Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 128

 

P623/13

OPINION OF LORD MATTHEWS

In the petition

THE CITY OF EDINBURGH COUNCIL

Petitioners;

Against

 

JLB

First Respondent;

and

 

BJ

Second Respondent:

 

for a Permanence Order with authority to adopt under section 80 of the Adoption and Children (Scotland) Act 2007 in respect of the child KLJ

 

Petitioners:  Brabender;  Solicitor to City of Edinburgh Council

First Respondent:  Party

Second Respondent:  Party

 

19 August 2014

Introduction
[1]        The petitioners seek a permanence order with certain ancillary provisions and authority for the adoption of KLJ, a female child born on 14 February 2011.  The first respondent is her mother JLB while the second is her father BJ.  Until the eve of the proof before me they were legally represented but for reasons into which I need not go the agents withdrew from acting shortly before the proof.  There was conjoined with this proof another proof in a petition for authority for a permanence order in respect of the child’s sister DLJ but on the third day of evidence the respondents withdrew their opposition to the order sought in respect of that child and, having considered the affidavits which were presented by the petitioners, the oral evidence already heard and the documentary productions and being satisfied that such an order should be made, I granted it.

[2]        The respondents told me that they no longer opposed the making of a permanence order with the ancillary provisions sought in respect of KLJ but that they continued to oppose the petition in so far as it sought authority for her adoption.  The scope of the dispute was therefore significantly narrowed.  The first respondent, however, said that she did not wish to be present during the remainder of the evidence but wished to make a submission at the end of it.  She was content that the second respondent carry out such examination as he thought appropriate.  Neither the petitioners nor the second respondent had any objection to this course of action and I allowed the case to proceed as she requested.  As it happens the second respondent absented himself from time to time during evidence which he apparently found upsetting and I had occasion to adjourn the proof for short periods to ensure that he was present in court.

[3]        The petitioners led evidence from a number of witnesses and the second respondent gave evidence.  I heard submissions from counsel for the petitioners and from both respondents before making avizandum.

 

The orders sought
[4]        The petitioners seek a permanence order under section 80 of the 2007 Act including the mandatory provision under section 81, as hereinafter described, and certain ancillary provisions.  The latter are provisions:

(a)        Vesting in the petitioners in relation to the child:

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

(ii)        the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act;

all in terms of section 82(1)(a) of the 2007 Act;

(b)        extinguishing in relation to the child:

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

(ii)        their parental rights mentioned in section 2(1)(a), (b) and (d) of the 1995 Act;  all in terms of section 82(c) and (d) of the 2007 Act;

(c)        specifying that there shall be no direct or indirect contact between the child and the respondents in terms of section 82(e) of the 2007 Act;

(e)        provision granting authority for the child to be adopted, the following conditions being said to be satisfied:

(a)        that the petitioners request that the order include such provision;

(b)        that the child is likely to be placed for adoption;

(c)        in respect of both respondents that their consent to the making of an adoption order should be dispensed with on the ground that they have parental responsibilities and parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act and are unable satisfactorily to discharge those responsibilities and/or exercise those rights and are likely to continue to be unable to do so;

(d)        in any event that their consent to the making of an adoption order should be dispensed with on the ground that the welfare of the child requires that;  and

(e)        that it would be better for the child if provision granting authority for the child to be adopted was granted than if it were not.

[5]        The petitioners ask the court specifically to dispense with the consent of the respondents and, on the making of a permanence order, to terminate any supervision requirement or compulsory supervision order extant in respect of the child.

 

The legislation
[6]        I do not think it is necessary at this stage to set out in full the terms of the particular sections of the Adoption and Children (Scotland) Act 2007 on which the petitioners rely.  I shall look more closely at these sections in due course.  Suffice it to say at the moment that a permanence order is defined in section 80 of the Act as an order consisting of the mandatory provision and such of the ancillary provisions as the court thinks fit and, if the conditions in section 83 are met, provision granting authority for the child to be adopted.  The mandatory provision is defined in section 81 as provision vesting in the local authority for the appropriate period the responsibility mentioned in section 1(1)(b)(ii) of the 1995 Act (the provision of guidance appropriate to the child’s stage of development) in relation to the child and the right mentioned in section 2(1)(a) of that Act (the regulation of the child’s residence) in relation to the child.  The appropriate period in relation to the provision of guidance starts with the making of the permanence order and ends on the child’s 18^th birthday while the right to regulate the child’s residence begins with the making of the order and ends on the child’s 16^th birthday.

[7]        Section 82 provides for the making of various ancillary provisions and they include the provisions sought in this petition.

[8]        Section 83 provides the conditions for orders granting authority for adoption and should be read along with section 14 of the Act.  The conditions and considerations applicable to the making of a permanence order are set out in section 84.

 

The background and the evidence
[9]        Many of the facts on which the petitioners rely are matters of record and cannot seriously be disputed.  An overview of the case was provided by Janice Christine Campbell who provided an affidavit which was supplemented by oral evidence.  I have little difficulty in finding that she was a witness of credit.  Such cross-examination as there was was restricted to certain matters of detail which did not in my opinion undermine the general thrust of her evidence, which I accepted, as far as the facts were concerned. Ms Campbell is a team leader in the Children and Family South West Practice Team based at Wester Hailes Healthy Living Centre in Edinburgh.  She qualified as a social worker in 1981.  Her role in the case of KL and her sister DL has been as team leader to the allocated social workers for the children, Gillian Dawson and Mark Lee Crawford. She has been involved since shortly after DL’s birth and regularly discussed the case with the allocated social workers.  She attended the majority of Child Protection Case Conferences and a number of meetings.  She was referred to 6/1 of process, a report by Mark Crawford to the local authority under rule of court 67.28(2)(b) and confirmed that she agreed with it.  Her practice team became involved with DL shortly after she was born.  Concerns had been raised about the respondents’ drug misuse and the fact that the first respondent had already had two children who were accommodated and who have now been adopted.  It is not necessary for me to give a full history of DL’s involvement with the Social Work department. 

[10]      In summary, after DL’s birth she was accommodated with foster carers for a short term but the department wished to work with the family towards rehabilitation.  DL was placed with the paternal grandmother IT on the basis that the parents had not demonstrated that they were free from drugs.  It appeared that the respondents wished to co-operate with the department but consideration was given to obtaining a Child Protection Order around 22 June 2007 when the respondents threatened to remove the child.  All the drug tests were positive until that point.  On 6 July 2007 the witness wrote to the respondents to emphasise the seriousness of them failing to comply with the child protection plan.  The department were aware that they were failing to attend at the Community Drug Problem Service (CDPS).  By October 2007 they had provided some negative tests and had complied with the care plan although they did not engage fully with the department.  In November 2007 there were further concerns about their lack of engagement and a number of positive drug tests for opiates.  A family at the Children and Family Centre had reported signs of drug use at their house and the respondents constantly disputed the test results and made up excuses for positive ones.  There was non-engagement with the health visitor but there were a number of positives in the family situation and there was a stable home environment.  On 18 January 2008 at Edinburgh Sheriff Court grounds of referral were established without the leading of evidence.  These had been amended after discussion and accepted.  The facts established are as follows:

“1.       DLB is the child of JB and BJ.  DL ordinarily lives with her parents at (an address in Edinburgh).

 

2.         DL’s half siblings MB (date of birth 23.11.99 and RB (date of birth 27.01.01) were accommodated by the local authority at the time of R’s birth due to JB’s lack of ability to care for them adequately.  Both M and R have since been adopted.

 

3.         JB had a history of heroin abuse which began in 2002.  During her pregnancy with DL Ms B missed several appointments with the community drug problem service with a view to stabilising her drug use on a methadone programme.  Mr J has also misused heroin.

 

4.         During her pregnancy with DL Ms B injected herself with heroin.

 

5.         DL was born prematurely and was diagnosed as having neo-natal abstinence syndrome.  DL was accommodated by the local authority upon discharge from hospital, before being returned shortly thereafter to her parents care.

 

6.         Miss B has taken heroin twice and Mr J has tested positive for opiates during the period that DL has been in their care.

 

7.         Due to the inability of Ms B and Mr J to sustain a lifestyle which does not include the use of drugs, compulsory measures of supervision are required to ensure the consistent protection of DL’s safety and well-being.”

