MR AND MRS P AGAINST LD, SW AND JD [2016] ScotSC 6 (24 August 2016)

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

[2016] SC GLA 56

SN035/14

JUDGMENT OF SHERIFF AISHA Y ANWAR

in the cause

MR AND MRS P

Petitioners

against

First Respondent

Second Respondent

and

Third Party Minuter

Act: Mr Thomson, solicitor

Alt: Mr Allison, solicitor (First Respondent)

Ms Rahman and Mr Mallon, solicitors (Second Respondent)

Ms Doyle, solicitor (Third Party Minuter)

GLASGOW, 20 July 2016. The sheriff having resumed consideration of the cause, Finds the following facts admitted or proved:

(1) The petitioners are a married couple resident in the jurisdiction of the court. They have applied to adopt the child C, born January 2012.

(2) The first respondent, LD, is 23 years of age. She is the child’s natural mother and holds full parental rights and responsibilities in respect of the child. The second respondent, SW, is 34 years of age. He is the child’s natural father. He does not hold any parental rights or responsibilities in respect of the child. The minuter, JD, is 44 years of age. She is the maternal grandmother of the child. She does not hold any parental rights or responsibilities in respect of the child.

(3) LD was raised by JD. LD does not have a relationship with her natural father. LD has a female half sibling, ND aged 14. LD was subjected to bullying at school as a result of which she truanted. She was placed on a supervision order by a Children’s Hearing from September 2007 until November 2008. For a short period, until the age of 16, Social Work Services provided support to LD focusing on anger management work, education and her relationship with her mother.

(4) LD entered into a relationship with SW when she was 17. That relationship endured for approximately two years.

(5) At the age of 18, in October 2010, LD was made subject to a 12 month Probation Order following convictions for breach of the peace and police assault. During the Probation Order, Social Work Services provided support to LD focussing on her anger management difficulties. LD successfully completed her Probation Order in September 2011.

(6) In 2011, LD became pregnant. LD had a difficult pregnancy and suffered illâ€‘health. SW did not visit LD during her pregnancy.

(7) Following her birth in January 2012, C was discharged into LD’s care. She resided with LD, JD and ND, in JD’s home.

(8) On 25 January 2012, Social Work Services received a referral from C’s health visitor. The health visitor reported to social workers that she was concerned for the welfare of both C and ND due to (a) JD and LDs’ volatile behaviour during her meeting with them at JD’s home on 25 January 2012 and (b) LD’s refusal to provide information to the health visitor regarding C’s paternity (19/7 and 19/8 of process).

(9) Police officers have attended at JD’s home on a number of occasions in relation to altercations between LD and JD. The altercations between LD and JD have been verbal and physical in nature and have taken place while C has been present within the home. JD and LD have been aggressive, abusive and confrontational with each other. Frequently, the altercations have related to LD’s care of C.

(10) On 28 May 2012, JD requested police attendance at her home. JD had been assaulted by LD.

(11) On 2 July 2012, Social Work Services received a referral from local police (19/10 of process). Officers advised that they had attended JD’s home following a report of an altercation between LD and JD. The child C was present. JD told officers that she wanted LD and the child C to leave her home. Police officers removed LD and the child. Homeless accommodation was acquired for the night for LD and the child, however, LD deemed this to be unsuitable and stayed overnight at a local hotel instead.

(12) On 3 July 2012, LD and the child moved to reside within temporary accommodation.

(13) On 6 July 2012, LD left her temporary accommodation with C, to stay at the home of a friend.

(14) LD and C returned to reside with JD on or around 25 July 2012.

(15) On 26 July 2012, a social worker attended JD’s home. JD advised the social worker that she was concerned about the way that LD was speaking to the child C, and that previously, LD had thrown the child on to a bed and demanded that JD take care of the child.

(16) On 26 July 2012, a public health nurse attended JD’s home and met with LD and the child. The nurse submitted a referral to the Social Work Department (19/11 of process). The referral records that LD had told the nurse that “a few days ago, she wanted to kill C”. The referral records that LD had used illicit drugs. The referral records that the nurse felt the child was at risk of significant harm.

(17) Between August and October 2012, social workers sought to provide LD with assistance. In particular, Social Work Services funds were procured to allow LD to purchase provisions for C. LD was assisted to pursue alternative housing through the Local Authority. She failed to attend for housing appointments. Social workers also recommended that LD access the advice, support and guidance available to parents at a Family Centre. They made a referral for her to do so. She refused to do so (19/4/171 of process). LD advised social workers that she had been told by JD not to allow social workers into JD’s home. JD did not wish LD to attend the Family Centre recommended by Social Work Services (19/4/170 of process).

(18) On the evening of 29 October 2012, LD and JD argued. The argument related to LD’s care of C. C was present within JD’s home. LD was verbally abusive. LD smashed items of furniture within JD’s home. JD contacted police officers. LD again left JD’s home with the child C, to reside with one of LD’s friends.

(19) On 30 October 2012, JD contacted Social Work Services. JD reported that LD had shouted and sworn at the child. JD reported that LD had shouted at the child to “shut the **** up or I will smother you”. JD reported that LD was spending money on cannabis leaving JD to buy provisions for the child. That evening, LD returned with the child to JD’s home in order to collect some possessions. Police officers attended JD’s home. JD advised LD that she had contacted Social Work Services and had told them that LD could not care for C. LD believed that Social Work Services were intending to remove the child from her care. LD made a superficial cut to her wrist. Emergency social workers attended at JD’s home. It was agreed that JD would assume responsibility for the care of the child during the night of 30 October 2012. Ambulance staff attended at JD’s home, but LD declined to attend hospital with them.

(20) On 31 October 2012, social workers attended JD’s home. JD and LD shouted and screamed at each other in the presence of the child. Neither JD nor LD was able to refrain from doing so despite the intervention and presence of social workers. The child, C was unresponsive to the level of hostility displayed in her presence. LD attempted to self-harm by using a kitchen knife to cut her wrists.

(21) An application was made by Social Work Services for a child protection order (“CPO”) on 31 October 2012 (item 9/14). A CPO was granted at Hamilton Sheriff Court (16/1/5 of process). The sheriff ordered that C be accommodated by the local authority and placed with foster carers. The sheriff ordered that the locality of the place of safety should not be disclosed to LD and directed that LD’s contact with the child be at the discretion of Social Work Resources.

(22) Later that day, social workers attended to serve the CPO and to remove C. JD refused entry to her home. Police assistance was requested. Access was gained to the house. JD took C into a bathroom and refused to allow the workers and officers’ entry. LD had a large knife and threatened to self-harm. JD and LD required to be physically restrained by police officers and back up police support required to be requested.

(23) On 2 November 2012, a Children’s Hearing was convened in respect of the child. The hearing decided to continue the CPO with directions inter alia that LD and the child have contact a minimum of three times per week for one hour, supervised by Social Work Resources.

(24) On 9 November 2012, a Child Care Review was convened in respect of C. LD did not attend.

(25) A care plan was devised on 9 November 2012 (19/15 of process). The care plan noted that LD required inter alia one to one parenting advice, a referral to the Substance Misuse Team and a referral to the Community Psychiatric Nurse. It also noted that LD required to attend housing appointments.

(26) On 12 November 2012, a Children’s Hearing was convened in respect of the child and directed the Reporter to make an application to the sheriff for a finding in relation to grounds for referral. The hearing issued a Place of Safety Warrant in terms of section 66(1) of the Children (Scotland) Act 1995 and ordered the non-disclosure of the child’s address to LD. The panel made it a condition of the warrant that the child have contact with LD a minimum of three times per week for one hour, supervised by Social Work Services.

(27) On 3 December 2012, a Children’s Hearing convened and renewed the place of safety warrant with the same conditions.

(28) On 13 December 2012, a Looked After and Accommodated Child Review Meeting (“LAAC Review”) convened in respect of C. LD did not attend. The social worker’s report for the LAAC Review recorded inter alia that a referral to the Substance Misuse Team had been made for LD but she had not engaged with the Service and that a referral had been made to the Community Psychiatric Nurse for LD (19/23 or process). It also recorded that LD had contact with C three times a week and that C responded to the affection shown to her by LD.

(29) On 14 December 2012, grounds of referral were established at Hamilton Sheriff Court that, in terms of section 52(2)(c) of the Children (Scotland) Act 1995, C is likely (i) to suffer unnecessarily; or (ii) be impaired seriously in her health or development, due to a lack of parental care. The statement of facts in support of the grounds of referral narrated (a) that LD and JD have a volatile relationship which shows no regard for C’s safety and welfare; (b) that since August 2012 or thereby, LD had not engaged to an acceptable level with the Social Work Department; (c) that LD misuses cannabis regularly which has a detrimental impact on her ability to provide a consistent, reasonable standard of care for C; (d) that LD experiences periods of low mood and engages in self-harming behaviour; and (e) that LD fails to meet C’s basic care and emotional needs (16/1/17 of process). JD was not a party to those proceedings.

(30) On 20 December 2012, a Children’s Hearing continued the Place of Safety Warrant with the same conditions.

(31) On 4 January 2013, a Housing Support Worker wrote to Social Work Services, advising that LD had been discharged from the service owing to her nonâ€‘engagement (19/26 of process).

(32) On 9 January 2013, a Children’s Hearing convened and was attended by LD and JD. The Hearing made a supervision requirement in terms of section 70 of the 1995 Act, with the condition that C shall reside with her foster carers; that C have contact with LD a minimum of three hours per week, supervised by the Social Work Department; and that the place where C resides should not be disclosed to LD or to JD.

(33) On or around 25 January 2013, a Social Work Resources Working Agreement was prepared and signed by LD and social workers (19/29 or process).

(34) LD interacted well with C during contact and was able to demonstrate her love and affection for the child. She was able generally to take instructions from social workers during contact. However, she also became easily frustrated with C when she cried or required soothing. On one occasion, she shouted at C to “shut up” and handed her back to social workers.

(35) Social Work Services offered parenting sessions designed to provide support to LD and to assess her parenting capacity. LD attended 7 out of 8 of the scheduled parenting sessions. However on the 6 and 7 sessions, social workers were unable to carry out parenting work with LD as discussions were focussed on LD’s difficulties at the time, which included her relationship with JD and her drug debts.

(36) LD failed to attend for contact with C on 8, 15 and 18 February and on 22, 25 and 28 March 2013. LD last attended for contact with C on 18 March 2013. Efforts were made by social workers to contact LD. LD contacted Social Work Services on 24 April 2013. She advised them that she was suffering from depression, had been self-harming and did not have the financial means to attend for contact with C. She did not ask that contact with C be reinstated. LD attended a meeting with Social Work Services on 7 May 2013. LD was aware, from the discussion that took place at that meeting, that she was required to attend on the scheduled contact dates to show her commitment to contact, before contact with C would resume. She did not do so.

(37) On 20 March 2013, a LAAC Review convened in respect of the child. LD did not attend. At the review, social workers reported that LD was facing further criminal charges; that LD had missed appointments with Substance Misuse Services; that LD had presented as unstable with suicidal thoughts and self-harming behaviours; that LD had failed to engage with the Community Mental Health Team; that she had failed to engage with Housing Services; and that she was at risk of being evicted from her temporary accommodation. The social workers also noted that LD had attended for meetings in accordance with the terms of the Social Work Resources Working Agreement. The LAAC Review decided a Permanency Planning Meeting was required while a Parenting Assessment in respect of LD was on-going (20/35 or process).

(38) The Parenting Assessment in respect of LD was completed in April 2013. The Assessment concluded that C could not be returned to LD’s care due to lifestyle concerns and LD’s inability to meet C’s needs. The Parenting Assessment was not, thereafter, reviewed by social workers as there had been no appreciable change in LD’s circumstances and she continued to disengage from Support Services.

(39) On 15 April 2013, a Permanency Planning Meeting convened in relation to C. The meeting decided that a plan for the permanent care of C outwith LD’s care should be pursued and that the plan for C’s rehabilitation to LD’s care had not progressed and should, therefore, be ruled out (20/44 of process).

(40) On 24 April 2013, Colin Adams, Social Work Team Leader, wrote to the Children’s Reporter, requesting that a Children’s Hearing be arranged to review C’s supervision requirement (16/1/26 of process). Mr Adams stated:

“The child’s mother has not attended for contact for the past five weeks and has disengaged from other support packages… Given the current failure of the mother to engage with the rehabilitation plan the conditions of contact in the current order cannot be met….”

(41) On 13 May 2013, a LAAC Review convened in respect of the child. LD did not attend. The Review considered the recommendations of the Permanency Planning Meeting of 15 April 2013. The Review concluded that a plan for adoption was in the best interests of the child (20/47 and20/48 of process).

(42) On 17 June 2013, a Children’s Hearing was convened. LD did not attend. As the Hearing was not satisfied that LD had received notification of the hearing, it was continued to 1 August 2013. On 1 August 2013, the hearing was continued again as LD had not received her papers in advance of the Hearing. On 19 August 2013, a Business Meeting was convened by the Children’s Hearing. It decided to appoint a legal representative to LD under the terms of the Children’s Hearing (Legal Representation) (Scotland) Rules 2001. The panel was concerned about LD’s mental wellbeing and her ability to fully participate in and understand the proceedings (16/1/32 of process).

(43) On 12 August 2013, a LAAC Review convened in respect of the child. LD did not attend. The social worker reported that there had been no contact between LD and C since 18 March 2013 and that at a meeting on 7 May 2013, LD had been asked to commit to contact before it could be re-established. The social worker noted that LD had been uncontactable for a significant period but had been in touch again asking for contact. The Review decided that attempts to contact LD to reassess her for contact should continue (20/58 and 20/59 of process).

(44) On 12 August 2013, JD wrote a letter and delivered this to the Scottish Children’s Reporter Administration which the Reporter’s office forwarded to Social Work Resources (5/3/64 of process). JD sought contact with C.

(45) A Child Integrated Assessment and Plan Report was produced by Laura Anderson, Social Worker, dated 13 August 2013 (5/3/61 of process). Ms Anderson noted that there had been little change in LD’s lifestyle and recommended that the condition of contact in the supervision requirement be reconsidered.

(46) On 29 August 2013, a Children’s Hearing convened in respect of the child. LD did not attend. In its reasons for its decision, the Hearing noted that LD’s legal representative had attended the hearing but had not met LD and was unable to represent her views. JD attended the Hearing. The Hearing noted that the social workers and JD agreed that “L’s lifestyle still posed a risk to C and that she would not be able to look after C”. The Hearing noted that there was a disagreement between JD and social workers regarding the best place for C to reside in the future. The Children’s Hearing appointed a safeguarder to look at inter alia the most appropriate place for C to reside in the future and whether contact should be re-established with LD (16/1/35 of process).

(47) On 26 September 2013, a Business Meeting of the Children’s Hearing convened. The meeting determined that JD was a relevant person and as such, should be given notice of a Children’s Hearing.

(48) On 14 October 2013, Janette Quinn, Safeguarder, produced a report for use by the Children’s Hearing, which she later retracted as having been submitted in error and in draft (16/3/73 of process). She produced a second report dated 14 October 2013 (16/3/73 of process).

(49) On 24 October 2013, a Children’s Hearing was convened. The Hearing was attended by LD with her legal representative, and by JD. The Hearing appointed a further safeguarder. The hearing was continued to await the safeguarder’s report. The Hearing noted that the relationship between the previous safeguarder and the family had been undermined by her two previous reports. Her second report departed from some of the conclusions in the first (5/1/41 of process).

(50) Linda George, Safeguarder, prepared a report dated 28 November 2013 (20/3/76 of process). The safeguarder noted that she had attempted to meet with and contact LD. She further stated that “given the lack of engagement with the safeguarder, the safeguarder cannot comment on the mother’s views or wishes in respect of [C]. The lack of engagement tells its own story”. Paragraph 6 of the report is in the following terms:

“Any return to her birth family would tend to unsettle the child and allow the child to become again part of what would appear to the Safeguarder to be a chaotic family with a difficult history. The grounds of referral are such that the Safeguarder would have concerns for the continuing care of the child and protection of the child’s safety and future development in the home of either [LD] or [JD]. It may be in the child’s interest to maintain some form of identity by minimal contact with her birth family but given the lack of engagement by [LD] the Safeguarder cannot recommend that. While the Safeguarder believes that [JD] is of the view that she has the child’s best interests at heart, her own current situation makes it clear that the child is best cared for in her present placement and that any contact with [JD] should be minimal and supervised”.

(51) The safeguarder recommended that C remain in foster care and that if the panel felt that contact with the birth family was important, then that contact required to be supervised and of short duration, perhaps once a fortnight, in the Social Work Offices, with JD. The Safeguarder further stated that any form of contact with LD would require commitment on LD’s part and that the safeguarder had not seen any evidence of that commitment.

(52) On 12 December 2013, the Children’s Hearing convened and was attended by LD and JD. The Hearing decided to continue the Compulsory Supervision Order in respect of C. The Hearing decided to include in the order directions that C was to have no contact with LD and that C was to have contact with JD once per month for a maximum of one hour, supervised by the Social Work Department. The Hearing noted that the direction that there be no contact between C and LD had been made at LD’s request (16/1/66 of process). The Social Work Department did not agree that contact between JD and C was in C’s best interests, however, arrangements were made for contact as directed by the Hearing.

(53) A Social Work Resources Working Agreement was prepared and entered into by social workers and JD on 7 and 8 January 2014 (20/3/77 of process).

(54) A LAAC Review in respect of the child convened on 3 February 2014. In terms of the minute of the Review, it was agreed that a report be submitted to the Children’s Hearing requesting that contact between the child and JD be terminated (20/3/79 of process).

(55) On 20 February 2014, a Child Integrated Assessment and Plan Report was produced by Laura Anderson, Social Worker (20/3/80 of process). Ms Anderson noted in her report that there was no “appreciable bond or attachment with [JD]”. She noted that there were no particularly obvious impacts on C’s behaviour following the two contact sessions, and that there was “no obvious purpose for this contact and no obvious benefit to C”. Ms Anderson recommended that JD’s contact with C be terminated. She recommended that JD’s status as a relevant person be removed.

(56) On 10 March 2014, a Children’s Hearing Pre-Hearing Panel convened and was attended by JD. The panel decided not to deem JD as a relevant person (16/1/70 of process). JD’s appeal of that decision was unsuccessful.

(57) A further Children’s Hearing was convened on 8 April 2014. LD attended. The Hearing decided inter alia to deem C’s foster carers as relevant persons in respect of C; to continue and vary the Compulsory Supervision Order, dated 12 December 2013; to include in the order a measure that C reside with foster carers; that she have no contact with LD; and to delete the condition in relation to contact between the child and JD. In relation to its decision on the issue of contact, the Hearing noted (a) that C had had no contact with LD since March 2013 and it was not considered to be beneficial to re-introduce contact and (b) that C was not benefiting from the one hour monthly contact with JD.

(58) On 18 April 2013, the petitioners were approved by the Local Authority’s Adoption Panel as adopters for one female child aged 0-4 years. On 7 May 2014, a Linking Meeting was convened which considered the child’s need and the suitability of the petitioners as prospective carers of the child. The Linking Meeting unanimously recommended the match between the petitioners and the child.

(59) On 5 June 2014, the Local Authority’s Adoption Panel met to consider C’s needs. The Panel recommended that the child be linked with an adoptive family and placed for adoption. On 16 June 2014, this recommendation was approved by the Head of Service, Robert Swift, Head of Children and Justice Services and Agency decision maker. The Panel also recommended that the petitioners be approved as prospective adoptive carers for the child.

(60) A Child Integrated Assessment and Plan Report was prepared by Laura Anderson, dated 25 July 2014 (16/1/79-91 of process). On 4 August 2014, a Children’s Hearing convened and was attended by LD and JD. The Children’s Hearing decided inter alia to continue and vary the Compulsory Supervision Order, dated 8 April 2014; to include in the order a measure that C reside with the petitioners and; to include in the order a measure of no contact with either JD or LD.

(61) On 11 September 2014, a LAAC Review convened in respect of C. The Review decided inter alia that C should remain within her current placement with the petitioners and that the social workers complete and lodge a report under section 17 of the Adoption and Children (Scotland) Act 2007 with the court.

(62) LD and JD have a volatile relationship which is characterised by incidents of aggression, violence and hostility.

(63) In November 2012, ND was placed on the Child Protection Register under the category of “at risk of emotional abuse”. She was removed from the Register on 27 February 2013.

(64) In September 2013, Social Work Services initiated a child protection investigation after ND sustained a bruise on her face. ND disclosed to school staff that JD had assaulted her. ND was again placed on the Child Protection Register under the category of “at risk of emotional abuse”. ND was removed from the Child Protection Register on 28 May 2014.

(65) JD has had a volatile relationship with ND. JD frequently argues with ND and has difficulties managing her behaviour. JD has, on occasions, physically chastised ND.

(66) In early 2013, Social Work Resources assessed JD as a potential carer for C. Having done so, they considered that it would not be in C’s best interests for her to be placed in the care of her maternal grandmother.

(67) JD has a deep mistrust of social workers. She has been unwilling or unable to engage meaningfully with the social workers involved in the child protection investigations in respect of ND or with those involved in respect of C. JD has been obstructive, offensive and aggressive in her dealings with social workers.

(68) SW has a number of criminal convictions. These include a number of convictions for assault. He has served custodial sentences. On 20 June 2013, he was convicted of a contravention of section 19 of the Firearms Act 1968 and sentenced to imprisonment for 163 days.

(69) SW had contact with C a few times between her birth and July 2012. A social worker visited SW at HMP Barlinnie on 14 August 2013. SW was unaware that C had been accommodated. While incarcerated, and for the period between July 2012 and his incarceration, SW had not sought any information on, or contact with C. Upon being advised that C had been accommodated, SW did not seek contact with her through the Social Work Department, or at Children’s Hearings. He has no appreciable bond with C.

(70) LD has a number of criminal convictions. These include a number of convictions for assault. On 28 October 2010, LD was made subject to a 12 month Probation Order following a conviction for breach of the peace and a contravention of section 41(1)(A) of the Police (Scotland) Act 1967. She successfully completed that order. LD was made subject to a Community Payback Order on 27 November 2013 following a conviction for assault and a contravention of sections 22(1C)(A) and 22ZA(1)(A) of the Criminal Procedure (Scotland) Act 1995. She successfully completed that order. Currently, LD is subject to a Community Payback Order with a condition of supervision imposed following a conviction for assault and a contravention of section 27(1)(A) of the Criminal Procedure (Scotland) Act 1995. That order is due to be completed on 19 July 2016.

