Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 73
P686/13	OPINION OF LADY WISE in the application by WEST LOTHIAN COUNCIL Petitioner; In relation to the child CE For a Permanence Order with authority to adopt ________________

Petitioner: Loudon, advocate; Morton Fraser

Respondent: Stirling, advocate; TC Young

17 April 2014

Introduction

[1] This application concerns a young boy, CE, born seven weeks prematurely on 30 May 2011. His parents, NM and DE, were living together as a couple when their son was born. He was their first and only child. Both parents hold parental responsibilities and rights in respect of CE. In circumstances that were not substantially in dispute and which are narrated at paragraphs [6-11] below, CE was removed from his parents' care at the age of seven weeks. Since then he has resided with foster carers. He has lived with his current foster carer for over two years. The local authority now seeks a Permanence Order with authority to adopt so that CE can be placed with prospective adopters with a view to an adoption application being made. DE has consented to the orders sought in the petition and was not represented at proof. All of the orders sought were opposed by NM the first respondent.

Undisputed Evidence

[2] Counsel entered into a detailed and extremely helpful joint minute in this case (No 19 of process) agreeing many of the important facts and documentary material. The following is a narration of most of those agreed facts insofar as relevant to the chronology and to my decision.

[3] NM and DE met in the summer of 2010 and moved into a tenancy together shortly thereafter. NM was brought up primarily by her maternal grandmother. Her own mother and her mother's current partner present risks to CE due to her mother's volatile relationship with her partner who has addiction issues. NM has accepted for some time that both her mother and her mother's partner present risks to CE and that her mother should not be present during contact visits between NM and CE.

[4] Prior to CE's birth, police were called to attend a domestic dispute between NM and DE. DE had assaulted NM by slapping her and pushing her. Following the child's birth NM called the police on one occasion to attend her home as a result of an altercation involving DE and NM's father. NM was at times frightened of DE.

[5] From CE's birth on 30 May until 19 July 2011 there was no social work involvement with him. NM reported no difficulties with regard to DE's behaviour towards CE. However, NM witnessed DE shouting and swearing at CE when the baby was fractious. She also saw DE "throw" CE on a bed from a height on two occasions. She was worried about how DE was behaving towards CE. She has stated that if DE did not get his "own way, he'd take it out on me, CE or his mum".

[6] NM knew that DE smoked cannabis. On 18 July 2011 she agreed that DE could take CE to his mother's home to spend the night there. DE left with CE in a two seater vehicle from West Lothian to Edinburgh with DE and his mother occupying the seats. DE considered that the child could be transported sitting on his lap. This was unsafe.

[7] CE was returned to NM's care at around 00.45 on 19 July 2011. DE was heavily under the influence of drugs when he returned the baby. He was incapable of caring for the child properly. It appeared that CE had not been fed.

[8] Also on 19 July 2011 William Daly, Public Health Staff Nurse, noticed bruising on CE during a routine visit and arranged for the child to be examined by his general practitioner. The child was then referred by his general practitioner to Dr Helen Hammond, consultant paediatrician, St John's Hospital, Livingston and admitted to that hospital, with NM and DE's agreement, later that day.

[9] On 20 July 2011, Dr Hammond and a Dr Mark Howseman carried out a joint medical examination of CE. Number 6/8 of process is a true and accurate report of that examination. The examination revealed that CE had fourteen separate visible injuries to his body, considered to be non-accidental, including full thickness bruising to his left foot, extensive bruising to his right buttock and linear red marks consistent with finger grip marks to his right lower leg. NM and DE agreed to CE remaining in hospital overnight under observation.

[10] On 21 July 2011 CE underwent a full skeletal x-ray scan at the Royal Hospital for Sick Children, Edinburgh. The scan revealed a fracture to the left side of the child's skull above the ear and possible bone damage to the knees. A subsequent x-ray showed a healing fracture to CE's right knee. Neither NM nor DE has ever given an explanation as to how the injuries were sustained by CE. NM has stated that they were not caused by her or in her presence.

[11] On 22 July 2011 a child protection order was granted at Livingston Sheriff Court and CE was placed with foster carers. A condition that contact with NM and DE should be supervised and as directed by the local Social Work Department was attached. CE has remained accommodated by the petitioner since that date.

[12] A parenting assessment of NM was carried out by staff at Livingston Family Centre and commenced in August 2011. A risk assessment by Barnardos commenced at around the same time. No 6/27 of process is the report of that risk assessment, carried out by Ali Whiteley, a senior practitioner with Barnardos Family Support Service ("the Barnardos Assessment"). The Barnardos Assessment contains a true and accurate account of the assessment undertaken, the protective factors and risk factors relating to NM and the conclusions to be drawn from the assessment.

[13] On 20 September 2011 CE was moved to his current foster carer and has settled well with her.

[14] Grounds of referral in relation to CE's need for compulsory measures of care were established at Livingston Sheriff court without the need for oral evidence on 16 December 2011. On 6 January 2012 a supervision requirement was made in respect of CE which continues in force. Any contact between CE and either parent was (and is) to be supervised. Also in January 2012 NM commenced a relationship with another man, RJ.

[15] Between February and April 2012, following the Barnardos Assessment, a further parenting assessment was carried out by staff at Livingston Family Centre.

On 10 May 2012, a Children's Hearing varied the supervision requirement to provide that NM should have supervised contact with CE a minimum of twice per week and that there should be no contact between CE and his father DE. The reasons for the decision included that NM and CE "clearly have a very strong loving bond". Some contact took place in NM's home thereafter.

[16] In the early hours of 2 June 2012, police attended at NM's home. NM reported that she and RJ, her partner, had been "bickering" and that she had asked him to keep his voice down to avoid disturbing an elderly neighbour. She said that RJ had continued to shout and had smashed a beer bottle across the bedroom floor. RJ then appeared from the kitchen holding a small knife which he proceeded to push into his stomach. NM ran to a neighbour and an ambulance was called.

[17] On 31 August 2012 police attended at NM's home and were told by her that she had been getting texts from RJ, who had said that he was going to come to her home which she did not want. The police contacted RJ and warned him accordingly. NM told police officers that she had spent the day with RJ the previous Saturday and he was "fine". She said they were with a group of her friends within her address drinking alcohol.

[18] In September 2012 contact between NM and CE was moved from NM's home to Strathbrock Partnership Centre. Also that month, the supervision requirement was varied to provide that contact should be reduced to a minimum of once per month supervised by the Social Work Department. Supervised contact continues at this level.

[19] No 6/40 of process is a decision of the West Lothian Adoption and Permanency Panel ("APP") dated 9 October 2012 recommending that a permanence order with authority to adopt would best serve CE's needs. On 15 October 2012 that decision was accepted by the petitioner's Social Work Department decision maker.

[20] On 5 December 2012 a Children's Hearing was convened to ask the Hearing to provide advice to the court about the proposed permanency application was continued due to incorrect papers having been sent to NM and DE. This necessitated a return to the APP to start the process again.

[21] No 6/44 is a decision of the West Lothian APP dated 22 January 2013 making of new the recommendation made in no 6/40 of process. On 8 February 2013 the recommendation was accepted by the petitioner's Social Work Department decision maker.

[22] No 6/45 is a decision of the West Lothian APP dated 24 April 2013 to the effect that as there had been no significant changes to CE's situation there was no reason why the earlier recommendation should change and so recommended the route of a permanence order with authority to adopt which was again accepted by the petitioner's Social Work Department decision maker.

[23] On 18 June 2013 the Children's Hearing provided advice to the court supportive of the petitioner's proposed application.

[24] On 6 August 2013 another man, CF, telephoned the police from NM's home but he hung up immediately and then called back stating that he did not require the police to attend. However the police did attend and they interviewed the couple. CF advised the officers that he had begun a relationship with NM around three months earlier. NM described CF to police officers as a "brilliant partner". The police were told that the couple were engaged. CF told police officers that he suffered from schizophrenia.

[25] On 8 August 2013 police officers attended at NM's home and were told that an argument had developed between her and CF, whom she described as her "ex-partner", during which CF had bit her forearm and punched her on the back, causing minor injuries. CF was subsequently traced, arrested and appeared in court in relation to the incident.

Evidence led in the petitioner's case at proof

[26] Eight witnesses were called to give evidence by the petitioner and each had sworn an affidavit that was used as the primary basis for their evidence in chief.

Although not in the order led, it may be useful to deal with the witnesses' evidence about the events in CE's life as they unfolded.

[27] William Daly, a staff nurse with the health visiting team of NM's GP practice provided an affidavit no 6/5 of process and gave oral evidence. He is an experienced nurse having first qualified in 1989. He saw the child CE on 19 July 2011. NM requested that he visit the home rather than the family attending the health centre. No concerns about CE were raised in that phone call. When Mr Daly arrived both parents were present. As the baby was being undressed for his check his father DE said to Mr Daly "there's a mark on his foot". Both parents then said that the mark was similar to other marks that had appeared over the last week. Mr Daly was concerned immediately that the baby appeared to have a bruise. He considered it was not his place to ask about the cause of that. He told the parents that medical attention would require to be sought and he took CE, together with NM, to the general practitioner. Mr Daly had visited the parents the previous week, on 12 July 2011, when NM and DE had pointed out a portion of what seemed to be dry skin behind one of the baby's knees. He had no cause for concern about the baby until the 19^th. After the visit to the GP Mr Daly took CE and both parents to the hospital at St Johns. NM was upset throughout but DE appeared to be calmer.

