Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 28

AD10/13

OPINION OF LORD BRAILSFORD

In the petition of

WEST LOTHIAN COUNCIL

Petitioners;

for a permanence order with ancillary provisions and authority for the child to be adopted in terms of section 80 of the Adoption and Children (Scotland) Act 2007

in respect of the child TRW

Respondent:

Petitioners:  Brabender;  Morton Fraser

Defender:  Guinnane;  Aitken Nairn (on behalf of Livingstone Brown)

 

24 March 2015

[1]        In this petition application is made for a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”) in respect of a child “TRW” (“the child”) who was born on 6 November 2012.  In addition to the mandatory provision ancillary provisions are sought as follows: (a) vesting in the petitioners in relation to the child the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (d) of the Children (Scotland) Act 1995 (“the 1995 Act”) and the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act, all in terms of section 82(1)(a) of the 2007 Act; (b) extinguishing in relation to the child the parental responsibilities mentioned in section 1(1)(a), (b) and (d) of the 1995 Act and the parental rights mentioned in section 2(1)(a),(b) and (d) of the 1995 Act all in terms of section 82(1)(c) and (d) of the 2007 Act  in respect of both the mother and father of the child; (c) specifying that there shall be no direct contact between the child and the respondent and (d) specifying that there shall be no direct contact between the child and the child’s father.

[2]        The child’s mother is CM who was duly served with the petition and appeared as the respondent.  The child’s father is MW, he was served with the petition and appeared personally at the first by-order hearing in the application at which time he indicated an intention to oppose the petition but subsequently did not participate in the process and was not represented.

[3]        The petition was the subject of case management.  One result of this process was agreement between the compearing parties of many of  the background facts regarding the child being taken into care and the procedure relating to his accommodation and care since that event.  This agreement was contained in a joint minute.  I will subsequently deal with certain aspects of the management of the case in more detail.  The case proceeded to proof over eight days in February 2014.  Evidence in chief was primarily taken by way of affidavit.

[4]        The legislative background against which the petition requires to be considered was not contentious.  It is contained in sections 80-84 of the Adoption and Children (Scotland) Act 2007.  Section 80 permits the granting of a permanence order with mandatory provisions and such ancillary provisions as the Court thinks fit.  Section 81 stipulates the mandatory provisions.  Ancillary provisions are stipulated in section 82.  In the present petition the relevant orders are those in section 82(1)(a), (c), (d) and (e).  Section 83 provides the conditions for orders granting authority for adoption.  Section 84 sets forth the conditions applicable to the making of a permanence order and stipulates the legal test for making a permanence order.  Section 84(1) is not relevant in the circumstances of the present case.  Section 82(2) is relevant in this application.  Sections 84(3) and (4) provide that in considering whether to make an order and, if so, what provisions the order should make, the need to safeguard and promote the welfare of the child throughout childhood is the paramount consideration.  Section 84(5) sets forth certain steps the court must take before granting an order.  That the foregoing were the relevant statutory provisions which require to be considered in relation to this petition was not disputed by counsel for either party.  Section 14 of the 2007 Act is also relevant to the consideration of whether authority to adopt should be granted. It provides:

“14 Considerations applying to the exercise of powers

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

There was, further, agreement between the parties that the correct approach to interpretation of the legal test for the making of a permanence order was that set down by the Inner House in TW v Aberdeenshire Council 2013 SC 108 at paragraph 13.

[5]        I have already indicated that a considerable amount of the factual background to this application was agreed and contained in a Joint Minute of Admissions lodged in court on 3 February 2015.  The joint minute is in the following terms:

“1        The Petitioner is West Lothian Council, a local authority with an office at West Lothian Civic Centre, Howden South Road, Livingston EH54 6FF.

 

2.         The child is [‘TRW’].  He is male.  He was born on 6^th November 2012 at [a place in West Lothian] [6/1].  He was 2 years old on 6^th November 2014.  He presently resides with a foster carer at [a place in West Lothian] with whom he has been placed since 10^th January 2013.  He is not and never has been married or a civil partner.  He has no guardians.

 

3.         TRW was referred to the Petitioners Adoption and Permanence Panel on 1 October 2013 where it was recommended that an application be made for a Permanence Order with Authority to Adopt.  The recommendation dated 7 October 2013 was accepted by the Agency Decision Maker on 9 October 2013. [6/9].

 

4.         TRW is the subject of a Compulsory Supervision Order dated 14 October 2014 which Order includes requirements that TRW reside with foster carers and have contact with his parents a minimum of once per fortnight, said contact to be supervised by or on behalf of the Petitioner’s social work department. [6/128]

 

5.         The Respondent is CM.  She is TRW’s mother.  She resides [an address in West Lothian].  She resides there with [‘MW’], the child’s father.  The Respondent and MW have another child, H, who was born on 14^th November 2013.  H is also subject to a Compulsory Supervision Order and resides with TRW in the foster placement hereinbefore referred to.

 

6.         The child’s father is MW.  He resides at [an address in West Lothian] with CM.  He is named as the child’s father on the child’s birth certificate. [6/1]  He has parental responsibilities and parental rights in respect of TRW.  The Petition was served on MW and he attended a by order hearing on 20^th February 2014 when he indicated he intended to oppose the Petition.  He has not entered appearance and has not lodged Answers to the Petition.

 

7.         Both the Respondent and MW have the right to have TRW living with them or otherwise to regulate his residence

 

8.         At or about 0115 on 28 December 2012, police officers attended at the address of the Respondent.  The living room of the house had a double mattress on the floor next to a Moses basket.  The Respondent and MW were within the property together with TRW and their dog.  The dog, a large Alsatian, was also in the living room.  The dog’s cage was also in the living room.  Police officers formed the view the Respondent was not in a fit state to be left in charge of TRW.  Police officers contacted the Respondent’s step-father, [‘DM’] who agreed to attend.  He took TRW back to his and the Respondent’s mother’s house. [6/13]  The police recorded their attendance in an Association of Chief Police Officers in Scotland – Getting it Right for Every Child – Child Concern Form which form is produced at 6/13 of process.

