Court Ref: P018/09 IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

JUDGMENT
of SHERIFF DEIRDRE MACNEILL, QC in the Petition of

CITY OF EDINBURGH COUNCIL

DISTRICT

Petitioners for a Permanence Order with authority to adopt under the Adoption and Children (Scotland) Act 2007 in respect of the child C

EDINBURGH, 24th February 2012

The Sheriff having resumed consideration of the cause finds in fact as follows:

1.

The Petitioner is as designed in the instance. It is an adoption agency in terms of the Adoption and Children (Scotland) Act 2007. In this petition a Permanence Order is sought under S.80 of the Adoption and Children (Scotland) Act 2007, with authority for the child to be adopted.

2.

The child to which this petition relates, referred to as C, was born on 3 February 2008. Her birth parents are CC (age 30) and DB (age 26), the first and second respondents. They are not and never have been married. DB is named as the

father of C on C's birth certificate. The parents do not live together. This court has jurisdiction.

3.

The first respondent has a child from an earlier relationship, SC who is now 13 years old. She was placed in the care of the first respondent's mother in March

1999, due to a failure on the part of the first respondent to properly care for her. In 2004 the first respondent's mother obtained a residence order in respect of SC. She has been the primary carer for SC since she was 3 years of age. SC has recently exhibited some difficult behaviour, and has from time to time been sent to stay with her natural father for a period.

4.

The second respondent has a child from a previous relationship, CM who is now 7 years old. She has always resided with her mother. The second respondent has contact with CM from time to time. The social workers working on this case had been informed by colleagues involved with CM that this contact was supervised. The second respondent was convicted of assaulting the child's mother in September 2005, and was imprisoned for this offence.

5.

The first and second respondents started a relationship in December 2006. Very quickly thereafter, the first respondent moved into the second respondent's home. which was temporary homeless accommodation. In or about April 2007 the first respondent conceived. The pregnancy was unplanned.

6.

In June 2007 the first and second respondent were involved in an incident when they were both drunk at which the police attended, and as a result of which following an indication from the first respondent she was two months pregnant, a report was sent to the Social Work Department, on or about 23m July 2007. The Community Drug Problem Service and Prepare Team were already

involved with the first respondent through referrals from the first respondents G.P. and midwife.

7.

Prior to the birth of the child there were concerns on the part of the professionals allocated to work with the first respondent, over the nature of the relationship between the first and second respondent. The first respondent made various disclosures to her CDPS worker, Gordon Stephenson and Prepare worker Isobel Gunn of domestic abuse on the part of the second respondent. The professionals witnessed incidents of controlling behaviour on the part of the second respondent towards CC. In addition there were concerns over the

2

standard of accommodation the parties were living in and their continued drug use.

8.

Due to these continuing concerns a Pre Birth Child Protection Case Conference was convened on 17th December 2007. The Minutes of that meeting are lodged as Appendix ITto the petition. At that meeting the decision was made to put the unborn baby's name on the Child Protection Register as being at risk of physical neglect and physical injury. It was also decided that the child would be accommodated at birth due to the significant concerns over the respondents' situation. The plan was to allow a period of assessment of the respondents and their ability to look after the baby safely and appropriately.

9.

The respondents were asked to agree to the voluntary accommodation of the child, but would not do so. Accordingly a Child Protection Order was sought and granted by Edinburgh Sheriff Court on

ih

February 2008. The child then

four days old was accommodated on that day and placed with a foster carer Dorothy Scott. She remained in her care until 7th July 2010, when the child was placed with her current carers, who are registered foster carers and also

prospective adoptive parents for C. The need to alter C's placement arose due to the planned retiral of Dorothy Scott, and coincided with the permanency planning for C that was by then (May/June 2010) under consideration. The child has been well cared for by her foster carer, and continues to be well cared for by her prospective adoptive parents. She has some developmental delay and eating issues, possibly due to the circumstances of her birth with neonatal abstinence, but is generally a bright and happy child. She is now making steady progress in her development; bur remains physically small for her stage.

10.

