Application of P: re Q and R

[2006] NSWSC 1234

CITATION:	Application of P - re Q and R [2006] NSWSC 1234
HEARING DATE(S):	9 and 10 November 2006
JUDGMENT DATE :	21 November 2006
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
DECISION:	Consent dispense orders made; adoption orders made.
CATCHWORDS:	ADOPTION – CONSENT – Whether children “stolen” from natural mother by DOCS – whether in the interests of the children that consents of natural parents to adoption be dispensed with – whether adoption orders should be made.
LEGISLATION CITED:	- Adoption Act 2000 (NSW) – Pt 9, s.8, s.23, s.48, s.52(1), s.67(1), s.70(1), s.90(3) - Children and Young Persons (Care and Protection) Act 1987 (NSW) – s.62A, s.72(1)
PARTIES:	Barnardos, Mr and Mrs P – Applicants Director-General of the Department of Community Services Ms S – Natural Mother Mr T – Natural Father
FILE NUMBER(S):	SC 80138/05
COUNSEL:	J.F. Merkel – Applicants G.W. Moore – Director-General of the Department of Community Services S. Cairns – Natural Mother In person – Natural Father
SOLICITORS:	Mallesons Stephen Jaques – Applicants Crown Solicitor – Director-General, Department of Community Services Johnson Horsley – Natural Mother In person – Natural Father

80138/05 Application of P: re Q and R

JUDGMENT
21 November, 2006

Introduction and issues

1 This is an application for the adoption of a brother and sister, the boy now being nine years and nine months old, and the girl now being nine years and one month old. The children’s natural parents, who separated some time ago, oppose the adoption. Accordingly, there are two parts to this proceeding: an application by the Principal Officer, Adoptions, of Barnardos Australia for an order dispensing with the consents of the natural parents under s.67(1) of the Adoption Act 2000 (NSW) (“the Act”) and an application by the adoptive parents for adoption orders under s.23 and Pt 9 of the Act. 2 The two applications are being heard together in conjunction, as is permitted by s.70(1)(b) of the Act, as most of the factual issues and judgments to be made in one application overlap with issues to be decided and judgments to be made in the other application. The fate of the application under s.67(1) will bear directly upon the fate of the adoption application. 3 For the sake of preserving the anonymity of the parties as is required by s.180 of the Act, I will refer to the adoptive parents as Mr and Mrs P, to the elder child as Q, to the younger child as R, to the natural mother as Ms S and to the natural father as Mr T. 4 Ms Merkel of Counsel has appeared for Mr and Mrs P and Barnardos, Mr G. Moore of Counsel has appeared for the Director General of the Department of Community Services (“DOCS”), Mr Cairns of Counsel has appeared for Ms S, and Mr T has appeared in person. 5 Mr Cairns has made it clear that Ms S does not refuse her consent to the adoptions because she seeks the immediate return of the children to her parental care and custody. He says that if Ms S’s consent is not dispensed with and the children remain in the foster care of Mr and Mrs P, Ms S will then be able to make application to the Children’s Court for more frequent access to the children and, ultimately, for their return to her exclusive care. 6 Mr T refuses his consent because he seeks an immediate return of the children to his exclusive parental care. 7 The issues for determination are:


– should the consents of Ms S and Mr T be dispensed with under s.67(1)(c) and sub-section (2) because “there is serious concern for the welfare” of Q and R and it is in their best interests to override the wishes of Ms S and Mr T;

– whether, in the particular circumstances of this case, it would be clearly preferable in the best interests of Q and R that they be adopted by Mr and Mrs P rather than left in their care as foster parents: s.90(3).



