Scottish Sheriff Court Decisions

 

 

Sheriffdom of Tayside Central and Fife at DUNDEE   Case Number: PO16/10
	Judgment by   SHERIFF GEORGE ALEXANDER WAY   In the cause   DCC Pursuer;   against   DG Defender:   For a Permanence Order with authority to place for adoption the child E   ­­­­­­­­­­­­­­­­­________________

 

 

 

 

Dundee 6 / February / 2012

 

Act Magson Solicitor Alt. Sharpe Advocate

 

 

The Sheriff, having resumed consideration of the cause:

 

Finds in Fact

 

1        In terms of the Adoption and Children (Scotland) Act 2007 the petitioners are an adoption agency and that this court has jurisdiction.

 

2        The child E is female and was born on 19th November 2003. She is of white Scottish ethnicity. She does not have a specific religious persuasion and her mother, the Respondent, has not expressed a wish that she be brought up in any faith. The child attends a non denominational school. The child has never been married nor had a civil partner.

 

3        The child's mother is the Respondent. She is 34 years of age. The Respondent has never been married. The Respondent is of white Scottish ethnicity. The Respondent has Parental Rights and Responsibilities in relation to the child. The Respondent has an older daughter L, under the age of 16, who resides with her father (who is not the father of the child in this matter) in Dundee. The Respondent has no contact with this daughter.

 

4        The Respondent reported that she experimented with drugs from the age of 16 years and began using heroin in 2007.

 

5        The Respondent has had considerable support from several agencies to help her address her substance misuse.

 

6        The Respondent describes her childhood as happy and thinks she was spoiled by her mother and grandparents. Her father never married her mother and he was not part of the household. She did not meet her father until she was approximately 15 years old and has no ongoing contact with him.

 

7        Her mother began a relationship with another man when the Respondent was around 9 years of age. Her half brother, BCG was born from this relationship. During this time the Respondent was living between the homes of her mother and her grandparents.

 

8        She disengaged with school, leaving when she was 15 years old with no qualifications.

 

9        Her mother and grandmother died in 1995 within a few months of each other and the Respondent reports she suffered from depression. She was also pregnant with her first child L and reports that it was from this time that her drug use escalated and became chaotic.

 

10    The relationship with the child's father ended in 1996 and he successfully applied for custody of LJM in April 1996.

 

11    The Respondent began a relationship with CB, the child's biological father, in 2001 which lasted until around April 2004. The child is the only child of this relationship. The Respondent's childhood was disrupted by her mother's ill health and drug abuse. She was mainly brought up by her maternal grandparents, but lived between them and her mother and partner.

 

12    CB is the biological father of the child. CB has never been married. CB has no Parental Rights and Responsibilities in relation to the child. CB has an older child, CD, born 28 July 1995. CD's mother died in 2008 and she lives with her half sister.

 

13    CB was and is at liberty on licence having been released from prison on 30 September 1993 for an offence of murder. He has numerous other convictions for violence. He is subject to a life-long restriction prohibiting any contact with the child.

 

14    The child was accommodated on a voluntary basis on 10 April 2004 subject to Section 25 of the Children (Scotland) Act 1995 following a serious incident of domestic violence on the Respondent by her then partner, CB, the child's father,

 

15    The child was present during the attack on the Respondent and was found to be covered in the Respondent's blood.

 

16    The Respondent was hospitalised and CB charged with attempted murder.

 

17    CB was acquitted of attempted murder when the Respondent alleged that on the night in question, she had attacked him with knife and they had then fought with each other in a quarrel over a quantity of heroin.

 

18    CB was, however, recalled to prison, in terms of his licence and spent a further six years in gaol.

 

19    CB was transferred to HM Prison Castle Huntly, as part of a rehabilitation programme leading to return to the community. The Respondent visited CB in prison. The respondent, at that time, continued to believe that CB could be a father figure for the child, and sought to resume some sort of relationship with upon his release.

 

20    CB absconded from Castle Huntly during a home leave visit. The Respondent allowed him to come into her home. The police called at the respondents' house but she denied any knowledge of CB. A search revealed CB hiding in the house. He was arrested and returned to prison.

 

21    The Respondent now acknowledges that CB should never be allowed into the life of the child.

 

 

22    On 3 March 2005 a Children's Hearing issued a Place of Safety Warrant in relation to the Respondent's lifestyle. The child was thereafter placed back into the Respondent's care in terms of section 70 of the Children (Scotland) Act 1995.

 

23    Between May 2005 and October 2007 the child remained subject to a section 70 Supervision Requirement.

 

24    On 30 August 2007 the Respondent was admitted to hospital and as there were no family members able to care for the child she was accommodated on a voluntary basis subject to section 25 of the Children (Scotland) Act 1995 until 6 September 2007 when she returned to the Respondent's care.

 

25    On 18 October 2007 a Children's Hearing discharged the child's Supervision Requirement in favour of voluntary measures.

 

26    Support to the child and the Respondent was provided by Lochee Family Support Centre staff.

 

27    On 16th January 2008 Karen Bramhall of Dundee Drug Problem Centre informed Social Work Department staff that the Respondent's methadone prescription had been withdrawn.

 

28    On 28 January 2008 a six week full-time placement for the child at Menzieshill Nursery was secured to support the Respondent's withdrawal from her medication.

 

29    On 4 March 2008, the Respondent had been informed of dates for CB's home leave with the condition of him not to come to Menzieshill, the Respondent's home area or to approach her or the child.

 

30    In June 2008 the Respondent was charged and convicted for leaving the child aged four, unattended at home until 1.05am.

 

31    In September 2008, when the child was still under the age of five, the Respondent reported her missing to the police. It appears that she had gone out to play in the street and at 8pm she could not be found. The child was later found in the home of a neighbour.

 

32    On 21 April 2009 at about 23.30 hours a neighbour of the Respondent informed the police that on entering the common close he heard the child crying and calling for the Respondent. On establishing that the child was alone and locked in the house, the neighbour contacted the police. The Respondent was contacted by police by mobile phone and she returned home at 00.20 hours on 22 April 2009.

 

33    The Respondent was cautioned and questioned by police when she admitted to leaving the child at home while she went to purchase cigarettes.

 

34    The Respondent was convicted of a Schedule 1 Offence for leaving the child unattended on 21 April 2009. Disposal was a deferred sentence.

 

35    The Respondent admitted to a lone policeman that she abused heroin, usually two £20.00 bags per day, and that the real reason she left the child alone was to source heroin.

 

36    On 22 April 2009 the child was removed from the Respondent's care on a Child Protection Order and placed with a foster carer where she continues to reside subject to a supervision requirement under section 70 of the Children (Scotland) Act 1995.

 

37    Grounds of Referral (5/2/7 of process) in respect of the child were established at Dundee Sheriff Court on 15^th May 2009. The child was made subject to a supervision requirement in terms of Section 70(3)(a) and (b) of the Act with residence conditions attached. There is also a condition in the supervision requirement that the child has contact with the Respondent. The principal grounds established were as follows :

 

3.1 [respondent] has a lengthy history of misuse of drugs. She has been using heroin on a regular basis, spending a considerable amount of money to fund her drug use.

3.2 [respondent] has failed to adhere to a programme to address her drug misuse.

3.3 [respondent] has a record of offending, mainly for theft

3.4 [respondent] has contemplated resumption of her relationship with [the child's] father who seriously assaulted [the respondent] with a knife

4.1 On 28/06/08 at about 1am [the child] was found wandering and crying in the tenement close. She had left the family home to search for her mother who had left her alone and unsupervised for some time.

4.3 On 21-22 /04/2009 [the respondent] left [the child] alone and unsupervised in the family home. [the child] was distressed and her crying was heard by neighbours around 11.50PM. The Police were called and they contacted [the respondent] by telephone and instructed her to return home. An iron presented as potential hazard in the home.

 

38    A Looked After and Accommodated Child review was held on 30 April 2009 where it was noted that a 12 week Rehabilitation Assessment/Agreement had been put in place.

 

39    The Respondent agreed to the arrangements contained within the Rehabilitation Plan which included her full co-operation with the Social Work Department and Substance Misuse Service; providing clean samples for testing to support her in managing her drug use; attend appointments with professionals; meet with staff on a planned basis to assess progress; work with Family Centre Staff who would supervise contact; attend all contacts with the child; maintain effective communication with the Social Work Department about any concerns regarding the child and any change of plans.

 

40    The Respondent failed to attend 50% of twice- weekly contact sessions thus this was reduced to weekly.

 

41    On 19 May 2009 the Respondent breached the order as she was not engaging with her Drug Treatment Testing Order and a warrant was issued to apprehend her.

 

42    She attended court on 22nd June 2009 and received a fine of £100.00. After this she engaged with the Arrest Referral Service.

 

43    In September 2009 the rehabilitation period was extended for 3 months as the Respondent began to engage with the Social Worker and Arrest Referral Drug Services to try to address her drug misuse which led to her living a chaotic lifestyle.

 

44    A Looked After and Accommodated Child Review minute of 10 September 2009, noted that the social worker should continue parallel planning while also assessing the Respondent and other relatives. At this review it was noted that the Respondent was beginning to engage with the Social Work Department and Drug Problem Services. It was agreed that the Respondent would meet social worker, Val Selkirk, fortnightly to assess her parenting style as there were still concerns that her timekeeping of daily tasks essential to meeting the child's needs were overshadowed by her substance misuse and its effects. Due to the progress noted regarding the Respondent the rehabilitation period was extended for 3 months to ascertain if progress noted could be sustained.

 

45    After a review on 15th January 2010 the Respondent was informed that the Social Work Department intended seeking a Permanence Order with Authority to Adopt in relation to the child and the Respondent was advised to seek legal advice.

 

46    On 19 February 2010 the Respondent was arrested for shoplifting and on 26 February 2010 the Respondent informed Julie Philp, social worker, that she had engaged in prostitution to fund her drug habit.

 

47    The Respondent had her prescription suspended in February 2010 due to her non compliance with testing/using illicit substances and on 2 March 2010 she was found in a common stairwell and admitted to hospital with an opiate overdose.

 

48    Since November 2010 the respondent has been completely free of illicit drugs but still requires to undertake a full detoxification regime later in 2012.

 

49    The Respondent currently holds Parental Rights and Responsibilities in respect of the child and has the right to determine her residence and the responsibility to provide her with guidance.

 

50    The child's birth father CB's past history of serious criminal offences would make him unsuitable to care for the child and there is also a condition on his Life Licence that he has no contact with her. He has no Parental Rights and Responsibilities in relation to the child.

 

51    Family members had been involved in an assessment process but no one was found to be suitable to care for the child. The Respondent indicated her half brother, BC, would be able to care for the child. He was thus contacted by letter and a home visit arranged to discuss the child. BC was not at home and information was left along with a request that he contact the Social Work Department. He did not do so.

 

52    Mr and Mrs D, the child's paternal grandparents, were also contacted by letter and team manager, Terry Mullen, and social worker, Julie Philp, visited Mr and Mrs D on 24 November 2009 to discuss the child and their suitability to care for her.

 

53    Mr and Mrs D made it very clear that CB was their priority and that he would be returning to live with them on his release. They also stated they were not in a position to care for the child.

 

54    There are no other family members or other kinship carers able to accommodate the child and no one has come forward and offered to do so.

 

55    The child was made subject to a Place of Safety Warrant under Section 66(1) of the Children (Scotland) Act 1995 on 25 May 2009 and is now subject to a supervision requirement originally made on 11 June 2009 as per Section 70 (3) of the Children (Scotland) Act 1995.

 

56    The Social Work Department prepared an assessment on the child's need for permanent substitute care, which is referred to as "FORM E". This concluded that the child should be placed for adoption with no direct contact with the respondent. On 15^th April 2010 an Adoption Panel was convened to consider the Form E. The respondent was present and able to make representations. The Minute of that meeting records that whilst the respondent opposed adoption she would support long term foster care with contact. The panel discussed how to secure permanent care arrangements for the child but felt that more information was required on the appropriate route to achieve this. The panel requested a re-assessment on contact and an updated report from Julie Philp, the child's social worker at the time, to provide further guidance.

 

 

57    On 8^th July 2010 another Adoption Panel was convened. The respondent was not invited and did not attend. The report submitted by Julie Philp now recommended long term foster care with regular contact with the respondent. The Panel deliberated upon this recommendation and rejected it. They recommended that an application for a permanence order with authority to adopt be sought. This recommendation was duly endorsed the Agency Decision Maker.

 

58    The petitioners then prepared to initiate legal proceedings and sought the advice of the relevant Children's Hearing to present to the Court with their petition. The Children's Hearing recommended that permanence with authority to adopt should be pursued.

 

59    The Respondent attended an appointment on 11 October 2010 at the Social work Department and stated that she disagreed with the Social Work Department's plans for the child, describing them as a big mistake.

 

60    The Respondent said she loved and cared for the child and got into difficulties because she had no-one to help her. She stated there is nothing she would not do for the child.

 

61    The Respondent stated, again, that the child was her much loved child and she, the Respondent, bought her school clothes; Christmas and birthday presents in addition to giving the child £50.00 holiday spending money.

 

62    On 15 April 2010 the Respondent informed the Social Work Department that a friend was willing to offer care for the child.

 

 

63    The child has been living with Jackie Ianetta, her foster carer, since April 2009 and is happy and well settled in that environment. She formed an attachment to a female child placed with the same foster carer. She has maintained contact with that child who has, herself, now been placed for adoption. She, recently, visited her friend for a "sleep over" at her new home.

 

64    The respondent has generally been supportive of the current placement of the child and has a good working relationship with Jackie Ianetta.

 

65    The respondent is the sole tenant of a two bedroom flat which is in good order.

She is not, at present, in any form of personal relationship.

 

66    The respondent has a settled lifestyle but admits that combating an addiction to heroin is a lifetime battle. She is now isolated from her family and former friends, who were addicts, and accepts she must remain so. She now works as a volunteer addiction counsellor and mentor.

 

67    The respondent has said to social workers, at least in the past, that she would support the child being made subject to a permanence order provided this was to facilitate a long term placement with Jackie Iannetta.

 

68    The respondent has no intention of resuming a relationship with her former, violent, partner CB but he remains in the Dundee area.

 

69    The respondent instructed a Child Psychologist. Barry Fry, to provide an expert report for the use of the court and to give evidence. He produced two reports: one dated 29^th June 2011 and a supplementary report focussing on post adoption contact dated 11^th October 2011.

 

70    Mr. Fry, in his first report, giving his opinion on the merits of the petition concluded the following :

 

(i)                 The respondent idealised her relationship with the child and her own parenting skills.

 

(ii)               The respondent was wrong to suggest that the violence between her and CB would not impact on the child when in fact adult conflict has a powerful impact upon infants and small children.

 

(iii)             That the relationship between the respondent and the child has become more like that of an aunt and niece and is not strong enough to support a return to her care. The respondent is not sufficiently mature enough as a parent to be able to take a dispassionate view of what the child needs from her, to overcome the child's lack of interest in her so as to establish a constructive mother-daughter relationship.

 

(iv)             The respondent assigns considerable importance to resuming her maternal role. She may see this as part of her own resurrection. Should the child be returned to her care and the reunion is unsuccessful, the adverse impact upon both her and the child could be considerable.

 

(v)               That the best predictor of future behaviour, are past actions. People can and do change, but a consistent pattern of problematic behaviour is much more difficult to overcome and can re-emerge in times of stress or distress.

 

(vi)             That long term foster care did not bring the sense of stability and belonging that is offered by adoption.

 

 

(vii)           The quality of interaction between the respondent and the child at contact sessions does not justify a long term foster placement so that she can continue to see the child.

 

(viii)         That a carefully planned and phased adoptive placement where the child is matched to appropriate adoptive parents would be in her best interests.

.

(ix)             That his observations and discussions with the child confirm that his professional recommendations accord with the wishes of the child who has now been in foster care since April 2009. The child's views are those which a psychologist might expect standing her history of care and the length of her continuous placement with one foster mother.

 

(x)               That it would be better for the child that a permanence order with authority to adopt be granted than for it not to be granted

 

 

 

71    Since the commencement of this action the Social Work Department have made two applications to reduce the respondent's contact with the child to nil. The Children's Hearings, having taken advice from two separate Curators at Litem, have refused these applications. A third application to reduce contact to nil has been made but not determined.

