SHERIFFDOM OF LOTHIAN AND BORDERS AT JEDBURGH

 

Court Ref SN11/08

 

JUDGMENT OF

SHERIFF JANYS M SCOTT QC

 

in the cause

 

SCOTTISH BORDERS COUNCIL, Council Headquarters, Newtown St Boswells

PETITIONERS

 

against

 

RT

RESPONDENT

 

 

 

Act: Davidson, Scottish Borders Council

Alt: Corsar, Garden Stirling Burnet

 

Jedburgh, 8 December 2009

 

The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

 

The child S

1.      S was born on 31 December 2004. He is a child who suffers from autistic spectrum disorder. This is a lifelong condition. He displays restricted, repetitive and stereotyped patterns of behaviour, interest and activities. His social interaction skills are very impaired. He has little language. His capacity to learn is impaired. He is liable to become anxious and agitated, particularly if there is any change in his routine. He requires predictable, consistent care, by a person sensitive to such cues as he is able to give as to his wishes and feelings. Without positive encouragement at home there is limited prospect of S making progress. He needs to be coaxed to interact with others. He needs to be stimulated. Given the necessary care and encouragement he is likely to be able to make some progress in learning and to engage in some relationships. He is capable of showing affection to those he knows well.

 

2.      S has resided with SD since 12 October 2005. SD has been devoted to S. She has provided S with predictable, consistent care. She is sensitive to such cues as he is able to give. She has given him the encouragement and stimulation he has needed to make progress to date. He is well-placed with SD who is able and willing to assist him in all these ways. SD has attended training to help her to understand autism and how to deal with it.

 

3.      S has difficulties in sleeping. He does not like biting food. He has difficulty coping in an unfamiliar environment. If he is anxious he expresses this with extreme behaviour. He is capable of reacting by screaming, shouting, hitting out, throwing objects and running off. He is unpredictable. Caring for him is exceptionally demanding. SD has shown exceptional patience and skill in looking after S.

 

4.      Since January 2008 S has attended nursery. The nuersery provides specialist support for preschool children who have autistic spectrum disorder. S now attends there in the mornings. Since August 2009 S has attended a Primary School in the afternoons. This is a mainstream school, where S has a full-time special needs assistant providing him with one to one support at all times. There is daily contact between the Primary School and SD. With the support of SD, S was able to cope with starting school. S is making some progress in communication and understanding. He is being taught to adapt to small structured changes to his routine and encouraged to interact with other children and adults.

 

5.      S relates to SD. He is dependent upon her care. He is able to say her name and will run to her. It would now be very difficult for S to leave the care of SD. Leaving the care of SD would cause him anxiety and trauma. He would not be able to understand what was happening. Such an event could not be explained to him.

 

The respondent RT

6.      The respondent RT is S's mother. She is the only person with parental responsibilities and parental rights in respect of S.

 

7.      S's father is a person with whom RT had a brief liaison. She did not cohabit with him. He is aware of S's existence but has had no role in his life. He has no intention of applying for an order in relation to parental responsibilities and parental rights for S. If he did make such an application it is likely that it would be refused. RT has no intention of entering into an agreement with the father of S in terms of section 4 of the Children (Scotland) Act 1995. No agreement under that section is likely to be made.

 

8.      Following the birth of S RT met KT and formed a relationship with him. RT brought S to live with KT in Galashiels in about April 2005. On 24 May 2005 RT and KT re-registered the birth of S, falsely representing that KT was the father of S. KT is not the father of S. KT was in prison at the time S was conceived.

 

S's early life in the care of RT and KT

9.      In April 2005 a health visitor, Ethel Turnbull, referred S and his family to the social work department for help and support, and in relation to possible child protection concerns. Their lifestyle and home environment were disordered and chaotic. The petitioners provided support to the family through their Intensive Outreach Team. RT and KT were offered daily assistance with looking after S. At that time it was not appreciated that S had special needs.

 

10.  KT had a record of criminal convictions and had served a custodial sentence. He presented as a person with mental health difficulties. Outreach workers were worried by his behaviour. In consequence they visited the family home in pairs. On 30 July 2005 they found a person in the family home who had been convicted of sexual abuse and offences against children. KT had met this person when they were both in prison. KT and RT had allowed this person to share a bedroom with S.

 

11.  On 4 August 2005 KT contacted Allison Froggatt, outreach worker and threatened to commit suicide. She attended at the family home with another worker. KT, RT and S were present in the house. KT produced a Stanley knife. Police were called and he was arrested. RT took S to her parents' home in Tranent. On 5 August 2005 she returned to live with KT, leaving S with her parents. This arrangement had the approval of the social work department, based on their knowledge at the time. When she left S with her parents RT did not consider her mother a suitable carer for S. RT nevertheless left S in her care. RT and KT were offered contact with S but attended only once, on 23 August, when they had supervised contact at Dobbies Garden Centre. They stayed for one hour out of the two hours offered to them.

 

12.  On 25 August 2005 RT and KT married.

 

13.  Following the incident on 4 August 2005 Marcia Connor became the social worker for the family. She prepared an intensive assessment report in relation to the abilities of RT and KT to parent S. RT and KT failed to attend two meetings in connection with the report. The report was finally produced and dated 23 September 2005. In the report Marcia Connor recorded concern about the way S had been parented, about the abilities and commitment of RT and KT to S, and about the instability of KT's mental health. She recommended that S remain where he was with RT's parents pending a full parenting assessment in respect of RT and KT.

