Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 60

AD12/14

 

Lord Justice Clerk

Lord Malcolm

Lord McGhie

 

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the reclaiming motion

by

WEST LOTHIAN COUNCIL

Petitioner and Respondent;

against

MB

First Respondent and Reclaimer;

and

KV

Second Respondent and Reclaimer:

for a Permanence Order

Act: Dowdalls, QC, Loudon; Morton Fraser

Alt (First Reclaimer): K Campbell, QC, Cartwright; SKO Family Law Specialists (for Aitkens The Family Law Solicitors)

Alt (Second Reclaimer): J Scott, QC, Aitken; TC Young Wilson Terris (for KW Law)

 

20 July 2016

Introduction

[1]        This case relates to an application by West Lothian Council (the respondent) for a Permanence Order in respect of a child, all under section 80 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”), and seeking certain ancillary provisions, in addition to provisions which are mandatory.  The mandatory provisions require the parental responsibility of guidance to be vested in the local authority, along with the parental right to regulate the child’s residence.  The ancillary provisions enable the court to vest further parental responsibilities or rights in the local authority (or another person), to extinguish responsibilities and rights of the natural parents or guardians and to specify such arrangements for contact as the court considers appropriate.  The application sought orders extinguishing the rights and responsibilities of the infant child’s parents (the first and second reclaimers), vesting them in the local authority and specifying that there should be no contact.  A Permanence Order may also include an order granting authority to adopt, in which case certain further conditions require to be satisfied. Such an order was sought in these proceedings

[2]        The Lord Ordinary granted the application in its entirety.  In this reclaiming motion (appeal) both reclaimers advance several grounds of appeal, relating to all aspects of the Lord Ordinary’s interlocutor, all of which were resisted by the respondent.  However, by the time of the hearing the respondent had decided that the Lord Ordinary’s reasoning on the adoption aspect of the case could not be supported and that the appeal would not be contested in that respect.  However, they continued to resist the appeal in so far as relating otherwise to the Permanence Order.

[3]        The criticisms of the Lord Ordinary advanced in the reclaimer’s notes of argument in relation to the issue of authority to adopt had included that:

• he did not address the question of whether he was satisfied that the child was placed for adoption, or was likely to be so placed.
• he dispensed with the parents’ consent to the making of an adoption order both on the basis (i) that they were unable satisfactorily to discharge those responsibilities and/or exercise those rights, and were likely to continue to be unable to do so; and (ii) that the welfare of the child requires consent to be dispensed with. These conditions are not cumulative, and the Lord Ordinary should have proceeded under one or the other, or at least made it clear that the second was satisfied only on an esto basis.
• it was not clear that he had applied the test of considering the welfare of the child throughout her life, which is a requisite for authority to adopt, his opinion only referring to the need to consider such welfare throughout childhood, the standard applicable to a Permanence Order.

[4]        Senior counsel for the respondent explained that the decision not to support the Lord Ordinary’s decision in relation to authority to adopt had been taken because it was felt that it would be difficult to support or justify his reasoning on these and other issues, not because of any change of heart relating to whether adoption was the best future option for the child.  However, the issue relating to the making of a Permanence Order was in shorter compass, and whilst the Lord Ordinary’s reasoning was not as clear as it might be, it was maintained that he had identified and applied the correct tests.

[5]        The conditions for making a Permanence Order are contained in section 84 of the 2007 Act, which in so far as relevant provides:

“(1)      …….

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

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

(4)        In considering whether to make a permanence order and, if so, what provision the order should make, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.

(5)        Before making a permanence order, the court must—

(a)        ……

(b)        have regard to—

(i)         any such views the child may express,

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

(iii)       the likely effect on the child of the making of the order, and

(c)        be satisfied that—

(i)         there is no person who has the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with the person or otherwise to regulate the child's residence, or

(ii)        where there is such a person, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.

(6)        ……..”.

 

[6]        The Lord Ordinary referred to the statutory provisions at the outset of his opinion, noting that it was a matter of agreement that these were the relevant statutory provisions, and referred to the case of TW v Aberdeenshire Council [2012] CSIH 37, 2013 SC 108 as setting out the correct approach to subsection (5).  Parties were agreed that this sets a threshold test, which requires to be satisfied before consideration may be given to the remaining terms of the section or to the making of a Permanence Order.

