As to the father we accept Dr Brigg's advice that he was overly optimistic as to his ability to remain abstinent. 

(v)       Through their conduct, they have inflicted significant harm on the child, to the extent that his development has been "severely compromised".  Inevitably, their counsel emphasised the positive steps they are taking now with their declarations of good intentions for the future, but for the child's sake, we feel we must not lose sight of the real damage that has been done to him by his parents.  As Dr Williams said, that must not be repeated. 

(vi)      Neither expert advised the return of the child to the mother's care until the parents had been reassessed following a period during which they would need to demonstrate sustained change. 

183.   We conclude that the risks to the child of his being returned to the mother's care in early course are real and serious and decisively outweigh the pros set out under the options of no order, a residence order and a supervision order.  He would simply not be safe in her care until she has demonstrated sustained change.  We need to consider a supervision order in more detail, however, as that is the order urged upon us by Advocate English. 

184.   Advocate English accepted, as he had to, that the mother's care of the child up until 20^th March, 2013, when protective measures were put in place was not "good enough", but he said it was "good enough" post that date.  By removing the child from her on 24^th May, 2013, some two months later, he said the Children's Service deprived her of the opportunity of proving beyond doubt that she could exponentially improve the child's development post the care order by accessing the support services that he was currently receiving (such as speech and language development therapy).  The risks arising out of the parents' abuse of alcohol and the associated domestic violence had diminished, he submitted, as a consequence of both of them demonstrating abstinence and living separately.  The mother had demonstrated her capacity to change and deserved an opportunity to have the child returned to her so that she could prove to the Court that she could provide good enough care to him.  Those remaining risks could be addressed by the making of a supervision order under Article 30(1) of the Children Law. 

185.   Article 28(1) of the Children Law provides that where a supervision order is in force, the supervisor shall:-

"(a)     advise, assist and befriend the supervised child;

(b)       take such steps as are reasonably necessary to give effect to the order; and

(c)       where the order is not wholly complied with or the supervisor at it may not longer be necessary, consider whether or not to apply to the court for its variation or discharge."

186.   Paragraph 1 of Schedule 3 sets out the power of the supervisor to give directions to a supervised child:-

"(1)     A supervision order may confer power on a supervisor to give directions to a supervised child from time to time -

(a)       Specifying where the child is to live;

(b)       Requiring the child to present himself or herself to a person specified in the directions at and such time and place as may be so specified; and

(c)       To participate in such activities on such dates as may be so specified."

187.   Paragraph 2 provides:-

"(1)     Where a responsible person consents, a supervision order may require that person to -

(a)       take all reasonable steps to ensure that the supervised child complies with any direction given by the supervisor under paragraph 1:"

188.   Given the advice of the experts as to the time required for the mother to demonstrate sustained change, Advocate English did not suggest that the child should be returned to the mother in early course.  When pressed as to how the child's return would be controlled under a supervision order, bearing in mind that the mother would have sole parental authority, he suggested that the mother, as "a responsible person", would consent to an order being made under Paragraph 2(1) of Schedule 3 so that she could be required to take all reasonable steps to ensure that the child complied with any direction given by the supervisor under Paragraph 1. 

189.   It would thus be for the Minister, he said, assuming she consented to act as supervisor pursuant to Paragraph 7(1) of Schedule 3 (and that was not conceded by Advocate Brace), to direct when and under what terms the child could return to the mother's care. 

190.   Advocate Brace submitted that such an order would go against the whole ethos of the Children Law, requiring the Minister to continue to intervene in the family by holding a child in foster care, in circumstances where parental responsibility had been returned to the mother alone.  

191.   The difference between a care order and a supervision order was considered in the case of In the matter of O [2011] JRC 226 where Clyde-Smith, Commissioner, said at paragraph 20:-

"The difference between a care order and a supervision order was explored in the case of In the matter of R (2010) JRC 118, in which the judgment of Coningsby QC in Re S (J)(a minor) Care or Supervision Order (1993) 2 FLR 919 was cited with approval.  As made clear in the latter case, the fundamental difference between the two orders is that with a care order it is the Minister who has to undertake the safeguarding of the child, whereas in the supervision order, it is the parents.  Quoting from the judgment at page 950:-

"That is a fundamental difference between these two orders.  In the one case it is the local authority which has to undertake the safeguarding of the child, in the other case it is the mother.