 

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

 

10.       On 29 December 2012, the Respondent telephoned ‘999’ seeking the attendance of an ambulance for TRW.  On admission to [hospital], TRW was floppy and unresponsive.  A CT scan revealed cerebral bleeding.  The child suffered seizures from 31 December 2012.  Medical practitioners had difficulty controlling the child’s seizures.  He was transferred to the Royal Hospital for Sick Children, Edinburgh.  An MRI scan revealed several sites of cerebral bleeding.

 

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

 

12.       A Child Protection Order was sought and granted on 10 January 2013.  The application is produced at 6/3 of process and a copy of the Order is produced at 6/4 of process.  TRW was discharged from hospital to foster carers on 10 January 2013 and has remained in foster care since.  A Children’s Hearing held on 14 January 2013 continued the Child Protection Order without variation.  The Respondent and MW were in attendance at the said Children’s Hearing. [6/37]

 

13.       At a Children’s Hearing held on 22 January 2013, grounds of referral were put to the Respondent and MW.  A copy of the grounds of referral put to them is produced at 6/35 of process.  A warrant was issued authorising that TRW be kept in a place of safety with a condition that he has contact with his parents a minimum of twice per week to be supervised by the Petitioner.  A copy of the warrant of produced at 6/33 of process.  The reasons for the decision are produced at 6/34 of process.  The Respondent and MW were in attendance at the said Children’s Hearing.

 

14.       Both the Respondent and MW were charged by police on 24 January 2013 with an offence contrary to section 12 of the Children and Young Persons (Scotland) Act 1937, being wilful neglect.  Neither appeared in court.  Neither has been prosecuted. [6/11]

 

15.       At an Initial Child Protection Case Conference held on 28 January 2013, TRW was registered on the Child Protection Register. [6/64]  A copy of the Minute of the said Case Conference is produced at 6/6 of process.  Neither the Respondent nor MW attended the Conference.

 

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 has contact with his parents a minimum of twice per week supervised by or on behalf of the Petitioners.  A copy of the warrant is produced at 6/30 of process.  Neither the Respondent nor MW attended the Children’s Hearing.

 

17.       A Looking After Children in Scotland:  Good Parenting, Good Outcomes Review of the Care Plan meeting was held on 18 February 2013.  A Minute of the said meeting in produced at 6/75 of process.  Both the Respondent and MW were in attendance.

 

18.       At a Children’s Hearing held on 4 March 2013, a warrant was issued authorising that TRW be kept in a place of safety with a condition that he has contact with his parents a minimum of twice per week supervised by or on behalf of the Petitioners.  A copy of the warrant is produced at 6/28 of process.  The Respondent and MW were in attendance at the said Children’s Hearing.

 

19.       A Looking After Children in Scotland:  Good Parenting, Good Outcomes Pre Permanency Review meeting was held on 21 May 2013.  A Minute of the said meeting is produced at 6/72 of process.  Both the Respondent and MW were in attendance.

 

20.       On 14 June 2013, a warrant was issued at [a] Sheriff Court authorising TRW to be kept in a place of safety with a condition that he have contact with his parents a minimum of twice per week supervised by the Petitioner.  A copy of the warrant is produced at 6/27 of process.

 

21.       On 26 July 2013, a warrant was issued at [a] Sheriff Court authorising TRW to be kept in a place of safety with a condition that he have contact with his parents a minimum of twice per week supervised by the Petitioner.  A copy of the warrant is produced at 6/26 of process.

 

22.       A Child Protection Review Case Conference was held on 29 July 2013.  A Minute of the said Conference is produced at 6/56 of process.  Neither the Respondent nor MW attended the conference.  TRW’s registration on the Child Protection Register was continued at the said Conference. [6/57]

 

23.       On 16 August 2013, a warrant was issued at [a] Sheriff Court authorising TRW to be kept in a place of safety with a condition that he have contact with his parents a minimum of twice per week supervised by the Petitioner.  A copy of the warrant is produced at 6/25 of process.

 

24.       Grounds of referral were established at [a] Sheriff Court on 23 August 2013 without evidence being led.  The grounds of referral established are produced at 6/7 of process.  A Children’s Hearing was arranged to consider the grounds of referral established. [6/24]

 

25.       On 19 September 2013, the Children’s Hearing issued a warrant to retain TRW in a place of safety with a condition that he has contact with his parents a minimum of twice per week to be supervised by or on behalf of the Petitioner.  A copy of the Decision of a Children’s Hearing and the warrant is produced at 6/23 of process.  The Respondent and MW were in attendance at the said Children’s Hearing.

 

26.       On 9 October 2013, the Children’s Hearing issued a Warrant authorising TRW to be kept in a place of safety with a condition that he have contact with his parents a minimum of twice per week to be supervised by or on behalf of the Petitioner.  A copy of the warrant is produced at 6/19 of process.  The reasons for the said Warrant being issued are contained in the Decision of a Children’s Hearing produced at 6/20 of process.  The Respondent and MW were in attendance at the said Children’s Hearing.

 

27.       A Children’s Hearing was held on 29 October 2013.  A copy of the decision is produced at 6/17 of process and is true and accurate.  The Respondent and MW were in attendance at the said Children’s Hearing when a Compulsory Supervision Order was made with a requirement that TRW reside with foster carers and have contact with his parents a minimum of once per fortnight, said contact to be supervised by or on behalf of the Petitioner.

 

28.       A Children’s Hearing was held on 26 November 2013.  A copy of the decision is produced at 6/2 of process and is true and accurate.  MW did not attend the said Children’s Hearing.  The Respondent was in attendance.

 

29.       At a Review Child Protection Case Conference held on 23 January 2014 TRW’s name was removed from the Child Protection Register. [6/51]

 

30.       A Children’s Hearing held on 14 October 2014 continued the child’s Compulsory Supervision Order without variation. [6/128].”

