Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 181

 

AD5/15

OPINION OF LADY WISE

In the petition of

WEST LOTHIAN COUNCIL

Petitioner;

for a permanence order with ancillary provisions and authority for the child to be adopted in respect of the child HSW

against

CM

First respondent;

and

 

MW

Second respondent:

Petitioner:  Loudon;  Morton Fraser LLP

First respondent:  Guinnane;  Livingstone Brown, Glasgow

Second respondent:  M Hughes;  Turnbull McCarron

23 December 2015

Introduction and background
[1]        The petitioner, a local authority, makes an application in this petition for a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”) in respect of a child HSW (“the child”) who was born on 14 November 2013.  In addition to the mandatory provision vesting in the local authority the parental responsibility to provide guidance to the child and the right to regulate the child’s residence the petitioner seeks also to be vested with all other relevant parental responsibilities and parental rights in respect of the child, to extinguish the natural parents’ parental responsibilities and rights and to specify that there should be no direct contact between the child and the respondents.  The petitioner also seeks an order granting the authority of the court for the child to be adopted. 

[2]        The child’s mother will hereinafter be referred as CM and her father as MW.  Both parents were served with the petition, although until very late in these proceedings only the mother had parental responsibilities and rights in respect of the child HSW.  On 18 September 2015, shortly before the commencement of proof in these proceedings, the respondents entered into an agreement in terms of section 4 of the children (Scotland) Act 1995 (“the 1995 Act”) conferring parental responsibilities and rights in respect of HSW on MW.  The agreement was registered on about 7 October 2015, from which date MW acquired parental responsibilities and rights in respect of his daughter.  Accordingly, in considering the various orders sought in this petition, I will treat both parents as having parental responsibilities and rights. 

[3]        From the outset, the respondents opposed all of the orders sought by the petitioner in this process.  Their secondary position, in the event that a permanence order is granted, is that authority to adopt should not be granted and that, in any event, an order for direct contact between each of them and the child HSW should be made.  I heard 16 days of proof in this case with a short break between the first diet and the second.  Considerable efforts were made to restrict the extent of the oral evidence.  In particular, the petitioner produced affidavits from all witnesses led in its case so that their oral evidence would be limited to cross-examination and re-examination.  However, as a result of the way in which the challenge to the medical evidence developed, it became impossible to complete the proof in the allotted period. 

[4]        The child HSW is the full sister of a boy TRW who was born on 6 November 2012.  The petitioner made an application for a permanence order with authority to adopt in respect of that child and all of the orders sought were granted in this court by Lord Brailsford on 24 March 2015 – [2015] CSOH 28.  In his opinion, Lord Brailsford makes findings in relation to how certain injuries to TSW were sustained.  However, as findings in fact made in one civil case are not binding on me as a decision maker in a separate civil action and in light of the respondents’ determination to re-visit the whole question of the injuries to TSW, there was in effect a full re‑hearing of that matter before me. 

 

The legal framework
[5]       The legal framework against which the petition requires to be determined was not contentious between the parties.  Section 80 of the 2007 Act 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 which include the parental responsibility contained in section 1(1)(b)(ii) of the 1995 Act (provision of guidance appropriate to the child’s stage of development) in relation to the child and the right contained in section 2(1)(a) of that act (regulation of the child’s residence).  Ancillary provisions are set out in section 82.  The petitioner in this case seeks orders in terms of Section 82(1)(a), (c), (d) and (e).  Those provisions are in the following terms: 

“(1) The ancillary provisions are provisions –

 

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

      

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

 

       (ii) such of the parental rights mentioned in section 2(1)(b) and (d) of that Act, in relation to the child as the court considers appropriate,

 

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

 

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

 

       (ii) such of the parental rights mentioned in section 2(1)(b) to (d) of that Act, in relation to the child as the court considers appropriate, (including Section 1(1)(c), responsibility, ‘if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis’ and Section 2(1)(c), right ‘if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis.’)

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

[6]       Section 84 sets out the conditions and considerations applicable to the making of a permanence order and, insofar as relevant to the present case is in the following terms:

“84 Conditions and considerations applicable to making of order

 

…

 

(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 - …

            (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.”

 

There are also provisions relating to eliciting the views of a child with sufficient age and maturity to do so but the rules do not apply here. 

[7]       Section 83 provides that where a petition for a permanence order also seeks authority of the court for the child to be adopted the court must be satisfied that the child has been, or is likely to be, placed for adoption.  In a case where consent to that is not given by those such as the respondents who currently have parental responsibilities and rights in respect of the child, the court must be satisfied that the parents’ consent to the making of such an order should be dispensed with on one of the specified grounds.  The court must also consider 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.  The grounds for dispensation with the consent of parents such as the respondents are contained in section 83(2), (3) and (4).  Those provisions are in the following terms: 

“(2)      Those grounds are –

 

(a)     that the parent or guardian is dead,

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

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

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

 

(3)        This subsection applies if the parent or guardian –

 

(a)     has parental responsibilities or parental rights in relation to the child other
than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act,

(b)     is, in the opinion of the court, unable satisfactorily to –

(i)    discharge those responsibilities, or

(ii)   exercise those rights, and

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

 

(4)        This subsection applies if –

 

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

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

 

The contention of the petitioner is that subsection (3) of section 83 applies to this case, which failing that subsection (2)(d) would so apply. 

[8]       Section 14 of the 2007 Act contains overriding considerations that apply to the exercise of the court’s powers when it is coming to a decision relating to the adoption of a child which includes a decision to grant authority to adopt in a case of this sort.  The material parts of section 14 are in the following terms: 

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

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

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

(a)     the value of a stable family unit in the child’s development,

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

(c)     the child’s religious persuasion, racial origin and cultural and linguistic background, and

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

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

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

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

 

[9]       Parties to this case were all agreed that the correct approach to the interpretation of the various statutory provisions relating to the making of a permanence order is that set down by the inner house in TW v Aberdeenshire Council 2013 SC 108 at paragraph 13.  The law acknowledges and accepts that the severing of family ties between parents and their children by way of permanence order with authority to adopt or by adoption itself is a serious interference with the right to respect for family life in terms of article 8 of the European Convention Human Rights (“ECHR”).  That our domestic law on this issue is ECHR compliant was settled in the UK Supreme Court decision of ANS v ML 2013 (UKSC)(20).  A number of decisions of the Strasburg Court that predate that decision were referred to.  In particular Johnasen v Norway 23 EHRR 33, Neulinger v Switzerland (2010) 54 EHRR 31 and YC v United Kingdom (2012) 55 EHRR 967 were discussed.  However, as there can be no dispute that the legal framework within which I must decide this case is ECHR compliant no issue of contention arises in relation to any of that.  The relevant legislation on the test for adoption must be construed as a test of necessity (per Lord Reed in S v L at para 34). 

 

Undisputed findings in fact
[10]     Parties entered into a joint minute of admissions setting out the details of decision making in this case by the petitioner in relation to HSW.  Various undisputed matters relating to the background of TRW’s accommodation by the local authority and subsequent decision making were also agreed.  Insofar as material to this case the joint minute is in the following terms: 

“4.       HSW was referred to the Petitioner’s Adoption and Permanence Panel on 11 November 2014 which recommended that an application be made for a Permanence Order with Authority to Adopt.  The recommendation dated 18 November 2014 was accepted by the Agency Decision Maker. 

 

5.         HSW is the subject of a Compulsory Supervision Order dated 7 October 2014, which was continued on 13 May 2015, which includes requirements that HSW reside with a named foster carer.  By orders of the Court, the Respondents exercised contact with the said child;  both Respondents on 13 and 19 August 2015 and the Second Respondent on 27 August 2015. 

 

6.         HSW has a full sibling, TRW, who was born on 6 November 2012.  TRW was the subject of a Compulsory Supervision Order dated 14 October 2014, which Order included requirements that TRW reside with foster carers and have contact with his parents a minimum of once per fortnight, to be supervised by or on behalf of the Petitioner’s Social Work Department.  TRW has resided with the same foster carers as HSW since 10 January 2013. 

 

7.         A Permanence Order with Authority to Adopt was granted in respect of TRW, by this court, on 24 March 2015, when his Compulsory Supervision Order was terminated.  The Permanence Order further provided that there should be only indirect contact between TRW and his parents twice a year by way of letter.  The Respondents last had contact with TRW on 19 May 2015.  HSW and TRW remain living together with the same foster carers.  Production 6/9 is an accurate copy of Lord Brailsford’s judgment in TRW’s case. 

 

8.         At or around 01.15 on 28 December 2012, police officers attended at the address of the Respondents.  Police officers contacted the First Respondent’s step father, DM, who agreed to attend at the home.  DM took TRW to his and the First Respondent’s mother’s house.  The police recorded their attendance in an Association of Chief of Police Officers in Scotland – Getting it Right for Every Child – Child Concern Form. 

 

9.         Social workers carried out a visit to the Respondents’ home on 28 December 2012 and it was agreed that TRW return to their care.  TRW returned to the care of the Respondents on 28 December 2012. 

 

10.       On 29 December 2012, the First Responded telephoned ‘999’ seeking the attendance of an ambulance for TRW.  On admission to St John’s Hospital, TRW was floppy and unresponsive.  A CT scan revealed cerebral bleeding.  TRW was transferred to the Royal Hospital for Sick Children, Edinburgh.  Production 6/14 is a Report of a Joint Paediatric Forensic Examination and the findings and opinions of the authors, Dr Rachel Miller and Dr Joan Ritchie. 

11.       Medical investigations to find an organic cause for TRW’s injuries revealed no abnormality. 

 

12.       A Child Protection Order was sough and granted on 10 January 2013.  TRW was discharged from hospital to foster carers on 10 January 2013.  A Children’s Hearing held on 14 January 2013 continued the Child Protection Order without variation.  The Respondents were in attendance at the said Children’s Hearing. 

 

13.       At a Children’s Hearing held on 22 January 2013, Grounds of Referral were put to the Respondents.  A warrant was issued authorising that TRW be kept in a place of safety with a condition that he had contact with his parents a minimum of twice per week to be supervised by the Petitioner.  The Respondents were present at the said Children’s Hearing. 

 

14.       At an Initial Protection Case Conference held on 28 January 2013, TRW was registered on the Child Protection Register.  Neither Respondent attended the Conference. 