History

8    When the applicants opened the case they tendered four large volumes of documents. At the time, I queried the necessity for the tender of such voluminous material. As the case progressed, however, I came to realise that that query was unjustified: it is only by reading the files kept by DOCS and Barnardos that one can gain any real appreciation of the long-standing and deep-seated psychological impairments from which Ms S and Mr T are suffering, the emotional injury which has been inflicted by Ms S on Q and R, the persistent endeavours of DOCS and Barnardos to provide support for Ms S to enable her to continue caring for the children, and the inability of Ms S to avail herself of that support. The applicants and DOCS are to be commended for their thoroughness and care in bringing this material before the Court. 9    There has been a long history of violence and abuse between Ms S and Mr T; its ferocity and its physicality have been vividly demonstrated in the confrontations between them in the courtroom during the trial of this case. I will return to a description of this conduct in Court shortly. 10    There is relatively little evidence about Ms S’s childhood and upbringing. It appears that she had a very bad relationship with her mother and that her father died when she was eleven years old. She left home at the age of fifteen and a half years and described herself as “continuously in trouble” . She does not have contact with her family of origin. A psychological assessment of Ms S on 17 September 1999 concluded that her parenting difficulties with Q and R were explicable by the difficulties she herself had encountered as a child: Ex P1, p 100ff. 11    Less is known of the childhood and antecedents of Mr T. He described himself to me as drinking alcohol by the age of eight and living on the streets by the age of ten. Since the commencement of these proceedings he has steadfastly refused to divulge where he lives or how he can be contacted. I have arranged for affidavits and other material in the proceedings to be left for him at the Registry so that he may collect them whenever he chooses. He appears to have availed himself of that opportunity. 12    The following history is largely taken from the affidavit of Ms K. Stubbs, an officer of DOCS. The summaries and conclusions expressed in the affidavit are supported by file notes and contemporaneous records from the DOCS files, which are now in evidence. I have been taken to some of those files and records and have examined others for myself. I am satisfied that the summaries and conclusions expressed in Ms Stubbs’ affidavit are fully supported by the primary evidence. 13    Q was born on 1 February 1997, at only twenty-four weeks of gestation. He had severe complications in addition to his very premature birth and he remained in hospital until late June 1997, when he was discharged into the care of Ms S. 14    Even before Q’s release from hospital there were concerns expressed by social workers in the hospital as to Ms S’s ability to provide adequately for his welfare. An assessment report dated 20 March 1997 records that Ms S had an older child, born in 1988 who was in the care of his father (not Mr T), that Ms S was on probation for drug offences (mainly cannabis use) and that it was a condition of her bond that she seek drug treatment. 15    An assessment report of 27 May 1997 records as one issue of concern a refusal by Ms S to give up smoking cannabis, despite this being a breach of her bond conditions. In the witness box, Ms S defiantly insisted on her right to continue to use cannabis. 16    On 4 October 1997, R was born, at twenty-four weeks’ gestation. Like Q, R had severe complications in addition to her very premature birth and she remained in hospital for about four months. 17    In November 1997, Ms S obtained an Apprehended Violence Order against Mr T, preventing him from approaching Ms S and limiting his contact with R to supervised contact at the hospital. 18    Thereafter, Mr T appears to have frequently reported to DOCS that Ms S was abusing Q, resulting in several visits by DOCS officers to Ms S at her home during November and December 1997. These visits undoubtedly caused her great distress. However, DOCS was satisfied at that time that there was no risk of harm to Q. 19    On 28 January 1998, a report of risk of harm to R was received by DOCS. Hospital records showed that Mr T had threatened to remove R from hospital even though she was then dependent on the administration of oxygen. 20    On 28 January, R was taken into the care of the Director General pursuant to s.62A of the Children and Young Persons (Care and Protection) Act 1987 (NSW) (“the 1987 Act”) in order to prevent her removal from hospital by Mr T. 21    R was discharged from hospital on 6 February 1998 into the care of Ms S. On 9 February 1998, and following reports of risk of harm to DOCS, R was removed from Ms S’s care and admitted into hospital for three days. R remained in hospital until 12 February 1998, when she was returned to Ms S. DOCS arranged for medical supports, including the purchase of a baby monitor and for an enrolled nurse to visit Ms S’s home. 22    During 1998, Ms S requested and received regular respite care and support was given to her by the Department to assist her in the care of the children, including home nursing. 23    On or about 23 December 1998, the children were placed in crisis care for five days. A respite carer was arranged through Barnardos at that time. On 16 January 1999, Ms S telephoned DOCS and made a further request for respite care. The children were placed in crisis care with Barnardos’ carers for three days. The children were also placed with a respite carer for a further three days on or about 29 January 1999. 