(71) LD continues to suffer from anger management issues. She continues to appear to suffer from mental health issues which remain undiagnosed. She continues to refuse to attend appointments with psychiatric services for diagnosis or treatment.

(72) LD is currently in a relationship with PY. PY has a long history of domestic violence towards female partners. There have been a large number of reports of domestic violence perpetrated by PY upon LD. LD has been offered the services of ASSIST but has declined (26/102/3-26/102/42 of process). She has been offered the services of Victim Support but has declined. LD reported to her criminal justice social worker earlier this year that PY had punched her, stamped on her head and kicked her and that he had been remanded in custody.

(73) C underwent a Developmental Medical Assessment on 7 May 2013 and a further Assessment on 8 May 2014. There were no health issues or concerns noted by the assessing practitioner.

(74) C remained in the care of her local authority foster carers from October 2012 to 11 August 2014, when she moved to reside with the petitioners. She has lived with the petitioners on a continuous basis since 11 August 2014. The petitioner’s household comprises the petitioners and the child.

(75) The petitioners will promote and safeguard C’s welfare throughout her life. They have provided a happy, stable and loving family unit for C since 11 August 2014 and will continue to do so throughout her life. The petitioners are C’s primary attachment figures. C has close relationships with each of the petitioners and refers to them as “mummy” and “daddy”. C has close relationships with members of each of the petitioners’ extended families and friends.

(76) The petitioners will provide C with information regarding her birth family, and provide her with emotional support, with the assistance of professionals, when it is age and stage appropriate to do so. C is aware that the female petitioner is not her “mummy tummy”. The petitioners can be trusted to do what is in C’s best interests. Should C wish to contact or meet with members of her birth family in the future, the petitioners will, with the support of professionals, assist her in doing so.

FINDS IN FACT AND LAW:

(1) The first respondent has parental responsibilities and parental rights other than those mentioned in sections 1(1)(c) and 2(1)(c) of the Children (Scotland) Act 1995.

(2) The first respondent is unable satisfactorily to discharge those rights or exercise those responsibilities and is likely to continue to be unable to do so.

(3) The consent of the first respondent to the making of an Adoption Order should be dispensed with in terms of sections 31(3)(c) and 31(4) of the Adoption and Children (Scotland) Act 2007.

(4) The making of an Adoption Order would safeguard and promote the welfare of the child throughout the child’s life.

(5) It would be better for the child that an Adoption Order be made than not.

(6) It would not be better for the child that a condition of contact with the first or second respondent or with the third party minuter, direct or indirect, be contained within the Adoption Order, than for no such Order to be contained therein. Such Orders are not in the best interests of the child and will not safeguard and promote the welfare of the child throughout her life.

(7) Compulsory measures of supervision in respect of the child are no longer necessary.

NOTE:

INTRODUCTION AND BACKGROUND

[1] This is a petition by Mr and Mrs P for an Adoption Order in respect of the child C, in terms of section 29 of the Adoption and Children (Scotland) Act 2007 (“the Act”). LD and SW are C’s natural parents. C is currently 4½ years old. JD, the third party minuter, is C’s maternal grandmother. Neither JD nor SW hold parental rights and responsibilities in respect of C, in terms of section 11 of the Children (Scotland) Act 1995 (“the 1995 Act”).

[2] LD, JD and SW oppose the petition. LD does not seek the rehabilitation of C to her care. Instead, LD, SW and JD invite the court to grant an order for residence in favour of JD, in terms of section 11(2)(c) of the 1995 Act (“a residence order”), and an order imposing parental rights and responsibilities upon JD, in terms of section 11(2)(b) of the 1995 Act. In that event, the court is invited to make an order regulating LD’s and SW’s contact with C, if necessary, in terms of section 11(2)(d) of the 1995 Act. On behalf of LD, the court was invited to grant an order for supervised contact with C, if that was considered necessary and, moreover, if considered necessary, to make such an order “conditional upon LD’s treating physician (or a consultant psychiatrist who has formally assessed LD’s mental health) concluding that LD’s mental health is sufficiently stable that supervised contact would not pose a risk to C”[1]. JD invites the court, if it is considered necessary, to make an order depriving LD of her parental rights and responsibilities in terms of section 11(2)(a) of the 1995 Act.

[3] In the event that the court is not persuaded to grant a residence order in favour of JD, the court is invited to refuse the prayer of the petition and to grant a residence order in favour of Mr and Mrs P, with orders for contact (direct or indirect) in favour of JD, LD and SW.

[4] In the event that the court is persuaded to grant an Adoption Order, the court is invited to attach conditions to that order allowing JD, LD and SW contact (direct or indirect) with C, in terms of section 28(3) of the Act. Failing such orders for contact, JD invites the court to attach a condition to any Adoption Order, that C’s views on contact be sought when she reaches the age of 12. On behalf of LD, the court was invited to make an order for direct contact four times a year, which failing, an order for indirect contact (letterbox) four times a year.

[5] Mr and Mrs P were represented by Mr Thomson. LD was represented by Mr Allison, JD by Ms Doyle and SW by Ms Rahman and subsequently by Mr Mallon.

[6] The petition was lodged in November 2014. Parties set about recovering documents by way of commission and diligence. On 24 April 2015, JD was sisted as a party to the action and allowed 28 days to lodge answers. This matter first called before me on 5 June 2015 when I assigned a diet of proof (for 22, and 23 October and 7, 8, 9, 10 and 11 December 2015) and appointed parties to lodge a joint minute of agreement (setting out an agreed chronology of events), notes of disputed issues, affidavits for the petitioner’s witnesses as substitute for evidence-in-chief, and list of witnesses, seven days prior to the pre-proof hearing assigned for 28 August 2015. On 28 August 2015, a further motion by the petitioners for the recovery of documents was granted (in relation to the recovery of ND’s social work records) and a further pre-proof hearing assigned for 9 October 2015. The petition next called before me on 20 October 2015 when all parties conjoined in a motion to have the first two days of the proof diet discharged. At that stage, Mr Thomson had only recently recovered ND’s social work records which required to be disclosed and considered by the other parties and Mr Allison explained that Dr Robinson (an expert witness instructed on behalf of LD) had further enquiries to undertake before she could complete her report. I discharged the two proof diets in October and having been advised by all of the agents that five days would suffice, I retained the proof diets for December. I fixed a pre-proof for 1 December 2015 setting out a timetable for the lodging of Dr Robinson’s report and the affidavits for the petitioner’s witnesses. I raised with Mr Allison the need for Dr Robinson to meet with the relevant social workers, in order to focus the matters in dispute. I made it clear to parties that I expected the proof to proceed in December 2015 and impressed upon parties the need to deal with this matter expeditiously.

[7] Owing to an administrative oversight in the allocation of proof diets, the proof commenced on 8 (rather than 7) December and evidence was also led on 9, 10 and 11 December. As the evidence was not completed, I arranged for the court diary to be reorganised to accommodate further diets with as little delay as possible. 23, 24 and 25 February were assigned. Unfortunately, LD was unable to attend on 23 February due to ill-health and these dates were discharged. Court diaries were again re-arranged and evidence was then led on 30 and 31 March, 1 and 20 April and 6 May. Parties were invited to lodge written submissions by 9 May and a hearing on the submissions, at which each agent was allocated 30 minutes to address the issues arising in the submissions of any other party, took place on 10 May 2016.

[8] I am grateful to parties’ agents for producing written submissions. In light of the voluminous productions lodged (which amounted to some 1500 to 2000 pages)[2], the extensive parole evidence led, the number of factual and legal issues raised, and the range of orders I was invited to consider making, it has not been possible for me to issue a decision in this matter within the statutory timescales, as I had fully intended. I appreciate, and am aware of, the need to bring this matter to a swift conclusion for all those involved. However, the delay in issuing this decision, was, I regret, unavoidable.

[9] The background to this matter is set out in the findings-in-fact. Parties lodged two joint minutes, the first of which was fairly extensive and agreed much of the chronology of events. The parties also agreed in terms of that joint minute (37 of process) that the items contained within item 1 of the petitioners’ first inventory of productions and all of the items contained in the petitioners’ second, third and fourth Inventories of Productions were true and accurate copies. They did not, however, go so far as to agree that the content of these documents was true, agreed or could be admitted as evidence without the necessity of being spoken to. The affidavits lodged adopted a number of the productions. I have found it to be no easy task to identify exactly which documents were spoken to or adopted by the witnesses.

[10] Arguably, as LD did not seek the rehabilitation of C to her care, a number of the disputed facts (such as the adequacy of LD’s Parenting Assessment or the circumstances in which contact between C and LD ceased) were not strictly relevant. These issues were the subject of extensive and lengthy cross-examination. However, there was no concession on behalf of LD that her consent required to be dispensed with in terms of section 31(3)(c) or (d) of the Act. There was no concession that she should be deprived of all of her parental rights and responsibilities in the event of a residence order being granted in favour of JD. It is thus necessary to consider fully, and to form a view upon, these disputed issues of fact.

THE EVIDENCE FOR THE PETITIONERS
[11] Six witnesses were led on behalf of the petitioners, each of whom also adopted the terms of his/her affidavit. Those witnesses were (a) Laura Anderson, the allocated social worker for C; (b) Colin Adams, formerly Team Leader and Laura Anderson’s Supervisor; (c) Laura Richardson, Social Worker, responsible for the child protection investigation in relation to ND; (d) Jane Ross, Social Worker and Team Leader, responsible for supervising and overseeing the child protection investigation in relation to JD’s younger daughter, ND; (e) Gillian McAvoy, Criminal Justice Social Worker and Supervising Officer currently working with LD, and; (f) Lynda Horn, Social Worker, responsible for assessing, training and supporting prospective and approved adopters. Items 43 to 48 of process are the affidavits of these witnesses. The female petitioner also gave evidence.

[12] I found each of the petitioner’s witnesses to be reliable and credible. Where the evidence was subject to challenge on any relevant disputed issue of fact, I have set out why I preferred the evidence of each of these witnesses below. I formed the view that each of the petitioner’s witnesses endeavoured to answer questions in a straightforward manner, including under extensive and lengthy cross-examination. In particular, I did not form the impression (as both Mr Allison and Ms Doyle invited me so to do) that any of the social workers involved in the management of C’s care had formed an early or entrenched view in relation to permanency planning for C. I did not form the impression that the social workers were unwilling to work with LD or JD or that their engagement with LD or JD was superficial or influenced by a negative view of either of them. Each of the social workers appeared to me to be endeavouring to assist and support both LD and JD, in very difficult circumstances.

Laura Anderson

[13] Laura Anderson became the allocated social worker for C around mid-December 2012, at which time the care plan for C included a Parenting Capacity Assessment of LD to assess whether C could be rehabilitated into LD’s care. She spoke to the terms of the Working Agreement which was drafted by her jointly with her co-worker, Natalie Orr, and signed by LD on 25 January 2013 (26/29 of process) (“the Working Agreement”). She spoke to meetings which took place between herself and LD in which, according to Ms Anderson, issues of concern regarding LD’s lifestyle were discussed. In particular, she referred to having discussed LD’s offending behaviour, her difficulties maintaining secure housing, her difficulties managing finances, her substance misuse, her mental health and her ability to manage contact with C. She spoke to having made it clear to LD that she was expected to improve in these areas of her life as part of the care plan for C. In her view, LD was aware of and understood what was expected of her.

[14] Ms Anderson co-authored the report produced for the court in terms of section 17 of the Act. She explained that in doing so, she took account of the information contained within social work records, information obtained from other agencies and her own observations and assessments. She adopted the terms of Part 1 of the report which sets out a chronology of events.

[15] She was also responsible for compiling reports for the Looked After and Accommodated reviews for C (“LAAC Reviews”). In her affidavit, she adopted the terms of the reports she compiled as part of her evidence (20/34, 20/46, 20/58, 20/78 and 20/97 of process). She attended the Review meetings. She explained that the purpose of these meetings was to allow all the agencies to come together to discuss C and to review her care plan. She stated that she always made LD aware of the date, time and venue for these meetings. She advised LD verbally when the meetings were to take place and invited her to attend. She advised LD of the purpose of the meetings and the nature of the discussions which would take place and of the decisions which might be made. She often sent invitations to LD by recorded delivery post. LD did not attend any of the LAAC Review meetings. She never offered any explanation for her failure to attend. Ms Anderson explained that she made various attempts after each meeting to meet with LD to discuss what had been said at the LAAC Review meeting and to explain the decisions made. Her evidence in relation to these matters was not challenged.

[16] Ms Anderson spoke to the Children’s Hearings attended by her and to the Integrated Assessment and Plan Reports compiled by her for the purposes of the Hearings (20/61, 20/80, 20/94 of process). These were also adopted as part of her evidence. She spoke to LD and JD’s conduct at the Hearings. She spoke to the contact between JD and C. She spoke to the recommendations made in the report of Linda George, Safeguarder (20/80 of process).

[17] Ms Anderson spoke to the range of services and supports offered to LD following C’s accommodation. She described these as being resources which were available to support LD “in every aspect of her life”. LD had an allocated Substance Misuse Worker; the Criminal Justice and Social Work Team were involved with her; Housing Support were assisting her with her housing and budgeting difficulties, which could in turn help LD to create a stable environment for C; she was regularly referred to the Community Health Team in relation to her mental health needs and her selfâ€‘harming behaviour; Adult Services were involved and could identify other services which could be of benefit to her; and she was referred to a Family Centre which provided guidance, advice and support to parents.

[18] Ms Anderson spoke to LD’s lack of engagement with the services offered to her. [19] She also spoke to the contact sessions between LD and C which had been supervised by her, and to her discussions with Ms Orr regarding the sessions which Ms Orr had supervised. She also spoke to the circumstances in which these contact sessions came to an end.

[20] Ms Anderson and Ms Orr were responsible for completing LD’s Parenting Assessment (20/42 of process) (“the Assessment”). In terms of her affidavit, she adopted the terms of the Assessment as part of her evidence. She spoke to the conclusion of the Assessment, namely, that C could not be returned to LD’s care due to concerns in relation to LD’s lifestyle and her inability to meet C’s needs.

[21] She spoke to the relationship between LD and JD and in particular, to the views expressed by LD about her mother. She spoke to her assessment of JD (“JD’s Assessment”) as a potential kinship carer for C, which she co-authored with Ms Orr (20/43 of process). She adopted the terms of JD’s Assessment as part of her evidence.

[22] Ms Anderson also spoke to her meetings with SW and to the views he had expressed to her.

[23] Finally, she spoke to C’s placement with the petitioners. She spoke to her views in relation to the alternatives to adoption and in relation to post-adoptive contact.

Colin Adams

[24] Mr Adams spoke to his role as Ms Anderson’s supervisor. He spoke to the circumstances in which a child protection order had been granted in respect of C. He spoke to his understanding of the involvement of the Social Work Department (“the Department”) with ND.

[25] He spoke to the nature of the relationship between LD and JD.

[26] Mr Adams spoke to the circumstances in which contact between LD and C came to an end; to LD’s lack of engagement with the Department; to the steps taken by the Department to offer her supports and obtain information in relation to her circumstances. He spoke to the LAAC Reviews chaired by him.

[27] He also spoke to JD’s Assessment and to his dealings with her. He provided his views in relation to the operation of contact between JD and C and the circumstances in which it came to an end. He spoke to the views of the Safeguarder. He also spoke to his knowledge of the relationship between JD and ND.

[28] He provided his views on alternatives to adoption and on post-adoptive contact.

Laura Richardson

[29] Ms Richardson is a social worker. She spoke to having received a duty referral in respect of ND in 2013. ND had made an allegation of assault against her mother. Ms Richardson spoke to her involvement in the subsequent child investigation and to her discussions and meetings with JD. She spoke to an earlier child protection investigation involving ND, after C had been accommodated. She spoke to attending a Multi-Agency Child Protection Conference on 8 October 2013. She spoke to her impression of a lack of engagement by JD in the process. She spoke to her meeting with JD on 3 December 2013; to ND’s presentation during a meeting at her school on 19 February 2014; and to the circumstances in which ND was removed from the Child Protection Register on 27 May 2014.

[30] Ms Richardson adopted the terms of the reports prepared by her for the child protection meetings (40/104/198 – 210; 40/104/229 – 239; 20/ 104/127 – 133 of process).

[31] Ms Richardson became C’s allocated social worker after Ms Anderson left the Department, in August 2015. She spoke to the Department’s position with regards to JD’s request to be deemed a “relevant person” for the purposes of the Children’s Hearings in respect of C. She spoke to the decision of the Hearing not to deem her a relevant person and to JD’s subsequent unsuccessful appeal of that decision to the Sheriff Court on 26 June 2015.

[32] She spoke to the Children’s Hearings which took place on 29 June and 3 August 2015. She spoke to the lack of available information regarding LD’s current circumstances. She agreed with the recommendations set out in the section 17 report both in relation to adoption and post-adoptive contact.

Jane Ross
[33] Ms Ross is a Social Work Team Leader. She spoke to her involvement in supervising the social workers involved in the child protection investigation in relation to ND. She spoke to her meetings and discussions with JD in relation to her relationship with ND. She spoke to the Department’s concern both in relation to the allegation of physical abuse which ND had made of JD, and also in relation to the emotional impact upon ND of her relationship with JD.

[34] Ms Ross also became supervisor to Ms Richardson in August 2015 after Ms Richardson became C’s allocated social worker. Ms Ross confirmed that nothing had been brought to her attention which would cause her to re-consider the recommendations of the Department set out in the section 17 report, both in terms of adoption and post-adoptive contact.

Gillian McAvoy

[35] Ms McAvoy is a Criminal Justice Social Worker. She has worked with LD for a period of three years or so. LD’s current period of supervision under the terms of a Community Payback Order is due to expire on 19 July 2016.

[36] She spoke to LD’s views, as expressed to her, in relation to her ability to care for C and how she felt about JD caring for C.

[37] She spoke to LD’s current circumstances, including her relationship with PY. She spoke to the terms of the reports of domestic violence which were sent to her by Police Scotland between 30 June 2014 and 23 January 2015 (26/102/3 – 42 of process). She spoke to encouraging LD to obtain assistance and support from Victim Support Services. LD did not do so. She confirmed that LD remained in a relationship with PY.

[38] She spoke to her attempts at engaging LD in Cognitive Behavioural Therapy Programmes and to repeatedly referring LD to psychologists and psychiatrists. LD did not attend any appointment arranged for her. She spoke to LD’s threats of suicide and to her self-harming behaviour.

[39] She spoke to the criminal justice records (26/102 of process) created by her. She spoke to the terms of the Criminal Justice Social Work Reports (26/102/179 and 26/102/201) and to the Restriction of Liberty Order Assessment (26/102/201) authored by her.

Lynda Horn

[40] Ms Horn is a social worker, employed by the local authority. She is responsible for assessing, training and supporting prospective adoptive carers and approved adopters.

[41] She spoke to her assessment of the petitioners as protective adoptive parents and to their approval as prospective adopters on 18 April 2013. She spoke to the process by which C moved to live with the petitioners on 11 August 2014. She spoke to C’s current circumstances. She spoke to and adopted Part 2 of the section 17 report which had been authored by her. She provided her views in relation to post-adoptive contact.

The female petitioner
[42] The female petitioner spoke to her relationship with her husband and to their circumstances. She spoke to the assessment process by which they became prospective adoptive parents. She spoke to the circumstances in which C was linked with them and to the process by which C came to reside with them on 11 August 2014. She spoke to some of the difficult behaviours displayed by C initially and to how both she and her husband had learned to manage them. She spoke to the strength of the relationship C had with herself and her husband. She spoke to her views on post-adoptive contact and how she would manage C’s requests for information, in the event that the court granted an Adoption Order. She spoke to how she would assist in a transition process, in C’s best interests, in the event that the court refused to grant an Adoption Order. She stated that she would, together with the male petitioner, support C “and do whatever is right for [C] despite any feelings we have for her – it’s all about that little girl and what makes life easy for her”. I found her evidence reliable and credible. She was insightful, perceptive and sensitive to C’s needs. She was able to put C’s interests before her own. Although the petitioners were opposed to any contact between C and her birth family, the female petitioner stated that she would comply with any order of the court.

THE EVIDENCE FOR THE FIRST RESPONDENT, LD

[43] LD attended for the first four days of evidence. She was unfortunately admitted to hospital and unable to attend the continued proof on 23 February 2016. She met with Dr Jacqueline Scott of Independent Psychiatry on 24 March 2016. Dr Scott produced a report which was lodged on behalf of LD (54 of process). I was invited, in terms of paragraph 18 of the Practice Note issued by the Sheriff Principal (Practice Note No 2 of 2009: Adoption and Children (Scotland) Act 2007: Guidance for Sheriffs and Practitioners) (“the Practice Note”) to consider the terms of Dr Scott’s report without the necessity of it being spoken to. Dr Scott formed the opinion that LD found the court process distressing. Dr Scott’s report states as follows:

“41. [LD] appears to be an extremely emotionally immature lady and would possibly struggle having to provide evidence in relation to her daughter’s proposed adoption. She was able to provide a coherent history during the assessment with myself, however, a court setting may be too overwhelming for her and she may become distressed.

42. It is my opinion that she should possibly be deemed a vulnerable witness and have supports in place with her whilst giving evidence, even giving evidence in a separate room via video link.

43. Although she would still find this distressing it is less likely that she would become so overwhelmed by the environment and be more likely to be able to provide a history.

44. It is not my opinion there is any other matter which would be relevant in this case but were she able to give evidence in a separate room with adequate breaks it is likely she would be able to provide evidence regarding her daughter’s adoption. She clearly struggles to discuss any aspects regarding her daughter’s adoption, however this in part is due to her anxiety but also her emotional immaturity.”

[44] LD did not give evidence. It is entirely understandable that she might find the process distressing. However, the court was not invited to consider how LD could be facilitated to give her evidence. No notice in terms of the Vulnerable Witnesses (Scotland) Act 2004 was lodged.

[45] On behalf of LD, I heard evidence from Dr Robinson. Dr Robinson is an independent social worker with impressive academic qualifications. She has been employed in various roles within the social work sector since 1973. She has lectured and written widely on the subject. Between 2007 and 2011, she acted as a Social Work Inspector for the Scottish Government. She has a long history of providing expert reports and opinions to the courts. She spoke to the report prepared by her. While not part of her remit, she also very helpfully answered questions on post-adoptive contact. She took her time to consider carefully the questions put to her. She made concessions when she felt it appropriate to do so. Her evidence was measured, fair and balanced. I accepted her evidence as both reliable and credible.