 

[6]        I turn now to consider the evidence. At proof the petitioners adduced the evidence of 19 witnesses.  Evidence was provided by way of affidavit supplemented by oral evidence from:  Marion Duffy, Dr Sheena Milne, Dr Joan Ritchie, Dr Rachel, Dr Kaseem Ajilogba, Dr Alistair Wilkinson, Christine Robertson, Kate Mitchell, PC Craig Mure, PC Scott McCrandle, Linda Rowley, PC Philip Shepherd, DC Ian Hughes, Linda Cacoca, Mrs W, Aileen Morrison, Anne Murphy, Russell Murray and Karen Love.  Accordingly the court had available for consideration evidence from the social workers directly responsible for supervising the child in his care placement, the social worker who had been responsible for the oversight of decisions taken at committee level in relation to the child, the care worker predominantly responsible for supervising contact between the child and the respondent, the social worker liaison officer between the foster carer and the petitioners, the foster carer, the doctors responsible for aspects of the treatment and care of the child following his sustaining injury on or about 29 December 2012 and the police officers who had dealings with the respondent and MW on 29 November and 28 December 2012 and subsequent dates.

[7]        In addition to the witnesses who gave parole evidence in supplement to affidavits the petitioners sought to rely on affidavits from three witnesses who did not give oral evidence.  These witnesses were Maureen Drysdale, an employee of the petitioners who works in the Housing Department.  Counsel for the respondent indicated that there would have been no cross examination of this witness and therefore did not object to her affidavit being considered as part of the evidence in the case.  The other two witnesses in this category were Dr Naomi Kerr, the medical advisor to the petitioners’ permanency panel and Lesley Crichton, a nursery nurse who supervised contact between the child and the respondent and MW for a period of three months in 2013.  Counsel for the respondent objected to the evidence from these two witnesses being considered on the basis of their non-availability for cross examination.

[8]        The respondent, CM, gave evidence on her own behalf.  Her evidence comprised an affidavit sworn on 3 November 2014 supplemented by parole evidence.  In addition she adduced evidence from MW, again by way of affidavit supplemented by parole evidence.  Lastly evidence was led from Dr Anna Christina Mary Robinson, an independent social worker.

[9]        The evidence which was adduced presented the following picture.  After his birth the child lived with his parents between 7 November and 29 December 2012.  Beyond routine visits by a midwife and health visitor, the first involvement of the respondent and MW with an external agency after the birth of the child arose out of events on 29 November 2012.  On that date PC Craig Muir spoke to attending at the house occupied by the respondent and MW as a result of a call out where the respondent complained she had been assaulted.  At that time the child was present in the house under the care of the respondent and MW.  The respondent stated to police officers that she had “had a couple of glasses of cider”.  The officer did not consider she was drunk.  MW was removed by police to an alternative address.  PC Milne was required to complete and submitted for transmission to the petitioners’ social work department a “Child Concern Form” (No 6/14 of process) regarding this incident.

[10]      The next involvement commenced in the early hours of 28 December 2012 when the police were again summoned to the respondent and MW’s address by emergency call from the respondent’s mobile phone.  On this occasion the respondent was, as she accepted, intoxicated.  She has given differing accounts on different occasions as to the amount of alcohol she had consumed.  What did emerge from the evidence was that she had been consuming alcohol since about the afternoon of 27 December, had been involved in an altercation with a female neighbour and that there had been an argument between her and MW.  The child was in the house under the care of the respondent and MW.  The police officers in attendance determined to remove MW for questioning to a police office.  They did not consider it safe to leave the child in the care of the respondent and, on her request, contacted her step-father who attended and temporarily removed the child to the home he shared with his wife, the respondent’s mother.  MW was released from police custody after questioning and returned to the house at about 6.00am.

[11]      At proof it was accepted that the child was returned to the care of the respondent and MW at around 8.30 – 9.00am on 28 December and remained in their care until removed by ambulance to hospital at about 5.00pm on 29 December.  That position was not the case presented by the respondent before she gave evidence at proof.  As a matter of pleading the respondent averred that “around 10am” on the morning of 28 December the child “…was taken out by the maternal grandparents.”  This was averred to be unplanned.  The child was said to be brought back “…in the early afternoon.” (Answer 11a for the respondent).  This position was not merely stated in the respondent’s pleadings but was represented to the child’s curator ad litem when she prepared her report in March 2014 (curator’s report page 4 foot) and was stated in her affidavit sworn on 3 November 2014 (at paragraph (10)) which was intended to form her evidence in chief.  With the exception of the pleadings the same position applies for MW.

[12]      At about 5.00pm on 29 December the respondent contacted emergency services and the child was removed to hospital by ambulance.  After admission to hospital the child was found to have suffered serious and significant non-accidental injuries (Drs Ritchie, Miller, Ajilogba and Wilkinson).  He had several sites of cerebral bleeding (Drs Ritchie, Miller, Ajilogba and Wilkinson) from an inflicted injury (Drs Ritchie, Miller and Wilkinson).  He had three rib fractures – one fracture of the left 10^th rib posteriorly; one fracture of the left 11^th rib posteriorly; and one fracture of the right 11^th rib posteriorly (all at the back of the body, adjacent to the spine) (Drs Ajilogba and Wilkinson).  He had a crush fracture of the 2^nd lumbar vertebra which is in the middle of the back (Drs Miller, Ajilogba and Wilkinson).  Those injuries would have resulted in pain and suffering to TRW (Dr Ritchie).

[13]      On 31 December the child developed seizures as a result of the injuries to his brain and required to be transferred to the Royal Hospital for Sick Children in Edinburgh (Drs Ritchie and Miller).  He was treated for the seizures and returned to his local hospital on 7 January 2013.  The type of brain injuries suffered by the child were described as being like those  caused by a fall from height  or a road traffic accident where the car is travelling at 35 miles per hour or above (Dr Miller).  No evidence of the child having fallen from height or been in a road traffic accident was before the court.

[14]      The crush fracture of the lumbar vertebra was caused by compression force on the spine and was likely to have been caused by slamming the child’s bottom onto a surface at high speed (Drs Wilkinson and Miller).  During the course of hospital treatment the child had a lumbar puncture to exclude a viral cause for the brain insult.  The fracture of the lumbar vertebra is not in the area of the back where lumbar punctures are performed.  Further, the nature of the fracture of the lumbar vertebra is not consistent with an injury caused by a lumbar puncture.  In any event, lumbar punctures do not involve the compression of the spine (Dr Wilkinson).  Rib fractures and vertebral fractures are extremely uncommon in domestic accidents or even road traffic accidents.  They do not occur during normal parenting or domestic accidents (Dr Wilkinson).