[7]        The primary arguments in the reclaiming motion centred on whether the Lord Ordinary had applied the threshold test; whether he had considered the need to promote the child’s welfare throughout childhood as a paramount consideration; whether he had made sufficient findings to allow the application of the relevant tests; and finally whether his decision in respect of contact could stand.

 

Background
[8]        The application for a Permanence Order averred:

• that the child’s residence with the reclaimers was likely to be seriously detrimental to the welfare of the child, based on a list of risk factors which were set out in para 10(a). These included:
  • The first reclaimer’s continuing relationship with the second reclaimer, a man whom it was alleged presented a risk to her and her children, he having been charged with offences of a violent and sexually violent nature, which were not proceeded with because of the vulnerability of the complainer;
  • That the second reclaimer had stated that he wanted to have sex with the child’s female half-sibling, born in December 2004;
  • That there was an absence of protective factors; and
  • That when the child was born, in August 2013, the second reclaimer had threatened that if he was not handed the child he would kill the first reclaimer, her social worker and her support worker.

The petition also averred:

• That the first reclaimer attended 4 out of 6 Parenting Capacity Assessment sessions offered, and that the assessment concluded that she did not have the capacity to meet the needs of the child;
• That the first reclaimer had been offered 56 contact sessions with the child but had availed herself of only 18. It is averred that she has attended less frequently more recently, that the quality of contact was poor, that significant support and guidance were required to ensure that the child’s needs were met during contact, that the child appeared to gain little from contact and that there was no bond between the child and her mother.

[9]        In answer, the respondent’s concerns were met with averments of not known and not admitted by the first reclaimer.  She denied that the second reclaimer had behaved violently or aggressively to her when they lived together.  The threshold test was not met in her case.  She was able satisfactorily to discharge her parental responsibilities and rights.  The child’s welfare would be best promoted by living with her birth family, which failing her welfare would be best promoted and safeguarded by continued direct and indirect contact with the first reclaimer.

[10]      The second reclaimer admitted that he had been charged with the offences averred by the respondent.  He continued to assert his innocence and relied upon there having been no prosecution.  The respondent had presumed that the allegations were true and it had failed to consider that they might not be true.  The respondent had failed properly and adequately to assess the parenting capacity of the second reclaimer.  Its decisions had been reached on a false premise.  In acting on a presumption that the allegations were true, the petitioner had excluded the second reclaimer from the life of the child.  That was disproportionate and contrary to the child’s best interests.  The second reclaimer was able satisfactorily to discharge his parental responsibilities, and to exercise his parental rights.  It was in the best interests of the child to live with the reclaimers, which failing it was in her best interests to be brought up by her paternal grandparents.  The orders sought by the petitioners were unnecessary, disproportionate and failed to safeguard and to promote the child’s welfare throughout her childhood and throughout her life.  There was no overriding reason in the best interests of the child for contact between the child and the second reclaimer being prevented.

[11]      The parties entered into a joint minute in which certain background facts were agreed, including:

“4.       [The first reclaimer] has two other children, MP, who was born on 7 December 2004 and FP, who was born on 18 April 2007, whose father is not KV.  On the recommendation of the [respondent] these children were placed with their father, Mr P, after his relationship with [the first reclaimer] broke down in or around mid-2012.  Following Mr P’s sudden death in 2013 both of these children were accommodated by the [respondent] and remain so accommodated.  The children have not been in [the first reclaimer’s] care since 31 October 2012.  A factor in the [respondent’s] decision not to allow these children to be returned to [the first respondent’s] care both before and after Mr P’s death was her relationship with [the second reclaimer].  [The first reclaimer] has regular contact with these two children.

…

7.         On 9 August 2013, [the second reclaimer] was charged with a contravention of Section 127(1)(a) of the Communications Act 2003.  The charge narrates that he sent [the first reclaimer] a message that was “grossly offensive or of an indecent, obscene or menacing nature”.  On 29 January 2015, [the second reclaimer] was convicted of this charge.  Production 6/40 is a true and accurate copy of an Extract Conviction relating to this conviction.  [The second reclaimer] was sentenced to pay a fine of £135.

