Judgments - Down Lisburn Health and Social Services Trust and another (AP) (Respondents) v. H (AP) and another (AP) (Appellants) (Northern Ireland)

(back to preceding text)

    43.  A subsequent shift in opinion occurred towards what is termed "openness", favouring the continuation of contact between the natural parents and the child following adoption. The reasoning was articulated in the White Paper, Adoption: the Future (1993) (Cm 2288) paras 4.14 -4.16:

    "4.14.  There has been an increasing tendency in recent years to favour maintaining some contact between an adopted child and his birth family where possible. This may in part reflect the increased average age of children being adopted, and in suitable cases a degree of such contact may well be desirable. However, the Government considers that once an adoption order is made, the most important objective is to support the new family relationship.

    4.15.  Where the birth parents wish to maintain direct contact, provided there is free consent by the child and the new family, this should generally be allowed. If the adoptive parents oppose the prospect, their views should have the greater weight though where older children are adopted out of families with whom they have formed a bond the issues need particularly careful judgment and the child's view will be correspondingly significant.

    4.16.  Each case must be considered on its merits and there can be no central blueprint. By regulation, the Government intends to ensure that the courts and adoption agencies will assess the most suitable arrangements for contact between the birth family and the child after his adoption."

This approach was strongly espoused by Professor Triseliotis in his reports and oral evidence in the present case.

    44.  There have been some differences of opinion in the published literature about the desirability of contact, which is propounded by some as universally beneficial, while others are more cautious and urge a degree of flexibility of approach and avoidance of doctrinaire policies. They point out that in the wrong case contact can lead to disturbance of the children and impose a significant burden on the adopting parents. There is, however, general agreement that in appropriate cases contact can contribute to reassurance and security and a feeling of identity for adopted children and help to dispel feelings of rejection. The courts have accepted the validity of this proposition: see, for example, the judgment of Simon Brown LJ in In re E (A Minor) (Care Order: Contact) [1994] 1 FLR 146, 154-155:

    "I recognise of course that the threshold criteria for a care order under section 31 of the 1989 Act require the court to be satisfied that a child is suffering or is likely to suffer significant harm attributable to inadequate parenting and that that inadequacy would normally be attributable to the quality of the parent/child relationship. Nevertheless, although the value of contact may be limited by the parents' inadequacy, it may still be of fundamental importance to the long-term welfare of the child, unless of course it can be seen that in a given case it will inevitably disturb the child's care. In short, even when the section 31 criteria are satisfied, contact may well be of singular importance to the long-term welfare of the child: first, in giving the child the security of knowing that his parents love him and are interested in his welfare; secondly, by avoiding any damaging sense of loss to the child in seeing himself abandoned by his parents; thirdly, by enabling the child to commit himself to the substitute family with the seal of approval of the natural parents; and, fourthly, by giving the child the necessary sense of family and personal identity. Contact, if maintained, is capable of reinforcing and increasing the chances of success of a permanent placement, whether on a long-term fostering basis or by adoption."

It can be beneficial in many respects where the conditions are right, and a level of common agreement among the parties is strongly conducive to this. It does appear clear that the attitude of the birth parents, as well as that of the adopting parents, is of critical importance, and I would endorse the qualification expressed by Simon Brown LJ in the passage which I have just quoted. When considering post-adoption contact courts must exercise care in assessing the effect which contact is likely to have on the particular child in the particular circumstances of the case, bearing in mind the paramountcy of the welfare of the child, given statutory recognition in article 9 of the 1987 Order and article 3 of the Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2).

