Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH NUMBER
AD1/12 AD2/12	OPINION OF LORD GLENNIE in the Petition of JDM AND FBM Petitioner; for an Adoption Order under section 29 of the Adoption and Children (Scotland) Act 2007 in respect of the children L and B ________________

Petitioners: Loudon; Digby Brown LLP

First Respondent: Clarke; Drummond Miller LLP

Second Respondent: Leighton; Edinburgh Law

Introduction

[1] This is a petition by JDM and FBM ("Mr and Mrs M") for an adoption order in respect of the children L and B. The children are presently living with them under fostering arrangements. The respondents are the natural or birth parents of the children, the first respondent, HR, being their mother and the second respondent, MR, being their father. The respondents were separately represented. They both oppose the making of an adoption order. In the alternative, they contend that if an adoption order is made, that order should contain provisions for ensuring regular direct contact between them and the children; and also between the children and their elder brother, P, who is resident with different foster carers.

[2] At the conclusion of the hearing, which lasted 7 days (the first day of the 8 day diet having been lost because of the late lodging of productions and statements and a general lack of readiness to proceed), I made an order granting the prayer of the petition and dealt with the question of contact. I gave brief reasons, founding (in relation to dispensing with the parents' consent) upon what I shall call for short the "welfare test" in section 31(3)(d) of the Adoption and Children (Scotland) Act 2007. In terms of the legislation, that test arises for consideration only if the "inability test" in section 31(3)(c) is not satisfied; but since I was persuaded that the welfare test was satisfied even if the inability test was not, I considered that I should say so, without at that stage making detailed findings in relation to the inability test (though I reserved my right to deal with all matters in detail should I be asked to produce a written Opinion). I took this course for two reasons: first, because, having come to a clear view on the matter, I considered that it was in the best interests of the children and all involved in their upbringing that a decision be given without the delay inevitably involved in writing up a formal Opinion; and secondly, because in my view it is generally undesirable, where it is not really necessary, to set out in detail conclusions on the competence and abilities of individuals who may yet have an important role to play in the life of the children. Detailed findings and conclusions of that sort set out in the form of a permanent record have the potential to cause upset and possible recriminations later on in life. However, I have been asked by the first respondent to produce a written Opinion and it is therefore necessary for me to go into these matters in more detail than I would have wished.

The facts in outline

[3] Most of the facts in this case were not in dispute. They were either admitted, or set out in reports which were spoken to in oral or affidavit evidence adduced on the part of the petitioners. Though there was some challenge to a few (and only a few) of the specific incidents mentioned, the real criticisms levelled by the respondents were directed at (a) the interpretation of those basic facts and the assessments of the birth parents and their parenting capabilities made by social workers and other professionals and (b) the absence of any adequate consideration of the reasons for their perceived failings. These are important criticisms, and I deal with them later.

[4] At this stage it is convenient to summarise, in the form of a narrative, the background facts leading to the present petition, and to highlight a few of the dominant themes which caused social workers at West Lothian Council to be concerned about HR and MR's ability to look after their children. Much of this narrative is taken from a number of Social Background Reports compiled by Susan Mitchell, the social worker involved specifically with this case from March 2010. Such Reports were designed to put relevant information before the Children's Hearing system. Much of the information was taken from departmental records. She gave oral evidence. She was an impressive witness, and gave her evidence in a thoughtful and measured way. I also heard evidence on these matters from Laura Mitchell, who was the social worker involved from September 2006 until Susan Mitchell replaced her in 2010; and from Donna Williams, a family support worker who had three years involvement with the family from about February 2006. They each spoke to certain incidents in the narrative contained in Susan Mitchell's report. They too were impressive witnesses and were clearly anxious to assist the court as best they could. Although some of their evidence was based on hearsay, what they had heard from other care workers involved, I accept their account of the facts set out below as presenting an accurate picture of the events that took place.

[5] HR was born in 1984. She has an older sister and a younger brother, though she does not know them. She and her siblings lived with their mother until she was 6 months old, at which point she was adopted by her great-maternal aunt and uncle who had children of their own. She attended primary school but was transferred to a special school for children with learning difficulties. She moved from her primary school to W Academy, where she continued to require learning support. She left school when she was 16 years old without any formal qualifications.

[6] Before meeting MR, HR had previously had a child, D (a boy), in July 2001, but she separated from D's father before D was born and has had no contact with him (D's father) since then. She went to live with her parents, who helped her care for D. In about 2004 she met MR, began a relationship with him and, very soon afterwards, moved in with him. She did not take her son, D, with her but left him in the care of her parents. She has had little contact with D since then.

[7] MR is about 19 years older than HR. He lived with his parents and an older brother until he was about 21 years old. He attended primary school and then W Academy. He too left school at the age of 16 with no formal qualifications. He did, however, go on to study through the Open University, gaining qualifications in communications, biology and maths. He pursued a career in nursing, completed his training in 1988, and became a fully qualified psychiatric nurse. He secured a full time post in 1995 and remained in that post until he was sacked in 2001, apparently for assaulting a patient. He has been unemployed since then. He is about 19 years older than HR, having been born in March 1965. It is unnecessary to go into his family background in detail but he described to Susan Mitchell "a complex and unhappy home situation", involving violence and aggression from his father. After his father died, his mother remarried. He told Susan Mitchell of a history of alcoholism involving both his stepfather and his brother.

[8] In about 1995 MR began a relationship which resulted in the birth of his son, M Jnr. Further incidents of alcoholism, reportedly on the part of his partner, led to the break up of that relationship. M Jnr was placed in the care of MR by social services in the late 1990s, but in January 2006 he was accommodated with foster carers due to serious concerns about his health and development. He remains with carers and there are, I am told, no plans for rehabilitation. MR has direct contact with M Jnr once weekly at the foster carers' home.

[9] HR and MR were married on 20 May 2004. They have had three children together: P (a boy) born on [ ] 2005; L (also a boy) born on [ ] 2006; and B (a girl) born on [ ] 2007. These petitions are concerned only with the proposed adoption of L and B, but the position of P is also relevant to some extent.

[10] Concerns about the parenting ability of HR and MR were voiced soon after the birth of P in August 2005 and long before the birth of L and B.

[11] On 17 November 2005, P's name was placed on the Child Protection Register and a referral was made to the Children's Reporter. The background to this was that early in October 2005 HR telephoned 999. When the police attended, MR admitted to making threats to burn the house down and kill HR's child, D (who was living with her parents). MR explained that it was only meant as a laugh, but the police were concerned about his mental health and took him to hospital. HR was distressed, and arrangements were made for her mother to look after both her and P. P was 6 weeks old at the time. According to HR, there had been two incidents previously when MR had threatened her. She had told him that their marriage was over and his response had been to threaten to burn the house down. MR was detained overnight. While dealing with this, it became apparent that there were concerns regarding the condition of the home and the parents' lack of awareness. An instance of this, reported by the police, was that HR had laid P down on the sofa without noticing that there was a pair of scissors by his head. In mid-October it emerged that MR was frequently attending hospital (at least twice a week) seeking medical attention when not only did he not require any and but he was being continually reassured that he did not require any.

[12] Due to the serious nature of these concerns and the potential risk to P, the Social Work Department convened a professional concerns meeting on 26 October 2005, at which it was agreed to arrange an initial child protection case conference.

[13] Towards the end of September 2005, HR contacted the Social Care Emergency Team noting that MR was punching himself hard in the chest. At P's 8 week developmental check with the GP, there was evidence of mild head lag - but otherwise his development was satisfactory and his growth within normal limits. The family had contacted NHS 24 on four occasions regarding P, one incident relating to flea bites and the others to do with him vomiting. There were concerns that his weight gain when breastfeeding was slow, and this led to a change to formula milk feeds. His weight gain then began to increase. Although HR appeared to cope with P's care - and P was always clean and appropriately dressed - health visitors noted that HR appeared to be very possessive with P, and was negative about MR's interactions with him. MR continued to focus on his own health needs and sought out the health professionals at the hospital and his GP, reporting that having a new baby in the household was impacting upon his emotional state and increasing his anxiety. HR was often left caring for P alone for long periods of time, which (unsurprisingly) she found extremely stressful.

[14] In December 2005 Sure Start was introduced to support the parents in developing their parenting skills, and to encourage bonding through constructive play.

[15] There were further concerns in February and March 2006. Both HR and MR were concerned that P was sometimes holding his breath and going rigid, but were reassured that this was a form of temper tantrum and were given advice on ways of dealing with it. P also had suffered two incidents of accidental injuries, one involving a burn to his face when hot liquid from a cup was spilled or poured over him and another when he was suspected of ingesting window cleaning fluid.

[16] On 12 March 2006, the police were called in due to MR shouting at HR about not being permitted access to his son, M Jnr. MR told the police that he intended going to hospital for an assessment due to stress.

[17] There was a review child protection case conference on 9 May 2006 at which it was decided that P's name should remain on the Child Protection Register and that the unborn baby, L (HR was about 6 months pregnant with him at the time), be added at birth. There were concerns regarding P's health and development. The health visitor assessed that there were gaps becoming apparent in his mobility and development. His muscle form was poor and he was slow to try and hold himself up and move around independently. HR was receiving significant support from the health visitor to look at ways of interacting and playing with P to encourage his development and independence. She was offered advice on how to encourage P's independence and address his frustrations and anxieties when left on the floor on his own.

[18] L was born in August 2006. Social work and health services observed that HR found it difficult to deal with P's behaviour and to balance the needs of two children. Advice and guidance were provided by professionals but it remained a concern that the children's needs were not being met consistently. Concerns also emerged regarding L's erratic feeding pattern, and HR accepted that she found it difficult to establish a routine.

[19] At a review child protection case conference in November 2006 it was noted that there were ongoing concerns regarding P's developmental delay. He had been slow to stand and a community nurse was working with HR to help and encourage him to walk. The home was untidy with objects lying around which were hindering his mobility. In addition, L had presented at Accident and Emergency ("A&E"), at 12 weeks old, with a minor head injury resulting from P dropping something onto his head. There was friction between HR and MR. HR was considering moving out with the children. Although HR was engaging with the support provided from the family support worker, from Sure Start, from the health visitor, and from the nursery nurse and social worker, she did not appear to be utilising the advice and implementing the strategies offered. There was no evidence of change in her parenting abilities. MR did not engage, but focused primarily on himself and was often obstructive towards individuals from the involved agencies. It was difficult for the professionals to work effectively with either parent within the home environment due to the difficulties in the relationship between HR and MR. The high level of support had not altered the level of risk and the names of the children continued to be placed on the Child Protection Register. Because of the difficulties of working with HR and MR at home, arrangements were made for Sure Start parenting support to take place at a local parent and toddler group, so as to provide a positive social opportunity for the children and to allow staff to work on parenting strategies.

[20] HR became pregnant again in January 2007. At one point she advised social work staff that she wanted to terminate the pregnancy. It was not entirely clear whether this was due to pressure from MR or because she herself found it difficult to look after P and L, and was afraid that another child would make this worse. In the end she decided to continue with her pregnancy. HR and MR were referred to Sure Start mellow parenting groups (individual groups for mothers and fathers), which involved intensive 10 week parenting programmes addressing issues such as the parent's own experiences of being parented, significant life events impacting on values and abilities, child development and parenting strategies.

[21] MR secured his own tenancy in April 2007 and moved out of the family home. Subsequent events show that MR continued, sporadically, to be involved in the family. It is not clear precisely when he gave up his tenancy and moved back in, but there were a number of occasions when the two separated and then came together again.

[22] At a review child protection case conference in May 2007 it was noted that P had experienced intermittent episodes of bronchitis, resulting in significant weight loss. There were concerns about the children's diets and there was little evidence of proper food preparation or routines around mealtimes. A family support worker had been providing outreach support in the home, to advise and support HR with general maintenance of the home, food preparation and establishing routines and boundaries, but this service was withdrawn because HR and MR did not engage with it, and because the home environment continued to be chaotic due to ongoing issues in their relationship. MR failed to engage with the mellow parenting father's programme and then disengaged completely from the Sure Start service, saying that he struggled to focus on the needs of his children, and had to get himself "sorted out". He had concerns regarding M Jnr, who was accommodated with foster carers. After initially sporadic attendance, HR gave her commitment to the mellow parenting programme and was reported to be gaining confidence and interacting more with the children, showing that she had begun to understand the importance of play. P was assessed at the child development clinic as suffering from global developmental delay, and was referred to speech and language therapy and for a family centre placement. It was noted that his presentation had deteriorated. He was becoming increasingly "clingy" towards his mother and would cry to the point of being out of breath if HR did not respond to his immediate needs.