8.         In December 2013, prior to the child’s birth, [the second reclaimer] moved to live with [the first reclaimer].

9.         On 30 December 2013, the date of the child’s birth, a Child Protection order was granted at Livingston Sheriff court, with a condition of non-disclosure of her address, for contact between the child and [the first reclaimer] to be supervised and for there to be no contact between the child and [the second reclaimer].  On 2 January 2014, the child was discharged from hospital into the care of foster carers and has since then remained accommodated by the [respondent].

….

12.       A Parenting Capacity Assessment relating to [the first reclaimer] began on 2 February 2014.  Six one-hour sessions were offered to her and she did not attend two sessions.  She missed one session due to missing her bus.  She was late for another session.  By the time [the first reclaimer] arrived for contact the child had been returned to her foster carers.  Production 6/5 is a true and accurate record of the Assessment Report prepared by Elisha McCulloch, Nursery Officer.

….

22.       Neither parent attended a Looked After Children Reviewing Hearing on 24 February 2015.

…

25.       The [respondent has] not, at any time, conduct a formal assessment of [the second reclaimer’s] parenting capacity.”

 

Submissions
First reclaimer
[12]      In moving the court to allow the reclaiming motion, Senior counsel submitted that the Lord Ordinary failed to address the threshold test in section 84(5)(c)(ii), which was not satisfied in this case.  Although the Lord Ordinary referred to section 84 and to TW v Aberdeenshire Council, there was no express discussion of either, nor any appropriate findings in fact to indicate that the Lord Ordinary had addressed the test.  He had failed to make appropriate findings in fact, and to provide adequate reasons (Macleod v Highland Health Board [2016] CSIH 25, paras. 94 – 96).

[13]      Much of the Lord Ordinary’s narration of the evidence concerned the allegations of criminal sexual conduct against the second reclaimer.  He expressly declined to make a finding in relation to the relevancy of that evidence, leading to an absence of findings supportive of a conclusion that the threshold test was met. 

[14]      There were no clear findings of detriment to the welfare of the child, let alone serious detriment. At paragraph 22 of his opinion, the Lord Ordinary concluded that “there was in my view plainly established before the court evidence of the concerns which caused the petitioners to proceed down the route of permanence”. That was not the test in terms of section 84(5). 

[15]      The first reclaimer made no submission in respect of that part of the Lord Ordinary’s order which prohibited contact between the child and either of the reclaimers.

 

Second reclaimer
[16]      Senior counsel for the second reclaimer aligned herself with the submissions of senior counsel for the first reclaimer. She submitted that the Lord Ordinary had failed to consider and to apply the threshold test in section 84(5)(c)(ii) as explained in KR v Stirling Council [2016] CSIH 36.

[17]      The Lord Ordinary had taken into account unproven allegations against the second reclaimer dating from 2010. Having expressly eschewed making a finding in relation to the allegations, the Lord Ordinary could not lawfully conclude that the allegations were relevant to his consideration of the threshold test (Re J (Children) [2013] 1 AC 680, Baroness Hale at [15] – [16]).

[18]      By taking judicial notice of the allegations without disposing of them “in terms of evidentiary assessment and reasoning”, the Lord Ordinary had fallen foul of the decision of the European Court of Human Rights in Sanchez Cardenas v Norway App. 12148/03, (2009) 49 EHRR 6, and violated the second reclaimer’s rights under Article 8 of the European Convention on Human Rights.

[19]      Senior counsel for the second reclaimer maintained that contact ought to be reinstated.  The effect of the Lord Ordinary’s interlocutor was to extinguish the reclaimers’ parental responsibilities and rights to contact, but the parental responsibility and right of contact could not vest in a local authority (2007 Act, section 82(1)(a)).  The child should not be left without any natural person to exercise contact.  There was an intrinsic value to contact between a child and her parents, recognised in domestic and international law.

 

Respondent
[20]      Senior counsel for the respondent invited the court to refuse the reclaiming motion and to adhere to parts 2, 4 and 5 of the Lord Ordinary’s interlocutor.  Standing the concession on the adoption aspect of the case, it was accepted that parts 1 (dispensing with parental consent to adoption) and 3 (granting authority to adopt) could not be supported.

