EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Brailsford Lord Wheatley	[2013] P1022/11   OPINION OF THE COURT   delivered by LORD BRAILSFORD   in the Reclaiming Motion   by   Midlothian Council   Petitioners & Respondents;   against   C M P   First Respondent and Reclaimer:   _______________

 

Petitioners & Respondents: Wise, QC, Hodge; Anderson Strathern LLP

First Respondent & Reclaimer: J Scott, QC, MH Clark; Thorley Stephenson

 

6 August 2013

 

[1] The first respondent and reclaimer is the mother of S, a female child born on 15 May 2010. For convenience she will be referred to as "C" in this opinion. The father of the child did not enter appearance in the process before the sheriff and was not represented at the proof before the Lord Ordinary or at the reclaiming motion. The respondents before this court are the local authority within whose area S was born. For convenience they will be referred to as "the local authority" in this opinion. By petition lodged in the sheriff court on 26 April 2011 the local authority sought a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act") in respect of the child S. The local authority further sought an order vesting in them certain parental responsibilities and rights in terms of sections 1 and 2 of the Children (Scotland) Act 1995 ("the 1995 Act"). The court was asked to extinguish the parental responsibilities and rights held by the child's natural parents, except those in relation to contact, and to dispense with their consent to the making of an adoption order. Authority was sought for the child to be adopted and for termination of a supervision requirement. Neither of the natural parents consented to the making of an adoption order. The sheriff on 29 August 2011 remitted the cause to the Court of Session. After sundry procedure a proof on these issues was heard following which, by interlocutor dated 13 April 2012, the Lord Ordinary granted the orders sought by the local authority. It is against this interlocutor that the present reclaiming motion is taken.

[2] The background facts were substantially agreed between the parties and contained in a joint minute which was before the Lord Ordinary at the proof. For present purposes these facts may be summarised as follows. The child S is the second child of C and her former partner. The couple had one older child, a male, born in June 2004. C, who was born in 1985, had a history of dependence on illegal drugs since she was 16 years of age, principally heroin. She had also used benzodiazepines and crack cocaine. Her drug abuse led her into criminal activity and she has an offending history dating back to 2000. She has convictions for dishonesty and a conviction under section 12(1) of the Children and Young Persons (Scotland) Act 1937 in relation to her eldest child. In 2006 she received a Drug Testing and Treatment Order ("DTTO") which she breached and was sentenced to a period of detention. She has been the subject of significant social work involvement. In 2007 she was made the subject of an Anti-Social Behaviour Order preventing her from entering specific shops and streets in the area where she resided. That order was breached on two occasions. In 2009 she was referred to the Substance Misuse Service. She is currently a registered methadone user. C and the father of her two children were in a long-term relationship, albeit with periods of separation. This relationship terminated in October 2010, but C and her former partner remained on friendly terms. C was made subject to a further 12 month DTTO on 7 April 2010 following a conviction for theft and shoplifting. Her compliance with that DTTO was less than perfect but it was completed on 6 April 2011. She has since then cooperated with a voluntary after care programme. As already noted she remained a regular heroin user until November 2010. She remains on a methadone programme and, at the time of the reclaiming motion, was on a prescription of 75 millilitres per day.

[3] The father of C's two children was born in 1971. He has a history of drug dependence since he was a teenager. He has 13 previous convictions. In 2007 he was convicted of an assault and imprisoned for 8 months. He has long-term mental health issues. He has been violent towards C. He has breached a DTTO. He is currently on a methadone prescription.

[4] As aforesaid C's first child, a male, was born in 2005. That child was removed from her and her then partner's care under a Child Protection Order. The child was placed in the care of C's mother and has remained there to the present date. C has maintained contact with that child and since August 2011 has had overnight contact with him on two nights each week.

[5] On learning of C's pregnancy with the child who is the subject of the present application the local authority in February 2010 held a child protection case conference. The unanimous decision of that conference was to place the child's name at birth on the Child Protection Register. During March-April 2010 an assessment was made to ascertain whether the child could be placed in the care of C. The local authority concluded that it would not be in the best interests of the child to take that step. At a "core group" meeting on 14 April 2010 it was noted that the child's father's sister and her husband were being assessed as prospective foster carers for the child. A Child Protection Order was granted shortly after the birth of the child S. The child was discharged from hospital four days after birth and placed in the care of its father's sister and her husband. Those persons reside in a different geographical location to the reclaimer. On 8 July 2010 a Children's Hearing made a supervision requirement in respect of the child that she reside with the said persons with a condition of contact in favour of C for an hour twice each week. The child S has resided with the said foster parents to the present time. She is happy and well cared for.