 

14.  After leaving S with her parents RT made allegations that her own mother had abused her physically when she was younger. On 11 October 2005 two of RT's sisters reported that they had been physically abused by their mother. On 12 October 2005 the children's hearing issued a place of safety warrant for S, and Marcia Connor placed him with SD as a foster carer. RT did not attend the hearing which issued this warrant.

 

Events following accommodation of S

15.  When placed with SD S was 9 months old and displayed unusual behaviour. He tended to turn away from attention. He would sit with his back to others in the room. He did not interact with other people. This was initially attributed to the nature of the care he had received from RT and KT. At about the age of 14 months S regressed and lost the use of single words he had learned. He was noted to be self-directed and resistant to change. He avoided eye contact. It became apparent that S was suffering from developmental delay caused or contributed to by factors other than the nature of his early care.

 

16.  On 8 November 2005 grounds of referral to the children's hearing were deemed to be established at Selkirk Sheriff Court. It was accepted that S was falling into bad associations or exposed to moral danger in terms of section 52(2)(b) of the Children (Scotland) Act 1995 and that S was likely to suffer unnecessarily or to be impaired seriously in his health or development, due to a lack of parental care in terms of section 52(2)(c) of that Act.

 

17.  On 17 November 2005 a 'Looked After Child' review was held at which it was decided to assess the parenting abilities of RT and KT using the PAMS system. This is a system suitable for parents who may have learning disabilities. At the time it was thought that RT had learning disabilities. Thereafter a Community Care Worker, Alan Coleman, was allocated to RT, to assist her in making her views known.

 

18.  On 18 November 2005 S was made the subject of a supervision requirement, with a condition of residence with SD. RT was encouraged to have contact with S. Contact was to take place at the Family Centre in Galashiels. RT refused to attend contact without KT. He was unable to attend for contact and as a result S did not initially see his mother.

 

19.  On 25 November 2005 KT contacted Marcia Connor in an agitated state. Marcia Connor and Alison Froggatt attended the family home. While Marcia Connor and Alison Froggatt were in the house KT threw items, including a chest of drawers, which he threw across the bedroom. He demanded RT's wedding ring and threatened to cut off her fingers to retrieve the ring. He demanded that she and the social workers leave the house. Social workers found alternative accommodation for RT but she refused to take this up. She remained with KT, notwithstanding his behaviour.

 

20.  In January 2006 Marcia Connor secured a psychiatric assessment of KT by Dr Derek Dickson. Dr Dickson reported that KT had a diagnosis of borderline personality disorder and an anti-social personality disorder. He also reported that KT was emotionally unstable with frequent impulsive acts and behaviours and had frequently overdosed and self-harmed in the past and that he had shown occasional violent behaviour towards others when distressed or intoxicated.

 

21.  By January 2006 RT and KT were both exercising contact with S at a Family Centre for periods of two hours. KT took a more active role with S than RT. Contact went well.

 

22.  In February 2006 the petitioners secured a Speech & Language Therapy Report in relation to RT. This concluded that she had some problems understanding unfamiliar words and complex sentences but she possessed sufficient language skills to cope with everyday life,

 

23.  In April 2006 contact was taking place twice weekly and one of the two sessions of contact was moved into the family home. RT was pregnant with KT's child.

 

24.  On 1 August of 2006 Finlay Graham Consultant Forensic Psychologist reported in relation to the risk to S were he to be returned home to the care of RT and KT. Mr Graham reported that the couple underestimated the demands of caring for children and overestimated their own coping capacities.

 

25.  In the summer of 2006 KT's aunt was staying with the couple. She had long-standing mental health problems. KT was charged under the Communications Act 2003 with an offence of sending obscene material, namely an indecent photograph of himself, to a cousin. RT ceased to take advantage of the support of Alan Coleman. On 9 September 2006 KT's and RT's baby EJ was born.

 

26.  In September 2006 it was suggested that S might be suffering from autism. He had taken 11 months to accept comfort from SD and start to interact with her. He was referred for a Griffiths Assessment. No diagnosis was made at that stage.

 

27.  On 18 October 2006 the children's hearing continued S's supervision requirement. RT and KT accepted that they could not manage to care for S at that time.

 

28.  The PAMS parenting assessment in relation to KT and RT was completed in December 2006. This showed that KT and RT had reasonable knowledge of what was required to parent children, albeit a need for some support and teaching. The assessment did not evidence that they would be able to put their knowledge into practice.

 

29.  On 31 January 2007 the social work department recommended to the children's hearing that RT and KT have unsupervised contact with S in their own home, to see whether they could manage to cope with both S and EJ. The children's hearing agreed, removed the condition of the supervision requirement that contact be supervised and S went to the family home for contact. KT remained more active with S than RT. Contact increased to 3 four hour sessions each week. The increased contact caused some strain to KT, who sought medical assistance for depression. By the end of March 2007 contact was four days per week for a full day. KT asked for contact to be reduced. He could manage the first two days but struggled with the second two days. The social work department were reluctant to reduce contact as they considered that RT should be able to manage both children if KT felt unwell. When contact with RT and KT increased S's behaviour deteriorated. He threw tantrums and misbehaved after contact.

 

30.  On 8 May 2007 the petitioners decided to reduce contact to 2 days per week and to look for a permanent alternative home for S. Marcia Connor visited RT and KT and explained this decision to them.

