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HS AGAINST TP AND LB [2023] ScotCS CSOH_61 (20 July 2023)
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_61.html
Cite as:
2023 GWD 34-281,
2023 Fam LR 104,
[2023] ScotCS CSOH_61,
[2023] CSOH 61
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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 61
F22/23
OPINION OF LADY CARMICHAEL
In the cause
HS
Pursuer
against
TP
Defender
and
LB
Minuter
Pursuer: MacBride, Drummond Miller LLP
Defender: Cartwright, Thorntons
Minuter (LB): L Morgan, CSG Legal
21 July 2023
Introduction
[1]
Ms HS is the mother and Mr TP is the father of Simon, who was born in January 2016
in Kentucky. Simon has a maternal half sibling, Jonathan, who was born in December 2010.
Ms LB is the fiancée of HS. The names Simon and Jonathan are fictitious, in order to
protect the identity of the children. The names of some witnesses have been altered, and
locations redacted, to prevent jigsaw identification of the children.
2
[2]
TP's paternity was established in paternity proceedings brought in 2017 by HS. A
fresh birth certificate was issued for Simon after that process. In the present action HS
initially sought a residence order in respect of Simon, which failing a contact order, and
interdict against TP's removing the child from Scotland. She did, however, not move the
court to make a residence order in her favour at the close of the proof.
[3]
TP seeks a residence order and also a specific issue order permitting him to take
Simon to live with him in the United States of America. HS opposed both of those
conclusions.
[4]
LB, who entered the process as minuter, seeks an order for contact with Simon. In
her pleadings she alleges that in a video call on 21 June 2023 TP and DP scolded Simon for
calling LB "Mama".
[5]
HS met LB in 2017 and they became engaged in February 2018. According to HS's
affidavit evidence, she decided to relocate from Kentucky to Scotland. It is common ground
that Simon stayed with his father from 14 May 2018 to 24 October 2018. That arrangement
was the subject of temporary agreed joint custody order. In the course of HS's oral evidence
it became clear that Simon also lived with his father for 6 weeks from about 11 February
2018 while HS was in Scotland.
[6]
Simon returned to his mother's care on 24 October 2018. A further temporary agreed
joint custody order was made in a court in Kentucky on 7 November 2018. It provided that
HS would have custody of the child from 24 October 2018 until 28 June 2019; from
19 August 2019 until 28 June 2020; and from 19 August 2020 until 23 October 2020. It also
provided that TP would have custody of Simon in the United States from 28 June 2019 until
19 August 2019; and from 28 June 2020 until 19 August 2020. Simon was not in TP's care for
the period that had been agreed during the period June to August 2019.
3
[7]
The order made no specific provision for the period after 23 October 2020, but
provided that the parties agreed to re-evaluate the arrangement in the summer of 2020
taking into consideration both the parties' and the child's positions and circumstances at the
time, looking into the near future and agreed to submit another agreed order in regard to
custody at that time.
[8]
Simon came to Scotland with his mother in December 2019. He has been in Scotland
since 9 December 2019. He lived with his mother, Jonathan and LB until 7 June 2022.
[9]
Simon and Jonathan were removed from the care of HS and LB on 7 June 2022 under
a Child Protection Order, and were placed with foster carers. The Children's Hearing made
a series of interim compulsory supervision orders in respect of both children. In September
2022 HS pleaded guilty to an offence in terms of section 12 of the Children and Young
Persons (Scotland) Act 1937, and received a community payback order involving 18 months
of supervision and 170 hours of unpaid work. The grounds of referral were established by
the agreement of HS, LB, and TP, who were all relevant persons, and the reporter, at the
Sheriff Court on 27 October 2022. The statements of fact were amended to reflect the offence
to which HS had pleaded guilty, which related to a single day. The statements of fact
include:
"On 7 June 2022 at [address] LB and HS:
(i)
allowed their home to become dirty and unhygienic;
(ii)
allowed their home to become strewn with items that posed a danger
to Simon and Jonathan;
(iii)
failed to provide Simon and Jonathan with adequate food;
(iv)
failed to provide Simon and Jonathan with adequate bedding causing
them to lie and sleep on dirty and unhygienic mattresses;
4
(v)
installed a lock on Simon and Jonathan's bedroom door so that their
room could be locked from the outside;
(vi)
failed to provide Simon and Jonathan with adequate clothing and
shoes."
[10]
A compulsory supervision order (CSO) was made on 10 January 2023 and was
discharged on 20 March. Simon was placed in the care of his father. HS and LB appealed
against the compulsory supervision order. It was part heard, and then abandoned.
[11]
HS breached her community payback order. The sheriff has allowed the community
payback order to continue.
[12]
TP and Simon's paternal grandmother, DP, are presently caring for Simon in
Scotland. The local authority has provided them with accommodation to enable them to do
so and the household receives an allowance of £200 per week. TP is absent from his work in
the United States. His wife, AP, and other children have remained in the United States
while he has been in Scotland caring for Simon. He is present only on a tourist visa. He has
no other lawful basis to be in the United Kingdom. Both he and the local authority appear
to have proceeded on the basis that he would be able to take Simon to the United States
immediately on the termination of the CSO.
[13]
While Simon was living with foster carers he started school. He did so in August
2022 when he was 6 years and 8 months old. He entered primary one.
[14]
On 28 September 2022 TP's attorney filed an ex parte motion in a court in Kentucky
for emergency temporary custody. The court made an order providing TP with temporary
sole custody of Simon. A copy of the order was sent by email to HS's Scottish agents on
30 September 2022. The court in Kentucky made a temporary custody order on 25 October
2022. HS was not present or represented at the hearing. On 27 February 2023 TP's attorney
filed a motion for emergency sole custody of Simon and sole application for a passport for
5
travel from Scotland to Kentucky. HS attended the hearing of that motion by video link,
without representation. The court made a temporary sole custody order on 1 March 2023.
[15]
HS raised the present action, and contended that Simon was habitually resident in
Scotland, so that section 2(3) of the Children (Scotland) Act 1995 applied. She contended
that he had been habitually resident in Scotland when the court in Kentucky made orders in
2022 and 2023, so that this court should not recognise those orders in terms of section 26 of
the Family Law Act 1986. TP, DP and Simon have remained in Scotland pending resolution
of these proceedings.
[16]
There has already been a preliminary proof in this case. I delivered an ex tempore
judgment on 15 June this year immediately after hearing evidence and submissions, and
found that Simon had acquired a habitual residence in Scotland well before the order of the
Kentucky court made in late September 2022. By that time Simon had been living in
Scotland for two years and nearly 10 months. I was satisfied that he had continued to be
habitually resident in Scotland. LB entered the process as minuter after the preliminary
proof.
[17]
Simon currently has one two hour session of indirect contact with HS each week, in
which LB joins.
[18]
This opinion deals with the questions of residence, relocation to the United States,
and contact. I heard evidence and submissions on 18, 19 and 20 July 2023.
Simon's views
[19]
The court obtained information about Simon's views by appointing child welfare
reporters. Simon said that he wanted to live with TP and AP in the United States. He
wanted to live near his paternal grandparents, who live in Kentucky. He understood that he
6
would not be living with Jonathan. He appeared to believe that Jonathan would be living in
Ohio. He wanted more video calls with HS and LB.
[20]
He said he loved both HS and LB and that they did fun things together. He wanted
to see them together. He told the child welfare reporter that his dad had told him not to call
LB mom. He said that his dad had said, "She's not your mom", so he did not call her that
anymore.
Evidence
[21]
A number of witnesses were interposed in the case of another party in order to
accommodate their availability to give evidence.
[22]
HS gave evidence and led evidence from Ms White and Ms Black. Both gave
evidence by Webex video link.
[23]
TP gave evidence and led evidence from Mrs Green, social worker; DP; Dr Gray,
consultant paediatrician; and Mr Brown, Simon's foster carer. Dr Gray and Mr Brown gave
evidence by Webex video link.
[24]
The minuter gave evidence in her own case.