24    DOCS arranged for a case conference to be conducted with Ms S on 13 April 1999 to determine the present and future needs of the family and how they could best be met by relevant support agencies. Officers from DOCS and Barnardos attended the conference. It was resolved that Barnardos would provide regular respite for Ms S for one weekend every month. Other supports to be provided by DOCS included family support services and day care. 25    On 3 August 1999, a report of risk of harm was received by DOCS and on 11 August 1999, during the course of the investigation of this report, DOCS’ case workers interviewed Ms S. A transcript of the interview is in evidence. It reveals that Ms S was having severe difficulties with the children, but most particularly with Q, who was then two and a half years old. She admitted to constantly screaming and shouting at him, telling him that she hated him, that she bit him on the arm, that she had slapped his face, that she had hit him to the point of knocking him to the ground, that she hit him fairly often, and that he was frightened of her. She said that she was dreading the children returning to her after respite over a weekend and agreed that both children were at serious risk and would stay at risk if they remained with her. She said that even if she did not hurt them, she thought they would still be in danger because she would walk out and leave them. She said that she was living with a boyfriend (not Mr T), that he and she were using cannabis and smoking “a couple of cones a night” . She said that she had been using cannabis since the age of thirteen (she was then thirty) and was aware that cannabis can cause psychosis if used over a long time. 26    At the conclusion of the interview the DOCS officer informed Ms S that DOCS would take the children into temporary care for their safety. Ms S was advised that an application would be made to the Children’s Court for an order placing the children in the care of the Department. Ms S expressed no objection to this course: see Exhibit P1, pp 94-96. 27    On 13 August 1999 the Children’s Court found that the children were in need of care and protection and made an interim order giving parental responsibility for the children to the Director General. The matter was then adjourned so as to enable paediatric, speech pathology and other assessments to be conducted with the children. 28    Following their removal from the mother’s care the children continued to live with carers arranged through Barnardos. The Director General received regular reports in relation to the children’s placement and DOCS’ case workers participated in case planning meetings regarding the children. 29    On 23 August 1999, a case planning meeting was held at which were present a DOCS officer, a case worker from Barnardos, the temporary carer of the children and Ms S. During the course of the meeting it was agreed that Ms S would need to be referred to a psychologist for the purposes of an assessment. MS S said words to the effect “I want the children back but do not want access while they are in care as I can’t stand the screaming” . It was agreed that contact between Ms S and the children would be suspended, but subject to regular review. 30    A psychological assessment of Ms S was conducted on 17 September 1999 and the report is in evidence: Exhibit P1, p 100ff. It records that the current case plan is to work towards restoration of the children to Ms S if the children are not at risk. 31    The report concludes:
“I find [Ms S] to have clear deficits in her understanding and awareness of children’s developmental needs and progress. She is particularly demanding, beyond the children’s developmental abilities, quick to anger and become frustrated and resorts to punitive parenting styles. She has clear deficits in her understanding of setting appropriate routines, expectations of behaviours, limits and disciplinary practices which have likely set up a pattern of inappropriate acting-out behaviours in her children, particularly [Q]. Issues of unresolved conflicts and losses both in her personal relationships (domestic violence) and particularly, in her family of origin, I believe, have a definite impact on her parenting styles and personal belief system about parenting that require exploration therapeutically. Of further concern is her isolated lifestyle that gives her few avenues for stress relief. Issues of anger management and stress management are also fodder for therapeutic input. I believe that [Ms S] does have an emotional attachment to her children, is cognisant of her incapacity to safely parent them at this time, and expresses willingness and motivation to assume undertaking to seek restoration of her children into her care” : Exhibit P1 pp 110-111
32 During the remainder of 1999 the children remained in their temporary placement with Barnardos’ carers and supervised contact with Ms S took place, initially once a week and then twice a week. In November 1999, DOCS completed an assessment report for the purposes of an application for a wardship order to be made to the Children’s Court. 33 On 3 December 1999, the Children’s Court made a wardship order in respect of the children for a period of six months, pursuant to s.72(1)(c)(iii) of the 1987 Act. 34 On 1 February 2000, DOCS decided that the children should be restored to the care of Ms S, following a recommendation from Barnardos. On 28 February, the children were restored to the care of Ms S with significant supports in place, including a family support worker, pre-school for the children three times a week, and respite with Barnardos’ carers for one weekend a month, shortly afterwards increased to one weekend a fortnight. 35 On 1 May 2000, DOCS’ District Officer conducted a case conference to review the restoration of the children to Ms S. It was determined that the children should remain in her care. An assessment report prepared by DOCS on 5 May 2000 shows the support which was provided to Ms S and her children by the Department and by Barnardos. The report states:
“[Ms S] is motivated to providing well for her children. She continues to respond well to Departmental support, but does continue to experience difficulties in her parenting. These difficulties are particularly in relation to [Q], who demands a high level of attention and care. Individual therapy for [Ms S] has been ongoing for an extended period, she has been working on dealing with her anger and stress. Professional staff in contact with [Ms S] have reported a notable improvement in [Ms S]’s responses to stressful situations. [Ms S] also seeks assistance in an appropriate manner from either this Department or the agencies working with her. [Ms S] is aware that she is experiencing difficulties parenting her children and she has readily accepted that the Department’s Montrose Family Assessment Programme be involved with the family.”