[15]      The child’s brain injuries and rib fractures are compatible with him being shaken with a degree of force greater than that encountered in normal handling of a child of his age (Drs Ritchie and Miller).  He could develop cerebral palsy caused by a brain injury in the first two years of life (Dr Ritchie).  The child has suffered delayed development – his motor skills were slightly delayed which could be caused by his injuries (Dr Ritchie) and he has been referred to speech and language therapy as his speech is delayed (Aileen Morrison).

[16]      Timing of the injury is dependent upon an accurate history of the period leading up to the onset of neurological features being given by carers present (Drs Ritchie and Miller). Medical opinion was that from physical appearance it was impossible to time the injuries more precisely than having been sustained within 72 hours of admission to hospital.  Dr Ritchie, an associate specialist in paediatrics, and Dr Miller, a forensic physician, both however expressed the view in their oral evidence that if a baby is previously normal and healthy and suddenly changes to being abnormal displaying features of encephalopathy, which on the evidence is the position here, then the point of change is likely to be the point of injury.  

[17]      On discharge from hospital the child was placed with local authority foster carers on 10 January 2013, has remained with the same carers since that date and has never been returned to the care of the respondent and MW.  On 28 January 2013 an Initial Child Protection conference was held at which the following categories of risk associated with the child were identified:  domestic abuse, parental alcohol misuse, parental drug abuse, non-engaging family, physical abuse, emotional abuse and neglect.  The respondent and MW were sent the minutes of this conference which detailed a Child Protection Plan which stated that if the plan was not adhered to, or if assessments were not positive, this would affect decisions relating to contact or rehabilitation of the child to their care.  They were further made aware that a rehabilitation plan could only be introduced on evidence of reduction in future risk to the child through alcohol or drug misuse on their part.

[18]      The petitioners attempted to facilitate contact between the parents and the child.  They attempted to facilitate and put in place assistance of both a practical and educational nature in order to prepare and put the parents in a position where they could be considered as custodians of the child.  On the balance of the evidence the respondent and MW did not co-operate or constructively engage with these offers of assistance.

[19]      There was evidence from the social workers involved with the family in the execution of the child protection plan (Ms Duffy, Ms Robertson and Ms Mitchell) that both the respondent and MW were aggressive, confrontational and hostile towards them.  On the evidence of Ms Robertson, the level of aggression and hostility exceeded the level that might be expected from parents in the admittedly difficult position of these parents and was greater than anything experienced by her in her career in social work.  The respondent and MW have verbally abused and threatened both Ms Duffy and Ms Robertson.  The degree of aggression and hostility on the part of the respondent and MW has prevented the petitioners’ employees from working with the parents to benefit the child and his welfare.  The respondent accepted in cross examination that her aggression and hostility towards the petitioners’ employees has not benefitted the child.  Specific examples given in evidence were that MW responded in an aggressive and hostile manner to straightforward advice about the placing of a towel on a radiator.  He responded in an aggressive and hostile manner to the requirement for the petitioners to notify the Department of Work and Pensions that the child had been in foster care for a period in excess of six weeks.

[20]      The result of these problems was, in the opinion of the social workers, that both parents demonstrated a lack of insight into the child’s needs and failed to properly understand the magnitude of the task facing them in proving that they were satisfactory and safe custodians of the child.  These social workers spoke to the child’s needs not being met during contact.  It was accepted by both Ms Duffy and Ms Mitchell that the respondent has, on sporadic occasions, been more receptive to advice tendered during contact but there has been no consistency in implementing such advice as a result of which progress has been limited.

[21]      The petitioners were aware of problems in relation to implementation of the child protection plan and, as one consequence, sought to arrange referrals to external agencies providing counselling and advice to parents in the position of the respondent and MW.  Both parents were offered support from a Barnardo’s service operating in West Lothian.  They did not attend the appointments offered to them and the service was withdrawn.  Both the respondent and MW expressed interest in attending a money management course at Livingston Family Centre but failed to follow up with attendance.  The respondent was offered counselling on alcohol by a referral to West Lothian Drug and Alcohol Service, but did not keep appointments and as a consequence was discharged by the service for non-engagement.

[22]      In addition to these problems, the view was expressed by the social workers (Ms Duffy and Ms Mitchell) that neither the respondent nor MW have shown a commitment to contact with TRW.  Both have missed contact sessions.  They have both been late for contact sessions on repeated occasions (Ms Duffy, Ms Mitchell, Mr Murray).  Both Ms Duffy and Ms Mitchell and the care assistant Mr Murray expressed the view that, during contact, both the respondent and MW failed to respond to the child’s cues and gave him inconsistent messages.  Ms Duffy and Mr Mitchell expressed the view that contact does not benefit TRW, an opinion which was at least partially shared by Mrs W, the child’s foster carer.

[23]      In relation to alcohol and drug misuse I have already noted that on 29 November 2012 the respondent was found by police officers to have been drinking whilst the child was in her care, on 28 December 2012 whilst the child was again in her care she was found by the police to be intoxicated.  In the period following the child’s reception into care the respondent advised social workers that she had an alcohol problem, she stated she was a binge drinker, and as a consequence a referral to an alcohol counselling service was arranged.  She did not attend appointments with the referral agency.  In evidence she maintained that she no longer abused alcohol and drank only on social occasions and then only in moderation.  Because of her failure to engage with the alcohol counselling service there is no independent verification of this evidence.  The respondent also disclosed in evidence that she uses cannabis, albeit she said never in the house.  She stated that she smoked cannabis when she was out walking her dog.  MW accepted that he smoked cannabis, again stating that this happened outside the house.

