Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 50

 

AD14/15

AD15/15

OPINION OF LORD GLENNIE

In the petitions of

WEST LOTHIAN COUNCIL

Petitioner;

in relation to the children A and B

for permanence orders in terms of the Adoption and Children (Scotland) Act 2007

 

Petitioner:  Loudon;  Morton Fraser LLP

Respondent:  MacLeod;  Drummond Miller LLP

15 March 2016

Introduction

The petitions

[1]        The council petitions the court for permanence orders in respect of two brothers, A and B.  A was born in September 2002 and is now 13.  B was born in December 2004 and is now 11.  There are two petitions, one in respect of each child.  The petitions are opposed by M, the mother of both children.  The present whereabouts of their father, F, are unknown; he has played no part in these proceedings.

The children – past and present arrangements

[2]        A and B were first removed from the care of their mother in February 2006, when A was three years old and B one.  This was at M’s request.  They were placed in foster care.  In September 2006 they returned to live with M.  They continued to live with her until June 2007 when, with her consent, compulsory supervision orders were made in respect of them in terms of what is now section 83(2) of the Children’s Hearings (Scotland) Act 2011, requiring them to reside with named foster carers.  A was at that time not far short of five years old, while B was about two and a half.  They have remained in foster care ever since.  Although originally placed in care together, that ceased to be the case in 2012 when a particular fostering arrangement broke down.  Since then, after a brief transitional period, A has been living with foster carer NR, while B has been placed with “kinship carers” P and K.  Both are well looked after in their respective homes and both have made it clear that they are happy living there. 

 

M’s position

[3]        M would like both children to come back to live with her, though she recognises that the process would have to be gradual and, at least in the beginning, she would require help from the council’s social work department (“SWD”). 

[4]        The compulsory supervision order relating to A provides for contact with M a minimum of four times a year, while that relating to B fixes contact at a minimum of twice a year.  There is no longer any provision for contact with F.  In each case contact is to be supervised.  If she cannot have the children back living with her, M would like the frequency of contact increased.  A too would like the frequency of contact increased; but B is content with the existing level of contact.

The hearing – appearances, argument and evidence

[5]        Ms Loudon appeared for the council.  Ms MacLeod appeared for M.  Witness evidence was given by affidavit, supplemented in most cases by oral evidence in chief and in cross-examination.  There was a lengthy Joint Minute of Agreement which reduced the need for further evidence.  Counsel also submitted Notes of Argument.  I was invited to read for myself the documents in the agreed Joint Bundles, even where those documents had not been referred to in evidence, and take the contents of such documents into account as I thought appropriate.

[6]        Ms Innes was appointed curator ad litem for each of the children.  She prepared Reports for the court in each petition.  She also attended court at my request to clarify certain aspects of her Reports.

[7]        I was reminded by both parties of the need to determine each petition separately on its merits, without any predisposition to think that the result should be the same in each.  That is obviously right and I have done this.  However, as parties acknowledged, the decision made in one petition would be a relevant factor to take into account if I were to reach the stage of considering how to exercise my discretion in the other.  The evidence relating to the situation of the two children overlaps; it was agreed that the evidence led should be evidence in both petitions.  For those reasons it is convenient to issue one Opinion covering both cases.

 

Relevant background

[8]        While it may not be a matter of agreement, it cannot sensibly be disputed that the children were properly removed from M’s care in 2006 and 2007.  Although she has wanted them back for some time, it is only recently that M’s personal circumstances have changed so as to give her any realistic hope of having them back.  The issue therefore turns largely on the circumstances surrounding M and the children as they are now, the foster care arrangements now in place, and current uncertainties, concerns and anxieties, rather than on any detailed analysis of when and why things went wrong at an earlier stage.  But it is useful nonetheless to sketch in the background in a little more detail to provide a context for that discussion.

[9]        M was born in November 1984.  She had a difficult childhood and was in and out of care until her late adolescence – it was unclear whether this was because she suffered physical abuse at the hands of her adoptive father, as she had been led to think, or because she was violent and out of control.  She was substantially deaf, though this was not diagnosed at the time – it led, through her failure to understand what others wanted her to do, to her acting in ways interpreted as rebellious.  She also suffered from anorexia.  She was not yet 18 when A was born in September 2002, and just 20 when she had B in December 2004.  F was almost 9 years her senior.  He too had had an unhappy childhood and spent much of it in care.  They stopped living together in October 2005, but their relationship continued off and on for some years.

[10]      At the time the children were born, and for some years both before and after that time, M (and F, when he was around) led a chaotic lifestyle, characterised by violence, alcohol and drug abuse.  In addition, M suffered from anorexia and would sometimes self-harm.  To detail every instance of violence and drug related conduct would be unduly repetitive, but it may be useful to mention a few incidents to illustrate what was going on.  Most of these details were agreed by counsel in the Joint Minute and are fleshed out by the documents lodged in process. 

[11]      The children first came to the attention of the SWD following a referral made on 28 January 2003, only two or three months after A’s birth.  There were allegations that M was abusing alcohol, had assaulted F and had smashed in the window of his front door to try to gain access.  She cut both hands badly and had them bandaged.  A was put on the “cause for concern” list and a nursery nurse was assigned to visit M and help her with parenting skills.  There were other occasions on which M was found drunk.  Her relationship with F was described as “very volatile”.  There were continuing concerns about the safety and well-being of A.

[12]      In June 2005, following a disturbance in the family home, both M and F were arrested and remanded in custody over a weekend.  B was only six months old at the time and M’s mother reported her concerns for the children – M became violent when drunk, and constantly argued with her about her ability to bring up the children in her home.  Later that month M was caught passing drugs to F in prison. 

[13]      In July 2005, the SWD referred the children’s cases to the Scottish Children’s Reporter Administration.

[14]      In August 2005, police were called to her home.  M had just got home with F after a night out, and was very intoxicated, shouting, staggering about and clearly not in control of herself.  F left the house.  One of the babysitters contacted M’s mother, who called the police.  M’s mother was concerned for the children; she reported that M was often in this state.  At about this time, the SWD arranged for Surestart to offer support to M. 

[15]      In September 2005, police attended the family home on account of a violent incident involving a neighbour who appeared to be looking for F.  During the incident the door was kicked in, M was assaulted and A’s bedroom windows were smashed (although A was not in his bed at the time). 

[16]      M and F separated in about October 2005.  In December 2005, F was sentenced to a period of imprisonment of six months for various Road Traffic Offences and Breach of a Probation Order.

[17]      At about the end of November 2005 the SWD prepared an Initial Assessment Report noting that the family required support but recommending that no compulsory measures of care should be taken at that stage.  Issues of anger management, alcohol and violence were identified, combined with M’s general inability to cope, itself exacerbated by F’s absence from time to time in prison. 

 

Children placed in foster care

[18]      On 12 February 2006, at M’s request, the children were placed together in foster care in terms of Section 25 of the Children (Scotland) Act 1995.  The background to this was that M and the children had been living in homeless accommodation provided by the council.  Being unhappy with the accommodation and anxious about pending court dates, she moved into Women’s Aid.  Her physical and mental health deteriorated.  She made two attempts to be admitted to hospital.  She could not cope and asked for the children to be accommodated.

[19]      F was released from prison on 1 March 2006.

[20]      By July 2006, M was having overnight contact with the children at her grandmother’s house where she was then staying.  At a Looked After Child Review on 3 July 2006, the decision was taken that M should again have the full-time care of the children and that overnight contact visits would build up to that.

[21]      In August 2006, when M had been given weekend residential contact with the children, police were called twice to attend at F’s tenancy.   M was present with the children.  She had injuries to her face.  There were signs of a disturbance in the home.  She later alleged that F had assaulted her.  Police found the children to be awake but not distressed.  Both M and F were drunk and F had smoked several joints.  F was arrested, remanded in custody and subsequently released on bail with a condition that he should not approach M.  Concern was expressed about the safety and well-being of the children.

 

Children returned to M’s care

[22]      Notwithstanding those difficulties, on 15 September 2006, the children were returned to M’s care.  Despite a bail condition preventing F approaching her, M and the children moved into F’s tenancy.  This was done with the approval of the SWD, who considered F to be an organised and very “hands on” father.

 

Children placed in foster care again

[23]      There were further incidents which caused concern.  In December 2006 M was removed by police from F’s tenancy after allegations by F that she was drunk and refusing to leave.  In January 2007, the SWD referred the children’s cases to the Reporter.  On 1 May 2007 a violent alcohol related incident took place in the presence of the children.  Later that month, the children were placed on the Child Protection Register.  On 17 May 2007 F was sentenced to 4 months imprisonment.

[24]      On 28 June 2007, with the agreement of M, the children were again placed with foster carers.  The children were placed under supervision with a condition that they reside with named foster carers and with a condition that there be contact with each parent separately on a minimum of one occasion per week.  There is some dispute about why M agreed to this.  M says now that she wanted to place them in temporary foster care while she decorated her home.  But she recognises also that she needed to sort out her own issues with drugs, alcohol and anorexia and that agreeing to temporary foster care would enable her to do this.  Part of her present resentment of the SWD, and of certain individuals within the SWD, stems from an assumption on her part that when she had finished redecorating the house she would get the children back.  However, that did not happen; and it was, in my view, unrealistic for M to have had that expectation. 

[25]      Since June 2007, the children have remained in foster care.  There have, however, been a number of changes with regard to their fostering arrangements.  The precise details do not matter but, in short, the children went for about three years to live with Mr and Mrs S, and then were moved in October 2010 to a long term placement with Mr and Mrs W, with a view to an application being made for a permanence order and possible adoption.  In August 2012, however, the placement with Mr and Mrs W broke down, through no fault of anyone.  This was upsetting and disruptive for the children.  A was placed with another foster carer, LB.  After spending a week with a respite carer, B was placed in foster care with NR.  The children have not lived together since then.  There was a deliberate decision to split them because of the way they clashed while in care together – after the anguish of the breakdown of the placement with the Ws, it was thought that it would be almost impossible for the two of them to be looked after together.

[26]      These new arrangements were changed again in April 2013 when A moved to live in foster care with NR; while B was placed with kinship carers PM and KC.  PM knew B from school and was happy to take him into their home.  Both children have remained in their respective long-term foster/ kinship placements since then. 

 

Contact with M while the children have been in foster care

[27]      At Children’s Hearings on 17 April 2008, the children’s supervision requirements were fixed to provide that contact would continue at a minimum of once per week.  Contact was to be supervised by the SWD whenever they deemed supervision necessary to protect the best interests of the children.