Looking at this case: should I leave it to the mother with all the pressures that she is under to keep safe this child?  Can I be sure that she will do it? Or is not this a case where I should say to the local authority: 'This is a mother who has got difficulties, she is under pressure from this man who is living with her who has been violent in the past - the local authority must now undertake this duty, it must take over as the effective parent and keep safe this child and, in particular, look at the case very frequently, almost day-to-day if necessary at the critical period and constantly be asking, as the regulations require the local authority to ask: is this still a safe placement? And to keep on asking that question?'

It is quite a different concept to be supervising the mother in her keeping safe of the child on the one hand and, on the other hand, the social worker actually knowing that he or she has got to make that decision literally on a day-to-day basis to keep safe the child.

We tend to look at supervision orders and care orders under the same umbrella because the threshold criteria for the coming into operation of the two is the same.  But when we actually look at the content of the two orders we find that they are wholly and utterly different.  This is because of s 22 and because of the passing of parental responsibility.  Supervision should not in any sense be seen as a sort of watered down version of care.  It is wholly different."

And at paragraph 24:-

"In Re D (Care or Supervision Order (2000) Family Law 600, a child had been removed from the care of the mother and placed with the father and the question arose as to whether the Court should make a supervision order as sought by the local authority or a care order, as sought by the guardian ad litem.  It was held as follows:-

"1.      If the balance between a care order and a supervision order is equal, the court should adopt the least interventionist approach.  The court should ask itself whether:

(a) the stronger order is needed to protect the child;

(b) the risks could be met by a supervision order;

(c) there is a need for the sort of speed of action that a care order gives a local authority;

(d) the father could protect the child without sharing parental responsibility with the authority;

(e) parental co-operation could only be obtained through the more Draconian order;

(f) the child's needs could be met by advising, assisting and befriending him rather than by sharing parental responsibility of him;

(g) there have been any improvements seen by objective observers during the current proceedings which would indicate the future, and the range of powers allotted to a supervision order, including its duration.

2.        Courts should not saddle local authorities with care orders when they have so many demands on their resources if it really is not necessary to do so."

192.   Thus in this case a supervision order would envisage that the mother can keep the child safe with her having sole parental authority.  The Minister would have a supervisory role only but even that can only be for a relatively short period.  Paragraph 5 of Schedule 3 provides that a supervision order will cease to have effect after a year and although it can be extended to no longer than three years from the date it was first made, it is still essentially a short term order. 

193.   If, as we have found, the risks are too great for the child to be returned to the mother in early course, then it is the Minister who has to undertake the safeguarding and a supervision order is quite inappropriate as it deprives the Minister of the wherewithal to do so. 

194.   In our view, a supervision order cannot be a realistic option in this case as the risks to the child are too great.  The child must remain in foster care where he is safe under the overriding parental authority of the Minister and if the door is to be kept open to rehabilitation, then the case will have to be adjourned under a further interim care order as submitted by Advocate Milner.  She suggested that such an adjournment should be for six months when Mr Gafoor said the picture as to the mother's sustained abstinence should become clearer, or, at most, twelve months, the period advised by Dr Briggs to allow for the interventions he advised.  He said there would have to follow a period of reassessment.  That, as she points out, would require the Court to ask the Minister to reconsider the care plan so as to investigate further the following possibilities:-

(i)        The child's return to his mother, or

(ii)       The child to remain in his current safe and stable foster placement under the terms of an interim care order, with a view to him returning either to the care of the mother or to the care of the father, if appropriate, within the next six to twelve months, to give the parents a better opportunity to make the requisite changes and to demonstrate their ability to offer the child the safe home that he needs, whilst enabling ongoing parental contact, or

(iii)      The child to remain in such foster care for a longer period, in the event that the Minister was of the view that the longer term foster care would provide the child with greater stability and certainty than (ii) above, whilst similarly enabling ongoing parental contact, or

(iv)      The Minister be invited to review the parental contact provisions in the current care plan, notwithstanding that, if the freeing for adoption order is granted, post adoption contact would at that point become an issue within the remit of the Minister (i.e. that an open adoption be considered). 

195.   On the basis of the evidence before the Court, Advocate Milner submitted that orders in line with (ii) and (iii) above would be the most appropriate in this case. 

196.   The father's key concern is to remain involved in the child's life through, at the very least, direct contact.  Advocate Milner rightly pointed to the evidence as to the warmth of the father's relationship with the child as observed by all the experts and every option should be explored, she said, to give the child the chance of retaining that relationship with his natural father. 