 

The grounds which were established were that in terms of section 52(2)(c) of the Children (Scotland) Act 1995 DL was likely (i) to suffer unnecessarily;  or (ii) be impaired seriously in her health or development, due to lack of parental care.  Ms Campbell confirmed the statement of facts was true and in any event it was accepted by the respondents.  The health visitor also reported that she had seen DL at the end of January 2008 but that this had been the first time she had seen her out of seven attempts.  A children’s hearing made a supervision requirement for DL including a condition of attendance at Hailesland Children and Family Centre and between February and May 2008 DL was seen regularly there.  The respondents continued to test positive for drugs and to miss appointments although the first respondent was doing better than the second.  In March 2008 she stated that he had moved out of the family home at her request.  The department continued to have concerns about the respondents’ drug use and recommended to the children’s hearing in August 2008 that a place of safety warrant should be issued.  The Hearing did not do so but requested that a safeguarder be appointed to provide further information.  At a Hearing on 30 September 2008 the safeguarder’s report was considered and a place of safety warrant was issued whereafter DL was accommodated with a foster carer S McK.  The warrant was continued in October and on 31 October DL was made the subject of a supervision requirement with a condition of residence with her foster carer.  Ms Campbell said that the respondents were not predictable and both could be verbally aggressive, although at times they could be reasonable.  There were a lot of missed appointments until the present day.  Mark Crawford had tried to meet the respondents and had only had one successful meeting.  They missed appointments with all of the services including toxicology tests.  The department could never get a full assessment because of these.  6/46 was the decision of the children’s hearing which continued the supervision requirement with a variation to attach a condition of residence with the foster carer and supervised contact with the respondents.  In November 2008 the social workers discussed the possibility of moving to overnight contact but were not in a position to progress this due to toxicology tests being missed.  On 26 November 2008 the CDPS advised that the first respondent had been removed from their programme due to non-engagement and the social workers assumed that she was unstable in her drug use and would have to buy drugs.  She was still testing positive for opiates when there were tests.  In December 2008 DL was still on the child protection register and accommodated with S McK.  The parents missed contacts in the week of 5 December 2008 and made an excuse for missing one which turned out to be untrue.  They continued to deny drug misuse and took a defensive stance when this was raised with them.  Excuses were given as to why they were not attending the CDPS and as to why there were positive toxicology results.  A Child Protection Case Conference and Looked After and Accommodated children’s review (LAAC review)  were held in February 2009 because of the continuing concerns and the lack of progress.  There was evidence of attachment between the respondents and DL but the latter was upset following contacts.  The second respondent claimed it was a conspiracy that the test results were wrong and the first respondent said it was not her fault that she was misusing drugs.  She claimed that she did not get enough medication but this was often due to her missing appointments.  A LAAC review meeting on 13 May 2009 agreed that a referral to the permanence panel should be put in place for DL on the basis that there had been insufficient progress in the care plan to allow her to return home, she now having been accommodated for over 6 months.  The hope was that this would encourage the respondents to work with the department and enable them to progress towards rehabilitation.  An Adoption and Permanence Panel was held on 11 August 2009 and they did not agree to register DL for permanent substitute care.  There had been some progress in the interim in that the respondents were giving clear toxicology tests and were attending contact.  A children’s hearing of 29 October 2009 agreed that the rehabilitation plan would be put in place over the following twelve weeks and by December 2009 DL’s contacts increased so that she was spending overnights with her parents from Sundays until Wednesdays.  In January 2010 concerns were raised about the fact that the second respondent’s previous two toxicology tests had been positive for opiates and benzodiazepines although the first respondent was clear for all but prescribed substances.  A children’s hearing on 11 February 2010 agreed to vary the supervision requirement to allow DL to return home.  The Hearing thought that the parents had done very well and were persuaded that they had changed.  In May 2010 it was reported that the respondents had completed a parenting course at the Children and Family Centre and the possibility of terminating the supervision requirement was discussed by the department.

[11]      On 10 July 2010 the first respondent contacted the police to advise them that her home had been broken into.  She claimed that she had gone home to find her house trashed and the place in a mess.  The police attended and found the livingroom to be in a very messy state with dirty clothing all over the floor and drugs paraphernalia, including uncapped needles.  The second respondent was asleep on the sofa and had to be forcibly awakened.  The police reported that he was clearly under the influence of substances.  The respondents told the police that the uncapped needles were not theirs, although the second respondent admitted that a sin bin in the house was his.  Their recollection about had happened was fairly unclear but they maintained the position that someone else had come into the house and caused the damage.  DL was not in the house at the time and the respondents were given the benefit of the doubt.  The child was still continuing to attend the Child and Family Centre.  Around this time the department received information that the first respondent was pregnant.  In July 2010 information was received that the second respondent had tested positive for opiates in March but subsequent testing was negative for all substances including prescribed methadone, which raised suspicion about the test.  The first respondent was referred to the Prepare team for further assessment and in October 2010 they advised that a toxicology test for her had proved positive for opiates and negative for methadone.  Her prescription was cancelled by her GP and she was asked to contact the Prepare team to make alternative arrangements for her methadone prescription.  She failed to do this.  The social worker immediately concerned, Gillian Dawson, noted that there was evidence of parental drug misuse increasing.  The first respondent refused to be tested on 4 August, stating that she had been drugged.  In September and October her urine samples proved positive for benzodiazepines and cannabis.  An oral swab was positive for heroin and negative for methadone.  The department were aware that she was buying either methadone or heroin and was injecting.  That had been a feature of her pregnancy with DL.  The second respondent tested positive for benzodiazepines throughout August to October and failed to collect his prescription on several occasions.  The first respondent failed to attend a number of health visitor appointments for DL.  It was, however, noted that DL had a strong attachment to both of her parents and that they had demonstrated a previous capacity to change in order to care for her.

[12]      An initial referral discussion (IRD) took place on 10 November 2010, by which time it was clear that both parents were injecting heroin, although the second respondent was arguing that he had to buy it for the first respondent as their methadone prescriptions had been terminated.  That was, however, because they had not attended their appointments.  It was concerning that the situation had deteriorated quickly only a few months after DL had been rehabilitated to their care.  It was decided to hold a pre-birth Child Protection Case Conference for the unborn baby and an initial Child Protection Case Conference for DL.  It was agreed that DL would be cared for by IT until further notice.  This decision was made after it transpired that the second respondent had not attended his GP to renew his methadone prescription.  The parents agreed to DL being placed with IT.  Had they not so agreed an application for a Child Protection Order would have been made.  The unborn child was to be placed on the child protection register.  By 19 November 2010 the first respondent had started to engage with the CDPS and was moving back towards maintenance on methadone.  DL was still living with IT, who said that she was bringing DL to the Hailesland Child and Family Centre every morning from Glasgow.  There was a question mark as whether or not she was colluding with the respondents in managing this.  It seemed a long distance for her to travel at that time in the morning.

[13]      IT’s accommodation was not suitable for DL in the long term and if the respondents were unable to obtain stability then consideration would have to be given to accommodating DL.  In January 2011 there were concerns that the first respondent was not engaging as well as expected.  She had missed some appointments over the festive period, although some of these were attributable to the bad weather.  There were also concerns that she had a very bad burn.  On 3 February 2011 the witness discussed with Gillian Dawson their recommendation for the impending initial child protection case conference for K, who was as yet unborn.  They were concerned about the first respondent’s lack of engagement and lack of antenatal care and the fact that her last toxicology appointment had been on 23 December.  On 11 February 2011 a gentleman from the Prepare team informed the witness that the first respondent’s toxicology results were consistent and he had no concerns.  A children’s hearing took place on 8 February 2011 for DL and the supervision requirement was continued.

[14]      On 14 February 2011 K was born and the following day the witness spoke to the second respondent to tell him that she wished to visit the home.  There was a discharge planning (DP) meeting held on 17 February 2011 at which it was agreed that K could be discharged to the care of her parents but that IT, who agreed, was to reside with the family.  The case was discussed on 25 February 2011.  K’s weight was not increasing and she was having slight jaundice.  The first respondent had still not been to hospital about the burn on her arm and the family were still to be registered at Wester Hailes Health Centre.  Shortly after this the first respondent tested positive for opiates and benzodiazepines.  It was agreed that IT would be told that she had to take on full responsibility for the children over the weekend and that the respondents should not be left on their own with them.  There were also concerns about the second respondent’s drug use, as he was not being tested.

[15]      A meeting on 13 April 2011 agreed that IT was no longer required to live in the family home on the basis that the first respondent had achieved stability on her methadone prescription.  Thereafter the witness did not work in the practice team between May and August 2011.  In the interim there was a police raid on the family home when a number of substances and articles were found.  This gave rise to the seeking and granting of Child Protection Orders in respect of both children.  The applications alleged that on 13 July 2011 the police found a quantity of illicit substances, believed to be heroin and methadone, as well as a large number of syringes within easy reach of DL.  This was of concern in light of the incident the year before when needles were found.  The children were removed to a place of safety and a children’s hearing, on 18 July 2011, continued the Child Protection Order and attached conditions of supervised contact with the respondents.  On 26 July 2011 the matters were referred to the Sheriff for proof and on 11 November 2011 the grounds were held established with certain amendments at Edinburgh Sheriff Court without the leading of evidence.  The statement of facts, as accepted, was as follows:

“1.       (Family details)

 

2.         Both parents have a history of illicit drug use which has impacted on the wellbeing and care of their children, for example:

 

(a)        DLJ was born suffering from Neo-Natal Abstinence Syndrome.