[25]
Parties were agreed that the affidavit evidence of another social worker involved in
the case should be evidence in the case, although none of them came to rely on it in
submissions.
Evidence for pursuer
HS
[26]
HS's position in evidence was that she believed that it would be better for Simon to
remain in Scotland than to return to the United States. She understood that if the court
7
refused to grant the specific issue order, the immediate result would be likely to be that
Simon would require to move to foster carers, and that they would probably be different
foster carers from those with whom he was accommodated between June 2022 and March
2023. It was likely that Simon would again become the subject of Children's Hearings, with
arrangements for his care regulated by CSOs. She intended to work towards having both
Simon and Jonathan rehabilitated to her care. She said that she regretted not having
"reached out" to services at an earlier stage. She would do things differently now. She had
made several mistakes in the past.
[27]
Her relationship with Pamela Green, Simon's social worker, had been rocky at first.
She felt she could not trust her and that she was not being heard. She felt that she, HS, was
saying the wrong words, or asking the wrong questions, so that she was not understood.
HS had come to appreciate that Mrs Green had gone well beyond what was required of her
as a social worker. It had taken HS a while to change her attitude and behaviour because of
the feeling that she was not being heard or understood, and she required to "get the nerve"
to tell Mrs Green how she was feeling.
[28]
HS felt that her insight had improved since her conviction. She was still working out
some of the finer details of what went wrong. There were things (which she did not specify)
that even she "questioned". Working with her criminal justice social worker and her
personal reflections she was seeing where she could have done better, with or without
support. She should have been willing to accept advice from family who were only a phone
call away.
[29]
HS was working with her advocate (advocacy worker) to identify parenting classes.
It was difficult to find a suitable class. She and LB had made changes to the property they
lived in. They had, for example, obtained a new washing machine. Some of the odour
8
observed on Simon's clothes when he was taken into care happened because the water was
not fully expelled from the old machine. She had replaced a sofa and flooring, and carried
out some redecoration. It was not her fault that social workers had not reviewed the
improvements. She had tried to arrange home visits. She and LB had sat at home on
16 March 2023 expecting a visit from Mrs Green, but she had never arrived. She was sure
Mrs Green had not come, because she had been watching from the window. HS's
advocate had led her to expect a parenting assessment over a 12 week period but she was
offered only seven appointments of which six took place. She had declined appointments
on occasions when her advocate was unable to be present.
[30]
HS suggested in her affidavit evidence that TP had told her from the time after he
first became involved in Simon's life (when Simon was 18 months old) that he did not have
the resources to provide her continually with financial assistance. She was asked about a
court order pronounced of consent, and signed by her, dated 7 November 2018 which
provided that child support would be held in abeyance for two years. The order recorded
that at the time of the order no child support was outstanding and that that had been
verified with the child support office. HS said she did not remember consenting to child
support being held in abeyance. She had read the document before she signed it but did not
remember the provision being there. She had not been legally represented in the mediation
that led to the agreement because she could not afford to instruct an attorney.
[31]
HS was referred in her evidence to a letter from the solicitor representing her in
criminal proceedings, dated 19 May 2023. It related to her appearance at the Sheriff Court
on 5 May for a second review of the community payback order. It explained that the review
report from the social work department was in very much better terms than on the previous
occasion. She had attended all of her arranged supervision appointments, her engagement
9
with unpaid work had improved markedly and her overall co-operation had improved. The
sheriff had allowed the order to continue, but reminded her that she must maintain that
level of progress, and had fixed a further review for a date in August 2023.
[32]
HS accepted that she had breached the order, and explained that she done so because
she had not understood some aspects of what was required of her. Again, she referred to a
"rocky start". She was struggling to understand the process, although she had understood
what was outlined in the court. Sometimes her criminal solicitor was not "the best at
explaining" things to her. Some of her reasons for not being present at appointments may
have been "actual reasons". She thought they might even have been acceptable to social
workers but she now understood they would never satisfy the court. Initially she had been
supervised by a student social worker, but his supervisor had taken over in March 2023. She
was much easier to talk to.
[33]
She had been unable to feed the children adequately because of lack of funds. She
could not work in Scotland but was now considering obtaining remote work in the United
States to earn money. She could not explain why she had not done so before. At the time
of the proof she still had no income. She had learned from her social worker that the
information she had received to the effect that she could not register the children for school
or medical services because of her immigration status was inaccurate. She accepted only
that the children had been dirty and unkempt on the day they were removed from her care,
which was the single day to which her conviction related. She generally tried to keep her
children looking "very clean". When it was put to her that the foster carer might speak to
Simon's having smelled bad, and to having required several baths to dispel that, she said
she could not dispute that, but attributed the bad smell to the condition her home had been
in at the time.
10
[34]
The children's clothing had been inadequate only because she been asked to provide
a bag with a very few outfits. She had retained clothing for them that fitted them properly
and had never been asked to provide it. She did accept that Simon was malnourished for a
protracted period. She did not accept that he was not educated. She did not accept that she
had missed fifty per cent of contact sessions with the children in the period June
to December 2023.
[35]
The trainee criminal justice social worker had explained things to her better after the
order was breached than he had done before. He had started working through the details to
understand the reasons for the breach, whereas he had previously just asked her why she
had been absent from appointments.
[36]
HS did not accept that she had told Dr Gray, the paediatrician who examined Simon
in June 2022, that Simon's father was of small stature. She had said that only in relation to
Jonathan's father.
[37]
HS now used an app to remind her to take out the trash and perform other essential
chores. She was still working with her criminal justice social worker to identify what the
barriers were to her engaging with household necessities. If something felt like a burden she
would try to resist doing it. She was working towards identifying manageable tasks, rather
than struggling, for example, to clean all of the kitchen in a single session. If more supports
had been provided to her she might not have struggled as she had done. She recognised
that she was at least partly to blame in that she had not herself sought support when she
needed it.
[38]
She had attempted to obtain legal advice about her immigration status but had not
been able to "get clarity" about the issue. She understood that she would require to stay in
Scotland until she had completed her community payback order. The supervision
11
requirement would not expire for several more months. She said that she hoped, once she
had "more answers" about her immigration situation, to make long term plans.
[39]
HS gave evidence about an occasion in late June 2023 when she was on a bus with
Jonathan, Jonathan's paternal grandmother and LB. TP, DP and Simon were at a bus stop.
When TP and DP saw her, they "physically yanked" Simon off the bus. It was clear that the
conduct of TP upset and confused Simon.
[40]
She did not trust TP to facilitate contact as he had promised he would do so at the
final Children's Hearing in March 2023, but had not allowed any direct contact. If Simon
were to be returned to the United States she would wish to have indirect contact twice a
week for two hours. On one occasion Simon had asked for five minutes more and she heard
him being told, "No". Sometimes he would lose concentration over a two hour session. If
matters eventually had to be considered by a court in the United States, she would be in a
position to instruct legal representation. She now had the services of a legal aid attorney.
[41]
HS considered that Simon should continue to have contact with LB. She had known
him since he was an infant and was a constant in her life. She used to be a chef, and she and
Simon shared a passion for cooking. Simon's name for LB was "Momma".
Ms White
[42]
Ms White gave evidence that she had known HS for 13 years, and had fulfilled a
pastoral and supportive role towards. She had never met Simon, but had seen him in the
course of video calls. In her opinion Simon and Jonathan were as well cared for as possible
when they were in the United States. There was little by way of support available to single
mothers in Ohio and Kentucky. HS was motivated to go to Scotland in part in the hope of
finding a better place to live. Ms White had less contact with Simon by video when he was
12
in Scotland, as there was a significant time difference between Scotland and Colorado,
where she lives. She felt the children were happy and well cared for although she noticed
that Simon had lost weight. She thought DP played a more significant role in Simon's life
than TP did, and was concerned that TP would not promote HS's bond with Simon.
