Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

[2017] SC EDIN 30

PO38/16 & PO39/16

 

JUDGMENT OF SHERIFF PETER J BRAID

 

In the case of Applications for Permanence Orders under Section 80 of the Adoption and Children (Scotland) Act 2007

 

in respect of the children

 

A and B

 

Edinburgh, 15 March, 2017

The sheriff, having resumed consideration of the cause, makes the following findings in fact:

1.   The petitioner is City of Edinburgh Council, City Chambers, High Street, Edinburgh and is an adoption agency for the purposes of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”).

2.   The petitioner has applied for permanence orders in respect of the children, A and B.  They are non-identical twins and are the children of M and F, both of whom hold parental responsibilities and rights in respect of the children.

3.   M and F have the right to have the children living with them or otherwise to regulate the children’s residence but the children’s residence with them or either of them is likely to be seriously detrimental to the welfare of the children.

4.   Since birth, the children have resided with X and Y (collectively Z), foster carers.  It is in their interests that they continue to reside there throughout the remainder of their childhood.

5.   Z’s address is not known to the respondents.

6.   It is currently not in the children’s best interests that there be any direct contact with the respondents.  Direct contact previously took place but was distressing to the children.  It is not anticipated that there will be direct contact in the foreseeable future, although it may be in the children’s interests at some stage during the remainder of their childhood.

7.   Meanwhile, it is in the children’s interests that there be regular indirect contact.  Regular indirect contact has taken place until now.  Such contact should take the form of an exchange of information three times each year which may include the provision of a small birthday or Christmas gift.  The petitioner also accepts that the respondents should provide photographs of themselves annually which will be shown to the children.

8.   The purpose of indirect contact in this case is two-fold.    It will enable the children to have a sense of identity and to understand their history.  It will also leave open the possibility of future direct contact being reintroduced at some point.

9.   Although until recently the respondents opposed these petitions (as was their entitlement) they have never sought to undermine the placement, nor to seek out the foster carers’ current address.

10. Y visited the respondents at Christmas 2016 to collect Christmas presents for the girls.  She showed M photos of the girls on her phone.  She had previously sent photographs of the girls to M on more than one occasion.

11. As all parties live within the jurisdiction of this court, there is a risk of their paths crossing in central Edinburgh or elsewhere.

12. Should that occur, the children are likely to recognise the respondents (whom they still know as their parents), whether or not the respondents recognise them.

13. The provision of copy photographs of the girls to the respondents at this stage is not in their best interests.  It would increase the risk of the respondents being able to trace the girls, now or in the future, through social media or otherwise.

14. However, having regard to the dual purposes of contact in this case, as set out in finding in fact 8, the quality of indirect contact will be enhanced if the respondents are permitted, annually, to view photographs of the girls as they grow up.  That will enable the respondents to visualise what the girls look like and thus to correspond with them in a more meaningful way.  The mere viewing of photographs annually will not increase the risk of the respondents finding out where the children reside.

 

Finds in fact and law

1.   The welfare of the children will be safeguarded and promoted by the making of permanence orders with a provision for indirect contact in favour of the respondents.

2.   It is appropriate, and in the children’s best interests, that indirect contact take place three times per year, involving the exchange of a card or letter, which may include a small gift to the children on their birthday or at Christmas, and which will include:

(a)     the provision of photographs of the respondents to the children annually and;

(b)     the viewing by the respondents of photographs of the children, also annually;

 

all of said indirect contact to be facilitated and monitored by the petitioner (who may take such steps as it considers necessary to prevent the copying by the respondents of the photographs of the children which are exhibited to them).

 

Therefore, makes a permanence order in favour of the petitioner in respect of the [child]:

1.   Including the mandatory provision vesting the petitioner:

 

(a)   with the parental responsibility mentioned in section 1(1)(a)(ii) of the Children (Scotland) Act 1995 (“the 1995 Act”), namely, the parental responsibility to provide guidance to the child in a manner appropriate to the stage of the development of the child until the child reaches the age of 18; and

 

(b)   with the parental right mentioned in section 2(1)(a) of the 1995 Act, namely the parental right to regulate the child’s residence until the child reaches the age of 16;

 

all in terms of section 81 of the 2007 Act;

 

2.   Including the following ancillary provisions:

 

(a)  vesting the petitioner and the child’s carers, Z, with the parental responsibilities mentioned in section 1(a), (b)(i) and (ii) and (d) of the 1995 Act namely:

 

(i)   to safeguard and promote the child’s health, development and welfare;

(ii)  to provide guidance and direction in a manner appropriate to the stage and development of the child;

(iii) to act as the child’s legal representative

 

all until the child reaches the age of 16;

 

(b)  vesting the petitioner and the child’s carers, Z, with the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act:

 

(i)   to control, direct or guide the child’s upbringing in a manner appropriate to the stage of development of the child; and

(ii)  to act as the child’s legal representative;

all until the child reaches the age of 16;

 

all in terms of section 82 of the 2007 Act.