[21]      It was submitted that the Lord Ordinary was entitled on the facts to conclude that the child’s residence with the first and second reclaimer was, or was likely to be, seriously detrimental to her welfare in terms of section 84(5)(c)(ii).  That the Lord Ordinary identified and applied the correct test was apparent from paragraph 5 of his opinion, where he refers to both the statutory provisions, and TW v Aberdeenshire Council, para [13] which set out the test. It was reasonable to infer that consideration was given by him to the test in reaching his conclusions.

[22]      Senior counsel emphasised the final paragraph of the Lord Ordinary’s opinion where he concluded: “I am satisfied that both for the safety and welfare of the child throughout her childhood it is necessary that the orders sought should be granted”, from which it was apparent that he had taken all of the relevant considerations into account and applied the correct test.

[23]      It was plain from the opinion as a whole that the Lord Ordinary had made findings in relation to (a) the criminal allegations and breach of bail; (b) the threats; and (c) the remarks relating to thoughts of a sexual nature regarding the mother’s eight-year-old daughter, and it was clear what those findings were.

[24]      The Lord Ordinary also had regard to valid concerns about the parenting skills of the reclaimers and their apparent inability to acquire such skills even with assistance from the respondent. 

[25]      The Lord Ordinary accepted evidence that the first reclaimer was assessed as having an IQ between 70 and 80 and a borderline capacity to participate in legal proceedings.  The Lord Ordinary accepted that the second reclaimer had difficulty with reading and writing and in understanding and managing money (paragraph [15]), and he accepted evidence of a lack of engagement by the first reclaimer with social workers, evidenced by a failure to attend contact sessions and inability to grasp other than the basic parenting skills.

[26]      The Lord Ordinary referred to the Joint Minute  in which it was agreed that the second reclaimer had been convicted of sending the first reclaimer a message that was “grossly offensive or of an indecent, obscene or menacing nature” (Joint Minute, paragraph 6, page 6 of the Lord Ordinary’s opinion).

[27]      In respect of contact, senior counsel for the respondent submitted that the Lord Ordinary’s interlocutor of 31 March 2016 did not extinguish the first and second reclaimers’ parental responsibilities and rights relating to contact.  The Lord Ordinary made the order which he considered to be in the best interests of the child, and that decision was necessary and proportionate, having regard to the paramountcy of the best interests of the child.

[28]      In making his decisions, the Lord Ordinary was alive to his duty to afford proper respect to the right to family life of the father and child.  The decisions were necessary and proportionate, having regard to the paramountcy of the best interests of the child.

 

Analysis
[29]      It would be correct to say that the Lord Ordinary adopted a somewhat discursive approach to his assessment of the evidence before him.  To some extent he couched his consideration of factual matters in terms of asking whether the local authority had been justified in holding the concerns expressed.  He concluded that the concerns about the second respondent’s sexual proclivities were justified, but at the same time indicated that he was not making a finding as to whether the sexual allegations were true or not.  He did not make direct findings as to precisely what the second reclaimer’s behaviour had been.  He did not attempt to set out expressly his conclusions on the various provisions of section 84, far less support these by direct reference to findings in fact.

[30]      However, although we consider that it would have been preferable for the Lord Ordinary to have approached the framing of his judgment on more conventional lines, we have come to accept the submission on behalf of the respondent that, properly understood, the decision can be supported.  The Lord Ordinary is the family judge.  He can safely be taken to have a sound understanding of the relevant law and, importantly, this is supported by his explicit reference, at the end of para [5], to the test set out in TW v Aberdeenshire Council.  It was explained to us that the way he expressed himself may have been because the main challenge at the hearing on behalf of the second reclaimer had been that the reasons for the respondent’s concern were not genuine.  The decision can be read and understood as the opinion of the family judge quite properly focussing attention on the disputed issues.  On a full analysis, we are satisfied that there was sufficient in the material he set out to justify his conclusion that “both for the safety and welfare of the child throughout her childhood it is necessary that [the permanence order] be granted”.  His reference not only to welfare but to the child’s safety indicates that he had the issue of serious detriment at the forefront of his mind.  He specifically said that he had concern as to the welfare of the child throughout her childhood.  His reference to necessity indicates that he had proper regard to the proportionality of his decision.  We are satisfied that the Lord Ordinary both identified and applied the correct test, and subject to our observations below relating to contact, we propose to adhere to his interlocutor in so far as relating to the Permanence Order.