[28] Dr Helen Hammond, a semi-retired consultant paediatrician swore an affidavit no 6/58 of process and gave oral evidence. Dr Hammond is 64 years old and is an extremely well qualified and experienced paediatrician who has reported on and given evidence about injuries in young children for many years. She and a colleague examined CE at St Johns Hospital on 20 July 2011. This was a joint paediatric examination typical of that carried out where there is a concern that serious child abuse findings may be discovered. The report of that joint medical examination forms no 6/8 of process. Dr Hammond confirmed the terms of the report where she and her colleague identified and recorded multiple sites of bruising on CE. These included bruises on the right elbow, on both buttocks, the outer aspect and behind the left knee, above the left knee, on the left foot, the upper thigh, the right kneecap and the right lower leg. Some of the bruises were described as more significant than others by Dr Hammond. For example the bruising to the left foot extended from the front side of the foot right through to the under surface and there was a complex of three intense red flash purple linear bruises to the front outer aspect of the right lower leg. The buttock bruising would have required significant force, Dr Hammond explaining that a 7cm x 5cm bruise on a 7 week old baby was a large one and not easily caused. After the examination Dr Hammond instructed follow up x-rays and these confirmed the presence of healing fractures above and below the right knee and a skull fracture. A subsequent MRI scan of the brain showed a number of small cysts just below the surface of the brain in the left frontal lobe with evidence of haemorrhaging associated with the cysts. That haemorrhaging was not felt to be associated with CE's premature birth but was suggestive of subsequent injuries. The fracture to CE's skull was a simple straightline fracture just above the ear. Dr Hammond explained that it requires significant force to fracture a baby's skull and can be caused by the baby having been swung against something, pushed off a hard surface, or dropped from a height. While Dr Hammond confirmed that it is very difficult to age bruises in any circumstances, it was noteworthy that nearly all of the bruises on CE had purple/red/blue components and so looked recent. However, Dr Hammond had recorded that the parents of CE had given a history of seeing bruises earlier on the child. Dr Hammond was not cross-examined, there being no challenge to any of her medical findings or opinions.

[29] Rona McDonald, a social worker with the petitioner's Social Work Department spoke to and amplified the affidavit no 6/51 of process sworn by her. She was allocated the case as CE's social worker in late July 2011. Her role, in light of the serious medical findings, was to set up a care plan and to supervise contact between CE and NM following CE's reception into foster care. Ms McDonald recalled that when she first became involved both parents were denying involvement in CE's injuries. NM began blaming DE because he was the one who had sole care of the baby just before the injuries were discovered. There was a period of each parent blaming the other and NM vacillated between stating that she knew nothing of what had happened to blaming DE. Ms McDonald confirmed that when she observed NM at contact she saw a nervous mother who required a lot of assistance in handling and feeding the baby. She was, however, keen to have contact and was appropriate in many ways in her interaction with CE. The main concerns related to NM's lifestyle and relationships and her inability to grasp how her lifestyle could impact upon CE given that she had been unable to protect him so significantly. She seemed to become involved in relationships with men quite quickly and quite heavily. Ms McDonald went on sick leave from the beginning of March 2012 and her colleague Amanda Kinghorn dealt with the case in her absence until Marion Duffy took over the following month. Her recollection was that before the case was reallocated from her, it was becoming quite clear that the Social Work Department felt it likely that permanency would be sought for CE. The ongoing work by Barnardos and others assessing risk and NM's parenting skills highlighted particular concerns about her chaotic lifestyle. These were more significant matters than her parenting skills, which could be learned. Ms McDonald was referred to the Barnardos Assessment no 6/27 of process. She was familiar with its conclusions that there were significant concerns in relation to NM's ability to make confident decisions and the view that further support and assessment would be required before any decision could be taken that CE could be returned safely to her care. She confirmed that following that report an Outreach worker from Livingston Family Centre was organised so that NM could have contact with CE at her own home with a worker present simply to observe. That Outreach contact took place once a week for 3 hours each time over a 3 month period. NM had also been offered group work in relation to the developmental needs of children and other parenting issues but she did not take up that opportunity. She also failed to take up an offer of help with managing her finances which had been an ongoing problem. Ms McDonald had numerous conversations with NM about the risk DE posed to his son. While NM seemed to understand superficially what the risk was, it was noted that her views in relation to DE would change frequently and she would look for other reasons or explanations for what happened to CE. There was also a period when another man, SG, was mentioned as possibly being DE's father, but DNA testing was carried out which had confirmed DE's paternity. During that period NM had stated that if SG was CE's father she would want him involved with the child. The Social Work Department were concerned about that as SG was known to the Social Work Department as having a violent disposition. Overall, there were real concerns that NM was vulnerable and naïve and easily influenced. Significant input had been offered to her and Ms McDonald did not feel anything else could have been done to effect rehabilitation between mother and child during the time she was involved.

[30] Gail Chilton, a nursery officer at Livingston Family Centre spoke to her affidavit no 6/53 of process in her oral evidence. She had conducted a parenting assessment in relation to CE between August and November 2011. This followed the format of a getting it right for every child (GIRFEC) assessment following a referral from Rona McDonald. She was aware that there was a background of non-accidental injuries and was interested in gaining information about NM's parenting and lifestyle. Her work mainly consisted of observations in the Family Centre in looking particularly at child safety. Ms Chilton's report forms no 6/23 of process. It records that during her discussions with NM the baby's father DE was mentioned. It was clear that there was contact through phone calls and texts between DE and NM. Gail Chilton knew that NM had made inquiries about whether it would affect decisions in relation to the return of CE to her care if she recommenced her relationship with DE. She was also aware of issues that had arisen in relation to NM's relationships with other males, in particular RJ. NM shared with Gail Chilton her concerns about her own father and his wife and her involvement in their disputes. There were also discussions about financial difficulties. Gail Chilton observed that NM could be quite confident at times in caring for CE but was less able to deal with him when he became unsettled. On 14 February 2012 Gail Chilton attended a Child Protection Review Case conference. NM brought RJ to that meeting despite a previous agreement that she would attend alone. He was asked to go outside for a while and he did not return. Under cross-examination Ms Chilton confirmed that while her work involved a lot of observation she required to give various suggestions to NM about parenting matters. One example was in relation to the administration of Infacol, medicine suitable for young babies. Ms Chilton explained to NM that she required to read the instructions carefully in order to administer the medication correctly. NM appeared to take the information on board but then it became apparent that she clearly had not read the instructions as she failed to shake the bottle first. NM made little progress in relation to being able to anticipate the baby's needs. For example she would not always follow instructions given by CE's carer about when he required to be fed. Overall, Ms Chilton had a good working relationship with NM who attended the majority of the sessions organised. Her conclusion was that there was certainly further work to be done with NM and that Outreach sessions with CE attending NM's home would require to take place.

[31] MM ("Mrs M"), CE's present foster carer provided an affidavit no 6/56 of process and gave oral evidence. Mrs M is a particularly experienced mother and foster carer. She had three children of her own and went on to adopt three children who had been her foster children. She is currently looking after three children, including CE, on a fostering basis. Since she received CE in about November 2011 she has been involved to varying degrees in contact between him and NM. When he was about a year old a difficult period arose when he would become very upset on seeing his mother and could not be left. There was no suggestion that NM had acted inappropriately but it was clear that something had to be done to resolve matters. Mrs M agreed to supervise contact at Strathbrock Family Centre. Contact progressed a bit better thereafter. Some concerns were expressed by Mrs M about whether NM had any real understanding about CE's needs as he developed. She seemed unable to understand that he was now reaching an age where he wanted to play in the soft play area with other children rather than her. She had no doubt that NM loves CE but she was the one who seemed to gain benefit from contact with him rather than the child gaining anything. Mrs M explained that there were issues of concern in relation to NM's own mother. She described NM's mother as very vocal, someone who swears a lot and who had stopped Mrs M's own daughter in the street and made allegations that frightened her daughter. On one occasion Mrs M was trying to remove CE from her car when NM and her mother arrived. NM's mother took her phone out and was trying to take a photograph of the baby saying "that's my grandwean". The baby was getting quite stressed as he clearly did not know who she was. Mrs M describes CE as a lovely boy who she would adopt herself if she was younger. She felt it was important that a transition from her care to that of any adoptive parents be managed carefully. She did not think it would assist C to continue to see NM during that process. She mentioned that he calls NM "Gran" and does not seem to have a real understanding of who she is. That said, Mrs M would be prepared to continue to supervise any contact between CE and NM should that be ordered. Under cross-examination in relation to how realistic it was for NM to behave as a mother during restricted contact, Mrs M commented that if she was in NM's position she would be talking to CE, changing him, cuddling him and doing everything possible to interact. She felt that NM had ceased making efforts of that sort after the period during which CE was upset when he saw her and refused to go to her. NM had also been unable to understand, when CE was aged 11/2, that he could not hold a pencil and was therefore uninterested when she was trying to get him to draw a picture for her to take away. When it was suggested to her that CE might remain with her for up to another 5 years, Mrs M was clear that for CE's benefit the period before transition would require to be much shorter than that. However, should the Social Work Department decide that a further assessment should be undertaken with a view to rehabilitation of CE with NM, Mrs M would be content to continue to care for him meantime.

[32] Gerri Bald, a Families Included worker, spoke to and amplified her affidavit no 6/54 of process. She worked as a nursery officer at Livingston Family Centre prior to April 2013. She has qualifications in childcare. She conducted the parenting assessment in relation to NM from 16 February to 9 April 2012. The report of that assessment is produced as no 6/29 of process and a chronology of the contact she had with NM and CE is contained at page 3 of that report. Again, Ms Bald used the GIRFEC framework. She had recorded very positive aspects of NM's relationship with CE in her report which included that CE would respond to his mother and look for her when she left the room. However, there were some concerns about NM being frequently on the phone to her relatives during these pre-arranged sessions and that she would put her mobile phone to the baby's ear during a running commentary with them about what was happening. It was felt that she should have committed to a one-to-one session with CE rather than involving others. On one occasion DE had been on the telephone during a session after NM had put CE down for a sleep and had gone outside to have a cigarette. Again, Ms Bald described NM as giving mixed messages in relation to DE and whether she wanted him to be part of CE's life. She recalled also that NM would become involved in disputes between various family members, including her mother and stepfather. Under cross-examination Ms Bald agreed that there had been some progress during the period that she had been involved in terms of NM gaining a better understanding of what was appropriate in terms of care of CE. By the end of her involvement in April or May 2012 she did feel that NM still required prompting with certain aspects of the child's care.