[24]      Against this body of evidence the position of the respondent and MW was that they had no explanation for the injuries sustained by the child.  They both said they had thought hard for any possible explanation to account for the injuries, but without success.  In relation to the implementation of the care plan and their attitude to the social work department, both candidly stated that at times they both felt and expressed hostility towards the social workers.  This was perhaps most marked in the case of MW who admitted that as a result of his own childhood experience he could never trust social workers.  They both accepted that there were times when they either missed contact sessions completely or arrived late.  They stated that in the early period after the child was taken into care this was a result of, using their language, their “unstructured lifestyle”.  They also sought to place blame upon the social work department for arranging contact sessions at a location which was inconvenient for them, in the sense that it involved a change of bus en route, without apparently appreciating that the venue was chosen because of its convenience for the child and his carers.  They also accused the social work department of failing to provide bus fares, a charge refuted by social workers.

[25]      In relation to the issue of alcohol abuse the respondent sought to rely upon a hair analysis in a report from AlphaBiolabs dated 21 October 2014 (No 7/4 of process) as evidence that she no longer abused alcohol.  This report was not agreed and was not spoken to by its author.  Moreover the report did in fact detect alcohol related substances in the hair sample, the author apparently accepting an explanation that the sample provider had been using a cosmetic hair product containing alcohol.

[26]      Evidence was also adduced by the respondent from Dr Robinson, an independent social worker.  Dr Robinson expressed the view that the petitioners’ “case records and data” regarding the child, the respondent and MW were “good”.  In relation to the handling of the case by the social workers involved she stated that “she was not in a position to criticise anybody.”  Her only observation was that whilst the petitioners’ records disclosed lack of co-operation by the respondent and MW with the petitioners’ social work department and the various outside agencies they had been referred to, there was some indication in those records of benefit being obtained by the respondent and MW from their attendance at “mellow mums” and “mellow dads” classes.  She described what she inferred from the reports of these classes were “glimpses” that the parents may have begun to understand that their own parenting was not helpful to them and, further, some appreciation that they could make more of contact sessions in the sense of attempting to understand the needs of the child.  Dr Robinson expressed the view, somewhat tentatively having regard to all the circumstances of these persons, that this might have been an indication on the part of the respondent and MW of the difficulties they were experiencing in parenting and might therefore have justified a further course of “mellow mums” and “mellow dads” classes which could have been followed by a further assessment of their parenting ability.  Beyond this Dr Robinson accepted that the parents’ lack of insight into their own difficulties in regard to parenting, lack of insight into the needs of the child and refusal to engage properly and consistently with social workers and referral agencies were themselves factors which the petitioners required to take into account in assessing risks posed by the respondent and MW to any rehabilitation process.

[27]      In relation to the evidence I will deal firstly with the issue concerning the petitioners’ witnesses Dr Kerr and Ms Crichton who provided affidavits but were not available to give oral evidence at proof, thereby depriving the respondent the opportunity to cross examine.  Had the material contained in the affidavits been determinative of any issue in this application then this point might have been significant. In the event however I am satisfied that the evidence of these witnesses is not in that category.  I do not consider that the evidence of these persons adds anything of materiality to the petitioners’ case.  In these circumstances I consider the pragmatic way to proceed is to state that I have considered the affidavits of Dr Kerr and Ms Crichton, that it has not been of materiality in my determination of this application and therefore I attach no weight to this evidence.

[28]      The next issue I address is the reliability and credibility of the witnesses, a factor of significance in this case.  I consider that all of the petitioners’ witnesses and the respondent’s witness Dr Robinson gave their evidence in a clear and reasonable manner.  There was nothing in the demeanour of any of these witnesses which caused me to have any doubt that they were, to the best of their ability, attempting to assist the court and give to the best of their recollection or, in the case of the medically qualified witnesses and Dr Robinson, professional ability, accurate answers.  I accordingly considered all these witnesses to be credible and reliable.

[29]      Different considerations apply to the respondent and MW.  As already noted, this case was the subject of case management.  On 24 September 2014 as part of the management of the case, an order was pronounced appointing the respondent to lodge affidavits, list of witnesses and inventories of productions upon which they intended to rely no later than 21 October 2014.  That deadline was not met but at a subsequent by order on 29 October 2014 authority was granted to lodge affidavits no later than close of business on 4 November 2014.  Affidavits dated 3 November 2014 were lodged on 13 November 2014.  On 7 November 2014 the petitioners lodged in process statements taken by police officers from the respondent and MW on 31 December 2012 relating to the events within the house occupied by the respondent and MW on 28 December 2012.  Evidence about these statements was taken at proof from the police officers who took them.  These statements contained information, coming from the respondent and MW, which was inconsistent in material respects with the narrative of the events of 28 December 2012 stated in the answers and, further, represented to the curator ad litem in March 2014.  Evidence was led at proof that following sight of the police statements on or after 7 November 2014 a consultation was arranged between the respondent, her agents and counsel on Saturday 15 November 2014.  Following this consultation on 17 November 2014 counsel then acting for the respondent withdrew.  No supplementary affidavit was ever lodged.  At the commencement of the respondent’s case, after the closing of the petitioners’ case, the position of the respondent in relation to the events of 28 and 29 December 2012 remained as stated in her answers and affidavits.  That position was that following return of the child to the care of the respondent and MW on the afternoon of 28 December 2012 there was a further period commencing at around 10.00am on 29 December 2012 and concluding in the early afternoon of the same day when the child was in the care of the respondent’s mother and stepfather and outwith the presence and care of the respondent and MW.  Shortly after the return of the child into the care of the respondent and MW they observed the symptoms noted in paragraph 10 of the joint minute in relation to the child and telephoned “999” for assistance.  This position was departed from in evidence in chief for the respondent.  Exactly the same position applies in relation to the evidence of MW.  When paragraph 11 of her affidavit (the relevant passage is paragraph 6 in the affidavit of MW) was put to her she unequivocally accepted that in its narration of the care of the child in the forenoon and early afternoon of 29 December the affidavit was “incorrect” a suggestion put to her by counsel rather than her own spontaneous choice of language.  In cross-examination it was put to both the respondent and MW that they had lied when swearing the affidavits and that the purpose of lying had been to provide other potential perpetrators who might be responsible for the non-accidental injury which by the time they swore the affidavits they knew the child had sustained.  Both denied this was the purpose.