 

72    Contact between the child and the respondent was continuing on a fortnightly basis until recently when the child has refused to attend voluntarily. At the time of making avizandum this was still the position.

 

73    The child has stated to Julie Philp, her former social worker, in June 2010 that "she does not want adopted if she can't see her Mum".

 

74    The Respondent believes that the child is 'not herself', particularly in recent contact sessions and feels this was because the child was hearing too much about future plans for her from her current carers i.e. she has been made aware of the plans for her adoption.

 

75    Barry Fry in his second report on the question of post adoption contact concluded :

(i)                 That the opinion of Antonia Panetta, the child's present social worker, on post adoption contact was heavily based on historical data and that more reliance was placed on the negative aspects of the respondent's behaviour, than on the constructive and determined efforts to change her way of life.

 

(ii)               There is a bond between the respondent and the child but the child has relegated her relationship with her mother to one of secondary importance.

(iii)             That face to face post adoption contact should not serve to develop the former parent child relationship but may assist a child in forming a securer bond with adoptive parents by confirming that the former parent is safe, accepts the placement and that their affection remains constant. This can help to reduce the risk of anxiety, especially in adolescent children who may begin to question their origins and disrupt the placement.

 

(iv)             That such contact requires the birth parent to: accept the fact of and support the new placement; give time for adjustment to the new setting; demonstrate an interest in the child's new life and continue to lead a life themselves of which the child can be proud.

 

76    The respondent states that she accepts that face to face contact after adoption must be and remain at all times, in the best interests of the child. She would be the first to seek to bring it to an end if it were to emerge that it was not so.

 

77    The child is well aware that she has been offered for possible adoption. She spoke directly to the Sheriff and she perceives this as a good move in her life. She wishes to be part of a new family. She wants a Mummy and Daddy. She thinks her Mum treats her like a baby when she is not.

 

78    The child has now been matched with prospective adoptive parents.

 

79    The prospective adoptive parents are aware of the application of the respondent for face to face contact and have stated that if this were in the best interests of the child that they would support and facilitate such contact.

 

 

FINDS IN FACT AND LAW

1. That permanent and stable care is essential for the healthy growth of children. This can be delivered with a birth family; in residential care; with foster carers or adopters but all such care regimes must be consistent with the principle that the welfare of the child is paramount.
2. That the Respondent is able to satisfactorily discharge the responsibilities or exercise the rights as contained in Sections 1 and 2 of the Children (Scotland) Act 1995 ("the parental responsibilities and rights") and is likely to continue to be able to do so.
3. That the child's residence with the Respondent however is and is likely to be, seriously detrimental to the welfare of the child;
4. That having regard to the need to safeguard and promote the welfare of the child throughout her childhood and the likely effect on the child, a permanence order ought to be made in terms of Section 80 of the Adoption and Children (Scotland) Act 2007;
5. That having regard to the need to safeguard and promote the welfare of the child throughout her life and the likely effect on the child, an order granting authority to adopt ought to be made in terms of section 80(2)(c) of the Act of 2007.
6. That it is better for the child that the said orders be made than not to do so;
7. The child's Curator ad Litem has concluded that a permanence order with authority to adopt was in the best interests of the child.
8. The Children's Hearing panel tendered advice to the court that a permanence order with authority to adopt was in the best interests of the child
9. That it is reasonably likely that the child will be matched for adoption.
10. The petition should not be dismissed by reason of breach of natural justice. The Adoption Panel held on 8^th July 2010 failed to invite the Respondent to attend and make representations. This was procedurally unfair but not prejudicial as her absence did not materially affect the outcome of the meeting or the recommendation made. The Panel had a recommendation from Julie Philp, which the Respondent may have supported, but it accepted the arguments of Gail Aboim, the professional social work adviser, and for those reasons rejected the plan of Ms.Philp. In any event, the procedures of the Adoption Panel are only advisory and do not detract from the Respondents right to a fair hearing before a Sheriff who must determine the issues empirically, from the evidence led before the Court. The same reasoning applies to the meeting between Gail Aboim and the Agency Decision Maker.
11. That having regard to the need to safeguard and promote the welfare of the child throughout her life and the likely effect on the child, the consent of the Respondent to the making of the said orders should be dispensed with in terms of section 83(2)(d) of the Act of 2007.
12. That it is practicable and in the best interests of the child that the Respondent should have 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 the right on two occasions each year to send a letter or card to the child.
13. That it is practicable and in the best interests of the child that the Respondent also have the right to physical, face to face, contact with the child on two occasions each year for a minimum duration of four hours. Such contact will be exercised in the following manner: the first contact visit will be arranged as soon as reasonably possible after the child moves to live with her prospective adoptive parents; the second visit will take place six months later and thereafter in a six monthly cycle to suit the child's other commitments.
14. That the parental responsibilities and rights of the Respondent, other than those referred to in Sections 1(1)(c) and 2(1)(c) of the Children (Scotland) Act 1995, as provided for in findings 12 and 13, above should be extinguished;
15. That there should be vested in the Petitioners the parental responsibilities and rights.
16. There being no further need for compulsory measures of care, the supervision order should be terminated;

THEREFORE:

Grants the Prayer of the Petition and for the Petitioners: makes a permanence order with the mandatory provision and grants authority to adopt the child, in terms of Section 80 of the Adoption and Children (Scotland) Act 2007; makes and ancillary order vesting in the Petitioners the responsibilities and rights as specified in Sections 1 and 2 of the Children (Scotland) Act 1995; allows the Respondent contact with the child by (a) sending a letter or card to the child on two occasions each year; (b) the Petitioners providing written information to the First Respondent about the welfare and development of the child on at least two occasions each year per Finding in Fact and Law 12 and (c) a physical, face to face, meeting with the child on two occasions each year for a minimum duration of four hours, initially as per Finding in Fact and Law 13 and thereafter at times and always at places to be agreed with the Petitioners; Quoad ultra, extinguishes the said responsibilities and rights of the Respondent save those referred to in Sections 1(1)(c) and 2(1)(c) of the Children (Scotland) Act 1995; Dispenses with the consent of the Respondent to this order; Revokes the supervision requirement made in respect of the child; Finds no expenses due to or by either party.

 

 

 

 

Sheriff of Tayside Central and Fife

 

 

 

 

 

NOTE

Legislation referred to or considered

 

Adoption (Scotland) Act 1978

Children (Scotland) Act 1995

Adoption and Children (Scotland) Act 2007

The Adoption Agencies (Scotland) Regulations 2009

Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children etc 2007) 2009/284

 

Cases referred to or considered

 

A v B and C 1971 SC (HL) 129

In re KD (A Minor), Re [1988] AC 806

Dundee City Council v M 2004 SLT 640

City of Edinburgh Council Petr. re child CM Sheriff K Mackie -1^st July 2010

Aberdeenshire Council Petr.re child CW- 6^th December 2010

East Lothian Council v S 2011 Family Law Reps 80

City of Edinburgh Council Petr re child L - Sheriff Pyle -25^th July 2011

QV v TW and JW (re child CW) Appeal Sheriff Principal Young QC - 2nd July 2011

East Lothian Council v LSK -Appeal Sheriff Principal Bowen QC-8^th March 2011

Inverclyde Council v MT and MS (child SMS) the Hon. Lord Pentland 8^th February 2011

ANS and DCS v ML [2011] CSIH 38 21st June 2011

 

Textbooks

Adoption of Children in Scotland - McNeill and Jack 4^th Edition 2010

Supporting Direct Contact after Adoption - Dr.Elsbeth Neill and others 2011

 

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PREAMBLE

 

This is a petition to grant a permanence order with both the mandatory and ancillary provisions in terms of the Adoption and Children (Scotland) Act 2007. In addition the Petitioners seek authority to place the child for adoption. This legislation has only recently come into force and there are only a handful of reported decisions considering the Acts proper interpretation and effect and it may be of an assistance to rehearse the relevant statutory provisions in detail. The relevant sections of the Adoption and Children (Scotland) Act 2007 and the Children (Scotland) Act 1995 as amended are as follows:

Adoption and Children (Scotland) Act 2007

 

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.

(5) Where an adoption agency is placing a child for adoption it must have regard, so far as is reasonably practicable, to the views of the parents, guardians and other relatives of the child.

(6) In carrying out the duties imposed on it by subsections (2) to (4) an adoption agency must, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of the child or whether there is some better practical alternative for the child.

(7) If an adoption agency concludes that there is an alternative such as is mentioned in

subsection (6), it must not make arrangements for the adoption of the child.

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.

Effect of order on existing orders

88. (1) This section applies where-

(a) parental responsibilities or parental rights in relation to a child vest in a person by virtue of-

(i)                  a permanence order, or

(ii) an order under section 11 of the 1995 Act (court orders relating to parental

responsibilities etc.),

("the existing order"), and

(b) the appropriate court intends to make a permanence order ("the new order") as respects the child.

(2) On the making of the new order, the existing order is revoked.

(3) In making the new order, the court must secure that the parental responsibilities or parental rights vesting by virtue of the existing order vest in a person under the new order.

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.

Children (Scotland) Act 1995

1.- Parental responsibilities

(1) Subject to [ Section 3(1)(b), and (d) and (3) ] 1 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.

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The Evidential Framework

1.      The petitioners were represented by Ms Tina Magson, solicitor, and the respondent by Mr Ian Sharpe, Advocate. They must be congratulated for their sincere efforts to present their respective clients cases in a robust and able manner but with a truly collaborative spirit: so that the court could have as much information and argument as was needed but in as short order as possible. I must also record my thanks to both legal teams for the detailed and helpful efforts they made to agree facts or to produce documentary evidence to reduce the need for oral testimony. This extended from Joint Minutes through Affidavits and agreed Reports etc to full written submissions at the conclusion of the evidence. All were agreed that the process still took longer than any of us would have wished but that was not through any fault of presentation or strategic delay. The failures are systemic and I will have more to say on this later. I would, however, support the observations of my learned colleague, Sheriff Pyle, set out in his judgment in Edinburgh City Council re the child L (cit.supra)

"During the course of her evidence, Dr Valerie Cairns observed that sometimes she just wished everybody involved in the care of a looked after child, whether social workers or courts, would make an early decision, even if it might be the wrong one. That is a sentiment with which I agree, for even a good decision for all the right reasons can end up being a bad one just because it took far too long to make."

 

The judgment also reviews the history of adoption legislation in Scotland and contrasts the previous 1978 legislation with the 2007 Act. I do not, therefore, propose to rehearse this again but adopt his analysis which is worthy of further reading. I would also observe that the Lord Chancellor has announced that in England and Wales a new target for completion of proceedings, such as these, will be six months. The Scottish Ministers will, no doubt, take note of these developments.

 

2.      I had available the following documentary evidence. Two Joint Minutes one of a general nature and the other agreeing the medical report of Dr Susan Dewar. Affidavits by : Dora Chalmers Social Worker;Antonia Pannetta Social Worker; Karen Wilson Child Care Worker; David Gallacher Tayside Substance Misuse Service. I had written reports from Mr. Barry Fry Child Psychologist ; Concateno Tricotech ( drugs use analysis); Mr. Ford Solicitor Curator ad Litem to the child E appointed by the Court; the advice of the panel of the Children's Hearing; Duncan MacKinnon Solicitor Curator ad Litem to the child E appointed by the Children's Hearing. In addition all Inventories of Productions were agreed to contain documents which were true copies and were what they bore to be.

3.      I heard oral testimony over some fifteen days from the following witnesses. Susan Socha Social Worker;Jackie Iannetta Foster carer; David Gallacher drug counsellor;Julie Philp Social Worker;Teresa Mullan Social Worker; Dora Chalmers Social Worker;Antonia Pannetta Social Worker; Gail Aboim Senior Social Worker and Professional Advisor to Adoption Panels; Steven Clark Chairman of Adoption Panels; Duncan MacKinnon Solicitor Curator ad litem; Barry Fry Child Psychologist;Brenda Green Social Worker and the Respondent herself.

The Facts and |Circumstances

4.      The findings in fact are extensive and record much of the relevant life history of the child and her mother, the respondent. I will, however, for the sake of the narrative briefly sum this up. The respondent is 34 years old. She had a difficult childhood as her own mother abused illicit drugs. She began experimenting with illicit drugs from the age of 15 and eventually became addicted to heroin. Her mother and grandmother died, within a few months of each other, in 1995. The respondent suffered depression. She formed a relationship and gave birth to a child LJM. The relationship broke down and LJM remained with her father and the respondent lost all contact.

5.      The respondent, subsequently, formed a relationship with CB, the father of child E, around 2001. She was aware that he was a convicted murderer released on life licence. They both appear to have abused illicit drugs. The child E was born in November 2003. On 10^th April 2004 the respondent was rushed to hospital. She had been attacked with a knife and suffered wounds including injuries to her throat. The respondent was reluctant to speak to the police at first but later gave an account of events. She claimed, initially, that on the night in question CB had been taking diazepam at home and then went out. When he came home he was aggressive and assaulted her. He subsequently attacked her with a knife. At some point the child's cot was knocked over and she was found with blood spattered on her. The respondent later modified her account. She claimed that the incident was a fight over an alleged supply of illicit drugs and that both she and CB had knives. The facts became too blurred to establish guilt and CB avoided conviction for attempted murder. He was, however, recalled under the terms of his licence, and spends several more years in prison.

6.      The respondent needed help and received support from the Social Work Department of Dundee City Council. Over the next few years the respondent continued to need support: sometimes voluntary but at times by way of compulsion through child Place of Safety Warrant.

7.      CB, the biological father, rears his head once more when he is transferred to Castle Huntly Prison on the outskirts of Dundee to begin community re-integration prior to release. The respondent stated in evidence that, at that time, she harboured a residual belief that CB may have reformed. She makes contact with him. In 2008 CB absconds from prison and he is found sheltering in the respondents home. He was returned to prison. He has not featured, so far as I can judge, in the life of the respondent or the child since that time.

8.      The respondent continued to need help caring for the child. She is, by then, in the grip of heroin addiction. In June 2008 she is convicted of leaving the child at home with no one to care for her. In September 2008, when the child was only four years old, she had to call the police when she could not be found having been left to play, unsupervised, in the street. On 21^st April 2009 the child was again left unattended at home. The respondent later admitted that she had gone out to source heroin. The child was removed from the house on the authority of a Child Protection Order. She has never returned to her mother's care since that day.

9.      The child became a "looked after and accommodated child" and the Petitioners began to plan for her long term care. A twelve week rehabilitation plan was agreed in April 2009. The respondent was also subject to a court sanctioned Drugs Treatment and Testing Order. In May 2009 she breached the terms of this order and a warrant was issued for her arrest. Her methadone prescription was, accordingly, suspended. Grounds of referral to a panel of the Children's Hearings were established by a Sheriff at Dundee on 15^th May including a finding that the respondent had been convicted of a Schedule 1 offence. A review was held in June 2009 as the plan to reunite the child with the respondent was, clearly, in real jeopardy. The rehabilitation process was extended for a further three months by the Social Work Department. In December 2009 the respondent was still in the grip of her addiction and a plan for permanent alternative care was proposed. This is the process known as "parallel planning": the prospect of rehabilitation remains but the groundwork for an alternative care regime begins to be laid. Parallel planning was formally agreed at a LAAC review in January 2010. In February 2010 the respondent was arrested for shoplifting. She later admitted that she was not only stealing to feed her habit but had engaged in prostitution. On 2^nd March 2010 the respondent was found in a common stairwell suffering from a suspected drug overdose. This was confirmed upon her admission to hospital.

10.  The child has remained in the care of one foster parent, Jackie Ianetta, until now. The child has been matched with prospective adoptive parents but she has not yet moved to live with them. The respondent continued to have contact with the child at the Lochee Children's Centre in Dundee. Contact was initially twice a week. The respondent's attendance was not good and contact was reduced to once a week. In August 2010 contact was further reduced to once a fortnight and that is the pattern which prevailed at the time of the Proof. Kinship carers were contacted with a view to assessing their suitability to care for the child but none were found. The remainder of the history of the pre-Proof process can be found in Findings in Fact 49 to 67.