[23] On 12 September 2007 HR and MR presented at the Social Work Department. They had been out for lunch with L and P and had had an argument, apparently because HR disapproved of the way in which MR had dealt with the children's behaviour. MR said that he had left HR and the children and had lain down in the middle of the road; but he got up when HR said that she was going to the Social Work Department. MR explained that he had been seeking attention. Social work staff arranged for MR to get medical help, but he was not considered detainable and therefore was not admitted to hospital. Following this incident, MR's GP increased the dose of sedative that he was already being prescribed (which was aimed at controlling stress levels).

[24] On 18 September 2007 MR contacted the ambulance service saying that he had high blood pressure and was being violent towards HR and the children. The police were contacted and attended the family home. MR explained that he had been prescribed new medication by his GP and he became "worked up" when reading about the possible side effects of the medication and threw his coffee cup at the floor where HR and L were sitting. He said that he had become anxious and aware that he might become violent and therefore he had himself contacted the ambulance service to pre-empt this. HR did not feel threatened and said that MR had not in fact displayed any violence towards her or the children.

[25] B was born the next day, 19 September 2007. The Social Work Department secured a childminder for L for a 3 month period following B's birth, in an attempt to reduce the pressure on HR and to help her establish household routines. They also made arrangements to give HR time to be alone with B, so as to encourage an attachment to form. Later, arrangements were also made to allow HR to have time alone with P, as he was demonstrating challenging and aggressive behaviour following B's birth.

[26] On 22 September 2007, three days later, police went to HR's home in response to a call from a neighbour. MR was at home helping to look after the children. He had consumed about 6 bottles of beer. HR had gone to a neighbour's house to telephone NHS 24 for a repeat prescription for MR and had left MR caring for the children. B, who was only 3 days old, began crying and MR went to find HR. HR said that when they returned home MR became very angry and punched and smashed a picture, and then put his fist through the living room door. HR alleged that, while she was holding B, MR brandished his clenched fist at her. The neighbour arrived and MR went upstairs, opened the bedroom window and threatened to jump out. MR was detained and interviewed and admitted HR's account of what had happened. He was arrested and charged with breach of the peace, vandalism to the door and assault on MR by brandishing a fist at her. His bail conditions stated that he should not approach HR or her home address.

[27] A review child protection case conference on 8 October 2007 resulted with the decision for the children's names to remain on the Child Protection Register. They remained on the Register until April 2009.

[28] MR appeared at Linlithgow Sheriff Court in December 2007 and was given an absolute discharge. At a child protection core group meeting, consideration was given to MR's contact with the children. HR and MR said that they planned to resume their relationship and wanted MR to have daily contact with the children. According to Susan Mitchell's Report, neither HR nor MR showed any insight into the concerns over the previous months, or over the fact that the children had not had any contact with MR for three months prior to this. Nonetheless, HR and MR were adamant about their plans and it was agreed that social work and health staff would monitor the contact. The Sure Start Service arranged for MR to have a four week programme of baby massage with B, in order to develop MR's confidence in handling his daughter, to assist him in being able to understand and respond to her non-verbal communication and to increase his awareness of her development. However, MR only attended 2 out of the 4 sessions.

[29] In March 2008 HR contacted the Social Work Department. B had a cigarette burn on her lower cheek on the right hand side of her face, apparently sustained when HR had been talking to a neighbour who was holding a cigarette and waving it about in her hand. HR had not taken B to the medical centre until 24 hours after the incident, but she said that, despite having told the receptionist that B had a burn on her face, she had been unable to get an earlier appointment. The health visitor described HR as being "inarticulate and extremely anxious". She dressed the wound and arranged for it to be examined by the GP. There was a child protection core group meeting, at which the childminder who had been caring for L voiced her concerns that he did not seek attention or show signs of upset or distress. L sometimes had significant scratches on his face, which HR said were caused by P.

[30] At a review child protection case conference in April 2008 it was noted that Sure Start continued to support HR and the children to attend the local parent and toddler group. It appeared that HR demonstrated some awareness of the children's needs and an interest in what they were doing, but the observation was made that she played alongside them rather than with them. Concerns were highlighted about L and B's development. L presented as overly placid and sought very little attention from adults or children around him. B also sought very little attention from adults and showed little emotion when adults interacted with her. That was unusual for children of their ages. B had difficulty sitting up, whether supported or unsupported, and had difficulty grabbing hold of toys, which again was unusual for a child of her age.

[31] At this conference HR said that she had been "bullied" by MR's solicitor to resume her relationship with him. MR had been discharged from the Drug and Alcohol Service for his failure to make use of supports offered to him.

[32] Another incident of concern occurred on 19 May 2008 when HR contacted the police and reported that MR had gone to the shop for baby food at 11am and only returned at 2pm, when he was drunk. When HR asked him to leave the house, MR responded by threatening to kill HR and then go to her brother's house and kill the rest of the family. P, L and B were present in the home at the time. MR left, but returned a short time later banging on the windows and demanding entry. He left again but returned at 5.30pm and again banged on the windows. HR contacted the police. MR was detained for a breach of the peace and subsequently arrested. He was granted bail on condition that he should not approach HR or her home address. He attended court in August 2008 in relation to this matter and received a £300 fine. However, HR and MR reconciled shortly afterwards and MR returned to live in the family home.

[33] On 26 September 2008 information was received from the staff at the family centre that MR had come to see the children and was under the influence of alcohol at the time.

[34] At a review child protection case conference in October 2008 it was reported that between April and October 2008 HR's contact with the Sure Start Service was sporadic; she had cancelled a number of appointments, saying that the children either had sickness bugs or chest infections. She had failed to attend an appointment for P at the child health clinic on 14 October 2008. That had been a follow up with the therapists for a more detailed assessment, following on from an earlier assessment when P was assessed as functioning at half of his biological years.

[35] Another incident noted at that conference was that on 24 October 2008, when MR had attended the Social Work Department at lunchtime to collect funds before going to visit his son, M Jnr, a staff member had noticed that he was under the influence of alcohol and the arranged contact had been cancelled.

[36] In November 2008 a "Grounds" Children's Hearing took place. HR attended and denied the majority of the grounds. MR did not attend, but his solicitor wrote to the Reporter stating that he did not accept any of the grounds. Those grounds were then referred to the sheriff for proof. The panel decided that place of safety warrants were not required because the children were not in "imminent danger".

[37] At a core group child protection meeting in November 2008, it was agreed that in light of the concerns about the relationship between the children, and HR's difficulty in dealing with that, the Sure Start service would again offer support in the family home. HR and MR gave assurances that they would engage. MR did not engage at all. HR, by contrast, always made herself available for appointments and participated well in the sessions, but the Sure Start staff reported that it was evident that the children were not accustomed to such a level of interaction from their mother. The service included advice and guidance on food shopping, food preparation, meal ideas and cooking. Although HR engaged with this, she consistently required encouragement and direction in her interaction with the children.

[38] In December 2008 there were incidents involving P. He had an injury to his eye and HR reported that L had hit him. She also said that L or B was responsible for the scratches to his face with which he often presented. On 30 December 2008 P was admitted to hospital after Laura Mitchell, a social worker, found that he appeared ill and had a temperature. Although HR said that she had been to the GP and P had been given medication, the GP said that he was unaware that P had been sick. B and L were placed with a foster carer for respite, and P was kept in hospital for 3 days for observation and treatment due to an infection. P was readmitted to hospital at the beginning of January 2009 for a few days. MR turned up at the hospital under the influence of alcohol and there was an argument between him and HR. Police visited the home but HR said she did not want to make a complaint.

[39] The Grounds for Referral were established at the sheriff court on 15 January 2009. In argument before me at the end of the hearing, there was some uncertainty as to whether or not these grounds were established after evidence had been led or whether they were the result of admissions made at the hearing. It was therefore suggested that I should not rely upon them as findings by the sheriff. I accept that, although the inference from the fact that the Joint Minute agreed between the parties spoke of the grounds being "established" at that hearing suggests that they were found as facts. It is appropriate at this point simply to identify those grounds which were established in one way or another. So far as material, they were as follows:

"2. Over the years the [R] family have received a high level of support from a number of agencies including Social Work, Health Visitor, Sure Start, Cyrenians and Nursery and Outreach workers. This support has concentrated on their care of the children.

3. All of the children have suffered injuries, particularly facial scratches. These injuries have been self inflicted or inflicted by one or other of their siblings. Mr & Mrs [R] have not been able to adequately supervise the children and have not been able to control the children's violence towards one another.

4. While Mrs [R] is attentive to many medical appointments, particularly in relation to [P], she is not consistent in ensuring all appropriate medical treatment is followed through. This has included her failing to seek immediate medical treatment when [B] suffered a burn, following through with appointments for [B's] immunisation and a failure to follow through with professional recommendations that the children be seen by a doctor in relation to minor injuries and illnesses.

5. Mr & Mrs [R] have failed to maintain the home address to a reasonable standard in respect of cleanliness and hygiene. Poor hygiene has affected the children's physical health. This includes [B] having suffered from extensive nappy rash and thrush.

6. Mrs [R] believes that Mr [R] undermines her care of the children. There are tensions in the relationship. Mr [R] takes little part in the children's upbringing. This situation contributes to the poor supervision and control of the three children.

7. Despite the supports which [have] been offered to the family, only limited progress has been made in addressing the concerns which are set out in the preceding paragraphs".

[40] At a Children's Hearing on 5 February 2009, P, L and B were made the subjects of supervision orders with conditions of residence with local authority foster carers: c.f. the Children (Scotland) Act 1995 s.70. P was placed with one foster carer while L and B were placed with another (CD). It was reported that when social work staff went to the home to collect the children, HR's mother and brother were abusive. MR, however, advised Laura Mitchell, the social worker involved, that he agreed with the decision of the panel.

[41] In April 2009, at a review child protection case conference, the decision was made to remove the children's names from the Child Protection Register. This was because the children were accommodated and therefore the risk had reduced. A decision was made at this time to commission a comprehensive risk assessment of HR and MR from Alison Whiteley of Barnardo's Scotland. I refer to this risk assessment in more detail below.

[42] It was a condition of the supervision requirements with the conditions of residence with foster carers that contact should take place between L and B and their birth parents at least once a week, such contact to be supervised by the Social Work Department. A similar condition was imposed in respect of P.

[43] Since February 2009 none of the children has lived with either of their birth parents.

[44] The move away from the care of HR and MR appears to have had a beneficial effect on the children. At a looked after childcare review on 1 July 2009 it was noted that the children had made significant progress in their health and development since being accommodated by their foster carers. There appeared to be little prospect of the children being rehabilitated home. It was agreed, therefore, that an early looked after review would be arranged which would be in the nature of a "pre-permanency" review, where there would be discussion about a referral to the permanency panel.

[45] As if to confirm the assessment that there was little prospect of the children being rehabilitated, on 5 August 2009 HR contacted the police because MR was loitering outside her home. When the police arrived, MR was found lying heavily intoxicated beside the car belonging to HR's next door neighbour. He was taken by the police to the homes of two different friends, but neither would allow him to stay so he ended up being taken to a hostel. HR did not make a complaint against him.

[46] On 20 November 2009 MR was caught shoplifting wine from a shop.

[47] At a pre-permanency looked after childcare review on 14 October 2009, a decision was made to make a referral to the permanency panel for all three children. The permanency panel met on 18 January 2010. It decided that permanence orders with authority to adopt should be applied for in respect of all three children.

[48] A Children's Hearing on 6 April 2010 endorsed the recommendation made by Susan Mitchell that an application be made for a permanence order with Authority to Adopt in respect of all three children. At the same time, the panel reduced the amount of contact with the birth parents to once monthly (as opposed to once weekly as it had been) but in May 2010 the sheriff upheld the appeal by the birth parents and contact resumed on the basis of weekly supervised sessions.

[49] In June 2010 a recommendation was made for L and B to move placement. This was because it was not possible for them to remain with CD in the long term and there was no plan for them to be rehabilitated into the care of their birth parents. There was further discussion about the frequency of contact. On 21 July the Children's Hearing decided that L and B's supervision orders should be changed to allow them to move placement. The frequency of direct contact between the parents and P was reduced from once weekly to once every two weeks, but contact with L and B continued to take place once a week. In September 2010 the sheriff confirmed that decision.

[50] A Children's Hearing on 4 October 2010 adjusted the supervision orders to allow L and B to move placement, still on the basis of supervised contact once a week. L and B moved to live with the petitioners, Mr and Mrs M, at this time. They have remained with them ever since then.

[51] Direct contact with L and B was reduced in January or February 2011 to once every two weeks.

