Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT HADDINGTON

 

COURT REFERENCE: PO1/2010

 

 

 

JUDGMENT OF SHERIFF PETER GILLAM

 

In the Petition of

 

EAST LOTHIAN COUNCIL

Incorporated under the Local Government etc. (Scotland) Act 1994

Having its principal place of business at

John Muir House, Haddington, East Lothian, EH41 3HA

PETITIONER

 

 

For a Permanence Order under Section 80 of the Adoption and Children (Scotland) Act 2007

 

In respect of the child LSK

 

 

 

HADDINGTON 30TH JULY 2010

 

The Sheriff, having resumed consideration of the cause, Finds in fact as follows:-

 

1.      The petitioner is as designed in the instance. It is an adoption agency. It has requested authority for adoption in this petition

 

2.      The child to which this Petition relates (hereinafter referred to as "L") was born on 24 November 2008. He is male. His birth parents (hereinafter referred to as "D" (natural father) and "S" (natural mother) ) have parental rights and responsibilities in respect of L. They married on 4^th June 2010. The birth certificate of L was amended by S and D just before the proof to give the surname of D as the surname of L.

 

3.      This court has jurisdiction. D is 20 years old. S is 21 years old. They live in local authority accommodation with 2 bedrooms. It is clean, tidy and reasonably well furnished.

 

4.      East Lothian Children's Services were contacted in April 2008 when S was 8 weeks pregnant. There were concerns because D was in custody at Polmont Young Offender's Institution and had been placed on the Sex Offenders Register on 15 April 2008 in relation to a sexual assault upon a 14 year old girl. D had pled guilty to an offence of assault to injury with a sexual aggravation component. This was an offence under Schedule 2 of the Criminal Procedure (Scotland) Act 1995.

 

5.      At this time, S resided with her mother, father and sister in Dunbar. When not in Polmont D also resided there. The living conditions were dirty and totally unsatisfactory for any child to reside there. Numbers 5/5/1 to 5/5/27 of process are coloured photographs taken by the Petitioner showing the conditions around August or September 2008. The family of S was known to the Social Work Department because of family difficulties.

 

6.      A pre-birth Initial Child Protection Case Conference (ICPCC) was agreed upon as the best course of action to assess the situation and to safeguard the welfare of the unborn baby. The ICPCC was held on 12 August 2009 . At that time D was subject to 4 concurrent 18 month Probation Orders dating from 10/1/2008 in respect of offences of assault to injury, assault and 3 cases of breaching bail conditions. A further breach of the peace offence committed by D in May 2008 had breached the 4 concurrent Probation Orders. D appeared to have difficulty working with support agencies and difficulty complying with the terms of court orders and disposals. It was decided at the ICPCC that the unborn child should be placed on the Child Protection Register. A plan to address concerns was identified. This plan was agreed to by D and S. D and S were advised that if the plan was not complied with by them then L would not be allowed to return home at birth. D and S did not comply with the plan

 

7.      When he was released from prison in September 2008 D moved back into S's home with her parents in Dunbar. D and S left that address between 17th and26th September following a fallout with S's family. Homelessness Services of the local authority advised them that they would need to be housed separately due to the child protection concerns. Subsequently, D and S resided briefly at the grandparents' home. They then moved to S's uncle's home in Cockburnspath.

 

8.      On Sunday 2 November 2008, the police in Tranent received a telephone call reporting that D had allegedly dragged S out of the grandparents' house against her will and was dragging her along the street. On police arrival, S and D stated that they were happy to be together and that there were no complaints being made. As a result of said incident the police referred the matter to the Social Work Department of East Lothian Council.

 

9.      D has an IQ of the low 60s. He suffers from Tourettes Syndrome and was diagnosed with ADHD as a child. From the age of 10 until he was 16 D was accommodated away from home in residential schools due to his behaviour which could not be coped with by his parents. D has made allegations against the grandparents about their care of him as a child and stated that he did not consider them to be able to care properly for L.