[28]      Thereafter the contact provisions were changed from time to time.  In November 2008 contact was fixed at supervised contact no more than once per month at the local family centre.  M and F finally separated at about this time and contact was to be with each of them separately.  In about October 2009 all contact with F ceased.  In October 2011 contact with M and each child was reduced to supervised contact once every six weeks.  In February/ March 2014 the SWD sought to have contact reduced to a minimum of twice per year, but the Children’s Panel did not agree to this for A and fixed it at a minimum of four times a year.  As from March 2014, contact with A has been fixed at a minimum of four times a year whereas contact with B has been fixed at a minimum of twice a year.

 

Consideration given to applying for Permanence Orders

[29]      It is clear that by June 2008 there was a concern within the SWD that consideration required to be given for the longer term care of the children.  A Child Care Review on 14 October 2008 recommended that both boys needed to be referred to the Permanency Panel to consider their long term needs.  Solicitors acting for M wrote in October 2008 indicating that M would like to be in a position to apply for full parental rights and responsibilities, including residence.  Although there was no dialogue about this at this stage, a Social Background Report prepared by the SWD in November 2008 expressed the view that M would need to change her behaviour and coping strategies drastically if she was to have a future relationship with the children.  Similar views were expressed for F, but since he is no longer in the picture I shall leave out any further reference to him as a potential carer.

[30]      By January 2009, if not before, permanency plans were being actively considered within the SWD.  On 13 January 2009, the children’s cases were discussed at a meeting of the council’s Permanency Panel.  The Panel decided that the children needed permanency, but that judgement on the route to permanency should be reserved until after a Child Care Review meeting.  Minutes of the Panel’s meeting show that the Panel thought there was a need for permanent care for the children.  Time and effort in rehabilitation with M was unlikely to lead to change in the near future; “timescales for [M] are not compatible with [A] and [B]’s needs”.  This was at a time when A and B were in the same foster home.  It was noted that although the children needed to be registered for permanence and placed together, there might never be a right time to make the move.

[31]      On 22 May 2009 M signed a Consent Form, consenting to the children being placed for adoption.  This, I think, was at a time when she was at a particularly low ebb.  She soon came to repent of this move.  On 6 October 2009, she advised the SWD that she no longer agreed with permanency plans for the children and withdrew her consent to the children being placed for adoption.  She requested that Children’s Hearings be convened in light of her no longer agreeing to the permanency plans for the children.  A report prepared by the SWD recorded her as being emotionally in a better place to care for the children and, although she could not provide time scales for when she would be able to resume caring for them, she was now unwilling to relinquish their care. 

[32]      The Children’s Hearings on 13 October 2009 were continued until 29 October 2009.  M asked for this continuation to enable her to address the points in the Social Work Report.  Her notes in anticipation of the Hearings made it clear that she was looking forward to a future with the children being very much a part of her life; that she was now getting support and was more focused and in control; that she had a new partner who had been part of her life for some nine months; and that she was looking for suitable accommodation where she would like to have her children living with her again.  She wanted contact increased to a frequency of two periods of one hour each per week.  However, as noted above, the Children’s Hearing convened on 29 October 2009 reduced contact with her to no more than once per month. 

[33]      It is not necessary to set out in any detail what happened at Children’s Hearings and other Reviews after that time.  I should just note a couple of matters.  The first is that a Looked After Child Reviews took place on 12 February 2013.  On the same date, the council’s Adoption/ Permanency Panel recommended that a Permanence Order should be sought in relation to each child.

[34]      The second matter is that in anticipation of a Children’s Hearing in February 2014 the SWD sought to have contact reduced to a minimum of twice per year.  They were concerned that the existing level of contact was preventing the children settling into their placement.  M stated that she intended to request that A and B be returned to her care.  At the Hearing she challenged the children’s social worker, stating that she had been unfairly treated by her and the SWD.  The Hearing appointed a Safeguarder and deferred making a substantive decision until another Hearing on 21 March 2014.  At the continued Hearing in March 2014 (as noted above), the Panel varied M’s contact with A to a minimum of four times a year, to be supervised by the SWD.  At a separate Hearing four days later, the Panel varied M’s contact with B to be supervised contact a minimum of once every six months, again to be supervised by or on behalf of the SWD.  Those contact arrangements have remained in place up to the present day.

 

M’s condition

[35]      It is useful at this point to set out a brief narrative of M’s physical and mental condition during the period from 2008 to the present.  I consider the up to date position in more detail later in this Opinion.

[36]      In February 2008, M was admitted to hospital to an acute mental health ward.  She was discharged nearly three weeks later.  She was diagnosed as suffering from an eating disorder.  Thereafter she attended medical appointments to address her alcohol and cannabis use and improve her mental health and she received support from the council’s Drug and Alcohol Service.  On 4 March 2008, she slit her wrists.  She was taken to hospital, but left before being medically assessed.  Police traced her and took her back to the hospital. 

[37]      On 9 October 2008, M commenced a residential placement, over a period of three months, with a local authority Abstinence Programme.  During this time she finally ended her relationship with F.  On 8 January 2009, she was admitted to hospital for a period of rehabilitation.  This was expected to last six months but she was prematurely discharged on 3 February 2009 due, at least in part, to the fact that she had formed a relationship with a former patient, PR, who later became her fiancé.  She moved with him to Glasgow.  For a time she went to stay with her mother.  It was at about this time, while still in the hospital, that she received a letter from the SWD stating that the boys were up for permanency with authority to adopt, and that there would be no attempt to rehabilitate them back into her care.

[38]      M relapsed again in May 2009 and again late in November 2009, when she undertook a three week residential rehabilitation course with Glasgow Drug Crisis Centre and Turning Point lasting until 12 December 2009.  According to M, she was clean by the time she left the centre.  Contact with the children was continuing at this time.

[39]      In March 2010 M relapsed again.  Determined not to let it happen again, M voluntarily went into rehab, a residential placement at a care home in Glasgow to deal with issues of drug dependency.  She remained there for about six months, until the end of August 2010.  During this period, key workers from the project accompanied her to monthly contact sessions with A and B, supervised by staff from the SWD.

[40]      Around September 2010 M was allocated a tenancy within homeless supported accommodation in Glasgow.  She trained to become a volunteer with the Scottish Drugs Forum, but this came to an end after she admitted to having taken drugs herself on two occasions during this period.

[41]      Since July 2011, apart from periods in rehabilitation, M has lived in her own tenancy in Glasgow.

[42]      In October 2011 M voluntarily took a placement in a rehabilitation centre in Kent, which lasted until 14 November 2011.  It is not clear precisely what happened when this ended.  I infer that she went back to her tenancy in Glasgow.  In November 2012, however, she relapsed again and referred to the North West Community Addiction Team (“the Addiction Team”) in Glasgow.  This was residential for a time.  She was prescribed methadone to help take her off heroin.  This seems to have worked.  She last tested positive for heroin in March 2013.  She had her last methadone in February 2014 and tested clean of all drugs, including methadone, later that month.  Her own evidence, and there was no evidence to contradict this, is that she has been clear of drugs and alcohol since then.

[43]      PR moved to Manchester in March 2015.  Their relationship came to an end at that point.  But they remain on good terms and are close friends.  M finds that friendship very supportive.

 

Evidence

[44]      I heard evidence from a number of witnesses called on behalf of the council.  I have taken all of their evidence into account.  I shall not refer to all of them in this Opinion; and for all of those to whom I do refer I shall use initials with a description of their position. 

 

Social workers (SWD):

• SM - since 2000, she has been team manager within the children and families team for the council.  Her first involvement with the case of these two children was when she took over supervision of DR in about 2009.  She has co-authored a number of reports in respect of the children prepared, I think, largely by DR.
• DR - a senior social worker in the children and families team at the relevant social work department within the council, to whom the case of these two children was transferred in November 2006 and who has had detailed involvement with the children ever since.

 

Family support workers:

• MB - a family support worker with the council for about 11 years.  Involved in offering parenting support to M on and off since 2007.

• RM - a family support worker with the children and families team since 2011, providing short-term support for the children since the summer of 2012.  Since the summer of 2013, involved in supervising contact between the children and M.

 

Other:

• CG - a senior social care worker within one of the addiction teams within Glasgow City Council for some 28 years and involved in 2014 with M’s attempts to overcome her drug addiction.
• Dr LR – a principal clinical psychologist working within the addictions team in Glasgow.  Saw M on a number of occasions between September 2014 and June 2015 in connection with her efforts to overcome her drug dependency.

 

Foster carers:

• NR – she has been the foster carer for A since June 2013 and, before that, briefly foster carer for B (in the immediate aftermath of the placement with Mr and Mrs W breaking down).
• PM – she, with her partner, KC, has been the foster carer for B since April 2013

 

[45]      I also heard evidence from M, and from three other witnesses called by her, namely her mother, a close friend and her recent ex-partner (PR) with whom she remains on close terms.

[46]      I found all the witnesses to be credible.  So far as reliability is concerned, I had some difficulties with parts of the evidence given by witnesses from the SWD and the family support unit.  I consider that their assessments of M’s parenting abilities, and their interpretation of incidents involving M which they observed at contact, were unduly critical of M.  I set this out in more detail below.

 

The law

Parental rights and responsibilities

[47]      In these petitions the council ask the court to make permanence orders in respect of each of the children.  To appreciate the effect of making a permanence order, and to understand why the criteria which have to be satisfied before one can be made are so strict, it is necessary to place this whole matter in the context of parental rights and responsibilities as laid down in the Children (Scotland) Act 1995 (“the 1995 Act”).

[48]      The 1995 Act sets out certain rights and responsibilities possessed or owed by a parent in relation to his or her child.  It deals first with parental responsibilities.  In terms of section 1(1), those parental responsibilities include: (a) the safeguarding and promotion of the child’s health, development and welfare; (b) the provision to the child, in an appropriate manner, of direction and guidance; (c) where the child is not living with the parent, the maintenance of personal relations and direct contact with the child on a regular basis in so far as that is practical and in the interests of the child; and (d) acting as the child’s legal representative.  In terms of section 2(1), the parental rights include the right: (a) to have the child living with him or otherwise to regulate the child’s residence; (b) to control, direct or guide the child’s upbringing in an appropriate manner; (c) where the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and (d) to act as the child’s legal representative.  As is made clear in section 2, those rights are conferred on the parent in order to enable him to fulfil his parental responsibilities in relation to his child.  That is why parental responsibilities are set out first.  They take priority.