[52] In about May 2010 the Council applied for a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 in respect of each of the three children, P, L and B, with authority for the child to be adopted. In respect of L and B, the application was made in the Dunfermline Sheriff Court as the children were at that time living in Fife. In respect of P, the proceedings were commenced in Livingston Sheriff Court. In July 2010 the processes in the three applications were conjoined and ordered to proceed in the Livingston Sheriff Court. As regards P, the petitioners indicated that they would not be insisting in their crave for authority to adopt, due to a combination of P's age and behaviour making it difficult for them to establish that placement for adoption was likely. The proof was assigned a 5 day diet in November 2010 but the parties were not ready to commence then. A date in December was assigned but again had to be discharged. Eventually 4 days were assigned for March 2011. The proof did commence then, but took a total of 15 days in court before it was concluded on 25 October 2011. The sheriff in his judgment makes it clear that the extended nature of the proceedings was in large part due to illness on the part of the mother and one of the solicitors, and lack of application and late attendance on the part of the birth father. On 29 November 2011 the sheriff granted the application in respect of all three children.

[53] In light of the sheriff's decision, a final contact visit was organised on 6 January 2012. This was clearly set up as a "farewell" contact visit. Since then neither L nor B have had any direct contact with their birth parents or with their brother, P.

[54] After this farewell contact visit, HR made an application out of time to appeal against the sheriff's decision. The basis of her appeal was that the sheriff at Livingston had no jurisdiction in respect of the applications concerning L and B. Recognising the force of that point, the Council consented to the appeal being taken out of time and consented to the appeal being allowed. There was no similar appeal in respect of the sheriff's decision concerning P. That remains binding.

[55] The result of that was that the status of L and B reverted to what it had been prior to the sheriff's decision. They continued to live with their foster carers, Mr and Mrs M. As petitioners in these proceedings, Mr and Mrs M now seek an order for the adoption of L and B.

The law: statutory requirements

[56] An adoption order is an order made by the court vesting in the adopters the parental responsibilities and parental rights in relation to a child: section 28 of the 2007 Act. The parental responsibilities and parental rights are those set out in sections 1(1) and 2(1) respectively of the Children (Scotland) Act 1995: see section 119(1) of the 2007 Act. They are as follows:

"1 Parental responsibilities

(1) Subject to section 3(1)(b) and (3) of this Act, a parent has in relation to his child the responsibility-

(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child-

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative,

2 Parental rights
(1) Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right-

(a) to have the child living with him or otherwise to regulate the child's residence;

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

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative."

The exceptions do not matter for present purposes.

[57] An application for an adoption order may be made under section 29 or section 30 of the 2007 Act. Section 30 applies to adoption by one person. The present application by Mr and Mrs M is made under section 29.

[58] Before an adoption order may be made, certain pre-adoption requirements have to be satisfied. They are set out in sections 15 - 17 of the 2007 Act. They include a requirement that the child's home has been with the person applying for the adoption order for a period prior to the making of the order - in the case where the applicant is not a relative, and the child has not been placed with the applicant by an adoption agency, that period is a period of at least 12 months: section 15(4). The pre-adoption requirements are all satisfied in this case.

[59] Section14 of the 2007 Act specifies a number of considerations to which regard must be had in coming to a decision relating to the adoption of a child. The court must have regard to all the circumstances of the case: section 14(2). It must regard the need to safeguard and promote the welfare of the child "throughout the child's life" as the "paramount consideration": section 14(3). And it must, so far as is reasonably practicable, have regard to a number of other factors: section 14(4). So far as relevant here, those factors include (a) the value of a stable family unit in the child's development and (d) the likely effect on the child "throughout the child's life" of the making of an adoption order. In addition, it is made clear in section 28 that 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 made.

[60] An essential consideration in the making of an adoption order is that of parental consent. Section 31 of the 2007 Act provides that an adoption order may not be made unless one of the five conditions set out in that section is met. The first of those conditions - the only one of relevance here - relates to parental consent. Section 31(2) deals with this and provides as follows:

"(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 ....

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 the subsection (3)".

In this case, the parents do not consent to the making of the order. Section 31(3) therefore comes into play. This sets out the grounds on which parental consent may be dispensed with. The first two - in section 31(3)(a) and 31(3)(b) - are that the parent is dead, or cannot be found, or is incapable of giving consent. Those do not apply here. The third ground - in section 31(3)(c) - is that either subsection (4) or (5) applies. The fourth ground - in section 31(3)(d) - is that, where neither of those subsections applies:

"(d) The welfare of the child otherwise requires the consent to be dispensed with".

[61] Returning to the ground in section 31(3)(c), namely that either subsection (4) or subsection (5) applies, only subsection (4) is relevant here. Subsection (5) deals with the case where a permanence order has been made - taking away from the parents their parental responsibilities and rights - without that order including authority to adopt. That does not apply here and I need not consider that subsection further. Section 31(4) is an important subsection. It provides, so far as material, as follows:

"(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

(c) is likely to continue to be unable to do so."

The reference in section 31(4) to the 1995 Act is to the Children (Scotland) Act 1995. I have already set out the relevant parts of sections 1 and 2 of that Act which list the parental responsibilities and parental rights. It should, however, be noted that the responsibilities and rights referred to in section 1(1)(c) and 2(1)(c) respectively - viz. maintenance of personal relationships and direct contact - are excluded for the purpose of assessing the abilities of the parents under section 31(4).

[62] Section 31(3) of the 2007 Act lays down a sequential approach to the question of whether the requirement for the parent's consent to the making of the adoption order should be dispensed with. Assuming that the parents are alive, can be found and are capable of giving consent, it requires first a consideration of what may be called the "inability test" set out in section 31(4). The court has to make a judgement on the alleged inability of the parents satisfactorily to discharge their parental responsibilities or exercise their parental rights. Only if that test is not satisfied, or for some other reason neither of subsections (4) or (5) applies, does the "welfare test" in section 31(3)(d) - viz. whether the welfare of the child requires the consent to be dispensed with - come into play.

[63] At the end of the hearing, I explained my decision to dispense with the parents' consent and make the adoption order in respect of the children L and B, by explaining that I had formed the view that, whether or not the inability test was satisfied, the welfare of the children clearly required the parents' consent to be dispensed with. That was, strictly speaking, approaching the matter the wrong way round, though no adverse consequence flows from dealing with the matter in that way. But, as I said when giving my decision, I reserved the right, if I had to write on the matter, to deal in full with the all aspects of the case, including the inability test. Having been asked to produce a written Opinion, I propose, consistently with the sequential approach required by section 31(3), to make my findings on the inability test before moving on to set out my reasoning in relation to the welfare test.

The "inability test": section 31(3)(c) and (4)

[64] Section 31(4) only applies when the parents have the parental responsibilities or parental rights other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act: section 31(4)(a). There are two parts to the inability test set out in section 31(4). The first is whether the parents are unable satisfactorily to discharge their parental responsibilities or to exercise their parental rights: section 31(4)(b). The second is whether they are likely to continue to be unable to do so: section 31(4)(c).

[65] Before turning to consider the evidence in the case, I should comment on certain matters which were raised in argument and which are relevant to the proper application of the inability test.

[66] First, I have already pointed out that the parental responsibilities and rights in question - i.e. the responsibilities and rights in respect of which a judgment has to be made as to the parents' present and future ability to discharge and exercise them satisfactorily - are those listed in section 1(1)(a), (b) and (d) and section 2(1)(a), (b) and (d) of the Children (Scotland) Act 1995 (the responsibilities and rights in section 1(1)(c) and 2(1)(c) being excluded from consideration for these purposes by the terms of s.31(4)(a)). In summary, the relevant responsibilities are (a) to safeguard and promote the child's health, development and welfare, (b) to provide direction and guidance and (d) to act as the child's legal representative; while the relevant rights are (a) to have the child living with him or otherwise to regulate the child's residence, (b) to provide control, direction and guidance and (d) to act as the child's legal representative. I refer hereafter to the parents' ability satisfactorily to discharge these parental responsibilities and exercising these parental rights as their "parenting abilities".

[67] In many cases, however, indeed in all cases where there are contested adoption proceedings, the child will not be living with the birth parents at the time when the question as to their parenting abilities falls to be considered. It is a pre-adoption requirement that the child's home has been with the person applying for the adoption order for a period prior to the making of the order. Where the baby (or child) has been placed with the proposed adopters by an adoption agency, or where the proposed adopter is a relative of the child, that period is only thirteen weeks. However, in the present type of case, where the person applying for the adoption order is not a relative of the child and the child has not been placed with them by an adoption agency, the child must have been living with the would-be adopters for at least twelve months. In this case the children have not lived with their birth parents since February 2009, a period of over three and a half years. Although during this period the parents have still had the parental responsibilities and rights set out in sections 1 and 2 of the 1995 Act - section 3(1)(b) and (3) of the 1995 Act do not apply here - their ability to discharge and exercise those responsibilities and rights has, since February 2009, been limited by the fact that the children have lived with and been looked after by others pursuant to the terms of the supervision orders with conditions of residence with local authority foster carers. The limit on the parents' ability to discharge their responsibilities or exercise their rights to and over the children in such circumstances is compounded in a case such as the present by the fact that the name and address of the present foster carers, the petitioners, has been withheld from them and there have been no contact sessions with the children since early January of this year. This is not said by way of criticism, but it raises the question of how their parenting abilities are to be assessed when they have not been involved with the children to any material extent for so long. And what relevance does such an assessment have, when the realistic alternative to adoption in a case such as this is, or may be, not rehabilitation with the birth parents but some continuation of the existing long term foster care arrangements? If the real choice is between adoption and long term fostering, why should the birth parents' ability or inability to discharge the parental responsibilities and exercise the parental rights on the hypothesis of the children being returned to them (which will be difficult to assess in such circumstances and will ex hypothesi not arise) affect that choice?

[68] In the course of argument I asked counsel whether, in cases like this where there has been, and will continue to be, a limit in practice on the extent of the parents' involvement in the upbringing of the child, the statutory test was really directed towards an assessment of their actual parenting abilities (on the assumption that the children were back living with them) or whether some alternative approach to the inability test in s.31(3)(c) was to be preferred. One possibility is that the inability test for dispensing with the parents' consent in that section is intended to focus on the parents' ability to discharge the responsibilities and exercise the rights to the limited extent possible in a case where the child is not living with them. In other words, in a case such as this, to ask whether the birth parents are unable satisfactorily to play the limited role allowed to them in the circumstances in safeguarding and promoting the child's health, development and welfare, in providing direction and guidance and in acting as the child's legal representative. The problem with this approach is that that would mean that the test in section 31(4) would rarely, if ever, be satisfied; because however incapable the parents were of exercising the full range of parenting skills, they would usually be able to fulfill the very limited tasks left to them in such circumstances. Indeed, if that were the correct approach, the position would be, paradoxically, that the more serious the parents' inability to parent in the full sense, the more limited the role allowed to them in a case where the child is living with foster carers, and the more compelling the case for adoption, the more difficult it would be to satisfy the test for dispensing with the parents' consent. No counsel supported this approach, and I do not think that it can be right.

[69] An alternative possibility is that in these circumstances section 31(4) does not apply at all, so that the court is thrown back immediately onto the welfare test in section 31(3)(d). In ANS and another v. ML [2012] UKSC 30, Lord Reed, with whose judgment all members of the court agreed, discussed the ambit of section 31(4) in the context of concluding that section 31(3)(d) had a "relatively limited scope". He said this in paras.28 and 29:

28. In practice, adoption proceedings will usually be brought without the agreement of a parent in situations where either a permanence order has been made, in which event section 31(5) or section 31(7) will apply, or where parental rights and responsibilities have been suspended by a supervision requirement, in which event a question will arise under section 31(4) as to whether the suspension is likely to be lifted following a review. This practical context reinforces the relatively limited scope of section 31(3)(d), when compared with section 52(1)(b) of the 2002 Act.

29. The provision is nevertheless of practical importance. In particular, it is possible to conceive of cases where a parent may have limited parental responsibilities and rights which he or she is capable of discharging and exercising, and where section 31(4) and (5) will therefore not apply. In Principal Reporter v K [2010] UKSC 56, 2011 SC (UKSC) 91, for example, a parent was granted parental rights and responsibilities only to the extent of becoming a relevant person in the children's referral relating to the child. In NJDB v JEG [2012] UKSC 21 a parent continued to have parental rights and responsibilities, notwithstanding the withdrawal of contact with the child. A parent in those situations does not fall within the scope of section 31(4) or (5), but it is nonetheless possible that his or her consent to the making of an adoption order should be dispensed with, where the welfare of the child so requires. Equally, there may be cases where it is difficult for a court to determine whether a parent who is presently unable to discharge parental responsibilities or exercise parental rights will continue to be unable to do so, at least within the maximum period of time during which, in the child's interests, his or her future can reasonably be left in limbo: if, for example, the parent is a drug addict or alcoholic who is undergoing rehabilitation. In such a case, the test imposed by section 31(4) might not be met, but the welfare of the child could nevertheless require that an adoption order should be made. In that situation, section 31(3)(d) provides a basis upon which the court can properly dispense with parental consent."

