Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 17

PO7/14, PO8/14 & PO9/14

OPINION OF LORD BRAILSFORD

In the petition of

RENFREWSHIRE COUNCIL

Petitioners;

against

AMM

Respondent:

Pursuer:  McAlpine;  Lindsays

Defender:  Reilly;  Drummond Miller LLP

30 January 2015

[1]        These are three petitions in which the petitioners seek permanence orders in respect of three sibling children.  In each instance the respondent is the mother of the children.  The children’s father is dead.

[2]        The three children are all boys, LK born 3 June 2001 and currently aged 13, AK born 13 April 2003 and currently aged 12 and OK born 3 November 2005 and currently aged 9.  At the date of proof the eldest two children resided with foster carers, Mr & Mrs Paton.  The youngest child resided with foster carers, Mr & Mrs Wilson.  The respondent exercised contact with each of the children separately.  The contact with each child was supervised and took place in a local authority run centre.  In the case of LK and AK contact was once per fortnight.  In the case of OK contact was once per month.  The three boys also have contact together.  This takes place only about three times per year.  The respondent is not present at these sessions.  The eldest child LK, being above the age of 13, required to be asked for his consent to the present application.  He has so formally consented.

[3]        The three individual processes were not formally conjoined but one unitary proof was heard.  The petitions have been the subject of case management the result of which was the production of an extensive joint minute (number 32 of process) in which essentially all the background facts leading to these children being taken into care were agreed between the parties.  Evidence in chief was primarily taken by way of affidavit.

[4]        The legislative background against which these petitions require to be considered is contained in sections 80 - 84 of the Adoption and Children (Scotland) Act 2007.  Section 80 permits the granting of a permanence order with mandatory provisions and such ancillary provisions as the Court thinks fit.  Section 81 stipulates the mandatory provisions.  Ancillary provisions are stipulated in section 82.  In the present petitions the relevant orders are those in section 82(1)(a), (c) and (d).  Section 83 is not applicable in the consideration of these petitions.  Section 84 sets forth the conditions applicable to the making of a permanence order.  Section 84(1) applies, by virtue of age, only to the eldest child LK.  The condition is satisfied.  Section 84(2) is not relevant to these applications.  Sections 84(3), (4) and (5) are relevant.  Section 84(3) provides that the court may not make an order unless it considers that it would be better for the child that the order be made than that it should not be made.  Section 84(4) provides that in considering whether to make an order and, if so, what provisions the order should make the need to safeguard and promote the welfare of the child throughout childhood is the paramount consideration.  Section 84(5) sets forth certain steps the court must take before granting an order.  That the foregoing were the relevant statutory provisions which require to be considered in relation to these petitions was not disputed by counsel for either party.

[5]        The approach to construction of these provisions has been considered by two recent decisions of the Inner House, TW v Aberdeenshire 2013 SC 108 – where for present purposes the important passage is to be found in the opinion of the court at paragraphs [12] and [13] - and Midlothian Council v CMP 2014 SC 168 – where the relevant passages in the opinion of the court are in paragraphs [20] – [24] inclusive.  These decisions are binding upon me.  In any event they are agreed by counsel for both parties to be instructive in the approach to determination of the issues in these petitions.  I accordingly propose to follow the guidance given in the passages I have noted in my determination of these petitions.

[6]        In each of the three cases there had been a curator ad litem appointed (Mrs Loudon) and that person had, in compliance with her statutory duties produced reports in each case.  In each case the curator had found that it would be better for the child that the permanence order be made than it not be made.  The curator further expressed the view in each case that the children should continue to reside with their existing foster carers but that the respondent’s parental rights in relation to contact with the children should not be extinguished.

[7]        The evidence is capable of being dealt with relatively briefly.  For the petitioners’ evidence was adduced by affidavit supplemented by oral evidence from:  Ms Mullen, Ms Munro, Ms Gartshore, Mr Coyle, Mr O’Neill, Mr Paton, Mr Lawson, Mrs Wilson and Mrs Stevenson.  Unchallenged affidavit evidence was also adduced from; Ms Hawthorn, Ms Plimbly, Mr Duncan and Ms Heffron.  Accordingly the court had available for consideration evidence from the social worker directly responsible for supervising the children in their care placements, the social worker who had previously been involved in supervision, the social worker who had been responsible for the oversight of decisions taken at committee level in relation to the children, the care worker predominantly responsible for supervising contact between the children and the respondent, the social worker liaison officer between the foster carers and the petitioners, the foster carers and from the deputy head teacher of the school attended by the youngest child.  The respondent provided evidence in the form of two affidavits supplemented by oral evidence.  She was supported by parole and affidavit evidence from her partner (Ms Ross) and by a witness from Renfrew Council on Alcohol who spoke to the respondent’s efforts in relation to combating her admitted alcoholism (Mr Todd).  In addition affidavit evidence was adduced from the respondent’s sponsor at the AA Problems Clinic of Dykebar Hospital, a medical officer from the same hospital and from the respondent’s solicitor.

[8]        I should record that in terms of paragraphs 44-46 of the joint minute essentially all records and reports of the Children’s Panel relative to the three children were agreed and therefore available for consideration by the court.