 

10.  When L was born, on 24 November 2008, a Child Protection Order was sought by East Lothian Council under Section 57 of the Children (Scotland) Act 1995. This was granted on that day. S discharged herself from Edinburgh Royal Edinburgh on the same day against medical advice. L was placed on a supervision order by the Children's Panel on16th March 2009. He remains subject to that order with conditions that the address is not to be disclosed and that all parental contact is to be supervised. When L left hospital he went into a foster care placement where he remained until 29 May 2010 when he was placed with prospective adoptive parents. He has remained with them since then. The child has been well cared for in foster care and with his adoptive parents and has met all his physical and developmental milestones.

 

11.  D was initially prevented from having contact with L in terms of the Child Protection Order and the subsequent Place of Safety Warrants. He was subsequently allowed supervised contact, but did not take it up immediately. There were many contact arrangements made for both D and S that were missed by them. On several occasions L was taken for contact and D and S did not attend He did however attend for contact with the child on 10 August 2009 and 24 September 2009. D has attended for contact with L for a total time of just over 6 hours and S for a total time of 7 hours during the lifetime of L.

 

12.  S did not comply with the pre-natal plan by attending for scans and parenting classes as she should have done. She did attend for scans, however, not at the appropriate time and after a lot of persistence from the health visitor. Neither D nor S attended all the parenting classes. S attended one class and 20 minutes of another class. D attended only 20 minutes of one class. S failed to prioritize the needs of the child both pre and post birth. She made various excuses to the health visitor for not attending appointments which demonstrated this. S attended one contact on 28 November 2008 and another contact on 4 February 2009. Contact between S and L did not take place thereafter until 17 September 2009. A follow-up contact for D and S was arranged for 11 November 2009. D and S did not attend and gave no explanation for their non attendance. In January 2010 a contact did not take place because S and D were moving house. S and D failed to put the interests of L before their own interests. The next contact took place on 4^th February 2010. Contact has taken place since then on three occasions.

 

13.  Contact between L and the parents of D (hereinafter referred to as the "grandparents") took place on a fortnightly basis due to them being assessed as possible carers for the child. This continued until the autumn of 2009 and thereafter it was reduced to once per month until March 2010 when the Social Work Department stopped that contact. In excess of 20 hourly contacts took place between L and his grandparents. These contacts went well. The grandparents contacted the Social Work Department prior to L's birth and offered to care for L after he was born due to their concerns regarding the ability of D and S to care for L. They have been consistent in their wish to care for L and they still do wish to care for him. It is their hope that eventually he would be able to return to the care of S and D. The grandparents have a son Paul aged 10 who resides with them.

 

14.  D and S have been in a continuous relationship since February 2008. D has 14 previous convictions, 3 for breaches for assault to injury, 2 convictions for assault, theft by shoplifting, making threats, theft, forgery and uttering, breach of community service, Criminal Law (Consolidation) (Scotland) Act 1995 Section 49(1), and Section 27 of the Criminal Procedure (Scotland) Act 1995 (3 offences).

 

 

15.  S's mother died in March 2010. S had a difficult relationship with her. Her late mother was not considered as a possible care option for the child. This was due to her own history of having 3 children removed from her care and subsequently adopted. In addition her home was totally unsuitable. ( finding in Fact 5 supra) Due to ill-health, S's father could not be considered as a possible care option for the child. S's father is currently a full-time resident in a care home in East Lothian due to his physical health needs. S also had a difficult relationship with her sister. S accused her of impersonating her in telephone conversations with the authorities and intercepting her mail.

 

16.  D and S have not attended a number of the accommodated Child Review meetings, Children's Hearings, Child Protection Group Meetings.. D and S understand the implications of adoption but do not consent.

 

 

17.  D and S have suffered financial difficulties. Neither is employed. S has requested financial assistance in emergency situations from time to time. She has given false information to substantiate her requests. D stole a cheque book from the grandparents and tried to obtain money by fraud. This caused problems in his relationship with the grandparents.

 

18.  There have been several reports of suspected violence by D towards S but none have been proved. Allegations were made by the mother and sister of S, by the grandparents (suspicions only), and S herself. However, both D and S denied these allegations.

 

19.  Threats have been made by D to remove L from carers including the grandparents if ever they did have care of L.

 

20.  Numbers 21 and 31 of process are Joint Minutes of Admissions which parties agreed and which formed part of the evidence in this case.