In para.28, Lord Reed speaks of the parental rights and parental responsibilities being "suspended" by a supervision requirement. He may have had in mind a supervision requirement with a condition of residence, where day to day care of the children will lie with the foster carers. But even in such cases the birth parents retain the legal rights and responsibilities laid down in the 1995 Act, and would be entitled to be consulted, for example, if a major issue arose concerning the child's health or schooling. As section 3(4) of the 1995 Act makes clear, the birth parents have the parental responsibilities and parental rights even in a case where a supervision requirement is in place, but their power to act pursuant thereto is limited: that subsection provides that they may not act in any way which would be "incompatible with any court order relating to the child or the child's property, or with any supervision requirement made under section 70 of this Act".

[70] If the responsibilities and rights of the parents were in fact suspended during the time a supervision requirement (with or without a condition of residence) were in force, it would follow that section 31(4) could not apply - section 31(4)(a) would not be satisfied for the period of the suspension - and the court would be thrown back onto the welfare test in section 31(3)(d). That, as I understand it, was Lord Reed's analysis in para.28 of his judgment. But it may not matter whether the parental responsibilities and rights are or are not "suspended", because in para.29 of his judgment Lord Reed applies the same reasoning to a case where a parent has "limited parental responsibilities and rights which he or she is capable of discharging or exercising". As an example of this, he cites the case of NJDB v JEG [2012] UKSC 21, where "a parent continued to have parental rights and responsibilities, notwithstanding withdrawal of contact with the child." A parent in that situation, which in my opinion is akin to the situation of the parents in the present case, "does not fall within the scope of section 31(4) or (5)"; but it is nonetheless possible that his or her consent to the making of an adoption order should be dispensed with where the welfare of the child so requires (i.e. if the welfare test in section 31(3)(d) is satisfied).

[71] In support of his argument that the inability test in section 31(4) was relevant and required to be addressed in circumstances, such as the present, where the parents have parental responsibilities and rights, even though their exercise of them is limited by the supervision requirement and condition of residence with foster carers, Mr Leighton pointed to Lord Reed's remark in para.29 in the following passage (which comes immediately after that which I have just considered):

"Equally, there may be cases where it is difficult for a court to determine whether a parent who is presently unable to discharge parental responsibilities or exercise parental rights will continue to be unable to do so, at least within the maximum period of time during which, in the child's interests, his or her future can reasonably be left in limbo: if, for example, the parent is a drug addict or alcoholic who is undergoing rehabilitation. In such a case, the test imposed by section 31(4) might not be met, but the welfare of the child could nevertheless require that an adoption order should be made. In that situation, section 31(3)(d) provides a basis upon which the court can properly dispense with parental consent."

Mr Leighton submitted that Lord Reed was there saying that the test in section 31(4) might not be met, not because section 31(4) did not apply in principle, but because of the difficulty in demonstrating that the parents will continue to be unable to discharge the responsibilities or exercise the rights. In other words, so Mr Leighton argued, Lord Reed was there saying that the section 31(4) test remains relevant - i.e. that the condition in section 31(4)(a) is satisfied - and an assessment of the parents' parenting abilities has to be made. That is correct as far as it goes. Where I part company with Mr Leighton's argument is that I do not think that, in that passage, Lord Reed is still dealing with the situation of a parent who has not for some time had the child living at home. He has moved on to suggest another situation in which the court might conclude that section 31(4) does not apply; and would therefore be required to consider the welfare test in section 31(3)(d). That other circumstance is where the parent's parenting abilities can be assessed, presumably because he or she has until recently had the care of the child, and although he or she is shown to be unable at the moment, it cannot necessarily be concluded that that inability will continue. I do not think, therefore, that this passage supports Mr Leighton's argument.

[72] It seems to me that in a case where the discharge by the parents of their parental responsibilities and the exercise by them of their parental rights is curtailed, as it is here, by a supervision requirement and a condition of residence, then, whether or not it can properly be said that the parental responsibilities and parental rights are in those circumstances "suspended", section 31(4) will not apply. I recognise that this conclusion is not consistent with the arguments advanced by all parties at the hearing, but I consider that it is a conclusion to which I am driven by the careful analysis of the 2007 Act in the judgment of Lord Reed in ANS v ML. It is true that the issue in that case was whether section 31(3)(d) of the Act was ECHR compliant and therefore within the legislative competence of the Scottish Parliament. It might therefore be argued that a discussion of the circumstances in which section 31(4) might or might not apply was obiter. That would, to my mind, be to take too narrow a view of the analysis in the judgment, which involved as part of its reasoning a consideration of how limited or otherwise was the likely scope of section 31(3)(d); the discussion of section 31(4) was an essential part of that consideration.

[73] That does not mean that the court can or should avoid enquiring into the parents' parenting abilities in such a case. As Lord Reed notes in para.28 of his judgment, that question, particularly as regards the likely future ability of the parents to discharge the responsibilities or exercise the rights, may be relevant at a number of stages. It is plainly relevant to the question whether there is a realistic possibility of the supervision requirement being lifted in the future, which in turn goes inter alia to the question of what is the likely alternative to adoption if the petition were to be refused. So both for that reason, and also because I should make the necessary findings on the evidence in case the matter is taken further, I shall consider and set out my conclusions on the inability test in section 31(4).

[74] To do that requires some suspension of disbelief. The children have not lived with their parents for over three and a half years. Nor is there any immediate prospect of them doing so in the short term, whatever decision I reach on this application to adopt. But if the exercise is to be carried out sensibly, it must, to my mind, involve an assessment of how the parents would cope if the present constraints which prevent them discharging the full range of responsibilities and exercising the full range of rights were to be removed. In my opinion, the proper approach is for the court to assess the parents' parenting abilities by assuming that the child will return to live with the birth parents; and asking whether, in such circumstances, the parents can satisfactorily discharge their parental responsibilities and exercise their parental rights. But it is stretching it too far to ask whether they could do this from day one. I agree with Sheriff Ross in D, Petitioner 2012 SLT (ShCt) 73 at paragraph [30], where he pointed out that in answering the question the court will have to assume a period of rehabilitation. It will also have to assume that an appropriate level of support will be offered to the parents. I deal with this in the next paragraph.

[75] The second matter requiring comment is this. It was pointed out both in evidence and in submissions that, in this case, even if the adoption order is not made, the local authority does not intend to take any further steps towards rehabilitation. That may or may not be the case, but in my opinion the court cannot as a matter of law allow that to effect its decision unless it were established on the evidence that no amount of assistance would achieve such an improvement in the parenting ability of the parents as would enable rehabilitation to be considered. To this extent it may be that I differ from Sheriff Ross in D, Petitioner at para.[45] in the weight I attach to an indication by the local authority of its intention, albeit he mentions the point only in the context of the welfare test. The decision in Saviny v Ukraine [2010] 51 EHRR 33 makes it clear that if the parents' inability to parent could be overcome by targeted assistance, the state cannot withhold that assistance and then rely on the continuing inability to parent as a ground for removal of the children: see in particular at paragraph 57.

[76] Third, the inability test refers to the parent being unable satisfactorily to discharge "those responsibilities" or exercise "those rights". It does not in terms 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, consistently with Mr Leighton's submission, 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.

[77] Fourth, it is important to note that the question is whether the parent is unable satisfactorily to discharge the parental responsibilities or exercise the parental rights. The word "satisfactorily" is important here. The question is not whether the parent can physically discharge the responsibilities or exercise the rights. It is whether he or she can do so satisfactorily. A parent may have many strengths, and may be able to go through the motions of discharging the responsibilities and exercising the rights, but the question is a qualitative one, namely: is the parent unable satisfactorily to discharge the responsibilities or exercise the rights. The test of what is satisfactory must, in my view, be focused on whether the parent can discharge those responsibilities or exercise those rights satisfactorily in the best interests of the child.

[78] Fifth, the making of an adoption order engages the right to respect for family life enshrined in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. But, as was emphasised in the judgment of Lord Reed in ANS v ML at para.33, it did not require the Convention to teach us that the making of an adoption order breaking the bond between the child and the natural parents is a very serious interference by the state in family relationships which the court will not lightly authorise. It follows that the test to be satisfied before an adoption order can be made is one of necessity: c.f. section 31(3)(d) and ANS v ML at paras.34 and 46. Because the test is so high, the court must 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 put forward in support of the application: Saviny v Ukraine (2010) 51 EHRR 33 at para.51.

[79] Sixth, in a case where both parents oppose adoption and remain together as a unit, the court will have to consider the question of their ability or otherwise to discharge the parental responsibilities or exercise the parental rights by looking at their ability as a couple. However, in a case such as the present, where it is said by each of the parents that they are no longer living together and do not intend to resume cohabitation, the court will have to make an assessment of whether that statement of intent is to be relied upon. Depending on the conclusion it reaches on this point, the question of inability to discharge the responsibilities or exercise the rights may have to be addressed both (a) by reference to the mother and father living together as a couple and also (b) by reference to each of them living without the other and attempting to discharge the responsibilities or exercise the rights alone.

[80] The seventh and last matter requiring comment at this stage is in relation to the second part of the inability test set out in section 31(4)(c). This requires an assessment of whether the inability satisfactorily to discharge the parental responsibilities or to exercise the parental rights is likely to continue. There is no specific end date specified in the legislation. It is clear, however, that the responsibilities and rights are responsibilities and rights of the parents during the childhood of the child. Accordingly, in assessing the likely parenting abilities of the parents in the future, the court should not have to look beyond that point. But in many cases the scope of the enquiry may be much shorter. In ANS v ML at para.29, in a passage cited above, Lord Reed referred to cases where the parents might presently be unable to discharge parenting responsibilities or exercise parental rights. The difficulty might be in showing that this inability is likely to continue

"... at least within the maximum period of time during which, in the child's interests, his or her future can reasonably be left in limbo ..."

This recognises that a child needs stability. Section 14(4)(a) of the 2007 Act specifically requires the court to have particular regard to this factor, as well as certain others. There will come a point where the best interests of the child are best served by a decision being made one way or another, a decision which will bring an end to a potentially damaging period of uncertainty. This is what Lord Reed is referring to in that passage. To my mind it would not be right to extend to the whole of the child's childhood the period in which a parent who presently does not have the necessary parenting abilities can ask the court to hold off from making a final decision about the possibility of improvement.

The "inability test" - evidence and discussion

[81] Various social work records, reports, minutes and notes of meetings and contact sessions were lodged as productions. Many of these were spoken to by witnesses. I do not propose to refer to all of them. Further, in addition to Susan Mitchell, Laura Mitchell and Donna Williams who gave oral evidence, as mentioned above, I received evidence from a number of social workers and others in the form of affidavits in terms of rule of court 67.5. This was necessary to prevent the case stretching beyond the already lengthy time allotted to it. The most significant affidavit evidence was, perhaps, that of Alison Whiteley, a Senior Practitioner at Barnardo's Scotland, to whom (as I have already mentioned) the case was referred by the local authority in April 2009 for a comprehensive risk assessment of HR and MR following the removal of the children from their care in February 2009. She completed a report dated 14 October 2009 to which I shall make reference. In addition, I heard oral evidence from Mr and Mrs M, the petitioners, and from CD, the children's previous foster carer. Both respondents, who were separately represented, gave oral evidence and, in addition, the first respondent, HR, adduced expert evidence from Dr Anna Robinson, who has had a lifetime (so far) of work with children, both as a social worker, as a project leader of various child related projects, as a lecturer, and in a number of other roles. As I understood it she is currently co-ordinator of Protection through Partnership, a body concerned with preventing suicide in looked-after children. This brief summary fails to do justice to her vast experience and expertise. She was an impressive witness whose evidence I found particularly helpful.

[82] It is convenient to start with the risk assessment prepared by Ms Whiteley of Barnardo's. Ms Whiteley did not give evidence orally but there was an affidavit sworn by her which spoke to the assessment. Her main role at Barnardo's was to undertake parenting risk assessments on behalf of local authorities. Such assessments are generally requested at the point where children have been removed from their parents and there is a need to ascertain whether they could safely be returned home. Ms Whiteley explained that her first involvement with the family was by way of a referral made by Laura Mitchell on behalf of the local authority in April 2009. She was requested to carry out a comprehensive risk assessment of the birth parents following the removal of the children from their care in February 2009. She explained that although such assessments by Barnardo's were independent, they obviously liaised with other agencies involved. Her understanding when agreeing to accept the assignment was that there had been ongoing concerns about the parents' care of the children for a number of years. Her task was to undertake a risk assessment

"... to ascertain, as part of a multi-agency assessment, whether Mr and Mrs [R] would be able to provide consistent good enough care if the children were to be returned to them".