 

31.  On 12 May 2007 there was an incident at the family home. RT was holding EJ and tried to leave the house. KT tried to pull her back into the house. KT also shouted in the street. KT was arrested. RT and EJ went to a women's refuge. KT was remanded in custody for psychiatric reports. RT was told that if she returned to live with KT then EJ would be removed from her care and accommodated. Meantime S had no contact with KT and limited contact with RT. He became calmer and more affectionate towards SD. He made more eye contact with SD.

 

32.  On 19 June 2007 RT left EJ at the refuge and went back to live with KT. EJ was accommodated with SD. RT regularly telephoned SD to ask about EJ. She rarely asked about S. S reacted badly to EJ. He was intolerant of her and bad-tempered towards her. S's reaction towards EJ differed from his reaction to other children cared for by SD. He had no adverse reaction to other children. SD formed the view S's reaction to EJ was so extreme that it would be dangerous for S and EJ to be placed together on a long-term basis.

 

33.  KT's contact with S did not resume after the incident in May 2007. RT had supervised contact with S and with EJ. Contact should have taken place weekly, but RT missed half the contact sessions between June and September 2007. When contact took place it was observed that she focused her attention on EJ. RT's relationship with S lacked warmth. Save on rare occasions, neither displayed much pleasure about seeing the other. S occasionally had a tantrum during contact and RT found this difficult to deal with. She was unable to respond quickly if he was placing himself in danger. She could choose age appropriate toys for S to play with and on occasion played well with him. She had difficulty in picking up cues from him. She was not attuned to his needs. RT demonstrated a lack of capacity for consistent interaction with S. S behaved badly after contact with RT. He was distressed by the interruption to his routine. By October 2007 features of autistic spectrum disorder were emerging in S. There was still no clear diagnosis.

 

Permanency plans for S

34.  On 1 August 2007 RT told Anne Davidson, Manager of the petitioners' Intensive Outreach Team, that she had decided she would not be able to care for S and that he should be adopted. On 7 August 2007 RT attended at social work offices with KT and told Marcia Connor that she was willing to give up S as he had been in care for nearly 2 years and she knew he needed someone who could care for his special needs. RT signed consent forms for securing medical information for the permanence panel who would consider future care for S. One part of the form was not signed and RT completed this on 29 August 2009. Marcia Connor offered RT the opportunity to have another worker help her complete the forms, but she completed them with Mrs Connor. In November 2007 both RT and KT again expressed their agreement that S be considered for adoption. On 16 November 2007 they both signed social work "Form E" to indicate that they agreed with the plan that S be considered for adoption. At about this time it was agreed that RT's contact with S should be reduced to monthly visits.

 

35.  In November 2007 RT and KT separated. RT returned to her father's home in Tranent. RT's mother had died. RT has a good relationship with her father. RT and KT agreed with Marcia Connor that RT's sister L should be assessed as a possible carer for S and that RT should be assessed to care for EJ.

 

36.  In November 2007 Marcia Connor assessed the relationship between S and EJ using a checklist based on research and set out in a good practice guide published by the British Association for Adoption and Fostering. She concluded that there was no attachment between S and EJ. S was seen to be intolerant of EJ and to push her aside roughly if she came too close to him. S was assessed to be very demanding and it was seen as possible he would require one to one care in the long term. Marcia Connor did not consider that S and EJ should be placed in the same family.

 

37.  In about December 2007 S was diagnosed as having an autistic spectrum disorder.

 

Recent events concerning RT

38.  At about the end of 2007 RT moved into her own accommodation in East Lothian. Marcia Connor repeatedly warned RT about associating with inappropriate individuals. RT did not heed those warnings. In January 2008 the police advised social work that RT was associating with a man who was a convicted sex offender. In the same month RT's sister L advised social work that RT was staying with a different man, a male friend, who was unpredictable and violent.

 

39.  Social workers took steps to assess RT's sister L as a carer for S. In February 2008 L withdrew from the assessment.

 

40.  In March 2008 Heather Coupek took over as social worker from Marcia Connor. On 7 April 2008 Heather Coupek met RT, with her father and her sister L. RT remained of the view that S should be freed for adoption. There was no-one from her family who wished to be assessed as a carer for S. Later that month the petitioners' permanency panel met and recommended that an application be made for S to be declared free for adoption. RT agreed to her contact with S being reduced and ceasing altogether. RT last had contact with S on 21 May 2008. On 12 June 2008 the children's hearing reviewed S's case and provided a report to the court which was supportive of the freeing application. They made it a condition of the supervision requirement for S that he have no contact with RT. RT did not attend that hearing. The petition seeking an order freeing S for adoption was presented in July 2008.

 

41.  In about October 2008 EJ was returned to the care of RT. On 24 October 2008 RT told Heather Coupek that she wanted to have the care of S and would resist the freeing application. She had given no prior intimation that she had changed her mind about S's future. By that time S had been accommodated for three years. He had not been in the care of RT since he was 9 months old. RT was no longer seeing S and he was more settled than when contact had been taking place. On 21 November 2008 the petitioners' permanence panel reviewed the plan for S. They discussed RT's withdrawal of consent to the plan to free S for adoption. No adoptive family had been found for S, but the petitioners' family placement team expected to find a family for him. The panel recommended that the freeing application should proceed.