[6] In August 2010 S was referred to a Children's Hearing in terms of section 52(2)(c) of the 1995 Act, the terms of referral being that the child was likely to suffer unnecessarily or be impaired seriously in her health and development due to lack of parental care. The child was registered for permanence on 11 January 2011 at a meeting of the Permanence and Adoption Panel. The local authority do not consider that rehabilitation of the child to C is a viable option. In an assessment of 18 March 2011 it was recommended that the foster parents should be assessed as adopters of the child S. A review Children's Hearing was heard by the Children's Panel on 28 March 2011. Neither C nor the child's father were in attendance at that meeting. The child's allocated social worker was also absent from the meeting as a result of illness. The panel continued the supervision requirement with the condition of residence with the foster parents. Contact with the parents of S was reduced from twice per week to once every two months. The Children's Hearing supported the application of a permanence order. C appealed that decision in relation to the reduction of contact. The reporter conceded the appeal. By interlocutor of 3 June 2011 the sheriff granted the appeal and remitted the case back to the Children's Hearing. By the time of determination of the appeal the local authority had lodged the current permanence order petition with Edinburgh Sheriff Court. Following the granting of the appeal the Children's Hearing decided it was unable to reconsider contact due to the initiation of the permanence petition. The petition first called before the sheriff in July 2011. A debate was held in the application in August 2011 following which the sheriff as aforesaid remitted the cause to the Court of Session. By interlocutor of the Court of Session dated 6 October 2011 the child has had contact with her parents and grandparents on one weekend each month.

[7] At the proof the Lord Ordinary heard evidence from the social workers involved in the supervision of the child's care and of those who dealt with C. He also heard the evidence of Dr Catherine Edward, a clinical psychologist, who had been instructed by both parties to prepare a report into the matter. Dr Edward's report and its findings were not the subject of challenge at proof. Following the proof the Lord Ordinary pronounced the orders already referred to.

[8] Senior counsel for C provided the court with a detailed note of argument which was supplemented by oral submission. She submitted that both domestic law and the proportionality inferred by article 8 of ECHR require that there is stricter scrutiny of decisions that have a more severe impact on the relationship between a parent and a child. There was thus a hierarchy of an increasingly severe requirement for scrutiny for decisions relating to allocation of parental responsibilities and parental rights; suspension of parental responsibilities to allow for compulsory measures of supervision; permanent removal of the right of residence with a parent on the basis that residence with the parent would be seriously detrimental to the welfare of the child and grant of authority to adopt on the basis that welfare requires the consent of the parent to be dispensed with. It was submitted that it was consistent with this hierarchy of domestic law and article 8 ECHR that removal of a child from the care of parents in the course of compulsory measures of supervision should normally be regarded as a temporary measure. Measures implementing care should generally be consistent with the aim of reuniting the child and parent and that there was a positive duty on the public authority to facilitate reunification as soon as is reasonably feasible. In addition it was said that a parent must be involved in the decision making process to a degree sufficient to protect his or her parental responsibilities and parental rights.

[9] In support of these propositions counsel submitted that when making a welfare decision in private law cases, the court is required to do what the welfare of the child requires (Osborne v Matthan (No 2) 1998 SC 682). The court's attention was drawn to the "welfare test" found in section 11(7)(a) of the 1995 Act. The court is required to act in the "best interest" of the child. By contrast, when considering whether public law intervention in the life of a child is necessary, the court does not apply the welfare test. The court considers the threshold criteria in section 52(2) of the 1995 Act. A "lack of parental care" will only justify compulsory measures of supervision if it would cause the child to suffer unnecessarily or seriously impair the child's health or development. This is not a "best interest" test. It is not enough to show that children might be better off or have a better chance if left in the care of foster parents. The test which the court must apply is whether lack of parental care is likely to cause serious harm (H v Harkness 1998 SC 287).