THE EVIDENCE FOR THE SECOND RESPONDENT, SW

[46] An affidavit had been lodged by SW (57 of process) which was supplemented by his evidence during examination and cross-examination.

[47] SW spoke to his own experiences of the care system. He spoke to his involvement with C after her birth. He spoke to the nature of the relationship between LD and JD and to his views on JD’s parenting abilities. He spoke to his contact with the Department. At times, he appeared to be very insightful and was able to consider matters from C’s perspective. He stated that his preference was for C to be cared for by JD, which failing an Adoption Order should be granted. He accepted that LD was not in a position to care for C. By the close of proof, it was submitted on behalf of SW, that he no longer sought direct contact in the event of an Adoption Order being granted but rather that he sought an order for indirect contact.

[48] I found SW’s evidence generally reliable and credible. However, chapters of his evidence were in my judgment coloured by his clear desire to assist JD in securing a residence order in respect of C. That was particularly the case in relation to his views on her parenting ability (his opinion had changed from that conveyed to Mr Anderson – when advised that the Department was assessing JD as a potential carer for C, he had described that decision as “crazy”) and also in relation to the manner in which he minimised arguments between LD and JD, describing them as “normal mother/daughter stuff”. In my judgment, he exaggerated his account of the contact he had enjoyed with C prior to her accommodation. Where his evidence conflicted with that of the petitioner’s witnesses, I have preferred the evidence of those witnesses.

THE EVIDENCE FOR THE THIRD PARTY MINUTER, JD

[49] An affidavit was lodged by JD (56 of process) which was supplemented by her evidence during examination and cross-examination. On behalf of JD, I also heard evidence from JXD, her sister, who had also lodged an affidavit (52 of process). JXD spoke to JD’s relationship with LD, ND and C. She spoke to the difficulties experienced by LD after C’s birth and to her current circumstances; to C’s removal from LD’s care; to the social work involvement with ND and LD; to her conversations with JD about the same; and to why she felt C should reside with JD. An affidavit was also lodged on behalf of ND (51 of process). However, no evidence was led from ND; the content of her affidavit was not subject to cross-examination. I have thus attached little weight to its contents.

[50] In my judgment, JXD’s evidence required to be treated with caution; it was influenced heavily by what she had been told by JD[3] and by her clear desire to assist her sister. While generally reliable and credible, there were parts of her evidence which were contradictory (for example, in relation to whether she had spoken to LD regarding her future role in C’s life, which I comment upon below).

[51] JD spoke to most aspects of the case and where I have required to resolve a disputed issue of fact, I have set out the nature of her evidence, below. She presented as a deeply passionate lady who was clearly very emotional during chapters of her evidence. It was obvious that she cared greatly for both C and LD. It was clear that she saw it as her responsibility to care for C and ardently wished to do so. In assessing JD’s evidence, I have paid due regard to the emotionally charged situation in which C was removed from her home. I have taken account of JD’s natural suspicion of the social workers involved. Notwithstanding this, however, I regret that at times, particularly during cross-examination, JD was confrontational, meeting challenge with counter challenge. I formed the very clear impression that while she believed that she was acting in C’s best interests, her opposition to the present petition was primarily motivated by a desire to “clear her name” (as she perceived she had been wrongly maligned by social workers) and to assuage the feelings of guilt she was experiencing in relation to the role she played in the incidents which led to C’s removal from LD’s care. She was unable or unwilling to empathise with C’s current situation, viewing matters primarily from her own perspective in terms of the impact of any orders the court may make or refuse to make. I regarded her as an unreliable historian, whose evidence was largely self-serving. In particular, I did not accept as credible her evidence: in relation to the extent of SW’s contact with C; in relation to the circumstances in which LD’s contact with C came to an end; in relation to whether she had sought to prevent LD from engaging in supports offered by social workers; in relation to whether she had sought to prevent ND from working with social workers; and in relation to the extent to which she claimed she had engaged with social workers herself (all of which I comment upon further below). I did not accept her denials of the statements attributed to her by social workers, particularly as regards her comments that she would “hunt down C”. While at times during her evidence, she accepted that she had behaved in a hostile and aggressive manner, she sought on each occasion to justify her behaviour – her actions were, according to her, always misunderstood, or they were a direct consequence of the manner in which she had been treated by others, be they social workers, or her daughters, ND or LD, both of whom she accused of lying. JD was not re-examined in relation to any of her evidence. Where her evidence contradicted that of other reliable and credible witnesses, I have preferred the evidence of those witnesses.

SUBMISSIONS

[52] The parties produced lengthy written submissions, amounting to over 120 pages. I have carefully considered these submissions. For the sake of brevity, I do not intend to rehearse in full, the submissions made. However, I have set out the respective positions of the parties in relation to any relevant legal argument and/or disputed fact, as appropriate. In doing so, I am mindful of the guidance provided recently by the Inner House in MacLeod’s Legal Representatives v Highland Health Board 2016 CSIH 25.

[53] I broadly accepted the submissions for the petitioners and rejected those made on behalf of LD, SW and JD for the reasons set out below.

DISCUSSION

[54] I will deal with the following issues, namely (a) the objections to the admissibility of evidence; (b) the applicable law; (c) the disputed issues of fact; and (d) the application of the law to the facts of this case.

OBJECTIONS TO THE ADMISSIBILITY OF EVIDENCE

[55] A large number of objections were taken by parties, in relation to some of which, evidence was heard under reservation as to its competency and relevancy. I asked parties to set out in their written submissions clearly, which objections they wished to insist upon.

[56] Mr Allison insisted upon his objections to certain aspects of the affidavits lodged on behalf of the petitioner’s witnesses. He relied upon the detail of the objections as set out in the submissions by Ms Doyle[4]. Ms Doyle’s submissions, in turn, made reference only to paragraphs 11 and 16 of Mr Adams’s affidavit and to paragraphs 5, 12 and 13 of Ms McAvoy’s affidavit[5].

[57] In relation to Mr Adams’s affidavit, as I understood Mr Allison’s submissions, he objected to the view expressed by Mr Adams that LD “appeared to be emotionally unstable” and to his evidence that “self-harm was certainly a feature for her”. Further, he objected to the references in paragraph 16 of Mr Adams’s affidavit to the safeguarder’s conclusions. In relation to Ms McAvoy’s affidavit, he objected to paragraph 5 which contained the following statements; “when [LD’s] behaviour deteriorates then she can be very aggressive with people. [LD] comes across as being a damaged and disturbed individual. At times there is no logic to her”. He objected to Ms McAvoy’s references to her attempts at cognitive behavioural therapy with LD and the work she has carried out with her as her supervising officer under a community payback order (para 12). He also objected to the statement by Ms McAvoy that “the trigger for [LD’s] anger or aggressive behaviour is usually in the form of rejection” (para 14).

[58] As I understood his submission, he objected to the admissibility of this evidence on the basis that it was opinion evidence from witnesses who are either not skilled/expert witnesses or who have not been set up as such. He referred to the four considerations which govern the admissibility of skilled witnesses, set out in the recent decision of the Supreme Court in Kennedy v Cordia LLP [2016] UKSC 6, at para 44.

[59] In my judgement, that objection is ill-founded. Neither Mr Adams nor Ms McAvoy provided expert evidence to the court. Each was speaking to his/her own involvement with LD, in his/her capacity as a suitably qualified and experienced social worker. They were both witnesses to fact and that is how I have treated their evidence. It is inevitable that social workers make assessments and form opinions. That is a central function of their role. Even if I am wrong in that view, and the social workers were giving evidence as skilled witnesses, I note that the qualifications and experience of each, which were set out clearly in the affidavits, was not challenged. Insofar as it might be suggested that neither witness was a qualified psychiatrist or psychologist and was thus not qualified to speak to LD’s mental health, neither of them in fact purported to do so. They have each provided their opinions on LD’s presentation (as witnessed by them) being a matter upon which social workers are accustomed to forming views for the purposes of referrals to other agencies. Neither of them sought to provide the court with any diagnosis or clinical assessment in relation to LD’s mental health.

[60] Separately, Mr Allison submitted:

“that evidence of witnesses to fact of the safeguarder’s opinions to the Children’s Hearing; the curator’s opinion to this court; and Natalie Orr’s opinion in the assessments of the first respondent and the third party; is inadmissible as the court cannot be satisfied as competency of the evidence being given by the originating source”[6].

Ms Doyle made a similar submission in relation to the curator’s report.

[61] With regards to the evidence of Ms Orr’s opinion, there was no timeous objection to the evidence of Ms Anderson and Mr Adams relating to Ms Orr’s opinions which formed part of the assessments. The conclusions reached by the safeguarders and by the curator were in fact put to a number of witnesses by both Ms Doyle and Mr Allison during cross-examination.

[62] With regards to objections to the admissibility of the content of the safeguarder and curator’s reports and to Mr Allison’s remaining objections on the admissibility of evidence, these are objections which are not, in my judgment, competently before the court, and for that reason alone, I need make no further comment. Paragraph 17 of the Practice Note is clear in its terms. These objections were not timeously made. There have been two pre-proof hearings in this matter. The issues now raised in written submissions were not raised at these hearings. The issues now raised were not foreshadowed by the Note of Disputed Issues lodged on behalf of LD. Those representing LD could, and should, have raised these objections earlier.

[63] Assuming the objections are competently before the court, had I been required to rule on these objections, I would not have sustained them for the following additional reasons.

[64] Paragraph 18 of the Practice Note states as follows:

“It should be noted that evidence may be presented in the form of affidavits or other written evidence (Civil Evidence (Scotland) Act 1988, section 2; McVinnie v McVinnie 1995 SLT (Sh Ct) 81; Glaser v Glaser 1997 SLT 456). The sheriff is bound to consider reports placed before him or her even if the authors are not called to speak to them, and the strict rules of evidence do not apply (T, Petitioner 1997 SLT 724 at 730L).”

[65] I am satisfied that I can properly have regard to the contents of both the safeguarder and the curator’s reports without the necessity of either being spoken to. It was clear to parties that neither the safeguarder nor the curator appeared on the petitioner’s list of witnesses[7]. It was, or ought to have been clear to all parties that the petitioners were relying upon paragraph 18 of the Practice Note[8].

[66] Mr Allison further submitted that the absence of the ability to effectively challenge the primary source of evidence gave rise to the possibility of a violation of the Article 6 Rights of the respondents[9], “if simply tacitly approved by the court”[10]. I have concluded that I may have regard to the contents of these reports and to the opinions of social workers as spoken to by their colleagues. Clearly, the court requires to assess the weight to be attached to them and, where this evidence is contradicted by other reliable and credible evidence, the court requires to assess which is to be preferred. Whether any criticism that this court has “tacitly approved” the evidence of the social workers is well-founded is, in my judgment, not a matter upon which I can comment further.

[67] Mr Allison also submitted that the

“purely narrative opinions of the ‘assessors’ within the purported parental capacity assessments of each of the First Respondent and the Third Party fall to be excluded from probation as the methodology is not based upon a reliable body of knowledge or experience (or in the alternative, the court cannot be satisfied that they are so based)”[11].

[68] Four issues arise in relation to this submission. Firstly, again, I am not aware of any submission being made on behalf of LD or JD, regarding the admissibility of the terms of the Parenting Assessments of LD or JD, on the grounds that “the methodology was not based upon a reliable body of knowledge or experience” at any pre-proof hearing; of any motion on behalf of JD or LD raising any objection to the lodging of these documents by the petitioners or to the documents being put to witnesses, on those grounds; or of the matter being raised in the Note of Disputed Issues lodged on behalf of LD or JD. Secondly, during his preliminary objections before Ms Anderson was invited to give evidence, Mr Allison intimated a number of objections to the admissibility of parts of her affidavit[12]. Those objections did not include paragraphs 17, 19 and 20 (in which she adopted the terms of her assessment of LD and explained the methodology used), nor paragraphs 24 to 26 (in which she adopted the terms of her assessment of JD and explained the methodology used). Thirdly, Ms Anderson simply adopted her affidavit during examination-in-chief. She was in fact referred repeatedly to the terms of the parenting capacity assessments of both JD and LD, during cross-examination by Mr Allison and Ms Doyle. Finally, during her evidence, as I set out below, Dr Robinson did not take issue with the methodology, framework or model used for the purposes of LD’s Assessment (it having been explained to her that the framework was based on a text published in 2003) nor was there any challenge to Ms Anderson’s qualifications to carry out the assessment. For each and all of these reasons, I regard the submission relating to the admissibility of the evidence of the Parenting Assessments to be entirely without merit. The weight however, which falls to be attached to these assessments, is a separate matter, to which I return below.

[69] For all of these reasons, I have not sustained any of the objections to the admissibility of evidence made on behalf of LD or JD, which had been insisted upon.

THE APPLICABLE LAW

[70] The petitioners seek an Adoption Order, vesting in them parental responsibilities and parental rights in relation to C, in terms of section 29 of the 2007 Act. The requirements of section 29 are satisfied in this case. It is not disputed that the requirements of sections 15, 16 and 17 of the 2007 Act are also satisfied.

[71] Section 14 of the 2007 Act, so far as relevant, provides as follows:

“14. Considerations applying to the exercise of powers

(1) Subsections (2) to (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 throughout the child's life as the paramount consideration.

(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to—

(a) the value of a stable family unit in the child's development,

(b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity),

(d) the likely effect on the child, throughout the child's life, of the making of an adoption order.”

[72] In addition, in terms of section 28(2) of the Act, the court “must not make an Adoption Order unless it considers that it would be better for the child that the order be made than not”.

[73] Section 31 of the Act deals with the issue of parental consent. Insofar as relevant, it is in the following terms:

“31 Parental etc. consent

(1) An adoption order may not be made unless one of the five conditions is met.

(2) The first condition is that, in the case of each parent or guardian of the child, the appropriate court is satisfied—

(a) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of the order (whether or not the parent or guardian knows the identity of the persons applying for the order), or

(b) that the parent's or guardian's consent to the making of the adoption order should be dispensed with on one of the grounds mentioned in subsection (3).

(3) Those grounds are—

(a) that the parent or guardian is dead,

(b) that the parent or guardian cannot be found or is incapable of giving consent,

(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.

(4) This subsection applies if the parent or guardian—

(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act,

(b) is, in the opinion of the court, unable satisfactorily to—

(i) discharge those responsibilities, or

(ii) exercise those rights, and

[74] The remaining provisions of section 31 do not apply to the present case.

Dispensing with consent on the “incapacity grounds”

[75] It is accepted by the parties that only LD is a “parent” for the purposes of section 31(15) of the Act. LD opposes the application and, accordingly, the court must consider whether any grounds for dispensing with LD’s consent have been established, in terms of sections 31(2)(b) and 31(3). On behalf of SW, it was accepted that his consent did not require to be dispensed with[13]. Curiously, however, on behalf of LD, Mr Allison’s written submissions appeared to suggest on the one hand that the court required to dispense with SW’s consent[14], and on the other hand that it did not[15]. His submissions on this point were not elaborated upon during the hearing on submissions. On JD’s behalf, it appeared to be accepted that SW’s consent did not require to be dispensed with but that “the court should still have regard to his views on the matter”[16]. In my judgment, the terms of section 31(15) are clear. SW does not hold parental rights nor does he have parental responsibilities in relation to C. The court does not require to dispense with his consent.

[76] The petitioners rely upon the terms of section 31(3)(c) which applies subsection (4), namely, that LD is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights in respect of C and is likely to continue to be unable to do so, often referred to as the “incapacity grounds”. In the event that the court is not satisfied that LD’s consent can be dispensed with on the “incapacity grounds”, the petitioners rely upon section 31(3)(d), often referred to as “the welfare grounds”.

[77] Mr Allison submitted that beyond the “fleeting consideration” by the Inner House in S v L 2011 SLT 1204, there was little authority on the approach to be adopted by the court in its consideration of the incapacity grounds.

[78] In my judgment, it is clear that whether to dispense with consent on the incapacity grounds requires a two stage approach. The first stage involves an examination of the evidence in relation to each of the conditions of section 31(4), as explained by Lord President Hamilton in S v L, supra;

“…we are satisfied, having regard to the statutory language, that these three conditions are truly cumulative. The first (read short) is that the parent or guardian has parental responsibilities or parental rights other than that of contact; the second is that, in the opinion of the court, that parent or guardian is unable satisfactorily to discharge or exercise those rights or responsibilities; the third is that he or she is likely to continue to be unable to do so”.

[79] Insofar as there was any suggestion in the submissions made on behalf of LD, that the first stage required a broader assessment of the welfare of the child, or a consideration of the tests of proportionality and necessity in terms of Article 8 of the European Convention of Human Rights, I am not persuaded that that is correct. It is noteworthy that there is no reference to a “welfare test” in section 31(4). Mr Allison sought to rely upon the comments of the learned Sheriff Ross in Petition by LD for Adoption of the child, CH, Dumfries 15/09/11 (unreported). That decision pre-dates the decision of the Extra Division in S, Petitioners [2014] CSIH 42, in which their Lordships set out the approach to be taken by the courts thus:

“We consider that, when considering whether or not the incapacity ground applies, the court is engaged, essentially, in a fact finding exercise; what facts are established by the evidence and, on those facts, does the court conclude that the relevant parent or guardian is unable satisfactorily to discharge the rights and/or responsibilities referred to and are they likely continue to do so? Whilst deciding whether or not that is the correct conclusion is, we accept, a matter of judgment, it will be driven very much by the facts of the individual… As for convention considerations, for the same reasons as are given by Lord Neuberger at paragraph 62 of In re B (A Child) (Care Proceedings) [2013] 1 WLR 1911, we do not consider that, at the stage of deciding whether or not the incapacity ground applies, article 8 has any part to play”.

[80] The second stage requires the court to consider whether, having found it established that the incapacity ground applies, consent should be dispensed with, having regard to the considerations set out in sections 14(2), (3) and (4).

[81] Turning then to the first stage and the constituent elements of section 31(4), the relevant parental rights and responsibilities to be considered are those set out in sections 1(1)(a), (b) and (d) and sections 2(1)(a), (b) and (d) of the Children (Scotland) Act 1995. The right (and corresponding responsibility) to maintain personal relations and direct contact with the child on a regular basis is expressly excluded from section 31(4). No party sought to persuade me that because LD’s parental rights and responsibilities had been limited or suspended by the Compulsory Supervision Order currently in place, section 31(4) did not apply (per Lord Glennie in M v F [2012] CSOH 186 cf paragraph 21.53 of Wilkinson & Norrie, “The Law Relating to Parent and Child in Scotland”, Third Edition).

[82] Mr Allison accepted that section 31(4) applied, but submitted that the constituent elements of that subsection had not been made out. In particular, he submitted that:

“the ability to discharge parental rights has to be looked at in the context of what parental rights a parent seeks to exercise…the adequacy of the discharge turns on the parental rights being exercised and (and in the case of the prospective element, the parental rights likely to be exercised)’[17].

He submitted that in the present case, as LD did not seek rehabilitation of C to her care, the court was predominately concerned with LD’s ability to maintain direct relations and exercise contact in a positive way and with her ability to contribute to the direction, control and guidance given to the child. No authority was cited in support of that proposition. Mr Thomson submitted that this approach was incorrect. Mr Thomson referred to the decision of the Inner House in S, Petitioners, supra, noting that there was no indication in that decision that the approach to section 31(4) required to be so restricted.

[83] In my judgment, section 31(4) is not confined to a consideration of the rights and responsibilities which are, as a matter of fact, being exercised by the parent or guardian at the present time or have been exercised in the past, nor is it confined to a consideration of the rights and responsibilities which the parent or guardian wishes to exercise in the future. It refers to the whole suite of parental rights and responsibilities (except in relation to contact). It refers to the parent or guardian’s “inability satisfactorily” to discharge those responsibilities or exercise those rights, without any further qualification. As noted by Lord Glennie in M v F supra, at para 76:

“….the inability test refers to the parent being unable satisfactorily to discharge ‘those responsibilities’ or exercise ‘those rights’. It does not cover a case where the parent can discharge some of the responsibilities or exercise some of the rights, but not others. It seems to me…that on this issue, the court is required to take a broad view and to ask whether, looking at the matter in the round, it has been established that the parent is unable satisfactorily to discharge that package of duties and to exercise that package of rights. It should not conclude that the inability test is not satisfied simply because the parent can discharge one of the duties or exercise one of the rights”.

[84] Indeed the difficulties inherent in Mr Allison’s submission that the prospective element of section 31(4) in this case be restricted inter alia to LD’s ability to maintain direct relations and exercise contact in a positive way, is readily apparent when one considers that the parental right and responsibility to maintain personal relations and direct contact is expressly excluded from section 31(4).

[85] I respectfully agree with Lord Glennie that what is required in terms of section 31(4) is a “broad view”, looking at matters in the round. It encompasses the parent’s personal and physical circumstances, and emotional state as well as mental capacity (see paragraph 21.52 of Wilkinson & Norrie, “The Law Relating to Parent and Child in Scotland”, supra).

[86] Section 31(4)(b) requires the court to form an opinion as to whether a parent is unable “satisfactorily” to discharge the parental rights and responsibilities referred to. I did not understand it to be disputed that the standard expected is not one of perfection; it does not require a parent to be capable of acting alone or unaided; it requires the court to be mindful of the wide range of care and the wide range of parenting abilities in a modern society (Petition by LD, supra at para 28).

[87] Section 31(4)(c) requires the court to form an opinion as to whether a parent is “likely to be unable to continue” to discharge the parental rights and responsibilities referred to. In TW v Aberdeenshire Council 2013 SC 108, the Inner House concluded that:

“what is required of the sheriff is a determination, at the time the application is considered, whether the inability of the parents to discharge their parental responsibilities and exercise their parental rights satisfactorily is likely to continue in the foreseeable future” (para 16, emphasis added).