The longer term plan of the Social Work Department in February 2008 was to work towards rehabilitation of the child with her parents. Initially therefore

contact was organised to take place four times a week for about an hour to an hour and a half The respondents understood the need to engage with this process, and the steps to be taken to facilitate the potential return of the child to their care. In the meantime the child remained with her foster carer, with Place

3

of Safety Warrants being issued in February and March 2008 to preserve that position pending the grounds of referral, which were challenged by the parents, being established. On 4th April 2008 the Sheriff at Edinburgh found the grounds of referral to have been established. 11. The relationship between the first and second respondent continued to be volatile and unstable. Both prior to and after the birth of the child the first respondent would return home to her family in Kirkcaldy from time to time to have a break from the relationship. She continued to make disclosures of domestic abuse by the second respondent after the birth of the child, to her CDPS worker Simon Dix and to police in December 2008. Advice about Woman's Aid, and offers to assist in making contact with them were rejected by the first respondent. She was aware that one of the concerns in returning the child to her care was the continuing relationship with DB, and the violent and controlling nature of same. 12.
In June 2008 the second respondent was charged with assault on CC, for which

he was convicted in October 2008. In January 2010 the second respondent was again charged with assault onCe for which he was convicted and sentenced to a term of imprisonment. 13. On 9th July 2008 a Children's Hearing took place, at which the Supervision Requirement in respect of the child was varied to take account of the fact the parents had indicated they had separated. Contact arrangements were altered to allow each parent contact separately, for two hours twice a week. The child continued to have contact four times a week. 14. After the assault by the second respondent on CC in June 2008 the social workers and other professionals involved in the case were never sure whether the relationship between the parties was ongoing or not. Bail conditions imposed in June 2008 meant there should be no contact between the parties, which conditions subsisted until the conviction in October 2008. They were seen together on three or four separate occasions by people working with them

4

between August 2008 and September 2008. In December 2008 they were both present at the second respondent's home during an incident involving the police. They continued to deny to social workers and other professionals there was an ongoing relationship or contact between them over that period. The fact that first respondent was back in a relationship of some sort with the second

respondent despite his violence, indicated a failure on her part to put the needs of the child before her needs in terms of her relationship.

15.

In or about June or July 2009 on the basis of what they had been told by the respondents, the understanding of social workers and others working on this case was that the first and second respondent were back in a relationship, and contact was organised to take place with both parents in attendance. Since the assault in January 2010 contact has been taking place separately again. The respondents describe their current relationship as being "good friends". The

second respondent is however the father of the child that CCis currently expecting and which is due on 17th February 2011. It is anticipated by both respondents that the second respondent will continue to have involvement with the first respondent in relation to contact with the new baby.

16.

At a Look After and Accommodated Child Review on 14thJuly 2008, following the parents declared separation, a decision was reached to consider the first respondent as the potential primary carer for the child, and that a parenting assessment would accordingly take place. At that time the second respondent's stated position was that he did not wish to be considered as the primary carer. The decision was also taken to make a referral to the Adoption and Fostering Permanency Panel to allow for parallel planning, whilst continuing to consider rehabilitation to the mother.

17.

The parenting assessment in respect of the first respondent took place between 11th August 2008 and

so" September

2008. The assessment was carried out by

Lorna Nicol, Nursery Officer, Stenhouse Child and Family Centre, Edinburgh. Number 5/2/25 of process is her report which contains a true and accurate account of her assessment of the first respondent. 1broughout the assessment

5

she tried to offer guidance and advice to CC about areas of concern with CC's parenting. The advice was not accepted and not generally acted upon. The conclusion of the assessment was that CC did not have the ability or

understanding

to care for the child full time. Of particular concern was the

child's disorganised attachment to her mother, arising from amongst other things, an inconsistent approach to looking after the child's emotional needs and wellbeing. The second respondent indicated at a meeting with Social Workers on 10th October 2008 that he would wish to be considered as the child's principal carer, in the event CC could not be. At that time there was discussion over continuing concerns regarding his behaviour, and how he would provide suitable

18.

accommodation for the child. The second respondent indicated he lived between various addresses. On 20th November 2008 the Social Work Department

advised DB through his solicitors that they considered there was sufficient information available regarding his lifestyle and behaviour to conclude without .a formal parenting assessment, that he would not be a suitable candidate as the child's primary carer. After this date the second respondent did notactively renew a request to be given a formal parenting assessment. He considers that because he did not retract or withdraw his request it was to be assumed that he still sought a formal parenting assessment.

