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High Court of Justice in Northern Ireland Family Division Decisions |
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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Family Division Decisions >> A, Re [2001] NIFam 23 (24 October 2001) URL: http://www.bailii.org/nie/cases/NIHC/Fam/2001/23.html Cite as: [2001] NIFam 23 |
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Neutral Citation no. [2001] NIFam 23
Ref:
GILF3512
Judgment: approved by the Court for handing down
Delivered:
24.10.2001
(subject to editorial corrections)
GILLEN J
I have prepared this judgment in an anonymised form. Nothing must be published which might lead to the identification of the child or the mother and father in this case.
I have before me an application by a Health and Social Services Trust which I do not propose to name and which I shall I refer to as "the Trust". The application by the Trust is for a care order in respect of child A under Article 50 of the Children (Northern Ireland) Order 1995 (hereinafter called "the 1995 Order") and an application under Article 18 of the Adoption (Northern Ireland) Order 1987 ("the 1987 Order") for an order freeing the child A for adoption without parental consent.
A is female and was born on 6 July 2000. J and M are the respective mother and father of this child. They are a married couple.
Background to these applications
The background information to this unhappy case is contained in a report dated12 October 2000 from two social workers employed by the Trust and who gave evidence before me. The relevant extract states:
"The C family became known to social services … immediately after the birth of their daughter A on 6 July 2000. Social services were notified by midwives at (the hospital where the child was born). They informed us that J had been verbally abusive to midwifery staff and concerns were also raised concerning J's ability to interact and meet the baby's needs specifically feeding and responding appropriately to the baby crying.
Social services convened an initial child protection case conference on 11 July 2000. The purpose was to share relevant information, to explore the details of care given to the baby, to decide on discharge and to plan the future work with parents. During the course of a Child Protection Case Conference a variety of concerns were voiced by a number of professionals and most particularly, those who had involvement with (J and M) in the past. Professionals acknowledged very difficult and complex histories (including care experiences) on the parts of (J and M). Personnel were concerned that neither (J and M) had good role models on which to base their parenting practices. The concerns more specifically were outlined in the following way:
J.
Long history of unemployment.
Treatment for depression.
Suicide attempts and deliberate self-harm issues.
Unresolved issues regarding experiences of sexual abuse.
History of post physical help (epilepsy).
Issues regarding housing (nomadic lifestyle) – frequent house moves.
Experience of poor emotional health from her mother.
Domestic violence.
Involvement in petty crime.
Alcohol misuse.
Use of illicit drugs.
A volatile and difficult relationship with her brother E.
A probation order for assault.
M
Long history of unemployment.
Ongoing treatment for poor mental health.
History in care system.
Long involvement in crime with resulting incarcerations and convictions.
Inability to manage finances.
Severe alcohol misuse.
Misuse of illicit substances and drugs.
Domestic violence.
As a result of the concerns and the information from midwifery staff, social services consulted CSA (Legal Aid Department) re possibility of a Emergency Protection Order in respect of the baby. The appropriate action was placed before the Family Proceedings Court on 14 July 2000 and was rejected on the basis that enough evidence did not exist regarding risks of significant harm to the baby. The Resident Magistrate suggested that information regarding the couple had its basis in hearsay and relied too heavily on historic facts.
A was discharged into the care of her parents on 14 July 2000. Social services offered an intense support package to the family in light of the ongoing concerns.
…
The child protection case conference has said concerns with regard to the baby were sufficient for her name to be placed on the child protection register, under the category of "potential neglect". Again an intense child protection plan was drawn up that involved support from a variety of agencies including:
(1) PBNI.
(2) Partnership Care West.
(3) Health visiting.
(4) Family support team.
(5) NIHE.
(6) Community mental health.
(7) St Vincent de Paul.
(8) DHSS.
The conference acknowledged that this family could not be maintained without a very high level of intense support."