    45.  Freeing orders, as both the judge and the Court of Appeal stated, are draconian in nature, in that they extinguish at that stage of the proceedings the parental responsibility of the natural parents for the children and declare that they can be adopted, so in effect terminating virtually all the rights of the natural parents in respect of the children and their upbringing. It may be observed, however, that adoption orders themselves have the same ultimate effect and that freeing orders have the effect of moving forward a stage the extinction of the parental responsibility of the natural parents and the consideration of whether the court should order that their agreement should be dispensed with. Under previous legislation that issue had to be decided by the court when determining whether to make an adoption order in the absence of parental agreement (see the Adoption Act (Northern Ireland) 1967, section 5), and it has to be decided at that stage under article 16 of the 1987 Order if no freeing order has been made. Freeing orders were a new concept, first introduced in England and Wales by the Children Act 1975 (though not in operation until 1984) and in Northern Ireland under the 1987 Order. Their effect in England and Wales, which was the same as in Northern Ireland, was described by Butler-Sloss LJ in In re A (A minor) (Adoption: Contact Order) [1993] 2 FLR 645, 648 in the following terms:

    "The effect of an order freeing a child for adoption is to extinguish parental responsibility of those previously endowed with it and thus to bring to an end the relationship between the child and his natural family (see Adoption Act 1976, section 12(3)). The child is in a sort of adoptive limbo and parental responsibility is assumed by the adoption agency, in this case, the local authority (section 18(5)). The parents become former parents, sections 18(5), 19 and have no right to make an application under section 8 of the Children Act 1989."

    46.  It appears that freeing orders were originally designed primarily as a means of allowing consenting parents to make a child available for adoption: The Prime Minister's Review Adoption (2000), para 3.66. They were welcomed in Parliament as a means of reducing uncertainty and concomitant anxiety for the birth parents, adoptive parents and children. But they came to be used to a greater extent to free children for adoption where parental consent was not forthcoming. Their purpose was described by Sir John MacDermott in In re KLA (An Infant) [2000] NI 234, 242 as being:

    "to find out if a child would be available for adoption before prospective adopters were found and their hopes frustrated if the adoption court ruled that consent was not being unreasonably withheld."

Although Nicholson LJ wished to qualify this statement in paragraph 21 of his judgment in the Court of Appeal, it does in my view remain as a correct expression of the underlying reason for making freeing orders in the majority of cases in which they are now sought. It was considered that there was a strong imperative to reduce the prospect of a contest between the prospective adopters and the parents at the adoption stage, which would tend to discourage adopting parents from accepting the children. It was found, however, that there was a risk that such applications could be brought prematurely - for an example see In re E (Minors) (Adoption: Parental Agreement) [1990] 2 FLR 397 - and strong criticism was voiced of the delays occasioned by the obtaining of freeing orders and of the "adoptive limbo" to which Butler-Sloss LJ referred in In re A (a minor). Since the coming into effect in December 2005 of the Adoption and Children Act 2002 freeing for adoption has no longer been available in England and Wales. It remains part of the law of Northern Ireland, however, and resort to freeing applications by health and social services trusts in that jurisdiction has been quite widespread, though not universal.

    47.  Before I turn to the facts it is convenient to set out the material provisions of the governing legislation. Article 9 of the 1987 Order provides that a court or an adoption agency shall regard the welfare of the child as the most important consideration and that they:

    "shall regard the welfare of the child as the most important consideration and shall -

    (a)  have regard to all the circumstances, full consideration being given to -

    (i)  the need to be satisfied that adoption, or adoption by a particular person or persons, will be in the best interests of the child; and

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

    (iii)  the importance of providing the child with a stable and harmonious home; and

    (b)  so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."

Article 12 provides for the making of adoption orders, paragraphs (1) to (3) providing as follows:

    "(1)  An adoption order is an order giving parental responsibility for a child to the adopters, and such an order may be made by an authorised court on the application of the adopters.

    (2)  The order does not affect parental responsibility so far as it relates to any period before the making of the order.

    (3)  The making of an adoption order operates to extinguish -

    (a)  the parental responsibility which any person has for the child immediately before the making of the order;

    (b)  any order of a court under the Children (Northern Ireland) Order 1995;

    (c)  any duty arising by virtue of an agreement or the order of a court to make payments, so far as the payments are in respect of the child's maintenance or upbringing for any period after the making of the order."