 

Supervision orders

[49]      The compulsory supervision orders made under section 83(2) of the Children’s Hearings (Scotland) Act 2011 in respect of each child inevitably interfere to some extent with M’s parental rights and responsibilities in relation to her children.  For all practical purposes, responsibilities in respect of day to day matters lie not with her but with the foster carers.  Direct contact between M and her children is limited by the terms of the supervision orders and decisions made by the SWD, as well as by the practicalities of the children living in their foster families. 

[50]      But M still has rights and responsibilities in respect of her children’s health, education, development and welfare.  She is entitled to be consulted about such matters as schooling, medical treatment and holidays taken abroad with the foster carers.  This can cause difficulties.  I heard evidence to the effect that, although M has never refused consent to a child being taken abroad on holiday, consent has sometimes come through only at the last moment, thereby causing uncertainty and anxiety on the part of the foster carers and the children.  There was some evidence about a visit to the dentist, where a lack of communication or simply crossed wires meant that the appointment had to be cancelled at the last minute and re-scheduled.  The choice of secondary school for A was less straightforward and possibly more upsetting than it needed to be because of the need to consult M.  Her views did not entirely coincide with those of other interested parties. It is not necessary to attribute blame for these incidents – and I do not do so – to recognise the frustration and, possibly, irritation to which they may give rise.  Those examples illustrate one problem (if that is not putting it too high) which has prompted the council to make this application for a permanence order; put simply, things would be easier and less unsettling for the children if the need constantly to seek M’s agreement was removed. 

[51]      Furthermore, as matters stand, each child’s case has to be reviewed on a regular basis by the Children’s Hearing, a process which, I was told, can be unsettling for the child by giving the impression that their life with their foster carers is precarious and liable to be upset by a process which they do not fully understand, in which they are powerless and where decisions as to their future are made by others.  It is clear from the evidence that the children (particularly B) do not like attending Children’s Hearings – their attendance is often excused – and do not like repeatedly being asked for their views on the foster care arrangements.  They are happy where they are and do not want the issue constantly brought up.  The desire to get away from the routine of regular Children’s Hearings and a hope to imbue the fostering arrangements with a greater sense of stability (or permanence) is another motivation for the present application.

 

The effect of a permanence order

[52]      Provisions concerning permanence orders are contained in sections 80-88 of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”).  A permanence order extinguishes the parental right to have the child live with him or otherwise to regulate the child’s residence.  In addition, a permanence order consists of the “mandatory” provision and such ancillary provisions as the court thinks fit.  In terms of the mandatory provision, the permanence order vests in the local authority both the right to regulate the child’s residence (until the child is 16) and the responsibility for the provision of appropriate guidance to the child (until the child is 18).  In terms of the ancillary provisions, the permanence order may vest other parental rights and responsibilities in the local authority or some other named person.  In this case the council seeks an order transferring all parental rights and responsibilities from M to the respective foster carers.

[53]      If the court is persuaded to make that order it would mean that M’s consent was no longer needed before the foster carers could take the children on holidays abroad and she would no longer have a right to any say in respect of schooling or medical treatment.  There would be no need for the cases to call for review before a Children’s Hearing.  And the question of contact would be a matter for the local authority and/or the foster carers to decide subject to any order the court makes on the granting of a permanence order.  On the other hand, if the court were to refuse to make a permanence order on this application, that refusal would not of itself affect the subsistence of the present arrangements for fostering.  It would simply mean that the compulsory supervision order would continue in force, subject to periodic review as it is at present, M’s consent would still be needed for holidays, schooling, medical treatment and the like, and the question of contact between the children and M would be dealt with by the SWD and the Children’s Hearing.

 

The legal criteria to be satisfied before a permanence order can be made

[54]      The making of a permanence order plainly is a step of great importance for the child and, of course, both for the natural mother (M in this case) and the foster carer(s).  It does what it says.  It achieves finality and certainty.  In removes any hope which M may have of getting the children back under her care.  It is not surprising, therefore, that the exercise of the power to make such an order is heavily circumscribed.

[55]      The relevant criteria for the making of a permanence order are set out in section 84 of the 2007 Act.  This provides as follows:

 

“84      Conditions and considerations applicable to making of order

 

(1)        Except where subsection (2) applies, a permanence order may not be made in respect of a child who is aged 12 or over unless the child consents.

 

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

 

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

 

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

 

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

 

(a)        after taking account of the child’s age and maturity, so far as is reasonably practicable—

(i)         give the child the opportunity to indicate whether the child wishes to express any views, and

(ii)        if the child does so wish, give the child the opportunity to express them,

 

(b)        have regard to—

(i)         any such views the child may express,

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

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

 

and

 

(c)        be satisfied that—

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

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

 

(6)        A child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of subsection (5)(a).”

 

Subsection (4) echoes the terms of section 14(3) of the 2007 Act, which also requires a court or adoption agency to have regard to the need to safeguard and promote the welfare of the child throughout the child’s life “as the paramount consideration”.

[56]      I should note that A is now 13 years old.  His consent is required before a permanence order can be made: section 84(1).  He has given his consent by signing a consent form after the effect of making a permanence order had been explained to him by the curator ad litem and reporting officer, Ms Innes.  The consent form is attached to her Report.  The point does not arise in the case of B who is only just 11 years old.

[57]      In TW v Aberdeenshire Council 2013 SC 108 the Inner House considered the inter-relationship between the various tests set out in that section.  The Opinion of the Court was delivered by Lord Bonomy.  The relevant discussion begins at para [12].  At para [13] the court noted that subsections (3), (4) and (5) imposed separate requirements, all of which had a bearing on whether a permanence order should be made.  But subsection (3), which involved a comparative assessment, generally required a review of the whole circumstances.  It would generally be anticipated that the issue focussed by subsection (5)(c)(ii) to have been addressed by the time subsection (3) came to be considered – if subsection (5)(c)(ii) was not satisfied, it was difficult to envisage circumstances in which it was necessary to consider subsection (3).  Lord Bonomy said this:

“It is, therefore, difficult to envisage circumstances in which a court, faced with an application for a permanence order, would not first of all address the factors that arise under subsection (5)(c), in this case para (c)(ii), and any other matters arising under subsection (5), always bearing in mind the requirements of subsection (4) to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration …”

 

This approach is consistent with that adopted in Midlothian Council v TMP 2014 SC 168 and, most recently, in Fife Council re Child EC (unreported [2015] CSIH 74). In light of this both counsel invited me first to consider the issues arising under subsection (5)(c)(ii), namely whether, in a case where there is a person having the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with them or otherwise to regulate the child’s residence, the child’s residence with that person is, or is likely to be, seriously detrimental to the welfare of the child. 

[58]      It is not in dispute that there is such a person and that that person is M.  Accordingly, the question can be simplified: in respect of each child, can the court be satisfied that it would be, or would be likely to be, seriously detrimental to his welfare if he were to be returned to live with his mother?

[59]      Before I do so, however, I should note three important points which emerge clearly from the case law.

[60]      The first is that in Scotland, as elsewhere in the UK, we take the removal of children from their parents very seriously.  That applies not only to the physical removal of a young child from its parents.  It applies to every stage of the care process where the court is asked to weaken or sever family ties, whether by the making of a permanence order or by freeing for adoption.  As Lord Reed said in S v L 2013 SC (UKSC) 20 in a slightly different context, quoted in Fife Council re Child EC at paras [59]-[60], it is not enough that social workers, experts or the court, or any or all of them, think that a child would be better off living with another family.  We do not permit or tolerate social engineering.  The various tests set out in the 2007 Act, including the requirements in section 84 which have to be satisfied before a permanence order can be made, are intended to reflect the requirements of Article 8 ECHR and the relevant Strasbourg case law.  The test of “seriously detrimental to the welfare of the child”, which is a precondition for the making of a permanence order under section 84(5)(c)(ii), means precisely what it says.  It is intended as a very high test.

[61]      The second point is this.  In considering, in terms of subsection (5)(c)(ii), whether the child’s residence with the parent is or is likely to be seriously detrimental to the welfare of the child, the court is not restricted to looking at the parent’s capabilities as they are at the time of the hearing.  The application for a permanence order will usually, perhaps invariably, be made at a time when the child is in care; and in many cases the child will have been away from the parental home for a considerable time.  The child will have been taken away from home because of difficulties in the home or with the parent’s ability to cope.  There may have been issues of drugs and/or alcohol abuse.  If there is no improvement in that situation, the answer to the question posed under subsection (5)(c)(ii) will usually be obvious.  But in other cases there will have been signs of improvement.  The parent may have made determined efforts to overcome their drug and/or alcohol dependency.  They may have made efforts to improve the parenting skills.  The family situation may have changed, with the parent receiving more support than previously.  In those circumstances an assessment of whether residence with the parent is likely to be seriously detrimental to the welfare of the child cannot sensibly proceed on the hypothesis that the child is returned to the parent then and there.  That is plainly unrealistic.  Any parent in that position is likely to need help; and the “settling in” process, if it is to happen, will have to be handled gradually and with sensitivity.  In such circumstances the court will have to form a view as to the likely ability of the parent or parents satisfactorily to discharge their responsibilities for the child and exercise their rights not immediately but in the foreseeable future: see TW v Aberdeenshire Council at para [16] and Fife Council re Child EC at para [53].  Any such assessment will require to be based on evidence.  It cannot simply rest on an expression of hope: TW v Aberdeenshire Council.

[62]      The third point is that, in considering the question of whether the child’s residence with the parent is or is likely to be seriously detrimental to the child’s welfare, the court is not confined to an investigation into the parenting abilities of the parent.  Other matters are also relevant.  An assessment of the child’s placement with foster carers is also highly relevant.  Is the child happy and settled there?  What impact would there be on the child if he were to be moved back to his parent(s)?  How would he be affected by the disruption?  And what would be the effect on the child if the rehabilitation with his parents then broke down again?  That these considerations are material is made clear in Fife Council re Child EC at para [54].  They reflect the observations of Cumming-Bruce LJ made in less prosaic times about the difficulties of moving a child who has been integrated into a new family life with foster parents:

“… you cannot dig up children in the way that you dig up geraniums: they form emotional roots and those roots have to be preserved intact.”

 

See In re L. (Child in Care: Access) [1985] F.L.R. 95, 100, quoted with approval by Lord Oliver of Alymerton in In re KD (A Minor) (Ward: Termination of Access) [1988] 1 AC 806 at 829-830.  Obviously care must be taken when referring to older authorities in this field.  Social attitudes have changed, as has our understanding of a child’s needs.  And our statutes and judgments are informed now, as they were not then, by Convention jurisprudence.  Nonetheless, it has to be recognised that moving children around, even if back to their birth parents, involves dislodging those children from what may be a happy and stable environment in foster care arrangements which they have genuinely come to regard as their home.  And the disruption and upset likely to be caused by such a move may, taken together with all the other relevant facts, result in an assessment that would be seriously detrimental to the child’s welfare.