The subsequent events that occurred in this child's life were outlined before me by a number of witnesses on behalf of the applicant Trust and in the form of reports before me which were adopted in oral evidence. I have taken into account the evidence of the respondents J and M in regard to the following incidents and I have arrived at the following factual conclusions about a number of significant events:
(1) I am satisfied that from a very early stage social workers in this Trust presented as consoling listeners and were tirelessly sympathetic to the problems faced by J and M. They produced a creative and comprehensive array of interventionist steps to meet the needs of this couple. The PBNI were introduced to deal with issues of anger management, Partnership Care West was introduced to assist with housekeeping inadequacies, health visitors were regularly presented, a family support team dealt with the problems of alcohol and drug misuse, the NIHE were prevailed upon by the personal intervention of Miss D, social worker, to provide appropriate accommodation, a community health team was brought in to look at drug and alcohol problems, St Vincent de Paul were personally persuaded to offer practical support to furnish the new accommodation and finally, Miss D again personally intervened with the DHSS to overturn their previous decision not to give any further money to the couple. I can conceive of no further help that could have been afforded to this couple than what was presented in this particular instance by the Trust. I am satisfied that the help provided by the Trust was neither recognised nor appreciated by J and M either through an inability to do so or a wanton disregard of the help that was being offered.
(2) The evidence of Miss D, social worker, was that on 28 July 2000 an anonymous referral to the social services alleged concerns about the abuse of alcohol and drugs by J and M, the expenditure of money on drugs instead on food for A and the prop feeding of the child whilst J and M were under the influence of alcohol. Prop feeding occurs where a towel is propped under a child's chin with a bottle of milk on top and which in theory precludes the necessity for adult supervision, is particularly dangerous and can lead to a child choking. Miss D, who gave her evidence in a measured and considered fashion, satisfied me that when confronted with these allegations J admitted the substance of them. Although she denied several of these matters before me I believed the account given to me by Miss D. These events illustrated the danger to which this child was being exposed at a very early age.
(3) Ms Q, another experienced social worker with the Trust, gave evidence of an incident that occurred on 20 August 2000. She had known J for about 13 years as a child in residential care and met her again shortly after the birth of A. She belonged to a family support team working with J. On 20 August 2000, at the request of management, she visited the house where J and M resided with the child. M answered the door and appeared to be under the influence of drugs. His eyebrows were missing and it had been replaced by a drawing with a felt tip pen. The living room was dark and hot with the electric fire burning. J's mother was asleep on the couch. M produced the child who was clothed with a heavily soiled nappy and was wearing two damp pieces of clothing which gave the appearance of her having been prop fed, and with a collar stiff with vomit. When the social worker requested fresh clothing and cream for the child, M disappeared and did not return. When the social worker sought to find him, she discovered him seemingly comatose on the floor of the one of the bedrooms. In that bedroom J was in bed. She became very angry and confused when confronted by the social worker. Her eyebrows were also missing. The social worker was so concerned that she asked permission to take the child away to afford an opportunity for J and M to compose themselves so as to be in a fit state to care for the child. The events of the day were justified by J and M on the basis that it had been M's birthday and "they had a right to celebrate". It was clear to Miss Q and I accept her evidence that M was completely unfit to look after A on this occasion and that J had been asleep in bed giving the impression of being hung over.
(4) On 10 October 2000 at a time when a great deal of the help I have already set out was being afforded to the couple, the two social workers Ms D and Q arrived at their house. A state of absolute chaos obtained. J claimed that moments before their arrival she had prevented M taking an overdose. M stated that he was approaching breakdown and felt he could not cope any longer. J was clearly out of control. She stated she was experiencing pressure from her brother in relation to cheques that she had received earlier in the day from the DHSS social fund. She claimed that both she and M were experiencing suicidal notions. M intervened to say that ten minutes before the social services visit J had smashed the stereo system in the presence of the child A. J was continuously shouting notwithstanding the very evident distress of the child who was witnessed to be jerking by Ms D. During the time when the social workers tried to settle the child and calm J, J displayed threatening and aggressive behaviour to the point where she smashed a pint glass off the floor spraying glass in the direction of the child. I am satisfied that this broken glass did have the potential to cause serious injury to this child. Subsequently in the course of this exchange, M admitted that he had been taking drugs. The parents admitted that their marriage had broken down and that M was planning to move out. It was clear to me from this incident that J and M were completely unable to care for this child and it did not surprise me to hear that A was received into care on a voluntary basis following this visit on 11 October. Subsequently on 13 October the Trust was granted an interim care order in respect of the child. This stage had been reached notwithstanding the plethora of advice and assistance which had been offered by the various bodies that I have already set out.