197.   We accept that the father has a good relationship with the child, but must not lose sight of the following;-

(i)        That the father's role is currently limited to contact once a week, which is essentially recreational. 

(ii)       That the father has a responsibility for the domestic violence to which the child has been exposed and which has caused him significant harm. 

(iii)      That the father's alcohol problem is, as Mr Gafoor said, more difficult in that once he lapses, he will tend to drink to excess.  The evidence shows and it is our finding that when the father does drink to excess, he is prone to violence. 

198.   As we have concluded that the child cannot safely be returned to the mother in early course, the issue then becomes one of timescales.  How long should the child be kept waiting to see if the parents can demonstrate sustained change?  We accept the more holistic advice of Dr Briggs that a year should be allowed, but even then, the situation would have to be re-assessed, all of which will inevitably take further time.  As advised by both Dr Briggs and Dr Williams, such delays are not within the child's timescale and will leave the future status of the child in limbo, in what Dr Briggs described as an experiment as to whether the parents might at some stage in the future be able to parent him.  In this context it is necessary to keep in mind that pursuant to Article 2(2) of the Children Law any delay in determining a question with regard to the upbringing of a child is likely to prejudice the welfare of that child. 

199.   If after that time the parents have failed to demonstrate sustained change and rehabilitation is not possible, Advocate Milner proposes that consideration should then be given to long term foster care as opposed to adoption, as that would allow the child and the father (and presumably the mother) to continue their relationship with him.  It was suggested that Miss Allchin and the Guardian had failed to consider long-term foster care as an option if rehabilitation was not possible.  Miss Allchin did make reference to this option in paragraph 13.4 of her third statement but she and the Guardian had considered it in evidence and had advised that it was not an appropriate option for a child of this age, who would be condemned to spend the rest of his childhood in care.  Dr Williams did not recommend long term foster care.  His recommendation was for either a permanent kinship placement or adoption; in so far as the former is concerned the parents have consistently failed to put forward anyone for consideration as kinship carers.  We accept that long term foster care is not appropriate for a child this young whether now or after a period of further delay whilst the parents seek to demonstrate sustained change.  

200.   Having discounted no order, a residence order, a supervision order and long term foster care, the realistic orders, so it seems to us, are a further interim care order with a view to rehabilitation, as submitted by Advocate Milner, or a final care order with a view to adoption, as submitted by the Minister with the support of the Guardian.  Carrying out a holistic evaluation of the pros and cons of these two options, we find ourselves driven to the final care order, essentially because of the risks to the child posed by his parents as evidenced by the significant harm that he has already suffered in their care and the period that would be required before those risks could be re-assessed which are beyond the child's timescales.  Sadly even if the child were to be kept waiting this long, we are not optimistic about the parents ability to demonstrate sustained change.  

201.   We realise that none of the options are wholly risk free and that even adoption carries an element of risk.  We were given no statistics on the rate of failure in adoptions but Dr Williams stressed the benefit, namely that the adoptive parents claimed the child.  He said that the Island has a very good adoptive support service and intuitively we feel that the risks of a well-matched adoption of such a young child failing will be low.  In short, we conclude that nothing else but adoption will do for the child. 

202.   Turning to the issue of contact, the care plan envisages a reduction in direct contact over a two week period leading to a "goodbye" contact in the third week, prior to the child commencing introductions with the prospective adopters.  Thereafter the Minister proposes annual letter box contact.  Dr Williams advised that current best practice indicates that children who are placed in permanent families outside the birth family can have better outcomes with respect to their adjustment by maintaining a knowledge of their birth parents.  This, however, he said could be achieved through indirect contact.  The Guardian supported the contact proposals and Dr Williams did not demur from them.  They are consistent with a closed adoption. 

203.   Advocate English's whole energy was understandably focused on opposing the child being freed for adoption and he did not address the Court on contact post a freeing order.  Advocate Milner asked that this part of the care plan be remitted back to the Minister for her to consider the possibility of an open adoption.  In proposing a closed adoption, it seems to follow that the Minister would have considered the possibility of an open adoption and that possibility is very much premised upon two factors, namely how supportive the natural parents are of the adoption and the cooperation of the adoptive parents.  Once a freeing order is made, which as can be seen below it is our intention to make, the Court loses jurisdiction to make a contact order under Article 27(2) of the Children Law (see In the matter of F (Care Order) [2013] JRC 064).  In Re F, the possibility of direct contact between the child and the natural mother post adoption had been raised by one of the experts in the care proceedings and following the making of the freeing order, this led to an application by both parents under Article 10(1) of the Children Law.  At this stage, we can see no reason to refer this part of the care plan back to the Minister for re-consideration. 