 

15.       On 6 February 2013, the Respondents met with Karen Love, Senior Social Worker, employed by the Petitioners, who had been asked by TRW’s Social Worker to carry out a Parenting Capacity Assessment of the Respondents.  This was an initial meeting where Ms Love advised the Respondents of her role in undertaking the Assessment. 

 

16.       At a Children’s Hearing held on 11 February 2013, a warrant was issued authorising that TRW be kept in a place of safety with a condition that he had contact with his parents a minimum of twice per week, supervised by or on behalf of the petitioner. 

 

21.       A Pre-Birth Protection Case Conference was held in relation to HSW on 26 August 2013.  The Conference decided that a Child Protection Order would be applied for following HSW’s birth.  Production 6/20 is a true and accurate minute of the said Conference and the child’s Protection Plan. 

 

22.       Grounds of Referral relating to TRW were established at Livingston Sheriff Court on 23 August 2013, without evidence being led. 

 

26.       On 15 November 2013, a Child Protection Order was granted at Livingston Sheriff Court in respect of HSW.  The order directed that contact between HSW and her parents be at the discretion of the Petitioner’s Social Work Department and to be supervised by the Department.  Production 6/22 is a true and accurate copy of the said Order. 

 

27.       On 19 November 2013, a Children’s Hearing decided to continue the Child Protection Order unvaried.  Production 6/23 is a true and accurate copy of the Decision and Reasons for the Decision. 

 

28.       On 26 November 2013, a Children’s Hearing made an Interim Compulsory Supervision Order in respect of HSW, with a requirement that HSW would have contact with her parents a minimum of once per week, supervised by or on behalf of the Social Work Department of the Petitioner’s.  The First Respondent accepted the Grounds of Referral and Statement of Facts in support.  The Second Respondent did not attend the said Hearing.  Production 6/24 is a true and accurate copy of the Order, Decisions reached and Reasons for the Decisions. 

 

29.       On 12 December 2013, a Children’s Hearing made a further Interim Compulsory Supervision Order, with the same requirements as on 26 November 2013.  Production 6/25 is a true and accurate copy of the Order, Decisions reached and Reasons for the Decisions. 

 

30.       On 27 December 2013, at a Children’s Hearing made a further interim Compulsory Supervision Order, with the same requirements as on 26 November 2013.  Production 6/26 is a true and accurate copy of the Order, Decisions reached and Reasons for the Decisions. 

 

31.       On 14 January 2014, a Children’s Hearing made a further Interim Compulsory Supervision Order, with the same requirements as on 26 November 2013.  Production 6/27 is a true and accurate copy of the Order, Decisions reached and Reasons for the Decisions. 

 

32.       On 17 January 2014, Grounds of Referral were established at Livingston Sheriff Court without evidence being led.  The Grounds established were that in terms of Section 67(2)(d) of the Children’s Hearings (Scotland) Act 2011.  HSW is, or is likely to become, a member of the same household as a child in respect of whom a Schedule 1 offence has been committed.  Production 6/28 is a true and accurate copy of the established Grounds. 

 

33.       On 6 February 2014, at a Children’s Hearing, HSW was made subject to a Compulsory Supervision Order, with requirements that she resides with a named foster carer and have contact with her parents a minimum of once a week, supervised by or on behalf of the Social Work Department of the Petitioner’s.  Production 6/30 is a true and accurate copy of the Order, Decisions reached and Reasons for the Decisions.  

 

34.       On 24 February 2014, a Child Protection Review Case Conference was held.  It was decided by the Conference that HSW’s name would be removed from the Child Protection Register.  Neither Respondent attended the Review Conference. 

 

35.       A Children’s Hearing was held on 7 October 2014.  It was the recommendation of the child’s Social Worker to the Hearing that contact between HSW and her parents be terminated.  The Hearing varied the Compulsory Supervision Order by making a requirement that HSW would have no contact with either Respondent.  Both Respondents attended the said Hearing.  Production6/33 is a true and accurate copy of the varied Order, Decisions reached and Reasons for the Decisions.  The First Respondent appealed the decision to terminate contact to the Sheriff at Livingston Sheriff Court.  The appeal was heard on 5 December 2014. 

 

36.       On 14 January 2015, a Children’s Hearing varied HSW’s Compulsory Supervision Order by requiring that HSW would have no direct contact with either Respondent.  The Hearing also provided advice to the court that a Permanence Order with Authority to Adopt should be granted.  Production 6/38 is true and accurate copy of the Varied Order. 

 

37.       An appeal was lodged on behalf of the First Respondent against the decision of the Children’s Hearing on 14 January 2015.  On 20 March 2015 that appeal, inter alia, challenged the Children’s Hearings decision in respect of contact between the First Respondent and HSW.  That appeal was upheld on 20 March 2015.  The principal reporter was directed to arrange a Children’s Hearing to reconsider HSW’s case.  Production number 7/1 for the First Respondent is a true and accurate copy of the note issued by Sheriff Hammond at Livingston in respect thereof.

 

38.       On 13 May 2015, a Children’s Hearing continued HSW’s Compulsory Supervision Order, requiring that HSW would have no contact with either respondent.  Production 6/39 in a true and accurate copy of the order. 

 

39.       Since the birth of HSW, no formal Parenting Assessment has been commissioned by West Lothian Council Social Work Department in relation to the prospect of rehabilitation of HSW to the Respondent’s care. 

 

The disputed issues:  evidence and conclusions
(a) How the child TRW came to be injured while in the care of the respondents

[11]     As already indicated, although the issue of whether TRW sustained serious non‑accidental injuries whilst in the care of the respondents was previously litigated, it was the subject of detailed medical evidence contested particularly on behalf of the first respondent in the proof before me.  In the petitioner’s case evidence on this issue was provided by affidavit and supplemented by oral evidence from a Dr Rachel Miller and Dr Alastair Wilkinson.  Dr Joan Ritchie who at the material time was an associate specialist in paediatrics based at St Johns Hospital in Livingston and had conducted the joint paediatric forensic medical examination on TRW together with Dr Rachel Miller in January 2013 had sworn an affidavit which was lodged by the petitioner.  However, Dr Ritchie was ultimately called in the first respondent’s case.  Also, while Dr Wilkinson was led as the first witness in the petitioner’s case he was recalled to give evidence as part of the first respondent’s case, a matter to which I will return.  The respondents both gave evidence and insofar as their evidence related to this first disputed issue of the injuries sustained by their TRW I will refer to it in this section. 

[12]     TRW was in the care of the respondents between his birth on 7 November 2012 and 29 December of that year.  There were no concerns on the part of the petitioner’s Social Work Department in relation to the child for the first few weeks.  There was one incident on 29 November 2012 when police officers had attended at the respondents’ home and had some concern about the first respondent having consumed alcohol.  The police became involved again in the early hours of 28 December 2012 when they attended at the respondents’ home following a “dropped 999 call” to the emergency services.  I return to this issue in more detail below.  However in essence, CM was found by the police to be intoxicated.  They were concerned not to leave the child in her care as a result while they detained MW for questioning in respect of a possible domestic altercation.  TRW was removed on that date and taken to the care of his maternal grandmother and step‑grandfather.  He returned to the care of the respondents during the morning of 28 December.  So far as the history given to the medical personnel is concerned, the parents noticed at about 5pm on 29 December 2012 that the child was floppy and unresponsive, he having been in their care from 9.00am the previous day.  TRW was removed to St John’s Hospital, Livingston by ambulance.  Initially the diagnosis of infection, possibly meningitis, was made.  However during his admission TRW suffered a number of seizures and  was transferred to the Royal Hospital for Sick Children in Edinburgh where he had a head MRI which showed a left frontal subdural haemorrhage and blood in the posterior fossa.  A skeletal survey followed which demonstrated the possibility of two left rib fractures (10 and 11) and a crush fracture of the vertebrae at L2 (lower back).  As a result of that background Dr Rachel Miller and Dr Joan Ritchie conducted a joint medical examination of TRW on 4 January 2013.  The report of that examination (6/14 of process) was spoken to by both Dr Miller and Dr Ritchie in evidence.  Dr Wilkinson reviewed the radiological findings and spoke to his opinion.  The conclusion of the joint medical examination together with follow up X-rays taken on 16 January 2013 was that TRW had three rib fractures – two of the 11th rib one of the 10th rib posteriorly, together with a crush fracture of the second lumbar vertebra, (the middle to lower back), and a subdural haemorrhage with bleeding in three compartments of the brain, two upper compartments and the posterior fossa.  Initially, there was thought to be bleeding in only two compartments but Dr Wilkinson reviewed the findings of the MRI scan and found that there was blood in all three areas.  In essence, the opinion of Drs Miller, Ritchie and Wilkinson was and is to the effect that it is likely that the child TRW sustained non‑accidental injuries.  The rib fractures and cerebral haemorrhage were consistent with shaken baby syndrome.  The vertebral fracture was something outwith the clinical experience of Drs Ritchie, Miller and Wilkinson but Dr Wilkinson expressed the view that the most likely explanation was of a “slamming” injury where the baby was slammed down on to his buttocks on a hard surface. 

[13]     The contentious issue at proof was whether TRW’s injuries could have been caused by an intoxicated adult holding the baby and falling with him down on to a marble fireplace.  The first respondent had put this forward as a possible explanation for the injuries at different times during the progress of decisions being taken in relation to her children.  I will deal below with the issue of explanations put forward by the respondents and changes to their positions on this matter.  For present purposes it is sufficient to examine what credence the medical professionals gave to this at proof as a likely or even plausible explanation for some or all of the injuries to TRW.  Dr Wilkinson gave evidence on the first full day of proof.  When the possible scenario of an intoxicated adult holding the baby and falling with him onto a marble fireplace was put to him, Dr Wilkinson expressed the view that while it was possible that one of the injuries found on TRW could be caused that way he felt it was unlikely that that three separate injuries be caused by a single fall.  He regarded the scenario as “entirely implausible” as an explanation for all injuries suffered by TRW.  So far as the L2 lumbar fracture was concerned he made clear that he had never before seen a lumbar fracture of any kind in a normal, otherwise healthy, baby of such a young age.  He thought the likely mechanism was that the baby was held by the chest and slammed down on to a firm surface.  As he had no direct experience of such an injury he had relied for his views on a paper and a lecture in Budapest, given by Dr Paul Kleinman, a world authority in the area, who he recalled had given as a possible mechanism for such an injury the type of slamming he had described.  In summary, Dr Wilkinson’s view was that it was almost inconceivable that the injuries to TRW were sustained accidently.  He regarded them as pathognomonic, namely that taken together they could mean only one thing, namely non‑accidental injury.  Under cross-examination Dr Wilkinson reiterated that he regarded the scenario of the injuries being caused by an adult falling with the baby in her arms to be so unlikely as not to be a plausible explanation for all of the injuries.  He explained that the general degree of force required for rib fractures was the full strength of adult hands compressing the chest and was not something that could happen in normal parenting.  Typically such injuries occur when the child is shaken in anger or frustration.  As far as the intracranial bleeding was concerned Dr Wilkinson had seen accidental intracranial bleeding in no more than five instances in more than 20 years as a consultant radiologist and never in all three compartments of the brain. 