 

The Submissions of the Parties

11.  Mr. Sharpe and Ms.Magson both tendered written submissions and in deference to their considerable efforts I have annexed copies of these submissions as an Appendix to this Note. I will, however, attempt to sum these up for the sake of continuing my narrative. Ms.Magson invited me to grant the prayer of the petition with authority to adopt and with only indirect post adoption contact by way of letters and the like. She supported her submissions, in respect of the permanence order, by reference to the evidence of the respondent's addiction to heroin. The simple fact was that the respondent had needed assistance with child care since the terrible incident in 2004 when the respondent was attacked. Thereafter she had required assistance on a number of occasions. Her decision making was unsound. She had, by her own admission, sought to rekindle her relationship with CB who was clearly a man of deep seated violence and a real and present danger to the child. She pointed to the evidence of Barry Fry, the child Psychologist, who had noted that even now the respondent did not seem to realise or accept that the child must have been profoundly affected by the awful violence inflicted upon the respondent in her presence. The respondent's life spiralled into chaos and crime because of her addiction. She was not able to provide consistent care culminating in the "home alone" incident which triggered the present foster placement. The respondent had been given every chance to turn herself round after what might be thought of as a wake up call of the compulsory removal of the child from her care. Yet, despite genuine attempts at rehabilitation the respondent had breached her Drug Treatment and Testing Order by taking illicit drugs to supplement her methadone prescription. She had reverted to stealing and even descended into prostitution to feed her habit. She is not, at this time, drug free. She still requires methadone. She will not undertake a full detoxification regime until later this year. There was a risk this would not be successful. The respondent had tried to free herself from drugs before and she admitted that she had relapsed. There were too many unknown quantities in the respondents life and the child should not be expected to wait indefinitely for a permanent solution to her need for a stable safe home where she would have chance to thrive.

12.  She pointed to the sheer length of time that the child had been with her foster carer. There was now a real change in the relationship between mother and daughter. Barry Fry had categorised the relationship as now akin to Aunt and Niece. The child had moved on with her life and formed new attachments not only to her foster mother but to another child who had lived with her for a time. Barry Fry was clear that this indicated that the child was ready to make new attachments to a permanent family and that return to the respondents care would be seriously detrimental. Her best interests would be served by being placed for adoption. The breakdown of the bond between the respondent and the child was palpable and Ms.Magson urged me to accept the evidence of Antonia Pannetta and Barry Fry on this point.

13.  Adoption was the path to a permanent solution for the child's future. She invited me to accept the evidence of Barry Fry that the child needed stability: she was "betwixt and between". The child needed a family to call her own. The child had developed whilst in foster care and was, frankly, looking for something different which could not be achieved by leaving her in any form of temporary care regime. The child wanted adoption which in her mind means real permanence. This would offer lifelong stability which is what the child craves and needs. She submitted that the overwhelming body of evidence presented by the petitioners had established that the statutory tests were made out and that I should pronounce the orders as craved. She also dealt with certain technical submissions for the respondent but I will deal with these when addressing the submissions of Mr.Sharpe.

14.  Finally, she submitted that I should not make an order for face to face contact. She pointed to the weight of evidence from witnesses who had direct involvement with the contact exercised by the respondent at this time which indicated that the child had distanced herself from her mother. She was happy enough to play at the contact sessions but equally she would have enjoyed playing with Ms.Panetta her social worker or other third parties. This detachment was also observed by Barry Fry. Direct contact post adoption was not in the child's best interests. Contact was not to enable the respondent to feel better about her separation from the child. She had shown in the past that she did not always fully support the foster placement. She had reacted adversely when the child had suggested that other children in the foster home were her "brothers and sisters". Direct contact might serve to undermine the placement or otherwise cause the child confusion or distress. She referred me to the second report of Barry Fry and the preconditions that he asserted, in his professional opinion, would be necessary to indicate direct contact to the child: as set out in Finding in Fact 75 above. She invited me to accept the evidence of Ms Pannetta, the child's current social worker that direct contact was not in the best interests of the child and to reject the arguments in support of it advanced by the respondent.

 

15.  Mr.Sharpe invited me to dismiss the petition failing which to grant a permanence order without the additional authority to adopt. In the event that I was to make any order he sought contact between the child and the respondent.

16.  He invited me to dismiss the petition because the petitioners had acted in breach the rules of natural justice. He emphasised that he was not making a submission that there were breaches of either Article

6 or 8 of the European Convention on Human Rights. He relied upon the common law. The petitioners had convened a meeting of the Adoption Panel to consider the proposals of the Social Work Department for the child. A Form E was before this panel and it proposed a permanence order with authority to adopt and indirect contact. The respondent was duly invited to attend that meeting in April 2010. She could make representations. The meeting was adjourned and in his submission, no recommendation was made. A further meeting was convened in July 2010. Mr.Sharpe submitted that this was as much a meeting to consider the question of permanence and adoption for the child as that in April. The same Form E was on the table. The respondent was not invited to this meeting and her voice was not heard. This was unfair and a breach of natural justice. Moreover, after the July meeting, which recommended permanence with authority to adopt and indirect contact Gail Aboim the professional adviser at that meeting, had a discussion with the Agency Decision Maker. This was in breach of regulation 13(2) of the Adoption Agencies (Scotland) Regulations 2009/154 which provides:"No member of the adoption panel is to take part in the decision". He noted that the evidence of Gail Aboim, on this point, was that it was not her function to invite the respondent when according to the petitioner's own literature (which Ms Aboim appeared to have drafted) it patently was her remit. He also invited me to discount her suggestion that, in any event, the respondent did not need to be invited to the July meeting as it was only investigating ancillary aspects of the child's path to permanent care: the decision had been made in April. This was plainly wrong. Firstly, in law because Adoption Panels do not make decisions only recommendations and secondly, in fact as no recommendation or "decision" had been made. The July meeting was, in effect, a full rehearing of the Form E proposals and to deny the respondent the right to be heard was unjust. Mr.Sharpe also made some subsidiary submissions touching upon the constitution of the Panel and the question of the precise nature of the advice given to the Court by the panel of the Children's Hearing, which are set out in his written submissions attached.

 

17.  At this point it seems logical to set out the petitioner's response to these discrete submissions. Ms. Magson invited me to reject these submissions. She refuted the suggestion that there was any want of natural justice or unfair treatment in the pre litigation process. There was no legal obligation upon the Adoption Panel to invite parents to their meetings. The fact that they did so was, no doubt courteous and good practice but that could not elevate attendance to the status of a right. The July panel had the benefit of all the papers including the Minutes of the April meeting which the respondent had attended. In any event she directed my attention to the 2004 Inner House decision in Dundee City Council re the child CM [ cit.supra] where Lady Cosgrove stated at paragraph 22 : " We do not consider that the parent's absence from the panel meetings infringed their right to a fair hearing. The panel's decisions were, in our view, no more than preliminary decisions which have had no effect upon the respondents rights in respect of the child" In her submission the Court was not merely reviewing the adoption agency process but was under a duty to consider the whole matter afresh and hear the evidence to reach an empirical decision. The respondent reached the court with all her rights and pleas intact and there was no prejudice suffered by the respondent by any alleged procedural unfairness or infelicity.

 

18.  Mr. Sharpe, then submitted that in the event that I was not with him on his arguments in favour of dismissal on procedural grounds he would turn to the merits of the petition and the statutory framework and tests. He submitted that the court must first of all consider whether or not to grant a Permanence Order (PO) in terms of section 80(1) of the Adoption and Children (Scotland) Act 2007 (the 2007 Act). Section 14 of the Act is not engaged at this stage of the court's consideration. If the court is satisfied such an order should be made, the court then has to consider what, if any ancillary provisions should be attached in terms of section 80(2)(b) of the 2007 Act. After the court has decided what if any ancillary provisions should be attached to the PO, the court then goes on to consider whether or not to make an order granting authority for adoption in terms of section 80(2)(c) and section 83 of the Act. Section 14 of the Act is then engaged as the court is being asked to make a decision 'relating to the adoption of a child. He directed me to the case of City of Edinburgh Council in respect of the child CM. This view was followed by Lord Pentland in the case of Inverclyde Council against MT and MS.

19.  He further submitted that the next question lay in the terms of section 84(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." Further section 84 (4) provides that : "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."

The well recognized over arching principles of the minimum intervention and paramount welfare were both engaged here.

20.  He next addressed Section 84(5)(a) and (b) which enjoins the court to have regard to the child's view subject to the child's age and maturity. Mr. Sharpe was highly critical of the evidence of both the principal social work witnesses and the First Report of Barry Fry who concurred in stating that the child was too young to understand or express a clear view in relation to the current circumstances or what she feels future care plans for her should be. Despite this, in April 2010 when the child was aged 6 years old, social workers nevertheless told her she was getting a 'new family' in the August of the same year when she was still aged 6 years. The witness Antonia Panetta stated in her evidence that the child had a view on the future and that she did not want to see her mother. In his submission any such alleged response was the product of very leading questions and was an exercise in a self-fulfilling prophecy. Barry Fry simply followed the social work department's line on this issue without giving it any proper consideration. He pointed to the fact that the Children's Hearings had consistently refused to terminate contact because of a complete lack of evidence to support such a decision. This was further supported by an independent safeguarder report by Mr. Duncan Mackinnon, solicitor, who was particularly critical of the way in which this issue was dealt with by the social work department. At today's date the children's hearing has refused to terminate contact. The court should attach absolutely no weight to the alleged views of the child in the light of all of the above circumstances.

 

21.  The Court must also address the "seriously detrimental" test set out in Section 84(5) (c) (ii). The court must make a finding in fact on this issue before any permanence order can be made [cf East Lothian Council v LSK dated 8^th March 2011, and Sheriff Principal Edward Bowen and now a decision of the Inner House reported at 2012 CSIH 3 XA86/11 on 17^th January 2012] Before making a permanence order, the court must-

"(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"

This section is in mandatory terms and in Mr. Sharpe's submission, based on all the evidence led, it cannot be said that to return the child to her mother would be 'seriously detrimental' to her welfare. This test applies notwithstanding the fact that even if the application is refused this court does not have the power to return the child home which is a matter for the Children's Hearing. On no reasonable, objective view of the evidence could it be said that it would be seriously detrimental to return the child home. He recalled the evidence of Jackie Ianetta the current carer: "If mum is clean of drugs, then the best place for her is with her mother." The respondent is free of illicit drugs and has been for some time. David Gallagher gave scientific evidence and her prognosis is very good. She should be completely clean of drugs by sometime in 2012. The respondent now lives in a 2 bedroom flat that has recently been decorated. The respondent brought the child up for five and a half years. There was evidence of good quality contacts and on occasions, of the child doing cartwheels at the end of contact. There has also ample evidence of the child having a 'clear bond and attachment' with her mother, as reported by the child's then Social Worker, Julie Philp in her report to the July 2010 Adoption Panel. The respondent has demonstrated the ability to put E's needs first throughout contact. Furthermore, the child and the respondent have a good bond and attachment. Julie Philp reported that " Throughout contact there is a lot of laughter, hugs and affection from both {the child} and {the respondent} . Julie Philp stated that the child herself " still wants to see her mum and stated she doesn't want to be adopted if she can't see her mum and recommended that a plan for long term fostering with direct contact was most suitable for E's needs.

 

22.  Mr. Sharpe reiterated that since that recommendation in June 2010; the respondent had gone from strength to strength in her recovery from abusing drugs. The drugs analysis report lodged by the respondents (Respondent's 2^nd Inventory of Productions number 8, at page 4) proved that she has been completely clear of all drugs since start of November 2010 and even in October 2010 she only used only a small amount of morphine. She is now very stable in herself and she leads a very stable life. The Court should have regard to the evidence of Dianne Simeon of Tayside Council on Alcohol Service and her very positive comments about the respondent's level of engagement and substantial progress. The evidence of Brenda Green a social worker with the Criminal Justice Team confirmed that the respondents Probation Order had been discharged early to mark her excellent compliance and progress. In these circumstances, it was his submission, it cannot be said that to return the child to her mother would be seriously detrimental to her welfare. If this application is refused the Children's Hearing could consider a phased return at some point early next year, subject to the respondent remaining clean of drugs and with support in place.

23.        He next addressed the Ancillary Provisions per S. 82 of the 2007 Act.

If I were not with him on the question of permanence then the court must go on to consider whether or not to attach ancillary provisions as set out in section 82 of the Act. The only issue here between parties is whether or not there should be an ancillary provision for ongoing face-to-face contact. Mr. Sharpe and Ms Magson were at one in submitting to me that the view expressed by Professor Triseliotis in Sheriff Pyle's decision in the City of Edinburgh Council Petitioners in respect of child L [ cit.supra] that ; "as adoption policy has evolved over the years a presumption now exists that post adoption face-to-face contact is the preferred option unless it is shown to be detrimental to the child." was inaccurate. There is, as Sheriff Pyle indeed held, no such presumption either as a matter of academic adoption theory or in law . It is clearly a matter for the court to determine in each case based on its own circumstances having regard to the welfare of the child whether or not there should be ongoing direct face-to-face contact.

 

24. In the respondent's submission face-to-face contact should be continued, in the best interests of the child, under section 82(1)(e) of the Act. Firstly, because that was the view of Julie Philp the child's own social worker to the July 2010 Adoption Panel and supported by her line manager Terry Mullen. I should give great weight to the fact that Julie Philp changed her own recommendation contained in the Form E, Part 1, page 2, section 4 (3/19), from adoption and no direct contact and limited indirect contact to "a plan of long term fostering with direct contact. She knew both the respondent and the child very well. Of all the social workers who gave evidence Julie Philp knew the child and her mother far better than anyone else. I should bear in mind that the child had been accommodated under the Child Protection Order since 22^nd April 2009, yet a year later she is still very keen to see her mother and maintain that kind of contact. This, it was submitted was not surprising as the child was five and a half years old when she was taken into care. Val Selkirk another social worker was able to say in her report of 10^th September 2009 (3/14 at page 3): "{the child} has demonstrated that she has a strong and abiding bond with her mother, and therefore any permanence plans require to take account of her needs in respect of this." The Council legal Adviser gave the Adoption Panel in April 2010 (3/22 at page 22) the following legal advice:

" Noting that today's discussion of contact raised more questions and asked what the implications of contact are on {the child} Mr. Smillie feels that a contact assessment should look more closely at the benefits or not with the view to determine which route should be taken. Long term fostering may consider parental contact if contact is deemed to be in {the child's} best interests. If contact is seen to be detrimental then adoption could be pursued." The panel then concluded: "Contact needs to be further assessed to determine if it is to continue and therefore which legal route to secure permanence is the most appropriate." The Adoption Panel on 8^th July 2010 should have followed the recommendation made by Julie Philp in her report to them of 24^th June 2010 which was long term fostering with contact. In Mr. Sharpe's submission the Panel was swayed by the wholly disproportionate influence of Gail Aboim, the Senior Officer, Adoption and Fostering. The Chairman of the July Adoption Panel Mr. Steve Clark, gave evidence that her contribution had 'considerable' influence on them as a Panel. She sought in her own evidence to significantly play down her role but in the respondents submission, she was being deliberately disingenuous with the court as her advice was very clear: if mum could not give {the child} permission to move on and be able to tell E it is okay to call someone else mum and dad and that she has a new family, then she did not think ongoing direct contact was indicated.

 

25.  Mr. Sharpe adopted a very trenchant position on the evidence of Ms. Aboim In his submission this was an absolute travesty of justice. Gail Aboim had not even attended the first Adoption Panel in April 2010. She knew less than anyone else at that meeting in July about E and her mother. The Panel's recommendation for adoption completely flew in the face of Julie Philp's recommendation, based on a report which they had tasked her to do in the first place. Ms. Aboim was also factually wrong to suggest to the July Panel that the respondent was unable to give the child permission to move on . A more accurate statement would have been to state that the respondent wanted {the child} to return home but she nevertheless accepted that if the plan should be "long term fostering she would prefer that she remain where she is as she is settled." (Julie Philp's report 3/24, at page 5, last paragraph.).