 

42.  RT requested a children's hearing to consider whether contact with S could be reinstated. The hearing took place on 12 December 2008. RT did not attend. The hearing was continued to 16 January 2009. On that occasion RT attended with her solicitor. The hearing decided that contact should not be reinstated. RT appealed that decision and then did not proceed with the appeal. On 25 February 2009 the petitioners held a "Looked After Child" review in respect of S under section 31 of the Children (Scotland) Act 1995. RT did not attend. The review considered whether it was appropriate to proceed with the freeing application and decided that the application should proceed. RT then asked for another children's hearing to reconsider the question of contact. That hearing took place on 3 June 2009. RT did not attend. Her solicitor telephoned to say RT was unwell. The hearing was continued to 8 July 2009, when a safeguarder was appointed. At the time of proof the children's hearing had not considered the safeguarder's report. A hearing was scheduled to take place on 5 November 2009.

 

43.  In December 2008 RT had a brief relationship with a man who had a reputation for violence. When asked about this by her social worker she gave an assurance that the relationship was over. In August 2009 it came to the attention of the social work department in East Lothian that RT was associating with a known sex offender. She maintained that she had not known that he had committed offences of a sexual nature. RT had her brother staying in her home as a condition of his bail. Social work spoke to her about this and were assured he had moved out. The brother was later arrested and remanded in custody for alleged offences involving wielding an offensive weapon in the presence of a young child. EJ attended a family centre in East Lothian. The family centre twice noticed bruises on EJ, but RT had reasonable explanations for the bruises. In about June 2009 Professor Triseliotis visited RT on the instructions of her solicitor for the purposes of preparing a report in connection with these proceedings. In his presence RT slapped EJ on the arm. RT also raised her hand as if to slap EJ a second time. Professor Triseliotis also saw her push EJ away. Professor Triseliotis reported concerns about RT's care of EJ to her social worker, who spoke to RT. RT did not remember slapping EJ. The social work department in East Lothian consider that RT needs guidance and support in caring for EJ. She is struggling to nurture EJ. There are reasonable concerns about who RT is associating with.

 

Future needs of S

44.  It would not be possible to place S in the care of RT. RT may have good intentions towards S, but she does not have the capacity to cope with his needs. He is exceptionally demanding to care for. RT has little insight into his needs and the demands that S would place upon her.

 

45.  Placing S with RT would threaten EJ's placement with RT, both because it would place on RT a responsibility that she could not fulfil to meet the needs of the two children and because of the adverse reaction S shows to EJ.

 

46.  SD has been approved as an adopter for S. As a result S is now formally placed for adoption with SD. Her decision to adopt S has been made after discussion with her close family, namely her son, her sister and her nephew and niece. They are also committed to S. He has in effect already become a part of SD's family and is loved and welcome there. SD and her family are aware that task of caring for S and bringing him up is daunting. The support of the wider family is important in this case as SD is 50 years of age and single. If S is declared free for adoption then it is likely that he will be adopted by SD. It is in his interests to be adopted by SD.

 

47.  It would not be in the best interests of S to attempt to reinstate contact between S and RT. S was not attached to RT. He has no understanding of his biological relationship to her. To him contact would represent an interruption of his routine that is likely to unsettle and distress him. SD is prepared to pass on to RT news about S. SD is not opposed to direct contact between S and RT in the future, if S progresses with his communication skills and were this to be in the best interests of S. In this event SD would encourage such contact.

 

48.  Compulsory measures of supervision will no longer be necessary for S if an order is made declaring him free for adoption.

 

49.  RT has been given the opportunity to make a declaration that she prefers not to be involved in future questions concerning the adoption of S. She does not wish to make such a declaration.

 

Finds in fact and law that:-

 

1.      The respondent is withholding agreement to the making of an adoption order unreasonably in terms of section 16(2)(b) of the Adoption (Scotland) Act 1978.

 

2.      The respondent has persistently failed, without reasonable cause, to fulfil the parental responsibility to safeguard and promote the child's health, development and welfare in terms of section 16(2)(c)(i) of the Adoption (Scotland) Act 1978.

 

3.      The welfare of the child throughout life will best be safeguarded and promoted by his adoption.

 

4.      It would be better for the child that an order be made declaring him free for adoption under section 18(1) of the Adoption (Scotland) Act 1978 than that there be no such order.

 

Makes an order declaring the child known as S (the subject of this petition), born on 31 December 2004, free for adoption; determines that said child shall forthwith cease to be subject to the supervision requirement imposed by the children's hearing; finds no expenses due to or by either party.

 

 

 

 

Note:-

Introduction

[1] In this case the petitioners seek an order declaring the child S free for adoption, in terms of section 18 of the Adoption (Scotland) Act 1978. Proof was heard over seven days, 14, 15, 16, 17 and 18 September and 14 and 30 October. A hearing on 16 October was cancelled due to the illness of the one witness. Mr Davidson, who appeared for the petitioners, lodged affidavits and led evidence from social workers Marcia Connor and Heather Coupek, Anne Davidson who was manager of the petitioners Intensive Outreach Team and from outreach workers Allison Froggatt, Karen Brandon and Ann Turnbull, resources team leader Gareth Scott, Dr Anne-Marie McGhee from the Andrew Laing Unit, Sarah Fitch from Spectrum Support, Anne Carruthers head teacher and from SD who currently cares for S. He also led evidence from Patricia Thomson social worker from East Lothian Council. Mrs Corsar appeared for RT and led evidence from Dr Kenneth Aitken, Sheila Gorman and Professor John Triseliotis, all of whom had prepared reports. RT did not give evidence. She was present for part, but not all of the proceedings.