Article 16 deals with parental agreement. Paragraph (1) reads, as amended:

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

    (a)  the child is free for adoption by virtue of an order made in Northern Ireland under article 17(1) or 18(1), made in England and Wales under section 18 of the Adoption Act 1976 (freeing children for adoption in England and Wales) or made in Scotland under section 18 of the Adoption (Scotland) Act 1978 (freeing children for adoption in Scotland); or

    (b)  in the case of each parent or guardian of the child the court is satisfied that -

    (i)  he freely, and with full understanding of what is involved, agrees -

    (aa)  either generally in respect of the adoption of the child or only in respect of the adoption of the child by a specified person, and

    (ab)  either unconditionally or subject only to a condition with respect to the religious persuasion in which the child is to be brought up,

      to the making of an adoption order; or

      (ii)  his agreement to the making of the adoption order should be dispensed with on a ground specified in paragraph (2)."

The ground specified in paragraph (2) which is relevant to this appeal is that the parent or guardian "is withholding his agreement unreasonably." Article 18 then makes provision for freeing a child for adoption without parental agreement. The material parts for present purposes are paragraphs (1), (2) and (2A):

    "(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 a ground specified in article 16(2) the court shall make an order declaring the child free for adoption.

    (2)  No application shall be made under paragraph (1) unless -

    (a)  the child is in the care of the adoption agency; and

    (b)  the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption.

    (2A)  For the purposes of paragraph (2) a child is in the care of an adoption agency if the adoption agency is a Board or HSS trust and he is in its care."

    48.  The facts relating to the freeing application have been set out in full detail in the judgments of Gillen J and Nicholson LJ and it is only necessary for me to set out a summary of the material facts. N is the fourth child to be born to her mother H, who is now aged 35 years. H has three older children, a daughter H1 born in 1989, a son P born in 1991 and another daughter T born in 1996. All four children have different fathers. H has led a difficult and disturbed life, following a chaotic upbringing, and its story was justly described by Nicholson LJ as sad. She began drinking at the age of 13 or 14 and for periods since then has abused alcohol, with the consequence that she has for some time been an alcoholic. All of the children have been in care for varying periods, the history of which is fully recorded in the judgment of Nicholson LJ, and the two eldest are extremely disturbed and damaged young people. One of the factors upon which the judge placed some reliance in reaching his conclusions was that when H1 and P live with their mother their conduct is the cause of considerable conflict, with resultant stress upon H.

    49.  H and R commenced cohabitation in 1999 and apart from a period of separation before N was born have lived together since. In earlier days the relationship was violent at times, particularly when both had been drinking, and despite denials in H's evidence it appears clear that she had suffered serious assaults by R. Throughout her pregnancy H continued to abuse alcohol, in spite of warnings, and as soon as N was born she was made the subject of an interim care order and admitted to foster care. In August 2002 she was returned to her parents, with whom she spent the next 10 months, the only period in her life during which she has lived with them. During this period H was attending courses with Alcoholics Anonymous and R went to anger management courses. Unhappily H relapsed again and concerns arose in 2003 about her drinking and her ability to care for N. On 10 June 2003 a social worker found H and her three daughters, together with other persons, in a house which was described as a drinking den. N was in such a physical state that the social worker took her to a general practitioner. His Honour Judge Rodgers, who made a care order in 2004, described her condition in his judgment in the following terms:

    "It was thought at first that her legs were bruised but it transpired that they were simply covered with dirt. When they were washed they discovered she had eczema on her legs and bottom. She also had what [a social worker] described as the worst case of head lice infestation she had ever seen in a young child."

    50.  N and the other children were at once taken into care. An interim care order was made on 7 July 2003 and it was subsequently decided to refer her to the permanency panel and then the adoption panel. In November 2004 the adoption panel recommended adoption. The Trust applied for a full care order, which was made on 30 July 2004 by Judge Rodgers. In his judgment he expressed the opinion that N required permanence, which should be outside the birth family, and approved the care plan and the Trust's proposals for contact.

    51.  The Trust then in September 2004 brought an application for a freeing order, which was heard before Gillen J over a period of seven court days between January and April 2005. He gave a very full and thorough written judgment on 31 May 2005, in which he made a freeing order, but declined to consider the question of post-adoption contact, which he considered should appropriately be left for the judge who heard the application for an adoption order. He did state, however, that he accepted entirely the view of Professor Triseliotis that if at all possible N should have the benefit of continued contact with both parents at the frequency which he suggested.