19.

On 23rd October 2008 a referral was made to Gillian Christian, of the Family Group Decision Making team. She explored the potential for the first and second respondents' wider family to be involved with the care of the child. The first respondent failed to attend the meeting arranged to take place with her mother. The second respondent also failed to respond to invitations to meet. His position as given in evidence is that he did not think that a Family Group

Meeting should take place. In the course of a telephone discussion between the second respondent's father and Gillian Christian it was confirmed that none of the second respondent's family felt able to take on the role·of carer for the child. The first respondent's mother's position was and has remained that CC should be the primary carer for the child, with ongoing support being provided by the

6

Social Work Department. She is not prepared to take on that role having already cared for the first respondent's first child, SC. Repeated attempts by Gillian

Christian to engage the first respondent in this process were fruitless, eliciting no response. There are no potential carers for the child within either parent's wider family. On 18th November 2008 the Adoption and Fostering Permanency Panel met to consider the case. It was concluded at that hearing that there should be no further attempts at rehabilitation and that the child's long term needs would be met through seeking a Freeing for Adoption Order. The time limits for that application were misunderstood by the Children and Families Department, and the opportunity to submit the application before the change in the law was missed. Arrangements for the child continued as before (subject to variations to contact) and the decision to seek what was now a Permanence Order with

20.

Authority to Adopt was made by the Adoption and Fostering Permanency Panel on 20th October 2009 and approved by a Children's Hearing on 215t December 2009. They were satisfied having regard to the work that had been carried out previously, the past situation of the first and second respondent and in the absence of any evidence to suggest a change in the first and second respondents' situation, that the child's permanency long term needs were still .to be met through

and adoption. The respondents understand the implications of

adoption but do not consent.

21.

Since the child was born arrangements have been made for her to have contact with her parents. Initially that was for one hour to one and half hours four times a week. In April 2008 that was increased to two hours four times a week. In July 2008 that was varied due to the change in the parents' relationship to allow contact for two hours twice per week for each parent.

22.

Some aspects of the contact between the parents and child were positive, . especially when she was still a small baby. Both were able to change her nappy and feed her, although there was one incident where the second respondent failed to realise that the child did not want to be fed, but insisted on trying to

7

feed her. There were concerns over the lack of interaction between the first respondent and the child, and as the child grew older these became concerns over the ability to engage with the child, follow her cues in relation to play and emotional upset, and find age appropriate toys. There were similar concerns with the second respondent, although his interaction with the child was better; Both parents repeatedly showed an inability to prioritise the child and the development of their relationship with her; rather there was a tendency on the part of the second respondent in particular to try and discuss matters around the case, and issues that were causing him stress. Both the first and second

respondents were consistently late for contact but arriving within the 15 minute window before contact was called off, were so late that contact was cancelled on occasion or failed to attend for contact, sometimes without notice. The first respondent did not prioritise the contact visits over her own personal

arrangements, making dental or doctor's appointments which required contact to be cancelled.

23.

As the child grew older concerns developed on the part of both social workers and her foster carer over the child's reaction to contact taking place. This manifested itself in a variety of ways. Sometimes the child showed signs of distress when being collected for the purpose of a contact visit, or on arrival at the contact centre. Her behaviour after contact caused her foster carer some

anxiety as she would withdraw from communicating with others, and rock
herself in a self comforting way. Her sleep pattern would be disturbed, and her behaviour generally after contact could be tearful or disruptive but generally atypical, settling back to normal after a day or two. As a toddler that behaviour was more challenging, deliberately doing things she knew were naughty and not allowed. At its most extreme the child has been physically sick, with no health reason being apparent, when being taken for a contact visit.

24.

In August 2008 a review hearing was requested by social work due to the problems associated with the child's reaction to contact. A Children's Hearing took place on 29th October 2008, at which time the contact was reduced to once per fortnight for each parent for two hours. This meant the child had a contact

8
.....