[88] It was submitted on behalf of LD that she had no onus to show that she could or would – if given the opportunity – discharge her parental rights and responsibilities and that the petitioners required to satisfy the court of the prospective element of section 31(4). It was further submitted that in the absence of sufficient up to date information (including evidence from LD) regarding her present circumstances, it was unsafe for the court to address section 31(4)(c). I do not accept that argument. It is undeniably correct that there is no onus upon LD to establish that she is presently, and will in future, be able to satisfactorily discharge her parental rights and responsibilities. However, as explained by Lady Paton in IS v The City of Edinburgh Council [2012] CSIH 95 (being a decision concerned with an analogous provision relating to dispensing with parental consent for the purposes of a permanence order under section 83(3) of the Act), absent any reliable evidence demonstrating a change in the pattern of behaviour which has caused concerns in the past, the court is entitled to base an assessment of the future upon the evidence relating to the present and to the past. The court must of course proceed on the basis of “cogent evidence, not mere assertion, and must be astute to be satisfied that there is a sufficient evidentiary basis to support the conclusion of the domestic authorities” (M v R 2012, supra per Lord Glennie at para 78, citing Saviny v Ukraine (2010) 51 EHRR 33 at para 51). I accept that in IS v City of Edinburgh supra, counsel for the appellant had conceded that evidence about the appellant’s current circumstances, and her future circumstances, were for the appellant to lead at the proof, and that no such concession was made by Mr Allison in the present case. However, in my judgment, Lady Paton’s comments do not appear to have been predicated upon that concession. Were it to be otherwise, in my judgment, the adoption process, and specifically a consideration of the “incapacity grounds” could be easily frustrated by an absent or reticent respondent.

[89] Mr Allison also submitted that in considering whether LD was likely to continue to be unable satisfactorily to discharge her parental rights and responsibilities, the court is required to assume that there would be a period of rehabilitation and that all required supports and services would be offered to LD. I accept that that approach is correct and I note that it was the approach adopted by Lord Glennie in M v R supra (at para 74) and by Sheriff Ross in Petition by LD, supra (at para 30).

Dispensing with consent on the “welfare” grounds

[90] Section 31(3)(d) only falls to be considered, in the event that the incapacity grounds under sections 31(1)(c) and 31(4) have not been made out. Parties were at one that in order for the welfare grounds to be established, the court must have regard to the matters set out in section 14 (S v L, supra, Lord Reed at paras 30 and 31). As part of the circumstances of the case, the court will also require to take into account the relationship the child has with relatives (per Lord Reed, S v L supra, at para 43, referring to YC v United Kingdom (Application No 4547/10) (unreported) 13 March 2012).

[91] A two stage approach to the welfare grounds, similar to that applied to the incapacity grounds is not necessary (Petition by LD, supra at para 34 and M v F, supra at para 138). Lady Smith summarised the position thus:

“When considering whether or not the welfare ground applies, the court requires first to determine what, as a matter of fact, safeguarding and promoting the welfare of the particular child involves and, looking at the future, will involve, having regard to all of the circumstances, including those factors specified in section 14(4) of the 2007 Act. To that extent, it too involves an initial fact finding exercise. However, the terms of section 31(2)(b) read together with 31(3)(d) show that, if the court is satisfied that the welfare of the child requires it, parental consent must be dispensed with; the court then has no choice in the matter (unlike the situation where the incapacity ground applies). Accordingly, article 8 considerations do, we consider come into play when deciding whether or not the welfare ground is established. To put it another way, the legislative structure in the case of the welfare ground is such that there is no initial threshold to be crossed albeit that there is an initial need to ask, what, as a matter of fact, is involved in the welfare needs of the individual child.” (S, Petr, supra at para 30)

[92] The court may dispense with consent under section 31(3)(d) only if satisfied that the welfare of the child “requires” it. In S v L, supra, Lord Reed provides a very instructive analysis of the test to be applied:

“The word “requires” imposes a high test. That is so as a matter of ordinary English: to say that something is required means that it is not merely desirable or reasonable, but that it is necessary” (at para 32)

And further that:

“…legislation authorising the severing of family ties between parents and their children will not readily be construed as setting anything less than a test of necessity. Section 31(3)(d), in stipulating that the welfare of the child must ‘require’ that parental consent be dispensed with, is consistent with such a test. There must, in other words, be an overriding requirement that the adoption proceed for the sake of the child’s welfare, which remains the paramount consideration. The court must be satisfied that the interference with the rights of the parents is proportionate: in other words, that nothing less than adoption will suffice. If the child’s welfare can be equally well secured by a less drastic intervention, then it cannot be said that the child’s welfare ‘requires’ that consent to adoption should be dispensed with. That requirement is consistent with s.28(2), which prohibits the court from making an adoption order unless it considers that it would be better for the child that the order be made than not. As the Court of Appeal observed in relation to s.52(1)(b) of the 2002 Act in Re P (Children) (Placement Orders: Parental Consent) ([2009] P.T.S.R., p.182, para.126): ‘What is also important to appreciate is the statutory context in which the word ‘requires' is here being used, for, like all words, it will take its colour from the particular context. Section 52(1) is concerned with adoption…and what therefore has to be shown is that the child’s welfare ‘requires’ adoption as opposed to something short of adoption. A child’s circumstances may ‘require’ statutory intervention, perhaps may even ‘require’ the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily ‘require’ that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is ‘required’ is adoption.”(at para 34)

[93] Non-consensual orders for adoption are the most serious and extreme intervention in both the child’s and the parents’ ECHR Article 8 rights and, as such, any order must be both necessary and proportionate. The Extra Division of the Inner House has recently reiterated the importance of these tests in Fife Council, Petitioner [2015] CSIH 74 (at paragraphs 61 and 62), referring to the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and to the decision of the Court of Appeal in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146;

“The requirement of necessity was again stressed by UK Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria), for example, by Lord Neuberger PSC at [2013] 1 W.L.R., p.1939, para 77: ‘… a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions…make it clear that such an order can only be made in ‘exceptional circumstances’ and that it could only be justified by ‘overriding requirements pertaining to the child's welfare’, or, putting the same point in slightly different words, ‘by the overriding necessity of the interests of the child’.”

“Subsequently, the Court of Appeal in In re B-S, under reference to In re B, set out in trenchant terms what was required of a court making an order involving adoption. In the judgment of the court handed down by Sir James Munby P at [2014] 1 WLR, p 570, para 22 the message from In re B was drawn together: ‘The language used in In re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption — care orders with a plan for adoption, placement orders and adoption orders — are ‘a very extreme thing, a last resort’, only to be made where ‘nothing else will do’, where ‘no other course [is] possible in [the child's] interests’, they are ‘the most extreme option’, a ‘last resort — when all else fails’, to be made ‘only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do’” (at paras 61 and 62 of the decision).”

[94] The Extra Division also agreed with the Court of Appeal regarding the essential requirements of a decision relating to non-consensual adoption:

“The court in In re B-S went on to identify two essential requirements in a case in which a court was being asked to approve a care plan for adoption or make a non-consensual placement order or adoption order. First, there was a requirement for proper evidence which must address all the options which were realistically possible and must contain an analysis of the arguments for and against each option. Secondly, there must be an adequately reasoned judgment. At p 575, para 43 the court drew attention to what had been said by McFarlane L J in Re G (A Child) at para 50: the judicial task was to undertake a ‘global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.’”

[95] In the case before me, I have been addressed in detail on the alternatives to adoption and I have sought to analyse the arguments for and against each, undertaking a global and holistic evaluation of each option.

Matters to be considered for non-consensual adoptions

[96] In practice, in dealing with applications for Non-Consensual Adoption Orders, similar considerations will be relevant to a decision on (a) whether, if the incapacity ground is made out, consent should be dispensed with (the second stage of the incapacity grounds); (b) which failing, whether consent requires to be dispensed with on the welfare grounds; and (c) whether an adoption order should be made. I would summarise those considerations as follows:

(a) the court must have regard to all of the circumstances of the case (section 14(2)), including any relationship the child has with relatives (per Lord Reed, S v L supra);

(b) the court is to regard the need to safeguard and promote the welfare of the child throughout the child’s life as the paramount consideration (section 14(3));

(i) the value of a stable family life

(ii) the child’s ascertainable views regarding the decision (taking account of the child’s age and maturity)

(iii) the child’s religious persuasion, racial origin and cultural and linguistic background, and

(iv) the likely effect upon the child, throughout the child’s life, of the making of an Adoption Order (section 14(4));

(d) the Adoption Order must be necessary; not merely desirable or reasonable; it must be a “last resort”, when “nothing else will do” (Fife Council, Petr; S v L ; In re B (A Child) (Care Proceedings: Threshold Criteria); In re B-S (Children)(Adoption Order: Leave to Oppose));

(e) the Adoption Order must be proportionate; it must be for the legitimate aim of protecting the welfare and interests of the child (per Hale LJ In re C and B (Care Order: Future Harm) [2001] FLR 611 at para 33); and

(f) it must be better for the child that the Adoption Order is made than it is not (section 28(2)).

Orders for Post adoptive Contact

[97] In terms of section 28(3) of the Act, an Adoption Order “may contain such terms and conditions as the court thinks fit”. Section 28(3) gives the court a wide discretion as to the nature of the terms and conditions which might be attached to the order.

[98] Mr Thomson submitted that the law in relation to post-adoptive contact remained as stated by the Inner House in B v C 1996 SLT 1370, namely, that such orders will not be appropriate except in very rare cases where the child’s welfare might be prejudiced if a condition to that effect were not made. He submitted that the purpose of an Adoption Order is to place the adopters in the position of parents who inter alia decide with whom the child has relationships. A condition of contact, he submitted, ran counter to that.

[99] It was submitted by Mr Allison that B v C no longer represents good law. He submitted that the decision was based upon previous legislation, which, itself, was based upon the societal norms of the time. Mr Allison submitted that “a shift is occurring in line with research (which it is respectfully submitted is within judicial knowledge) as to the inherent benefits of post adoptive contact” and further that “indirect contact is the ‘bare minimum’ now expected, and direct contact is becoming more frequent”^{^[18]}.

[100] No authority was cited in support of the proposition that indirect contact is the “bare minimum” now expected. Mr Allison’s submission appeared to me to be tantamount to suggesting that there was a shift towards a presumption that post-adoptive contact was desirable in all cases. In light of the paucity of evidence on the issue and the skeletal nature of these submissions, it would be both inappropriate and unwise for this court to accept that such a presumption either does or should exist. Indeed, having examined the authorities in this area, I am satisfied that no such presumption exists. I respectfully agree with the comments of Sheriff Principal Pyle in City Edinburgh Council v L 2011 GWD 27-603 and with those of Sheriff Johnston in Orkney Islands Council v H 2012 GWD 6110 in this regard.

[101] B v C dealt with section 12(6) of the Adoption (Scotland) Act 1978, which is in identical terms to section 28(2) of the Act. An order for post-adoptive contact was made. The opinion of the court was delivered by the then Lord President, Lord Hope, who stated:

“We wish to emphasise, before parting with this case, that we consider it to be an exceptional one, and that we should not like it to be thought that we are offering any encouragement to the court as a matter of course to add conditions about matters arising after the making of the adoption order, especially if they may require variation by the court. The guiding principle is that adoption provides complete security to the child by making the child part of the adopting parents' family. Conditions expressed in favour of third parties, which might make it necessary for the court to become involved in the making of further orders with a view to the child's welfare, will not be appropriate except in the very rare cases where the child's welfare might be prejudiced if a condition to that effect were not to be made. As Lord Ackner observed in Re C, in normal circumstances it is desirable that there should be a complete break from the child's natural family. But each case must be considered on its own facts, and we are in no doubt that the highly unusual background to this case makes such a condition desirable in order to provide support and guidance to all those involved, and above all to the petitioners, in the very difficult decisions which now lie ahead if the child's welfare is to be safeguarded throughout her childhood.”

[102] It is of course now possible for an application for contact to be made, with the leave of the court, by a person who has lost parental rights and responsibilities because of the making of an Adoption Order, in terms of section 11(3)(aa) of the 1995 Act.

[103] In City of Edinburgh Council v S 2000 SLT (Sh Ct) 147, Sheriff Morrison QC had the benefit of expert evidence in relation to developing research into the effects of “open adoption”. He noted that:

“in this country the law and practice has not caught up with [the] change in attitude to contact and open adoptions…I am very conscious of the respect due to the opinion of the court in B v C, but I think that the principle which lies behind it about the clean break nature of adoptions is one which lags behind current thinking.”

Sheriff Morrison QC was dealing with an application for an order freeing a child for adoption under the 1978 Act, in relation to an eight year old child who, it was said, had in the past expressed a view that she wished to have contact with her birth family. In McCreight v City of Edinburgh Council 2003 SLT (Sh Ct) 45, Sheriff Craik QC also referred to the: “growing school of thought that post adoption contact with the natural family, in appropriate circumstances, ought to be encouraged”.

[104] However, more recently in M, Petitioners 2010 SLT 587, Lord Bannatyne refused to make an order for post-adoptive letterbox contact as “there were no circumstances making [the] case of such an exceptional type that it required such a condition to be placed on the order” (at para 135). In that case, the evidence of the experts was to the effect that letterbox contact would be in the interests of the child, however, Lord Bannatyne was persuaded that the petitioner was whole heartedly committed to the best interests of the child and that she could be trusted to allow letterbox contact without the imposition of a specific condition to that effect. Lord Bannatyne was clearly applying the test set out in B v C. It is noteworthy that all of the parties in that case appeared to be in agreement that that was the correct test to be applied.

[105] In City of Edinburgh Council v L, supra, Sheriff Principal Pyle acknowledged that B v C and FB and AB, Petitioners were decisions based upon the 1978 Act. He formed the view that the basic principles of adoption law had not materially changed and that the dicta in each of these cases was entitled to “the utmost respect”;

“the principle of a clean break still forms part of our law and while parties are encouraged to enter into informal long term contact arrangements the law is anxious to discourage the prospect of future divisive and expensive litigation”.

However, again, it is noteworthy that Sheriff Principal Pyle’s comments in that decision are made in the context of a critique of the expert evidence, there did not appear to have been any submissions before him challenging the requirement of “exceptional circumstances” and, indeed, the Sheriff Principal goes on to consider whether post-adoptive contact is in the “best interests of the child”.

[106] In D, Petitioner 2012 SLT (Sh Ct) 23, Sheriff Ross applied the general principle in B v C, namely that in “normal circumstances it is desirable that there should be a complete break from the child’s natural family”. Again, the dicta of B v C did not appear to be contentious as between the parties in that case.

[107] The issue was considered in more detail by Sheriff Ross, with the benefit of expert evidence, in Dumfries and Galloway Council, Petitioner 2013 GWD 31-628. Having analysed the authorities, he commented as follows:

“It seems to me that there is no basis in these authorities for re-wording or placing a gloss on the plain words of the applicable sections - whether section 84(4) in the context of contact after the grant of a permanence order or section 14(3) in the context of adoption. The use of the word ‘exceptional’ is, in the same way as Lord Reed explains in paragraph [44] in S v L, an observation about the rarity of the circumstances in which a contact order is likely to be granted. And, given the additional opportunities for making contact orders introduced by the 2007 Act - in the context of a freeing order (sections 82(1)(e) and 92) or after adoption (the insertion of section 11A into the 1995 Act by section 109) it might be unwise to seek to define or classify circumstances as ‘exceptional’ on the basis of cases decided some time ago, before these legislative changes and before much of the research and academic discussion about the value of post adoption contact.”

[108] I respectfully agree with that analysis. In my respectful judgment, the Inner House in B v C was not laying down a threshold test for post-adoptive contact as being whether there exist “exceptional circumstances” but was rather emphasising the need for the decision maker to have at the forefront of his or her mind the guiding principle that “adoption provides complete security to the child by making the child part of the adopting parents' family”. The court was seeking to emphasise that conditions should not be attached to adoption orders as a matter of course. Each case must be decided on its own facts and it is clear, in my judgment that a departure from the “normal circumstances” in which it is desirable that there should be a complete break from the child's natural family, will be justified only where it established that it is in the best interests of the child to do so.

[109] So what then is the correct test to be applied? In my judgement, the correct test to be applied is reflected in the language used in section 11 of the 1995 Act (being the same test which would apply in the event of an application for contact after an Adoption Order had been made) read together with section 14 of the 2007 Act; that is, (a) whether the order sought is in the best interests of the child and will safeguard and promote the welfare of the child throughout the child’s life and (b) whether it is better that such an order be made than no order be made at all. Indeed, there are references to “the best interests of the child” or the “welfare of the child throughout his or her life” in most of the decisions in this area to which I have referred above. Both Mr Allison and Ms Doyle referred me to the decision of Sheriff Johnston in Orkney Islands Council v H, supra. Sheriff Johnston noted that her decision was based upon “fairly unique circumstances”, however, the test which she appeared to apply was one of what was in the child's best interests throughout her life.

[110] While I appreciate that some of the decisions I have referred to do not deal with adoption orders, the principle appears to me to be the same. I should add that the second leg of the test I have suggested allows the court to leave matters in the hands of the adoptive parents, where they can be trusted to make decisions in the best interests of the child.

[111] Whether an order for post-adoptive contact is in the best interest of a child requires a balancing exercise between securing finality and security for the child on the one hand, and maintaining some link with his/her birth family, where that is considered appropriate, on the other. Indirect or direct post-adoptive contact can assist the adopted child to understand more about his/her background; it can provide the adopted child with reassurance that the birth family continues to take an interest in his/her welfare and in turn enhance the child’s feelings of self-esteem and self-worth; it can allow a link with the birth family to be maintained; and it can allow the child to reconcile conflicting loyalties and feelings of guilt and overcome feelings of rejection, anger and hurt. Such an order, however, carries with it a risk that the child will feel disappointed and confused and even hurt and rejected, if the child develops an expectation that such contact will continue and it does not. If the birth family use the contact as a means of undermining the adoption process, that is likely to have a significant impact upon the child’s sense of security and emotional well-being. If the birth family is not able to communicate appropriately, or to heed advice on the contents of any indirect or direct communication with the child, it will serve very little purpose; inappropriate communications by way of letterbox contact are unlikely to be made available to the child. It is also undesirable to leave a legal avenue open for further litigation in the event of disagreements between parties as to non-compliance with any post-adoption order, or in the event of a change of circumstances.

[112] Having considered all the relevant authorities and the basis upon which orders for post-adoptive contact have been made or refused in the past, the following factors are, in my judgment, relevant to any decision on the issue, namely:

the nature of the child’s bond with, and attachment to, the members of the birth family seeking contact;
the age and, if appropriate, the views, of the child;
the level and nature of the contact currently enjoyed by the birth family, if any;
the benefit derived by the child from such contact, if any;
the risks to which the child may be exposed during such contact, if any;
the ability, or otherwise of the birth family to commit to contact and to heed the advice of professionals in relation to how to manage such contact;
the ability, or otherwise of the birth family to accept the terms of the Adoption Order, to be fully supportive of it, and to refrain from undermining the adoption process or engaging in future litigation; and
the views of the adoptive parents to such contact.

DISPUTED ISSUES OF FACT
[113] I do not consider it to be necessary to set out all of the conflicting evidence in this case. I will deal with those disputed issues of fact which I consider to be relevant to my decision, namely, (a) the extent of SW’s relationship with C; (b) the nature of the relationship between LD and JD; (c) the nature of the relationship between ND and JD; (d) the adequacy of the Assessment; (e) the circumstances in which contact between LD and C came to an end; (f) the extent to which JD can meaningfully engage with social work and other services; and (g) JD’s Assessment. I will also consider LD’s position in relation to C’s future care.

The extent of SW’s relationship with C

[114] It was SW’s evidence that he had enjoyed contact with C at JD’s home, at least every week from when C was three weeks old until she was 7 or 8 months old, until around July 2012, when he was incarcerated. However, he also accepted that there was a period during which he had no contact with C “for a good few weeks” because he had had an argument with LD and he “just decided not to go”. He was clear that his last contact with C was in July 2012.

[115] He accepted that he had not kept in touch with LD or JD nor enquired after C while serving his custodial sentence. When asked why that was, during crossâ€‘examination, he replied “I have no reasonable explanation”. He was informed of C’s removal from LD’s care by social workers whilst in prison. He accepted that he had not approached the Department to seek contact with C; that he had not sought contact with C at Children’s Hearings; and that he had never raised an action seeking contact with C.

[116] Ms Anderson expressed her surprise at the level of contact which SW claimed to have enjoyed with C. Under cross-examination by Ms Rahman, Ms Anderson stated that she had understood from her conversations with LD that SW had seen C only a few times after her birth and that he had no significant involvement with C. She accepted however, that she could not categorically contradict SW’s position. Mr Adams stated that he had been advised by social workers at the time that SW’s contact with C was limited to a very short period after she was born – a matter of weeks, not months.

[117] It was JD’s position that SW had recalled events incorrectly and that in fact he last had contact with C in September 2012. It was her position that he had enjoyed contact with C at least once or twice a week from when C was three weeks old until September 2012. She said that whilst LD was “not keen” on SW having contact with C, JD “made sure he got contact”. However, during crossâ€‘examination by Mr Thomson, the contents of the safeguarder’s report (20/76 of process, dated 28 November 2013) were put to her. As page 10 of that report, in a passage setting out the terms of a discussion or interview with JD, the safeguarder recorded that she had been advised by JD that “[t]he child’s father had seen the child a couple of times but he wasn’t interested in [LD] and he wasn’t interested in the baby. [JD] said that he was never out of prison in any event”. JD was unable to provide a satisfactory explanation for the apparent change of position on her part. Her responses were many and varied – she stated that she might have said something to that effect; she then denied making such comments to the safeguarder; she asked when the report was written; she then stated that she did not know why she would have made these comments. Her position was, simply put, untenable.

[118] I am satisfied, on a balance of probabilities, that SW’s contact with C was more limited than he claimed and that it was limited to seeing her a few times after her birth, as disclosed by JD to the safeguarder and as disclosed by LD to Ms Anderson. Both SW and JD sought to exaggerate the level and nature of his contact with C. I am also satisfied that SW has no appreciable bond with C and has failed to take any action to maintain any contact or relationship with C.

The nature of the relationship between LD and JD

[119] There was ample reliable and credible evidence before the court that the relationship between JD and LD is a volatile one, characterised by incidents of aggression, violence and hostility.

[120] The parties agreed that police had attended JD’s home following two incidents between LD and JD on 28 May and 2 July 2012, and that LD had left JD’s home with C on 3 July 2012 and again on 29 October 2012[19]. In the Answers lodged on behalf of LD, it is admitted that LD “had social work involvement during her childhood in respect of her attendance at school and her difficulties with her mother” and that her relationship with her mother is “difficult”[20]. The Answers go on to aver that the relationship has improved.

[121] In her evidence, JD spoke to a separate incident during which she had been pushed by LD, to which JD had responded by slapping her. JD described this incident as arising from an argument in relation to whether LD was misapplying funds which ought to have been spent on C. She stated that C had been in the family home, but that she had been in another room. She also described LD’s violent behaviour towards her on the day prior to C’s removal from LD’s care.