 

(b)        DL was taken into care on two occasions because her parents were unable to care for her due to their drug use.  The first period lasted three weeks, the second period lasted seventeen months during which rehabilitation steps took place.

 

3.         Both parents are inconsistent in their engagement with the Social Work Department, the medical profession and drug agencies.  These agencies have been unable to adequately monitor the care and wellbeing of KL as a result.  For example:

 

K was not brought to appointments with the Health Visitor in April, May and June 2011.

 

4.         Both parents receive prescribed drugs but these are sometimes topped up with illicit drugs.  Both parents are tested regularly for this.  In March 2011 JB was found to have taken non prescribed Opiates.  She went on to miss 4 toxicology screen tests as a result of confusion regarding attendance with the GP.  In April 2011 BJ tested positive for non-prescribed benzodiazepines.

 

5.         Both parents have not taken adequate action to protect the children from the consequences of their drug use and have exposed them to a risk of harm.  For example:

 

On 13 July 2011 Police visited the house and found supplies of drugs on Mr J.  They also found methadone bottles and would have been within easy reach of a child.  In addition there was a number of needles, some of which had been used for injecting drugs, lying unsecured in a bag in the livingroom.

 

The grounds which were established were under 52(2)(c) of the 1995 Act.

 

As a result of medical examination and statements made by DL further grounds of referral were sent to the Sheriff for proof and were established on 16 August 2013 after the leading of evidence.  These were not accepted by the respondents.  In respect of DL the statement of facts which was found established was as follows:

 

1.         Between the dates of 14 February 2011 and 13 July 2011 within the family home of JB and BJ at (address) BJ did repeatedly intentionally or recklessly penetrate or attempt to penetrate the vagina and anus of DLJ with his penis, to her injury, said child being born on 25 May 2007 and under 13 years of age;  this being an offence of rape or attempted rape of a young child under section 18 of the Sexual Offences (Scotland) Act 2009.

 

2.         That between the dates of 14 February 2011 and 13 July 2011 within the family of JB and BJ at (address) JB and BJ did intentionally or recklessly penetrate, or attempt to penetrate the vagina and anus of DLJ, with fingers, and toes or other parts of their body and other objects unknown, said child being born on 25 May 2007 and under 13 years of age;  this being an offence of sexual assault by penetration on a young child under section 19 of the Sexual Offences (Scotland) Act 2009.

 

The ground was that in terms of section 52(2)(d) of the Children (Scotland) Act 1995 she was a child in respect of whom any of the offences mentioned in schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed.”

 

That same ground was established in relation to K and the statement of facts in support of it in her case is as follows:

“1.       Between the dates of 14 February 2011 and 13 July 2011, within the family home of JB and BJ at (address) BJ did intentionally, with his penis or with some unknown object, repeatedly touch KLJ sexually in the area of her vagina and anus to her injury, said child being born on 14 February 2011 and under 13 years of age;  this being an offence (of) sexual assault of a young child under section 20(2)(b) of the Sexual Offences (Scotland) Act 2009.”

 

[16]      From August 2011 DL’s foster carer had described her as a very distressed and disturbed little girl.  The issue of contact had to be discussed but as yet the allegations had not been established.  A decision was taken to suspend contact as a result of the police investigation and the witness met the respondents on 2 September 2011.  The second respondent demanded that he be allowed to speak to DL and said “I’ll get the truth out of her” he then said that she never lied.  The witness was concerned that he felt he could deal with the matter by interrogating the child.  The first respondent left the meeting and did not return.  The witness said that the second respondent regularly contradicted himself.  A children’s hearing of 5 September 2011 decided that there should be no contact between the children and the respondents. The offence grounds were dated July 2012 and had not yet been put to the parents.  Place of safety warrants were granted on 23 September 2011 with conditions of no contact in respect of each child and a children’s hearing of 1 December 2011 decided that a supervision requirement be imposed with conditions of no contact and a requirement that the address of the children should not be disclosed to the parents.  Neither child has had direct contact with the respondents since December 2011.  There had been some indirect contact between September and December but none at all since December 2011.  It was not felt that it would be safe for DL to have any contact with IT, who was no longer considered safe, reliable or trustworthy.  Her allegiance was with the respondents.

[17]      On 8 March 2012 the witness and Gillian Dawson met the second respondent to discuss the children’s circumstances and future planning.  It was agreed that he should get regular updates about the children and Gillian Dawson confirmed that such updates had been given up until then.  By November 2012 DL had moved to new carers.  She had been very distressed and difficult and while the carers had tried to manage they had two children of their own, K and another foster baby and they felt they could not give DL the attention she needed.  DL was quite aggressive to her little sister.  The carers were aware of allegations being made by the parents and were anxious.  These allegations were that DL was being hypnotised or coached and/or abused by them and that was why DL was saying what she did.  There were no concerns about the other child in their care.  DL was making no complaints about the foster carers.  Although DL was moved from their care, K stayed where she was.  They were happy to continue caring for her until decisions were made about her future.  DL needed a lot of attention.  It was not usual for siblings to be separated in foster care but DL’s aggression to her sister was significant and the carers could not cope.  6/62 was a decision of the children’s hearing on 16 May 2012 when the condition of residence was changed to other carers, M and P, where DL remains.  K stayed with the previous carers, Mr and Mrs W, but was removed from there and placed with other carers when the respondents had said that if they did not do something about K they would take matters into their own hands.  The carers had children of their own and were frightened that the parents would turn up.  K was moved to a previous respite carer, the intention being that it would be for a short term and she stayed there until September 2012.  In that month she moved to her current foster carers where she has been since. On 9 August 2012 the children’s hearing sent the serious allegations to which I have already referred to the Sheriff for proof.

[18]      The respondents appealed against the Sheriff’s decision to find the grounds established but the decision was upheld by the Sheriff Principal. 

[19]      The witness said that she would never consider rehabilitation.  Since May 2007 until the children were accommodated again in 2011 the respondents were persistent drug users and did not co-operate to improve the situation so that the children could say.  Once the serious grounds were established a risk could not be taken.  DL had not been with them for half of her life and was now 7 years of age.  KL had only been with her parents for 5 months of her life and was now 3.  The same concerns that existed with DL were repeated with KL and the witness had no faith that KL would not face an uncertain future in the same way as DL.  Perhaps the parents could manage one or two months of negative toxicology results but there was no confidence that that would be sustained.  The children had been accommodated for over six months.  According to research, children who had had disrupted early care did not have good outcomes as older children never mind as adults.  Living with parents who abused drugs could be dangerous since drugs could be accessible to them and parents under the influence of drugs could not be fully meeting the children’s needs.  Rehabilitation was not in the best interests of either child.  Numerous children’s hearings had kept the children in care and the Permanence Panel had recommended that their needs were best met by permanence.  The witness hoped that the parents were doing well but she did not have a crystal ball.  The children had now been away from them for nearly three years.  It was not possible to monitor parents’ behaviour and KL was not of an age when she could talk about any danger she might be in.  Mark Crawford had invited the parents to meetings but neither had attended.  The witness had very little information about the respondents’ current circumstances.  She referred to a letter found by Mark Crawford from a welfare benefits worker describing the second respondent’s current circumstances. That was 6/73 and I will deal with this at a later stage.  If he was suffering from drug addiction, aggression and mental health problems then that would impact on his ability to look after the children.  Under reference to 6/74, a letter from Wester Hailes Medical Practice dated 10 April 2014, she said that if the second respondent was reluctant to share information with health care professionals that would impact on the children. The department could never make a complete assessment of how the children were being cared for.  Mr Crawford had contacted the GP and it was reported that the first respondent was on methadone.

[20]      The witness gave evidence as to her view that authority to adopt should be granted but I shall deal with that at a later stage.  As far as permanence was concerned the history was of the parents not working with services and any improvements not being sustained.  There was a continued pattern of non-engagement and drug misuse and no risk could be taken with the children.  If she were returned to her birth parents it was likely that she would require to be accommodated again, as a result of the parents’ inability to sustain positive change.  If the children remained subject to compulsory supervision orders they would always have the uncertainty in their lives that those would bring.  There might be an expectation for them to attend children’s hearings where difficult and sensitive information would have to be discussed.  This could disrupt any relationships and attachments which they had been able to make in their long-term placement.