[30]      The affidavits of the respondent and MW were demonstrated in evidence to contain further inaccuracies.  A relatively minor detail, both affidavits bore to have been sworn in Glasgow whereas both deponents stated that they were in fact sworn in a place in West Lothian.  The respondent accepted that testimony in paragraphs 3, 7, 8, 10 and 14 was incorrect.  In relation to all the inaccuracies in the affidavits the only explanation proffered by the respondent was that she was young, inexperienced, did not understand the process she was involved in, confused the 29 December with actual events at an earlier date and that pressure was being placed upon her to explain the injuries sustained by the child.  MW’s position was different.  He stated that he had not provided any information upon which an affidavit could be framed.  He had attended on request at the respondent’s solicitors office in West Lothian, in the company of the respondent, and been shown to a waiting room.  The respondent was taken to another room.  The respondent’s solicitor then came and spoke to him, said he would prepare an affidavit and left for that purpose.  He returned after about 45 minutes with a document bearing to be an affidavit of MW.  MW was given the opportunity to read it, he gave it a “quick look”, a couple of inaccuracies caught his eye.  He asked for these to be changed, they were.  He then signed the affidavit.  When the errors in his affidavit in relation to the events of 29 December were put to him in both examination in chief and cross he said, as I understood him, that he didn’t notice them, or that they didn’t “stand out.”

[31]      I found many aspects of the evidence in relation to the preparation of the affidavits of the respondent and MW highly unsatisfactory.  In relation to the errors in relation to the events of the 29 December it must have been obvious that these were contradicted by information in the police statements from lodging of these documents on 7 November 2104, very shortly after the affidavits were sworn.  It seems reasonable to infer from the circumstances I have narrated that these issues were the reason for and the subject of discussion at the consultation on 15 November 2014.  The accuracy of the version in the police statements was accepted at proof, by both the respondent and MW.  Notwithstanding, the version of events in the affidavits and, further, in the pleadings, stood uncorrected until after the petitioners’ proof had closed.  I have been offered no satisfactory explanation for this state of affairs.  I recognise that the respondent and MW were at the time of these events relatively young, that they were inexperienced parents, that they had limited family support and were in financially difficult circumstances.  I do however equally require to consider that the child was very seriously injured, that on the unchallenged and unanimous medical opinion these injuries were non-accidental and that on now unchallenged evidence the child was in the sole care and control of the respondent and MW for a period of about 20 hours prior to the emergency call regarding his condition on 29 December.  I also require to consider that the respondent gave evidence that MW had, in her words, “shaken” the child, which she later attempted to explain as “dancing the baby”, albeit non-maliciously, when playing with the child on the afternoon of 29 December.  I have also to consider that they provided a version of events now accepted as untruthful to the curator ad litem in their discussion with her on 20 February 2014.

[32]      Yet further I have to have regard to the nature of the inaccurate material in the affidavits.  First there was consistency in the wrongful accounts of the respondent and MW which is highly suggestive of collusive behaviour.  Second, the content was plainly designed to suggest that other persons, the respondent’s mother and step-father, had care and control very shortly before the injuries were reported.  It is I think, having regard to these features, difficult to conclude other than that there was in these affidavits a deliberate attempt to mislead the court on a matter that was of the highest importance in the determination of this application.

[33]      One further matter requires to be mentioned at this juncture.  I have already narrated MW’s account in his evidence of the circumstances in which he swore his affidavit on 3 November 2014 (see paragraph [30]).  On MW’s evidence the affidavit was not prepared on the basis of any prior statement by him but was effectively created by the solicitor instructed by the respondent.  As already noted MW departed in a material sense from the terms of the affidavit when giving oral evidence in court.  It appeared to me that the version of events regarding the swearing of the affidavit spoken to by MW in his evidence at proof, if true, raised issues relating to the conduct of the responsible solicitor as an officer of court.  Having regard to that consideration I raised the issue of the swearing of the affidavit of the respondent and MW with counsel for the respondent during the course of her submissions.  The solicitor instructed by the respondent was absent on the day of submissions (27 February 2015), albeit a representative of that solicitor’s firm, who had been provided with the case file, was in court.  The alternative solicitor was not however able to assist counsel in a manner which would have enabled her to adequately address the issue of the swearing of the affidavits of the respondent and MW.  In these circumstances, whilst submissions were otherwise concluded, I continued the case to afford the opportunity of the issue regarding the affidavits to be addressed when counsel had adequate instructions.  At a subsequent hearing for this purpose on 16 March 2015 the solicitor was present in court and, having sought advice from the Law Society of Scotland, was separately represented.  I was advised by counsel that the solicitor did not accept the account given by MW in evidence of the signing of his affidavit.  It was represented that both the respondent and MW had been precognosced on two separate occasions prior to the preparation of their affidavits.  In the respondent’s case, the first precognition had been taken during a face-to-face interview, the second during a telephone interview.  So far as MW was concerned, both precognitions had been taken during telephone calls.  Affidavits were drawn up on the basis of the information in the precognitions and were available for consideration, and if approved, signature by the respondent and MW on their arrival at the solicitor’s offices in West Lothian on 3 November 2014.  In MW’s case he had, on arrival at the solicitor’s office, been provided with the draft affidavit prepared on the aforesaid basis.  He had been left alone in a waiting room to consider its terms for a period of approximately 45 minutes.  On the solicitor returning MW suggested a number of minor changes, which were given effect to immediately, and thereafter the affidavit was sworn.  A contemporaneous file note, confirmatory of the foregoing, had been seen by counsel instructed on behalf of the solicitor.  The solicitor’s explanation of the signing of the affidavit was not, of course, adduced as evidence during the course of the proof.  To that extent it was not subject to the potential of challenge.  It was however information provided by an officer of court in circumstances where that person had considered it necessary to consult his professional body before proffering the information.  The information, if accepted, is suggestive that in relation to the circumstances of the swearing of the affidavit, MW was untruthful to the court in his evidence.

[34]      Having taken the foregoing into account I conclude that there was a deliberate attempt to mislead the court.  That is an objective basis for a finding that the respondent and MW were neither truthful nor reliable witnesses.  I am only prepared to accept evidence from these witnesses where it is supported and corroborated from an independent source.

