Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLANDS AND ISLANDS AT KIRKWALL

     

J U D G M E N T B Y

VALERIE JOHNSTON, Sheriff of Grampian Highlands and Islands at Orkney

in causa

ORKNEY ISLANDS COUNCIL, having a Principal Office at School Place, Kirkwall, Orkney KW15 1NY

PETITIONER

against

MR. H,

FIRST RESPONDENT

and

MRS. H,

SECOND RESPONDENT

 

KIRKWALL, 17^th October 2011. The sheriff having resumed consideration of the cause, Finds in Fact:

 

 

 

1.      The petitioner is Orkney Islands Council, a Local Authority, having its principal offices at School Place, Orkney. It is an adoption agency for the purposes of section 119 of the Adoption (Scotland) Act 2007.

 

2.      The first respondent is Mr. H .... He was born on ..... He is unemployed and in receipt of state benefits. He is a carer for his wife the second respondent.

 

3.      The second respondent is Mrs. H who resides with her husband the first respondent at ..... She was born on.... She is unemployed.

 

4.      The respondents are the mother and father of C (the child).

 

5.      The child was born on...at..... She is in the care of an adoption agency, namely Orkney Islands Council. She is subject to a supervision requirement under section 70 of the Children (Scotland) Act 1995.

 

6.      The child has resided in foster care since 2 June 2009.

 

7.      The first respondent was born in ... and had two sisters. His mother died when he was 2 months old. He was separated from his sisters and brought up by his maternal aunt with her six children. He regarded them as his mother and his brothers and sisters.

 

8.      The first respondent began to work as a milk boy when he was five years of age. He continued to work on the milk vans and as a car valet locally .....until sometime after he married the second respondent in ... 2010. His work commitment was exemplary and a source of great pride to him.

 

9.      The first respondent is a house owner, has passed his driving test and is a car owner. He is well known in the local community. He had the support of his family until some time after he commenced his relationship with the second respondent. After he commenced the relationship with the second respondent he accumulated significant debt which got worse after he lost his employment. The family home was at risk. He was unwilling to accept help from a social worker but took advice and by 18 April 2011 repossession by the security holder was averted indefinitely.

 

10. The first respondent is often unkempt in appearance and has issues pertaining to personal care. After he commenced the relationship with the second respondent the standard of cleanliness in his home deteriorated and there is an unpleasant odour which permeates throughout the house.

 

11. The first respondent has a history of learning difficulties and a commitment to caring for the second respondent, who requires significant support, which impact on his ability to focus on the child's needs.

 

12. The first respondent has a full scale IQ of 76. He has borderline learning difficulties. He can function just within the low average level in practical tasks but has limited vocabulary and poor verbal comprehension skills. He has difficulty discussing complex issues.

 

13. The second respondent was born in .... and has two brothers and two sisters. She has a history of learning difficulties impacting on her ability to focus on the child's needs. At the age of 3 or 4 she was diagnosed with Global Developmental Delay and epilepsy.

 

14. On 20 May 1994 there was a child protection referral made in relation to the second respondent's brother. There were concerns about the level of physical chastisement within the family home towards all of the children. At an Initial Child Protection Case Conference on 26 May 1994 all of the children's names were placed on the Child Protection Register. The children's names were removed from the Child Protection Register on 7 December 1994. Between 1994 and 1997 further referrals were made to the Children and Families Team when concerns were raised by the community alleging sexually explicit language was being used by the second respondent's siblings, and due to concerns about the unkempt appearance of the children and hygiene standards within the family home.

 

15. The second respondent and her siblings were raised with a lack of social stimulation and interaction within the family home. They experienced difficulties within the school environment exhibiting negative behaviours and poor personal hygiene. They experienced rejection by their peers and isolation.

 

16. The second respondent's immediate family resides in Orkney and is well known to the local community which has a negative perception of them. The family view of the social services is one of suspicion and hostility and as a result the second respondent has an entrenched negative perception of social services and a reluctance to accept support.

 

17. The second respondent has a full scale IQ of 64. She has Learning Disability and significant cognitive impairment. Her low cognitive ability is a significant factor affecting her parenting skills. She has the capacity to give instructions and to understand the main issues relating to the child provided simple language is used in discussions.

 

18. The second respondent is an inconsistent and unreliable historian. She has a very limited capacity to prioritise, organize and sequence tasks and requires a great deal of assistance in managing daily routines. She has problems recognizing environmental cues and requires significant help to learn new skills. Her poor motivation and concentration were noted in her school years and impaired her independent learning and personal care. As a teenager she showed angry outbursts over small incidents often being physically aggressive. As she has grown older her behaviour has moderated significantly and she is less prone to act in a volatile manner.

 

19. The second respondent has significant problems in caring for herself. Her personal hygiene is poor. She has suffered repeated head lice infestation since childhood. She lacks motivation and is unable to maintain focus for any length of time. She has a poor diet, has a weight problem and prefers to remain immobile in her chair. Lack of exercise has an adverse effect on her poor health. She is childlike in her presentation. She is capable of and has made positive choices and neither smokes nor drinks alcohol. She relies on adults to motivate her.

 

20. The second respondent moved out of her family home when she turned 16 to reside with the first respondent. She has known him for most of her life as he babysat for her and her siblings and was a friend of her father. The first respondent has taken better care of the first respondent than she received in her family home.

 

21. The respondents maintained that there was no sexual relationship between them until she was about seventeen and a half years of age.

 

22. The second respondent's younger sister had a concealed pregnancy and gave birth to a male child in ....2007. The second respondent visited her sister in the Maternity Hospital. Maternity staff were extremely concerned about the second respondent's aggressive nature, volatile behaviour and her rough and inappropriate handling of her baby nephew. She was not permitted to visit unless constantly supervised by staff. She was eventually asked to leave following a number of disruptive outbursts.

 

23. Between January 2008 and June 2008 the second respondent's sister and nephew resided at Camoran Resource Centre. Due to her rough and inappropriate handling of the child and her aggressive behaviour the second respondent was banned from the Centre on three occasions as it was felt that her behaviour was impacting significantly on the baby.

 

24. Community Social Services had and continue to have extensive involvement with the second respondent's sister and nephew.

 

25. The second respondent presented at Balfour Maternity Unit, Kirkwall on 13 April 2009 and was found to be 32 weeks pregnant. The respondents had not disclosed the pregnancy. She had obtained no ante-natal care.

 

26. A formal Child Protection Referral was made in respect of the respondents' unborn baby due to concerns about her learning difficulties and the impact of those on her ability to parent the child and also due to her history of volatile and unpredictable behaviour.

 

27. An Initial Child Protection Case Conference was held on 29 April 2009. A decision was made to place the unborn child's name on the Child Protection Register at birth under the primary category of physical neglect and the secondary category of physical injury.

 

28. Midwifery services arranged pre-natal parent craft sessions on a one to one basis with the respondents. They covered making up feeds, sterilizing bottles, bathing babies and all aspects of caring for a new baby. The first respondent applied himself extremely well. The second respondent made little effort. She played with the dolls as a child would.

 

29. Following the child's birth, the respondents agreed to work on a voluntary basis with Community Social Services.

 

30. On 2 June 2009, the respondents, the child and Sarah Peace, social care worker with the petitioner, returned to Orkney. The respondents agreed that the child would be placed in foster care on her return to Orkney.

 

31. Mrs. N, social worker was first introduced to the parents on 2^nd June 2009 when they returned from Aberdeen with the child and took over the child's case formally on 9^th June 2009.

 

32. The child was placed with S, foster carer. The child has a strong attachment to S. The longer she remains with S the stronger that will become and the more traumatic the separation for the child.

 

33. On 29 May 2009, a formal referral was made by Community Social Services to the Children's Reporter.

 

34. The child was accommodated under Section 25 of the Children (Scotland) Act 1995.

 

35. Contact between the child and the respondents was initially for four hours each day and was supervised following their return to Orkney. It was not safe for the child to be in the unsupervised care of the respondents. Extensive support was provided by the local midwifery team, the Health Visitor and social care staff to teach the respondents the requirements for the basic care of a baby.

 

36. A six week Parenting Assessment Plan based upon a protocol for the assessment of parents with learning difficulties and published by Hertfordshire Council was drawn up and implemented. This was adapted as time progressed to fit with the perceived needs of the respondents and the child and on the basis of ongoing research. Regard was had to training from an independent consultant who specialized in childcare training.

 

37. The six weeks assessment also involved the midwives. The support given was substantial. Midwives remained involved in supporting the parents for about 28 days after the child was born, which was the maximum time they could be involved.

 

38. The respondents struggled to take on advice given to them by social workers and health care professionals. Both struggled to learn how to consistently make up feeds and clean bottles despite being shown on numerous occasions by the midwives and followed up by health workers. Dirty bottles were found in the house by health visitors.

 

39. Both respondents struggled with calculating times for the child's next feed and fed her when it wasn't necessary to do so. Sometimes the second respondent's handling of the child was rough. The respondents often had to be prompted to change the child's nappy.

 

40. About 4 weeks into the parenting assessment, prompts to perform tasks were removed to assess the respondents' progress. Without prompts they required extensive supports in respect of feeding the child, washing and bathing her. They were unable on their own initiative to establish and maintain a routine for her care. They continued to need prompts.

 

41. The respondents sometimes disagreed about the correct temperature of the child's milk and there was often tension between the respondents over caring for the child.

 

42. The second respondent's low level of ability was made worse by her poor health after the birth.

 

43. It was apparent to the health professionals, carers and social workers from the earliest stage that the respondents did not have the capacity to safeguard and promote the physical and emotional welfare of the child throughout all stages of her development nor to keep her safe. The respondents lack intuitiveness and do not have the capacity to adapt to the changing physical or emotional needs of the child or to keep her safe.

 

44. The petitioners persevered with attempts to enable the respondents to learn how to care for their child and provided an exceptionally high level of contact, both non-residential and residential, and of advice and staff assistance.

 

45. The majority of the input and assistance given was appropriate to the individual abilities of the respondents and based on good practice but lacked an overview based on an individual psychological assessment of each respondent's abilities.

 

46. The respondents would at times appear to absorb the information given and were responsive to prompting and to the demonstrations of care techniques but did not consistently retain the ability to act on and replicate these. When there were multiple tasks to carry out they would concentrate on one aspect to the exclusion of others which could jeopardize the health and safety of the child.

 

47. The respondents were able to hold the baby properly, make up feeds, test the temperature of the milk, clean and sterilize bottles, test the temperature of the bath water, change the child's nappies when shown but often forgot within a short space of time.

 

48. Over 17 months of contact the Community Social Services tried various methods of teaching parenting skills to the respondents including hands on teaching, role playing, general support and advice and pictorial aids. The respondents refused to use the pictorial aids.

 

49. At contact sessions there were times when staff had to intervene for the child's safety. On 10 June 2009 the second respondent held the child awkwardly when winding her and the child showed signs of respiratory distress. On 18 June 2009 the second respondent placed the child in her baby gym on top of a changing mat on a coffee table leaving her at risk of a fall. On 20 June 2009 the second respondent released the brake on the child's pram in the course of a tantrum and placed the child in danger of rolling onto a road. On Christmas day 2009 the second respondent placed plastic wrap within the child's reach unaware of the suffocation risk. The first respondent was supportive of the second respondent when she denied responsibility for the actions which jeopardized the safety of the child. Both respondents maintained that social care workers were lying.