 

(c)  extinguishing the parental rights and parental responsibilities held by the child’s mother, M, with the exception of the parental right mentioned in section 2(1)(c) and the parental responsibility mentioned in section 1(1)(c) of the 1995 Act, to maintain personal relations and direct contact with the child on a regular basis;

 

(d) including a provision that direct contact between the child and her said mother will take place only in accordance with the child’s best interests as determined by the petitioner and the child’s foster carers as aforesaid; but that indirect contact shall take place between the child and her said mother three times per year, involving the exchange of a card or letter and which may include a small gift to the child on her birthday and at Christmas; and which may also include:

 

(i)   the provision of photographs of the said mother and father to the child once per year; and

(ii)  the viewing by the said mother of a photograph or photographs of the child once per year,

 

all of said indirect contact to be facilitated and monitored by the petitioner.

 

(e)  extinguishing the parental rights and parental responsibilities held by the child’s father, F, with the exception of the parental right mentioned in section 2(1)(c) and the parental responsibility mentioned in section 1(1)(c) of the 1995 Act, as aforesaid.

 

(f)  including a provision that direct contact between the child and her said father will take place only in accordance with the child’s best interests as determined by the petitioner and the child’s foster carers; but that indirect contact shall take place between the child and her said father three times per year, involving the exchange of a card or letter and which may include a small gift to the child on her birthday and at Christmas; and which may also include:

 

(i)   the provision of photographs of the said mother and father to the child once per year; and

(ii)  the viewing by the said mother and father of a photograph or photographs of the child once per year,

 

all of said indirect contact to be facilitated and monitored by the petitioner.

 

Orders that the compulsory supervision order in respect of the child shall forthwith cease to have effect, in terms of section 89 of the 2007 Act.

 

Finds no expenses due to or by any party.

Note

[1]        These permanence order applications called before me for proof on 15 February 2017.  The applications concern non-identical twins, A and B, who have been in care since birth.  Since the issue raised in relation to both girls is the same, I am issuing only one note, dealing with both, although a separate interlocutor will of course be required and will be issued for each child.

[2]        Following sundry procedure the respondents, who are the children’s parents, eventually dropped their opposition to the petitions.  They now accept that the threshold test for the making of permanence orders is satisfied – that the residence of the children with the parents is likely to be seriously detrimental to their welfare – and that it is in the children’s best interests that such orders should be made.  That change in position followed the preparation of a report by Dr Lucy McKinlay.

[3]       On the basis of the material before me, which includes the local authority report, curator ad litem report, report by Sally Wassell, the said report by Dr McKinlay and the advice of the children’s hearing, I am satisfied that the threshold test for the making of permanence orders is indeed met and, thereafter, that the welfare of the children is safeguarded and promoted by the making of permanence orders.  Such orders will ensure that the children remain with their current foster carers throughout the remainder of their childhood.

[4]       By the time the cases reached proof, the parties had also agreed that there should be no direct contact for the foreseeable future, largely based upon the expert reports of Dr McKinlay and Sally Wassell.  They had also agreed that there should be indirect contact three times per year, including the provision of letters and cards and birthday and Christmas presents.  The sole issue, at the commencement of the proof, was whether photographs should also be exchanged.

[5]       During the conduct of the proof, the issue between the parties narrowed still further in that it emerged that the petitioner is not opposed to the provision of photographs of the respondents to the children, once per year.  It further emerged that the respondents do not insist upon receiving copies of photographs of the girls but would be satisfied if they were shown photographs once a year, so that they can observe how the girls are developing as they grow older. 

[6]       Accordingly, the very narrow issue for me to resolve is whether or not the respondents should see photographs of their daughters once a year.