 

21.  The grandparents' indication that they wished to care for L resulted in a kinship care assessment of them being carried out by Shona Yule, Social Worker with the Family Placement Team of East Lothian Council. This assessment is contained in production 2/7/5/13 of process. An Adoption and Fostering Meeting took place on Thursday 9 July 2009 and the Minutes of that meeting are contained in 2/7/5/14 of process. The meeting recommended that the grandparents were not suitable to care for L and this decision was accepted by the local authority agency decision maker. This decision was not appealed by the grandparents. They were informed that the decision maker normally accepted the recommendation of the Panel. They did not take advice on whether they could appeal.

 

22.  The relationship between D and the grandparents has been a difficult one. In December 2008 the grandparents took out an Interdict against D from abusing them at their home. D maintained that he did not wish the grandparents to look after L. D has subsequently changed his mind and is now of the view that if L cannot be with him and S, then L should be with the grandparents. This change of mind appears to have occurred in the Summer of 2009. D has said different things to different people at different times regarding who should care for L.

 

23.  D and S obtained their own accommodation together in January 2010. It is situated in the same town as the grandparents and is about 15 minutes walk away. D and S visit the grandparents' home regularly. D's relationship with his parents has improved. He has not been convicted of any offences for over a year. He is currently on Probation. His relationship with S, although strained at times, appears to have endured.

 

24.  The grandparents, (hereinafter referred to individually as "grandfather" and "grandmother"), both have health problems. The grandfather has a bad back which gives him a considerable amount of pain. He is registered as disabled although he is able to carry out part-time work as a barman in a local hotel. The grandmother has mental health problems. She suffered from depression in 1983, 2006 and 2009. She was admitted to Herdmanflatt Hospital for 28 days in 2006. She is presently absent from her work due to depression. She takes anti-depressants. The depression has been caused partly by her work situation and partly by the difficulties with D's behaviour.

 

25.  The local authority have identified prospective adoptive parents and L has been placed with them. L has settled well with them. The proposed adoptive parents are committed to promoting and safeguarding the future of L throughout his life. They are in a position to do this. L has a safe stable and secure home with them The local authority concluded there was no alternative to adoption.

 

26.  The report prepared by the Curator ad litem recommends that L be placed for adoption as soon as possible. When the curator attended at the home of S and D in March 2010 at a prearranged time to prepare his report S had forgotten about the appointment.

 

27.  S and D are feckless and immature. They would not deliberately harm L. They have never cared for L. They have no bond with him, and he has no bond with them. Their wish to care for L at the present time is unrealistic, albeit understandable. They would not be able to care for him properly on their own.

 

28.  The wish of the grandparents to care for L is genuine and also understandable. On their own, they would probably be able to care for L. However, the behaviour of D in such a situation would cause difficulties to the grandparents and would make such a possibility detrimental to the welfare of L.

 

29.  The difficult behaviour of D is an impediment to L being cared for by D and S and by the grandparents. D's control of his behaviour has not improved to such an extent that it would be possible for L to be accommodated either with D and S or with the grandparents. D continues to have difficulty exercising self control which results in confrontations with people when he does not agree with them. This will be likely to happen in the event of L being placed with his grandparents. This would cause harm to L and have an adverse affect upon the mental health of the grandmother. This in turn would affect her ability to care for L.

 

30.  The behaviour of D towards officials of East Lothian Council was such that they applied for and obtained an interdict against D. The terms of the interdict are contained in production 2/7/5/12 of process. This was obtained on 28 October 2009 and interdicted D from shouting, swearing, using threatening, intimidating aggressive and inappropriate or abusive language or behaviour towards any employee of the pursuer at a number of their offices. This was obtained as a result of the behaviour of D. In addition East Lothian Council began an anti-social behaviour process against D because of his behaviour. This resulted in D being issued with a fourth stage anti-social behaviour policy warning on 24 March 2010. This occurred as a result of D's behaviour towards members of the housing department of the local authority who visited the tenancy of S and D to carry out an inspection. They were refused entry and subjected to verbal abuse by D.

 

31.  Number 2/8 of process is a report dated 24 May 2010 prepared by Caroline Barbour, Criminal Justice Team, Social Work Division, 6-8 Lodge Street, Haddington which contains a true and accurate account of her assessment that D presented as a high risk of re-offending.