 

[2] Despite the length of the proceedings there was no significant dispute about the history. The issues between parties related for the most part to the inferences that should be drawn from the evidence. Mrs Corsar sought to portray RT as a victim of her circumstances and to attribute difficulties in the presentation of S and his relationship with RT to his autism. She relied on Sheila Gorman for the proposition that further assessment was required and that contact between S and RT should be reinstated.

 

[3] At this stage I should explain that I was not impressed with Sheila Gorman as an expert witness. She based her opinion upon her social work experience, which she represented she had accumulated over 20 years as a social worker. When pressed to give an account of her experience, she explained that she had started as an unqualified worker in residential and community care work in London in the 1980s. She qualified as a social worker in 1990 and took up a position as a basic grade generic social worker with Strathclyde Regional Council in 1991, where she worked in child care and criminal justice, with some work in the area of community care, for just 4 years, before leaving to lecture at the Nautical College in social sciences and social care. She had thereafter been involved in setting up electronic tagging. She took time off to look after her own children before starting freelance work as a social worker in 2003. In her freelance work she said she had been involved in a range of cases including cases involving domestic violence, child protection and assessment for foster care and adoptive placement. This history did not demonstrate 20 years experience in the area of adoption and fostering, nor in relation to children with disabilities. There was no evidence of her having any supervisory experience nor of peer recognition of the quality of her professional judgment. Her opinion in this case was based on a view that RT had made clear progress and was looking after EJ satisfactorily, whereas the evidence before me showed that there were continuing concerns about RT's care of EJ. Ms Gorman had formed a positive view of S's capacity to relate to others on the basis of seeing him once. Her view was at variance with the opinions of all others who were involved with his continuing care. She asserted that resumed contact with RT and EJ would cause no detriment to S, without apparent regard to the evidence of his past reaction to contact and the difficulties that a change in routine would bring for S. In these circumstances I had considerable reservation about relying on the opinions of Ms Gorman.

 

[4] I did find helpful the evidence of Professor Triseliotis, also called by Mrs Corsar to give evidence for RT. Professor Triseliotis is a recognised expert in the sphere of adoption. He has about 40 years experience of research in the area of children separated from their birth families and is the author or over 20 books and numerous articles on this subject. He has a long and distinguished career advising on matters of policy and practice in adoption. Where his evidence conflicted with that of Ms Gorman I had no hesitation in preferring the evidence of Professor Triseliotis. In broad terms he supported S remaining with SD and a freeing order being granted. He accepted the commitment of SD to pass news of S to RT and to introduce some form of direct contact between S and RT if S progressed sufficiently with his communication skills to warrant this as being in his interests.

[5] The Adoption (Scotland) Act 1978 makes provision for children to be declared free for adoption. The first requirement of section 18 is that each parent or guardian of the child freely and with full understanding, agrees to the making of an adoption order, or that his agreement should be dispensed with on a ground specified in section 16(2). In this case the only "parent" for the purposes of section 18(1) is the respondent RT. She does not agree to adoption. In these circumstances the court is required to decide whether one or other of the grounds mentioned in section 16(2) has been established by the evidence. If such a ground is established, then the court is required to exercise judgment, on the basis of the matters set out in section 6, as to whether the parent's agreement should be dispensed with (Lothian Regional Council v A 1992 SLT 858). Section 6 requires regard to be had to all the circumstances, but the paramount consideration is the need to safeguard and promote the welfare of the child throughout his life. The petitioners are under a duty in terms of section 6A of the 1978 Act to consider whether adoption best meets the needs of the child, or whether there is some better, practicable alternative. An order under section 18(1) cannot be made unless it would be better for the child that an order is made than that it is not (section 24(3)). The various requirements of section 18 of the 1978 Act must all be satisfied.

 

[6] When proceedings commenced S was residing with SD as his foster carer. Section 18(3) of the Adoption (Scotland) Act 1978 meant that RT's agreement to adoption could not be dispensed with unless S had been placed for adoption or the court was satisfied that it was likely that he would be placed for adoption. By 14 October 2009 the petitioners' permanence panel had recommended that SD be approved as an adopter and that the placement of S with her be approved as an adoptive placement. Thereafter the placement of S with SD had been transformed into an adoptive placement, satisfying the requirements of section 18(3). SD was recalled on 14 October 2009 and confirmed in evidence that S was now placed with her for adoption and that she intended to adopt him were he declared free for adoption. She also gave evidence of her attitude to contact with RT. She confirmed that she was prepared to speak to RT on the telephone from time to time to pass news of S to RT and to introduce some form of direct contact between S and RT if S progressed sufficiently with his communication skills to warrant this as being in his interests.

 

 

 

Persistent failure to fulfil parental responsibility

[7] Mr Davidson submitted that the history in this case established that there had been persistent failure on the part of RT, without reasonable cause, to fulfil the parental responsibility to safeguard and promote the child's health, development and welfare in terms of section 16(2)(c)(i) of the 1978 Act. He referred to a summary of the law in relation to this ground set out in Wilkinson & Norrie on Parent and Child at paragraph 4.54, and drew attention to the case now reported as G v M 1999 SC 439. In that case Lord Coulsfield, giving the opinion of the Inner House, referred to a failure that is not merely temporary or transient, but of enduring significance at the time the court is considering whether or not to dispense with consent.