[9]        I should indicate that I considered all the witnesses I heard to be truthful and reliable and to be attempting to the best of their ability to assist the court.  I have to make some comment in relation to the respondent.  It is fair to say that there were some areas of her evidence where she might be criticised for lack of insight – her apparent lack of concern in relation to her excessive gift giving to the children, or the problems occasioned by her admitted connivance in the smuggling of the “Grand Theft Auto” computer game to LK against Mr Paton’s instructions being the obvious examples – but I also consider that in the main, in very difficult circumstances for her, she tried to be fair and objective in her evidence.  She admitted, difficult though it must have been, very considerable aspects of the evidence which she must have appreciated were prejudicial to her position.  Whilst her insight into the care of the children may be the subject of criticism I do not consider she was an obstructive or untruthful witness.

[10]      So far as the background is concerned there is no dispute, the relevant facts are contained in the joint minute, and are supplemented by information in affidavits which was not challenged.  In any event the respondent, to her credit, accepted these facts as being accurate when she gave evidence.  The respondent had a long standing history of alcohol abuse.  She resided with a partner, the father of the three children, who also had a serious problem of alcohol abuse.  As a result of this problem the respondent, and for that matter her partner, were unable to provide the children with an adequate degree of care and control.  The children were at serious risk of harm whilst in the care of the respondent.  As a consequence of all this the petitioners’ social work department required to become involved with the family.  In February 2009 the children were received into the care of the petitioners and a referral was made to the Children’s Reporter.  Grounds of referral were established at Paisley Sheriff Court in July 2009 and the children made subject to supervision requirements with a condition that they reside with foster parents.  The children remain subject to compulsory measures of care at the date of proof.

[11]      The children were in care and placed with foster carers between February 2009 and March 2010.  By March 2010 the respondent was attending the Alcohol Problem Clinic at Dykebar Hospital, conforming to a regime of antabuse and had been alcohol free for some 8 months.  As a result the children were returned to the care of the respondent.

[12]      Unfortunately following the return of the children to the respondent she relapsed.  She was once again unable to adequately care for the children or to keep them safe.  In June 2010 the children were again removed from the respondent and accommodated by the petitioners.

[13]      All three children have been continuously accommodated by the petitioners since June 2010.

[14]      I turn to consider the circumstances of the children since June 2010.

[15]      In the case of the eldest child, LK that accommodation has been continuously with Mr & Mrs Paton.  Whilst there have been behavioural issues with this child these have in the main settled.  He is well adjusted to his place in the Paton household, settled at school where he progresses well and has an established group of friends.  He is in the course of selecting his subjects for national exams.  With the exception of the respondent all witnesses who had knowledge of LK’s placement were agreed that it would be seriously detrimental to him if these settled domestic arrangements were upset.  As already noted he has formally granted his content to a permanence order.

[16]      AK also resides with the Paton’s, albeit he has been there for only two years.  He has also displayed behavioural difficulties but is now settled.  He is progressing well at school and will soon be going to secondary school.  He appears on the evidence to be a sportsman of considerable talent and there would seem to be a realistic possibility of him gaining admittance to a sporting academy in Kilmarnock.  Admittance to such an institution would both suit AK’s personality and, at least potentially, afford him considerable life opportunities in the sports field.  Again the tenor of the evidence was that it would be seriously disruptive if these arrangements were upset.  AK is too young to be required to formally consent to the granting of a permanence order but has indicated in a form “All About Me” which he completed for the Children’s Panel hearing as recently as December 2014 that he loved staying where he was and never wanted to move.  This expression of view is supported by the tenor of Mr Paton’s evidence.  It seems reasonable to conclude that notwithstanding unequivocal evidence from a number of sources that AK has a strong emotional attachment to the respondent it is his wish to remain residing with the Patons.

[17]      OK resides with Mr & Mrs Wilson.  He has experienced the most disruption in his accommodation since being received into care.  He was only three years old when taken into care.  He has had a number of carers and has displayed seriously disturbed behaviour.  His behaviour was so difficult that before the Wilsons were engaged as foster carers the petitioners were obliged to give serious consideration to his being placed in a residential care home.  Fortunately this was avoided by the success of the placement with the Wilsons. He is now progressing well at primary school.  He is happy and generally settled with the Wilsons.  He appears to regard the Wilsons as his long term carers and any suggestion to the contrary causes him upset.  He has said that he wants to stay at the Wilsons “until he is a big man”.  The stress caused by the current proceedings and their potential to disrupt his care arrangements has caused him to seek assurance, which appears to have been forthcoming, from the respondent, that he would not be moved.

[18]      The witnesses adduced by the petitioners have confirmed all of the above.  As a body they spoke to the children being well settled in their current placements.  They confirmed that despite some ongoing behavioural difficulties these appear to be related to either the present proceedings or the children’s antipathy to Children’s Panel hearings.  The root cause of these feelings appears on the evidence to be related to concerns regarding disruption of current domestic arrangements.

[19]      The witnesses all expressed the view that having regard to the respondent’s past deficiencies in providing adequate care for the children and on their observations of the respondent in the setting of contact they had objectively based concerns as to whether she would be able to cope with the children if returned to her care.