 

32.  Number 2/9 of process is a report prepared by Kristy Chambers, Social Worker, The City of Edinburgh Council, and contains a true and accurate account of the initial risk assessment relating to D's sexual offending, his risk of re-conviction, risk of harm and an assessment of his suitability for offence - focused work following joint interviews by Kristy Chambers and Steve Harvey. The said report also contains a true and accurate account of what D said to the said Kristy Chambers during two interviews and the conclusion that D was assessed as being at a high risk of re-conviction.

 

33.  Although D admitted the sexual offence referred to earlier in Court, he has subsequently maintained his innocence of that charge until May 2010. He informed the Curator ad litem that he was not guilty of the charge when he was visited by the Curator in March 2010.In answers to this application which were lodged in May 2010, D maintained that he did not commit the offence. It was only a short time before the proof commenced that he authorised his solicitor to admit he committed the offence. As a result, no work has been possible by D's social worker to work with D to reduce his risk of re-offending.

 

34.  Both D and S and the grandparents would wish to maintain contact with L in the event of them not caring for him. The present carers, who are potential adopters, are not agreeable to face to face contact. They are prepared to agree to letter box contact providing they consider it to be in the interests of L for that to continue. That would involve D and S being written to and informed on a regular basis on the wellbeing and development of L and D and S providing information in return to the prospective adoptive parents which could then be given to L. It is important to L to know his true identity. Face to face contact by L with D and S would not be in the interest of L due to the difficulties with D's behaviour

 

 

Findings in Fact and in Law:-

 

1.                  Having regard to the need to safeguard and promote the health, development and welfare of the child and provide direction and guidance to, and control of the child, appropriate to his development, and legally represent the child, and regulate residence of the child throughout childhood, a Permanency Order should be made.

 

2.                  It is better for the child that the Order be made than it should not be

 

3.                  That the consent of S and D to the authority to adopt should be dispensed with as they have been unable satisfactorily to discharge their parental responsibilities or exercise their parental rights and are likely to be unable to do so and the need to safeguard and promote the welfare of the child throughout life requires this

 

4.                  That S and D should have the right to be provided by the petitioner with written information about the welfare and development of the child along with an up to date photograph of the child on each birthday of the child

 

5.                  The parental rights and responsibilities of S and D should be extinguished apart from a right to contact as above.

 

6.                  There being no need for compulsory measures of care the supervision order should be terminated.

 

Interlocutor

HADDINGTON 30TH JULY 2010

The Sheriff, therefore Grants the prayer of the Petition and Makes a Permanence Order in favour of the Petitioner under Section 80 of the Adoption and Children (Scotland) Act 2007, in relation to the child born 24 November 2008 with the following provisions:-

 

1.                  Vests the Petitioner

(a)    with the parental responsibility to provide guidance to the child in a manner appropriate to the stage of development of the child until the child reaches the age of 18 and;

(b)   with the parental right to regulate the child's residence until the child reaches the age of 16, all in terms of Section 81 of the Adoption and Children (Scotland) Act 2007;

 

2.                  Vests the Petitioner

(a)    with the parental responsibility to safeguard and promote the child's health, development and welfare, and to provide direction in a manner appropriate to the stage and development of the child and to act as the child's legal representative until the child reaches the age of 16; and

(b)   with the parental right to control direct or guide the child's upbringing in a manner appropriate to the stage of development of the child and to act as the child's legal representative until the child reaches the age of 16;

 

3.                  Extinguishes the parental rights and responsibilities held by the birth parents apart from as below

 

4.                  Allows contact on an annual basis on the child's birthday by the petitioner providing to the parents up to date written information about the development of the child together with an updated photograph of the child all in terms of Section 82 of the Adoption and Children (Scotland) Act 2007;

 

5.                  Dispenses with the consent of the birth parents, Grants authority for the child to be adopted all in terms of Section 83 of the Adoption and Children (Scotland) Act 2007; and

 

6.                  Revokes the Supervision requirement in respect of the child in terms of Section 89(1)(b) of the Adoption and Children (Scotland) Act 2007;

 

7.                  Makes no award of expenses due to or by either party.

SGD PETER GILLAM

Procedural History

 