[31]      Although the Lord Ordinary’s discussion appeared to relate primarily to specific areas of concern, this was against a background of accepted deficiencies in the parents’ ability to provide basic elements of care.  It was not disputed that both reclaimers had serious learning difficulties.  They gave evidence and the Lord Ordinary could see this directly.  It was not disputed that in considering their capacity to look after their child it was to be assumed that they would be entitled to receive considerable support from the respondent.   It is well established, and a principle of fundamental importance, that these issues should be assessed against assumptions that:

“The best person to bring up a child is the natural parent.  It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health is not in danger. ….”  (In re KD (A Minor) [1988] 1 AC 806, Lord Templeton at p 812).

 

“It follows inexorably from that that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.”  (Re L [2007] 1 FLR 2050, Hedley J at para (50)).

 

But, on any view, these parents would not have been able to look after the child even to a barely adequate standard without considerable direct support from the respondent - indeed,  we were told that the discussion involved the possible need for 24 hour assistance, 7 days a week. 

[32]      The Lord Ordinary did not make any explicit finding as to the level of assistance he had in mind but he accepted the evidence of Helen Stirling to the effect that even with extensive support it was likely that the first reclaimer would not manage the tasks of meeting the child’s emotional and social needs.  He noted that it was not suggested that the second reclaimer was able to show the necessary parenting required for care of the child.  So, this is a case in which the Lord Ordinary’s discussion of disputed issues must be seen against a background, clearly understood by all involved, that even with social work support, the reclaimers would not be able to care for the emotional and social needs of the child and would have considerable difficulty in coping with basic physical care tasks.

[33]      It appears that the respondent had been considering whether some arrangement might be possible whereby an attempt might be made to see whether the first reclaimer would be able to have residence.  The nature of the arrangement was not explained.  It plainly would have required intensive support, but it was one which would not be possible while the first reclaimer continued her relationship with the second reclaimer.  The Lord Ordinary dealt explicitly with the evidence on these issues. At paragraph 14 he states:

“Beyond this the social workers were also concerned as to the second [reclaimer’s] ability to acquire parenting skills and cooperate with them to a sufficient degree to enable assistance to be offered in acquiring such skills so long as the first and second [reclaimer] resided together as a couple.  This problem had the consequential effect of adversely affecting the first [reclaimer’s] ability to acquire the necessary parenting skills which would assist her in coping for an infant child.” 

 

At para 25 he explained that there was evidence which he accepted:

“….of a lack of engagement with social workers, evidenced by failure to attend contact sessions and, further, inability to grasp other than the basic parenting skills, at such contact sessions which she attended.  The first [reclaimer’s] own expert social worker witness, Helen Stirling, expressed the view that even with extensive support from social workers: 

‘It is likely that (the first reclaimer) might only even master physical care tasks, and not manage the more complex tasks of meeting EV’s emotional and social needs.’”

 

The witness went further and stated:

“even if (the first reclaimer) had learned and retained these basic parenting skills, the more complex issue of concerns around the physical and emotional safety of (the child) and also her social and emotional development would remain.

So far as the second (reclaimer) was concerned ……… it was not suggested on his behalf that he was able to demonstrate the necessary parenting skills required for the care of (the child).”  

 

[34]      Of less significance, but proven nonetheless, was that the parents had difficulties with financial matters, and in consistent maintenance of appropriate standards of cleanliness and hygiene in their accommodation.

[35]      The Lord Ordinary’s conclusions in relation to the other individual areas of concern which had been highlighted must be considered against the background of these findings in relation to the reclaimers’ lack of parenting skills and inability to meet the child’s needs.