(5) Following this interim care order, the initial care plan in respect of A was that the child would remain in foster care until J and M could demonstrate their responsibility as parents, gain some insight into A's need and undertake therapy in relation to their dysfunctional relationship and past difficulties. Once again further help and assistance was proffered namely:
(a) The respondents commenced a parenting scheme at the Creggan Day Centre. They required to be taught the very basics in parenting such as how to hold and feed a baby.
(b) The respondents were put in touch with Relate, an organisation geared to assisting them with their volatile and aggressive relationship.
(c) M was advised to seek a referral to a community addiction unit to deal with his drug and alcohol dependency. At that stage J insisted that in relation to alcohol she could "take or leave it".
(d) J was exhorted to make contact with an organisation known as Nexus to receive counselling in regard to her past sexual abuse.
Once again the help proffered was to no avail. In the ensuing months it was clear to me from the evidence that alcohol, drugs and anti-social activities continued to be a feature of their chaotic lifestyle. I accept entirely the evidence of the social workers before me that this lifestyle placed the respondents, and particularly the child, in dangerous and life threatening situations. One example of this was that they both continued to maintain contact and engage in anti-social behaviour with J's brother. M continued to engage in criminal activities notwithstanding that he was currently on bail for charges arising out of another theft of a car and driving while disqualified. Despite this he admitted to the social workers that he continued to drive and was indeed subsequently stopped by the police driving a car whilst under the influence of alcohol and in the company of J who was similarly intoxicated. When these issues were discussed with the respondents by the social workers, J said that she was "fucked up in the head" and that she liked to live dangerously stating that "the more dangerous, the more buzz" she receives. They acknowledged that their lifestyle was not acceptable as parents and recognised that their behaviour was out of control. J informed social workers that she had engaged in these activities all her life and did not know if she could change. She stated that her life resembled a roller coaster and that her anti-social behaviour was compounded by the dysfunctional relationship she had with her brother. She said at that time that "it would take a miracle" to change their lifestyle and she would be only free of the influence of her brother if somebody shot him. None of this augured well for the future. Past events did not serve as a salutary corrective for the behaviour of either of them and neither demonstrated the commitment or determination necessary to change the dynamics of their lifestyle. Accordingly after a Looked After Children's review on 28 February 2001 the Trust changed the care plan for A indicating that the child now be placed for adoption in the absence of any evidence of change in the respondent's lifestyle. Needless to say M's lifestyle inevitably led to further incarceration and in March 2001 he was sentenced to a period of eighteen months imprisonment for offences of dishonesty, a sentence which he is still serving. Reports from social services sources suggested that J was continuing to abuse alcohol engaging in frequent episodes of street drinking with undesirables in the city centre with a attendant decline in her personal care and maintenance of her home. There were also reports of J using violence against certain of these individuals coupled with three very serious suicide attempts during the early part of 2001 all resulting in the need for medical treatment. This simply serves to illustrate the unpredictable dangers to which this child would have been exposed had she not been taken into care and highlights the lack of safety and security denied to this child by the respondent's behaviour. Their denials before me of much of this behaviour did not carry conviction and I was satisfied that they had admitted the substance of this behaviour to social workers when confronted by them.
(6) Continuing contact between J and M and the child reflected this chaotic lifestyle that they were living. They both demonstrated an inability with respect to A's needs, and at times manifested an indifference to her borne of the chaos in which they were living. A few instances will suffice:
(a) On 17 January 2001 contact took place at Rossdowney House. Over the two hour contact time, J appeared to have little interest in A, instructing M to hold A and play with her. Neither party was able to comfort the child when she was distressed, neither appearing to have the ability to do this. J and M displayed fundamental difficulties in changing the child's nappy and clothes and were unable to handle her appropriately causing her distress. Both became unsettled during the last hour of contact and both required encouragement to even stay the allotted period. In fact M fell asleep towards the end of the visit.