[43]
In cross-examination she said she was aware that HS had been convicted of wilful
neglect. HS had told Ms White her side of the story. HS had shared with Ms White that she
believed she had been wrongly accused and wrongly convicted. There was more to the
story, particularly regarding allegations made by neighbours. Ms White had seen some
video footage of what the neighbours were doing.
[44]
She accepted generally that her evidence as to HS's parenting was based on what she
knew of HS when HS was in the United States.
Mrs Black
[45]
Mrs Black fulfilled a parental role towards HS during her teen years, because HS's
mother had difficulty caring for her. It was not a formal fostering role. There was a period,
which included the first 18 months of Jonathan's life, when Mrs Black and HS were not in
touch, because HS believed that Mrs Black retained ties with HS's mother. When she saw
HS and the children, the children were well presented and well fed. She provided evidence
about medical care they had received in the United States. HS had intended to return to the
United States to seek a further visa, but had been prevented from doing so because of the
Covid pandemic.
[46]
She was aware of HS's conviction, but said she was not aware of the circumstances
reflected in the terms of the libel. She understood that the charge was serious, but believed
that with the proper support HS would be able to care for the children as well as she had
13
done in the United States. HS had intended to create a stable home in Scotland. Mrs Black
regarded what had happened in Scotland as a "blip". When it was put to her that Simon
had been deprived of adequate nutrition over a substantial proportion of his life, she said
that a lot of people had struggled during Covid. HS was unable to receive assistance
although she asked for it, because she was past her visa term. If she had been allowed to get
a job the difficulties would not have arisen.
Evidence for defender
TP
[47]
TP normally lives in Kentucky and is employed as an airport ramp assistant.
[48]
TP's evidence was that during the time Simon was in Scotland with HS, he
experienced difficulty in maintaining indirect contact with him because HS ignored his calls.
HS complained to him about Simon stealing food during the night, and sent messages to
him and to his mother on a similar theme. HS did maintain regular video contact between
Simon and DP, and sometimes TP would visit his mother in order to be included in the
contact. TP could see that Simon was becoming skinnier. In the two months before Simon
was taken into care video calls became less frequent. HS would not answer calls, and would
say that the phone was dead or that Simon was napping. TP became aware on 13 June 2022
through a third party that Simon was in care, and he contacted the local authority. He
attended all CORE group meetings and Children's Hearings for Simon remotely.
In February 2023 social workers advised him that they would be asking the Children's
Hearing to terminate the CSO so that Simon could live with him in the United States. TP
arrived in Scotland on 14 March 2023. The plan had been to travel to the United States on
25 March, but HS obtained an interdict which prohibited that.
14
[49]
TP had insurance through his employer to meet Simon's dental, health and optical
needs. His employer had kept his employment open for him, but he had been unable to
work since March 2023. He had contacted the elementary school that his other children
attend. The school would assess Simon to make sure he entered the correct grade for his
needs. TP's older children had met Simon before, and all of his children had interacted with
him, so far as they possibly could, in video calls. One of the children was close in age to
Simon. AP worked part-time on TP's days off. TP's wider family were available to provide
help when needed. One of the consequences of TP being away from the United States was
that AP had had to reduce her working hours, as TP was not there to share childcare
responsibilities with her.
[50]
Since TP arrived in Scotland he had taken part in various trips and activities with
Simon, and in activities involving Jonathan and his grandmother. Those had been funded
by TP's parents. He had maintained contact with Simon's foster carers. Simon and Jonathan
had continued to see each other regularly either in person or on video calls. TP and DP had
become close to Jonathan and his grandmother during their time in Scotland.
[51]
In relation to the incident on the bus that HS described in her evidence, he said that it
had taken place on 20 June 2023. He, DP and Simon had been waiting for a bus. They were
early for the bus ride. TP looked on the bus and saw Jonathan and LB. He did not see HS.
He said to DP, "Let's wait for the next bus". She asked why, and he replied, "They are on
the bus". TP, DP and Simon were not near the bus doors, and it was untrue that they had
yanked Simon off the bus. He blocked Simon's view and walked back to the bus shelter. TP
told Simon it was not the right bus, and that they would catch the number 7. Simon had no
clue that LB and Jonathan were there. He did not see a need for Simon and Jonathan to meet
15
at that point because they had a good deal of contact with each other. He was concerned
that there might be conflict.
[52]
TP gave evidence about recent indirect contact with HS. On 14 June contact had
been due to take place, but after waiting for half an hour did not want to wait longer. HS
said that there was a problem with the internet. The week before the proof there was no
contact. At around 4.55pm TP sent HS a messages saying that the phone was not working
for Simon. He received a reply from HS at 6.55pm saying that she had only just received his
message, and that there were again internet issues. She requested contact on a different day,
but the family already had arrangements to be out of town on the day she requested. The
phone Simon was using was one provided by social workers for the purposes of contact. On
one occasion when that phone was not working, TP had used his own phone for contact
which he was not "supposed to do". If HS had contacted him earlier than she did, he would
have again facilitated contact on his own phone. He thought that two hours twice a week
would be too much for Simon. He denied having scolded Simon in the course of a video call
for calling LB "Momma". He believed the child welfare reporter might have misunderstood
what Simon said to her about calling LB "Momma". He had told Simon that it was up to
him what he called LB. He said that he did not have any difficulty with the sexuality of HS
and LB, but was concerned about the way that they had treated Simon.
[53]
TP accepted that HS and Simon loved each other. He was concerned that HS lied to
Simon, because she used promises of being able to play with particular gaming devices
which she had at her home, if he were staying with her. He had heard her saying these
things during calls. He did not think it would be in Simon's interests for LB to have a right
to contact with Simon separately from HS. He would support indirect contact between
Simon and HS and LB together, but not separately. He could not see why LB would have
16
contact with Simon if she were to break up with HS. He felt that Simon needed to continue
to have a relationship with HS and LB, but until a lot of work had been done that should be
indirect contact only. Simon had never asked for more extensive indirect contact.
[54]
TP found that Simon had engaged well with the video contact with him that took
place when he was living with foster carers. He would do colouring in, sing, dance and be
involved in cooking and reading during the calls. Sometimes he would become distracted.
[55]
Simon was healthy and thriving. He loved his food, and would "ask about the next
night's dinner the night before". He had recently made a disclosure to TP. When they were
walking through the local park, Simon said he was worried he would get hurt if he rode his
scooter downhill. TP referred to him riding a bike and asked him if he had a bike. Simon
said he had had a bike, but that it broke. TP asked him what else he remembered. He said,
"I remember we had a bunch of flies." He said that his brother took care of him by getting
food from the garbage or from the neighbours. After that TP did not "get much more from
him".
[56]
TP confirmed that he had no right to remain in the United Kingdom and was visiting
on a tourist visa. He had no home, employment, or right to work in the United Kingdom
and all of his family were in the United States.
[57]
TP was asked about having given assurances to the Children's Hearing on 20 March
2023, and he said that he had done so, but denied having said he would facilitate direct
contact. He accepted that Mrs Green had offered to include Simon in direct supervised
contact. He had asked what would happen if HS tried to take Simon away from contact
with her, and Mrs Green had said she would not be able to prevent that. He was worried
HS would leave with Simon, and that it would be difficult to get him back. That would give
rise to unnecessary distractions and conflict which would not be in Simon's interests. That
17
discussion had taken place in March or April 2023. Although HS gave an undertaking to
this court on 4 May 2023 not to remove Simon from TP's care, he would not have been
prepared to accept and rely on it. The matter was not discussed again after 4 May.
[58]
He accepted that there were occasions when he did not respond immediately to
WhatsApp messages from HS, but said that he had responded to her messages. Most
messages were about video contact. If there was a request to pass on an item, Mrs Green
assisted with that.
[59]
TP did not accept as genuine HS's evidence of having recognised that she had been
at fault, and of an intention to change her behaviour in the future. If in the future Simon
expressed a wish to see more of his mother or live with her, he would be listened to and TP
would have a discussion with him.