_,.

session once a week. The situation was kept under review and at a Children's Hearing on 28th November 2008 it was decided that the contact should be further reduced to once per month for each parent, which meant once a fortnight for the child. That decision was appealed by the second respondent, which appeal was upheld and contact reinstated in January 2009 to once per fortnight for each parent; once a week for the child.

25.

The concerns over the child's reaction to contact continued throughout 2009. Her foster carer had reported some improvements in her demeanour and her development when the contact had been reduced. In February 2009 a

Safeguarder was appointed (who observed only one contact visit) and he made the recommendation that they continue the contact at once per fortnight for each parent, which advice was followed. Over the following months the child continued to be upset before and after the contact visits, generally settling into the contact session itself, but still seeking reassurance from the social worker there from time to time. Steps were taken by the people supervising contact to ensure there were no other external factors or reasons that could be the cause of the child's distress around contact visits. As a result of the ongoing problem of distress to the child before and after contact, the arrangements were again reviewed at the Children's Advice hearing on

zr' December

2009 when the When the

contact was reduced to once per month for a period of two hours.

parents were understood to be in a relationship that took place with them both present, and when they were not apparently in a relationship it took place with one hour per parent consecutively.

26.

A formal assessment of contact was instructed by the petitioners in or around December 2009 .. That could not take place until June 2010. The psychologist instructed was Dr Valerie Cairns, who is a recognised. expert in this. field. Although instructed by the petitioners, she considers her duty to be to the court to provide an opinion as an expert. Her remit was to assess the contact between the child and her parents and the impact the contact has on her, the child. The initial understanding was that the parents were in agreement with the assessment

9

being conducted. When it came to carrying out the assessment they were both quite clear that they would not co-operate with it.

27.

Dr Cairns had access to all social work records and background material that she wished to access. In addition to written materials Dr. Cairns had meetings with the foster carer, Margaret Muir her support worker, and Brenda Ann Mclaughlin, all of whom had been involved in the issues surrounding the child's contact with her parents. She undertook observational work with the child before and after the contact visit on 7th June 2010, and very briefly during the contact session due to the parents' refusal to allow the assessment. precaution of speaking with the second respondent's She took the

solicitor to ensure there

were no additional matters he wanted brought to her attention.· The first respondent did not engage with the assessment process at all. The report at 5/1/1 of process is a true and accurate account of Dr Cairns' assessment that ongoing direct contact between the parents and the child, is not in the best interests of the child.

28.

The assessment of contact disclosed that there was no meaningful bond between the child and her parents. There was some indication of enjoyment by the child of contact but it was inconsistent. The existence of such a bond and enjoyment by the child of contact are fundamental pre requisites to considering ongoing contact in a prospective adoptive situation. Contra indicators to ongoing contact in this case are the continuing hostility between the parents and social workers who would be facilitating any future contact; the child's withdrawal into a "dissociated state" during and after contact visits and the parents opposition to permanence generally. Ongoing contact would meet the parents needs better than indirect contact, but for the child, the negative impact of direct ongoing contact far outweighs the potential advantages in terms of sense of identity and reassurance about background. The child's needs in those respects can be met by life story work, and indirect contact two times per year, with letter box exchanges, between the parents and the adoptive parents. The prospective adoptive parents do not support ongoing direct contact. The Scottish Adoption