(b) On 24 January 2001 during a contact visit at Rossdowney House, J presented as very tired and repeatedly yawned throughout the visit. The first hour of contact involved A sitting on her mother's knee with very little and at times no interaction at all. I accept entirely the evidence of Ms D that this yawning illustrated precisely that which J had told her namely that she was not getting to bed to 4 or 5 o'clock in the morning. J again denied this in evidence before me but Ms D was so concerned about this that she had taken the trouble to write it down. She was challenged as to the veracity of this entry which she had made subsequent to a note entered by another social worker. I believe D entirely. Her evidence at all times carried the stamp of truth and I am satisfied that this conscientious worker was dispassionately recording her concerns for this child's welfare.
The violence of the relationship between J and M surfaced again at the visit on 24 January 2001 when J indicated M was not present because during the course of an argument between them, M had so badly cut his arm that he was now receiving micro-surgery in Dundonald Hospital.
(c) On 26 January 2001 J arrived for contact presenting as tired and informing the social workers that she had had too many late nights. Her clothes were covered in dog hairs and she quite clearly was incapable of stimulating A during the short period that she remained. The child became upset and required the intervention of social workers.
(d) Neither J nor M attended any contact visits at all throughout February. I was told that this was because J was suffering from epilepsy. I find it difficult to understand why if there had been any commitment to this child, alternative dates could not have been found during February. In any event the illness of J would not explain the absence of M. It is yet another example of the inconstancy and self indulgent behaviour of this couple. Not surprisingly at a Looked After Children review on 28 February 2001, with J's consent, contact was reduced to once per month.
(7) Even on a monthly basis the pattern of contact continued to manifest evidence of J's turbulent lifestyle. On 18 June 2001 she telephoned social workers to say that on the previous Saturday she had been beaten up by an ex-boyfriend, had a black eye, a broken nose and her arms had been slashed by a knife. Hence contact which had been arranged for 13 June (cancelled because she had influenza) and 19 June 2001 did not take place. I heard evidence from PA, the team manager of the Family Centre at Shantallow. J had been referred to this Family Centre by Ms D to carry out a six week assessment of her contact with A. His evidence was consonant with that given by the other social workers in this case and provided no uplifting thread in this sad story. Supervised contact on six occasions between 4 June 2001 and 11 July 2001 evinced minimal commitment. In spite of agreeing times and dates, J did not present for contact on two occasions as indicated above. When she did attend, she did not make a constructive effort to create an environment that provided A with stimulation and meaning and she was clearly emotionally unavailable to the child. She displayed limited insight and skills in meeting the physical needs of the child and lacked basic skills in caring. J informed this social worker that she was "no longer close" to A. I share the view of this witness that this was a critical admission and was reflected in J's attitude, behaviour and action during the course of the contact progress. I consider PA to have been an observant, perceptive and truthful witness and I reject J's denials of the content of his evidence. In particular I believe that she did say that she was no longer close to the child and that she did say that she no longer saw any point in assessment work. Set against the chaotic tapestry of her lifestyle, these admissions were really self-evident.
(8) Ms D dealt with another bleak incident that occurred in June 2001. Ms D visited the address at which J was then residing. She found windows smashed, carpets lifted revealing bare boards and the house was in a very dirty condition with dog hair, dirt ashes and what appeared to be canine faeces lying about the floor. The dog was clearly resident in their living room. The kitchen was in an appalling state with crockery lying there evidently for a lengthy period. I share entirely the view of Ms Q, social worker, that this would have been an extremely dangerous environment from a health point of view for a child living there and wholly unsuitable for A. Moreover J admitted that she had been engaging in a very volatile violent relationship with a male neighbour that she was now about to separate from him. She said the house had been the subject of community disturbance.