 

26.  In Mr. Sharpe's submission there was now a mindset within the social work department that the decision of July 2010 had to be progressed however inconsistent it was with Julie Philp's recommendation. There was no review or questioning by Antonia Panetta of the Adoption Panel's recommendation in July. She saw it as her job to progress the adoption plan and that meant no direct face-to-face contact. Within 4 months of taking over the case she wrote a report in November 2010, recommending to the next Children's Hearing that contact be terminated. Mr. Sharpe drew my attention to the lack of foundation in the evidence even of the four contacts Ms. Pannetta witnessed to support such a conclusion. Her conclusion completely misrepresented the quality of contact that was taking place. One example was her description of the respondent calling the child "a bloody little nuisance sometimes" without putting it in context which gave a completely different impression of that incident. Her individual meetings largely consisted of her asking the child extremely leading questions which should have been contrary to her own child protection training. The Children's Hearing in January 2011 refused to terminate the contact and they appointed Mr. Mackinnon solicitor as an independent safeguarder. On the 14^th February 2011 the Children's Hearing having had the benefit of Mr. Mackinnon's Report concluded the social work view was not independent and not sufficiently evidenced.

 

27.  Ms Panetta continually tried to have contact terminated at different Children's Hearings. A second safeguarder was appointed Mr. William Warden Solicitor who, like Mr. Mackinnon was not prepared to support the recommendation to terminate. Mr. Sharpe characterized the evidence of Ms Pannetta as "a closed mind and a mindset that ignores the evidence". He directed me to the conclusion of her report to a Children's hearing dated 15/6/11 where she stated :

"Assessment of her mother { the respondent} has indicated that she has been unable to address her drug misuse and make changes in her lifestyle which would enable her to safely care for {the child} ."

 

27. This was a misrepresentation of the facts. The respondent was making very real progress with her lifestyle and was overcoming her drug addiction. Brenda Green gave evidence that she did speak to Antonia Panetta on the telephone, and whatever she said about the respondent it would only have been positive. In fact the respondent was being used a volunteer to help others overcome their addictions. None of this was communicated to the Children's Hearing. Ms. Panetta continued to present an unremittingly negative view of the respondent contrary to the evidence of substantial progress having been made by her. I should refuse the petitioner's crave to have an ancillary provision of no direct contact. This would not be in E's best interests.

 

Discussion

28. The respondent was frank about her condition in her evidence. She is a long term heroin addict who engaged in crime to raise funds to feed her habit. She admitted her failure to satisfactorily discharge her rights and obligations as a parent in the past. She accepts that she continued to fall from grace after the child was placed in her current foster home by using drugs, committing crime and failing to adhere to contact arrangements. She is now determined to eschew all illicit drugs but has not yet undergone a full detoxification programme. She admits she has relapsed in the past. She now shuns all family and friends who she accepts are firmly part of the Dundee drugs scene. Her life revolves around challenging her addictive impulses and she now assists others to do so as a mentor. She has made a new home and longs to have the child back to care for her as she says "only a mother can". This is the dilemma every judge faces in cases of this kind : when is the love of a parent just not enough? The answer was, perhaps, supplied by Lord Templeman in an English decision In re KD (A Minor), Re [1988] AC 806: "The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered." It seems to me that the statutory tests set out in the 2007 Act point to that same conclusion.

 

The Statutory Tests as Applied

29. In order to grant a permanence order of any kind I must take into account: whether it is better for the child that I grant the order than not to do so [s.84(3)]; that the paramount consideration is the need to safeguard and promote the welfare of the child throughout childhood [s.84(4)]; whether it is practical to allow the child the opportunity to express his or her views, having regard to age and maturity [s.84(5)(a)]; the child's religious persuasion, racial origin and cultural and linguistic background [s.84(5)(b)(ii)];the likely effect on the child [s.84(5)(b)(iii)];where a parent or any other person has a residence right under the 1995 Act, the child's residence with that parent or other person is, or is likely to be, seriously detrimental to the welfare of the child [s.84(5)(c)(ii)]. S.83(2)(d) of the Act recognizes the primacy of the principle of the welfare of the child by empowering the court to grant an order, even where the court holds that a parent passes the satisfactory discharge or exercise of parental rights and obligations test, if the welfare of the child requires it.

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

secure that each responsibility and right vests in a person [s.80(3)]. The mandatory responsibility of "guidance" [s.80(2)(a)] and [s81(1)(a)] and [1995 Act, s.1(1)(b)(ii)] , but only in so far as it is practicable and in the interests of the child [1995 Act, s.1(1)] together the mandatory right of "residence" [S.80(2)(a) and s.81(1)(b) and 1995 Act, s.2(1)(a)] must vest in the Petitioners.

 

31. I must decide whether or not the parent should have the "contact" responsibility [s.80(2)(b) and 82(1)(b)(i) and 1995 Act, s.1(1)(c)], but only in so far as practicable and in the interests of the child [1995 Act, s.1(1)] and the "contact" right [s.80(2)(b) and 82(1)(b)(ii) and 1995 Act, s.2(1)(c)]; extinguish responsibilities and rights [s.82(1)(c) and (d)] and finally, determine any other question in connection with any other aspect of the welfare of the child (s.82(1)(f)(ii).

 

32. In order to grant a permanence order with authority to adopt, I must be satisfied that the petitioners have requested authority to adopt [s.83(1)(a)]. That the child had been, or is likely to be, placed for adoption [s.83(1)(b)]. That each parent has any responsibilities and rights set out in the 1995 Act [s.83(3)(a) and (5)(a)]. That any parental consent to the making of the order, if withheld, should be dispensed with on the ground that that parent is unable satisfactorily to discharge the responsibilities or to exercise the rights and is unlikely to continue to be unable to do (my emphasis) [s.83(1)(c), (2)(c) and (3)(b) and (c)(ii)] , but excepting the rights and responsibilities to do with contact with the child [s.83(3)(a)].

 

33. This statutory maze may seem daunting enough (and for a full analysis of the various "tests" and how they inter-link I commend that of Sheriff Pyle in EDC re child L above) but Mr. Sharpe and Ms.Magson made a joint submission that I must also take into account the terms of Section 14 of the Act. This section provides that when a court is coming to a decision relating to the adoption of a child, paramount consideration must be given to safeguarding and promoting the welfare of a child throughout its life. I shall refer to this hereafter as the "lifetime test". The test for a permanence order, without authority to adopt, looks to the child's welfare over the more restrictive period of childhood (to age 16 for residence and 18 for guidance). I shall hereafter refer to this as the "childhood test". The weight of authority, such as it is on the 2007 Act, supports the application of the "lifetime"test to petitions for permanence orders seeking additional authority to adopt.[cf. City of Edinburgh Council Petr. Re child CM. ; Aberdeenshire Council Petr.re child CW; QV v TW and JW ( re child CW) Appeal ; East Lothian Council v LSK -Appeal ; Inverclyde Council v MT and MS ( child SMS) ; ANS and DCS v ML 2011CSIH 38; all sup.cit] .

 

34. Sheriff Pyle, however, advocates a different approach in EDC re the Child L and held that the "lifetime" test only applies when an actual petition to adopt is before the court. He argues that a petition for a permanence order is a new type of court order the primary function of which is to regulate the exercise of parental responsibilities and rights for children who, at least for the time being, cannot be allowed to remain with parents. In his opinion, the fact that the court may include in a permanence order authority to adopt does not involve the court coming to "a decision relating to the adoption of a child": which is the trigger set out in s14 (1). In his judgment the lifetime test is a creature of the first part of the Act and the second part of the Act is about the legislative innovation called a permanence order. He points out that the previous adoption legislation made reference to "any decision relating to the adoption of a child" whilst the 2007 Act applies to "a decision relating to adoption of a child".A petition for permanence relates to parental rights and responsibilities and why should it have two, time related, tests? This is logical and attractive. In my own opinion there is at least one other factor which supports Sheriff Pyle: permanence orders can only be sought by Local Authorities whilst Adoption can be at the hand of other agencies. Thus Part 2 of the 2007 Act is focused on the contest between a local authority looking after a child and the birth family. The Local Authority's powers endure only during childhood so why invoke a lifetime test?

 

35. I have, however, concluded that section 14 does apply in this case. Sheriff Pyle refers to the fact that section 14 is in that part of the 2007 Act concerned only with adoption and that s.83 repeats selected parts of section 14 so it is, surely, stand alone. A legislative draughtsman would simply incorporate section 14 by reference if it were to apply across the board. However, it must be noted that parts of s14 are simply irrelevant to the judicial process. In any event s14 may be in that part of the Act headed "The Adoption Process" but it is modified by the sub-heading "Preliminary". The next sections 15 to 19 operate under the sub-heading "Pre-adoption requirements". S.14, therefore, can, in my opinion, be applied to preliminary decisions pre- adoption. I am fortified in this view by the fact that S.14 also enjoins an Adoption Agency ( which may not be a Local Authority) to consider whether there is some better practical alternative care regime for a child and if so, it must not (my emphasis) make arrangements for the adoption of the child. This would seem to me to be not dissimilar to the "better for the child test" which the Court must adopt in terms of S.83(1)(d). The adoption agency would require to apply the lifetime test and so it seems to me must the court when considering granting authority to adopt.

 

36. I also consider that, nuances of legislative interpretation aside, the decision of a Sheriff in terms of S.80(2)(c) is one which relates to adoption in a real and substantive sense. The order is a green light to the petitioners to seek to bring any parallel planning, involving the parents, to an end: adoption is now the primary path to secure permanence. In the event that matching to prospective adopters has not yet been achieved efforts can be redoubled. Prospective adopters may have been reluctant to commit whilst the issue of, say, post adoption face to face contact lay unresolved. The petitioners also seek to dispense with the respondents consent to the making of an adoption order (my emphasis) in terms of S83(1)(c)(ii. In a subsequent petition for adoption a parent, whose consent has been dispensed with in an earlier permanence order, will only get intimation of that petition if the Sheriff orders it in terms of the Sheriff Court Adoption Rules at 14(1)(f) or 15. This is entirely discretionary and it must be borne in mind that the subsequent adoption petition of a child from Dundee may not be presented in Scotland. The permanence order may, therefore, be the only judicial decision in relation to adoption which involves the birth parents. This seems to me to engage the lifetime test in terms of S14.

 

37. I will now turn to the general application of the statutory tests to this case. Lord Reid in A v B and C (1971) SC.HL 129 reminds us that "Adoption cases depend so much upon general impression rather than the ascertainment of particular facts....". I respectfully agree with his Lordship and I do not intend to rehearse all the evidence presented to me over some fifteen days. I have concluded that I generally prefer the submissions of the Petitioners in relation to granting a permanence order with authority to adopt (with one exception which I will touch upon later) but I accept those of the respondent on the issue of direct contact. The various social work reports and records of contact visits, since the child has been with foster carers. make it clear that the respondent has struggled to care for the child throughout her still short life. The respondent has made a series of very poor lifestyle choices. She is, in my estimation, a victim of the all too prevalent cycle of drug addiction in Scotland and the City of Dundee in particular. She has struggled to fight her addiction. She seems to be, at last, winning that battle but the child has been in foster care since 2009 and how long must she wait for her mother to provide her with a home where she can thrive ? The respondent had the chance, during an extended period when rehabilitation was a real prospect, to free herself of her dependence upon drugs. She knew the probable consequences for the child of her failing to reform but she returned to illicit drugs and crime. I am simply unable to place reliance upon her future conduct.

I am also concerned about the respondent's new lifestyle. She is isolated from all her previous family and friends. Her life once revolved around addicts and the daily search for illicit drugs; now it revolves around other addicts but with a mission to free them from their dependency. I fear that this is not an environment which is necessarily conducive to a normal healthy childhood. The respondent must, quite properly, focus on her own recovery and it is laudable that she seeks to achieve this partly through the catharsis of helping others confront their demons but I think that there is a real risk that this way of life risks serious detriment to the child. The evidence points to the child needing a secure stable home where she will be a focus for love and attention and not fear being left alone again. I do not accept that the respondent offers such a home.

 

38. The parties raised no issue of controversy relating to the child's religious persuasion, ethnic origin or cultural background. I have already considered the question of the child's own views. I consider that the likely effect of the order upon the child [S84 (5) (b) (iii)] will be to provide a stable secure environment which will meet the paramount consideration of safeguarding and promoting her welfare throughout her childhood. She has been in foster care for three years. I accept the evidence of Barry Fry that she wants to move on and be claimed by and form part of a new family. This will give her a stable permanent environment in which she will have the same opportunity to thrive as any other eight year old girl.

 

39. I also had regard to the question of the child's own views as required by S.84 (5) (a) and (b). I met with her myself. This was after consultation with and by the consent of the parties. We met at the rooms of the Children's Reporter in Dundee. My Clerk and Ms.Pannetta were in attendance. The child and I introduced ourselves and broke the ice by discussing a mutual interest in dragons. The meeting was necessarily brief but I came away with at least the impression that she understood what the plans for her future were and she wanted to be adopted. She spoke of her mother but in a detached way. I agree with Barry Fry's impression that the child could have speaking about an Aunt rather than her mother. That said it is my judgment that the child overall lacks the necessary age and maturity to express a view on the orders sought and taking her views is therefore not reasonably practicable.

 

40. The petitioners have sought authority to adopt as required by S.83(1)(a). The parties were agreed that it is likely that the child will be placed for adoption as required by S.83(1)(b). Indeed we know that the child has now been matched with suitable prospective adopters. It is my judgment, for all the reasons given above, better for the child to have a permanence order with authority to adopt made than not as set out in S.83(1)(d). I have applied the "lifetime" welfare test in this case. Adoption will give her a lifetime of security and stability. She deserves to be free from a life connected with illicit drugs and the crime and other social problems associated with it. I am not persuaded that the respondent can provide this. She, equally, deserves a life where she protected from any association with her birth father, CB. Adoption will give the child a new family and lifetime support which should enable her to be safe from any possible baleful influence which her early life experiences may later throw up. She will also be protected from CB as she will have a new father who I trust will be someone she can admire and respect.

41. I accept the whole body of evidence but particularly that of Barry Fry and Jackie Iannetta, the child's present foster mother that the child needs a new family not continued foster care and that only adoption will provide this. The child has had a very difficult life until she was placed in foster care in 2009. The past three years have seen her develop and thrive. She is ready for a new inclusive family where she will loved and supported. She has marked time for far too long already.

 

42. I am required, however, to consider whether, in terms of S.84(5)(c), it would be seriously detrimental for the child to return to live with the respondent. My decision in this case would have taken but a few minutes reflection had the respondent not assured me that there was no question of the child's father, CB, being admitted into her life. I have, however, two residual concerns on this issue. Firstly, I do not entirely trust the respondents resolve here. She changed her story about the appalling violence inflicted upon her which resulted in CB avoiding a charge of attempted murder. I formed the very clear impression that she lied to shield CB. Secondly, she was prepared to allow CB back into her life and that of the child in 2008 when she sheltered him in her home having absconded from Castle Huntly. Finally, the ongoing connection with the respondent perpetuates the connection with CB and that puts the child at risk. I, equally, simply cannot rely upon the respondent eschewing illicit drugs. She is still dependent upon her methadone prescription. She has failed too often in the past and the child has already, in my view, waited too long for this to come to pass. I accept the evidence of Barry Fry that the respondent assigns considerable importance to resuming her maternal role and sees this as part of her own resurrection. Should the child be returned to her care and the reunion is unsuccessful, the adverse impact upon both her and the child could be considerable.

 

43. I, however, do not accept the Petitioners submissions that the respondent failed to meet the tests established by S.83(3)(b) and (c) that she cannot satisfactorily discharge her parental rights and responsibilities and is likely to continue to be unable to do so. The "satisfactory" test is not, in my estimation, some abstract counsel of perfection. Parenthood is a broad church and good parenting is often, like beauty, in the eye of the beholder. To the casual observer watching a mixed group of children playing in a park, some may present as happy, carefree, well dressed and behaved; others by contrast as scruffy and badly behaved, but all these children may be loved and generally well cared for. There is no paradigm for child care. Couples; single parents; working parents; homemakers; disciplinarians or libertarians may each claim superiority but with little empirical or objective evidence in support. Childhood is beset with shifting sands. Parents who coped without help may suddenly need it. Parents may suffer redundancy and need the after school club so they can look for other employment. A single parent, hitherto always at home, finds work and she too needs the afterschool club. The help of family, friends, or the Social Work Department may be necessary for respite care if serious ill health strikes. In this case I believe that the respondent has demonstrated that she could return to the standard of parenting she achieved before 2009 which was, with some help, satisfactory. I believe that she would be likely to be able to continue to do so provided she is able to sustain her drug rehabilitation. I accept that there must be some doubt over this but the section is couched in terms that place an onus on the petitioners which I am not persuaded that they have discharged.