10

Agency can facilitate indirect contact between adoptive parents and birth parents. 29. Throughout the period following the child's birth when rehabilitation was being considered, neither the first or second respondent showed any sign of taking positive steps towards changing their lifestyle. There were still incidents of violence in the relationship, problems with drinking to excess, reports to the police about incidents between them and involving third parties, and continued use of drugs, albeit prescribed and monitored for the first respondent. Neither parent would accept the advice from professionals working with them on matters of child care, and the need to prioritise the child's needs over their own. 30. The first and second respondents have never cared for the child. They have no meaningful bond with her, and she has no bond with them. 31. The second respondent has behaved in a threatening and challenging manner towards the professionals involved in this case. He has been asked to leave various hearings due to his inability to manage his temper, aggressive outbursts and disruptive behaviour. At the contact assessment on 7th June 2010 he was confrontational with Dr. Cairns and towards Brenda Anne McLaughlin, regardless of the fact the child was present. His continuing excessive use of alcohol remained a concern for CDPS in February 2010. 32. The first respondent failed to engage with the professionals seeking to provide her with advice and assistance in taking the necessary steps to be in a position to have the child in her care. She repeatedly returned to the violent and unstable relationship with the second respondent She continues to use methadone. She has been unable to give her full attention to the needs of the child during contact, becoming introverted or concerned with her own issues rather than engaging and interacting with the child. 33. The first respondent's wish to care for the child at the present time is unrealistic. She has been unable to provide parental support and care for her first child SC.

11
•..-:L •..

_

T:_

p,

_'_,:

SC now has some behavioural issues which her pnmary

carer, the first

respondent's mother has found difficult to cope with. The first respondent has not cared for C since birth. C is now a toddler. The first respondent is

expecting a third child due on 17th February 2011. Her belief that she can obtain her own tenancy and have all three children reside with her is indicative of a continuing lack of understanding of what is required as a parent to provide properly for the emotional and physical needs of a child throughout their life. This is a situation the first respondent wants, which fails once again to prioritise the needs of the child or children over her own.

34.

The petitioners through the social work depar1ment and related bodies have provided the first and second respondents with help, guidance and assistance to try and facilitate the rehabilitation of the child to their care. Rehabilitation now is not an option. The welfare of the child now requires permanency and the provision of a stable and secure home for the child. The petitioners have identified and placed the child with prospective adopters. She has adjusted well to their care, and is now settled with them. She is too young to express a view on the matter.

Therefore finds in fact and law:

1. Having regard to the need to safeguard and promote the health, development and welfare of C and provide direction and guidance to, and control. of C, appropriate to her development, and legally represent C, and regulate the residence of C throughout childhood, a Permanence Order should be made. 2. It is better for C that the order be made than it should not be made. 3. CC and DB have a right to have C reside with them but at the present time that right is not exercisable because C is a subject of a supervision requirement requiring her to live with foster carers. Should that situation not have existed it is likely to be seriously detrimental to the welfare of C to reside with either the first respondent or the second respondent.

12

4. That the consents of the first respondent

and second respondent

to the

authority to adopt should be dispensed with as they have been unable satisfactorily to discharge their parental responsibilities or exercise their

parental rights and are likely to be unable to continue to do so and the need to safeguard and promote the welfare of the child C throughout life requires this. 5. That it is appropriate that the first respondent should have indirect contact with C and that such indirect contact should be facilitated by the Scottish Adoption Agency. 6. That the parental rights and responsibilities should be extinguished apart from the right to indirect contact as above. 7. There being no necessity for compulsory measures of care the supervision requirement should cease to have effect on the making of the Permanence Order. 8. That it would be better for the child if authority were granted for the child to be adopted than if the court were not to grant such authority.

EDINBURGH 24th February 2012. The Sheriff therefore grants the prayer of the petition amended to the extent

following; makes a Permanence Order in favour of the petitioner under. section 80 of the Adoption and Children (Scotland) Act 2007, in relation to the child H, born on 8 November 2008 with the following provisions:1. Vests the petitioner (i) with the responsibility to provide, in a manner appropriate to the stage of development of the child guidance to the child until the child reaches the age of 18; (ii) the right to regulate the child's residence, until the child reaches the age of 16; all in terms of section 81 of the Adoption and Children (Scotland) Act 2007;

2. Vests the petitioner (i) with the parental responsibilities mentioned in section 1 of the

Children (Scotland) Act 1995 and in particular the responsibilities

13
" .:-1

(a) to safeguard and promote the child's health, development welfare until the child reaches the age of 16;

and

(b) to provide, in a manner appropriate to the stage of development of the child direction to the child, until the child reaches the age of 16; (c) to act as the child's legal representative until the child reaches the ageofl6; .