She met Mr and Mrs R and explained the purposes of the assessment and what it would entail - it would require 10-12 individual sessions with each parent and 4-5 joint sessions with them both, as well as observations of each of them with the children. At that time HR and MR were separated. Ms Whiteley understood that they had had a history of separations and reconciliations and it was decided that they would need to do some joint work (i.e. work with the two of them together) in case they were to reconcile once again.

[83] The purpose of the assessment, according to Ms Whiteley, was to look at the understanding by HR and MR of the risks which led to the children being on the Child Protection Register and ultimately being removed from their care. It was therefore necessary to assess their ability to reflect on those risks and their understanding of what would need to change. In addition, a large part of the assessment was to look at the parents' understanding of the children's health, physical and emotional needs both now, in the past and in the future, and their ability to reflect on the extent to which they were failing to meet their children's needs prior to them being removed. There was also a need to speak to the parents about their own history and experience of being parented, in order to give them the opportunity to reflect on how those experiences impacted on the choices that were to be made regarding the care provided to their own children. Ms Whiteley said that this work was undertaken with HR, but not with MR, because by then his involvement had come to an end. For the same reason, namely because MR's involvement had come to an end, the planned observations of the parents with the children ended up being an observation only of HR, and not of MR.

[84] Ms Whiteley said that HR was very committed to the assessment, attending 12 out of the 14 individual sessions. She was generally on time. Ms Whiteley's assessment was that HR was not always honest in what she was telling her. She would deny things and then concede them when confronted with the truth. This applied, for example, to the question whether the children witnessed arguments between HR and MR. HR said they never witnessed such arguments, but MR said that these arguments would generally take place at dinner time when he returned from the pub, and that the children were generally present.

[85] There was a review on 1 July 2009. At this time MR pulled out of the assessment. He explained that he did not feel able to pursue the care of the children due to his increased alcohol use at the time.

[86] Ms Whiteley remembered that HR was very clear that she would not reconcile with MR. After acknowledging that the children had in fact been witness to some of the arguments, HR had stated that the children would suffer if she and MR got back together, since the arguments became aggressive on occasion due to MR's alcohol use. On 2 September 2009 Ms Whiteley asked HR when she had last seen MR, and HR replied that it had been a long time ago, apart from one occasion when she had bumped into him by mistake. However, Laura Mitchell told her that HR and MR had both been together the day before at his accommodation, appearing to be under the influence of alcohol. When confronted with this, HR first denied it; she later admitted it, but said that it was nothing to do with Ms Whiteley. Ms Whiteley was concerned that this resumption of the relationship would be bad for the children. She said that this dishonesty on HR's part was a recurring theme, making it difficult to rely upon anything she said during the assessment process.

[87] Ms Whiteley's assessment of both parents was that HR appeared to be quite obsessed about her health at the time, and her need to blame MR for the children's needs not being met. MR on the other hand, although appearing to be more honest about his problems, was struggling to control his alcohol use.

[88] Ms Whiteley formed the view that if the children were to be returned at any point in the future they would need a high level of help from professionals. But she had concerns about the ability of HR and MR to work with professionals - in the past they had shown an inability to work with them and there was no evidence to suggest that this had changed in any way. The relationship between HR and MR was a problem in this regard, So far as HR was concerned, Ms Whiteley thought that she appeared to have a general understanding of the children's needs, but she struggled consistently to meet the more subtle needs of the children or the needs of more than one child simultaneously. She would respond to an obvious need, but if the child was not voicing his or her concern he or she would generally be overlooked. She could not read the children's "small cues". She would not necessarily be able to respond if a child was looking upset and sad, though without saying anything. She would tend to devote her attention to the child who was shouting the loudest. She would, according to Ms Whiteley, misread how the children had been during a contact session, thinking a child looked very happy when, in Ms Whiteley's opinion, that was not the case. Ms Whiteley would prompt her but she struggled.

[89] Ms Whiteley talked of HR's inability to accept that she was struggling to meet the children's initial needs. Her understanding was that prior to their removal from the care of their birth parents the children were being under-stimulated. It was important that the children's emotional needs were met, otherwise they quickly learn to have to fend for themselves. That, as Ms Whiteley observed, is the essence of neglect. Ms Whiteley described the lack of attachment and emotional connection in this way in paragraph 27 of her affidavit:

"I told [HR] about attachment and how it is needed between people in order to develop trust. I advised how important that is in order to enable the children to feel safe, explaining their need to be able to trust that their needs will be met. I talked to her about trust and empathy and why she needed to consistently be there and respond to them so that they could learn to trust her. They require consistency in their life to build trust. She struggled with this concept, often responding inconsistently and appearing to struggle with empathy. She presented as being quite robotic in her response to the children, not knowing how to respond when something out of the ordinary happened. When [HR] was tidying the room after one observation, [B] turned to shout goodbye as she left. [HR] shouted goodbye back, but didn't even turn around to acknowledge [B]. She really seemed to have a lack of natural empathy. There was another example whereby [B] fell over and [HR] struggled to appropriately emotionally respond to her. This lack of response appeared to have been triggered by the fact that [B] only appeared a little upset - more subtle than her general style of seeking attention. Rather than attending to her daughter's need for comfort, [HR] shouted over to [B] to come to her for a cuddle. [HR] then promptly turned her back on [B] and continued to tidy up the playroom. [B] did come over to her Mum, and stood behind her, but at no point did [HR] stop what she was doing and give [B] the cuddle she wanted, or that [HR] said that she would give. There were many examples whereby [HR} couldn't read the cues and the signs of the children, appearing to have difficulty in reading emotions".

Ms Whiteley concluded that HR had been given numerous opportunities to accept help and guidance regarding the care of her children but she appeared to be unwilling to accept it, even though that there was no evidence to suggest that she herself had the knowledge and understanding to make the changes without such help.

[90] The Risk Assessment prepared by Ms Whiteley repeated much of this account. The report noted that HR had moved from her primary school due to learning difficulties, though it was not specific as to whether her learning difficulties required special help in secondary education. This was a point on which the report was criticised, HR's evidence being that she suffered from learning difficulties throughout her schooldays. In a section of the report headed "Assessment and Analysis", there was a detailed account of the arguments between HR and MR, involving MR drinking to excess and arguments taking place in front of the children. The concern expressed in Ms Whiteley's affidavit about HR not being honest about the continuation of their relationship despite them outwardly having separated was noted in some detail in their report. This was a real concern for Ms Whiteley because of her perception that if HR and MR resumed their relationship the children would suffer from the disruptive and discordant home life described in the report. But HR's perceived dishonesty about the state of the relationship caused concern about all other aspects of the assessment.

[91] I do not propose to set out in detail all the matters narrated in the Risk Assessment. These covered topics such as the children's "significant development delay", thought to have been caused through under-stimulation and basic care needs not being met. Ms Whiteley highlighted what she understood to have been a significant change observed in the children's development since their removal from her care, a change which HR denied but which MR claimed to observe. In addition to the concerns about emotional neglect, and an inability to recognise and respond to the more subtle emotional needs of the children, there were concerns about how HR was dealing with the children's physical and health needs. The children often appeared to be hungry. There were areas in relation to play, discipline and supervision where HR felt in retrospect that she could have managed better, a comment which was negative in its assessment to the past but was positive in that HR appeared to recognise her previous failings.

[92] The sessions in which Ms Whiteley observed HR with the children were dealt with in a section headed "Observations". Again, many of the points made in this section are the same as those made in Ms Whiteley's affidavit. There were a number of positives. Taking them in a very summary form, there was praise for HR being always well planned for her session, arriving early to set up the room with various activities and on occasion bringing arts and crafts or games with her. There was praise too for HR being confident in certain areas of childcare, such as greeting the children with a warm hug and praising the children when they produced something nice or did something helpful or kind. HR was keen to highlight the fact that she had changed, so as to address the concerns relating to some of her past parenting. It was noted that she made a point of providing "excellent supervision of the children", checking on them regularly, responding to negative behaviour and so on. She was also proactive in trying to encourage positive play and interaction between all three of the children. When B, being the youngest, had a tantrum or became obviously upset, HR was quick to respond and generally managed to soothe or pacify her.

[93] After these positive observations, there is then this passage in the Risk Assessment:

"In many respects therefore [HR] presented as being confident in meeting a number of the children's needs. It became apparent however that these were mainly in relation to 'obvious' situations, and that there were in fact a number of gaps in [HR's] parenting, particularly in relation to the meeting of her children's emotional needs".

The Risk Assessment went on to repeat the points referred to earlier, such as the fact that HR was better able to reciprocate the children's approaches when their needs were obvious - she continued to be less able to pick up the more subtle indications of need and therefore could often overlook that need for a significant period. An example was given of HR chatting to P. B arrived and required to be picked up. HR apparently diverted her attention to B and "forgot" about P for a while.

[94] There was also a concern that HR too often relied upon the professional judgment of others and was unable to respond naturally without such judgment. This criticism was illustrated by a passage which I should quote. After referring to a session in which P had apparently been overlooked and, as a result, appeared sad and somewhat excluded, Ms Whiteley asked HR to describe how P had been feeling throughout the session and she said that he had "looked happy". Ms Whiteley continues:

"I disagreed with this view, highlighting that I thought he had presented as looking particularly sad and lonely for much of the session. [HR] appeared confused by this, and struggled to identify any occasion during the hour when he had presented in such a way. When I highlighted my concern that [P] is at risk of feeling left out and unattended to, [HR] immediately stated that she has been criticised in the past for spending too much time with [P], to the detriment of the other two children, and that she had therefore been trying to spend less individual time with him. This raises concerns about [HR's] over-reliance on professional judgment and the extent and manner in which she responds to their requests. It would appear that [HR] has simply tried to reduce her time with [P] without attempting to make her own sound judgment regarding how to also meet his emotional needs".

This passage came in for a certain amount of criticism during the course of the evidence, and I have to say that I am sympathetic to that criticism. It is, I think, obvious that any parent being supervised in contact with a child, in circumstances where their parenting ability is being assessed and where there is a concern that if the assessment is negative the child will not be returned to live with her, will be under stress. Her natural reactions will be constrained by her efforts to understand what is required of her by the person doing the assessment. I do not find it at all surprising that in that situation a parent might suppress her natural tendency to do one thing, thinking that she is expected to do the other, and then become confused when she is criticised for that. To my mind this particular criticism fails to give proper account to the difficulties experienced by the parent in those circumstances.

[95] However, I do not think that this criticism applies with such force to the other points made in the Risk Assessment. On a number of occasions HR was seen to respond to whoever was "shouting the loudest" regardless of whose need was in fact greatest, and appeared to be unaware of the children's "more subtle cues". In light of the previous remarks about the children's emotional needs going unmet, this was of understandable concern.

[96] Ms Whiteley concludes that section of the report in this way:

"In conclusion of the observations I made, it would appear that whilst [HR] was more than capable of carrying out the main tasks of a contact, and respond to her children's more obvious cues and emotions, she consistently 'misread' their more subtle interactions or indeed completely failed to see of their emotional needs. It would appear that [HR] is trying to specifically respond to each concern highlighted by the professionals involved, but by doing so has highlighted a gap in her own capacity to naturally respond to her children or make judgements about how best to meet their needs. This is of significant concern given the past risks in relation to unmet emotional needs of [the three children]".

In a section entitled "Summary of Risk Factors" Ms Whiteley referred to HR's lack of truthfulness, the risks to the children of her relationship with MR, her struggle to reflect fully on the concerns regarding her past parenting, particularly in relation to the emotional needs of the children, her inability sufficiently to meet the needs of all three children simultaneously, and her struggle to recognise the more subtle needs and emotions of her children. The "Conclusion" was that there was insufficient evidence that HR would be able to meet the needs of her three children consistently. The three children had suffered neglectful care in the past, and Ms Whiteley believed that, if they were to return to their mother's care, all three children could be put at risk once again.

[97] Ms Whiteley's Risk Assessment was, correctly in my view, regarded as the report which set the tone for the decisions made subsequently about the care of the children. It was, as I understand it, this Assessment that caused the social workers to consider that the best course was to apply for permanence orders in respect of all three children. In cross examination of various witnesses the point was made, particularly on behalf of the first respondent, HR, that the report was unduly negative. It was pointed out that in the section headed "Observations" there were a lot of positives. This is plainly correct, but on most occasions the cross examination fell short of recognising that after discussion of the positives the Risk Assessment went on to say: "However, ...", and then listed a number of significant negatives (see para.[93] above).