(9) The pattern has continued right up to date. Ms Q told me, and I believed her, that she encountered J in the public street some three weeks before this hearing short of breath, flushed and sweating. Associating it with heavy drinking, she asked J if she had been drinking. No answer was forthcoming. She said she was perspiring due to two overdoses and seizures as she had not been availing of Tegritol for her epilepsy. She denied in evidence telling Ms Q that she had taken these overdoses but her evidence was singularly unconvincing. Moreover the evidence of Ms Q chimed with the account given to me by Ms D who recalled encouraging J to continue to take her treatment for epilepsy to avoid fits but had been rebuffed by J indicating that she did not care if she lived or died and refused to give any valid reason why she did not take her tablets for epilepsy. This is but another instance of a lack of discipline and commitment which could endanger this child.
More recently, approximately one week before this hearing, Ms D said she had spoken to J who informed her that over the previous two weeks she had taken an overdose, that she had been drinking and that she had fallen as a result of drink. Once again J denied this in evidence saying that she had fallen as a result of an epileptic fit and denying that she had taken any drink since April 2001 or drugs since January 2001. I simply do not believe J. I am satisfied that she has been locked into a repeating cycle of maladaptive behaviour and I doubt that she is much attuned to changing her lifestyle. She makes these admissions to the social workers because she mistakes their patient indulgence for indifference. On the contrary I am satisfied that these workers care a great deal about her but they are impotent in the face of her unchanging lifestyle.
(10) M is in some respects a pathetic character. He presents as a soft spoken easily manipulated person who, like J, probably does have periodic genuine affection for his child. I was impressed by the fact that he produced in court a series of toys which he had made for the child whilst in prison and clearly surrounds himself with a plethora of her photographs. But he also is locked into a similarly repeating cycle of maladaptive behaviour. Whilst there are periods, particularly in the early months of the child's life, when he did try harder than J to care for the child, he was only able to operate in this way in the midst of intensive daily support from outside agencies. The case was made on his behalf that there had been a suggestion at one stage by the Trust that he should undergo cognitive/psychological assessment, and that this might have been pertinent to a proper consideration of his parenting skills. Whilst this might have been helpful to him, the crucial test is what is in the interests of A. Any assessment of him would not have altered his capacity to meeting the needs of this child. He is a timid vulnerable person, but is one who is engaged in serial criminal behaviour and whose good intentions soon descend into a perpetuation of the chaotic lifestyle that he has followed for many years. Consequently I share the view of the guardian ad litem in this case that any cognitive assessment would not have dealt with the problem of alcohol, drugs and anti-social behaviour which has bedevilled his life. This child simply cannot wait upon the vague possibility of change occurring in this man's life. The Trust had explored the possibility of assessment with a Dr Cunningham who is a consultant clinical psychologist but he had informed the Trust that it would take too long and would not be of benefit. I think it was not unreasonable of the Trust to have adopted this approach and therefore I do not consider it of any relevance that the assessment of M did not take place.
The legal principles governing this application
(1) Under Article 50 of the 1995 Order, on the application of any authority or authorised person the court may make an order placing a child with respect to whom the application is made in the care of a designated authority. A court may only make such a care order if it is satisfied that the child concerned is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him. Whether or not the court does or does not make a care order depends upon a two stage process. First, the court must consider whether or not the criteria for making a care order has been satisfied ie. the threshold criteria and secondly, in light of the care plan and after consideration of the matters contained in the welfare checklist in Article 3(3) of the 1995 Order whether it is proper to make a care order.
Re D (Simultaneous applications for care and freeing order) (1999) 2 FLR 49 is authority for the proposition that where a court is considering, as it is in this instance, an application for a care order together with an application for a freeing order, the application for the care order is the primary application. It is a wrong approach to decide a freeing application first, in which child's interests will not be the paramount consideration. That would compromise the application of the paramountcy principle in a subsequent consideration of the care application. I shall therefore consider the care application first in this instance.
I have considered also whether or not pursuant to Article 8 of the European Convention on Human Rights the granting of a care order in this case would be liable to interfere with the private or family life of J and M and I have recognised that such an order would require justification with regards to the best interests of the child and must be a proportionate response to the matter now before me.