 

50. At the beginning and end of contact sessions the respondents often required prompts to interact with the child and show her attention. The first respondent interacted more with the child. The second respondent spent much of contact time on her mobile phone and sitting in an armchair issuing instructions to the first respondent. She lost interest and at times gave the impression that she was fed up. She sometimes expected the child to entertain her and she seemed unwilling or unable to play with the child on the floor. She liked to play with the toys herself. The respondents were unable to provide the child with stimulation on a consistent basis or to sustain engagement with her. They were easily distracted and prone to focus on the adult staff.

 

51. The child leaves contact sessions quite happily. There is no real attachment between the child and the respondents as her parents and for a period towards the end of 2010 she began to demonstrate distress at being left for contact sessions by her foster carer. This was due to her age and attachment to the foster carer.

 

52. On 28 July 2009, a Children's Hearing decided to direct the reporter to make an application to the sheriff to find established the grounds of referral not understood by the child and not accepted by the parents. A safeguarder was appointed. They granted a warrant to keep the child in a place of safety with a condition that the child would have contact with her parents for four hours daily as arranged and supervised by the local authority .

 

53. On 17 August 2009, a Children's Hearing decided to continue the warrant with the following conditions: that the parents would have contact with the child for 4 hours daily at the family home as arranged and supervised by the Department of Community Social Services. The supervision was to be by one person.

 

54. A Review Child Protection Case Conference was held on 24 August 2009. It was unanimously decided that the child's name should be removed from the Child Protection Register. It was decided that there was no need for a continuing child protection plan, but that the child was a child in need.

 

55. On 15 September 2009 at Kirkwall Sheriff Court the grounds of referral were held to be established.

 

56. On 25 September 2009, a Children's Hearing decided to make a supervision requirement with the conditions that the child reside with S...., have respite care with Mr. and Mrs. T....; and that she should have 25 hours supervised contact with her parents per week.

 

57. On 9 and 10 December 2009 an independent clinical assessment of both respondents was undertaken to establish if they were able to parent the child in the short or long term and consider if there should be a mother and baby placement arranged.

 

58. The Independent Clinical Pychologist reported on 4 January 2010 and concluded that the child would be at significant risk of physical and emotional harm if she were placed in the respondents' care. She concluded that due to the second respondent's relatively low cognitive ability allied with her personality problems, her emotional immaturity, her lack of an appropriate internal model of parenting and her extremely negative opinion of professionals she did not have the capacity to parent the child to an appropriate standard. Although the first respondent was cognitively more capable than the second respondent his preoccupation with his own issues, his need to continue to work to preserve his status, his rejection of the concerns of the professionals and his inability to recognize when the second respondent's care of the child was inappropriate all indicated that he was not a protective factor and that he exacerbated her parenting difficulties.

 

59. The clinical psychologist attended a contact visit on 10 December 2010 at the respondents' home for a period of one hour and had significant concerns at lack of attachment between the child and the respondents and about the child's physical safety in their care. The first respondent did not respond to the child's obvious distress and focused on showing the psychologist photographs. The second respondent was seen not to support the child's head and the psychologist believed the situation was dangerous and was on the point of intervening as she thought the child was going to fall head first to the ground. The respondents were oblivious to the risk.

 

60. There are concerns about the respondents' relationship and the first respondent's behaviour towards his wife. The second respondent has stated that if the child was returned to their care she was worried for the child due to the first respondent's temper.

 

61. The second respondent has indicated to Community Services Support Staff on regular occasions that the first respondent has a temper and that he gives her lectures. On 4 December 2009 the second respondent told social services that on the weekend of 28 November 2009 after a disagreement the first respondent had grabbed her and pushed her to the floor causing an injury to her arm.

 

62. An Adult Protection Referral was made. The second respondent and a witness were interviewed by the Police. The first respondent was arrested and charged with assault. He was given a diversion from prosecution. His Social Worker was to carry out work with him for anger management and the impact on relationships. The first respondent has not seemed able or willing to engage in the support offered.

 

63. On 13 January 2010, a Children's Hearing decided to vary the supervision requirement to insert the condition that contact between the child and the respondents should be at the discretion of the local authority as detailed in the Care/Action Plan attached to the Social Work Report dated 07/01/2010.

 

64. On 16 March 2010, a meeting of the Fostering and Adoption Panel considered an application for freeing for adoption for the child. The Panel unanimously agreed to recommend; - (a) that the child should be placed for adoption; (b) that Social Work and Legal Services should meet as a matter of urgency to agree the most effective route to achieve this; and (c) that adoptive allowances would be paid to reflect the uncertainties about the child's development.

 

65. On 29^th March 2010 the Agency Decision Maker endorsed the recommendation of the Fostering and Adoption Panel of 16^th March 2010.

 

66. The respondents were married on 28 May 2010.

 

67. On 24 June 2010, a Children's Hearing to give advice to the Sheriff under section 73(3) of the Children (Scotland) Act 1995 supporting the local authority proposal to seek a Permanency Order with Authority to Adopt. The Hearing varied the supervision requirement with the conditions that the child shall have contact with the respondents for two hours per week as arranged and supervised by the local authority.

 

68. The Panel were unanimous in their support for the application that a Permanency Order with Authority to Adopt should be sought for the child.

 

69. At a meeting of the Fostering and Adoption Panel held on 15 July 2010, the Panel unanimously agreed to recommend that X and Z be approved as suitable adoptive parents for the child.

 

70. On 28^th July 2010 the Agency Decision Maker endorsed the recommendation of the Fostering and Adoption Panel of 15^th July 2010.

 

71. On 6 October 2010, a Children's Hearing decided to continue the Hearing in order to provide a Section 95 Report to the Sheriff Court advising that the supervision should be varied to have: - (1) the child reside with the prospective adoptive/foster carers and (2) contact between the child and her parents to reduced to once per month at a neutral centre to be arranged and supervised by the local authority.

 

72. The child was not moved and contact was not reduced. Contact is taking place for two hours each week.

 

73. The respondents with the support of their Advocate indicated that they did not agree with or give consent to the child being adopted. They stated on numerous occasions that they were able to care for her with support but were unable to identify what the support would be. They resented bossy advice and interference from the first respondent's family and some social work staff.

 

74. On 20 May 2011 at a contact session the second respondent was distressed and told social workers that the first respondent had assaulted her. She showed 4 or 5 bruises on her right arm which she claimed he had caused. She repeated the allegation to her parents and the police and added that they argued, that he shouted at her and that he had slapped her and punched her arm. She later retracted this statement.

 

75. The first respondent has stated on a number of occasions that he has only taken hold of the second respondent when she has had an epileptic seizure as he has been told to do so by the doctor.

 

76. On 22 May 2011 the respondents withdrew their opposition to the permanence order and the application for authority to adopt the child.

 

77. Long-term fostering would not offer the child the same degree of security as adoption.

 

78. The first respondent's extended family were consulted in relation to caring for the child. A written response was received from them stating they were unable to care for her either in the short or longer term.

 

79. The second respondent's extended family were not consulted. Residence with them is inappropriate for the child's long-term stability, development and welfare. They have historical issues of relationship difficulties, instability and social work intervention.

 

80. Due to their learning difficulties and limited ability to learn and change at a level which meets the child's changing social, emotional and physical developmental needs now or in the future the respondents are unable to care for the child without 24 hour support. The level of support required is intrusive and would not be in the child's best interests. It would be seriously detrimental to her welfare.

 

81. The respondents love the child and have always sought to act in what they see as her best interests. They support the adoption and accept that when the child is adopted she will call the prospective adopters "Mummy" and "Daddy". The respondents would not do anything to undermine the child's placement with the prospective adopters.

 

82. Due to the child's age and maturity, it is not practical to allow her the opportunity to express her views.

 

83. The child is assertive and confident. She is popular at her nursery. She is excited when she sees the respondents at contact and there is positive interaction with them.

 

84. The prospective adopters are committed to providing a family for the child. They are willing to have a one off meeting with the respondents but on the basis of the information before them have expressed a reluctance to have regular face to face contact take place.

 

85. The prospective adopters are supportive of indirect contact between the child and the respondents.

 

86. The respondents have consistently maintained contact with the child on a regular basis and have attended on time or early. The only time they missed contact was when they were on honeymoon and during that time they contacted the foster carer direct to enquire after the child.

 

87. The respondents have a relationship with the child who recognizes them but has no concept of them as her parents. This is due to a combination of her age and the lack of secure attachment to them. They are not and never have been her primary carers.

 

88. The first respondent has shown more interest in interacting with the child in contact situations. The second respondent has struggled to show sustained interest.

 

89. The respondents would not deliberately interfere with the development of a relationship between the child and the prospective adopters. Their learning difficulties mean that they do not have the capacity to develop strategies to deal with the questions the child is likely to put to them about their place in her life. They would require guidance and support to exercise contact. The contact would require to be supervised.

 

90. The Community Social Services Department supports twice yearly indirect contact by way of letterbox contact. They also support the sending of a DVD/Video to the respondents, if reasonably practicable, on an annual basis.

 

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 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 all the circumstances of the case and the need to safeguard and promote the welfare of the child throughout her life authority to adopt should be granted;

        5. That the Respondents consent to the making of the said order with authority to adopt;

        6. That the child has been placed for adoption or is likely to be so placed.

        7. That it is in the best interests of the child that the Respondents should have (1) the right on one occasion each year to face to face contact with the child for a period of two hours under supervision, (2) 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 where practicable photographs and a DVD, and (3) the right on two occasions each year to send a letter or card to the child.

        8. That the parental responsibilities and rights of the First and Second Respondents, except as provided for in 7 above, should be extinguished;

        9. That there should be vested in the Petitioners the parental responsibilities and rights;

        10. That there being no further need for compulsory measures of care, the supervision order should be terminated;

 

THEREFORE

1)     In terms of section 80(1) of the Adoption (Scotland) Act 2007 (the 2007 Act) makes a permanence order in respect of C whose date of birth is ......;

2)     In relation to C vests in the petitioner (i) the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (ii) and (d) of the Children (Scotland) Act 1995 (the 1995 Act) until the date on which she reaches the age of 18 in the case of the responsibility mentioned in section 1(1)(b)(ii) and until she reaches the age of 16 in the case of the responsibilities mentioned in section 1(1)(a), (b)(i) and (d), and (ii) the parental rights mentioned in section 2(1)(a), (b) and (d) of the 1995 Act until the date on which the child reaches the age of 16;

3)     Extinguishes the parental responsibilities in relation to C which, immediately before the making of this order vested in Mr. H and Mrs. H, spouses residing together at ..... in pursuance of section 1(1)(a), (b) and (c) of the 1995 Act;

4)     Extinguishes the parental rights in relation to C which, immediately before the making of this order vested in Mr. H and Mrs. H, spouses residing together at ...... in pursuance of section 2(1)(b) and (d) of the 1995 Act;

5)     Grants authority for C to be adopted;

6)     Orders that there be direct face to face contact between C and Mr. H and Mrs. H once per year commencing after 1 October 2012 for a period of two hours under supervision; and indirect contact on two occasions each year commencing in January 2012 whereby (i) the Petitioners will provide Mr. H and Mrs. H with written information about the welfare and development of C and where practicable photographs and a DVD, and (ii) Mr. H and Mrs. H will on two occasions each year be entitled to send a letter or card to C, all in terms of section 82(1)(e) of the 2007 Act.