This Petition was lodged on 10 February 2010. A Curator and Reporting Officer was appointed and his reports were lodged on 17^th March 2010. At the end of April2010, a report from the children's hearing under s.95 of the Adoption and Children (Scotland ) Act (hereinafter referred to as "the Act") was lodged together with a certificate of intimation to S and D. This was done with a view to the supervision requirement being varied to change the residence of L to reside with prospective adoptive parents. This was not opposed by D and S and no response lodged by them. L's case was referred to the Children's hearing in terms of s.96(3) of the Act. After sundry procedure the case proceeded to proof beginning on the 5 July 2010. Evidence was led over 8 days and submission were made by the parties' solicitors on 15 July 2010. Thereafter I took the case to Avizandum. Before issuing my judgment I put the case out by order to enable the petitioner to lodge a Minute of Amendment to specify exactly the parental rights and responsibilities and ancillary provisions being sought. This was not a matter of dispute between the parties and was not opposed. I was greatly assisted by the representatives of the parties who entered into two joint minutes agreeing uncontroversial facts. In addition affidavits were lodged from numerous witnesses. This considerably shortened the duration of the proof. Numerous social work records were lodged as productions. Evidence was led from ten witnesses led on behalf of the Petitioner. D gave evidence on his own behalf. S also gave evidence along with the grandparents.

 

NOTE

 

I have found this a difficult case to decide. L is perhaps fortunate in that he has been extremely well cared for throughout his short life; firstly by foster parents and then by prospective adoptive parents. He is perhaps unfortunate in that he has not been able to be cared for by his birth parents or his birth family. I find that to be a very sad situation. Before I express my views on the evidence which was led, I should perhaps outline the statutory framework which governs this Petition.

 

Statutory Provisions

 

This is an application by the local authority for a Permanence Order under Section 80 of the Adoption and Children (Scotland) Act 2007. Permanence Orders were created by this piece of legislation. The purpose was to create a statutory measure to provide for children for whom there was no reasonable prospect of a return home, and they were going to spend the rest of their childhood accommodated by the local authority, or candidates for adoption. In this case the Petitioner asked the Court to grant the Permanence Order consisting of the mandatory provision vesting the responsibility and right for guidance and residence in the local authority. In addition, ancillary provisions extinguishing the parental rights and responsibilities of the parents, and specifying any arrangement for contact, are also sought. Other ancillary provisions sought are the responsibility to provide direction and legal representation, together with a right to control and direct the child's upbringing and representation. In considering whether to make a permanence order with the above ancillary provisions, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.

Finally, the petitioner seeks an ancillary provision to include authority for the child to be adopted.

 

Section 83 (1) of the Act sets out the conditions which require to be met for a Permanence Order to include authority for the child to be adopted. The first condition is that the local authority has requested the Permanence Order include provision granting authority for the child to be adopted. (Section 83(1)(a)). The second condition is that the child has been, or is likely to be placed for adoption. (Section 83 (1)(b)). The third condition is that each parent or guardian either consents to the adoption or consent is dispensed with on one of the grounds mentioned in the Act. (Section 83 (1)(c)). Finally the fourth condition is that the Court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority. (Section 83(1) (d)).

 

When coming to a decision relating to the adoption of the child the Court has to have regard to Section 14(2) (3) and (4). These are as follows:-

 

Section 14(2) The Court or Adoption Agency must have regard to all the circumstances of the case.

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

(4) The Court or Adoption Agency must, so far as is reasonably practicable, have regard in particular to -

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

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

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

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

 

In addition, the Adoption Agency has obligations under Sub-Sections 5, 6 and 7 to obtain the views of the parents and guardians and other relatives of the child, to consider, before making arrangement for the adoption of a child whether adopting is likely best to meet the needs of the child or whether there is some better practical alternative. If the Agency conclude there is an alternative it must not make arrangements for the adoption of the child.

 

The grounds for dispensation of consent of the parents are contained in Section 83(2) of the Act. In this particular case the ground that is relied upon is contained in Sub-Section 3. This states that to dispense with the consent of the parent the Court must be of the opinion that the parents are unable satisfactorily to (i) discharge their parental responsibilities or (ii) exercise their parental rights and are likely to continue to be unable to do so.

 

If that ground of dispensation is not made out then the Court can dispense with the agreement of the parents if the welfare of the child otherwise requires the consent to be dispensed with.