[10] Permanence orders under the 2007 Act remove the right of a parent to have a child living with him or her and vest this in the local authority. They are designed for children who cannot safely return home. The test to be applied in determining whether or not such an order is granted is found in section 84(5)(c) of the 2007 Act. When considering dispensing with C's consent to adoption and granting authority to adopt, tests set forth in section 82(2)(c) and (d) are "serial" not alternative.

[11] It was submitted that this approach to the hierarchy of decisions in domestic law was reinforced by article 8 ECHR considerations. It was said that the required steps in a case that falls within the scope of article 8 are to consider: (i) Whether there has been an interference with the right to respect for family life. The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life. This is not terminated by accommodation of the child as a result of the supervision requirement. Deprivation of contact and deprivation of parental rights amounts to interference under article 8. (ii) Whether the measures complained of were "in accordance with the law". (iii) Whether there was a legitimate aim. (iv) Whether the measures taken were "necessary in a democratic society". Of these four steps, head (iii) was not challenged in the present case.

[12] Beyond these steps which required to be considered it was submitted that when a child is accommodated away from a parent, responsible authorities were under a positive duty to take measures to facilitate family reunification as soon as reasonably feasible. Authorities must review the situation to ascertain whether there has been any improvement. Increasing the restrictions on parental contact calls for strict scrutiny (KA v Finland [2003] 1 FLR 696, paragraphs 138-9, 143 and 146). When considering adoption it was to be taken to be in the child's best interests that ties with the family are maintained except in cases where the family has proved particularly unfit. Further, it is in the child's best interests to develop in a safe and secure environment. Family ties may only be severed in "very exceptional circumstances". "Everything must be done to preserve personal relations" and, where appropriate, to "rebuild" the family. It is not enough to show that the child could be placed in a more beneficial environment for his or her upbringing (YC v United Kingdom [2012] 2 FLR 332, paragraphs 134, 136-138).

[13] Considerations relating to authority to adopt must not only be relevant, they must also be sufficient. In the present case where contact is exercised in a manner that is not open to criticism and a parent has an improving lifestyle such that she is likely to provide a satisfactory lifestyle for the child, the normal obligations of reuniting the parent and child will prevail and there is not sufficient reason for a permanent deprivation of parental rights and contact (Johansen v Norway (1997) 223 EHRR 33, paragraphs 78-84). A focus on the bond with existing carers, to the exclusion of family reunion, can only be justified in "very exceptional circumstances" (Gorgulu v Germany [2004] 1 FLR 894, paragraphs 44-50).

[14] In the present case, having regard to the foregoing outline of the law, it was submitted that the decision making process was not fair and did not afford respect for article 8 rights. It was said that the Children's Hearing were "holding the line" on article 8 and maintaining the prospect of rebuilding the family against opposition from the local authority. The local authority's approach was not article 8 compliant. The impediment to C's capacity as a parent was her involvement in drugs. However, in August 2010, some three months after the birth of S, C had accepted that she had to reform her lifestyle. She had separated from her partner, ceased to use heroin and progressed to a college course, undertaken voluntary work and had obtained her own tenancy. She exercised contact with S as allowed to her. It was submitted that these improvements should have been noted on review and attempts to reunification intensified. The relevant social worker had reported C's progress to the local authority in a note but had then been absent from work due to ill health. The local authority maintained their position, they did not consider themselves under any obligation to reassess matters as article 8 ECHR required and presented what was characterised as a "seriously misleading" report to the children's hearing in the absence of C. C did not receive intimation of the hearing or of the report and had had no opportunity to explain how matters really stood. As a result the hearing did not appreciate the opportunity that they had given to C for rehabilitation had been seized and acted upon. Thereafter, proceeding on an apparent failure of C to do her part for rehabilitation, there was a reversal of direction by the Children's Panel and on the request of the local authority, contact was cut to a lower level. The subsequent action of the local authority in making an application for a permanence order compounded the breach of article 8 it was said as the effect of this application was that the Children's Hearing did not have the power to rectify the situation. Putting the issue into court resulted in the impetus towards rehabilitation failing.

[15] It was submitted that in these circumstances there were a catalogue of violations of article 8 ECHR. The local authority was said to have failed to have regard to their positive duties to review and take measures to promote reunification. They were said to be responsible for misleading the Children's Hearing into an abandonment of an article 8 compliant approach. There was said to be a failure to involve C in the decision making process at a crucial point. In these circumstances the decision making process was not fair and did not afford due respect to C's rights as a whole.