[33] Marion Duffy, the social worker primarily involved in CE's case from about April 2012 gave detailed evidence. She had sworn an affidavit no 6/50 of process and confirmed its terms as accurate. Mrs Duffy has been a qualified social worker since 1995 and works in a team of which Amanda Kinghorn is the manager. She continued to be CE's social worker at the time of proof. She had prepared the report for the court (no 6/3 of process) supporting the petitioner's application for a permanence order. Shortly after Mrs Duffy became involved with CE, a decision was taken that there were grounds to proceed towards permanence for the child. From the outset of her involvement the main concerns had been NM's failure to protect CE from a father who appeared to have injured him very seriously when he was a tiny baby. NM's relationship with DE seemed to be ongoing at times and she was often untruthful with the Social Work Department about it. The first report prepared by Mrs Duffy was a social background report (SBR) dated 25 September 2012. After familiarising herself with the case, Mrs Duffy had contacted Ali Whiteley who had prepared the Barnardos Assessment. During the first few months of her involvement Mrs Duffy considered that the Social Work Department should not rule out rehabilitation between NM and CE. Her team manager Amanda Kinghorn was somewhat opposed to that as she was convinced that no attempts towards rehabilitation should be made. Mrs Duffy spoke to Ms Kinghorn about considering asking Barnardos for a further assessment given what appeared to be changes to NM's situation. However, the further assessment did not go ahead, primarily because NM had become involved in a relationship with RJ. Mrs Duffy received a report from the police about the incident in which it is agreed between parties that RJ had become threatening and tried to stab himself. It was clear to Mrs Duffy that NM had not intended sharing information about that incident with the Social Work Department. Shortly after that, information was secured about RJ's background of violence, drugs and alcohol. It was clear to the Social Work Department that he was a risk so far as any child was concerned. Mrs Duffy explained to NM that there could be no question of rehabilitation while she was involved in a relationship with RJ. Between June and September 2012 there were concerns about whether RJ was still involved in NM's life. In September 2012 CE became ill. He was taken to hospital. NM attended at the hospital and arranged for DE to attend also. This was one of the incidents that gave the Social Work Department concern that NM appeared to still want to involve DE in CE's life and failed to see the risk he posed.

[34] The thrust of Mrs Duffy's evidence was that the reason for rehabilitation between NM and CE having ultimately been ruled out by the Social Work Department had far more to do with NM's inability to make good relationship choices than with her lack of parenting skills. There had been progress with her parenting skills and this was something that could have been worked upon further. However, in relation to both DE and RJ, despite Social Work Department concerns, NM would often ignore advice that they could not be involved. She would bring RJ to the beginning of a contact session and allow him to hold CE. NM was also aware of social work concerns in relation to her own mother but would allow her also to appear at contact and try to take a photo of the baby. This was despite NM acknowledging that it was not acceptable for her own mother to be involved in CE's life. The problems in relation to NM's mother and NM's mother's partner related to alcohol and the partner's heroin use.

[35] In September 2012 Marion Duffy was in possession of information from the police that NM was continuing to have some contact with RJ and separately she had information that NM had been seen out with DE. She decided to speak to NM about these matters. She found NM in a high state of anxiety, making threats about the Social Work Department and refusing to attend their offices. It was around this time that contact with CE was moved to the Strathbrock Partnership Centre as it was a multi-disciplinary venue in which contact could be better supervised. On 20 September 2012 Marion Duffy attended for contact with NM and CE and NM's mother turned up despite the time and venue of contact having changed. It was clear that NM had told her mother of the arrangements.

[36] In relation to the ultimate decision that there would be no further assessment by Barnardos, Mrs Duffy confirmed that a significant factor was that NM had told the Social Work Department that she would not agree that RJ should be ruled out from being part of any rehabilitation plan. It was the combination of her relationships with DE and RJ at material times in the decision-making process that had put an end to the prospect of CE being returned to her care.

[37] Mrs Duffy spoke to the issues in relation to contact that had been observed by Mrs M and others. So far as NM's relationships were concerned there had continued to be concerns, most recently with CF. In relation to the undisputed evidence about the police attending when NM was with CF, Mrs Duffy expressed the view that there was nothing wrong with NM having any man she wanted in her life unless she wanted the Social Work Department to consider rehabilitation. It was only in that context that criticisms could be made of the type of friendships and relationships she seemed to engage in. There continued to be issues during 2013 relevant to any suggestion of rehabilitation. For example on 23 September 2013 NM's aunt telephoned the Social Work Department and gave information that NM was not in her tenancy but was reunited with a boyfriend who had a job and children with him and had told the aunt that this was because she had a better chance of CE returning to her care in those circumstances. The following month, another aunt, HW, called the Social Work Department to indicate that she was concerned as NM had told her that CE would be returning to her care in December 2013. HW was concerned if that were the case as she had seen NM with DE and separately had observed RJ leaving NM's house. Mrs Duffy explained that she did not investigate these matters in any great detail but tried to discuss them with NM who refused to meet with her.

[38] Mrs Duffy was in no doubt that it would be seriously detrimental to CE's welfare were he to be returned to NM's care now. It would be best for him to be adopted. He had been in his natural mother's care for only about 4 weeks of his life as his first three weeks were spent in hospital given his premature birth. After his removal from NM's care at 7 weeks there had been protracted attempts to assist NM with developing the necessary skills that would enable her to protect the child. However, known facts illustrated that she had continued to become involved in risky relationships which had thwarted any attempts at rehabilitation. Mrs Duffy also felt strongly that NM's lack of honesty with the Social Work Department was a pivotal factor in the inability to progress rehabilitation attempts.

[39] So far as CE's health is concerned this had been monitored due to the concerns at the time of Dr Hammond's report about possible developmental delay. Fortunately, CE has started to catch up developmentally and recent reports indicate that he is meeting more milestones. However, it is still not entirely clear whether he could be affected in the long term by the consequences of the injuries found on the MRI scan. The process of finding prospective adopters has started, albeit in a tentative way. If the orders sought by the petitioner are granted there are two possible families who have expressed interest with whom links would be made. Mrs Duffy was confident that one of them would proceed to placement. The Social Work Department would then look to end the direct contact between NM and CE. It was anticipated that a farewell visit would take place and that indirect contact through letters and photographs would be recommended thereafter. When asked whether contact could continue between any permanence order being made and the making of an adoption order, Mrs Duffy expressed the view that there would be no benefit in that. She considered that NM would be anxious about it, CE would pick up on her anxiety and neither would gain anything from the contact. From what she had seen, she had the impression that no real relationship exists between CE and NM and that CE will not miss her at all if he is permanently placed and forms a new attachment with adoptive parents. He has a close attachment to his current foster carer, MM, but Mrs Duffy was confident that he will be able to form a new positive attachment or attachments over a period. She considered that there would be no detrimental impact on CE at all by the termination of contact and that the transition from his current carer to new carers would be better carried out after contact had ceased.

[40] Under cross-examination Mrs Duffy confirmed that in March 2013 DE asked to be assessed with a view to rehabilitation and the early stages of that process were carried out on legal advice. The assessment did not go very far however as DE was unable to say how he could ensure CE's safety and how he would care for him. DE's plan in this regard had not been properly thought through. Mrs Duffy agreed that the Barnardos Risk Assessment completed in about February 2012 (no 6/27 of process) recorded that, in terms of graded outcomes, NM had made significant improvements towards an outcome where only minimum or low intervention with parenting was required. Again, however, she reiterated that the real concerns were about NM continuing to form new violent relationships and her lack of honesty in relation to those. All of this increased the risks to CE were rehabilitation to be considered. In essence, the Social Work Department could have no confidence that NM had progressed in terms of protecting CE from risk from the time of July 2011 when, even after seeing this new baby being thrown on the bed by DE and other inappropriate behaviour, subsequently allowed CE to go alone with DE in circumstances in which the injuries appear to have been caused. NM had initially denied that she had suffered domestic violence at the hands of DE and then subsequently admitted that. There were also real issues about NM's "gatekeeping skills". She was unable to stand up to her own mother in relation to keeping her away from contact, thus it could not be presumed that she could protect the child against her mother's lifestyle. In relation to the conclusion of the Barnardos Assessment about NM's relationship with CE, Mrs Duffy agreed that all the information suggested there had been a bond between mother and child initially, but by the time she became involved she observed no real attachment between the two. As CE became older NM struggled in her interactions with him. While NM was always affectionate towards him, CE displayed no noticeable attachment towards her.

[41] When directed to Gerri Bald's conclusion in her report no 6/29 of process that NM and CE had a loving relationship and that NM was getting better at understanding what was appropriate in relation to play with CE, Mrs Duffy agreed that Ms Bald had made some positive findings and suggestions. However there remained real concerns about NM's inability to understand why DE should not be involved in the child's life at all and the level of risk was one that could not be managed other than by keeping CE accommodated elsewhere. Mrs Duffy accepted that there had been no further formal assessments with a view to rehabilitation after the end of April 2012. It was consistent with the plan for a move to permanence that contact should be reduced. That said, when the Children's Hearing decided that contact should take place a minimum of twice per week that was implemented by the Social Work Department. Mrs Duffy was taken through Social Work Department case notes in relation to CE in some detail. These are lodged as no 7/1 of process and cover a period 17 May 2012 to 22 August 2013. They relate to a number of matters including various contact sessions. In summary, a number of the notes indicate a mixed account in relation to the quality of contact. The circumstances of incidents during NM's involvement with RJ are also recorded in the notes. So far as the possibility of rehabilitation was concerned, Mrs Duffy accepted that when she had spoken to NM about ending the relationship with RJ it was in the context that there was always a chance that rehabilitation could be effected during the process moving towards permanence if a parent demonstrated change. Any real reduction in risk to a child would have to be taken into account. The current position, however, was that CE had now been in care for nearly all of his young life and permanent decisions required to be taken. By the time the Council's adoption permanency panel was making its decisions, Mrs Duffy was recommending that rehabilitation could not be pursued although she was not the ultimate decision-maker on that. After June 2012 there was still references in the notes to NM continuing to see RJ and not admitting to it. An issue had arisen in relation to NM going to her grandmother's house when RJ was there collecting clothes.