    52.  The parents appealed to the Court of Appeal, which heard the appeal on 14 October 2005 and gave judgment on 22 November 2005, dismissing it by a majority. The parents brought a petition to the House for leave to appeal. By the time it came before the Appeal Committee on 8 March 2006 the Trust had found prospective adopters who were willing in principle to allow post-adoption contact. The Committee granted leave to appeal, on the understanding that N's placement with them under article 13 of the 1987 Order could proceed in advance of the determination of the appeal. N was accordingly placed with them on 12 April 2006.

    53.  The judge received evidence, both written and oral, from a battery of expert witnesses. Two consultant psychiatrists, Dr Allen and Dr Bownes, gave evidence of their findings after examination of H and consideration of reports. There was a large measure of agreement between them about the aetiology of her alcoholism and the prospects of her remaining abstinent in the foreseeable future. They both were of opinion that she suffers from alcohol dependence syndrome, though on her account and that of R she had not been drinking for some time, apparently from mid-2003, when N was removed from her care. She has good insight into her alcohol addiction. Dr Allen expressed the opinion that she suffered from a border-line personality disorder resulting from abuse in childhood, which had left her with an absence of understanding of good parenting. He considered that in addition to her abstaining from alcohol it was necessary to address this problem, which would take some time. Dr Bownes agreed with this diagnosis to the extent that he considered that alcohol was the self-medication to deal with her intrinsic deficiencies and extraneous stressors. Both psychiatrists accordingly were ad idem in considering that one of the important factors that will influence H's abstinence from alcohol is her ability to cope with the stresses and demands of family life, requiring unequivocal support from her partner and family. Dr Bownes expressed it in these terms at pages 12-13 of his report of 22 April 2004:

    "'Clearly the likelihood of H not experiencing a de-stabilisation of her support networks or the onset of insurmountable pressures from the present day to the time N achieves independence is extremely unlikely. If one examines closely the periods in the past that H relapsed to a state of alcohol dependence it is probable that there was a critical shift in the dynamics of her life and hence the periods of abstinence were not dependent solely upon her level of determination or commitment to avoid alcohol but rather her ability to cope with aversive external and internal negative influences.'"

It appears clearly that Dr Allen was in agreement with Dr Bownes' expression of opinion, notwithstanding the efforts of H's counsel in the Court of Appeal to escape this conclusion by parsing the oral testimony. Dr Bownes also stated his view, with which the judge agreed from his own observation of H when giving evidence, that she demonstrated "pseudo insight" with regard to the destructive nature of her own behaviour and the effects that this had had on her children. She does not demonstrate a high level of understanding at the emotional level: although she says what she considers should be said, this does not reflect her genuine beliefs at an emotional level.

    54.  Professor Triseliotis, a well-known expert in the field of adoption, was engaged jointly by the Trust and the guardian ad litem to give evidence at the freeing hearing, based on his examination of a variety of reports. The salient features were that N is a very needy, insecure and troubled child, lacking in core attachments, who required fairly soon to receive optimum parenting to develop the kind of attachment that she was missing. From his observation of a contact session he thought that she was demonstrating attachment to her parents which he described as significant, meaning by that a level less than strong. If H remained free from stress N could be returned to her, but the problem was that she was likely to give way under stress and the time span for her to repair herself fully and satisfactorily was too long. If a period of two years were to pass before she could return, the chances of her being rehabilitated were remote. He concluded, with regret, that he could not recommend N's return to her mother.