[21]      In cross-examination she was asked if 6/73 of process matched any of her experience of the second respondent and said that his paranoia rang true.  She said that he was paranoid that drugs workers had tampered with tests, although he challenged this.  She recalled that he had complained of back or leg problems and that he had first started taking drugs because of pain.  She had seen him spit and it was put to her that since Mark Crawford became the allocated social worker the only time he gave any information to him was after he asked for it in front of the children’s hearing, having repeatedly asked him before.  She said that the respondent was invited to every LAAC review and that she was not aware of Mr Crawford not making any efforts to involve him.  She said that there were always LAAC reviews where parents would get updates and children’s hearings.  The respondents did not attend all the children’s hearings but if they had called into the office they would be attended to.  She did agree, though, that Gillian Dawson complained that he called five or six times in one day after the allegations of sexual abuse were made.  She confirmed that when DL was accommodated at first they threatened to remove her but he challenged that.  It was not mentioned in a chronology attached to 6/85 of process.  It was suggested that the family reporting signs of drug use did so via a telephone call but I did not think that was a matter of any significance.  He challenged the number of contacts which were missed, saying that they worked with all the agencies including drug agencies.  It was suggested that when the first respondent tested positive for opiates and benzodiazepines in the days after K was born it was found to be because of medication which was given in hospital.  The witness did not remember that.  Her references to DL as being distressed and disturbed were her way of summing up what the carer said.  It had not been reported to her until then.  It was put to the witness that the first respondent had told Gillian Dawson that the child had  better be moved from her carers after concerns were expressed about her sexual behaviour in class and the witness confirmed that the respondents did not ask to have the children returned to them.  It was suggested that the doctors could not rule out that whatever happened to the girls happened while they were with their carers.  That was an opinion of Professor Busuttil and the witness said it was not suggested that it had happened then and that the department believed that the carers were not responsible.  The observations of the children showed that they were happy with the carers and DL was making allegations that named the parents.  It was not her recollection that another individual was the only one named.  She agreed that there had been cases of carers who had fooled professionals for years.  There was a discussion as to whether or not the respondents had co-operated with the department on a voluntary basis until 13 July 2011 but the witness was not entirely sure about this.  The department tried to keep parents up to date but they had to think what was best for children.  They would speak to parents if they wanted to find out more.  However the respondents did not come to meetings or LAAC reviews.  While reference had been made to a chronology it was a running document and was not infallible.

[22]      In re-examination she said that the respondents did not attend LAAC reviews from July 2011.  When DL was with S McK appointments were regularly missed and defaulted on by both respondents.  The second respondent did not have the ability to put his children first.  Their needs were secondary to the needs of the respondents to challenge the department and minimise concerns.  Her experience was similar with the first respondent.  6/38 was a letter from Gillian Dawson to the reporter giving a list of dates where appointments between the respondents and her were missed or cancelled.  On 21 October 2010 the first respondent refused to allow Miss Dawson to visit or agree to discuss matters over the telephone.  She denied any illicit drug use and could not understand why there would not be any methadone in her system, her only explanation being that her urine had been mixed up.  It was explained to her that the results were from the oral swab and she became extremely angry and upset.  The second respondent joined in and launched into a tirade about conspiracies.  It was arranged that the social worker would visit the next day but on that day the first respondent texted to cancel the visit.  Another text cancelling a visit was sent on 16 December 2010 and a number of other references were made to missed contacts.  The whole picture was a worrying one of avoidance and non-engagement.

[23]      John Leo Casserly, the welfare rights officer to whom I have referred, adopted an affidavit and gave oral evidence.  He met the second respondent around 14 March 2014 to assist him with a benefits application and interviewed him.  On the basis of the interview and a self-assessment form which was completed by the second respondent he prepared a submission which was 6/73 of process.  There was some confusion about this document since it appeared that the second respondent was suffering from quite a number of conditions but it turned out that was because the submission contained quotes from the relevant rules rather than simply setting out what the second respondent’s position was.  This was the document which was referred to by Ms Campbell.  The context was that he was appealing against a decision that he was not entitled to employment support allowance as he did not have limited capability for work.  He stated that he suffered from both physical and mental health problems which caused him great distress and anxiety.  He had difficulty in standing or sitting in one place for more than a few minutes as he was weak and in pain.  He had poor bowel control, estimating he spent up to four hours a day in the toilet and lost control of his bowels on a regular basis, on average two or three times a month.  He found it difficult to start tasks due to his poor motivation including getting dressed and washed.  He regularly started domestic tasks but lost concentration and failed to complete them.  He had great difficulty in dealing with social situations.  He was paranoid and mistrustful of others, feeling that they were judgemental towards him.  He was extremely talkative, talking at length with an excess of detail which alienated a lot of people.  He felt everyone was disgusted by him which made him more withdrawn.  His depression and mental health issues were variable but over half of the time he was unable, through paranoia induced anxiety, to leave the house.  He had a compulsion to cough and spit all the time usually into a milk bottle and felt that others shunned and reviled him for this.  He reported aggressive behaviour towards others on a regular basis as he felt generally disliked by everyone.  In cross examination he said that they met for about an hour and the second respondent challenged him as to whether or not he had in fact said what appeared on the submission.  The witness confirmed that the material came from him or from the form which he filled in.  In re-examination he said he had not seen any medical information.  There was some discussion about the timing of a letter which was sent by the second respondent’s GP but that did not take matters any further.

[24]      There was evidence from Mark Lee Crawford, who had been the allocated social worker for the children since 14 February 2013 and had discussed the case with his predecessor Gillian Dawson and read the notes.  Gillian Dawson had started a report in connection with the applications for a permanence order and passed that to him.  He was responsible for 6/11, the report. He had submitted an affidavit, which he adopted as true, and gave oral evidence.  Before being allocated the case he was aware of the history of substance misuse in the family and he was involved in the planning for KL’s discharge from hospital.  He had undertaken a few home visits before being allocated the case at a time when the allocated social worker was Gillian Dawson. He had regularly met both children and seen them in their placements.  DL required a higher level of support and input.  He saw KL around every eight to twelve weeks in her placement.  The couple with whom she was placed intended to adopt her.  She was extremely settled with them and was building up a secure base with them.  She had exhibited some unusual behaviour in her placement including requiring a lot of reassurance from her carers sometimes, biting her nails and biting those around her.  This could be indicative of a child who had had multiple carers and experienced trauma in her life.  Some of this behaviour could be explained under reference to her age and stage of development but one had to take account of her history of multiple carers and the grounds of referral which had been established.  As well as being exposed to early life trauma she had experienced trauma in utero and showed signs of neo-natal abstinence syndrome (NAS) following her birth.  This raised concerns regarding brain development.  The respondents tried to deny that she had suffered from her mother’s substance misuse but the evidence from toxicology tests prior to her birth and the fact that KL scored eight on the NAS scale, which was a medium to high score, indicated that she was exposed and did suffer.  If babies scored higher than ten they would be admitted to a special unit and if they scored on the NAS scale at all there was always going to be a level of uncertainty about the impact this would have on them in the future.  K’s carers were well equipped to safeguard and promote her welfare for the rest of her childhood and life.  They were very open minded, had a good understanding of the importance of offering her continued reassurance and were open to learning and expanding their knowledge.  Contact between KL and her sister had not taken place since May 2012, in particular because there was a concern that DL might cause KL some harm given some of the observations from when the girls lived together with previous carers.  He attended a children’s hearing for both children on 14 February 2013.  The department were seeking advice from the Hearing regarding their proposed applications for a permanence order.  The second respondent attended but the first did not, apparently on the advice of her solicitor.  Advice was not tendered by the Hearing on the basis that at that stage the offence grounds of referral were still outstanding.

[25]      During an Annual Review children’s hearing for DL on 8 May 2013 the second respondent said that Mr Crawford had not been keeping in contact with him and the first respondent.  This was inaccurate.  Following those comments he wrote to the respondents to update them on the children and to invite them into the office to meet with him to discuss them.  Mr Crawford provided a number of regular appointments for them to come in and advised them that if any of these times did not suit them then they should contact him to arrange new ones.  He spoke of a letter 6/79 of process dated 15 May 2013 to both respondents.  In that he pointed out that as the first respondent had not attended the last two hearings he was hopeful that the second respondent had been able to give her updates.  He indicated that he would be in a position to give the respondents monthly updates as agreed at the Hearing on 8 May.  He offered appointments at 10am each morning beginning 6 June 2013 then on 5 July, 2 August, 6 September and 8 October and invited them to contact him if these times or dates were inconvenient.  On 17 July 2013 he wrote to both respondents (6/80 of process) indicating that Mr Crawford was disappointed that only the second respondent attended the first meeting on 6 June 2013 and arrived late.  Neither of them attended the next planned meeting and gave no notification about their non-attendance.  He hoped they would attend the meeting planned for 2 August 2013 and hoped that they would prioritise those meetings.  He invited them to let him know if the time was inconvenient.  During the first meeting on 6 June, when the second respondent was present after coming late, he asked about DL but had to be prompted about KL and asked if he wanted an update about her.  He did not ask any questions about her.  Neither parent attended any other appointment with him or made contact to agree alternative arrangements.  They had phone numbers for him.  Shortly after he wrote to the respondents he received a text message from the second respondent.  The latter alleged that he had texted him on several occasions and claimed that Mr Crawford had said that he had to come to the meetings he had arranged as they were the only times that suited him.  He wrote again to the respondents explaining that he had not received any of these texts and reminding them that the appointment times could be rearranged if they were not suitable.