[36]      In relation to the other concerns, the Lord Ordinary considered that the primary source of the respondent’s concern arose as a result of the continuing relationship between the reclaimers; in other words, the continuing direct contact of the second reclaimer with the child.  He identified three main aspects of this concern.  Despite the emphasis on the concerns of the respondent, it is impossible to avoid the conclusion that the matters were also a concern to the Lord Ordinary.  We consider that it is unnecessary and inappropriate to read the decision in a strict and legalistic way and ignore that patent fact.  The concerns were: 

1.         Those arising from the charges against the second reclaimer of criminal conduct in England; and the subsequent breach of bail conditions relating to the complainer on those charges;

2.         The allegation that the second reclaimer had expressed sexual thoughts about the first reclaimer’s 8 year-old daughter; and

3.         The threats made in respect of the first reclaimer, her social worker and her support worker in August 2013.

[37]      In relation to these matters, the Lord Ordinary did not set out in detail the evidence led by the respondent, but the inference to be taken from the whole of his opinion is that there was evidence relating to each of them which he accepted.  Further, the Lord Ordinary concluded (para 20) that he could not safely accept the evidence of the second reclaimer save where it was supported by other reliable evidence.

[38]      The Lord Ordinary explained that two witnesses spoke to the threats being made, and that the second reclaimer accepted that they had been made, but sought to explain them away as being “hot air” or expressed in the heat of the moment.  The Lord Ordinary concluded that the social workers were correct not to treat these threats as idle or made in jest. It is thus clear that the Lord Ordinary accepted that the second reclaimer had made the threats referred to above, and that they could not merely be regarded as “hot air”.

[39]      In relation to the first issue, the Lord Ordinary was careful to recognise that he was not in a position to determine whether there had been any truth in the criminal charges made against the second reclaimer, and that he should not attempt to do so.  The second reclaimer had presented an affidavit in which he had categorically denied having any sexual relationship with the vulnerable complainer referred to in the charges made in England.  He adopted that affidavit in his oral evidence.  In addition there was evidence from DC Fox that in the course of an interview in November 2012 the second reclaimer had admitted repeatedly having consensual sex with the complainer.  In evidence he claimed that the police “twisted” what he said, and although he admitted having told them he had had sex with the complainer on numerous occasions, this was not true, and he did not think it had been important to tell the police the truth.  In relation to the alleged breach of bail conditions, the second reclaimer effectively admitted these in evidence, despite having adopted a contrary position in his affidavit.  This was a matter which the Lord Ordinary was entitled to take into account.  In the second breach, the second reclaimer had directly approached the complainer, who was a vulnerable female, in breach of clear bail conditions prohibiting him from doing so, which had resulted in the imposition of even more stringent conditions. It is a reasonable inference from the Lord Ordinary’s discussion of this evidence as a whole that (a) he considered that the second reclaimer had a relationship with the complainer, contrary to denials made at various stages, including denials made on oath; and (b) that he had breached his bail conditions relating to that complainer twice, the second time approaching her when prohibited to do so in circumstances which gave rise to concern on the Lord Ordinary’s part, and which had required more stringent conditions to be imposed. The fact that on two occasions he breached bail conditions imposed for the benefit of the complainer in the English proceedings, directly approaching her on the second occasion leading to the imposition of further conditions, suggests a lack of thought as to the consequences of his actions, and an inability to learn from his mistakes.

[40]      Significantly, it seems apparent from paragraphs 16 and 21 that the Lord Ordinary accepted the evidence of the witness Elizabeth Hackett that the second reclaimer had accepted making the alleged remarks regarding the first reclaimer’s 8 year-old daughter, adding that he should not have said this aloud.  In paragraph 28 he stated:

“On the basis of the foregoing I am of the view that the grounds in the petition have been established.  I am satisfied that both for the safety and welfare of the child throughout her childhood it is necessary that the orders sought should be granted.  In the circumstances I will grant the order sought in the prayer of the petition.”