[42] It became apparent that Mrs Duffy's professional relationship with NM had deteriorated after Mrs Duffy tried to discuss with her the information received from the police that she had spent a gala day with RJ and that she had sent a taxi to collect DE and bring him to the hospital. NM's own father had told Mrs Duffy that he was angry with NM because of her ongoing contact with RJ. NM seemed unable to understand that if her priority was seeking to have her child returned to her care it was essential that she severed contact with both DE and RJ. It was suggested to Mrs Duffy that RJ's criminal convictions were not as serious as she had suggested. He appeared to have four breach of the peace convictions and two for police assault, the last one of which resulted in a sentence of 150 days imprisonment. Mrs Duffy commented that such a record was "pretty significant" in relation to risk from the social work perspective of protecting children. So far as DE was concerned the level of violence he appeared to have perpetrated on a very small baby meant that the Social Work Department could not have concluded that he could safely look after the child. Overall the risk to CE of being returned to his mother's care was unacceptably high due to her previous failure to protect him from the large number of injuries he had received at 7 weeks old and her subsequent continued contact with both DE and other violent men. The other issues in relation to the mixed reports in relation to contact and NM's relationships with her own family were lesser concerns. NM's own grandmother was not a concern to the Social Work Department and she had accompanied NM to most contact sessions. She was not, however, someone that could have been considered as a kinship carer.

[43] Mrs Duffy was pressed on what the Social Work Department would do if the current application was refused and the court indicated that rehabilitation with NM should be explored. Mrs Duffy appeared to find it difficult to answer such questions given the strength of her view that CE could not be protected in the care of NM. So far as other possible kinship carers were concerned, NM's own father was ruled out as a possibility as he was known to the Social Work Department due to ongoing domestic violence issues. NM's aunt, MS, and her partner had initially come forward but then withdrew indicating they had no intention of providing a permanent place for CE.

[44] Mrs Duffy agreed that the proposed placement of CE with an adoptive family would be a gradual move, although with a child as young as him they would want to effect the transition as quickly and smoothly as possible. It was thought appropriate that CE be adopted outside the West Lothian area to enhance security and anonymity. Mrs Duffy was clear that she saw many disadvantages in a proposal that CE remain in foster care. He might have numerous changes of carer in his life, his mother NM could call a children's hearing every 3 months to review the Social Work Department plans, he would have to attend all children's hearings and would remain a looked after child throughout his childhood. It would effectively involve a lifetime of unpredictability for him. Mrs Duffy did not consider that adoption would result in any disadvantage for CE. Given that he would be at risk in his mother's care the severing of links with his birth family could not be seen as a serious disadvantage.

[45] Evidence from Marie Hindmarsh was also elicited in the petitioner's case. Mrs Hindmarsh provided an affidavit no 6/57 of process to which she spoke. She is a service manager with the St Andrew's Children's Society, a voluntary adoption society which supports prospective adoptive parents and post-adoption placements. At one time the Society also supported birth parents through the process of adoption but that support is now provided by Scottish Adoption. Mrs Hindmarsh has worked in the area of fostering and adoption for about 30 years. She reviewed the papers in CE's case to consider and express a view on the likelihood that he could be placed for adoption. It was clear from the paperwork that given the medical history and the injuries sustained by him there were some unknown factors. The possible concern had been that he might not be as easy to adopt as a child with no possible ongoing health issues. However, having reviewed all of the relevant paperwork Mrs Hindmarsh's opinion was that she was confident that CE would be placed for adoption if the orders sought by the petitioner were granted. The recent report from a "Looked After Child" review in November 2013, no 6/60 of process, was put to the witness where it is narrated that CE is now a happy, contented and sociable boy who sleeps all night and there are no concerns about his development as he is catching up on all areas. Mrs Hindmarsh indicated that as the child's development had progressed so satisfactorily he was very likely to be placed.

[46] On the issue of ongoing contact between NM and CE following a permanence order with authority to adopt being made but prior to any adoption application, Mrs Hindmarsh expressed the view that in some circumstances there could be good reasons to maintain a relationship with the birth parent. For example if the child was older and had a long established relationship with the birth parent that such contact might continue not only during that period but also post any adoption order. In other situations, including circumstances of CE's case as described to her, Mrs Hindmarsh expressed the view that ongoing contact may undermine the child's trust in the adoptive parent. The main attachment relationship, currently with the foster carer is to be transferred to an adoptive carer and it was difficult to see how ongoing contact in that situation would be beneficial for the child. Mrs Hindmarsh could identify, however, positive benefits of indirect contact to assist a child such as CE in understanding that he has another family that he originated from. She considered that two-way indirect contact was best with communications passing from the birth family to the child's new family and vice-versa. Such contact annually or twice annually tended to be best. Prospective adopters are now given training in the benefits of indirect contact and there would be concerns about any prospective adopters who failed to understand the importance of that issue.

[47] Under cross-examination Mrs Hindmarsh confirmed that in situations where direct contact post-adoption was in place her society would expect the local authority to take on the support of the birth parents involved. All prospective adopters are asked whether they will consider ongoing contact but usually under reference to indirect contact. Most prospective adopters are wary of any suggestion of ongoing direct contact with the birth family. The St Andrew's Children's Society normally advises that indirect contact is the norm, but that there can be situations of direct contact. A general conversation about the issue ensues and views are expressed about what will and will not be considered. The particular circumstances in which prospective adopters struggle with the issue of ongoing direct contact is where the birth parent had or is thought to have had a part to play in the reasons behind the child being taken into care. However, many families found siblings easier to deal with in terms of ongoing direct contact and the Society had cases where that has happened. Again usually the local authority are involved. While ongoing direct contact post-adoption had increased over the last 30 years or so there remain few situations in which it is regularly in place.

Evidence led on behalf of the first respondent

[48] NM gave evidence in her own case. She is 23 years old and resides in West Lothian. She secured some Standard Grade qualifications at school and commenced a childcare course at college. She confirmed that she met DE through a friend in 2010 and started living together with him a week or two after they met. Her pregnancy with CE was planned, although she had been surprised when he was born prematurely and the home she shared with DE had not been quite ready to receive him. NM described the difficult start to CE's life with him being kept in the special care unit of the hospital where she spent 7 or 8 hours per day. He was released from hospital on 20 June 2011 and she had found it quite hard at first but described getting into a routine of getting up in the night to give him a bottle, learning how to prepare his bottles of milk and so on.

[49] NM noticed a change in DE when CE was about 4 weeks old, a week after he had been released from hospital. DE no longer wanted to change him or get up during the night to give him a bottle and started screaming at him when he was hungry. NM considered asking the Social Work Department for help but was worried that if she did the baby would be removed from her care. She said that there were several occasions when she had asked DE to leave but he refused to do so and the tenancy on the property where they lived was a joint one. NM had suffered some violence at the hands of DE prior to CE's birth. He had slapped her and pushed her around on an occasion which was reported to the police but no charges were ultimately taken against him. After CE was born there was an incident involving an argument between DE and NM's father where DE was shouting aggressively and started fighting with her father. NM said that she took the baby around a corner away from the situation. The police arrived but no action was taken.

[50] NM explained that on 18 July 2011 DE asked her if he could take CE to his mother's house in Edinburgh. NM duly handed CE over to DE who said he would return him the next morning at 11am. In fact the child was returned not long after midnight following DE having contacted NM to ask if she was still up. DE returned to the house with CE asleep in his car seat. NM said that DE was "bouncing off the walls". She could see from his bloodshot eyes that he had been smoking cannabis. NM does not smoke cannabis and drinks only occasionally because her mother's partner is an alcoholic. After DE had returned CE, NM cared for him during the night when he needed fed. She noticed nothing unusual about him. In the morning, however, he was sick and required to be stripped so that he could be changed. He seemed to be fractious and in some discomfort although NM saw no marks on him when she changed him. She and DE went to the centre in Livingston and she recalled that DE would not let go of the pram or leave CE's side. When she asked about that DE told her that he wanted to bond with the baby.

[51] When the couple returned home Mr Daly the nurse arrived at the house and NM undressed CE. She did see a small blue mark at that time and she thought she had queried whether it might be either a bruise or dye from the baby's jeans. She recalled that Mr Daly said the best thing would be to phone the GP to have CE examined. NM's position was that she had not seen any marks like that on CE previously. Following a visit to the GP the couple were taken to hospital and NM recalled being extremely upset. She agreed to all examinations as she was anxious to do whatever was necessary for CE's health and safety. DE was quiet and said nothing. NM's position was that prior to Dr Hammond's examination on CE no one had asked her any questions about whether she knew what had happened to CE. She was simply informed that the view was that CE had suffered non-accidental injuries. NM's response had been that she did not know how that had happened as CE was not in her care on 18 July. In evidence NM was very clear that her view was that DE was the only person responsible for CE's injuries. He had been charged with offences in relation to CE shortly after CE was taken into care. NM said that she questioned DE on at least 3 or 4 occasions about what had happened to CE and that she felt she needed answers from him. She always felt that she could look after the baby and thought she would have him returned to her care. She got on well with Gail Chilton and Gerri Bald and with Ali Whiteley. She found the various sessions and assessments helpful. She did not attend some groups and courses suggested. For example in relation to financial management she already had some assistance from an organisation called Open Door and so had a forum for advice about that. A baby massage course was offered but she felt she would not be able to do it properly. NM felt very comfortable when Gerri Bald came to her house for Outreach work so that she could look after CE in her own home. In relation to accepting phone calls from her family during these sessions, NM felt it was hard for her family because they were denied any contact with CE. She would take phone calls during sessions just to let them know how CE was. Sometimes members of her family would turn up although she did tell her mother that she was not allowed to come to the house when CE was there. Her mother did not always follow that instruction.