[14]     Dr Wilkinson was recalled on the motion of the first respondent and gave further evidence on the 15th day of the proof.  By that time counsel for the first respondent had recovered papers from the Budapest meeting in June 2013 at which Dr Paul Kleinman spoke and which had been mentioned by Dr Wilkinson in his initial evidence.  Extracts from two papers submitted and/or delivered by Dr Kleinman together with an abstract from the conference were lodged.  Dr Wilkinson had also presented at the conference.  The background to his reading the main Kleinman paper (No 7/37 of process) was that Dr Wilkinson had been aware of spinal fractures in non-accidental injury cases for many years.  He had referred to the conference in evidence because it was the most recent discussion of the topic that refreshed his memory.  Dr Wilkinson was challenged about earlier evidence that spinal fractures were rare in young children with suspected non‑accidental injury.  Dr Kleinman’s paper appeared to have related to the association of spinal fractures with intracranial injury.  Dr Wilkinson explained that so far he could see the paper had a twofold purpose.  First to examine the prevalence of vertebral fractures in children who had suffered non‑accidental injury and secondly to examine any association of such fractures with intracranial injuries.  The paper differentiated between children under the age of two and over the age of two in relation to the prevalence of such injuries.  Dr Wilkinson accepted without hesitation the findings of Dr Kleinman’s research paper which included  that patients with spinal fractures in the research sample were significantly more likely to also have intracranial injuries than those without spinal injury.  He did not disagree that the paper had found an association of the two injuries.  He pointed out that there was no inference to be drawn from the paper one way or the other as to whether the two injuries had been sustained in one or more incidents.  A table appended to the paper of Dr Kleinman’s research was gone over in some detail with Dr Wilkinson.  In summary, that table tabulated the 14 cases considered by Dr Kleinman’s research.  Two of the cases (cases 8 and 10) related to children who were found to have, amongst other injuries, L2 fractures and he noted that case 8 related to an eight month old female and case 10 related to a 15 month old male.  He pointed out that the mechanisms of injury are different in young babies.  Another paper of Kleinman (No 6/36 of process) considered rib fractures and gave the statistic of 71% as the probability of abuse having taken place where rib fractures were found.  Dr Wilkinson considered the probability to be even higher than that.  Rib fractures are very highly associated with abuse in young children.  The rib fractures to TRW were about 1 to 2 cm away from the spine and 2.5 to 3 cm away from the L2 vertebra.  Each vertebral body is about 1.5 cm on a baby of that age.  He agreed that the L2 fracture found in TRW was consistent with the child being gripped forcefully at the chest followed by deceleration and the child impacting on a hard surface.  He disagreed that the same mechanism could account for the intracranial injury as well.  When it was put to Dr Wilkinson that Dr Kleinman had concluded that vertebral fractures were not as rare as is perceived, Dr Wilkinson pointed out that the Kleinman study included a large number of older children.  Further, one could not ignore that the cohort of children in the Kleinman study were all subsequently subject to child protection measures in consequence of their having sustained non-accidental injury and one died as a result of the injuries inflicted.  Dr Wilkinson disagreed with the suggestion that it was likely that squeezing the baby’s chest while falling could properly account for all of the injuries.  While it was just conceivable that it could cause bleeding in the three compartments of the brain it was unlikely.  He maintained that it was extremely unlikely that all of the injuries to TRW occurred in one episode.  He had seen hundreds of babies whose parents had fallen with them in their arms and he had never encountered the constellation of injuries found in TRW.  It was put to Dr Wilkinson that the only case Kleinman had examined that involved a “slamming incident” was case 9, a six months old male baby who had been found to have intracranial injury and a fracture of T12.  He agreed that those were the reported circumstances of case 9 in the paper where the child had presented with respiratory arrest and was very seriously ill.  However, Dr Wilkinson had heard of and used the term “slamming injury” before reading Dr Kleinman’s paper and his use of that expression did not relate to any specific case study in the Kleinman paper.  He reiterated that the degree of force required to result in intracranial bleeding in all three compartments was “huge”.  The mechanism put to him of an adult pacing the room drunk holding the baby tightly by the chest and falling did not sound with him as a mechanism that would cause such bleeding.  Ultimately, having reflected on the papers from the Budapest conference, Dr Wilkinson did not depart from his opinion in this case. 

[15]     Dr Rachel Miller gave evidence only in the petitioner’s case.  She spoke to her affidavit number 28 of process and to the findings of the joint medical examination she had conducted with Dr Ritchie.  She was very clear that TRW,  at the time of the injuries being sustained, would have screamed and been inconsolable due to the pain inflicted.  She did not profess to be an expert in relation to the different ways in which the injuries may have been sustained.  However, she agreed that the injuries were all clearly suggestive of non-accidental injuries.  It was the combination of the various injuries that gave rise to suspicion.  In the absence of a coherent explanation non-accidental injury was the inference drawn.  TRW was otherwise physically well so there was no medical explanation for the injuries.  The opinion she had expressed, together with Dr Ritchie, that their radiological findings were consistent with shaken baby syndrome, was made in a context of there being no suggestion of trauma having occurred in the form of an impact injury.  Dr Miller indicated she would defer to Dr Ritchie on issues of causation of the injuries.  Dr Miller had taken a certain amount of the medical history direct from the parents. 

[16]     Dr Joan Ritchie was called in the first respondent’s case.  She spoke to findings of the joint medical examination she carried out with Dr Miller.  She was shown a letter she had written to the respondent’s family GP on 7 January 2013 (7/34 of process) in which she concluded that the injuries to TRW were most likely the result of shaking the baby at any time up to 72 hours before his admission to hospital and recorded also the unexplained fracture of the lumbar vertebra.  Dr Ritchie agreed that it could not be said that incident had necessarily happened immediately before the child became unwell as it could take a period of time before he became floppy and unresponsive and ultimately acutely unwell.  She would normally expect a child with injuries such as the rib fractures and the cerebral haemorrhaging to be observed as becoming increasing fractious or unusually sleepy or that there would be some other change in behaviour.  When the possible scenario of the mother picking the child up, pacing up and down, holding and gripping the child, possibly squeezing him was put to her Dr Ritchie agreed that it was possible that such an incident could cause the rib fractures if the mother was squeezing the child’s chest.  She also agreed that it was possible that if the mother was pacing up and down and holding the baby without controlling his head it might possibly have caused the brain injury.  The baby was found to have head lag on admission.  Under cross‑examination by counsel for the petitioner Dr Ritchie made clear that she was not departing from her opinion that the injuries to TRW were likely to have been caused non-accidently.  She remained of the view that her findings were consistent with shaken baby syndrome.  So far as the lumbar fracture was concerned that was not her area of expertise and she would defer to Dr Wilkinson’s opinion on it.  She would defer to Dr Wilkinson particularly on the likelihood or otherwise of the spinal fracture being caused by the mother falling with the baby in her arms.  She agreed with the evidence of Dr Miller that the child would be screaming or sobbing uncontrollably when such injuries were caused.  She confirmed that she had never seen all three types of injuries found in TRW – the rib fractures, the cerebral haemorrhages and the vertebral fracture in a single child.  She did not regard it as likely that all three injuries be accounted for in a single fall.  She also expressed the view that a baby’s ribs would need to be squeezed in a significant way before they would fracture.  She agreed that gripping a baby and falling with him while drunk could not be described as normal handling by a parent and that such actions, whilst not deliberate as such might also described as non‑accidental. 

[17]     In summary, all three medical professionals who gave evidence adhered to their previously held opinions that the injuries sustained by the child TRW were likely to have been caused non-accidentally.  The precise mechanism of injury could not be given with any certainty in the absence of plausible explanations being given by the parents.  However the rib fractures and intracranial bleeding were highly suggestive of shaken baby syndrome.  Only Dr Wilkinson had some professional knowledge and understanding of vertebral fractures in young babies albeit that he had no direct experience of them.  His view of the literature and understanding from papers given at conferences informed his conclusion that a fracture of that type could probably only be explained by the baby being gripped by the chest and then slammed down on to the buttocks.  The thrust of the medical evidence was to the effect that the injuries found on TRW, particularly when taken together, were not the sort of injuries likely to be found on young children accidently.  The degree of force required to cause them was particularly significant. 