[60]
Counsel for HS put to TP that separation from Jonathan would have an impact on
Simon and it was uncertain whether Jonathan would return to the United States. TP
responded that it was Jonathan's wish to live with his grandmother in the United States, not
far from TP's home. It was suggested to TP that he and AP would have difficulty caring for
Simon in the context of their working lives, when contrasted with the situation in which TP
and DP were with Simon all the time in Scotland. He responded that Simon would be in the
same situation as his other children.
[61]
At the point of taking Simon out of school, TP expected to be returning imminently
to the United States. TP had agreed with social workers that Simon should not return to
school in Scotland after having left. That had also been the advice of Simon's teacher,
although there had been a discussion about his being re-enrolled. There were concerns that
returning to school in all the circumstances would be confusing for him, and TP and DP
decided to home school him.
18
[62]
When Simon was living with HS and LB, it was DP who exercised the most
consistent video contact with him. TP explained that that was because HS would deny him
video contact for protracted periods if he made any request for Simon to return to the
United States. That was why he had had to resort to joining in his mother's video contact in
order to see Simon.
DP
[63]
DP is Simon's grandmother. During times that Simon lived with TP in the United
States, she supported TP and his family as much as possible. She saw Simon frequently in
person in the United States. When he came to Scotland she maintained contact with weekly
video calls. Quite often HS cancelled or rearranged them, but DP was always available for
him on a Monday. She and her husband built their schedule around the calls and
anticipated them eagerly. TP's calls with Simon were often denied, and he would come to
DP's house to participate in contact. Simon's great grandparents were also involved in the
calls. DP and TP became concerned about Simon's appearance as he was unkempt, skinny
and pale. HS said that Simon was stealing food, and asked DP to talk to him about it. She
did so, and he did not have much to say. In retrospect, having learned that Simon was kept
short of food, she felt sick and regretful that she had spoken to him about the matter.
[64]
Her evidence was that TP and AP made their working arrangements with the
children in mind so that one was at home while the other was at work. AP's grandmother
helped out, and so did DP and her husband when asked to do so. There was a large
extended family living locally. She was committed to ensuring that Simon had contact with
his mother. She regarded HS as manipulative because she sent him gifts. She regarded that
as an attempt to buy his loyalty or affection. HS had told Simon that his father did not love
19
him, which was not true. She thought HS told Simon she had an Xbox at her home with a
view to encouraging him to come to her home.
[65]
She gave evidence about a number of occasions on which Jonathan and Simon had
contact between April and July 2023, some by video, and others in person along with
different combinations of those caring for them, including former foster carers and
Jonathan's grandmother.
[66]
DP remembered the incident on 29 June. TP said, "Don't get on this bus". She
replied, "Don't get on this bus?" He had confirmed what he said, and she took his word for
it, went back over to the bus stop and sat down. Simon was with her. TP said to her that he
had seen "them" on the bus. DP told Simon that they were going to catch the next bus, and
he said, "Okay" and went and sat down.
[67]
Simon had not spoken to DP about his experience of living with HS and LB. DP
denied telling Simon off for calling LB, "Momma".
Mrs Green
[68]
Mrs Green is the allocated social worker for Simon and Jonathan. She personally
received a call made on 7 June 2022 from a neighbour of HS and LB reporting concerns that
the children were neglected. The report was that Jonathan had climbed out of a bedroom
window and had been in her garden. He told her that he and his brother were hungry and
they had not had dinner the previous night or breakfast that morning. She had given him
food. This was not the first time that people in the community nearby had given the
children food. The children were never seen out of the house, and the caller could hear
females shouting at the children.
20
[69]
That was not the first time the social work department had received reports of
concern about the household. Two other social workers attended the house, and Mrs Green
later attended with one of them. The home was in a poor condition, and smelled of urine
and faeces. There were animal faeces on the floor. There were takeaway boxes around the
property. The state of the property was such that it must have been in a poor and
unhygienic condition for a significant period of time. A Child Protection Order was sought
and granted.
[70]
Mrs Green had discovered from mental health professionals that LB might be
impulsive and angry, and that LB had expressed a concern that that might lead to harm to
the children. Police reported a previous conviction of LB for robbery and battery of an 11
year old child in 2014. LB told Mrs Green she had not assaulted a child, but admitted that
she had stolen a bike.
[71]
Mrs Green prepared Simon's assessment and plan in March 2023 for an early review
of the CSO relating to him. That assessment recorded that Simon had struggled to express
his needs, wants and feelings. Mrs Green said that although that had improved in some
respects, he continued to close down when asked about his life before he came into care.
She would not persist in asking questions. She thought that Simon was eager to please and
might try to give answers he thought the questioner wanted if the questioner persisted.
[72]
Simon and Jonathan had supervised contact with HS and LB in social work premises
between June 2022 and 2023, with some contact involving trips out of the building to a park,
or more extended trips.
[73]
Mrs Green prepared two assessments of parenting in respect of HS and LB, in March
and June 2023. When Simon first came into care, social workers attempted unsuccessfully to
engage with them to carry out such an assessment. In 2023, after finding out that the social
21
work department were recommending that Simon live with his father, HS and LB said they
wanted to engage, so social workers restarted the process. The preparation of the March
report involved three meetings. Mrs Green had attempted to carry out a home visit on
16 March. She attended HS and LB's home and knocked on the door. No-one answered.
She left a note asking for contact. There was no response to that note.
[74]
For rehabilitation to be considered it was important to consider how committed or
resistant HS and LB had been. They had demonstrated dissent or avoidance behaviours,
and had passively disengaged from the process. It was fundamentally important for parents
to engage in the process to see whether it would be possible to establish change. HS
maintained that she had been "caught on a bad day" and that home conditions were not
normally as they appeared to be on 7 June 2022. Mrs Green's recommendation in the March
report, prepared for the Children's Hearing, was that Simon should not return to the care of
HS and LB as they had not demonstrated a capacity to change, and that he should live with
his paternal family in the United States. She considered that contact with HS and LB would
expose Simon to risk of emotional harm, and her recommendation was that any contact
should be supervised.
[75]
Jonathan remained subject to a CSO, and had direct supervised contact with HS and
LB supervised by social workers. He was living with his grandmother.
[76]
Mrs Green had never suggested to HS that the process of assessment would involve
twelve appointments. Her updated report of 30 June 2023 indicated that she had offered
eight appointments of which six had been attended. Following the failed home visit on
16 March she had been advised by HS that her legal team had told her she could not meet
with Mrs Green unless her advocate was present.
22
[77]
When asked to reflect on their care of the children, HS and LB cited lack of funds and
neighbour disputes as the causes of the difficulty. Feedback from criminal justice services
was to the effect that HS was unable to reflect on her parenting struggles or deflected from
those struggles during discussion during her supervision sessions. She appeared to be
unable to accept or acknowledge the fact she neglected her children and take responsibility
for that. Mrs Green had consulted criminal justice social work records when preparing her
report. She had learned that in recent months HS's engagement with criminal justice social
work had improved and she was attending her work and supervision sessions. The most
recent risk assessment assessed HS as being at low risk of reoffending as the children were
not in her care. The risk could increase if they returned to her care.
[78]
Mrs Green and HS's criminal justice social worker had proposed that they have
discussions with HS together, but HS told the criminal justice social worker that she had to
seek advice as to whether she could do that without her advocate present. HS had
previously agreed to a meeting with both Mrs Green and the criminal justice social worker.
HS had a right to have an advocate present if she wished.
[79]
During the family time Mrs Green had observed, it was difficult for the children to
relax, although that had improved over time. HS and LB closed the children down if they
tried to talk about the past. The children needed to be heard and validated, and to
understand their feelings were validated by those important to them. Between June
and December 2022 the take up of family time sessions by HS and LB was only fifty per cent
of those offered. She had no concerns about LB's interactions with Simon during contact.
Simon appeared happy to attend and leave contact sessions. There was a bond between him
and LB. HS's interactions with Simon in family time contact sessions were less natural than
those of LB. HS spent the majority of the time standing up and looking over the children
23
and was less inclined to interact with them physically than LB was. She was "sergeant
major-like" and tried to manage activities rather than engaging in them. Mrs Green
accepted that the supervision of contact had the potential to put parents on edge, and make
the atmosphere less relaxed.
