PO1/10

 

THE CITY OF EDINBURGH COUNCIL, PETITIONERS, in respect of the child, L

 

Act: Loudon

Alt: McAlpine

 

 

Dundee, 25 July 2011

 

The Sheriff having resumed consideration of the cause

 

FINDS IN FACT

1. In terms of the Adoption and Children (Scotland) Act 2007 the Petitioners are an adoption agency.
2. The First Respondent was born on 15 March 1985. Her address is given as care of Children and Families, Muirhouse Crescent Social Work Centre, Edinburgh. She does not wish her address to be disclosed to the Second Respondent, K. She is the mother of and has parental responsibilities and rights in relation to L ("the child") in terms of the Children (Scotland) Act 1995 ("the Act").
3. The Second Respondent was born on 23 August 1980. He resides at [an address in] Edinburgh. He is the father of and has parental responsibilities and rights in relation to the child as he is named on her birth certificate.

 

4. The Third Respondents are C and A, paternal aunt and uncle of the child.

 

5. The child was born on 22 August 2006.

 

6. Grounds of Referral (a copy of which is number 5/2 of process) in respect of the child were established at Edinburgh Sheriff Court on 9 March 2007. The child is subject to a supervision requirement in terms of Section 70(3)(a) and (b) of the Act with conditions attached that the child is to reside with her current carers, Andrew and Fiona. Details of the carers' surname and address are not to be disclosed. There are also conditions in the supervision requirement that the child has contact with the First Respondent once a month for two hours and that there is no contact between the child and the Second Respondent.

 

7. Prior to the child's birth there were concerns that the First Respondent appeared to be presenting with a low mood, given that she had a history of depression. The First Respondent was also involved in voluntary support in relation to debts and housing issues which had led her to lead a transient lifestyle.

 

8. Shortly after the child was born, hospital staff witnessed the Second Respondent being verbally aggressive to the First Respondent and pushing her onto a bed. The First Respondent was holding the child at the time. This raised a serious concern about the Second Respondent's ability to control his temper, for the child's safety and the need for the Second Respondent to undertake support in this area.

 

9. Staff at the hospital after the child's birth also raised concerns about the First Respondent's motivation to care for the child. The First Respondent was reported as sleeping through the night to the extent of it being difficult or impossible to wake her to feed the child. It was also reported that the First Respondent was reluctant to undertake other aspects of the child's care and was asking others to do this for her. As a result of the concerns a voluntary placement was sought for the child on her discharge from hospital. On 30 August 2006 the child was accommodated with relative carers, the Third Respondents, on a voluntary arrangement under Section 25 of the Act. A child and family placement at the children's centre was also established to give the First and Second Respondents an opportunity to receive support and learning about child development. This placement was also required to assess their parenting ability and motivation to engage in support.

 

10.  The Second Respondent was banned from the children's centre due to his being abusive and volatile to the staff there. Communicating with the Second Respondent regarding arrangements for contact and progressing a parenting assessment proved problematic due to his aggression and volatile nature. His contact was suspended prior to Christmas 2007 amidst concerns that he was not working with the professionals involved, was being aggressive and making threats. He was unable to keep his temper when around the child.

 

11. There were difficulties with the child's placement with the Third Respondents. The First Respondent felt uncomfortable about attending contact in their home.

 

12. At this time there were reports that the Second Respondent continued to frequent the First Respondent's home. Their continuing of a relationship prevented rehabilitation of the child to the care of the First Respondent.

 

13. In November 2006 the First Respondent showed an increased commitment to working with staff after a meeting was arranged at the children's centre.

 

14. A child protection order ("CPO") was sought and granted at Edinburgh Sheriff Court on 15 January 2007.

 

15. On 17 January 2007 a second working day children's hearing was held and the CPO was continued. At this time the Second Respondent was claiming to have been in the First Respondent's home, which raised the concern that they were continuing to have a relationship despite advising the Petitioners' social work department that they had separated. The First Respondent denied that the Second Respondent had been at her home.

 

16. On 22 January 2007 a hearing took place at Edinburgh Sheriff Court as the First Respondent lodged an application to recall the CPO. The sheriff's decision was to uphold the CPO.

 

17. On 23 January 2007 the child was moved from the Third Respondents' home and placed with foster carers, following the breakdown of the placement.

 

18. On 15 February 2007 a place of safety warrant was continued at a children's hearing with unsupervised contact for the First Respondent and supervised contact for the Second Respondent. It was difficult to progress contact between the child and the Second Respondent due to him being uncontactable and refusing to attend.

 

19. On 20 February 2007 information was received that the Second Respondent had stayed at the First Respondent's home on 14 February 2007. There was a valentine's card in the First Respondent's home from herself to the Second Respondent. The card was seen by a worker from the children's centre.

 

20. On 23 February 2007 Lynn Hunter (allocated social worker at the time) met the First Respondent due to concerns that she was allowing the Second Respondent to frequent her home and that she was pursuing a relationship with him. The First Respondent strongly denied this was the case.

 

21. On 7 March 2007 a looked after and accommodated child ("LAAC") review was held. A work plan was put in place in relation to rehabilitation of the child to the First Respondent's care as well as the assessment of risk to the child within this plan.

 

22. On 8 March 2007 a children's hearing took place. The place of safety warrant was again continued to allow further assessment of the First Respondent's and Second Respondent's relationship and concerns relating to the child's welfare. The First Respondent's contact was to continue to be unsupervised with regular planning meetings to review this and with supports when needed for the First Respondent and the child. The Second Respondent's contact was to continue to be supervised.

 

23. On 29 March 2007 a children's hearing took place. A supervision requirement was made with a condition of residence with foster carers. The child's placement address was to be withheld in light of the Second Respondent advising he was aware of where the child was placed and making threats to remove her.

 

24. On 12 June 2007 an anonymous referral was received relating to the Second Respondent having been at the First Respondent's home. The referral was in relation to an altercation which had taken place between the First and Second Respondents due to the child crying. The Second Respondent had kicked the First Respondent in the back and as a result the First Respondent asked the Second Respondent to leave. On further investigation it became known that the Second Respondent had not stayed at his bed & breakfast on the night in question and had also been absent on other nights prior to this. A home visit was made and the First Respondent advised that the child was with her maternal grandmother. Following a call to the grandmother she returned to the First Respondent's home with the child. There were concerns regarding the conditions at the grandmother's home and the First Respondent had been advised that the child should not be there without her. The First Respondent advised that her mother had only taken the child into town to meet her sister. The First Respondent was advised that further assessment required to be made with regard to the conditions in her mother's home and her then circumstances. The First Respondent denied that the Second Respondent had stayed at her home on 12 June 2007. The Second Respondent also denied having stayed at the First Respondent's home on that night, when he attended a children's hearing on 15 June 2007.

 

25. A children's hearing on 15 June 2007 decided to return the child to the First Respondent's full time care. There were also conditions made of once weekly supervised contact for the Second Respondent and he was advised that his contact would be dependent on how he engaged with the Petitioners' children and families department.

 

26.  On 20 July 2007 a child protection case conference was held and the decision was taken not to place the child's name on the Child Protection Register. This was due to the progress the First Respondent had made with the child and that she had been able to safeguard her welfare and safety since returning home. The First Respondent advised she would not allow unsupervised contact between the child and the Second Respondent, although she said that she remained friends with him. The First Respondent had relocated to the Granton area of Edinburgh in light of the Second Respondent having obtained a tenancy in the Gracemount area of Edinburgh, in the block adjacent to where she had previously resided.

 

27. In August 2007 the First Respondent was suffering from postnatal depression.

 

28. In September 2007 a referral was made for respite care for the First Respondent. The First Respondent was also placed on the waiting list for a children's centre place with outreach support in her local area. The First Respondent advised that she had not allowed the Second Respondent contact with the child since August 2007 and he had not visited her home.

 

29. In October 2007 the First Respondent advised that she was pregnant and that the Second Respondent was the father of the baby. The referral for a children's centre place with outreach support was progressed in November 2007 and the respite for the child was increased temporarily at this time.

 

30. On 23 December 2007 a juvenile liaison officer report detailed an incident which had occurred on 22 December 2007. The First and Second Respondents were at their work Christmas night out at the Ex-Servicemen's Club in Smith Place, Edinburgh. The Second Respondent was intoxicated and became increasingly agitated over the male attention the First Respondent was receiving. The Second Respondent confronted a particular colleague in the club and was telling other people he was going to kill him. The Second Respondent then followed the male outside the premises and squared up to him. The First Respondent followed in an attempt to defuse the situation. However the Second Respondent turned his attention and aggression towards the First Respondent. The Second Respondent punched the First Respondent in the face with such force that she was lifted off her feet and she fell to the ground. The Second Respondent saw that the First Respondent was unresponsive and just left her there. Police and an ambulance were called by passers-by. The First Respondent was examined and returned home with police officers. Minutes later the Second Respondent turned up at the front door where he shouted and swore and forced the locked door open. The Second Respondent was arrested and later admitted the earlier assault on the First Respondent. At the time the child was with Cathy Cook, her respite foster carer. The reporting officer expressed the view that the child and the First Respondent were at great risk of harm from the Second Respondent who was described as being violent and suffering from severe mood swings and possibly alcoholism.

 

31. On 4 January 2008 the First Respondent was not at home for a home visit to discuss the assault. At the core group meeting held on 10 January 2008 there were concerns raised regarding the First Respondent's failure to engage with outreach support and attend medical appointments for the child. On 22 January 2008 the First Respondent advised that she did not want a child and family centre placement for the child and that the Second Respondent was subject to a bail condition not to communicate or approach her due to the assault in December 2007.

 

32. Louise Pickering, a senior social worker, was allocated to the child at the end of January 2008 due to Lynn Hunter leaving her post. Ms Pickering met the First Respondent and the child on 21 February 2008 due to the First Respondent cancelling a previous home visit as she had started a new job at Farmfoods. At this time the First Respondent advised that she was in a relationship with a man.

 

33. On 16 May 2008 an anonymous referral was received advising that the Second Respondent was having unsupervised contact with the child. The First Respondent denied this and suspected the Second Respondent's family to be behind this referral.

 

34. The First Respondent cancelled several meetings with the child's allocated social worker. The Second Respondent also cancelled and failed to attend meetings and contact sessions. The First Respondent was not attending her right to each session at Pilrig Child and Family Centre on a regular basis. The First Respondent struggled to keep appointments at times of arguments and separation from the Second Respondent.