 

44. I am, however, persuaded by the petitioners alternative submissions that, I should dispense with the respondent's consent to the orders sought in terms of S.83(2)(d) on the grounds that the welfare of the child requires it. This is for the all the reasons already given.

 

45. This leaves the issue of direct contact. On this point I am with the respondent. I agree with Sheriff Pyle that the statute does not create any presumption that post adoption contact will be granted. Mr. Sharpe and Ms.Magson were at one in their submission that the comments of Professor Tresiliotis in evidence to Sheriff Pyle were wrong both in fact and law. There is no presumption in favour of direct contact in England and Wales nor is there credible academic support for any such contact being the norm. I, however, consider that the basic import of the legislation is to ensure that this issue is actively addressed and not just sidelined.

 

46. The circumstances in this case are somewhat unusual. The child is eight years old. I heard evidence, which was not disputed, that this is more or less the upper age limit for adoption. The child lived with the respondent for the first five and half years of her life. Contact has continued throughout the foster placement at fairly frequent intervals and never less than once a fortnight. There is a bond between the respondent and the child albeit that the child has relegated her relationship with her mother to one of secondary importance. Barry Fry gave evidence to the effect that whilst face to face post adoption contact should not serve to retain or develop the former parent child relationship it may assist a child in forming a securer bond with adoptive parents by confirming that the former parent is safe, accepts the placement and that their affection remains constant. This can help to reduce the risk of anxiety, especially in adolescent children who may begin to question their origins and disrupt the placement. That such contact requires the birth parent to: accept the fact of and support the new placement; give time for adjustment to the new setting; demonstrate an interest in the child's new life and continue to lead a life themselves of which the child can be proud.

 

47. Mr. Sharpe also referred to recent academic studies and reports in particular the work of Dr. Elsbeth Neil of the Centre for Research on the Child and Family at the University of East Anglia. In a published paper from 2010 and in her recent book "Supporting Direct Contact after Adoption" Dr. Neil examined the experiences of 55 adoptive families where post adoption direct contact had taken place. She reached a general conclusion that whilst face to face contact was inevitably accompanied by a level of challenge for most of those interviewed it was seen as beneficial in spite of its complexity. In some cases the level of complexity was very great whilst some families were creative in surmounting all obstacles. Many people emphasised the value of allowing the child and the birth family to maintain relationships albeit in an altered form. Meetings were seen as a way to reassure both children and the birth parents about each others welfare. Contact was also seen as something which could benefit the child in terms of understanding his or her personal identity and biography which helped to make sense of why they needed to be adopted. The child's relationship with the adoptive family was also seen to be promoted in many cases, reassuring adoptive parents' anxieties or jealousies in relation to birth parents and giving the child permission to have feelings for both families.

 

48. The research, however, also reports on cases where direct contact was not a positive experience: sometimes for the child; for the adoptive parents and even for the birth parents. The balances and challenges need to be kept under review. In some cases risk to the welfare of the child became too great; in others the children simply did not want direct contact to continue. The process should be an open and ongoing negotiation to establish what at any given time is in the child's best interests.

 

49. The child knows her mother well. She has been part of her life for eight years. In my opinion it is unrealistic to expect the child to just forget her mother because she is with a new family. I accept Mr. Fry's evidence which accords, generally, with the published research available to me, that direct contact in this case is indicated if certain conditions are met. The respondent told me that she accepts that face to face contact after adoption must be and remain at all times, in the best interests of the child. She wants what is best for her child and the fact that she has opposed this petition should not be used against her. She told me that she would accept the decision of the court and if contact were granted she would be the first to seek to bring it to an end if it were to emerge that it were not in E's best interests. I believe her. She has come a long way in her battle against addiction and all the ills of her former life and has earned this modicum of trust. I have, therefore determined that it is in the best interests of the child to continue to have direct contact with the respondent and that it is reasonably practicable to do so. Such an order can, however, only work if all parties cooperate and most importantly that the child wishes it to continue. This remains to be seen.

 

50. I was invited to make no award of expenses due to or by either party.

Sheriff

 

Addendum

I wish to now make some observations of a more general nature arising from this case. In The City of Edinburgh, Petitioners, in respect of the Child, L Sheriff Pyle comments on the problems which the 2007 Act may pose for social workers in reducing contact with parents when a decision has been made that adoption may be the best route to promote the welfare of a child. He indicates that such contact may mean that social workers "may have to be more circumspect in deciding if and when to reduce contact before the permanence application is made." I concur with his observation. Parents who feel, in the best interests of their children, that adoption is not better for them or that post adoption contact would be in their best interests must not be, as I have observed above, just sidelined. Paying more than lip service to the recent research of academic such as Dr. Neil will be essential: particularly if the plan towards adoption or permanence involves the gradual and systematic reduction of contact before any decision is taken by the court about whether either an adoption order or a permanence order should be granted. Often such decisions effectively pre-empt what the court is able to decide. The petitioners must seriously review their procedures and training to reflect the new legislation and the emerging academic research in this field.

I was also , frankly, dismayed at the general attitude of the Social Work Department towards the respondent once permanence was the single route for the care of the child. No one seems to have given the respondent any real assistance or counselling on what she would be going through and her rights were left hanging in the wind. The respondent was blamed at every turn and yet given scant credit for the efforts she was making. Record keeping was poor. Factual inaccuracies were not corrected. Minutes of vital meetings, such as that of the two Adoption Panels, were difficult to follow: with no attempt to separate out questions and answers so as to make it clear who was actually speaking.

The petitioners operate something they call an "Adoption and Permanence Panel". There is no such entity: the Act requires there to be an Adoption Panel. I raise this not to be pedantic but if the issues of permanence and adoption are to be conflated then Minutes must be taken which make it clear what the issues are before the meeting at any given point on the agenda. To fail to do so causes confusion as it did in this case as is clear from Mr. Sharpe's submissions. I was also quite taken aback at the way in which the Adoption Panel ( for such it was) reached its recommendation to proceed in this case. The failure to invite the respondent to the second Meeting was appalling. The case social workers told me it was Ms.Aboim ( the Senior Social Worker and Professional Advisor) who would issue the invitation and as they were not told to bring the respondent they did not. Ms.Aboim told me she thought the social workers should have brought her along. When pressed in cross examination that it was, in fact, part of her office's remit to invite her, she changed tack and opined that the respondent had no right to attend anyway. When pressed as to why all the literature of her department (some of which she had drafted personally) said parents would be invited and the respondent had been at the April meeting, she informed me that the July meeting was not one a parent would attend as it was a follow up to the decision in April 2010 to seek permanent alternative care for the child. This was simply not an accurate statement either of the facts or the law. Yet at the July meeting, despite having a clear report from Ms. Julie Philp which she had been tasked to prepare recommending something other than permanence with authority to adopt, the Panel heard argument from Ms.Aboim whose opinion was based on academic theory. She knew nothing of the child or her mother personally. The Chairman of the Panel admitted in his evidence that this was so. Finally, to assign Ms.Pannetta, a first year Social Worker, to this case of this kind was at best unfair. She admitted to a series of record keeping failures and did not seem to grasp fully her duties to the court in the process. This was only due to her lack of experience for which she cannot be blamed. I ask, rather, who was assisting and supervising her as they should have known better. All of the above contributed materially to the delay in this case. We must find a way to streamline the whole process and that will require resources to be applied to early intervention techniques and to make the deliberative procedures move more swiftly. There are already guidelines and Practice Notes which should reasonably ensure that court time is made available to hear cases such as this as a priority: I regret that, in the current climate, this is just not happening. Time slots of a few days here and there are allocated instead of a continuous hearing. This is not an effective way to reach a swift decision. I agree with Sheriff Pyle and the expert in his case, Dr Cairns, that even the most carefully pored over decision can end up being less effective or worse, harmful to a looked after and accommodated child if it takes, as in this case, almost three years to reach it.

GAW

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX

The Written Submissions of the Parties

 

Case No: PO16/10

PETITIONER'S WRITTEN SUBMISSIONS

 

 

 

 

This case is an application for a permanence order in terms of section 80 of the Adoption and Children (Scotland) Act 2007 including provision granting authority for the child to be adopted in terms of section 80(2)(c).

 

Evidence

 

Paragraph 20 of the Sheriff Principal of Tayside, Central and Fife's practice note no 1 of 2009 entitled "Adoption and Children (Scotland) Act 2007: Guidance for Sheriffs and Practitioners" provides:

 

"It should be noted that evidence may be presented in the form of affidavits or

other written documents (Civil Evidence (Scotland) Act 1988, section 2;

McVinnie -v- McVinnie 1995 SLT (Sh Ct) 81; Glaser -v- Glaser 1997 SLT 456). The sheriff is bound to consider reports placed before him or her even if the authors are not called to speak to them, and the strict rules of evidence do not apply (T, Petitioner 1997 SLT 724 at 730L)."

 

In this case therefore your Lordship should have regard not only to the oral testimony of the witnesses led by both parties, to the joint minutes agreed by both parties and to the affidavits lodged by the petitioners which the parties have agreed are to stand as examination in chief, but also to the Confidential Report prepared by Mrs Dora Chalmers, senior sessional social worker, to the reports lodged by Mr Michael G. Ford as reporting officer and curator ad litem and to the productions lodged in process by the petitioners and respondent, whether spoken to by witnesses or not.

 

Lastly, your Lordship has the benefit of the advice of the Children's Hearing. There was some debate during the proof regarding the terms of the advice provided by the Children's Hearing. Mr Sharpe highlighted to the court the second inventory of productions for the petitioners, specifically production number 22, namely the decision of the Children's Hearing to give advice to your Lordship. Mr Sharpe, when looking at the decisions and reasons page of the decision (page 3), indicated that within the "Reasons" section, the Children's Hearing provided advice to recommend the application for a "permanence order", without explicitly referring to authority to adopt.

 

The Child and Family Core Assessment which formed number 21 of the same inventory of productions for the petitioners, requested on page 1 that "An advice hearing is requested to give advice regarding the Social Work Department's plan to seek a permanence order with authority to adopt in relation to E". That report was sent to the Scottish Children's Reporter's Administration offices in Dundee in order to request a date for a Hearing. In my submission, the request clearly states the order to be sought.

 

Turning back to production 22, within the "Decisions" section at the very top of the page, it is stated at bullet point 4, that the Hearing is "To provide advice to the Sheriff in respect of an application of a permanence order with authority to adopt". On plain reading, it is clearly noted that the decision of the Children's Hearing was to provide advice to the Sheriff in respect of an application for a permanence order with authority to adopt. At no point in the note does the Children's Hearing indicate their refusal to support the application being presented to court.

 

In this case, I would ask your Lordship to have regard to the conclusion of the curator ad litem that a permanence order with authority to adopt is likely to safeguard and promote the welfare of the child throughout her childhood and that it is better for the child that the order be made than it should not be made.

 

Service of the petition was successfully effected upon the father of the child, CB. CB has not sought to oppose the petition at any stage of the proceedings. CB is subject to a life licence with conditions of no contact attached in relation to E. CB does not have parental rights and responsibilities in relation to E.

 

 

How to approach the making of a permanence order

 

The petitioners crave your Lordship to grant a permanence order with authority to adopt in the terms sought within the Form 11. In terms of section 80, a permanence order consists of the mandatory provision, such ancillary provisions as the court thinks fit, and if the conditions set out in section 83 are met, provision granting authority for the child to be adopted.

 

Due to the legislation being in its infancy, as yet, there is no universal acceptance as to how best to apply the terms of the Adoption and Children (Scotland) Act 2007. The case report from Aberdeenshire Council for a Permanence Order relating to CW dated 6th December 2010 and Sheriff Principal Young's subsequent judgement of 2nd June 2011 is produced for your Lordship's reference. In addition, the case report from East Lothian Council v S 2011 Fam LR 80 and Sheriff Principal Bowan's subsequent judgement of 8th March 2011 is produced for your Lordship's reference. Lastly, Sheriff Pyle's judgement in the case of The City of Edinburgh Council Petitioners, in respect of child L dated 25th July 2011 is produced. I think it is fair for me to summarise that Sheriff Principals Bowan and Young approach consideration of a permanence order with authority to adopt from similar perspectives. Sheriff Pyle differed in his approach.

 

In my submission, the most logical approach in order to determine the question at hand is to follow the guidance provided by Sheriff Principals Young and Bowen; consider first whether a permanence order should be made and regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration. Only if a decision to make a permanence order is taken should the court then move on to consider whether an order granting authority for adoption should also so be made, the appropriate consideration being the welfare of the child throughout her life. In my submission, if authority for adoption is being considered, section 14 of the Act requires to be considered. I note that this approach is at odds with the commentary of Sheriff Pyle in The City of Edinburgh Council Petitioners case.

 

The petitioners crave your Lordship to grant a permanence order with authority to adopt. However, if you are not satisfied on the basis of the evidence produced that authority to adopt should be granted, your Lordship could consider granting a permanence order simpliciter. In my submission this is a competent order to pronounce based upon what is craved in the Form 11 but it is not what the petitioners seek to achieve and it is, therefore, not an order the petitioners move your Lordship to make in the first instance.

 

 

 

 

The making of a permanence order

 

E is not aged over 12 so in this case your Lordship is obliged to take into account the following parts of section 84 of the Adoption and Children (Scotland) Act 2007:

 

a)       whether it is better for the child that you grant the order than not to do so (s84(3));

 

b)       that in considering whether to make a permanence order and, if so, what provision the order should make, the paramount consideration is the need to safeguard and promote the welfare of the child throughout childhood (s84(4));

 

c)       the requirement, taking the child's age and maturity into account, so far as reasonably practicable, to give the child the opportunity to express her views (s84(5)(a));

 

d)       the child's religious persuasion, racial origin and cultural and linguistic background (s84(5)(b)(ii));

 

e)       the likely effect on the child of making the order(s84(5)(b)(iii));

 

f)        be satisfied that either that there is no person who has the right to have the child live with them, or where there is such a person (and in this case the only such person is the respondent) the child's residence with that person is, or is likely to be, seriously detrimental to the welfare of the child (s84(5)(c)(ii)).

 

In the present case, E is aged eight years of age. I request your Lordship has regard to the views of E as described to the court by Barry Fry, psychologist, Antonia Panetta, social worker and contained in the Confidential Report. E does not have a specific religious persuasion and the respondent has not expressed a wish that she be brought up in any faith as agreed by parties in the first joint minute.

 

I'll turn now to the test set out in section 84(5)(c)(ii) that E's residence with the respondent is, or is likely to be, seriously detrimental to the welfare of the child. In my submission, the balance of evidence must lead the court to find that test satisfied. A substantial amount of evidence was led from a number of witnesses about the history of this case and, indeed, a large amount of evidence was agreed between parties within the first joint minute of admissions. In 2005 there was a need for social work intervention and compulsory measures of care when E's father, C B, was in a relationship with the respondent. E remained subject to compulsory measures until 2007 when the respondent agreed to work with the social work department on a voluntary basis. Concerns regarding the care of E by the respondent, her drug misuse and the involvement of CB with the respondent became apparent to the social work department in 2008. After a period of monitoring by the social work department, E was removed by way of a Child Protection Order in April 2009 after the respondent left her alone at night. E has been accommodated as a looked after child, subject to compulsory measures of care, since then. Intervention by outside agencies or care away from the respondent has been a feature of E's life since she was a toddler. Stability and consistency in E's care has not been achieved by the respondent, although the petitioners concede that that some evidence has been led to indicate that, at times, a level of positive parenting has been provided by the respondent to E. During periods of chaotic drug use, the respondent was not able to consistently attend contact periods with E and engage with professionals.

 

As at this date it is not certain that the respondent will continue to progress in terms of her drug addiction and will not return to her formerly chaotic lifestyle. The respondent has not yet stabilised her drug addiction. The evidence of David Gallacher from Tayside Substance Misuse Service was that a methadone prescription of 50 mls per day or below would have an impact upon the respondent and that she would start to show signs of withdrawal. Mr Gallacher indicated that the symptoms of withdrawal could be excessive sweating, muscle pain, gastrointestinal discomfort and that the respondent may present as anxious. Lastly, Mr Gallacher indicated that if the respondent could reduce her prescription down to 30 mls per day, at that point she could formally "detox". The respondent during her evidence indicated that she was, at present, taking 40 mls of methadone per day.