    55.  Professor Triseliotis expressed a strong view when giving evidence on 25 January 2005 that there should be continuing contact with the parents, perhaps three or four times a year, in order to reduce the possibility of the child's developing feelings of rejection and loss. If the Trust could not find prospective adopters who would facilitate direct contact he favoured long-term fostering instead. He had to defer completion of his evidence until 15 February 2005, by which time the Trust, which hitherto had been opposed to the idea of post-adoption contact, had modified its view on consideration of the evidence earlier given by Professor Triseliotis and was willing to make efforts to find prospective adopters who would accept the possibility of contact. When he resumed he indicated that he had changed, or at least modified, his own view. He still considered that continuing contact was important and should be achieved if possible. But he bore in mind his own conclusion that if N were returned to her parents and H resorted to drink again, even after a number of years, the results would be catastrophic for the child. Taking into account the altered stance of the Trust, he would now favour adoption, even if it proved impossible to find adopters who would agree to contact. He considered that every effort should be made to find such adopters, but concluded that if it could not be achieved he would, with some regret, "go for adoption". He did state, however, in his earlier evidence that if the adoption were to go through it was essential that the birth parents support the adoption plan. They had to let the child settle down and grow up more securely without undermining the adoption. It was in N's interest to have post-adoption contact, but it was an essential requirement that the parents must totally accept the adoption plan.

    56.  In his judgment the judge observed with regret that N's parents had constantly evinced hostility to public authorities and deep-seated refusal to co-operate with advice about change. In reaching his conclusions he correctly focused first on the issue whether adoption was in the best interests of the child. He expressed his finding on this issue at paragraph 18 in the following terms:

    "I have come to the conclusion that in this instance the medical evidence, and in particular that of Dr Bownes, has convinced me that there is no realistic possibility of H continuing to remain abstinent during N's childhood. Given the troubled background of this child and the damage that she has sustained to date, I am of the view that a further breakdown in this child's attachment would be catastrophic and that no court could reasonably expose her to that catastrophic risk given the history of this case. I have concluded that the only way to safeguard and promote the welfare of this child throughout her childhood and provide her with a stable and harmonious home is through the avenue of adoption."

    57.  The judge then turned to the issue whether, in terms of article 18 of the 1987 Order, he was satisfied that the parents' agreement should be dispensed with on the ground that they were withholding their agreement unreasonably. He set out his reasons in paragraph 21 of his judgment in a series of propositions, which I shall attempt to summarise. The child required desperately to move on and re-establish permanent attachments in a final move. He considered that she could not wait indefinitely for her parents to change. The results of a lapse by the mother would be so catastrophic, her history was so replete with failure to repair herself sufficiently and the prospects of future success were so fragile that he could not risk permanent damage to the child. The danger of history repeating itself was overwhelming. He thought that the return of H1 and P in 2003 contributed strongly to her return to drinking and that their challenging behaviour, added to the return of N, would be a recipe for disaster. The mother's attempt to place the blame on the Trust for failure to support her was not a legitimate grievance, as the Trust had taken all reasonable steps to afford her professional and expert help, only to be met with hostility from H and R.

    58.  Gillen J expressed his conclusions on the issue of post-adoption contact in paragraph 21(x):

    "It was argued that the reasonable hypothetical parents in this instance would be justified in withholding consent until they could be assured that any prospective adoptive parents chosen would agree to post adoption contact and that the Trust should have taken steps to identify such a couple before proceeding with this application. I reject that proposition. I am satisfied that the need for adoption for this child is so pressing that whilst it would be preferable that some limited measure of post adoption contact should be established if possible nonetheless adoption must proceed even if this cannot be achieved. Otherwise both parents could operate a veto on adoption by behaving so badly that no one would agree to post adoption contact. The crucial difference between the present case and the fact specific authorities to which Mr Hutton drew my attention eg. In re P (Adoption: Freeing Order) [1994] 2 FLR 1000 and In re C (Minors) (Adoption) [1992] 1 FLR 115, is that I share the view of Professor Tresliotis that if all reasonable efforts to find a couple who will embrace post adoption contact fail then the circumstances of the historical events of the past still make it imperative that the adoption should proceed. Any reasonable parent in my view would readily understand that. This is not inconsistent with article 8 of the ECHR but rather a careful consideration of the rights of this child as well as the rights of the adults."

It appears from the transcript of evidence (page C54) that in his reference to parents operating a veto on adoption by behaving badly the judge had in mind the period between freeing and the hearing of an application for an adoption order. The discussion in that part of the evidence was related to the possibility that misbehaviour on their part at that time might deter prospective adopters from going ahead with the adoption if post-adoption contact was going to be a necessary consequence.

 
Continue  Previous