 

35. Given the reported allegations of unsupervised contact between the child and the Second Respondent it was agreed in consultation with the Petitioners' senior management that Ms Pickering would propose a family parenting assessment of the First and Second Respondents as a couple. On 6 June 2008 the Petitioners' children and families department discussed with the First and Second Respondents an intensive assessment of their functioning and parenting capacity over a period of six weeks. The Second Respondent expressed no interest in this and the First Respondent advised that she was not interested in pursuing this as she did not want the child to be accommodated and indicated that her relationship with the Second Respondent was not stable.

 

36. On 11 June 2008 a review child protection case conference took place at which it was agreed that the child should be accommodated and that a child protection order should be sought. This was on the basis that there were growing concerns regarding the child's safety due to allegations of unsupervised contact between the child and the Second Respondent. The child's behaviour was raising concern and she was exhibiting behaviours similar to those of the Second Respondent which suggested that she had been having contact with him and observed these behaviours in him. It was also noted that when she did have supervised contact with the Second Respondent, having not had one for a number of weeks due to the his non-attendance, she appeared comfortable in his presence. This added weight to the suspicion that she had been having unsupervised contact with him. At this time the First Respondent was not engaging well with professionals.

 

37. On 11 June 2008 a child protection order (a copy of which is number 5/5 of process) ("the second CPO") was sought and granted and the child was accommodated with her respite foster carer on a full time basis. At the time of the child being accommodated it was felt by Ms Pickering that rehabilitation may well not be achievable and that permanent care plans may need to be made for the child. However, following the second CPO being granted, the First Respondent moved to Livingston and appeared to be committed to remaining there - in part due to the support from her family and in part to put some distance between herself and the Second Respondent.

 

38. The First Respondent has consistently stated that since the child was accommodated as a result of the second CPO she and the Second Respondent have not been in a relationship together. The Second Respondent has indicated that they have been together as a couple at times between June and December 2008.

 

39. On 30 September 2008 at a children's hearing, the child was placed on a supervision requirement with a condition of residence with her foster carer. There was also a condition made that the Second Respondent would have no contact with the child.

 

40. On 18 November 2008 a LAAC review took place at which a plan was agreed to work towards rehabilitation of the child to the First Respondent's care. It was agreed that there be a three month time scale within which this must be achieved. Should it not be achievable, the Petitioners would need to proceed with permanency planning for the child. As part of the rehabilitation plan the First Respondent was expected to evidence that she could provide safe care for the child within supervised contact prior to longer unsupervised contacts being introduced. The First Respondent also was expected to engage in parenting work within an appropriate centre in Livingston. There was also further discussion about the Second Respondent's role in the child's life, specifically in the context of the aim of rehabilitating the child to the care of the First Respondent. It was recognised and accepted that there was going to be ongoing contact between the First and Second Respondents. At that time it was felt that it would be putting too much pressure on the First Respondent to state that the Second Respondent was to have no contact with the child and that this would potentially set up the First Respondent to fail. However the Petitioners' children and families department was clear that any such contact should be supervised.

 

41. On 30 September 2008 a children's hearing decided that the Second Respondent was to have no contact with the child. The Second Respondent successfully appealed the decision and the Sheriff remitted the case back to the children's hearing to make a decision about the Second Respondent having contact with the child. A children's hearing was therefore held on 16 December 2008 and decided that there be a condition on the child's supervision requirement that the Second Respondent should have supervised contact with the child once a month provided that the supervising worker assessed that the Second Respondent's mental health on the day of contact was conducive to contact taking place.

 

42. On 17 December 2008 the Second Respondent appeared in court for a breach of his probation order and was sentenced to 22 weeks in prison.

 

43. Early in 2009 the First Respondent visited the Second Respondent in prison.

 

44. On 11 February 2009 a care planning meeting took place at which it was agreed that the children and families department should no longer be pursuing rehabilitation to the First Respondent as she had not been able to put any distance between herself and the Second Respondent whilst he was in prison, thus making it highly unlikely she was going to be able to do so once he was released. Also, given the comments that the Second Respondent had been making about the child it was not safe either physically or emotionally for her to have contact with him.

 

45. The children and families department, following a risk management case conference on 19 February 2009, made the decision that the child needed to be moved to a new placement. This decision was made with regret as the child was very settled with her carer. However the risk of physical harm to the child should the Second Respondent carry out his threats seemed to be too great. The child moved to her current carers on 3 March 2009.

 

46. On 4 March 2009 a children's hearing took place as requested by the children and families department due to the decisions made at the care planning meeting. The Second Respondent was unable to attend the hearing and requested, via a letter from his solicitor, that the hearing be continued to allow him the opportunity to attend. The hearing agreed with this request. A place of safety warrant was issued to secure the child in her new placement. Conditions were attached so that the child was to have no contact with the Second Respondent and her contact with the First Respondent was to be supervised and to take place a minimum of once a week.

 

47. The Second Respondent has therefore had no contact with the child after being incarcerated on 17 December 2008 and then there being a condition of no contact attached to the place of safety warrant on 4 March 2009.

 

48. On 18 March 2009 a LAAC review took place which endorsed the children and families department's plans for the child. It was agreed a referral to the permanency panel would be made.

 

49. On 25 March 2009 a children's hearing decided that a safeguarder should be appointed. A further place of safety warrant was issued. There was a condition of no contact with the Second Respondent and a condition of supervised contact once a week with the First Respondent. There was also a condition of non-disclosure of the carers' address.

 

50. On 9 April 2009 Eilis O'Ferrall became the child's allocated social worker due to Catherine Smith going on maternity leave.

 

51. On 14 April 2009 and 5 May 2009 further place of safety warrants were issued as the safeguarder's report was not yet available. There continued to be the same conditions in relation to contact and non-disclosure of the carers' address.

 

52. On 21 May 2009 the children's hearing decided to continue the child's supervision requirement with a condition of residence with her carers and non-disclosure of their address. There were also a condition of no contact with the Second Respondent due to the risks he presented and a condition that the First Respondent's contact with the child be supervised and take place once a week.

 

53. In May 2009 the First Respondent moved house.

 

54. On 3 July 2009 a review child protection case conference took place. The child's name was removed due to protective factors being in place as the child was accommodated.

 

55. On 18 August 2009 a permanency panel took place. The panel recommended that the child be registered for permanent care. The panel also requested an independent assessment to enable it to have further guidance on the suitability of ongoing contact between the First Respondent and the child and what level this should be in terms of a permanent placement.

 

56. On 22 September 2009 the children's hearing was requested to review contact between the child and the First Respondent. The hearing was continued as the First Respondent stated she did not receive the papers.

 

57. On 7 October 2009 the children's hearing was again continued as both the First and Second Respondents stated that they did not receive the papers.

 

58. On 22 October 2009 at a children's hearing the child's supervision requirement was continued with a condition of residence with her current carers and non-disclosure of their address. There continued to be a condition that the child would have no contact with the Second Respondent. The child's contact with the First Respondent was reduced to once a fortnight for two hours.

 

59. On 9 November 2009 a review permanency panel took place. The panel made the recommendation that adoption would be the legal route taken to secure permanency for the child.

 

60. On 8 December 2009 at a children's hearing the child's supervision requirement was continued with a condition of residence with her current carers and non-disclosure of their address. It continued to be a condition that the child would have no contact with the Second Respondent. The child's contact with the First Respondent was reduced to once a month for two hours.

 

61. On 14 December 2009 a LAAC review took place, which both the First and Second Respondent attended.

 

62. On 11 January 2010 an advice children's hearing took place. This was continued as the First and Second Respondent had not received the papers. The continued hearing took place on 2 February 2010. The hearing supported the petitioners' application for a permanence order with authority to adopt.

 

63. There are no members in the extended family of the First Respondent who have been identified as being suitable to take on the responsibility of caring for the child.

 

64. The Third Respondents expressed an interest in caring for the child long term. An assessment was carried out by Eilis O'Ferrall and John Whitelaw (Team Leader), between August and October 2009. It was the conclusion of this assessment (a copy of which is number 5/20 of process) that the Third Respondents would not be suitable long term carers for the child. There are no other members of the Second Respondent's extended family who have been identified as appropriate to have care of the child.

 

65. Number 6/2/1 of process contains copies of the notes on contact between the First Respondent and the child from 2 March 2009 to 23 July 2010.

 

66. During contact periods the First Respondent, when upset or distressed, finds it difficult to hide these emotions from the child. She has on occasion criticised the care being provided for the child by her present carers. The child generally enjoys the contact periods with the First Respondent.

 

67. The present carers are spouses and have a son aged 7 years. The child is very happy staying with them. In the event that the permanence order as sought is granted, the carers will wish to seek to adopt the child. The child is therefore likely to be adopted by them. They are in principle supportive of the child having direct contact and indirect contact with the First Respondent and in the event that they adopt the child consider it important that she is in contact with her birth family in general and the First Respondent in particular. Subject to direct contact with the First Respondent being in the child's interests, they will encourage such contact taking place.

 

68. At a children's hearing in January 2011 the Second Respondent claimed that he knew where the child was living, but later said that he did not know the exact area.

 

69. The Second Respondent has mental health problems as described in the reports dated 21 April 2008 and 8 January 2009 (copies of which are numbers 5/18 and 5/19 of process) by Dr Elizabeth C Flynn, a chartered clinical psychologist. He has assaulted the First Respondent on many occasions. He has threatened violence towards the child. In the event that he discovered the present whereabouts of the First Respondent, there is a serious threat that he would do physical harm to her and her son. In the event that he discovered the present whereabouts of the child, there is a serious threat that he would do physical harm to the child and her carers. In the event that the carers became aware that the Second Respondent had discovered their whereabouts, they would consider moving house.

 

70. The First Respondent is no longer in a relationship with the Second Respondent. She does not wish to have any contact with him. She does not wish him to discover her whereabouts or those of the child. She is still fearful that the Second Respondent will physically harm herself, her children or the child's carers.

 

71. The First Respondent lied to social workers by declaring that she was no longer in a relationship with the Second Respondent when in fact she was.

 

72. The Second Respondent is not the father of the First Respondent's son. Following the birth of her son, the First Respondent received assistance from social workers. A parenting assessment was carried out and concluded that the First Respondent was a suitable person to look after her son, which she has done since his birth. She has taken good care of her son - and continues to do so.

 

73. Having regard to the age and maturity of the child, it is impractical to allow her the opportunity to express her views about the orders sought by the Petitioners.

