Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

B2/22/08

FREEING ORDER   of   SHERIFF K A McLERNAN   in causa   ABERDEEN CITY COUNCIL   Petitioners   against   HD   Respondent     _____________________

 

 

 

 

 

ABERDEEN, 14 September 2010.

 

The Sheriff, having resumed consideration of the cause, makes the following findings in fact:-

 

 

(1) The Petitioners are Aberdeen City Council. They are an adoption agency for the purposes of the Adoption (Scotland) Act 1978 and they seek a freeing order in respect of L who was born on 18 February 2002. The Respondent is the 49 year old mother of L and is hereinafter referred to as HD.

 

(2) L is the youngest child of the three children which HD has had. The oldest is KD born, 7^th August 1985 and the middle child is KYD, born 7^th March 1984.

 

(3) The social work department of Aberdeen City Council have been involved in assisting HD episodically since 1985. From 1985 to 2010, HD has been regarded as suffering from learning difficulties and the assistance given to her has been tailored to take account of that condition.

 

(4) HD has had co-habitational relationships with a number of different men, the most recent of which is GS and he is the father of L. GS does not hold parental responsibilities in relation to L, has not had any recent contact with L, and although he has acknowledged paternity it is highly unlikely that he would be granted an order in terms of Section 11 of the Children (Scotland) Act 1995 in relation to L. The co-habitational relationship ceased before L was born.

 

(5) HD had from time to time difficulty in looking after the two older children. When KD was aged about 11 there was a referral to a Children's Hearing and thereafter both KD and KYD spent periods of care in foster homes. At a time when both older children were accommodated in foster homes, HD became involved with GS in a relationship which was volatile, intimate and abusive of her.

 

(6) At the time L was born, HD remained insecure about her capacity to cope and sought the assistance of GS as well as the social work department. As the hospital staff in the hospital where L was born had no concerns about her capacity to care for the baby she was discharged home and the social work department provided an intensive package of support to assist HD.

 

(7) In the first few months of her life, L returned to hospital on three occasions due to illness arising from milk intolerance, whooping cough and gastroenteritis.

 

(8) HD continued to look for assistance in bringing up L and allowed others to look after the child from time to time and in the first four years of her life she spent two periods of approximately three months being looked after by members of the extended family. During this period HD had considerable difficulty in coping with the effects of with KD` s behaviour. He had by then ceased to be in foster care and he had returned home. When L was two years old, KY also returned to live with her mother. There were frequent disagreements between HD and KYD which were upsetting for HD. As L was exposed to these expositions of mutually aggressive behaviour, HD was advised to keep KYD out of the home. She did so although she found it difficult to do that. Nevertheless, HD generally complied with the instructions from the social work department who were seeking to counsel HD about protecting L from the unhelpful influences of KD and KYD.

 

(9) Having assured social work department that she would keep KYD out of house she was then confronted one evening by KYD who complained she was homeless, had nowhere to go and HD admitted her back to the home. Thereafter episodic altercations resumed between mother and daughter. In the course of one argument the youngest child L came into contact with the foot of KYD. There was little information on the detail of that contact but inference can be drawn from the fact that HD reported to the social worker that she felt unable to protect L from the episodic, uncontrolled behaviour of KYD.

 

 

(10) By 2006,HD, KYD, and L each had a social worker. When the Social Work department found out that KYD was back in residence which fact had not been disclosed by HD to her own or to L`s social worker these social workers felt that HD had not disclosed a material piece of information to them. The social worker for KYD, then sought to find alternative accommodation for KYD.

 

(11) In April 2006, Olwyn Soulsby was allocated as a social worker to L. In about March 2006, there had come to light an allegation that L's father had touched her inappropriately. KYD had been angry at that and had used the video facility on her mobile phone to record what L had to say. KYD was also instructing L to use offensive, vulgar sounds and foul language. The existence of the video and the complaint was conveyed to the social work department by HD and a formal inquiry ensued. No proceedings were taken but report was made to the Children's Hearing who were keeping L under supervision.

 

(12) In a meeting in June 2006 the Children's panel were informed by the Social Work department of the volatile and occasionally violent relationship between HD and KYD to which L was exposed, and of the allegation against GS and recommendation was made that L be taken into care by means of a place of safety order. The Children's panel did not follow that recommendation.