[18]     I turn now to explore in more detail the suggestion that the first respondent could have caused the injuries to TRW through the way she handled him and by falling while she was intoxicated.  The two officers who attended the respondents’ home in the early hours of 28 December 2012 were called to give evidence.  The first police constable, Leslie Hunter, spoke to his affidavit, number 6/48 of process and he recalled the incident although his memory of specific details was not quite as clear as that of his colleague PC McRandle.  PC Hunter recalled that when he and his colleague arrived at the home CM was upset, crying, pacing up and down.  He remained with her while his colleague spoke to MW in the kitchen of the property.  He was sufficiently concerned about CM’s behaviour that he called his colleague through from the kitchen.  He agreed that he could have left CM alone with the baby TRW while he did so although he didn’t think that would have been for more than a minute or two.  He thought he would have noted it if he had heard the baby screaming.  Under cross-examination he accepted that CM was intoxicated, her speech was slurred and that she was agitated.  His recollection was that he had not left CM and the baby in the house alone but had waited until another colleague and the baby’s (step) grandfather arrived.  He accepted, however, that he might have met them in the street.  The grandfather had come to take the baby away as CM was in no proper state to have a child in her care.  PC Hunter had no real concerns at the time for the way in which CM was holding the baby although her attention was not fully on the child and was concentrated in expressing her anger and frustration at the police who indicated they were going to remove MW.  PC Scott McRandle also gave evidence about the incident and spoke to his operational statement number 6/49 of process.  PC McRandle had a good memory of the incident because he was very new in service at the time and the situation was one of potential seriousness.  He recalled staying in the kitchen with MW when he and PC Hunter arrived.  His colleague then called him through to the sitting room of the property.  He had heard a raised voice.  When he went through he saw CM holding the baby.  She seemed in a heightened emotional state, upset and under the influence of alcohol.  PC McRandle was quite clear that CM was not left on her own with the baby either by him or his colleague.  MW was taken to the police van by PC Hunter and PC McRandle stayed in the house with CM.  He didn’t leave until a colleague (PC Wilkins) and CM’s stepfather arrived.  He didn’t hear the baby scream and would have recalled that as he felt it would have changed the whole dynamic.  PC McRandle considered it was quite a big step to contact another family member and have them come to take care of a very young child and so he had taken detailed notes of the incident.  He was clear that CM was too drunk to look after the child.  He did see her pacing about with the baby in her arms.  The baby was quiet but he could not say for sure whether he was asleep.  PC McRandle also recollected that after the decision was taken that the baby must be taken to the grandparents’ home, he watched CM put the baby in a moses basket in the sitting room and then she went through to the kitchen with him to have a cigarette.  When it was put to him that MW’s position was that it was he who had taken MW down to the police van outside and had to move it to nearer the property with him in it, PC McRandle pointed out that he wasn’t qualified to drive a police van at the time of the incident.  He had no recollection of having left the house at any time between arriving and final departure.

[19]     Each of the respondents gave an account of this incident.  The first respondent confirmed that she and MW had agreed on 27 December 2012 that she would drink alcohol that day and MW would have care of the baby.  She was adamant that she did not start drinking until MW was back in the house having been out for a while.  She started drinking beer and when she became angrier she went onto whiskey.  She was angry because a neighbour had come to the door earlier and claimed that the respondents’ dog had tried to bite her.  She didn’t remember calling the police but she did have some recollection of them attending at the front door of the property.  She had no recollection of being as aggressive as the police officers had indicated in evidence or of pacing up and down with the baby.  She had no reason to dispute the accounts given.  CM did recall crying a lot and being angry and not wanting MW to leave.  The police record of the dropped 999 call was put to her which recorded that there had been a baby crying in the background.  She did not remember that.  She described herself as “very argumentative and ridiculously drunk.”  In short, the first respondent had no recollection of calling the police, the detail of the police attendance at the property or the baby being removed from her.  When MW returned to the home at 6am on 28 December she was still intoxicated.  She had continued to drink after TRW was removed.  She woke up to find the whiskey bottle (quarter bottle) empty, an empty wine bottle and empty beer cans.  When PC Hunter stopped her in the street in relation to a separate matter on 14 January 2013 she had no recollection of having met him before and didn’t recognise him. 

[20]     The first respondent claimed to have told Marion Duffy, the senior social worker responsible for the case, that she may have fallen with TRW when drunk as early as 8 January 2013 although the first record of it in the social work records is on 22 January 2013.  She had some vague recollection of tripping on a mattress which was in the middle of the living room floor when drunk but she had no specific of TRW being in her arms at the time.  She recalled having a painful wrist the following morning.  She had no recollection of hearing TRW screaming at any point during the course of the evening.  She thought there was a possibility that she tripped or fell with TRW when she was drunk.  She accepted that she had given a different account at the proof before Lord Brailsford relating to TRW.  At that time she blamed her mother for TRW’s injuries.  She confirmed that she no longer seeks to blame her mother for what happened to the baby and considers it more likely that she caused the injuries to TRW because of her drunken state in the early hours of 28 December 2012.  She had no recollection of any change of behaviour on the part of TRW on either 28 or 29 December until late afternoon on the latter date.  She described 29 December as a relaxed day during which she and MW watched films while TRW slept.  Under cross-examination by counsel for the petitioner, various inconsistencies between her current position and those given previously to the court in the form of affidavits were put to her.  In particular, in an affidavit number 6/10 of process given in November 2014 she had not accepted that she was severely intoxicated in the early hours of 28 December 2012.  She claimed at that time to have drunk one glass of wine, one whiskey and coke and one can of beer.  She said that was “wrong” and given in a context where she didn’t know the affidavit would be used in court.  She now accepts that she was a lot drunker on the date in question than she “made out” earlier.  Paragraph 19 of her affidavit from 3 November 2014 states: “I didn’t have any recollection of falling and still don’t”.  The first respondent accepted that that remained her position but following discussions with MW she was now convinced that this was the most likely explanation.  An affidavit she provided earlier in these proceedings (number 26 of process) was put to her.  In relation to whether she had fallen with TRW it states: “I must make clear I have no specific recollection of doing so, and I quickly confirmed that wouldn’t have been the case … MW said I didn’t have sole care of TRW …” at the relevant time.  Her assumption that she had fallen was primarily because of the painful wrist she had the following day.  The first respondent also claimed that her mother had told her when TRW was returned to her care on the morning of 28 December that the baby had been projectile vomiting.  Neither the first respondent’s mother nor her sister who had apparently also been present was called to give evidence.

[21]     In his evidence, the second respondent said that he still considered “no one could be ruled out” in relation to the cause of TRW’s injuries.  He refused to rule out the possibility that CM’s mother and stepfather had caused the injuries.  He regarded CM’s position that she may have fallen with TRW in her arms as a possibility.  He gave detailed evidence of the incident in the early hours of 28 December.  He claimed that he was in control of TRW because CM was drinking although at other points in his evidence said that he had left her on her own in the room with the baby for periods.  Nothing untoward had occurred according to him prior to the police arriving and everything was calm until they entered the property.  His evidence was that one officer had taken him out of the house to the van but that the second officer came out to the van thereafter and spoke with him.  He had not seen CM handling TRW in any way that might harm him.  An affidavit number 6/11 of process sworn by the second respondent was put to him.  In particular paragraph 4 of that affidavit states in relation to the level of alcohol consumed by the first respondent on 27/28 December 2012 that she “had had a couple of drinks …”  The second respondent claimed that he hadn’t known at the time how much she had had to drink.  Importantly, he and the first respondent gave directly contradictory accounts about  from whom the detail of the first respondent’s falling had emerged.  CM had claimed she remembered nothing specific of any trip or fall.  MW said in terms that CM had (recently) described to him where she had fallen and that it had been on the fireplace. 

[22]     Marion Duffy, senior social worker and Christine Robertson, social work manager, were both asked about the timing and details of the possible “fall explanation” being given to them in early 2013.  Much was made of the fact that the Social Work Department did little with the information other than tell CM that she must inform the police.  In my view, nothing of significance turns on this approach as the police were duly informed of the possible explanation being given and the possible explanation was noted in all relevant reports for children’s hearings and other decision making stages in relation to the case, against a background of the first respondent’s relationship with alcohol being a concern. 

[23]     Taking all of the evidence led on this issue into account, there is, in my view, no reliable evidence at all from which I can conclude that CM injured TRW by gripping him too tightly when she was pacing the room while the police were there on 28 December 2012 or that she fell with him in her arms.  She had no direct evidence to give on that and the evidence of the police and the second respondent is to the effect that if she was left alone with the baby at all, it was for very short periods during which nothing dramatic was heard.  In light of the medical evidence that a baby sustaining these kind of injuries, particularly the fractures, would be screaming and inconsolable when they occurred, it is implausible that the first respondent fell with the child when intoxicated that night but managed to collect herself and the baby to the extent that nothing was noticed by anyone present in the house.  By the stage of submissions in this case the suggestion had moved slightly to the possibility of the fall having taken place before the police arrived, perhaps when the second respondent was in the kitchen and the first respondent was in the living room.  However, again there was no evidence of any crying or screaming either on the part of the first respondent or TRW prior to the police arrival.  There was some sort of argument or altercation between the parties before the police arrived that led to the dropped 999 call.  The record of that call indicates there was the sound of a baby crying but not of screaming or inconsolable distress. In any event, if anything had happened at that point the second respondent was present and sober and would have seen it.  I take into account also that the medical evidence already referred to was to the effect that it was unlikely that the injuries to TRW could have been caused by the first respondent gripping the baby when pacing up and down and then falling with the baby in her arms.  No contradictory medical evidence was led. The high point for the respondents’ position was that Dr Ritchie thought it possible, though still unlikely, that such behaviour by a drunk parent could cause the injuries found on TRW.  In short, there is no clear and consistent account to support the suggestion now put forward by the first respondent.  It is implausible on the evidence led.  I find that on the balance of probabilities TRW suffered non-accidental injuries while in the care of the respondents CM and MW, the specific mechanism of which they have never explained. 

 

(b) Whether, regardless of the specific mechanism causing TRW’s injuries, the respondents or either of them acted in a culpable and reckless manner in their care of TRW

 

[24]     I can deal with this matter fairly shortly.  Although I have concluded that the first respondent gripping the child while intoxicated and falling with him when drunk is not a likely or even plausible explanation for his injuries (or in the event that I am wrong to conclude that it is not) consideration still has to be given to whether any criticism can be made of the Social Work Department’s conclusion that it was in any event unsafe for TRW to be in their care.  Marion Duffy, senior social worker, was very clear in her evidence that even without the opinion from the medical professionals that the injuries to TRW were likely to be non-accidental, she had concerns about his having been injured while in the care of the respondents.  There were real issues about the first respondent’s alcohol abuse at the time.  The father MW was known to smoke cannabis.  The parents did not cooperate or fully engage with the Social Work Department after TRW was removed from their care.  These were all risk factors that justified Social Work Department intervention at the time.  Had I concluded that it was likely or even plausible that TRW’s injuries were caused by the first respondent gripping him tightly and falling with him while intoxicated, I would have found that she and the second respondent failed to discharge their parental responsibilities to TRW in a responsible and effective manner.  They were reckless with his safety.  He was a seven week old baby and they were first time parents.  The decision that one of them would drink to excess within the home is not illustrative of responsible parenting.  In any event, the situation clearly developed into one where the first respondent did have care of the baby for certain periods that evening.  She was so intoxicated that she can recall next to nothing of events and the police were sufficiently concerned that they made arrangements to have the baby removed.  The thrust of the respondents’ case on this point seemed to be that it was important to know whether the injuries to TRW were caused accidently or non-accidently.  However Dr Ritchie agreed that the scenario put in relation to a drunken mother gripping the baby and then falling with him, even if likely, was not really one that would be described as accidental.  If I depart from the nomenclature of accidental and non-accidental injuries, I find that the actions of the respondent when TRW was in their care as a young baby did not keep him safe.  He was not handled in an appropriately gentle manner.  The consequences of the way in which he was parented by the respondents were that he sustained the injuries described.