 

FINDS IN FACT AND LAW

1. That having regard to the need to safeguard and promote the welfare of the child throughout her childhood and the likely effect on the child, a permanence order granting authority to adopt ought to be made;
2. That it is better for the child that the said order be made than not to do so;
3. That the child's residence with the First Respondent or the Second Respondent is and is likely to be seriously detrimental to the welfare of the child;
4. That having regard to the need to safeguard and promote the welfare of the child throughout her childhood and the likely effect on the child, the consent of the First and Second Respondents to the making of the said order should be dispensed with on the ground that each of them is unable satisfactorily to discharge the responsibilities or exercise the rights as contained in Sections 1 and 2 of the Children (Scotland) Act 1995 ("the parental responsibilities and rights") and is likely to continue to be unable to do so;
5. That the First Respondent should have (1) the right on two occasions each year to be provided by the Petitioners with written information about the welfare and development of the child and (2) the right on two occasions each year to send a letter to the child.
6. That the parental responsibilities and rights of the First and Second Respondents, except as provided for in 5. supra, should be extinguished;
7. That there should be vested in the Petitioners the parental responsibilities and rights;
8. There being no further need for compulsory measures of care, the supervision order should be terminated;

 

THEREFORE

 

Grants the prayer of the petition and makes in favour of the Petitioners a permanence order granting authority to adopt the child, in terms of Section 80 of the Adoption and Children (Scotland) Act 2007; Vests in the Petitioners the responsibilities and rights as specified in Sections 1 and 2 of the Children (Scotland) Act 1995; Allows the First Respondent contact with the child (a) by sending a letter to the child on two occasions each year and (b) by the Petitioners on two occasions each year providing written information to the First Respondent about the welfare and development of the child; Quoad ultra, extinguishes the said responsibilities and rights of the First and Second Respondents; Dispenses with the consent of the First and Second Respondents to the order; Revokes the supervision requirement made in respect of the child; Finds no expenses due to or by either party.

Note

 

Doubtless as in most sheriff courts, Dundee has now had many applications under the Adoption and Children (Scotland) Act 2007 since its coming into force, but this is the first contested application in which a proof has taken place. There was a considerable amount of planning in Dundee, with the co-operation of many parties, including the local authority's social work and legal departments, the children's reporter and the sheriff clerk's staff, prior to the Act coming into force. As the designated sheriff for such cases, I was anxious that we streamlined our local procedures to ensure that applications under the Act were dealt with as expeditiously as possible. The need to do so is obvious, but was underlined in Lothian Regional Council v A 1992 SLT 858. A practice note was issued by each sheriff principal in respect of the old statutory regime. The present practice note for Tayside, Central and Fife is number 1 of 2009. Moreover, the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (No. 284) sets out a strict timetable for the processing of applications.

 

Our Dundee experience, however, (which I should be surprised if it is not being repeated in most other sheriff courts) is that with the best will in the world and despite the mandatory timetable the court has had to be inventive to make progress and at the same time to protect the legitimate rights of the parties, particularly parents who wish, first, to consider whether they should oppose the application, secondly, to obtain legal aid to do so, and, thirdly, to mount an effective defence with, inter alia, the instruction of (and legal aid sanction for) expert witnesses. All too often I have found myself reminding parties of the terms of the Act of Sederunt and trying to insist upon progress, only to be met with anxious requests to give one or other party some slack. However purposeful my pursuit of strict obedience to the rules and my desire to bring matters to a head as quickly as possible, it is in my experience all too common that I have had to allow a party further time, not just in the interest of justice in a general sense but also for what can properly be argued might turn out to be in the interest of the child. The recent diminution in court resources has made the position only worse and indeed we are quickly returning to the days when I was first elevated to the bench thirteen years ago when many months might pass before the additional days in a protracted proof.

 

This case is a typical example of the problem. I do not propose to describe all the delays and the reasons for them; suffice it to say that the application was first lodged on 9 March 2010. The final day of proof was on 23 May 2011. I have ensured that my judgment has been produced as quickly as I could, but even then over 15 months have passed since the application was lodged, which on any view is far too long. As has often been said, for an adult a year is just a year; for a young child it can be a substantial part of a lifetime. During the course of her evidence, Dr Valerie Cairns observed that sometimes she just wished everybody involved in the care of a looked after child, whether social workers or courts, would make an early decision, even if it might be the wrong one. That is a sentiment with which I agree, for even a good decision for all the right reasons can end up being a bad one just because it took far too long to make.

 

Having said all that, I was grateful to counsel for the Petitioners and the solicitor for the First Respondent for the manner in which they prepared for and conducted the proof. They did not spend unnecessary time in examination-in-chief where the witnesses had produced either affidavits or reports, and their cross-examination was always relevant and incisive. In less able hands, the proof would have lasted many more days than it did, no matter the promptings from the Bench.

 

* * *

 

Before I deal with the facts in this case, I will make some general remarks about the overall scheme of the 2007 Act and will then consider the submissions by the parties on the correct approach which should be adopted in dealing with applications for permanence orders.

 

The 2007 Act was introduced, inter alia, to address the inherent problem of freeing orders under the 1978 Act, namely that they closed the door on the whole responsibilities and rights of the parents. (It was still possible to include a right of contact in an adoption order, but that was rarely sought and even more rarely granted.) In all courts in which I have sat the local practice was to regard such an order as a necessary preliminary step before an application for an adoption order was made, although I understand that was by no means a universal practice and that in some jurisdictions the practice was to apply straightaway for an adoption.

 

The 2007 Act is at times difficult to understand - indeed in the preface to the 4^th edition of the seminal book on the subject, Adoption of Children in Scotland by the late Sheriff Peter McNeill, the authors describe the Act as having introduced a "perhaps over-elaborate" code, an observation with which I respectfully agree. Notwithstanding that difficulty, certain basic themes can be identified and one of the most important of them is post adoption contact. The Dundee experience - and indeed the experience in Angus where I also sit - is that opposed applications for permanence orders with authority to adopt generally fall into one of three categories: 1, the parent is unequivocally opposed to the whole concept of permanence; 2, the parent opposes permanence if only so that someone other than the local social work department and the children's hearing decides that it is in the best interests of the child that the application be granted, and 3, the parent does not oppose the application but wishes direct contact with the child post-adoption. In our admittedly limited experience of the Act in operation it is tolerably clear that the third category is becoming the most common one. I discuss below how the statutory scheme works and the stages which have to be gone through before an application is granted, but I observe at this point that while there is the power to make an order for direct contact within a permanence order there is no suggestion in the Act that this is to be regarded as a presumptive right of the parent. While I was not referred by the parties to the parliamentary debates during the progress of the Bill, my own researches of them concluded that neither was there an expressed intention by the Scottish Government of the time to create such a presumptive right. Nevertheless, it seems to me that since Parliament has decided to create a contact right, it is possible as the law develops in practice over the coming years that more and more frequently direct contact orders will be made. This may have far reaching consequences for social work practice. In my experience, it is usually the case that consideration is given to the possibility that a child is not to return to its parent early on in the often lengthy passage of time between a child first coming into care and the lodgment of the application for a permanence order (or a freeing order or adoption order under the former scheme). After the decision is made, there then follows a period of what is known as "parallel planning" whereby work is still done with the parent but at the same time preliminary plans are made for the child's adoption. It is common throughout that period that the arranged contact periods between child and parent are steadily reduced. This is often for entirely proper reasons, but the consequence can be that, however anxious the parent is to keep a bond with the child, decreasing periods of contact inevitably make that more and more difficult. Under the former law, the final decision in the child's interests was whether or not to terminate contact altogether. Thus, decreasing contact, while an important factor in that process, was no more than part of the decision making which resulted - in the usual case - in a permanent break of the parental/child bond. That may no longer be the law, which would mean that social workers will have to have within their contemplation that the end result of the court process might not be a clean break. Social workers have a difficult enough job planning properly for looked after and accommodated children; it seems to me that potentially that job is about to become even more difficult. In particular, social workers may have to be more circumspect in deciding if and when to reduce contact before the permanence application is made, which, if Dr Triseliotis is to be believed, would be doing no more than catching up with England and Wales. In his report in this case, he records (at p36),

"... a presumption now exists that post-adoption face-to-face contact is the preferred option unless it is shown to be detrimental to the child... The British Agencies for Adoption and Fostering introduced as follows a conference on post-adoption contact that was held in Manchester on 14/09/09:

Public and professional views as to the desirability, or otherwise, of adopted children being able to have some form of contact with their birth families have totally changed over the last few decades. Contact in some form between adoptive families and birth families after the granting of an adoption order has become the norm rather than the exception."

 

In my experience, the all too typical case is that a mother struggles to cope with parenthood; the child is taken into care; weekly contact is arranged by social workers; the mother either fails to turn up regularly or when she does finds it difficult emotionally and in many other ways to make the contact a useful experience for the child; she unwittingly finds herself in a dilemma of wanting vigorously to oppose the authorities for depriving her of her child but at the same time knowing that she should co-operate with them; in particular, she thinks she will be criticised for not going along with the wishes of the social workers but if she is compliant fears that she will be criticised for not fighting for more contact (an argument, incidentally, which I have witnessed being employed by social workers); the contact becomes of less and less benefit to the child and, eventually, the point is reached where the child has moved on so far that it is in practice impossible for the court to contemplate upsetting the current family arrangements, notwithstanding any concerns there may be about the previous decision making and general conduct of the authorities. If direct contact becomes the norm (and the mother knows early on that the bond between her and her child is unlikely to be permanently broken), it may be that the above scenario will become less common or, at the very least, will be less fraught.

 

I quote again from Dr Triseliotis' report (at p44):

"Although I do not happen to agree with it, it is worth recording that with one or two exceptions (Portugal for the under five year olds and possibly Ireland) no other European country allows the adoption of children against their parents' wishes."

That is not a route down which UK adoption law has gone, but if direct contact post adoption becomes more and more the norm, it may be one which policy makers will eventually have to consider.