(ii) the parental rights mentioned in section 2 of the Children (Scotland) Act 1995 and in particular.(a) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing until the child reaches the age of 16; (b) to act as the child's legal representative until the child reaches the age ofl6;

3. Extinguishes the parental rights and responsibilities

held by the first and

second respondents apart from allowing indirect contact between the first respondent and the child, such contact to be facilitated by the Scottish

Adoption Agency. 4. Dispenses with the consent of the first respondent and the second respondent on the grounds that they are unable satisfactorily to (i) discharge their parental responsibilities or exercise their parental rights and (ii) are likely to continue to be unable to do so; grants authority for C to be adopted all in terms of section 83 of the Adoption and Children (Scotland) Act 2007; 5. Revokes the supervision requirement in respect of C in terms of section 89(l)(b) of the Adoption and Children (Scotland) Act 2007. 6. Makes no award of expenses due to or by any party.

24.2.12

14
... :" ... ~.
-, -: .t. r-, ........ ;,'"

".

"..

l

~ _;

r-,'

..'~-'

~
..

NOTE
The petitioners' application for a Permanence Order under s.80 of the Adoption and Children (Scotland) Act 2007 was lodged on 21 January 2010. A curator ad litem and reporting officer was appointed in the same month. A diet of proof was fixed for September 2010 subsequently postponed until October 2010 because of the first respondent's solicitors withdrawing from acting due to lack of her instructions.

Prior to what would have been the September diet of proof the first respondent's solicitors moved that the application should be dismissed as the petitioners had failed to intimate to the first and second respondents the section 95 Report, regarding the move of the child to prospective adopters to the respondent. September were therefore used to hear the first respondent's other parties replies in relation to that motion. The days allocated in submissions and the

The first respondent's proofhearing

motion to dismiss was refused on 1 October and after a pre

on 15 October the application proceeded to proofwhich commenced on

25 October 201 O.

On 16 December 2010 evidence having been concluded written submissions were ordained to be lodged and 11 January fixed for the hearing of the submissions. court thereafter made avizandum. The

In June 2011 the first respondent whose circumstances had changed in that she had given birth to and was apparently caring for a further child fathered by the second respondent on 26 February 2011 moved the court to allow additional evidence. The court being satisfied that in this case additional evidence should be led, allowed further days of evidence to be fixed for 1, 2 and 3 November 2011.

On 1 November 2011 the first respondent's counsel intimated to the court that after further consideration with the first respondent of her position no further evidence would be led and thereafter the court having heard further submissions on the

15 ... ~.
,

,.

~.

_

.,

~.'

••

'

• _:;.•

0'

....

_

_,

permanence order cases which had been decided since the original avizandum made avizandum again. The further reports and productions which have been lodged in

anticipation of further evidence were set aside and form no part of the evidential basis for this decision.

Prior to proof the parties had made considerable effort to agree as much evidence as possible reflected in a lengthy joint minute of admissions, number 37 of process. Affidavits had been prepared in respect of most of the main witnesses for the petitioner and were used extensively with oral evidence to supplement as necessary.

At proof the pursuer led evidence from Brenda Anne Mcl.aughlin, social worker; Scott Watson, social worker; Simon Pix of the Prepare Team; Lorna Nicholls who carried out the parenting assessment; Dr Valerie Cairns, Chartered Clinical

Psychologist; Gillian Christian, Manager of the Children and Families Department; Dorothy Scott, original foster carer of C; Patricia Anne Keegan who supervised contact latterly; and Linda Sedgeworth also regarding contact.

I heard evidence from the respondents and the first respondent's mother.

Broadly speaking the petitioner's position has been throughout this process that C should be the subject of a Permanence Order with authority to adopt with indirect contact only between the first respondent and the child. The first respondent's

position is that she resisted the making of a Permanence Order which failing seeks direct contact with C. The second respondent's position was one of support for the first respondent's position regarding both the Permanence Order and contact.

Section 80 of the Adoption and Children (Scotland) Act 2007 provides that the court, on the application of a.1ocal authority, may make a Permanence Order in respect of a child. By section 80(2) such an Order consists of "(a) the mandatory provisions, (b) such of the ancillary provisions as the court fits think, (c) if the conditions in section 83 are met, provision granting authority for the child to be adopted".

