Abstract
SZ v A Health and Social Care Trust
The High Court, Belfast
O’Hara J
4 March 2015
This was an appeal against a decision made in a Family Proceedings Court in autumn 2014 to free four siblings for adoption without the consent of their parents: the appellant SZ, the mother of all four, the identity of the father of the eldest child being unknown, and AF, the father of the other three children, who was not appealing the freeing order. The team of lawyers representing the appellant did so on a pro bono basis as legal aid had been refused for the appeal.
Background
The appellant was 26 years old and her four children were aged from six-and-a-half to ten-and-a-half years. Concerns about her care for the children and the care provided by AF had been ongoing for many years. Interim supervision orders in respect of each child were first made in 2010 and continuously renewed until replaced by interim care orders in 2011. The children were taken into care the following year and full care orders made in January 2014, with the plan that all four would be freed for adoption. Those orders were made in the Family Proceedings Court, opposed by the parents but dealt with by way of legal submissions only; no evidence was called and there was no appeal from that decision.
The judge at first instance requested that the parties draw up an agreed factual background extending to nine paragraphs, in which the major difficulties which the parents’ conduct had caused were set out. These problems had had a significant negative impact on the children. The judge then heard oral evidence from the Trust, from both parents and the guardian. She formed the view that the father was under the influence of drugs even as he gave evidence before her. She was also unimpressed with the appellant, e.g. referring to her ‘lame excuses’ for not arriving at contact with her children on time. O‘Hara J drew attention to the following points from that judgement:
The trial judge described the neglect suffered by the children as being ‘at the highest end of the scale’. She recorded that the appellant accepts that she is unable to care for the children at this point but aspires to do so at some unknown point in the future. For that reason the appellant wanted the children not to be adopted but to remain in long-term foster care. She noted that the appellant had taken some steps to make changes in her life but ‘there is a long way to go’. She considered the circumstances of each child in some detail. She considered the interests of the children in the context of long-term foster care as against adoption, and did so specifically with reference to their views about contact, the sad reality being that none of the four children wanted to see their mother. There had been no contact with her for coming up to a year, the precise dates varying between each child. She concluded that there was a need for regular contact with the birth parents, which would justify a refusal to free the children for adoption – a significant point because the extent and quality of contact between children in care and their parents matter a lot when deciding whether parents are unreasonably withholding their consent to adoption.
O’Hara J noted that an important factor in this appeal was that the four children were together in the same placement with their prospective adopters. They had been separated into two pairs when taken into care in 2012. In 2013, the oldest and youngest children moved to their current home, followed in December 2013 by the middle two, and they had thus been together for the preceding 14 months. This settled placement had worked well and continuously for an appreciable time, a fact acknowledged by the appellant specifically, who welcomed the progress the children had made, was relieved that they were together and was happy with the excellent care provided to them.
Grounds of appeal
As the grounds of appeal were identical in the case of each child, O’Hara J dealt with them in the way they were presented by the appellant’s representative, noting that he was not asked to hear any evidence save in one respect.
Grounds 1 and 2
Whether the trial judge was correct to have refused the mother an independent parenting assessment as a single mother in light of her separation from the father and whether she failed to place sufficient weight on the positive changes made by the appellant, which are relevant to her potential to care for the children in the future
O’Hara J noted that an application had been made, and rejected, to the trial judge at the start of the freeing hearing to adjourn it to allow for a fresh assessment of the appellant. He was of the view that, given the history of the proceedings, that decision was beyond challenge: support and assistance had been offered to the appellant since 2009 and it was her attachment to her ex-partner that left her in a state where she did not accept, or accept consistently, the offers that were made. As the judge had said, the mother’s recent efforts had been more promising but there was still a long way to go and the youngest child was already six-and-a-half years old. O’Hara J concluded that there was no arguable basis for these grounds of appeal and they both failed.
Ground 3
Whether the judge was wrong in making findings of fact in relation to recent disclosures by the children as those allegations were untested
O’Hara J noted that, at the earlier hearing when the social workers and parents gave evidence, recent disclosures made by the children were raised and the parents had been cross-examined about them. He commented that those disclosures were not in truth fresh allegations at all, rather they were examples or illustrations of what had gone wrong in the past. It was not at all clear to O’Hara J that the trial judge did make additional findings, but the fact that the children were making disclosures was relevant to their desire to see their mother, to the possibility of any rehabilitation and to the question of whether the mother’s consent was being withheld unreasonably. He concluded that there was no basis for appeal on that ground.
Grounds 4 and 5
Whether the trial judge gave sufficient attention to alternatives to the freeing application, such as long-term fostering, and failed to place sufficient weight on the benefits of this for the children as opposed to adoption
O’Hara J explained that these grounds formed the main focus of the appeal: ‘It is common cause that children should only be freed for adoption when that step is necessary. It is no longer enough that it is a better option that children be adopted than kept in foster care. It has to be the necessary option. It is also generally accepted that the younger children are when they are freed for adoption, the better are the prospects of finding them a suitable placement which will not break down.’