 

(13) Olwyn Soulsby continued to work for L and necessarily was much involved with HD in giving advice for the benefit of L. HD was co-operating with the Social work department and appeared willing to accept advice. HD was prone to phone the Social Work department frequently to air her perceived emotional difficulties. Her fluctuating emotional state, her continuing expressed dependence on KYD for help with L, and her disputes with KYD remained a concern for Olwyn Soulsby. She had become aware of the concerns that HD had about KYD`s behaviour viz. in inviting male guests home, getting drunk and then indulging in high tempered arguments with her mother. In July 2006 the Department held a Child Protection case conference and concluded that L should be taken into care.

 

(14) By September 2006 Olwyn Soulsby was still sufficiently reassured by the protestations of HD that she could make progress that she recommended that L could continue to stay with HD.

 

(15) Olwyn Soulsby however was not discouraged by the seeming failure of HD to find solutions by herself to the emotional and practical relationship and household difficulties which beset HD. HD gradually became overwhelmed by the responsibility of protecting and controlling her 17 year old daughter and of protecting her 3 year old daughter from being influenced by the behaviour of the older child.

 

(16)           HD wished to have the help of the social work department in dealing with the outrageous behaviour of KYD but she did not wish her out of the house contrary to the department's advice as she depended upon KYD, both for emotional support for her and practical support in assisting with L.

 

(17)           By December 2006 after another incident with KYD, HD phoned the department and asked if they could help again as she felt unable to protect L from KYD's behaviour. At no stage has there ever been any suggestion that KYD was ever malevolent towards L or antagonistic towards her bar the possible inference from one incident when there was contact between the foot of KYD and the body of L.

 

(18)                The department agreed to look after L and then set in train the usual procedures for assessment of what had to be done for a child they regarded as abandoned to their care. On the other hand HD considered that the response of help she had got to her request was that L would be looked after for a short time until the unpredictable and violently expressed frustrations of KYD could be dealt with by finding accommodation elsewhere for KYD, and then L would be returned to her.

 

(19)           By February 2007 Olwyn Soulsby at a further departmental review retained the view that L could be expected to go home again if HD could demonstrate evidence of being able to cope with the practical and emotional problems which had bedevilled 2006.

 

(20)           Despite the problems of 2006 L was showing a remarkable resilience to what were perceived by others to be harmful influences. The only reference which the child made to what she had been exposed to was a comment, in reply to a probing question, about "bad things". Otherwise she seemed unaffected. This was explained by her having a capacity to compartmentalise areas of her life. A school report in October 2006 described her as a friendly and thoughtful child who had already formed many positive relationships with her peers, who recognises "the golden rules and takes responsibility for her own actions". The relationship between HD and the school appeared good.

 

(21)                By January 2007 the whole dynamic of the HD household had changed. KD was in prison and KYD was now in her own house. HD expected L would return and she could continue to look after her undistracted by the influences of KD and KYD.

 

(22) HD appeared to accept that she had not managed the care of KD and KYD as well as she could and wished the opportunity to do better with L. L's social worker was continuing to recommend that L be returned to her mother's care notwithstanding the mutual distrust between the social work department and HD but on being invited by her superiors to view the history of HD's care of KD and KYD, Olwyn Soulsby recognised repeat patterns of behaviour and came to the conclusion that L could not be protected from the effects of the emotional volatility of HD which rendered HD episodically incapable of attending to the emotional needs of L. From the perspective of the history she thought she observed no change in the capacity of HD to manage herself and her children effectively. She then expressed the view that the influence on L of that emotional fragility of HD combined with a persistent failure of HD to take practical responsibility herself would not be in the best interests of L. By that stage Olwyn Soulsby was becoming discouraged by the continuing need for assistance.

 

(23) In April 2007 at the Children's Hearing having perused the revised report from Olwyn Soulsby were persuaded that it would be appropriate to make different provision for L's future and reduced the contact between L and HD from three times per week to once per week. That contact was further reduced in November. The decision to reduce contact was taken in the knowledge that "L appears to have a warm and affectionate relationship with her mother and sister".

 

(24) L was placed in a foster home and established good relationships with the foster parents and their family and was subsequently placed for adoption with LB who is a single, 41 year old chartered accountant living alone. LB provides a stable, encouraging and supportive home for L who is responding well to the love and care she receives in that environment.