[80]
At the point that Simon's CSO came to end, Mrs Green made it clear to HS and to TP
that she was happy for Simon to continue attending supervised direct contact with HS and
LB along with Jonathan.
[81]
Mrs Green continued to engage with Simon on the basis of her responsibilities under
section 22 of the Children (Scotland) Act 1995. She had been in contact with TP since about
July 2022, initially with a view to finding out more about Simon's wider family. In all cases
she would look to see whether a child could be placed with another parent or a family
member. She did not carry out a parenting assessment of TP. She would not routinely carry
out such an assessment unless there were information to suggest a problem with parenting
capacity.
[82]
At an early stage in the process HS had said she had difficulty understanding the
language used by social workers. Mrs Green tried to meet HS and LB to help them
understand, but it proved impossible to meet with them except in structured meetings and
at family time. Mrs Green accepted that it was helpful for advocacy services to be involved,
and reasonable in general for HS to insist on an advocate being present. She did not,
however, understand what language or jargon would be a barrier to a home visit to look at
the condition of the property.
[83]
Mrs Green continued to visit Simon once a week. If he had something he wanted
passed to his mother, she would pass it on for him, and vice versa. He had never said to her
that he wanted to see his mother. If he were to say that, she would say to him that she heard
24
him, but that she was not in a position to say that could definitely happen. If a CSO were in
place with a requirement for contact, she would have a legal responsibility to ensure that it
happened. When she saw TP discussions were about what had been happening in Simon's
life. Simon had not returned to school, because he had his "ending" so far as school was
concerned, with the plan at that time being for immediate return to the United States. He
had been home-schooled.
[84]
Mrs Green had not heard, before the suggestion was put to her in her evidence, that
HS had made inquiries about parenting classes. She would regard that as a positive move.
[85]
In re-examination Mrs Green explained that when she offered to include Simon in
supervised contact, TP asked what would happen if HS tried to remove him. She explained
to him that she would be unable to prevent HS from doing that as there was no order
preventing her from doing so.
Dr Gray
[86]
Dr Gray has been a consultant paediatrician since November 2018. There is no
dispute that she is properly qualified to give evidence of opinion concerning the matters
about which she gave evidence. Her evidence was not challenged in any respect by either
the pursuer or the minuter in cross-examination.
[87]
She examined Simon on 8 June 2022. Some elements of the history available to her
came from a child protection adviser, and others from one of the social workers who had
attended the family home. She had access to records uploaded by a school nurse who
visited Simon at home in August 2020. According to the information uploaded by the
school nurse, HS told her that Simon was at that time registered with a specified local
medical practice and that he attended for asthma review there.
25
[88]
The history obtained from the child protection adviser included an account that
neighbours had reported that Simon and Jonathan were hungry and unkempt and had gone
to the house of the neighbours looking for food. It also included an account that the children
had said they were locked in cupboards and starved.
[89]
Dr Gray obtained the following history directly from the foster carer with whom
Simon had been placed the preceding day. Simon was obsessed with the fridge and very
keen to look at the food in it. Simon had had a bath on the morning of the examination and
the foster carer reported that the water had been brown after the bath. The carer reported
that the clothing provided for the children was dirty and fitted poorly.
[90]
Dr Gray spoke to HS on 12 June 2022. HS provided medical information on an
electronic disk. That included information that Simon attended a clinic review at Pensacola
Paediatrics in Milton, Florida, in September 2019. The record disclosed that he had been
seen the previous week with an exacerbation of asthma and was given five days of oral
steroids and an albuterol inhaler with good effect. He was using a preventer "controlled"
inhaler once daily and an albuterol inhaler at night if symptomatic.
[91]
Matters that concerned Dr Gray were that Simon had no NHS records. Social
workers had recovered only one inhaler (the one for relief, rather than the one with a
preventative function). Its expiry date was in 2019. She was provided with a mask intended
for a child to use with an inhaler but it was dirty and broken. It was essential that such
masks were washed and dried so they were ready for use. Use of a dirty device risked
inhalation of matter that could cause respiratory irritation. Out of date medication carried
with it a risk that it would be less effective than it should be. Social workers provided her
with a bottle of polyethylene glycol which had an expiry date of December 2019, and an
account that HS said she gave the children the substance daily as a laxative. HS was
26
reported to have said that she did so in the face of advice from her mother that it was
harmful as it contained antifreeze.
[92]
Simon was mildly dehydrated and was anaemic. Those findings were consistent
with his not having free access to food and drink and a restricted diet. He had no bruising
on his lower legs. She would normally expect to see some bruising on a child consistent
with play. The absence of bruising was consistent with his having been confined and not
allowed out.
[93]
The various weights and measurements for Simon that Dr Gray had access to and
which she regarded as significant were these.
Date
Height
Weight
27 September 2019
97.8cm (29th centile)
17.69kg (83rd centile)
August 2020
98.4cm (2
nd
centile)
15.6kg (14th centile)
8 June 2022
104.7cm (0.4th centile)
17.9kg (6th centile)
27 July 2022
106.8cm
20.4kg
[94]
HS explained the small stature of both children to Dr Gray by reference to the short
stature of their respective fathers. She said that one father was smaller than she was, and the
other a little taller. HS was herself on the 25th centile of height for women. She gave
Dr Gray an account that Simon and Jonathan were always hungry and asking for food. She
wanted to know why, as she felt she fed them lots of food. As a result of the history
provided by HS, Dr Gray ordered X-rays of the children's hands to determine whether the
27
children had a delayed bone age. The results of the X-rays indicated that the history given
by HS was not accurate.
[95]
Dr Gray's opinion was Simon's pattern of weight gain and growth
between September 2019 and June 2022 was not normal. The pattern of relatively rapid
growth and weight gain in the seven weeks after Simon was placed in foster care where he
had an adequate calorie intake demonstrated that there was no medical reason for the
pattern of poor growth and weight gain in the period 27 September 2019 to 8 June 2022. The
pattern was suggestive of a prolonged period of inadequate nutrition and was consistent
with nutritional neglect. She considered that Simon had experienced medical, educational,
dental, physical and nutritional neglect as defined by the Royal College of Paediatrics and
Child Health Child Protection Companion Chapter 11. A prolonged period of inadequate
nutrition could have enduring adverse effects, including effects on brain development,
learning potential, mental health, abilities to focus and concentrate. Deprivation of adequate
nutrition was also a form of emotional abuse, which could have psychological consequences
in the future. Simon's growth had made some recovery with adequate nutrition, which was
encouraging, but he had been subject to a prolonged period when his growth had been
significantly affected.
Mr Brown
[96]
Mr Brown and his partner were the foster carers with whom both Simon and
Jonathan lived between 7 June 2022 and 20 March 2023. Mr Brown was shocked by the
boys' appearance when he first met them on 7 June. Both appeared much younger than
their chronological ages. They both smelled very unpleasant. It took several baths over
several days to get the smell out of their hair, and it took several washes to remove the
28
odour from their clothing. They did not have many clothes with them and the ones they
had were ragged and did not fit well. Mr Brown attended medical examinations with both
boys. He was told they were anaemic, and initially he and his partner gave them iron
supplements. The issue sorted itself out once they started to get three meals a day with
plenty of fruit and vegetables.
[97]
Nurses came in every two weeks to monitor the height and weight of the children,
initially at home, and then later at school. One of the things Mr Brown and his partner
noticed about both children was their obsession with food. They wanted to look in all the
cupboards and the fridge, and would sneak food upstairs. He had to explain to them that
they could have food if they were hungry and they could ask for it whenever they needed it.
The boys seemed unfamiliar with their neighbourhood, and in particular with K Park, a
popular local park. They were unfamiliar with road safety, and Simon appeared not to have
experience of travelling by car.
[98]
Simon presented as an outgoing and playful child. He was, however, guarded about
his experiences before coming into care.