[122] In terms of the established Grounds of Referral, LD has accepted that she and JD have “a volatile relationship which shows no regard for [C’s] safety and welfare”[21]. JD did not accept the relevant statements of fact and she was not a party to the referral proceedings.

[123] Dr Robinson described LD and JD as having been “trapped into a pattern of arguments – they are a fiery family and spark off each other”.

[124] Ms Anderson described the relationship between LD and JD as “fraught”. She spoke of being told by LA that she had been assaulted by JD over a number of years, that JD had “smashed her jaw” when she was a teenager and that she had required hospital treatment. That allegation was vehemently denied by JD who maintained that LD has a propensity to lie and that there would be no record of any such event in LD’s medical notes. It was put to Ms Anderson that this matter could have been verified by reference to LD’s medical records. Ms Anderson accepted that this matter ought to have been so verified, but also stated that LD had refused to consent to disclosure of her records. In Ms Anderson’s view, whether any such assault had taken place or not, what was important was LD’s perception and how she felt she had been parented by her mother.

[125] Ms McAvoy described LD and JD’s relationship as “volatile”. She described it as “normal” for them to be abusive towards each other and for them to brawl, scream and shout at each other. She had been present on occasions when LD had argued on the telephone with JD and had witnessed what she described as LD “bawling and screaming down the phone”. She had heard JD “shouting and screaming” back. Mr Adams described their relationship as one of “sibling rivalry”.

[126] In her affidavit, Ms Anderson spoke to LD and JD storming in and out of Children’s Hearings if they disagreed with elements of the discussions. At times LD and JD would fight and argue during hearings. At times one of them would leave the room extremely upset and crying. While accepting, under cross-examination by Ms Doyle, that Children’s Hearings can be highly emotionally charged, Mr Adams also spoke to witnessing LD and JD fighting at Hearings.

[127] In its reasons for its decisions, the Children’s Hearing of 4 August 2014 stated (5/1/94-97 of process):

“It has been established that [LD] and her mother have a volatile relationship which was witnessed during the hearing. They argued continually with counter-arguments against each other and at different points, walked out of the hearing room and did not return. It is evident that [LD] is not and will not be able to provide the level of care that [C] deserves. …It is evident that [JD] could not be considered as an appropriate carer for [C] as she would not be able to protect her from this volatile environment.”

[128] I accept JD’s evidence that she has a close relationship with LD and that she cares for her greatly. She spoke to speaking to LD everyday by telephone and to seeing her almost every week. She spoke to the things they do together. I have no doubt that there are periods during which LD and JD enjoy what can be described as a perfectly normal mother/daughter relationship. However, it is clear that their relationship is also characterised by incidents of violence, aggression and hostility. As Ms Anderson described it, issues between them “would escalate extremely quickly and in no time at all”. At such times, JD and LD are unable to regulate their behaviour or pay regard to C’s welfare and interests. They have been unable to do so in the presence of police, social workers and during Children’s Hearings. It is also noteworthy that a number of these incidents have arisen as a result of arguments regarding LD’s care of C. They have different ideas about parenting C. A number of witnesses spoke to LD being protective of her role as C’s mother. JXD spoke to LD shouting “it’s my wee one not yours, butt out” during arguments with JD.

[129] SW spoke to the arguments between JD and LD, describing them as “debates – just mother/daughter stuff”. In my judgment he was downplaying the nature of the arguments between LD and JD.

[130] There was little evidence before the court of any improvement in the relationship between LD and JD. Any such improvement was spoken to by JD and JXD. I have reservations regarding the weight that I can attach to their evidence, in light of my assessment of these witnesses. However, I note that Ms McAvoy, who had last had contact with LD one week prior to giving evidence, also spoke to an improvement in the relationship between LD and JD over the last three months.

[131] In my judgment, the court can have no confidence that that improvement is sustainable. All of the social workers who were involved with LD spoke to their being frequent temporary improvements in her relationship with JD. They spoke to matters thereafter becoming fraught again between LD and JD. All that can be said with certainty, in my judgment, is that there was no evidence of recent police involvement as a result of any incidents between JD and LD.

[132] According to JXD, LD has recently been telling people that her mother had died a few months ago and also that ND is in fact her daughter and not her sister. While it is plain that these statements are untrue, they are indicative of an underlying unresolved difficulty in LD’s relationship with JD. LD has spoken at length to Ms Anderson and Ms McAvoy regarding her difficulties in relation to how she was parented by JD.

The nature of the relationship between ND and JD

[133] It was a matter of agreement that a child protection investigation was initiated after ND sustained a bruise on her face. ND was placed on the Child Protection Register on 8 October 2013, under the category of “at risk of emotional abuse”. Her name was removed from the Register on 28 May 2014[22].

[134] ND had previously been placed on the Register under the same category, in November 2012 until 27 February 2013, after C was accommodated. The circumstances relating to that period of registration were not examined to any great degree in the evidence. I am thus not able to comment upon any inferences I have been invited to draw by the petitioners in relation to this period of registration.

[135] There have been no further periods of registration and there is no on-going involvement of Social Work Services with ND.

[136] In relation to the second period of registration between October 2013 and May 2014, Ms Richardson spoke to having received a referral from ND’s school teacher that ND had alleged that she had been hit by her mother in September 2013. The discrepancies in ND’s account of the incident were put to Ms Richardson by Ms Doyle in cross-examination. Ms Richardson accepted that when asked why she had a bruise on her face, ND had told her teacher that her mother “had pushed her and she fell into a wardrobe” (40/104/125 of process). Upon speaking to Ms Richardson, ND reported that “her mother had slapped her on the face” and that she had then hit her face on a wardrobe within her bedroom. It was JD’s position that ND had told her to “F*** off” and that she had then hid in the wardrobe. It was her position that she had tried to get her out of the wardrobe when ND had hurt her face on the wardrobe door or, that she had hurt her face getting into the wardrobe as she ran from JD. JD denied assaulting ND in September 2013. In light of the discrepancies in ND’s account, it is difficult to attach any weight to the disclosures she has made to teaching staff or to social workers regarding the alleged assault in September 2013. Ms Ross spoke to ND eventually retracting the allegations she had made against her mother. ND told the Department that she could manage the situation at home.

[137] However, in my judgment, what the child protection investigation exposed was the difficult relationship between ND and JD. In her affidavit, Ms Ross stated that she had been told by JD that her relationship with ND was volatile, that she had frequent arguments with ND and that she experienced difficulties in managing ND’s behaviour. This discussion took place in what Ms Richardson described as a “positive” meeting with JD. Ms Ross’s evidence in relation to what she had been told by JD was not challenged.

[138] Ms Richardson spoke to the volatility in the relationship between LD and JD being symptomatic of emotional abuse. She spoke to being told by ND that they spent lots of time arguing and that her mother could not control her anger at times.

[139] Ms Richardson had formed the impression that JD had sought to interfere with the work that she was doing with ND and that she had told ND not to meet with social workers. When this was put to JD in cross-examination, it was her position that she had not told ND not to co-operate with social workers, but rather that “she has a choice and no one could force her and she didn’t have to come out of class and be embarrassed if she didn’t want to”. The language used by JD, is in my judgement, indicative of her now downplaying her views as expressed to ND at the time, that she should not meet with social workers.

[140] Ms Richardson spoke to a further incident on 19 February 2014. ND’s pupil support teacher had reported that ND had attended school in “floods of tears” stating that she “hated her mum and her mum had hit her”, and that her mum had grabbed her head. This followed from an argument in relation to chores. When she spoke to Ms Richardson, ND described JD as having pulled her hair and stated that her mother was “turning into the way that she was years ago”, explaining that she meant that her mother would shout at her and hit her. When this allegation was put to JD during crossâ€‘examination, she replied “I honestly can’t remember…I have skelped her in the past on occasions on her legs, not pulled her hair, smacked her legs, yes”.

[141] It was JD’s position that ND’s behaviour was a reaction to C’s accommodation. It was her position that ND had learned how to use Social Work Services against JD. It was her position that ND was lying. It was submitted on her behalf that the source of the arguments between them were petty – often in relation to ND’s failure to do chores around the house.

[142] In my judgment, it is clear, based upon what has been reported by ND, and indeed by JD, to Ms Richardson and to Ms Ross, that JD has a difficult and volatile relationship with ND. On occasions, JD has physically chastised ND. JD has had difficulties managing ND’s behaviour and is unable to regulate her own anger when doing so.

The Adequacy of the Parenting Assessment of LD

[143] On behalf of LD, it was submitted that the parental capacity assessment (20/42 of process) (“the Assessment”) conducted by the Department was entirely unreliable.

[144] Dr Robinson confirmed that she had been asked to prepare two reports on behalf of LD, one dated 8 November 2015 and the other dated 6 February 2016 (42 and 53 of process respectively). During examination-in-chief, she adopted the terms of the second report dated 6 February 2016.

[145] Dr Robinson was instructed on behalf of LD to critique the Assessment. In her second report (dated 6 February 2016), she stated that social work practitioners should place GIRFEC principles and the SHANNARI wellbeing indicators at the centre of any assessment, but that other models can be used in conjunction where appropriate. There was “limited evidence of this approach in the Parenting Assessment which [was] primarily narrative”. She noted that it was usual in any structured assessment to start with the aims, the number of sessions and/or contacts and the agreement of the parent to take part. Some of this information was set out in the Assessment, however, in her view it did not set out the factual basis for the conclusions reached. The Assessment, in her view, did not appear to follow any particular model and thus lacked structure and coherence. It was her opinion that the recommendation that C could not be returned to her mother’s care was a life changing one and “the child is entitled to the best possible assessment available. The report did not meet that standard”. It was her view that the Assessment would have been strengthened by a comprehensive and analytical identification of the headings in a widely referenced text on the subject – “the Child’s World the Comprehensive Guide to Assessing Children in Need (2010)”.

[146] During examination-in-chief, Dr Robinson was asked whether there was anything in the Assessment which set out a framework or model for the assessment exercise, any note of any meeting explaining the framework to LD, anything explaining its conclusions to LD or anything signed by LD. She explained there was not. She referred to the absence of a chronology as “the biggest weakness”. She was asked “where on the sliding scale of not meeting basic standards and the gold standard” the Assessment lay. She explained that the Assessment “probably covered all of the details” but that it needed to be more coherent in setting out what issues LD required to address and the timescales in which she required to do so. In short, in her view, “it could have been better”. I note that Dr Robinson hesitated when asked whether the Assessment was “adequate for its purpose”. She appeared to choose her words very carefully when she said “its purpose is to make a life changing decision – it should have been better”. She did not at any stage in her evidence, state that the assessment was inadequate. She was asked during examination-in-chief whether she would have “signed off” the Assessment if a member of her team had compiled it. She replied “no – I would have said you have the facts and information but you need to pull it together better and say why the child cannot return to the mother”.

[147] According to Ms Anderson, the Assessment of LD was based upon the “Getting it Right for Every Child” or GIRFEC principles. The framework for the Assessment was adopted from a text by Martin Calder and Simon Hackett entitled “Assessment in Childcare: Using and Developing Frameworks for Practice”. It was an Assessment Model which had been used previously by the local authority. The Assessment also involved a consideration of the “SHANNARI” wellbeing indicators. Dr Robinson did not take issue with the use of that text, stating during cross-examination by Mr Thomson “I am not saying that the text is not useable – it could be used perfectly well”. She stated, however, that it would have been “useful” if the Assessment had made reference to the framework used. The important consideration, Dr Robinson explained, was that any risk to the child, in the event of rehabilitation, had been properly evaluated; in this case, that evaluation could have been better.

[148] During cross-examination, Dr Robinson was referred to the Working Agreement entered into between Ms Orr, Ms Anderson and LD dated 25 January 2013 (19/29 of process). She accepted that the Working Agreement set out a timeframe for LD’s Assessment, what was expected of her and when it would be reviewed. She accepted that one of the purposes of contact with C was to assess her parental capacity. She was asked if this “added definition” to the Assessment. She explained that it did, describing it as “very helpful”. She had not had prior sight of the Working Agreement. Having read its contents while giving evidence, she described it as “a perfectly adequate and comprehensive working agreement” adding that “it would have been helpful” if it had been attached to the Assessment.

[149] Ms Anderson explained that LD attended for 7 of the 8 parenting sessions which were organised as part of the Assessment. She explained that LD failed to attend the last session at a time when she was also failing to attend for contact. She explained that during the 6^th and 7^th sessions, Ms Anderson was unable to carry out the work she had intended with LD as the sessions were “pre-occupied” with other discussions such as the arguments between LD and JD and LD’s drug related debts. Ms Anderson stated that she felt, nevertheless, that she had sufficient information to complete the Assessment. She had spent a great deal of time with LD. In particular, she confirmed during cross-examination by Mr Allison that she took account of all of the SwiSplus records (albeit they were not specifically referenced in the Assessment). She also confirmed that she took account of the “Records of Observations” from LD’s contact sessions, LD’s presentation and conduct during contact sessions with C and her subsequent failure to attend such sessions.

[150] Dr Robinson accepted during cross-examination that the Assessment contained a broad chronology and taken together with the Department’s SwiSplus Client Records, one was able to identify exact dates for any events listed in the chronology. Dr Robinson was referred to an Integrated Assessment Framework completed by Ms Anderson on 5 June 2013 (20/54 of process). Dr Robinson accepted that in this document the headings in the “My World Triangle” of the National Practice Model and Risk Assessment Model were addressed. She accepted that Ms Anderson had also addressed some of the SHENNARI principles. Dr Robinson was referred to the Integrated Assessment Framework completed by Tom Prendergast on 12 November 2012 (19/18 or process). She accepted that he had addressed the SHANNARI principles noting that “he has done this quite well”. During re-examination by Mr Allison, Dr Robinson stated that the Integrated Assessment Framework completed by Mr Prendergast had “clearly been drawn upon” for the Assessment.

[151] During re-examination, Dr Robinson was asked whether sight of any of the documents put to her had changed her view on the Assessment. She responded: “no, in fact, it could have been better because they could have pulled together the information better”. It remained her position that the analysis of the risks of rehabilitation could have been better.

[152] Dr Robinson has not met LD. She had not been instructed to carry out a Parenting Capacity Assessment in relation to LD. It became evident that material documents had not been made available to her prior to the completion of her report. Her report did not in fact set out what documents or information she had been privy to. Prior to the proof, I had invited parties to consider a meeting between Dr Robinson and the relevant social workers in order that the issues could be better focussed. That did not take place. Regrettably, that had a direct bearing upon the length and content of Dr Robinson’s evidence. It appeared to me that having been informed of the evidence of the social workers (Ms Anderson and Mr Adams) and having had sight of particular documents (particular the Working Agreement and the Integrated Assessment Frameworks), Dr Robinson made important concessions. Mr Allison in his submissions conceded that the Assessment of LD’s parenting capacity involved more than the contents of the Assessment alone. Having considered Dr Robinson’s evidence carefully, in my judgment, it amounted to this – the Department could have done better. She did not state that the Assessment was inadequate or that it was not fit for purpose. Her evidence was not to the effect that the Assessment could not be relied upon, but rather that there was room for improvement. She was not asked, and did not volunteer, any opinion as to whether any decision taken on the basis of the Assessment was susceptible to challenge or was necessarily undermined. At times, it appeared that her critique was one of style rather than substance – she appeared to acknowledge that the Department had the information it required, but the information could have been collated in a more comprehensive manner and the risks could have been better analysed. I am not persuaded, in the circumstances, that the Assessment was “entirely unreliable”. I accept, as Dr Robinson pointed out, the Assessment could have been better structured, more detailed and could have contained a more analytical consideration of the risks. However, based upon Dr Robinson’s evidence and that of Ms Anderson and Mr Adams, I am satisfied that the court can rely upon the terms and conclusions of the Assessment, particularly where it is supported by other reliable and credible evidence.

[153] In his written submissions, Mr Allison submitted that in the absence of a review or reconsideration of the Assessment, and in the absence of any attempts at rehabilitation at any point thereafter “the approach by the local authority led to a situation which was inconsistent with the aims of ECHR jurisprudence and which was bound to lead to an article 8 violation”. I note that this matter was not raised during pre-proof hearings in terms of paragraph 17 of the Practice Note. During cross-examination, Ms Anderson was asked if there had been any follow up to the Assessment. She stated that there had not been a “big enough” change of circumstances; that LD refused to engage with the Department; that JD had told the Department to stop trying to contact LD and that they had made attempts to obtain information in relation to LD’s circumstances from her criminal justice worker. It was Ms Anderson’s evidence that LD did not wish to have the Department involved with her. I accept Ms Anderson’s evidence in relation to these matters and I note that there was no evidence before the court of improved levels of engagement by LD, after the Assessment was concluded. There was no evidence that LD had asked the Department to consider the rehabilitation of C to her care. She had not attended LAAC Reviews. There was no evidence that either LD or those representing her had been pressing or even enquiring with the local authority as to whether permanency proceedings might be raised. Indeed, in these proceedings, LD does not seek rehabilitation of C to her care.

[154] Mr Allison appeared to suggest that the failure to review or reconsider the Assessment and the failure by the local authority to raise permanence proceedings has led to the passage of time during which C has remained with either foster or potential adoptive parents. He suggested that the court must treat that passage of time as instructive and not determinative in relation to the orders sought by the petitioners, “failing which a prima facie compatibility or devolution issue arises”[23]. For the reasons I have set out in the preceding paragraph, I do not accept that there has been a failure on the part of the local authority to review or reconsider the Assessment. Even if I were not satisfied that was so, I note that no Devolution Minute has been lodged by on behalf of LD. Indeed, it would not have been competent for one to have lodged during submissions (Article 4 of the Act of Sederunt (Proceedings for Determination of Devolution Issues Rules) 1999 (SI 1999/1347); S v L supra per Lord Reed at paras 58-62). In those circumstances, I asked Mr Allison to explain the import of his submission. He stated that he was not presently arguing that a devolution issue arose, but rather that depending upon the decision I may make, such an issue might arise. I must confess that I have had some difficulty in following the relevance of that submission, which appears to me to be directed at possible grounds of appeal. This is a matter upon which I cannot usefully make any further comment.

The circumstances in which contact between LD and C ceased

[155] Mr Allison’s cross-examination of Ms Anderson and Mr Adams focused to a large extent on the circumstances in which contact between LD and C came to an end. It was submitted by both Mr Allison and by Ms Doyle on behalf of JD, that the Department had unilaterally decided to terminate LD’s contact with C. It was submitted that the Department had acted ultra vires and that this had a direct impact upon subsequent decisions made by the Children’s Hearings. It was submitted that the discrepancies between the accounts provided by Mr Adams and Ms Anderson on this matter rendered them both unreliable witnesses and that little weight could be attached to their evidence.

[156] It is necessary for me to examine this issue in some detail.

[157] Ms Anderson spoke to the contact sessions between LD and C. She stated that during contact sessions, she discussed LD’s parenting, her circumstances and the care plan for C. She spoke of LD’s presentation at some contact sessions as “poor”; she was unkempt; her personal hygiene was poor; she was losing weight and she was attending wearing pyjamas under her clothing.

[158] Ms Anderson spoke to the circumstances in which contact ceased. She referred to LD’s failures to attend for contact in particular on 8, 15 and 18 February 2013.

[159] In March 2013, contact was operating for a period of 1½ hours, twice weekly. LD did not attend for contact on 22, 25 and 28 March. She also failed to attend a Parenting Assessment Session on 27 March 2013, prompting Ms Anderson to write to her on 4 April 2013 advising her that until LD contacted the Department, contact with C would not be arranged (20/37 of process). During crossâ€‘examination, Mr Allison put it to Ms Anderson that there was no postcode on that letter. She accepted that she could not say with certainty that LD would have received the letter. Equally, however, I note that there was no evidence before the court, absent LD’s testimony, that it had not in fact been received by LD. There was also no evidence that between 22 March 2013 and 4 April 2013, LD had contacted the Department seeking contact or attended for scheduled contact expecting to see C.

[160] The social work records recorded an internal discussion on 5 April 2013 noting that “[LD] showing signs of disengaging with contact and parenting input. She has also been closed to substance misuse and Housing Support due to non-engagement” (19/4/72 of process). I accept Ms Anderson’s evidence that contact was made with LD and she was asked to attend and meet with social workers on the days she would otherwise have had contact with C. She did not do so. A meeting was arranged with LD on 11 April 2013. She failed to attend (19/4/70 of process).

[161] Ms Anderson spoke to the difficulties in contacting LD. Letters and telephone calls were unanswered.

[162] LD contacted Ms Anderson on 24 April 2013. The note created by Ms Anderson of the conversation was spoken to by her (19/4/67 of process). This note recorded that LD advised that she had severe depression and had been in her bed for the past few weeks; that she had not attended appointments as she had no money; that she had been selfâ€‘harming; and that she had not spoken to her mother for 3 or 4 weeks as they had had an argument. She asked after C and was told by Ms Anderson that she was “doing well and getting big”. She agreed to attend a meeting on 7 May 2013. I accept Ms Anderson’s evidence, supported by the note of her conversation that LD did not ask for contact with C to be arranged during this call. Mr Allison put it to Ms Anderson that she ought to have discussed the issue of reinstating contact with LD during this call. It was Ms Anderson’s position that in light of the information provided by LD, she wished to meet with LD first to ascertain her personal circumstances and to consider any risks to C of attending contact with LD. It was Ms Anderson’s position that LD advised her during this call that she was avoiding Ms Anderson and Ms Orr.

[163] On the same day, Mr Adams wrote to the Children’s Reporter to request a Hearing. He informed the Reporter that LD “has not attended for contact for the past five weeks and has disengaged from other support packages” (40/1/26 of process). He also advised the Reporter that the Permanency Planning Meeting on 15 April 2013 recommended that a permanency plan for C be pursued. Mr Allison put it to Ms Anderson that this letter, issued on the same day as the telephone call from LD, illustrated a lack of urgency on the part of the Department to meet with LD and to arrange contact as the Department had formed the view that plans for permanency were to be pursued. Ms Anderson did not agree. Ms Anderson conceded that the Department had not sought an urgent review of the Compulsory Supervision Order by the Children’s Hearing, but had simply requested a hearing.