[7]       At the proof, evidence was given by Y, foster carer, Stuart Mounce, who is the foster carers’ allocated social worker and Louise Jeffries, who is the children’s social worker; and by each of the respondents.  Affidavits were lodged, which constituted the principal evidence in chief of the respective witnesses, with cross-examination where appropriate.  Although F, perhaps understandably in the circumstances, became passionate in the course of his evidence, the proof generally was conducted in a civilised and professional manner.

[8]       I will not rehearse all the evidence in detail.  I will summarise the salient features of it, particularly in relation to the issue in dispute.  Y gave evidence that when direct contact did take place it had proved very upsetting for the children.  She and her husband are committed to caring for the children throughout their childhoods and into adulthood.  In general, she has always got on well with M; less so with F, as he is argumentative (a trait which also became apparent during his evidence).  She had always kept the respondents informed about the children’s well-being and had no difficulty in continuing to acknowledge that the children have birth parents and should know about where they came from.  She would happily participate in ongoing future indirect contact, three times a year, including passing on small gifts at birthdays and Christmas.  She would also pass on photographs of the parents to the children.  However, she did not want her address to be disclosed to the parents.  She did not favour photographs of the children being provided to the parents.  Photographs could be used to identify the children, recognise them or even trace them through social media.  The children might be out and about with someone other than Z (or in future on their own) and might be distressed were they to encounter their  parents.  Y conceded that her concerns would be less if the parents were only to view photographs rather than to have copies although she would still have some concerns.  She acknowledged that the parents have never previously tried to find out where Z lived.  She also conceded that there would be a risk of the girls bumping into the parents whether or not photographs are provided.

[9]       Mr Mounce supported Y’s evidence.  In his view the children would not benefit from the provision of photographs to the parents.  The benefits of indirect contact had to be balanced against the potential risks and potential negative consequences.  The provision of photographs would increase the risks presented by social media as photos could easily be shared and disseminated.  While an agreement could be entered into regulating the use of photographs, such an agreement would be difficult to enforce or to monitor.  Again, Mr Mounce conceded that his opposition would have less force if photographs were simply shown to the parents although he, too, said that he would still have some concerns.  Finally, he said that the children’s age is such that their views cannot currently be ascertained. 

[10]     Louise Jeffries gave similar evidence.  Indirect contact would maintain a link between the children and their birth family which would afford them a sense of identity and an understanding of their history.  However, it would not be in their interests for their birth parents to receive photographs.  If someone knew what they looked like and wanted to find them, they would stand out in a crowd.  Although not identical there are two of them and they look very alike.  They would occasionally be in Edinburgh City Centre and could easily be identified if their parents had regular access to photographs.  She did not believe that the parents could contain themselves if they were to find themselves confronted by their daughters in a public place.  F in particular was likely to approach them and this would be alarming, frightening and confusing for them and the carers if they were there.  It would be traumatic for the girls to be confronted unexpectedly by their birth parents.  Mrs Jeffries, however, did not oppose the provision of photographs of the respondents to the children.  She, too, conceded that her concerns would be less if photographs were merely viewed although, like the other witnesses, she had lingering concerns even about that. 

[11]     M said that she would very much like direct face to face contact in the future and considered it very important that she and F remained as some form of presence in the children’s lives.  There had been regular indirect contact in the form of text messages in the past.  Y had shown her photographs of the children when she visited the respondents’ house in December 2016 to collect Christmas presents.  Photographs would enable the girls to develop a picture and understanding of their birth parents as they grew older.  Further, M believed that the exchange of photographs on both sides would make it easier for there to be more natural and informed letters and correspondence exchanges.  It would also help the birth parents to ensure that they provided presents that were going to be useful.  As regards trying to find Z’s address, at no point in the past three years had she or F made any threats against Z, or to go to their house even when they knew where they lived.  They had not acted in any way to suggest that there would be any danger posed by them in the future.  She would ideally like to know where the girls were residing so that she could picture it.  She loved her children very much.  In cross-examination she conceded that the girls wouldn’t benefit from the provision of photographs of them to M and F although she qualified that by saying it was impossible to tell.  In re-examination she adhered to her position that seeing photographs of the girls would enable a more natural and informed exchange of letters and correspondence. 