He accepted that of course freeing comes with no guarantees – adoptions do break down and the consequences for the children can be traumatic – and that ‘at least two and arguably three of these children are at or beyond the normally accepted and preferred upper age limit for freeing’. For that reason, the appellant’s representative had submitted that the appeal should be allowed on these grounds and the issue of long-term foster care should be re-opened. As an alternative, O’Hara J considered that he could opt to resume the appeal by opening this aspect and hear evidence about research findings in relation to older children being placed for adoption.
The appellant’s representative also contended that there was little evidence that long-term fostering was seriously considered at either the relevant Looked After Child (LAC) Review in 2013 or by the adoption panel at its meetings. O’Hara J had, however, been provided with copies of the minutes of those meetings and they showed that the chairwoman of the LAC Review specifically advised that in addressing the care plan for all four children the options were rehabilitation to one or both parents, long-term foster care or permanency by adoption, and only then was the option of permanency by adoption selected. Further minutes from an adoption panel meeting in August 2013 had also been provided, which included a specific discussion of the options with the panel agreeing that ‘adoption would appear to be the preferred option for the children …’
Accepting that long-term foster care was in fact discussed, O’Hara J added that ‘in light of recent case law, which may not have been known to the panel at the time, the true question is whether the option is the necessary one rather than the preferred one’. He recounted that the panel had had to consider the options for the children again in September 2013, in the context of the assessment of a kinship carer as a possible alternative for some or all of them, and again in October 2014, to consider a report about how suitably the children were matched with the prospective adopters. He noted that ‘the absolutely clear conclusion was that they were appropriately matched’.
As O’Hara J went on to explain: ‘If this case involved four children aged six-and-a-half to ten-and-a-half years who had not yet been placed for adoption, the submissions made by … would carry some weight because there would inevitably be questions about the likelihood of placement, whether they would stay together or be separated and what the timescale of any adoption might be. Luckily for them that is not the position here. The children are not only together in one place but they have been there for well over a year. Their progress has been monitored and has exceeded expectations. The current carers, with support from social workers, teachers, their church and others, have helped the children settle, adapt to each other again and develop.’
That being the case, he considered it unnecessary to hear any evidence about what research suggests might happen or would be likely to happen with children of these ages. He added: ‘These children were badly damaged in the care of their parents. They do not want to see their mother much less face the prospect of returning to her care at some entirely unidentifiable point in the future. The prospect of them all returning to her care together is even more remote. Sad as it is, and it is truly sad, there are no compelling reasons for these children in these circumstances staying in long-term foster care.’
On the contrary, he believed that the trial judge was absolutely correct in reaching her decision that it was necessary to free the four children for adoption.
Ground 6
Whether the decision was wrong and disproportionate, especially in light of the mother’s right under Article 8 of the European Convention of Human Rights
O’Hara J was satisfied that the mother’s human rights would be appropriately recognised in the way in which the need for adoption is required if an order freeing children were to be made. He considered that this must have been in the trial judge’s mind, given her experience as a family judge, and all of her reasoning and analysis was consistent with that being the case. He had been particularly struck by the way in which the trial judge had avoided prescribing contact in any limited way, thereby keeping open the possibility of contact in the future, depending on the mother’s progress and the individual and collective progress of the children – an approach he viewed as being consistent with her trying to protect some last link between the appellant and her children.
O’Hara J concluded by expressing his hope that the appellant’s personal progress continued and that his judgement, which he conceded would inevitably be distressing for her, would not lead to her becoming excessively discouraged. He added: ‘Her children are too old ever to forget her. If she starts to make indirect contact, with which the Trust has offered to assist her, she may re-open the door to seeing one or more of the children again.’
Held
All four appeals dismissed, affirming the orders that each child be freed for adoption.
Comment
There are problems with appeal hearings: O’Hara J did not have the benefit of seeing the parties and hearing the evidence at first hand; it is likely that the refusal of legal aid would have sent a negative advance message regarding the merit of the appellant’s case. One such unsatisfactory area lies in the apparent disconnect between the final two points listed by O’Hara J in his summary of the the initial judgement. It would have been interesting to have had some exploration/explanation of why, if ‘none of the four children wanted to see their mother’, the trial judge considered that ‘there was a need for regular contact with the birth parents which would justify a refusal to free the children for adoption’. However, given the facts as presented, there can be little doubt that adoption is the ‘necessary’ not just the ‘preferred’ option. It is certainly reassuring to know that all four siblings will now experience settled, safe family life together in a placement that has been well tested.