 

(c)  The respondents’ interaction with the Social Work Department after TRW was accommodated in January 2013 and the approach of that department to accommodating HSW at birth

 

[25]     The petitioner led evidence on this matter from Marion Duffy the senior social worker, her manager Christine Robertson, Karen Love, whose parenting classes were attended by CM and Kate Mitchell, a social worker based in Broxburn.  These witnesses spoke to their affidavits and were cross examined.  Marion Duffy was clear that there were difficulties in the respondents’ engagement with the Social Work Department from early 2013.  MW in particular was hostile and aggressive.  He and the first respondent asked for a change of social worker but, having considered matters, Christine Robertson decided that it would be preferable for Marion Duffy to continue to be involved.  Kate Mitchell became involved in observing and supervising contact between the respondents and TRW and providing advice to them on parenting.  An assessment was carried out in relation to the respondents’ parenting abilities in that context.  Kate Mitchell found that the respondents often did not take on board parenting advice.  They would appear to listen to what they were told about how best to handle and care for a baby but would make the same mistakes time and time again.  These were on important matters such as MW having to be regularly reminded about supporting the baby’s head.  Kate Mitchell found that both MW and CM had tempers and could be quite confrontational when advice was provided.  While the respondents regarded themselves as having a better working relationship with Kate Mitchell than with Marion Duffy, Ms Mitchell was of the same view as Marion Duffy in relation to their aggression.  Further, Ms Mitchell expressed the view that the respondents’ actions did not reflect commitment to TRW.  They missed so many contact sessions, looked after children reviews and core group conferences despite being invited, that they were not involved in decisions about TRW’s care.  They also failed to attend medical appointments in relation to TRW.  Importantly, the respondents failed to accept referrals to drug and alcohol services so that the Social Work Department’s concerns about the first respondent’s alcohol use and the second respondent’s cannabis use could be addressed and if possible allayed.  In evidence, the first respondent stated that she had refused to take up the referral to drug and alcohol services because “I am not an alcoholic”.  She could not, or would not, see the connection between such a referral and care of her son.  Her position was that she felt the Social Work Department were accusing her of being an alcoholic and her response to that was to fail to cooperate.  For his part, the second respondent maintained that while he smoked cannabis, he did not do so in the presence of the child or in the house where the child was and that he did not regard his cannabis use as a problem.  The respondents seemed either unable or unwilling to grasp that, given the circumstances in which TRW was removed from their care, the Social Work Department simply could not recommend that any child live with them until these risk factors were satisfactorily reduced or negated.  The respondents’ lack of engagement and cooperation with the Social Work Department during this period was so significant that it affected the Department’s ability to complete a formal parenting assessment in respect of TRW.  By about April 2013 it was known that the first respondent was pregnant again.  The Social Work Department could have no confidence of any change in the parents’ behaviour.  As Dr Robinson, an extremely experienced social work professional and called as an expert in the first respondent’s case expressed it, “the lack of engagement itself becomes the risk”.  Numerous examples were given by the Social Work Department witnesses in relation to the respondents’ lack of engagement during this period.  Marion Duffy’s report number 6/8 of process at paragraph 40 records that at a core group meeting relating to TRW on 21 August 2013, MW played with his mobile phone throughout the meeting.  He then walked out stating that he would not be attending a further core group.  He subsequently texted Marion Duffy stating that he had made the decision not to have any more involvement with social work, that he would not be attending any further meetings apart from the pre-birth case conference arranged for the then unborn child HSW. 

[26]     Against this background the petitioner applied for and secured a child protection order the day after the birth of HSW and she has been accommodated since then as outlined in the undisputed facts section.  She has had the benefit of living with her full sibling in foster care since that date. 

[27]     Neither of the respondents disputed that they had behaved inappropriately and had failed to engage with the Social Work Department following TRW being accommodated.  Each expressed some contrition in relation to that but both were adamant that, had the Social Work Department agreed to a transfer of the case to a new social worker they might have been better able to engage and matters could have progressed differently.  However, Dr Anna Christina Robinson said in terms that she could not conclude that  a change of social worker would have made a great deal of difference.  Dr Robinson had no particular criticism to make of the approach of the Social Work Department at all, until the point at which HSW was born.  At that point, she considered that a proper assessment should have been attempted. 

 

(d) The absence of a parenting capacity assessment/risk assessment after the birth of HSW
[28]     The accepted national model for risk assessments in relation to parents and children by social work services is commonly known as GIRFEC.  This model, a mnemonic  for “Getting It Right For Every Child”, looks at a number of aspects of parenting capacity and skills with a particular emphasis on whether parents have insight into the concerns about their parenting and whether they are willing to change.  Dr Robinson gave evidence about this and spoke to her principal report No 7/28 of process.  She explained that a full parenting assessment takes about 12 weeks.  She was quite clear that the Social Work Department in this case could not be criticised for having serious concerns about the attendant risks of placing a new baby into the respondents’ care having regard to the background of TRW having sustained injuries that the medical profession considered were non-accidental.  However, she would have expected some attempt to have been made to carry out a structured risk assessment after HSW was born and she spoke to Marion Duffy about why this was not carried out or even attempted.  Marion Duffy clarified to her and in evidence to the court that there were so many identified risk factors at the material time that, together with the parents’ complete lack of engagement with the Social Work Department, rendered it clearly unsafe to contemplate HSW being in their care from birth.  The situation after HSW was born did not improve.  MW secured employment and as a result attended contact with his daughter only very occasionally.  The first respondent CM appears to have suffered post natal depression and been prescribed anti-depressant medication for that.  However, she decided, unilaterally, to cease taking that medication and accepted that she had not sought medical advice since then.  She attended only about 50% of the contact available to her in respect of HSW.  In evidence she said that she did not want to attend for contact after HSW was born because she knew a member of the Social Work Department, probably Marion Duffy, would be present.  She also said that she felt the situation was hopeless and that the Social Work Department had made up their minds as to what was going to happen.  When a referral to Barnardo’s was suggested by Marion Duffy, CM failed to take up the initiative because she said she felt this was another attempt to ask her to address her alleged alcohol addiction. 

[29]     In my view, the decision of the Social Work Department not to undertake a formal risk assessment in relation to potential care of HSW by the respondents must be understood in the context of the chronology of events.  The short period between the births of the two children is significant.  TRW was accommodated by the local authority by January 2013.  The first respondent was pregnant by March of that year and by April the Social Work Department were well aware of that.  It is clear from the undisputed facts in this case that decisions about what would happen to HSW at birth were taking place contemporaneously with decisions being taken about TRW’s future care.  For example, a pre-birth protection case conference was held in relation to HSW on 26 August 2013.  Three days previously, grounds of referral relating to TRW were established at Livingston Sheriff Court (23 August) without evidence being led.  Those grounds of referral included a statement that TRW had sustained non-accidental injuries when in the care of the respondents.  During the first six months of 2013 the Social Work Department had given as much input as they could into a parenting assessment in relation to the respondents.  The respondents’ lack of cooperation and engagement, aggressive behaviour and failure to attend contact and other meetings had all made it impossible to complete the kind of formal assessment recommended by National Policy.  The factors leading to that inability had not changed by the time of HSW’s birth.  If anything, the respondents’ lack of engagement worsened after that.  For these reasons, and in the particular circumstances of the short period of time between the attempted assessment in relation to TRW and the birth of HSW I consider that any failure on the part of the Social Work Department to attempt a formal risk assessment after HSW’s birth is a legitimate criticism of form only rather than of substance.  Dr Robinson considered that given the steps taken by CM to change more recently, a parenting assessment could now be carried out but that is a separate matter to which I will return.  In summary, the Social Work Department acted appropriately to secure the safety of the child HSW when she was born and thereafter.  A reasonable level of contact between the new baby and the parents was put in place but not taken up sufficiently for any full assessment to be carried out. 

 

(e) An assessment of the respondents’ current stated intentions and the expert evidence
[30]     Dr Robinson expressed the view that in a situation like this, it was reasonable for the local authority to move towards permanency within six months of birth.  A decision is required to be taken so that a very young child is not allowed to drift within the care system.  Against the background of complete non-engagement with the authorities by the respondents, which they accepted, during the first few months of HSW’s life, no proper criticism can be levelled against the petitioner’s Social Work Department in relation to the decision to plan for permanency and consider making this application to the court.  However, both parents stated positions were very different by the time of proof to those they exhibited to the Social Work Department during late 2013/early 2014.  Accordingly, the evidence in relation to their current stated intentions and the extent to which those have a bearing on the decisions I require to make, must be examined. 