 

(25) L has continued, despite her two placements in different families, to express love and concern for HD, her natural mother. Until the middle of 2010, L has consistently expressed a wish to return to the care of her mother.

 

(26) HD has maintained a constant wish to have her child back living with her. She has co-operated with the social work department but, has on occasion against the instruction of the social work department, expressed her concern to have L back with her in inappropriate terms which terms would be likely to be upsetting for the child.

 

(27) The extent of the attachment between child and mother in particular has been investigated by an independent social worker and two professional psychologists, Mr Barry Fry and Professor Furnell.

 

(28) The unanimous view of the expert evidence is that there is a very strong bond between natural mother and child and severing of that could have disastrous consequences for the child.

 

(29) HD refuses to consent to adoption of her child L. It is not proved that her withholding of consent to adoption is unreasonable.

 

(30) HD has exhibited over many years an emotional volatility which interfered from time to time with her capacity to meet the practical and emotional needs of her children. In respect of L it is not proved she has persistently failed to discharge her parental responsibility. Accordingly refuses to find that the consent of HD should be dispensed with and therefore refuses the crave of the Petition.

 

 

NOTE:

[1] While the procedures in this case have extended far longer than anyone would have anticipated initially and have on occasion been stressful, these stresses are slight compared to those to which mother and daughter have been continually subjected since 2006. The state of uncertainty which has been so upsetting for mother and daughter has now subsisted since December 2006. Evidence has ranged over a wide range of factors touching inevitably on some areas which are not resolvable by decision of this court. It may be helpful therefore if I set out the legal framework on which a decision has to be based and thus focus on the relevant findings in fact and conclusions.

 

[2] The Petitioners seek an order declaring the child L free for adoption as provided for in Section 18(1) of the 1978 Act. A freeing order can only be made if one or other of the two conditions set out in Section 16(2) of the Act can be established by the evidence. If neither is made out no further consideration is required. If one is made out, the court has to decide if, in all the circumstances, it is appropriate to make a freeing order taking into account the terms of Section 6 of the Act which enjoins the court to keep the need to safeguard and promote the welfare of the child throughout its life as a paramount consideration.

 

[3] Furthermore, no order can be made unless the child has been placed for adoption. In this case the child has been so placed.

 

[4] What the Applicants therefore seek to establish in the first place is that both conditions of Section 16(2) are satisfied.

 

[5] The Petitioners do not have the consent of the natural mother and accordingly the Petitioners seek to have the consent of that parent dispensed with. That dispensing is only available if the court is satisfied that the parent HD is withholding agreement unreasonably or that the parent has persistently failed without reasonable cause to fulfil the parental responsibility to safeguard and promote the child's health, development and welfare.

 

[6] Much of the evidence in this case was focussed on what is in the best interests of the child in the current circumstances but the court, in my view, cannot adopt that approach. The court requires first of all to apply the Act and focus first on the mother's behaviour in order to determine whether or not the consent of the mother should be dispensed with. The primary source of evidence in this case was that of Mrs Olwyn Soulsby, the social worker allocated to L in April 2006. She thus has direct knowledge of the child and her mother only from that date but has indirect knowledge from her reading of social work reports prior to that. Within her department, however, there were social workers senior to her who had experience of working with HD in the past and were aware of the upbringing afforded by HD to two prior children.

 

[7] Mrs Soulsby, unlike her superiors was late into social work and had limited experience within the department. She was employed part-time. Her approach was to assess for herself the personality before her and with whom she was necessarily dealing.

 

[8] As will become apparent, her approach was modified by the clear inference to her in at least one communication from her superiors that she should revise a report and look more carefully at the history of HD.

 

[9] "The most accurate predictor of future behaviour is past behaviour." This is a well known principle derived from reliable research applied by those who require to make decisions affecting the future of other persons. However, it is not the only tool available and stated simplistically, which it usually is, it ignores the other aspects of personality which may have a very strong bearing on future behaviour.

 

[10] What becomes prominent when looking at past behaviour is departure from convention or expected behaviour. What is not prominent, is the reasons for or explanation for these deviations from expectation. Unless these deviations are explained or at least understood it is not logical to conclude that past errors will be repeated or past perceived inadequacy will continue.