 

The petitioners accept the progress the respondent has made in moving to become drug free and that she now engages with support services. During her evidence, the respondent indicated her acceptance of the effect of her drug abuse on her lifestyle and that E was taken into care as a result. During cross examination, the respondent indicated that this is not the first time that she has sustained progress in relation to withdrawing from drugs and that she has failed to successfully withdraw from drugs in the past. The respondent has also been given the opportunity via rehabilitation to have E continue to reside within her care. Rehabilitation was not successful.

 

When cross examined, the respondent accepted that her drug addiction is long standing in nature, around 18 years, her family are also involved in the drug scene and as a result she does not have their support now. Furthermore, she accepted that the court does not have a crystal ball and does not know that she will be able to adhere to her current level of reduction and stay away from drugs in the future. In my submission, there are too many unknown quantities still in relation to the position of the respondent. The changes that the respondent has made to her lifestyle, unfortunately, do come too late for E. E has moved on. E has been accommodated since April 2009.

 

The respondent admitted that there is a distance between her and E during contact including a lack of physical interaction. Perhaps not surprisingly the respondent did not accept that the best thing for E is to be placed permanently in an adoptive placement now, that she has an overly optimistic view of the relationship that she has with E and that E does not want to live with her.

 

In my submission, the respondent does not understand E's needs now and would not be able to discharge her parental rights and responsibilities in a satisfactory manner. E has reached the stage in her life where she will not allow the respondent to discharge her parental rights and responsibilities in a satisfactory way. E has indicated that she doesn't like to see the respondent, that she doesn't really like contact and that the respondent talks to her like a baby. E has moved beyond the mother-daughter relationship she had with the respondent.

 

Evidence was led from Antonia Panetta that, if the order is granted, the likely effect on E will be that she is placed within an adoptive placement and thereafter adopted. The aim is for E to be provided with the security and love of being part of a family, safety and re-assurance, firm boundaries and routine. Evidence was led from Antonia Panetta regarding what she considers to be E's future needs.

 

It is therefore on that basis, and on the basis of the evidence as a whole, that I submit that it is better for your Lordship to grant the permanence order with authority to adopt than not to in order to fulfil the paramount consideration, the need to safeguard and promote the welfare of the child throughout childhood. The alternative to not granting the order craved is uncertainty for E. In my submission, the respondent is unable satisfactorily to discharge the responsibilities and exercise the rights referred and is likely to continue to be unable to do so.

 

Granting authority for adoption

 

In terms of section 83 if the order is to contain provision for granting authority for the child to be adopted, the court must be satisfied as follows:-

 

a)       that the petitioners have requested authority to adopt (s83(1)(a));

 

b)       that the child has been, or is likely to be, placed for adoption (s83(1)(b));

 

c)       in terms of s83(1)(c), that either each parent or guardian consents to the making of the order (which is not the case) or that their consent should be dispensed with on a ground specified in s83(2). One of the grounds specified in 83(2) is that subsection (3) or (4) applies. Subsection (3) applies where the parent or guardian has certain parental rights and responsibilities (the respondent has these) and is in the court's opinion unable to satisfactorily discharge those responsibilities or exercise those rights, and is likely to continue to be unable to do so;

 

d)       in terms of s83(1)(d), that the court considers 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.

 

 

Why adoption best meets E's needs throughout her life and dispensing with parental consent

 

The petitioners are seeking that the permanence order should contain provision granting authority to adopt. The child has not been placed for adoption but evidence was given by Terry Mullen, Social Work Team Manager, Antonia Panetta, Social Worker, and Gail Aboim, Senior Officer Adoption and Fostering, that it is likely the child could be adopted and, from Ms Mullen, that a prospective adoptive placement has been identified. Evidence from Gail Aboim indicated that at E's age (7 during the proof, now 8) she considered that an adoptive placement could still be secured for E but that there are more difficulties in doing so when children are older. From Ms Aboim's evidence it was clear that at age 8, E is close to the upper age limit for adoption.

 

With regard to dispensing with the consent of the respondent on the basis that she is unable satisfactorily to discharge her responsibilities and exercise her rights and is likely to continue to be unable to do so, I refer your Lordship to my earlier commentary on the child's residence with the respondent being seriously detrimental. In my submission, the commentary given in that section also supports the requirements of section 83(2)(c).

 

Mr Barry Fry, psychologist, gave evidence for the petitioners. He indicated to the court that he felt the respondent had an overly optimistic view of her abilities as a parent. Mr Fry described contact as mixed. On the whole, interaction between E and the respondent was positive but when assessed by him the non verbal behaviours were interesting such as the degree and length of eye contact between the pair and body orientation. Mr Fry indicated that the relationship between E and her mother is a situational one that is tied to contact sessions. E doesn't carry anything away with her from contact sessions. Mr Fry described the relationship between E and the respondent as more akin to that of a child and an aunt.

 

E is now aged 8. Miss Antonia Panetta and Mr Barry Fry indicated to the court that E has moved on from her life with the respondent. Mr Fry indicated that E has a substantial investment in her future life within an adoptive placement. She understands, at her level, what that will mean and has imagined what her life will be like. It may be that E's relationship with Rebecca (the little girl who shared her foster care placement) and her experience of visiting Rebecca with her adoptive family has solidified E's desire for that future. E's reaction to Mr Fry's "feeling thermometers" indicated that E places her relationship with the respondent as a low priority. E seeks to be claimed and integrated into a new family setting.

 

Mr Fry prepared two reports for the Proof at the request of the respondent's agents. Mr Fry added to his reports by stating that E had transferred her primary bond from the respondent to her "foster care mother". Mr Fry then stated that E's first priority is to be adopted and that he deduced that from what E said to him and how she said it. E was expressive, animated and assertive in what she said. Mr Fry indicated that in his opinion E does not feel the same as she did when she was accommodated. E's priorities have changed over the course of the period from April 2009.

 

Mr Fry identified E's primary need as being permanence and stability; that she is currently "betwixt and between." E needs to be accepted and have a family to call her own. E has changed quite significantly and is looking for something different than a return to the care of the respondent. Commenting on long term fostering as an option for E, Mr Fry indicated that E is looking for an adoptive family; adoption in her mind means permanence. In Mr Fry's opinion, a foster care placement is not the same as an adoptive placement. Ms Aboim also indicated that in her opinion adoption would be preferred to long term fostering because adoption can offer lifelong stability. Mr Fry indicated that in his opinion, a permanence order with authority for adoption would meet E's needs.

 

Welfare of the child

 

Section 83 (4) does not apply in this case. A further ground set out in section 83(2) is that where neither subsection neither (3) nor (4) apply, the welfare of the child otherwise requires the consent to be dispensed with. Esto the court is not satisfied in relation to subsection (3), in my submission it is clear from the evidence that E's welfare requires the respondent's consent to be dispensed with.

 

In my submission, it would be better for E if the court were to grant authority for her to be adopted than not.

 

Section 14

 

Thereafter, as highlighted at the start of the submission, I think it is correct that your Lordship considers the terms of section 14 as follows:-

 

(a)     That you have regard to all the circumstances of the case (s14(2));

 

(b)     That the paramount consideration is the need to safeguard and promote the welfare of the child throughout her life (s14(3));

 

(c)     That, so far as reasonably practical, you have regard to (a) the value of a stable family unit in the child's development, (b) the child's ascertainable views, (c) the child's religious persuasion, racial origin and cultural and linguistic background, and (d) the likely effect on the child, throughout her life, of the making of an adoption order (s14(4))).

 

The terms of section 14 are applicable both to the court and to an adoption agency. In my submission, it is the duty of the court to freshly consider the circumstances of the case, not simply to review the adoption agency's decision making process.

 

The Adoption Agency's decision making

 

The Adoption Agencies (Scotland) Regulations 2009/154 is the relevant Scottish Statutory Instrument when considering what has been referred to as the Adoption and Permanence panel in this case. A copy of the Regulations is lodged as part of the petitioner's Inventory of Authorities.

 

In terms of regulation 3 "Appointment and composition of adoption panels" it is provided that:-

 

1)       a local authority must appoint a panel to be known as the "adoption panel" for the purpose of carrying out functions conferred on it by regulation 6.

2)       The adoption panel must consist of at least 6 members.

3)       The persons appointed to an adoption panel shall include (a) a medical adviser; and (b) a legal adviser.

 

The petitioners have appointed a panel for the purpose of carrying out functions conferred on it by regulation 6. Evidence was given by Gail Aboim that there is a pool of at least 6 members. At the April and at the July panels, a medical and a legal adviser were present as noted in the minutes lodged as productions.

 

In terms of regulation 4 "Meetings of the adoption panel and joint adoption panel" it is provided that:-

 

1)       no business shall be conducted by an adoption panel unless 3 of its members meet as the panel.

2)       a legal adviser is present at the meeting of the panel and gives advice or legal advice has been provided to the panel by such an adviser.

3)       a written record of its proceedings and the reasons for its recommendations is made

4)       "members" (for quorum purposes only) does not include any legal adviser or medical adviser.

 

In Dundee, it is practice that the medical adviser votes at panel. At the panel on 15th April 2010, there were four independent panel members, Steve Clark, Anne Byrne, Anne Partington and Dorothy Eggleton, who voted. In addition to them, Dr Susan Dewar, the medical adviser voted. The legal adviser was present, but did not vote. The medical adviser's vote deducted, the attendance at panel satisfied the requirement that no business shall be conducted by an adoption panel unless 3 of its members meet as the panel.

 

At the panel on 8th July 2010, there were five independent panel members, Steve Clark, Anne Partington, Diana Part and Dorothy Eggleton and Anne Byrne, who voted. In addition to them, Dr Susan Dewar, the medical adviser voted. The legal adviser was present, but did not vote. Again, the medical adviser's vote deducted, the attendance at panel satisfied the requirement that no business shall be conducted by an adoption panel unless 3 of its members meet as the panel.

 

On both occasions, an approved minute has been produced recording the proceedings and the reason for the panel recommendations.

 

Regulation 6 "Functions of the adoption panel", the terms of which are lengthy and I do not propose to narrate, were in my submission followed by the panel during the course of their deliberations regarding E's case.

 

During the course of the proof, the respondent's agent highlighted to the court that the respondent was not invited to the second Adoption and Permanence Panel on 15th July 2010. She was, of course, present at the first panel on 8th April 2010. I would draw your Lordship's attention to the case of Dundee City Council for an order in relation to the child CM, Inner House 23/4/2004 in which the Inner House considered the question of whether the exclusion of the birth parent from the meeting of the adoption and permanence panel considering the permanence plan for their child contravened articles 6 and 8 of the European Convention on Human Rights. The sheriff had held that this did contravene the parents' rights and had ex proprio motu brought the proof to a halt.

 

The case concerns the local authority's decision making process in bringing a freeing for adoption order and it is submitted that at the very least the case shows the Inner House's approach to the resolution of the issues raised in this case.

 

Lady Cosgrove delivered the Court's judgement. At paragraph 5 of her judgement she sets out the Inner House's general approach.

 

"As we have stated above, having heard parties' submissions and having concluded that the respondents' Convention rights had been breached, the sheriff proceeded to dismiss the petition. In our view, the sheriff erred in his approach. He ought to have considered the question of what alternative remedies might have been available. It was not open to him to take the view that, because he considered there had been a procedural irregularity giving rise to an infringement of rights, he would not consider the merits of the section 18 application (cf Martin v N [2003] Fam L.R 126). Before concluding that the inevitable consequence of his decision was that the petition should be dismissed he ought to have considered the possibility of making some allowance for the earlier irregularity in the decision-making process. The important point in such a situation is that any remedy to be granted must "avoid undermining the primary purpose of the proceedings themselves." (C v Miller 2003 SLT 1379 at p1400). The unfortunate effect of the sheriff's decision was that the effort and expense of the nine days of proof were rendered nugatory. Further, a period of more than a year has now passed during which CM has remained in limbo and no progress has been made towards the ultimate determination of the crucial issue of whether or not he is to be freed for adoption."

 

At paragraph 22 Lady Cosgrove says:

 

"We do not consider that the parents' absence from the panel meetings infringed their right to a fair hearing. The panel's decision were, in our view, no more than preliminary decisions which have had no effect on the respondents' rights in respect of the child".

 

This is admittedly taken from Lady Cosgrove's consideration of the challenge under article 6 of the European Convention rather than the challenge under article 8, but it is submitted that it shows the Inner House's underlying attitude towards challenges against the local authority decisions to raise proceedings for freeing for adoption orders. If these are no more than preliminary decisions having no effect on the parent's rights in relation to the child under article 6, it surely lays a heavy onus on the respondent to show how these preliminary decisions irrevocably affect the respondent's rights under article 8 and why any deficiencies in the way the local authority approached these preliminary decisions cannot be cured by the sheriff applying the correct tests.

 

 

Ancillary orders

 

With regard to ancillary orders, the court must:-

a) vest in the petitioners the mandatory responsibility of "guidance" (s80(2)(a) and s81(1)(a) and 1995 Act, s1(1)(b)(ii), but only in so far as it is practicable and in the interests of the child (1995 Act, s1(1)), and the mandatory right of "residence" (s80(2)(a) and s81(1)(b) and 1995 Act, s2(1)(a));

 

b)       decide whether or not the mother should have the "contact" responsibility (s80(2)(b) and 82 (1)(b)(i) and 1995 Act, s1(1)(c)), but only in so far as practicable and in the interests of the child (1995 Act, s1(1)), and the "contact" right (s80(2)(b) and 82(1)(b)(ii) and 1995 Act, s2(1)(c));

 

c)       secure that each responsibility and right vests in a person (s80(3));

 

d)       extinguish responsibilities and rights (s82(1)(c) and (d));

 

e)       determine any other question in connection with any other aspect of the welfare of the child (s82(1)(f)(ii)).

 

The ancillary orders referred to in parts a), c) and d) have been requested in the terms stated within the Form 11 and in my submission, to grant a) is practicable and in the interests of the child on the basis of the evidence led. In my submission there are no other questions in connection with the child's welfare that require to be determined.

 

Contact

 

The petitioners crave that there is no provision for ongoing direct contact between the child and the respondent, although indirect contact by way of letterbox would always be available to the respondent should she choose to utilise it. It is the position of the petitioners that ongoing contact with the respondent is not in the child's best interests.

 

A considerable amount of evidence was led regarding contact sessions between E and the respondent from a number of different witnesses. In addition to oral evidence, an affidavit was provided by Karen Wilson and the terms of the joint minute reflects agreement in terms of contact. Antonia Panetta's observation sheets and notes from her direct work with E are lodged as productions. Miss Panetta indicated her view to the court that contact did not provide any benefit to E. Miss Panetta indicated that contact could present as being positive but when assessed in more detail there was little physical contact between E and the respondent. E, at times, chose not to extend conversations with the respondent and separated from the respondent easily. Miss Panetta's view is that E will engage as well with third parties, such as herself or Karen Wilson, during contact periods as she does with the respondent. There is a lack of an emotional bond and a distance between E and the respondent.

 

I have already referred to Mr Fry's evidence regarding contact between E and the respondent. Mr Fry in his second report noted an imbalance in the emotional exchange between the respondent and E. The strength of the emotional bond was different, depending on whom he was observing. The respondent expressed a strongly affectionate regard for her daughter whilst E enjoyed her involvement with the respondent she expressed an enjoyment that did not seem to incorporate a strong emotional bond. Mr Fry indicated that if a permanence order with authority to adopt was granted with an attached condition for contact he did not feel that E would be ready for direct contact at this stage. He indicated that he suspected that E would view it as a continuation of the contact that she has a present and it could place a mild impediment to E's adjustment to a new family. She might resent contact and resent the respondent as posing a distraction from her new setting. Secondly, Mr Fry indicated that E has some concern that the respondent might continue to view herself as E's "real" mother and her adoptive parents. At paragraph 128 of Mr Fry's second report; he narrates what, in his opinion, the respondent would need to do in the event that ongoing contact is ordered. Mr Fry later in his report indicated that if contact is to continue that the current level would be unattainable and that for most children in E's situation contacts ranged from one to four contacts annually. This assertion was echoed by Gail Aboim.

 

Mr Fry communicated that if ongoing direct contact is to be granted the respondent would need to be able to accept the adoptive placement and communicate that acceptance to E. The respondent would need to not be the most important person in E's life. Any contact, Mr Fry also indicated, would need to happen with the agreement of E. If E did not agree, then contact should not go ahead. Mr Fry did express in his evidence that E is old enough and mature enough to express a view. Gail Aboim indicated that the respondent would need to give E permission to move on and that there needs to be a strong connection between the child and parent.