 

* * *

 

 

The correct approach which I require to adopt in this case is as follows:

1. I am invited to make a permanence order with mandatory provisions, ancillary conditions and a provision granting authority for the child to be adopted.
2. In deciding whether or not to grant a permanence order granting authority to adopt, I must be satisfied (a) that the petitioners have requested such an order (which they plainly have done), (b) that the child has been, or is likely to be, placed for adoption (another matter which is not in dispute), (c) that each parent's consent to the making of such an order should be dispensed with on the ground that each parent is unable satisfactorily to discharge the responsibilities or to exercise the rights (and is unlikely to continue to be unable to do so) set out in Sections 1 and 2 respectively of the Children (Scotland) Act 1995, but excepting the rights and responsibilities to do with contact with the child (having first of all established that each parent has those responsibilities and rights), and (d) that it would be better for the child that I grant authority for the child to be adopted than not to do so. On one view, the most important words in these provisions are "would be better for the child", given the other provisions of the Act set out below. It is not a high hurdle for an adoption agency to overcome, provided the other tests are met. But even if I was not satisfied about (c) above, I can still grant the authority to adopt if the welfare of the child otherwise requires each parent's consent to be dispensed with. That is, in other words, a fall back position if all else fails, although one might wonder why Parliament thought it useful to introduce another test over and above the "better for the child" test - or, perhaps, to introduce the "better for the child" test rather than just leave it to the welfare test.
3. If that were not complicated enough, I must also have regard to Section 84, some provisions of which are relevant in the instant case. The section deals with "permanence orders", which as defined in Section 80 include a permanence order with a provision granting authority to adopt. Section 84(3) sets out the "better for the child" test. One might therefore ask why Parliament thought it necessary to repeat that test in Section 83 which deals with permanence orders with authority to adopt. Be that as it may, Section 84 goes on to set out certain considerations which the court must take into account, which include taking account of the child's age and maturity (given the age of the child in the instant case, there was no evidence about her views), having regard to the child's religious persuasion and her racial origin and cultural and linguistic background (again, not a matter of controversy in this case and on which there was therefore no evidence), having regard to the likely effect on the child of the making of the order, and being satisfied, where there are parents with relevant parental rights, that the child's residence with the parent is, or is likely to be, "seriously detrimental" to the welfare of the child. I have great difficulty in understanding the reason for the inclusion of the last provision. Indeed, I have struggled to understand what "seriously detrimental" is supposed to mean. If such residence is not likely to be seriously detrimental, but merely detrimental instead, am I bound to refuse the order? Counsel for the Petitioners described this as the crux of the test for granting the order. My difficulty with that is that it might be regarded as setting a much higher hurdle over which the Petitioners must jump before I can grant the order - and flies in the face of the other tests set out in the Act. Trying as best as I can to lend a purposive construction to the whole of the Act, I have reached the view that this test must be looked at in the light of the test for dispensing with a parent's consent and is intended to be no higher than that. In other words, if I am satisfied that a parent is unable satisfactorily to discharge the relevant responsibilities and rights and is likely to continue to be unable to do so, then the "seriously detrimental" test will also be met. (Although, that would still leave an argument open about how that fits into the general fall back position of the welfare of the child.)
4. Having dealt with the issue of authority to adopt, I must then deal with the issue of mandatory and ancillary orders and in doing so I must secure that each responsibility and right vests in a person. The mandatory responsibility is "guidance" and applies until the child is 18 years. It should be included in the permanence order only in so far as it is practicable and in the interests of the child. The mandatory right is "residence". The other responsibilities and rights have to be vested and in the present application I have to decide whether or not the mother should have the responsibility "to maintain personal relations and direct contact with the child on a regular basis". That responsibility can be shared with the local authority. Again, it should be included in the permanence order only in so far as practicable and in the interests of the child. In contrast to the "guidance" responsibility, the "contact" responsibility applies only until the child's 16^th birthday. The "contact" issue is also dealt with as one of the parental rights and again requires to be vested. Thus, it can be seen that in deciding to allocate these responsibilities I am required to apply, inter alia, the test of "in the interests of the child".
5. Section 82 then goes on to deal with the duty upon me to extinguish responsibilities and rights, which is an obvious consequence of the above exercise. Section 82(1)(f) includes another ancillary provision which appears to be a catch all clause to cover any other aspect of the child's welfare.

 

At the risk of repetition, I set out below the practical task I face in the instant case:

1. In order to grant a permanence order with authority to adopt, I must be satisfied:

1. that the petitioners have requested authority to adopt (s.83(1)(a));
2. that the child had been, or is likely to be, placed for adoption (s.83(1)(b));
3. that each parent has any responsibilities and rights set out in the 1995 Act (s.83(3)(a) and (5)(a));
4. that each parent's consent to the making of the order should be dispensed with on the ground that each parent is unable satisfactorily to discharge the responsibilities or to exercise the rights (and is unlikely to continue to be unable to do so) set out in the 1995 Act (s.83(1)(c), (2)(c) and (3)(b) and (c)(ii)), but excepting the rights and responsibilities to do with contact with the child (s.83(3)(a));

 

2. In considering all of these matters, I must take into account:

1. whether it is better for the child that I grant the order than not to do so (s.84(3));
2. that the paramount consideration is the need to safeguard and promote the welfare of the child throughout childhood (s.84(4));
3. that it is impractical to allow the child the opportunity to express its views, having regard to her age and maturity (s.84(5)(a));
4. the child's religious persuasion, racial origin and cultural and linguistic background (s.84(5)(b)(ii));
5. the likely effect on the child (s.84(5)(b)(iii));
6. where either parent has a residence right under the 1995 Act, the child's residence with that parent is, or is likely to be, seriously detrimental to the welfare of the child (s.84(5)(c)(ii)); but
7. if I am not satisfied on 1.d (supra), I can still grant the order if the welfare of the child requires the consent to be dispensed with (s.83(2)(d)).

 

3. In dealing with the issue of mandatory and ancillary orders, I must

1. secure that each responsibility and right vests in a person (s.80(3));
2. vest in the petitioners the mandatory responsibility of "guidance" (s.80(2)(a) and s81(1)(a) and 1995 Act, s.1(1)(b)(ii)), but only in so far as it is practicable and in the interests of the child (1995 Act, s.1(1)), and the mandatory right of "residence" (S.80(2)(a) and s.81(1)(b) and 1995 Act, s.2(1)(a));
3. decide whether or not the mother should have the "contact" responsibility (s.80(2)(b) and 82(1)(b)(i) and 1995 Act, s.1(1)(c)), but only in so far as practicable and in the interests of the child (1995 Act, s.1(1)), and the "contact" right (s.80(2)(b) and 82(1)(b)(ii) and 1995 Act, s.2(1)(c));
4. extinguish responsibilities and rights (s.82(1)(c) and (d));
5. determine any other question in connection with any other aspect of the welfare of the child (s.82(1)(f)(ii)).

 

If I am correct in my approach, it can readily be seen that the statutory provisions are very complex - one might suggest over complex. But there is a further difficulty. The parties' representatives were at one in submitting that I also have to take into account the terms of Section 14 of the Act.

 

In the first reported cases under the Act, a difference emerged as to the correct approach the court should take in applications for permanence orders with authority to adopt. In the application by Aberdeenshire Council for a permanence order relating to CW, 2010 WL 5652808, Sheriff Mann criticised the approach of Sheriff Gillam in East Lothian Council v LSK 2010 WL 3073096. Sheriff Mann's critique was approved by Sheriff Principal Bowen QC in the appeal against Sheriff Gillam's decision (2011 WL 1060020). But whatever the differences are, Sheriff Gillam and Sheriff Mann (and Sheriff Principal Bowen on appeal) were agreed that Section 14 must be taken into account. The same view was taken by Lord Pentland in Inverclyde Council v MT, MS 2011 CSOH 27 - and by Sheriff Mackie in City of Edinburgh Council, Petitioner (No 2) 2010 Fam LR 92.

 

If that approach is correct, the effect is that in deciding 1.a to 1.d above I also have to take into account:

a. That I have regard to all the circumstances of the case (s.14(2));

b. That the paramount consideration is the need to safeguard and promote the welfare of the child throughout her life (s.14(3));

c. That, so far as reasonably practical, I have regard to (a) the value of a stable family unit in the child's development, (b) the child's ascertainable views, (c) the child's religious persuasion, racial origin and cultural and linguistic background, and (d) the likely effect on the child, throughout her life, of the making of an adoption order (s.14(4)).

 

I was reluctant to take a different point of view - not least because I did not have the benefit of a contradictor. But I have nevertheless decided that it is incorrect to take into account Section 14 in deciding this case.

 

I should emphasise that after doing so, I performed the exercise of applying the Section 14 approach to the facts of this case and came to the firm view that whatever might be the correct approach I would have decided this case in the same way on its merits. (I mention that in the hope of avoiding the circumstance which arose in the appeal from Sheriff Gillam's decision whereby Sheriff Principal Bowen had to remit the case back to Sheriff Gillam, thereby adding yet further to the delay which had already occurred.)

 

In my opinion, the reasons for the Section 14 approach being incorrect are as follows:

 

1. The problem with the application of Section 14 to decisions on permanence orders with authority to adopt is the reference to the "lifetime test" when the court is also required to apply the "childhood test". I agree with the submission of the second respondent in City of Edinburgh Council, Petr, that these are two different tests which are required to answer the one question and since both are mandatory one has to give way. Sheriff Gillam obviously recognised this problem and answered it by pointing out (at p9) that a decision on the "lifetime test" necessarily included a decision on the "childhood test". This, said Sheriff Mann, meant that Sheriff Gillam decided the adoption question before the permanence question. (I am not sure that this was in fact what Sheriff Gillam did and that even if he did he had misdirected himself. It seems to me that where, as here and in the Sheriff Gillam and Sheriff Mann cases, the court is or was not being invited to make a permanence order simpliciter as an alternative to a permanence order with authority to adopt, all the court can or could competently do is to make a permanence order with authority or not make any order at all.) Sheriff Mann also recognised the problem and solved it by concluding that the court should decide first of all whether to make a permanence order (applying the "childhood test") and only after making it should the court move on to decide whether authority to adopt be added to it (applying the "lifetime test"). (Sheriff Mackie in effect takes the same approach as Sheriff Mann - City of Edinburgh Council, Petr, para [25]) The first problem with that is, as I have identified in parenthesis, that the petitioners do not crave a permanence order simpliciter as an alternative. It is, in any event, an artificial approach which compares unfavourably, in my view, to the more natural and logical approach of the court simply deciding whether to make the order craved, viz, a permanence order with authority to adopt. Of course, the court then must go on to deal with the matters which are genuinely ancillary, such as the division of parental responsibilities or rights. But this does not do violence to the terms of the Act, given that Section 82 expressly provides for "ancillary provisions". The authority to adopt is not included as an "ancillary provision". The second - and more critical - problem is that the approach ignores the fact that Section 84 applies to "a permanence order" which is defined in Section 80(2)(c) as, inter alia, an order consisting of the provision granting authority to adopt. Thus the "childhood test" applies equally to permanence orders with authority to adopt as it does to permanence orders simpliciter. Sheriff Gillam obviously recognises that - and resolves it by concluding that "lifetime" necessarily includes "childhood". In effect, he is deciding that the "lifetime test" takes precedence over the "childhood test". But it is logically more than that; it effectively also means that the "childhood test" should not be applied at all, except insofar as evidence about childhood informs the "lifetime test". That is not what the Act says.
2. It is a more straightforward construction of the Act to apply the "childhood test" to the permanence order with authority to adopt and leave the "lifetime test" for the adoption itself. The authority to adopt does not mean that the child will automatically be adopted. Much will depend on the qualities of the prospective adoptive parents (or parent). Much will also depend upon the attitude of the child to those parents. The child, if 12 or over by the time the adoption application is made, may not consent. The court still requires to decide whether the adoption should take place. That, it seems to me, is the logical moment to consider the lifetime test, not least because adoption has certain lifetime legal consequences, such as in the law of succession.
3. The exclusion of the "lifetime test" fits in with the structure of the Act. Part 1 is headed "Adoption"; Part 2 is headed "Permanence Orders".
4. Sheriff Mackie (para [13]) prays in aid the opinion of Lord Justice-Clerk Ross in P v Lothian Regional Council 1989 SC 200 in respect of Section 6 of the 1978 Act, in which there was the same term, "relating to the adoption of a child", as in Section 14. There are, it seems to me, a number of important distinctions to be made between the 1978 Act and the 2007 Act, First, Section 6 of the 1978 Act applies to "any decision relating to the adoption of a child"; Section 14 of the 2007 Act applies to "a decision relating to the adoption of a child". Secondly, a decision about a permanence order even with authority to adopt is not a decision "relating to the adoption of a child"; it is a decision "relating to the permanence of a child". Thirdly, the 1978 Act did not have the "lifetime test" for freeing for adoption orders - the predecessor of permanence orders. The first time that the "lifetime test" has been introduced into adoption law at all is in the 2007 Act. Fourthly, the court in P v Lothian Regional Council was concerned about whether or not the welfare of the child should be the first consideration and concluded that it was - and in the particular case might be the paramount consideration. Parliament has expressly dealt with that in the 2007 Act by including the welfare test as paramount in permanence order applications (Section 84(4)). Parliament has thus avoided the possibility of debate about whether or not that test applies. If it was intended that Section 14 applies, why include permanence orders with authority to adopt within the ambit of Section 84(4)? Fifthly, the same question could be asked about other parts of Section 14 which are repeated in Section 84, such as the references to the child's views or its racial origin and so on. Sixthly, the structure of the 1978 Act is materially different from that of the 2007 Act in that while the predecessor of permanence orders, freeing for adoption orders, are in a different part of the Act than Section 6 (a point underlined by Sheriff Mackie), the former part is headed "Adoption Orders". In other words, freeing for adoption orders were considered as part of the process of adoption orders per se. As I have earlier noted, that is not the same as the 2007 Act.