7)     Orders that the existing weekly direct contact between C on the one hand and Mr. H and Mrs. H on the other hand shall cease from the date on which the child is moved to reside with proposed adopters;

8)     In terms of section 89 of the 2007 Act orders that on and from the date hereof the supervision requirement in respect of the child C should cease to have effect; and

9)     Finds no expenses due to or by either party.

 

 

 

NOTE:

[1] This case began on 21 March 2011 and lasted for 16 days. These were not all consecutive and the submissions concluded on 28 June 2011. The petitioner was represented by Mr. Sharpe, Advocate, the first respondent by Mr. Stalker, Advocate and the second respondent by Miss Stirling, Advocate. When the case first started both parents opposed the application. There was a change of circumstances between 5 May and 20 June when the respondents withdrew their opposition to the permanence order and the adoption. Agreement on future contact could not be reached and the case proceeded only on the question of whether there should be face to face contact between each parent and the child on a limited basis. I advised parties that I would have to give careful consideration to the application for such contact as it raised difficult issues. I also indicated that there would be an unfortunate delay in the issuing of my judgment due to my unavailability for a period of four weeks in the following eight.

 

I asked parties to provide details of the findings in fact and the interlocutor that they considered appropriate to the circumstances of this case and they did so. I am grateful for the careful consideration shown by counsel and their solicitors. I have provided findings in fact which may seem extensive. I have done so as I considered it necessary to establish the full background to the decision which I have come to.

 

THE EVIDENCE

[2] The evidence presented included:

1 Affidavits of witnesses

2 A substantial number of reports and other documents

3 Oral evidence of witnesses

The Witnesses

Mrs. A

[3] Mrs. A was 44 years of age at the date of giving evidence. She was a well qualified and very experienced Staff Midwife who presented her evidence very well. She was concerned to be fair to the respondents but was clear about her observations and views. I found her credible and reliable. Her views on the conclusions to be taken from the amount of input both prenatal and immediately post-natal were persuasive. It was clear that she had been very pro-active in her involvement with the respondents with an aim to assisting them and the baby in the hope that they would be able to be parents to her. Although she accepted that she had no specialized training in dealing with people with learning difficulties she had dealt with people of all levels of intellect and had prior knowledge of the second respondent gained from contact when she dealt with the concealed pregnancy of the second respondent's younger sister in 2008. She was alerted to the potential problems that the second respondent's special needs would raise and she took extra special care. Two of the most experienced midwives, herself and Ms. M were allocated to the second respondent's care.

[4] The Social Work Department was informed as the second respondent was considered to be at risk due to her youth, vulnerability and late presentation. Mrs. A described the additional support that was provided to both respondents both pre-natal and post-natal which included substantial extra parent class sessions on a one to one basis and considerable assistance in feeding and general care of the baby. The evidence which I accepted shows that she reacted well and in an appropriate and supportive manner to the issues of concern relating to the second respondent and the child as they became clearer. She was at the respondents' home on five to ten occasions and confirmed that they received three to four times the normal level of support. I also considered that she was fair in her response to cross-examination about the efforts made by the first respondent whom she described as shining, she found the second respondent less responsive, to lack motivation and to be lazy.

[5] It was accepted by Mrs. A that she had had grave concerns from the beginning of her involvement through to the end about the respondents' ability to parent C. She emphasized concerns about their personal hygiene, their own eating and drinking habits, their constant need for repetition and frequent reminders, the lack of cleanliness in their home and their arrangements for feeding the child. She highlighted the second respondent's lack of awareness of a baby's needs and lack of ability to perceive what those needs were. Her suspicions that the first respondent also had some form of learning difficulty became clearer but she was quite definite that he did seem motivated whereas the second respondent consistently lacked commitment and motivation. Mrs. A's views were based on her observations which allowed her to acquire an overall view. They seemed to me to be based on a realistic view backed up by her experience as a midwife and mother and ultimately by the psychological assessment.

 

Mrs. B

[6] Mrs. B was 37 at the date of giving evidence and from 2005 worked as a Family Focus Worker with Orkney Islands Council based at Aurrida House Council run facility for children with learning difficulties. She also worked both there as a Relief Worker and at Camoran Children's Home. Having obtained her qualification as stated in her affidavit she became a part-time Social Worker in 2009 and was involved with the respondents from the point when the baby was born on 28 May 2009. She had extensive experience of supervising contact between the respondents and the child. Her evidence was valuable as it was clear that she was alert to the needs of people with learning disabilities and how to respond to those. She had received training from specialists in methods of communication, behavioral management, hygiene and personal care, how to assist people moving on to independent living and how to use different models for building up confidence. She indicated that her experience had shown her that each person has their own unique learning difficulties and their way of learning and dealing with things.

 

[7] Mrs. B gave her evidence over three days and it was put to her that her affidavit was couched in negative terms even though any detailed examination of the contact notes disclosed many positive aspects. She was clear that she had not been intentionally selective and had indicated that the first respondent made efforts, more so than the second respondent. I had confidence in Mrs. B's opinions particularly in relation to the communication issues. She had a clear understanding of how to use various aids and how to break big pieces of information down into small digestible chunks. Her conclusions as to the capacity of each respondent were based on her own observations and are in fact in line with what would be expected given the psychological assessments. Where her evidence about individual incidents was disputed by the respondents I preferred her recollection. She was a credible witness who in addition to her training was also a mother of young children at the time of her involvement.

 

[8] Mrs. B was not asked about the question of post adoption contact. When she gave evidence the case had not become focused on that issue. I have considered the evidence that she gave about the quality of contact as part of the background in coming to a decision about ongoing contact as is sought by the respondents. She had seen contact in their home, at Meadowbank House and in the other Council run establishments both residential and non-residential. There was, as she saw it, a distinction in how the respondents acted in contact visits. I accepted without hesitation her evidence about the variable attention span of the second respondent, her tendency to play with her mobile phone texting and playing games, her unwillingness to focus on the baby and her inability to see or read the baby's cues. She spoke of both respondents missing or misreading cues, having a tendency to want to talk about themselves rather than focusing on the baby and having a fairly chaotic lifestyle with no set routine for their meal times. She spoke of the first respondent being tired, nodding off and having a difficulty in communicating in an age-appropriate manner with the baby. These are matters which I have taken into account when reaching my decision but they are not determinative.

 

Mrs. D

[6] Mrs. D was 53 years of age at the date of giving evidence and employed as Social Worker. She was measured and clear in her evidence. Her involvement related to the second respondent for whom she became responsible when the second respondent left school at age 16. Mrs. D presented as a mature women with a varied experience as outlined fully in her affidavit. This included five years working in a Residential Unit in Stirling with people with learning difficulties. It also included an appointment to the Orkney Council All Age Learning Disabilities Team after its creation on 1 November 2009. Her responsibility for the second respondent was as a transition worker and the initial aim was to assist the second respondent to attend St Colm's which provides day care for people with mild moderate learning difficulties. Her efforts to assist did not amount to anything as the second respondent proved unable to deal with the structure of St Colm's or Restart Orkney. In Mrs. D's opinion the second respondent would never be able to work as she would be unable to maintain the focus necessary. She confirmed that the second respondent was very difficult to motivate.

 

[7] One of Mrs. D's most telling observations related to the state of cleanliness of the first respondent's home. On her initial visits when the second respondent had just moved in she described it as untidy but not dirty. The first respondent appeared to have been able to keep it clean. That deteriorated thereafter. The conclusion she drew was that this was due to the poor hygiene standards of the second respondent. Mrs. D also spoke to the continual problems that the second respondent had with head lice. She was quite clear that the first respondent was very good at helping out with the efforts to motivate the second respondent. She was also more than willing to accept that both were very excited about the prospect of the new baby and that at first it looked very likely that the first respondent would manage a lot better than in fact turned out to be the case. However, her professional opinion was that it would require 24 hour support in place for the respondents to parent the child.

 

[8] Mrs. D's conclusions were based on her prior involvement with the second respondent and her own observations following the birth. She had only attended the first two or three contact sessions and I accepted as truthful and reliable her description of what took place. When cross-examined about the possibility of the second respondent benefiting from living with the first respondent she gave a very firm yes. She explained that over the time she had worked with the second respondent from her leaving school to just over a year prior to the court date she had seen her maturing and exercising better control over anger.

 

Miss E

[9] Miss E was aged 38 at the date of giving evidence and employed as a Social Worker by the Petitioners. She confirmed the terms of her affidavit and her qualifications as contained in that. Miss E gave her evidence in a clear and professional manner and was not prone to volunteering additional information. She made it very clear that her involvement was to do an assessment of the risk to the unborn baby which she did by collating information from a number of different agencies who were involved. She prepared the Petitioner's Production no. 2 the initial Child Protection Case Conference Report dated 24 April 2009. In cross-examination on behalf of the first respondent Miss E was criticized for being relentlessly negative in her evidence, for exaggeration, particularly in relation to the incident of 10 June 2009 and for being deliberately selective in the evidence she gave. She did not accept any of these criticisms I noticed that she gave very positive evidence particularly about the first respondent. She pointed to him babbling to the child and confirmed that he had good eye contact with the baby which was crucial to child development and bonding. She was, however, clear that she was not heavily involved in contact sessions and could only speak to her own observations in the limited number that she did attend. On that basis her opinion was that the respondents were not attuned to the child's needs. She qualified this to some extent by confirming that they were new parents and also that it was very difficult for parents separated from their children to relax when they were being supervised as they always felt that they were being watched and under scrutiny. I noted that the placement in a residential mother and baby placement had been rejected as 24 hour supervision was not available in either of the two. Overall I accepted her opinion that neither respondent would be able to meet the child's needs in the short, medium or long term.

 

Miss F

[11] Miss F was 30 years of age at the date of giving evidence and employed as a Social Worker by the Petitioners. In giving her evidence she always took care to direct her answers to me. Her nerves appeared to get the better of her when she was reading her affidavit and she tended to race ahead without many pauses. She confirmed in her affidavit that she was originally trained as a Staff Nurse and then as a Social Worker between 2000 and 2007 when she obtained her degree. Her main involvement in this case related to providing supervision and support. She understood that she was to be offering support, guidance and advice to make contact sessions meaningful for the parents and the child and also to give support to allow the parents to learn and develop the skills that they needed to parent. Miss F's opinions and conclusions were based on her observations which were noted in the contact records which were produced. I particularly noted that she gained the feeling that the learning process for the respondents as new parents was very drawn out with them proving limited in their ability to learn from prompting. Miss F was apologetic for areas in which she could not be clear in her recollection and she made concessions about a number of issues of concern which had been highlighted in her affidavit. I did not think that these concessions when looking at the whole body of evidence were such as to undermine the conclusions which she and others had come to in relation to the respondents' capacity to parent the child. In my view the concessions enhanced Miss F's credibility and her reliability was not damaged by her uncertainty in certain areas. Her evidence must be looked at in the context in which she was working subject to the direction of others more senior to her.

 

[12] I noted that she also found the first respondent had a tendency to get bored and fall asleep within contact sessions. The second respondent tended to become preoccupied during contact sessions playing with her mobile phones or the child's toys. After a gap of over six months this witness supervised another contact session. The child was about 1 1/2 years old and I note that in paragraph 21 of her affidavit she acknowledged that the child recognized the respondents and smiled at them. It was the first respondent who interacted with the child but that tailed off the child came to the witness without prompting. The respondents wanted to engage with the witness.