[52] NM was less able to work with Marion Duffy. She found it difficult that Mrs Duffy wanted to discuss NM's own family background which she felt had "absolutely nothing" to do with CE's future. So far as her relationship with RJ was concerned NM's position was that she had told Mrs Duffy about that relationship and knew that a background check might be carried out. She also told the Open Door charity that RJ might be moving into her home. She did not consider that RJ's background might have an effect on the possible return of CE to her care. She said that RJ had told her he had nothing to hide in relation to criminal charges. In relation to the incident where RJ had a knife, NM's position was that she did not tell the Social Work Department about that incident because she knew that the police would tell them anyway. When the Social Work Department found out, she offered to end the relationship with RJ. She did then end the relationship with RJ. She explained that the incident in her gran's house in June 2012 involved her having delivered a holdall of clothes for RJ to her mother to take to her gran's on the understanding that RJ would collect them. RJ would often visit that property to see NM's cousin.

[53] NM's main ambition had been to move first to unsupervised contact with CE. She was clear that she had terminated her relationship with RJ after the incident in June 2012 when the police were called although she did spend time with him at the Broxburn Gala Day. Also, RJ would text her from time to time and she would bump into him occasionally at her gran's house when RJ was visiting her cousin. Following the Broxburn Gala Day RJ did turn up uninvited at her home once or twice which resulted in arguments between her and her father.

[54] So far as the incident when CE was in hospital in September 2012 was concerned, NM explained that she had attended at the hospital because she wanted to be there as the child's mother. She had ascertained from Marion Duffy that DE had not been told that CE was in hospital and so she telephoned to inform him. She then accepted that she had gone in a taxi to collect DE and take him to the hospital. Her position was that DE was still CE's father and he had the right to know what was happening with his child. She confirmed that DE had in fact seen CE in the hospital. NM accepted also that she had continued to have feelings for DE after she ended the relationship on 23 July 2011. She sought advice from the social work department about getting back together with him and had been told that it was her choice albeit that they would advise against it. She had experienced mixed emotions about whether or not to reconcile with DE but had never done so. She had sought answers from DE about what had happened to the baby but none had been forthcoming.

[55] NM spoke of her own background. She first met her own natural father when she was 9 years old. She had effectively been brought up by her grandmother and had no proper attachment with her own natural mother. After she formed a relationship with her father she had regular contact with him and they are still in touch. When asked about SG who she felt might have been CE's father, NM explained that while they had been in a relationship it had ended some time before she met DE but that she and SG had met up and had sexual relations on a couple of occasions around the time of CE's conception when she and DE had fallen out.

[56] So far as CF, the man who suffers from schizophrenia and had been present on two occasions when the police had visited her home was concerned, NM's position was that CF had never been a partner as such. He had stayed in her home when he had nowhere else and was suicidal. She could not explain why the police had reported that they were a couple and thought that maybe CF had told them that without her knowing. She denied saying to the police that CF was a "brilliant partner". She agreed that there had been something of a violent incident between her and CF in August 2013 when CF had asked her one day who she was texting and she told him it had nothing to do with him. He bit her and ran out and smashed her phone off the ground outside. He punched her on the back and slapped her face so she phoned the police. In relation to the text that caused the incident NM said that she had been texting RJ that day because he had been asking how things were going between her and CF. However, she continued to deny that she had ever been in a relationship with CF. She confirmed that CF is being prosecuted in relation to the assault on her and a trial diet has been fixed.

[57] NM denied the truth of the allegations made by her aunts HW and MM to the social work department. So far as the breakdown of her relationship with Marion Duffy was concerned, she felt that Mrs Duffy had accepted allegations against her that were false. In relation to her own mother, while NM had accepted that her mother had made many mistakes in relation to partners she had been involved with, she refused to accept that her mother was any kind of risk to CE. Again she had mixed feelings about whether family members such as her mother should come into contact with CE. She felt she could not stop her mother turning up to see CE.

[58] NM's position on contact with CE was that this had progressed much better since it took place away from the Strathbrock Centre. She described playing in the ball pool with CE during contact, taking him down the slide and talking to him. When asked what she thought CE gained from contact NM said that it gave him time to see her and her grandmother and to go to soft play like any normal boy. She accepted that CE was showing signs of wanting to play with the other boys rather than with her but said that of course she wanted to spend most of her time during the limited contact periods with her child. She disagreed that CE calls her "gran". She thinks that when he uses that word he is asking where her grandmother is. Her view is that CE and her own grandmother get on very well and that they have a good relationship.

[59] NM feels that if she was given the opportunity to be reassessed as carer of her child she had some family members on whom she could rely for support including her grandmother and her uncle's wife, MS. She disputed that her aunt and uncle had said that they had no intention of caring for CE in the long term. They had told Mrs Duffy that they did not think there was any point pursuing the matter of them being kinship carers as they would probably be unsuccessful.

[60] As far as her current circumstances are concerned, NM explained that she keeps a clean and tidy house with two bedrooms. She has contact, including unsupervised contact with a number of relatives' children. She feels she has never had the opportunity to prove that she can look after CE and protect him. Her aim is to be reassessed in a rehabilitation plan so that she can prove that she can look after and protect her child. She lives on her own. She accepts that she would probably require some support with parenting initially. If CE could not be returned to her care she would prefer that he was with a long term foster carer with her having an opportunity to keep appraised of his progress at "Looked After Children Reviews". She explained that she is totally opposed to CE being adopted. She thought he should be with a family he has, not with one he does not yet know. She would find it hurtful to see her child in circumstances where she knew he was going to be adopted but confirmed that she has never missed any contact to date.

[61] Under cross-examination NM confirmed that she had moved to another town in West Lothian recently and lived on her own with no close family members nearby. She did not accept that she had been involved in five different relationships with men since 2010. She did not regard SG as someone she had had a proper relationship with, she accepted both DE and RJ had been such relationships, but she described CF as merely a friend that stayed in her house. She had also had a relationship with a man RJo. She was aware that DE was now in a new relationship with someone who was a heroin addict. She agreed that she had been frightened of RJ and that it had been an abusive relationship. After CE was born and there was a violent incident between DE and her father, NM had wanted to go to Women's Aid but was too afraid to do so in case DE found her or the social work department discovered what had happened and took the baby away. NM felt that she was now strong enough to be able to walk away from a violent relationship and contact Women's Aid for support. She accepted that she had seen CE with a bruise near his knee before 19 July 2011 but said that it had disappeared within a day or two. She thought this was the mark that Mr Daly had been talking about in his evidence. She accepted that despite DE's cannabis smoking, violent temper and behaviour towards CE she had let him go to his mother's explaining that she did not think he would seriously harm the baby. DE's explanation for returning CE early that night was that he and CE were to have been sleeping on a mattress at his mother's home. When Dr Hammond had told her about the extent of the injuries found on CE, NM said she did not know whether it was DE or his mother that was responsible and so she had not ended the relationship with DE for a couple of days.

[62] NM confirmed that if decisions did not go the way she wanted she would wish to continue to have whatever indirect contact she could with her son. She said that her feelings for CE would never change even if he was adopted. She would rather see him on a day to day basis but would of course take up whatever contact was available.

[63] RW, NM's maternal grandmother gave evidence in the first respondent's case. She is a 70 year old retired lady who confirmed that she had cared for NM since she was a few weeks old. They have always been close and RW is a support to her. She helps her out financially if she is short and provides emotional support. RW has also brought up two of her grandsons and has contact with various other grandchildren and also a great-grandson. She describes NM as being good with children. She felt that her granddaughter had never been given the chance to look after CE. If there was any opportunity for rehabilitation she would support her granddaughter. For example she would make sure that NM was up to look after the child because her granddaughter is someone who often sleeps in late. RW felt the contact sessions between NM and CE have progressed much better since they were moved to the soft play centre where they now take place. She usually leaves CE to interact with NM. She thought CE was good with her although she commented that she was not going so far as to say that he really knew her. She felt that NM would be heartbroken if CE was adopted and she hoped that she and NM would be able to have contact with him even if that happened.

Submissions

[64] Written submissions were tendered on behalf of both the petitioner and the first respondent. I have considered these and it is not necessary to repeat their content here. In essence, the petitioner's motion was that the prayer of the petition should be granted. The issues were whether a permanence order should be made, whether authority to adopt should be granted as part of any such permanence order and whether the issue of any contact should be regulated given that a permanence order would be extant only until any adoption order was made. The position of the first respondent was that no permanence order should be made, failing which that the order should not contain a provision for authority to adopt. Even if such an order was to be made there should be ongoing contact, otherwise the court would be pre-judging an application by NM to seek direct contact in future adoption proceedings. Reference was made to the relevant statutory provisions and to various authorities. There was no substantial dispute in relation to these and I will now outline the law regulating the decisions I require to make in this case.

Statutory provisions and relevant case law

[65] "Adoption and Children (Scotland) Act 2007

80. Permanence orders

(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 the child vests in a person.

118 Meaning of 'appropriate court'

(1) In this Act, 'appropriate court', as respects any application made by virtue of this Act, is to be construed as follows.

(2) If the application relates to a child who is in Scotland when the application is made, the appropriate court is -

(a) the Court of Session, or

(b) the sheriff court of the sheriffdom within which the child is.

Interpretation

(1)(b) In this Act, unless the context otherwise requires -.....

'parental responsibilities' and 'parental rights' have the meanings respectively given by sections 1(3) and 2(4) of the 1995 Act (analogous expressions being construed accordingly)

The meanings of the mandatory and ancillary provisions are set out in Sections 81 and 82 of the 2007 Act.

81. Permanence orders: mandatory provision

(1) The mandatory provision is a provision vesting in the local authority for the appropriate period -

(a) the responsibility mentioned in section 1(1)(b)(ii) of the 1995 Act (provisions of guidance appropriate to child's stage of development) in relation to the child, and

(b) the right mentioned in section 2(1)(a) of that Act (regulation of child's residence) in relation to the child.