5.      The reason the court in City of Edinburgh Council, Petr, was so exercised about the construction of Section 14 was because a question arose about whether the 2007 Act complied with the European Convention on Human Rights. There is no discussion in Sheriff Mackie's judgment about Convention law, because it was conceded by the party raising the ECHR point that if Section 14 applied the Act was Convention compliant. Nor was the issue of ECHR addressed before me. Whatever the Convention jurisprudence provides, it may well be that the Act would be Convention compliant if it is understood in the manner I have described, namely that an adoption will not take place without the "lifetime test" being applied, no matter that authority to adopt has been granted.

6.      While Section 14 contains factors which are repeated in Section 84, I recognise that it does introduce other factors, apart from the "lifetime test", which are not repeated within Part 2 of the Act. These are, first, that the court must have regard to all the circumstances of the case. This repeats part of Section 6 in the 1978 Act. I am left wondering why Parliament, whether in 1978 or in 2007, considered it necessary to include such a provision given that it is very unlikely that a court would take into account only some of the circumstances. But suffice it to say that in exercising its judgment in relation to the making of a permanence order with authority to adopt it is surely implied that the court will take into account all of the circumstances, provided of course they are relevant ones - a qualification which one should surely also read into Section 6 or Section 14. The second difference is the value of a stable family unit in the child's development. This is a factor not included in Section 6. But that, it seems to me, is a mere restatement of a factor which has always applied in adoption law - and there is no reason why it should not also be a factor which the court must properly take into account in deciding to grant a permanence order with authority to adopt, albeit that it will be more critical when the court comes to determine an adoption application by particular prospective adoptive parents. In other words, both of these additional factors are matters which the court must properly consider in a permanence order with authority to adopt application without having to rely upon Section 14.

 

* * *

 

I turn now to the facts in this case.

 

Numbers 1 to 64 of the findings of fact reflect the terms of the joint minute entered into between the parties. As is often the case, the joint minute contains large parts of the social work report produced in connection with these proceedings. Sometimes, it is very difficult for the court to convert the content of the joint minute into satisfactory findings in fact. As it happens, this was not the case here, although I have still made some amendments which I hope improve the grammatical style and deal with admittedly minor errors.

 

Evidence was adduced on behalf of the Petitioners of John Whitelaw, Eilis O'Ferrall, Dr Valerie Cairns, Laura Mitchell and Fiona, one of the present foster carers whose full details were kept hidden. Affidavits were produced for Mr Whitelaw, Ms O'Ferrall and Ms Mitchell.

 

Evidence was adduced on behalf of the First Respondent of herself, Dr John Triseliotis and Jacqueline Donald.

 

During the course of her evidence the First Respondent intimated that she now accepted that it was in the child's best interests that she remain with her present carers, albeit that she continued to oppose the application. That meant that the burning issue became whether I should award the First Respondent direct contact. In my summary of the evidence, I therefore focus on that issue. In any event, the disputed evidence was principally about contact.

 

John Whitelaw is a team leader in the Children and Families Team of the Petitioners. He has held that post since July 2007 and of the Petitioners' witnesses has therefore been involved for the longest period in the child's case, although he was not directly involved in the case from January 2008 to January 2009. Apart from the odd general reference to the First Respondent's ability to care for the child, Mr Whitelaw's affidavit focuses upon the potential threat from the Second Respondent. During cross-examination, he eventually conceded that if the issue was only the First Respondent's ability to care for the child, there would have been no need for the permanence application. On the issue of direct contact as a condition of the permanence order, Mr Whitelaw had concerns about the child's welfare. He worried about the risk of harm to the child by the Second Respondent. He did not think that the First Respondent would be strong enough to resist demands from the Second Respondent to be given information about the whereabouts of the child's present placement. He regarded that as the primary reason for recommending no direct contact, although he eventually went further and conceded that, at least on the direct contact issue, "we wouldn't be here if it was not because of Mr [K]". He did initially consider that there was an issue about the general level of supervision which the First Respondent needed during contact, although late in his cross-examination he appeared to accept that the issue of supervision of contact was really about the risk of the First Respondent passing information about the child to the Second Respondent. He also agreed that the fact that the First Respondent had moved her home on eight occasions was irrelevant in assessing the appropriateness of direct contact. Nor did Mr Whitelaw have any knowledge of how the First Respondent was coping with her new child or the attitude of her local social work department about her care.

 

I found Mr Whitelaw's evidence to be of only limited assistance. It is of course always helpful to hear from the supervising social worker whom one would expect would have a general overview of the whole case. Mr Whitelaw, however, had very little direct involvement in the case and it became increasingly obvious that he was merely repeating information contained in the social work files. Inevitably, he did not have a complete memory of what he had read, which meant that he often was reduced to answering specific factual questions with the words "I am unaware of...", which was a polite way of saying he did not fully know the content of the files.

 

Nevertheless, he is a social worker of experience and he spoke eloquently of the risk to the child if the Second Respondent discovered her whereabouts. He also very fairly accepted that there was no evidence that the First Respondent had been in contact with the Second Respondent after mid 2009, that information about the present carers may have been given to the Second Respondent by the LAAC Review team, due to an administrative error and that it was theoretically possible that with that information the Second Respondent was merely biding his time before trying to discover the exact whereabouts of the child. He accepted that if I did consider that direct contact was in the child's best interests, it would be better that I make an express award, rather than leave it to be agreed informally between the First Respondent and the carers, because research indicates that voluntary contact has a greater likelihood of breaking down.

 

Eilis O'Ferrall has been the child's social worker since April 2009. She is the author of the report which accompanied this application. In para 13 of her affidavit she sets out her reasons for recommending that there be no direct contact between the child and the First Respondent. She considers that the First Respondent does not support the child's placement or recognise what is best for her (a position from which the First Respondent moved at a late stage in the proof); that she is unable to hide her emotions from the child during contact; and that the risk from the Second Respondent is a real one and will not diminish, particularly when the child becomes older and shares information with the First Respondent who might pass it on to him. Ms O'Ferrall had been present during the January 2011 contact and confirmed that "overall it was fine", although she was concerned that the First Respondent was initiating a lot of physical contact and not letting the child return to her toys.

 

On the risks associated with the Second Respondent, she narrated events which took place at a children's hearing in January 2011 where, she said, the Second Respondent was "pre-occupied with the fact that he knew where [the child] was living". She spoke to him after the hearing, but he gave no information about what he knew, although he did say that he did not know the exact area. She accepted that her concerns about the present risk of contact between the First and Second Respondents were only because of their past contact, although Ms O'Ferrall expressed concern that in February 2010 the Second Respondent was alleging that he was the father of the First Respondent's second child, which she denied. Ms O'Ferrall was referred to her report of 14 September 2009 (number 5/39 of process) in which she dealt in detail with the First Respondent's behaviour during contact. She recorded that the First Respondent was unable during contact to hide her emotions from the child - that she was upset or distressed. This, she reported, caused the child to become upset, to raise questions about her situation and to become unsettled in her placement. In particular, Ms O'Ferrall recorded that "[the First Respondent] can at times thrive on the attention from [the child] if [the First Respondent] is upset or saying she is unwell". She also recorded that contact "at the present level is meeting [the First Respondent's] needs not [the child's] needs", and that the First Respondent cancelled contact twice in August 2009 at extremely short notice - and indeed a further contact period in September of that year.

 

On the issue of contact post-adoption, Ms O'Ferrall considered that to be successful it has to be of benefit to the child and with a clear purpose - to get information about her birth family. The First Respondent would need to accept her loss of role, that the child would call someone else "mum" and "dad", and accept her loss of power. She did not think that the First Respondent could do that, because she did not accept the present placement. Given the risk which the Second Respondent posed, she did not think that supervision of the direct contact by the First Respondent would be a sufficient safeguard against information coming out about the child's whereabouts, which the First Respondent might then pass on to the Second Respondent.

 

Dr Valerie Cairns was an impressive witness. She is a lady of huge experience in child psychology. She has a long list of academic achievement, but for me the most impressive aspect of her evidence was her down to earth practical approach to the problems of what she described as children of disrupted family relationships. She is herself the adoptive parent of two children.