[31]     CM said in her evidence said that she now enjoyed a more positive, less stressful lifestyle.  She volunteers at a home for old people where she organises activities for them.  Her health is better, she cycles and runs with her dog.  She goes swimming once a week and is far healthier.  The first respondent had found her sessions with Dr Robinson very helpful.  She had weekly meetings during which Dr Robinson gave her a booklet of worksheets to complete.  CM is apparently dyslexic and Dr Robinson was sympathetic to that in relation to the type of work she gave her.  She said that she now understands the unhelpful manner in which she and the second respondent engaged with the Social Work Department although she denied being aggressive during contact itself other than on one occasion.  She said she tended to wait until after a contact session before becoming angry with the Social Work Department.  She accepted that there had been an aggressive incident at contact between her and Russell Murray who was supervising contact in July 2014.  Mr Murray had involved the police and the first respondent was convicted of breach of the peace although she received an absolute discharge.  CM has addressed her relationship with alcohol and she now drinks it only on special occasions and in any event in moderation.  She said that MW encourages her not to have alcohol within the home.  The work she has done with Dr Robinson has given her confidence that, with the appropriate help and support that she feels she did not receive previously, she would be capable of caring for HSW or indeed any future children.  Dr Robinson lent some support to the first respondent’s position on this.  She considered that a 12 week parenting assessment in relation to CM could be made now that would give a clear answer as to whether she could care for a child.  The work she had carried out so far with CM had allowed her to reach the conclusion that it would be reasonable to contemplate a parenting assessment even at this stage.  However, she explained that there would require to be a three stage process.  First an intensive period of parenting education and an assessment of risk would take place.  It was acknowledged that it would be wrong to experiment with any child.  For that reason during this first intensive period of assessment there would be no contact with HSW.  Such contact could only be reintroduced if the outcome was one of a clear indication that the respondents had a prospect of being able to meet her needs.  The second stage would be a continuation of the programme with contact being introduced gradually with an intensive assessment of contact.  Thirdly and only if stages one and two indicated a hopeful prognosis for rehabilitation would that then be considered.  Dr Robinson was clear that the 12 week period she had referred to related to the first stage of intensive assessment.  She accepted that while the face of it there was scope for a positive outcome in relation to HSW the situation was very complicated particularly as her full sibling TRW was now the subject of an order giving authority to adopt.  She agreed there had to be a relationship between the timescale involved and the child’s best interests.  If it was considered that such a programme would be appropriate, a good time for it to be carried out was at a stage when HSW was making the break from her current carers to prospective adopters.  Dr Robinson very fairly agreed in cross-examination that the plans to have HSW adopted should not be terminated for such an assessment to be carried out.  They could be put on hold but any assessment period would require to take place within as short a time frame as possible.  When it was put to Dr Robinson that CM had said in evidence that she did not trust anyone, particularly the Social Work Department, Dr Robinson agreed that, however understandable that sentiment, engagement with the appropriate services would be essential to embarking on the programme she outlined. 

[32]     Turning to the second respondent, in his evidence he said that the court should take into account that both he and CM now want to work with the Social Work Department.  A new social worker (Naomi Marjoribanks) has been allocated and he was willing to move on from the previous hostilities.  He accepted that his previous aggressive behaviour would not have been beneficial for either of his children.  He continues to distrust the Social Work Department and does not trust them to make any correct judgements in relation to his daughter HSW.  He accepted that he blames others for the current position he is in.  He said that from the outset he had accepted responsibility in relation to TRW’s injuries to the extent that, regardless of the mechanism of injury he must have failed in his duty to protect his child.  He did not blame himself in terms of having physically caused TRW’s injuries which he continued to deny.  The second respondent was unrepentant in relation to his use of cannabis.  He claimed that the benefits of cannabis use were well known and it remains his view that his use of cannabis is not and was not detrimental to his ability to parent.  MW accepted that his previous non-attendance at contact with HSW might on the face of it look like a lack of commitment.  However, he reiterated that he now had a better understanding of how to parent.  He considered that Dr Woolfson, an expert instructed on his behalf, had made positive conclusions about his parenting abilities. 

[33]     Dr Woolfson, a psychologist of considerable experience, had completed an assessment of MW.  However, he had told MW and explained to the court very candidly, that on the face of all the information he had he had rather assumed that HSW would not be living with the respondents and that the main issue for him to address was that of contact.  Dr Woolfson did not consider that would be in the best interests of the child HSW to be rehabilitated with her natural parents at this stage.  Nothing in his evidence provided support for the second respondent’s position on that.  He gave detailed evidence in relation to the issue of contact with which I deal below.  For this chapter, the significance of Dr Woolfson’s evidence is in relation to his assessment of how the second respondent presented to him, including statements about his intentions.  Dr Woolfson notes in his report number 31 of process at paragraph 4.3 that MW generally presented as calm, reasonable and communicative and could talk clearly about his views of parenting.  However, both in his report and in evidence Dr Woolfson explained that when the second respondent was faced with more difficult questions, he became challenging, uncomfortable, and confrontational.  For example, when Dr Woolfson had raised the issue of his cannabis use, MW reacted badly, became agitated and said “Are we going to bring all this up again” and had to be calmed down by Dr Woolfson.  A second incident occurred between them when Dr Woolfson telephoned MW to make arrangements for the first contact session in August 2015 which was being observed.  There was a discussion about whether the experts should be in the same room when contact was taking place.  Dr Woolfson explained that MW became extremely angry with him about the matter, talking of the contact period as being his time with his child and that Dr Woolfson was not to interfere with it and spoil it.  Dr Woolfson described MW as “furious” about this matter.  It gave the expert some insight into MW’s objectives as far as contact was concerned.  He seemed to regard it as something for himself rather than for the benefit of the child.  Dr Woolfson considered it remarkable that when MW later calmed down, he seemed unable to recognise that his behaviour had been inappropriately hostile.  Having experienced the truculence and aggression described in the social work records, Dr Woolfson could well see such behaviour could be a feature of any relationship between MW and professionals.  Notwithstanding these reservations, Dr Woolfson was prepared to take many of MW’s statements about the past and how he might act differently in the future at face value.  He had no hesitation in accepting that if MW (and CM) continued to put up barriers with professionals they would not be able to illustrate their true parenting capacity.  Dr Woolfson had also explored MW’s diagnosis of Obsessive Compulsive Disorder (“OCD”) with him and expressed the view that those who suffer from OCD often find it difficult when things happening around them are not clear cut.  In cross-examination it was suggested to Dr Woolfson that an important consideration in assessing the respondents’ current stated positions was whether past behaviour is a good indicator of future behaviour.  Dr Woolfson did not disagree that past behaviour is in general terms the best indicator for the future but it had to be acknowledged that it was not an exact science.  The best way forward was to test parents stated intentions without putting the child at risk. 

[34]     For the reasons elaborated below on the section on credibility and reliability, I cannot accept either of the respondent’s current stated intentions at face value.  There is little if any evidence to support their statements that they have changed and would now cooperate with the authorities if they were given the opportunity of further parenting assessments.  On the contrary, each of them continued to state an open distrust for the petitioner’s Social Work Department.  Dr Robinson’s tentative support for a parenting assessment with a view to rehabilitation, even at this late stage, must be considered against some undisputed but compelling facts.  First, HSW is now two years old.  She has lived in family with her foster carer and her full sibling TRW since she was born.  As TRW is to be adopted any assessment of the respondents in relation to HSW would not involve TRW.  A period of three months assessment without there being any contact at all but with the adoption process halted would result in a further significant delay in final decisions being taken about care for HSW throughout her childhood.  Dr Robinson is an impressive expert whose views must to be respected.  However, it was not her role to test CM’s current stated intentions or declarations that she could now work with the Social Work Department.  I have had the opportunity of hearing CM’s evidence and that of MW and having that evidence tested by cross examination.  I take into account also the helpful insights provided by Dr Woolfson in relation to MW narrated above.  The argument that the respondents now see the error of their previous ways and would cooperate should further assessment be contemplated in relation to HSW is in any event “too little too late” for that child.  I conclude that there is no justification for delaying a decision on HSW’s future so that such an assessment could be carried out. 

 

Contact
[35]     As already indicated the respondents did not dispute that they had missed a large number of contact opportunities since HSW’s birth.  As a result, they are effectively strangers to her, their contract with her having been terminated by a decision of the Children’s Hearing in October 2014.  However, given the importance of the decisions to be made in this case, the court ordered three separate supervised contact sessions so that Dr Robinson and Dr Woolfson could observe interactions between the respondent’s and their child.  Dr Robinson was involved only in the first two sessions, on 13 and 19 August 2015.  Dr Woolfson observed those and also a third contact session between MW and the child alone which took place on 27 August 2015.  In addition to the respondents who gave their own accounts of that contact, Dr Robinson and Dr Woolfson gave evidence about their observations.  Marion Duffy had supervised the contact and she had made detailed case notes about the sessions.  The foster carer, LW, also gave some important evidence in relation to this matter. 

[36]     Some criticisms were made of the way in which Marion Duffy had recorded the contact sessions.  She appeared to have highlighted a number of negative factors and expressed opinions within her notes which are contained at number 6/47 of process.  For example, she records her view that there was “… no positive benefit for HSW in contact…” and also that the child had exhibited “… tolerance rather than spontaneous enjoyment…”  This is of some concern given that at an earlier stage in decision making about HSW, the sheriff at Livingston upheld an appeal by the first respondent against the decision of the children’s hearing to terminate direct contact – see paragraph 37 of the joint minute and production 7/1.  In that appeal it was conceded on behalf of the reporter that the relevant social worker (Marion Duffy) appeared to have “weeded out” the positive elements of contact sessions and emphasised only the negative ones.  Further, Marion Duffy was clear in evidence that she had never recommended post adoption contact in any case of this type in which she had been involved.  While I have no reason to doubt the accuracy of the information she provided in relation to the respondents’ earlier behaviour in this case and on issues of risk assessment, for the reasons just stated, I have placed no reliance on the remarks and opinions she made about the recent contact sessions.  However, many of the notes that she made about what occurred at contact were not disputed by Dr Woolfson and Dr Robinson, only their interpretation.  It is the independent experts’ observations of those contact sessions that require careful consideration in assessing whether there would be any benefit in ongoing direct or indirect contact between the respondents and HSW if the orders sought in this petition are granted. 