[35]      Against the evidential background I have narrated, counsel for the petitioners made eight propositions.  These are as follows:

1.         On the balance of probabilities, the child suffered non-accidental injuries while in the care of the respondent and MW between the night of 28 December 2012 and the dialling of “999” at about 1700 on 29 December 2012.

2.         The child’s residence with each of the respondent and MW is, or is likely to be, seriously detrimental to the welfare of the child.

3.         The effect of making a permanence order with ancillary provisions will secure the permanent care of the child and will regulate arrangements for contact.

4.         The making of a permanence order with ancillary provisions is in the best interest of the child.

5.         It is better for the child that a permanence order with ancillary provisions is granted than no order be granted.

6.         Adoption will secure the welfare of the child throughout his lifetime.

7.         The conditions in section 83(1) of the 2007 Act are met.

8.         It is in the best interests of the child for authority to adopt to be included in the permanence order and it is better that authority to adopt be included in the permanence order than not.

[36]      In response to these submissions counsel for the respondent submitted that the court could not be satisfied that the respondent or MW were responsible for the injuries sustained by the child.  It was accepted that whilst there had been difficulties in relation to contact, particularly in the earlier period following the child being taken into care and, further, that there had been incomplete engagement with the various agencies with whom they had been put in touch by the petitioners, there were at least signs of progress so far as the respondent and MW were concerned.  There was evidence that both parents had enjoyed and obtained benefit from the “mellow mums” and “mellow dads” classes that they had attended.  The respondent’s attendance at contact had improved in the more recent past.  In the same period, whilst MW had missed contact sessions, he had the legitimate excuse that these were during the working week and he had been absent working on contract at locations many miles from the contact venue.  Moreover, the financial position of the respondent and MW had improved and was now stable following the obtaining of paid employment by MW.  Throughout, both the respondent and MW had been loving towards the child and had displayed warmth and affection.  The problems with contact had at least in part been through a failure of the petitioners to properly appreciate friction between the respondent and MW on the one hand and the social workers on the other hand.  The petitioners had failed to adequately respond to that situation by considering a change in the responsible social worker.  It was further submitted that on the evidence of Dr Robinson, some improvement could be inferred from the results of the “mellow mums” and “mellow dads” sessions.  Having regard to that, a further course of intervention and counselling of that sort lasting approximately 12 weeks should have been undertaken.  That should have been followed with a review and, if the outcome of the review was satisfactory, an assessment and possible plan towards rehabilitating the child towards the care of the parents could have been contemplated. 

[37]      Against the background of these submissions on the evidence, counsel for the respondent submitted that the weight and quality of evidence justifying a significant decision, such as the granting of a permanence order, should be in proportion to the consequences of that decision.  Having regard to the fact that the consequence of such a decision was the removal of parental rights and responsibilities relating to a child and the child’s parent, the test should be regarded as a high one.  The court should not make a permanence order in relation to a child on the basis that that child could have a better childhood in the care of some person other than the natural parent.  The test could only be satisfied if the severing of family ties between parents and their children was a matter of necessity (ANS v ML 2013 (UKSC) 29 per Lord Reed at paragraph 34).  In the present case, having regard to the evidence, it could not be said that that high test had been satisfied.

[38]      It was further submitted that even if the appropriate test had been satisfied, the court still required to consider the question of whether the order sought ought to be granted (section 84(3) of the 2007 Act).  In this regard the court may not grant a permanence order unless it would be better for the child that an order be made than it should not be made (section 83(3) of the 2007 Act).  The need to safeguard the welfare of the child throughout his childhood is the paramount consideration when considering whether an order should be made and, if so, what provisions the order should make (section 84(4)).  Having regard to these considerations, it was submitted that the child could remain with the current carers, whom it was accepted loved him and cared well for him, without the order being made.

[39]      The final part of the respondent’s submission dealt with the ancillary conditions.  The petitioners sought to remove all parental rights and responsibilities other than indirect contact from the respondent.  If a permanence order was granted the respondent would automatically lose the right of residence.  It was the submission of the respondent that in the event of a permanence order being granted, it would not be in the child’s best interests to remove any other rights and responsibilities from her.  The court could not be satisfied that it would be in the best interests of the child for the respondent to lose her rights and responsibilities.   In particular, she wished to maintain direct contact with the child.  It was submitted that the child enjoyed contact with the respondent, showed loved and affection towards her and called her “mum”.  Beyond that it was submitted that the petitioners were seeking the severance of direct contact at a time when no prospective adopters have been identified.  Although the child was placed with the same foster carers as his younger sister, there was no guarantee that this situation would persist.  In these circumstances it was not in the child’s best interest that the respondent should lose the right of direct contact.

[40]      The starting point in consideration of the issues in this case is, in my view, a consideration of the evidence in relation to the serious non-accidental injuries sustained by the child.  The evidence of Drs Ritchie, Ajilogba and Wilkinson was powerful and, in its essentials, unchallenged.  The injuries were serious and would have occasioned pain and suffering to the child at the time of their commission and thereafter.  Both the brain injuries and the rib fractures were compatible with the child being shaken with a degree of force greater than that encountered in a normal handling of a child of that age.  Whilst it was impossible to time the injuries precisely, there was telling evidence from Drs Ritchie and Miller to the effect that the point of change in a baby’s behaviour is likely to be the point of injury.  On the evidence of the respondent and MW that change in behaviour was in the hours immediately prior to the calling of the ambulance at or about five in the afternoon of 29 December 2012.  In the period immediately prior to that event the child was in the care of the respondent and MW.  Moreover, and in my view importantly, the respondent and MW attempted from at least the time they were interviewed by the curator ad litem until the time when the first respondent gave evidence in court to suggest that there were other persons who had care of the child in the period immediately prior to the change in his behaviour.  Having regard to these factors I conclude that counsel for the petitioners is correct in her submission that on the balance of probabilities the child suffered non-accidental injuries while in the care of the respondent and MW.