Consideration of the evidence relevant to section 84(5)(c)(ii)

[63]      In light of these general considerations I shall consider the evidence under reference to a number of factors, including M’s rehabilitation and parenting abilities, the present foster care arrangements, the views of the children and future uncertainties.

 

Evidence concerning M’s current physical and mental well-being

[64]      It does not appear from the evidence that alcohol has been a major problem for M in recent years, though it was in the past.  The main concern has been drug abuse.  As appears from the narrative above, this has been a very significant factor in her life through adolescence and into adulthood.  As late as December 2012 she relapsed and went into rehabilitation in Glasgow.  But since then she has made great strides towards reforming herself and her lifestyle. 

[65]      I heard evidence from CG, a Senior Social Care Worker in the Addiction Team in Glasgow.  She had also set out certain relevant details in a letter of September 2015.  M was referred to the Team in November 2012.  She initially saw a Senior Addiction Nurse but in May 2014 CG was allocated as her care manager.  She was prescribed methadone.  She gave a urine sample in March 2013 which showed positive for opiates.  She confirmed at that time that she was still using heroin.  That was the last positive test for opiates.  Since then she has been tested every three months or so and her samples have been clean.  Her methadone prescription was reduced from 65/70 ml daily in May 2014 and she came off methadone entirely in February 2015.  Her last dose was dispensed on 16 February 2015 and her last urine sample, taken just over a week later, was negative for all substances.  M did not contact the Addiction Team again after that until just before the proof (and then only to obtain a letter detailing her progress).

[66]      CG correctly makes the point that a urine test will only indicate what drugs are still in the body on that day.  They cannot provide definitive proof that a person has thrown off the habit.  But, according to CG, other indications have also been positive.  M was “extremely positive” about coming off drugs.  She had attended all appointments on time and had been pro-active in her own recovery, engaging in services within the community, covering topics such as self-esteem, confidence building, holistic therapies, hypnotherapy and exercise classes.  At the clinic she undertook work around harm reduction, relapse prevention and recovery support.

[67]      CG’s evidence in court was very brief.  Commenting upon the fact that M had been drug free since March 2013, she said there was no way she could quantify the risks of a relapse.  She could only say that the risks decreased with time.  To be clean for two and a half years was a long time, though it had to be borne in mind that she had been off methadone for only just over six months.  Coming off methadone was a slow process, requiring support to prevent a relapse.  She was clearly impressed by the progress M had made.

[68]      M was referred to Dr LR, a psychologist working in or with the Addiction Team.  Between them, they identified M’s needs as being to explore her childhood trauma experiences and understand how they had affected her mood and behaviour as an adult.  It was hoped that this understanding would lead to better coping strategies, reducing her chances of reverting to self-harm, drink or drugs.  I heard evidence from Dr LR.  Her report on M was mixed.  She met her 10 times in total between October 2014 and June 2015, at which time M was discharged by mutual consent.  However, during that period M cancelled two appointments and failed to attend four others.  Her attendance was sporadic, attending a few appointments, missing a few, coming back and then missing a few more.  As a result, progress in processing and examining her childhood trauma experiences was limited.  So much so that M appeared to lose interest in the original focus of the sessions (linking her past to her present mood and behaviour) and wanted instead to concentrate on improving her own mental health and abstinence so as to increase her chances of getting her children back.  She talked about the children all the time.  Getting them back was the driver in her life.  She would do everything possible to get them back and understood the work she needed to do and the support she needed to have if that was going to happen.  Dr LR considered that her hopes and ambitions and her assessments of what was going to happen were in many ways wholly unrealistic.  She had an idealised view that everything would be perfect when she got the children back, even though they had only been with her for a short time and B, in particular, could have had no memory of ever having lived with her.  She spoke of moving them to be with her in Glasgow, seemingly unaware of the problems of moving them to a place where they had no friends.  She then recognised that she might need to move back to West Lothian, without thinking that she would be moving away from her own support network needed to keep herself safe and drugs free.  She had the idea of moving with the children to a remote country house so that they could get to know each other, without any apparent recognition of the need for the children to have social contact with their friends.  Though she would usually “get there” in the end after discussing matters at length, she always needed to be prompted on practical issues like that.  More and more at these sessions, she would talk about the children, the SWD and the pending court action.  She did not accept the possibility that the children would not be returned to her once people had seen how hard she had worked and the progress she had made.  She would say that the only reason the children were not back with her was because she did not have a house in West Lothian.

M’s evidence

[69]      I heard evidence from M, as well as her mother, a close friend, and PR (her recent partner), as well as reading an Affidavit from her sister.  All these friends and relations spoke to the steps she had taken, the changes she had succeeded in making to her lifestyle and, perhaps most importantly, the support, both physical and moral, that they would give her if the children came back to live with her.  I accept their evidence as far as it goes.  I am confident that they would all do their best to help.  But I do not consider that they necessarily appreciated the demands that would be made of M if the children came back to live with her after such a long gap; and I cannot treat them as casting much light on M’s ability to cope in that situation.  For this I need to consider the evidence of M herself, viewed of course in light of the evidence to which I have already referred and to the evidence of the various witnesses from the SWD to whose evidence I shall refer later.

[70]      M put in a lengthy Affidavit and gave oral evidence for over a day.  She sat in court throughout the proof, making notes, passing instructions to her counsel, clearly following everything that was said, behaving with dignity and without reacting in an overtly hostile manner to criticisms made of her by witnesses from the SWD.  In many ways she struck me as an impressive witness.  Her appearance and her demeanour both generally and in the witness box lent credibility to the evidence of others that she had indeed made good progress, largely through her own efforts, in finally throwing off the drug habit which had so damaged her life in the past.  But I accept what CG said, based on extensive experience, about not being able to assess with any confidence the risks of relapse.  This court is in no better a position than CG to make any firm assessment of that risk.

[71]      M said that she took responsibility for what had happened in the past.  She had not been in the right frame of mind then.  She had been immature.  She did not dispute the account of her drug-taking, her attempts at rehabilitation and her many relapses.  She had asked for the children to be rehabilitated back to her care ever since the end of 2007.  She did not understand why the SWD had not attempted rehabilitation since then.  She attributed her relapses to the fact that she was made to feel she was a bad mother.  But she had put that lifestyle behind her.  She had made changes to her life and was now in a good position to care for the children.  She had been “clean” for two and a half years; and off methadone since February 2015.  She had good supports in place and could ask for help if necessary.  She did not believe that her children should have been allowed to settle in different places for so long.  She wanted a final move for them to come and live with her.

[72]      Much of M’s evidence concerned her contact with the children since they were taken into care and her difficulties with the SWD.  This is understandable; and I shall deal later with that aspect of her evidence.  But she went on to express her views on her ability to look after the children if they were returned to her care.  Inevitably her evidence on this was general, unspecific and aspirational.  She recognised that the transition from their foster homes back into her care would be difficult for the children.  There would have to be an assessment.  It would be a gradual step by step process.  It would need time and patience.  They would need to get to know each other and learn how to be a family unit.  She thought it unlikely that she would ever lapse again.  Her health was better, she was eating more and she had put on weight.  She now has and wears a hearing aid which helps her overcome the difficulties described earlier.  She has a one bedroom flat.  She would like a bigger one to enable her to take the children back home.  She would be happy to move to West Lothian, but would need the help of the SWD in order to get a house there.  It would need to be near the children’s schools.  She cannot get one without some clear statement that she will indeed be able to have the children to stay there with her, even if only for overnight contact as part of an attempt to rehabilitate them into her care.  If the children returned to her care she would not prevent them seeing and keeping in touch with their foster carers.  She recognised that they would be important in their lives.  She also acknowledged that she would need help adjusting to the new arrangements.  She would accept help and support from anyone.  She mentioned her mother and sister as giving her both emotional support and help with cleaning and cooking – she had had difficulties with them in the past but they got on better now that she had decided to do something about her life.  She also mentioned particular friends, including her recent partner PR, who would help.  But she said that she had become very independent.  Though she still has a strong support network through alcoholics anonymous and FASS and gets therapy and hypnotherapy occasionally, she no longer needs addiction and mental health services. 

 

Should the children be kept together?

[73]      I should mention here that there was a sharp difference of view between M and the SWD about the advantages and disadvantages of the two boys living together in the same family.  M’s evidence was to the effect that they ought both to come to live with her.  It would be better for them to be together.  She did not detect any damaging sibling rivalry.  She had observed that, when they were separated, A started “comfort eating” while B began to indulge in “risk taking behaviour”.  She attributed these changes in behaviour to the fact that they were separated.  It would be better for them both to come to live with her in a place they could call home and where they would have her full attention and support.  She thought that they interacted well when they had contact together, considering the strains imposed by the supervised contact regime.  The SWD took a very different view.  SM, who is team manager in the children and families team for the council, and has direct knowledge of the issues in this case from her supervision of DR (the relevant social worker handling the cases of these children), and co-authored her reports, explained the SWD’s attitude in this way.  A and B were originally placed together.  Their first placement with Mr and Mrs S was together, as was their placement with Mr and Mrs W.  No significant concerns were raised at that time about them being together.  However, the SWD gradually came to learn a lot more about the children.  Their conclusions were that “within their sibling relationship [the children] re-traumatised each other on regular occasions.”  It became apparent that foster carers “could not provide safe care to both children in placement.”  The decision to separate the children was made by the SWD “because it was too dangerous for the children to stay together and it would have been difficult to find a carer who could have taken them both on”.  This was in large part because both children were devastated by the breakdown of their placement with Mr and Mrs W; and coupling that with their very difficult relationship it meant that any placement together would be difficult to achieve.  The decision to separate them was endorsed by the Permanency Panel, no doubt on the recommendation of and on the basis of information provided by the SWD.  Since they were separated in August 2012 they have both made good progress separately.  A has managed better, is more able to speak about his emotions and is showing signs of maturity; while B goes up and down, is more reactive and reacts badly to change, but makes progress when he has someone’s undivided attention.  MB, a family support worker who helped supervise some contacts in 2007-2010 but was then specifically asked to do some individual work with B in 2012 and latterly 2014, and therefore has a good insight into B’s particular issues, described how the two boys used to set each other off as soon as they came together.  Her take, as I understood it, was that the boys were now beginning to enjoy spending time together at contact, but this was due in large measure to the period of separation from each other in separate foster care placements.  It was this which made her request, in early 2013, that the boys continue to be placed separately. 