[98] The main criticism of Ms Whiteley's Risk Assessment came in the evidence of Dr Robinson. She described the assessment process as "disappointing". If it had a theoretical framework, that was not apparent. It was less an assessment than a narrative. Further, Ms Whiteley had said that she had not read all the records; without doing that, in Dr Robinson's opinion, a valid assessment could not be carried out. She pointed to a number of passages in the report which, in her view, were lacking in balance and proportion. In particular, she thought that the report appeared to be "preoccupied" with the question of HR's honesty, focusing on an issue about whether HR had or had not been with MR at a time when she claimed to be separated from him. In her oral evidence, Dr Robinson explained that it was naïve to assume that someone under pressure and in danger of losing their children would be honest on every topic. People lied to survive. Lying on one matter does not necessarily mean that the person is lying on everything. To my mind there is great force in this. Similarly, in considering the assessment made of HR in the contact sessions, she thought that the report under-estimated the difficulties of a parent being under observation. That too is a fair point. Nonetheless, Dr Robinson did not say that she thought that the Risk Assessment was necessarily wrong. It might in fact be right. Although some of the incidents recounted did not in themselves appear to be strong evidence of HR's inability to provide the children with emotional support, she was quite prepared to accept that Ms Whiteley was there and in a position to make an assessment, and she was not. The Risk Assessment, she said, contained a "truncated description of things we are not party to" and any criticism of it had to take account of that.

[99] Her main criticism, however, of the Risk Assessment was not so much about its judgements on HR's parenting ability - she was more concerned about its failure to ask "why?" and, from that, to seek to find out what, if anything, could be done. The Risk Assessment was deficient in three particular areas. First, it took no account of the fact that in her relationship with MR, HR was clearly the victim of domestic abuse. That was bound to affect her parenting ability and required there to be intervention focused on that issue. Secondly, the Risk Assessment failed to give any clear assessment of the effect on HR of her learning disabilities. There were considerable efforts to help and support her and to provide services, but social workers were often disappointed by her apparent inability to organise her home and respond appropriately to the children. Her learning disability might well have contributed to her deficiencies in these respects but it does not appear to have been analysed in that way, nor was the support given to her targeted on her learning disability. The third point related to MR's mental ill-health for much of the children's early years, which seemed to manifest itself in extreme bouts of anxiety and sometimes aggression. The potentially serious impact of his mental ill-health both on himself and also on HR was not taken into account in the report. The family situation was complex and there was no clear diagnosis of either parent's condition. Such a comprehensive assessment might have enabled some, if not a complete, clarification of the challenges facing the parents and the likely impact on the children, and how this could have been addressed.

[100] Dr Robinson went on to point out that throughout the records there were glimpses of HR's capacity to parent her children and care for them physically. There was no doubt that she loved her children but her relationship with MR had strained her parenting ability and undermined her confidence, rendering the help which she was given less effective. It had not really been established how best to help her parent the children.

[101] Dr Robinson's conclusion was to this effect. HR was to a significant degree a single parent, but at the same time she was engaged in conflict and distress in her marriage. While one could ask why she kept going back to MR, or allowing him to return, it is a feature of domestic abuse that abused women often believe they cannot function without their partner. It was not clear why HR was not involved much sooner with Women's Aid. However, whatever the circumstances, these matters clearly had a detrimental impact on the children. While the effects of parental and mental ill-health are still not fully understood, current research is identifying the harm which can be done to children as they are growing and developing. In her final paragraph Dr Robinson said this:

"[HR] states that she has finally separated from her husband and has moved to stay with a good friend in Edinburgh. She has worked with Women's Aid and now feels she is much stronger and able to cope. There would need to be a comprehensive assessment of her and her circumstances before there could be consideration of her children being returned to her".

[102] I explored with Dr Robinson what would be involved in such a comprehensive assessment. The assessment would have to be of whether HR now had the capability to parent her children. That would involve an assessment of HR, involving both a psychological assessment as well as an assessment of her ability to look after the children through from childhood to adult life. That would be an assessment of her without the children. That would be Stage 1 of the process. If that assessment at Stage 1 yielded a negative answer, then nothing further could be done. If, on the other hand, it yielded a positive answer, that would then lead to a second stage, Stage 2, which would involve contact sessions with the children. Stage 2 could not be contemplated unless Stage 1 had been completed satisfactorily. As I understood her evidence, each of those stages would take months, perhaps about six months each. But before Stage 1 could even be begun, HR would need support to get her to a position where she was ready to be assessed. Such support would necessarily require the issues of learning disability and domestic abuse to be addressed. This would add another few months. Although Dr Robinson was not precise as to timing, and understandably so, I formed the impression from her evidence, that if this exercise was to be undertaken one would really be looking at a period of 18 months or so before one would know whether or not the current assessment of HR's inability to parent satisfactorily would be reversed. I put it that way because I did not understand Dr Robinson to be suggesting that as things stood the conclusions drawn in the various social work reports and in the Risk Assessment by Ms Whiteley were unfair as an assessment of her present parenting abilities. The issues of learning disability and domestic abuse would need to be addressed before there could be an assessment to see whether or not addressing those problems had resulted in her becoming able to parent the children satisfactorily. Dr Robinson emphasised that she was not advocating that there should be such an assessment, nor was she saying there should not. The final paragraph of her report had simply said that there would need to be a comprehensive assessment "before there could be consideration of her children being returned to her". But, as she herself volunteered, such an assessment, at least at Stage 2, was fraught with danger. The children had been living away from HR since February 2009, more than three and a half years ago. If they were returned to their parents, or one of them, after Stages 1 and 2, that would be after a break of about 5 years. Furthermore, after the Sheriff Court decision on the permanence order, there had been a "farewell" contact session in early January 2012 at which the children had said goodbye to HR and MR. That had brought some finality which would be upset by any attempt at rehabilitation. There had been no direct contact since then. Even to contemplate returning the children to one or both of their natural parents was something which should only be done after careful consideration of the possible dangers if it went wrong. An assessment had to be made of the risk of failure at Stage 2 (the contact session), when the children would be put in a position of meeting their birth parents again some two years or so after the farewell meeting (raising possible concerns in their minds about what was happening and whether their foster carers were now rejecting them); and also, if the Stage 2 assessment was successful, after the children were returned to their mother, where there would inevitably be a risk that the return to their birth parents would prove to be unsuccessful, and they would be made the subject of a further supervision order with conditions of residence with foster carers.

[103] I come back to consider these matters later, but at this stage I should simply say this. For all the criticisms made of the assessment report prepared by Ms Whiteley, and inferentially of the other social work assessments, the prospect of embarking on a course which, if not completely successful, would lead to the potentially disastrous situation for the children spelt out above, is not one which the court should lightly countenance. The welfare of the children is paramount, and there comes a point when the position of the children can no longer be allowed to remain in limbo, and when decisions have to be made, albeit imperfectly, in the children's best interests.

[104] As I have already said, I heard evidence from a number of the social workers involved in the case, particularly Laura Mitchell and Susan Mitchell. I have indicated that they were impressive and reliable witnesses. Much of their evidence confirmed the background facts set out earlier and the assessment that the parents were unable satisfactorily to discharge the parental responsibilities or exercise the parental rights. Their evidence in different ways supported the analysis in Ms Whiteley's Risk Assessment; but it deals in some instances with the position before the children were removed from the parents in February 2009 and also takes matters on beyond October 2009, the date of the Risk Assessment.

[105] Laura Mitchell was allocated the case in September 2006, just after L was born. She explained that there had been concerns since 2005 about P's safety and the parenting being afforded to him. There were concerns regarding the birth parent's relationship due to threats of violence, separations and reconciliations and police involvement. L was born in August 2006 and was the subject of a pre-birth registration. This, she said, increased the stress upon the parent's relationship because MR had not wanted another child so soon. There were concerns regarding safety in the home and the levels of hygiene in the home environment. There was also no evidence of any stimuli to encourage the children to develop a sense of curiosity through play or external interaction. She described difficulties around the home and between the children, particularly as regards P's aggressive behaviour towards L and, later, B. B was placed on the Child Protection Register before she was born. Laura Mitchell carried out weekly visits to the family, and often more than that, along with colleagues and other professionals from different agencies. She saw food remnants lying around the house, dirty feeding bottles, soiled nappies, empty lager cans, exposed electrical cables and multiple bags of washing. She observed numerous occasions of P being in a distressed state, L playing independently with no supervision and B lying on the floor, left for long periods of time in soiled nappies. She explained how there had been a comprehensive package of support in place since October 2005 and how, at the point of each child's birth, there was support from social work, children's centre staff, Sure Start, Outreach, health visitors and mellow parenting staff. Other support was offered too. HR and MR appeared to participate actively - though not, in her view, co-operatively - in the working relationships and care plans. In April 2008 it was decided that a referral should be made to the Reporter to the Children's Hearing. In her view there was no evidence of the parent's capacity to change, nor of any sustained progress. Concerns were growing for the children's health and development. The children were referred to a permanency panel towards the end of 2009. The case was transferred to Susan Mitchell and she had no further involvement. However, she did give an account of the relationship between HR and MR. She said that the relationship was stable at the beginning of her involvement when they had only one child. However, MR became pre-occupied with his own mental state, turning to drugs and alcohol misuse. He would present at hospitals claiming he had mental health problems and that he wanted to be admitted. In the end he was barred from A&E. He had no recognised diagnosis. He would leave HR and the children in the car park for hours while he went to the hospital. He turned from drugs to alcohol, and turned to offences such as shoplifting as a means of getting alcohol. There were cans of beer all over the house. This clearly had an impact on the relationship between him and HR. MR would often be drunk and HR would feel threatened, but when charges were brought against him she would drop them.

[106] Laura Mitchell said that a massive improvement was noted once the children were accommodated. The parents noticed this. HR, she said, "grudgingly noticed the progress" the children were making. MR "couldn't believe it was the same children". Their speech and language improved; and their growth was monitored, as well as their general well being and presentation. Their eyes and skin were brighter, they were clean, they were happy, smiling and responding to stimulus. The improvements were massive.

[107] Laura Mitchell described the contact sessions up until the time she left in December 2009/January 2010. The contact was initially three times a week with HR and once a week with MR. MR withdrew from the contact not longer after it began; but HR continued, and the children were pleased to see her though not anxious when they separated. Her impression was that the children saw contact as a treat because it involved playing with toys and getting lunch rather than because of any bond with HR. Staff at the children's centre where the contact took place thought that HR was not able to interact with them and guide them. She found it difficult to balance her attention and needs with all of them.

[108] Susan Mitchell took over from Laura Mitchell in about March 2010. She had already met Mr and Mrs R, since she had been the allocated social worker for M Jnr from January 2007 until December 2009. She gave evidence that M Jnr experienced significant neglect and stability during his early years. He suffered from health problems and was developmentally delayed. MR agreed to M Jnr being accommodated with local authority foster carers in 2006 for a period of assessment, since there was evidence that his basic care needs were not being met. After being accommodated, M Jnr's health problems significantly improved and he made progress in all areas of his development.

[109] When Susan Mitchell became the allocated social worker for L and B, she was given information from the social workers and other professionals who had been involved up to that point. This information was the basis for much of the narrative of the background facts in her Social Background Reports referred to above. She commented that P appeared to suffer significantly from developmental delay. When first accommodated with his foster carer, he did not know how to play and would sit on the floor in a corner and rock. His speech and language were delayed by over two years. He was wary of people, quiet and withdrawn. He often experienced constipation and soiled himself. There appeared to be no medical explanation for this and it was more likely due to poor diet and the emotional impact of his early care experiences. Susan Mitchell said that there was also concern about L and B's needs being met. There were reports of lack of supervision and of neglect. She too described the various supports from the social work and other agencies which had been made available to Mr and Mrs R. She confirmed what Laura Mitchell had said about the state of the home environment. The standards of hygiene, she said, only improved in response to visiting social workers who insisted that improvements needed to be made. When improvements were made, they were not sustained.

[110] Prior to her involvement in early 2010, the permanency panel had made a recommendation that L and B were in need of permanent care and that the most appropriate outcome would be adoption, as this would provide the best security. It was Susan Mitchell's responsibility to progress this recommendation and seek advice from the children's hearing. The hearing took place in April 2010, when the panel supported the application for a permanence order with authority to adopt. She confirmed that throughout the time of her involvement there has been no plan in place to pursue rehabilitation of the children to the care of their parents. This was because of the assessments which had been undertaken of HR and MR, and the lack of evidence of change in response to the supports which had been given, as well as the progress which the children had made since being accommodated and their need for stability and security in the long term.

[111] Susan Mitchell's description of the contact sessions need not be set out in any great detail. Her impression of MR was that he found it very difficult to engage the children. There was very limited verbal communication or eye contact. Suggestions made to MR about play and trying to engage were unsuccessful. At times he became absorbed in play himself, and failed to notice the needs of the children. So far as concerned HR, there were reports from previous occasions of her having struggled to manage the three children together and having been unable to meet the emotional needs of the children during the short periods of contact.