[37]     Dr Robinson set out her observations on the two contact sessions she attended in a supplementary report number 7/29 of process to which she spoke in evidence.  Importantly, however, she made no recommendation in relation to ongoing contact between HSW and the first respondent.  She raised a number of pertinent considerations the court should consider in relation to ongoing birth family contact.  These included HSW’s age, her current relationships including that with her brother TRW who has no contact with his birth family and the task ahead of leaving her current carers to whom she is attached and bonding with prospective adopters.  Dr Robinson did not consider it to be part of her role to recommend whether ongoing direct contact should take place as she could not have the benefit of an overall assessment of the evidence about those matters.  Her summary and observations of contact were of interest and assistance.  They are recorded in a neutral and non-judgemental manner.  The first session took place in a small interviewing room at the public protection unit of the local police station.  All those who attended were agreed that this was an inappropriate environment.  Marion Duffy was supervising contact as she was the only senior social worker who was sufficiently well known to the child.  HSW remained on Ms Duffy’s knee for much of the session and both parents were observed as having done what they could to encourage HSW to play and by making positive comments to her.  The second session took place the following week at the family centre in Livingston.  There was an incident when the respondents took HSW over to an open window where she began to play with the window catch.  The first respondent subsequently acknowledged to Dr Robinson that she had made a mistake by taking a small child to play at an open window.  Again it appeared that both parents had done what they could to make the session enjoyable for the child.  The third contact session was observed only by Dr Woolfson who spoke also to the first two contact sessions.  He analysed all three sessions using the six key features of attachment namely greeting and separating, physical proximity, parental sensitivity, acceptance of warmth, parental encouragement and interest and communication when limit setting.  His observations, summary and conclusions are set out in considerable detail in his report (number 31 of process) to which he spoke in evidence.  In essence, Dr Woolfson spoke in very positive terms about what he saw during the contact sessions.  He described the play between MW and his child as interactive.  He spoke of synchrony between father and child.  He regarded the play sessions as busy and constructive with many positive elements.  Dr Woolfson’s overall conclusion was effectively that on balance there was a realistic possibility that a secure attachment could develop between HSW and her father if direct contact was continued.  He acknowledged unreservedly that there was no such secure attachment already in existence because of the history of a lack of contact between father and child.  Dr Woolfson explained that from a psychological point of view there was no reason to rule out direct contact just because there was, quite properly, no rehabilitation plan for this child with her parents.  Having observed that there was at least the potential for emotional attachment to develop, Dr Woolfson concluded that it would be in HSW’s best interest to have some direct contact with MW in future.  He was aware of the research on post adoption contact and that in situations where it was appropriate experts such as the late Professor Triseliotis had suggested anything between one and 12 times per annum.  In this case Dr Woolfson considered that four times per annum would be sufficient to keep a relationship going.  Under cross examination the key criteria that the late Professor Triseliotis had suggested must exist for there to be ongoing direct contact post adoption were put to Dr Woolfson for comment.  These  are included in a paper lodged and now forming No 6/51 of process.  They include an existing positive relationship or attachment with the natural parent, the child enjoying and appearing to benefit from direct contact and the natural parent cooperating and not undermining the adoptive placement.  Dr Woolfson accepted again that the views he expressed were looking to the future and that he could conclude only that there was potential for a relationship between father and daughter to develop and that it could not be said that the key criteria referred to were met at this stage.  He accepted also that as a generality, experience shows that direct contact post adoption works better if the children are older as well as being already attached to their natural parents.  In addition, it could not be ignored that if the prospective adoptive family do not support ongoing contact then that militated against a successful outcome in which direct contact could take place.  In any given case the advantages and disadvantages of ongoing direct contact post adoption had to be balanced before a decision could be taken on the facts before the court.  Any benefits in this case were at this stage potential rather than established.  Dr Woolfson also accepted without hesitation that it was in the best interests of a child such as HSW that all issues in relation to her permanent care and contact with adults be resolved as soon as possible rather than in the subject of further prolonged dispute.  Sofar as the appropriateness or otherwise of HSW having direct contact with the respondents in contrast to her brother TRW who has no such contact was concerned, Dr Woolfson explained that it was difficult to see how such a difference in the positions of the two children on contact with their parents could be a good thing from a psychological perspective.

[38]     Evidence was elicited from TRW and HSW’s foster carer, LW, who swore an affidavit No 18 of process to which she spoke.  On the issue of contact, she confirmed that as she had been involved throughout the period since TRW was accommodated in January 2013, she could confirm that the attendance of CM and MW at contact with that child was irregular.  She explained that almost from the outset she had attended to all immunisations and medical appointments because on most occasions CM would fail to attend for those.  She had been concerned about contact between the respondents and TRW and because the child was exposed to heated debates at contact sessions when the parents became aggressive.  LW brought HSW for the three recent contact sessions ordered by the court between the respondents, or one of them, and HSW.  She spoke to an upsetting incident at the very last contact session between MW and his daughter.  MW had said goodbye to the child who had then been returned to LW in the centre where contact had taken place.  HSW then caught sight of MW as he was leaving.  She tensed and buried her head in LW’s shoulder.  The foster carer felt her stiffen and found this quite a profound reaction as the child is normally very good with strangers.  Under cross‑examination LW agreed that after an hour with a stranger the reaction she describes might have amounted to no more than her wanting to stay in her primary carer’s arms.  Marion Duffy also witnessed this incident.

[39]     So far as indirect contact is concerned, it is generally acknowledged that contact through letters, exchange of information and perhaps photographs can be a helpful way in which to give an adopted child a full understanding and acknowledgment of their birth origins.  In TRW’s case, the court ordered indirect contact to take place twice per annum.  That order was made on 24 March 2015.  I was surprised and disappointed to find that by October 2015 no steps of any kind had been taken to organise such indirect contact or even to consider the process for implementation of the court’s order.   Responsibility for the delay in that must lie with the petitioner’s Social Work Department and the petitioner’s counsel very properly acknowledged that.  There was no dispute that some form of indirect contact should be ordered in this case if the petitioner’s application is granted. 

 

The significance of the sibling relationship between HSW and her brother TRW and the likelihood of them being placed together for adoption

 

[40]     There was ample evidence that HSW enjoys a very close sibling relationship with her brother.  Her foster carer LW spoke to this as did Marion Duffy.  The importance of the sibling relationship was raised with Dr Robinson, to some extent Dr Woolfson and with the respondents themselves.

[41]     The first respondent, CM, acknowledged the importance of the sibling relationship.  When asked by her own counsel what she would want for her daughter if HSW was not to be returned to her care, she said “I would want her to stay with T – either with LW (foster carer) or not.  They (TRW and HSW) have an amazing bond and I wouldn’t be the one to break that.”  In re-examination, CM was even clearer about this.  She said “If I can’t have both kids I don’t want HSW and not him (TRW).  I don’t want to split them up.  I just want to know they are safe and will come back soon.”  She appeared to accept that it was difficult to argue that it was in HSW’s best interests to be with her and MW given the inevitable separation from her brother that this would involve.  Ultimately, CM indicated that she would favour an outcome that allowed HSW and TRW to remain with their foster carer LW rather than for them to be adopted but she understood that such an outcome was most unlikely given that an order for authority to adopt TRW had been granted and that he would be placed.

[42]     MW was far less realistic on this issue.  He spoke of his own difficult upbringing which involved his natural mother choosing to take his brother out of local authority care to return home with her but not him.  He could see that different treatment for TRW and HSW could result in similar issues being experienced by his own children but, he maintained “… we do not have a choice – we have lost TRW.  So to save losing another child we have to take this position.”  He described his own position as selfish, thus accepting that it was his need not to lose another child that informed his view.  Ultimately, he said he was prepared to have the children separated.  That meant that HSW could be in the care of her natural parents.  Should HSW live with him and CM, he envisage that TRW could maintain his bond with his sister by the siblings having contact at a contact centre albeit that TRW would not see the respondents at such a venue.  MW had clearly considered the detrimental effects he had suffered through growing up in the care system and was anxious to avoid that for HSW albeit that decisions about TRW had now been taken.  However, his view coincided with the first respondent’s to the extent that, assuming HSW would not be returned to live with them, he would prefer that she remained with LW in a long-term foster care placement than be adopted.

[43]     On the subject of the likelihood of HSW being placed with prospective adopters should the orders in this petition be granted, evidence was led about the work that had been done on this already.  At an earlier stage, prospective adopters for TRW had been identified but had pulled out partly because of the delay in the legal process.  More recently, a linking meeting had taken place to discuss a couple, KH and MH who had been identified as prospective adopters for both children.  The detailed minute of that linking meeting, No 6/50 of process was spoken to in evidence by Christine Robertson, Tracey Turnbull, Iona Miller and Naomi Marjoribanks.  While the linking process remains at a relatively tentative stage pending the outcome of these proceedings, the couple identified have always been clear that they want to consider caring for a young sibling group.  An action plan was prepared at the linking meeting of 1 September 2015 to take forward a number of issues that would require to be addressed.  Naomi Marjoribanks, HSW’s current social worker, spoke to her affidavit No 29 of process.  She became involved with the children following Marion Duffy being taken off the case on achieving a promoted  post.  While she has met HSW and TRW on three occasions, she had no direct contact with respondents until the proof in these proceedings.  The respondents were identified to her and she spoke to having seen them on a bus after court and she witnessed CM swearing and being aggressive during a telephone call.  When challenged as to why she had thought it important to share this information in evidence, she said that she had felt uncomfortable during the incident and considered what she saw of CM’s behaviour relevant given that she had had sight of reports indicating that CM was now claiming that she had changed and had the ability to be a mature parent.  Ms Marjoribanks had by the time of proof spoken with Amanda Steven, the prospective adopters’ assessing social worker about the views of  KH and MH in relation to  ongoing direct contact post-adoption.  Their position is apparently that they would discuss direct and indirect contact but would find it difficult if there was an order for direct order between the parents and one child (HSW) but none with the other child (TRW).  Ms Marjoribanks confirmed that a matching panel to discuss the way in which KH and MH might be introduced to the children would not take place until the outcome of these proceedings.

[44]     Following the serious injuries he sustained in the first few weeks of his life, there had been some concerns about TRW’s development that might affect the likelihood of his being placed for adoption.  However, by the date of the proof in the case involving him, it was accepted that it was likely that he would be placed.  There are no similar issues in relation to HSW.  There was evidence from LW, Marion Duffy and also from those who observed contact recently, that she is a well-developed, sociable toddler with no special needs.  In summary, there is reason to be confident that, should the orders in this petition be granted, HSW will be placed for adoption together with her brother and either with  KH and MH or with other adopters.

 

Credibility and reliability
[45]     I have no hesitation in accepting as credible and reliable the evidence of Naomi Marjoribanks, Karen Love, Christine Robertson, Tracey Turnbull, Iona Miller, Kate Mitchell, Russell Murray and the three medical witnesses, Dr Rachel Miller, Dr Joan Ritchie and Dr Alastair Wilkinson.  The police officers who gave evidence, Leslie Hunter and Scott McRandle, both impressed me as credible witnesses.   Where their evidence differed, I have preferred as more reliable the evidence of PC Scott McRandle who, being newly qualified at the time, had a much clearer memory of the incident at the respondent’s home on 28 December 2012, which had made a greater impact on him than on the more experienced PC Hunter.  I also accept without hesitation that Dr Richard Woolfson and Dr Anna Christina Robertson, who appeared as independent expert witnesses, fulfilled their obligations as such and were of assistance to the court.  Neither appeared to me to fall into the error becoming an advocate for the side who had instructed them and both made entirely appropriate concessions and acknowledgements when various factual matters that they may not have known about were clarified in evidence.