 

Mrs. G

[13] Mrs. G was 39 at the date of giving evidence and employed by the Petitioners as a Support Worker. Her qualifications in Health and Social Care were comparatively recent commencing on 2008 and concluding by her graduation in 2010. Prior to this she confirmed in her affidavit she had been employed in the Social Work Department as an Administration Assistant. She confirmed the terms of her affidavit and expanded on that in her evidence. She was a careful and considered witness and I found her both credible and reliable. Her position was that she was told that she would be a Key Support Worker for the family with a role to support and help the respondents to care for the child. Although she had been aware of the second respondent's family due to her work within the Department since 1990 she did not know the first respondent very well. I accept that she took on her role without any expectations or judgments and undertook the task in a fair manner. In cross-examination she was taken through the contact notes which she had prepared. She confirmed that although there were issues of concern noted throughout them overall there were positives as well as negatives.

 

[14] The format of the observation record forms was changed on a number of occasions and Mrs. G was asked about this. She indicated that the forms had been changed four weeks into the initial assessment period. She had personally found the original forms quite hard to deal with and did not like the tick box requirements. She had preferred to give more detail and feed that back to the main Social Worker, Mrs. N. I consider that this was an intelligent approach looking to the specifics of this particular family. Mrs. G clearly wanted to be able to give more detail to those considering the assessment and she proceeded to do so. She accepted that supervised contact throughout most of the period involved was an artificial situation and could be difficult and confusing for both respondents. She also accepted that the second respondent was ill after giving birth but pointed out that even when unwell as she did not have her daughter full-time she could have held her, stroked her cheek or interacted with her in some way. She contrasted the response of the second respondent to her own child with that she showed to a small boy of roughly the same age who came to visit. The second respondent was much more able to respond to the boy.

 

[15] Mrs. G appeared to me to be a very compassionate witness as shown by her reaction when speaking about the day the first respondent seemed to realize that C was not coming home to live with them. What she did not do, however, was allow that compassion to influence her in her overall assessment of the ability of either respondent to provide parenting for the child throughout her childhood. When specifically asked what basis she had for indicating that C would require 24 hours supervision throughout her childhood she answered clearly. In spite of the workers constantly going over how to care for the baby including washing hands, sterilizing bottles, changing nappies and setting up routines for her, the respondents were unable to retain and replicate the advice and the routines involved. She did not consider that even the first respondent alone would be able to keep the child safe and meet her basic needs. In her opinion, the use of 24 hours supervision would be unnatural for the child even if there were not insurmountable staffing problems.

 

[16] This witness had a very clear view of the full circumstances of the quality of contact between the respondents of the child. She confirmed that they were unswerving in their commitment to turning up for contact. She accepted that having contact in the way they did was an artificial situation. I felt it significant that she spoke clearly about the quality of the contact which was lacking in all the same ways. The first respondent interacted well to begin with could not maintain it while the second respondent could not focus on the child played with her mobile phones and became bored. As a result the child tended to come to the supervisors rather than her parents. Overall, Mrs. G was a clear and persuasive witness.

 

Miss I

[17] Miss I was 50 years of age at the date of giving evidence and qualified as a Registered Nurse, Registered Midwife and Registered Health Visitor. She was an experienced professional and provided an affidavit covering her involvement with the case. She was not the child's normal health visitor and first saw her at aged 13 months for the purpose of immunization. At that time she took her measurements to monitor her growth and found that she appeared to be thriving with her foster carers. She saw her again for further immunization on 10 August 2010 and finally on 24 September 2010 at a contact session were she again took growth measurements. She advised that the child was meeting all her milestones and doing well. She covered some observations of the quality of the contact session in the affidavit. She observed that the child appeared to be frustrated with her mother's attempts at play and that her father appeared to be trying harder but not picking up on her cues. She noted that both parents were easily distracted by the other people in the room. She derived the impression that the child was ahead of the parents in her developmental progressions.

[18] Miss I gave a professional opinion to the effect that it was important for the child that her ability to form attachments should not be damaged permanently. She based this on information provided to her about signs of distress shown by the child when she was taken by care workers to Nursery. She had made no personal observations of that type of distress. It came out clearly in cross-examination by the second respondent that this witness had very limited information about the history of the case and very limited contact with the other professionals that were involved. I found Miss I to be a credible and reliable witness but her evidence has to be considered against the background that she saw the child three times and her parents once. I accepted what she said about the stability of the child's placement with her foster family. I also noted that her opinion as a professional was that a child needed to see the same carers on a consistent basis which I did not take to be challenged.

 

Miss J

[19] Miss J was 34 years of age at the date of giving evidence and confirmed she was a Staff Nurse, qualified as a Midwife in 2001 and worked at the Balfour Hospital as a Staff Midwife and Sonographer. Her personal contact with the respondents was limited but she came to the same conclusions about their capacity to care for the baby as others had. It was clear that she had obtained information from records and others prior to attending the two home visits with the respondents on 12 and 26 June 2009. As a professional with duties to ensure the welfare of a new born baby I would expect her to have done so. She confirmed she had been aware of the second respondent when the second respondent's sister was in hospital for the birth. I noted that she had been warned to watch the second respondent and had come to a conclusion that the worry was that the second respondent would remove the baby

 

[20] In cross-examination she accepted that she had no training on how to deal with people with learning disabilities nor in particular how to assist the second respondent according to her individual needs in this case. She did not view that as a difficulty as she was confident that intensive support had been given on a one to one basis in the parent craft classes and she herself had repeated instruction on the two occasions she visited. Her conclusion from what she had read, been told and seen was that the respondents struggled to care for the baby in spite of the intensive support that they were given. They had a poor awareness of the safety needs in handling the baby generally and also when feeding. They were unable to improve or learn on the two dates when she was in attendance at which time she spoke to them about making up feeds and storing bottles, found that they could repeat what she said but were unable to retain how to do it. It was not always the case that they could not carry out instructions but her view appeared to be that they retention difficulties. She had witnessed the couple placing the baby in an unsafe position on the worktop, the first respondent changing the baby's nappy twice when on one occasion he had to be prompted to lift the baby off the urine and had seen them bathe the baby on one occasion. It was clear that her pric concern was the safety of the baby. My view of this witness's evidence is that she applied a professional eye to the care of the baby on two brief occasions in the first month of her life but had limited input such as would enable her to draw long term conclusions and she was not examined on the issue post adoption contact.

 

Mr. K

[21] Mr. K was 48 years of age at the date of giving evidence and confirmed that he had worked as a Social Worker since 1995 obtaining a university degree in 2000. He had worked for Orkney Islands Council since October 2006 and was involved in the All Age Learning Disabilities Service. He confirmed the terms of his affidavit and pointed out during his evidence that it was dated 10 November 2010 whilst he was giving evidence on 19 April 2011. His involvement was with the first respondent who had come to his attention in November 2009 after a court appearance for non payment of a fine. He concluded that the first respondent presented an able appearance but that was superficial and although the first respondent would smile and nod it was clear there was a level non-comprehension and that he required help with day to day living. Mr. K presented as a very laid back witness who was sympathetic to the first respondent and his evidence primarily related to his involvement in trying to assist him with debt problems. He confirmed about two months into that involvement he felt that the first respondent disengaged from his assistance due to a combination of external influences and the involvement of the Children and Families Team with the child. His opinion was that there was increase in difficulty due to money problems and the loss of support from the first respondent's own extended family due to his relationship with the second respondent. He felt that their help had previously kept the first respondent functioning well within the community.

[22] Mr. K accepted that the financial situation in the current economic climate was not unusual and not in itself a reason to have children removed from their family home. He confirmed that he had only seen the family once since the date of his affidavit. He was criticized for attending at contact sessions which he had done on eight or nine occasions but pointed out that he had only been there at the end of each session during which the child was present for about 10 minutes and stated that it was only way he could contact the first respondent. He provided details of his own personal observations which supported the other evidence regarding the level of effort made by the first and second respondents to engage with the child. His opinion was that the first respondent was more attached to the child than the second respondent. He based this on the way that the first respondent interacted with her playing an active role and attempting to interact with her. The first respondent would be down on his knees face to face with his daughter while the second respondent showed no inclination to do so and was sitting in an armchair on her mobile phone or reading a child's book or playing or using her little laptop. He accepted that these contact sessions did not represent a normal family situation. He also accepted that both loved their daughter although he paused before confirming that also applied to the second respondent. His conclusion from his involvement was that the first respondent was unable to provide a safe financial situation for the child although he did not know the up to date position.

 

Mrs. L

[23] Mrs. L was 46 years of age at the date of giving evidence and a Social Worker with the All Ages Disability Team of Orkney Islands Council. She confirmed that she had extensive experience in her career working with adults with learning disabilities and also, since August 2008, with children who have additional support needs. She became the Social Worker for the second respondent from about 22 June 2010. She outlined the extent of her involvement in her affidavit and this included doing an assessment of the second respondent's needs. Mrs. L made it clear that she tried to keep her involvement separate from that of the CSS. She accepted that it would be difficult for the second respondent to see her as such on the basis that her suspicion of Social Workers had been with her for a long time prior to the child's birth. The assistance she gave was mainly around financial problems but she confirmed that she had tried to help the second respondent deal with her personal needs and come to the conclusion that she could not understand what those were. She identified problems with both respondents withholding information and gave her personal view on how the second respondent preferred to see her own finances as separate from those of the first respondent. She was of the view that the second respondent understood the mail which came in to her about her benefits but did not want to share the information as she saw it as her own money.

 

[24] Her professional opinion was that the second respondent focused on the short term and dealt with things that were happening in the present. She had little perception of how she had contributed to difficulties which arose. She had no concept of marriage as a partnership and showed little emotional feeling towards her daughter. Mrs. L was fearful that the child would be put at risk if she was within the care of the respondents. She accepted some criticism of her conclusions relating to background information but pointed out that she had not been involved until C was a year old so was fully conversant with the circumstances prior to that date. She had felt there was an issue as to how far the second respondent's problems arose from her learning difficulties or her social upbringing and felt that it would be beneficial to have a comprehensive assessment of her ability to make decisions. While Mrs. L was criticized and it was implied that her level of experience as a Social Worker was limited I considered that her evidence was valuable as based on extensive experience with adults with learning difficulties. I also considered her to be credible and reliable.

 

Ms M

[25] Ms M was 48 years of age at the date of giving evidence and a Midwife at the Balfour Hospital in Orkney since 2005. She had extensive experience as a Registered General Nurse, Registered General Midwife and a Staff Midwife and a Community Midwife. She presented as confident and self-assured and came over as extremely clear about her evidence and her views. In her affidavit this witness outlined the extensive prenatal work which was done. She was involved on two occasions at the additional one to one parenting sessions and she also visited the respondents' home before the birth and on two home visits after the birth. She noted things were a bit more disheveled at that point. Her understanding from the second respondent's medical notes was that she had global developmental delay which indicated she had not reached her milestones in education, reading, writing and cognitive skills. Her concern was that the second respondent would not be able to learn the skills to deal with the child without some kind of external assistance or extended family support. Her information was there was no apparent family support. This witness was cross-examined about the general position of mothers who wish to breast feed and how things could go wrong. She accepted that she had no specialist background in learning difficulties but went on to confirm that she had been Midwife since 1985 and had come across all people of all types. She had seen one instance where the mother was worse than the second respondent but had extremely good family involvement. She was confident that she had chosen the appropriate level of materials to assist the respondents in preparation for the baby and had repeatedly encouraged the second respondent and explained to her the need to keep feeding the baby and expressing milk to keep lactating. The second respondent had been frank at a meeting of 22 June 2009 that she was not putting in the effort. I considered her evidence well balanced and her opinions justified in the circumstances of this case.