 

In assessing the value of expert evidence in cases like this, it is in my view often misplaced to extract from the experts' reports or from their parole evidence a line here or a sentence there to support one side or the other. Rather, one should look for overall themes, in order to identify the true opinion being expressed. In my opinion, Dr Cairns makes two fundamental points: 1, that there is no indication - at this stage of her development - that the child would suffer any adverse effects if all direct contact with the First Respondent ceased, and 2, that if it is found by me that there remains a risk that the First Respondent, whether inadvertently or not, might disclose information to the Second Respondent about the child's whereabouts, this would be a compelling argument against direct contact.

 

Of course, the decision for me is not just about contact now - it is about contact up to the child's sixteenth birthday. Dr Cairns deals with that issue in some depth - and concluded that the positive approach of the child's present carers is such that they will deal sensitively with the child's future needs to understand from where she has come and why she is being brought up separately from her birth family. The carers will support indirect contact and, if the child wants it, would support future direct contact. Indeed, Dr Cairns considered that if a child is in an adoptive placement where he/she is not free to seek contact with the birth family, "there is something wrong with the placement".

 

On the principle of direct post-adoption contact, Dr Cairns discussed the research, primarily in Australia and the USA (as well as some by Dr Triseliotis), which all concluded that voluntary contact - rather than contact prescribed by the court - will invariably produce much better outcomes for the child.

 

Laura Mitchell is a social worker of considerable experience. She is presently employed as a senior practitioner with St Andrews Children's Society, which is an adoption and fostering agency and which assesses applications by prospective foster carers and adoptive parents. She has been working with the child's carers since April 2010. In her opinion, there should be no direct contact, although it was reasonably clear that her reasons against such contact were based upon the existing records of the Petitioners or, although it was never discussed in her evidence, what she had been told by other social workers involved in the case. She spoke in glowing terms about the attitude of the child's present carers and the level of care they were providing.

 

Evidence was led of the child's female carer, who was referred to as 'Fiona'. She described her family circumstances: she is married and has a son aged 7 years. He and the child have a good relationship and are very fond of each other. She is a "fun loving, lively, beautiful girl". Fiona did not think that the present direct contact is problem free. She spoke about the child sometimes being anxious before going to contact and asking her when she was coming back for her. She described a difficult relationship with the First Respondent whom, she thought, was "just unhappy about [the child] being in our care". On the issue of future direct post-adoption contact, she and her husband have always said that the child needs a period to be a normal little girl and her mother needs to come to terms with the decision made to remove the child from her care and to place her with them. But she has not ruled out direct contact in the future, "which I'm sure will happen", although they need to be reassured that the Second Respondent will be out of the picture. It was obvious that Fiona was very concerned about the Second Respondent discovering their whereabouts. If so, she would be "devastated", and would want to move from their present home. In particular, she was very concerned that even with post-adoption contact being supervised the child might say something about their whereabouts to the First Respondent, which would get back to the Second Respondent. In cross-examination, Fiona was asked whether she could continue direct contact if the issue of the Second Respondent's involvement was no longer a live one. She said she could, but only if the First Respondent had accepted the situation as a whole and, in particular, of Fiona, her husband, their son and the child as a family.

 

The First Respondent declared at the start of her evidence, which was on the sixth day of the proof, that she now accepted that the child should remain with her carers, but that she still wished direct contact. She explained her change of mind as having reached an understanding that the child is settled where she is, that she treats Fiona's family as her own family and that she will not be coming home to live with her.

 

She narrated in outline the history of her relationship with the Second Respondent. As is not untypical, it was a relationship where she felt dependent on him and even after he was violent was reluctant to free herself from his control. She conceded that a social worker had advised her near the end of 2007 that she should be rid of him, but that she did not follow that advice until the end of the following year. She still loved him, felt controlled by him and was easily blackmailed by him into thinking that whatever he said would be believed by the social worker. She admitted that she had told the social worker that the relationship was at an end at a time when it was not. But she maintained strongly that the relationship had finally ended before he was imprisoned and that her visit to him there was only because he had telephoned her in tears and she felt sorry for him. She did not accept that the social worker had told her not to see him - rather, not to be in a relationship with him, which she was not. Apart from a cup of coffee with him after a children's hearing shortly after he came out of prison, she had not had any contact with him since the one prison visit, excepting of course formal meetings where she was required to be in the same room as him. He has no knowledge of her present whereabouts, although she has heard through friends that he has been trying to find out where she lives. She accepted that if he discovered her whereabouts both her and her son would in danger - as would the child if he found her. He would hurt her and her son. He would also hurt the child and her carers if they stood in his way. She described him as polite enough on the surface, but in fact very volatile. She said that if he does not get his own way he will become very angry. The First Respondent is now in a new relationship. She declared that there was no question of the Second Respondent being the father of her son. If during direct contact the child gave away information which would allow someone to work out where she lived, the First Respondent said that she would never reveal that to the Second Respondent.

 

Nevertheless, perhaps revealingly, the First Respondent said - in the context of the care being given to the child by her present carers, "She's clearly looked after and is happy... I had a problem because I did move away from [K] and moved into a new house to prove to social work that I could get [the child]. I feel as if I did that for nothing."

 

If direct contact is continued, she accepts that she will hear the child call Fiona 'mummy'. She will not correct her when that happens. It still hurts, but she accepts that she cannot do anything about it. She thinks that the child enjoys contact - "she runs to me... She never hides from me... If she didn't want to see me, she'd let people know that."

 

Like Dr Cairns, Dr Triseliotis is an expert witness with vast experience and knowledge of his subject. There is little to be achieved by my narrating what he says in his report which is both lengthy and detailed. Suffice it to say that he did not recommend that the child be returned to the care of the First Respondent, but he did recommend that she be granted direct contact, albeit under reservation about the danger posed by the Second Respondent, an issue which Dr Triseliotis rightly left to the court to decide.

 

Jacqueline Donald is employed as a social worker by West Lothian Council. She has been the allocated social worker for the First Respondent since September 2010, with a particular concern for her then unborn child. She was aware of the problems which were reported to her by the Petitioners. She reported that after her son's birth, the First Respondent struggled at first to engage with Ms Donald, but that situation quickly changed. A parenting assessment was carried out, which was positive in favour of the First Respondent. It was significant that while the First Respondent had not been prepared to tell the Petitioners who was the father of her son, she revealed the name of the person, who was not the Second Respondent, at the very start of the parenting assessment process. Ms Donald was fully aware of the concerns which the Petitioners still hold about the First Respondent's continuing involvement with the Second Respondent, but she did not have the same concerns. West Lothian Council have no evidence to suggest any such continuing involvement. In assessing this, Ms Donald relies upon what the First Respondent says to her, from visits to her, both planned and unplanned, and the general conversations among the professionals involved. Ms Donald accepted that the First Respondent could be in touch with him, but, to conclude that, one must rely upon evidence. There is none. She had always made it clear to the First Respondent that their relationship must be based upon honesty. She has no evidence that the First Respondent has not been anything other than honest in her dealings with the social work department.

 

Ms Donald was not cross-examined.

 

It is convenient to deal next with the submissions of the First Respondent. Her agent submitted that I should refuse the application, failing which I should make a permanence order without authority to adopt but with an ancillary order for the First Respondent to have direct contact with the child four times per annum, failing which a permanence order with authority to adopt but also with the contact order. (The First Respondent stated in her evidence that she would now give her consent to adoption.)

 

I have already expressed my view about the appropriateness of granting a modified form of order. Counsel for the Petitioners did not move, as an alternative, that I grant an order without authority to adopt. In that circumstance, my view is that to do so would be incompetent (although I would not have been in favour of doing so anyway on the merits).

The First Respondent's agent went through the various provisions within the Act. In regard to the test in Section 84(3) (number 2.a. in my earlier list), he submitted that on the evidence it was not better for the child that I grant the order craved. Fiona had said that she and her husband will seek to adopt the child. The First Respondent accepts that the child will remain in their care. There will be no practical change whether or not the order is made. Decisions will be made by adults and the child will be shielded from that process. The social workers are emphatic that the child will not be returning to the care of the First Respondent. At worst, she might call for a children's hearing and ask for a change in the terms of the existing supervision requirement and, again at worst, the hearing might ask for a safeguarder's report, but it is clear that whatever the hearing's decision is it will not be that the child return home to the First Respondent.

 

In my opinion, this is a far too narrow approach to Section 84(3). It is close to accepting that there will never be a case where making a permanence order with authority to adopt will be "better for the child". In co-operation with an adoption agency, adoptive parents have two choices: either to apply for adoption, or to let the adoption agency apply for a permanence order with authority to adopt and then apply for adoption. In similar vein the adoption agency itself has a choice in either approving the adoptive parents and then inviting them to apply for adoption or seeking the permanence order with authority to adopt and then matching the children with adoptive parents. The main advantage of the permanence route is that it keeps the potential adoptive parents at one step removed from an opposed court process. It seems to me that the making of a permanence order with authority to adopt of itself - all other things being equal - will at the very least increase the feeling of stability for Fiona and her husband, which in turn will be of benefit to the child. In fact, it is also likely to be seen by them as a significant step towards the final legal state of adoption.

 

Turning to Section 84(4) (number 2.b. on my list), the agent submitted that by granting the order I would not be treating as paramount the needs of the child throughout childhood. That is because the order sought is only a stop gap until adoption and therefore promotes the welfare of the child for only a short period.

 

This is effectively the same as the previous submission and is, in my opinion, met by a similar response: the benefit to the child of the increased stability from the order will also be of benefit to her throughout the remainder of her childhood.

 

Turning to Section 84(5)(c)(ii) (number 2.f. on my list), he observed that the term 'seriously detrimental' was a new one in adoption law, that it first appeared in Section 33 of the Education (Scotland) Act 1996, but has not been judicially defined. The seriously detrimental test cannot be based upon speculation alone. It cannot be minor in nature. The test is not satisfied just by the act of moving the child back to her mother, it being likely that just as much upset for the child would arise if adoptive parents are not found. The order craved cannot be granted before there has been a definite placement to the adoptive parents. It is the child's residence which is likely to be seriously detrimental. So I should take a long term approach on how residence of the child with her mother would work. Ms Donald has recognised that the First Respondent is able properly to take care of her son. That being so, how can the 'seriously detrimental' test be met? The First Respondent is not suggesting that the child is about to return to her care, but just because of that she does not then accept that it would be seriously detrimental if the child resided with her. The only evidence which would meet this test would be the risk posed by the Second Respondent. But on that matter, Ms Donald said that there was no evidence to support the risk. Fiona had mentioned online communication between the First and Second Respondent, but the former's evidence was that there had been none. She was not cross-examined on that. There was no evidence of recent communication in any form. The Petitioners' view was based solely on the First Respondent's lack of candour long ago. For these reasons, the test had not been met.