 

[11] While it may be perfectly reasonable to invite Mrs Soulsby to take a longer view, it is not reasonable to invite her to take a superficial view based on the foregoing mantra. It was quite clear in the evidence that her superiors had taken a view that HD "is a chancer" and was an opportunist who would seek to manipulate to gain advantage from every source of benefit which she could find.

 

[12] In these circumstances, it was a reasonable conclusion that an established habit of depending upon the social work department will be difficult to break. The fact that HD was always regarded as suffering from learning disabilities exacerbated that problem.

 

[13] It was a reasonable conclusion that a long-standing emotional need for loving from her children would be likely to continue.

 

[14] It was also a reasonable response for a social work department to wish to avoid requiring a continuing liability if it could be reasonably avoided. It seemed to me in assessing the evidence of Mrs Soulsby and her immediate superiors that she was induced to believe that her judgment may have been faulty because it is based on her recent observation and therefore on too short a perspective. Mrs Soulsby was well aware of the professional disagreement and took the initiative in calling together a group of professionals to discuss the issue.

 

[15] Having complied with the suggestion that she re-assess her view from a longer perspective she did in fact change her mind. She justified that to herself by noting her inexperience relative to the experience of her superiors. That is quite understandable. However, her preliminary view was the product of current observation. The view of those who did not agree with her was noticeable by the fact that it was older or indeed not informed by any direct or recent contact with HD. When such conflicts arise it is of great assistance to the court to know not just the opinions expressed but the facts on which an opinion is based. While on the one hand it is a perfectly reasonable system to use the experience of a social worker of long practice to review reports and spot inconsistency or gaps in the arguments leading to the conclusion of the report. It is quite a different matter to start with a conclusion and seek to find facts which could on paper provide a valid basis for that conclusion. One of the real difficulties in this case is establishing the facts on which opinion conclusion by social workers is based. There is in fact no record of facts apart from some isolated notes. The facts are contained in reports which contain conclusions and recommendations. In the absence of contemporaneous records, it is therefore very difficult to know what facts are relied on to reach conclusions. The facts which justify conclusions can be a cherry picking exercise taking facts out of context and thus making it impossible to allocate relative importance to these facts.

 

[16] It was clear that the systems desiderated within the department for gathering and recording facts were not followed consistently. Although there appeared to be recognition of the desirability of maintaining records of visits it would appear that sheer pressure of the number of cases in the case load allocated to Mrs Soulsby made it almost impossible to keep accurate records of fact and separate record of contemporaneous comment on the facts recorded. Contemporaneous opinion is of considerable importance but so is the record of facts from which conclusions are said to be drawn in subsequent reports sometimes prepared weeks later. The supervisory staff in the department appear to accept that all necessary facts are narrated in the reports and they seem to be satisfied that that was all that was required.

 

[17] In cases of this sort, decisions of life changing importance are of great significance not just to the individual concerned but to the nature of the involvement in the state in personal family matters. Statute empowers and enjoins involvement of the state but such powers to impinge an individual freedoms must be construed with great care.

 

[18] Decisions of life changing importance are necessarily based on facts observed by social workers and opinions formed by social workers. The basis for these opinions must be discernible and open to challenge. Where the opinions and facts are combined in one document produced much later than the occurrence of the facts its almost impossible to know if an opinion formed early is being justified by selected facts or the opinion is formed after objective analysis of a collection of the facts. This is not a satisfactory basis for such important life changing decisions.

 

[19] Nine witnesses led by the Petitioners of whom four were social workers, one was an independent social worker, one was a general practitioner and one a professional psychologist. In addition, the two foster carers for L were called.

 

[20] The defender called two further expert witnesses, one a retired psychiatrist Dr. Olley who continues in practice in a counselling capacity and the other Professor Furnell, a psychologist. All the experts had to speculate on what the effect may be on the child in the event of adoption.

 

[21] There are, in effect, three pathways to the future for this child. The first is to continue with the placement with LB and be adopted with very limited contact with the natural parent. The second is to continue with the placement without adoption but with more frequent contact with the natural mother. And the third is the separation from the current carer and returned to mother's care. The department decided and recommended in mid 2006 that the last pathway should not be followed and since then attention has been focussed on the consequences of the decision to try to increase the degree of separation between mother and child.

 

[22] Expert opinion is divided and in the case of Barry Fry his opinion has changed on the desirability of the third pathway. I do not refer to the change of mind as in any way a criticism. It is simply a reaction to the changes which Mr Fry perceived in the child's behaviour and needs following three meetings with the child over a period of six months.