The report recommended that the current order of wardship in respect of the children be varied to a two year order of supervision, with undertakings by Ms S to continue in therapy and continue to co-operate with support programmes for herself and the children procured or recommended by DOCS.

36    On 30 June 2000, the Children’s Court declared the children to be wards of the Court until the age of eighteen years, pursuant to s.72 of the 1987 Act, but ordered that they be placed with Ms S. All parties, including Ms S, consented to that course. 37    In the course of the application the Magistrate, who obviously had considerable familiarity with the case, said that he was really troubled as to whether or not Ms S was “a viable long term placement” , i.e., whether Ms S was able to look after the children appropriately in the long term. The Magistrate concluded:
“I think the order of wardship is necessary, even if the children remain in their mother’s day-to-day care on the basis there’s a very clear sign that this is a mother who will need the ongoing support of the Department and that need for support so far as I can see will not go away, and that’s the real purpose of an order of wardship even though the children are with their mother, is to clearly indicate to the Department that the Court expects the Department will continue to provide substantial support to this mother” : Exhibit P1, p 190.
38    Ms S and the children continued to receive support services from DOCS and respite care. It is quite clear that DOCS maintained close supervision over the children during this time. 39    A DOCS conference meeting on 22 February 2001 records concerns about the children’s welfare expressed by their pre-school. The concerns include the disturbed and disturbing behaviour of the children and reports to the pre-school teacher from local residents that the eight year old son of Ms S’s then partner was caring for the children (who were then four years old) and that the children had been seen playing on the streets until 8:00pm. The pre-school teacher reported that the children often arrived at school with no bath or breakfast and that Ms S had presented at the school apparently drunk or drug-affected. It was also reported that the children were going to stay with their paternal grandparents on alternate weekends. Barnardos reported that although they felt that Ms S had come a long way since the children were placed in her care and that she was now better able to parent the children, it appeared that Ms S’s problems were drug-related. It was reported that there had been three drug raids on Ms S’s house in the last six months. The children’s carer had noticed the children’s aggression towards each other and that R became distressed when leaving the carer during the weekend. 40    On 2 March 2001, DOCS’ officers visited Ms S at her home and discussed various concerns. There had been a drug raid by Police on her house on 4 October 2000. Ms S said that the raid was the subject of Court proceedings. She said that there were drugs found at the house, trays containing a substance which the Police took for testing, funnels and a bag of “psydo-effadrine tablets” . Ms S said that she and her partner rented a caravan in the backyard to a person “and that is who must have had the drugs” . She said that she smoked cannabis every night when the children went to bed, for relaxation. The DOCS’ officers asked why they had had reports of her attending pre-school apparently affected by alcohol or drugs and she replied that “if she wakes up in the morning and does not look glamorous when she takes the children to pre-school she cannot help it, she is not affected by any substance” . 41    In March and April a psychologist carried out an assessment of the children and Mr T. Q was assessed as having problems in all areas of cognitive function, particularly his verbal skills. No problematic intellectual functioning was detected in R. The psychologist’s conclusion in relation Mr T was that he presented:

“… as having beliefs and ideas relating to [DOCS], [Ms S] and her family which appeared delusional in nature and suggest mental health concerns that would need to be further investigated with psychiatric assessment. He approaches the current situation of seeking access with his children by emphasising his past relationship with his children in infancy and does not fully comprehend the children’s developmental needs nor the emotional impact upon the children in meeting him and developing a relationship with him in the here and now. Again, his ideas when considering frequency and organisation of access with his children is delusional in nature i.e. the belief he ‘coded’ information into the children’s memories so they will recognise him and adjust easily to contact when they meet him”: Exhibit P1, p 218ff.
42    I note that records of telephone calls made by Mr T to Department officers over this period show that he was consistently making statements on a wide variety of matters which, on any view, could only be regarded as highly delusional: see e.g. Exhibit P1, pp 205, 211. 43    On 17 June 2001, DOCS conducted a case planning meeting regarding the care and welfare of the children. Present at the meeting were Dr Lee Sutton from the Royal Hospital for Women, DOCS’ officers, Barnardos’ officers, a representative of the children’s pre-school and Ms S. Dr Sutton and the DOCS’ officers expressed their concerns about the children’s welfare in detail, all of which are documented in the assessment report. It was noted that there had now been two reports commenting on the need for Ms S to obtain counselling regarding parenting issues, and that DOCS had addressed this issue with Ms S. It was noted that Ms S refused to undergo and sustain counselling. A number of concerns were expressed about the aggressive behaviour of the children between themselves and, in the case of Q, to other children. Bruising on the children had been noted when they presented for respite care. Ms S explained the bruising as the result of conflict between the two children. 44    On 6 July 2001, Ms S requested respite care for the children. On 16 July 2001, DOCS received a further risk of harm report in relation to the children and interviewed the children on 17 July. R had marks under both eyes and bruising on the side of the face. Q said that Ms S had inflicted the injury and that he had been smacked very hard on the bottom by both Ms S and her then partner. He stated that the partner had hit him across the back with a belt buckle. When Ms S was confronted with these statements by her children she accused R of being a liar. Ms S’s partner claimed that R ran into cupboards and was falling over all the time and often had bruising. Ms S was clearly very irate and emotional during this interview. DOCS’ officers concluded that the following immediate risk factors to the children had been identified:


– the physical wellbeing of the children;

– the emotional state of Ms S and emotional abuse of the children;

– neglect of the children’s medical needs;

– refusal to acknowledge abuse of the children by Ms S and her partner.