 

I have to say that this submission sits uneasily with the acceptance by the First Respondent that the child should remain in the care of her present carers. I have already criticised the introduction into the Act of the test of "seriously detrimental", but for such criticism to be repeated by the First Respondent is (or is very close to being) inconsistent with her position on where the child should go in the long term. In any event, I have no great difficulty in concluding that the test has indeed been met. There is now an acceptance, rightly in my view, by the First Respondent that she has failed properly to discharge her parental responsibilities. Little is then required to satisfy the rest of the statutory test. The child has moved on from the period when she was suffering from the failures of the First Respondent. She is thriving in her new family. To move her back to her mother, which she concedes should not happen anyway, would on the evidence be seriously detrimental to the welfare of the child. It is not enough that the First Respondent might potentially be a good parent now; it is the fact that the child has moved on and is settled in her present home. Even if that were not the case, it seems to me that the risk of harm from the Second Respondent (which I discuss later in the context of direct contact) means that residence with the First Respondent would satisfy the statutory test of "likely to be seriously detrimental".

 

Turning to the requirements of Section 83, the agent accepted that Sections 83(1)(a) and 83(1)(b) (numbers 1.a. and 1.b. in my list) have clearly been met. Section 83(c)(i) is not met because while the First Respondent now accepts that the child should stay with her carers, she is not giving her consent to the making of the order. Thus, Section 83(c)(ii) comes into play. The agent recognised that by accepting the grounds of referral the First Respondent must in turn accept that she had failed satisfactorily to discharge her parental responsibilities and to exercise her parental rights, in terms of Section 83(3). But the question remains as to whether or not she is likely to continue to be unable to do so in the future. Contact with the child in the recent past has been generally positive. She has taken care of her son to such a degree that Ms Donald is thinking of closing her file. In making that submission, the agent said that the First Respondent accepted that "we are where we are" - that the child is in a settled family.

 

Again, in my opinion, this submission does not sit easily with the First Respondent's concession. Be that as it may, however, the point being missed is that the test of "likely to be unable to do so" (S. 83(1)(c)) is not a general comment on a mother's abilities, but a specific one relating to a specific child. In my opinion, there is ample evidence contained in the admitted statement of facts to justify the conclusion, which I have reached, that the First Respondent has been unable satisfactorily to discharge her responsibilities and exercise her rights in relation to the child, and that she not only is unable but is also likely to continue to be unable to do so in the future. That is, in my opinion, doubly certain when one considers the upheaval which there would be for the child if she was removed from her present carers, an event which would be testing for the best of parents, never mind one with the modest abilities of the First Respondent. The position is then put beyond any doubt when one takes into account the risk of harm from the Second Respondent. Even if I am wrong in that, it seems to me that if I had to decide the matter on another ground the proved or admitted facts show that the condition in Section 83(2)(d) is satisfied.

 

Turning to Section 83(1)(d), the agent submitted that this was a very important part of the Act and it was this section that led one to consider Section 14. When the point was reached of the lodgment of the adoption petition, there was no statutory provision requiring intimation of the petition to the First Respondent even if she is enjoying contact (Rule14 of the Sheriff Court Adoption Rules 2009 (contained in the 2009 Act of Sederunt, supra)). It was surely inconceivable that the court would grant such a petition without knowledge of any pre-existing contact order, but that is the extent of it. It may be that the court would require intimation to the First Respondent in terms of Rule 15 of the 2009 Rules, but that was not certain. Effectively court A is being asked to grant contact where court B has the power effectively to stop it. That was a problem with the 2007 Act. Because there is no requirement to intimate the adoption petition to parents, the instant application should be refused. Certainly it is possible to apply, with leave, for a contact order post-adoption, but there will have been a time gap. How can that be in the interests of the child? Even if intimation is made to the First Respondent, there will still be a question mark over her status in the court process. There is nothing in the Act or the 2009 Rules which would entitle her to oppose the application in order to seek terms or conditions, such as a contact order.

 

Taken to its logical conclusion, this submission would mean that no court would ever grant a permanence order, with or without authority to adopt, where the court considered that there should be an order for contact. That is plainly not the intention of Parliament. The agent said that the lack of a requirement to intimate an adoption petition to a parent with a formal right to contact was "a problem with the Act". That is as may be, but it is not, in my opinion, a ground for me to refuse the application. In any event, it would be open to the court to order intimation in terms of Rule 14(1)(f) or Rule 15 and as a matter of practicality it is difficult to imagine a circumstance where the court would be unaware that the parent had such a right. This would become plain from the terms of the adoption agency report under Section 17. The reports produced by the curator ad litem and reporting officer under Rules 11 and 12 are a further safeguard. Nor do I agree that if intimation is given to the parent there is a question mark over his/her entitlement to oppose the application. The notice of intimation must, per Rule 14(2), state inter alia that the person is entitled to be heard on the application. The subsequent rules, such as Rules 18 and 19, which set out the arrangements for hearings anticipate that such a person will have attended and will be heard at those hearings.

Counsel for the Petitioners submitted that it was always possible for me to add a condition to the permanence order that there must be intimation to the First Respondent when the adoption petition is lodged. Standing the view I have reached, I do not find it necessary to do so in this case.

 

I therefore conclude that looking at the findings in fact and applying the tests as set out above I should grant the application. I also have taken into account that this is the conclusion of the reporter and curator ad litem in his report dated 27 April 2010.

 

The only issue which remains is whether or not I should include an order for direct contact.

 

There were two grounds of objection made by the Petitioners to such an order: first, that the First Respondent was not a suitable person to have such contact, and, secondly, that due to the history of the behavior of the Second Respondent and his relationship with the First Respondent there was a risk of harm to the child and her carers being perpetrated by the Second Respondent.

 

Dr Triseliotis said in his report (at p36) that there were three schools of thought about post-adoption contact: 1. there should be such contact except where there is evidence of harm and significant distress; 2. such contact should be rare, it being better to have a clean break; 3. a middle ground. He also said in his evidence that anecdotally the understanding was that most local authorities in Scotland are in principle against post-adoption contact.

 

On the same page, he records that as "adoption policy and practice has evolved over the years a presumption now exists that post-adoption face-to-face contact is the preferred option unless it is shown to be detrimental to the child". It was unclear from his report whether or not he was referring to the practice in England and Wales, or elsewhere. Certainly the law in Scotland, in so far as it reflects an up to date view, flies in the face of that policy (if by it he meant that there should be a court order for direct contact, which was certainly my understanding of his overall position). In B v C 1996 SLT 1370 (at p1377) the First Division said,

"The guiding principle is that adoption provides complete security to the child by making the child part of the adopting parents' family. Conditions expressed in favour of third parties, which might make it necessary for the court to become involved in the making of further orders with a view to the child's welfare, will not be appropriate except in the very rare cases where the child's welfare might be prejudiced if a condition to that effect were not to be made. As Lord Ackner observed in Re C, in normal circumstances it is desirable that there should be a complete break from the child's natural family."

 

Re C is a decision of the House of Lords in an English appeal reported in 1989 AC 1.

 

The point about the undesirability of the court becoming involved in the making of further orders post-adoption is repeated by the Second Division in FB and AB, Petrs, 1999 Fam LR 2. It is useful to set out at length part of the court's opinion (para 2-21):

"We should begin by considering what is the purpose of trying to provide for continuing contact in an adoption order. It does not appear to us to be appropriate in a case such as this for the court, in the absence of agreement between the parties, to make a contact order of the kind that might well be made in a case where a family unit has broken up, one parent is given custody of the children and the other parent seeks contact. The purpose in an adoption case such as the present, where the child has regular, albeit limited, contact with [the birth mother], realises that [the adoptive mother] is not her natural mother and had begun to grasp that [the birth mother] is her birth mother, is to allow some continuation of the contact between the birth mother and the child so that, as [the child] grows up, she will - provided those around her answer her questions truthfully - come to understand gradually, but at a pace that she herself will largely set, her full background and the reasons why she became and why she is now a member of the [adoptive] family. It may well be of great importance for her to learn not only that she was not rejected by her birth mother but also the reasons why her birth mother could not provide a home for her before she went to live with the [adoptive parents]. No doubt this could be imparted to her by the [adoptive parents], but [the birth mother] is the better able to explain the full history in response to the child's questions, and indeed only she can tell the child about her biological father. The sheriff's assessment of both [the birth mother] and [the adoptive parents] is very favourable, and the court is entitled to conclude that they will all deal responsibly and sensitively with this matter. In short, the court can conclude with some confidence that continuing contact is likely to assist the child to appreciate her identity and to understand her situation. Such contact would be likely to help to protect her against sudden and possibly painful disclosures when she is older and perhaps vulnerable to the ordinary problems and uncertainties of adolescence. We do not think it wise for this court to attempt to prescribe the details of such contact. We agree with the sheriff that the welfare of the child might conceivably necessitate change in the arrangements which at this time might seem entirely appropriate. So some flexibility is, in principle, desirable, if only to allow for some very material but unforeseen change in circumstances. However, undue flexibility would inevitably create a temptation for [the birth mother] to consider that she might be able to win more contact, even against the wishes of the adopting family. Alternatively, it is at least conceivable, though unlikely, that the adopting parents might be tempted to go back to court to reduce contact. Such risks, coupled with a right of recourse to the court, might thus encourage further litigation and even hostility between [the birth mother] and [the adoptive parents]. There has been more than enough litigation relating to this young child. A principal purpose of the making of an adoption order is to provide security, stability and certainty by irrevocably vesting full parental rights in the adopting parents: D v Grampian Regional Council. Subject to s12(6) of the Act, it is for the adopting parents, not the court, to decide what is appropriate for the child's welfare following the making of the adoption order."

 

Given that these authorities relate to the previous statutory regime, they are not, strictly speaking, binding on me. But the basic principles of adoption have not been materially changed by the new Act. Consequently, the above dicta are entitled to the utmost respect. As it happens, I respectfully agree with their approach.

 

As I have pointed out earlier in this judgment, it is not the law, whatever be Dr Triseliotis' exposition of current social work practice elsewhere in the United Kingdom or overseas, that there is a presumption in favour of post-adoption contact. On the contrary, as the above dicta demonstrate, the principle of a clean break still forms part of our law and while parties are encouraged to enter into informal long term contact arrangements the law is anxious to discourage the prospect of future divisive and expensive litigation.

