Northern Ireland

A Health And Social Care Trust V A Mother And A Father

In the Matter of GA (A female child aged 13 months)

The High Court

McFarland J

Delivered 31 May 2023

Introduction

GA, 13 months old at the hearing, has an older full sister, six older maternal half-siblings and one older paternal half-sister. The maternal half-siblings are all in the care system of the Republic of Ireland and the mother has no contact with any of them; the father has no contact with the paternal half-sister, and neither parent has had contact with RH, their older child who was freed for adoption in 2022, nor with GA since 2022. GA became the subject of an emergency protection order on the day of her birth, followed by a care order, and was subsequently moved to her present concurrently approved placement at the end of the year.

This court hearing was initiated by a Trust application for a care order with a care plan of adoption and an order freeing the child for adoption. Both parents refused to submit written statements in advance of the hearing and were aggressive and unco-operative throughout the proceedings.

Threshold

McFarland J began by noting that GA had just been born and was in hospital when the Trust applied, asking the court to find that at that time GA was likely to suffer significant harm in the care of her parents. The court must be satisfied that this was ‘a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case’.ⁱ While acknowledging that a significant part of the threshold factual background relies on previous harm suffered by the older full and half-siblings, he added, ‘This is, of course, relevant but the court must exercise caution as previous findings of harm and threshold in relation to other children do not necessarily mean that threshold is satisfied for another child.’ He quoted the observation made by Wilson LJ: ‘… it is necessary to consider each child separately even if in many cases a risk to one is a risk to all’.ⁱⁱ

McFarland J explained that the facts underpinning the Trust’s case against the mother related to her experiences in the Republic of Ireland where all six children were removed from her care and were now in long-term foster placements without any maternal contact. He referred to evidence of poor, unhygienic and chaotic living conditions, exposure to domestic violence, and the mother’s failure to protect the children. He went on to explain that the Trust’s case against the father focused on his volatility and aggression in his family relationships and in his presentation to social work and health professionals. Finally, in respect of their presentation as a couple, McFarland J noted that the Trust relied upon the findings relating to the older full-sibling and issues arising prior to GA’s birth, including poor antenatal care that included a failure to attend for eight scans and three midwifery appointments. He added that the Trust also relied upon the focus of the parents on their ‘fight’ with statutory agencies, which impedes their ability to develop insight, to work in partnership and to make the necessary changes.

In the circumstances, McFarland J found that the threshold requirements were proven. He was satisfied that the Trust had shown that at the time of her birth there was a real possibility that GA would suffer significant harm attributable to the care likely to be given to her by her parents.

Care Planning

McFarland J was of the view that there was a compelling need for the Trust to exercise parental responsibility for GA. He considered there to be clear evidence that when the parents had been involved in undertaking parental responsibility they had failed to prioritise GA’s welfare, most obviously when they refused to register her birth and did not do so until GA was nine months old. Other evidence was their refusal to permit health staff at the time of GA’s birth to undertake routine measures to alleviate distress and assist in her care. There had also been a failure to attend routine medical appointments.

Noting that the care plan was one of adoption, and that the Trust had lodged its application to free GA for adoption, McFarland J referred to the Supreme Court judgement in Re H-Wⁱⁱⁱ when it advised that the court must determine that it is both necessary and proportionate in order to satisfy the state’s obligation under Article 8(2). He stated that:^iv

A proper holistic evaluation of the realistic options for the child is required. This evaluation should consider the likelihood that if left in the parents’ care GA would suffer harm, the consequence of such harm arising, the possibility of reducing or mitigating the risk of harm and the comparative welfare advantages and disadvantages of the options presented.^v This evaluation will result in the court arriving at an appropriate decision with the child’s welfare as its paramount concern, bearing in mind the draconian nature of an adoption order and the need to ensure that it is always regarded as a last resort as a care planning option. That last resort can only be reached after all other realistic options have been eliminated.^vi

McFarland J recognised that the positive aspects of rehabilitation would be GA remaining within her birth family with all the obvious benefits of such a placement, but on the negative side would be an inability on the part of either parent to promote the physical and emotional needs of GA coupled with the certainty that neither are likely to seek out assistance from social services, medical staff and other agencies. There is every prospect that the Trust’s efforts to monitor GA should she be placed in her parents’ care would be actively resisted or avoided. Even looking at this case in the most positive light as far as the parents are concerned, he thought it difficult to identify any method, such as using a court order or other provision, that would lead to the mitigation of risk. The Supreme Court had stressed the need for a court to ‘consider the possible reduction or mitigation of the risk which pertains and the welfare advantages and disadvantages of imposing an order’^vii and later stressed that this involved consideration of the range of orders available, a direct reference to Article 3(3)(g) of the Children (Northern Ireland) Order 1995 (part of the welfare checklist). Having reflected on the orders available, McFarland J was of the view that none would be likely to provide a framework for a care plan which involved allowing GA to live with her parents. He therefore concluded that rehabilitating GA into the care of her parents was not a realistic option and as there were no members of the wider family available or suitable as potential carers, that left the options of either long-term foster care or adoption.

McFarland J advised that the analysis carried out by the Trust and the guardian supported adoption as an appropriate care plan and he agreed. In support of this choice, he quoted from the judgement in Re V^viii in which Black LJ had set out the principle differences for the child of fostering and adoption:

Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to ‘feel’ different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement.

He accepted that ‘adoption is a draconian order’ but in the extreme circumstances of this case he believed it to be the only realistic option that would preserve and enhance the wellbeing of GA. While the contact arrangements within the care plan envisaged the potential for contact with the parents, this could only happen after meaningful engagement by them with the Trust and then a suitable regime would need to be put in place to protect GA, her placement and Trust staff. Given their current views as expressed in their evidence to the court, the parents were not ready to undertake the necessary preliminary work. McFarland J noted that contact with the parents was proposed for every three months post-freeing, and every year post-adoption and, while inter-sibling contact had also been considered, the authorities in Ireland advised that this would not be in the interests of the half-siblings at this time.

Freeing For Adoption

McDonald explained that the freeing process involved the court determining a two-fold test: first in relation to the welfare of the child, a test which, he considered, replicated the evaluation already undertaken in determining the proportionality and necessity of a care plan involving adoption, and was therefore satisfied; the second concerned dispensing with the need for parental consent which could be achieved if the court considered that it was being withheld unreasonably. He pointed out that this was an objective test requiring the court to consider the circumstances of the parents in this case but to endow them with a mind and temperament capable of making reasonable decisions.^ix In his opinion:^x

A reasonable parent is bound to give significant weight to what is in the best interests of his or her child. Such a parent would also take into account the attachment it has established with the child and the commitment the parent has towards the child and how the parent manifests that commitment… Reasonable parents would consider all the relevant circumstances relating to GA’s life and reasonable parents would recognise that rehabilitation to them is impossible, that they have had only sporadic contact with her, and that neither parent has been able to parent the eight older children, either by themselves, with their then partners and as a couple in relation to the youngest two children. A reasonable parent would recognise that adoption is the only realistic option in this case.

Notes

Quoting from Re H and others [1996] AC 563, per Nicholls LJ at 585F

Kerry O’Halloran, lawyer, social worker and academic, prepared these notes.