[12]     F gave evidence to similar effect.  He drew extensively upon his own background of having been in care and he knew what it felt like not to receive photographs of one’s parents.  He was keen to impress upon the court that he had never threatened the foster carers and never visited their house and he would not do so in the future.  He clearly does still feel aggrieved at the fact that the children are not to be in his care although he made the valid point that his decision not to oppose the permanence orders was taken in the girls’ best interests, in particular with regard to B, whom he accepted he could not care for due to her particular health needs.   He did not trust social workers to be entirely honest with the children about their background.  He retained the hope that one day he would have direct contact again.  All he was asking for was the right to give presents and to have an open dialogue through letters and photographs.  He would never harm the children.  He would settle for seeing photographs.

[13]     As regards my assessment of the witnesses, I formed the view that all were credible and reliable.  As I have already mentioned, F in his evidence made it clear that he still does harbour a sense of resentment towards the social workers involved in the case and, to a lesser extent, the foster carers, whom he perceives as having betrayed him.  Nonetheless, I do accept that he loves his daughters, and that he has taken what must have been a difficult decision to relinquish his parental rights and responsibilities and to forego the right to seek direct contact for now, with their best interests at the forefront of his mind. 

[14]     As I have already stated, the issue between the parties now is even more focussed than it was at the start of the proof.  It is accepted by the petitioner and by the foster carers that the girls should be provided with regular photographs of the respondents, which meets at least part of the respondents’ concerns.  The respondents have also conceded that they would be content with being able to view photographs of their daughters as they grow up rather than to be provided with copies, which meets at least part of the petitioner’s and foster carers’ concerns.  Against this background, the petitioner’s position is that although indirect contact will benefit the children, the provision of photographs by any means will not.  The benefits must be balanced against the risks.  There is no benefit; whereas there are risks, as spoken to by the petitioner’s witnesses.  The respondents’ position on the other hand is that there is benefit, both by minimising the risk that the children will be distressed by passing their parents in the street and not being recognised by them; and by enhancing the quality of the indirect contact.

[15]     In considering this matter it is worth beginning by setting out what the petitioner’s concerns are.  The perceived risk is that if the respondents know what the girls look like, they will be able to identify them should they pass each other in the street in the future.  That may lead to the respondents approaching the girls which may cause distress, particularly if the foster carers are not there to protect the girls, as they may not be when the girls are older.  There is also a stated concern that the parents may find out where the girls and foster carers reside.

[16]     Various comments can be made in response to these stated concerns.  The last concern, that the address may be discovered through the provision of photographs, is all but eliminated if the respondents are merely allowed to view the photographs as opposed to have copies.  Second, to the extent that there is a risk that the parties may meet, that is currently a risk in any event.  The respondents already know what the girls currently look like and it is as likely that their paths will cross in the street next week or next month as it is that their paths will cross in the future.  Third, the concerns are largely if not exclusively based upon a fear of what might happen which is not grounded on any past behaviour on the part of the respondents, beyond a general antipathy displayed by F towards the social work department and foster carers.  However, as F himself pointed out (and as Y conceded) she visited their house as recently as last Christmas to collect presents and it is unlikely she would have done so had she been afraid of F.  Next, it must also be taken into account that whether or not the respondents are able to recognise  the girls, the girls are likely to be able to recognise the respondents since they are to be shown photographs of them as they grow older.  The possibility of distress being caused will therefore exist in any event and I accept the submission on behalf of the respondents that if the girls recognise the respondents but are not recognised in turn, that could equally be distressing.

[17]     Accordingly, while there are risks involved in showing the photographs, these risks do not seem to me to materially increase the risks which exist in any event at the present time.  The point might also be made that when the children are old enough to be out and about without their carers, they may also be old enough to express a view about the photographs, which may or may not lead to the provision of photographs being stopped, but that is not a reason not to order the provision of photographs now, as I discuss more fully below at paragraph 24.

[18]     As for the benefits of allowing the respondents to view photographs, I accept that there does not appear to be any significant tangible benefit to the children.  However, one benefit, as submitted for the respondents, could be the prevention of distress if the girls recognise their parents but are not recognised in turn.  The other argument presented for the respondents was that the quality of the indirect contact which is to take place in any event will be enhanced by the respondents being shown photographs of their daughters periodically.

[19]      At this point it is helpful to have regard to the legal test to be applied by the court in deciding this issue.  There are two provisions in the 2007 Act which are of relevance, which at first blush are difficult to reconcile.  Section 84(4) states:-

“in considering whether to make a permanence order and, if so, what provision the order should make, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.” 

 

That is to be contrasted with section 82(1)(e) which provides that one of the ancillary provisions which may be included in any permanence order is a provision:-

“specifying such arrangements for contact between the child and any other person as the court considers appropriate and to be in the best interests of the child”.