[26]      Mr Crawford did not have much information as to their current situation since neither of them had engaged with him.  The second respondent had said that he would not work with him when he challenged him about his version of events at the hearing on 8 May 2013.  At the beginning of May 2014 he contacted the respondents’ GPs.  The first respondent’s GP confirmed that she was still a patient with him and he was prescribing her 16 milligrams of methadone on a daily basis.  He met her every six to eight weeks to discuss her health.  He took a urine toxicology test form her and confirmed that her tests had only been positive for methadone although he did not know over what period.  Heroin only stayed in the system for three days after use.  The doctor had referred the first respondent for counselling giving her self-reported feelings of anxiety but she had not taken up that offer.

[27]      The second respondent’s GP sent him a copy of a letter dated 10 April 2014 (6/74 of process) which had been sent to Mr Casserly (designed as Catterley in the letter) in connection with the benefits appeal.  The GP said that she saw the second respondent every six weeks or so in her methadone maintenance clinic.  He was currently stable on 16 milligrams of methadone, supported by regular urine and toxicology screens.  The letter also said that the second respondent had been in contact with her as he was aware that much of what he had reported to Mr Casserly was symptoms he had not shared in any great detail with the staff at the medical practice.  He said that this was due to his reluctance to share personal information until he fully trusted a health care professional and he had not felt comfortable doing so until relatively recently.  The doctor confirmed he had a disruptive bowel habit but the necessary laxatives had last been prescribed in October 2013.  He was experiencing frustration and sadness in connection with the current proceedings but the doctor was impressed with his resilience and ability to cope with the matter and to support his partner.  Recently he had reported feeling numb and apathetic, lacking in motivation and being low in spirits.  She started him on Prozac, his depression score being moderately severe.  She verified the fact that he was extremely talkative but she had no evidence as to any difficulty standing or sitting and was unable to support any question of an issue with spitting.  Mr Crawford spoke of the information provided by Mr Casserly but I need not go into that.  The information concerned Mr Crawford however because, leaving aside the history of parenting, his mental health difficulties might impact on his day to day functioning and his anger, aggression and inability to care for himself would place any child in his care at serious risk of harm and/or neglect.  In his view if the children resided with either parent it would impact on and be seriously detrimental to their welfare.  There was a long running history of their being placed at risk by their parents through substance misuse and a chaotic lifestyle.  There was a history of accommodation with the local authority and neither parent had been honest with professionals.  They had frequently denied or minimised concerns.  The grounds of referral which had been established would mean that any child in their care would be at risk of serious harm.  Following the establishment of those grounds there was no prospect of a children’s hearing returning either child to the care of either respondent.  The first respondent was injecting heroin on a daily basis while pregnant with DL.  The latter suffered NAS.  She was thereafter accommodated with the local authority from time to time, as has been indicated.  After K’s birth, when both girls were in the care of their parents, the first respondent was using heroin in addition to her methadone prescription.  In March 2011 her toxicology test was positive for non-prescribed opiates and she failed to attend for four tests after that.  In April 2011 the second respondent’s toxicology test was positive for non-prescribed benzodiazepines.  DL had spent most of her life living with foster carers.  KL had been referred to social work before her birth and placed on the child protection register.  She suffered from NAS.  During the short period when she lived with her parents between February and July 2011 both were taking drugs in addition to her methadone.  She was now three years of age.  Neither child had had any contact with either parent since September 2011 and would have no relationship with either of them.  It would be seriously detrimental to their welfare to live with either of them, as would removal of them from their current placements.  Both parents had been unable to discharge and exercise their parental rights and responsibilities and were likely to continue to be unable to do so.  They had failed to keep their children safe from harm.  They had made choices about their drug use and lifestyle resulting in their being unable to prioritise their children’s needs over their own.  The grounds of referral which were established demonstrated their inability to discharge their parental rights and responsibilities.  There was no evidence to suggest that the situation was likely to change.  The parents continued to cancel appointments and to not engage with the witness or anyone else from social work.  They did not ask for updates about the children and appeared to have no regard for their welfare.  They both required the continued prescription of methadone and the submission about the second respondent’s benefits suggested someone who would be unable to discharge his parental rights and responsibilities.  The witness was of the view that there should be no direct or indirect contact between the children and their parents.  To have contact would place them at serious risk.  Both parents stated that they wished to interrogate DL about the statements she had made.  Contact could lead to the children’s location being identified, the respondents having managed to identify the location of the children in a previous foster placement and threatened to remove them.

[28]      KL had lived as part of her prospective adoptive family for longer than she had resided with her birth parents.  The impact of moving from that family would be extremely traumatic as she knew no family other than the prospective adoptive parents, who loved her.  She seemed a normal happy toddler who was strongly attached to her prospective adopters and the extended family.  Having been exposed though, to maternal drug misuse and the conduct established in the grounds of referral, these matters could impact on her as she got older and it was even more crucial that she remained living securely in a nurturing family.

[29]      In cross-examination Mr Crawford was asked why he called the second respondent’s doctor and he said it was because he had had no engagement with the respondents and wanted an update on their circumstances.  It was suggested that in fact it was he who had not engaged with them but he said he had tried to contact them through the post, which he thought was most appropriate.  He denied a suggestion that the second respondent repeatedly asked about the children and said it was hard to get information.  He denied that he was only prompted to offer appointments because the second respondent had told the hearing that he had not been getting enough updates.  On being asked why he had not done that before then he said that on meeting at the children’s hearing on 14 February, he introduced himself and said they would meet at the LAAC review on 28 March but the second respondent did not attend.  He was prompted to give him dates in a letter because at the children’s hearing on 8 May they discussed meeting on a monthly basis.  The witness did not recall the second respondent contacting him and saying the first two appointments were not suitable, only to be told that they were the only ones available because Mr Crawford was so busy.  He denied that after the first appointment which the second respondent attended they spoke outside about rearranging appointments because they were not suitable.  He recalled a text from the second respondent saying that the dates only suited him because of his diary and he responded with a letter saying that such a conversation did not take place.  The information about NAS came from tests.  He could not say whether it was possible to score on the NAS scale even if a child did not have NAS.  Medical professionals told him that if the score was eight, that indicated she had it.  In re-examination he said that the second respondent never telephoned him to discuss the children.

[30]      There was also evidence from Giles Greenslade but I will deal with that in the context of the specific question of whether authority to adopt should be included in the permanence order.  I should say however, that I accepted it and took it into account in deciding the discrete question as to whether a permanence order should be granted at all.

[31]      The second respondent gave evidence.  He spoke of the timing of the letter sent from his doctor but I need not go into that.  He did not tell the doctor that he was not comfortable discussing issues but that he was not comfortable discussing uncomfortable issues.  He had not discussed any problems with his back and legs because he had treatment before which did not help.  He got a prescription for Prozac for only a week or a month.  He had had issues with his throat and his stomach all his life.  At no time until July 2011 did they fail to work with the Social Work department and engage with them.  They never resisted them so that they had to go to court and force them to co-operate.  They understood the department’s concerns.  They understood that the department might think that because they had drug issues they might have a similar lifestyle to the one which was common amongst that community.  He and the first respondent had trouble with timekeeping particularly because they had a lot of agencies to deal with.  That situation became more overwhelming when the first respondent fell pregnant with KL.  When DL was in her first year or two the respondents were keen to ensure that she would come back to their care and they rushed too quickly to deal with their drug issues.  Their dosage of methadone was too low.  It was not until 2009 that he started to make progress and get the proper amount of methadone to deal with the problem on a long-term basis.  By the middle of 2010 both of them had made progress and stayed away from heroin for a long time apart from one relapse over a two week period when the first respondent’s prescription was stopped.  There was a test which was positive for opiates and benzodiazepines after K’s birth but that was caused by medication following the birth, which was by caesarean section.  He gave evidence about hearing of an allegation concerning a friend of his mother’s in July 2011.  His mother had watched KL before but until 13 July she had never had her at her own house.  After Gillian Dawson told her about the allegation of this gentleman (M), supervised contact with him and the first respondent continued but a week or two after that it was cancelled.  They were then allowed supervised contact with KL and were told that she would have to undergo a medical examination that day.  They consented to it.  Professor Busuttil had not been able to time the abnormality which had been found on KL and could not say if it was the result of trauma.  It could not be ruled out that it had happened in the care of the current carers and that was why they wanted the children removed to another placement.  They were not saying that the carers were responsible but if they went back to previous carers there would be a safe environment while the allegations were investigated.  The investigation was not done properly in the early stages.  He continued to go to children’s hearings but stopped going to LAAC reviews because of the chairperson.  When they tried to encourage the department to move KL from her placement, they did not remember the address but gave the impression that they did so that the child would be moved.  When Mark Crawford became the children’s social worker, communication with the department became difficult.  He did not have the same interest in ensuring that they had a proper connection to their children and knew what was going on in their lives.  The witness told the children’s hearing that he was not getting updates.  The hearing was not impressed by that and a week later Mr Crawford sent the letter about appointments.  He contacted Mr Crawford by text saying that the first two were not suitable because they had other appointments and asking to rearrange them but Mr Crawford said that he was too busy and these were the only times he was available.  The first respondent did not want to attend.  Janice Campbell said that he would have to deal with Mark Crawford and thereafter he did not communicate with him.