[74]      It is unnecessary for me to form a concluded view on this issue.  It does not require any great expertise to know that there are always sibling rivalries, whether between boys and boys, or girls and girls, or across the gender divide.  The intensity of the rivalries – jealousies, anger, occasional loathing – and the underlying stability of the sibling relationships will no doubt differ from child to child, family to family.  That can cause difficulties in even the most stable set-up.  It will likely cause difficulties of a different degree of magnitude when consideration is given to placing those same children, already disturbed not only by a family breakdown but by the sudden and unexpected ending of a foster care arrangement which was providing them with warmth and stability, with new foster carers.  The view may well be taken that no foster carers – or at least no foster carers who have available space – could handle both children.  Mr and Mrs W managed it, as did Mr and Mrs S before them, without apparent problems – at least none that were spoken to in evidence – but in the new and unexpected circumstances caused by the sudden ending of the placement with the Ws, which upset both children, I can readily understand the concern of the SWD not to risk placing the two children together with foster carers who might not be able to cope.  But, on the evidence I have heard, I consider that it is going too far to say, as SM does say, that it would be dangerous for the children to stay together.  Any rehabilitation to the care of M would be fraught with potential difficulties and would need intensive support.  But I do not consider that this particular factor would be a breaking point.  If the children were to be returned to the care of M, I would not see any insuperable difficulties in the notion that both should go back to live with her.

 

Evidence about M’s parenting abilities during contact

[75]      I propose to consider at this stage the evidence about the contact sessions between M and the children.  M presently has contact a minimum four times a year with A and a minimum twice a year with B.  In submissions, Ms Loudon was at pains to emphasise that this was a minimum; contact could be more frequent if the children wanted it to be.  I am afraid, having heard the evidence in this case, that I treat that submission with a degree of scepticism.  The fact is, as appears below, that A specifically stated on his “Having Your Say” form filled in by him in April 2014 that he wanted more contact with his mother; and he told the curator the same thing.  What has been the reaction of the SWD?  Have they tried to facilitate additional contact?  No, they have not.  Quite the opposite, in fact.  In February/March 2014 the SWD asked for contact between M and the children to be reduced to a minimum of twice a year.  This was refused by the Children’s Hearing, but the fact that the SWD took this line does not inspire confidence that they will attempt to facilitate more frequent contact if the children ask for it.  The attitude of the SWD is that contact should be reduced, whatever the wishes of the children, because it undermines their plans for the current placements to be made permanent.  This is clear from the evidence of SM.  I quote from para 7 of her affidavit, on which she was questioned in her oral evidence:

“…  In my view, probably the boys would be able to move on better in an ideal world without contact with their mother.  …  In my view contact is destructive.  Contact has been looked at again and again.  …  Both boys need contact to see that their mother is okay.  However, there is a lot of evidence to say that contact while the child is in a permanent placement should only happen when the child’s parent does not undermine the placement.  [A and B’s] mother is so vehemently opposed to the permanent placement that while she does not undermine the placement she regularly tells the boys about them returning home and this has a negative effect for both boys.  Both boys are split between having a relationship with their carers, knowing that where they are placed is good for them and feeling they are letting their mum down.”

 

Similar views were expressed by other SWD witnesses. 

[76]      There are a number of points to be made about this.  The idea that “in an ideal world” the boys would be able to move on better without contact with their mother is, frankly, bizarre.  The presumption behind the ECHR and the relevant Scottish legislation is that you do not break the link between parent and child unless there is no alternative.  Perhaps SM meant that given the somewhat less than ideal circumstances in which we are now placed, the children would move on better without contact with their mother.  Perhaps it is simply a matter of expression, but I think not.  The statement which I have quoted from SM’s affidavit betrays a mind-set that contact with the mother is at best a nuisance and at worst damaging or destructive.  But damaging or destructive to what?  The answer given is that it is damaging or destructive to the success of the proposed permanent placement.  But that assumes that a permanent placement is the right thing for the children.  That is a matter for this court on this petition, to be made in light of all the evidence presented to it.  It is not for the SWD or other professionals to prejudge the outcome of this petition for a permanence order, to assume that a permanent placement is clearly the right thing for the children, and to seek to regulate the frequency or intimacy of contact by reference to permanency being the ultimate goal.

[77]      In the course of evidence I heard from a number of witnesses from the SWD about M’s behaviour at contact sessions.  These included DR, a very experienced social worker who was handed the case of M and her children from sometime in late 2006, even before the final decision to take the children into care, and has had intensive involvement with the family; and RM, a family support worker who first became involved with the children in mid-2012 at the time the placement with the Ws was breaking down and who became involved in supervising contacts between M and the children from summer 2013 to date.  Both prepared reports on a regular basis for consideration at Looked After Reviews and at Children’s Hearings.  They both submitted affidavits and gave evidence at some length.

[78]      The background to their reports and observations was that, on the recommendation of the SWD, almost all contact sessions after 2009 at the latest have been supervised.  There were good reasons for this in the early stages; and, despite the obvious improvements recently made by M, I have no criticism of the decision to maintain supervised contact to date.  That appears to be what the children themselves want.  But the downside of supervision is that contact is inevitably inhibited.  A mother and child cannot be expected to bond naturally in circumstances where there is a social worker or support worker looking over their shoulder, listening to what is being said, observing every interchange between mother and child, judging whether the mother’s responses are appropriate.  On the evidence I am satisfied that this is broadly how the sessions at the relevant family centre were conducted.  I am not suggesting that the social worker always stood within a few feet on M and the children, listening intently to everything that was said.  But I am satisfied that a close eye was kept on how M behaved towards her children.  This comes through in the detailed criticisms made of her failings.  In one sense this is obviously right and proper.  Part of the object of contact sessions, if an open mind was being kept as to whether M was showing the parenting skills necessary to enable consideration to be given to returning the children to her, was to see how M coped with the children, how she reacted to them, whether she picked up and responded to their cues, how they interacted together, and so on.  But in this case it went further than that.  M was given clear instructions as to what she could and could not tell the children.  In particular, she was instructed not to tell the children that she loved them and that she looked forward to the day when they could come back to live with her.  The individuals from the SWD supervising contact were on the lookout for any signs that she was doing this.  They say that M broke these rules.  She whispered to the children.  This is disputed, but for present purposes I am prepared to assume that M did do this, did whisper, did tell the children that she loved them and was working to get them back.  If on occasions this was done in a whisper, it was because she knew she would be told off if she was heard to speak like this.  But why is it wrong for her to talk to the children in this way?  It is wrong, according to the SWD, because it is destructive of the permanency plans which have been put in place for the children.  In other words, the SWD, having decided that the children will never be rehabilitated to the care of their mother, and without waiting for the court to make a permanency order, criticise M for telling the children that she loves them and is working to get them back, simply acting towards her children as a mother will (and should) naturally act.  That approach puts M, indeed any mother in a similar position, in an impossible Catch-22 situation.  If she tells the children that she loves them and wants them back, that will be treated as obstructing the settled will of the SWD, who have decided that it is in the best interests of the children that they be permanently removed from her; it will demonstrate to the SWD that contact is destructive, and will be treated as evidence that she is not suited to having the children returned to her care.  But if she obeys orders, and does not tell them that she loves them and wants them back, she will no doubt be treated as acquiescing in the decision of the SWD to have the children permanently removed from her, a decision which to their knowledge she opposes and has opposed consistently since at least late 2009. 

[79]      Against this background, I regret to say that I did not find it easy to place much weight or reliance on some of the evidence given by those from the SWD, including DR and RM, who attended or supervised contact sessions between M and the children.  This is not because of any doubts as to the honesty of those witnesses, nor because of any doubts that they were acting in what they perceived to be the best interests of the children.  Rather it is because, having settled upon permanency as being appropriate from as early as 2009, they shut their eyes to any other possibility, viewed any behaviour by M which did not fit with their plans as hostile and not to be trusted and, by applying a somewhat twisted logic, treated that behaviour as proof of the correctness of their determination to proceed with their plans.  I regret to say this, because I recognise that social workers and family support workers have a very difficult job which they perform with great commitment often in very difficult circumstances.  But in this case, and there are factors in this case which make it exceptional, having decided upon permanency as the solution to the children’s needs, they became almost parti pris, too closely involved in the outcome which they had already decided upon to be able to make a fair assessment of M and her parenting abilities.

[80]      Let me be clear, however, that I do not reject the whole of their evidence.  I accept the general point made by DR, RM and MB that M is often slow to pick up signals from the children as to what they are interested in and what they want to do, fails at times to engage with their interests, and will sometimes react inappropriately to issues which they raise.  She does not always seem to show an understanding of the children’s ages and stages of growing up.  She will sometimes treat B as a baby, calling him “my baby” and holding him like a baby, which leads to him behaving like one.  Sometimes she will shower the children with presents, when giving just one or two would be better.  Sometimes she will be too firm in controlling the children, sometimes not firm enough.  Each of them gives many examples of these sorts of things happening.  But though this criticism has some validity, such failings are perhaps to be expected when the children have been living away from M for so long.  It is, or can be, a slow learning process.  I do not consider that sufficient allowance was made for this.  M was young and immature when the children left her care in 2007.  I heard nothing to persuade me that M could not learn from her mistakes and build up her self-confidence with experience and with help from people she trusts.  One is entitled to wonder, however, what parent always gets this right, what parent has not been guilty of over-reacting, under-reacting, failing to respond in the right way at the right time.  M may be guilty of this more than most, but on the evidence I have heard I do not consider that her failings are such that she would be incapable of looking after the children if they were returned to her care provided, of course, that she was given the support that she would undoubtedly need for at least the first few months.  Although it is clear that all trust between M and the SWD, particularly DR, has broken down, and relations between them are at an all time low, I have little doubt that, if the children were to be restored to M’s care, individuals within the SWD would be able and willing to provide M with support and advice and, in that new context, M would be receptive to it.

[81]      The point can be illustrated by reference to a number of specific incidents during contact referred to in their evidence by witnesses from the SWD and the family support unit.  These were mentioned in order to illustrate M’s inability to cope with the children and demonstrate appropriate parenting skills.  RM’s evidence is an example of this.  RM said in evidence that the boys were difficult to manage at times and M was ineffective in dealing with them; she could not control B, so his behaviour escalated during contact and upset A, who became emotional.  It was, he said, striking how much she struggled.  He then described five particular incidents to demonstrate his point.  I recognise, of course, that these incidents are not necessarily the only incidents which he might have been able to point to.  But no doubt they were chosen because they best illustrated the inadequacy of M’s responses, and I shall consider them on that basis. 