[112] Mr and Mrs R decided to have their contact together in July 2010. Susan Mitchell supervised this. They attended the contact sessions well but, despite suggestions that they should do so, did not prepare for sessions by thinking of something to bring with them or something to do during their time with the children. They did not offer any structure or direction to the contact. They found it difficult to initiate positive interactions. HR talked to the children more and offered physical affection. Nonetheless, Susan Mitchell describes what might be described as a lack of emotional empathy. She said that contact had a significant negative effect on the children both before it took place and afterwards. The children often did not want to leave their carer (CD) in order to go to contact.

[113] Susan Mitchell supervised the "farewell" contact session on 6 January 2012. She did not believe it was in the children's interest to have any future direct contact with their parents. The children appeared to have settled down well with their carers (the petitioners) and had become significantly more settled since contact ceased. Introducing further contact at this stage would, in her view, severely jeopardise the security the children had gained in placement and would cause them distress and anxiety. This was particularly so since Mr and Mrs R do not accept that the children should remain accommodated, and in those circumstances the children's security in their placement as well as their attachment to the petitioners could be undermined by direct contact. To use the terminology often adopted in such cases, contact with their parents would not give L and B "permission" to be in the petitioners' family. At present the children already identify the petitioners as "Mum" and "Dad". Direct contact, she said, should only take place if it was of benefit to the children. There was no evidence of this being the case. She thought indirect contact more appropriate. This would allow Mr and Mrs R to share information about themselves with the carers and the children, and for the carers to provide Mr and Mrs R with updates on how the children were making progress. The carers had spoken of valuing indirect contact in their commitment to supporting the children as they grow up in the knowledge of their parents. She thought that the plan was for the children to have indirect contact with their sibling, P, and to consider the possibility of direct contact between L and B and P through their respective carers.

[114] Finally, Susan Mitchell explained that HR and MR were separated and have not lived together for some time. HR was claiming to be in a position to care for the children herself, since she was no longer in a relationship with MR. However, Susan Mitchell thought that there were serious concerns regarding their relationship and the impact that this had on the children, and the risks would remain if the children were cared for by either birth parent.

[115] I was referred to the minutes of the meeting of the permanency panel on 18 January 2010. Their recommendation was that all three children were in need of a permanent care plan to be put in place. All three children, they thought, should have the chance for that to be as secure as possible and that could be through adoption. Reluctantly, the panel recognised that, because of his own needs, P would best be placed separately from L and B; but they considered that L and B should be placed together, so as to enable them to develop a relationship. Much of the information before the panel was information coming from the various social workers and other professionals involved with the family and the children. I need not set out their paraphrase of that information. The minutes are, however, interesting for the contribution to the discussion by the Medical Adviser, Dr Kerr:

"Dr Kerr felt the effects of the chronic neglect the children suffered at the hands of their birth parents have been well evidenced in terms of presentation when first accommodated. While every effort was made to help the parents change their parenting style it has not been possible to do this and to consider any form of rehabilitation. Dr Kerr agreed she felt the children should have permanent substitute care. Given the age of the children it would be preferable to consider adoption. [L] and [B] should be placed together. [P] may well continue to have very significant needs for the foreseeable future and it may be too much to manage all the individual needs of the three children in one placement. [P] should be placed separately but have ongoing regular contact with his siblings".

[116] A curator ad litem, George Gould, prepared a report in support of the permanence application at Livingston Sheriff Court which resulted in the permanence order being made, albeit that it was subsequently appealed. He observed the children twice. The first time in November 2010 was in the company of both parents for a period of one hour. The second occasion in January 2011 was in the company of each parent separately for a period of half an hour each. As regards the contact on 2 November 2010, he noted that there was very little eye contact between the parents and their children. B appeared unsettled and uninterested when HR was attempting to read a story to her, while MR simply joined in with L, giving no leadership or direction. Similar observations were made about the contact in January 2011. It was the curator's opinion that contact had become "very confusing and emotionally difficult for both children". He said that there was "a clear absence of structure, warmth and attachment evident between the children and their parents". His assessment of the birth parents was that HR smothered the children with "overwhelming emotional warmth" despite the non-verbal signals from both children that they did not want this. He said that she seemed "unable to accept that they are going through a very confused and emotionally trying time in their young lives". He thought that her level of insight was either lacking or subsumed by her own feelings and emotions. As regards MR, Mr Gould said that he was unable to offer any structural direction in the children's play and that his "soft-spoken [which he explained meant "uninspired"], almost apologetic style", gave no sense of comfort or control in his interaction with the children. Mr Gould commented generally about a lack of insight shown by the parents into the children. This reflected his own earlier experience of the family in December 2008, when as a safeguarder he had visited the family one evening (this was before the children had been removed from their parents in February 2009).

[117] I heard evidence from both petitioners. I need not set out their evidence in any great detail. They were impressive witnesses and sat through the proceedings in court, which must have been very distressing to them in many ways, with admirable stoicism and good spirit. They are clearly devoted to the children and can offer them a warm and loving family in which to grow up. It was clear from their evidence, which was supported by a report to the court under section 17(2) of the 2007 Act from Angie Gallagher, a social worker to the petitioners, that they have the capabilities to make good adoptive parents. Their capabilities in this regard were not in fact challenged; and the favourable assessment of those capabilities was supported in the Report of the present curator ad litem, Ms Innes. Where the evidence of Mr and Mrs M was challenged was in their account of the distress occasioned to the children both before and after contact sessions with HR and MR. Having heard and seen them in the witness box and formed a clear view that they were credible and reliable witnesses, I accept their evidence on this matter. It confirms my view, which is consistent with that of others to whom I have referred, that if I were to make an adoption order in the present case I should not make it a requirement of that order that there be direct contact between the children and their birth parents.

[118] I also heard evidence from CD, the foster carer who looked after the children from February 2009 until they moved to the petitioners in October 2010. Although she did not speak of distress caused to the children before and after contact sessions with the birth parents, she did confirm the enormous progress made by the children in terms of their presentation and behaviour after they moved into her care and away from living with their birth parents. She too was an impressive witness and I accept her evidence on this.

[119] The evidence from the birth parents was in some ways more difficult to assess. Both were clearly devoted to the children. Both appeared at times to accept the failings in their previous attempts to look after the children. Each of them gave evidence that they were now separated for good - there was no going back. And each of them in their evidence, at times anyway, appeared to believe that they were presently able to have the children living with them and capable of deploying the full range of parenting skills. I have no doubt as to the genuineness of their love for the children, and that HR in particular is heartbroken to have had them removed from her care. But without wishing to be too harsh in my judgement of the parenting abilities of either of them, I have to say that I regarded their own assessments of those abilities as unrealistic to the point of delusional. I should explain why I have come to that view.

[120] Taking MR first, he accepted that his care of the children up to 2009 was "not good enough". He spoke of a background of a nervous breakdown in 2001, followed in the years after that by what he described as panic attacks and a compulsive disorder - he would attend hospital regularly for re-assurance and had eventually been barred from A&E. Domestic difficulties with HR had led him to drink more and more and take various medications on top of the alcohol. He became aggressive and related that to the medication he was taking. Drink, he said, was a stress substitute. He said that he was a good dad when he was not drinking, though he was sometimes out of the house running or exercising (it is clear that he is a fitness fanatic, and he said he now attends the gym about five times a week). He had his own tenancy for about a year and a half on and off. It is therefore not surprising that he accepted the criticisms of his parenting up to the time the children were removed in 2009.

[121] Why then should the court conclude that he would now be able to look after the children if they were returned to him, particularly if, as he said, he was no longer living together with HR? MR thought that the contact sessions had gone well. In that he differed from the general views of the social workers. However, he accepted that his drinking continued when the children went into care, a fact which he attributed to the stress of separation from them. Life was on a "downward spiral", and there was no purpose in making it better. But he had now "moved on" and was doing different things. He maintains good contact with Mark Jnr, to the point at which the possibility of an overnight stay has been canvassed. He is now getting emotional support from a psychiatric nurse on a fortnightly basis, is getting support in connection with his tenancy, and was until recently getting support in relation to alcohol consumption; he said he no longer needs that latter support, and now only drinks occasionally, socially. At times in his evidence he seemed to accept that the court was likely to make an adoption order, and focussed his efforts on maximising the contact which would be allowed if such an order were made. To this end he had been in contact with the Scottish Adoption Agency. But he said that he "would be able to care for the children if they came to live with me", provided he had support from social work and outside agencies. That was, presumably, on the basis that he was living alone, though he did not venture to address any of the practicalities of that scenario. Things had been getting better over the last two years. He confirmed that he would be supportive of the children going to live with HR, though he did not explain how him having contact with them at her house would work if the relationship between himself and HR was over.

[122] I do not doubt the honesty of MR's evidence. That is, in a way, one of the worrying aspects of it. Although he accepts that there were problems - and his behaviour narrated in the section on the background facts is testament to this - he is now confident that he has moved on. Realising the damaging effect of his assertion that he would be able to care for the children if they were returned to his care, Mr Leighton suggested that I should not take that answer too seriously. But it was part of his evidence, and not just a throwaway line, and I took it as symptomatic of an inability to understand and focus on the real needs of the children, both physical and emotional, in their future upbringing. However, I do not base my assessment on the one answer but on having heard and seen MR give evidence in the witness box, against the background of the evidence, which he does not dispute, about his previous behaviour. I am fully persuaded that MR is not presently capable by himself of discharging the parental responsibilities or exercising the parental rights in the sense that he could not do so now, or even after a short period of rehabilitation, if the children were to be returned to his care; and I am equally persuaded that his present inability in that regard is likely to continue for the foreseeable future, certainly for the whole of the period during which the status of the children requires to be resolved and probably for the whole of their childhood.

[123] Turning to the position of HR, she described a happy relationship with MR in the early years. However, from late 2005 his behaviour gave rise to a catalogue of concerns. He would rush to hospital at the drop of a hat, his behaviour was very abusive and mentally draining, and he was threatening. It was, in her view, his failings which led to Paul being placed on the Child Protection Register. When L was born, MR would tell people that he was stressed out by it. HR felt threatened. MR would threaten and shout abuse. He once lifted his fist at her. When B was born, HR felt she could cope with the children, but the strain of MR's behaviour told. He would come in drunk - she described him as acting like a five year old. MR got his own tenancy in April 2007. When he moved out, HR said that she was doing well in coping with the children - she was praised by all the agencies she was working with. She vaguely remembered the incident of MR lying down in the road. She remembered other incidents, such as MR drinking the six bottles of beer, getting abusive, smashing a picture on the wall, making a hole in the living room door, and so on. Once MR moved out, she coped quite well on her own. She referred to a report by Yvonne Smith, the Health Visitor, in October 2007, which was positive about her parenting abilities and cooperation with outside agencies once MR had left. But she resumed her relationship with MR: "love is blind" she said, and for the sake of the children she wanted them to have a father figure. This happened over and over again - they would separate and then reconcile. MR kept turning up, and it made for an easier life just to let him in - she did not know what else she could do. She thought she would be able to change him. She was getting mixed messages from outside support agencies about whether or not she should separate from him. In the event, MR would turn up and say "sorry, it won't happen again", and it would be alright for a few weeks. She received help from outside agencies, such as Sure Start, but none of them spoke to her in a way she understood - she "didn't understand half the stuff coming out of their mouth." She would be criticised for doing something, then criticised for not doing it. She denied some of the allegations about her and MR, such as the allegations about them having heated arguments in front of the children, though she also denied ever having said that they did not have arguments in front of the children.

[124] The children were removed from her care in February 2009 because, as she put it, "it was considered that they were not getting the level of care that they ought to be getting". She had been doing her best. She was confident in what she had been doing. She said she knew how to play with and bring up the children. She "didn't need social work to tell me how to bring up the kids". But she cooperated with them nonetheless.

[125] HR was taken to Ms Whiteley's Risk Assessment. She accepted some of the points made in it. But she did not accept the criticism that she was unable to meet the emotional needs of the children. She complained - with some justification (as noted above) - that she might be told not to give all her attention to P, but then would be criticised for not giving him all her attention. This was unfair. She was under scrutiny, and was told one thing and then another. She did not know what to do.

[126] In terms of the future, HR was adamant that the relationship between herself and MR was over. She admitted that she had said this in the past. She had meant it then too, but she just could not keep to it. She denied having lied to Ms Whiteley about seeing MR - that incident was the result of inaccurate reporting by Ms Whiteley. Since their last separation in 2011, she had gone to Women's Aid. That had helped and strengthened her. She was not proposing to reconcile again with MR.

[127] HR accepted that the contact sessions with the children had not always been perfect. Some times were not as good as other times. But, overall, she had a good relationship with the children. She would read stories to them. They were always happy to see her. There was always engagement between them. The children always enjoyed contact with P as well.