[164] LD attended the meeting on 7 May 2013, some seven weeks after her last contact with C. Ms Anderson spoke to the discussions which took place and to her note of the meeting (19/4/64 of process). Ms Anderson explained that LD repeated that she had been suffering from depression, had been self-harming and had not spoken to her mother for a number of weeks. She became hostile and angry when asked why she had not communicated with Ms Anderson or Ms Orr. She stated that she understood C to have been on holiday. It was Ms Anderson’s position that she had provided the dates upon which C would be on holiday to LD, and that LD had understood them. In any event, it would appear that LD had raised this issue as an explanation for her nonâ€‘attendance at contact for the first time during this meeting. Ms Anderson advised LD that the Department required to see “commitment from her” before contact could be reinstated. She was clear in her evidence that LD understood this meant she required to attend the planned contact sessions and to meet with social work staff, before arrangements would be made to have C travel a considerable distance to attend for contact. She did not demur from that position during crossâ€‘examination. According to the Working Agreement between the Department and LD (19/29 of process) the contact sessions were on fixed days, times and at the same venue each week. During re-examination, Mr Adams explained that the issues reported by LD during this meeting could have had an impact upon her contact with C. He described it as being contrary to C’s best interests to require her to travel to contact if LD was failing to attend. He spoke to the need for stability and the need to get LD “back on board” by committing to contact before it could be re-established. Ms Anderson spoke to the negative impact on a child of inconsistent contact.

[165] Mr Adams spoke to the LAAC Review meeting which took place on 13 May 2013 (20/47 of process), chaired by him. LD did not attend. He confirmed that one of the recommendations of the Review was that contact was to remain at three hours per week, “however would not be arranged until [LD] shows commitment to C and meets with social work staff”.

[166] Following the meeting with LD on 7 May and the LAAC Review on 13 May, Ms Anderson wrote to LD on 16 May advising that a home visit was planned for 21 May. During cross-examination, Mr Allison again pointed to the absence of a postcode on this letter (20/49 of process). Ms Anderson again conceded that she could not state with certainty that LD would have received this letter.

[167] Thereafter, the social work records reflect Mr Adams and Ms Andersons’ evidence regarding attempts to contact LD by post, by telephone and by means of repeated house visits. They also reflect the request by Ms Anderson that LD’s housing officer contact LD and ask her, in turn to contact Ms Anderson. Ms Richardson spoke to steps taken by her colleague Ms Orr to obtain LD’s address from her criminal justice social worker. Ms Orr was advised that LD had told her criminal justice social workers not to disclose LD’s address to Ms Orr. She spoke to seeking LD’s current address from her solicitors and to that request being refused.

[168] Ms Anderson had completed an Integrated Assessment Framework Report for the Children’s Hearing which was due to take place on 17 June 2013. The report made it clear that the conditions of the supervision requirement were not being met as LD was not attending for contact. She recommended that the condition for contact be reviewed. The Children’s Hearing which took place on 17 June 2013 was continued to allow LD the opportunity to attend.

[169] Ms Anderson accepted under cross-examination by Mr Allison that between the meeting on 7 May and the Hearing on 17 June, only one meeting had been scheduled with LD (the home visit on 21 May) and there could be no confirmation that LD was aware of that meeting (in the absence of the postcode on the letter of 16 May). However, she repeated that there had been numerous attempts to call LD and numerous house visits had taken place in order to make contact with her. Under re-examination, having been referred to the record noting the attempts to contact LD between 7 May and 17 June (19/4/59-19/4/63 of process), she stated that the Department had formed the view that LD was purposefully not engaging with them. That view was shared by Mr Adams. There was no evidence that LD had sought to contact the Department between 7 May and 17 June.

[170] The first successful contact with LD took place by way of a telephone call to her on 25 June 2013. Ms Anderson spoke to the record of the telephone conversation between them (19/4/58 of process). According to Ms Anderson, LD did not seek to have contact with C reinstated during the call.

[171] On 10 July, LD contacted Ms Anderson. She asked to see C. A meeting was arranged between LD and Ms Anderson for 18 July to discuss contact (19/4/55 of process). The record of the meeting (as spoken to by Mr Adams) noted that LD reported continuing self-harming behaviours. LD was advised of the date for the next Children’s Hearing.

[172] A Children’s Hearing took place on 1 August 2013. Mr Adams spoke to the record of that meeting compiled by Ms Anderson (19/4/53). The hearing was continued again as LD had not received her papers in advance of the hearing, however, LD had wished it to proceed as she wanted to discuss her contact with C. The record notes that outside the hearing, LD became very volatile towards Ms Anderson and “began to claim she would take her own life”.

[173] Ms Anderson completed a report for the LAAC Review meeting on 12 August 2013 (20/58/3). The report noted that four house visits had been made to contact LD and that the door had been unanswered on each occasion. The report noted that “[LD] avoided communication from social work resources for a period of time. She has recently asked for contact again”. The LAAC Review took place on 12 August. LD did not attend.

[174] During a meeting on 21 August 2013, Ms Anderson encouraged LD to obtain legal advice in advance of the next Children’s Hearing. There was no record of any discussion of contact with C at that meeting.

[175] A Children’s Hearing took place on 29 August 2013. LD did not attend. JD attended. The panel appointed a safeguarder. In its reasons for its decision, it noted that the safeguarder was appointed inter alia “to see if contact could be re-established with [LD]” (16/1/36 of process).

[176] During re-examination, Ms Anderson was referred to a meeting between herself and LD which took place on 10 October 2013 (19/4/42 of process) and was asked whether her Department had considered reinstating contact. In the record of the meeting, Ms Anderson is recorded as having explained to LD that she required to attend the office twice a week (being the designated days for contact) to make a commitment to her attendance at contact. It was Ms Anderson’s evidence that LD attended two meetings the following week but then failed to attend further.

[177] At the Children’s Hearing on 24 October 2013, the hearing was continued to allow a report from a second safeguarder to be obtained. The first safeguarder had circulated a draft report, followed by a final report with differing conclusions. LD attended and was represented at the hearing. The hearing noted that LD had not had contact with C for several months. At a subsequent hearing on 12 December 2013, having obtained the report from the second safeguarder, the Children’s Hearing decided to continue the Compulsory Supervision Order and to include in the order a direction that C was to have no contact with LD. LD was present at the hearing and was represented. In its reasons for its decisions, it is noted that LD had requested that there be no contact between herself and C.

[178] Mr Allison asked Ms Anderson who had advised her “that she did not have to comply with the order of the Children’s Hearing” in relation to contact between LD and C. Ms Anderson replied “Colin Adams”. She explained that she would not have taken that decision without discussing matters with him. The terms of the discussion which took place between Ms Anderson and Mr Adams were not explored further.

[179] Under cross-examination by Mr Allison, Mr Adams accepted that the Department had a responsibility to ensure that the condition of the Compulsory Supervision Order, namely, the condition of contact with C, was adhered to. He agreed that there would require to be “exceptional circumstances” for contact to be suspended and that such a decision would have required the consent of his supervisor. It was his position that his Department would have arranged contact until such time as the Children’s Hearing made a condition of no contact. He then qualified that statement by explaining that it was the “potential for contact – we would have facilitated contact if there had been a commitment to it”. Mr Allison put it to him that he would not have instructed his staff not to facilitate contact. He stated “I may have done – it might have been a discussion that have her in first and see”. He denied that he had authorised staff to cease contact. Any suggestion that he had done so was based on a misunderstanding. To do so, he accepted, would have required an immediate referral to a Children’s Hearing. It was Mr Adams’ position that the Children’s Hearing was aware from 17 June that contact between LD and C was not taking place. The Department had advised the Reporter of the position on 24 April 2013. It was put to him that LD had contacted the Department seeking contact on two occasions and had attended one meeting; in those circumstances contact ought to have been arranged. He stated that calls of that nature and her attendance at one meeting were not the same as a commitment to attending three hours of contact weekly. He stated that in his view, contact had not been arranged because LD stopped attending; the “blame” lay with her. He denied that the Department had sought to usurp the functions of the Children’s Hearing. He denied that the Department had given priority to permanency planning for C over her contact with LD. Ms Ross also accepted during cross-examination that if the Department felt that a Compulsory Supervision Order was no longer in the child’s best interests, a referral to the Children’s Hearing would be made. It was her position that no decision to suspend contact would be taken unless the Department had spoken to the Reporter first.

[180] During cross-examination by Mr Allison, JD was asked about the circumstances in which contact between LD and C came to an end. It was JD’s position that she had repeatedly called the Social Work Department on LD’s behalf to discuss her contact with C. In my judgment, it is noteworthy that over the relevant period, there are entries in the social work records of calls between JD and social work staff and of a meeting between JD and Mr Adams and Ms Anderson. None of these entries appear to note any requests for explanations by JD of the cessation of contact between LD and C. Only JD spoke to having made such requests. The details of any such requests were not put to Ms Anderson by Ms Doyle during cross-examination. I do not accept that any such requests were in fact made by JD.

[181] It was JD’s position that contact between LD and C came to an end after LD failed to attend only one contact with C. That evidence was in sharp contrast to the evidence of Ms Anderson, Mr Adams and the entries in the social work records as regards the number of contact sessions which LD had failed to attend, which evidence I have preferred.

[182] It was JD’s position that she had been present when LD made a telephone call to Ms Anderson on 24 April 2013. It was her position that LD had been pleading for contact to be reinstated. She stated that LD was “miserable” and had told JD that she had done all that she had been asked to do but that the Department were not willing to arrange contact. During cross-examination by Mr Thomson, she was asked whether LD had given any information to Ms Anderson about her finances, her present circumstances or the fact that she had been unable to leave her bed due to depression. JD stated that LD made no such comments. When the record of the conversation as noted by Ms Anderson was put to her, containing these details, JD stated that it was a different conversation that she recalled, which took place after C had returned from holiday with her foster carers and before 24 April 2013. There was no record of any such conversation. The details of such a conversation had not been put to Ms Anderson during cross-examination by Ms Doyle. Moreover, I note that during her call to Ms Anderson on 24 April and her subsequent meeting with Ms Anderson on 7 May, LD had reported that she had not spoken to her mother for a considerable period due to an argument between them. In my judgment, the telephone call referred to by JD simply did not take place.

[183] Finally, it was JD’s position that LD had not absented herself from contact, but rather that LD had been given incorrect information about when C was to depart and return from holiday with her foster carers and that thereafter, the Department had not allowed contact to take place. I am satisfied, on the basis of Ms Anderson’s evidence, that LD was aware of the dates upon which C would be unavailable. I note that the view I have reached is consistent with the terms of a document which purports to be a letter dated 6 March 2013 signed by LD providing her consent for C to attend a holiday with her then foster parents, between 1 and 5 April 2013 (20/32 of process). The dates of the holiday postdate LD’s failure to attend for contact. In terms of the joint minute between the parties, this letter was accepted as being a true and accurate copy but its contents were not admitted into evidence. No witness spoke to the contents of the letter. I have thus not relied upon its terms or treated it as evidence, but rather I have noted that, if it is what it bears to be, it is consistent with the view that I have formed.

[184] Against this background, Mr Allison submitted that the court ought to have significant concerns in relation to the circumstances in which contact came to an end; it was a central consideration and affected everything from that point onwards. He submitted that the social workers’ assertions that contact came to an end because of apparent, non-specific failures on the part of LD, were untenable and unsupported by the records. He referred to Gnahore v France (Application no 40031/98) (2002) EHRR 38 in support of his submission that the local authority had a duty to implement such measures as would be apt to enable a family link to be maintained. He reminded the court of the obligations upon the Department in terms of section 17 of the Children (Scotland) Act 1995 to promote direct relations. He submitted that the question for the court was whether the Department had acted in accordance with these principles, and if not, what effect that has had on decision making for the child, and in turn, what effect that might have on the decision this court required to make.

[185] In my judgment, concerns regarding the circumstances in which contact ceased ought properly and timeously to have been raised before the Children’s Hearing and, if necessary or appropriate, upon appeal to the sheriff court. There was no evidence before me that such concerns were raised at the Children’s Hearing or during correspondence with the local authority. There was no evidence that those representing LD had sought to persuade the Children’s Hearing that the local authority had acted in breach of the terms of the Compulsory Supervision Order (in terms of section 144 of the Children’s Hearings (Scotland) Act 2011 or its predecessor, section 70 of the Children (Scotland) Act 1995). There was no evidence that they had sought to invite the Hearing to involve the National Convener (in terms of section 146 of the 2011 Act), or the Reporter (in terms of the previous legislation, namely section 71A of the 1995 Act). Indeed, the Children’s Hearing noted in its decision (on 12 December 2013) that LD had requested that her contact be terminated. I have serious concerns as to whether this process is the appropriate forum in which to raise these issues almost three years after the last contact between LD and C. Even if I am wrong regarding the appropriate forum in which this matter ought to have been raised, I am not satisfied that the local authority has acted in breach of its duties, for the reasons I set out below, on the basis of the evidence before me.

[186] In Gnahore v France, the court considered whether Article 8 of the Convention had been disregarded by virtue of the restrictions placed upon contacts between a father and his child. The court “strongly” emphasised the child's interest must have precedence over any other consideration (paragraph 59) and went on to state as follows:

“It is true that lack of co-operation by the parent concerned does not constitute an absolutely decisive element inasmuch as it does not exempt the authorities from implementing measures likely to enable the family link to be maintained. But the Court is bound to find that in the present case the competent authorities made serious efforts to achieve that objective and that the failure of the provisions they made in this respect was due exclusively to the applicant's behaviour.”

[187] Section 17 of the Children (Scotland) Act 1995 provides as follows:

17.— Duty of local authority to child looked after by them.

(1) Where a child is looked after by a local authority they shall, in such manner as the Secretary of State may prescribe—

(a) safeguard and promote his welfare (which shall, in the exercise of their duty to him be their paramount concern);

(b) make such use of services available for children cared for by their own parents as appear to the authority reasonable in his case; and

(c) take such steps to promote, on a regular basis, personal relations and direct contact between the child and any person with parental responsibilities in relation to him as appear to them to be, having regard to their duty to him under paragraph (a) above, both practicable and appropriate.

[188] In terms of section 17 of the 1995 Act, the duty upon the local authority to a child looked after by them, under section 17(c), is subject to two qualifications, namely (a) that the duty must be exercised having regard to the duty to safeguard and promote the child’s welfare, which shall be the local authority’s paramount concern and (b) that the steps to be taken to promote personal relations and direct contact between the child and any person having parental rights and responsibilities require to be both practical and appropriate. To this must of course also be added that the authority must always act in a manner which is compliant with Article 8. As explained by the court in Gnahore v France, the authority must make serious efforts to enable a family link to be maintained.

[189] I am satisfied that in this case, the Department acted in accordance with its obligations under section 17 of the 1995 Act and in compliance with the requirements of Article 8. It made serious efforts to enable a link between LD and C to be maintained and any failure to maintain that link was due exclusively to LD’s conduct.

[190] LD repeatedly failed to attend for contact. The court did not have the benefit of her evidence. It is trite to note that it could not, on any view, have been in C’s best interests, nor consistent with the Department’s duty to safeguard and promote her welfare, for her to be repeatedly brought to contact sessions, which her mother had shown little or no willingness or intention to attend. It was also neither practical nor appropriate, particularly as it involved the child travelling a considerable distance on each occasion. Insofar as it was suggested that LD had attended some meetings and made some phone calls, I accept Mr Adams’ evidence that such conduct did not constitute a commitment to contact on a twice weekly basis. I also accept Ms Anderson’s evidence that LD was aware of what was required of her, namely that she was required to attend a number of the arranged contact sessions before C would be asked to attend.

[191] Moreover, LD was during this period reporting that she was continuing to selfâ€‘harm, her mental health was poor, she was disengaging from other services, her presentation was at times poor, her lifestyle was chaotic, she was continuing to use illicit substances and she was facing further criminal charges. It was entirely consistent with the Department’s duties under section 17(1)(a) of the 1995 Act for the Department to take account of these matters when considering whether to make C available for contact.

[192] I am also satisfied that the Department made serious efforts to enable the link between LD and C to be maintained. There was ample reliable and credible evidence before the court of repeated attempts to contact LD, by telephone, by letter, by house visits and through her housing officer and criminal justice worker. There was ample reliable and credible evidence of advice, support and encouragement provided to LD to aid her attendance at contact and to promote a change in her lifestyle.

[193] I am also not persuaded that the Department’s approach to contact was tantamount to it having usurped the functions of the Children’s Hearing. Mr Adams had written to the Reporter on 24 April 2013, within weeks of LD’s failures to attend contact to advise of the position and to seek a Children’s Hearing. A Children’s Hearing was convened on 17 June 2013 and continued on a number of occasions. While the direction that contact between LD and C take place twice a week remained in place, all those involved in the decision making process were aware that contact was not, as a matter of fact, operating. A safeguarder was appointed “to consider the re-introduction of contact”. Ms Anderson and Ms Adams both gave evidence of the Department’s preparedness and willingness to arrange contact upon a show of commitment by LD and upon a period of stability in her circumstances. In my judgment, they both acted in good faith, in C’s best interest and without any other motive, such as advancing plans for permanency.

[194] To the extent that Ms Anderson and Mr Adams’ evidence differed in relation to whether Mr Adams had instructed Ms Anderson to suspend contact, I am satisfied that any inconsistency in their evidence was attributable to a misunderstanding. The evidence was nuanced. Neither witness spoke to a unilateral decision to cease contact in all circumstances. Both spoke to requiring a commitment from LD. I am not persuaded that, as Ms Doyle and Mr Allison contended, this chapter of evidence gave rise to serious concerns in relation to Ms Anderson’s or Mr Adams’s reliability and credibility. They were at one that the Department remained willing to arrange contact.

The extent to which JD can meaningfully engage with Social Work Services

[195] It was evident that JD has a deep mistrust of Social Work Services. She blames social workers for unjustifiably removing C, for failing to give LD the support she required, for interfering in her relationship with ND, and for making false accusations about her. It was her position that the Department had made mistakes and had destroyed her family. She maintained that she tried to work with the Department.

[196] It is understandable that when dealing with a matter as close to her heart as issues involving her daughters and her granddaughter, JD has a tendency to get upset and to become very emotional. It is not surprising that her instinctive reaction is to react angrily to any social work involvement. The question is whether, paying due regard to the clear upset that can be caused by social work involvement with a family, JD can meaningfully engage with Social Work Services presently or in the future.

[197] Ms Ross spoke to the advice and support she tried to offer JD in dealing with ND. However, she described JD as “unwilling to work with the department”. The statements made by Ms Ross in her affidavit (which were unchallenged) are relevant:

“It became clear to me that [JD] didn’t follow my advice or guidance in how she dealt with [ND]. I spent lots of time trying to give her the benefit of my experience and advice and support. I formed the impression that [JD] was not looking to explore coping strategies with me. It is simply too difficult to work with someone who can’t see any fault laying with themselves. [JD] is one of those people. She can’t see herself in any of the incidents with [ND] as being wrong or at fault. She was very defensive in discussions with me about her behaviour. …I am not sure that [JD] has a grasp of [basic parenting strategies] in terms of dealing with conflict and stress and seeing [ND] as a child and not her equal. I think that [JD] has a limited understanding of the significance of age and stage of development in children and that [ND] was not her equal in terms of conflict. I think that a similar pattern of relationship was developing between [JD] and [ND] as [JD] had experienced with [LD].”[24]

[198] Ms Ross spoke to JD being obstructive in relation to the one to one work which the Department wished to complete with ND, stating that ND was not to be visited at home or at school. While JD appeared to deny being obstructive, I have not accepted her evidence in this regard. I have preferred the evidence of Ms Richardson and Ms Ross. Ms Richardson spoke to being advised by JD that she could not visit ND in her home.

[199] Ms Ross described occasions when, because JD was shouting, she would require to terminate telephone calls with her. Ms Ross explained her approach to such calls was to allow parents and family members to speak and to feel they are being listened to. That was the approach she adopted with JD, however, JD was a difficult person to deal with and had an aggressive manner. Ms Richardson also spoke to JD’s aggressive manner during telephone calls with her. She also spoke to being advised by staff at ND’s school that JD had been abusive and aggressive to school staff during telephone conversations. When JD was questioned in relation to her contact with the school during cross-examination, I note that she began by stating that she had only ever emailed the school and had never called the staff, later conceding that she might have done so.

[200] Mr Richardson and Ms Ross spoke of JD’s failure to attend the multi-agency child protection case conference for ND on 8 October 2013 and her failure to attend a review of the child protection case conference on 18 December 2013, although she noted that a letter had been received from JD in respect of the latter, advising that she did not agree that ND should be on the child protection register. Ms Richardson described JD as not having engaged in any meaningful way between October and December 2013. She accepted during cross-examination that JD had attended a meeting on 7 January 2014 and that the meeting had been positive. She then refused to attend further meetings after ND made a further allegation on 19 February 2014, that her mother had pulled her hair and hit her. I note that in cross-examination, it was JD’s position that she had been unable to attend any meetings or case conferences with the Department regarding ND because the meetings were always scheduled on days she was working. It was her position that she had asked for meetings to be scheduled on days she was not working. That position was not put to either Ms Richardson or Ms Ross during cross-examination. Neither Mr Ross nor Ms Richardson provided JD’s work pattern as an explanation for her failure to attend such meetings and conferences, in their affidavits. In my judgment, JD was unwilling to engage with the Department in relation to the child protection investigations and moreover she was unwilling to accept the advice and support offered to her by the Department, to help manage her relationship with ND. Her comments during cross-examination were telling: “I didn’t refuse to work with them but I wasn’t going to help someone whose long term goal it was to put my granddaughter into care and create problems for my daughter”.

[201] Every social worker who had contact with JD spoke to her aggressive and hostile manner. In a report dated 13 December 2012, Tom Prendergast (the allocated social worker for C at the time of her accommodation) has recorded “[JD] has stated that she does not trust me and the information I record is untrue. She frequently telephones me and can be aggressive and abusive in her tone and manner towards me”[25]. JD accepted that she did not trust him because she considered that he had written lies about her. She accepted that she was on occasion abusive and aggressive towards him. She recounted that on one occasion when he had suggested to her that it was not appropriate to feed C steak at the age of 10 months, she had made derogatory comments to him about his weight, noting that he was not a dietician and that she was better placed to make a decision in relation to C’s diet.

[202] Mr Adams spoke to having to terminate calls with JD because of her abusive and aggressive behaviour. He spoke to having to write to JD reminding her of the Department’s zero tolerance policy towards abuse of staff. JD accepted that she had shouted and had sworn on occasions at Mr Adams, noting that he had interfered with her attempts to obtain relevant person status before the Children’s Hearing.