 

Mrs. N

[26] Mrs. N was 46 years of age at the date of giving evidence and a Social Worker with Orkney Islands Council in the Generic Team. She confirmed she was qualified as a State Enrolled Nurse in 1983 and a social worker in December 2006. She outlined her involvement in social care in her affidavit. Mrs. N was the person who was allocated with the responsibility for the child and who established the arrangements and system which formed the majority of the evidence in the case. She had no involvement prior to the child's birth. She was heavily criticized and portrayed as a novice who did not appreciate let alone apply good practice in the attempt to enable the respondents to care for their child. Her professional judgment came under intense scrutiny in relation to the assessment process and her personal involvement in contact sessions. I found Mrs. N to be a professional witness and to be both credible and reliable. Her relatively recent qualification as a social worker seemed to me to provide her with a keener up to date understanding of the issues in the case especially against the background of her maturity and prior experience as a nurse and Social care Coordinator, her experience in previous parenting assessments and in working with both dementia patients and people with learning difficulties. She undertook research on the internet and referred to the Hertfordshire Protocol and the work of experts named Sally Wassell and Sue McGaw. She had received some training from Ms Wassell. The appropriateness of the assistance she devised for the respondents was confirmed by the clinical psychologist, Ms O. In cross examination she was able to explain how she understood the learning disabled were best able to learn and how that had been taken into account.

 

[27] With the benefit of hindsight not all of Mrs. N's decisions were the best but she did make decisions and did so with the best interests of the child at the forefront and also with regard and compassion for the feelings and the rights of the respondents. Having established with the use of the Virtual Baby that the respondents score was very poor it would have been wise to obtain an assessment of their abilities earlier than the December of 2009. I do not believe that would have made a difference to the outcome of this application although it may have seen the issues determined at an earlier stage. I am at a loss to understand why the senior social workers supervising the case did not direct such an assessment as a matter of priority. The volume of contact, the level of staff time needed to supervise that and the clear views, subsequently justified, of the professionals involved should have alerted them to the need to do so at an early stage.

 

[28] I accepted Mrs. N's assessment of the adopters as a very good match for the child and noted her views on the nature of continuing contact between the respondents and the child. She considered that there should only be letterbox contact and pointed to the lack of any secure attachment between the respondents and the child. She had an overview of contact having coordinated it and been involved in significant number of contact sessions over the whole period of the case. She was criticized for that and for failing to recognize that her presence could be an inhibiting factor for the respondents. She described the same lack of involvement shown by the second respondent and the struggle the first respondent had to maintain interest for a full two hours. The child was developing normally and was functioning at an age appropriate level. Her opinion was that the child would need significant stimulation to maintain that development. She observed that at contact the child would go to the first respondent as an interesting person to play with for a while then would go to the carers. She did not go to the second respondent. At the end of contact she showed no distress on leaving them. In that situation and at the child's age her opinion was that face to face contact with the respondents could result in her becoming unsettled in her home and insecure. She was also of the view that due to the respondents' opposition to adoption they could undermine the placement although this would be inadvertent rather than deliberate.

 

[29] Mrs. N provided a supplementary affidavit dated 16 June 2011 and was recalled to the witness box on the 22 June. This followed a contact period on 20 May 2011 during which the second respondent disclosed that she had been assaulted by the first respondent. The second respondent was distressed, cried and showed bruises on her arm which she attributed to her husband. Mrs. N understood that although the allegations had been repeated to the police and the second respondent's parent she had subsequently retracted them. She was subjected to severe criticism in cross examination for supervising contact after being in court as a witness and giving evidence against the respondents which had been critical and negative. Her position was that as at previous times she was treated well by the respondents who did not exhibit hostility towards her. I believed the evidence she gave about the disclosure which was supported by Mrs. G.

 

Ms O

[30] Ms O is a Chartered Clinical Psychologist and Associate Fellow of the British Psychological Society. She produced a Report (Petitioner's production) and was examined and cross examined in detail on her conclusions. Ms O was well qualified and while she agreed that she did not specialize in the area of Learning Disabilities I accepted that she was qualified and had extensive relevant experience to justify her conclusions. She was challenged as to whether she had any preconceptions when she met the respondents, on the relationship she may have had with Mrs. N, and the factual basis on which she based her views. I accepted that she was entirely professional and independent in her approach and where her evidence on factual matters arising out of her personal involvement at meetings with the respondents arose I preferred her evidence.

 

[31] Ms O made it very clear that it was not the respective learning difficulties of the respondents which prevented them from parenting the child. In this case there were multi-functional problems which combined and led to that result. She had experience of learning disabled parents who were able to parent well and indicated that with an IQ of 64 someone who had a good internal model of parenting could manage well. She did not accept that there had been a system failure in this case in the steps taken by the Social Work Department although she conceded that it may have been better to do the psychological assessment earlier than the December 2009. She also accepted that extraneous issues should not have been introduced to contact sessions. I agreed with her view that the respondents had been given a good chance and noted that she considered that in comparison to other areas the Orkney Social Services had been pro-active and allowed the respondents to care for their child over a long period of time with support. She was tested on the system put in place and was clear that it was as good as could be arranged, that there were a reasonable number of staff involved and that she had no sense of the parents having been overwhelmed. She was asked about the methods used to help the respondents develop parenting skills and care for their child. She stated that the best way for learning disabled parents was for the support to be based in their own environment, for it to be done by modeling the skills required, allowing the parents to observe then take over, giving them advice and help to perform the tasks and then withdrawing and allowing the parents to provide the care themselves. She agreed that it was possible that being observed could cause anxiety but in this case many months had passed and she would have expected that to reduce. She herself had observed contact and in that period of one hour had felt significant concern for the physical safety of the child to the extent that, unusually, she almost intervened. Her personal observations confirmed the difficulties within contact noted by all of the professionals who had dealt with the case.

 

[32] Ms O emphasized that childcare required the ability to perform numerous tasks at the same time not just a single task. That required organization and sequencing of tasks making it complex. The second respondent's learning difficulties interacted with her social difficulties and unmet emotional needs from her own childhood. She placed her own needs first, lacked motivational skills and could not predict or see what would put the child at risk. The first respondent had a wider span of abilities than the second respondent but prioritized his wife's needs over those of the child. She described his annoyance at the child being taken into care a normal response but had found no sign of either respondent coming to work with the system in the interest of their child as would normally happen. The first respondent noted the concerns raised by social care staff but focused on his wife, was defensive and did not support them. He did not recognize that they were a family unit and his role within that was to care for both. In relation to the incident when the child turned blue Ms O was clear that the first respondent volunteered the information that his wife had become angry with the social worker and that he had required to restrain her. His reaction was not one of concern for the child. He also failed to recognize his role was to care for both his wife and his child in the pram incident when he supported the first respondent's version of events and did not support the professionals.

 

[33] I considered the description of her observation of contact significant. She saw a lack of attachment and a failure in both respondents to pick up the child's cues and respond to her distress. The first respondent wished to relate to her rather than the child which is in keeping with staff observations in the majority of contact sessions. The second respondent endangered the physical safety of the child. When asked how far this may have been due to dyspraxia she was clear that after so many months she would have expected the second respondent to have learnt how to hold her child. She described a barren response from the second respondent to the child on her arrival with little sign that she was happy to see her. The child received a warm greeting from the first respondent but this was not maintained and he was oblivious to her distress even though they were all in a small room. Both parents seemed relieved when the child was leaving.

 

[34] Ms O was asked about the advisability of post adoption face to face contact. She indicated that it depended on a number of factors. One was whether the parents were able to give the child permission to transfer to the adopters. This was not the case at the time she saw the respondents. If the adopters did not agree with such contact it would from the child's point of view be unhelpful. She indicated that she had worked closely on this issue with a recognized expert Sally Wassell and the question which must be asked is what the contact was for. It is only to help the child with her identity and is not for the purpose of forming attachments. She was very clear that it was vital for a child to form secure attachments to become a healthy adult and that there was a danger of losing sight of the priority from the child's perspective.

 

Mr. P

[35] Mr. P was 59 years of age and a qualified social worker. In 2006 he became a Senior Practitioner in the Children and Families Team in Community Social Services in Orkney. He was and remains a first line supervisor for Social Workers in the team including Mrs. N. His role was to supervise her by discussing the case with her on a prearranged monthly basis and discuss any pertinent issues in between those monthly meetings. He also helped to scrutinize any reports before they were issued. He was fully conversant with the factual position as it had developed. He confirmed that it was clear very early on to all involved that the respondents were not going to be able to parent a child but he did not accept that having reached that conclusion the outcome was pre-determined by the social services. He pointed out that 25 hours contact per week was a massive amount. On receipt of Ms O's report in January 2010 the recommendation was to go down the permanency route for the child and to effect a gradual reduction in supervised contact from 25 hours per week down to two, in a staggered manner on the basis that if a child is not going to be living with her parents, it is not in the child's best interests for a strong attachment to be formed. He agreed that it was in the child's best interests to have letterbox contact with the respondents. He stated that it was initially important that the child got the opportunity to adapt and form attachment to the new parents and it was his opinion that face to face contact with the respondents could impede that. This seemed to me to be based on a view of adoption rather than as assessment of dangers to the stability of a placement inherent in the facts of this case.

 

Mr. R

[36] Mr. R was 39 years of age and a qualified social worker working with Orkney Islands Council as a Social Worker from November 2001 and from 2006 as Team Manager of the Children and Families Team. He gave evidence after the respondents had withdrawn their opposition to the orders sought. He had a significant directional involvement in this case from the point that the initial referral was made when the pregnancy was disclosed. He had fairly strong views about contact in cases where permanence is sought and there is to be no rehabilitation and considered that in this case contact had been kept at an unusually high level. He supported letterbox contact by the sending of cards and letters and was willing in the circumstances to consider a DVD video diary format which may be easier for the respondents and would allow them to see the child in her environment. Such contact would allow the child to make sense of who she was. He considered that there should not be face to face contact due partly to the respondents' lack of ability to attune to and meet the child's needs. He explained that the child was in the pre-verbal stage and would be developing rapidly in all aspects social, cognitive and verbal. His reasoning was understandable based on his experience, knowledge of the history of this case and his contact with the proposed adopters. He expressed concern about the ability of the respondents to consent and the level of their understanding of the concepts involved. He did not believe that they would deliberately undermine the new parents but was of the opinion that such contact could be distressing and confusing for the child and make it hard for her to make sense of her circumstances, her past and how that resonated with her future. He took into account the quality of the contact as he perceived it, the significance of the respondents' inherent opposition, the emotional effect on the prospective adopters and their lack of support for such contact and the need of the child to be part of her new family. He indicated that there had been little research on face to face contact and stated that each child was unique and it depended on that child and the adoptive parents. He pointed out that such contact could be managed where the child had an established relationship with the parents, had a knowledge of being cared for by the parents and was of an age to understand what their position was. That is not the position in this case.