[82]      The first was an escalator incident described by RM in his Affidavit (para 9) in the following terms:

“With the first contact that I was involved in, it was at Livingston Centre.  Immediately after that it had to be moved to a room as a result of [B’s] behaviour because it was all over the place and [M] could not deal with that.  [B] was exhibiting extreme behaviour and placing himself in danger.  He ran up an escalator and was clinging on to the wrong side of the bannister of the escalator at height.  [M] chased him up the down escalator and it took three of us to work with [B] to eventually get a hold of him.”

 

DR describes what is clearly the same incident in para 37 of her Affidavit in the context of explaining what concerned the SWD “in terms of [M’s] abilities and approach”.  She describes how B tended to react if he saw A constantly getting M’s attention.  He became distracted, disobedient, mischievous and attention seeking.  He tended to run around in an immature manner and climb on top of things and hide.  On this occasion, during supervised contact on 25 June 2013:

“… [B] decided to go on the opposite side of the escalator.  He threw his body over the outside of the escalator; travelling down the escalator and the drop was from second floor height, about 20 feet.  [M] did not react quickly enough to prevent that from happening.  [RM] and I had to intervene to prevent his injury and also reassure [A] that we had control of the situation as he was panicking.”

 

It is difficult to know what M was expected to do.  Boisterous children move fast.  You cannot always anticipate what they are about to do or get there in time to stop them.  The criticism is that M did not react quickly enough, but I suspect the same could be said of very many mothers in that situation.  I do not consider that that incident either as described by RM or as described by DR says anything of any importance about M’s “abilities and approach”.

[83]      The next incident, concerning a photo booth, occurred on an outing to play crazy golf.  The narrative (in RM’s Affidavit at para 10) started with a criticism that [DR] puts in place a plan for contact and [M] “often veers from that plan”.  It continued:

 

“For example, during my first contact there were arrangements to go and play golf but [M] decided that first she would go for a milkshake and would then take the boys to a photo booth.   By the time they got to the photo booth, [B] started kicking it when it wasn’t working and [M] then joined in and started kicking the booth too.  …”

 

The allegation that M joined in kicking the booth was disputed, but that is beside the point.  The criticism which this was designed to illustrate was that M would often veer from the plan devised by DR.  But stopping off for a milkshake and then going on to a photo booth is hardly indicative of anything very heinous.  It might rather be said that it showed initiative and a relaxed manner with the children.

[84]      Immediately afterwards, on the same occasion, there was an incident at the golf.  That is described by RM in the same paragraph (para 10), immediately following that passage:

“…  This meant that by the time we actually got to the golf the boys’ behaviour had escalated.  It ended up a game of golf where no one was playing together, they were all playing their own games and [M] was not keeping any score.”

 

It is, I think, within the experience of most parents of young children that games of crazy golf and the like seldom finish as they are meant to, never involve any genuine attempt to keep the score, and invariably end in tears.  When it was suggested to RM that it did not actually matter whether or not M was keeping the score, or whether the children were playing together or apart, his response was that the contact was about the game of golf.  I find this surprising, to say the least.  The contact was not about the game of golf.  The contact was about contact; and the golf was no more than a vehicle for varying the otherwise boring contact regime in a way which might be fun for the children.  As to his point, made during the same passage in his evidence, that the children were upset during the whole contact, I can well imagine that this may be true.  But these things happen even in the best ordered families.

[85]      Another golf incident is described by RM in para 11 of his Affidavit.  It took place on a different occasion, some two years later:

“Once again, I was concerned with [A] because his mum continued to whisper in his ear and [B] was getting upset.  [B] regressed once again.  At the start of contact there was some low level carry on and [M] did not challenge that behaviour.  Again everyone was playing the game of golf on their own.  [M] was not on top of the boys’ behaviour and the boys’ behaviour slowly escalated.  At that point the behaviour was not difficult to manage.  At the end of the game [A] whacked the ball and I had to duck out of the way or it would have hit me in the face.  I was alone with the boys and [M] at that point in time ….  I gave [A] a ticking off for this and said that that was enough.  I have a good relationship with him and can speak to him in that manner without him getting upset.  [M] took exception to this and started shouting at me.  I found it quite shocking.  She then told me that [A] had done nothing wrong.  When she was shouting at me she lost sight of the boys and they began fighting.  She cannot manage their behaviour.  …”

 

M’s evidence was somewhat different and, having heard both witnesses, I preferred her version.  She had been away for a few minutes and came back to find RM shouting at A.  She intervened to stop him; he should not be shouting at her child.  No doubt she went on the offensive, but in that context that might be understandable.  No doubt during this incident the boys became unruly and possibly started fighting.  But this does not mean that she “cannot manage their behaviour”.  That comment is wholly out of proportion to the incident described by RM.

[86]      This incident led into another escalator incident, described by RM in the same paragraph of his Affidavit in these terms:

“Once again near the end of the contact [B] ran up an escalator as he had done before.  [M] shouted him back and then she took his hand and walked both boys down the up escalator.  She took 4 to 5 steps before she even noticed that she was going down the wrong escalator.  She did not realise which escalator she was on.  It was probably not until [A] looked at his mum that she then realised that she was going down the wrong side of the escalator.  [B] started to run down it.  When he got down he gave me a cuddle.  I don’t know if that is because he wanted to or because he was trying to avoid getting into trouble but when he was doing it [M] was shouting at him to come back up the escalator.  This was two years down the line and the same issues were still presenting.”

 

I find this quite difficult to follow, but the details probably do not matter.  M did initially respond correctly by calling B back to her and taking his hand.  If she then started going down the wrong escalator, that was foolish, but no more than that.  At the end of the incident M appears to have been shouting to try to get B to come back to her.  If so, that is hardly an unusual or inappropriate reaction by a parent whose child has run off.  This incident does not warrant the comment that two years down the line “the same issues were still presenting”.

[87]      Other incidents are mentioned by RM in other paragraphs of his Affidavit, though in less detail, to illustrate that M was not showing adequate parenting skills, that her attention was all on herself, that she was not showing the appropriate level of responsibility, and that she simply could not cope.  It was RM’s view, expressed in para 8 of his Affidavit, that “contact has been damaging to the boys”, a conclusion he based on observing “the fall out in terms of their behaviour during and after contact.”  He concluded, in para 20, with the assessment that “even at the minimum level of contact [M] is having, she cannot cope.  If she can’t deal with it then in my view it should not go ahead but I do not know what that would do to the boys.”  This conclusion is, in my opinion, exaggerated and without foundation.

[88]      These incidents, and the evidence given about them, appear to me to demonstrate two things.  The first is that M, like many other mothers of young children, often finds it difficult to control her children when they become boisterous and unruly.  She will sometimes react too slowly or inappropriately to what the children are getting up to, sometimes fail to assert her authority when they misbehave, and sometimes react with hostility when others take it upon themselves to reprimand them.  It is clear that her parenting skills are, as yet, far from perfect.  They are perhaps worse, even much worse, than those of other mothers, though this is hardly surprising given the limited contact she has been allowed.  But that is not the point.  The question which this court has to address is not whether her parenting skills fall short of what would be hoped for, but whether returning the children to her care would be severely detrimental to their welfare.  I do not detect in any of the examples to which I have referred any indication that M’s parenting abilities are so deficient that, on that ground, it would be detrimental to the welfare of the children to return them to her care.  If the inability to control unruly children was thought to be indicative of a lack of parenting skills so serious that returning of them to the mother’s care would be likely to be severely detrimental to their welfare, that would place the bar in section 84(5)(c)(ii) so low as to be virtually irrelevant.

[89]      The second point is that the exaggerated evidence given about these incidents and the unjustified conclusions drawn from them inevitably makes the court more cautious about accepting some of the more generalised evidence given by the SWD and the family support unit about M’s defects and failings in her parenting skills.  I suspect that part of the problem lies in the fact that, in the early years after the children were taken into care, M was still fragile and immature and prone, on a fairly regular basis, to relapse into drugs, alcohol abuse and other problems.  It was at that time that plans were developed by the SWD with a view to permanence orders being sought, with or without adoption.  Implementation of these plans was delayed when the placement with Mr and Mrs W broke down and the consequent distress to the children became evident.  They needed to be given the opportunity of settling down in new foster care placements.  That coincided with the early stages of M’s change of lifestyle, her renewed determination to throw off the problems of her past which prevented her from coping with her children.  It is understandable that the SWD might have viewed such changes with scepticism.  They had been there before and M had relapsed again and again.  In those circumstances it is easy to see why there should be a reluctance to disrupt the move towards permanence.  Judgements made about M’s parenting skills based on contact in 2013, 2014 and 2015 appear harsh, for the reasons I have sought to explain.  But they are perhaps understandable in the context of a determination not to let the move towards permanence be disrupted.  In short, it appears to me that the criticisms of contact in the last two or three years reflect a mind-set on the part of individuals within the SWD and family support unit which was closed to the possibility that M could ever make sufficient improvement for a return of the children to her care even to be contemplated; so that failures on her part to control boisterous and unruly children, which might be looked at more kindly in other circumstances, were, in her case, regarded as confirmation of a deep-rooted failing on her part, confirmation of an irremediable lack of parenting ability which rendered her wholly incapable of looking after the children and made the prospect of the children being returned to her appear not only severely detrimental to their welfare but positively dangerous.

[90]      Many of the SWD and family support unit witnesses gave as part of their evidence an assessment of the prospects of a successful outcome if the children were rehabilitated to their mother’s care.  DR was clearly negative about this, having regard to the anxiety it would cause to the children, M’s limitations in terms of parenting skills, her constant need for support during contact and the likelihood of M relapsing (based on the number of times she had relapsed in the past).  The most extreme view was expressed by SM.  In para 13 of her affidavit she posed the question of what she believed would happen if the children were to return home; and answered it by saying that she was 100% sure that if they were to return home they would not last.  All these witnesses in different ways expressed concern that conflict between the children would increase if the children were returned to M’s care and that she would find that almost impossible to handle.  SM considered that to return them to their mother’s care would be “emotionally very damaging”.  These are serious concerns, and I must take them into account.  But in doing so I must also take into account that they are based upon assessments of the children and their mother from observations made at contact sessions which, when I have been told the details of the particular incidents, do not appear to me to support the degree of concern expressed.  Stripped of the hyperbole running through much of this evidence, I am left with the impression that there would be clear difficulties if the children were to be returned to the care of their mother; but that those difficulties would not be insuperable provided that assistance was offered in the right spirit.  They are certainly not the sort of difficulties that, of themselves, would cause me to think that returning the children to the care of their mother would be severely detrimental to their welfare.