45    On 16 July, the children were removed from Ms S’s care and placed with Barnardos’ carers who had previously provide respite care for them. 46    On 1 August 2001, DOCS wrote to Ms S stating at some length the reasons for the children’s removal and advising that it was DOCS’ intention to place the children in stable, long term placement. 47    On 12 November 2001, Ms S gave birth to a child of which her long term partner is the father. 48    A review of the matter by the Community Services Commission dated 11 February 2002 records that at a case conference on 15 November 2001, a transition plan was developed for the children to be placed in the care of permanent foster carers recruited through Barnardos:
“The whereabouts of the placement has been withheld because of separate threats of abduction of the children, and violence made by the natural mother and father to the foster carers, the Barnardos’ workers and the Department.”
49    On 5 December 2001, the children were placed with the present foster carers as a permanent placement until the children were eighteen years of age. 50    Access visits between Ms S and the children occurred on 18 February and 23 April 2002. An access visit arranged for 1 July 2002 was cancelled when Ms S missed a train. On 17 April 2003 an access visit was terminated early when Ms S became highly upset with the children. 51    In December 2003, Ms S contacted Barnardos requesting access with the children, but Barnardos refused to arrange a meeting without first meeting Ms S to come to an agreement as to how she would behave at the meeting so that the children would not be unduly upset. Ms S refused to attend any such meeting. 52    On 4 June 2004, Ms S had an access meeting with the children. At a case review meeting conducted by DOCS on 8 September 2004, it was agreed that access between the children and Ms S should take place three times per year, conditional on her behaviour at such meetings. It should be noted that in previous meetings Ms S often found it very difficult to contain her emotions, resulting in the children becoming distressed and their behaviour becoming very difficult for some time after the meeting. 53    In October 2004, Ms S met with Barnardos’ officers and agreed to counselling to assist with her difficulties. She did not attend counselling. Further access meetings have been held on 19 April and 7 October 2005. An access meeting was arranged for 19 December 2005 but was cancelled when the children refused to attend. 54    On 10 June 2006, Ms S gave birth to her fifth child.


Attitude of the children to adoption

55    The children have now been with Mr and Mrs P for about five years. Understandably, their behaviour was difficult at the beginning but they are now thriving, physically and emotionally. They have received medical attention for their physical needs. They are enjoying school and sporting activities and have made good social connections. Under the care of Ms S they were often extremely antagonistic towards each other; now they are well adjusted and their relationship as siblings is normal and appropriate. They have developed a very strong bond of attachment and love with Mr and Mrs P and identify them strongly as “Mum” and “Dad”. 56    In an interview with a clinical psychologist, Ms Howell, conducted in July 2005 Q expressed a strong desire to live permanently with Mr and Mrs P and a strong unwillingness to live with Ms S. He became visibly upset when talking about past access visits with Ms S. He said that he did not want to go to the visits any more because he was afraid. 57    R said that going on visits with Ms S made her feel “freaked out” and that sometimes she wanted to go and sometimes she did not. When asked about how many times she would like to see Ms S, she replied “once every two years” . 58    On 6 April 2006, Ms Howell conducted another assessment of the children. Both said that Mr and Mrs P wanted to adopt them and that they wanted to be adopted. They said that adoption would mean that their surname would be the same as the surname of Mr and Mrs P. Mrs P said in evidence that the children had expressed a strong desire not to be known at their school by the surname of Ms S or Mr T. I accept that evidence, as confirmed by Ms Howell’s report. It shows the children strongly identify themselves as the children of Mr and Mrs P. 59    During that interview, both children expressed the wish to live with Mr and Mrs P forever. Q said that when he lived with Ms S he “was scared to go outside” – a statement which Mrs P confirms Q has often made. When pressed a little further about adoption, Q appeared to become disturbed and said that if he “can’t live with Mum and Dad” he will be “angry and hit the Police” . He said that he would “make a promise: if you let me and [R] live with Mum and Dad then [Ms S] won’t be able to hurt us” . 60    R also found the discussion about adoption upsetting and stated that she wanted to live with Mr and Mrs P because she was “happy” . 61    On 13 September 2006, Ms Howell interviewed Ms S. Ms S was not able to accept that her behaviour or her circumstances had in any way contributed towards the removal of the children from her care. She took the view, as she has done in the witness box, that her children have been stolen from her by DOCS. She was very angry at the infrequency of access with the children which she had had. 62    On 14 September 2006, a meeting was arranged between Ms S and the children under the observation and supervision of Ms Howell and a case worker from Barnardos. Ms S brought her younger two children to the meeting. 63    R refused to go into the same room with Ms S. Q went into the room and played a little with the elder of Ms S’s children but soon went to sit in another room. He told Ms Howell that he did not want to see Ms S and he then went to sit outside the room with R. R said to Ms Howell without prompting “we want to be adopted” , adding “it’s unfair we have to wait so long to be adopted” . When asked why she did not want to see Ms S, R said “I don’t like her” . 64    Both children were anxious to leave the meeting and left without saying goodbye to Ms S and the younger children. Understandably, Ms S was very upset by the children’s reaction to her. 65    Ms Howell expressed the following opinion as a result of this interview:

“Throughout the interview [Ms S] presented as genuinely distressed at the thought of [Q] and [R]’s adoption. She stated that she loves her children and wants them returned to her care. However, [Ms S] demonstrated little or no insight into [Q] and [R] as individual children, their past traumatic experiences in her care, and their stated desires in relation to being adopted.