 

[23] If the decision in this case was simply to decide what is in the best interests of the child the court would require to find a way of reconciling the seemingly conflicting expert evidence but that's not the primary task as a court in this case. Much of the evidence does not assist the court in answering the first essential question which is whether the parent's agreement to adoption is being unreasonably withheld. The court requires to avoid the temptation to presume itself to be a reasonable parent and apply its own view of what is reasonable. What the court has to do is recognise that there is perhaps no one answer which is the right answer. Many very reasonable parents have widely different views on what is good for their children and what is not. What the court has to do is identify actions, behaviour, attitudes which no reasonable parent would regard as reasonable. In order to reach that judgment the court has to make certain assumptions. For example, (a) that the parent loves the child or the parent wishes to behave in such a way as would be consistent with loving a child; (b) that the parent intends to promote the best interests of the child in the parent's view. If the facts do not justify these assumptions then it becomes much more difficult for a parent to be regarded as a reasonable parent. If the facts do justify these assumptions, however, the court then has to use its own experience to assess whether the behaviour or attitudes displayed are within the range of actions which a reasonable parent could or would be likely to have.

 

[24] In this case, I have not the slightest doubt that the parent has a manipulative and dependent personality. She has, over many years, seen the availability of the social work department as a source of emotional and practical help. She has also, in my view, sensed the exasperation with which that help was sometimes delivered. She was therefore selective in what she communicated to the social work department. When she sought only respite in December 2006, in my view she was simply continuing the pattern of dependent behaviour and expected that L would be returned to her as soon as KYD was out of the household and not causing such friction in the house as she felt was not good for little L.

 

[25] It is quite apparent that HD now feels that she has been cheated out of her child by a duplicitous social work department. She has been supported in that view by a number of persons. Most notably Dr. Olley gave evidence that he considered that the social work department were wrong to do what they did and had misled her. Dr. Olley was led as a witness for the Respondent. Dr. Olley was referred to, on numerous occasions, by witnesses for the Applicant. My impression was that the views of Dr. Olley were dismissed as without any weight. It was with some surprise therefore to find Dr Olley to be a vigorous, alert and very experienced psychiatrist with a strong sense of public duty sufficient to keep him practising as a counsellor at the age of eighty. Dr. Olley's criticism, although mildly expressed, appears to have generated an antagonism towards him from the social work department which is quite without merit. This is most unfortunate since one would have thought that Dr. Olley was precisely the kind of figure offering voluntarily a service from a very long established expertise which a public service with limited experience and limited funds should be seeking to use not to discredit as unreliable and untrustworthy because he articulates a criticism. Dr. Olley confirmed that it was his view that the social work department had been wrong in their decision to take the opportunity presented in December 2006 to remove L from HD's care and set in train a process of transferring care elsewhere. On that background, the court has to consider what a reasonable parent would do.

 

[26] In the light of the evidence before me I was quite satisfied that if HD had believed that she was not being offered temporary respite care she would never have allowed L to be taken into care. I can fully understand how HD, seeing that the older daughter who had reinvaded her home and was obstreperous, could be a poor influence on L. and was so demanding for attention from HD that HD was distracted from looking after L. I can fully understand that HD who had by then become so accustomed to the social work department helping her out thought they would do so again. It was a reasonable anticipation that she could then say to the older girl "look what you have done" by continuing to behave in a way that she and social workers had been trying to prevent. In my view HD recognised that even if no harm came to L and there was no evidence that she suffered any harm notwithstanding her exposure to some events that a reasonable parent would wish to avoid their children being exposed to there would be a perception by the social work department that she was "disobeying" instructions and harm might accrue. There was no evidence at all to suggest that there was anything other than love and caring directed towards L both by HD and KYD.

 

[27] The incident of kicking was used by the social work department as an example of the danger to which the child was exposed. The fact that there was no enquiry into the nature of the contact is redolent of a convenient fact being used to justify a preferred conclusion. In my view, the significance of this kick, if it was a kick, was exaggerated. It was not misunderstood because there was no attempt to understand the significance of the foot contact. There is no reliable evidence that this was an incidence of malevolence or reckless indifference to the welfare of the child.