[32]      The fact that KL scored eight on the NAS scale did not mean that she was suffering from it.  It could be down to any number of factors.  He was told by nurses that many children who were premature, as KL was, could score quite high on the scale even though they were not suffering from NAS.  They were prepared to be patient and understood that the department had to address the concerns which had been raised.  After the medical examination, he thought that the man M might have done something to the children but when false allegations came out in connection with him and his partner, he decided that the information about M was not true either.  They had made a number of efforts to investigate the matter and had repeatedly said they did not need the children to return home until the investigations were complete.  They wanted the children put in a neutral place until it was discovered what happened.

[33]      He also had certain comments on the question of adoption but I will turn to them later.

[34]      In cross-examination he was challenged as to his assertion that they co-operated with the department.  He did not want DL removed from their care but that did not mean he did not go along with it.  He denied that he had lived the lifestyle of drug abusers.  Entire days were spent doing things with the children.  As far as the police attendance on 10 July 2010 was concerned, he said that their drinks must have been spiked at a club.  His partner woke up to find the livingroom in a mess and someone standing in the middle of it.  She called the police.  If they were responsible for the needles they would have got rid of them before doing so.  He acknowledged that the sin bin was his but that was because he was in an unresponsive state and he had used drugs before.  He did not know anyone was in the house.  His partner had refused a drug test on 4 August because of that incident.  He was asked about the test in March which resulted in positive of opiates and negative for methadone and said that they had rushed matters and ended up using drugs again.  As far as the test on 25 October 2010 was concerned, he said that the test result that showed positive for opiates was a false result.  A test on him showed at least five different drugs and it was admitted afterwards that the test had been mixed up.  His partner had refused to be tested on 4 August because she said she had been drugged.  He was asked about being tested positive for benzodiazepines throughout August to October 2010 and stated he was on benzodiazepines as a prescription.  It was something to do with coming off heroin.  He eventually stopped it as he thought he would end up having another addiction.  It was noted in Janice Campbell’s affidavit at paragraph 26 that around November 2010 it was clear that both parents were injecting heroin and that he was arguing that he had to buy it for his partner as their prescriptions had been terminated.  He said he had not used heroin since March 2010.  He was asked about buying heroin for his partner and said that she had no prescription for methadone for two weeks and they feared the effects that immediately stopping methadone could have on KL.  He managed to find someone who had methadone but that was just a small amount and the next week he collected heroin for her.  He compared it to a neighbour borrowing coffee from another neighbour.  He was not using heroin himself.  He was asked about the other arrangements he said he had which prevented him from meeting Mark Crawford in June or July and said that he did not remember what they were.  He had not contacted Mr Crawford because he felt it was disingenuous of him to put in writing that he would be happy to rearrange appointments, having told him face to face there were no other times available.

 

Decision on permanence order with ancillary provisions
[35]      As I have indicated, both respondents accepted that I should make a permanence order in respect of KL with the ancillary provisions sought.  Despite that acceptance, I have to be satisfied on the evidence that it is appropriate.

[36]      The test for the making of a permanence order is in section 84 of the Adoption and Children (Scotland) Act 2007. That is in the following terms:

“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 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).”

 

[37]      The respondents are the persons referred to in subsection (5)(c)(ii).  Subsections (3), (4) and (5) of section 84 are applicable.  KL is three years old and no question of obtaining her consent arises.

[38]      KL is currently subject of a compulsory supervision order dated 28 November 2013 including requirements that she reside with foster carers and have no contact with her parents or IT.  I accept the evidence as to the background to this case provided by Janice Campbell and support by Mr Crawford and the records which were produced.

[39]      The respondents have the right to have KL living with them or otherwise to regulate her residence. Their care has resulted in her name being registered on the child protection register.  In addition she has been the subject of two separate established grounds of referral to the children’s hearing.

[40]      While the decision of the Sheriff in relation to the offence grounds was produced, as well as the decision by the Sheriff Principal refusing the respondents’ appeal, I did not hear any evidence going directly to these grounds themselves or to the facts relied on in support of them.  During his evidence the second respondent, as I have indicated, denied being responsible for any offences, if any offences were in fact committed, and it was plain that that was also the position of the first respondent but it is not for me to make an independent assessment of the truth or otherwise of the allegations.  The fact that they were established, although, is something which I have to take into account.   I also take account of the fact that the earlier grounds were established without the leading of evidence and therefore must have been accepted or at least not challenged by the respondents.  I regard the statement of facts attached to those grounds as containing primary facts upon which reliance can be made.

[41]      The children’s hearing of 8 May 2013 was not supportive of adoption but that was on the basis that the then outstanding grounds of referral required to be resolved.

[42]      While this petition relates to KL the background history in relation to DL has to be taken into account.

[43]      DL was first made the subject of a supervision requirement with a condition of attendance at the Hailesland Child and Family Centre on 14 February 2008, when she was less than nine months old.  She remained on a supervision requirement and a place of safety warrant was granted on 30 September 2008.  She remained in foster care until 11 February 2010 when she returned to the care of the first and second respondents.  She has been the subject of a supervision requirement and now a compulsory supervision order continuously since 14 February 2008.  KL was made the subject of a supervision requirement on 1 December 2011 and has continued to be subject of such a requirement and now a compulsory supervision order, as I have indicated, continuously since then.  There has been no direct contact between KL and the respondents since September 2011 and no indirect contact between them since December of that year.

[44]      The second respondent has a long history of drug use, having been prescribed methadone from time to time since 2002 and still being prescribed methadone.  He has a history of failure to attend appointments with support services and in particular with the social work department, especially Mark Crawford, the children’s social worker.  He has exhibited a lack of truthfulness with support services and he has various medical and psychological issues as set out in 6/74 of process and the report from his GP. I found his evidence as to his dealings with the department to be implausible and preferred the evidence led by the petitioners. It was generally supported by the records. His lack of engagement was entirely his fault and the reasons he gave for the threat to remove KL were unconvincing.

[45]      The first respondent also has a long history of drug abuse and has been prescribed methadone from time to time since at least 2003.  She also has a history of lack of engagement.  She injected heroin whilst pregnant with DL and on the basis of the evidence I have heard, I am satisfied that she abused heroin while pregnant with KL.  On two occasions drugs and paraphernalia have been found in the respondents’ home. Given the pattern of events, I  reject as implausible the explanations for this and for the test results which the second respondent gave.

[46]      There is a longstanding history of drug abuse.  The respondents presented very well during the course of the proof but it appears that from time to time during their history with the social work department they also managed to do that.  The evidence shows a history of relapsing, a history of failing to turn up for appointments and a history of non-communication.  It is plain that Mr Crawford offered the respondents appointments and no plausible excuse was provided in the evidence for failure to attend them.  I accept the evidence of Mr Crawford in its entirety.  It was noteworthy that particularly during passages of evidence referring to the offence grounds of referral, the second respondent absented himself from the court and proceedings had to be stopped.  While this might be thought understandable, it seemed to me to give credence to the view that he is not prepared to face up to difficulties.

[47]      It may be that that is because of an unwillingness to be tested for drugs that there has been a lack of engagement with the authorities. However, I cannot be satisfied that that is in fact the case. The respondents have faced up to the fact that this permanence order should be granted and that is to their credit. There is a pattern, as I have said, of drug misuse and attempts at rehabilitation but the independent evidence as to the respondents’ current situation is somewhat sparse, consisting as it does of the benefits submission and the information from the GPs referred to in the evidence of Mr Crawford. I do not think, and this is more relevant to the adoption question, that that is enough for me to hold that the respondents’ drug use or medical conditions mean that they are currently unable to discharge their responsibilities or exercise their rights or that that situation is likely to continue.  On the other hand, they are in fact unable to do so as a result of the grounds of referral which have been established and that is likely to continue.  The real issue is whether residence with the respondents would or would not be likely to be seriously detrimental to KL’s care. She will never be returned to their care and they recognise that. She is well settled with her carers and it is plain on all of the evidence, including that of Mr Greenslade, which I accept, that it would be seriously detrimental to her welfare to be uprooted.  See Midlothian Council v M 2013 Fam L R 104, to which Ms Brabender referred.

[48]      The requirements of sub-section 84(5)(c)(ii) are made out.