 

Sheriff Pyle's judgement in The City of Edinburgh Council Petitioners, in respect of child L case provides analysis regarding continuing contact. Both Gail Aboim and Barry Fry disagreed with comment from Professor Tresiliotis within Sheriff Pyle's judgement that post adoption direct contact is "the norm rather than the exception" in cases such as these in Scotland.

 

Final submission

I would submit, my Lord, that all the requirements for the granting of a permanence order with authority to adopt have been met in this case. The paramount consideration is the welfare of the child and it is better for the order to be granted than not to be. In making the order, I respectfully request that you grant a permanence order with mandatory provisions, ancillary provisions, no direct contact and a provision granting authority for the child to be adopted.

 

In granting a permanence order with authority to adopt, I would also ask your Lordship to determine that the child should cease to be subject to her supervision requirement.

 

 

Case No: PO16/10

 

PETITIONER'S SUPPLEMENTARY WRITTEN SUBMISSIONS

 

 

 

After consideration of the respondent's submissions lodged with Dundee Sheriff Court on Friday 2nd December 2011, I ask your Lordship to have regard to the following:-

 

E's views

The respondent's submissions ask your Lordship to attach no weight to the views of Barry Fry as he had not read the papers sent to him.

 

Mr Fry is an expert witness who was instructed by the respondent's agent. Mr Fry prepared two reports for the court. The second report, provided slightly in advance of Mr Fry attending in order to give evidence, was specifically instructed by the respondent's agent for Mr Fry to comment on, amongst other things, the terms of Julie Philp's contact assessment, the report prepared by Val Selkirk and Antonia Panetta's report. The evidence Mr Fry gave in court was based upon his consideration of all the paperwork provided to him by the respondent's agent. To say that Mr Fry followed the Council line without giving the case any proper consideration is unfounded.

 

The respondent's submission makes reference to the fact that, so far, the Children's Hearing has decided not to terminate contact on two occasions. To my recollection there was no evidence led regarding the second decision made on 11th October 2011. The full text of "Reasons for Decisions" of the Children's Hearing of 11th October 2011 are:-

 

"E was excused from attending because she may have found it upsetting but she gave her views in her "All about me form".

-          The decision of the hearing was to continue the supervision requirement without variation

-          E's mother has a long history of drug misuse and neglect of E and E although very happy in her placement is looking forward to getting a new family. This process is getting near to completion.

-          However the contact with her mother was continued and will stop in keeping with E's wishes when she moves to her new family."

 

With the Court's leave I propose to lodge the Decision as a further production, which I admit, is necessary because the respondent has referred to it in his submission. I am not aware of evidence being led regarding the second safeguarder's report. However, the first independent safeguarder, Duncan Mackinnon, solicitor, narrated in his evidence that he had never met E or viewed contact between E and the respondent. In addition, Mr McKinnon indicated to the court that he considered himself unable to comment on attachment theory as it was not an area that he was sufficiently qualified to comment on. Mr Fry met with E alone to discuss the case and viewed two contacts between E and the respondent.

 

Test of "seriously detrimental"

Within the respondent's submissions at page 6, paragraph 2, it is stated that "The court knows that D G is clean of drugs and has been for some time. David Gallagher gave evidence of her prognosis which is very good. By early next year she should be completely clean of drugs."

 

It is inaccurate to say that the respondent is clean of drugs. The respondent takes a daily, reducing, prescription of methadone. The evidence concluded that she no longer abuses illicit drugs. The evidence to say that D G is clean of drugs does not exist.

 

The respondent's submissions rely heavily on historic reports and evidence, for example, during the summer of 2010. Your Lordship has to make a decision based upon current circumstances.

 

Dismissal of the Application due to breach of rules of natural justice

The respondent's submissions urge your Lordship to dismiss the Application due to a breach of the rules of natural justice.

 

The Adoption and Permanence Panel and the Agency Decision Maker do not make a recommendation/decision that impacts upon the rights of the respondent. Your Lordship is the only person and the court is the only forum which can make a decision that can directly affect the respondent's legal position. Therefore, in my submission, there can be no breach of the rules of natural justice.

 

As Gail Aboim correctly stated, there is no legal obligation incumbent upon the petitioners to invite the respondent to the Adoption and Permanence Panel. The respondent attended the first Adoption and Permanence Panel and gave her views regarding the recommendation for adoption. She also mentioned her view regarding long term fostering as noted in the minute. When invited, the parent of a child is given an opportunity to give their view and takes no further part in the consideration of the future needs of that child. The parent is not present when the social worker presents to the panel and the parent is not present during consideration by the panel of the child's circumstances.

 

Gail Aboim within her evidence indicated that, as standard practice, she meets with the Agency Decision Maker on day 13 of the 14 day timescale to be met in terms of the Regulations. She indicated that she is not a decision maker and takes no part in the decision that the Agency Decision Maker takes. She indicated that in her opinion she did not compromise the independence of the process and was "meant to answer questions, not offer a view." No contrary evidence was given.

 

No member of the adoption panel which made the recommendation took part in the decision by the Agency Decision Maker.

 

Esto, your Lordship considers that there may have been a breach of the regulations in this regard, I maintain my position stated earlier regarding the application of the rules of natural justice; namely that they do not apply on the basis that the recommendations/decisions made do not affect the legal rights of the respondent.

 

Lastly, your Lordship is bound by the overriding principle of the need to regard the safeguard and promote the welfare of the child throughout childhood as the paramount consideration. Dismissing the application on the basis of a procedural irregularity is not consistent with the paramount consideration and, in my submission; this is borne out by the commentary within the case of Dundee City Council for an order in relation to the child CM, Inner House

23/4/2004 reported under the name Dundee City Council v M 2004 SLT 640.

 

Tina Magson Solicitor

 

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RESPONDENT'S SUBMISSIONS

 

General Submission

 

 

In the first instance the court is asked to dismiss the application, failing which to grant a Permanence Order simpliciter, with an ancillary provision for contact at the existing level namely once a fortnight for one hour. The court should not attach a provision granting authority to adopt as requested by the petitioner.

 

The Law

 

The relevant statutory provisions are set out at the end of these submissions.

 

 

CORRECT APPROACH IN LAW re GRANTING A PERMANENCE ORDER

 

The court must first of all consider whether or not to grant a Permanence Order (PO) in terms of section 80(1) of the Adoption and Children (Scotland) Act 2007 (the 2007 Act). Section 14 of the Act is not engaged at this stage of the court's consideration. If the court is satisfied such an order should be made, the court then has to consider what, if any ancillary provisions should be attached in terms of section 80(2)(b) of the 2007 Act. After the court has decided what if any ancillary provisions should be attached to the PO, the court then goes on to consider whether or not to make an order granting authority for adoption in terms of section 80(2)(c) and section 83 of the Act. At this point, it is submitted, section 14 of the Act is engaged as the court is being asked to make a decision 'relating to the adoption of a child' (see Sheriff Mackie's decision (copy attached) in the case of City of Edinburgh Council in respect of the child CM, at http://www.scotcourts.gov.uk/opinions/PO16_09A.html see paragraphs 4, 13, 14, 15, 19, 25, 27, 28 & 29) This view was followed by Lord Pentland in the case of Inverclyde Council against MT and MS reported on 8^th February 2011,see paragraph 128, at http://www.scotcourts.gov.uk/opinions/2011CSOH27.html (copy attached). Also see paragraph 6-07 Adoption of Children in Scotland, 4^th ed., McNeill and Jack.

 

 

 

SHOULD A PERMANENCE ORDER BE GRANTED? Section 84 Conditions and Considerations

 

The statutory conditions and considerations applicable are to be found in section 84 of the 2007 Act. In terms of section 84(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."

 

Further in terms of section 84 (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."

Both of the above considerations are the well recognized over arching principles of the minimum intervention principle and the welfare principle. Both of these issues will be a matter for the court's determination having regard to all the circumstance of the case.

Views of the child: Section 84(5)(a) and (b) of 2007 Act

Section 84(5)(a) and (b) deal with having regard to the child's view subject to the child's age and maturity. The petitioner's ask your Lordship to attach significant weight to the views of the child in this case. In particular Barry Fry the Psychologist went so far as to say in cross-examination it was the principal reason he was suggesting no direct post adoption contact, ie:on the view of a 7 year old child! Initially both Julie Philp the child's first social worker and her line manager Terry Mullen also took this view. They later changed their position in the light of Julie Philp's further assessment of contact (production 3/24 dated 24^th June 2010).

I'm asking your Lordship to attach no weight to Barry Fry's view. It's simply absurd for an expert witness to base his view on whether or not face-to-face contact should continue on the views of a 7 year old child. Especially one who was told at age 6 she was getting a new family! He conceded not knowing the law because he thought at the time he wrote his first report that this was the final adoption hearing!

He quite clearly had not read the papers sent to him, for example by his conceding he had not even read Julie Philp's report (3/24) when he prepared his first report for the court. This was a shocking omission and meant he completely misunderstood the position of the local authority as at June 2010 in terms of Julie Philp's recommendation to the July Adoption Panel. He equally clearly had not read the Form E Part 1 at page 8 where it states:

"E is too young to understand or express a clear view in relation to the current circumstances or what she feels future care plans for her should consist of."

Despite this being the view of the social workers in April 2010 when E was aged 6 years old, they nevertheless told her she was getting a 'new family' in the August of the same year when she was still aged 6 years. See petitioner's 1^st Inventory of Productions number 1/1: Detailed record entry for 3^rd August 2010 written by Karen Wilson family Support worker:

" while getting my bag E said to DG that Jackie says I am never coming back to you (my emphasis). This was witnessed and heard by Arlene."

 

E had not even been told by Julie Philp at this stage about future plans. Antonia Panetta carried on with trying to say E had a view on the future and that she did not want to see her mother. In my submission it was quite clear from Ms Pannetta's contacts with E, I think there were four of them and possibly 3 on her own, with her, she asked very leading questions and it was an exercise in a self-fulfilling prophecy. Barry Fry simply followed the council line on this issue without giving it any proper consideration.

The first check and balance on this line was the Children's Hearings which have consistently refused to terminate contact because of a complete lack of evidence to support such a decision. This was further supported by an independent safeguarder report by Mr Duncan Mackinnon, solicitor, who was particularly critical of the way in which this issue was dealt with by the social work department. At today's date the children's hearing has refused to terminate contact.

 

It is my submission that the court should attach absolutely no weight to the alleged views of E in the light of all of the above circumstances.

The Seriously Detrimental Test Section 84(5)(c)(ii) 2007 Act

The court must make a finding in fact on this issue before a PO can be made (see East Lothian Council v LSK dated 8^th March 2011, and Sheriff Principal Edward Bowen QC http://www.scotcourts.gov.uk/opinions/PO1_10.html at paragraph 9).

Section 84(5) is in the following terms:

 

Before making a permanence order, the court must-

 

(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.

This section is in mandatory terms and in my submission, based on all the evidence led, it cannot be said that to return E to her mother would be 'seriously detrimental' to her welfare. This test applies notwithstanding the fact that even if the application is refused this court does not have the power to return E home which is a matter for the Children's Hearing.

The court requires to be satisfied that if E was returned home it would be seriously detrimental (my emphasis). I believe this is a very important qualification. On no reasonable, objective view of the evidence can it be said it would be seriously detrimental to return E home. I would ask the court to remember the evidence of Jackie Ianetta the current carer: "If mum is clean of drugs, then the best place for E is with her mother." The court knows that DG is clean of drugs and has been for some time. Mr. Gallagher gave evidence of her prognosis which is very good. By early next year she should be completely clean of drugs. She lives in a 2 bedroom flat that has recently been decorated. As DG said in evidence "I brought E up for five and a half years." There was plenty of evidence of good quality contacts between E and her mother and on occasions, of E doing cartwheels at the end of contact. There has also been plenty of evidence of E having a 'clear bond and attachment' with her mother. As Julie Philp noted in her report, at page 1 (3/21), to the July 2010 Adoption Panel:

" E and D enjoy contact and the time they spend together. E clearly has experience of a good early attachment to her mother. She is very sociable and well mannered little girl who can articulate her needs very well. D is also much attuned to E's needs. D has demonstrated the ability to put E's needs first throughout contact. E is continually her main focus."

 

At page 3 of the report she observed:

" Furthermore, there is clear evidence that E and her mother have a good bond and attachment. Throughout contact there is a lot of laughter, hugs and affection from both E and D."

 

For what it's worth, Julie Philp pointed out on page 3 that E herself said 'and clearly stated':

" she still wants to see her mum and stated she doesn't want to be adopted if she can't see her mum."

Julie Philp recommended on page 6 of her report "that a plan for long term fostering with direct contact with D s most suitable for E's needs." Since that recommendation in June 2010, DG has gone from strength to strength in her recovery from abusing drugs. The court knows from the drugs analysis report lodged by the respondents (Respondent's 2^nd Inventory of Productions number 8, at page 4) mum has been completely clear of all drugs since start of November 2010 and even in October 2010 she only had a small amount of morphine in October 2010. She is now very stable in herself and she leads a very stable life. Having regard to the evidence of Dianne Simeon who is employed by Tayside Council on Alcohol Service and her very positive comments about mum's level of engagement and substantial progress, and the evidence of Brenda Green a social worker with the Criminal Justice Team who gave evidence of Ms G having her Probation Order terminated earlier than expected. Ms Green also gave significant evidence that Antonia Panetta would only have been given a positive message about mum's progress in overcoming her drugs misuse which completely contradicts Ms Panetta's evidence to the Children's Hearings throughout this year!

 

In these circumstances, it is my submission, it simply cannot be said that to return E to her mother would be seriously detrimental to her welfare. If this application is refused the Children's Hearing could consider a phased return at some point early next year, subject to mum remaining clean of drugs and with support in place. Accordingly the application should be dismissed as the petitioner has failed to satisfy this test, which is a statutory pre-requisite to the granting of a PO.

 

 

 

 

Dismissal of Application due to breach of Rules of Natural Justice

 

At pages 9-12 of her submissions, the petitioner argues under the heading 'The Adoption Agency's Decision making' and under reference to Dundee City Council for an order in relation to CM, Inner House 23/4/2004, that preliminary decisions which have no effect on the parents rights to be successfully challenged 'there is a heavy onus on the respondent' to show how these preliminary decisions irrevocably affect the respondent's rights under article 8 etc. This is all in relation to Ms G not being present at the Adoption Panel meeting in July 2010.

 

My first response to this submission is that the only onus of proof rests on the petitioner. Secondly, the submission is ill conceived. I did not suggest either during the proof or now, that there was a breach of Articles 6 or 8 of the European Convention of Human Rights because my client was not invited to the July Adoption Panel Meeting. I did suggest it fell far below best professional practice and that it was unfair. I also suggested it was quite deliberate in circumstances where she had been invited to the April Adoption Panel and there was no explanation forthcoming from any of the social workers as to why she was not invited to the July Adoption Panel. None of the social workers, and I asked all of them (Julie Philp, Terry Mullen and Gail Aboim) took responsibility for not inviting her. Gail Aboim of course the Panel's Professional Adviser (whatever that is, it has no statutory meaning), said in evidence had she been asked she would have advised the Panel, mum had no locus and there was no legal obligation on the council to invite parents to such meetings. At that point she quite deliberately in my view, failed to mention a leaflet written by her, (respondent's 3^rd Inventory of Productions number 1) entitled 'Attending the Adoption and Permanence Panel'. This leaflet makes is absolutely plain Dundee City Council expect parents as a matter of practice to be invited to Adoption Panels. Gail Aboim was being deliberately evasive on this whole issue. She knew fine well this was the Council's practice as she herself wrote the leaflet which has her own e-mail address printed on it. Her attempt to suggest there was no legal obligation on her to invite DG was just one of many examples of her being completely disingenuous. It was particularly galling to listen to her saying mum had no locus when she had to concede under cross examination, she herself had no statutory locus to be at that Panel Meeting!

 

More important than the issue of mum not being invited to the Adoption Panel meeting in July 2010 was the clear breach of the Adoption Agencies (Scotland) Regulations 2009/154 by Gail Aboim when she had her meeting with the Agency Decision Maker (ADM) to 'clarify issues' that arose at the Adoption Panel Meeting in July. Regulation 13(2) is perfectly clear:

" No member of the adoption panel which made the recommendation is to take part in the decision."