16
.......
I ';. ~ ..

-,

.

r."

Section 81 and 82 of said statute set out the meanings assigned to the expressions ''mandatory provisions" and "ancillary provisions". Section 83 sets out the conditions

which 'must be satisfied before authority may be granted for a child to be adopted. There first requires to be a request by the local authority for such authority. The court must be satisfied that court has been, or is likely to be placed for adoption; and, in the case of each parent or the' guardian of the child, the court must be satisfied that the parent's consent to the making of such an order should be dispensed with on one of the specified grounds. Finally, the court must consider that it would be better for the child if it were to grant authority for the child to be adopted than if it were not grant such authority.

The grounds on which the parent's

consent to the making of an order granting

authority to adopt may be dispensed with include the court being of the opinion that the parent is unable to satisfactorily to discharge parental responsibilities or parental rights and is likely to be unable to do so. In the event that the court is not of that opinion, authority to adopt may still be granted if the welfare of the child otherwise requires parental consent to be dispensed with.

Section 84(1) provides inter alia that a Permanence Order may not be made in respect of child who is aged 12 or over unless the child consents. Subsection .(3) makes it

clear that the court may not make a Permanence Order in respect of a child unless it considers that it would be better for the child that the Order be made than that it should not be made. By subsection (4) it is provided that. in considering whether to make a Permanence Order and its terms, the court is to regard the need to safeguard and promote the welfare of the child throughout consideration. childhood as the paramount

Section 84(5) makes provision for the court to have regard to the views of the child and the child's background religious persuasion, racial origin and cultural and linguistic

and the likely effect on the child of making the order. The subsection

also provides that before making a Permanence Order the court must "(c) be satisfied that (i) there is no person who has the right mentioned in subsections (i)(a) of section 2 of the 1995 act to have the child living the person or otherwise to regulate the

17

..

child's residence or (ii) where there is such a person, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.

Section 14 of the 2007 Act deals with considerations applying to the exercise of powers. It provides inter alia "(1) subsection (2) and (4) apply where a court ... is

coming to a decision relating to the adoption of a child. (2) the court ... must have regard to all the circumstances of the case. (3) the court ... is to regard the need to safeguard and promote the welfare of the child's life as a paramount consideration and (4) the court ... must

so far as reasonably

practicably have regard in particular to:-

(a) the value of a stable family unit in the child's development and (b) the child's ascertainable views regarding the decision (taking account of the child's age of persuasion, racial origin and cultural original

maturity); (c) The child'sreligious

linguistic background and (d) the likely effect ton the child throughout the child's life of the making of an Adoption Order.

Section 86 of the 2007 Act enjoins the court to permit representations to be made from parties including any person who claims an interest. Section 86 of the 2007 Act permits the court to make an order providing for a supervision requirement to cease to have effect, where the conditions stipulated apply.

The relevant authorities.

statutory provisions

have been discussed in a number .of recent

The first question is whether or not to grant a Permanence Order; in

making that decision the court requires to be satisfied that it would be better for the child that the order be made than that it should not be made (8.84(3». In considering the matter, the court requires to regard the need to safeguard and promote the welfare of the child throughout childhood (s 84(4». The court has to be satisfied that there is no person having a section to one a parental right or if there is such a person is the child's residence with that person seriously detrimental to the welfare of the child or is it so likely to be so (s.84(5)(c).

Only if a decision to make reached.does

a Permanence

Order with or without ancillary provisions is

the court move on to consider whether an order granting authority for In determining that matter the legislation sets out a

adoption should also be made.

18
~
,,--

.~

,

..

,

:

two stage test for dispensing with parental consent. The first stage of the test involves the determination as a matter of fact whether or not a ground for dispensing with consent is established and if it is then the court applies the provisions of section 14 of the Act and having regard to those considerations including all of the circumstances of the case and the need to provide and safeguard the welfare of the child throughout its life decide whether or not consent should be dispensed with.