 

[28] It is a little difficult to understand why there was no analysis of the incident if it was going to be founded on as n indicator of lack of care. It would be important to know if the child felt that she had been harmed or she regarded the incident as just one of the innumerable bumps and bruises sustained in normal family life between siblings. If that was correct then reassurance of the child would be all that would be required for the child. If that was not correct, then an assessment would require to be made about the likelihood of recurrence. What this mother is being criticised for is for not attributing to this incident a significance far beyond anything which could reasonably be inferred from the facts before me. Accordingly, it seems to me that a reasonable parent would be likely to say that the social work department are stating grounds for not returning my child which are unfair and unreasonable and I am being quite reasonable in refusing to consent to my child being taken away from me.

 

[29] There is another aspect which requires to be considered by any reasonable parent and that is the comparison between the upbringing that the parent can offer and the upbringing that is available in a different household in which there is patently far more money and far more stimulation, educationally for the child. It will often be the case that an objective view of the economic circumstances of the parent's own household compared with the household of someone who does earn and will earn far more than the parent and will use that economic advantage to benefit the child will reach a conclusion that the child would be economically better off in that other household. That conclusion, however, is based on an assessment of economic, perhaps educational advantage to the child. It takes no account of the emotional development of the child. It would seem to me that a reasonable parent will recognise a mutuality in the love between mother and daughter and a mutual dependence on that love. In this case what is so significant is that this child has been, from time to time, greatly distressed at the separation from mother and has despite everything done to reduce contact with mother and to integrate the child into other households has always maintained a wish to return to mother. The basis for that is not entirely clear. But the expert opinion is unanimous that there is a very strong bond of attachment between mother and child. A reasonable parent will recognise that either instinctively or by the observations of the behaviour of the child. In my view a reasonable parent will prefer in most cases to give greater weight to emotional security than financial security for their young child.

 

[30] Mrs Soulsby, in particular, took the view that the child was excessively concerned about mother. The child was even, at her tender years, aware of mother's vulnerability and did not want her mother to feel upset at all. This expression of concern for mother was seen as a harmful feature of the relationship between mother and child. The expert evidence of both Barry Fry and Professor Furnell was to the effect that the breaking of the attachment, disclosed by the mutuality of concern, would be harmful to the child although the peculiar and unique resilience of this child may well mitigate the effects for this child. However, a reasonable parent is not necessarily an expert. What a reasonable parent will do is recognise the expressed wishes of the child to return to mother and will interpret that correctly as a strong, emotional attachment to mother which continues despite the stresses for the child in the mother's household. It is a matter of degree but I did not find any facts which persuaded me that the child's concern for mother was obsessive or an unnatural distortion of the child's emotional development.

 

[31] I cannot come to the conclusion that in this case the parent is being unreasonable in withholding consent. In reaching that conclusion, I am aware that I do take into account some of the same evidence as would be taken into account in what would promote the health, development and welfare of the child in the future but this decision is based on my perception of what a reasonable parent acting objectively would do in all the circumstances of this case.

 

[32] The grounds mentioned in Section 16(2)(b) are not established.

I now turn to consider Section 16(2)(c) and have to decide if this parent has persistently failed without reasonable cause to safeguard and promote the child's health, development and welfare or during the period when the child was not with her has failed to discharge the responsibility of maintaining personal relations and direct contact with the child on a regular basis.

 

[33] It is trite law to state that the failure in either subsection must not be a temporary or transient one or has effects which are temporary or transient. There are essentially two possible approaches in this case to persistent failure. The first is to recognise the limited intellectual capacity combined with a personality disorder which (a) demanded emotional support from all her children and (b) relied on support from state agencies if possible and (c) relied on support from anyone else who would provide it and conclude that this parent could never provide adequately for her child and thus not pass the statutory test. To consider that approach it would seem to me, is a not unreasonable activity to be adopted by the Petitioners. However the petitioners would require to show not just the limitations on the mother but the effect, the harmful effect, on the child.

 

[34] The second approach is to consider whether a series of incidents have occurred which demonstrate an incurable capacity to protect the child from the normal vicissitudes of ordinary life.