 

Finally, Section 89 of the Act provides for the revocation of any supervision requirement

(1) Sub-Section (2) applies where -

(c)    a child in respect of whom a Permanence Order is to be made is subject to a supervision requirement, and (b) the appropriate Court is satisfied that were it to make a Permanence Order in respect of a child, compulsory measures of supervision in respect of the child would no longer be necessary.

(2) the Court must make an Order providing that on the making of a Permanence Order the supervision requirement ceases to have effect.

 

It will be seen therefore that essentially the court has three main decisions to make. The first is whether a permanence order with mandatory provisions should be made. In so doing the court must have regard to the need to promote and safeguard the welfare of L throughout his childhood.(s,84(4)) The same test applies in deciding any other ancillary provision, apart from authority to adopt.

The second decision is whether there are grounds to dispense with the agreement of D and S. (s.83 (2)). This is a question of fact as to whether these grounds exist.

The third decision only arises if the court has decided that grounds to dispense do exist. In that event S.14 comes into play. In that case the court must have regard to all the circumstances, in particular the circumstances mentioned in S.14, and must have regard to the need to safeguard and promote the welfare of L throughout his life, before making the decision to grant the ancillary provision relating to adoption.

Although the paramount consideration in decisions one and three are different, it follows that if a court makes a decision in number three(throughout life it will necessarily include a decision in number one (throughout childhood ) as childhood is part of life and cannot be separated from it.

 

The Petitioner's Submission

 

The Petitioner submitted that a permanency order should be granted with the mandatory and ancillary ppowers. In addition an ancillary authority to adopt should be granted and the consent of S and D should be dispensed with because they were unable satisfactorily to discharge their parental responsibilities and exercise parental rights and are likely to continue to be able to do so. Esto, if that was not the case then the welfare of the child required their consent to be dispensed with.

 

Mr Campbell, for the Petitioner relied principally on the evidence of the witnesses which he had led and the evidence about the behaviour of D. He submitted that the birth parents had brought about the present state of affairs as a result of their own actions and inactions. He relied upon the different things said at different times by D to social workers. He pointed out that the grandparents had been properly assessed as prospective carers. Their application had been rejected and the grandparents had chosen not to appeal that decision. He submitted that it was too late in the day to move L from his current placement. He submitted that there had been no improvement in D's behaviour. He also submitted that if there had been any improvement it was too little and too late.

 

Submission on behalf of S

 

Mrs Corsar for S submitted that there had been no criticism of S's behaviour. She conceded that S's behaviour between November 2008 and September 2009 when she failed to maintain contact with L was unsatisfactory. She relied upon the difficulties that she was experiencing at that time. She submitted that the Court should not find that parental rights and responsibilities had not been discharged and exercised satisfactorily, and the welfare of L should not require the court to dispense with the consent of S.

 

Submission on behalf of D

 

Mr Low submitted that the Permanence Order should not be granted and the authority to adopt should not be added. He submitted that the evidence suggested that D's behaviour had improved to such an extent that it was realistic to believe that D and S could care for L with the support of the grandparents. He submitted that the evidence relating to the lack of any recent conviction, his improvement in his accommodation situation, and the views of his parents that D had "settled down" are all indicators that D's behaviour had improved to the necessary extent.

 

Decision

As I stated earlier, this was not an easy decision to reach. The witnesses led by the Petitioner were believed by me as to what they said. They were mainly social work personnel. They obviously found D, and to a lesser extent S, difficult to deal with. I gained the impression that the distinct possibility, if not the likelihood of adoption, was very much in mind from the outset..,It is mentioned as a possibility when L was less than 6 months old. However, it had to be mentioned as a possibility so that D and S could be aware of it, in the hope they could work with the professionals in such a way that L would be cared for by his own family. Opportunity for that to happen was given to the parents. They failed to take that opportunity, resulting in the present situation.

Although I believed the evidence of the petitioner's witnesses, I did detect an emphasis on the negative as far as the birth family is concerned. In the same way, I believed the evidence of the grandparents. They had suffered a great deal as a result of Ds' behaviour, not least the possible loss of their grandson. Despite this, they still supported him. I found them to be impressive witnesses. However, in the same way that the petitioner's witnesses emphasised the negatives, I consider the grandparents were guilty of playing down the problems caused by D and his behaviour.