I had the benefit of written submissions from all parties as well as proposed findings

in fact. As is clear from my findings in fact I preferred the petitioner's evidence in all
respects over that led by either respondent. The child C has never been looked after by either respondent. A place of safety order was secured in hospital following the

child's birth when C was 4 days old. C at that time was suffering from neonatal abstinence syndrome and clearly require expert care. Neither respondent would agree to social work involvement. Formal steps were required to be taken.

Following on from that initial stage the narrative which ensued is one where, despite promises from time to time and best intentions no doubt at various stages the respondents simply put their own needs first and failed appropriately to prioritise the interest of C. There is no doubt that each respondent has some love for C but that love needed to be supported by constructive acts particularly in a situation where the child C had such a poor start in life with her life because of neonatal abstinence syndrome being profoundly compromised.

Much evidence was led on the contact which took place between C and each respondent either separately or together when C was with Dorothy Scott her foster carer until contact ceased in July 2010. Clearly the quality of contact varied but at best was not of a great quality, Dorothy Scott gave evidence which I accepted critical of the parents about C's upset and distress. Evidence oflack of much of a bond came from those who observed contact.

However of greater significance regarding contact was the evidence given by Dr Valerie Cairns a most impressive witness suitably qualified. She had difficulty in I also

getting the co-operation of the parents for reasons she gave which I accept.

19

accepted that she was not an "expert for hire" as suggested by Mr Aitken for the second respondent but an expert, well aware of her duty to the court whose opinion couldand should be relied upon. It was Dr Cairns who gave evidence. of C being,

during contact, in a disassociative state similarly spoken to by Lorna Nichols who observed contact as an insecure disorganised attachment on the part ofC; a state when C apparently unsure as to her parents' reaction responded by

"withdrawal/disassociation

during contact itself, distress on arrival at the contact

venue and regression to previous maladaptive behaviour patterns in the aftermath of contact" (Dr Cairns report para 6.4.1).

Additionally particularly with regard to the second respondent and to some extent on the part of the first respondent the hostility exhibited by the respondent in relation to the operation of contact and co-operation with the social workers involved mitigated against any successful operation of contact leaving the stress of the fall out on the child C.

Dr Cairns opinion which I accept is that the negative impact of direct ongoing contact far outweighs the positive advantages.

Further C has had to cope with the change from being cared by Dorothy Scott to new foster carers who are prospective adopters. As at the date of evidence that transition had been effected and C was coping well. The respondents have had no contact with C since that move in July 2010 and I accept that there is no positive benefit now at all to reintroduce direct contact given what occurred in the past and C's reactions to that.

The petitioners,

as supported by Dr Cairns, support indirect contact, that to be

facilitated by the Scottish Adoption Agency and what is in mind is indirect contact twice each year in both directions via a safe post box. It is best in this case that C's knowledge when she is growing up about who she is, where she comes from and why she is being brought up separately from her birth family is informed in this way.

In all the circumstances on the evidence I heard and partly refer to I am satisfied that the statutory tests as set out have been met and that the permanence order with

20
.
:

authority to adopt should be granted all as set out in the interlocutor above and that indirect contact between the respondents and C should operate as described.

The Adoption and Children (Scotland) Act 2007 came into force on 30 September 2009. The law was largely undeveloped then and only one case had been decided

following upon evidence and submissions at Proof (Petition of East Lothian Council re LSK) subsequently appealed and heard by Sheriff Principal Bowen QC at

Edinburgh Sheriff Court on 8th March 2011 and 13th July 2011.

Thereafter there has followed a raft of case from which the proper approach is readily identifiable and as Mr Aitken for the second respondent submitted in his

supplementary submissions on the law, the approach he had urged upon the court in the submissions he had made in January 2010. It is noted that in this case that all parties by the end of the submissions were agreed that the approach to be taken in this case was that taken by Mr Aitken - and thereafter subsequently approved. Further I

have had the benefit of the Inner House decision on the LSK case referred to above dated
17th

January 2012.

Finally I am obliged to all parties Ms Malcolm, Mr Murray and Mr Aitken for their thorough submissions and discussion thereon.

21

.... ..

Sign up to vote on this title
UsefulNot useful