 

Mrs. S

[37] When Mrs. S was called as a witness she became very upset as she had not known that the respondents had withdrawn their opposition to the adoption. It was very clear that she was emotionally attached to the child. This is hardly surprising as she has cared for her since she was five days old. In her affidavit she described her lengthy experience in working with children as a nanny and support worker. She was clear that the respondents adored their daughter and had done their best. Her evidence in court on 22 June 2011 was that the child was excited when she saw her parents and on one occasion when she stayed for longer than normal at the start of a contact session it had been lovely seeing the interaction between them. Her affidavit from January 2011 disclosed instances over some months of the child becoming more distressed when left for contact. She ascribed this to a combination of her age, awareness and growing attachment to Mrs. S as her carer. She had met with and supported the adoptive parents. She had mixed feelings about the child leaving Orkney and was hoping to retain some contact with her. She indicated that the child was very assertive and confident. Mrs. S considered there to be a connection and a bond between child and respondents who had always been respectful towards her and never a cause for concern. I found her evidence to be credible, reliable and persuasive.

 

Mrs. T

[38] Mrs. T was called as a witness on behalf of the first defender. She was 69 years of age at the time of giving evidence and had acted as safeguarder. She was a social worker from around 1980 retiring at the end of 2005. A lot of her experience was with children and families. She concluded her career in Orkney. She had seen the respondents with the child on more than six occasions. In her opinion they had not been dealt with on the correct basis of a learning disabled couple. She took on the case basis there was a human rights issue and made her concerns clear to those responsible. She was critical of the petitioners for the lack of psychiatric reports particularly for the second respondent. It was put to her that there should be ongoing face to face contact once the adoption had been granted. She supported post adoption face to face contact but accepted that it was very difficult. She indicated that she had not seen anything that would suggest it was not possible but she was clear that she would not consider unsupervised contact. She accepted that ongoing face to face contact was not normal with such a young child although it would be familiar scenario with an older child who did not want to lose all contact with a parent. She alluded to situations where children wanted to know their parents in later life but had no relationship. In this case she believed that such face-to-face contact would have to be supervised by someone out with the social work department due to the build up of resentment. She indicated that it was an enormous punishment for the respondents to lose all contact with their child when they had done nothing wrong.

 

[39] I accepted that this was Mrs. T's personal and professional view based on her involvement with the case and the respondents. I felt that she had some reservations which was why she was cautious about how difficult it would be. She did not amplify on just how such face to face contact would be managed nor did she examine the potential difficulties which had been outlined by Mr. R but she was alert to them. Mrs. T had been very unhappy about the assessment process adopted by the petitioners and had made that clear from the earliest stage of her involvement as could be seen in her three reports productions 1/2, 1/3 and 1/4 for the first respondent dated 31/8/09, 21/9/09 and 10/3/10. She had identified the need for a psychological assessment and spoken about that to senior staff direct. He reports were in my view balanced and fair and based on a significant level of investigation. She recognized that the pre-birth concerns were justified, focused on the important issue being "..that the baby who is the subject of this report should have the chance of receiving love, care and stimulation in an environment where she is kept safe from unacceptable levels of risk, which would enable her physical, emotional and educational needs to be adequately met. She also has a human right to live in her own family of origin, if this is at all possible." (production 1/3, first respondent). I also note her independent view of the very disorganized lifestyle of the respondents, untidy, sometimes quite dirty, poor hygiene and irregular eating habits, balanced with the positives that the first respondent worked, they both attended for contact and showed the child affection although they did not always know how to manage their time with her. These are factors which clearly influenced her views and which I have taken into account in reaching my decision. She also alerted me to areas of insight shown by the second respondent.

 

First Respondent

[40] MR. H was 57 years of age. He gave evidence after he had withdrawn his opposition to the orders sought which would lead to the adoption of his daughter. He denied that he had ever assaulted his wife and said that the only time he touched her was when she had a fit when he took hold of her by the wrists. The doctor had told him that was the best thing to do. He had become upset by the reduction in contact to 2 hours per week. He explained that he loved his little girl and that she came running to him and he gave her cuddles and kisses. He had a photo of his mother and she looked like her and he wanted to show that to the child some day. He wanted to meet the prospective adopters as that would give him peace of mind that she was safe and with good folk. He wanted to have face to face contact with her. He stated that he wouldn't say anything out of line to her just that he was a friend of her mum and dad. He would not upset her. He was asked why it would be good for the child to see them. He replied that it was for her to keep in contact with them and see who her birth parents were, and to see her growing up. He thought she would be interested in seeing where she was born, where she lived with S, to see Aurrida House, to see how she had her hands done in clay at three months old and have a walk around. In cross examination he agreed the application should be granted and that would allow the child to move on and be adopted. He agreed that he knew about the Life Story work and could have his mother's photo copied and put in that. He also agreed that the prospective adopters could allow contact face to face in the future.

 

Second Respondent

[41] MRS. H was 20 years of age and she confirmed that she had been a bit upset when contact was reduced to two hours a week. She had enjoyed contact better when it was in her home. She did not like Mrs. N supervising as she interfered too much, wasn't encouraging about contact and was interested in other peoples lives. She described playing with her daughter and said that her daughter was always pleased to see her and called her mummy. She was ok about her calling S mummy as well as she had been with S for two years. She wanted to meet the prospective adopters to see that they would be good to the child and put her mind at rest. She wanted to tell them that she is a very happy child and will settle in with them. She felt that letterbox contact was ok but pointed out that they were not good at writing and wouldn't want the child not to be able to read her mum and dad's writing. She would accept help with writing. She said she would be a bit upset when the child called her new parents mum and dad but would understand. She said that she would not tell the child that they were her mum and dad, she wouldn't upset her. She would accept advice on how to manage that in face to face contact but would prefer it from someone not in social work. She indicated that they just wanted her to keep in touch to see how she was growing and how she was making friends. In cross examination she agreed the application should be granted and agreed that she new that would allow the child to move on and be adopted. She agreed she could keep in touch through letters and knew about the Life Story work.

 

Affidavits of Prospective Adopters

[41] The prospective adopters are in their late thirties early forties and as a 23 June 2011 were still committed to adopting the child. They did not consider that face-to-face contact was in her best interests but were willing to facilitate indirect contact. Their views reflected the information they had received about the nature of the child's parents and quality of contact which had taken place. They felt that the child sought out social workers because her parents did not interact with her, that the mother's behavior was a cause for concern and could include tantrums, that the parents would leave contact early, and that they had their own relationship problems. I noted that they had indicated in their assessment process that they would discuss direct contact between a child matched with them and the birth parents. In the affidavits they expressed concern about the effect such contact would have on the child and her ability to settle with them. As they would not be at the contact sessions they were worried about how they could deal with the issues arising. I have had the advantage of hearing the evidence, reading all the reports, contact notes and other documents and of seeing the behaviour and demeanour of the respondents over many days in court. I am satisfied that many of the concerns expressed are based on misconceptions. I am also satisfied from reading the background details of the prospective adopters that, should they choose to proceed with the adoption, they have the maturity, understanding and ability to deal with any issues arising around contact.

 

SUBMISSIONS

[42] Counsel presented their submissions in writing and added to them orally. Counsel for the first respondent acknowledged and adopted the majority of those prepared by counsel for the second respondent to which he had added his own comments and detailed propositions in law on which they differed.

 

Petitioners

[43] Mr. Sharpe confirmed that the petitioner sought a permanence order in terms of s.80(1) of the Adoption and Children (Scotland) Act 2007 and the inclusion of the mandatory provision in terms of s.81(1). He did not touch on the issue of section 80(3) and the petition contained no application to vest any responsibilities or rights in any person. He confirmed and detailed the ancillary provisions the petitioners asked that I apply. In terms of section 82(1)(e) I was asked to specify such arrangements for contact between the child and any other person as I considered appropriate and to be in the best interests of the child, and in particular to order that the only contact to take place between the respondents and the child should be in the form of indirect letterbox contact whereby each of the respondents, or the respondents together would be entitled to send a letter or card to the child, twice per year, at her birthday and at Christmas, to receive from the child, and/or her adoptive parents, a letter or card with news of the child, and if considered appropriate by her adoptive parents/carers, an up to date photograph of the child, and, if reasonably practicable an annual DVD/video of the child to be sent to the respondents, and, to order that there be no direct, face-to-face contact between the child and the respondents. This was the main issue for determination. I was asked to dispense with the consent of the respondents on one of the following grounds: Firstly in terms of the ground set out in section 83(3) (failure to satisfactorily discharge those parental responsibilities or exercise those parental rights, other than those set out in section 1(1)(c) and 2(1)(c) of the 1995 Act, and is unlikely to continue to be unable to do so, which failing, in terms of the alternative welfare ground set out in section 83(2)(d). Mr. Sharpe's position was that the respondents did not actually consent to the adoption.

 

[44] He submitted that there should be no ancillary provision of direct face to face contact as there was no evidence of a significant attachment between the respondents and the child and there would be no real benefit to her. There was no evidence of the child having benefited from past contact and she showed no evidence of distress when leaving contact. His position was that the respondents did not really support the adoption plan and only offered no opposition following the allegations of repeated assaults by the first respondent on the second respondent. He alluded to the evidence of Mrs. N and Mr. R, that should the child express a desire to see her parents at some point in the future then they would seek to facilitate such contact taking place. He also pointed out that the prospective adoptive parents did not support face to face contact. He maintained that their position was a circumstance in the case and that the starting point was not whether they had acquired Article 8 rights. On the issue of identity and the Article 8 requirements his proposition was that indirect letterbox contact would be appropriate and maintain the link between the child and her parents and thereby maintain her family life and connection with them.

 

[45] Mr. Sharpe submitted that the welfare principle underlay the whole situation and that it was only in exceptional circumstances that courts would attach a condition of face to face contact in direct petitions for adoption and referred to the observations of Lord President Hope in the case of B v C 1996 SLT 1370 at p 1377G-1:

'that this was a highly unusual case and only in very rare cases would it be appropriate for the court to add conditions to an adoption order which could involve variation by the court at a later date, the guiding principle being that adoption provided complete security to the child by making him part of the adopting parents' family.'

He further quoted Lord President Hamilton in Dundee City Council v GK (2005) CSIH 90, 2006 S.C. 326:

"Critical to any issue of infringement of the parent's right is whether the rights and freedoms of the particular child or children are protected. In some cases, due regard being had to the welfare of a particular child (as seen against the history of that child's relationship with his or her birth parents and the need to establish and promote a new family relationship between the child and any prospective adopter or adopters), the making of a freeing order may be a proportionate measure. The present case is, in my view, of that kind. The existence of an alternative mechanism does not appear to me to render in every case procedure by way of an application for a freeing order unnecessary, in the relevant sense, for the protection of the rights and freedom of an affected child. That alternative (involving, as it does, a direct confrontation in litigation between birth parent and prospective adopter) may, in a particular case, give rise to disadvantages which impinge adversely on the child's rights and freedoms."

He directed me to West Lothian Council v M 2002 S.C. 411 where despite all parties agreeing there should be ongoing direct face to face contact the sheriff had granted an application to free the child for adoption. Mr. Sharpe referred to the recent case of ANS and DCS v ML (2011) CSIH 38 XA8/11, issued on 21^st June 2011, for a current detailed discussion of the welfare ground, s.31(3)(d), which is in exactly the same terms as s.83(2)(d) in the 2007 Act, where the appeal was refused. He submitted that this case was not an exceptional one and that the child should not be deprived of stability just because her parents wanted to assert a right to contact. He pointed out that there was also an undertaking by the prospective adopters that if the child wished contact in the future they would assist her with that. There was therefore no need for a formal order.