[16] The Lord Ordinary was said to have erred in his approach to this issue. He was said to have misapprehended the level of reduction of contact. He had not appreciated that the Children's Panel hearing held in the absence of C was the pivot between the hearing supporting rehabilitation and the hearing giving up on rehabilitation. He had not appreciated that this hearing issued a report that was an essential part of the permanence process and was relied upon as such by the local authority. He had not weighed the material considerations in terms of article 8 ECHR.

[17] Beyond this, the Lord Ordinary was said to have applied the wrong tests for a permanence order and for dispensing with parental agreement to adoption. In neither case was the issue one simply of the best interests of the child. The Lord Ordinary had focussed on a straightforward welfare test rather than considering whether residence with C could be seriously detrimental to the child so as to justify depriving her of the right of residence. The high test for dispensing with C's consent to adoption was not met. Moreover, it was submitted that the Lord Ordinary failed to give sufficient reasons on a proportionality test having regard to the consideration that C was said to have successfully reformed her life in order to resume care of the child; that she had a close bond with the children; that she was no longer "particularly unfit"; that there were less interventionist approaches available; that the order interfered with the relationship the child had with her brother and maternal grandmother; that if the child is adopted she will find herself in a difficult situation with other relatives in the context of a kinship adoption and that this was a family that had been accustomed to co-operate to meet the needs of children.

[18] Counsel lastly argued, in the alternative, that in the event that she was incorrect and that the Lord Ordinary was entitled to grant a permanence order, he failed to specify how C was to exercise her parental responsibilities and parental rights in relation to contact.

[19] Senior counsel for the local authority also provided the court with a written note of argument which was supplemented by oral submission. It was the submission of senior counsel for the local authority that the Lord Ordinary had correctly applied the relevant statutory provisions and had taken all relevant matters into account in reaching his decision. In considering whether to make a permanence order the court required to regard the need to safeguard and support the welfare of the child throughout childhood as the paramount consideration (W v Aberdeenshire Council [2012] CSIH 37 (also reported in 2012 FLR 91)). The question of whether "serious detriment" was likely to occur could not be determined solely by C's capacity to care for the child but had to have regard to all other relevant circumstances which would arise from the child's residence with C (under reference to section 84(4) of the 2007 Act). There could be no exhaustive list of such circumstances and each case required to be considered on its own facts. There was ample evidence before the Lord Ordinary as to the effect on the child of a removal from her primary carers with whom she had resided since four days after her birth. In addition to the oral evidence from social workers the Lord Ordinary had the benefit of the evidence of Dr Catherine Edward who had been jointly instructed by the parties and whose evidence had not been challenged by C at proof. Both the social workers and Dr Edward considered there were uncertainties in attempting rehabilitation and that the child had formed her primary attachment to her foster carers. As a result of this the professional opinion expressed by Dr Edward was that it would not be in the best interests of the child to be removed from these primary carers. This assessment was unchallenged by C. The conditions which must be met before an adoption order could be made were set forth in section 31 of the 2007 Act. These provisions had been considered in S v L (supra). The Lord Ordinary's interpretation of the statutory provisions was in accordance with the approach of Lord Reed in S v L (supra) at paragraphs 27-37. The Lord Ordinary further acknowledged the importance for the child, particularly in a kinship adoption, of maintaining ties with her family but submitted that these could not assume a greater importance than the child's welfare (R and H v United Kingdom [2004] 54 EHRR 2 at 73). The Lord Ordinary required to balance the article 8 rights of C and other family members with the best interests of the child. In any such balancing of interests the interests of the child must prevail (Yousef v The Netherlands (2003) 36 EHRR 20 at 73). Having regard to all these matters the Lord Ordinary interpreted the statutory tests appropriately. His decision should be upheld.