[20]      The reasons for these views may be stated as follows.  First, whilst all the witnesses acknowledged, and gave credit, to the respondent for her successful attempts to abstain from alcohol they all remained concerned about the potential for a relapse in that regard.  At its most basic there was the simple consideration, accepted by the respondent’s witness Mr Todd, a professionally qualified psychologist, that there is a risk of relapse into drinking, albeit unquantifiable, for all alcoholics.  That concern was exacerbated by consideration of the stress likely to be imposed upon the respondent from requiring to cope and look after three children all of whom have exhibited behavioural difficulties.

[21]      Second, there was the consideration that the children are unlikely to behave if living together.  This concern was most acute if OK required to live in the same household as his brothers but also existed in the friction that existed between LK and AK if these boys were inadequately supervised.

[22]      Third, the respondents observed inability to impose structure and to adequately supervise, as had been witnessed during supervised contact sessions, was a concern.

[23]      Fourth, at a physical level the respondent’s present accommodation, a flat with only two bedrooms, was regarded as wholly inadequate.  Of necessity the boys would require to share a bedroom.  Even allowing for the respondent being a priority candidate for larger and therefore more suitable housing the potential for harm to the children in even a short period of living in inadequate accommodation was a serious concern.

[24]      Fifth, any alteration of current placement arrangements has the potential to seriously disrupt the schooling arrangements of the children.  In the case of LK it would involve the change of a secondary school at a time when he is either about to embark on courses leading to national exams or, yet more detrimentally, when these courses have commenced.  For AK a change would involve not only a change in school but, at least potentially, the inability to attend a specialist sporting academy.  For OK a school change would be necessitated.  These difficulties are compounded by consideration that after any return to the respondent’s care there would almost certainly be a further house change to a larger house.  On the evidence this could be to any part of an unknown area in Renfrewshire.  There is accordingly a serious risk of yet more disruption in the schooling arrangements for the children.

[25]      The respondent was, quite properly, forcefully presented with these issues, or problems, which a rehabilitation of the children to her care would raise when she was cross‑examined.  I have already indicated my view that the respondent was, in difficult circumstances, a witness who was attempting to be helpful and was not seeking to obstruct the court.  I am however bound to state my view that there was a strong element of naivety in some of her responses to questions about these issues.  Put another way when faced with legitimate questions about her ability to cope with the demands of three children the respondent’s response was to state, and I quote, - “I don’t want to lose my rights to my children”, or “I feel the boys should be with their mother” and “I feel I’m ready now”.  These responses, heartfelt and genuine though they no doubt were, demonstrate in my opinion a lack of insight into the undoubted challenges and difficulties presented in providing adequate care and protection to three behaviourally challenged children.  It was equally telling that ultimately in cross‑examination the respondent conceded that, and again I quote, “I don’t like saying no to the boys”.  That position was plainly vouched by, most forcefully and directly, the evidence of Mr Coyle and Mr Paton but serves to demonstrate that the respondent is most unlikely to be able to provide the structured, organised environment that is necessary to ensure the wellbeing of these children.  In order to be completely fair I have further to note and record that when faced with the realities of the children’s current domestic situations, the opportunities that these arrangements offered them as against the risks inherent in attempting a programme of rehabilitation into her care and the children’s expressed desires in relation to placement the respondent acknowledged the problems her position faced.  This is truthful and to be commended but, it must be realised, destructive of the respondent’s case.

[26]      On the basis of the evidence which I have outlined I am satisfied that any alteration to the current placements of these children would be seriously detrimental to their wellbeing.  In my opinion it is necessary for both the safeguarding and welfare of these children that provision is put in place to ensure that the current placement arrangements are maintained for the remainder of their childhood.  This can only be achieved by the granting of permanence orders as craved in these petitions.  On the evidence I am satisfied that it would be better for each of these children that a permanence order be made than that it not be made.  The other statutory requirements are satisfied in each case.  It follows that I am satisfied that the petitioners have established that it appropriate to make the permanence orders sought in each of these three petitions.

[27]      In relation to ancillary orders the only matter I need to address is that of contact.  In relation to contact there did appear in the end of the day to be unanimity in the views of the petitioners and the respondent.  Both were agreed that continued contact was in the best interests of each of the children.  Both were agreed that control of contact by the Children’s Panel was contrary to the best interests of the children.  Both desired flexibility in contact in order that pragmatic and sensible joint decisions could be made when re‑arrangement or alteration of contact dates was required such as, for example, to accommodate holiday commitments or the timing of football fixtures.  I agree that this approach is sensible.  I also note that it has informally been operated successfully by the parties in the past.  The only issue was how to achieve this flexibility.  Initially my thoughts were that the best method of achieving the desired outcome would be by making a formal order for contact.  I am however persuaded by the arguments advanced by Mr McAlpine for the petitioners that this is not in fact the case.  The petitioners are of the view that it is in the best interests of each of these children to have regular contact with the respondent and that it is their intention to facilitate this throughout the remainder of childhood for each of the boys.  I formally note and record that expression of intention – and on the basis of it make no order for contact.