 

[35] There are many cases where a parent effectively abandons the child either for short periods while she is under a disabling influence or places the child in the care of others while the parent is otherwise engaged for long periods. This is nowhere near such a case. There is no doubt that the parenting of both KD and KYD can be criticised by the parent's inability to impose effective boundaries upon both children which allowed them to behave in ways that were on any reasonably objective basis unacceptable in a civilised society. I have no doubt that the senior supervisors of Olwyn Soulsby were quite correct to invite her to take a longer view of how mother had behaved during the upbringing of KD and KYD. It was certainly the case that in the very early part of L`s life she was cared for by other family members for a few months. On these occasions HD was unable or unwilling to accept her maternal duty. I am not persuaded that these incidents demonstrate that the same failings as were apparent in the upbringing of KD and KYD will be visited upon L. L appears to be a quite different child and the stresses that were on HD when she was bringing up KD and KYD are no longer present. She no longer associates with men who abuse her. As Doctor Olley puts it, that phase of her life is over. In my view, Olwyn Soulsby was correct to analyse what she saw in front of her and to recognise that with appropriate support HD could continue to bring up L within a range of environments that may be regarded as acceptable to safeguard and promote the child's health, development and welfare. The fact that there might be another household that can safeguard and promote the child's health, development and welfare more fully is irrelevant. What does matter in this context is whether there has been a persistent failure not a persistent demand for help. The fact that HD is in the habit of constantly seeking help does not mean that she is persistently failing in parental duty.

 

[36] It is in school where disturbance of a child is most usually first noticed. Yet the school reports from October 2006 do not show any emotional difficulty and the relationship between HD and the school is recorded as good.

 

[37] What is so remarkable in the evidence is the apparent capacity of this child to withstand what the social work department seem to regard as beyond toleration. There was a clear impression that the expectation of the social work department was of a somewhat utopian ideal that a child should have a carefree childhood and not be concerned for her family and in particular her mother. The fact that the child does express concern is not to my mind an indication that the mother is failing the child. It may well be that this child will have a capacity, which other children will not, of being concerned for mother and siblings.

While I fully accept that the child may now, in the middle of 2010, have expressed a wish to remain with her present carer and prospective adopter, the reasons for that are not at all clear to me. It is not clear whether she has simply given up fighting against the overpowering influence that has placed her in her current environment or is she now so distracted by the undoubtedly higher standard of living offered by the alternative single parent that she wishes that to continue or is she just fed up with all the uncertainty and sees the easiest way to bring it to an end is to co-operate with the majority view and sit tight where she is. The expert witnesses are not agreed on what is the best pathway for this child.

 

[38] There is, in my mind, no doubt that HD has on occasion failed to promote the health, development and welfare of L by allowing her emotions overwhelm her and allowed L to see her losing control of herself especially when she is in dispute with KYD. There is no doubt that incapacity to keep her emotions under control has been a persistent feature of her life and it would seem to me to be a reasonable conclusion that there will be a risk of her behaving in the same way if she comes under similar stresses to those that she has experienced in the past. There is a foreseeable risk of potential upset for the child. But the circumstances of HD have changed greatly to reduce that risk. In my view persistent failure to safeguard and promote the child`s health development and welfare is not established by proving the existence of a continuing but reduced risk. I t is a matter of degree but in my view there has been episodic failure to discharge her responsibility as a parent There has been persistent failure to learn how to avoid being dependent on other people and social care services. In my view, this does not amount to persistent failure to safeguard and promote the child's health, development and welfare. Since the child has been taken into care the relationship has been distorted by the restrictions imposed on the mother. Despite these restrictions the strong bond of attachment remains. I am not satisfied that the statutory test has been established.

 

[39] Had I come to the view that either of the grounds in Section 16(2)(b) and (c) had been established I would then have gone on to consider whether or not a freeing order should be made. A mother failing to recover her daughter or a mother consenting to her daughter being cared for has effects on her and also on the child. The mother would be likely to feel that the circumstances disclose that she has in fact abandoned the child. In this case that feeling would be amplified by the view expressed to her of the perception by a highly qualified and very experienced psychiatrist that she was dealt with unfairly and deceitfully. There could be significant consequences for mother, the effect of which would become known to the child.

 

[40] The circumstances of the separation will become known to the child within a very few years if they are not known already. She is already aware of the significance of adoption to a material extent. It is highly likely that she is aware that adoption is to secure not just a temporary benefit but a benefit that will endure for the rest of her life. What is not at all clear is whether she will share her mother's view that she has been cheated out of being cared for by her mother and of the opportunity of caring for mother. Will she regard herself as, in the circumstances, an abandoned child? Will that loss outweigh the material advantage she now sees is available to her from the proposed adopter? She is clearly aware of the conflict already, in that she is reported as commenting "that mum should be happy that I am happy." But that is a very thin basis on which to base a decision which has very significant emotional consequences for mother and possibly also for the child.