 

[20]     On the face of it these provisions appear to require the court to apply different tests.  In considering what provision the order should make, which by definition will include what provision the order should make regarding contact, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.  On the other hand when specifying arrangements for contact, these are simply to be such arrangements as the court considers appropriate and in the best interests of the child.  On one view, it is difficult to see why section 82(1)(e) was considered to be necessary, or at any rate why the legislature considered it necessary to specify that arrangements for contact must be such as a court considers appropriate and in the best interests of the child, having regard to the section 84(4) test.  It is hard to conceive of any court making an order for contact which it considered to be inappropriate or not in the best interests of the child.

[21]     However, proceeding on the basis that section 82(1)(e) should be given some content if possible, one possible means of reconciling the two provisions is to hold that in considering the principle of whether there should be contact, and if so, whether that contact should be direct or indirect, a two-stage approach should be adopted.  The first stage is that the court should only make an order for contact if satisfied that to do so will safeguard and promote the welfare of the child.  The second stage is that, having decided that contact  will safeguard and promote the children’s welfare, the court, in specifying the precise arrangements for contact, should specify such arrangements as are appropriate and in the best interests of the child (which may simply be stating the obvious).  If that approach is correct, then applying it to the present case, it is common ground that indirect contact will safeguard and promote the children’s welfare.  Accordingly the order should include a provision providing for indirect contact.  However in formulating the detail of that contact, the contact is to be such as is appropriate and in the best interests of the children.  Unless the two provisions are interpreted in that way, it is hard to give section 82(1)(e) any real content.

[22]     The other factor to consider, although this was not touched on by parties at the proof, is that the natural parents are to retain the responsibility of, and right to, contact and indeed, although again this was not alluded to by either party at the proof, have the article 8 right to respect for private life, family life, home and correspondence.  Those rights are subsidiary to the welfare of children, which is the paramount consideration, but nonetheless they still exist.  Given those rights, and given that there is to be indirect contact, it does seem to me that an integral part of such contact is the viewing of a photograph of the children from time to time by the respondents.  That may not be so in every case but in the present case, the parent-child bond is not being severed since the children are not to be adopted.  Although currently direct contact is not envisaged, it cannot be ruled out that at some stage while the children are still in childhood, direct contact may be appropriate.  This is not a case where the parents have previously neglected or abused the children, simply one where their parenting capacity is inadequate.  Further, it seems to me that it is in the longer term interests of the children that their birth parents should know what they look like as they grow older which can only enhance and cannot in any way detract from the quality of the indirect contact.  The girls’ appearance is an essential part of their identity and as soon as it is conceded, as it is, that the girls will benefit from their parents being apprised of their development and progress, it is very hard to separate from that the provision, in the form of viewing, of photographs at regular intervals.

[23]     Whether or not it can be said that the viewing of a photograph, per se, will safeguard and promote the girls welfare, a provision to that effect in my view is appropriate, and is in the girls’ best interests in the context of an award of indirect contact which does safeguard and promote their welfare.

[24]      Finally, the point was made several times during the proof that the girls when older may not consent to their photographs having been shown to their parents.  I do not consider that to be a relevant consideration.  Apart from anything else, the children’s consent is not required before a contact order of any sort is made. What the court must do is to have regard to the children’s views at the time of making the order, (and not to the views as they might or might not be in the future) and attach to those views such weight as may be appropriate.  The fact of the matter is that the children in this case are too young to express a view and a decision must be made according to their best interests.  As they get older, the children may develop a view and if that view is that they wish the provision of photographs to stop then that may justify an application being made for a variation (which of course may or may not be granted).  However that is not a reason for withholding the showing of photographs to the parents now.

[25]     It goes without saying of course that the viewing of the photographs should be monitored by the social work department of the petitioner, and the respondents must make no attempt to photograph the images which they are shown (and as we all know, these days photographs can easily be taken virtually using any mobile phone.  It will be for the petitioner to determine how best to ensure that does not take place, whether by ensuring all mobile phones are switched off, or otherwise).  Of course any attempt to photograph the photographs would likely result in a minute for variation being lodged to stop the provision of photographs in any form.

[26]     Finally, of consent of parties, I have ordered that the compulsory supervision order in respect of each child will cease to have effect, and that there should be no expenses due to or by any party.  I would also like to thank parties’ agents for the focussed and sensitive manner in which the proof was conducted.