[128] HR's position, expressed very firmly, was that she wanted her children back. However, if the court granted the petition and allowed the adoption to proceed, she would accept that. If that happened, she thought it important for L and B both to see her. She wanted them to know that she loved them, and she wanted to know that they knew that. She could give love and direction to the children, and help them understand who they were and why they were where they were. She would want direct contact once or twice a week, but if it was to be only once every two months, she would support that. She did not think letterbox contact was satisfactory.

[129] In assessing HR's evidence, I am quite prepared to believe that she loves her children, is heartbroken to be separated from them and, indeed, believes that she can bring them up by herself. I do not say that grudgingly - all that was evident from her language and demeanour in the witness box. But I do not accept that it is realistic to conceive of her looking after the children at home by herself, even with the assistance of social work and outside agencies. It is of concern that she was firmly of the view that she did not need social work to tell her how to bring up the children. This might be an understandable reaction in someone who was well able to discharge the responsibilities and exercise the rights pertaining to the role of parent and had not been told otherwise. But in HR, who admitted that, if only in early 2009, there had been problems with her parenting skills, it is a sign either of obstinacy or, more likely, a deep-rooted lack of understanding, that she was not prepared to recognise that such help was needed. In addition, her failure to understand that she had difficulties in providing the emotional contact and support needed by the children makes it difficult to see a way to her being presently able to fulfil satisfactorily her role (to discharge her responsibilities and exercise her rights) as a parent. I am conscious of the difficulties facing a parent in such circumstances. It is a classic case of: "damned if you do, damned if you don't". The experts have identified inadequacies in her parenting skills. If she accepts that assessment, she condemns herself. If she rejects it, her refusal to recognise that there is a problem condemns her too (it is taken as evidence that she is incapable of changing). However, the court has to make an assessment on the evidence, and if it concludes that she is not presently capable of giving the children the emotional support which they need (as well as some of the other physical support in terms of providing a loving home), then, in considering the prospects of improvement, it cannot ignore the fact that she appears oblivious to those failings.

[130] There is in my opinion little doubt as to HR's present inabilities in this area. Although Ms Clarke insisted that the inability test was not met, I am satisfied on the evidence presented to me that it was. One of the most compelling parts of the evidence of Dr Robinson was that, although she criticised certain features of the Barnardo's Risk Assessment, she did not suggest that Ms Whiteley had come to the wrong conclusion about HR's (and MR's) parenting abilities. Indeed, a striking aspect of her evidence was the statement, repeated more than once, that it was surprising (possibly unfortunate) that the children were not removed from their care sooner. Her criticism of the Assessment was not that it was wrong in its conclusions about the parents' parenting ability but that it failed to address the reasons for them being unable to fulfil adequately the parental role demanded of them. That, as I have said, is a comment with which I am in sympathy. But it is made against the background of it being accepted and established that, as at the time of the Barnardo's Assessment and as at the time of Dr Robinson's Report, HR was unable to discharge the parental responsibilities or exercise the parental rights.

[131] What then of the future? This is more difficult. On what assumptions is the question to be addressed? Should one assume that HR and MR remain apart? I would find that a difficult assumption to make. I accept that both HR and MR have said that they do not intend to get together again. That, I accept, is an honestly held belief. But the past cannot be put entirely out of mind. They have separated before on a number of occasions and failed to stay apart, even when on her own evidence HR knew that getting back together with MR was negatively affecting her ability to bring up the children. This is not being censorious, merely realistic. It seems to me highly likely that if HR resumed care of the children, MR would come round to visit them, and the clean break from each other would become impossible to maintain. It was accepted that if they were to resume living together the situation would return to something like it had been before the children were taken away from them.

[132] But even if they did not resume their relationship, what then? I have already given my opinion that MR, by himself, would not be able satisfactorily to discharge the parental obligations or exercise the parental rights, either now or in the future. By the same token, I have seen nothing in the evidence to persuade me that HR's parenting abilities would improve over time. In this context, the relevant period of time in the future is the time within which, in the interests of the children's stability and well-being, a decision has to be made. Given that the children have been away from home for over three and a half years, and have settled with their foster carers with no contact with the birth parents, that period is inevitably short. Dr Robinson was concerned about the possibility of a prolonged period before a decision was made, if only because the longer the children were away from their parents the more disruptive it would be if they were to be returned to them. I would say that the judgement which has to be made now is a judgement about the likely parenting abilities of HR within the next 12 to 15 months. I cannot see any basis for any conclusion other than that it is likely that the inability to parent the children will continue for at least that period. Even if that is the wrong test, and the period I am considering is too short, on the evidence before me I can see no basis for thinking that HR's parenting abilities will improve to the point of being satisfactory for a number of years in the future. That is surely too late.

Conclusion on the "inability test"

[133] For the reasons set out earlier, I do not consider that the inability test in section 31(4) is engaged. Strictly, therefore, any finding of "inability" in terms of that subsection is otiose. But if I am wrong, and section 31(4) is engaged, then I find that, whether taken together as a couple, or looked at individually on the basis that their relationship will not resume, both HR and MR are unable satisfactorily to discharge the parental responsibilities in respect of the children, or to exercise the parental rights, and that they are likely to continue to be unable so to do.

[134] My conclusions in respect of the parents' inability to discharge the responsibilities or to exercise the rights, both now and in the future, are relevant in any event, both to the welfare test, which I turn now to consider, and to the factors set out in section 14 of the 2007 Act.

The "welfare test": section 31(3)(d)

[135] What follows is an expanded version of the brief reasons which I gave at the end of the hearing when I gave my decision.

[136] Section 31(3)(d) requires the court, before making an adoption order against the wishes of the parents, to be satisfied that "the welfare of the child otherwise requires the consent to be dispensed with", the word "otherwise" referring to the fact that one only gets on to this test if the inability test is not made out.

[137] It is made clear in ANS v. ML (supra) that the word "requires" in section 31(3)(d) imports a test of necessity. It must not only be necessary that there be some intervention; it must be necessary that there be adoption rather than some less extreme interference with the natural bond between parent and child. The court must be satisfied that the adoption must proceed for the sake of the child's welfare and that nothing less than adoption will do: see per Lord Reed at paras.32 and 34. If the child's welfare can be equally well secured by less drastic intervention, it cannot be said that consent to the adoption requires to be dispensed with.

[138] I also accept that the welfare test requires consideration of the whole-life welfare of the child, as it was expressed by the Lord President in S v L when the case was in the First Division: see [2012] SC 8 at para.[14]. Section 14(4) of the 2007 Act requires the court to have regard in particular to (a) the value of a stable family unit in the child's development, and (d) the likely effect on the child "throughout the child's life" of the making of the adoption order. Strictly these matters arise for consideration at the stage of deciding whether to make an adoption order only once it has been decided that the requirement for parental consent should be dispensed with on one of the grounds set out in section 31(3). That is sometimes referred to as the "two-stage test". Certainly, if the court finds section 31(3)(c) to be satisfied, then the considerations mentioned in section 14(4) come into play at the next (second) stage of the exercise. However, it seems to me to be artificial to deal with these two stages separately if the question whether parental consent is to be dispensed with is being considered under 31(3)(d). In considering whether the welfare of the child requires the parents' consent to be dispensed with (the test under that subsection), it is inevitable that the court will require as part of that exercise to have regard to the factors listed in section 14(4), so far as applicable. I understood counsel to agree that this was the correct approach; and this approach has the support also of Sheriff Ross in D, Petitioner at para [34]. Having regard to the terms of section 14(4)(d), the judge "has to be satisfied that the child's welfare now, throughout the rest of his childhood, into adulthood and indeed throughout his life, requires that he or she be adopted": see D, Petitioner at para [32], citing the observations of the Court of Appeal in Re P (Children)(Adoption) [2008] 2 FLR 625. But this does not mean that the court has to ask whether in, say, 20 years time the welfare of the children (by then adults) will be affected by their status at that time. The court is concerned with the effect on them, throughout their life, of adoption or non-adoption now. It is obvious that decisions made early in the life of a child can (perhaps will almost always) have a significant effect on the child throughout the whole of the rest of his or her life. That is recognised not only by the approach of the Court of Appeal in Re P, but also by the requirement in section 14(4)(a) for the court to have particular regard to the value of a stable family unit in the child's development.

[139] The children are now 6 and 5 years old respectively. As Dr Robinson confirmed, they are at the most crucial stage of their development. They have been away from their natural parents since February 2009, some three and a half years ago. They moved to live with the petitioners in October 2010, after about one and a half years with CD. They have been with the petitioners now for over two years. On 29 November 2011 the sheriff made a permanence order with authority to adopt. Since then, nearly a year ago, the children have understood that they are finally settled with the petitioners. A "goodbye" contact session with their parents took place on 6 January 2012. There has been no further contact with their parents since then.

[140] In asking the court to refuse to make an adoption order, the natural parents say that it is not necessary. There is no reason, they say, to think that the status quo will change if I refuse such an order. The children will continue to live with the petitioners. Supervision may continue, and there may be reviews of the arrangements by the Children's Hearing system. Orders can be made removing all supervision. In those circumstances, adoption is not necessary. The welfare of the children will be safeguarded by the continuation of the present arrangements.

[141] That argument flies in the face of the contention by the parents, HR in particular, that the children should be returned to live with them. At an earlier stage of the case, the argument was made on behalf of HR that if the court refused the adoption order it was inconceivable that things would just continue as they are. That seems to me to reflect the reality of the position. The mother does not believe that it is necessary for the children to be looked after by the petitioners. She believes strongly that she is able to look after them. I consider that if I were to refuse to make the present order the mother would seek to resume contact with a view to making an application to take the children back. Whether or not such an approach would succeed is nothing to the point. On the evidence before me it seems unlikely that it would. But it would introduce disruption and uncertainty into the lives of the petitioners and the children.

[142] Adoption presents advantages for the welfare of the children which other orders which the court can make do not have. The children become formally and legally part of the new family. Adoption offers the children certainty, stability and security: see FB and AB, Petitioners 1999 FamLR 2 at para.2-21. The adoptive parents too acquire the confidence that goes with that security - and that too is in the interests of the children. The advantages of adoption are explained well by the curator, Ms Innes at pp.22 and 23 of her report. I accept her evidence on that matter.

[143] Those advantages of adoption over other arrangements seem to me to be necessary in the present case largely, though not only, because of the history of this matter. The decision by the sheriff led to the petitioners and the children coming to believe that the situation was permanent. The petitioners have come to understand that that feeling of permanence was premature. The children have not. They have lived for over 10 months in the belief that their life with the petitioners is "for ever". If I were to make an order now which undid that sense of security - which in my view I would be doing if I refused to make the order sought by the petitioners - I would be putting at risk the welfare of the children at this crucial moment in their development.

[144] Mrs Clarke prayed in aid Article 8 ECHR - respect for family life. In particular, the right of the parents to be with their children and the right of the children to be with their parents. But according to Mrs Clarke, the children are not going to live with their parents come what may. There is another aspect of the right to family life, the rights of the children to live securely in the family home which has been made for them and in which they have thrived. It is the interests of the children which are paramount, not the rights of the parents or would be adoptive parents. There is a risk of that being forgotten.

[145] For those reasons I propose to dispense with the consent of the parents and grant the prayer of the petition.

Conclusion on adoption

[146] For those reasons I propose to make an adoption order.

[147] For the avoidance of doubt I should add that the matters discussed above are relevant also to the second stage of the two stage test if, contrary to my opinion, it is open to me to find that section 31(4) applies and the requirement for parental consent can be dispensed with. Had that been the appropriate route, I would still have made the order.

Contact

[148] I have considered carefully the question of contact. I accept that there should be contact with the parents if possible. That should in the first instance be letterbox contact. If that is successful, it may lead on to direct contact. The petitioners have indicated their willingness to facilitate letterbox contact. I see no reason not to take them at their word. I was impressed by them both in their evidence and in the manner in which they have sat in court through what must have been a very difficult time. I do not propose to make any formal order for contact. That would be too rigid. I have in mind that both parents have until recently shown signs of instability. I hope that that will not recur, but it would be taking too great a risk if I were to order contact without being sure how matters would develop.

[149] As to contact with P, again I hope that this will take place, whether directly or indirectly, and the petitioners have indicated their willingness. But it will require careful handling. I do not have any evidence about P's present state or as to the wishes of his foster carers. In those circumstances I am not minded to lay down in stone arrangement which may prove unworkable or undesirable.

Disposal

[150] For the above reasons I shall make the adoption orders in respect of L and B. I shall also make an order in terms of section 36 of the 2007 Act that the children shall cease to be subject to the supervision requirements which commenced on 5 February 2009. The order will make no provision for contact.