 

[41] There is another aspect to this on which there is very little information. The proposed adopter is a single parent. There is nothing to indicate the likelihood of any change in that status. The child is not moving into a nuclear family environment. She will be moving from one single parent to another, albeit one with far more financial resources, much more emotional stability and probably a wider educational experience. It is very difficult to predict what the future holds if the child were to be returned to her mother's care. It has to be borne in mind that the two greatest sources of upset to mother in the past, namely the violent criminal behaviour of KD and the needy demands of attention from KYD expressed in wild, uncontrolled behaviour are now gone.

 

[42] The social work department have taken a view that it is obvious that the child is better off where she is in that she has economic, emotional and educational stability. They might be right, they might not be. There is a real risk, however, in applying that simplistic view. This child is not an animated condensation of social theory. She is a real child with a highly unusual capacity to protect herself from possible emotional harm and to be considerate of other family members and in particular her mother.

 

[43] The consistency with which the child has maintained a wish to return to mother is remarkable. That is particularly so when the distractions of the new surroundings and the influence of another loving figure who can provide materially very much better than mother are apparent to her.

 

[44] The consistency of the mother in seeking to have the child returned home has been a constant irritation to the social work department. They say she is being unrealistic.

 

[45] There is little basis for reaching any conclusion about the degree of commitment of the adoptive mother if her financial circumstances were to change for the worse or her personal social circumstances were to alter. More importantly, there is no basis other than speculation for the view that L would take of the degree of the commitment of the adoptive mother. This is such an unusually aware child who is accustomed to being interviewed. It would be astonishing if she had not learned to read people and situations well. If she were to be regarding the adoptive mother as a substitute imposed upon her against her will she may well tolerate that or even express herself lovingly in that new relationship but there is ample evidence that she will not forget her loving relationship with or attachment to her natural mother. There is force in the argument of Professor Furnell and indeed of Barry Fry that there is a significant risk of harm if one creates a situation where the child feels that she has been deprived of the opportunity of being loved by her mother and of loving and caring in return for her mother. So even taking into account of the material benefits to which I have referred in promoting the welfare of the child it is far from clear where the best interests of the child lie.

 

[46] Taking into account the observations of the European Court at Strasburg expressed in Johansen v Norway, the primary consideration should be towards restoring the natural relationship where possible and practical. There is nothing to suggest it is not possible although it is plain that it will not be possible without continuing support from the social work department but this prediction of likelihood of future support requirement does not make restoration impractical, only inconvenient. If that support is there the emotional needs of the child maybe better served by being with her natural mother.

 

[47] There is a real problem in the giving of future support in that it is likely that HD will continue to feel aggrieved at the way she has been treated by the social work department but the problem is not just the attitude of HD. The social work department have expressed a view that "her battle with the social work department will continue". It need not and should not. It may do so if the social work department continues to see this as a test of wills between them and mother. That would be very regrettable

 

[48] In that context it is significant to note that the social affairs of HD have changed. Her principal needs arose when she was in abusive mature relationships and was unable to cope with the demands of a violent teenage boy and a very demanding teenage daughter. KD gave evidence that despite his background he was now concerned for and would continue to seek to try and help his mother. KYD is now mother of a small child and gets on apparently far better now with her mother. Given these changes it would seem to me that the prediction that HD will continue to make excessive demands on the social work department is far less strong than it once was. In my view it is far too superficial a conclusion to suggest that what happened with KYD it will happen again with L. It may well be that the demands on the social work department will not be as much as they fear.

 

[49] In conclusion I would not have considered that freeing for adoption is the appropriate order in this case.

 

[50] It may well be that once this decision is made the antagonism between HD and the department will diminish and there was some indication that HD might well take a different view of the care arrangements for L provided there was an agreed programme of contact which would perhaps allow L to believe that she has two sources of love and care which are not in conflict and her security would thus be enhanced.

 

[51] This was a difficult case and it would be quite remiss of me if I did not record the exceedingly helpful contributions by both agents in their conduct of the case and their helpful if voluminous notes.