[20] There was no dispute as to the applicable statutory provisions to be considered in determination of this matter. Sections 80, 81 and 82 of the 2007 Act provide that a court may make a permanence order in respect of a child and provide for the vesting of certain parental responsibilities and rights in the local authority and other persons, generally those with whom the child will reside, and for the extinguishing of existing parental responsibilities and rights. "Parental responsibilities" and "parental rights" have the meanings given by sections 1(3) and 2(4) of the 1995 Act. Section 84 of the 2007 Act sets out the conditions and considerations applicable to the making of a permanence order, and section 83 sets out the conditions which must be met before the order may include authority for the child to be adopted. The issues of law which arise in this case concern parts of sections 83 and 84 which, along with section 80 so far as relevant are as follows:

"80 - (1) The appropriate court may, on the application of a local authority, make a permanence order in respect of a child.

 

(2) A permanence order is an order consisting of -

 

(a) the mandatory provision,

(b) such of the ancillary provisions as the court thinks fit, and

(c) if the conditions in section 83 are met, provision granting authority for the child to be adopted.

 

(3) In making a permanence order in respect of a child, the appropriate court must secure that each parental responsibility and parental right in respect of a child vests in a person...

 

83 - (1) The conditions referred to in section 80(2)(c) are -

 

...

(c) that, in the case of each parent or guardian of the child, the court is satisfied -

 

(i) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of such an order in relation to the child, or

(ii) that the parents or guardians consent to the making of such an order should be dispensed with on one of the grounds mentioned in subsection (2), (d) that the court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority.

(2) Those grounds are -

 

...

(c) that subsection (3) or (4) applies...

 

(3) 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,

 

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

 

84 - ...

 

(3) The court may not make a permanence order in respect of the child unless it considers that it would be better for the child that the order be made than that it should not be made.

 

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

 

(5) Before making a permanence order, the court must -

 

...

(b) have regard to -

 

...

(ii) the child's religious persuasion, racial origin and cultural and linguistic background, and

(iii) the likely effect on the child of the making of the order

 

(c) be satisfied that -

 

(i) there is no person who has the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with the person or otherwise to regulate the child's residence, or

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

 

Also of relevance are the general considerations which apply to the exercise of powers relating to adoption, set out, so far as the court is concerned, in sections 14(1) - (4) of the 2007 Act as follows:

"14 - (1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

 

(2) The court or adoption agency must have regard to all the circumstances of the case.

 

(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

 

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

 

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

...

 

(c) The child's religious persuasion, racial origin and cultural and linguistic background, and

 

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

 

[21] It is clear that the court may not make a permanence order unless it considers that it would be better for the child that the order should be made than that it should not be made. We consider that the Lord Ordinary carefully considered this issue and had regard to all the evidence before him in reaching his decision. In particular, contrary to the submission made by senior counsel for the reclaimer, we do not consider that the Lord Ordinary failed to place sufficient weight on the need to consider reunification of the child with C. On the contrary we consider that the Lord Ordinary paid careful attention to all the evidence in relation to that issue. He had regard to the agreed factual background which included that C had a serious and longstanding history of illegal drug abuse; that she remained on a methadone prescription and that whilst she had admittedly made significant progress towards resolving that drug problem the stage had not been reached, and might never be reached, when it could be said that the problem was completely behind her. In these circumstances it is clear that there was material before the Lord Ordinary to entitle him to come to the view that there was a material risk of the child suffering serious detriment to its health or wellbeing if the current arrangements for her care were disrupted. It seems plain to us in this regard that the Lord Ordinary placed considerable reliance upon the evidence of Dr Edward. We observe here that Dr Edward was an independent chartered clinical psychologist with very considerable experience of working with children, adolescents, and adults in a wide variety of psychological presentations. As noted, in late November 2011 Dr Edward was jointly instructed by agents on behalf of C and the local authority to provide an assessment in relation to the care situation of the child S. A report was prepared and was before both the Lord Ordinary and this court. Moreover Dr Edward's evidence when she spoke to that report at proof was agreed and unchallenged. We regard the foregoing factors as of the highest significance. Given the undoubtedly relevant qualifications of Dr Edward, the fact that she had prepared a report on the instructions of both parties and that her subsequent evidence was unchallenged it is, in our view, hardly surprising that the Lord Ordinary placed considerable reliance upon that testimony. We consider that he was justified in this approach and, further, that it would have been both difficult and inappropriate for him to have adopted other than this stance.