 

[8] Mr Davidson relied on the history of the case and referred in particular to the involvement of social work almost immediately after RT moved to the Scottish Borders in April 2005. In July 2005 a known sex offender was allowed to spend the night in the same room as S. Following the incident on 4 August 2005 RT had taken S to her parents' home, but then had returned to KT the following day, leaving S with her parents, despite the fact that she alleged that her mother abused her as a child. She saw S only once while he was staying with her parents. When S moved to a foster placement she made little effort to enquire of the foster carer as to his welfare. When contact with S was increased after the conclusion of the parenting assessment in December 2006 she left the main care of S to KT, in contrast to her attention to EJ. In August 2007 she stated she could not care for S and that adoption was the best route. When exercising contact she was noted to focus on EJ to the exclusion of S.

 

[9] Mrs Corsar responded that there was insufficient evidence to establish that RT had persistently failed, without reasonable cause, to fulfil the parental responsibility to safeguard and promote the child's health, development and welfare. She had sole care of S for only 4 months before moving to live with KT in the Scottish Borders in April 2005. She had acted reasonably on 4 August 2005 in removing S and in leaving S with her own parents. Her father in particular was a suitable carer, and nothing was established against her mother. When S was referred to the children's hearing most of the matters mentioned in the statement of facts setting out the grounds for the referral related to KT. S had remained in foster care pending a parenting assessment that had taken over a year to prepare. The findings of that assessment, in December 2006, were generally positive. KT had been more proactive than RT in telephoning SD, but that was because he was the most outgoing of the two. There was no evidence that he had not passed on information to RT. Inferences should not be drawn from S's behaviour prior to his diagnosis with autistic spectrum disorder. There was no formal assessment of the severity of this disorder. The rehabilitation programme for S had broken down as a result of KT's failure to cope, and his ultimate remand in May 2007. RT had separated from KT. She had exercised contact alone and at times had engaged well with S. He was acknowledged to be hard to manage. She had not brought contact to an end. She had managed to care for EJ for over a year.

 

[10] I have found that RT did persistently fail without reasonable cause to fulfil the parental responsibility to safeguard and promote the health, development and welfare of S. It would be difficult to find otherwise in the light of the history as set out in the findings in this case. RT looked after S for only 9 months of his life. In that period she introduced KT as a father-figure for S. KT was not a person whose involvement with S was likely to safeguard and promote his health, development and welfare. He had recently emerged from prison. He had mental health difficulties. His behaviour gave rise to obvious concern, such that Outreach workers would not come to the family home alone. Introducing such a man as a father-figure was a failure on the part of RT to safeguard and promote the health, development and welfare of S. Further, she exercised her parental responsibility to procure a false birth certificate naming KT as the father of S. The removal of S from the care of RT arose because she had introduced KT into the life of S. When KT behaved in a dangerous manner on 4 August 2005 RT placed her relationship with KT before the care of her child and returned to live with KT. As a result S was left with RT's parents, when RT categorised her mother as unsuitable to look after S. This resulted in S being the subject of a place of safety warrant. Meantime, having seen first hand the dangers presented by KT, RT married him. She stayed with KT despite repeated violent episodes. While she lived with KT she would not see S without him. When KT could not cope with increased contact with S, with a view to rehabilitation, she accepted that the programme to return S home should cease. She allowed unsuitable persons, who represented a threat to children to be in her home when S was there, and after he was accommodated, such that her judgment on exercise of parental responsibility had to be called into question. She gave up on S in August 2007 and agreed he should be adopted with the consequence that she would be divested of her parental responsibility for him. She maintained this position until October 2008, by which time these proceedings had commenced.

 

[11] I agree with Mrs Corsar that RT should not be blamed for the characteristics displayed by S, which transpired to be the result of his autistic spectrum disorder. She should not be blamed for failing to relate well to a child who had great difficulty in relating to anyone. She cannot however simply blame KT for the removal of S from her care, as she had introduced KT as a father-figure when on any view fulfilment of her responsibilities to S would have at least resulted in a caution she did not show before moving in with him and exposing S to his behaviour. She neglected her responsibility to S by giving priority to the pursuit of her relationship with KT until November 2007. Her position in leaving S with her parents and then disclosing that her mother was not fit to look after him was irresponsible. RT must take responsibility for bringing her contact with S to an end as she endorsed, and encouraged the petitioners to pursue, plans for his adoption.

 

Unreasonable withholding of agreement to adoption

[12] The petitioners also rely on the ground set out in section 16(2)(b) of the 1978 Act. Mr Davidson pointed out that the test for whether a parent is unreasonably withholding agreement to adoption is objective. The court should ask whether no reasonable parent, in all the circumstances would withhold agreement to adoption (Lothian Regional Council v A). He referred to the list of factors in Wilkinson v Norrie at paragraph 4.48, which are drawn from A and B Petitioners 1971 SC (HL) 129 and Re W (An Infant) [1971] AC 682. Mr Davidson relied upon the history of RT being unable or failing to care for S. He referred to RT's own decision that she could not care for S and that she was content for an adoptive placement to be found for him. He founded on the lack of interaction between RT and S at contact, in contrast to the relationship between RT and EJ. He maintained that the lack of interaction should be attributed to RT's lack of effort to engage. By the time RT had changed her mind about adoption for S the freeing proceedings had been commenced and the petitioners were justified in their position that a return to RT's care was not possible. Their position was vindicated by the opinion of Professor Triseliotis, who had been called to give evidence for RT. He was clearly of the view that RT could not care for S at this stage. His opinion was that "Good enough parenting" was insufficient for S, who required "optimum parenting". RT's expressions of confidence that she could look after S showed lack of insight about his needs and lack of reality about her capacity. Mr Davidson argued that this was not a case where on the facts the effect of freeing on contact between parent and child was a significant issue. He invited me to disregard the evidence of Sheila Gorman, in so far as it was contradictory of the evidence of others.