 

Respondents

[46] Counsel for respondents were agreed on the factual issues highlighted in their written submissions but differed in their views on the legal position. Mr. Stalker for the first respondent began by raising the issue of section 80(3). He submitted that as the responsibility and right to contact could not vest in the Local Authority it must remain with the birth parents in this case as there was no-one else. He was clear in stating that no issue was taken with the court making no order in terms of sections 1(1)(c) and 2(1)(c) of the 1995 Act and submitted that the arrangements for contact should be dealt with under section 82(1)(e) of the 2007 Act. He invited the court to decide the contentious issue by choosing between three alternatives: (a) the complete termination of face to face contact, (b) the continuation of face to face contact on the limited, twice per year basis set out in paragraph (vii) of the proposed interlocutor from the respondents; or, (c) continuing face to face contact on a basis which lies somewhere between the alternatives proposed by the parties. It was Mr. Stalker's view that the test to be applied was the "whole life welfare test" set out in section 14 of the 2007 Act as the decision being made about the continuation of face to face contact was one which related to the child's adoption. He submitted that certain points may be derived from the decision in ANS and DCS v M, and from the decision of the Court of Appeal in In re P (Adoption: Parental Consent), which was quoted with approval in ANS and DCS v M. In proceedings in which article 8 is engaged, any interference with the right to family life set out in article 8(1) must be justified under article 8(2). That is to say, it must be in accordance with the law; for a legitimate aim; and necessary in a democratic society, i.e. proportionate to the legitimate aim. Such an interference may be justified on the basis that it meets the "whole life welfare test". That is because the need to promote the welfare of the child is a legitimate aim which, if met in a manner that is proportionate, may justify the interference.

 

[47] He accepted that if the court were to decide that the complete termination of face to face contact was the measure that best met the need to "to safeguard and promote the welfare of the child throughout the child's life", then it could make an order to that effect, without it being an unjustified interference in the article 8 rights of the child and the respondents. If the court was unable on the evidence, to establish which of the proposed alternatives best met that need, his proposition was that the alternative which represented the least interventionist interference in the family life of the child with the respondents should be preferred. He pointed out that there was no witness who had stated that there should be a presumption against ongoing face to face contact and that there was evidence that it could be beneficial. The respondents supported the adoption and were not people with a great deal of guile. They had not been challenged about their agreement in cross examination. I was invited to view the evidence of Carol Shearer as critical in deciding on the bond between the child and the respondents.

 

[48] There had been concern about the admission of Affidavits from the prospective adopters but initial objections were withdrawn. Counsel for the first respondent invited me to place little or no weight on them on the basis that it would be disproportionate and fundamentally unfair to terminate face to face contact because the proposed adopters were unwilling to cooperate. They had not been called and could not be cross examined, the child had not yet been placed with them, she had no bond with them, they had based their view on limited information and some of their misapprehensions were not supported by the evidence heard in court.

 

[49] Miss Stirling Counsel for the second respondent submitted that the safe option was to maintain the status quo and that it was unfair to the child to close off contact with the respondents prematurely. The decision should be made first of all with reference to what was in the child's best interests and secondly on the basis of the Article 8 rights of all three. She took no issue with the legislation only its application to the circumstances of this case. She pointed to there being a bond between parents and child, that they had sought to act in her best interests, that they had not sought to undermine her foster placement and would not seek to undermine her adoptive placement, that the second respondent had done all that was asked of her, that they had both shown an enormous commitment to attending contact which the child enjoyed, and that it would strengthen the child's sense of identity for face to face contact to be retained on the basis sought. She submitted that there was no evidence that on balance of probabilities face to face contact would not be in her best interests or would be harmful to her. The petitioners were seeking to end it on the basis of what might happen and as the child currently enjoyed contact it was premature to terminate it on the assumption that it might not be in her best interests. She indicated that it was almost a question of whether it was harmful for the child and referred to the case of Gorgulu v Germany [2004] 1 FCR 410 for the harm test.

 

[50] Miss Stirling's interpretation of the law was that the court should deal with the Permanence Order first before moving on to the issue of authority to adopt. She indicated that I should look first at whether the child's residence with the birth parents was likely to be seriously detrimental to her welfare in terms of section 84(5)(c)(ii), then consider whether any ancillary provisions should be imposed in terms of section 80(2)(b) as I saw fit before turning to the section 83 provision for authority to adopt either with consent of the parents or dispensing with that consent. In this case she did not see section 83 as a matter of concern as the adoption was conceded. She took the view that it was only at this stage that section 14 came into play.

 

[51] Miss Stirling submitted that the views of the prospective adopters were irrelevant. This was on the basis that they had no Article 8 rights and that there was nothing in the legislation which said that their views were to be taken into account. All that the court had to be satisfied about was that the child had been placed for adoption. She pointed out that they could choose not to adopt her if they could not support face to face contact and that if they did go ahead they could apply to vary the contact which had been granted at this stage.

 

 

APPLICABLE LAW

 

[52] This case is an application for a permanence order with authority to adopt. The applicable legislation is contained in the Adoption and Children (Scotland) Act 2007. The relevant sections are as follows.

Permanence orders

80. (1) The appropriate court may, on the application of a local authority, make a permanence order in respect of a child.

(2) A permanence order is an order consisting of-

(a) the mandatory provision,

(b) such of the ancillary provisions as the court thinks fit, and

(c) if the conditions in section 83 are met, provision granting authority for the child to be adopted.

(3) In making a permanence order in respect of a child, the appropriate court must secure that each parental responsibility and parental right in respect of the child vests in a person.

 

Permanence orders: mandatory provision

81. (1) The mandatory provision is provision vesting in the local authority for the appropriate period-

(a) the responsibility mentioned in section 1(1)(b)(ii) of the 1995 Act (provision of guidance appropriate to child's stage of development) in relation to the child, and

(b) the right mentioned in section 2(1)(a) of that Act (regulation of child's residence) in relation to the child.

(2) In subsection (1) "the appropriate period" means-

(a) in the case of the responsibility referred to in subsection (1)(a), the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 18,

(b) in the case of the right referred to in subsection (1)(b), the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 16.

 

Permanence orders: ancillary provisions

82. (1) The ancillary provisions are provisions-

(a) vesting in the local authority for the appropriate period-

(i) such of the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (d) of the 1995 Act, and

(ii) such of the parental rights mentioned in section 2(1)(b) and (d) of that Act, in relation to the child as the court considers appropriate,

(b) vesting in a person other than the local authority for the appropriate period-

(i) such of the parental responsibilities mentioned in section 1(1) of that Act, and

(ii) such of the parental rights mentioned in section 2(1)(b) to (d) of that Act, in relation to the child as the court considers appropriate,

(c) extinguishing any parental responsibilities which, immediately before the making of the order, vested in a parent or guardian of the child, and which-

(i) by virtue of section 81(1)(a) or paragraph (a)(i), vest in the local authority, or

(ii) by virtue of paragraph (b)(i), vest in a person other than the authority,

(d) extinguishing any parental rights in relation to the child which, immediately before the making of the order, vested in a parent or guardian of the child, and which-

(i) by virtue of paragraph (a)(ii), vest in the local authority, or

(ii) by virtue of paragraph (b)(ii), vest in a person other than the authority,

(e) specifying such arrangements for contact between the child and any other person as the court considers appropriate and to be in the best interests of the child, and

(f) determining any question which has arisen in connection with-

(i) any parental responsibilities or parental rights in relation to the child, or

(ii) any other aspect of the welfare of the child.

(2) In subsection (1), "the appropriate period" means-

(a) in the case of the responsibility mentioned in section 1(1)(b)(ii) of the 1995 Act, the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 18,

(b) in any other case, the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 16.

 

Order granting authority for adoption: conditions

83. (1) The conditions referred to in section 80(2)(c) are-

(a) that the local authority has, in the application for the permanence order, requested that the order include provision granting authority for the child to be adopted,

(b) that the court is satisfied that the child has been, or is likely to be, placed for adoption,

(c) that, in the case of each parent or guardian of the child, the court is satisfied-

(i) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of such an order in relation to the child,

or

(ii) that the parent's or guardian's consent to the making of such an order should be dispensed with on one of the grounds mentioned in subsection (2),

(d) that the court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority.

(2) Those grounds are-

(a) that the parent or guardian is dead,

(b) that the parent or guardian cannot be found or is incapable of giving consent,

(c) that subsection (3) or (4) applies,

(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.

(3) This subsection applies if the parent or guardian-

(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act,

(b) is, in the opinion of the court, unable satisfactorily to-

(i) discharge those responsibilities, or

(ii) exercise those rights, and

(c) is likely to continue to be unable to do so.

(4) This subsection applies if-

(a) the parent or guardian has, by virtue of the making of a permanence order which does not include provision granting authority for the child to be adopted, no parental responsibilities or parental rights in relation to the child, and

(b) it is unlikely that such responsibilities will be imposed on, or such rights given to, the parent or guardian.

(5) In subsections (1)(c) and (2), "parent", in relation to the child in respect of whom the permanence order is to be made, means-

(a) a parent who has any parental responsibilities or parental rights in relation to the child, or

(b) a parent who, by virtue of a permanence order which does not include provision granting authority for the child to be adopted, has no such responsibilities or rights.

 

Conditions and considerations applicable to making of order

84. (1) Except where subsection (2) applies, a permanence order may not be made in respect of a child who is aged 12 or over unless the child consents.

(2) This subsection applies where the court is satisfied that the child is incapable of consenting to the order.

(3) The court may not make a permanence order in respect of a child unless it considers that it would be better for the child that the order be made than that it should not be made.

(4) In considering whether to make a permanence order and, if so, what provision the order should make, the court is to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration.

(5) Before making a permanence order, the court must-

(a) after taking account of the child's age and maturity, so far as is reasonably practicable-

(i) give the child the opportunity to indicate whether the child wishes to express any views, and

(ii) if the child does so wish, give the child the opportunity to express them,

(b) have regard to-

(i) any such views the child may express,

(ii) the child's religious persuasion, racial origin and cultural and linguistic background, and

(iii) the likely effect on the child of the making of the order, and

(c) be satisfied that-

(i) there is no person who has the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with the person or otherwise to regulate the child's residence, or

(ii) where there is such a person, the child's residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.

(6) A child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of subsection (5)(a).

 

Effect of order on existing parental right

87. The making of a permanence order extinguishes the parental right mentioned in subsection (1)(a) of section 2 of the 1995 Act of-

(a) a parent of the child in respect of whom the order is made,

(b) a guardian of such a child,

which, immediately before the making of the order, vested in the parent or, as the case may be, guardian.

 

Revocation of supervision requirement

89. (1) Subsection (2) applies where-

(a) the child in respect of whom a permanence order is to be made is subject to a supervision requirement, and

(b) the appropriate court is satisfied that, were it to make a permanence order in respect of the child, compulsory measures of supervision in respect of the child would no longer be necessary.

(2) The court must make an order providing that, on the making of the permanence order, the supervision requirement ceases to have effect.

 

I was also referred to the potential applicability of section 14 which reads as follows.

 

14 Considerations applying to the exercise of powers

(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The court or adoption agency must have regard to all the circumstances of the case.

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

(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to-

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

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

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

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

 

[53] The 2007 Act provisions work with the terms of the Children (Scotland) Act 1995 and in particular with the following sections.

 

1.- Parental responsibilities

(1) Subject to Section 3(1)(b), and (d) and (3) of this Act, a parent has in relation to his child the responsibility-

(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child-

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative,

but only in so far as compliance with this Section is practicable and in the interests of the child.