Freeing for adoption

204.   By approving the care plan, it follows that applying Article 3 of the Adoption Law, construed so as to apply Article 8 of the Convention, we conclude that the making of a freeing order is necessary to protect the interests of the child and is therefore proportionate.  The mother does not agree to such an order.  Article 12 of the Adoption Law is in the following terms:-

"Freeing infant for adoption

*(1)      Where, on an application by the Minister, the Court is satisfied in the case of each parent or guardian of the infant that -

(a)       the person freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order, or

(b)       the person's agreement to the making of an adoption order should be dispensed with on a ground specified in Article 13(2),

the Court shall make an order declaring the infant free for adoption."

A "parent" for the purposes of the Adoption Law means a parent who has parental responsibility and therefore, in this context, we are concerned with the mother alone.  The consent of the mother can be dispensed on any of the following grounds as set out in Article 13(2):-

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

(a)       cannot be found or is incapable of giving agreement;

(b)       is withholding his or her agreement unreasonably;

(c)       has persistently failed without reasonable cause to exercise his or her rights, duties, obligations and liabilities as a parent or guardian in respect of the infant;

(d)       has abandoned or neglected the infant;

(e)       subject to paragraph (4) has persistently ill-treated the infant;

(f)        has seriously ill-treated the infant;

(g)       is incapable of caring for the infant or is of such habits or mode of life as to be unfit to have the care of the infant."

The Minister relies on three of those grounds but in this order of priority; firstly, under (2)(b) that the mother is withholding her agreement unreasonably; secondly under (2)(d) that she has neglected the child and thirdly under (2)(g) that she is incapable of caring for the child or is of such habits or mode of life as to be unfit to have the care of the child. 

205.   The test for considering whether a parent is withholding consent unreasonably is set out in the case of JS and BS [2005] JRC 108 at paragraphs 25 - 28 as adopted by the Court of Appeal or in F and G (No 2) [2010] JCA 051:-

"The Law

25.      There is no dispute between the parties as to the applicable law.  The Court has to ask itself two questions:-

(i)        Is it satisfied that adoption would be in the best interests of each of these two children?

(ii)       Is it satisfied that the mother and the father are withholding their consent to freeing for adoption unreasonably?

26.      An authoritative explanation of the word 'unreasonably' in this context is to be found in Re W (1971) 2 All ER 49.  The head note of that case reads:-

'In withholding his consent to the adoption of his child a parent may be acting unreasonably with the meaning of S5(1)(b) of the Adoption Act 1958 even if there is no element of culpability or reprehensible conduct in his decision to withhold consent.  The test of whether the refusal to give consent is unreasonable is an objective one to be made in the light of all the circumstances of the case and, although the welfare of the child is not the sole consideration, it is a fact of great importance.'

27.      The House of Lords approved a passage from the judgment of Lord Denning MR in Re L (1962_ 106 Sol Jo 611 where he said:-

'But I must say that in considering whether she is reasonable or unreasonable we must take into account the welfare of the child.  A reasonable mother surely gives great weight to what is better for the child.  Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent.  We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case.'

Lord Hailsham LC summarised the position in Re W as follows at 55:-

'From this it is clear that the test is reasonableness and not anything 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 would take it into account.  It is decisive in those cases where a reasonable parent must so regard it.'

28.      Lord Hailsham went on to add this cautionary note at 56:-

'I only feel it necessary to add on this part of the case that I entirely agree with Russell LJ when he said in effect that it does not follow from the fact that the test is reasonableness that any court is entitled simply to substitute its own view for that of the parent.  In my opinion, it should be extremely careful to guard against this error.  Two reasonable parents can 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 exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable.  There is a band of decisions within which no court should seek to replace the individual's judgment with its own.'

206.   As Bailhache, Deputy Bailiff, observed in the case of Re T at paragraph 42:-

"Once the Court has decided that it is in the best interests of a child that he or she be freed for adoption, it is hard to see that there is much room for any finding other than that the parent(s) is/are being unreasonable in resisting that course. The Law clearly requires that the test is an objective one, which we have applied."