 

[41]      Set against the admitted conviction of the appellant, these are serious concerns, established in evidence.  Even if we had not been satisfied as to the adequacy of the Lord Ordinary’s expressed opinion, had the matter been at large for this court, we would have made a Permanence Order.  Set against the background of the reclaimers’ continuing lack of parental skills, the findings in relation to the three areas of concern are sufficient to meet the threshold test.  The comments made in respect of the first reclaimer’s 8 year-old daughter raise grave concerns.  It is plain from the Lord Ordinary’s account of the way in which the second reclaimer gave evidence and the nature of the evidence given, that the second reclaimer is unreliable and lacks understanding of the significance of his sexual conduct.  The parents reside together, and the first reclaimer has made it clear that there is no prospect of that situation changing.  Were the child to reside with her, the child would also be residing with the second reclaimer.  Such a situation would run the risk of serious detriment to her welfare.  Taking account of all the matters upon which the Lord Ordinary made findings, we are satisfied that not only has the threshold test been met, but also that it would be better for the child that the order be made than that no order be made.

 

Contact
[42]      In relation to the question of contact, the Lord Ordinary noted that the second respondent had had very limited contact, consisting of just one session.  Having noted that it was not suggested that the second reclaimer had demonstrated the necessary parenting skills, the Lord Ordinary said:

“The highest that was suggested on his behalf was that he had the potential to develop a bond with [the child], this based upon the evidence of Dr Woolfson who prepared a report and gave evidence.  Dr Woolfson’s evidence was, through no fault of his, based upon his observations of one contact session, a factor which I consider limits the utility of his views.  I accordingly considered his evidence of limited value in this case.  It should also be noted that in considering whether or not future contact between the second [reclaimer] and the child, in the event of adoption of the child, would be of benefit to the child he had he not taken into account a number of factors postulated as relevant by a Professor Triseliotis in a paper which Dr Woolfson accepted was relevant to consideration of this factor.  This consideration reinforces my view of the limited assistance gained from Dr Woolfson’s evidence.”

 

On the general question of contact, the Lord Ordinary went on to say (para 26):

“Lastly I should deal with the issue of contact.  The first [reclaimer] at present enjoys contact with the child.  The evidence was that whilst the child is not significantly disturbed by this contact she equally derives no significant benefit.  Her bond with the first [reclaimer] is no more than that which she exhibits towards other adults with whom she has periodic contact.  So far as the second [reclaimer] is concerned he has only enjoyed contact with the child on one occasion, that witnessed by Dr Woolfson to which I have already referred.  There is, as a matter of concession by counsel for the second [reclaimer], no existing bond between the child and the second respondent.  I have already indicated that for the reasons explained in paragraph [25] I placed little weight on Dr Woolfson’s evidence in this case.  So far as benefit is concerned there was evidence which I accept to the effect that an adopted child settles better if there is no contact with his or her natural parent.  Having regard to these matters I am satisfied that there is no evidence of the child deriving any benefit from contact with either parent in this case.  Conversely there is evidence that the relationship with adoptive parents would be assisted if no contact was permitted.  In these circumstances I am not prepared to make an order for contact.”

 

[43]      It is apparent that when addressing the question of contact a significant factor for the Lord Ordinary was the anticipation that this child would be placed for adoption, per the authority which he was proposing to grant. Such an order requires the Lord Ordinary to be satisfied that the child “has been, or is likely to be placed for adoption” (section 83 of the 2007 Act).  The benefit to the adoption process which he understood would follow from an absence of contact was a strong consideration in his decision that there should be no order for contact.  Although he clearly accepted that the child derived no significant benefit from contact, and that her bond with either parent was limited, these observations must be recognised as being made in the context of an anticipated adoption, and in particular in the context of a grant of authority to adopt.  For the reasons we have explained, the context now is only that of the making of a Permanence Order, even if there remains the prospect that the local authority will continue to press for adoption as the best long-term solution for the child.  In these circumstances, and in the absence of any further reasoning from the Lord Ordinary, we do not consider that we can adhere to that part of his interlocutor which ordered that there should be no contact.  We will therefore make no order on that matter.  This does not mean that we are expressing the view that there should be contact.  We cannot address the matter of contact ourselves, having no up to date material on the matter.  Moreover, it is a matter which would be better addressed either by negotiated agreement, or in the course of an application in terms of sections 92 and 94 of the 2007 Act.

[44]      The overall result is that the reclaiming motion is allowed to the extent of quashing the grant of authority to adopt, and removal of the prohibition on contact.  For the rest, the grant of a Permanence Order, in the terms set by the Lord Ordinary, is upheld.