 

D and S, I found difficult to believe. I found instances when I thought they were not truthful. In particular, I did not accept that all the different sources of suspicion of an element of friction and likely violence in their relationship could be mistaken. Indeed, one witness did say that S had said to her that D had been violent to S. In addition, I do feel that S did try and obtain funds from social workers under false pretences. She was also very evasive also when questioned about D' behaviour and his previous conviction.

 

Although S had feelings for L, she failed to demonstrate any commitment to him. She failed to give him priority. She failed to attend meetings and contact. She made excuses which no committed mother would dream of making. She even "forgot" about an arranged meeting with the curator.

 

D, of course, denied his sexual offence until the dawn of the proof, despite having pled guilty .He even denied that he told the curator that he was "not guilty" He was also evasive about his convictions and behaviour when questioned. Having said that, I do feel that his situation and behaviour is better than it was. I think that his relationship with S has helped

 

. It is clear that S and D have not carried out satisfactorily their parental rights and responsibilities to date. They have failed to do so because of the difficulties caused by D's behaviour. Looming very large in the background is D's conviction on Indictment for a sexual offence with violence in 2008. He was sentenced to imprisonment for this offence. He was placed on the Sex Offenders Register. The risk assessment for this offence is that there is a very high risk of him re-offending Up until very recently, D showed no sign of accepting responsibility for this offence and no work has been able to be done with him to reduce the risk of re-offending. In addition to this of course there are various other convictions for crimes of disorder. He has failed to comply with Court Orders and has breached his Probation.

 

These factors alone would not of course preclude D from being a satisfactory parent. There are lots of satisfactory parents who have criminal convictions. They are able to carry out their parental rights and responsibilities. However, the practical effect of this conviction was to make it difficult for D and S to obtain suitable accommodation. Where they were living, in Dunbar, was completely unsatisfactory. The suggestion that S resides with D's parents and D reside elsewhere after L was born was scuppered by D's behaviour. He decided to leave his parents' home and persuaded S to go with him. This rendered them homeless. Measures to protect the child had to be taken once the child was born. Thereafter, D was precluded from contact, and S, for various reasons, including the death of her mother, failed to take up contact. She failed to form a relationship with L. She was aware of the need for her to find alternative accommodation without D in order to secure care of L. She failed to do this and decided that her relationship with D was more important than her relationship with L. This was a difficult choice for her However; it has had a profound effect upon her ability to satisfactorily carry out her parental rights and responsibilities in respect of L.

 

I have therefore reached the view that both S and D have failed to satisfactorily carry out their parental rights and duties. However, before the Court can dispense with the agreement of S and D the Court also requires to be satisfied that that situation is likely to continue. In that regard, it is clear that the cause of their failure to carry out their parental rights and responsibilities was D's behaviour. S and D maintained that D's behaviour had now improved to such an extent that they were now in a position to carry out their parental rights and responsibilities. They founded upon the lack of any recent convictions by D. The fact that they now had suitable accommodation. The fact that D's relations with his parents had improved. The fact that S's mother, who had a poor relationship with S had died and was no longer the dominant figure in her life.

 

I took into account all these factors. However, I am not satisfied that the improvement in D's behaviour is sufficient to enable him to carry out his parental rights and responsibilities satisfactorily. S's situation is tied in with D. Although they are separate, they are together and S decided at the time of the birth of L that her relationship with D was more important than any relationship with L. That is still the situation and to that extent, as long as S is with D, then she also in my view will be unable to carry out satisfactorily her parental rights and responsibilities.

 

The reasons that I do not accept that there are sufficient improvements in D's behaviour to suggest that he will be able to carry out satisfactorily his parental rights and responsibilities are as follows:-

Firstly, there is the past history of D's behaviour. No one can tell for sure what is to happen in the future. However, one of the most important indicators of what is likely to happen in the future is what has happened in the past. To that extent, D's history of having to be accommodated in residential schools from the age of 10 to 16, coupled with his criminal activity thereafter is a strong factor. Secondly, there is the behaviour of D at the latter stages of 2008 until 2009 and in 2010. This necessitated in his parents taking out an interdict against him, the local authority obtaining an Interdict Order against him, and the Anti-Social Behaviour procedure being initiated to an advanced stage against him.