This is perhaps particularly so where, as here, the Court has decided that the welfare of the child makes it necessary for him to be adopted; nothing else will do.

207.   The anguish of the mother in Court was clear for us to see and her plea to us for a chance to parent the child was heart rending.  Unlike the facts in Re T, the mother, although she is a victim of domestic violence herself, must shoulder some culpability for failing to protect the child from such a toxic environment, an environment to which she contributed through her own alcohol abuse.  We acknowledge the efforts she has made to remain abstinent but for the reasons we have outlined above, it is unreasonable for her to expect the child to wait a year or so to see if she can demonstrate the necessary changes.  Such delays are simply not within the child's timescales.  We find that she is therefore unreasonably withholding her consent. 

208.   Turning to the second ground, namely that she has neglected the child, neglect can include a failure to protect a child from emotional harm and in this case, the mother did fail to protect the child from such harm.  Although time only permitted the briefest of submissions on this, we accept that the mother's consent can also be dispensed with on this ground. 

209.   As for the third ground, namely the mother's habits and mode of life, i.e. her abuse of alcohol and her relationship with the father, we acknowledge the steps she has taken to remain abstinent from December 2012 or at the latest March 2013 and that she and the father are currently separated.  She needs to demonstrate sustained change in this respect before the child could be safely returned to her care (something that we have found cannot be done within the child's timescales) but this not the same thing as saying that she is incapable of caring for the child on account of these factors as of today.  We therefore decline to make a finding on this ground. 

210.   Although the father is not defined as a parent, under the terms of Article 12(7) of the Adoption Law, the Court must be satisfied that he does not intend to apply within the next six months for a parental responsibility order and that if he did so then such application would be likely to be refused.  Advocate Milner drew our attention to the test for the granting of parental responsibility as set out in LS v NS [2007] JLR Note 37 as follows:-

"Family Law - children- parental responsibility

On an application by an unmarried father for parental responsibility, the court should consider, inter alia, the degree of commitment he has shown towards the child; the degree of attachment between him and the child; and his reasons for applying.  Those factors are merely a starting point, however, and are not exhaustive.  All the relevant circumstances should be taken into account and the welfare of the child is paramount.  Even if the three factors are established as satisfactory in a particular case, other factors may tip the balance against an order.  A parental responsibility confers an important status on a father, it will usually be granted unless clearly contrary to the child's welfare (Standley, Family Law, 5th ed. at 286(1006))."

211.   The father informed us that he does intend to apply for parental responsibility and only delayed doing so because of his relapse in early September.  It is his intention to do so within six months.  We cannot say that ordinarily the Court would be likely to refuse his application, bearing in mind that he has demonstrated commitment and he has a good relationship with the child.  However, when it comes to the welfare of the child, the father faces an insurmountable hurdle.  In approving the care plan, the Court has found that the child's welfare necessitates him having permanency by way of adoption, which involves the transfer of parental responsibility to the adoptive parents.  Having made that decision, it would be contrary to the child's welfare and inconsistent for the Court to then grant the father parental responsibility.  We therefore find that if the father were to make such an application, it would be likely to be refused. 

212.   Finally, under Article 12(3), the Court has to be satisfied that the child is likely to be placed for adoption.  The Adoption and Permanence Panel recommended permanence through adoption on 15^th October, 2013, and the decision has been ratified by the Agency Decision Maker.  Miss Allchin was confident that the child could be matched and that there would be a choice of applicants.  She anticipated that the child would be placed mid to late January, 2014.  We are therefore satisfied that it is likely that the child would be placed for adoption. 

213.   We are satisfied that all other formalities in relation to the Adoption Law had been complied with and we therefore make a final care order and free the child for adoption.  

Authorities

Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35.

Children (Jersey) Law 2002.

In the matter of C [2009] JLR 353.

Devon County Council v S [1992] 2 WLR 273.

In the matter of the T Children [2009] JRC 231.

Re F & G (No. 2) [2010] JCA 051.

Human Rights (Jersey) 2000.

Adoption (Jersey) Law 1961.

Re B (a child) [2013] UKSC 33.

Re B-S (Children) [2013] EWCA Civ 1146.

Adoption and Children Act 2002.

In the matter of O [2011] JRC 226.

In the matter of F (Care Order) [2013] JRC 064.

JS and BS [2005] JRC 108.

LS v NS [2007] JLR N 37.