I am satisfied that the threshold criteria have been met in this instance and on the basis of the factual findings that I have made I am satisfied that this child is likely to suffer significant harm if such an order is not made. The facts reveal the deteriorating pattern of behaviour on the part of both J and M and I do not consider that either party is much attuned to a change in lifestyle or to suitable rehabilitation with this child. The evidence of the Trust witnesses has been compelling and untainted. Regretfully the characters of both J and M are defined by their flaws and those flaws are highlighted by the instances of unbridled alcohol abuse, substances abuse, domestic violence, mental instability, volatility of their relationship and involvement in crime. I have no hesitation therefore in concluding that the threshold criteria have been met.
I have considered the care plan and I am satisfied that it is appropriate in all its salient aspects. I have also considered the welfare checklist under Article 3(3) of the 1995 Order and I have concluded:
(a) The child is too young to ascertain her wishes and feelings.
(b) Her physical, emotional and educational needs all require the stability and security of a family life without the flaws evident in J and M and which will not expose her to the clear dangers that exist in this case.
(c) The child is now with carers who look after her well and I am satisfied that the effect of any change in these circumstances would be grossly detrimental to the well-being of this child.
(d) She is of very tender years and that in itself is another reason why she needs appropriate care and attention.
(e) I am satisfied for the reasons I have set out that the behaviour of J and M puts this child at risk of suffering grave harm.
(f) For the reasons I have set out in the factual findings, neither of these adults are capable of meeting the needs of this child.
(g) I have considered the range of powers open to me under this Order. I am satisfied that only a care order will afford appropriate protection for this child from the dangers that are clearly operating in the context of this family background.
Under Article 3(5) I have considered whether or not to make any order in this case but in the circumstances it is my conclusion that to make a care order would be better for this child than making no order at all.
Finally before making a care order I have looked at the question of contact. For reasons which will appear clear from the next order that I now move on to, I do not intend to make any order about contact.
In all the circumstances I consider it proper to make a care order.
(2) The statutory provisions governing applications to free for adoption are to be found in the Adoption Order (Northern Ireland) 1987 (hereinafter called "the 1987 Order"). Article 9 sets out the duty to promote the welfare of the child as follows:
"In deciding any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall:
(a) Have regard to all the circumstances, full consideration being given to;
(i) the need to be satisfied that adoption or adoption by a particular person or persons would be in the best interests of the child; and
(ii) the need to safeguard and promote the welfare of the child throughout his childhood; and
(iii) the importance of providing the child with a stable and harmonious home; and
(b) So far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them having regard to his age and understanding."
Article 16 states where relevant:
"(1) An adoption order shall not be made unless –
(a) The child is freed for adoption by virtue of an order made in Northern Ireland under Article 17(1) of 18(1) ... or
(b) In a case of each parent or guardian of the child the court is satisfied that –
(i) he freely and with full understanding of what is involved agrees –
(aa) either generally in respect of the adoption of the child or only in respect of the child by a specified person, and
(ab) either conditionally or subject only to a condition with respect for the religious persuasion in which a child has to be brought up, to the making of an adoption order; or
His agreement to the making of an adoption order should be dispensed with on the grounds specified in paragraph 2.
(2) The grounds mentioned in paragraph (1)(b)(ii) are that the parent or guardian –
…
(b) Is withholding his agreement unreasonable."
The freeing of a child adoption without parental consent is dealt with in Article 18 which insofar as it is relevant is as follows:
"(1) Where, on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an adoption order should be dispensed with on the grounds specified in Article 16(2), the court shall make an order declaring the child free for adoption.
(2) No application shall be made under paragraph (1) unless –
(a) The child is in the care of the adoption agency (and having made a care order I am satisfied that that is the case in this instance); and
(b) The child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption."
I pause to state that I am satisfied in this case that it is likely this child will be placed for adoption given the carers with whom she now resides.