[204] Ms Anderson also spoke to JD’s aggression towards her, during calls and meetings, recalling that on one occasion JD had stated that she hoped Ms Anderson

“would choke and die”.

[205] Ms McAvoy spoke to calling JD on one occasion as she required to speak to LD. She spoke to requiring to terminate the call as JD was abusive to her.

[206] Ms Anderson spoke to JD’s obstruction in relation to LD attending a Family Centre to which she had been referred. It was JD’s position that the Family Centre suggested was not appropriate for LD and that it did not have the medical facilities that LD required.

[207] I am satisfied that JD has been unable or unwilling to meaningfully engage with Social Work Services. While she accepted that she had acted inappropriately at times, she appeared always to transfer responsibility to others for her behaviour. She has demonstrated not only an unwillingness to accept the guidance and support offered to her or to members of her family, but has in fact been obstructive, defensive and aggressive.

JD’s Assessment

[208] It was submitted on behalf of LD and JD, that the Department had formed an early view as to JD’s suitability as a carer for C and that the Department had moved quickly to permanency planning, paying only lip service to alternatives for C’s care. It was also submitted that JD had not been adequately assessed and that the Department had taken account of information without verifying its accuracy.

[209] Ms Doyle submitted that it was clear from 1 January 2013 that the Department was aware that LD wanted her mother assessed and yet despite this, the Department did not write to JD inviting her to attend meetings for the purposes of an assessment until 19 February 2013^{^[26]}.

[210] The evidence does not support that submission. In particular, Ms Anderson wrote to JD on 14 January 2013 (19/27 or process) with details of the proposed time and date for a meeting to discuss assessing her as a potential carer for C. However, Ms Anderson also spoke to LD’s changing position with regards to her mother’s future role in C’s care. In particular, she spoke to a meeting with LD on 30 January 2013 in which LD stated that she would be worried about C being in her mother’s care as JD had assaulted her over a number of years, had “smashed” her jaw when she was a teenager, had assaulted ND in the past and had given LD cannabis for her fifteenth birthday. Ms Anderson stated that it was LD’s position that for all of these reasons, she did not want JD to be considered as a carer for C (19/5/7 and 19/5/8 of process). Ms Anderson spoke to having advised JD of LD’s position, and to being met with anger from JD when she did so. LD thereafter changed her mind. The Department then wrote to JD again on 19 February 2013, advising of their intention to assess her.

[211] During cross-examination by Mr Allison, it was put to Ms Anderson that after only a couple of sessions with JD, within a matter of weeks, at the LAAC Review on 13 May 2015, it was agreed that plans for adoption would be pursued. Ms Anderson denied that the Department had formed a view as to her suitability in advance of the assessment process. When the same question was put to Mr Adams, he pointed out the LAAC Review decision was a collective one and not one taken by either himself or Ms Anderson alone. Neither Ms Anderson nor Mr Adams accepted that they had pre-empted the outcome of the assessment process. I accept their evidence in this regard.

[212] Ms Anderson accepted that JD’s Assessment was undated, that it did not set out the framework used, the documents and other sources consulted or the number of sessions conducted with JD. She denied, however, that it was unstructured or lacked coherence. She accepted that this was the first such assessment she had carried out. She explained that she had based JD’s Assessment on the local authority’s framework for kinship assessments. Mr Adams was of the view that what had been done was a pre-assessment, which would now be called a “feasibility assessment” rather than a full kinship assessment. During re-examination, Ms Anderson stated that it had been “really difficult” to progress the kinship assessment as JD was not open to discussions – she was defensive. She stated that the Department had “taken the kinship assessment as far as we could – it could and would have been fuller if [JD] had co-operated”. She explained that JD found it difficult to discuss issues in depth and regarded questions put to her as a personal attack upon her. Ms Anderson explained that in addition to the discussions with JD, the Department already had a great deal of information from their previous dealings with her.

[213] Dr Robinson was not instructed to comment upon JD’s Assessment nor was she asked to assess JD’s parenting capacity. The document was, however, put to her during her evidence. It was her position that “it’s perfectly well recognised” that if it is not viable, a local authority will not proceed to carry out a full kinship assessment. During re-examination by Mr Allison, she was asked whether she would describe JD’s Assessment as a “viability assessment”. Dr Robinson stated that the document is not described as such nor did its contents explain why a full Kinship Assessment was not viable. When asked to confirm whether JD’s Assessment was an adequate Kinship Assessment, she responded that it was not as it did not deal with issues such as JD’s finance, health and employment^{^[27]}. She was not asked and did not comment further in relation to the analysis in JD’s Assessment.

[214] In my judgment, it is unsatisfactory that the Assessment was undated, that it did not refer to the methodology used, that it did not set out in full the information considered and that there was some confusion in relation to whether the document was a kinship Assessment or a Viability Assessment. However, the court has the benefit of Ms Anderson’s evidence in relation to the timeframe in which JD’s Assessment was carried out, the methodology used and the information she referred to. I have accepted her evidence as reliable and credible. Whether JD’s Assessment can be described as a Kinship Assessment or a Viability Assessment, the conclusions reached were clear. The conclusions were as follows:

“It could never be questioned how much [JD] loves and cares for her granddaughter and that she truly believes that she is able to provide the care that [C] needs. However [JD] had failed to demonstrate any self-reflection or accept any responsibility in relation to the role she played in [C’s] reception into care.

It has to be brought into question the periods of violence [JD] has in her relationship with her daughter [LD] and the impact that this would have on any child exposed to this. [JD] has also shown a distinct unwillingness to cooperate with services in relation to any aspects of her parenting and is unwilling to address any issues in relation to her parenting, which has resulted in two periods of Child Protection Registration for her youngest daughter [ND].

Therefore, it is the assessment of Social Work Resources that it would not be in the best interests for [C] to be placed in the care of her maternal grandmother, [JD].”

[215] Ms Anderson’s comments in relation to the periods of violence between JD and LD and in relation to JD’s unwillingness to cooperate with the Department, are supported by other reliable and credible evidence before the court.

[216] During cross-examination, it was put to Ms Anderson that she did not take steps to consider the veracity of what she was told by LD. It appeared to be accepted by Ms Anderson that LD was prone to telling lies. In particular, Mr Doyle put it to Ms Anderson that had she examined LD’s medical records, they would have revealed whether she had received medical attention for a broken jaw. Ms Anderson accepted that she could have done so, however, it was her position that even if it were established that LD had lied about such an incident, what was important was how this reflected upon LD’s relationship with her mother; “for [LD] there is an element of truth, whether it is a lie or not, it is how she feels, it’s important to LD so we need to take it into account”. Ms Anderson was also very clear that even if the allegation made by LD was untrue, it would not change her view on the outcome of JD’s Assessment. She stated that the allegation was only one of the matters considered by the Department. They also considered matters such as JD’s ability to engage with social workers and her hostile and aggressive manner.

[217] Clearly, it would have been preferable for Ms Anderson to have verified the accuracy of the information provided by LD, assuming that LD would have consented to the release of her medical records (Ms Anderson had spoken to such consent having been withheld in the past). I note, however, that the fifth and sixth pages of JD’s Assessment set out a number of strengths and risks identified in the assessment process. There is no specific reference to the allegation that JD had broken LD’s jaw. What is referred to is the volatile relationship between LD and JD which can at times result in levels of physical violence. The court has heard ample evidence of the nature of the relationship and JD has accepted that it has included episodes of violence. I do not accept that the failure to verify the accuracy of a specific account of violence provided by LD undermines the conclusions reached in JD’s Assessment or materially affects the assessment process.

LD’s position on JD’s role in C’s care

[218] It is LD’s position that she wishes a residence order to be granted in favour of her mother. That is the position articulated in the Answers lodged and by Mr Allison in his submissions, on her behalf. The court does not unfortunately have the benefit of LD’s evidence, which is regrettable.

[219] It is convenient to deal with this matter in this part of my decision which deals with disputed issues of fact.

[220] Mr Allison put it to Ms Anderson that LD had been consistent in her desire to have C cared for by her mother. That was her position at the Children’s Hearing on 9 January 2013 and at subsequent hearings; to the safeguarders; to the curator and now before the court. Ms Anderson stated that this was not always LD’s view and that at times she would say that she did not wish for JD to be involved in C’s care. The social work records bear out Ms Anderson’s evidence in this regard (as I have referred to above).

[221] The curator’s report notes that:

“[LD] met with the curator ad litem on Christmas Eve. Her position at that time was that the child should be placed in the care of [JD]. Departmental records would suggest that [LD] has made that suggestion in the past but has, equally at other points in the past suggested that [JD] should have nothing to do with the child” (5 of process, lodged on 8 January 2015).

[222] Ms Quinn, in her draft report noted that “[LD] is very clear about having her mother care for [C]” (20/73 of process). In her final report that statement is qualified to “[LD] is very clear about having her mother care for [C]. However, this situation appears to change depending on the mood of the two woman” (20/75 of process dated 14 October 2013). Ms George, the safeguarder subsequently appointed, was in fact unable to comment upon LD’s views because of her “lack of engagement” (20/76 of process dated 28 November 2013).

[223] During cross-examination, JXD was asked whether she had spoken to LD about plans for C’s care. She replied that she had not. However, she then appeared to contradict herself by stating that “I know that she wants C to go to her mother – she becomes emotional and upset”. She also stated that she had been told by JD that if she had care of C, LD would have no contact with her at all. She was asked whether she had told LD this. She responded that she had and that LD “was fine with it”. In my judgement, in light of the discrepancies in her evidence and her clear desire to assist JD, JXD’s evidence cannot be relied upon in relation to LD’s stated intentions for C’s future care.

[224] For the reasons I have set out above, I do not regard JD as reliable or credible and thus, her evidence cannot be relied upon in relation to LD’s stated intentions for C’s future care.

[225] In my judgment, the most reliable and credible source of evidence in relation to LD’s present views was Ms McAvoy. She also had the advantage of being one of the professionals most recently engaged with LD (and continues to be engaged with her during the currency of her community payback order). She spoke to meeting with LD monthly and on the last occasion, one week before she gave evidence.

[226] In her affidavit, Ms McAvoy has stated that:

“I know that [LD] is unsure if she wants [JD] to have the care of [C]. We have discussed this possibility in our work together. [LD] tells me that her mum would let her take [C] to nursery on 5 days a week. [LD] does have concern about what might happen if she disagrees with her mum on their different parenting styles”.

She was cross-examined on the issue by Mr Allison. She accepted that when LD is getting on well with her mother, it is her primary position that she wishes her mother to care for C. However, she went on to state that even during times when she had not fallen out with her mother, when LD considers her mother in the role of carer for C in depth, she has concerns. In re-examination, she explained that those concerns related to how LD herself had been parented. In her view, LD had feelings of abandonment and is concerned that the same may apply to C if her mother has care of her. She was asked, in cross-examination, whether LD had stated that she would accept JD’s boundaries if JD had care of C. Ms McAvoy replied that in her view, LD was unsure of the impact upon her and of how she would manage it – it was a difficult subject for her and she could not discuss it without getting upset.

[227] Having carefully considered the evidence in this regard, in my judgment, there is reason to exercise caution in relation to LD’s resolve on this important matter.

THE APPLICATION OF THE LAW TO THE FACTS

Is LD unable satisfactorily to discharge her parental responsibilities and exercise her parental rights in relation to C? Is she likely to continue to be unable to do so?

[228] LD does not seek C’s rehabilitation to her care, either now or at any identifiable point in the future. On one view, her position, of itself, answers these questions in the affirmative. In her discussions with Ms McAvoy, LD has accepted that she is not in a position to care for C. However, in the absence of any concessions by those representing LD, I have carefully and fully considered the evidence in relation to the “incapacity grounds”.

[229] I have no doubt that LD cares greatly for C. Indeed the social work records reflect that LD’s affection for C was often apparent during contact with her. C was born when LD was only 19 years of age and it is clear that she found the responsibilities of being a parent overwhelming. However, I regret that in my judgment LD is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights in relation to C. I have formed that opinion for the following reasons.

[230] LD is unable to safeguard and promote C’s health, development and welfare. She is unable to meet the child’s emotional needs. C was in LD’s care for a period of approximately 10 months. While caring for C, LD was unable to regulate her anger and frustration with the child, particularly when the child was distressed or crying. When frustrated, LD shouted at the child and threatened to “kill her” and to “smother her”. While caring for C, LD used illicit substances. While caring for C, LD threw her on to a bed and demanded that her mother take care of her. During contact with C, social workers observed LD to manage C’s crying by shouting at her to stop; by, on one occasion, placing her fist near C’s face; and by handing her back to social workers demanding that they placate or soothe C.

[231] LD is unable to safeguard C’s emotional welfare. LD has mental health difficulties which remain undiagnosed. She has repeatedly refused to attend for assessments with psychiatrists and psychologists. Her difficulties have manifested themselves in the form of repeated self-harming and threats of suicide. She has threatened to self-harm in C’s presence, on one occasion making a superficial cut to her wrists. Her closest relationships are with PY and her mother, JD. These are characterised by incidents of aggression, violence and hostility. The social work records relating to the circumstances in which C was removed from LD’s care (as summarised in the section 17 report spoken to by Ms Anderson)^{^[28]} reflect that C did not appear to react to the aggression, the raised voices or the abusive behaviour displayed in her presence. C’s passivity was indicative of her repeated exposure to such behaviour.

[232] LD is unable satisfactorily to provide C with parental guidance and direction. She is unable to provide C with a safe and stable environment. She has experienced periods of homelessness and has struggled to budget for essentials, such as food and heating. Ms McAvoy’s affidavit refers to LD having been removed from a homeless unit in March 2015 because of abusive and threatening behaviour towards staff employed there^{^[29]}.

[233] LD has made poor life choices. She is involved in a relationship with PY who has a long history of engaging in acts of domestic violence. There have been a large number of occasions when police have been called to attend as a result of allegations of violence perpetrated by PY against LD. Ms McAvoy spoke to LD’s description of a brutal assault. LD has refused to work with agencies who have offered her support in this regard. She is unlikely to be in a position to protect C from being exposed to any future incidents of domestic violence between herself and PY.

[234] She is unable to show the required commitment to C. The circumstances in which her contact with C ceased, as I have set out above, demonstrate that LD cannot provide C with reliable, stable and consistent care and that she is unable to put C’s interests above her own.

[235] With regards to whether LD is likely to continue to be unable satisfactorily to discharge her parental responsibilities or exercise her parental rights, I regret that in my judgment, she will continue to be unable to do so for the foreseeable future. There is no reliable evidence before the court demonstrating a change in the pattern of behaviour which has caused past concerns.

[236] According to her criminal justice worker, Ms McAvoy, LD continues to refuse referrals to psychiatrists and psychologists. Ms McAvoy also spoke to the difficulties in achieving enough stability in LD’s life to allow her to engage in cognitive behavioural therapy programmes. LD continues to display angry and aggressive behaviour and has been convicted of criminal offences. She is currently subject to a supervision requirement of a community payback order. Her anger management issues remain unresolved. According to Dr Scott, LD reported on 24 March 2016 that “her anger remains high and on a scale of 1 to 10 she rated it as 20. She stated that anything could make her become angry, including discussions regarding her daughter”. She stated she “can be okay one minute and snap the next”. She continues to make poor life choices, such as her decision to reconcile with PY after what was described as a serious assault.

[237] JD and JXD spoke to LD’s present inability to care for C. LD does not seek C’s rehabilitation to her care, now or at any identifiable point in the future. It was submitted (on behalf of LD and JD) that LD’s current mental health difficulties were intrinsically linked to these proceedings and that her mental health may improve upon the conclusion of these proceedings. While there was undoubtedly evidence that LD found these proceedings and discussing C’s future care distressing[30], there was also reliable and credible evidence that her apparent mental health difficulties and her self-harming behaviour pre-dated C’s accommodation into local authority care and continued prior to steps taken by the local authority in terms of permanency planning. In light of LD’s refusal to engage with psychiatric and psychological supports, the court can have no confidence that her present difficulties will indeed resolve upon the conclusion of these proceedings.

[238] In considering whether LD is likely to continue to be unable satisfactorily to discharge her parental rights and exercise her parental responsibilities, I have assumed that there would be a period of rehabilitation and that all required supports and services would be offered to her. Based, however, on her past and present refusal, for a period of approximately four years, to engage with the services and supports offered to her, the court cannot have any confidence that she will be receptive to such supports and services in the future. The success of any period of rehabilitation would be jeopardised as a result.

[239] Ms McAvoy stated that LD was “doing better” recently, in terms of managing her tenancy appropriately and she spoke to the relationship between LD and her family as having improved over the past three months. She explained that she was happy with LD’s progress in relation to the supervision element of her community payback order. However, there was a wealth of evidence (from Mr Adams, Ms Anderson and Ms McAvoy and from the numerous entries in the social work records) that improvements in LD’s relationship with her family, and her mother in particular, have historically been short lived. LD’s mood, her presentation and her ability to cope with day to day life, appears to be affected greatly by whether she is, at any given time, on speaking terms with JD. Her relationship with JD is turbulent and intense. The court can have no confidence that the current improvements spoken to by Ms McAvoy will endure.

[240] For all of those reasons, I conclude that the “incapacity” grounds set out in section 31(3)(c) and 31(4) of the Act, are made out. I should add that I have had regard to (but have not attached significant weight to) LD’s Parenting Assessment in forming my conclusion, which is based upon my assessment of the entirety of the evidence before me.

Should LD’s consent be dispensed with?

[241] Having regard to all of the circumstances of the case (including inter alia the matters I have referred to in relation to whether the incapacity grounds are made out; C’s relationships with ND, JD and SW; the possible alternatives to adoption), and the need to safeguard and promote C’s welfare throughout her life as the paramount consideration, I am satisfied that LD’s consent should be dispensed with.

[242] In particular, having regard to the matters set out in section 14(4) of the Act, it is clear that with the petitioners, C is part of a stable family unit and that this has been of great value to her. She has developed close and loving relationships with the petitioners and their extended family and friends. She identifies herself as part of their family; she regards them as her “forever family”. While C is not of sufficient age or maturity to express a view, she clearly refers to the petitioners as her “mummy” and “daddy”. She appears to have no expectation that she will return to live with LD (or JD). There was no evidence that she has any memory either of the 10 months of her early life she spent with LD, or of the relationships she had with JD, ND or SW.

[243] The petitioners are of the same racial origin and cultural and linguistic background as C. The female petitioner intends to raise C in the Catholic faith, in terms of LD’s wishes. The likely effect upon C of making an Adoption Order is to give her the necessary stability and security to allow her to develop in a loving and nurturing environment. That is particularly important at this juncture of C’s life as she is about to embark upon school education. Adoption will allow her to remain part of the unit she regards as her family, throughout her life. I am satisfied that the petitioners will safeguard and promote C’s welfare throughout her life.

[244] I have fully considered the alternatives to adoption and I set out my conclusions in relation to each alternative below. Each alternative carries with it a substantial risk of instability, and uncertainty or of exposure to a chaotic, unpredictable and volatile environment for C. For the reasons I set out below, I am satisfied that the making of an Adoption Order is necessary, proportionate and that it is better for C that such an order be made than not.

[245] I should add that I have formed my view based upon the assessment of the evidence before me, independently of the conclusions of the curator ad litem, of the safeguarder, of the advice of the Children’s Hearing and of the opinions of the social workers. I note, however, that the view I have formed is consistent with those expressed by each of them. I should add too that I have had regard to, but have not attached significant weight to, the terms of LD and JD’s Assessments.

[246] Whilst it is not necessary for me to make any finding in relation to whether LD’s consent should be dispensed with on the “welfare grounds” set out in section 31(3)(d) of the Act, were I required to do so, for the reasons I have set out above, I would have found that C’s welfare otherwise required LD’s consent to be dispensed with.

The Alternatives to Adoption

[247] I am clear that an adoption order must only be granted, where “nothing else will do”; not merely because it is desirable or reasonable.

[248] A number of alternatives to adoption were explored in the evidence before me. I have considered each of these. I will now turn to deal with these in detail.

Option 1: A residence order and an order for parental rights and responsibilities in favour of JD (with ancillary orders)

[249] The advantage of such an arrangement is that it allows C to remain within the care of her birth family, to retain a sense of identity and to maintain a link (subject to any orders for contact) with her natural parents. It is clear that JD loves C greatly and ardently wishes to care for her. JD contacted social work staff initially to raise concerns regarding LD’s care of C with a view to obtaining support for LD and has thus, on occasion, in the past, been able to put C’s interests before those of LD. JD has adequate accommodation for C.

[250] However, granting the orders sought in favour of JD would, in my judgment involve returning C to an unstable and volatile environment which will give rise to further uncertainty in relation to her care and to the possibility of further involvement of the local authority or the courts.

[251] Dr Robinson spoke to kinship placements working generally well but she stated that such placements tend to break down where there are tensions in the birth family. In my judgment, there is overwhelming evidence of tensions in the birth family in this case. Having analysed the evidence before me, I have concluded that the relationship between JD and LD is a volatile one, characterised by incidents of aggression, hostility and violence. I have concluded that the court can have no confidence that any recent improvement in that relationship will endure. Neither JD nor LD have been able to regulate their behaviour in C’s presence.

[252] As I have also set out above, caution requires to be exercised in relation to whether LD is supportive of section 11 orders being granted in favour of her mother. Were she to be less supportive, the risk of further breakdowns in the relationship with her mother will inevitably increase. It is clear that LD has been protective of her own role as C’s mother in the past and that a number of the episodes of aggression or violence as between LD and JD have arisen as a result of arguments in relation to C’s care. JD spoke of LD blaming her, in part, for C being removed from LD’s care. I note that according to Ms McAvoy’s evidence, LD believes that she will have a role to play in C’s life in the event that C is placed with JD. LD believes that she will be able to take C to nursery five days a week. LD has unrealistic expectations which are likely to be the source of future acrimony between LD and JD. While I accept that LD is no longer residing with JD, it was clear from the evidence that they continue to have a close relationship and that JD continues to provide support to LD.

[253] JD was asked during cross-examination how she would deal with decisions which required to made for C, in the event of section 11 orders being granted in her favour. JD stated that she would work together with LD. When asked who would have “the final say” in the event of disagreements, she stated that it would depend on what the decision was about and what the conflict was about. It was clear to me that JD had not given this matter detailed consideration, nor had she understood her role as C’s primary carer.