[46]     I record that I found the foster carer LW an impressive witness.  As primary carer to TRW and HSW during their short lives so far, her observations of their behaviour and of the difficulties that continued contact arrangements could present were of assistance.

[47]     So far as Marion Duffy, the senior social worker is concerned, I have already commented that I decided not to rely on her interpretation of the recent contact sessions between HSW and her parents and also in relation to her views on post-adoption contact generally.  However, I conclude that Marion Duffy was a credible witness, doing her best to tell the truth.  She is an experienced social worker whose accounts of what happened and views on risk assessment I am able to rely on.  During the course of her evidence, I formed the impression that she was frustrated by the respondents’ obstructive behaviour and I detected a determination in her that decisions should be taken in relation to the permanent future of both these children without undue delay.  I do not criticise any of the conclusions and recommendations she has made in relation to permanent planning for HSW (and her brother).

[48]     I am unable to accept the evidence of CM and MW as either credible or reliable.  So far as CM is concerned, there are  a number of issues.  First, as narrated, she has given inconsistent accounts on important matters such as the level of her alcohol consumption on 27/28 December 2012 and about whether she considers it likely that she fell with TRW on that date.  When such inconsistencies were put to her, she suggested that some statements in previous affidavits were “wrong”, when it was clear that they were deliberately false statements.  Secondly, the impression I gained from CM’s evidence was that she had now realised what position might allow her to have a chance of achieving her aim of successfully opposing this petition.  Her acceptance of responsibility for TRW’s injuries through falling with him in her arms appeared to be based on a misconceived notion that if the injuries to the young baby could be characterised as accidental rather than non-accidental, then the issue of her parenting might be open to further assessment.  The difference in position between her and MW about where the detail of the alleged fall came from illustrates well the difficulties with her evidence.  Further, CM’s evidence about now accepting responsibility for the way that she had behaved in her dealings with the Social Work Department and her position that her lifestyle has changed beyond recognition did not sit well with statements to others (such as the curator ad litem in these proceedings) that she would not trust anyone in authority in this country again and also the behaviour observed coincidentally by Naomi Marjoribanks during the course of the proof. 

[49]     So far as the second respondent MW is concerned, his stated position in evidence, when compared with undisputed facts and circumstances, was exposed as glib and unconvincing.  His protestations of now being in good faith and willing to work with the Social Work Department did not coincide with some of the observations of Dr Woolfson.  MW himself described his current overall feelings as “very angry – with me, CM, the lawyers and the Social Work Department, pretty much everyone involved…”  His demeanour when giving evidence was smug and self-congratulatory.  He was, as already indicated, unrepentant in relation to his cannabis use.  He went so far as to offer his understanding of the criminal law in relation to possession of cannabis in public as opposed to in private, suggesting that the disapprobation of his habit was ill-informed.  More importantly, MW’s evidence that he was now willing to work with the authorities sits in stark contrast with his attitude to attending at court to complete his own evidence.  On Tuesday 6 October 2015 when his evidence was due to continue, his counsel required to tell the court that MW would not be in attendance and that he had indicated to agents the previous day that he did not intend to be present and would be at work.  Counsel for the petitioner, who was due to cross-examine the second respondent very fairly refrained from attempting to insist that the proof should conclude in his absence given that the best interests of the child involved in these proceedings had to be the most important consideration.  Issues had apparently arisen about the amount of time the second respondent had been absent from work for the purpose of these proceedings.  Some issues were also raised about reimbursement of bus fares but the petitioners’ counsel had done everything she could to assist with that.  During the course of the morning, with the assistance of the court administration, contact was made with the second respondent’s employer who confirmed that there was no difficulty whatsoever in releasing him so that he could attend court and continue with his evidence.  Despite that, and despite my calling the case on three occasions over the course of the morning to give the second respondent the opportunity to change his mind in light of that information, his position continued to be that he would not attend at court.  In the circumstances, I decided to continue the case until the following day, Wednesday 7 October 2015 when I understood the second respondent would not be working.  He did not attend court that morning.  In the event, the proof was able to continue to the extent that Dr Alastair Wilkinson was being recalled at that time and he was interposed.  Dr Wilkinson’s evidence concluded before lunchtime and the second respondent was still not in attendance at court.  He attended on the afternoon of 7 October.  He refused to answer questions about what he had been doing that morning rather than attending court.  He stood insolently and unapologetically, clearly disrespecting the authority of the court.  Counsel for the petitioner made clear that her priority was to reach the end of the evidence and, notwithstanding the second respondent’s behaviour suggested that she continue with her cross-examination of him.  I allowed that. 

[50]     During the course of the cross-examination that afternoon MW agreed that he continued to distrust the Social Work Department, that he didn’t trust them to make the correct judgment for his daughter’s care and that he blamed others for his current position.  MW was also challenged about an earlier affidavit he had sworn in the case involving TRW where he had made statements about how much CM had had to drink on 27/28 December 2012 and in relation to when TRW was returned to the respondents’ care by CM’s mother and stepfather.  Like CM, he would refer to such earlier statements, as “incorrect” or “wrong” when extraneous evidence had clearly shown them to be untrue.  For the reasons given, I am unable to accept any evidence given by CM and MW on important matters as credible and reliable.

 

Application of the law to the established facts
[51]     I have narrated some of the evidence in relation to the disputed issues in this case and the conclusions I have reached.  In deciding this case I have taken into account all of the evidence and material before me including the full report of the curator ad litem and reporting officer, number 10 of process, the local authority report (number 6/8 of process) and all of the affidavits lodged by the petitioner supplemented by the oral evidence. I have taken into account also the written and oral submissions of Counsel, which identified all of the disputed issues I have addressed, albeit on occasions under different chapter headings.  I turn now to apply the legal tests that apply to each stage of the decision making in this case. 

[52]     I turned first to consider the conditions and considerations applicable to the making of a permanence order set out in section 84 of the 2007 Act.  The significant finding to be made is whether the child’s residence with the respondents is, or is likely to be, seriously detrimental to her welfare – section 84(5)(ii).  On the facts established is this case, the respondent cared for HSW’s brother TRW for a period of only seven weeks, during which time he sustained serious injuries, likely to be non-accidental and to date unexplained by the respondents.  CM and MW have no ongoing relationship with the child HSW who was removed from their care immediately following her birth.  They did not show commitment to the child thereafter.  There is no evidence to support them being able to care properly for this child who has no attachment to them.  There is no evidence upon which I can rely that the respondents would now cooperate fully with the Social Work Department in connection with any parenting assessment.  HSW is cared for in a loving environment with her full sibling TRW with whom she will remain the orders in this petition are granted.  In all the circumstances I have no hesitation in concluding that HSW’s residence with the respondents would be seriously detrimental to her welfare.  It would be unsatisfactory for the uncertainty in relation to HSW’s permanence continue any longer.  I must regard the need to safeguard and promote the welfare of the child HSW throughout childhood as the paramount consideration.  Accordingly I am satisfied that it would be better for her that the permanence order sought be made than not. 

[53]     So far as the granting of authority for HSW to be adopted is concerned, section 83 of the 2007 Act applies.  On the basis of the evidence about the health and development of both TRW and HSW and of certain couples who have expressed an interest, including KH and MH, who wish to adopt a sibling group and in respect of whom a linking meeting has already taken place, I am satisfied that it is likely that HSW will be placed for adoption and that she will be placed together with her brother TRW.  In deciding whether to dispense with the consent of the respondents in terms of section 83(3) of the Act, it is clear from the findings that I have made that I consider both parents are unable satisfactorily to discharge their parental responsibilities and rights in respect of HSW.  That subsection requires also that I conclude that they are likely to continue to be unable to do so.  For the reasons given, I am unable to rely on the respondents’ stated intentions at proof that they would now accept advice and support in relation to the exercise of their parental responsibilities and rights and cooperate with any parenting assessment.  The best indicator of how they might behave in the future is their past behaviour.  They failed to take up the opportunities to engage in HSW’s life at contact and through medical and other professional appointments.  This was also a feature in TRW’s case.  On balance I consider it unlikely that either CM or MW would be able to fulfil their responsibilities and exercise their rights in respect of HSW in the future.  I take into account all of the considerations listed in section 14 of the 2007 Act.  The circumstances of this case that militate particularly strongly in favour of granting authority to adopt include the close sibling relationship between HSW and her brother TSW and the likely detrimental effect on the child should that relationship be severed.  There is an opportunity currently to place HSW with her brother for adoption in a permanent family in a manner that will safeguard and promote her welfare throughout her life.  The alternative to authority to adopt being granted would be that HSW would remain in foster care without her brother in an unsatisfactory legal limbo.  There is no practical alternative to adoption that would serve HSW’s interests.  Decisions about her future cannot wait. 

[54]     So far as contact is concerned this is not a case in which there is ongoing direct contact between HSW and her parents, where there might be some benefit in maintaining pending the making of any adoption order.  The respondents had missed so many contact sessions with HSW by the time the contact was terminated in October 2014 no attachment had been formed.  It is inevitable in the circumstances of the case and that a change in primary carer for HSW will happen in the near future.  It is thought to be important that some contact be maintained between her and her current carer LW during the transition process.  It is likely to be at best confusing and at worst upsetting for the child simultaneously with that change to be reintroduced to the respondents.  Further, I consider that it would be highly inappropriate and not in her interests for HSW to be treated differently from her brother TRW who has no contact with the respondents in the context of them being placed for adoption together.  I do not consider it would be in HSW’s interests for an order for direct contact to be made in this action. 

[55]     However, as already indicated in the section dealing with contact, it is not disputed that it would be beneficial for HSW to have an understanding of her birth family through indirect contact.  I have already recorded my disappointment that the order made by Lord Brailsford in TRW’s case had not yet been implemented by the time of proof.  I intend to make an identical order in this case and trust that the petitioner will set in motion without delay the appropriate arrangements for such indirect contact. 

 

Decision
[56]     Having regard to the findings and conclusions I have made on the disputed facts and the application of the law to the relevant issues, I have decided to grant the prayer of the petition and make all of the orders sought therein.  I will order indirect contact between HSW and the respondents twice each year by way of letter.  Counsel for the petitioner submitted that in the event all of the orders sought being made she would be content with a finding of no expenses due to or by either party.  I shall make that finding.