[49]      That of course is not an end of the matter.  I have to have regard to the need to safeguard and promote KL’s welfare throughout childhood as the paramount consideration and I have to consider whether it would be better for her that the order be made than that it should not be made.

[50]      No issues arise in relation to the child’s religious persuasion, racial origin or cultural or linguistic background.

[51]      The making of the order would mean that the respondents would no longer have the right to regulate the child’s residence and she would not require the intervention of the children’s hearing to regulate it.  See section 87 of the Act.  If I were to revoke the compulsory supervision order that would mean that she would not be required to attend children’s hearings.  See section 89.  In terms of section 103 of the Act no order in terms of section 11 of the 1995 Act could be made in respect of her during the period when the permanence order was in force.  That would provide greater certainty and stability for the remainder of her childhood.  She has been outwith the care of her parents since she was five months old and a permanence order will allow her to live with her carers for the remainder of her childhood. All of that will remove instability from her life and I have no difficulty with the proposition that that is in her best interests.  The absence of an order will mean that she will remain subject to children’s hearings with all the uncertainty that it can bring.  It is plainly better that an order be made than not.  There was no dispute about the ancillary order sought and in the circumstances I shall make the permanence order with the mandatory provision and the ancillary provisions which are sought.  That leaves one issue to which I will now turn.

 

Should authority to adopt be granted?
[52]      It might be helpful to set out the evidence which touched specifically on this issue  Janice Campbell touched upon it but the principal material upon which the petitioners principally relied came from Mark Crawford and Giles Greenslade.

[53]      As I have already indicated, Mr Crawford said that KL had no relationship with the respondents and it would be seriously detrimental to her welfare to live with either of them, as would be removal from her current placement.  A permanence order with authority to adopt would, in his opinion, safeguard and promote her welfare for the rest of her life.  It would enable her to have a normal family life.  She was extremely settled with her prospective adopters, who would petition to adopt her if the order was granted.  The carers were very committed to her.  In general, the more successful and long lasting permanent placements for most children requiring permanence were adoptive placements.  KL needed a family who would claim her and provide her with a normal family life.  She had now lived with her prospective adoptive family for longer than she resided with her birth parents.  They were the only family she knew.  Her perspective adopters should be able to repair any damage she had suffered in her short life and would look after her every need in the best way possible.

[54]      Mr Greenslade provided an affidavit and also gave oral evidence.  He was a senior practitioner working with Scottish Adoption, Constitution Street, Edinburgh.  He has a background in social work and worked with Barnardos between 2000 and 2005, dealing with long-term fostering and adoption cases.  His work at Scottish Adoption involves the assessment and preparation of foster carers and prospective adopters.  He began working with KL’s foster carers in October 2011.  Details about KL came through in April 2012 and after discussion it appeared that she and the carers might be a good match.  They were formally matched by a City of Edinburgh Council matching panel on 3 September 2012.  She had been moved in July 2012 to a short-term foster carer before coming to the present carers and that move created disruption for her but the introduction to the current carers went well.  They were confident that they could meet her needs and she seemed to respond to them.  They were prepared to foster her while the local authority pursued an application for a permanence order with authority to adopt.  KL began to form an attachment to them after she moved to stay with them.  She was difficult to soothe when she first arrived and appeared to become alarmed by comfort from an adult.  When she was hugged, she might scratch and bite at the face of the adult who was hugging her.  This reaction was significantly more than would be expected from a child of her age.  KL sometimes appeared stressed by physical comfort.  She presented as having a disregulated nervous system, which was not normal for a child of that age.  She would either be very very active or would be asleep.  There was no middle ground.  Her carers had worked extremely hard to nurture her and give her a sense of safety and security.  They had attended specific training at Scottish Adoption to develop their understanding of children who had experienced early life trauma, separation and loss.  They had incorporated this into their parenting skills and techniques.  They had built physical closeness and intimacy into the relationship with KL and over time she had responded to this.  Art therapy had been utilised.  This helped her and allowed her to express any emotional or psychological distress through art.  A child of her age with a healthy parenting history would manage if the parents became impatient or abrupt but if that happened with KL, this could trigger feeling stressed or scared.  Her carers had to concentrate on regulating their own parenting style to be patient and calm with her at all times.  She would react badly if something unpredictable happened in her day, for example if plans changed.  Work had to be done by her carers to ensure that her days were predictable and she knew what was happening.  She has just started pre-school nursery and her carers worked with the head teacher to soothe the transition.  She had a book which showed the nursery, the room she would be in, the nursery workers and the routine which she would be following.  This would build her familiarity with the situation before she went in to pre-school.  She is less able to manage than a child with a safe history of parenting but is improving all the time.  She is a smart child and is now emotionally more mature.  She can regulate herself better, although there are many vulnerabilities and it is not clear precisely what impact her history will have on her in the long term.  She is now securely attached to her carers and their birth child.  When the witness enters a room to see them, she will use them as a safe base by going to them for comfort.  She did not do this at the beginning of the placement.  She seems relaxed and contented in their care.  She can now receive hugs from them and hug back.  Physical comfort is now a relaxing and supportive experience rather than a stressful one.  The carers’ own birth child is eleven and has managed to adapt to KL.  She loves his company and loves to play with him.  They are now like brother and sister and there is a playfulness and a relaxed informal interaction between them.  If she were to be removed from her carers, she would experience extreme shock and grief.  She would develop further mistrust of her environment and that would cause problems for her future welfare.  If she were removed she might become too defended to trust the relationship between herself and any new carer.  She continued to need a very structured, nurturing, predictable environment and if she were removed from her placement the progress she has made would be in jeopardy.  If authority to adopt were granted, she would feel claimed within the family and would become part of the family’s identity.  She already identified with her carers as parents.  In terms of good development, children need a secure and loving attachment so that they felt secure and loved.  It would be detrimental to KL if she were “parented” without a loving relationship.  Until legal orders were granted, full life story work could not be done with her about her current placement being her home.  Her understanding that she was not her carers’ natural child could be built on over time.  An order would allow her carers to reassure her that she was staying with them.  If the order contained authority to adopt the life story work would be taken a stage further in an age appropriate manner.  The carers would share information with her about her history and full life story work would be done with her if she were adopted.  In future there might be contact between and her sister depending on their needs.  The carers have taken steps to understand the impact of sexual abuse on a child in order to be equipped with strategies to support her.  If she were adopted by the carers, Scottish Adoption would give ongoing support to the family and their assistance could be accessed at any stage of KL’s future life.  If she were not adopted, she would still be the responsibility of the local authority and would grow up as a looked after and accommodated child.  Adoption would allow her carers to be her parents.  Disruption rates were less in adoption cases than in cases of long-term fostering. Disruption related to a situation where a child had to leave home.  The attachment between the carers and the child was more secure in adoption.  In addition, the carers could fully claim her as a daughter and this would support the ongoing relationship.  The carers would relax a bit more and could reassure the child that she was a full member of the family.  Love and nurture was significantly approved by adoption.  K is much more vulnerable than a normal three year old.  Adoption would allow her to form a secure identity and be able to say that these were her parents and her family where she belonged.  At this point the second respondent left the courtroom again and the hearing had to be stopped briefly.

[55]      In cross-examination the witness was asked what was meant by a disregulated nervous system and what led to that.  He said that when KL moved in with her carers she found it hard to receive comfort and seemed hyper vigilant and very active.  It was difficult for her to have periods of calm relaxation.  He based that on his observations when he visited and on reports from the carers.  That was seen in children who had difficult starts in life.  Being moved a lot had not helped her but children with no nurturing parenting experience in the first months or year could not sit still.  He agreed that he had not seen her in her early years but her behaviour was consistent with what he was saying.  He did not work with her sister to see if she had similar issues.  As to life story work, K could not be told that this was her home at the moment.  A foster child could not be told that.  If a permanence order without the authority to adopt was granted, Scottish Adoption would support her to the best of their ability and work in an age appropriate manner.  They could not, however, talk about her parents and family in the same way.  It was suggested to him that everything he had said was for the benefit of the carers and not for the child but he said that her significant relationships were only with her current carers.  She felt that they were her parents.  She would have an identity.  As she got older her life story would be explained to her in an age appropriate manner.  That same work could not be done with a permanence order.  Some other children could be unsettled when they started nursery but that was merely one illustration of her vulnerability.  If a permanence order was granted without authority to adopt, he would nonetheless always do his best to support her through her childhood.

[56]      In re-examination he said that he would hope that a child of that age would grow up with parents.  If she were not adopted, the parents she grew up with would be different from her legal ones.

[57]      In relation to the question of adoption, the second respondent gave certain evidence.