 

Furthermore, there is the lack of acceptance, until very recently, by D, of the serious criminal offence to which he pled guilty. In my view, there are still behavioural difficulties with D which will preclude him from carrying out his parental rights and responsibilities.

I took into account the evidence of the grandparents that D's behaviour had improved. After all they know him better than anyone else, and they are in a good position to state that view. However, for the reasons I have stated above I am not satisfied that the difficulties caused by D's behaviour are lesser to such an extent as would enable D and S to carry out their parental rights and responsibilities with or without the assistance of the grandparents.

 

The grandparents were genuine in their desire to support D and S. However, they were of the view that D and S could not look after L at the present time. Their suggestion was that L came to stay with them and after a time D and S could look after L on their own with the assistance of the grandparents. In my view that is unrealistic. The grandparents have had difficulties with D throughout his life. They were unable to cope with him which resulted with him being placed in residential care. His behaviour necessitated them taking out interdict proceedings against him. His behaviour caused health problems for the grandmother. His behaviour put a strain on the relationship between the grandparents. As the grandfather stated, D was "always in your face". "He has a temper and at times he blows".

 

The difficulty that I foresee is that if L were to be placed with the grandparents then there would be a substantial risk of conflict between the grandparents and D and S. If that likelihood occurred, then D would not be able to control his behaviour. Life would become extremely difficult for the grandparents. This would have a detrimental effect upon the health of the grandmother. This in turn would cause difficulties for L being cared for by his own family. In my view, that is a high probability, considering the difficulties caused by D's past behaviour. I do not consider that that is an acceptable risk as far as L is concerned. To take such a risk with L would not promote and safeguard the welfare of L throughout his life.

 

In so doing, I recognised that if L is adopted, he will probably lose his connections with his birth family throughout his childhood. This is a big loss to any child. However, it is a sad and unfortunate consequence of what has happened during D's short life and the risk to his welfare in the future.

 

I have therefore decided to add an ancillary provision to the Permanence Order to grant authority to adopt. In so doing I have regard to the value of a stable family unit in L's development. In my view, this has not been achieved and it is unlikely to be achieved with his natural family. I have had regard to the paramount consideration of the need to safeguard and promote the welfare of L throughout his life. I have also considered the likely effect on L, throughout his life of the making of an Adoption Order and the other factors mentioned in Section 14 of the Act.

 

Having reached this decision, it follows that I have decided that the need to promote and safeguard the welfare of L throughout his childhood is met by a permanence order with the mandatory provisions should be made as life necessarily includes childhood. This also applies to the other ancillary provisions that I have made.

 

If I were to be mistaken in my view that D and S have failed to carry out their parental rights and responsibilities and are likely to be unable to do so satisfactorily in the future then I would still be of the view that the welfare of L required the consent of D and S to be dispensed with. The reasons for that view are outlined above.

 

I appreciate that this is a very difficult decision for the birth family to accept. It is not one that I have reached without a great deal of deliberation. I sympathise with their situation. However, I am firm in the view that the need to promote and safeguard the welfare of L requires an Adoption Order to be made that it why I have decided to grant this authority to the local authority.

 

In so doing, I have not done so on the basis that this is "a better bet". I appreciate the test for granting authority for an Adoption Order is not based on the better of two alternatives. The decision is based on a requirement which in my view necessitates authority for adoption being granted. In the light of my decision to grant the Permanence Order I consider that there is no longer any need for compulsory measures of care. In these circumstances I have revoked the supervision requirement in terms of Section 89 of the Act where it states that I must revoke such requirement if I am so satisfied.

 

I have also included a condition that the parents should be provided with information and an up to date photograph on an annual basis.. The purpose of this is twofold. Firstly, I would hope the adopters would inform L of his background and identity as and when they feel it is right for him to be told .I would hope the parents will feel able to reply on an annual basis to provide information, so that in the fullness of time, if he so wishes, L will be able to make contact with them. Secondly, although it might evoke painful memories, it might give some comfort and reassurance to D and S and the grandparents about the welfare of L

 

I shall also extinguish the parental rights and responsibilities of D and S apart from the right to contact as indicated above..

 

All parties were agreed that there should be no award of expenses due to or by any party.

 

SGD PETER GILLAM

Sheriff of Lothian and Borders at Haddington