 

The views of the children

[91]      The views of the children were presented to the court by the curator ad litem in two Reports, one for each child.  At my request, she then attended court during the course of the hearing to clarify certain points which were concerning me.

[92]      So far as A was concerned, the curator was clear that he really enjoyed living where he was.  It was fun and he had a good time.  He told the curator that he wanted to stay there.  He wanted to remain in his placement.  He was happy for a permanence order to be made.  So far as concerned contact, A told the curator that he loved seeing his mum and that it was “just unfortunate that it is minimum four times a year”.  He thought that maybe once a month might be better.

[93]      I asked the curator whether, in expressing a view that he was happy for a permanence order to be made, A had been made aware of a possible alternative of going back to live with his mother, or whether the choice with which he was presented was limited to a choice between, on the one hand, staying with his present foster carers with a permanence order and, on the other hand, staying with his present foster carers without a permanence order being made.  The curator told me that she had not expressly put to him the possibility that he might be returned to his mother.  That is understandable, since her Report was written in the context of an application for a permanence order rather than for any other purpose.  Having considered the matter with some care, I am satisfied that this does not undermine her report.  Quite apart from saying that he was happy for a permanence order to be made, A also made it clear that he wanted to stay there with his foster carer, wanted to remain in that placement.  That is clear also from his own “Having Your Say” Report, filled in by him in April 2015 for the purpose of the Looked After Children Review that year.  Asked what decisions he would like to be made at his Review, he answered that he was happy the way everything was.  Asked what he would change if he could change anything about his care, he replied “nothing”.  Earlier “Having Your Say” Reports for Reviews in 2013 and 2014 do not present such a clear picture.  In February 2013 he reported that he wanted to “change carers”, but that Report was made at a time when he was just about to move between foster care placements and probably simply reflects what he knew was going to happen.  In April 2014 he answered the question about what he would wish to change if he could change anything about his care by saying: “to go back to my mum!”  At that time he would have been at the end of his first year in his current placement and, no doubt, was still in the process of settling down after the previous placement with the Ws had broken down.  In his Review of April 2015, a year later, he answered the question whether he liked living where he was, i.e. in his current placement, by saying: “it’s amazing!”  There was nothing about his care that he would want to change.  He was happy the way everything was.  In those circumstances I consider that I can take his answers to the curator, to the effect that he wanted to remain where he was, in his current placement, as representing his genuine wishes on this matter.

[94]      So far as B is concerned, he too made it clear that he really enjoyed living where he was in his current placement: “I love it here”.  I again asked the curator whether he had been asked that question in the context of an understanding that there was or might be a possibility of returning to live with his mother.  She answered in the same way as with A.  I have no doubt that the curator has accurately conveyed B’s genuine wishes on this matter.  In his “Having Your Say” Report filled out by him in April 2015 he answered the question about whether he liked living where he was, i.e. in his current placement by saying: “I love it”.  His main concern was that he should stop having to go to meetings to review his placement.

[95]      It is appropriate at this point to mention a concern, which I have touched upon earlier, about the amount of contact between A and his mother.  He told the curator that he loved seeing his mum: “it is just unfortunate that it is minimum four times a year”.  Asked how often he would like to see his mother he said that she was really busy but thought that maybe “once a month” might be better.  He explained the “whole range of things” that they did during contact.  He enjoyed spending time with her.  That desire for more contact is evident from his “Having Your Say” forms.  In his form filled in in April 2014 he made it clear that he would like to see more of his mum.  In the form filled in in April 2015, under reference to the question of whether he was happy with the contact he had with his family and friends, he remarked that he saw his mum (minimum) four times a year and drew a sad face, before commenting that he knew he could see her more if he wanted to.  He then went on to say that he would like to see more of her as well as other relatives.  It seems to be clear both from those self-completed Reports and from what he told the curator that A would like to have more contact with his mother.  I have already commented upon the fact that contact has not been increased despite him wanting more contact; and, no doubt for good reasons to do with their own perception that contact was damaging, the SWD sought to have it reduced in April 2015.

 

Conclusion on section 84(5)(c)(ii)

[96]      I have already said that there is much in the evidence of the witnesses from the SWD and the family support unit which I do not find persuasive.  As a result I do not find it established that M’s parenting shortcomings alone would or should prevent the children being returned to her care.  There are shortcomings, plainly, but they could be substantially overcome with time and support; and they are not such, in any event, as to lead to the conclusion that returning the children to her care would, on that account, be seriously detrimental to their welfare.  From that point of view, considered by itself, they could both be returned to her care; and I have not been persuaded that, given the appropriate help, she would find it impossible to cope with the inevitable tensions between the two brothers if they are both returned to her care at the same time.

[97]      Nonetheless, I have come to the conclusion, with some hesitation, that returning either or both children to her care would indeed be seriously detrimental to their welfare.  My reasons for reaching this conclusion are set out in the following paragraphs.

[98]      The children have not lived with her mother since June 2007.  At that time A was still under five years old while B was only about two and a half.  Even before that they had been away from their mother for some seven months in 2006.  While A has some bond with his mother from that time, and some recollection of what happened while he was living with her, B has very little awareness of being looked after by her at all.  That probably explains the differences in attitudes manifested by the children on the subject of contact.  While A knows and loves his mother from having had some time being looked after by her, B’s history of living with her is much less.  But whatever may be the difference between them in that respect, it is clear from the evidence that what recollection they do have of living with her is marred by remembered (or half-remembered) images of violence and uncertainty.  While they might well be willing to go back to live with her out of love or loyalty or a combination of the two, they would not be moving to a home setting that they would necessarily regard as a place of comfort and stability.  I do not consider that a home provided by M would, at the moment and in the foreseeable future, offer the stability which the children crave.

[99]      I am satisfied on the evidence that the children do indeed crave stability.  Through no fault of their own they have undergone dramatic changes in their lives.  They were removed from their mother for seven months in 2006 and then returned to her care for a short time before being taken away finally in June 2007.  They have each undergone at least four foster care placements since their move in June 2007, first with Mr and Mrs S, then with Mr and Mrs W, followed by short-term placements before being placed with their present foster carers.  It is clear that they came to love Mr and Mrs W as though they were their own parents and love their foster home as though it were their own.  They were devastated when, through no fault of their own and no fault of Mr and Mrs W, that placement broke down.  The subsequent period in temporary care before moving to their current placements cannot have been easy for them.  They are now both placed with foster carers who love them and treat them as part of their family.  They reciprocate that love.  That is apparent from everything that they have told the curator and from the remarks that they themselves have made in their “Having Your Say” forms.  It seems to me clear that they now find themselves in foster care homes which they regard as providing the warmth and stability of which they have been deprived for so long.

[100]    The placement with Mr and Mrs W gave them security but proved to be a false start.  Their present placements have given them renewed security.  If they were to be returned to live with M, their present placements and everything associated with them would be put in jeopardy.  There is no guarantee that these places would be available for them if, after some time living with their mother, problems developed and they had to be taken away again.  The disruption to their lives, the wanton destruction of the stability which they have now begun to enjoy, would be devastating to them.  They may be old enough now to understand it, but that is no consolation if things go wrong.  They have been moved from pillar to post in the years since they were removed from their mother in 2007.  They do not need another move now.

[101]    Of course, if there was or could be some guarantee that a move to live with their mother would be a success, that might in some circumstances counter balance the disruption of yet another move.  But there are two problems. 

[102]    The first is that they have been away from their mother for eight, nearly nine, years.  As I have said, B has no real recollection of ever living with her.  A has some recollection but was still only four when he left home.  If they were to return to the care of their mother, therefore, it would not be returning to somewhere where they were familiar or to live with someone with whom they were used to living.  It would be almost the equivalent of a new placement in which they would all, mother and children, be learning new ground rules, getting to know each other, working out how to live together.  Does that justify the disruption to their lives which would be caused by ending their current placements?  I think not.

[103]    The second problem relates to M’s own circumstances.  She has made a good recovery.  There is no doubt about that.  She has been free of illicit drugs since March 2013 and off methadone since February 2015.  Alcohol no longer appears to be a problem.  But all this is very recent and comes against a background of drug and alcohol problems going back a very long time.  I accept that she is sincere in her belief that she will not relapse and that she will be able to look after the children, but I am not persuaded that she herself fully understands the difficulties that she will face.  Her progress to date is remarkable but offers no guarantee of success.  While I accept that the likelihood of a relapse diminishes with time, it cannot be excluded.  On top of that, how would she cope with the inevitable problems of looking after one or both of the children when she has had no practical experience of being a mother to them for the last eight years or more?  The fact that I do not accept to their full extent the criticisms of her parenting skills advanced by witnesses from the SWD and the family support unit does not mean that she will find it easy to deal with the children if they are returned to her, even if she is given the support and advice reasonably to be expected from the local authority agencies.  In practical terms she is and remains a vulnerable adult, with a recent and prolonged history of drug and alcohol abuse and with no substantial history of parenting.  If the children were to be rehabilitated to her care, that would proceed on the basis of hope – hope that she will not relapse despite the strains that having the children with her will compose – rather than on any evidence-based assessment that she will be able to cope.

[104]    In my opinion there is a serious though unquantifiable risk that any attempt to rehabilitate the children, or even one of them, to her care would end in failure.  That would cause enormous disruption to their lives at a very vulnerable time.  Their present placements, where they are settled in and very happy, might well not be available to them.  In those circumstances I am satisfied that returning the children to live with their mother is likely to be seriously detrimental to their welfare.

[105]    Section 84(5)(c)(ii) being satisfied, I now turn to consider the other statutory requirements relevant to the decision whether or not to grant a permanence order.

 

Should a permanence order be made?

Section 84(3), (4) and (5):  overall assessment

[106]    This question involves a consideration of the whole circumstances as they emerged from the evidence led before me.  There are, however, certain specific requirements laid down in section 84 of the Act.  I mention them below in no particular order.

[107]    In terms of section 84(3), I am required to have regard to what is generally referred to as the “no order” or “minimum intervention” principle, that is to say the principle that 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.

[108]    I am also required in terms of section 84(4) to have regard to the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.

[109]    Finally, in terms of section 84(5)(b), I am required to have regard to any views which the child may express; to the child’s religious persuasion, racial origin and cultural and linguistic background; and to the likely effect on the child of the making of the order.  No particular issue has been raised regarding the child’s religious persuasion, racial origin or cultural and linguistic background.  So far as the views of the children are concerned, these have been set out comprehensively in the Reports by the curator ad litem.  I shall obviously have regard to the likely effect on the children of making a permanence order.