(2) In subsection (1) 'the appropriate period' means -

(a) in the case of the responsibility referred to in subsection (1)(a), the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 18.

(b) in the case of the right referred to in subsection (1)(b), the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 16.

82. Permanence orders: ancillary provisions

(1) The ancillary provisions are provisions -

(a) vesting in the local authority for the appropriate period -

(i) such of the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (d) of the 1995 Act, and

(ii) such of the parental rights mentioned in section 2(1)(b) and (d) of that Act,

in relation to the child as the court considers appropriate,

(b) vesting in a person other than the local authority for the appropriate period -

(i) such of the parental responsibilities mentioned in section 1(1) of that Act, and

(ii) such of the parental rights mentioned in section 2(1)(b) to (d) of that Act,

in relation to the child as the court considers appropriate,

(c) extinguishing any parental responsibilities which, immediately before the making of the order, vested in a parent or guardian of the child, and which -

(i) by virtue of section 81(1)(a) or paragraph (a)(i), vest in the local authority, or

(ii) by virtue of paragraph (b)(i), vest in a person other than the authority,

(d) extinguishing any parental rights in relation to the child which, immediately before the making of the order, vested in a parent or guardian of the child, and which -

(i) by virtue of paragraph (a)(ii), vest in the local authority, or

(ii) by virtue of paragraph (b)(ii), vest in a person other than the authority,

(e) specifying such arrangements for contact between the child and any other person as the court considers appropriate and to be in the best interests of the child, and

(f) determining any question which has arisen in connection with -

(i) any parental responsibilities or parental rights in relation to the child, or

(ii) any other aspect of the welfare of the child.

(2) In subsection (1), 'the appropriate period' means -

(a) in the case of the responsibility mentioned in section 1(1)(b)(ii) of the 1995 Act, the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 18.

(b) in any other case, the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 16.

Section 83 sets out the conditions which must be satisfied before authority may be granted for the child to be adopted.

83. Order granting authority for adoption: conditions

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

(a) that the local authority has, in the application for the permanence order, requested that the order include provision granting authority for the child to be adopted,

(b) that the court is satisfied that the child has been, or is likely to be, placed for adoption,

(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 parent's or guardian's 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 -

(a) that the parent or guardian is dead,

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

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

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

(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, and

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

(4) This subsection applies if -

(a) the parent or guardian has, by virtue of the making of a permanence order which does not include provision granting authority for the child to be adopted, no parental responsibilities or parental rights in relation to the child, and

(b) it is unlikely that such responsibilities will be imposed on, or such rights given to, the parent or guardian.

(5) In subsections (1)(c) and (2) 'parent' in relation to the child in respect of whom the permanence order is to be made, means -

(a) a parent who has any parental responsibilities or parental rights in relation to the child, or

(b) a parent who, by virtue of a permanence order which does not include provision granting authority for the child to be adopted, has no such responsibilities or rights.

........

84. Conditions and considerations applicable to making of order

(1) Except where subsection (2) applies, a permanence order may not be made in respect of a child who is aged 12 or over unless the child consents.

(2) This subsection applies where the court is satisfied that the child is incapable of consenting to the order.

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

(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 -

(a) after taking account of the child's age and maturity, so far as is reasonably practicable -

(i) give the child the opportunity to indicate whether the child wishes to express any views, and

(ii) if the child does so wish, give the child the opportunity to express them,

(b) have regard to -

(i) any such views the child may express,

(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, and

(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.

(6) A child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of subsection (5)(a).

14. Considerations applying to the exercise of powers

(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,

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

(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.

(5) Where an adoption agency is placing a child for adoption it must have regard, so far as is reasonably practicable, to the views of the parents, guardians and other relatives of the child.

(6) In carrying out the duties imposed on it by subsections (2) to (4) an adoption agency must, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of the child or whether there is some better practical alternative for the child.

(7) If an adoption agency concludes that there is an alternative such as is mentioned in subsection (6), it must not make arrangements for the adoption of the child.

(8) Without prejudice to the generality of subsection (4)(b), a child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of that subsection.

89. Revocation of supervision requirement

(1) Subsection (2) applies where -

(a) the child in respect of whom a permanence order is to be made is subject to a supervision requirement, and

(b) the appropriate court is satisfied that, were it to make a permanence order in respect of the child, compulsory measures of supervision in respect of the child would no longer be necessary.

(2) The court must make an order providing that, on the making of the permanence order, the supervision requirement ceases to have effect".

[66] These statutory provisions have been considered in a number of authoritative decisions where the provisions of sections 81, 82 and 83 in particular have been discussed. In TW v Aberdeenshire Council 2013 SC 108 an Extra Division of the Inner House considered the correct approach the first instance decision-maker should take in deciding whether to grant a permanence order. The court should first of all address the factors that arise under section 84(5)(c) of the 2007 Act. Section 84(5)(c)(ii) applies, so that the court must be satisfied that residence with the parent in question is, or is likely to be, seriously detrimental to the welfare of the child. The court must also bear in mind the requirement of subsection (4) to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration. The court should then consider the application of the no order principle in subsection (3) again keeping subsection (4) in mind - paras.12-13 of TW. The court also expressed the following view in relation to section 83(3)(c) so far as applications for authority to adopt are concerned:

"In our opinion sec 83(3)(c) does not require that ....(the decision-maker) should be able to point some flaw in the character of the parent or some persistent harmful behavioural characteristic of the parent that is likely to endure throughout the child's childhood, or be able to say that, when the child begins to show signs of maturity in mid-primary school years or teenage years, the position will not have changed, by which time the child's life might be blighted irretrievably. What is required of ....(the decision-maker) is a determination, at the time the application is considered, whether the inability of the parents to discharge their parental responsibilities and exercise their rights satisfactorily is likely to continue in the foreseeable future".

[67] As the test for dispensation of the consent of a parent to an order granting authority for adoption in a permanence order is the same as that for such dispensation in an adoption order itself, the leading authority of S v L 2013 SC 20 is of interest. In that case, the UK Supreme Court put beyond any doubt that the provisions for dispensing with parents' consent to adoption are compatible with the European Convention on Human Rights ("ECHR"). In cases where the sole ground relied on for dispensation without consent is that the welfare of the child requires consent to be dispensed with (section 83(2)(d) in permanence order cases) the provision, properly applied, should be compatible with article 8 ECHR as decisions taken under it have the legitimate aim of the protection of the welfare of children. Section 83(2)(d), like section 31(3)(d), is of relatively limited scope as it applies as the sole basis for dispensation with consent only in cases where the parent's inability to discharge parental responsibilities or exercise parental rights satisfactorily with the likelihood that he or she will continue to be unable to do so has not been established.

[68] In S v City of Edinburgh Council 2013 FamLR 2 the correct approach to applications for a permanence order with authority to adopt was again considered by the Inner House. It was there held that a first instance decision-maker is entitled to rely on the same body of evidence for the purposes of both section 84(5) and section 83(3)(b) and (c). A finding would first have to be made that a child's residence with the parent in question was or was likely to be seriously detrimental to the welfare of the child in terms of section 84(5)(c)(ii) of the 2007 Act. The court must then go on to consider whether consent to the making of the order granting authority to adopt should be dispensed with on one of the specified grounds. The case of JDM and FDM for adoption of L & B 2013 SCLR 393 was also referred to by counsel for the first respondent. It did not provide any particular assistance to me in the decisions required in this case. The Court of Appeal in England has, in a recent discussion of orders in the adoption context, suggested that it is important for the decision-maker to analyse the advantages and disadvantages of the various orders that might realistically be under consideration in such a case before a fully reasoned recommendation for adoption can be provided - re B-S (Children) [2013] 3 FCR 481. It is noteworthy, however, that the Scottish legislation imposes the principal obligation to consider alternatives to adoption on the Adoption Agency rather than the court - 2007 Act, section 14(6). That makes sense, because the Agency (the Petitioner in this case) shouldn't recommend adoption (or permanence with authority to adopt) unless other reasonable alternatives have been considered and rejected. There may be arguments in a case such as the present that an alternative was available and was not properly pursued and the court must address that, but the issue must be properly considered before the stage of court proceedings. In any event, as I will explain, I consider that in this particular case there was and is sufficient material to address the issue of the alternative options to adoption for CE.

[69] So far as contact is concerned, conditions of direct contact in permanence orders with authority to adopt have been made in the Sheriff Court - see Orkney Islands Council v H 2012 GWD 06-110; DCC v G 2012 GWD 12-228. It is well understood that, in this context as with any parental rights order, before any such order can be made it has to be in the interests of the child for such contact to take place - East Lothian Council, Petitioners 2012 Fam LR 7, at para 49. However, in my view, in a situation where there has been on-going direct contact and the parental right of contact is not being extinguished by a permanence order, there may be reasons for that contact to continue pending an adoption order being made even if the evidence falls short of illustrating a clear current benefit to the particular child. Sometimes broader welfare considerations, together with the requirement to intervene in family relationships only to the extent necessary to safeguard the child's interests, will tip the balance in favour of it continuing meantime. I address this further in the discussion of contact below. Where a permanence order with authority to adopt is made, particularly where contact is not ongoing and direct, there can be problems with the intimation of adoption proceedings on birth parents who may retain parental responsibilities or parental rights, such as the right to contact. Decisions in cases such as East Lothian Council, Petitioners 2012 Fam LR 7 and Dumfries & Galloway Council v BM and CR (re Child L) (unreported), Sheriff K Ross (12 August 2013) have not resolved this issue. Counsel for the petitioner confirmed that she would be happy for any orders made in this case to include one ordering the local authority to intimate any subsequent adoption petition to the first respondent. The position might be different where a parent's right of contact was being extinguished in a permanence order but the petitioners in this case do not seek that. It seems to me that there is considerable benefit in the court ordering a local authority to intimate a subsequent adoption petition where a permanence order with authority to adopt is being granted but without extinguishing a parent's responsibility and right of contact. The requirement to intimate clarifies who is responsible for making sure that someone with an interest is made aware of the future proceedings. It ensures procedural fairness for all concerned.