She does not accept that the children are securely attached to [Mr and Mrs P], that they identify [Mr and Mrs P] as their parents, that they feel they belong within [Mr and Mrs P]’s extended family, and that they want to be adopted by [Mr and Mrs P]. [Q] and [R] are not attached to [Ms S and her two younger children] and do not feel part of [Ms S]’s family. Observation of the interaction between [Q] and [Ms S’s younger son] indicated that neither [Q] nor [the younger son] displayed any of the attachment behaviours present between siblings with a close relationship.

[Ms S] appeared to minimise the severe emotional and psychological effects on [Q] and [R] from their early experiences in her care. She described her parenting of them as adequate and denied exposing them to violence, emotional abuse and physical neglect.

[Ms S]’s plans in the event of [Q] and [R] being returned to her care appear wholly inadequate. She did not demonstrate a realistic understanding of the emotional, psychological and developmental effects on [Q] and [R], nor what would be required to support their adjustment in such circumstances.

Similarly, [Ms S]’s insistence on monthly contact between herself and the children is unrealistic and demonstrates no understanding of the very real emotional and psychological effects on [Q] and [R] should this occur.

[Q]’s and [R]’s behaviour at the contact visit was consistent with their statements to [Mr and Mrs P and the Barnardos’ case worker] and to me that they do not want to see [Ms S]. Both children were anxious during the hour visit and although [Q] went into the room with [Ms S] he did not engage with her.

It is my professional opinion that [Q]’s and [R]’s adoption is in their best interests and should proceed. I do not consider face-to-face contact to be in the children’s best interests. I believe regard should be given to the children’s expressed wishes not to occur. However, if the Court deems such an order appropriate, provision should be made for such contact to be supervised by the children’s carers/ adoptive parents.

Arrangements such as the exchange of letters, photographs and progress reports on the children’s activities would allow [Ms S] to maintain a level of involvement with [Q] and [R] without exposing them to the risks I have identified in this report.”
66    In cross examination, Ms Howell was asked about the prospects of re-establishing a connection between Ms S and the children by increased contact visits, with a view to restoring the parental relationship. She gave this evidence:

“Q. I will ask to you assume for a moment a contact regime that is intended to re-establish a relationship between the children and [Ms S]? What do you say would be a frequency of contact and I will ask you to consider as you offer that answer a graduated regime of contact?
A. It is very, very difficult at this stage. I believe [Q] and [R] don't want to participate and that I think gives some lack of hope to a new attachment being formed. The children's sense of safety and security is established at the moment and we would need to break that and in fact return them to a place where they to – where they feel fearful so in terms of trying to establish a relationship, it would be incredibly difficult.

CAIRNS: Can I indicate – perhaps I didn't set the parameters.

HIS HONOUR: I would like the witness to finish her answer and then you can ask the next question.

Q. Yes?
A. The reason it would be incredibly difficult is that attachment is a mutual interactive process. The children, given their ages, as they are not infants, they would need to be willing to participate. In a sense they would need to be wanting to build a relationship with [Ms S] themselves so that it has some – so they are interactive in the process. It is not enough for one party to offer the relationship. It is an active process with children of this age.

CAIRNS: Q. I ask to you assume that the children's placement is secure in their mind and they have that reinsurance?
A. You mean where they are now?
Q. Yes?
A. Yes.

Q. In the proposition I put to you, there is not a suggestion that the children are approaching this with a view to disrupting their present life style?
A. Look, again, I think there are some problems. [Q] and [R] don't want to participate and given that an eight year old girl was able to come to the meeting and not enter the room, she was able to hold that position, is a very strong indicator that she is unwilling to participate so that even I think saying to the children, "your current placement is safe, however, we would like you to spend more time with your biological mother" I think does not give them certainty around the current placement. I think that both [Q] and [R] would find it stressful and anxiety provoking. At the meeting we had, [Q] was unable to not come in. He is a very soft hearted compliant sort of boy. He wanted it to work but he was so anxious, he could not relax and he could not engage. I am not of the opinion that contact is actually in their interests.

Q. I have seen it in your report. You say he was anxious and he could not engage. Do you agree with me they have seen [Ms S] for about an hour three times a year in the last couple of years?
A. Yes.