I am satisfied having regard to all the circumstances to which I have outlined in my factual findings, adoption will be in the best interests of this child. The pattern of maladaptive behaviour in which J and M have engaged is such that this child needs to be safeguarded and her welfare promoted in order to ensure that she has the kind of stable and harmonious home which quite obviously is not available to her with J and M. She desperately needs security, stability and protection which I believe only adoption can afforded her. Rehabilitation has now been tried on a number of occasions and I do not believe that this child can wait any longer before being afford the security and permanence she requires. Neither J nor M possess the motivation to change. Even if they did, I doubt very much whether they have the capacity to change. Each is beset by an overwhelming number of issues in their lives, not simply confined to alcohol or drugs, which they are unable to face. This child can no longer be exposed to these risks nor to the vague indications of their intention to change or alter their lifestyle. I have no doubt therefore that adoption is in the bests of this child.
I move then to consider whether or not there are grounds to dispense with the consent of the two parents J and M and whether grounds of dispensation have been proved on the balance of probabilities.
The consideration of whether parental consent should be dispensed with must be undertaken and decided at the time when the freeing for adoption order is made. The leading authority on the meaning of the ground and the test that the court should apply is Re W (an infant) (1971) 2 AER 49. During the course of the leading opinion Lord Hailsham described the test in this way:
"The test is reasonableness and nothing else. It is not culpability. It is not indifference. It is not failure to discharge parental duties. It is reasonableness and reasonableness in the context of the totality of the circumstances. But although welfare per se is not the test, the fact that a reasonable parent does not pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor. It is relevant in all cases if and to the extent that a reasonable parent must take it into account. It is decisive in those cases where a reasonable parent must so regard."
In Re C (a minor) (adoption: parental agreement: contact) (1993) 2 FLR 260 the court suggested that the test may be approached by the judge asking himself whether having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appears sufficiently strong to justify overriding the views and interests of the objecting parent. That is an approach that has received further judicial approval in Re F (adoption: freeing order) 2000 2 FLR 505. In addition the principles dealing with such applications are set out helpfully in Hershman McFarlane, Children Law and Practice, Section H at paragraph 124. I consider that this author accurately sets out the main components of the test of unreasonableness as follows:
(1) The reasonableness of the parents refusal to consent is to be judged as at the date of hearing. I have done this.
(2) The judge must take account of all the circumstances of the case. In coming to my conclusion I have taken into account all the factual findings that I have made and all the evidence that has been heard before me.
(3) Whilst the welfare of this child must be taken into account I have not regarded it as the sole or necessary paramount criterion at this stage.
(4) I have recognised that the test is an objective test. Could these parents as reasonable parents withhold consent.
(5) I recognise the test as reasonableness and nothing else.
(6) I have been wary not to substitute my own view for that of a reasonable parent.
(7) I recognise that there is a band of differing decisions, each of which may be reasonable in any given case.
I have also considered whether or not a freeing order is a proportionate response to the needs of this case and of this child.
Applying all these tests I have come to the conclusion that any reasonable parent, being aware of the flaws that exist in the lifestyle and character of J and M, would not withhold consent. Any reasonable parent in the position of J and M would recognise that they are simply unable to cope with this child or to protect her from obvious danger and significant harm. The abuse of alcohol and drugs, the instability of their relationship, the life events with which they have failed to grapple their inability to care for A and their persistent refusal or inability to accept help to change all persuade me that the withholding of consent is not reasonable.
Accordingly I have come to the conclusion that an order freeing this child for adoption should be made and that I should dispense with the consent of J and M.
I have looked at the question of contact in this case. I recognise that having made a order freeing this child for adoption, the care order would be discharged and a contact order under Article 8 can now be made. However it seems to me that the views expressed by the guardian in the context of contact in the future are apposite. I think the flexibility of the no order principle should apply in terms of contact and that I should not impose any strictures on the Trust. Flexibility is vital in a case such as this where the behaviour of the parents is so unpredictable. However in essence it seems to me that parents should be afforded up to two opportunities to make final visits to the child and that it probably is more humane to space those two opportunities out so that they can gradually break their final bonds. Perhaps a month in between the two meetings would be appropriate. Thereafter I do not fetter the discretion of any adoption hearing but it seems to me that post-adoption contact of any kind may have a limited value. However that can be assessed at the time that the adoption order is made if there is to be such an order.