[41]      I proceed from this finding to consideration of the conduct of the respondent and MW during the period when the child has been accommodated in care.  In my opinion it is well established on the evidence that the respondent and MW did not co-operate with the petitioners’ social work department in the child protection plan which was devised for the child.  I am satisfied that there were many instances when they were either late for contact or failed to attend completely.  I am equally satisfied that during some periods of contact they did not follow advice or guidance proffered to them and, beyond that, acted in an aggressive and hostile manner to social workers.  In my view such behaviour is proof of lack of insight into the nature of a parenting role and, moreover, of the needs of the child.  Such lack of insight is further demonstrated by the failure to engage, or adequately engage, with a number of external agencies with whom the petitioners placed them.  I do not consider that the benefit which I accept the respondent and MW obtained from the “mellow mums” and “mellow dads” classes was sufficient to overcome the negative factors of their other behaviour.  I accept the evidence of Dr Robinson that consideration might have been given by the petitioners to a further course if the success, which Dr Robinson realised was in any event limited, of “mellow mums” and “mellow dads” had been recognised.  Two considerations arise from this however.  First, as Dr Robinson conceded, it is not clear that the petitioners appreciated, or could reasonably have appreciated, the benefit which was gained from “mellow mums” and “mellow dads”.  If there was a failure to appreciate this by the petitioners it was caused by the otherwise hostile and uncooperative attitude of the respondent and MW.  Second, Dr Robinson accepted that decisions taken by the petitioners’ employees in relation to these matters were taken in a dynamic situation and against a very difficult background.  I did not understand Dr Robinson to be critical of the actual decisions taken by the employees concerned.  My understanding was that she was simply suggesting, and indeed somewhat tentatively suggesting, that a further course might have been an option.  Having regard to these considerations, I do not consider that any criticism of the handling of these matters can be justified.  Looking at the matter in the round, I am of the view that the respondent and MW have failed to engage with the child protection plan prepared by the petitioners and, further, failed to engage with the agencies with whom the petitioners placed the parents.  The consequence of these failures is that there is no evidence that the respondent or MW have addressed or rectified their proven deficiencies as parents.  As a result I am satisfied that the petitioners have established that the respondent remains a serious risk to the child.  I am also satisfied that having regard to the respondent’s continued inability, or unwillingness, to engage with agencies who could offer assistance that that risk is likely to persist throughout the child’s childhood.  Having regard to the foregoing considerations I am satisfied that it has been established that the child’s residence with the respondent and MW is seriously detrimental to his welfare and, further, that this position will pertain throughout his childhood.  I am satisfied that the making of a permanence order will secure the permanent care of the child and be in his best interests.  He has been the subject of protective intervention orders for all of his life, save for the first two months thereof.  There is no dispute that he is well cared for.  He has spent his entire life, save for this first two months, with the family he now resides with.  Whilst it is correct that there are no prospective adopters under immediate consideration, the making of the permanence order will afford the child the opportunity to be brought up with a stable and caring family.  It remains the intention of the petitioners to find an adoptive family for the child.  There was evidence, not least from the respondent’s witness Dr Robinson, that there should be no difficulty in finding a suitable adoptive family for a child of this child’s age.  Having regard to these considerations I am satisfied that it is better for the child that a permanence order with the ancillary provisions sought be granted than no order be granted.  I am of the view that it would be best that authority to adopt should be included in the permanence order and that it is better that such authority should be granted than not.  In relation to the issue of contact, there was evidence from social workers and from the foster carer Mrs W that the child gained little from direct contact with the respondent and MW.  Whilst I accept that the respondent took a different view, I have concluded that in expressing her opinion she lacked insight into the situation.  There was a tendency throughout her evidence to view matters from her own perspective and without, in my opinion, adequate consideration of the position of the child.  It appears to me that a more objective view is that expressed by the social workers and Mrs W.  Having regard to those considerations I consider that contact in the future should be confined to indirect contact twice each year by way of letter.  Preservation of this link would at least, as the child grows older, allow him to be aware of the identity of his birth family whilst avoiding the difficulties and conflicts that might arise if direct contact were continued.  I am further satisfied that on the making of a permanence order, the need for a compulsory supervision order shall cease.  I shall accordingly make an order to that effect.

[42]      Having regard to all the foregoing I will grant the prayer of the petition and make the orders sought therein.  There is one further matter I should address.  I have already dealt with the issue of the swearing of affidavits by the respondent and MW on 3 November 2014.  The circumstances of the signing of these affidavits was a matter raised in submissions.   The respondent’s solicitor was absent at the hearing of submissions.  Although he instructed a substitute to be present, that person was not adequately instructed and therefore unable to provide information which the court required.  A further hearing was necessitated.  At the conclusion of that further hearing counsel for the petitioners sought the expenses of that by order and for such expenses to be made the personal responsibility of the firm of solicitors instructed by the respondent.  This motion was made on the basis that the hearing was only necessitated by the failure of the instructed solicitor to adequately instruct his substitute on material which, as must have been apparent from the tenor of the evidence, was likely to arise as an issue during the course of submissions.  In response to this motion counsel for the solicitor did not dispute that the issue of the affidavits was likely to arise in submission and, further, did not dispute that counsel appearing was not fully instructed in relation to this matter.  The only excuse tendered for this situation was that the solicitor required to take advice from the Law Society in relation to matters of client confidentiality and privilege before representations could be made to the court in relation to these matters.  I am not satisfied that that explanation is justified.  In the first place, the issue in relation to the signing of affidavits did not primarily concern the respondent but was focussed on the position of MW.  MW was not a client of the solicitor and therefore no issues of client confidentiality or privilege could arise.  Moreover, the evidence which gave rise to these issues was heard on 23 and 24 February.  Submissions were made on 27 February.  In these circumstances it appears to me that there was adequate time for the solicitor, if he had thought it necessary, to seek the advice of the Law Society.  Having regard to these considerations, I consider that the hearing on 16 March was necessitated solely by reason of fault on the part of the solicitor involved.  I shall accordingly find the firm personally liable in the expenses of that hearing.  I have not otherwise been addressed in relation to the expenses of the application.  The case shall be put out by order on the issue of expenses.