 

[13] Mrs Corsar relied upon Re K (an Infant) [1953] 1 QB 117 and Re F (an Infant) [1957 1 All ER 819 to support the proposition that retraction of consent to adoption did not mean that agreement to adoption was being unreasonably withheld. She maintained that RT was reasonable in withholding agreement to adoption of S pending preparation of a further assessment of her parenting skills. There had been no assessment as such since her separation from KT. Sheila Gorman recommended that contact should be re-introduced and a further assessment should take place. EJ had been returned to the care of RT and reports as to RT's care of EJ were generally positive. The petitioners had trusted RT with the care of EJ. RT reasonably wished to see S and EJ have a sibling relationship. RT had attended contact regularly and the contact had, she submitted, gone well. RT herself had matured, was no longer in an abusive relationship, was generally co-operative and had improved relations with her own family. She submitted that there was evidence that S could have a meaningful relationship with RT. She submitted that Professor Triseliotis was supportive of contact, albeit she had to accept that his evidence favoured indirect contact, with communication to take place between SD and RT, but with the potential for direct contact between RT and S at some later stage. If a freeing order were granted then matters would rest entirely with SD. She referred to the opinion of Lord Reed in West Lothian Council v McG 2002 SC 411. Mrs Corsar made a brief submission to the effect that a freeing order might not be compatible with article 8 of the European Convention on Human Rights. Were freeing refused, then there was potential for a permanence order in terms of section 80 of the Adoption and Children (Scotland) Act 2007.

 

[14] The proper approach to the question raised by section 16(2)(b) is set out in Lothian Regional Council v A 1992 SLT 858 and West Lothian Council v McG 2002 SC 411. The test will be satisfied if no reasonable parent, in all the circumstances, would withhold agreement to the making of an adoption order. A reasonable parent would have no less regard than the court to the matters mentioned in section 6 of the Act, and would therefore regard the child's welfare throughout life as the paramount consideration. I am required to address the matter objectively, from the perspective of a hypothetical reasonable parent. Such a parent would look first of all at S's needs. As can be seen from the findings in this case those need go well beyond the needs of an ordinary child of S's age. The reasonable parent would then look at her capacity to meet those needs. RT is struggling to nurture her three year old daughter. There is no reasonable prospect that she could look after EJ and meet the very considerable needs of S. RT has poor insight into the nature of S's special needs. She has not demonstrated the commitment to S, nor the personal skills, to allow her meet his basic needs, let alone promote such development as he is able to achieve. RT would have to take into account that she has in the past shown poor judgment about the persons she allows to be in her home with her children and continues to do so. Against this background a reasonable parent in the position of RT would also have to take into account that S has the prospect of being adopted by SD. SD has shown extraordinary commitment to S and exceptional skill in looking after him. He could not now be taken from the care of SD without causing him anxiety and trauma. It is overwhelmingly in his interests to remain with SD and for his position with her to be made secure by an adoption order.

 

[15] I do not consider that a reasonable parent would in these circumstances ask for a further assessment of her skills. S's needs, RT's limitations and the benefits of adoption with SD are obvious and compelling. A reasonable parent in possession of all the facts and viewing the matter with appropriate objectivity, would have no hesitation in rejecting Mrs Gorman's suggestion that this is a case for reinstatement of direct contact. S has no comprehension of who RT is or the nature of his relationship to her. Changes to his routine cause him anxiety. He expresses his anxiety by extreme behaviour. In the past he reacted to contact with bad behaviour. This may have had nothing to do with the content of the contact. It may have been because his routine had been interrupted. Even if contact could be reintroduced RT has not demonstrated the insight or the capacity for consistency that would allow her to be part of the support structure for S. A reasonable parent, considering the matter objectively, would appreciate that as matters currently stand S would not benefit from contact, and that contact is likely to operate to his detriment. Contact would represent a source of stress for S and impose further strain on SD who would be left to bear the burden of the behaviour prompted by S's anxiety.

 

[16] I have not been able to accept Mrs Corsar's submissions on the question of whether RT was unreasonably withholding consent to adoption in part because I have been unable to accept the inferences she has drawn from the evidence. This will be apparent from the findings in this case. The reports relating to RT's current care of EJ were not "generally positive". They showed the emergence of some serious concerns. The aspiration for a sibling relationship between S and EJ may have been laudable in ordinary circumstances but, in the context of S's autistic spectrum disorder and his past reaction to EJ, in this case it is unrealistic. RT had not attended contact regularly. There were periods when her attendance rate was poor. She has regularly failed to attend at children's hearings and review meetings. Professor Triseliotis was not supportive of contact. He was supportive of a freeing order on the basis that SD would maintain some contact with RT and had no problem with introducing some form of direct contact later depending on how S progressed with his communication skills. I had no difficulty with the proposition that a parent could, in appropriate circumstances, change her mind about agreeing to adoption, but looking at the facts, in the light of the later authorities cited by Mr Davidson, this was not a case where a reasonable parent looking at the matter objectively could have had a change of heart. It is a case where there is an overriding requirement pertaining to S's interests that justifies interference with the family life he would otherwise have with RT. A freeing order falls within the qualifications to article 8 of the European Convention on Human Rights, having regard to the decision of the First Division in Dundee City Council v GK 2006 SC 326. In the circumstances I concluded that RT was unreasonably withholding agreement to the making of an adoption order.