[254] It was submitted on behalf of JD that if it was considered necessary, in order to protect C from the volatile relationship between LD and JD, the court could make an order depriving LD of her parental rights and responsibilities. It was submitted on behalf of LD that the court could regulate contact between LD and C by making it supervised and conditional upon

“LD’s treating physician (or a Consultant Psychiatrist who has formally assessed LD’s mental health) concluding that LD’s mental health is sufficiently stable that supervised contact would not pose a risk to C”.

[255] There are a number of difficulties inherent in each of these suggestions as a means of promoting and safeguarding C’s welfare. Firstly, each of these suggestions assumes that the terms of any such orders will be adhered to by both LD and JD. I am not satisfied that they will. JD stated during cross-examination by Mr Allison that in the event that section 11 orders were granted in her favour and LD was not permitted to have contact with C, JD would call the police or obtain an interim interdict if LD did not comply. I accept that she did contact social workers with her concerns regarding LD’s care of C in 2012. Standing her mistrust of social workers, I am not satisfied that she would do so again. I formed the clear view that during her evidence, JD was willing to make any statement or concession which might help secure a role for her in C’s life. I do not accept that she has the ability or the willingness in the short, medium or long term, to remove LD from her own life, or to allow C to be removed from LD’s life.

[256] Secondly, it was clear from her evidence that JD saw her role in C’s care primarily as a transitional one. During cross-examination by Mr Thomson she stated “I want to look after [C] until [LD] can look after her again…I’ll look after her for as long as [LD] can’t.” When asked if she wanted C to be cared for by LD, she replied “if she is mentally stable and people said it’s sensible, yes”. It was put to her during cross-examination that LD may never be fit enough to exercise contact. She replied “that won’t happen – if she had contact her mental health would improve greatly”. JD was asked whether C may feel a sense of loss if she had no contact with LD and she were removed from the petitioner’s care and placed with JD. I note that JD’s response was defiant and confrontational when she responded to Mr Thomson “who says that she’d not have contact with [LD]? It’s not up to you to decide that – you are not medically qualified to decide if [LD] is mentally stable”. She was asked her view if the court decided that there should be no contact with LD. She replied “Okay, if that’s in C’s best interests at that time. People can change. [LD] may or may not always have mental health issues.”

[257] Thirdly, any contact between C and LD will require supervision for an indeterminate period of time. It is clear, standing the nature of the relationship between them, that JD cannot supervise LD’s contact with C. It was JD’s position that contact could be supervised by social workers. For the reasons I have set out above, in my judgment, JD is unable to engage meaningfully with social workers. In the event of disagreement between social workers and JD regarding LD’s contact with C, there is a substantial risk of uncertainty, instability and further involvement of the local authority or the courts in C’s care[31]. It was submitted on behalf of JD that as C would be in her care, JD would be more willing to work with social workers and to heed their advice. The evidence simply does not support that conclusion. JD’s difficulties with social workers, and with the advice offered by them, pre-dated C’s accommodation. In my judgment, this issue was neatly summarised by Ms Ross during her evidence:

“I can’t imagine any willingness to work with the Social Work Department developing in [JD] in the future. If she were to express such a willingness then I think it would be on a superficial level”.

[258] Fourthly, standing my earlier comments regarding LD’s continuing lack of engagement with psychiatrists and psychologists, making contact conditional upon such engagement would involve the court making an open ended order for contact without any indication of when, or indeed if, it will be capable of being exercised. It is self-evident that such an order cannot be in C’s best interests.

[259] I regard the relationship between JD and LD as the most significant factor which militates against orders under section 11 being granted in favour of JD. Other relevant factors include JD’s parenting skills (and in particular the difficulties in her relationships with both LD and ND), her inability to control her temper and her unwillingness to reflect upon and to accept responsibility for her own actions. These are matter upon which I have commented above. In addition, JD was in my judgment, unable to empathise with C’s current situation. She was unwilling or unable to accept that C may experience a sense of loss and anxiety were she removed from the care of the petitioners. Her position was simply that if C had managed a transition from foster carers to the petitioners, then she should be able to manage a transition from the petitioners to her care. She showed no understanding or appreciation of the bond that C has developed with the petitioners nor did she appear to show any regard for the fact that C is older and is more likely to be aware of her relationships and her surroundings. She did not accept that it would be in C’s best interests for her to have any form of contact with the petitioners. I have concluded that JD is unable to meet C’s emotional needs.

[260] For all of these reasons, having considered the arguments for and against and having undertaken a global and holistic evaluation of the possibility of section 11 orders in favour of JD (with any of the suggested ancillary orders I was invited to consider making), I am satisfied that such orders will not safeguard and promote C’s welfare throughout her life. Indeed any such orders are likely to expose C to risk of harm and in particular, to risk of emotional harm. The need for C to maintain a link with her birth family is, in my judgment, far outweighed by the need to provide C with stability, security and a safe, loving and nurturing environment.

Option 2: A residence order in favour of the petitioners (and ancillary orders for contact)

[261] The advantage of making section 11 orders in favour of prospective adoptive parents, rather than an order for adoption, is perhaps more readily apparent where there exists (a) a likelihood of a rehabilitation of the child to the care of his or her birth family; (b) a relationship and appreciable bond between the child and members of his or her birth family; or (c) on-going contact between the child and his or her birth family. None of those factors exist in the present case. I have struggled to identify any advantage of granting a section 11 order rather than an order for adoption in this case, beyond the obvious advantage that such an order may allow the link between C and her birth family to be maintained[32]. However, for all of the reasons I set out below, I do not regard any orders for contact (direct or indirect) between C and members of her birth family (whether in the context of section 11 orders in favour of the petitioners, or as post-adoption orders) to be in C’s best interests. That being the case, the apparent advantage of allowing C to maintain a link with her birth family by granting a section 11 order in favour of the petitioners is significantly diminished.

[262] The court is tasked with regarding the need to safeguard and promote the welfare of the child throughout the child’s life as its paramount consideration. A section 11 order in favour of the petitioners rather than an order for adoption will, in my judgment, expose C to further uncertainty and to the risk of further litigation. Such an order will also expire upon C reaching the age of 16. The petitioners wish for C to be treated as their daughter. She identifies herself as their daughter. Orders under section 11 of the 1995 Act will not provide C with that status.

[263] For all of these reasons, having considered the arguments for and against and having undertaken a global and holistic evaluation of the possibility of section 11 orders in favour of the petitioners, I am satisfied that such orders will not safeguard and promote C’s welfare throughout her life.

Option 3: Retaining the status quo

[264] None of the parties sought to persuade me that retaining the status quo was a viable alternative to adoption. It is self-evidently not in C’s best interests for her future to remain uncertain and for her to remain subject to the terms of a Compulsory Community Payback Order.

[265] Having considered the alternatives, I am satisfied that making an Adoption Order is both necessary and proportionate. It is clear that nothing else will do.

Should an Order for Adoption be granted?
[266] For all of the reasons I have set out above in relation to whether to dispense with LD’s consent and having regard to all of the circumstances of the case, to the need to safeguard and promote C’s welfare throughout her life as the paramount consideration and to the matters set out in section 14(4) of the Act, in my judgment, an Adoption Order should be made in favour of the petitioners. Such an order is necessary and proportionate. It is better for C that an Adoption Order is made than it is not.

Post-Adoption Contact

[267] In my judgment, it is not in C’s best interests that an order for indirect or direct contact with LD, SW or JD be made. Such orders are not likely to safeguard or promote C’s welfare throughout her life. It is not better that such orders be made than no orders be made at all. I have considered the relevant factors in relation to orders for post-adoptive contact, which I have set out earlier in my decision, in respect of each member of C’s birth family.

[268] Dealing first with the views of the petitioners, the female petitioner described C as an energetic child who requires a stimulating and nurturing environment. She explained that when C was placed in the care of the petitioners, she struggled to manage her behaviour and required the assistance of the Department to do so. Ms Horn also spoke to these difficulties and to the female petitioner’s engagement in enhanced adoptive parenting classes to assist in the management of C’s behaviours. Mrs P described C as a frustrated child who had a temper; she would run and bang her head off the floor or off a wall, bite herself, pull her hair and she would kick and scream. These behaviours lasted for approximately one year. Mrs P explained that C required a calm environment; she needed reassurance that she was safe and that it was okay for her to be angry and frustrated. She also explained that C is now very secure and that she is a lot calmer.

[269] The female petitioner did not believe that direct contact was in C’s best interests. She understood her duty to make the process of adoption as easy as possible for C and to support her to make any choices she wished to make in relation to contact in the future. She explained that she would contact the local authority to arrange contact if C expressed an interest in meeting with her birth family. She expressed her concern that contact might lead to confusion on C’s part and might lead to her displaying the concerning behaviours previously displayed by her. She explained that C was older, more articulate and more aware of her surroundings now. She expressed concern that contact, direct or indirect, may not be maintained, which would be detrimental and confusing for C. It was put to her during cross-examination that she had a preference for adopting a child who had severed links with his or birth family. She accepted that this had been her preference at the time, however, she explained that it was only a preference and that she would do what was in C’s best interests. She explained that she was resolute that she would always be honest with C and had explained, in answer to a question by C recently, that C had a “mummy tummy” but that C had “grown in her [the petitioner’s] heart”. She explained that she would provide C with further information when it was age and stage appropriate to do so and that she would help and encourage C to understand her background; she was willing to receive any information the birth family wished to provide for inclusion in her life story work. She also spoke to her willingness to meet with LD. Ms Horn expressed her view that the petitioners would be supportive of C if she wished to learn more about her birth family.

[270] Ms Doyle and Mr Allison submitted that there was an entrenched position on the part of the social workers in this case who had made a decision to exclude the birth family from C’s life. They criticised Ms Horn’s position. Ms Horn had stated under cross-examination that she had dealt with between 30 and 40 adoption cases. When asked in how many she had recommended contact, she explained she did not believe she had ever recommended contact. She went on to explain, however, that she now had experience of 3 or 4 cases in which indirect contact was operating. She conceded during cross-examination that where contact was ongoing, she would change her view – the significant factors in favour of contact, in her view, were whether there was ongoing contact and whether the birth family accepted the adoption.

[271] I do not accept that the social workers in this case had an entrenched view or had closed their minds to contact between C and her birth family. Mr Adams, Ms Richardson, Ms Anderson and Ms Horn all gave reasons as to why, in their opinion, contact was not in C’s bests interests. They were also prepared to concede that there are circumstances in which contact can be in a child’s best interests.

[272] Dr Robinson agreed under cross-examination that the purpose of post-adoptive contact is to allow the natural parents to express an interest in, and a concern for, the child. She stated that for post-adoptive contact to be a positive experience for a child, “there is a considerable onus on everyone to behave maturely and sensibly”. She agreed that where a child received conflicting or negative messages from the birth family during contact, it can be unsettling and can lead to increased levels of anxiety on the part of the child. She spoke of the effect of the increased use of social media by both adopted children and natural parents as a means to communicate post-adoption, or as a means to identify and trace each other, post-adoption.

[273] Turning to the orders sought in this case, I note that there is little or no evidence of any existing bond or attachment with C; LD, SW and JD have no ongoing meaningful relationship with C. During cross-examination, Ms Horn stated that C did not appear to have any memory of her birth family. Granting an order for contact in favour of JD, LD or SW, particularly direct contact, would involve a process whereby each would require to be re-introduced to her. LD last had contact with C in March 2013. SW last had contact with C in July 2012. JD had no contact with C between October 2012 and January 2014 and thereafter had contact with C on four occasions between January 2014 and April 2014. Re-introducing her birth family to her in these circumstances, and at this time, is likely to be unsettling and confusing for C.

[274] I have commented already on the nature of LD’s contact with C and the circumstances in which it came to an end. There are difficulties in relation to forming a view on LD’s present commitment to contact with C in the absence of evidence from her. However, what is clear is that she continues to refuse supports and assistance. The court can have no confidence in her ability to commit to any form of contact with C in the future or to work constructively with the professionals who may be involved in arranging and supervising direct contact or advising her on the terms of any indirect contact. In relation to direct contact, there are risks to C’s emotional and physical welfare, in the event that LD does address her self-harming behaviours and her anger management difficulties. She does not appear motivated to do so.

[275] SW has failed to show any interest in C’s welfare. He did not seek information regarding her wellbeing during his period of incarceration; he did not contact the Department to seek information on, or contact with C; he did not seek to take part in Children’s Hearings; he has not raised any action seeking contact with C. He has no appreciable bond with C.

[276] In my judgment, there are no positive benefits to C from such contact, particularly as the court can have no confidence that SW will either adhere to the terms of any orders for contact or will continue to show an interest in, or a commitment to, C’s welfare in the future.

[277] In relation to JD, I do not doubt that she is willing and able to commit to contact with C. I have already set out my concerns in relation to JD’s inability to heed the advice of social workers and other professionals. It is unlikely that she will do so for the purposes of direct or indirect contact with C. However, the most significant factor, in my judgment, relates to whether JD is willing to accept the terms of the Adoption Order, to be fully supportive of it and to refrain from undermining the adoption or engaging in future litigation. I have concluded that she in not.

[278] At the end of cross-examination, Mr Thomson asked JD a series of questions in relation to how she would manage contact with C. Her responses were telling. She was asked what she would tell C about her birth family during contact. I have noted her to have responded in the following terms:

“I’d tell her that her mum is not able to care for her. I’d tell her that the decision was out of my control but that others decided that she can’t live with me. I’d tell her that I always wanted her to live with me but others made the decision – it was not my decision”.

She was asked if she would tell C that she disagreed with the decision that C be adopted. I have noted her to have responded in the following terms:

“I’ll tell her the truth … I wouldn’t want her to think that we didn’t care and that we wanted her adopted … in due course when she was old enough, well into adolescence, I would tell her that I didn’t think that the decisions that social workers made were correct at the time … I’d tell that I was unfairly assessed and that social workers didn’t do their jobs properly, that they put a brick wall up with everyone in our family who wanted contact”.

She was asked whether she would want C to know that she had been wrongfully kept from her family. She responded:

“Yes. I think she was wrongfully removed … who wouldn’t want to tell her that?… my granddaughter deserves to know the truth about her … why should it be up to others to decide what my granddaughter knows about herself? I wouldn’t tell her anything damaging when she is too young but it is fair to tell her when she is old enough to understand”.

It was put to JD that this may undermine C’s sense of security with the petitioners. JD responded that it would not “because she would go home with them every time”.

[279] Ms Anderson spoke to JD having stated in the past that she “would hunt [C] down”. Mr Adams attributed similar comments to JD. JD spoke to being told that a friend had seen a child resembling C. She accepted that upon being told this, she had contacted Ms Anderson and told her that if she saw C in her locality, she would talk to her and tell C that she was her grandmother. However, JD argued that these were not serious comments - she had known of the address of foster carers who had previously cared for C and she had not sought to sabotage that placement by contacting C at their home.

[280] JD spoke to a petition which she circulated among her friends, acquaintances and customers in her place of work (item 20/72 of process). The petition bears a photograph of C, C’s full name and her date of birth. The narrative on the petition refers to C having been mistakenly removed by the local authority (which is named) and invites signatories to confirm that they agree that the local authority’s decision is wrong. JD did not accept that it was inappropriate for C’s personal details to be provided in this way. She stated that all of the signatories were people known to her. There are over 200 signatories. In my judgment, the petition was demonstrative of a distinct lack of regard for C’s privacy, dignity and welfare.

[281] JD was asked during cross-examination whether she would give up on her desire to have C live with her. She responded “I don’t give up on the things I believe in. I won’t give up if I think I have been wrongly treated. I won’t give up on my granddaughter that I love”. She was then asked if she was prepared to accept an order of the court in relation to adoption, as final. She responded “if that’s what the law says”.

[282] In my judgment, having considered the evidence, I can see no benefit to C of direct or indirect contact with JD. There are significant risks in my judgment that such contact will undermine C’s sense of security and emotional wellbeing. It will also leave open an avenue for further litigation, in the event of disagreements between JD and social workers as to the operation of contact, whether direct or indirect. It is readily foreseeable that such disagreements will arise.

[283] It was submitted on behalf of LD, SW and JD that indirect contact carried fewer risks and could be managed appropriately. The social workers and Dr Robinson agreed that indirect contact generally carried fewer risks.

[284] However, in my judgement, concerns remain in relation to LD and SW’s ability to maintain and commit to indirect contact. In the likely event that they will not so commit to contact, C may develop expectations about communications that are not met. In relation to JD, I am not satisfied that she will “act maturely or sensibly” in relation to the content of any written communication, nor heed the advice of social workers in that regard, leaving the door open to future disagreements and possible litigation. Even if I had been persuaded that indirect contact was in C’s best interests, I would have had significant concerns in relation to the suggestions made on behalf of LD and JD that such contact should include a provision for photographs of C to be made available to them, in light of the use by JD of C’s details and her image in JD’s petition.

[285] The benefit which C might derive from contact relates to her sense of identity and to her understanding of her roots. In my judgment, that benefit (without the inherent risks) can be derived without the necessity of formal post-adoptive contact orders.

[286] The petitioners have confirmed that they are willing to add appropriate information supplied by SW, LD or JD, including photographs of her birth family, to C’s “Life Story” book. The petitioners are willing to discuss C’s birth family with her and have already made her aware that the female petitioner is not her “mummy tummy”. They can be trusted to help C explore the possibility of contact with her birth family, if she expresses a desire to do so. If SW, LD or JD wish to provide letters to social workers for onward transmission to C, provided the content of such letters was deemed appropriate by social workers, in my judgment, the petitioners can be trusted to provide these to C, on an informal basis, when they consider that it is in C’s best interests to do so.

[287] Finally, it was submitted on behalf of JD that the court should make it a condition of an order for adoption that C’s views on contact with her birth family be obtained when she is 12. I regard such a condition as unnecessary and undesirable and as leaving the door open to future litigation. As I have explained, in my judgment, the petitioners can be trusted to act in C’s best interests and will be guided by her, should she express a desire to contact her birth family. I can see no benefit to C in having a decision on contact being forced upon her at the age of 12, regardless of her maturity or circumstances at that time.

DECISION

[288] Accordingly, I am satisfied that:

(a) LD has parental responsibilities and parental rights other than those mentioned in sections 1(1)(c) and 2(1)(c) of the Children (Scotland) Act 1995 and that she is unable satisfactorily to discharge those rights or exercise those responsibilities and is likely to continue to be unable to do so;

(b) LD’s consent to the making of an Adoption Order should be dispensed with in terms of sections 31(3)(c) and 31(4) of the Adoption and Children (Scotland) Act 2007;

(c) The making of an Adoption Order would safeguard and promote C’s welfare throughout her life. Such an order is both necessary and proportionate;

(d) It would be better for C that an Adoption Order be made than not;

(e) It would not be better for C that a condition of contact with LD, SW or JD, direct or indirect, be contained within the Adoption Order, than for no such order to be contained therein. Such orders are not in C’s best interests and will not safeguard and promote C’s welfare throughout her life; and

(f) Compulsory measures of supervision in respect of C are no longer necessary.

Expenses

[289] Ms Doyle and Mr Allison addressed me on the question of expenses. However, I note that I was not addressed by Mr Mallon or Mr Thomson on the issue. Accordingly, I shall assign a hearing in relation to the issue of expenses. If parties are able to agree the issue of expenses, that can be indicated to my clerk and the hearing can be discharged.

[1] Page 44 of the written submissions for LD.

[2] Which consisted inter alia of the social work records for LD, ND and C, LD’s medical records and her criminal justice records.

[3] For example, she stated that she understood that C had been removed from LD’s care because of one argument between LD and JD. She also stated that she understood that the department did not support JD as a kinship carer because ‘JD is not a nice person and her house is untidy’.

[4] See page 34 of the written submissions for LD.

[5] See pages 4 and 6 of the written submissions for JD.

[6] Page 36 of the written submissions for LD.

[7] I note that Ms Doyle had sought to obtain a precognition from the curator and had thereafter chosen not to cite her.

[8] I note that Mr Allison relied upon Paragraph 18 of the Practice Note in relation to Dr Scott’s report.

[9] I should add that in my judgment, all of the parties to this action had the ability to effectively challenge any of the evidence of any of the social workers by citing and examining them.

[10] Page 36 of the written submissions for LD.

[11] See page 35 of the written submissions for LD.

[12] In relation to various sentences in paragraphs 10, 12 and 27, which objections were not insisted upon in his written or oral submissions.

[13] See paragraph 2 of page 2 of the written submissions for the Second Respondent which states that ‘his consent, or otherwise, to the adoption is irrelevant’.

[14] See bullet point 3 on page 7 of the First Respondent’s written submissions which state ‘that in the event that the court is satisfied that it requires to address section 31(c) for each of the Respondents, it must be satisfied that grounds of dispensation is made out in respect of each’.

[15] See the penultimate paragraph of 40 of the First Respondent’s written submissions which states under the heading ‘s31(3)(c) and 31(4) that “this test is cumulative and prospective. It applies only to the First Respondent’.

[16] See page 15 of the written submissions for the Third Party Minuter.

[17] See page 40 of the written submissions for LD.

[18] Page 27 of the written submissions for LD.

[19] Paragraphs 7, 8 and 14 of the Joint Minute, no 37 of process.

[20] See paragraph 4 of LD’s Answers, no 13 of process.

[21] Statement of Fact 3, no 16/1/17 of process.

[22] Para 51 of the Joint Minute of Admissions, no 37 of process.

[23] See page 25-26 of the written submissions for LD.

[24] Paragraph 9 of her affidavit, no 46 of process.

[25] Item 19/23/8 of process; Mr Prendergast did not give evidence; this entry was put to LD during cross examination.

[26] See page 12 of the written submissions for JD.

[27] I note that on the fourth page of JD’s assessment, matters relating to JD’s employment, finances and health are addressed. At page 5 it is noted that JD has a stable job. This passage of JD’s Assessment was not put to Dr Robinson either in cross examination or re-examination. It is unclear whether, or to what extent, these references would have affected Dr Robinson’s criticism of JD’s Assessment.

[28] See para 1.18 of Part 1 of the Section 17 report, 4 of process.

[29] That evidence was not challenged.

[30] In particular from Dr Scott, Ms McAvoy and Ms Anderson.

[31] During cross examination by Mr Allison, JXD was asked whether JD would take the advice of social workers in relation to LD’s contact with C. JXD replied ‘I don’t know. . . I can’t say that”.

[32] It was submitted on behalf of JD that the approach in X v Y 2015 GWD 2-44 was to be commended. In that case, section 11 orders were granted in favour of a step-mother rather than the order for adoption which had been sought. The circumstances of that case are far removed from the case before me.

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