Discussion

1. Credibility and Reliability of witnesses

[70] There was no real controversy about the credibility and reliability of many of the witnesses. I have no hesitation in accepting as credible and reliable the evidence given by William Daly, Dr Helen Hammond, Rona McDonald, Gail Chilton, Mrs M, Gerri Bald and Marie Hindmarsh. I have taken into account the affidavit of Amanda Kinghorn and accept her evidence while recognising that it was not subjected to cross examination and is, therefore, untested. Marie Hindmarsh expressed views about post adoption direct contact that were of interest but which were expressed in general terms as she has had no direct involvement with CE and had never met his mother. That does not detract in any way from her credibility and reliability but it led to my being cautious about how to approach the evidence that she gave about whether on-going direct contact was appropriate when considering the evidence in this particular case. Similarly, Mrs M expressed views on future contact that were undoubtedly sincere and well-meaning but her role has been of direct carer to CE. She is not involved in the broader issues of making recommendations or decisions for his future and gave evidence as a witness to fact. Again, while respecting her views, I have not accepted them on that particular issue. That leaves Marion Duffy, the first respondent and her grandmother. So far as RW, NM's maternal grandmother is concerned, her evidence was quite limited. She is, understandably, supportive of NM's desire to have CE returned to her care, but she seemed to be realistic about the prospect of that occurring. I am confident that she was doing her best to tell the truth, though her evidence did not address the central issues in this case and I have not found it necessary to rely on it.

[71] Marion Duffy was a key witness, given her role as social worker during the material times at which recommendations were made and decisions taken about progressing a permanency plan for CE. It was suggested on behalf of the first respondent that her evidence should be approached with caution and that the reliability of her evidence should be questioned. It was said that she was defensive at times in cross -examination and that her evidence on how and when the final decision was made to proceed to permanency was confusing. Counsel contended also that Mrs Duffy appeared willing to rely on unsubstantiated remarks and that she exaggerated the period during which rehabilitation was contemplated. In my view, however, such criticisms tend to ignore the unchallenged evidence of Marion Duffy that when she first took over CE's case in the spring of 2012, she was the one in the department who considered that rehabilitation of mother and child should not be ruled out and raised that with her manager Amanda Kinghorn. It was clear to me from her evidence that Marion Duffy had found this a frustrating case to deal with. She adopted a more open minded approach than her colleagues on the issue of rehabilitation, only to discover that NM could not grasp that moving from a relationship with DE to a similarly risky one with RJ was bound to negate the possibility of CE returning to her care. Mrs Duffy did present as defensive at certain points during cross examination. However, that defensiveness tended to surface when counsel for the first respondent asked repeatedly about the decision not to undertake further assessment work after April 2012 with a view to rehabilitation. Mrs Duffy explained several times that it was NM's inability to grasp the seriousness of the risk to children posed by her violent partners that led to rehabilitation being ruled out. I formed the impression that she was irritated at Counsel's insistence in an issue that she had already clarified more than once. Her understandable frustration does not detract from her reliability. Marion Duffy presented as a thoughtful and fair minded individual who would have been willing to support NM but for her tendency to lack openness in her dealings with the social work department and her persistence in inappropriate and even dangerous relationships. When it became apparent that those factors resulted in an unacceptable risk for CE in terms of being in NM's care, the relationship between her and NM broke down and NM became unwilling to discuss matters with her. I found Marion Duffy to be open and honest about the poor working relationship she has had for some time with NM and the reasons for it. This is the also the context for the criticism that Mrs Duffy relied on unsubstantiated reports. By the time two aunts of NM were telephoning the social work department with those reports, NM was already refusing to engage properly with Marion Duffy. So far as the issue of the decisions taking about permanence are concerned, I accept that sometimes Mrs Duffy appeared to vacillate between confirming that she and her department decided not to attempt rehabilitation because of the level of risk and pointing out that her role was only to make recommendations with the APP and the Children's Hearing being the decision makers. However, in the context of the questions directed at her this was understandable. She required to justify the stance she and her department had taken and she was able to do so but when pressed about the stage of final decision making reminded counsel that she was not in fact the ultimate decision maker. Overall, I found Marion Duffy to be a credible and reliable witness and I have attached substantial weight to her evidence. She worked with the first respondent for a significant period and impressed as having considerable insight into the challenges the case presented.

[72] Counsel for the first respondent invited me to find that NM was a credible and reliable witness. Many aspects of her evidence had not been directly challenged in cross examination and she had been "painfully credible" in relation to certain matters including her acceptance that she would find contact with CE difficult if it took place against a background of a permanence order with authority to adopt being granted. I do accept that the first respondent was doing her best to tell the truth as she saw it. However, I formed the impression that she had convinced herself of certain matters, such as when she ended, finally, the relationship with RJ and the nature of her relationship with CF, when the surrounding circumstances pointed in another direction. For example, on her account the police must have recorded the nature of her relationship with CF incorrectly on two separate occasions (see paras [24] and [25] above). The circumstances in which she came into contact with RJ after their relationship formally ended also supported Marion Duffy's contention that she was not being open and straightforward with the social work department about that. It was clearly a traumatic experience for NM to give evidence in court knowing that the outcome would determine whether she would have any future role in her son's life at all. In many ways she conducted herself in a dignified and appropriate manner. However, I am unable to regard her as a completely reliable historian for the reasons given and I conclude that, albeit not deliberately, her account about certain aspects of her relationships with DE, RJ and CF was at best incomplete.

2. Should a permanence order be made?

[73] This is a case in which CE is far too young for his views to be expressed and taken into account. The test in section 84(5)(c)(ii) provides that I must be satisfied that CE's residence with his mother NM is, or is likely to be, seriously detrimental to his welfare before I can make such an order. Much of the evidence relevant to this test is undisputed and I will not repeat it in detail. The starting point is NM's failure to protect CE within weeks of his birth. She knew that the baby's father DE was of a violent disposition. She had witnessed him behaving completely inappropriately towards CE as narrated in paragraph [5] above. She knew that he smoked cannabis and allowed him to take her seven week old baby without her, to his mother's home in Edinburgh. The injuries discovered by Dr Hammond and her colleague on 20 July 2011 were probably not all caused during the trip to Edinburgh on 18 July. For example, the fracture to CE's right knee was seen to be healing when the x-ray was taken on 21 July. There was also some evidence of a mark or marks having been noticed on the baby prior to 19 July as reported to Mr Daly by NM and CE. The non-accidental injuries CE sustained during the four weeks that he was in the care of his parents were extremely serious and have never been explained. This young child was at grave risk when seen by Dr Hammond and his welfare has been secured only by the timely intervention of the relevant authorities. It was not suggested on behalf of the first respondent that it would have been appropriate to leave CE in her care immediately following the events of 18 and 19 July 2011.

[74] The evidence of the petitioner's witnesses was to the effect that, following her failure to protect CE when he was a young baby, NM was unable to grasp the seriousness of the risk posed by the men she was or became involved with thereafter. It is significant that she never volunteered any information to the authorities about the problems she encountered with DE, RJ and CF. The incidents of violence and the risk any of these men would pose to a child in NM's care only came to light when information was passed by the police or other third parties to the social work department. There were several occasions on which NM exhibited an inability to understand the risk these relationships posed. First there was her initial ambivalence towards ending the relationship with DE notwithstanding her stated position that he had seriously injured her baby. Further, her continued relationship with RJ at material times in the decision making process, especially in the period April - June 2012 resulted in an adverse outcome for her. So far as CF is concerned, NM was adamant that this man had not been a partner as such. However, in addition to the reservations I have already stated about the reliability of her account, it seems to me that the important issue is not whether or not there was any sexual relationship between the two. There was clearly some emotional involvement while CF was in her home that resulted in a violent incident not dissimilar to that known to the social work department in relation to RJ. All of the relevant witnesses led in the petitioner's case were clear that the real concern in relation to risk to CE were he to be returned to NM's care centred on these relationship issues rather than an inability to learn the practical care arrangements in relation to her child.

[75] The focus of the first respondent's case was that having shown commitment to, and improvement in, parenting skills during the assessments that were undertaken, she should have been given the opportunity to have unsupervised contact with her son with a view to him being returned to her care. However, the chronology of events supports the evidence given by Mrs Duffy that the real barrier to further assessment with a view to possible rehabilitation in the middle of 2012 was NM's relationship with RJ. There was some attempt on behalf of the first respondent to minimise the seriousness of RJ's criminal convictions as discovered by the social work department. In my view, the social work department were correct to conclude that a record involving four breach of the peace convictions and two for police assault, the last one of which resulted in a sentence of 150 days imprisonment, was really quite significant from the perspective of protecting children. It was discovered against a background of NM having already cohabited with a partner who had seriously harmed her child. RJ's criminal record, in conjunction with the undisputed evidence of the violent incident on 2 June 2012 (as narrated at paragraph [16]) were a sufficient basis for the conclusion that a further assessment with a view to rehabilitation was inappropriate at a time that NM remained involved with him. It is important in this context that NM told Mrs Duffy that she expected RJ to be involved in any rehabilitation plans.

[76] The significance of the later chronology involving the reports to the social work department by two of NM's aunts and the incidents involving CF, is twofold. First I do find it established that there has been a pattern of NM withholding information from the social work department that she knew would be relevant to their decision making in relation to CE. Secondly, it appears that NM has been unable to make progress with avoiding men who would pose a risk to any child who might be living with her.