[110]    My conclusion that returning one or both children to live with M would be seriously detrimental to their welfare not only satisfies the statutory precondition to the making of a permanence order.  It also sets the context in which the remaining questions have to be addressed.  It means that the prospect of either child returning to live with M can be discounted.  The children will remain in foster care – there has not for some time been any proposal that they be freed for adoption.  So the question whether a permanence order should be made is to be answered in the context of the children permanently remaining in foster care.  The question is: should it be foster care with a permanence order or foster care without one.

[111]    The decision that the children cannot go back to live with their mother also confirms the context in which the views of the children as expressed to the curator ad litem should be understood.  I have already noted the explanation given to the court by the curator that, when seeking the views of the children as to the making of a permanence order, she did not explore with them the alternative scenario of a return to the care of their mother.  Given my finding in terms of section 84(5)(c)(ii), this does not present a problem.  The choice is between foster care with a permanence order or foster care without a permanence order.  That is the choice which was presented to the children.  On the basis of the curator’s Reports, I am satisfied that children are old enough and sufficiently mature to expect their views to be taken into account.  It is right that they should have been given the opportunity to indicate whether they wished to express any views and, if so, to give them the opportunity to express them.  They have done this in their discussions with the curator.  Without going into any of the details set out in the two Reports, it is clear that in these circumstances both children would like a permanence order to be made.

[112]    The reasons for this are twofold.  The first is somewhat intangible, though on the evidence I am satisfied that it is of great importance to the children.  A permanence order gives a sense of stability and security, a measure of assurance to the children that the arrangements presently in place and with which they are very happy are not going to be altered tomorrow, or next month, or next year.  This is particularly important in the lives of these two children, given the number of placements they have had already, the unfortunate breakdown of the placement with Mr and Mrs W, and the close bond they have developed with their current foster carers.

[113]    The second reason is a practical one.  I heard evidence from a number of witnesses, including the foster carers, about practical issues arising out of the fact that the children live in their care and under their responsibility but that M’s consent is needed for holidays, school issues, medical appointments and the like.  Some of the evidence given by witnesses from the SWD suggested that M was not cooperative and delayed unnecessarily in making arrangements for giving her consent.  I reject this as a general criticism of M, though no doubt there have been occasions where her consent has appeared to be late.  So far as concerned the instance of M allegedly delaying in giving her consent to one particular holiday, it turned out that she had only been asked a few days earlier.  On another occasion, her consent was sought, inappropriately, at a contact meeting with the children, with a form being placed before her for her to sign – not unnaturally she wanted to consider it and the SWD subsequently accepted that they should not have dealt with the matter in this way.  So far as concerned the choice of school, I was satisfied by M’s evidence that her concern to ensure that A was happy with the choice of school was a genuine concern and that she did not necessarily disrupt matters and put her own views forward in opposition to those of A and his foster carers.  I am not persuaded that A was in any way upset by her intervention.  Finally, there was an issue about an appointment with an orthodontist where M was left to make the arrangements.  The complaint by the SWD was that she had left it too late, so that the appointment had to be cancelled and re-fixed.  On this matter I was shown internal notes within the SWD and I was far from satisfied that the fault lay with M rather than in some failure of communication within the SWD.  Ultimately, attribution of fault is irrelevant.  None of these examples given in evidence suggests any deliberate obstructiveness on the part of M nor, indeed, any failure on her part to do what was required of her.  On the other hand there is, in my opinion, some force in the point that if there is no realistic prospect of the children being returned to the care of their mother, the foster carers should be allowed to take responsibility for the children and treat them as they would their own.  This means being able to make decisions about holidays, schooling, medical appointments and the like without always having to seek approval from M.  This too will add to the children’s perception that their present arrangements are there to stay.

[114]    In those circumstances I am satisfied that it would be in the best interests of the children to make a permanence order in respect of each; that it would be better for the children that a permanence order be made than that it not be made; and that in making a permanence order the court would be acting in accordance with the clearly expressed wishes of the children.

 

Detailed provisions of the order

[115]    On the basis that the court is to make a permanence order in respect of each child, there was little or no agreement about the ancillary orders which should be made.

[116]    In terms of section 89 of the 2007 Act, on the making of a permanence order the court must make an order that the supervision requirement presently in force in respect of each child ceases to have effect.

[117]    It is not in dispute that the order must contain the mandatory provisions set out in section 81 of the 2007 Act.  That is to say that, in respect of each child, the order must vest in the local authority: (a) until that child reaches the age of 18 years old, the responsibility mentioned in section 1(1)(b)(ii) of the 1995 Act for providing guidance appropriate to the child's stage of development; and (b) until that child reaches the age of 16 years old, the right mentioned in section 2(1)(a) of that Act to regulate the child's residence.  I shall include those provisions in the order.

[118]    Section 82 of the 2007 Act identifies the ancillary provisions which the court may include in a permanence order.  There are a number of distinct matters to be considered.

[119]    First, the council asks the court, in terms of section 82(1)(b), (c) and (d) of the 2007 Act, to include in each of the orders the following provisions concerning parental responsibilities and parental rights:

(1)        a provision vesting in the respective foster carers

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

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

(2)        a provision extinguishing

(a)        M’s parental responsibilities mentioned in section 1(1)(a), (b) and (d) of the 1995 Act and

(b)        M’s parental rights mentioned in section 2(1)(a), (b) and (d) of that Act.

This is opposed.  M’s position is that if a permanence order is to be made the parental rights and responsibilities currently lying with M should not be extinguished.  On this issue I prefer the submissions for the council.  As I have sought to explain, the need to consult M and seek her consent in relation to holidays, schooling, medical appointments and the like has caused difficulties, or has at least prevented the children settling in with their foster carers as well as they should.  Regardless of M’s conduct in relation to this, and I have already made clear that I reject much of the criticism levelled at her in this regard, the need to seek her consent and the inevitable delay and uncertainty, however brief, resulting therefrom creates in the children a feeling of insecurity.  The children would both like their foster carers to be able to make these decisions themselves.  I am satisfied that I should include these provisions in my order.

[120]    The second issue relates to contact.  This is fiercely contested.  In the petitions, the council ask for an order in terms of section 82(1)(e) of the 2007 Act that contact between M and her children be fixed, in the case of A, at a minimum of four times a year and, in the case of B, at a minimum of twice a year.  In the course of evidence and in the course of submissions, I detected that the council’s preferred position was for there to be no order for contact at all, it being left to the foster carers and/or the SWD to allow or encourage such contact as they perceived to be in the best interests of each child.  M, on the other hand, contends that if a permanence order is to be made in relation to A, there should be a provision in it for direct contact to take place between her and A at least once a month; and that if one is to be made in relation to B, there should be a provision in it for direct contact to take place between her and B at least once every three months.  In both cases M contends that there should also be provision allowing indirect contact between her and her children.

[121]    The arguments on this point are well balanced.  On the one hand, the council maintain that M’s behaviour at supervised contact – constantly telling them that she is working to get them back – is detrimental to the consolidation of the children’s relationship with their foster carers.  On the other hand, M contends that the SWD cannot be relied upon to allow contact as frequently as both she and her children want; so some order needs to be made to ensure that regular contact does indeed take place.  On this aspect I have considerable sympathy for M’s position.  Criticisms of her conduct at contact sessions should be seen against the background that until a permanence order is made she is perfectly entitled to seek to have the children returned to her and to tell the children that.  It might well disrupt progress towards a permanent placement with the foster carers but, given her genuine belief that it would be better for the children to be returned to her care, I do not consider that any such criticism is justified.  Now that the court has made a decision in favour of making a permanence order, I have no reason to suppose that M will continue to act in this way, subject, of course, to her legitimate rights of appeal.  I had the clear impression from her evidence that she would accept any final decision of the court and, if it went against her, would act appropriately.  It is perfectly consistent with the making of a permanence order that there should continue to be contact between a child and its birth mother.  Provided this can be handled amicably and constructively, and without jeopardising the building of a secure relationship with the foster carers, contact should be encouraged.  I regret to say that I have no confidence that the SWD would encourage contact in the absence of a court order to that effect.  Their record to date, in the case of A, does not inspire such confidence.  I have no similar criticisms of the foster carers of either child, but they will to some extent take a lead from the attitude of the SWD;  and it seems to me that it would help all parties if the permanence order made it clear that there was to be a certain amount of contact between M and her children.

[122]    Having said that, the position of the two children is quite different.  In the case of A, he has lived with his mother long enough to have formed a bond and to want to have increased to contact.  He has expressed this in a number of different ways, including to the curator.  It seems to me that in his case I should make an order for contact between him and his mother no less frequently than once a month.  That does not mean that there must be contact within every month, but it does mean that the frequency of contact should average out at no less than once a month throughout the year.  The case of B is very different.  He has hardly known what it is like to live with his mother and, so far as I can ascertain, is quite content with the level of contact as it is at present.  In his case I propose to make an order for contact between him and his mother no less frequently than twice a year.

[123]    I would hope that if contact at this level is shown to work, then the frequency can be increased.  But I have to leave that to the foster carers to take forward in conjunction with M.

[124]    I do not propose to include any provision for indirect contact.  If direct contact works in the way I hope it will work, no doubt indirect contact will follow naturally.  But it would be premature to include any provision of this sort at this stage.

[125]    In including such provisions within the permanence orders, I am conscious of the possibility that my expectations will be disappointed and that, for whatever reason, contact will not turn out to be conducive to the children settling into the foster care relationship.  But section 92 of the 2007 Act gives power to the court on the application of various parties to vary the ancillary provisions of a permanence order, and I have no doubt that this will enable any such problems to be dealt with should they arise in the future.

 

Disposal

[126]    As far as I am aware the above deals with all the live points raised in the hearing.  However, I am anxious that the interlocutor to be pronounced in each case fully reflects a decision on all matters argued before me.  I shall accordingly ask my clerk to circulate to the parties draft interlocutors reflecting the terms of this Opinion.  Parties are invited within seven days to confirm to my clerk (a) that the draft interlocutors accurately reflect the terms of this Opinion and (b) that I have not omitted to deal with a point which was raised and requires to be resolved.  Any errors or omissions should be brought to the attention of the court after parties have discussed and, if possible, reached agreement on them.  I emphasise that this is intended to be an administrative exercise and not an opportunity for further submissions.  I shall appoint the case to come out By Order on a date about two weeks from today.  That By Order hearing can be discharged if all such matters can be agreed beforehand, in which event interlocutors in the terms of the drafts or as amended will be issued.