 

The discussion of the law thus far has been about post-adoption contact - and indeed both parties' representatives and the witnesses used interchangeably the terms "post-adoption contact" and "contact within a permanence order". That they did so is unsurprising, given that the instant application is for a permanence order granting authority to adopt, which if granted - and as the evidence disclosed - will almost inevitably be followed by an application by Fiona and her husband to adopt the child, subject of course to the usual matching procedures and the decision of the adoption panel. Thus the parties were treating this application as a precursor to the child's adoption.

 

Standing that approach by the parties, I have proceeded on the understanding that my decision on direct contact within the permanence order should be made on the reasonable premise that in early course there will be made an application for adoption, bearing in mind of course that in deciding the issue now I have to consider the welfare of the child up to the age of sixteen years.

 

I can well see that in relation to a permanence order simpliciter considerations other than those which the law applies for post-adoption contact will apply.

 

There is an argument, which was not discussed before me, that even where the application is also to grant authority to adopt the court should apply different considerations than for post-adoption contact. There is perhaps some force in that, although it is not immediately clear to me what different factors there might be in an individual case which would require a different approach. But I do not think that such factors, even if they could exist, do so in the instant case.

 

Having set out my understanding of the law - and bearing in mind the earlier exposition of my understanding of the tasks I require to address and the approach for doing so - I now turn to the evidence.

 

In my opinion, the First Respondent was, except for one part of her evidence, a credible witness. All of the other witnesses were both credible and reliable. In particular, the two expert witnesses were, in their respective ways and despite their different conclusions, both persuasive and informative.

 

I have not found it necessary to add much to the findings in fact which arose from the joint minute of admissions. This was primarily because the First Respondent - I think, very fairly - conceded the principal relevant facts. In particular, she admitted that her relationship with the Second Respondent went on much longer than she had previously admitted to the Petitioners. In doing so, she was conceding that she had deceived the social workers. She also readily admitted that the Second Respondent continues to be a potential danger not just to herself and her son but also to the child and her carers.

 

It would be open to me - some might regard it as essential - to reach findings in fact on the whole history in this case, but I do not think it is appropriate to do so. I could, for example, decide what happened during each period of contact, if I thought that the quality of the evidence about each occasion was such that it would be safe to do so. But I do not think that would be wise. It seems to me that it is far better to reach certain broad conclusions, being the ones which I consider relevant in deciding the issues.

 

While Dr Cairns and Dr Triseliotis have reached very different conclusions on direct contact, I do not think that there is that much of a gulf between them. It seems to me that the primary reason for their different conclusions was that Dr Cairns approached the problem as a child psychologist - as she said, she considers how people behave just as much as what they say. Dr Triseliotis approached the problem as an academic in social work, relying considerably on the academic research of himself and others. In my opinion, both approaches have merit and have assisted me in reaching decisions.

 

On the question of her suitability as a person to have direct contact, I found the First Respondent to be a straightforward and truthful witness. (There was one exception to that, namely the number of times she visited the Second Respondent in prison. The written evidence was that she visited him on many occasions, although as no witnesses were led directly about that, I have not decided to include findings in fact about it, albeit that I am still suspicious of the First Respondent's evidence - see productions number 5/10 and 5/12 of process.) It was to her considerable credit, no matter how late in the day, that she was prepared to accept that the child should stay with her present carers. Her love of her child was obviously sincere. There was much evidence critical of her behaviour during contact, but I consider that much of that criticism was unrealistic, given that until late in the proof she did not agree that it was in the best interests of her child that she live with anyone other than herself. One would have to have a heart of stone not to be sympathetic of her unease on hearing her child call her carer 'mummy'. Doubtless, it is correct that when this happens an estranged mother should hide her feelings. But that ignores the reality in which mothers like the First Respondent find themselves. It should not be forgotten that through no fault of her own she had an abysmal start in life - and was a victim of bad parenting just as much as (probably more than) her daughter. All the social worker witnesses were quick to defend her right to oppose the application, but I detected that this was a mantra which they had been taught to expound. To distinguish between a formal right and an emotional objection is one which comes easily to lawyers, but I doubt if it is so easy for a mother, particularly one like the First Respondent, who has had her child taken from her. There was much evidence about whether or not the First Respondent objected to the way her child's hair was cut by her carer - and her inability to hide her distress about that. But in the context I have described I do not consider that anything really turns on that. At the end of the day, the First Respondent rightly or wrongly thought that her child should be with her. It is therefore scarcely surprising that matters as trivial as who does a haircut became the only means by which she could express her anger and frustration.

 

Both Dr Cairns and Dr Triseliotis observed a period of contact. They reached different conclusions, but in my view that was more a question of emphasis than anything else. It seems to me that all one can safely conclude from the evidence of their observations, as well as the evidence in the social work files and that of the First Respondent, is that the child does enjoy contact with her mother, but that she would not suffer unduly if it did not occur - and that this is becoming clearer the more that time goes by and the more she settles into her present carers' family. Of course, that does not automatically mean that a lack of contact with her mother in later years will not have an adverse effect upon her - and that is an important consideration.

 

I was very impressed by Fiona. I consider that she was genuine in expressing the view that she would wish the child to have direct contact with her mother. I was particularly impressed by her view that the child needs a period of stability to grow her relationships within her new family, with a view to contact with the First Respondent in due course and at the proper time. In saying that, I am mindful of Dr Cairns' wise words that if a child is not free to seek contact with the birth family, "there is something wrong with the placement". I am confident that, subject to my comments below about the Second Respondent, the child's prospective adoptive parents will act responsibly to ensure so far as they can that the child keeps in contact with her mother.

 

It is to the First Respondent's considerable credit that she has so far as I can judge turned her life around - and that she has received a favourable report from Ms Donald.

Thus, if that was the extent of the whole circumstances in this case, I would have decided that it was in the best interests of the child that she have direct contact with her mother, although I would then have had to move on to the more difficult question of whether I should make an order for contact, rather than leaving it to the parties to resolve it. But the most critical problem in this case is the spectre of possible harm to the child and her carers by the Second Respondent.

 

I have already narrated the First Respondent's views about him. Her evidence that he continues to be a potential risk not only to her and her son but also to the child and her carers was compelling. And her view is supported not only by his past treatment of her, but also by the conclusions in the forensic clinical psychology report (number 5/18 of process), in which it is recorded (at p8) that he "presents the greatest degree of risk to his partner and child". The psychologist also records (at p9) that "[w]hile he has stated that he would not hurt his daughter it seems to me that he is not always in control of his behaviour especially when distressed". She reiterated her conclusions in a supplementary report (number 5/19 of process).

 

There was some evidence from Fiona that the First Respondent has recently been in touch with the Second Respondent on the Facebook website, but I am not satisfied that this has been satisfactorily proved. It would presumably have been open to the Petitioners to have led evidence about that by producing the pages of the website. They did not do so. And the First Respondent vehemently denied that she had been in contact with him, whether personally or electronically. I therefore put that allegation to one side. I was also satisfied that the First Respondent had indeed moved on and no longer had feelings for the Second Respondent. Nevertheless, it seemed to me that there is still a risk that the Second Respondent would successfully trace her and that she could end up - I surmise out of fear of the consequences to herself and her son - telling him what information she had gleaned about the present whereabouts of the child. It is therefore clear to me that the Second Respondent continues to pose a risk to the child and her carers. It is also self evident to me that it is wholly unrealistic that supervised contact would guarantee that the child would not give some clues to the First Respondent about where she lives or where she goes to school. Accordingly, it seems to me that there remains a severe risk that the Second Respondent will be able to discover the present whereabouts of the child. I reach that conclusion while fully accepting that it would never be the intention of the First Respondent to disclose that information. But her quite understandable fear of the Second Respondent is, in my judgment, always likely to result in her revealing information which she would otherwise not.

 

In these circumstances, I am satisfied that a direct contact order would not be in the child's best interests.

But even if the Second Respondent was not a factor in this case, I still would not consider that there should be a direct contact order. The reasons why I have reached that conclusion are the same as the court employed in FB and AB, Petitioners. The court was supportive of the notion of direct post-adoption contact, but concluded that this should be left to the good sense of the adoptive parents and the mother. While Dr Triseliotis was in favour of a direct contact order, he accepted that voluntary arrangements are much better. He went on (at p45):

"Though court orders have their place in exceptional cases, nevertheless if an order is required, then the seeds are also sown for a possible confrontation and for disputes between parties."

 

I agree, but I do not see why the instant case (nor does Dr Triseliotis satisfactory explain) is an exceptional one, standing the clear statements of the carers that they are in favour of informal direct contact.

 

At one point in his evidence, in discussion of one issue with me, Dr Triseliotis complained that he was not a prophet. I remarked that perhaps I was supposed to be one, the obvious point being that neither I, nor anyone else, can predict the future and, in particular, what the needs of the child will be and how they should be met. That is a powerful argument against the artificial creation of post-adoption contact rights which might look fine now, but could be hopelessly wrong in the future.

 

Of course, cynical adoptive parents could make lots of soothing comments now about their support for post-adoption contact, but have no intention whatsoever of granting it after the adoption has taken place. So, much depends upon their acting in good faith. But the same could be said about all the other obligations they undertake post-adoption. It is for that reason that there is such a painstaking process pre-adoption to ensure, so far as humanly possible, that a child will be loved and nurtured throughout its childhood and beyond by loving and caring parents. I am entirely confident that Fiona and her husband will do just that.

 

I have considered whether or not there should be mandatory contact between the grant of the permanence order with authority to adopt and, as is hoped, the adoption itself. The First Respondent has continued to exercise contact and, on one view, there is no reason why that should not continue until the adoption is finalised. I was not invited to consider that situation and I have wondered whether I should allow the parties to address me on it. I have, however, decided not to take that course, not least because it would cause yet further delay which is not in the child's interests. But I also consider that the sooner decisions on the appropriateness of contact are made by the prospective adoptive parents the better. Future judgments on the risk from the Second Respondent will always be difficult - and indeed it is quite possible that Fiona and her husband will simply have no more reliable information upon which to make these judgments. But subject to their views on that, I would urge them to continue to allow contact with the First Respondent, if not on the present basis but certainly close to it until the adoption petition is about to be granted. I would also urge them, as moved in this case and as suggested by the court in FB and AB, Petitioners, to consider that post-adoption contact should be three monthly or as otherwise agreed among the parties.

 

Parties were agreed that there should be indirect contact, which I hope I have accurately expressed in the interlocutor.

 

It was also not in dispute that if I grant the application the supervision requirement should be recalled and that there should be a finding of no expenses due to or by either party.

 

I agreed with the parties' representatives that I should issue this judgment in draft, which was duly done. Parties confirmed that they were content that the interlocutor correctly deals with the technical aspects of the orders which require to be pronounced in the light of my findings.