[99]
When Simon attended school for the first time in autumn 2022 he was years behind,
but did not need assisted learning, as his class teacher was able to work with him in the
mainstream class. He settled into school very quickly and enjoyed it. Mr Brown was never
present at direct contact between Simon and HS and LB. A lot of the planned contact did
not take place. By November 2022 HS's attendance at it was about fifty per cent. Simon was
disappointed when contact did not take place. He enjoyed the contact that did take place.
[100]
At first Simon was shy when contact with his father was introduced by FaceTime,
but took to it and enjoyed spending time with his American family. At first Simon thought
his dad did not like him. Mr Brown told him that was not true, and once Simon and TP
29
started talking, they got on like a house on fire. After TP arrived in Scotland, Mr Brown and
his partner worked with TP and the social work department to plan for TP to take over
Simon's care.
[101]
Simon's school held a party for the event of his leaving to return to the United States.
When HS started proceedings, and Simon was not allowed to return to the United States,
Mr Brown explained to him that the paperwork for the plane was not ready yet. Things had
got even better for Simon since his father arrived in Scotland. Simon was happy and clearly
loved is father and grandmother. He still saw Simon frequently.
[102]
The only matter about which Mr Brown was asked in cross-examination was this.
He was in touch directly with HS over the Christmas period in 2022. Special consent had
been given for the boys to use the phone that the social work department had provided for
contact so they could speak to HS to exchange Christmas greetings. HS asked him if she
could provide her contact details so that Mr Brown could communicate directly with her in
case anything arose regarding the boys. He was willing to do that, but Pamela Green said
that that would not be allowed.
Evidence for minuter
LB
[103]
LB's evidence was that Simon looked on her as a mother figure and that they had an
excellent relationship. During the pandemic she and HS got free school meals for the
children. They did lots of things together, including playing video games, cooking and arts
and crafts. She supported HS financially and made sure that everyone was fed.
[104]
She believed that social workers had wanted to reduce her contact with Simon. After
the CSO terminated, it had taken some time to get video contact up and running. Pamela
30
Green offered to take the phone that the foster carers had had for contact with HS to TP. LB
was concerned that without an order, TP would not permit her to have video contact. In the
event that Simon remained in Scotland, she wanted to have direct contact with him, and in
the event that he returned to the United States, she wanted to have indirect contact with
him. She did not remember any particular form of contact being mentioned at the
Children's Hearing on 20 March 2023, but in her own mind thought that there would be
both direct and indirect contact. LB and HS had sent planned activities for video contact,
but had been told that they were too messy. Sometimes Simon was allowed to be active
during calls and throw paper planes around. Generally LB anticipated sharing contact
sessions with HS, although there was one imminent contact session she would miss because
of a need to visit a sick relative.
[105]
HS and Simon had a close mother and son relationship and enjoyed a range of
activities together. It was hard for LB to see how upset HS was about being parted from her
children.
[106]
LB did not accept that that she had ever reported a concern that she might harm the
children or be angry with them, although she had shared that she had not been coping well
as a result of her past. She had shouted at the children but would always have had a good
reason for doing so. She denied having a conviction, although she had been with someone
who had stolen a bike from a child when she was about 21 years old, in England.
[107]
She and HS had taken the children to D Park, but not to K Park, in the local area. She
had cooked for Simon as much as she could. Both Simon and Jonathan had always been
small. She would not really have noticed if Simon remained the same weight because he
always looked the same. She had been concerned that he was not growing and that was
why she tried to get him to a doctor, and why he was seen by a nurse in 2020. She and HS
31
had fed Simon as much as they could afford to. She accepted she had failed Simon
seriously. The takeaway boxes that social workers observed were from meals the whole
family had enjoyed. LB's parents would send money and when they did LB and HS treated
the boys to takeaways.
[108]
LB accepted responsibility for the matters narrated in the grounds of referral except
for the allegation that there was a lock on the boys' bedroom door.
Submissions
Pursuer
[109]
Counsel did not move that I should grant the conclusion for residence with HS. That
would be premature and entirely without merit. Counsel asked me to grant an order for
direct contact with HS at such times as was in Simon's best interests.
[110]
I should refuse TP's conclusions for residence and for a specific issue order. The
result of that would more than likely be that the Reporter would again become involved in
Simon's life and he would be subject to a CSO. That would be in Simon's best interests. HS
had been candid and admitted her mistakes. She was taking steps to improve her parenting
and was co-operating with the criminal justice social work system. The behaviour that led
to the removal of her children was an anomaly at a time when she was overwhelmed.
Malnourishment was inextricably linked to poverty. Social services had not made
appropriate adjustments to allow for her lack of understanding of the process and what was
expected of her. Mrs Green had disregarded the need for the attendance of an advocacy
worker.
[111]
As soon as it became apparent that TP was interested in assuming care of the child,
all services and resources shifted away from HS, along with any prospect that the child
32
would be rehabilitated to her. It would be premature to discount any prospect of
rehabilitation.
[112]
A CSO would enable social workers to make decisions in respect of Simon, which
they could not presently do. If the CSO had been in place, that could have secured that
direct contact with HS continue. Counsel acknowledged that her motions if granted would
not offer any certainty for Simon, but would instead allow additional time for rehabilitation
to be attempted. There was nothing to suggest that Simon would not return to the primary
school he had been attending or that he would not be accommodated with his previous
foster carer, although neither matter was certain. There was no certainty that Jonathan
would return to the United States.
[113]
Simon's life in the United States, where AP would be the principal carer, would not
be similar to the life he had had for the past four months in Scotland with TP and DP
devoting all of their attention to him.
[114]
An order for contact should be made. There had been no meaningful direct contact
since the CSO ended. HS had experienced difficulty in communicating with TP about
contact. DP's allegations about manipulation were without substance.
Defender
[115]
Counsel moved me to grant the residence order and specific order that TP sought. I
should regard TP and DP as committed and loving so far as Simon was concerned. Neither
HS nor LB provided credible or reliable evidence. HS did not genuinely accept
responsibility for her neglect of Simon, and she routinely attributed responsibility to others
for failings that were her own. HS's criticisms of TP related to minor issues and were
misplaced in the context of her own culpability. It would not be in Simon's interests to
33
remain in Scotland within the Children's Hearing system. He would have a stable home
and loving family in the United States. The only parent who could offer safe and stable care
for Simon resided in the United States and the orders sought were therefore necessary.
There was no need to regulate indirect contact as it was not disputed. I should make no
order in favour of LB. I should give limited weight to the child's views, given his age and
his experience of neglect.
Minuter
[116]
Counsel submitted that the evidence, including Mrs Green's observations of contact,
demonstrated that there was a significant bond between Simon and LB. LB had been a
constant in Simon's life for a significant period. It was necessary to make an order because
TP had not in fact consistently supported contact, and there were grounds for concern as to
his attitude towards LB. There was an issue as to whether TP had told Simon not to call LB
"Momma".
Decision
Credibility and reliability
[117]
In respect of HS, there are significant aspects of her evidence which I regard as
lacking in credibility and reliability, for the reasons given below. Ms White and Mrs Black
were doing their best to assist the court, although their views of HS were obviously coloured
by their relationship with and affection for her. They were hampered in providing reliable
and relevant (in the sense of being up-to-date) evidence about HS's qualities as a parent by
their lack of recent direct contact with her and her children. Mrs Black seemed unwilling to
34
accept that HS might bear responsibility for the situation the children found themselves in in
Scotland.
[118]
I regard the evidence of TP as generally credible and reliable, save in relation to the
matter detailed at paragraph 143. I regard the evidence of DP as credible and reliable. It
was plain from her words and manner in evidence that she dislikes and distrusts HS, but I
accept that, despite that, she regards contact between HS and Simon as necessary for Simon
and supports it. I accepted the evidence of Mrs Green, Dr Gray and Mr Brown as credible
and reliable.