Gail Aboim said she was a member of the adoption panel albeit as a non voting member. The fact is she regarded herself as a member of that panel. As the professional adviser, she more than anyone should have appreciated she was not allowed to go and speak to the ADM. This did not have the appearance of fairness. The separation of the function of the ADM from the adoption panel is supposed to be an independent check and balance on the adoption panel recommendation. Gail Aboim's discussion with the ADM is a clear breach of the rules of natural justice and for that reason this application should be dismissed. It is for this reason this case can be distinguished from the facts of Dundee City Council in relation to the child CM referred to by the petitioner in her submissions notwithstanding the court's view in that case at paragraph 19 even the ADM's decision 'is not a determination of the parents' civil rights within the meaning of Article 6. This is a separate legal issue.

 

I should say I was extremely concerned to hear Gail aboim tell his Lordship in examination in chief that the reason mum was not invited to the July Adoption Panel was because the April Panel had already made a 'decision' and the July Panel was not a rehearing. It's difficult not to conclude she was deliberately misleading the court on this point. As the professional Adviser she knew fine Adoption Panels do not make decisions. They make recommendations. Accordingly, the July Panel was effectively a rehearing, the only difference being the second report prepared by Julie Philp (3/24) which was a critical difference from the April Panel. It was obvious the July Panel was going to make a recommendation in terms of the Adoption Regulations which it would have sought approval of by the Agency Decision Maker, and which is exactly what happened. In these circumstances it's very difficult to understand the basis on which she answered your lordship's question as to why the respondent was not invited to the July Adoption Panel.

I'm bound to say, that in general terms, Ms Aboim was neither credible nor reliable. Her whole disposition and demeanour in the witness box, especially during cross-examination was one of arrogance and general annoyance at having her views challenged. She was not prepared to make concessions even when it was clear her practice was inconsistent with the Adoption Regulations. Yet it was entirely due to her very limited involvement in this case at the July Panel that the recommendation had been for adoption. That in itself should give the court serious cause for concern at the way this case has been managed by people such as Ms Aboim.

Ancillary Provisions: Section 82 of the 2007 Act

If the court is satisfied a PO should be granted despite my submissions above, then the court must go on to consider whether or not to attach ancillary provisions as set out in section 82 of the Act.

The only issue here between parties is whether or not there should be an ancillary provision for ongoing face-to-face contact between mum and E. I agree with the petitioner that the view expressed by Professor Triseliotis in sheriff Pyle's decision in the City of Edinburgh Council Petitioners in respect of child L (http://www.scotcourts.gov.uk/opinions/PO1_10_.html) that "as adoption policy has evolved over the years a presumption now exists that post adoption face-to-face contact is the preferred option unless it is shown to be detrimental to the child." (page 42 of 50 of web copy of case) is inaccurate. It is clearly a matter for the court to determine in each case based on its own circumstances having regard to the welfare of the child whether or not there should be ongoing direct face-to-face contact.

 

In the instant case, it is my submission that if a PO is granted then the status quo in respect of face-to-face contact should be continued as this is clearly in the welfare of E. This submission is predicated on the assumption the court will only grant a PO simpliciter and not a POA. I shall say more about the granting or otherwise of a POA later in my submissions.

Why should the court attach an ancillary provision of direct face-to-face contact in this case?

There are a number of very good reasons for attaching such an ancillary provision under section 82(1)(e) of the Act. Firstly, because that was the view of E's own social worker to the July 2010 Adoption Panel and supported by her line manager Terry Mullen. I would ask the court to look very carefully at all the comments made about the quality of contact in Julie Philp's report dated 24^th June 2010 (3/24). To her enormous credit Julie Philp did what many social workers claim they would do but very, very rarely do in fact, and that was to change her own recommendation contained in the Form E, Part 1, page 2, section 4 (3/19), from adoption and no direct contact and limited indirect contact to "a plan of long term fostering with direct contact with Dis most suitable to E's needs."(3/24 at page 6). It is difficult to convey the magnitude of this change of recommendation by Julie Philp. She knew the mother well and of course knew E very well. Of all the social workers who gave evidence Julie Philp knew the child and her mother far better than anyone else. Why did she write another contact assessment report that led her to change her mind about the future care of E? We have to look at the Minute of the Adoption panel of 15^th April 2010 (3/22). For example, on page 19 it's noted in the penultimate paragraph:

" E is eager to visit for contact and she loves to see her mum."

Bearing in mind E was accommodated under the Child Protection Order since 22^nd April 2009, a year later she is still very keen to see her mother and maintain that kind of contact. This is not surprising. E was five and a half years old when she was taken into care. Val Selkirk another social worker was able to say in her report of 10^th September 2009 (3/14 at page 3):

"E has demonstrated that she has a strong and abiding bond with her mother, and therefore any permanence plans require to take account of her needs in respect of this."

It was no doubt in the light of this and what Julie Philp was saying about the quality of contact that Mr Smillie, the Council legal Adviser gave the Adoption Panel in April 2010 (3/22 at page 22) the following legal advice:

" Noting that todays discussion of contact raised more questions and asked what the implications of contact are on E. Mr Smillie feels that a contact assessment should look more closely at the benefits or not with the view to determine which route (my emphasis)) should be taken. Long term fostering may consider parental contact if contact is deemed to be in E's best interests. If contact is seen to be detrimental to E then adoption could be pursued."

 

The panel then concluded: "Contact needs to be further assessed to determine if it is to continue and therefore which legal route (my emphasis) to secure permanence is the most appropriate."

The Adoption Panel on 8^th July 2010 should clearly have followed the recommendation made by Julie Philp in her report to them of 24^th June 2010 which was long term fostering with contact. Why did they not do that? In my submission it was down entirely to the wholly disproportionate influence of Gail Aboim the social worker with the title of Senior Officer, Adoption and Fostering. We know from the evidence of the Chairman of the July Adoption Panel Mr Steve Clark, that her contribution had 'considerable' influence on them as a Panel. She sought in her own evidence to significantly play down her role and again in my submission, she was being deliberately disingenuous with the court. She knew perfectly well given her official role, that it would be a very brave Adoption Panel that did not heed her advice. And her advice was very clear, if mum could not give E permission to move on "and be able to tell E it is okay to call someone else mum and dad and that she has a new family." (3/25 at page 17) then "she does not think ongoing direct contact is indicated."(page 17).

It was this advice by Gail Aboim that led the Adoption Panel to revert to the original Form E recommendation of adoption as the route to permanency with no direct contact and limited indirect contact. Their recommendation was for an application for a POA and that recommendation was subsequently endorsed by the ADM.

 

In my submission this was an absolute travesty of justice. Gail Aboim had not even attended the first Adoption Panel in April 2010. She knew less than anyone else at that meeting in July about E and her mother. The Panel's recommendation for adoption completely flew in the face of Julie Philp's recommendation, based on a report which they had tasked her to do in the first place!

 

Gail Aboim was wrong to suggest to the July Panel that mum was unable to give E permission to move. It's clear that whilst mum wanted E to return home she nevertheless accepted that if the plan should be "long term fostering she would prefer that E remain where she is as she is settled." (Julie Philp's report 3/24, at page 5, last paragraph.).

 

Following the July Adoption Panel meeting Julie Philp was moved off the case and Antonia Panetta, a very young and inexperienced social worker took over. It's my submission there was now a mindset within the social work department that the decision of the ADM in July had to be progressed however inconsistent it was with Julie Philp's recommendation to the July Panel. There was no review or questioning by Antonia Panetta of the Adoption Panel's recommendation in July. She saw her job as needing to progress the adoption plan and that meant no direct face-to-face contact. Within 4 months of taking over this case she wrote a report in November 2010, recommending to the next Children's Hearing that contact be terminated! (3/30, at page 4).

 

There was no foundation in the evidence even of the contacts she witnessed which numbered 4, (1/68, 1/69, 1/74 and 1/76), to support such a conclusion. On the contrary they demonstrated not surprisingly what had been seen by Val Selkirk in August 2009 and Julie Philp in June 2010 that E, on the whole clearly enjoyed seeing her mother. Antonia Panetta's conclusion completely misrepresented the quality of contact that was taking place between E and her mother. One example was her description of mum calling E "a bloody little nuisance sometimes" (3/30 page 1) without putting it in context which gave a completely different impression of that incident which involved a pedal car (see contact of 5.10.10, 1/74) Her individual meetings with E largely consisted of her asking E extremely leading questions contrary to her own child protection training. This was a hatchet job from start to finish. Fortunately the Children's Hearing in January 2011 took a similar view and refused to terminate the contact and they appointed Mr Mackinnon as an independent safeguarder. On the 14^th February 2011 the Children's Hearing having had the benefit of Mr Mackinnon's Report (Respondent 1/4) concluded the social work view was not independent and not sufficiently evidenced (2/24 at page 2).

 

Throughout the whole of this year Ms Panetta has continually tried to have contact terminated at different Children's Hearings. A second safeguarder was appointed Me William Warden who, like Mr Mackinnon was not prepared to support the recommendation to terminate contact and so it continues today at once a fortnight for an hour.

If further evidence was needed of a closed mind and a mindset that ignores the evidence one has only to look at the conclusion of Antonia Panetta in her report to a Children's hearing dated 15/6/11 (5/36), at page 9:

"Assessment of her mother Dhas indicated that she has been unable to address her drug misuse and make changes in her lifestyle which would enable her to safely care for E."

This was a shocking misrepresentation of the facts. Antonia Panetta could only have known from any telephone conversation she had with Brenda Green her colleague in Criminal Justice that DG was making very real progress with her lifestyle (early discharge from her probation order) and was overcoming her drug addiction. Brenda Green gave evidence she did speak to Antonia Panetta on the telephone, and whatever she said about DG it would only have been positive. Likewise, if Antonia Panetta had bothered to speak to Diane Simeon from (Turning the Corner on Alcoho,l TCA) she would have been given a very positive message about the efforts being made by DG and the fact she was being used a volunteer in the organization to help others overcome their addictions. None of this was communicated to the Children's Hearing. Antonia Panetta continues to present an unremittingly negative view of DG contrary to the evidence of substantial progress having been made by her. Ms Panetta is resorting to increasingly desperate measures by now suggesting contact is detrimental to E's welfare. This is complete nonsense as is evident from the contact records.

 

I urge your Lordship to refuse the petitioner's crave to have an ancillary provision of no direct contact. This is not in E's best interests. The best evidence of the quality of contact between E and her mother came from Julie Philp and Karen Wilson's contact records. The worst evidence came from Antonia Panetta and Barry Fry. Barry Fry did not read the social work files sent to him properly (having not even seen Julie Philp's report of June 2010 for his first report!), not understanding the law, and not even having a complete contact session because he arrived late! Further, as he said in evidence his principal reason for suggesting termination of direct contact was because of what he perceived to be E's views aged 7! In my submission, if a PO simpliciter is granted then there should be an ancillary provision of direct face-to-face contact continuing as it does at the moment of once every 2 weeks for 1 hour. This is in E's best interests.

Should the court make a provision granting authority for the child to be adopted?

Section 80(1), 83 and 14 of the 2007 Act

The conditions referred to in section 80(2) are as follows:

(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.

 

 

Subsections 83(1)(a) and (b) are met in the application and in the evidence. Section 83(1)(d) is in dispute as are 83(3)(b)(c) and 83(2)(d) the welfare ground.

 

In my submission the court should not grant authority to adopt.

My general submission is that the Adoption Panel of July 2010 should never have recommended adoption given the evidence before it in the report by Julie Philp. They were disproportionately influenced by Gail Aboim, and they failed to heed the clear and proper legal advice given at the April Adoption Panel by Mr Smillie. This court's function has been repeatedly usurped by the social work department and Jackie Ianetta by telling E that she is getting a new family instead of telling her that that decision has to be made by someone else. E has not been placed with an adoptive family. If she had been it would be almost impossible for me to persuade your Lordship to alter that status quo. She is with Jackie Ianetta. Ms Ianetta has given evidence E can stay with her for as long as necessary. At today's date, given the very substantial progress made by mum, the ongoing clear bond and attachment between E and her mother, the best outcome if an order has to be made is a PO simpliciter with contact at its current level. This would mean E remains in a stable and settled environment. It would mean Ms G can continue to make progress overcoming her past drug addiction. It would mean in the first half of next year, if that progress is sustained and all the evidence points to that happening, the social work department could consider a phased return of E to her mother with support and guidance. DG has given evidence of her willingness to co-operate in such an event even to the extent of attending counseling if necessary. A PO simpliciter with contact would right the terrible wrong committed by the Adoption Panel in July 2010 under the undue influence of Gail Aboim. I suspect Steve Clark the Chairman of that Panel felt when he gave his evidence that perhaps a mistake had been made in listening to Gail Aboim and by failing to invite Ms G to their meeting. My criticism is of the social work department and in particular of Gail Aboim, who lacked credibility and who was unreliable. I also criticize Antonia Panetta for simply carrying on with the plan despite the evidence in front of her of good quality contact. And I criticize Terry Mullen for being a totally ineffectual line manager who clearly did not read the reports of her juniors and would simply blow in the direction of the wind whichever way it was blowing. Antonia Panetta should never have been given this case at her stage of professional development. And if she was, she should have been given far greater support and guidance from Terry Mullen. When Antonia Panetta began her evidence in cross-examination her ignorance of the paperwork was embarrassing. She had quite clearly not familarised herself with it, which is perhaps no great surprise given she was intent on simply pursuing the ADM's decision of July.

Section 14 Considerations

In terms of section 14(2) the court must have regard to all the circumstances of the case. The petitioner's case is an historical one. That's why the court cannot be satisfied that section 83(3)(b)&(c) have been established. Especially (c) which is in the future tense. At today's date DG can clearly discharge her parental rights and responsibilities. There was plenty of evidence from the contact notes and reports from Julie Philp that she was learning to set boundaries, interacting with E and capable of protecting her from harm. There was no real evidence even when E lived with her that Ms G didn't have parenting skills. Section 83(3)(c) is conjunctive with (b) and (c) and must be established by evidence. In my submission that evidence is simply not there to allow that inference to be drawn. It is now a full year that Ms G has been completely free of drugs and making constant progress in her lifestyle generally. Her previous violent partner CB is no longer a part of her life and nor will he be in the future. If your lordship agrees with me this ground has not been established then the court must consider whether section 83(2)(d) applies, the welfare ground. In my submission this ground, in the particular circumstances of this case does not apply. If E had been moved to an adoptive family and at today's date was very happy and settled then this ground could be relied upon by the petitioner. But that is not the case here. She remains with the same carer she has been with since being accommodated. Which then begs the question, on what evidence precisely does the petitioner seek to rely upon in support of this ground? If your Lordship agrees with me the section 83(3)(b)&(c) ground is not established? In my submission, there is no evidence to support section 83(2)(d).

 

Section 14(3) is the lifetime welfare test. If authority to adopt is granted the court is making a decision with lifelong implications for E and her mother. Contact will be terminated by the social work department and E is not likely to see her mother possibly ever again! That in the circumstances of this case would just be wrong. E and her mother deserve the opportunity of having a family life together. If a PO simpliciter is granted reflecting the status quo and mum for whatever reason began to abuse drugs again, the local authority could seek an amendment of the PO in terms of section 93 of the Act to add authority for the child to be adopted. It's very unlikely a sheriff would do anything other than amend the PO by granting authority to adopt. The local authority knows that, as does Ms G. A POA at this stage is premature. I would repeat the evidence of Jackie Ianetta: "if mum is clean of drugs then the best place for E is with her mother." And that's true. Jackie Ianetta knows Ms G far better than Gail Aboim who has never spoken to her at all, or Antonia Panetta who has rarely spoken to her and who has never sat down with her to have a proper discussion about the possibility of accepting an adoption plan with post adoption face-to-face contact at any stage in these entire proceedings.

E has been accommodated since April 2009. Another few months in a lifetime is not long to see if mum and E can be reunited as a family. I'm asking the court to give both of them that opportunity.

On the issue of what advice was given to the court by the Children's Hearing I am clear it was for a PO and not a POA. I leave it to your Lordship to decide whether that amounts to a procedural irregularity such as would be fatal to the granting of a POA.

Ian Sharpe Advocate.