 

 

Welfare of the child

[17] The court cannot dispense with a parent's agreement to adoption unless this is justified having regard to the considerations in section 6 of the Adoption (Scotland) Act 1978. This section requires the court to have regard to all the circumstances, but to regard the need to safeguard and promote the welfare of the child throughout life as the paramount consideration. Mr Davidson submitted that there was no realistic prospect of S returning to the care of RT, nor of contact being re-established. The options for S were adoption, long-term fostering or maintenance of the status quo. He relied on evidence from Marcia Connor that adoption would afford security that would not be present in a long-term fostering arrangement. Gareth Scott gave evidence of the considerations applied by the permanence panel, which favoured adoption because this would secure S's place. It had not proved possible to place S with a family member. RT's sister had expressed an interest but had withdrawn. The petitioners had fulfilled their duty to consider whether there were practicable alternatives to adoption and had concluded that there were no such alternatives. Both the curator ad litem and the children's hearing supported the application. Mrs Corsar's position on section 6 was that it was not in the best interests of S to dispense with RT's consent to adoption when the issue of contact could be looked at in a subsequent petition for adoption or a permanence order. There required to be objective evidence to bring contact to an end.

 

[18] Having regard to the findings in fact in this case, which set out the circumstances, the case for dispensing with RT's agreement to adoption and granting an order declaring S free for adoption is compelling. There can be no doubt that it will serve the welfare of S to remain with SD, and for his position with her, as a member of her family, to be secured by an adoption order. If a freeing order is made SD will apply to adopt S. An adoption order will confer on SD full parental responsibilities and parental rights. It will allow her to make decisions in the interests of S, and to take a full part in arranging the treatment and education that will best suit him and allow him to achieve his potential. She is undoubtedly the person best equipped to assume such responsibilities and rights. S will benefit from the security of adoption by SD. S has not lived with RT since he was 9 months old. He has been the subject of decisions by the children's hearing, taken in his interests, but reviewable at regular intervals. The time has come to put his position on a long-term footing. The prospect of yet further litigation over S proposed by Mrs Corsar is unattractive. It introduces an element of anxiety and uncertainty over his future that is bound to affect SD and others around S and will not be conducive to his welfare. Contact between S and RT has ceased. It is not in the interests of S to reinstate contact just now for the reasons explained above. Contact is best left in the hands of SD who knows S best and is devoted to his welfare. She can be trusted to take decisions in this area, as well as other areas, that will safeguard and promote his welfare. In the particular circumstances there are no better practicable alternatives to adoption, consistent with safeguarding and promoting the welfare of S throughout his life

 

 

Other matters

[19] I am satisfied that the various requirements of section 18 of the Adoption (Scotland) Act 1978 are satisfied. Mrs Corsar intimated at the commencement of the proof that RT did not wish to make a declaration that she preferred not to be involved in future questions concerning S, in terms of section 18(6) of the 1978 Act.

 

[20] Turning to section 18(7) of the Adoption (Scotland) Act 1978 RT is not and never has been married to the father of S. Contrary to the impression conveyed by his birth certificate KT is not the father of S. The father of S has no parental responsibilities or parental rights in respect of S. I am satisfied that he has no intention of applying for an order relating to parental responsibilities and parental rights, and that even were he to apply it is likely that his application would be refused. Further he has no intention of entering into an agreement with RT under section 4 of the Children (Scotland) Act 1995 and even if he did have such an intention no agreement would be made as RT would not enter into such an agreement.

 

[21] S is in the care of the petitioners by virtue of a supervision requirement. Mr Davidson moved for determination of the supervision requirement in respect of S, pursuant to section 18(9) of the Adoption (Scotland) Act 1978. The effect of an order declaring S free for adoption will be to transfer parental responsibilities and parental rights to the petitioners in terms of section 18(5) of the Adoption (Scotland) Act 1978. In consequence compulsory measures of supervision will no longer be necessary and I have acceded to Mr Davidson's motion. In any event S has been placed for adoption with SD and it is likely that he will shortly be adopted by her.

 

[22] In granting an order declaring S free for adoption I have had regard to the report of the children's hearing that supports the granting of a freeing order and to the reports of the reporting officer and curator ad litem. The original reports of the reporting officer and curator were prepared in July 2008 when the petition was first lodged. Given the delay in hearing the proof in this case I ordered an updated report in July 2009 which confirmed that in the opinion of the curator an order freeing S for adoption would safeguard and promote his welfare throughout his life, and would be better for the child than no order being made. In all the circumstances I am satisfied that declaring S free for adoption would be better for him than refraining from making such an order, and that a freeing order is consistent with the requirements of section 24(3) of the Adoption (Scotland) Act 1978.

 

Expenses

[22] Parties were agreed that in the circumstances of this case the appropriate order as to expenses would be to order that no expenses should be due to or by either party.