[58]      He felt that the department were pursuing authority to adopt not only based on what was best for KL but were taking departmental issues into account.  Janice Campbell looked for authority to adopt before any findings were investigated at proof in relation to the offence grounds but the children’s hearing refused.  They would only support authority to adopt once the grounds were found established and she had said something which indicated that she wanted their support because it would benefit the Social Work department instead of what was best for the children.  This was never put to Ms Campbell in terms and I attach no weight to it.  He went on to say that if there were to be new forms of evidence or new process of gathering evidence and previous cases were revaluated or new evidence came to light or someone was found to have committed the alleged offences or confessed to them or were found with videos proving they did it, KL would not have the option to ask for contact if she was adopted.  If DL said the offences had not been committed  she could ask for contact.  K could not ask for contact with DL or her siblings or extended family until she was eighteen, if she was adopted.

[59]      In re-examination he was reminded that the question of contact between the siblings would always be kept under review but he said they had always been saying that.

 

Decision on authority to adopt
[60]      In this connection the relevant provisions of the 2007 Act are as follows:

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

 

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

 

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

 

(4)        The court or adoption agency must, so far 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 majority),

 

(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 ...

 

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

 

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

 

(a)        the mandatory provision,

 

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

 

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

 

83-(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 –

 

...

 

(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 –

 

...

 

(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 ...”

 

            Section 84 of the Act provides as follows, so far as relevant:

“84-(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”

[61]      The conditions in subsections 83(1)(a) and (b) are met.

[62]      Thereafter, the logical starting point is to consider whether the respondents are unable satisfactorily to discharge their parental responsibilities or exercise their parental rights and are likely to continue to be unable to do so, all in terms of subsection 83(3).  This is not the same question as is contained in section 84(5)(c)(ii).  As I have said, the test there is whether the child’s residence with (the respondents) is or is likely to be, seriously detrimental to the welfare of the child.  No doubt Parliament had good reason for the difference in the tests.  In the instant case, however, Ms Brabender submitted that the answer to the questions should be the same and should depend on the same evidence.  I agree with her and I find that the test is met.  I have already set out the basis on which I found that the test in 84(5)(c)(ii) was met.  The same considerations apply in relation to the test under section 83(3).  Looking at the long history of substance abuse and failures to engage with the authorities, as well as the accepted grounds of referral, I find that the parents have been unable satisfactorily to discharge their responsibilities or exercise their rights in the past.  As I have said, however, I cannot hold that they are currently unable to do so or that that situation is likely to continue, insofar as that is based on drug abuse and/or medical conditions. There is scant independent evidence as to their current situation and such as was led is unpersuasive. They presented themselves very well before me and demonstrated at least a willingness to keep on improving. However, the fact remains that they are presently unable to exercise any parental rights or discharge any parental responsibilities as a result of the establishment of the offence grounds of referral and that situation is likely to remain unchanged. I will look further at that shortly. In these circumstances the test is met.

[63]      That of course is not an end of the matter, since it only deals with the first stage of the analysis.  The second stage is to ask myself whether I should grant the order and in doing so I have to consider the various matters set out in the other sections which I have quoted.

[64]      I do not think it necessary to rehearse the submissions which were made by Ms Brabender for the petitioners since these are effectively reflected in the decision to which I have come.  I should, though, briefly set out the submissions which were made by the respondents.

[65]      The second respondent repeated what he had said in his evidence about the offence based referral being effectively re-opened if new evidence emerged.  If this happened before KL were adopted then the local authority could take account of it and revisit the position.  Once she reached the age of twelve she could be asked for her views on the matter.  That would not happen if adoption were granted.  Any such information would be at the mercy of the adoptive parents.  The local authority would be in a better position to decide what she should know.  The local authority did not pursue the grounds which were established in 2011 until the allegations of abuse were made.  This was an order that they could pursue authority to adopt based on those grounds.  They wanted to pursue authority to adopt without waiting for the result of the abuse allegations, although the children’s hearing did not go along with that.  They would not have pursued authority to adopt if these abuse allegations had not been made so if anything came to light to undermine the abuse allegations then the reason for them pursuing authority to adopt would have disappeared.  By that time if LK were already adopted her adoptive parents would have no obligation to raise the matter with her. If she were merely subject of a permanence order then the local authority could decide to let her know about it and seek her views.  The first respondent and he had made significant progress.  They had sought appropriate medical advice for the children and abstained from using heroin throughout KL’s life.  He had given evidence about the positive test after the caesarean section and that was the only test which could be regarded as positive in KL’s lifetime.  He made it clear that they did not, at this stage, have any hope for KL’s return to their care.  On the other hand, he wanted the local authority to decide her future since they were best equipped to decide what information she should be given.

[66]      The first respondent said that adoption was not in KL’s best interests.  They had always tried to do what was best for her, although there were a few things which were not the best despite their efforts.  They would never put the children in any kind of danger.  She understood that KL was still young and looked on her carers as mummy and daddy.  No doubt she would call them that and that would not change if authority to adopt was not granted.  If she were not adopted she could choose to form her own opinion and have contact with whoever she wanted.  That would be cut off she was adopted.  They would not try to fight for her return because she looked on her carers as her parents.  Adoption was for their benefit so they could legally say that KL was their daughter.  A piece of paper would mean nothing for KL and her feelings for her carers would not change.  A permanence order gave her the best of both worlds with her true family and her new family.  The first respondent also relied on a change in the law or the discovery of new evidence as being something which might change matters in the future.

[67]      In response Ms Brabender said that there was an application for advice from the panel while the abuse grounds were pending, although she agreed that no such application was made before the abuse allegations were made.  In her submission that did not matter. I have to say that I agree with her.

[68]      I am satisfied that adoption will secure KL’s welfare throughout her lifetime.  The most significant evidence in this regard is that of Mr Greenslade, which I have already narrated.  I accept that evidence.  I disagree with the proposition that his evidence merely outlined benefits for the carers.  It plainly demonstrated the benefits to KL of living in a secure home with persons whom she could legally call her family.  The alternative would leave her in a sort of limbo.  Subject to what I shall say shortly about new evidence etc, it is obvious that she will never return to the care of the respondents, will never have contact with them and would therefore be an accommodated child throughout her childhood.  I am satisfied that this would impair her development and her welfare throughout her life.  Giving her a family and a secure identity would plainly be in her best interests.  The carers are the only family she has known.  She already identifies with them as her parents, she identifies with their child as her brother and wrenching her from that family is unthinkable.  It is in her interests that she be a full member of that family and I agree with Mr Greenslade and the curator ad litem in this regard.  She would know that she was a full legal member of the household where she lives and where she is loved and cared for.  Given the establishment of the offence-based grounds of referral, there is no question as matters stand of any contact between KL and the respondents or IT.  At the moment there is no contact between KL and her sister but I accept the evidence that the carers will, with the help of Scottish Adoption, monitor that situation to see if anything can be done in the future.  I do not regard that as a forlorn hope.  I take the opposite view, however, in connection with the suggestion that there might be a change in the law or the discovery of new evidence which might cause the offence-based grounds to be reopened or somehow overturned.  In this regard Ms Brabender drew my attention to the case of TW v Aberdeenshire Council, 2013 SC 108 where, at paragraph 24 of the Extra Division’s Opinion, there was criticism of a finding in fact by the Sheriff which amounted to no more than a statement of hope.  That is in reality that the submission about new evidence etc amounts to and it is not something upon which I can base a decision. 

[69]      I have had regard to all the circumstances of the case, the evidence and submissions.  The need to safeguard and promote K’s welfare is the paramount consideration.  The evidence of Mr Greenslade in particular as well as that, to a more limited extent, of Ms Campbell and Mr Crawford, points to the value of a stable family life in her development.  She has such a stable family life with the current carers and as can be seen from the evidence of those witnesses whom I have just mentioned, that has already had positive benefits for her development.  In light of her age, her views do not come into the equation but, having said that, it is obvious that she is happy where she is.  There is no better practical alternative for the child and I am satisfied that it is better that authority to adopt be included in the permanence order than not.

[70]      Even if I am wrong in my assessment of the test under subsection 83(3), I am nonetheless satisfied that the test set out in subsection 83(2)(d) would apply.  In other words if the test in subsection 83(3) is not met, K’s welfare requires the consent of the respondents to be dispensed with.  She is never going to be returned to their care in light of the establishing of the offence based grounds of referral.  That would mean that she would always either be subject to a permanence order and live out her childhood as an accommodated child with all the uncertainty that that would bring, affecting her for her entire life or she would be an adopted child with all the benefits to which I have already referred.  In those circumstances, and bearing in mind what I have already said about the respondents’ forlorn hope of new evidence emerging, the answer to the question is plain.

[71]      In all the circumstances I shall dispense with the consent of the respondents and the permanence order, which I have already indicated I shall make, will include authority to adopt.

 

The extant compulsory supervision order
[72]      In light of the decision which I have made, it remains for me to consider whether to make an order in terms of section 89 of the 2007 Act revoking the compulsory supervision order to which KL is currently subject.  I am perfectly satisfied that in the circumstances which have arisen, it is no longer necessary for her protection, guidance, treatment or control that she be subject to this order and I therefore order that it cease to have effect.