In the matter of Ruby (Care proceedings)

We were assisted by an analysis of the welfare checklist and the options available to the Court by both the social worker, Ceri Owens, and the guardian and two principal points emerged:-

Fortunately for the child, and the mother, the child's maternal aunt had stepped forward after the maternal grandparents had withdrawn their own application for understandable reasons. The maternal aunt had been positively assessed as an adopter. She has her own daughter who is aged 8 and intended ceasing work until the child was of school age, so that she could fully focus on them both, in particular during the period of transition.

Of the options available to the Court, no order was out of the question, as that would leave the child under the sole parental control of the mother and a supervision order would be equally unsuitable for the same reason. The choice was between a residence order in favour of the maternal aunt or adoption.

The discussions in relation to a residence order had been informed to some extent by the experience of the maternal grandparents looking after the older two children, with the mother still having a role as a mother; something she struggles to fulfil, and which had caused the older children confusion. It is witnessing that experience that made the maternal aunt clear that she wished to adopt.

The benefit of adoption in favour of the maternal aunt is that it would give the child permanence but within the same wider family. It will be open adoption, so that the mother would be able to enjoy contact with the child and see her growing up. There was also the practical advantage that adoption will assist the maternal aunt financially, as she would get support from her employer (including adoption leave) whilst serving out her notice and from Social Security.

As the amicus curiae said, the child is entitled to stability and to a permanent home where she understands her place within the family. Having regard to Article 3 of the Adoption Law, we agreed with counsel that in the circumstances of this case, adoption is both necessary and proportionate.

The mother is the only "parent" for the purposes of the Adoption Law and the mother's consent is required for the child to be freed for adoption, unless consent can be dispensed with on any one or more of the grounds set out in Article 13(2) (of the Adoption Law) which is in these terms:-

In terms of withholding consent unreasonably, the Court of Appeal decision in Re F & G is authority for the proposition that the Court must ask itself two questions:-

As made clear in Re F & G , the test is an objective one. Withholding consent causes delay and uncertainty, leaving the child in the care of the Minister and depriving her of the opportunity of a permanent home. That is not reasonable and, assuming capacity, we found that the mother was therefore withholding her consent unreasonably.

However, the Court was on notice that there were issues as to the capacity of the mother, which could not be resolved as a consequence of her refusal to cooperate with the agencies in any way at all. What we did know is that she had learning difficulties and was vulnerable. The guardian, when she met her, felt that the mother did not have any real understanding of the issues at stake.

That being the case, and for the avoidance of any doubt, the Court also found that the mother's consent could be dispensed with on the ground that, although the child had been removed from the mother at birth, the mother had since abandoned the child (Article 13(2) (d)) and, quite separately, that the mother was incapable of caring for the child (Article 13(2) (g)).

An issue arose as to whether the mother had been duly served with the Minister's representation seeking a freeing order. For reasons which were unclear, the Minister had not sought leave to serve the representation on the mother, but on the amicus curiae instead. She, of course, did not represent the mother. Notwithstanding her complete lack of cooperation, there was a possibility that the mother did not know that a freeing for adoption order was being sought by the Minister.

Accordingly, the Court made a care order in favour of the Minister, approving the care plan for adoption and contact arrangements, which enabled the planned introduction of the child to the maternal aunt from the foster carers to proceed without delay, but adjourned the application for a freeing order so that the mother could be served both directly (with a letter in appropriately clear and non-technical language settled by counsel to be read to her by the Viscount if possible) and by way of substituted service through the maternal grandparents, who she saw from time to time, with a request that they also read the letter to her. Leave was also given for the content of the covering letter to be shared with the tenant support worker of the home where the mother lives and with the adult social worker, so that they could also inform the mother of the application should the opportunity arise.

At the adjourned hearing, the Court was satisfied that the mother had been duly served in the manner directed and that every effort had been made to communicate to the mother the order being sought by the Minister.

The mother did not appear and indeed, there had been no response from her at all. The child had by then been placed with the maternal aunt and had settled well. Furthermore, we were told that the mother had visited the child and the maternal aunt. This had gone well, the mother keeping within appropriate boundaries. It will be 13 weeks before the maternal aunt can apply to adopt the child and whilst nothing is guaranteed, it seemed to the Court that the maternal aunt, supported by the maternal grandparents and wider family, had stepped in, in circumstances that must have been difficult for them, to care for the child and provide her with permanence - permanence that would not deprive the mother of all contact with the child. In the circumstances, there could be no better outcome for the child and we therefore freed her for adoption, being satisfied that all of the formalities required under Article 12 of the Adoption Law had been complied with.