(2) "Child" means for the purposes of-

(a) Paragraphs (a), (b)(i), (c) and (d) of Subsection (1) above, a person under the age of sixteen years;

(b) Paragraph (b)(ii) of that Subsection, a person under the age of eighteen years.

(3) The responsibilities mentioned in Paragraphs (a) to (d) of Subsection (1) above are in this Act referred to as "parental responsibilities"; and the child, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those responsibilities.

(4) The parental responsibilities supersede any analogous duties imposed on a parent at common law; but this Section is without prejudice to any other duty so imposed on him or to any duty imposed on him by, under or by virtue of any other provision of this Act or of any other enactment.

 

2.- Parental rights.

(1) Subject to Section 3(1)(b), and (d) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right-

(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative.

(2) Subject to Subsection (3) below, where two or more persons have a parental right as respects a child, each of them may exercise that right without the consent of the other or, as the case may be, of any of the others, unless any decree or deed conferring the right, or regulating its exercise, otherwise provides.

(3) Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in Subsection (6) below.

(4) The rights mentioned in Paragraphs (a) to (d) of Subsection (1) above are in this Act referred to as "parental rights"; and a parent, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those rights.

(5) The parental rights supersede any analogous rights enjoyed by a parent at common law; but this Section is without prejudice to any other right so enjoyed by him or to any right enjoyed by him by, under or by virtue of any other provision of this Act or of any other enactment.

(6) The description of a person referred to in Subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in Paragraph (a) or (c) of Subsection (1) above; except that, where both the child's parents are persons so described, the consent required for his removal or retention shall be that of them both.

(7) In this Section, "child" means a person under the age of sixteen years.

 

[55] All parties made reference to the provisions of Article 8 of the European Convention of Human Rights.

 

Article 8 provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

There was no dispute between the parties that there is no automatic Article 8 right to even letterbox contact.

 

DECISION

Permanence Order

[1] I am satisfied that I should make a Permanence Order with the mandatory provision specified in section 81 of the 2007 Act. Having reached this decision I have considered in terms of section 82 of the Act what ancillary orders should be included in terms of section 80(2) and have included these. I have applied the conditions and considerations as set out in section 84 of the Act. I have had regard to the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration. I do not consider that section 14 applies at this point. The interference with family life is justified in this case and is proportionate as the parents are not capable of providing the child with the essential requirements of childhood in a stable home life in such a way as would safeguard her and promote her health, development and welfare. It is not a question of lack of desire nor is it willful disregard of their responsibilities. They just cannot manage. The level of support which they would require just to make it safe would be so intrusive as to render the whole exercise ridiculous, stressful for them and for the child and in my view would adversely effect not only the child's development but their own relationship and their personal welfare. In the course of the proof they recognized this themselves and withdrew their opposition.

 

[2] The child is too young to consent to this order and too young to express a view. Although there was some reference to her being Orcadian there was no suggestion that this was a bar to the order and I have taken the view that the evidence disclosed nothing of significance about her religious persuasion, racial origin and cultural and linguistic background that would preclude the making of an order. The order will allow the child's future to be planned with certainty and allow her to move to a settled, permanent family placement within which to grow and develop with parental support, love and guidance. She has been in care since birth and needs this move soon as her state of development is rapid. I consider that should I not make such an order the child will be left in limbo and insecure. I am also satisfied that residence with her parents is likely to be seriously detrimental to her welfare. This is due to the dangers to her physical safety, which their lack of awareness has shown to be a significant concern and the lack of stimulation she would receive from them which would in my view hamper her in developing to her full potential whatever that might be. I see no prospect of the respondents' abilities in either aspects improving during the course of the child's childhood years to any significant degree. The dangers will simply change as she grows and there is a suggestion that cognitively she is well ahead of their capacity. There is a clear likelihood that should she be in the care of the respondents her development would stagnate and that her ability to form attachments would be adversely affected by the level of support which they would require.

 

Order For Authority To Adopt

[3] I now move on to consider if this should be granted in terms of section 83 of the Act. The conditions for making the order are that the petitioners have requested that authority be included which they have, that the child has or is likely to be placed for adoption which she has, and that either the parents consent to this order being granted or their consent should be dispensed with. I also require to be satisfied that it is better that it should be granted than that it should not which I am. I consider that I should have regard to the provisions in section 14 of the Act at this point for the reasons I will go on to explain once I have dealt with the matter of consent. I am satisfied that the parents consent. They have the capacity to understand what that means and have had the benefit of legal advice from both solicitors and counsel. They indicated in evidence that they agreed to the condition of adoption. If I had not been satisfied that the parents consented I would have proceeded on the evidence before me to dispense with that consent. This would have been on the basis that neither parent was able to satisfactorily discharge their responsibilities or exercise their rights and that inability was likely to continue. I came to that view due to the complex inter-relationship between their social problems and their respective learning difficulties.

 

[4] Section 14 indicates that when a court or adoption agency is coming to a decision relating to the adoption of a child subsections (2) to (4) apply. In deciding on the inclusion of authority to adopt I am making such a decision. I have had regard to all the circumstances of the case and have fully outlined these in my findings in fact. I consider that moving on to be adopted is necessary to safeguard and promote the child's welfare throughout her life. A stable family unit, however composed, will provide her with the best chance to develop into a fully rounded and stable adult and reach her potential. As I have already indicated my position on the matters referred to in section 14(2)(b) and (c) I will not repeat them here. As far as section 14(2)(d) is concerned I am satisfied that the effect of an adoption order would be to provide her with not just the emotional security of a family home within which she can flourish but also the legal security of a permanent home without the constant uncertainty imposed upon her while she remains within the care system. I have also taken into account the likelihood that she will be removed from Orkney to the mainland. I am satisfied that is in her best interests on a lifelong basis that this take place.

Contact

[5] The decision on whether there should be face to face contact is not one which I have found easy to make. This is a very young child who may yet develop some form of learning difficulty and who will be moved once the decision has been made. I was referred to cases based on the earlier legislation in support of the petitioner's position that this should occur only in exceptional circumstances, and that the decision should be made by the adopters who would be in the unique position of knowing the child as she grows. I agree that the life story work will go a long way to ensuring that her curiosity about her origins will not necessarily fester in her imagination in the way that it can with those who have no knowledge of their background. She will also have the indirect contact to give reality that.

 

[6] In coming to my decision I have considered the views expressed by those who opposed direct contact. I am of the view that the members of the social services were coloured in their opinions by adoption policy rather than the individual circumstances of this case. I respect the professional opinion of Ms O but this was given before the respondents had altered their position on the orders sought and was influenced by their oppositional presentation in December 2009. There was not a great deal of evidence led about the effect of ongoing direct contact within an adoption and even less about the potential effect on this particular child. I have taken the least interventionist approach because in the particular circumstances of this case on the information available at this point in time I consider that the child's rights and freedoms will be best served by the order to allow direct, annual face to face contact. I consider that the combination of direct and indirect contact will provide the child with an understanding of her identity and place in the world. Within a nurturing and permanent adoptive home I consider that to be in the child's best interests throughout her whole life.

 

[7] While I have had regard to the existing case law referred to it was based on the prior legislation. An order for ongoing contact after an adoption is provided for with a mechanism for variation. The new legislation does not give parents a presumptive right to contact but contemplates direct contact as a possible order. Each case is of course unique and must be decided on its own facts and circumstances which makes it an important exercise of judgment for the decision maker who has been able to assess the witnesses and extensive paperwork often going back years. The reluctance of courts to attach conditions in adoptions in favour of third parties is understandable in the interests of stability and the avoidance of confrontation but this case does not fit within the norm for such cases in a number of ways. I consider the most important of these differences to be the level and quality of contact which is still ongoing, the lack of willful failure by the respondents in respect of the care of their child, their learning issues and the fact that she has not yet moved to prospective adopters. In other cases contact has been gradually withdrawn, often reduced to nil before the matter came to court. Courts on appeal have rarely been willing or able to interfere with decisions of the Children's Hearing to withdraw contact. In this case I have made my decision on what I consider are fairly unique circumstances.

 

[8] I recognize that the relationship which exists between the child and the respondents is not of the strength or nature of the bond she has with the foster carer, Mrs. S. I also recognize that the child is very young and cannot express a view. She has no awareness of the nature of the relationship she has with the respondents. I do not consider the evidence supports a conclusion that the contact is barren, nor do I accept that it is in any way harmful to the welfare of the child. There was no evidence that she would suffer if contact ended nor evidence that she would suffer any ill effects if it continued at a much reduced level. In my opinion the relationship which has developed over the course of the child's life is a settled and happy one at this point in time. She sees the respondents weekly for two hours, runs to them and recognizes them as persons who feature regularly in her life. They have shown unswerving commitment to seeing her and clearly love and care for her. They have shown insight into her need for a permanent home and I do not accept that they have simply abandoned their opposition in the way suggested on behalf of the petitioner.

 

[9] I am not concerned that preserving such limited ongoing contact would be detrimental to her. I think that it is unlikely to adversely affect her integration within her new family. She would see the respondents for a short period of time in controlled circumstances. It would fulfill a need for the respondents to see their daughter and give the child an explanation as to why she receives cards and letters from them, who they are and how they fit within her life. She will grow up understanding her full background and why she is a member of her new family. She will see the reality of her natural parents and that she is loved and valued by them. She is described as an assertive, confident child and I am happy that she is resourceful enough to deal with this ongoing contact. She is young enough to be able to accept the position without guilt or worry and to grow with it because she does not have a perception of the respondents as her principal carers merely as people who have a place in her weekly life. I am of the view that honesty is required in an adoption with clarity as to the permanence of the placement being of paramount importance to a child. The child should be confident that she will not be uplifted and taken from those she sees as her parents. I also take cognisance of Ms O's point that such contact is not for the purpose of forming relationships only to assist the child to make sense of her identity. I believe that a full year should pass to allow her to settle and that it be once a year for those reasons.

 

[10] I have no doubt that the respondents would behave properly and respectfully. They have conducted themselves with dignity throughout these proceedings and shown courtesy to all involved in the proceedings even in the face of sometimes quite critical and emotional evidence. They have shown courtesy and restraint when passing me elsewhere within the court building and outside in Kirkwall itself. I am satisfied that they would not act in any way calculated to disrupt her placement and would accept and follow guidance given to them on how to behave. The foster carer was in the best place to assess this and I accept her opinion. I agree that this should be supervised contact and preferably independent from social services. I consider the views of the proposed adopters identified and matched at this time to be part of the circumstances of the case which I can take into account. While they indicate in their affidavits that they do not consider face to face contact to be in the child's best interests they have yet to meet those involved and indicated in their Adoption Panel paperwork (petitioners productions 1/47 and 49) that they would discuss it. If they are provided with full and accurate information their maturity and backgrounds suggest to me that such limited contact is unlikely to be a focus for tension, which would impact on the child's security with them.

 

[11] No application was made to vest each parental responsibility and right in a person as is mandatory in terms of section 80(3) of the 2007 and this has given me cause for concern as it is standard within other applications under the new legislation which have since come to my attention. Mr. Stalker was in my view correct that this should be done and I have considered whether I can achieve that. His position was that the contact right cannot vest in the local authority and must either vest in some person standing in place of the parents or remain with the parents. In this case I agree with his submission that the responsibility and right should remain with the respondents to whom I have awarded contact.