Q. Do you say that some of that anxiety would be removed if there was some more frequency between the contact with [Ms S]?
A. One of the things I observed in the one hour meeting that we had was that [Ms S] herself is not outgoing towards the children. She also I think felt that her children – I think it was an anxious time for her as well. It was a difficult situation. I don't deny that but [Ms S] as the biological mother wanting access needs to be interactive and meet the children, go to the children. She is the adult and she wasn't able or willing to do that in the one hour we had. If that's an indication, if that one hour meeting that I observed is an indication of the way it is every time they go, again, making that more frequent I don't think will improve the situation.

Q. You make some criticisms of [Ms S] as you observed her in this meeting and I understand that you were making observations for the purposes of the report. With the intervention of some professional guidance and perhaps the point you have just raised being related with [Ms S], do you say the dynamics of the meeting would be different?
A. I did ask her questions around parenting because she hasn't had those children, [Q] and [R] with her for some time. She has [two younger children]. I asked her about her parenting, whether or not things had changed from when she was a single Mum with two difficult babies to look after and she said to me that she had been to parenting classes and that to some extent she found them unhelpful because she already knew that and I find that to be a comment that is not so insightful because the way she had behaved in the previous hour did not suggest to me that she could understand the need that [Q] and [R] had her to approach them, for her to offer them some sense of herself. I know that it was very difficult for her. I am not unaware of that but at the same time, as the mother, as the adult in the room with a seven and an eight year old who are anxious and she knew that and she did say to me that she thought that the children – her words were she thought [R] hated her, it is incumbent upon her to make the move.”
67    I accept Ms Howell’s evidence without reservation. Her observations of Ms S are amply borne out by my own observations of Ms S in Court.


Ms S

68 Even before Ms S went into the witness box she demonstrated that she has a violent temper which she is completely unable to control. Mr T made a remark which was calculated to inflame her. Ms S, who was in the body of the Court, jumped to her feet shouting abuse and made towards Mr T to attack him. I have no doubt that, if there had not been other people present between her and Mr T, Ms S would have physically attacked Mr T and there would have occurred a scene of violence between the two of them that must have been typical of their relationship during the infancy of Q and R: T73.51-74.21. 69 In the witness box Ms S demonstrated a similar complete lack of any self control. In answer to courteous questions in cross examination from Ms Merkel, Ms S was uniformly loud, belligerent, contemptuous and insulting both in speech and in manner. The transcript can give no adequate indication of the tone of her evidence. It can give no indication of the occasions, particularly during cross examination by Mr T, when Ms S shouted at the top of her voice in an uncontrolled rage and slammed both fists down on the witness box with great force. Ms S is sturdily built. It was impossible not to imagine the physical injury which she would be capable of inflicting on Q and R, even now, if she were in an uncontrolled rage. What was even more telling was that Ms S could not control either the violence of her speech or the violence of her physical action even though she was, at the time, nursing in the witness box her infant daughter, only some months old. 70 A very few instances of Ms S’s abusive and contemptuous responses are found at T107.20, T109.49-T110.14, T110.34-.55, T111.10-T111.31. A very few instances of her violent responses to Mr T are found at T119.27-.37, T121.47-T122.14, T127.18-.26. 71 Throughout the whole of her evidence Ms S demonstrated that she is unable to accept that her care of the children raised any cause for concern; she has persuaded herself that DOCS has stolen her children without any reason whatsoever. Of particular importance is that she does not have any regard for the children’s wishes as to whether they should continue to live with Mr and Mrs P or whether they should go to live with her. She has no concept as to how the children could be made to feel secure in establishing a relationship with her. Her view is that they are only children and children should not be allowed to dictate to adults: see e.g. T104.24-.57, T101.39-.58. 72 In my view, Ms Howell’s opinions as to Ms S and her capacity to resume parental care and custody of the children are amply borne out by my own observations of Ms S in Court. 73 The files of DOCS and Barnardos show convincingly that there was very good reason for the permanent removal of the children from the care of Ms S in mid-2001. There is no substance in her accusations that she was deceived by DOCS and that the children were, in effect, stolen from her. On the contrary, Ms S was offered a great deal of support to assist her to keep her children and to care for them properly, but she was incapable of accepting and benefiting from that support. She has persistently refused, and even in the witness box continued to refuse, to accept counselling. 74 Finally, Ms S has not adduced any evidence of her present circumstances as they affect her ability to resume parental care of the children. There is no evidence of her home circumstances or the relationship with her current partner. There is no evidence as to her current partner’s background, antecedents, capacity and present willingness to look after the children. 75 Ms S has made it clear that she refuses her consent to the children’s adoption because she intends to use every possible legal avenue to have them returned to her parental care. She has made it clear that she will persist in litigation to achieve this end as long as she has any legal standing to do so. 76 I have reached the conclusion, without the slightest doubt or hesitation, that it would be very dangerous to the children and highly detrimental to their welfare to remove them from their loving, secure and supporting relationship with Mr and Mrs P and to return them to the parental care of Ms S. Indeed, in my opinion, the risks to the physical safety and emotional wellbeing of these highly vulnerable children are so great as to make their return to the care of Ms S an impossibility, now or at any time in the future. 77 In my view, there is a serious concern for the welfare of the children if the consent of Ms S to their adoption is not dispensed with under s.67(1)(c). I am satisfied that the making of such an order is in the best interests of the children. If an order is not made, Ms S will undoubtedly continue in her litigious efforts to regain custody of the children, which will inevitably place enormous stress on Mr and Mrs P. That stress will inevitably reflect upon the children. 78 Further, if the children are continually subjected to psychological assessments for the purpose of litigation instituted by Ms S they themselves will feel that the security of their relationship with Mr and Mrs P is undermined, to their great detriment. 79 For these reasons, I conclude that an order should be made under s.67(1)(c) dispensing with the consent of Ms S to the adoption of the children.