[77] For all these reasons, I accept the clear view expressed by Marion Duffy that it would be seriously detrimental to CE's welfare were he to be returned to NM's care now. His life has not been static during the two and half years that he has been looked after by the local authority. He has made significant progress in terms of meeting his developmental milestones, despite initial concerns about that. He has been cared for to an extremely high standard by Mrs M with whom he has a loving and secure attachment. A return to live with NM, who cared for him for only a four week period at the very beginning of his life would be to expose him to an unacceptable risk. On the evidence outlined above, I can have no confidence that NM would be able to put aside other distracting elements, including relationships, in order to nurture CE. In any event, the evidence suggested overwhelmingly that there is no significant attachment between NM and CE. Of course some of that is an inevitable result of CE having had relatively little contact with her since September 2012 when supervised contact was reduced to once per month. It has to be acknowledged that earlier in 2012 a strong loving bond had been noted between NM and CE at a time when the Children's Hearing had decided there should be contact at the level of a minimum of twice per week (see paragraph 15). From the perspective of the first respondent, the weakening of the relationship is attributable to decisions being taken to reduce contact to which she was opposed. However, I must consider the need to safeguard and promote CE's welfare throughout his childhood as the paramount consideration. The evidence supports a conclusion that CE's welfare can best be promoted by the making of a permanence order that will give him the opportunity to be looked after in a safe environment for the rest of his childhood. If the order is not made, the current status quo will prevail, leaving CE in legal limbo. Had the evidence illustrated that there was, even now, a real prospect that NM could have CE living with her safely and that his welfare would be securely promoted by that, I would not grant the order. However, events since he was taken into care in July 2011 all support the conclusion that it would be to CE's serious detriment to be placed in NM's care. It was not disputed that, with some additional support, she would be able to cater for his practical needs to a satisfactory level. However, the risk of him being exposed to volatile and potentially violent situations in her life continues. Any changes NM has made recently to her lifestyle are, regrettably, "too little too late" for CE. It is better for him that an order be made now that secures his future than that the current uncertainty continues.

3. Should authority to adopt CE be granted?

[78] Having decided that the evidence supports the making of a permanence order in the terms sought by the petitioner, I must then consider separately whether NM's consent to the adoption should be dispensed with. This is itself in two stages. First I must consider whether she is unable to discharge parental responsibilities or exercise parental rights in respect of CE satisfactorily and is likely to continue to be unable to do so. If I am not so satisfied, I must then consider whether CE's welfare otherwise requires NM's consent to be dispensed with. In making this particular decision about whether to grant authority to adopt, I must have regard to all the circumstances of the case, including the value of a stable family unit in CE's development; the likely effect upon him throughout his life of the making of an adoption order; and the need to safeguard and promote his welfare throughout his life, which must be the paramount consideration. It is also necessary to consider whether authority to adopt is better for him than no such authority being granted. There are no issues in this case in relation to the expression of the child's views, his religious persuasion, racial origin or cultural and linguistic background. However, I must be satisfied that he is likely to be placed for adoption before I could grant this part of the order.

[79] Much of the evidence relevant to the test of whether it would be seriously detrimental for CE to live with NM is also central to the decision making in this part. There is no real doubt that, during the short period that he was in her care, NM failed to safeguard and promote CE's health development and welfare which she had responsibility to do in terms of section 1(1)(a) of the Children (Scotland) Act 1995. She knew that by living with DE she was exposing the child to risk and she failed to acknowledge that or to seek support. For the reasons I have already given based on the evidence led, I do not consider that NM would be able to care for CE satisfactorily were he in her care now and she would be likely to expose him to further risk. It is more difficult to conclude with any certainty that NM is likely to continue to be unable to satisfactorily discharge parental responsibilities or exercise parental rights. She does seem to have made some progress in securing a tenancy of her own, living alone and gaining some insight into the inappropriateness of the relationships she was previously involved in. However, her ability to change is untested and the alterations to her lifestyle are very recent. The evidence supports a conclusion that NM is easily led and lacks confidence. It is also noteworthy that she failed to take up some offers of assistance, such as group work at Livingston Centre (spoken to by Rhona McDonald). NM remains a vulnerable young woman who has been unable to stand up to her own mother over issues surrounding her mother's dealings with CE. On balance, I consider that the evidence illustrates that NM is likely to continue to be unable to discharge satisfactorily her parental responsibilities or exercise her parental rights in respect of CE. However, even if I had not reached that conclusion, I am in any event satisfied that CE's welfare otherwise requires NM's consents to adoption to be dispensed with. There are a number of reasons for that. First, the alternative for this young child who had such a difficult start in life would be to remain within the care system. There would be regular Children's Hearings and "Looked After Child" Reviews for the rest of CE's childhood. It would be unsatisfactory in the extreme for him to remain in a long term foster care placement. There was undisputed evidence that it is very likely that CE will be placed for adoption if the order is granted. Accordingly, he has the opportunity to develop a sense of belonging and security in an adoptive placement if the order is granted at this stage. He has received superb care from Mrs M who has only his best interests at heart. She is prepared to facilitate transition to a permanent home for CE. The only factor militating against adoption is the first respondent's desire to be given another opportunity to show that she can look after CE. That desire is understandable but centres on NM's interests not those of her son. Her interests cannot rank at the same level as the need to secure CE's welfare throughout his life. It was suggested on behalf of the first respondent that the social work department, Marion Duffy in particular, had not considered the pros and cons of the various orders which might be made short of adoption in this case. However when challenged about this, it became clear that Mrs Duffy had a sufficient understanding of the possible alternative options, but due to CE's tender age, the circumstances in which he was taken into care and the unsatisfactory nature of being a "looked after child" for the rest of his childhood, they could all be discounted. No "kinship care" arrangement from a suitable relative is on offer. In my view, a point has been reached when CE's life can no longer be placed on hold to cater for the possibility that some form of further assessment with a view to rehabilitation could be carried out. To be fair to the first respondent she recognised to some extent the disadvantages of CE remaining within the "looked after children" system. She said in terms that she would want him to have the same foster carer rather than being "shifted around" but she was aware that Mrs M could not keep CE long term and the realities were that, absent the orders sought in the petition being made, he would have to move at some point. In considering this aspect of the case I have taken into account also the curator ad litem's report (no. 12 of process), the advice from the Children's Hearing (no. 6/2 of process) and the local authority report (no.6/3 of process) to which Marion Duffy spoke. I am satisfied that for CE, nothing less than adoption will suffice to safeguard and promote his interests. His welfare would require that step to be taken now even if it was thought that NM could be in a position to discharge parental responsibilities and rights satisfactorily in the future.

4. Contact

[80] The issue of whether there should be direct contact between NM and CE pending a direct adoption application is not straightforward. As I have already indicated, there is no strong attachment between NM and DE. Several witnesses, including Marion Duffy and Mrs M expressed the view that CE gained nothing from direct contact once per month presently exercised. Mrs Duffy referred to it as "contact for contact's sake". Mrs M felt that CE is now more interested in playing with other children than spending any time with NM. However, the issue of whether there should be direct contact between NM and CE is something that I consider would be best resolved in the context of a subsequent adoption petition. This case is very different from one in which a child is placed with prospective adopters prior to the local authority seeking a permanence order with authority to adopt. While there are two families tentatively interested in CE he has not yet been matched with either of them. The process of matching followed by the court process for adoption will take a little time. Although Marie Hindmarsh gave general evidence that the prospective adoptive parents do not tend to favour post adoption direct contact, the attitude of the two families mentioned (or indeed any other prospective adopters for CE) to post adoption contact is not known. It is also important that the petitioner does not seek to extinguish the first respondent's right and responsibility of contact in this process. The primary reason for that is that there is no other person currently available who could hold that responsibility and exercise that right. There is no suggestion that the limited contact once per month that takes place in a soft play centre is detrimental to CE. It is supervised by Mrs M who is willing to continue to undertake that role pending any adoption order. Her willingness to do so, despite her personal views on the benefits of on-going contact, is commendable and of considerable assistance to the decision making process. Further, when the Children's Hearing gave advice to the court in anticipation of these proceedings, the contact arrangements were left unchanged. Given the very strong attachment that CE has to his current foster carer, the period following the making of the permanence order with authority to adopt that I have decided to grant will inevitably be one involving some upheaval for him. It was pointed out on behalf of the first respondent that Marion Duffy herself gave evidence that it was in a child's best interests not to make too many changes in that child's life at the same time. I accept that it is part of CE's current routine that he sees his natural mother once per month and that this does not cause him any upset. The short period of difficulty in that regard has long since resolved. The approach of the petitioner's social work department is that they would favour organising a farewell visit between NM and CE prior to the instigation of the adoption process. While that may facilitate a smoother path through the adoption process and avoid further litigation about the matter, the evidence led at proof before me was insufficient for me to conclude that for this particular child his interests would best be served by cessation of contact at this stage. I cannot reach any conclusion as to whether any form of direct contact should take place post adoption because I do not know the circumstances in which the child is to be adopted. It is thought that he might be placed outside West Lothian and that is a factor but as I have indicated the attitude of the prospective adopters with whom he will be placed is unknown and I cannot rule out that they might see it as of some benefit to CE to have occasional direct contact with his birth mother. There is an obvious benefit to CE in maintaining a link with his birth mother at this stage. The concept of indirect contact is directed at the need for a child to know his life story. Sometimes occasional face to face contact between a birth parent and their child post adoption is part of that story, often it is not. The Petitioner does not suggest that this is a case in which direct knowledge of his birth mother would be other than of benefit to CE and is willing to promote that. The issue still to be determined is whether contact between birth mother and son should, to any extent, be of a "face to face" nature in future. The decision I have taken on this matter, namely that limited direct contact should continue meantime, should not be taken to be an indication that I consider that this is a suitable case for direct contact post adoption. My view is, simply, that for the reasons explained above contact should continue on the current limited basis of it taking place once a month, supervised by the social work department (and in reality by Mrs M) until any adoption order, with or without any provision for contact, is made.

Decision

[81] For all of the reasons indicated above, I will make a permanence order in this case with the mandatory and ancillary provisions sought by the petitioner and I will dispense with the first respondent's consent and grant authority for CE to be adopted. I will also make an order for direct contact between NM and CE for one hour on one occasion per month supervised by or on behalf of the petitioner. I will order that the petitioner intimate the proposed adoption application to the first respondent at the relevant time. The supervision requirement will be discharged. The parties were agreed that there should be no expenses due to or by either party to the action and I will so order.