[119]
LB did not appear to be attempting deliberately to mislead the court. She appeared
to believe that what she was saying was true. She accepted that she was unreliable on
matters such as dates. There are parts of her evidence which are obviously incorrect. She
did not, for example, "keep everyone fed". My impression was that she minimised the very
significant neglect Simon experienced, and dwelled on the positive aspects of her
relationship with him. I noted that the allegation in the pleadings about events during a call
on 21 June 2023 were not repeated in her affidavit. In the absence of an extract conviction
I reached no conclusion in relation to the disputed allegation that she had a conviction for an
offence of violence against a child.
The law
[120]
There was no dispute as to the relevant law, which is to be found in section 11 of the
Children (Scotland) Act 1995. The court must regard the welfare of the child as the
paramount consideration and must not make any order unless it considers that it would be
better for the child that the order be made than that no order should be made: section 11(7).
The court must have regard to a range of factors which may arise in situations in which
35
there is abuse or a risk of abuse to the child or another person: section 11(7A-E). Decisions
relating to relocation are "presumption free": see eg Donaldson v Donaldson 2014 Fam LR 126,
paragraph 27. Each case turns on its own individual facts. Like all section 11 decisions they
require an evaluation of all aspects of a child's welfare.
Residence and the specific issue order
[121]
In the event that I do not grant the orders that TP seeks, he will have to return to the
United States without Simon. He cannot stay in Scotland to look after him indefinitely. He
has a job, a wife and children in the United States from which and whom he has already
been parted for a significant period. He has no right to be in the United Kingdom other than
on a tourist visa.
[122]
When Simon was in HS's care she neglected him. He was unkempt and dirty, and he
was deprived of adequate nutrition over a prolonged period. He was not registered with a
doctor or dentist. He did not attend school. There is no suggestion, even from HS, that she
could look after him just now. She accepted that she would require to do a great deal of
work before that could happen.
[123]
It would not be in Simon's best interests to remain in Scotland to await the possibility
that he might be rehabilitated to his mother's care. It was accepted on all sides that if that
were to happen he could not remain in his father's care, that arrangements for his care
would have to be regulated by orders under the Children's Hearing Scotland Act 2011, and
that he would be placed in foster care. HS currently has no right to remain in the United
Kingdom. I accept that she must have found herself in a very difficult position with the
onset of pandemic restrictions around the time she planned to return to the United States to
seek a further visa. She has, however, not yet obtained legal advice about the matter,
36
although she has now been in the United Kingdom without leave for more than 3 years. She
has no income and relies on funds that her family send her from the United States.
[124]
If Simon remained in Scotland he would be placed indefinitely in a position of
uncertainty and instability. Neither of his natural parents has any right to remain in
Scotland. He would be placed in foster care again, involving an immediate change in his
carer from his father and grandmother to someone else. There is no evidence that he would
be placed again with Mr Brown. He would be subject to Children's Hearings. I do not
know where he would be placed, or where he would go to school. There is no evidence that
he would even return to the primary school he previously attended. He would face
upheaval in the short term, with nothing at all to give grounds for confidence that it would
be of benefit to him in the longer term.
[125]
I cannot make any finding as to when HS might become capable of caring for Simon
herself. Such insight as she has comes late in the day, and is at best limited, taking her
evidence at its highest. Her view that Simon would be better served by that course is itself
indicative of the very significant limitations on her insight and her capacity to consider
Simon's interests as interests that might differ from her own personal interests.
[126]
I am not in in any event persuaded that I should accept HS's evidence as to the extent
of her insight and intention to change. The evidence of Ms White is of some significance.
HS has tried to present herself to the court as someone who has gained an understanding as
to why she was unable to take adequate care of Simon. She pleaded guilty to the charge of
wilful neglect. It is clear, however, that in communications with someone in her life who is
not a professional involved in court or social work processes she maintains that she has been
wrongly accused and wrongly convicted. Looking at the evidence of Ms White in the
context of other features of the evidence, including the evidence of HS herself, I have formed
37
the view that HS is keen to say what she thinks professionals involved in her case want to
hear, and which she thinks are likely to serve her own interests, when in fact she continues
to regard herself as wrongly accused and wrongly convicted of neglecting Simon and
Jonathan. I accept the evidence that HS attended only about half the available family time
contact sessions in the period to December 2022 and that she became interested in engaging
with social workers only when she learned that they were recommending that Simon should
live with TP.
[127]
The following are some examples of matters in respect of which HS did not accept
responsibility, in respect of which she accepted responsibility only to a limited extent,
and/or in respect of which she did not give truthful evidence. They inform my conclusion
that I cannot rely on HS's evidence as to the extent of her understanding of her own
responsibility for the situation in which Simon found himself when in her care and as to her
intention to modify her behaviour so as to avoid a similar situation in the future
(a)
She allocated responsibility for her breaching her community payback order
to the solicitor who represented her in the criminal proceedings. She said he was not
the best at explaining matters to her.
(b)
The trainee criminal justice social worker who had initially supervised her
community payback order was not easy to talk to when compared to the social
worker who engaged with her directly from March 2023.
(c)
She insisted that she had told Dr Gray only that Jonathan's father was of short
stature, not Simon's father. I accept Dr Gray's account. She presented as a careful
witness who for obvious reasons was interested in all matters that might have a
bearing on Simon's growth pattern. I do not believe HS's evidence regarding her
account to Dr Gray.
38
(d)
She insisted that it was only in respect of the day Simon was taken into care
that he presented as unkempt. She insisted that he had inadequate clothes when he
was taken into care only because she was asked to pack a limited quantity of
clothing, and she had not selected the items which fitted him better. I regard that as
evidence as lacking in credibility for the following reasons.
(i)
LB accepted in her evidence that Simon and Jonathan were not
properly bathed and kept clean. She accepted that the children did not have
adequate clothes;
(ii)
I accepted Mr Brown's evidence that a number of baths and washes
were needed in order to remove an unpleasant odour from Simon's hair and
clothing. That account is indicative of a problem, so far as hygiene is
concerned, of an enduring nature.
(e)
I did not accept her account that Mrs Green failed to attend for a home visit
on 16 March, when HS and LB were waiting at home. I accepted Mrs Green's
evidence about what she did on 16 March. I noted that there was no account from
LB of this incident.
[128]
I note generally a pattern of attributing responsibility either expressly or by
implication for her failure to make progress, or delay to make progress, to other people.
[129]
It would be in Simon's best interests for him to live with his father in the United
States. He has been in the care of his father since March 2023, and has, albeit for limited
periods, lived with him in the more distant past. Mrs Green has been in contact with Simon,
TP and DP weekly, and has no concerns in relation to the care that Simon has been
receiving. Mr Brown's evidence was that Simon was thriving in the care of TP and DP. I
39
accept the evidence of TP and DP as to the supportive family situation in which Simon will
be living when he returns to the United States.
[130]
HS sought to cast doubt on TP's ability to care for Simon in the United States because
he would be working full-time and AP working part-time, and she sought to cast doubt on
the extent to which AP supported Simon's joining the family. There is no evidence to
suggest that there is any substance to those concerns. TP and AP already care for four
children in the context of their working lives. Very many families with children have similar
patterns of employment. I did not hear any evidence from AP. I infer, however, in the
context of TP's evidence about the consequences of his absence from home while caring for
Simon in Scotland for much longer than he had expected, that AP has already provided very
significant practical support for Simon's place in the family, and for TP's role as his father.
[131]
TP has demonstrated his commitment to Simon. I accept that he attempted to
maintain contact with Simon when Simon came to Scotland, and that HS did not always
facilitate that. TP has attended (initially remotely) every significant meeting relating to
Simon since Simon was taken into care. He has remained in Scotland with him for a
protracted period and borne consequences so far as his ability to work and pursue other
aspects of his family life are concerned. TP has a stable family life in the United States. He
will be returning to his usual residence and his usual work there. Simon will benefit from
living in that stable situation with one of his natural parents and his paternal half siblings.
[132]
HS made a number of other criticisms of TP, which I also reject.