Mr T

80 Despite frequent advice from me during the proceedings that the children’s present and future best interests were the only concern of the Court in this case, Mr T remained obsessed with his grievances as to why he had been refused access to the children since 1998, the unfitness of Ms S as a mother, and the alleged wrongful conduct of DOCS and many other agencies and persons. He demonstrated no understanding at all as to the children’s present position and their vulnerabilities. 81 Mr T has placed before the Court no evidence at all as to his present capacity to take the children back into his parental care and to look after them properly and in their best interests. As I have mentioned, he refuses to disclose to the Court even his residential address or any contact details. 82 Mr T has had no contact with the children since an order of the Family Court prevented access in 1998. The children do not know him. His obsessive behaviour in Court convinces me that he is incapable of focussing on any needs other than his own. 83 In my opinion, having regard to Mr T’s violent relationship with Ms S before they separated, his violent behaviour towards her after their separation, his inflammatory conduct in Court, his inability to focus upon the needs of the children and to understand their present vulnerabilities, and the absence of any evidence which could demonstrate his fitness and capacity to resume care of the children, it would be impossible to consider the return of the children to his parental care either now or at any time in the future. 84 Mr T demonstrates all of the hallmarks of the querulant litigant. The files in evidence show that he has been engaged in many proceedings concerned with the custody of the children. The transcripts of those proceedings show the same obsessive behaviour as he has demonstrated in this Court. I have no doubt at all that if an adoption order is not made, he will continue to harass Mr and Mrs P and the children with every conceivable manner of litigation in order to regain control of the children. For the reasons I have given in relation to Ms S, it is in the children’s best interests that they be removed once and for all from the possibility of such harassment and its resultant insecurity and disturbance. 85 I am satisfied that there is a serious concern for the welfare of the children if the consent of Mr T to their adoption is not dispensed with under s.67(1)(c). I am satisfied that the making of such an order is in the best interests of the children.


Adoption

86 In making my decision as to the adoption of the children, I have had regard to the principles set out in s.8(1) and to the circumstances set out in s.8(2) of the Adoption Act , so far as they are relevant in the present case. I have also had regard to the requirements of s.90. I do not need to go through a check list of those sections as there was no issue in the case as to the vast majority of their requirements. As I have noted, the only matters which Ms S wished to agitate were the circumstances in which the children had been removed from her care and the alleged wrongful conduct of DOCS and Barnardos in limiting her subsequent access. The only matters which Mr T wished to agitate were the alleged unfitness of Ms S as a mother and the alleged wrongful conduct of DOCS in preventing his access to the children. 87    The matters to which I have given particular weight in considering whether adoption orders should be made are:


– the strong wishes of the children to be adopted;

– the length and strength of the children’s relationship with Mr and Mrs P;

– the vulnerability of the children and their emotional and physical needs for a secure and permanent relationship with Mr and Mrs P;

– the absence of any positive relationship between the children and either Ms S and her family or Mr T;

– the real possibility that not making the adoption orders will leave the children exposed to the risk of continued attempts by Ms S and Mr T to regain custody or increase access, with a consequential very damaging impact upon the children.

88 I take into account that no adoption plan under s.48 of the Act has been proposed. I think that it is impossible that either Ms S or Mr T would agree at this stage to any adoption plan which has any chance of approval by the other parties or by this Court. I do not consider that an adoption plan should be required as a term or condition of the adoption orders to be made. Access to the children by Ms S and Mr T should be afforded only if approved, and only to the extent approved, by Mr and Mrs P with the assistance and guidance of DOCS or Barnardos.


Orders

89    In respect of each of the children:


– I make orders under s.67(1)(c) of the Adoption Act dispensing with the requirement for the consent of the natural mother and the natural father to the adoption;

– I make orders under s.23(1) of the Adoption Act for the adoption of the child in favour of the adoptive parents.

– oOo –