[22] In our consideration of Dr Edward's testimony and report and its treatment by the Lord Ordinary we note her full consideration of the family situation and circumstances of both C and S and other members of the family (Lord Ordinary's opinion paragraphs 122-135). We note that Dr Edward addressed the specific question - "Would it be seriously detrimental to the child to reside with [C]?" (Lord Ordinary paragraph 135). We further note that Dr Edward was plainly aware, and had regard, to the recent positive progress made by C and in that knowledge was aware that she required to consider the value to S of altering her current situation and what she might gain as a result of such an alteration (Lord Ordinary at paragraph 136). It is against that background that the Lord Ordinary records Dr Edward's view as to the arrangement which would be in the best interests of the child. The matter is recorded by the Lord Ordinary at paragraph [138] in the following way:

"...In her report Dr Edward reaffirms and explains her opinion that it is in the child's best interests that she remain in her current placement. There would be no significant benefit, but considerable cost to the child in removing her from her current home and attachments and transferring her to other carers. The most appropriate order would be that which would secure the child's permanent placement within the home of [the kinship foster parents] and provide the maximum amount of security for the child within that placement. This could most appropriately be achieved through formal adoption. This would formalise the parenting role already fulfilled by [the kinship foster parents], 'and allow them the opportunity to make decisions for the child as is appropriate to their role in her life (rather than the power to make these decisions lying with other authority)'. Given the difficulties within the family, this would provide a clear understanding as to where the child's permanent placement will be. As the child becomes older and more aware of her context, adoption would allow her to feel secure within her family as a permanent member of it. "Such security would be to the benefit of her emotional development"."

 

[23] It is in our view plain that is after consideration of this body of evidence and expression of opinion by Dr Edward that the Lord Ordinary reached his conclusion. In adopting this approach we consider that the Lord Ordinary was appropriately applying the applicable statutory provisions. He recognised the progress that had been made by C but also appreciated that there was no evidence that such improvement was necessarily permanent. He appreciated the security that S had experienced within the family setting of her foster parents. He appreciated the risks that might be involved if that security were upset by attempts at rehabilitation with her natural mother.

[24] It is worth quoting the Lord Ordinary in relation to the totality of the evidence of Dr Edward. At paragraph 151 of his opinion the Lord Ordinary puts it as follows:

"At present the best thing for the child is a secure placement with carers who have claimed her as part of their family. She could still maintain links with her birth family. Whether that happens will depend upon how her family responds. The priority is a secure long-term placement. Other factors do not outweigh the importance of that benefit. It was put to Dr Edward that the current situation is stable. However, she does not perceive it as a stable and comfortable arrangement. It is fraught with emotion. A resolution is needed now."

 

In analysing this evidence the Lord Ordinary recognised its force and realised that there was a pressing need to remove doubts and uncertainties as to the child's future. In our opinion the Lord Ordinary had before him compelling evidence to entitle him to reach the view that "....serious detriment would arise from failing to confirm the current settled and secure situation, which has prevailed since the child's birth, and which can safely see her through to adulthood." Having regard to the evidence as a whole the Lord Ordinary in our view was well entitled to reach the view expressed in these terms:

"In my opinion it cannot be concluded that there would be no serious risks in rehabilitating the child to the respondents care. If it was tried, but failed, the serious damage to the child is obvious."

 

We should add that we entirely agree with the views of the Lord Ordinary, as expressed at para 182 as to the effect of the misleading report prepared by Angela Garcia for the Children's Panel hearing on 28 March 2011. Greater care should clearly have been taken that the hearing was not misinformed as it was. Nevertheless, like the Lord Ordinary we are satisfied that this cannot be argued to undermine materially the other factors clearly pointing to the orders brought by the local authority being appropriate.

[25] From the foregoing it seems to us that the Lord Ordinary has analysed and balanced all competing interests under reference to the relevant law on the matter and against the overriding consideration and requirement to have regard to the paramount importance of the child's welfare and best interests.

[26] We further consider that the present case has striking similarities and resemblances to the situation faced by this court and considered in W v Aberdeenshire Council (supra). We consider that the approach taken by the court in that case to the identical issue of balancing competing interests, in a case like the present, is one which we agree with.

[27] For all the foregoing reasons we do not consider that the Lord Ordinary erred. We shall uphold the Lord Ordinary's interlocutor and refuse this reclaiming motion.