[133]
I am not critical of TP's decision to remove Simon from school in Scotland, or that he
should not return to school in Scotland. He took that decision after consulting with social
workers, and on the basis that, having said a formal goodbye to his classmates with a
leaving party held in his honour, a return to school would be confusing. It may be that,
40
given the time that has actually passed, it would have been better for Simon to be in school,
but the decisions taken were, I accept, taken in good faith and with a view to serving
Simon's interests, and not for any other reason.
[134]
The prospect of removing Simon from direct contact with Jonathan for the immediate
future is not a welcome one. I am not fully informed as to Jonathan's circumstances in this
action. Where he will live in the future is a matter of uncertainty. He remains subject to a
CSO, and is in the care of his paternal grandmother in Scotland for the time being. Her
normal place of residence is in the United States, about half an hour's travel from where TP
lives with his family. If Simon were to remain in Scotland he would be able to maintain
direct contact with Jonathan in the short term, but I cannot find that he would be more likely
than not to be able to do so in the longer term, given the uncertainty as to Jonathan's future.
I am confident that TP will promote and maintain Simon's relationship with Jonathan. It
was clear from the evidence that TP and DP had formed a good relationship with Jonathan
and his grandmother.
[135]
So far as the incident on 29 June is concerned, there are accounts from TP and DP on
the one hand, and HS on the other. HS thought that Simon realised she was present on the
bus, and was confused and upset to be pulled away from the bus. TP and DP maintain that
he did not know why a decision was taken at a late stage not to board the particular bus, but
accepted the adults' saying that they were not getting on the bus. I accept TP and DP's
accounts both of what happened and of Simon's understanding of the situation. They were
interacting directly with him at the time, whereas HS was inside the bus and forming a view
on the basis of no direct interaction with Simon. I also reject HS's account that Simon was
"yanked ... off the bus". I formed the view that HS's account was exaggerated and self-
serving. Counsel for HS suggested that I should take a negative view of the decision by TP
41
not to board the bus. She suggested that I should regard it as indicative of a poor attitude
generally towards contact between not just Simon and HS, but between Simon and Jonathan.
TP's evidence was that he was afraid that there might be some unpleasant or upsetting
interaction on the bus. I regard the decision not to board the bus as a decision taken very
quickly, and necessarily so. There was very little time to take a reasoned decision about
what to do. The decision was essentially a split second decision, and I am not critical of TP
for making it. The incident was a trivial one, and HS placed a disproportionate emphasis
on its significance in her case.
[136]
I am satisfied that it is in Simon's best interests that he should reside with his father
and that his father should be permitted to remove him to the United States for that purpose.
It is better for Simon that I make the residence order and specific issue order that TP seeks
than that I should make no order.
Contact
[137]
The pursuer's evidence is that she cannot currently leave Scotland. In the short term
she says she needs to remain here to complete her community payback order. As a result of
her immigration status, and the fact that she has no right to be in the United Kingdom, if she
were to leave it, she would be likely to encounter significant difficulties if she were to try to
return to it. Her long-term aim is to marry LB and stay with her in the United Kingdom.
She cannot leave the United Kingdom with any expectation of being allowed to return to it
unless and until she regularises her immigration status. There is no evidence to support the
proposition that direct contact could occur in the short to medium term in the United States,
and no evidence as to how it could operate in Scotland in the short to medium term. I am
42
not satisfied on the evidence that it would be in Simon's best interests that I should make
any order for direct contact during holiday periods.
[138]
TP does not dispute that Simon should have indirect contact with HS and LB. He
says an order is unnecessary because he would facilitate such contact without an order. He
does not consider that it would be in Simon's best interest for there to be an order allowing
LB contact.
[139]
I consider that it would be in the best interests of Simon to have indirect contact with
both HS and LB. TP and DP have expressed concerns about some things that HS has said
during contact. These are that she has attempted to suggest to Simon that he would be able
to play with desirable toys if he were at her home. I accept their evidence and the
construction they put on her remarks. Despite those concerns there is no real dispute that
Simon should have indirect contact with HS and LB.
[140]
I have concluded that it is better to regulate contact by an order than not to do so.
Contact to date has not proceeded without incident or dispute. It is better for Simon's
interest that arrangements for contact are set out in an order in relation to which all parties
can regulate their conduct. That should minimise the potential for any dispute in the future.
Indirect contact by video call should take place twice a week for no less than one hour at
each session, and to extend to no more than 90 minutes in the event that Simon expresses a
wish for the session to extend beyond one hour. I consider that contact more frequently
than once per week would be desirable, and that it would be better for Simon to have a
shorter session than one of two hours, because he sometimes finds it hard to remain fully
engaged for that whole period. My expectation is that contact will be with both HS and LB,
but the order will permit one to attend without the other in the event that both are not
available for the programmed session.
43
[141]
Much of what HS asserted as a basis to mistrust TP so far as contact is concerned is
without merit. There is no positive evidence that TP undertook to maintain direct contact
between HS and LB and Simon at the Children's Hearing on 20 March 2023. It would have
been surprising if he had done so. I accept that TP approached the issue of contact in the
first instance on the basis of his understanding that, after the CSO came to an end, there was
nothing stopping him from taking Simon to the United States. I accept that he undertook to
maintain contact between Simon and LB and HS, but that when he did so he was doing so
on the assumption that only indirect contact would arise at least in the short term.
[142]
TP has taken a cautious approach to contact between HS and Simon. He did not
accept Mrs Green's offer that Simon could come to the ongoing supervised contact involving
Jonathan, HS and LB. His explanation was that he was concerned because Mrs Green had
no power to stop HS from taking Simon home with her if she wished. There is no evidence
that the matter was revisited after 4 May when HS provided an undertaking. Although TP's
approach was perhaps overly cautious, I bear in mind that HS has a recent conviction for
breaching a court order.
[143]
What is of more concern to me is the information in the report from the child welfare
reporter that Simon's understanding was that TP did not wish Simon to call LB "momma",
because she was not his mother. I accept TP's and DP's evidence that they have never
scolded Simon for calling LB "Momma" during a call with LB. I have no reason to think that
the child welfare reporter misunderstood Simon. She recorded that "dad said not to"
regarding his calling LB "Momma", but also that his father said "she's not your mom", so he
did not call LB that any more. It is clear from TP's own evidence that he had some form of
conversation with Simon about what he called LB. I am not satisfied that it was of as neutral
a nature as TP suggested in his evidence. I cannot make any positive finding on the
44
evidence as to exactly what passed between TP and Simon in that conversation, but it may
well be that what TP said, or how he said it, left Simon with the impression that TP did not
wish Simon to call LB "Momma".
[144]
I do accept TP's evidence that he understands and accepts that there should be
contact with LB, and I also accept TP's evidence that the fact that LB and HS are in a same
sex relationship is not something that troubles him. I have nonetheless reached the view
that TP does not fully grasp how important a figure LB became in Simon's life. That was
evident from the part of TP's evidence where he said that he would support contact with LB
only if LB and HS remained in a relationship, but not otherwise. It is entirely
understandable that he should have reservations about any relationship between Simon and
LB independently of the relationship between LB and HS, given the neglect that Simon
experienced. However inadequate a parent figure LB was, she was a significant figure in
Simon's life over a significant proportion of his life, and there are, as Mrs Green observed
during supervised contact, positive aspects of their interactions. It is notable that the social
work department supported and facilitated supervised direct contact that included LB after
Simon was taken into care. I have taken into account the views that Simon has expressed.
[145]
Against that background I consider that I should make an order for contact that
expressly provides for contact with not only HS but also LB.
Conclusion
[146]
On issuing this opinion to parties on 21 July 2023 I invited further submissions to be
made that day as to
(a)
the terms of the order I should make for indirect contact;
45
(b)
whether I should require HS, LB, TP and any other adult involved in making
arrangements for contact to communicate using an app designed for that purpose
such as the Our Family Wizard app; and
(c)
whether the names of any witnesses and locations should be redacted when
this opinion came to be published.
